Federal protections for some lands and archaeological sites in the Mountain West could be at risk following a new legal opinion from the Department of Justice (DOJ) that many say gives President Trump a green light to shrink or revoke national monuments.
The DOJ memo reverses a 90-year-old legal interpretation that said presidents can’t undo monument designations by their predecessors under the Antiquities Act.
The 1906 law allows presidents to protect by proclamation federal lands with significant natural, historical or scientific value. More than 100 national monuments exist today, and many notable national parks, including the Grand Canyon and Zion, were originally designated as monuments.
The new opinion states that presidents may remove or reduce protections for monuments that “never were or no longer are deserving” of such status.
“This is a seismic change in the government's position,” said Justin Pidot, an environmental law professor at the University of Arizona and former lawyer for President Biden’s White House Council on Environmental Quality.
“[It’s] sort of setting the stage for the president to eliminate national monuments, essentially at his pleasure,” he said, anticipating it’ll mean more land opened to mining and oil and gas development.
John Yoo, a law professor at UC Berkeley and a fellow at the Civitas Institute at the University of Texas at Austin, who agreed with the DOJ’s stance, saw similar implications.
“I totally see that the Trump administration is declaring in a way, through this opinion, that it is going to start reducing the size, if not reversing entirely, national monument designations by the Biden administration in the interests of economic development,” Yoo said.
The legal memo drafted by the Office of Legal Counsel specifically calls out two California monuments created late in Biden’s term: Chuckwalla and the Sáttítla Highlands. However, the opinion could affect any monument not formally protected by Congress.
During his first term, Trump significantly reduced the size of the Bears Ears and Grand Staircase-Escalante national monuments in Utah, but didn’t entirely abolish any. The current administration is reportedly considering weakening protections for monuments in Utah, Arizona and New Mexico, according to the Washington Post.
Legal debate
Environmental advocates argue the Antiquities Act gives presidents broad authority to designate national monuments, a view upheld by court decisions.
However, conservatives contend that recent Democratic presidents have overreached by creating monuments that are too wide-ranging in scope and size, and that these decisions are open to challenge and revision, even if the act does not explicitly specify so.
“Presidents can always undo things that past presidents have done,” said Yoo, who made an argument in line with the Department of Justice opinion in a 2017 paper for the American Enterprise Institute.
Pidot disagreed, saying that the presidential authority to establish monuments is unique in that it is a power clearly given by Congress.
Implications
Todd Gaziano, president of the Center for Individual Rights and the co-author on Yoo’s 2017 report, said if Trump acts on his lawyers’ legal opinion and revokes monuments, it could highlight that long standing environmental protections should come through Congress instead of the president.
“That's really where we ought to be looking to make conservation protections and reservations,” he said.
But Pidot warned the memo could turn protected lands into “political footballs.”
“This new vision of the Antiquities Act means that when a president says this area should be protected for future generations, that's only good until a new president comes along,” he said.
Still, any moves to shrink or eliminate monument protections could face legal challenges—and Trump might have to weigh the political implications of removing designations for areas that are popular with the general public.
This story was produced by the Mountain West News Bureau, a collaboration between Wyoming Public Media, Nevada Public Radio, Boise State Public Radio in Idaho, KUNR in Nevada, KUNC in Colorado and KANW in New Mexico, with support from affiliate stations across the region. Funding for the Mountain West News Bureau is provided in part by CPB.
