When President Donald Trump drastically cut the sizes of Utah’s Bears Ears and Grand Staircase-Escalante national monuments, it was not only the second time he’d done that, it was also the latest episode in a decadeslong tug of war over presidential power and public lands.
The debate hinges on a law from 1906.
“The Antiquities Act is such a small piece of legislation, but it's really powerful,” said Erika Allen Wolters, an associate professor with Oregon State University’s School of Public Policy.
The act says presidents can single-handedly designate monuments to protect objects of historic or scientific interest. They’ve used it on everything from ancient structures to forests. President Teddy Roosevelt even set aside 818,560 acres for Grand Canyon National Monument with a proclamation in 1908.
But the act’s language leaves some key points a bit hazy. Of particular interest to the Trump admin, it does not explicitly say presidents can undo monument designations. It also doesn’t specify how much land they can set aside.
“Because that really wasn't detailed out in the Antiquities Act, it leaves a little bit of a gray area about what exactly — and to what extent — the presidential authority is,” Wolters said.
That gray area drives much of the recent back-and-forth that has tossed around southern Utah landscapes like flags in the wind.
Trump dramatically shrunk both Grand Staircase-Escalante and Bears Ears during his first term, reversing moves of Democratic presidents Bill Clinton in 1996 and Barack Obama in 2016, respectively.
When Joe Biden helped Democrats retake the White House, he restored Grand Staircase and Bears Ears in 2021. Trump’s latest actions scrapped the Biden-era maps and reduced both monuments even more than he did in 2017. Each monument has now been cut by around 90%.
That whiplash of instability can have tangible impacts on landscapes, local economies, Indigenous tribes and the American public, Wolters said.
Still, the U.S. doesn’t seem close to stopping the pendulum from swinging. Lawsuits against Trump’s previous monument cuts and Biden’s restorations have lingered in court for years, unresolved.
No federal judge has ever overturned a presidential proclamation creating a national monument, said Chris Winter, a public lands attorney who directs the Getches-Wilkinson Center at the University of Colorado Boulder. They also don’t seem eager to weigh in on the Antiquities Act’s finer points.
Congress didn’t define a clear role for the courts in reviewing these presidential proclamations, he said, which puts judges in a tough spot.
“I think that creates a lot of uncertainty as to whether we're going to get clarity from the federal courts over time,” Winter said.
In his view, the starting point to look at this issue should be the Constitution, which gives Congress authority over all federal public lands. When lawmakers passed the Antiquities Act, they carved out some of that power and gave it to the president.
Because the act doesn’t say presidents can undo monuments, he believes that means they shouldn’t have the authority to do what Trump just did.
“It's not there in the plain language of the act. The words aren't on the paper,” Winter said. “So, President Trump is basically trying to read that into the act as a matter of interpretation.”
Other examples of legislation from the era also point in that direction, said Nick Bryner, professor of law at Louisiana State University who specializes in natural resources law.
The Pickett Act of 1910 and the Forest Service Organic Act of 1897 explicitly give the president power to withdraw land designations, he said, while the Antiquities Act is silent on that point.
“From all of that, we concluded that the best reading of the Antiquities Act is that Congress intended it to provide a one-way system where presidents would designate national monuments for protection, but it would be up to Congress to revoke those designations,” Bryner said.
When Congress overhauled land law with the Federal Land Policy and Management Act of 1976, Bryner said they had the chance to amend the Antiquities Act. They could have made it clear that presidents can undo monument designations or even removed this power from the executive branch toolkit altogether. But they did not.
On one hand, he said that seems to indicate Congress was OK with how the Antiquities Act had been understood up to that point. But it also left the door open for the years of dispute that followed.
“Until you get either some kind of congressional solution or a binding judicial opinion as to what the president's authority is, then we get the unfortunate result of having things bounce back and forth,” Bryner said.
Eventually, Winter said it would be better for Congress to step in and ratify more permanent boundaries for places like Bears Ears and Grand Staircase.
There’s historical precedent for that. Many national monuments created by presidential proclamations eventually became national parks established by Congress. Utah’s most-visited parks — Zion, Arches, Capitol Reef and Bryce Canyon — all started as monuments and followed that path.
If there’s a monument that the public doesn’t like, Winter said the solution should also be to have Congress — not a future president — act to undo it.
In U.S. history, 11 national monuments created by proclamation were later abolished by lawmakers. Local backlash to monuments in Wyoming and Alaska also led to congressional compromises that limited a future president’s authority to set aside land as a monument there.
That’s a model Megan Jenkins would like to see applied nationally.
“I think that's really the right way to go about it, if we want to protect a vast landscape,” said the Logan-based strategic research director with Pacific Legal Foundation. “We should have Congress getting involved so that it's not just one person's decision.”
She believes Clinton, Obama and Biden’s monument designations represented abuse and that Congress should set a size limit to prevent similar presidential action in the future.
“I think that would be really positive,” Jenkins said. “Both sides of the aisle get upset with the ping-pong back and forth, and so I think there could be bipartisan support for this type of change.”
In the meantime, lawyers stay busy.
Following Trump’s latest actions, conservation groups have signaled they plan to fight back with litigation.
Steve Bloch, legal director with the conservation group Southern Utah Wilderness Alliance, said the federal lawsuits his group brought against Trump’s 2017 monument reductions remain on the books. So, they’re still deciding whether the best path will be reviving existing litigation or filing something new.
Either way, he said the argument is the same — that the Antiquities Act gives the president the power to create, not the power to destroy — and his group intends to do what’s necessary to overturn Trump’s actions.
“We're going to challenge these in court, and we expect to win,” Bloch said. “So, what the president did on Monday is in no way going to be the last word for the protections of these remarkable federal lands.”
Suits from the opposing side of the debate may not be over, either.
The state of Utah, plus Garfield and Kane counties and the BlueRibbon Coalition, a recreation access advocacy group, sued after Biden restored Bears Ears and Grand Staircase in 2021, arguing his actions exceeded the scope of the Antiquities Act.
That lawsuit was not resolved before Trump’s recent proclamations, but a federal appeals court revived it in June and said a district court does have authority to hear the case. The appeals court ruling also affirmed the lower court’s decision to remove BlueRibbon Coalition from the suit because the group lacked standing.
Executive Director Ben Burr said the coalition expects to get back on the lawsuit and see it through to resolution. While he appreciates Trump’s recent decision, he said it doesn’t change their ultimate goal of reining in the Antiquities Act.
“Because a future president could reverse President Trump’s designations, the district court retains jurisdiction to decide whether President Biden’s expansions were ever lawful,” Burr said in a statement to KUER. “They were not, and we look forward to carrying our case forward in the courts.”
Utah Attorney General Derek Brown also applauded Trump’s actions, while saying the state will continue pressing to make Antiquities Act limits a reality.
Disclosure: Southern Utah Wilderness Alliance is a financial supporter of KUER
