The U.S. Department of Justice says President Donald Trump has the authority to abolish national monuments or shrink the amount of land allotted to them. They include a pair of monuments in California established by former President Joe Biden, as well as any established by past presidents.
The assessment of presidential power came in a legal opinion published on May 27. The DOJ publicly released the opinion on Tuesday, June 10.
Overturning a 1938 opinion
National monuments are established by presidents for their cultural, historical or scientific significance. National parks, created by Congress, are more specifically established to protect scenic areas or geographical features.
The opinion, written by Lanora Pettit, who leads the DOJ’s Office of Legal Counsel, reverses a 1938 legal opinion and potentially allows Trump or a future president to rescind federal protections for millions of acres of land currently protected from development and mineral exploration through national monument designations.
New opinion
The Trump administration had asked Pettit to issue a new opinion as the president weighed whether to rescind Biden’s designation of two California sites as national monuments. Both are of significant importance to Native American tribes.
In his final days in office, Biden established the Chuckwalla National Monument, located south of Joshua Tree National Park, and the Sáttítla Highlands National Monument, which features the dormant Medicine Lake volcano. Between the two, Biden ordered the preservation of nearly 850,000 acres. He cited the Antiquities Act of 1906, a statute that has been used by 18 presidents to designate more than 100 national monuments.
Cummings’ opinion
The 1938 opinion was written by former Attorney General Homer Cummings, who served in the administration of former President Franklin D. Roosevelt. It has been used for generations to limit the president’s power to revoke past monument designations.
However, in the new 50-page opinion, Pettit said that while the Antiquities Act explicitly authorizes presidents to designate monuments, it does not specifically prevent them from abolishing previous designations.
“Thus, for the Antiquities Act, the power to declare carries with it the power to revoke.” Pettit wrote.
Petitt said that since the passage of the Antiquities Act, presidents have “from time to time diminished” the amount of land designated to safeguard monuments.
During his first term, Trump reduced the size of the Bears Ears National Monument by 85% and the Grand Staircase-Escalante National Monument by 50%. Both monuments are in Utah. Biden ordered that both monuments be restored to their original size.
Pettit said that the 1938 opinion, named after the national monument known as Castle Pinckney in South Carolina, unnecessarily complicated the president’s ability to reduce the size of monuments.
“The ongoing existence of Castle Pinckney has needlessly complicated litigation challenging the President’s authority to alter the declaration of his predecessor,” Pettit wrote. “Following President Trump’s 2017 decision to substantially reduce but not eliminate the Bears Ears and Grand Staircase-Escalante National Monuments, the parties spent considerable resources litigating whether those actions should be considered revocations… in no small part because Castle Pinckney opined that reduction but not elimination of a parcel was permissible.”
What does the future hold?
If Trump revokes a national monument’s designation, it would be the first time in U.S. history a president has done so. Legal scholars argue that the opinion paves the way for further revocations in the future.
The Trump administration told The Washington Post that it intended to eliminate the monuments Biden had designated in January. But that language did not appear in a fact sheet, which instead said the administration is terminating proclamations that “lock vast amounts of land.”
Criticism
Environmental groups have criticized the opinion.
“The Trump administration can come to whatever conclusion it likes, but the courts have upheld monuments established under the Antiquities Act for over a century,” Jennifer Rokala, executive director of the Center for Western Priorities, told The Hill. “This opinion is just that, an opinion. It does not mean presidents can legally shrink or eliminate monuments at will.”
“Once again,” she added, “the Trump administration finds itself on the wrong side of history and at odds with Western voters.”
