The Antiquities Act and America’s national monuments: Frequently Asked Questions

Sep 1, 2022

a riverbed at sunset
Browns Canyon National Monument, Bob Wick, BLM

Over the last week, America’s national monuments and the Antiquities Act have been in the news thanks to elected officials in Colorado asking President Biden to invoke the Antiquities Act and other executive powers to protect lands that are part of the CORE Act, which is stalled in Congress despite near-universal support in the state. At the same time, Utah’s attorney general filed a lawsuit challenging President Biden’s use of the Antiquities Act to confirm the boundaries of Bears Ears and Grand Staircase-Escalante national monuments, which President Trump had attempted to shrink in an action that was also challenged and not resolved before he left office.

The Center for Western Priorities, which tracks Antiquities Act developments as part of its work advocating for America’s public lands, has answers to the most frequently asked questions about the Act and America’s national monuments.

What is the Antiquities Act?

One of America’s bedrock conservation laws. In 1906, Congress gave presidents the authority to protect public lands and historic sites for the enjoyment of all Americans. Over the last 116 years, 17 presidents, Republicans and Democrats, have used the Antiquities Act to designate 158 national monuments.

The relevant part of the Act is brief:

(a) Presidential Declaration. The President may, in the President’s discretion, declare by public proclamation historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest that are situated on land owned or controlled by the Federal Government to be national monuments.

(b) Reservation of Land. The President may reserve parcels of land as a part of the national monuments. The limits of the parcels shall be confined to the smallest area compatible with the proper care and management of the objects to be protected.

How has the Antiquities Act been used?

Most often, to protect threatened American landscapes when Congress is too slow or temporarily dysfunctional to act on its own. The Act reflects Congress’s judgment that the president can be more nimble than the legislative process in providing protections to threatened public lands and it grants the president broad authority to protect national treasures with scientific or historical importance. On dozens of occasions, these national monuments were later recognized as treasures worthy of national park status.

President Teddy Roosevelt, who signed the Antiquities Act into law, used the Act to designate national monuments at what would become Grand Canyon, Petrified Forest, Lassen Volcanic, Pinnacles, and Olympic National Parks. These designations were sometimes opposed by those who wanted to open these now-iconic landscapes to mining, drilling, and other development.

Presidents would go on to use the Antiquities Act at Arches, Zion, Bryce Canyon, Acadia, Carlsbad Caverns, Joshua Tree, Denali, and dozens more national monuments that Congress would later come to recognize as national treasures. The Antiquities Act has also been used to protect important historic sites, including Thomas Edison’s laboratory, César Chávez’s home, and the Stonewall Inn. 

President George W. Bush was the first to use the Antiquities Act to protect large amounts of American land offshore, adding Papahānaumokuākea, World War II Valor in the Pacific, Pacific Remote Islands, and Marianas Trench to the list of national monuments.

Viewed through this historical lens, more recent uses of the Antiquities Act, including landscapes like Bears Ears and Grand Staircase-Escalante, perfectly fit the purpose of the Antiquities Act as envisioned by Congress and Teddy Roosevelt.

Has the Antiquities Act been challenged before?

Yes, many times—and it has always emerged stronger. After Teddy Roosevelt invoked the Antiquities Act to establish Grand Canyon National Monument in 1908, a miner named Ralph Cameron staked a mining claim inside the monument’s 800,000-acre boundary. Cameron claimed that Roosevelt’s monument proclamation was invalid. The Supreme Court ruled unanimously that the monument was undoubtedly “an object of unusual scientific interest,” and that it was within the scope of the Antiquities Act to protect a landscape of that size.

In the century that followed, every single challenge to a president’s authority under the Antiquities Act failed at the Supreme Court and in lower courts. Law professor John Leshy points to Cappaert v. United States, Wyoming v. Franke, Mountain States Legal Foundation v. Bush, Tulare County v. Bush, and notably, Alaska v. United States. In the Alaska case, the Supreme Court recognized that complex ecosystems and submerged lands were objects eligible for protection under the Antiquities Act.

Can Antiquities Act designations be revoked or modified by another president?

Not at all since 1976, and generally not before then either. Before President Trump attempted to shrink Bears Ears and Grand Staircase-Escalante, no president had removed land from a national monument since 1962, when President John F. Kennedy removed 320 acres from the Natural Bridges National Monument in Utah because they “no longer contain features of archaeological value.” At the same time he enlarged the monument by 5,236 acres.

As University of Utah law professor John Ruple noted in 2018, “every national monument that was previously reduced by presidential action had been set aside before 1940… at a time when information about both the objects to be protected by the monument and the landscape those objects occupied was often limited and imprecise.” In other words, the only precedents for shrinking a national monument were on technical grounds, or for national defense purposes during wartime under the president’s Article II powers.

Those actions, which were never tested in court, were wholly different from President Trump’s wholesale attempt 55 years later to remove protections from three-quarters of Bears Ears and half of Grand Staircase-Escalante. No other president had even attempted to shrink a national monument since Congress enacted the Federal Land Policy and Management Act of 1976 (FLPMA).

In 2017, four law professors, led by former Interior Department attorney Mark Squillace, explained why presidents do not have the authority to abolish or shrink national monuments. Their analysis was based on a plain reading of the Antiquities Act, in which Congress only granted the president power to create monuments, not revoke them, as well as an extensive legislative history of FLPMA. FLPMA put some limits on the president’s authority to withdraw public lands from resource extraction, but it explicitly left the president’s power under the Antiquities Act intact. Squillace and his colleagues wrote:

FLPMA left unchanged the President’s authority to create national monuments under the Antiquities Act, and included language confirming that Congress alone may modify or abolish monuments. Subsection 204(j) of FLPMA somewhat curiously states that “[t]he Secretary [of Interior] shall not . . . modify or revoke any withdrawal creating national monuments under [the Antiquities Act]. . . .” Because only the President, and not the Secretary of the Interior, has authority to proclaim national monuments, Congress’s reference to the Secretary’s authority under the Antiquities Act is anomalous and, as explained further below, may be the result of a drafting error. Nonetheless, this language reinforces the most plausible reading of the text of the Antiquities Act: that it deliberately provides for one-way designation authority. The President may act to create a national monument, but only Congress can modify or revoke that action.

The possible drafting error, Squillace explains, originated during an early markup session in 1975, when House subcommittee members appeared to be under the mistaken impression that the secretary of the Interior, not the president, created national monuments. At one point, the bill would have shifted the authority to create monuments from the president to the Interior secretary. The committee report on the bill as it was presented to the House floor made the intent of the section crystal clear, saying it would “specifically reserve to the Congress the authority to modify and revoke withdrawals for national monuments created under the Antiquities Act.”

But I thought President Trump shrunk Bears Ears!

He tried, but didn’t succeed. President Trump’s proclamation attempting to shrink Bears Ears and Grand Staircase-Escalante was immediately challenged in court. The lawsuit never made it to a summary judgment ruling because Trump lost his re-election campaign and President Biden restored the monuments in 2021. Because of the extensive legislative record around FLPMA, which clarified Congress’s intent that the Antiquities Act is a one-way statute, most legal scholars say it is unlikely that President Trump’s modifications would have survived a court challenge.

Trump’s reckless attempt to ignore the law in Utah was consistent with his attack on environmental policies throughout his administration. His administration’s track record in court was poor to say the least, frequently losing cases as judges found President Trump and his appointees repeatedly flouted the law.

What about Utah’s lawsuit?

Second verse, same as the first. After President Clinton protected Grand Staircase-Escalante National Monument in 1996, the Utah Association of Counties sued, arguing that the Antiquities Act was unconstitutional, and even if it wasn’t, Clinton violated the Act because he didn’t limit the monument to the “smallest area” necessary to protect objects of scientific or historic value.

The counties lost at the district court level, in a lengthy and crushing decision based on the well-established legal precedents that preceded the Grand Staircase designation.

 “When the President is given such a broad grant of discretion as in the Antiquities Act,” Chief Judge Dee Benson of the Federal District Court in Utah wrote, “the courts have no authority to determine whether the President abused his discretion.” 

The Utah Association of Counties didn’t bother to appeal the decision. In fact, Congress had already confirmed Clinton’s proclamation by enacting a statute that adjusted the monument’s boundaries, and in another law, approving a land swap that gave the State of Utah federal land with more development potential in exchange for scattered state-owned parcels inside the monument.

Despite that history, Utah’s attorney general recently filed a lawsuit again challenging Grand Staircase-Escalante, as well as President Biden’s proclamation restoring Bears Ears. Legally speaking, absolutely nothing has changed in the 18 years since the Utah Association of Counties lost what is essentially the same case. But the new argument now meanders across 80 pages and more than 300 paragraphs, putting Utah taxpayers on the hook for a massive legal bill.

What about the Roberts memo?

It was an odd error-filled statement attacking Congress’s judgment. In March 2021, Chief Justice John Roberts issued a curious statement that was attached to a decision declining to take up a case challenging an Obama-era monument off the coast of New England. The statement was not signed by any other justices, and essentially asked whether the Court should look at how the Antiquities Act has been used. Roberts stated that “[s]omewhere along the line,” the requirement that monuments be limited to “the smallest area compatible” has “ceased to pose any meaningful restraint.” Roberts even claimed that the Court had “never considered” how a large monument “can be justified under the Antiquities Act.”

This statement would suggest that Roberts was either not aware of or willfully ignoring the hundred-year-old history in which previous courts did, in fact, consider the “smallest area compatible” requirement and found that presidents have broad discretion to protect large landscapes using the Antiquities Act, starting with the Grand Canyon. Professor John Leshy noted in 2021 that to overturn that much legal precedent, “the Court would have to ignore many decades of congressional and public as well as judicial acceptance of presidential actions.”

The Roberts memo, in that light, reads as less of an attack on the president’s powers and more as criticism of the judgment of Congress itself. Congress has always retained its sole authority to revoke or modify national monument boundaries, and it has, on two occasions, limited the president’s power under the Antiquities Act. In 1950, Congress said the Act could no longer be used in Wyoming, as it added FDR’s Jackson Hole National Monument to Grand Teton National Park. In 1980, Congress approved President Carter’s use of the Act to protect a whopping 56 million acres of public land in Alaska, while also limiting the power of future presidents to use the Antiquities Act in the state. Notably, Congress did not amend or repeal the Antiquities Act despite the large size of the Alaska monuments.

By wondering aloud whether Congress really intended to let presidents use the Antiquities Act to protect large landscapes, Chief Justice Roberts was ignoring a century of consistent decision-making by Congress, repeatedly affirming that the Antiquities Act is being used as intended, and very occasionally deciding to exercise its constitutional authority to rein in the Antiquities Act, but only when when it—not the courts—chooses to do so.

Aren’t national monuments highly controversial?

Not at all. They’re incredibly popular and durable. For all of the attention given to the lawsuits and President Trump’s attempt to shrink Bears Ears and Grand Staircase-Escalante, national monuments are wildly popular with the American people, especially in Utah and across the West. News outlets tend to pay little attention to national monuments after their initial proclamation, even in places where a monument designation provides a much-needed boost to rural economies. Gateway towns at monuments like Browns Canyon in Colorado and Organ Mountains-Desert Peaks in New Mexico have thrived in the years following a monument designation thanks to increased visitation. This is just one of the reasons why Congress has eventually given national park status to dozens of national monuments that were originally protected using the Antiquities Act.

The campaign and lawsuit against national monuments in Utah goes against the explicit wishes of Utah residents. Voters there agreed by a 2-to-1 margin that President Biden’s restoration of Bears Ears National Monument was more of a good thing than a bad thing, according to the 2022 Conservation in the West Poll from Colorado College. During the Trump administration, as the Interior Department was conducting a review of 27 national monuments President Trump considered trying to shrink, public comments were nearly unanimous, with 99 percent of commenters telling the president to leave Bears Ears and all other national monuments intact.

What could President Biden do next?

Break out the pen. Since President Biden launched the America the Beautiful campaign in 2021, setting a goal of protecting 30 percent of America’s lands and waters by the end of the decade, his administration has not taken any major steps to increase the number of protected acres in the country. Numerous locally-led campaigns have been asking the president to invoke the Antiquities Act to establish new national monuments in places like Avi Kwa Ame in Nevada, the Castner Range in Texas, and now Camp Hale and the Continental Divide in Colorado.

Coming on the heels of a major climate victory in Congress, President Biden has the opportunity to keep riding the wave of public support for conservation and climate action. Time and time again, the American people have made it clear that they value their national monuments, and they want more of them. President Biden now has the chance to deliver.

More reading

The Monumental Legacy of the Antiquities Act of 1906, Mark Squillace, 2003.

Presidents Lack the Authority to Abolish or Diminish National Monuments, Squillace, Bieber, et al, 2017.

Chief Justice Roberts and the Antiquities Act, John Leshy, 2021.

The Trump Administration and Lessons Not Learned from Prior National Monument Modifications, John Ruple, 2018.

Monuments Protected Under the Antiquities Act, National Parks Conservation Association.

Relevant caselaw

Kleppe v. New Mexico, U.S. Supreme Court, 1976. Confirmed that the Property Clause of the Constitution gives Congress ultimate authority over U.S. public lands. Article IV, section 3: “Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States.”

Cameron v. United States, U.S. Supreme Court, 1920. Confirmed that the Antiquities Act of 1906 gives the president authority to protect “objects of historic or scientific interest” at the landscape scale, in particular President Roosevelt’s designation of the 818,000-acre Grand Canyon National Monument.

Wyoming v. Franke, U.S. District Court, Wyoming, 1945. Confirmed that Congress gave the president broad discretionary power to determine which lands are objects of historic and scientific interest in need of protection, and that only Congress, not the courts, can decide if the president overstepped the intent of the Antiquities Act.

Utah Association of Counties v. Bush, U.S District Court, Utah, 2004. Confirmed that President Clinton’s designation of Grand Staircase-Escalante National Monument, at 1.7 million acres, was legal and consistent with the powers Congress granted him under the Antiquities Act:

The record is undisputed that the President of the United States used his authority under the Antiquities Act to designate the Grand Staircase Monument. The record is also undisputed that in doing so the President complied with the Antiquities Act’s two requirements, 1) designating, in his discretion, objects of scientific or historic value, and 2) setting aside, in his discretion, the smallest area necessary to protect the objects. With little additional discussion, these facts compel a finding in favor of the President’s actions in creating the monument. That is essentially the end of the legal analysis.

The Utah Association of Counties did not appeal the ruling. The Mountain States Legal Foundation’s appeal was dismissed for lack of standing in 2006.

United States v. California, U.S. Supreme Court, 1978. Confirmed that President Truman had authority under the Antiquities Act to protect submerged lands to create Channel Islands National Monument in 1949.

Alaska v. United States, U.S. Supreme Court, 2005. Confirmed that President Coolidge had authority under the Antiquities Act to protect submerged lands to create Glacier Bay National Monument in 1925. The Court also noted that the “complex ecosystem of Glacier Bay and the surrounding land is important for understanding the purposes that led the United States to create” the monument.

Alaska v. Carter, U.S. District Court, Alaska, 1978. Confirmed that Presidential proclamations invoking the Antiquities Act are not subject to review under the National Environmental Policy Act (NEPA), because NEPA only applies to federal agencies, and the president is not an agency.

Featured image: Browns Canyon National Monument by Bob Wick, Bureau of Land Management