By David Treadaway*
The Antiquities Act of 1906 (AA) assigns authority to the President to “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.” It has been employed by presidents for the last century to designate millions of acres of federal land as national monuments. While many environmental groups celebrate the efforts of presidents to designate these lands, there are many who are equally opposed. Congressional opponents have introduced bills in order to clarify the intent of the AA. These bills, if approved under the AA, will codify limitations on the President’s authority to designate monuments, introduce unprecedented authority to reduce or modify existing monuments, and provide states discretion in the approval process – each of which would reverse a century’s worth of legal interpretation and pre-empt imminent judicial interpretation of statutory intent.
Legislative history has given rise to various reviews of executive authority to designate federal land for national monuments. While these reviews have broadly diluted the powers to designate and manage national monuments between the President, Congress, and the Secretary of the Interior – the AA has remained largely unaffected. Congress has been either unable or unwilling to revoke the discretion afforded to the President by the AA. Additionally, whereas other federal land management acts have introduced explicit terminology on the revocation and modification of land designations – the AA has remained silent.
The Trump administration has challenged the Presidential powers as defined in the AA with the recent reduction of Bears Ears National Monument and Grand Staircase-Escalante by eighty-five and fifty percent respectively. President Trump additionally ordered Ryan Zinke, the Secretary of the Interior, to review: the original objectives of the AA, the effects that designations from the past twenty years have on federal and state lands, and the concerns of state, tribal, and local governments with respect to these designations.  President Trump has further ordered review of offshore national monuments in order to promote an America first energy strategy. The large rescissions of national monument land and related Executive Orders suggest a challenge to the current legal interpretation of the AA is imminent.
In addition to the Executive branch seeking to re-interpret the AA, Congress has continually sought to amend it. There have been site specific recommendations that target exemptions of a particular federal land tract without congressional approval, sweeping declarations that look to transfer veto power to the states, and bills that have sought to introduce public comment and added layers of executive agency review. One such pending attempt to modify the AA is by House Natural Resources Chairman Rob Bishop (R-Utah) who recently introduced the National Monument Creation and Protection Act. Representative Bishop’s bill seeks to amend the AA such that almost every state-centric limitation of authority is expressed and presidential authority to reduce or abolish monuments is explicit.
Although a concise and simply worded statute, the AA has previously been litigated at length. These cases have been unsuccessful in objecting to the President’s authority under the AA. Such challenges have included the President’s broad authority to designate national monuments, the exclusion of resources from the public domain, review of Presidential discretion, and opportunity for public comment and review. Each case was decided with deference to the President’s unreviewable authority.
However, the scope of judicial review has been limited. The courts have, to date, relied on strict interpretations of the statutory text, as opposed to implied limitations. There have been two potential questions the courts have yet to definitely answer – whether there is an implied authority in the statute that allows the President to modify and abolish national monuments, and whether a past President’s discretion can be questioned.
The Executive Orders and Trump’s reduction of Bears Ears National Monument and Grand Staircase-Escalante give rise to the reality that courts should soon expect to address the two unanswered questions above. If, in the course of these challenges the courts answer these questions consistent with past interpretations of the AA, the Trump administration’s ability to retract the Obama administration’s land conservation efforts will be ineffectual. Alternatively, courts could rule that the current mechanization of the AA is inconsistent with statutory intent – rendering previous sentiments inoperative. Answering either way, judicial decision will have lasting impact on the future of executive power under the AA.
An intervening factor, however, would be whether Rep. Bishop’s bill were to become law. This bill, if passed, would pre-empt the power of the judiciary to interpret the AA. Whereas the argument has been expressed that the President holds exclusive power to designate national monuments and Congress and States have proportionally too little power in stopping or reversing such decisions – bills such as Rep. Bishop’s would swing too far in the opposite direction. By providing the President the power of rescission and modification, Congress the veto power to stop future designations, and states significant input in federal land management – judicial authority is circumvented with respect to the implied powers of the AA.
So far, courts have shed relatively little light on a full interpretation of the AA. Many of the significant questions regarding its delegation of authority to the President to rescind, abolish, and modify national monuments have yet to be answered. What has been readily apparent however, is that some seek to avoid these answers altogether. If bills such as Rep. Bishop’s are passed, powers delegated under the AA will not be clarified by the judiciary as much as they will be supplanted entirely.
*David Treadaway is a Junior Editor on MJEAL. He can be reached via email at email@example.com
The views and opinions expressed in this blog are those of the authors only and do not reflect the official policy or position of the Michigan Journal of Environmental and Administrative Law or the University of Michigan.
 Antiquities Act, 54 U.S.C §320301 (1906).
 All National Monuments Designated Under the Antiquities Act, Natural Resources Defense Council (Apr. 26, 2017), https://www.nrdc.org/experts/nrdc/all-national-monuments-designated-under-antiquities-act.
 Republican National Committee, Republican Platform 2016 21 (2016) (supports amending the Antiquities Act of 1906 to establish Congress’ right to approve designations and require approval by the state where the monument will be designated).
 Federal Land Policy and Management Act, 43 U.S.C. § 1701-1787 (1976).
 The Forest Service Organic Act of 1897, 30 Stat. 34 (1897)(“The President is hereby authorized at any time to modify any Executive order that has been or may hereafter be made establishing any forest reserve, and by such modification may reduce the area or change the boundary lines of such reserve , or may vacate altogether any order creating such reserve.”).
 Julie Turkewitz, Trump Slashes Size of Bears Ears and Grand Staircase Monuments, N.Y Times, (Dec. 4, 2017), https://www.nytimes.com/2017/12/04/us/trump-bears-ears.html.
 Review of Designations Under the Antiquities Act, Exec. Order No. 13,792,
82 Fed. Reg. 20,429 (Apr. 26, 2017).
 Implementing an America-First Offshore Energy Strategy, Exec. Order No. 13,795, 82 Fed. Reg. 20,815 (Apr. 28, 2017).
 See, e.g. Minnesota’s Economic Rights in the Superior National Forest Act, H.R. 3905, 115th Cong. (2017) (The President does not have the authority to designate National Forest Service land in Minnesota without approval from Congress
 See Id.
 See National Monument Designation Transparency and Accountability Act, H.R. 2284, 115th Cong. (2017) (stating that the President cannot designate a national monument without the approval of Congress).
 See Public Input for National Monuments Act, H.R. 2074, 115th Cong. (2017) (seeking to amend 54 U.S.C. §320301 to include NEPA compliance for every national monument designation); See also National Monument Designation Transparency and Accountability Act of 2017, S. 132, 115th Cong. (2017) (seeking to require the President to obtain congressional approval, certify compliance with NEPA, and ensure state legislature approved the designation).
 National Monument Creation and Protection Act, H.R. 3990, 115th Cong. (2017).
 Cameron v. United States, 252 U.S. 450 (1920).
 Cappaert v. United States, 426 U.S. 128 (1976).
 Utah Ass’n of Counties v. Bush, 455 F.3d 1094 (10th Cir. 2006).
 Alaska v. Carter, 462 F. Supp. 1155 (D. Alaska 1978)
 Cameron, 252 U.S. at 455; Cappaert, 426 U.S. at 140.
 See 39 Op. Att’y Gen. 185, 183 (1938) (Stating, “While the President from time to time has diminished the area of national monuments established under the Antiquities Act by removing or excluding lands therefrom, under that part of the act which provides that the limits of the monuments ‘in all cases shall be confined to the smallest area compatible with the proper care and management of the objects to be protected,’ it does not follow from his power so to confine that area that he has the power to abolish a monument entirely”).
 Juliet Eilperin and Darryl Fears, Trump says he will shrink Bears Ears National Monument, a sacred tribal site in Utah, The Washington Post, (October 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=.7bded0195a2e.
 Supra note 20.