Differing interpretations of a federal statute from 1906 are at the center of a newly reopened lawsuit seeking to reverse President Trump’s cuts to two Utah national monuments.
The Antiquities Act gives presidents broad latitude to designate national monuments through executive action. It does not say presidents can shrink existing monuments.
Because of that, environmental and Native American groups who’ve criticized Trump’s cuts to Bears Ears and Grand Staircase-Escalante national monuments say the reductions are illegal, unpopular and go beyond the plain reading of the 120-year old federal law.
Supporters of the drastic reductions argue presidents have the ability to reverse their predecessor’s decisions.
That includes Utah politicians, some of whom say former presidents have used the act too expansively, citing the creation of Bears Ears and Grand Staircase by Obama and Clinton as two examples.
That’s a point John Roberts, the chief justice of the U.S. Supreme Court, made in a 2021 case involving the roughly 3.2 million-acre Northeast Canyons and Seamounts Marine National Monument located in the Atlantic Ocean.
“A statute permitting the President in his sole discretion to designate as monuments ‘landmarks,’ ‘structures,’ and ‘objects’—along with the smallest area of land compatible with their management—has been transformed into a power without any discernible limit to set aside vast and amorphous expanses of terrain above and below the sea,” Roberts wrote at the time, adding that the Antiquities Act was ripe for judicial review.
But when Congress originally passed the law, it gave presidents a lot of leeway to determine what constitutes a national monument, said Mark Squillace, a law professor at the University of Colorado. Squillace wrote “The Monumental Legacy of the Antiquities Act of 1906,” a Georgia Law Review article that examines the statute.
The Antiquities Act first came about because major museums and amateur archaeologists from all over the world were essentially looting ancestral Puebloan sites like Chaco Canyon in New Mexico and Mesa Verde in southwest Colorado. Back then, lawmakers realized they needed to put a stop to it.
The law was controversial from the beginning. As it was being crafted, some in the U.S. Department of the Interior hoped it would give presidents the power to establish entire national parks through proclamations. On the other side, certain members of Congress wanted national monuments to be limited to a small patch of land around specific monuments.
In the end, neither idea caught on with Congress.
“[Congress] basically agreed to language that gave the president the authority to essentially designate any landmarks, historic landmarks, or objects of historic or scientific interest [as monuments],” said Squillace, who co-authored an amicus brief in the original lawsuit seeking to overturn Trump’s first monument cuts.
That last phrase — “objects of historic or scientific interest” — has been read expansively by some presidents and affirmed by courts, Squillace said.
He explained that from the beginning, presidents created monuments to preserve entire ecological or cultural landscapes, like the 818,560-acre Grand Canyon National Monument, created in 1908.
“That monument was subject to litigation in the Supreme Court, and the Supreme Court unanimously decided that the Grand Canyon was certainly an object of scientific interest and was an appropriate place to designate a national monument, and that kind of set the stage for future kinds of decisions by presidents and also decisions by courts to acknowledge and accept what we sometimes call landscape-sized monuments,” Squillace said. “That is, you're trying to protect a resource that is beyond just the particular narrow object.”
Bears Ears and Grand Staircase are landscape-sized monuments, he said, because Native American nations consider the canyons, mesas and sacred sites interconnected and thus in need of sweeping protections.
But there will always be some uncertainty as to what the bill’s creators originally intended.
“It's hard to know for sure what the sponsors of the bill were thinking,” he said. “There is debate about whether or not the sponsors really understood what they were getting into.”
U.S. District Court Judge Tanya Chutkan has given the Trump administration and environmental groups until Nov. 17 to propose a joint briefing schedule.
