Noah Greenstein

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In 1906, Congress passed the infamous National Monument Act (more commonly known as the Antiquities Act), which grants the President broad, discretionary authority to designate national monuments.[1] Over the last 100 years, 16 Presidents from both parties have used this Act to designate 157 national monuments across the United States.[2] For example, on September 18, 1996, President Bill Clinton—standing on the South Rim of the Grand Canyon—established Grand Staircase-Escalante National Monument in Southeastern Utah.[3] At 1.7 million acres, Grand Staircase is the largest national monument in the continental United States.[4] Many were outraged over the monument designation.[5] Senator Orin Hatch, Republican of Utah, exclaimed, that “[i]n all my 20 years in the U.S. Senate, I have never seen a clearer example of the arrogance of federal power.”[6] Another Republican Senator compared the designation to Pearl Harbor.[7] Just over ten years later, former President Barack Obama designated 1.35 million acres in Utah, bordering Grand-Staircase, as Bears Ears National Monument.[8] Republican Representative Jason Chafetz immediately criticized the decision, calling the monument “a slap in the face to the people of Utah.”[9] The outrage over these monument designations is still brewing, and in December President Donald J. Trump will head to Utah to announce his plans to reduce the size of these national monuments.[10] The extent to which President Trump will reduce these monuments is unknown, but Utah state officials are pushing for a 90% reduction.[11]

This Note argues that President Trump lacks the authority to reduce national monuments. Part I describes the historical background surrounding the passage of the National Monument Act and its subsequent use. Part II provides a framework for analyzing presidential power under the National Monument Act. Using that framework, Part III argues that President Trump lacks the authority to reduce national monuments and analyzes some specific issues related to Grand Staircase and Bears Ears. Lastly, Part IV responds to recent articles that suggest the President has the power to modify national monuments.

[1] 54 U.S.C. § 320301 (2014)

[2] Monuments Protected Under the Antiquities Act, Nat’l Parks Conservation Ass’n (Jan. 13, 2017), https://www.npca.org/resources/2658-monuments-protected-under-the-antiquitiesact#sm.0001ow137kydyecsra

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[3] Mark Squillace, The Antiquities Act and the Exercise of Presidential Power, in The Antiquities Act: A Century of Archaeology, Historic Preservation, and Nature Conservation 108 (David Harmon, et al., 2006).

[4]Eric C. Rusnak, The Straw That Broke the Camel’s Back? Grand Staircase-Escalante National Monument Antiquates the Antiquities Act, 64 Ohio St. L.J. 669, 669 (2003).

[5] See infra notes 6–7

[6] Paul Larmer, The Mother of all Lands Grabs, in Give and Take: How the Clinton Administration’s Public Lands Offensive Transformed the American West 17 (Paul Larmer ed., 2004).  

[7] Christopher McGrory et al., American Environmental Policy, 1990—2006: Beyond Gridlock 117 (2008).

[8] Proclamation No. 9558, 82 Fed. Reg. 1139, 1139 (Dec. 28, 2017).

[9] Emily Shire, Why Obama’s Latest National Monuments Are Controversial, Bustle (Dec. 28, 2016), https://www.bustle.com/p/why-obamas-latest-national-monuments-are-controversial-26827.

[10] Juliet Eilperin & Darryl Fears, Trump Says He Will Shrink Bears Ears National Monument, a Sacred Tribal Site in Utah, Wash. Post (Oct 27, 2017), https://www.washingtonpost.com/news/energy-environment/wp/2017/10/27/trump-says-he-will-shrink-bears-ears-national-monument-a-sacred-tribal-site-in-utah/?utm_term=.131dcd05dc89.

[11] Michelle L. Price, Herbert: Still No Word on Extent Trump Will Shrink Monuments, Associated Press (Nov. 9, 2017), https://www.usnews.com/news/best-states/utah/articles/2017-11-09/herbert-still-no-word-on-extent-trump-will-shrink-monuments.