DOJ Memo Gives Trump A Green Light To Dismantle National Monuments
“The power to declare carries with it the power to revoke,” a Trump official wrote in a legal memo.
A legal official at the Department of Justice has concluded that President Donald Trump has the authority to not only shrink but completely abolish areas protected as national monuments. The memo provides the legal framework for a broad reduction of federal land protections that Trump officials have alluded to for months.
DOJ’s Office of Legal Counsel tasked its Deputy Assistant Attorney General Lanora Pettit with assessing whether Trump can revoke his predecessor’s designation of Chuckwalla and Sáttítla Highlands National Monuments in California. It also asked her whether the Justice Department should disavow a 1938 opinion by then-Attorney General Homer Cummings contending that the Antiquities Act of 1906 bars presidents from abolishing national monuments once they’ve been established.
Pettit answered yes to both questions.
“We think that the President can, and we should,” Pettit wrote in a memo dated May 27 and released Tuesday.
The memo, titled “Revocation of Prior Monument Designations, contradicts the interpretation that has guided the Justice Department for nearly 90 years. Cummings’ opinion was “wrong” and “can no longer be relied upon,” Pettit wrote.
The Antiquities Act authorizes presidents to “declare by public proclamation historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest that are situated upon the lands owned or controlled by the Government of the United States to be national monuments.” Eighteen presidents — Democrats and Republicans — have used the law to designate more than 160 national monuments. The Act clearly gives the president the power to create national monuments, but says nothing about shrinking or abolishing them once established. Petit's memo argues that the president has that power.
“[F]or the Antiquities Act, the power to declare carries with it the power to revoke,” she wrote.
Pettit highlights several examples throughout history where Presidents have reduced the boundaries of national monuments, concluding that “if the President can declare that his predecessor was wrong regarding the value of preserving one such object on a given parcel, there is nothing preventing him from declaring that his predecessor was wrong about all such objects on a given parcel."
Legal experts were quick to point out that Pettit’s memo remains, for now, just an opinion.
“The OLC opinion may foreshadow coming national monument reductions or eliminations, but the opinion should not be considered the last word on presidential authority,” said John Ruple, a professor of law at the University of Utah and a former senior counsel in the White House Council on Environmental Quality under President Joe Biden. “In passing the Antiquities Act Congress delegated to the president the power to create national monuments. The Antiquities Act, however, is silent about a president’s power to reduce or eliminate monuments. The OLC believes silence is sufficient to convey power and the Supreme Court will likely decide whether that is a correct reading.”
The DOJ memo comes as Trump and his team weigh another round of national monument rollbacks. During his first term, Trump shrunk the boundaries of two national monuments in Utah — Bears Ears and Grand Staircase-Escalante — by a combined 2 million acres, following a review in which the administration argued that the previous presidents had gone beyond the scope of the Antiquities Act’s intent and abused the law to protect sweeping landscapes.
Trump 2.0 has launched a similar monument examination founded on the same arguments as before. Interior Department Secretary Doug Burgum, who is spearheading the current review, has repeatedly argued that the Antiquities Act was meant to safeguard small, “Indiana Jones-type” archeological sites, not large landscapes — a claim that ignores that many early national monuments spanned hundreds of thousands of acres.
In March, the White House released an executive order fact sheet noting that Trump would be “terminating proclamations declaring nearly a million acres constitute new national monuments that lock up vast amounts of land from economic development and energy production." The fact sheet was quickly amended to remove that language, but not before a White House official told the New York Times that Trump was rescinding Biden’s proclamation last year creating Chuckwalla and Sáttítla national monuments, which span a combined 850,000 acres in California.
Tuesday’s legal memo and the fact that Trump has yet to sign an executive order abolishing the California monuments would indicate that the White House got out ahead of lawyers working to assess the legality of such a move.
At least six national monuments are being eyed for potential reductions, including Bears Ears and Grand Staircase-Escalante, which the Biden administration restored to their original boundaries in 2021, The Washington Post reported in April.
Public land advocacy and environmental organizations were quick to condemn Pettit’s memo, with Axie Navas of The Wilderness Society describing it as “the legal equivalent of throwing a dart at the wall, then painting a bullseye around it.”
“This opinion flies in the face of a century of interpretation of the Antiquities Act,” Navas said in a statement. “Americans overwhelmingly support our public lands and oppose seeing them dismantled or destroyed.”
Sean Hecht, a managing attorney at Earthjustice and part-time professor at UCLA School of Law who co-authored a 2017 paper that argued presidents lack the authority to rescind, shrink or otherwise weaken national monuments, told Public Domain that Pettit’s memo “represents a radical change in the DOJ interpretation of the Antiquities Act and the Constitution.”
“I'll note, though, that it doesn’t roll back any monuments or change existing law,” he said in an email. “It’s just a signal and attempt to justify a change in legal position from the decades-old, longstanding position of the U.S. government.”
The release of Tuesday's memo came two days after the 119th anniversary of the Antiquities Act.
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