By Jake Spring —
Trump administration officials have concluded that President Donald Trump has the authority to entirely abolish protected areas set aside as national monuments by past presidents, according to a legal opinion released Tuesday by the Department of Justice.
The May 27 document, which reverses a legal opinion issued in 1938, could be laying the groundwork for Trump to abolish or dramatically shrink national monuments, which confer federal protections to millions of acres of federal land, much of it in the American West.
Such a move would take the administration into untested legal territory.
“It signals that the president is prepared to do something dramatic and sort of at a scale that we’ve never seen before with respect to national monuments, which encompass many of our most cherished public lands,” said Justin Pidot, a professor at University of Arizona James E. Rogers College of Law and a former Biden administration official.
In laying out the administration’s position, the opinion from the department’s Office of Legal Counsel primarily analyzes the Chuckwalla and Sáttítla national monuments, which President Joe Biden designated just before leaving office.
According to the opinion, titled “Revocation of Prior Monument Designations,” the president can find that previously declared monuments “either never were or no longer are deserving of the Act’s protections; and such an alteration can have the effect of eliminating entirely the reservation of the parcel of land previously associated with a national monument.”
The Washington Post first reported in April that Trump administration officials in the Interior Department were studying whether to scale back at least six national monuments. The administration’s aim in doing so, according to a person briefed on the plan who spoke on the condition of anonymity because a final decision had not been made, is to free up more land for oil drilling and mining, building on Trump’s declaration of a “national energy emergency.”
Responding to questions about the legal opinion’s implications, White House spokesperson Harrison Fields said the administration has taken American energy infrastructure that was on life support and brought it back to life. He added that it is imperative for the Senate to pass Trump’s signature One Big Beautiful Bill to “liberate our federal lands and waters to oil, gas, coal, geothermal, and mineral leasing.”
The Justice Department did not immediately respond to requests for comment.
During his first administration, Trump moved to shrink the Bears Ears and Grand Staircase-Escalante national monuments in Utah, the first action of its kind in more than half a century. Those actions were challenged in court, but Biden reversed Trump’s decision before courts could make a final ruling on the matter, leaving the issue untested. Trump in April opened the Pacific Islands Heritage Marine National Monument to commercial fishing while leaving the monument in place.
In 2021, Supreme Court Chief Justice John G. Roberts Jr. invited litigants to present cases challenging how presidents of both parties have used the Antiquities Act to ban commercial activities on vast stretches of land and beneath the ocean.
Since the law’s passage in 1906, 18 presidents – an equal number of Republicans and Democrats – have declared national monuments. The act says that presidents can declare monuments but is silent on the question of whether they can be revoked or changed.
There is a genuine legal argument for both sides, said John Leshy, an emeritus professor of law at the University of California at San Francisco and a former top lawyer at the Interior Department in the Clinton administration.
“Putting this out as a legal opinion is sort of tossing a bone to the right wing that hates national monuments and hates public land,” Leshy said.
Leshy said it was unclear whether Trump will implement the opinion and abolish or modify a national monument, because protected lands enjoy broad bipartisan support among lawmakers and the public.
“People should care about the president’s power in the Antiquities Act because it’s been such a huge success. It’s protected more than 100 million acres of land onshore, and several hundred million acres offshore,” he added.
The number of monuments destroyed in the previous administration is astounding.