Presidential Authority Under the Antiquities Act
Congressional research reportJul 30, 2026
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Presidential Authority Under the Antiquities
Act
July 30, 2026
Congressional Research Service
https://crsreports.congress.gov
R49048
SUMMARY
Presidential Authority Under the Antiquities
Act
R49048
July 30, 2026
Cassandra J. Barnum
Legislative Attorney
The Antiquities Act of 1906, codified at 54 U.S.C. §§ 320301–320303, empowers the President
to create national monuments by “public proclamation.” The act provides that monuments may
consist of “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.” The
President may reserve surrounding land as part of a monument, but such reservation must be
“confined to the smallest area compatible with the proper care and management of the objects to be protected.” 54 U.S.C. §
320301(b). The act allows the federal government to accept land “relinquished” to it for purposes of creating a monument
and was amended in the mid-twentieth century to prohibit the establishment or expansion of any monuments in Wyoming
without congressional authorization. The act does not specify what protections arise from national monument status; instead,
Presidents have used monument proclamations to impose particular land use restrictions on a monument-by-monument basis.
Because Congress possesses plenary power over federal lands pursuant to the Property Clause in Article I of the Constitution,
courts have described the Antiquities Act as a delegation of authority from Congress to the President. Parties aggrieved by
the creation of national monuments (and attendant land use restrictions) have challenged the President’s exercise of that
delegated authority, requiring courts to grapple with the scope of the power conveyed. Courts have generally recognized that
while the act represents a broad delegation of power to the President, the act does limit presidential discretion in certain
respects. First, it limits monument status to objects of “historic or scientific interest.” Courts have interpreted the term
“object” broadly and have affirmed monument proclamations on the basis of “objects” as large as an entire ecosystem. Courts
have also widely deferred to presidential determinations about historic and scientific interest; no court has struck down a
national monument on the basis that it lacked the requisite historical or scientific characteristics. Second, the act allows
monuments to be established only on “land owned or controlled by the Federal Government.” Courts have found that the
term “land” can include submerged land (allowing for marine monuments) and have authorized marine monuments beyond
U.S. territorial waters based on federal authority over the United States’ Exclusive Economic Zone. Third, the act limits the
size of land reservations for monuments to “the smallest area compatible” with the monument’s protection. Courts have been
deferential on this score as well, with no court overturning, or even reviewing, a President’s determination of how much land
was necessary to reserve.
Courts have not established with certainty what degree of judicial review, if any, is appropriate in the context of Antiquities
Act monument proclamations. Supreme Court precedent limits the extent to which courts can review presidential actions
taken pursuant to delegated authority from Congress. Where the law imposes no limits on a President’s discretion, no judicial
review of the exercise of that discretion is available. The U.S. Court of Appeals for the District of Columbia Circuit has taken
the view in a series of cases that the requirements articulated above cabin the President’s discretion sufficiently to authorize
some degree of judicial review. Courts, including the Supreme Court, have evaluated whether “objects” were appropriately
designated as monuments and whether “lands” qualified for monument status. No court, however, has engaged in judicial
review with respect to whether a given monument proclamation meets the “smallest area compatible” requirement.
The Antiquities Act is silent with respect to a President’s authority to diminish the size of a monument or eliminate a
monument altogether. Proponents of this authority point to historical examples of Presidents reducing the size of monuments
without a congressional response and argue, among other things, that a grant of authority to do something includes the
authority to undo it. Opponents of monument reduction and revocation authority argue, among other things, that the President
could exercise such authority only if it were delegated explicitly by Congress. The scope of the President’s authority in this
respect has been the subject of litigation arising from the President’s reduction of the Bears Ears and Grand StaircaseEscalante National Monuments in 2017. See Hopi Tribe v. Trump, No. 17-cv-02590 (D.D.C. filed Dec. 4, 2017); Wilderness
Soc’y v. Trump, No. 17-cv-02587 (D.D.C. filed Dec. 4, 2017). That litigation is ongoing. The Department of Justice, in a
2025 opinion from the Office of Legal Counsel, has taken the position that the President has full authority both to diminish
and to revoke entirely monument status granted by a prior President.
Congress has a number of options for adjusting the scope of the President’s authority under the Antiquities Act. Amendments
to the act could address, among other things, the types of objects subject to designation, the quantity of land eligible for
inclusion in monuments, the types of land use restrictions that can be imposed, and the scope of judicial review. Congress
also has the option to specify what authority a President has to change monuments established by prior Presidents.
Congressional Research Service
Presidential Authority Under the Antiquities Act
Contents
Statutory Provisions ........................................................................................................................ 2
Scope of Presidential Power Under the Act..................................................................................... 3
“Objects” ................................................................................................................................... 4
Covered Lands .......................................................................................................................... 5
Submerged Lands................................................................................................................ 5
“Owned or Controlled” ....................................................................................................... 6
“Smallest Area Compatible” ..................................................................................................... 8
Restrictions Specific to Wyoming and Alaska .......................................................................... 9
Judicial Review ..............................................................................................................................11
Availability of Judicial Review ................................................................................................11
Considerations in Ultra Vires Review ..................................................................................... 14
Statutory Interactions .............................................................................................................. 16
Reduction and Elimination of Monuments .................................................................................... 17
Statutory Language and Authority to Reduce or Eliminate Monuments ................................ 21
Inherent Authority to Reduce or Eliminate Monuments ......................................................... 22
Comparing the Antiquities Act to Other Natural Resources Statutes ...................................... 23
Alternative Approach: Lifting Land Use Restrictions ............................................................. 24
Considerations for Congress.......................................................................................................... 25
Contacts
Author Information........................................................................................................................ 27
Congressional Research Service
Presidential Authority Under the Antiquities Act
T
he Antiquities Act was enacted in 1906 in response to the destruction of prehistoric ruins
and other archaeological sites in the western United States, often by amateur
archaeologists and treasure hunters.1 Prior to enactment of the Antiquities Act, federal law
did not authorize the President to make permanent and comprehensive reservations for the
purpose of preservation, but instead provided more limited protections.2 The Antiquities Act
authorizes the President to declare as national monuments, by public proclamation, “historic
landmarks, historic and prehistoric structures, and other objects of historic or scientific interest”
located on federal land.3 It also authorizes the President to reserve parcels of land surrounding
these objects, but limits the size of such reservations to “the smallest area compatible with the
proper care and management of the objects to be protected.”4 Once a national monument is
established, use of the federal lands and resources within the monument’s boundaries is subject to
the limitations specified in the proclamation itself and other authorities, without need of
congressional authorization.5
This report provides (1) an overview of the Antiquities Act’s provisions; (2) a review of issues
that have been subject to litigation under various components of the act—including what
constitutes an object subject to designation, what lands are subject to reservation, and what
constitutes the “smallest area compatible with the proper care and management” of objects
designated as monuments; (3) a discussion of how courts have engaged in judicial review of
monument proclamations; and (4) a discussion of the ongoing debate over whether Presidents
have authority to revoke or diminish prior Presidents’ monument proclamations. These issues
have generated some controversy as well as regular congressional interest. Some Members have
voiced support for the exercise of Antiquities Act authority,6 while others have introduced bills
1 See Pub. L. No. 59-209, § 2, 34 Stat. 225, 225
(codified as amended at 54 U.S.C. §§ 320301–320303); see also
Preservation of Prehistoric Ruins on the Pub. Lands: Hearing on S. 5603, H.R. 7269, and H.R. 15986 Before the H.
Comm. on the Pub. Lands, 58th Cong. 8 (1905) [hereinafter Hearing on S. 5603] (statement of Charles P. Bowditch,
Chairman of the Committee of the Archaeological Institute of America on American Archaeology) (“They consider it
the most important thing to have legislation which will prevent the vandalism that is now prevalent in the southwestern
territory in the region of the ruins of Indian antiquities, and the results being used for commercial purposes. Vast
numbers—we hear of one case of two carloads—of Indian antiquities have been shipped away by private individuals”);
id. at 9 (statement of Prof. Frederic W. Putman) (“These ruins and these old sites, mounds, and burial places are rapidly
disappearing, or they are being destroyed by what can literally be termed ‘pot hunting.’ These ruins, then, are going so
fast that if legislation to protect them is not enacted at once it will be impossible in a few years to read the past history
of North America”). For a detailed discussion of the enactment of the Antiquities Act, see Mark Squillace, The
Monumental Legacy of the Antiquities Act of 1906, 37 GA. L. REV. 473, 476–87 (2003).
2 The General Land Office Act, ch. 68, 2 Stat. 716 (1812), created the General Land Office in the Department of the
Treasury and gave the commissioner of that office the duty to “superintend, execute, and perform, all such acts and
things, touching or respecting the public lands of the United States.” See also Ronald F. Lee, The Origins of the
Antiquities Act, in THE ANTIQUITIES ACT: A CENTURY OF AMERICAN ARCHAEOLOGY, HISTORIC PRESERVATION, AND
NATURE CONSERVATION 15, 23 (David Harmon et al. eds., 2006) (describing the General Land Office’s authority to
withdraw specific tracts of land from sale or entry for a temporary period); Forest Reserve Act of 1891, ch. 561 § 24,
26 Stat. 1095, 1103 (authorizing the President to create permanent forest reserves through executive proclamation,
though such lands were not protected from other forms of development, including mining).
3 54 U.S.C. § 320301(b).
4 Id. § 320301(c).
5 See CRS Report R41330, National Monuments and the Antiquities Act, by Carol Hardy Vincent (2025) at 9;
Squillace, supra note 1, at 517–18 (“[R]estrictions on grazing, rights-of-way, and other uses of the land, including
recreational uses . . . can be imposed in the proclamation itself, but to the extent that they involve discretionary actions,
such as a decision to grant a new right of way, they might simply be handled in the course of managing the monument.”
(footnotes omitted)).
6 See Letter from 109 Democratic Members of Congress, to Sally Jewell, Sec’y, Dep’t of the Interior (Jan. 24, 2014),
https://democrats-naturalresources.house.gov/imo/media/doc/2014.1.14.Antiquities%20Act.%20Jewell_2.pdf
(continued...)
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seeking to limit presidential authority under the act7 or to remove such authority entirely.8 The
report concludes with considerations for Congress in some of these areas.
Statutory Provisions
The two main provisions of the Antiquities Act allow the President to declare and reserve lands
for national monuments. Those sections state the following:
(a) Presidential Declaration—The President may, in the President's discretion, 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.
(b) Reservation of Land—The President may reserve parcels of land as a part of the
national monuments. The limits of the parcels shall be confined to the smallest area
compatible with the proper care and management of the objects to be protected.9
The Antiquities Act does not require the President to produce an evidentiary record or to follow
specific procedures in establishing a national monument. Moreover, because proclamations under
the Antiquities Act are issued directly by the President, rather than by an executive agency, they
are not subject to substantive or procedural requirements that apply to federal agency actions,
such as the procedural and judicial review provisions of the Administrative Procedure Act (APA)
or the procedural and administrative record requirements of the National Environmental Policy
Act (NEPA).10
Creation of a national monument under the Antiquities Act does not automatically trigger any
land use restrictions. Instead, any protections for lands and resources within a monument derive
from a variety of other sources.11 They include the authorities that generally govern lands of the
managing agency, such as the National Park Service Organic Act for monuments designated on
National Park Service lands.12 They also include laws governing particular activities, such as the
[https://perma.cc/34U2-56WX]; Press Release, Natural Resources Committee, Defazio, Grijalva Lead 109 Democrats
in Urging Interior to Conserve National Treasures Using Antiquities Act (Jan. 24, 2014), https://democratsnaturalresources.house.gov/media/press-releases/defazio-grijalva-lead-109-democrats-in-urging-interior-to-conservenational-treasures-using-antiquities-act [https://perma.cc/D65R-7EFQ]; see also Bob Hotakainen, Biden Urged to
Create Nine New National Monuments, E&E NEWS PM (Apr. 16, 2024, at 16:33 ET),
https://www.eenews.net/articles/biden-urged-to-create-nine-new-national-monuments/.
7 See, e.g., Southern Arizona Protection Act, H.R. 5393, 119th Cong. (2025); Congressional Oversight of the
Antiquities Act, H.R. 2645, 119th Cong. (2025); Antiquities Act, S. 367, 116th Cong. (2019).
8 See, e.g., Ending Presidential Overreach on Public Lands Act, S. 220, 119th Cong. (2025).
9 54 U.S.C. § 320301(a)–(b). Other provisions of the act allow the federal government to receive land donations, id. §
320301(c); prohibit establishment or extension of monuments in Wyoming except by Congress, id. § 320301(d); and
authorize certain agencies to issue regulations and grant permits for archeological activities by qualified institutions, id.
§§ 320302–320303. Title 18 of the U.S. Code includes criminal penalties for stealing or otherwise disrupting antiquities
on federal lands and for violating regulations issued under the act. See 18 U.S.C. § 1866.
10 See Franklin v. Massachusetts, 505 U.S. 788, 800–01 (1992) (holding that the President is not subject to the APA).
Agency actions taken in the course of managing a national monument, however, are subject to a different analysis. See,
e.g., W. Watersheds Project v. Bureau of Land Mgmt. (BLM), 629 F. Supp. 2d 951 (D. Ariz. 2009) (proclamation
instructing BLM to prepare management plan in reliance upon “all applicable legal authorities,” including other land
use statutes, could trigger APA review of BLM plan).
11 See Squillace, supra note 1, at 514–18 (discussing various sources of restrictions on monument land use). Examples
of use restrictions can be found in the Tables to CRS Report R44886, Monument Proclamations Under Executive
Order Review: Comparison of Selected Provisions, by Carol Hardy Vincent and Laura A. Hanson (2017).
12 54 U.S.C. §§ 100101–100102.
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Mineral Leasing Act prohibitions on new mineral leasing within national monuments.13 A
presidential proclamation itself may impose restrictions on uses or activities, such as mining and
mineral claims, oil and gas leasing, timber harvesting, hunting, fishing, and grazing.14 Use
restrictions may also be found in the policies and management plans developed by the agency or
agencies responsible for monument oversight.15
The act is also silent as to which federal agency is responsible for managing a national monument
once established.16 For much of the act’s history, the National Park Service was most often
selected for this task, though some Presidents have departed from this practice and tasked other
agencies with this responsibility, particularly in recent decades.17 For instance, since 2000, more
new monuments have been managed by the Bureau of Land Management than the National Park
Service.18
Scope of Presidential Power Under the Act
Notwithstanding the act’s grant of authority to the President to establish national monuments,
Congress retains ultimate authority over federal lands pursuant to the Property Clause of the
Constitution, which states that Congress “shall have Power to dispose of and make all needful
Rules and Regulations respecting the Territory or other Property belonging to the United
States.”19 Congress has exercised this authority to alter certain monument designations, whether
by incorporating the monument (or portions thereof) into the National Park System, transferring
the monument to state control, abolishing the monument outright, or taking other actions.20 As
one court explained, “Congress may delegate this authority as it deems appropriate,” provided
that Congress also establishes “standards to guide the authorized action such that one reviewing
the action could recognize whether the will of Congress has been obeyed.”21 The Antiquities Act
was an appropriate delegation in this respect, the court found, because it “sets forth clear
standards and limitations.”22 Courts have interpreted the sparse language of the act to limit the
President’s discretion, for example, with the types of objects eligible to be monuments and
13 30 U.S.C. § 181 (providing for the disposition of “[d]eposits of coal, phosphate, sodium, potassium, oil, oil shale,
gilsonite . . . or gas, and lands containing such deposits owned by the United States” but “excluding lands . . . in
national parks and monuments”); see also Squillace, supra note 1, at 516 & n.278.
14 Squillace, supra note 1, at 516–18; see also Vincent, supra note 5, at 9.
15 Squillace, supra note 1, at 517–18 & n.283.
16 Kelly Y. Fanizzo, Separation of Powers and Federal Land Managememt: Enforcing the Direction of the President
Under the Antiquities Act, 40 ENVTL. L. 765, 781 (2010). For a more detailed discussion of the history of agency
management of national monuments and related issues, see id. at 781–84 & Squillace, supra note 1, at 519–33.
17 Fanizzo, supra note 16, at 783–84; see also Robert Iraola, Proclamations, National Monuments, and the Scope of
Judicial Review under the Antiquities Act of 1906, 29 WM. & MARY ENVTL. L. & POL’Y REV. 159, 167–68 (2004)
(“Typically, while management of national monuments has been given to the National Park Service, such authority has
also been delegated to agencies such as the Forest Service and Bureau of Land Management.”).
18 See National Monument Facts and Figures, NAT’L PARK SERV. (Jan. 22, 2025),
https://www.nps.gov/subjects/archeology/national-monument-facts-and-figures.htm [https://perma.cc/M25J-U27Q].
19 U.S. CONST. art. IV, § 3, cl. 2.
20 See Vincent, supra note 5.
21 Utah Ass’n of Cntys. v. Bush, 316 F. Supp. 2d 1172, 1190–91 (D. Utah 2004) (citing Yakus v. United States, 321
U.S. 414 (1944)); see also Mountain States Legal Found. v. Bush, 306 F.3d 1132, 1137 (D.C. Cir. 2002) (“No
Constitutional Property Clause claim is before us, as the President exercised his delegated powers under the Antiquities
Act, and that statute includes intelligible principles to guide the President's action.”).
22 Utah Ass’n of Cntys., 316 F. Supp. 2d at 1191.
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monument size.23 This section details statutory constraints on the President’s exercise of authority
under the act as interpreted by courts throughout its history.
“Objects”
The Antiquities Act allows the President to designate as monuments “historic landmarks, historic
and prehistoric structures, and other objects of historic or scientific interest.”24 Courts have taken
a broad view of what “objects” can be covered under the Antiquities Act. In Cameron v. United
States, the Supreme Court addressed President Theodore Roosevelt’s 1908 creation of Grand
Canyon National Monument.25 In his proclamation, Roosevelt wrote that “the Grand Canyon of
the Colorado River . . . is an object of unusual scientific interest, being the greatest eroded canyon
within the United States, and it appears that the public interests would be promoted by reserving
it as a National Monument.”26 When miners challenged the monument, they argued that the
President lacked the authority to establish the monument because it was not the type of object
encompassed by the act.27 The Court disagreed. Recognizing the Grand Canyon as “one of the
great natural wonders,” the Court noted that it “has attracted wide attention among explorers and
scientists” and “affords an unexampled field for geological study.”28 Thus, the Court concluded
that the Grand Canyon was an “object of unusual scientific interest” for purposes of the
Antiquities Act.29
The Court reaffirmed that the word “objects” was not limited to “archeologic sites” in Cappaert v.
United States.30 President Truman had reserved a limestone cavern called “Devil’s Hole” and
forty acres of surrounding land as a part of Death Valley National Monument.31 The monument
proclamation specifically referred to a “remarkable underground pool” in Devil’s Hole as being of
“outstanding scientific importance,” owing in part to the presence of the Devil’s Hole pupfish: “a
peculiar race of desert fish” found exclusively in that pool. Cappaert v. United States arose when
the United States sought to prevent ranchers from pumping groundwater on their ranch near
Devil’s Hole because the pumping reduced the water level of the underground pool in Devil’s
Hole and threatened its resident pupfish with extinction.32 The ranchers argued that the
President’s reservation of land for the monument did not include any reservation of water rights
for the United States, and that the Antiquities Act did not authorize the President to reserve the
pool itself because it was not an archeologic site.33 The Court held that Devil’s Hole was subject
to reservation because the Antiquities Act was “not so limited,” and “the pool in Devil’s Hole and
its rare inhabitants are ‘objects of historic or scientific interest.’”34 The Court upheld the lower
23 Id.
24 54 U.S.C. § 320301(a) (emphasis added).
25 252 U.S. 450 (1920).
26
Proclamation No. 794, 35 Stat. 2175 (1908).
27 252 U.S. at 455.
28 Id. at 456.
29 Id. at 455 (quoting Proclamation No. 794, 35 Stat. at 2175). The Court also concluded that the plaintiffs did not have
a prior valid adverse claim that would entitle them to continue their operations on the monument land. Id. at 456–65.
30 426 U.S. 128 (1976).
31 Id. at 131–33.
32 Id. at 131–35.
33 Id. at 136, 142.
34 Id. at 142 (quoting Cameron v. United States, 252 U.S. 450, 455 (1920); see also Tulare County v. Bush, 306 F.3d
1138, 1142 (D.C. Cir. 2002) (presidential authority under Antiquities Act “is not limited to protecting only
archaeological sites”).
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court’s grant of an injunction on pumping groundwater to the extent necessary to preserve the
pool as a habitat for pupfish, which the Proclamation made clear were “one of the features of
scientific interest.”35
In Anaconda Copper Co. v. Andrus, mining industry plaintiffs challenged several of President
Carter’s monument designations in Alaska.36 The U.S. District Court for the District of Alaska
observed that presidential authority under the Antiquities Act was “not limited only to historic
landmarks” or “historic and prehistoric structures,” but extended to “other objects of historic or
scientific interest.”37 The court opined that “the parameters of presidential authority have not yet
been fully defined,” suggesting that “the Supreme Court has had the opportunity to do so in the
Cameron case and again in Cappaert, but did not do so,” and that as such “the outer parameters”
of presidential authority under the Antiquities Act “have not yet been drawn by judicial
decision.”38 Nonetheless, relying on the legislative history of the act, historical practice, and the
lack of congressional amendments to the act in light of that practice, the court found that “matters
of scientific interest which involve geological formations or which may involve plant, animal or
fish life are within this reach of the presidential authority under the Antiquities Act.”39
Covered Lands
The Antiquities Act limits the scope of the President’s authority to declare monuments to objects
“situated on land owned or controlled by the Federal Government.”40 Courts have addressed the
meaning of “land”—specifically whether the term includes land submerged under water—and the
degree of “control” required to establish monument eligibility.
Submerged Lands
Courts have consistently held that the President’s authority under the Antiquities Act extends to
submerged lands. In United States v. California, the Supreme Court addressed the issue of
submerged lands in the context of the Channel Island National Monument.41 President Franklin
Roosevelt had established the monument in 1938 to protect Anacapa and Santa Barbara Islands
off the coast of southern California, on the basis that the islands contained fossils of scientific
interest and were themselves notable examples of “ancient volcanism, deposition, and active sea
erosion.”42 President Truman enlarged the monument in 1949 to encompass “the areas within one
nautical mile of the shoreline” of the two islands.43 The litigation in United States v. California
dealt primarily with the question of whether the lands and waters within that one-mile radius were
35 Cappaert, 426 U.S. at 141.
36 No. 79-161, 1980 U.S. Dist. LEXIS 17861 (D. Alaska July 1, 1980).
37 Id. at *5.
38 Id. at *7; see also id. at *6 (“I find the executive practice is consistent and long established and must be looked to, as
well as the words of the statute itself. . . . I believe it is significant that in the promulgation and enactment of the 1976
[Federal Land Policy and Management Act] Congress did not curtail or restrict the exercise of presidential authority.”).
39 Id. For a similar district court holding, see Wyoming v. Franke, discussed infra note 67 and accompanying text.
40 54 U.S.C. § 320301(a).
41 436 U.S. 32 (1978) (“There can be no serious question, therefore, that the President in 1949 had power under the
Antiquities Act to reserve the submerged lands and waters within the one-mile belt as a national monument . . . .”).
42 Proclamation No. 2281, 52 Stat. 1541 (1938).
43 Proclamation No. 2825, 63 Stat. 1258 (1949).
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controlled at the time of the litigation by California or the federal government.44 While the Court
ultimately concluded that Congress had transferred title of the land to California, rendering the
land beyond reach of the Antiquities Act, the Court explained in the course of its reasoning that
the President had “power under the Antiquities Act to reserve the submerged lands and waters
within the one-mile belts as a national monument.”45 The Supreme Court reaffirmed this principle
in Alaska v. United States in 2005.46 In the course of addressing whether the United States
retained title to the submerged lands in the Glacier Bay National Monument, the Court stated that
“[i]t is clear, after all, that the Antiquities Act empowers the President to reserve submerged
lands.”47
The U.S. Court of Appeals for the D.C. Circuit (D.C. Circuit) analyzed the issue further in
Massachusetts Lobstermen’s Ass’n v. Ross.48 President Obama established the Northeast Canyons
and Seamounts Marine National Monument, located exclusively in the Atlantic Ocean, in a
proclamation declaring the objects constituting the monument to be “the canyons and seamounts
themselves, and the natural resources and ecosystems in and around them.”49 The plaintiffs
challenging the monument—a group of commercial fishing associations—argued in part that “the
Monument is invalid because it ‘is not land, as that term is ordinarily understood.’”50 They
contended that the Supreme Court’s commentary on this issue in Cappaert, California, and
Alaska constituted “non-binding dicta” because “the cases concerned only whether Presidents
intended to include submerged lands in their proclamations, not whether they had the authority to
do so.”51 The D.C. Circuit disagreed, holding that at least in Alaska, the President’s authority to
reserve submerged lands was a necessary and explicit predicate to its holding (and therefore its
commentary on the issue was not dicta).52 The court concluded that, “[a]lthough the parties
advanced, and the district court considered, other arguments about whether the Act reaches
submerged lands—including arguments about historic practice and ordinary meaning—we need
not wade into those waters, so to speak. On-point Supreme Court precedent resolves this claim.”53
“Owned or Controlled”
The Antiquities Act limits the President to reserving lands “owned or controlled by the Federal
Government.”54 Plaintiffs in the Massachusetts Lobstermen’s Ass’n case argued that the Northeast
Canyons and Seamounts Marine National Monument was not on land “owned or controlled by
44 See California, 436 U.S. at 33 (“The question in this case, arising under our original jurisdiction, is whether
California or the United States has dominion over the submerged lands and waters within the Channel Islands National
Monument, which is situated within the three-mile marginal sea off the southern California mainland.”). The Court
ultimately held that while the federal government owned and controlled the lands at the time of the monument
designation and expansion, the Submerged Lands Act, 43 U.S.C. § 1301, had effectuated a transfer of that ownership to
the State of California. See infra “Owned or Controlled” for further discussion of this component of the case.
45 436 U.S. at 36; see also id. at n.9 (“Although the Antiquities Act refers to ‘lands,’ this Court has recognized that it
also authorizes the reservation of waters located on or over federal lands.”) (citing Cappaert v. United States, 426 U.S.
128, 138–42 (1976)).
46 545 U.S. 75 (2005).
47 Id. at 103 (citing California, 436 U.S. at 36).
48 945 F.3d 535 (D.C. Cir. 2019). As discussed supra “Smallest Area Compatible” the Supreme Court declined to
review this case.
49 Proclamation No. 9496, 81 Fed. Reg. 65161 (Sep. 15, 2016).
50 Mass. Lobstermen’s Ass’n, 945 F.3d at 540.
51 Id. at 541.
52
Id.
53 Id.
54 54 U.S.C. § 320301(a).
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the federal government” because it lay entirely within a part of the ocean called the U.S.
Exclusive Economic Zone (EEZ).55 Under principles of international law, the area between 12
and 200 miles off a nation’s coast constitutes that nation’s EEZ.56 As the D.C. Circuit recounted,
President Reagan “established U.S. sovereign dominion over the EEZ” by proclamation in
1983.57 Pursuant to that proclamation and the rules of international law, the court explained, “the
federal government exerts ‘significant’ ‘authority to exercise restraining and directing influence
over the EEZ.’”58 Emphasizing that “[n]o private entity owns any portion of the EEZ, and no
public entity possesses equivalent sovereign rights there,” and pointing to Supreme Court
precedent holding that the federal government exercises exclusive jurisdiction over the
continental shelf, the court held that the federal government “controls” the EEZ for purposes of
the Antiquities Act.59
Courts have generally yet to decide what degree of ownership the federal government must
exercise to make land eligible for reservation as part of a monument. While fee-simple ownership
clearly qualifies, there are other types of ownership or control—for example, a conservation
easement, or ownership in trust for an Indian tribe—that remain untested. The question could
arise in the context of a monument proclamation on such land or in the context of land conveyed
to the government in anticipation of a monument. The Antiquities Act allows private land to be
“relinquished” to the government for that purpose but does not specify whether the conveying
party could lawfully retain any type of interest in the land, nor whether the analysis would differ
as between states and private parties.60
A related question courts have not widely explored is what use restrictions can be imposed for a
monument on land the government owns but has leased out or otherwise made available for
resource extraction. Most proclamations in recent decades have included land use restrictions
with exceptions for “valid existing rights.”61 Absent such carve-outs, those with property interests
in government lands could argue that a variety of use restrictions amount to takings requiring
compensation under the Fifth Amendment’s Takings Clause.62 Even where proclamations have
55 Mass. Lobstermen’s Ass’n, 945 F.3d at 539, 544.
56 See U.N. Convention on the Law of the Sea, arts. 55, 57, Dec. 10, 1982, 1833 U.N.T.S. 397, 418, 419 (defining the
EEZ as “an area beyond and adjacent to the territorial sea” that “shall not extend beyond 200 nautical miles from the
baselines from which the breadth of the territorial sea is measured,” “under which the rights and jurisdiction of the
coastal State and the rights and freedoms of other States are governed by the relevant provisions of this Convention”);
see also 33 C.F.R. § 2.30 (2026) (EEZ).
57 Mass. Lobstermen’s Ass’n, 945 F.3d at 539, 544; see also Proclamation No. 5030, 3 C.F.R. §§ 22, 23 (1984).
58 Mass. Lobstermen’s Ass’n, 945 F.3d at 543 (quoting Admin. of Coral Reef Res. in the Nw. Hawaiian Islands, 24 Op.
O.L.C. 183, 196–97 (2000)).
59 Mass. Lobstermen’s Ass’n, 945 F.3d at 544; see also Parker Drilling Mgmt. Servs., Ltd. v. Newton, 587 U.S. 601,
606 (2019) (“[T]he Federal Government has exclusive jurisdiction over the entire continental shelf.”).
60 54 U.S.C. § 320301(c) (“When an object is situated on a parcel covered by a bona fide unperfected claim or held in
private ownership, the parcel, or so much of the parcel as may be necessary for the proper care and management of the
object, may be relinquished to the Federal Government and the Secretary may accept the relinquishment of the parcel
on behalf of the Federal Government.”).
61 See Vincent, supra note 5, at 9 (“At least over the past 50 years, monument proclamations typically have had explicit
protections for valid existing rights for land uses, but the extent to which designations may affect existing rights is not
always clear.”). See also CRS Report R46657, Withdrawal of Federal Lands: Analysis of a Common Legislated
Withdrawal Provision, by Carol Hardy Vincent and Erin H. Ward at 12–17 (2021) (interpreting the phrase “subject to
valid existing rights”).
62 The Takings Clause of the Fifth Amendment to the Constitution prohibits the taking of private property “for public
use, without just compensation.” U.S. CONST. amend. V. Courts have held in the past that mineral leases on public land
can give rise to a property right for Takings Clause purposes. See, e.g., Skaw v. United States, 740 F.2d 932, 935–36
(continued...)
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made monument land reservations “subject to valid existing rights,” attendant land use
restrictions have the potential to reduce the value of property interests on monument land.63
Where use restrictions deny a user “any economically viable use of his land,” a court could find a
compensable taking has occurred.64
“Smallest Area Compatible”
The Antiquities Act requires that land reserved for a monument be “confined to the smallest area
compatible with the proper care and management of the objects to be protected.”65 Courts have
largely declined to review claims that monument reservations are larger than this provision
allows.66 In an early example, the U.S. District Court for the District of Wyoming in Wyoming v.
Franke considered claims that the Jackson Hole National Monument “contain[ed] no objects of
an historic or scientific interest” and was “not confined to the smallest area compatible” with the
preservation of the objects designated.67 The court found the Antiquities Act granted the President
substantial discretion, holding that “evidence in the case of a substantial character upon which the
President may have acted” would suffice to justify selecting objects for designation as
monuments and determining the smallest area compatible with preserving them.68 The court
reasoned that the Antiquities Act delegated congressional authority over lands to the President,
and that Congress bore the burden of correcting for any unintended executive overreach by
passing new legislation.69 The court described this as “a controversy between the Legislative and
Executive Branches of the Government in which, under the evidence presented here, the Court
cannot interfere.”70
(Fed. Cir. 1984) (locater of mineral deposit has “‘property right in the full sense, unaffected by the fact that paramount
title to the land is in the United States’ . . . . A fortiori it is a property right which is within the protection of the Fifth
Amendment's prohibition against the taking of private property for public use without just compensation” (quoting
Union Oil Co. v. Smith, 249 U.S. 337, 349 (1919)).
63
Although the issue ultimately was not litigated, questions regarding use restrictions arose in the context of the
creation of the Grand Staircase-Escalante National Monument in Utah. While the proclamation made the reservation
“subject to valid existing rights,” Proclamation No. 6920, 61 Fed. Reg. 50223, 50225 (1996), various tangential use
restrictions reportedly made certain coal leases unprofitable; the matter was resolved without litigation when the
government paid $14 million to the leaseholder. See Associated Press, $14 Million Swap for Andalex Leases, DESERET
NEWS (Oct. 3, 1999, at 12:00 MT), https://www.deseret.com/1999/10/3/19468770/14-million-swap-for-andalex-leases/
[https://perma.cc/8K8V-SSVV].
64 Agins v. City of Tiburon, 447 U.S. 255, 260 (1980), abrogated by Lingle v. Chevron U.S.A. Inc., 544 U.S. 528
(2005); see also CRS Report R47562, The Takings Clause of the Constitution: Overview of Supreme Court
Jurisprudence on Key Topics, by Adam Vann (2023).
65 54 U.S.C. § 320301(b).
66 See infra “Judicial Review.”
67 Wyoming v. Franke, 58 F. Supp. 890, 892 (D. Wyo. 1945).
68
Id. at 895.
69 Id. at 896.
70 Id.
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Later courts have also eschewed second-guessing the amount of land reserved for monuments,
generally deferring to the President’s broad discretion under the act.71 These cases are discussed
below in relation to the scope of judicial review.72
Restrictions Specific to Wyoming and Alaska
Congress has also enacted legislation limiting the President’s authority to establish national
monuments in two states. First, after the court in Wyoming v. Franke upheld the Jackson Hole
National Monument, Congress undertook to pass the “remedial legislation” the court
hypothesized. Even prior to the ruling in Franke, committees in both chambers held hearings on
the Jackson Hole National Monument.73 The then-House Committee on the Public Lands
emphasized the potential economic injury that the reservation of land would inflict on local
communities, including by reducing the tax base for local governments and “destroying the cattle
business.”74 The then-Senate Committee on Public Lands and Surveys went further, concluding
that the Jackson Hole proclamation “disregarded” the Antiquities Act’s requirement that reserved
lands be “confined to the smallest area” necessary for preservation.75 In this committee’s
judgment, the authority given the President in the Antiquities Act “was not broad enough to cover
the establishment of the Jackson Hole Monument,” and so it sought to “disestablish[]” that
monument in order to eliminate “a dangerous precedent.”76
The fate of Jackson Hole National Monument was resolved when President Truman signed
legislation to consolidate it with the existing Grand Teton National Park.77 This same legislation
amended the Antiquities Act to prohibit the President from establishing or extending national
monuments within Wyoming “except by express authorization of Congress.”78
Second, legislation outside the Antiquities Act itself, namely the Alaska National Interest Lands
Conservation Act (ANILCA), restricts the President’s ability to establish national monuments in
Alaska.79 On December 1, 1978, President Carter established or expanded seventeen monuments
in Alaska, totaling approximately fifty-six million acres.80 These monument proclamations
71 The Supreme Court has not addressed this question. In Cappaert, one of the ranchers’ arguments was that inclusion
of thousands of square miles of groundwater for the preservation of the 40-acre Devil’s Hole violated the “smallest area
compatible” requirement. Brief for the Petitioners at 64, 66–67, Cappaert v. United States, 426 U.S. 128 (1976) (No.
74-1107), 1975 WL 173691. The Court did not take up the issue, holding only that the pool and its pupfish were
eligible “objects” for preservation, and that pursuant to the “implied-reservation-of-water-rights doctrine,” “the level of
the pool may be permitted to drop to the extent that the drop does not impair the scientific value of the pool as the
natural habitat of the species sought to be preserved.” Cappaert, 426 U.S. at 141.
72 See infra “Judicial Review.”
73 See A Bill to Abolish the Jackson Hole National Monument: Hearing Before the H. Comm. on the Pub. Lands on
H.R. 2241, 78th Cong. (1943); Jackson Hole National Monument, Wyoming: Hearing Before the S. Comm. on Pub.
Lands and Surveys, 78th Cong. (1943).
74 H.R. REP. NO. 78-1303, at 5–6 (1944).
75 S. REP. NO. 78-1388, at 2 (1944).
76 Id.
77 Act of Sep. 14, 1950, ch. 950, 64 Stat. 849 (codified at 16 U.S.C. § 406d-1).
78 Id. § 1, 64 Stat. at 849 (codified at 54 U.S.C. § 320301(d)).
79 Pub. L. No. 96-487, 94 Stat. 2371 (1980) (codified at 16 U.S.C. §§ 3101–3233).
80 Squillace, supra note 1, at 504; see Proclamation No. 4611, 93 Stat. 1446 (1978) (Admiralty Island National
Monument); Proclamation No. 4612, 93 Stat. 1448 (1978) (Aniakchak National Monument); Proclamation No. 4613,
93 Stat. 1450 (1978) (Becharof National Monument); Proclamation No. 4614, 93 Stat. 1451 (1978) (Bering Land
Bridge National Monument); Proclamation No. 4615, 93 Stat. 1453 (1978) (Cape Krusenstern National Monument);
(continued...)
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“sparked bitter opposition in Alaska.”81 In 1980, Congress passed and the President signed
ANILCA.82 This law rescinded President Carter’s monument designations but simultaneously set
aside over 100 million acres of land for conservation, much of which consisted of the same lands
that had been included in monuments proclaimed by President Carter.83
ANILCA provided that “future executive branch action which withdraws more than five thousand
acres, in the aggregate, of public lands within the State of Alaska” would not be not “effective
until notice is provided in the Federal Register and to both Houses of Congress” and that each
“withdrawal shall terminate unless Congress passes a joint resolution of approval within one year
after the notice of such withdrawal has been submitted to Congress.”84 The term “withdrawal”
generally refers to an act precluding specified uses of federal land that could otherwise be
authorized under various laws.85 This provision of ANILCA, without explicitly mentioning the
Antiquities Act, nonetheless effectively limits the President’s authority with respect to national
monuments in Alaska. The President could still “declare” a national monument and “reserve”
lands for its care and management, per the verbiage of the Antiquities Act, but ANILCA’s
prohibition on “withdrawal” of more than an aggregate five thousand acres of public lands means
the President could only preclude otherwise lawful land uses in up to five thousand acres of such
lands. In other words, while the President could still declare monuments larger than five thousand
acres in Alaska, ANILCA significantly limits presidential discretion with respect to any land use
restrictions within such monuments.86
Proclamation No. 4616, 93 Stat. 1455 (1978) (Denali National Monument); Proclamation No. 4617, 93 Stat. 1457
(1978) (Gates of the Artic National Monument); Proclamation No. 4618, 93 Stat. 1458 (1978) (Enlarging the Glacier
Bay National Monument); Proclamation. No. 4619, 93 Stat. 1460 (1978) (Enlarging the Katmai National Monument);
Proclamation No. 4620, 93 Stat. 1462 (1978) (Kenai Fjords National Monument); Proclamation No. 4621, 93 Stat.
1463 (1978) (Kobuk Valley National Monument); Proclamation No. 4622, 93 Stat. 1465 (1978) (Lake Clark National
Monument); Proclamation No. 4623, 93 Stat. 1466 (1978) (Misty Fjords National Monument); Proclamation No. 4624,
93 Stat. 1468 (1978) (Noatak National Monument); Proclamation No. 4625, 93 Stat. 1470 (1978) (Wrangell-St. Elias
National Monument); Proclamation No. 4626, 93 Stat. 1472 (1978) (Yukon-Charley National Monument);
Proclamation No. 4627, 93 Stat. 1473 (1978) (Yukon Flats National Monument).
81 Squillace, supra note 1, at 504.
82 Pub. L. No. 96-487, 94 Stat. 2371 (1980) (codified at 16 U.S.C. §§ 3101–3233).
83 Squillace, supra note 1, at 504; see also Sturgeon v. Frost, 587 U.S. 28, 34–35 (2019).
84 16 U.S.C. § 3213(a).
85 See CRS In Focus IF13009, Secretary of the Interior’s Federal Land Withdrawal Authority Under the Federal Land
Policy and Management Act (FLPMA), by Carol Hardy Vincent, Erin H. Ward, and Christopher M. Davis (2025)
(“Withdrawals preclude specified uses of federal land and are made for a variety of purposes. . . . Federal land may be
withdrawn from the applicability of one or more laws in various ways. Congress may enact laws to make specific land
withdrawals, or the executive branch may withdraw land under various statutory authorities.”). Cf. Vincent & Ward,
supra note 61 (explaining, with respect to legislated withdrawals, that such withdrawals “typically withdraw the land
from one or more of three general categories of laws: (1) public land laws, (2) mining laws, and (3) mineral leasing
laws”).
86 The full extent of that limitation could depend on how courts interpret the terms “executive action” and “in the
aggregate.” In one potential scenario, for example, the President could establish multiple 5,000-acre monuments on the
theory that each such declaration constituted a single “executive action” and that the 5,000-acre limit was with respect
to each such action. A court could then be faced with the question of whether the phrase “in the aggregate” applied to
each separate executive action, or whether it applied to all executive actions collectively (the latter of which would cap
the entirety of withdrawn acreage at 5,000 regardless of how many separate declarations the President made). While an
analysis of congressional intent might weigh in favor of the latter interpretation, a court might determine that the plain
text of the statute was controlling, and that the use of the singular “executive action” unambiguously applies the
aggregate acreage limitation to each separate declaration.
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Judicial Review
Open questions under the Antiquities Act include to what degree and under what circumstances
presidential monument proclamations are subject to judicial review. The Supreme Court has not
specified how and to what extent courts should evaluate whether Presidents have complied with
the Antiquities Act in issuing monument proclamations. While the Court in Cameron, Cappaert,
and California engaged in review of monument designations, establishing by example that
judicial review is available, the Court did not articulate the scope of appropriate judicial review or
a standard by which courts should determine the lawfulness of monument proclamations.
Availability of Judicial Review
The Antiquities Act does not contain a provision authorizing legal challenges to executive actions
taken pursuant to its statutory authority. The APA sometimes authorizes lawsuits challenging
certain executive “agency” actions even where a statute does not explicitly authorize judicial
review.87 The President, however, is not an “agency” as that term is defined in the APA, meaning
that law does not authorize legal challenges to actions taken directly by the President.88
Nonetheless, the Supreme Court has suggested that “some claims that the President has violated a
statutory mandate are judicially reviewable outside the framework of the APA.”89 Lawsuits
arguing that the President acted ultra vires—meaning that the actions were without authority or
exceeded a relevant limit on authority—may therefore proceed under certain circumstances.90
Certain Antiquities Act claims can fall within this category, as courts have explained in cases
addressing challenges to presidential monument proclamations.91
As a baseline matter, where a statute grants authority to the President and does not create a cause
of action authorizing judicial review, courts generally cannot review the President’s discretionary
87 See 5 U.S.C. §§ 701–706; CRS Legal Sidebar LSB10558, Judicial Review Under the Administrative Procedure Act
(APA), by Jonathan M. Gaffney (2024) at 1-2.
88 See Franklin v. Massachusetts, 505 U.S. 788 (1992).
89 Dalton v. Specter, 511 U.S. 462, 474 (1994).
90 Ultra vires is an exception to the doctrine of sovereign immunity. As the Supreme Court explained,
[W]here the officer’s powers are limited by statute, his actions beyond those limitations are
considered individual and not sovereign actions. The officer is not doing the business which the
sovereign has empowered him to do or he is doing it in a way which the sovereign has forbidden. His
actions are ultra vires his authority and therefore may be made the object of specific relief. It is
important to note that in such cases the relief can be granted, without impleading the sovereign, only
because of the officer’s lack of delegated power. A claim of error in the exercise of that power is
therefore not sufficient.
Larson v. Domestic & Foreign Com. Corp., 337 U.S. 682, 689–90 (1949). The U.S. Court of Appeals for the Ninth
Circuit (Ninth Circuit) noted in a 2023 opinion upholding a monument proclamation that “neither the Supreme Court
nor the Ninth Circuit has directly addressed whether the Larson exception applies to actions by the President, apart
from the actions of subordinate Executive Branch officials,” but concluded that “precedent and principle point in favor
of jurisdiction here.” Murphy Co. v. Biden, 65 F.4th 1122, 1129 (9th Cir. 2023).
91 See, e.g., Am. Forest Res. Council v. United States, 77 F.4th 787, 796 (D.C. Cir. 2023) (“Although the Government
correctly notes that the O & C Act and the Antiquities Act are silent regarding judicial review and the APA’s general
review provision does not permit review of presidential action because the President is not an agency within the
meaning of that statute, the absence of a statutory review provision does not necessarily preclude judicial review of
presidential action altogether. We have previously said that a claim alleging that the President acted in excess of his
statutory authority is judicially reviewable even absent an applicable statutory review provision.” (citation omitted)).
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exercise of that authority.92 As the D.C. Circuit noted in one monument case, the Supreme Court
has “highlighted the separation of powers concerns that inhere in such circumstances and has
cautioned that these concerns bar review for abuse of discretion altogether.”93 In the event “the
authorizing statute or another statute places discernible limits on the President’s discretion,”
however, courts’ exercise of nonstatutory judicial review “does not implicate separation of
powers concerns to the same degree as where the statute did ‘not at all limit’ the discretion of the
President.”94 Consequently, courts may entertain some claims that the President exceeded the
scope of the authority granted by statute because “Congress can and often does cabin the
discretion it grants the President and it remains the responsibility of the judiciary to ensure that
the President act within those limits.”95
The Antiquities Act grants legal authority to the President but places limits on the exercise of that
authority, such as the requirements that monuments contain objects of historic or scientific value
and be located on land owned or controlled by the federal government.96 Claims that the President
acted ultra vires when issuing a proclamation under the Antiquities Act may therefore be subject
to review, whether the claim is that the monument proclamation exceeded presidential authority
under the Antiquities Act or that it exceeded limitations on presidential discretion imposed by
another statute.97
Most recently, the U.S. Court of Appeals for the Tenth Circuit (Tenth Circuit) analyzed the
applicability of ultra vires review to monument proclamations in Garfield County v. Trump.98 In
that case, the plaintiffs challenged President Joe Biden’s expansion of the Bears Ears and Grand
Staircase-Escalante Monuments. As summarized by the court, the plaintiffs “claimed that the
President lacked statutory authority to designate many of the things named in the proclamations
as monuments and that he lacked authority to set aside over two million additional acres of
land.”99 Specifically, the plaintiffs argued that “even though President Biden declared over 500
things to be ‘objects of historic or scientific interest,’ only nine objects the President protected
92 United States v. George S. Bush & Co., 310 U.S. 371, 380 (1940); Dalton v. Specter, 511 U.S. 462, 474 (1994)
(noting that “where a claim ‘concerns not a want of [Presidential] power, but a mere excess or abuse of discretion in
exerting a power given, it is clear that it involves considerations which are beyond the reach of judicial power’”
(alteration in original) (quoting Dakota Cen. Tel. Co. v. South Dakota ex rel. Payne, 250 U.S. 163, 184 (1919));
Chamber of Com. v. Reich, 74 F.3d 1322, 1331 (D.C. Cir. 1996) (“[W]hen a statute entrusts a discrete specific decision
to the President and contains no limitations on the President’s exercise of that authority, judicial review of an abuse of
discretion claim is not available.”).
93 Mountain States, 306 F.3d at 1135 (citing George S. Bush, 310 U.S. at 376–77; Dalton, 511 U.S. at 476).
94 Id. at 1336 (quoting Dalton, 511 U.S. at 476); see also Am. Forest Res. Council, 77 F.4th at 797 (“Even when the
Congress gives substantial discretion to the President by statute, we presume it intends that the President heed the
directives contained in other enactments.”).
95 Am. Forest Res. Council, 77 F.4th at 797; cf. Bowen v. Mich. Acad. Fam. Physicians, 476 U.S. 667, 681 (1986) (with
respect to administrative action, “We ordinarily presume that Congress intends the executive to obey its statutory
commands and, accordingly, that it expects the courts to grant relief when an executive agency violates such a
command.”). See also Garfield County v. Trump, No. 23-4106, 2026 WL 1801091, at *5 n.6 (10th Cir. June 23, 2026)
(distinguishing between allegations that the President “lacked authority to reserve the land under the ‘smallest area
compatible’ limitation rather than that he misused his discretion to do so”); id. at *5 (“Plaintiffs argue that the President
exercised authority Congress never gave him, not that he abused his discretion.”).
96 See 54 U.S.C. § 320301(a)–(b).
97 See Am. Forest Res. Council, 77 F.4th at 798 (noting “plaintiffs here argue that the President’s exercise of authority
under the Antiquities Act was ultra vires because it was inconsistent with an independent statute” and holding claims to
be reviewable).
98 Garfield County v. Trump, No. 23-4106, 2026 WL 1801091 (10th Cir. June 23, 2026). When filed, the listed
defendant in the case was President Biden; however, because the decision was issued after the conclusion of President
Biden’s term, President Trump was substituted as the defendant given that the challenge was to a presidential action.
99 Id. at *2.
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within the Bears Ears and Grand Staircase reservations were within the Antiquities Act’s three
permissible groups,” namely historic landmarks, historic and prehistoric structures, and other
objects of historic or scientific interest.100 They further argued that the sheer size of the land
reservations for those monuments exceeded the President’s authority “because of the Antiquities
Act’s smallest area proviso.”101
The district court dismissed the plaintiffs’ suit, holding that the plaintiffs’ challenges to the
monument proclamations were unreviewable because they were statutory rather than
constitutional challenges, the APA did not waive sovereign immunity for the President, and the
plaintiffs did not invoke the ultra vires exception because they did not assert that the President
lacked authority to withdraw federal land as national monuments.102 A divided panel of the Tenth
Circuit reversed, remanding to the district court to decide whether the plaintiffs had plausibly
alleged that the proclamations exceeded the scope of the limitations imposed by the Antiquities
Act.103 The argument for ultra vires review, the court explained, was that “President Biden only
had the power to designate x, y, and z, but instead designated a, b, and c,” such that the suit “turns
on whether Congress gave the President the authority to act as he did rather than how he used that
authority.”104 The court found that “the Act gives the President discretion to decide whether to
designate things falling within the specifically enumerated categories as national monuments,”
but does not give the President “unfettered discretion to define the scope of the enumerated
categories.”105 It was within courts’ authority to decide whether the objects designated were
within the scope of the categories specified in the act, the court held, because the President “lacks
sole discretion to determine what counts as historic or scientific.”106 Similarly, because the act
states that reserved lands “‘shall be confined to the smallest area compatible’” with the care and
management of monuments, the court found that the determination of size compatibility is “not
committed to the President’s discretion.”107
Consequently, the court found abstaining entirely from judicial review of the plaintiffs’
allegations would “undermine rather than honor congressional intent by refusing to enforce
Congress’s statutory limits,”108 and it was both proper for and incumbent upon courts to
“determine what counts as historic or scientific in the context of the Antiquities Act within their
usual function of interpreting the law.”109
100 Id. at *3.
101 Id.
102 Garfield County v. Biden, No. 22-cv-00059, 2023 WL 5180375 (D. Utah Aug. 11, 2023), aff’d in part, vacated in
part, remanded sub nom., Garfield County v. Trump, No. 23-4106, 2026 WL 1801091 (10th Cir. June 23, 2026).
103 Garfield, 2026 WL 1801091.
104 Id. at *5.
105 Id. at *9 (emphasis added). The dissent in Garfield took the opposite view, reasoning that “[t]here is nothing in the
Antiquities Act that guides the determination as to whether a thing declared by the President is a landmark, structure, or
object, nor what it means for an object to be of ‘historic or scientific interest,’” and that “the statutory text says it is the
President who gets to decide.” Id. at *16.
106 Id. at *8.
107 Id. (quoting 54 U.S.C. § 32031(b)).
108 Id. at *6.
109 Id. at *8.
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Considerations in Ultra Vires Review
Courts’ substantive review of ultra vires claims under the Antiquities Act has been sparing, but a
series of D.C. Circuit opinions articulate a framework for analyzing legal challenges to
monument proclamations. In Mountain States Legal Foundation v. Bush,110 the plaintiffs argued
among other things that President Bill Clinton exceeded his authority under the Antiquities Act in
several monument designations because the act authorizes only designations of “man-made
objects, such as prehistoric ruins and ancient artifacts,” not natural phenomena, and because the
monuments were not limited to the smallest area necessary for protecting the designated
objects.111 The D.C. Circuit rejected the first argument “as a matter of law” based on the Supreme
Court’s holding in Cameron upholding the Grand Canyon National Monument.112 As to the
second argument—that the reserved land was not the smallest area compatible with the
preservation of the objects—the court held there was no occasion “to engage in ultra vires review
of the Proclamations because Mountain States fails to allege any facts sufficient to support its
ultra vires claim.”113
The court found that the proclamations at issue facially complied with the Antiquities Act because
the object designations and descriptions “comport with the Act’s policies and requirements,” and
because the proclamation stated that the lands set aside constituted the smallest area compatible
with care and management of the monument.114 “To warrant further review of the President’s
actions,” the court wrote, “Mountain States would have to allege facts to support the claim that
the President acted beyond his authority under the Antiquities Act.”115 The court found that the
plaintiffs failed to meet their burden of “identify[ing] the improperly designated lands with
sufficient particularity to state a claim.”116
The court drew similar conclusions in the companion case Tulare County v. Bush, holding that the
complaint in that case “contained insufficient factual allegations . . . to trigger ultra vires review,”
and failed “as a matter of law insofar as it alleged” that the challenged proclamation violated the
Antiquities Act or other federal laws.117 The plaintiffs in Tulare County case sought en banc
review of the panel’s decision, which the D.C. Circuit denied.118 The court issued a brief
statement accompanying its denial of the en banc petition, in which the court opined that the
110 306 F.3d 1132 (D.C. Cir. 2002) (addressing challenges to six monuments in Arizona, Colorado, Oregon, and
Washington).
111 Id. at 1137; Tulare County v. Bush, 306 F.3d 1138, 1141–42 (D.C. Cir. 2002). The plaintiffs also unsuccessfully
argued that the challenged proclamations (1) violated the Property Clause of the U.S. Constitution, (2) constituted
unlawful delegations of legislative power, and (3) conflicted with other federal statutes. See Mountain States Legal
Found., 306 F.3d at 1136–38; Tulare County, 306 F.3d at 1143–44.
112 Mountain States Legal Found., 306 F.3d at 1137; Tulare County, 306 F.3d at 1142.
113 Mountain States Legal Found., 306 F.3d at 1136.
114 Id. at 1137.
115 Id.
116 Tulare County, 306 F.3d at 1142; Mountain States Legal Found., 306 F.3d at 1137 (“Mountain States’ arguments
contain only the bald assertion that the President acted outside the bounds of his constitutional and statutory
authority.”); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“To survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ A claim has
facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.” (quoting Bell Atl. v. Twombly, 550 U.S. 544, 570 (2007)).
117 306 F.3d 1138, 1140 (D.C. Cir. 2002) (rejecting challenges to Giant Sequoia National Monument).
118 See Tulare County v. Bush, 317 F.3d 227 (D.C. Cir. 2003) (per curiam). Appeals in federal cases are typically heard
by a panel of three judges, but parties can request that a panel’s ruling be reviewed “en banc,” that is, by the full slate
of appellate judges in a particular federal circuit. See 28 U.S.C. § 46(c).
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panel correctly upheld the dismissal of the complaint “because it contained no factual allegations
that any part of the Monument lacked scientific or historical value.”119 Nonetheless, the court
observed that the plaintiffs’ “allegation that Sequoia groves comprise only six percent of the
Monument might well have been sufficient if the President had identified only Sequoia groves for
protection, but he did not; the Proclamation covered natural resources present throughout the
Monument area.”120 The breadth of the proclamation made it “incumbent upon Tulare County to
allege that some part of the Monument did not, in fact, contain natural resources that the President
sought to protect,” and the court suggested that had Tulare County done so, the complaint could
potentially have survived dismissal.121
Sixteen years later, in Massachusetts Lobstermen’s Ass’n v. Ross, the D.C. Circuit summarized
Mountain States and Tulare County as drawing “a distinction between two types of claims: those
justiciable on the face of the proclamation and those requiring factual development.”122 The court
explained that claims justiciable on the face of the proclamation “are resolved ‘as a matter of law’
because they turn on questions of statutory interpretation.”123 For example, the plaintiffs argued
that the Northeast Canyons and Seamounts Marine National Monument was invalid because the
Antiquities Act did not extend to submerged lands; the court found this argument could “be
judged on the face of the proclamation and resolved as a matter of law.”124 By contrast, a claim
that the proclamation set aside more than the smallest amount of land compatible with care and
management of the monument requires factual analysis. The court noted that “although the
precise ‘scope of judicial review’” in such cases “remains an open question, at a minimum,
plaintiffs’ pleadings must contain plausible factual allegations identifying an aspect of the
designation that exceeds the President’s statutory authority.”125 As in Tulare County, the court
found that the breadth of the monument proclamation—protecting not just underwater canyons
and seamounts, but the surrounding resources and ecosystems as well—meant that the plaintiffs’
complaint included “no factual allegations identifying a portion of the Monument that lacks the
natural resources and ecosystems the President sought to protect.”126
Massachusetts Lobstermen’s Ass’n v. Raimondo: A Shot Across the Bow
No court has ruled against a presidential monument designation on the basis that the “object” is not eligible for
designation or that a land reservation is too large, and large land reservations to preserve natural phenomena have
become a regular occurrence.127 Justice Roberts, however, has indicated that such large reservations may warrant
additional scrutiny.128 In a case involving a challenge to the Northeast Canyons and Seamounts Marine National
Monument, the Supreme Court declined to hear an appeal of a lower court decision upholding the monument
designation. In a statement accompanying the denial of certiorari, Justice Roberts commented that the 3.2-million
acres of submerged land constituting the monument at issue “demonstrates how far we have come from
indigenous pottery.”129 Writing that “the ‘objects’ to be ‘protected’ are the ‘canyons and seamounts themselves,’”
119 Tulare County, 317 F.3d at 227.
120 Id.
121 Id.
122 945 F.3d 535, 540 (D.C. Cir. 2019).
123 Id. (quoting Tulare County, 306 F.3d at 1140).
124 Id.
125 Id. (quoting Mountain States Legal Found. v. Bush, 306 F.3d 1132, 1133 (D.C. Cir. 2002).
126 Id. at 545.
127 See Christine A. Klein, Preserving Monumental Landscapes Under the Antiquities Act, 87 CORNELL L. REV. 1333,
1385 (2002) (“Over the past century, all three branches of government have implicitly supported an interpretation of
the Act that allows protection of large landscapes as antiquities.”)
128 See Mass. Lobstermen’s Ass’n v. Raimondo, 141 S. Ct. 979, 980 (2021).
129 Id. at 981.
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Justice Roberts observed that the Court had not articulated how the act’s “corresponding ‘smallest area
compatible’ limitation interacts with the protection of such an imprecisely demarcated concept as an
ecosystem.”130 He suggested that, while the Court was declining to hear the case for several reasons, “the scope
of the objects that can be designated under the Act, and how to measure the area necessary for their proper care
and management, may warrant consideration.”131 What such consideration might look like, and whether it would
involve overturning Supreme Court precedent on the scope of the term “objects” or lower court rulings on
judicial review of monument size, remain to be seen.
Statutory Interactions
Challenges to monument proclamations have claimed not just that Presidents have exceeded their
authority under the Antiquities Act, but that proclamations violate other applicable statutes that
allegedly cabin the discretion otherwise granted to the President under the act.132 In American
Forest Resource Council v. United States, the D.C. Circuit considered such a challenge to a
monument proclamation expanding the Cascade-Siskiyou National Monument.133 The plaintiffs
argued, among other things, that the monument designation contravened another statute, the
Oregon and California Railroad and Coos Bay Wagon Road Land Grant Act of 1937 (O&C
Act).134 That law established a complex management scheme for land in western Oregon that had
been granted to a railroad company in 1866 but returned to the federal government in 1916 when
the railroad violated the terms of the grant.135 The O&C Act required among other things that
lands “classified as timberland” be managed for “permanent forest production,” with an attendant
requirement that timber be sold “in conformity with the princip[le] . . . of sustained yield.”136 The
proclamation establishing the Cascade-Siskiyou National Monument, which included O&C lands,
prohibited commercial timber harvesting within monument boundaries.137 The plaintiffs in
American Forest Resources Council argued that the O&C Act required that the land at issue be
permanently available for timber production, and that the President’s withdrawal of the land from
that use pursuant to the Antiquities Act—with the attendant prohibition on timber harvesting—
constituted a violation of the O&C Act.138
With respect to judicial review, the government argued that the claim was not subject to review
because “there is no applicable statutory cause of action and because non-statutory review is
unavailable where, as here, a plaintiff challenges a discretionary exercise of presidential authority
130 Id. (quoting Proclamation No. 9496, 81 Fed. Reg. 65161 (Sep. 15, 2016)).
131 Id.; see also id. at 980 (“Which of the following is not like the others: (a) a monument, (b) an antiquity (defined as a
‘relic or monument of ancient times,’ Webster’s International Dictionary of the English Language 66 (1902)), or (c)
5,000 square miles of land beneath the ocean? If you answered (c), you are not only correct but also a speaker of
ordinary English.”).
132 See, e.g., Tulare County, 185 F. Supp. 2d at 27 (rejecting plaintiffs’ argument that Giant Sequoia National
Monument illegally withdrew land from National Forest System under National Forest Management Act); Mountain
States, 306 F.3d at 1138 (rejecting plaintiffs’ arguments that monument proclamations “defy congressional intent with
regard to the scope and purpose of a ‘a host’ of other statutes” because laws can provide “overlapping sources of
protection”); Mass. Lobstermen’s Ass’n., 945 F.3d at 541–42 (rejecting plaintiffs’ argument that the National Marine
Sanctuaries Act implicitly repealed Antiquities Act with respect to ocean monuments).
133 Am. Forest Res. Council v. United States, 77 F.4th 787, 796 (D.C. Cir. 2023); see also Proclamation No. 9564, 82
Fed. Reg. 6145 (Jan. 18, 2017).
134 Ch. 876, 50 Stat. 874 (codified as amended at 43 U.S.C. §§ 2601–2634). See also CRS Report R42951, The Oregon
and California Railroad Lands (O&C Lands): In Brief, by Anne A. Riddle (2023).
135 Am. Forest Res. Council, 77 F.4th at 791.
136
Id.
137 Id. at 794.
138 Id. at 795.
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based on an ‘at-most ambiguous limitation’ from a separate statute.”139 The court rejected this
argument, noting by reference to Dalton and Mountain States that “the absence of a statutory
review provision does not necessarily preclude judicial review of presidential action altogether,”
and that “[e]ven when the Congress gives substantial discretion to the President by statute, we
presume it intends that the President heed the directives contained in other enactments.”140
Having established the availability of review, the court addressed the question of whether the
O&C Act and the Antiquities Act were reconcilable as applied to the overlapping lands, in light of
Supreme Court precedent instructing that “[w]hen confronted with two Acts of Congress
allegedly touching on the same topic, [we are] not at ‘liberty to pick and choose among
congressional enactments’ and must instead strive to give effect to both.”141 Citing the “strong
presumption” against implied repeals, the court rejected the idea that Congress intended the laterin-time O&C Act to abrogate or implicitly repeal the Antiquities Act.142 The court relied in part on
the fact that the O&C Act required timber production only on lands “classified as timberland,”
and that the act was not explicit regarding who was to make such classifications nor how that
decision should be made.143 The court found that these “ambiguities” granted the Secretary of the
Interior “considerable discretion” in making classification decisions. The proclamation
establishing the monument, the court found, implicitly reclassified overlapping lands as
nontimberland, thereby exempting them from the O&C Act’s “‘permanent forest production’”
requirement.144 Read as such, O&C Act could be reconciled with the monument proclamation.
“Because it can be so read,” the court held, “it must be.”145
Reduction and Elimination of Monuments
There is legal uncertainty surrounding the extent of the President’s authority to reduce the size of
national monuments or revoke prior Presidents’ monument designations altogether. No President
has purported to abolish a national monument, but some Presidents have reduced the size of
monuments.146 In some instances, Presidents have simultaneously removed lands from a
monument reservation while adding others.147
139 Id. at 796.
140 Id. at 796–97; see also Chamber of Com. v. Reich, 74 F.3d 1322, 1331 (D.C. Cir. 1996) (noting that where statute
contains limitations on presidential discretion, Dalton does not preclude “review of executive action for conformity
with that statute—let alone review to determine whether that action violates another statute”).
141 Am. Forest Res. Council, 77 F.4th at 799 (alterations in original) (quoting Epic Sys. Corp. v. Lewis, 584 U.S. 497,
510 (2018)).
142 Id. (quoting United States v. Fausto, 484 U.S. 439, 452–53 (D.C. Cir. 2023)).
143 Id. at 799–800.
144 Id. at 800–01. The court explained that this was a reasonable reading of the act for several reasons: The area at issue
was “modest,” such that its removal from timber production would not interfere with the “principal objective of the
O&C Act.” Id. at 800. Further, the O&C Act contemplated multiple land management objectives beyond timber
production, including “‘protecting watersheds’” and “‘providing recreational facil[i]ties,’” and afforded the Secretary
of the Interior discretion with regard to balancing those objectives. Id. at 799 (quoting 43 U.S.C. §§ 2601–2634). The
court also found the expansion of the monument, insofar as it promoted various conservation interests, was consistent
with the O&C Act’s guiding principle of “sustained yield.” Id. at 802.
145 Id. at 799. The Ninth Circuit, considering a similar challenge, likewise concluded that the claims were justiciable
and that the O&C Act allowed for conservation uses (including land withdrawal for a national monument). See Murphy
Co. v. Biden, 65 F.4th 1122, 1131 (9th Cir. 2023); id. at 1135.
146 See Vincent, supra note 5, at app. B. The justifications for these reductions have varied. See Richard H. Seamon,
Dismantling Monuments, 70 FLA. L. REV. 553, 575–77 (2018).
147 Seamon, supra note 146, at 577.
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In December 2017, President Donald Trump issued two proclamations diminishing the Grand
Staircase-Escalante National Monument and the Bears Ears National Monument.148 These
proclamations spurred litigation [hereinafter 2017 monument litigation]149 and renewed scholarly
interest in the scope of presidential authority to diminish and eliminate monuments.150
President Trump’s proclamations stated that each of the monuments contained objects that were
“not . . . of any unique or distinctive scientific or historic significance”151 and were not in danger
of being damaged or destroyed.152 The proclamations explained that other federal laws enacted
after the Antiquities Act’s passage, such as the Archaeological Resources Protection Act and the
Endangered Species Act, protected many of these objects.153 On these grounds, the proclamations
concluded that the lands reserved for these monuments were “greater than the smallest area
compatible with the protection of the objects for which the lands were reserved.”154 President
Trump’s proclamations reduced both monuments by hundreds of thousands of acres.155 President
148 See Proclamation No. 9682, 82 Fed. Reg. 58089, 58093 (Dec. 4, 2017) (Modifying the Grand Staircase-Escalante
National Monument); Proclamation No. 9681, 82 Fed. Reg. 58081, 58084–85 (Dec. 4, 2017) (Modifying the Bears
Ears National Monument).
149 See Wilderness Soc’y v. Trump, No. 17-cv-02587 (D.D.C. filed Dec. 4, 2017) (consolidating two cases challenging
President Trump’s modification of the Grand Staircase-Escalante National Monument); Hopi Tribe v. Trump, No. 17cv-02590 (D.D.C. filed Dec. 4, 2017) (consolidating three cases challenging President Trump’s modification of the
Bears Ears National Monument). These cases were stayed in March 2021 when President Biden took action to reverse
the Trump proclamations. See Memorandum Opinion at 1–2, Wilderness Soc’y, No. 17-cv-02587 (D.D.C. Nov. 25,
2024), Dkt. No. 210. That executive action spurred another lawsuit in a federal district court in Utah (Garfield County
v. Biden, No. 22-cv-0059 (D. Utah filed Aug.15, 2023), which was dismissed for failure to state a claim. The plaintiffs
in that case appealed the dismissal and the Tenth Circuit issued a ruling in June 2026 affirming in part, vacating in part,
and remanding several issues to the district court. See Garfield County v. Trump, No. 23-4106, 2026 WL 1801091
(10th Cir. June 23, 2026). Because that case had the potential to invalidate the Biden proclamations and restore the
monuments to the boundaries established by the 2017 Trump proclamations, the court in the 2017 monument litigation
declined to lift the stay on that litigation pending the Tenth Circuit’s decision. See Memorandum Opinion at 7,
Wilderness Soc’y, No. 17-cv-02587 (D.D.C. Nov. 25, 2024), Dkt. No. 210. Given the Biden proclamations challenged
in Garfield County reversed actions by the first Trump Administration, it is unclear whether the Trump Administration
will defend the Garfield County case at the district court level. At the time of this report’s publication, the stay in the
2017 monument litigation remains in place.
150 Compare, e.g., Squillace, supra note 1, at 566, 582–83 (arguing that Presidents lack authority under the Antiquities
Act to abolish or diminish existing monuments), and Mark Squillace, et al., Presidents Lack the Authority to Abolish or
Diminish National Monuments, 103 VA. L. REV. ONLINE 55, 71 (2017) (same), with John Yoo & Todd Gaziano,
Presidential Authority to Revoke or Reduce National Monument Designations, 35 YALE J. ON REG. 617, 665 (2018)
(arguing that Presidents have authority under the Antiquities Act to modify or abolish existing monuments), and
Seamon, supra note 146, at 575–600 (same). See also John Murdock, Monumental Power: Can Past Proclamations
Under the Antiquities Act Be Trumped?, 22 Tex. Rev. L. & Pol., 349, 354 (2018) (concluding that “both [sides] have
overestimated their chances of success”).
151 Proclamation No. 9682, 82 Fed. Reg. at 58090; Proclamation No. 9681, 82 Fed. Reg. at 58081 (“Some of the objects
[in the Bears Ears National Monument] are not unique to the monument, and . . . are not of significant scientific or
historic interest.”).
152 Proclamation No. 9681, 82 Fed. Reg. at 58082 (noting “the lack of a threat of damage or destruction to many of
those objects”).
153 Proclamation No. 9682, 82 Fed. Reg. at 58090–91; Proclamation No. 9681, 82 Fed. Reg. at 58082.
154 Proclamation No. 9682, 82 Fed. Reg. at 58091; Proclamation No. 9681, 82 Fed. Reg. at 58081 (“I find that the area
of Federal land reserved in the Bears Ears National Monument . . . is not confined to the smallest area compatible with
the proper care and management of those objects.”).
155 Proclamation No. 9682, 82 Fed. Reg. at 58093 (Grand Staircase-Escalante National Monument); Proclamation No.
9681, 82 Fed. Reg. at 58084–85 (Bears Ears National Monument). For additional information regarding the process
leading to these proclamations, see Murdock supra note 150, at 365–68.
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Biden reversed these actions in 2021,156 spurring additional litigation.157 President Trump, in his
second term, again reduced the size of the monuments, this time by more acreage than in 2017.158
This will likely affect the course of the 2017 monument litigation and could moot any ongoing
litigation surrounding President Biden’s 2021 monument expansions.
The law surrounding diminishment and elimination of national monuments is unsettled. Because
no President has revoked a monument designation, arguments in the 2017 monument litigation
focused on the issue of reduction (though certain plaintiffs cast President Trump’s first reduction
of Bears Ears as so significant as to constitute a revocation).159 Scholars have articulated
arguments for and against presidential authority to eliminate monuments, but these arguments
remain untested in courts.160 As discussed below, the U.S. Department of Justice (DOJ) has taken
both positions: The Attorney General opined in 1938 that the President lacked the authority to
eliminate monuments,161 and the United States conceded in the 2017 monument litigation that the
President does not have the authority to revoke monuments,162 but the DOJ Office of Legal
Counsel (OLC) revisited the question in 2025 and determined that the President has such
authority.163 As one scholar has concluded, “[r]isk is present all around,” as “the legal authorities
are mixed and none are clearly controlling.”164 Litigation surrounding the Grand Staircase-
156 Proclamation No. 10285, 86 Fed. Reg. 57321 (Oct. 8, 2021) (Bear’s Ears National Monument); Proclamation No.
10286, 86 Fed. Reg. 57335 (Oct. 8, 2021) (Grand Staircase-Escalante National Monument).
157 See Garfield County v. Biden, No. 22-cv-0059 (D. Utah filed Aug.15, 2023). This case was dismissed for failure to
state a claim. The plaintiffs appealed the dismissal, and the Tenth Circuit issued a ruling in June 2026 affirming in part,
vacating in part, and remanding several issues to the district court. See Garfield, 2026 WL 1801091. Because that case
had the potential to invalidate the Biden proclamations and restore the monuments to the boundaries established by the
2017 Trump proclamations, the court in the 2017 monument litigation declined to lift the stay on that litigation pending
the Tenth Circuit’s decision. Memorandum Opinion at 7, Wilderness Soc’y, No. 17-cv-02587 (D.D.C. Nov. 25, 2024),
Dkt. No. 210.
158 See Proclamation No. 11043, 91 Fed. Reg. 45169 (July 13, 2026) (Modifying the Bears Ears National Monument);
Proclamation No. 11014, 91 Fed. Reg. 45179 (July 13, 2026) (Modifying the Grand Staircase-Escalante National
Monument).
159 Some of the plaintiffs argued that President Trump’s proclamations constitute revocations, rather than only
modifications, of the monuments because those proclamations exclude certain objects from the monuments that were
protected under the original proclamations. See, e.g., Tribal Plaintiffs’ Memorandum in Support of Motion for Partial
Summary Judgment at 9, No. 17-cv-250, 2020 WL 755070 (D.D.C. Jan. 9, 2020), Dkt. No. 163-1 (describing Bears
Ears proclamation as “purporting to revoke” the monument). See also Proclamation No. 9682, 82 Fed. Reg. at 58090
(noting that certain “artifacts that are known to generally occur” in that area “may be excluded from the monument’s
boundaries”); Proclamation No. 9681, 82 Fed. Reg. at 58084 (“Some of the existing monument’s objects, or certain
examples of those objects, are not within the monument’s revised boundaries.”).
160 Compare Squillace, supra note 1, at 583 (the Antiquities Act “works simply and in one direction, authorizing the
President to protect land, and leaving it to the Congress to decide whether to lessen, or perhaps strengthen, those
protections”), and Mark Squillace, et al., supra note 150, at 71 (arguing against revocation authority), with Seamon,
supra note 146, at 562–63 (“The Antiquities Act does not expressly authorize the President to reduce a national
monument established by a prior President. But it is hard to imagine stronger circumstances supporting the conclusion
that it impliedly does so.”) and Yoo & Gaziano, supra note 150, at 665 (arguing that Presidents have authority under
the Antiquities Act to modify or abolish existing monuments). See also Murdock, supra note 150, at 354 (summarizing
arguments and averring that both sides have “overestimated their chances of success”).
161 Proposed Abolishment of Castle Pinkney National Monument, 39 Op. Att’ys Gen. 185, 187 (1938).
162 See Federal Defendants’ Reply in Support of Motion to Dismiss at 27 n.23, 34–35, Wilderness Soc’y v. Trump, No.
17-cv-2587 (D.D.C. Dec. 13, 2018), Dkt. No. 81 [hereinafter Government Reply Brief (2587)]; Federal Defendants’
Reply in Support of Motion to Dismiss at 25–26, 39–41, Wilderness Soc’y v. Trump, No. 17-cv-2590 (Dec. 13, 2018),
Dkt. No. 101 [hereinafter Government Reply Brief (2590)].
163 Revocation of Prior Monument Designations, 49 Op. O.L.C. 36 (2025).
164 Murdock, supra note 150, at 409, 412.
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Escalante and Bears Ears national monuments may result in judicial decisions addressing the
President’s authority to reduce or revoke monument designations.
Shifting Perspectives at the DOJ
In a 1938 opinion, Attorney General Homer Cummings considered whether the Antiquities Act granted the
President authority to abolish the Castle Pinckney National Monument and concluded it did not.165 In support of
this conclusion, Attorney General Cummings noted that his “predecessors have held that if public lands are
reserved by the President for a particular purpose under express authority of an act of Congress, the President is
thereafter without authority to abolish such reservation.”166 He referred specifically to a previous Attorney
General opinion from 1862, which concluded that the President lacked implied authority to undo a military
reservation made by executive order where the statute authorizing the initial reservation did not also authorize its
reversal.167 Cummings quoted the premise from that opinion that “[t]he grant of power to execute a trust, even
discretionally, by no means implies the further power to undo it when it has been completed.”168 Applying this
premise to the Antiquities Act, he wrote the following:
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.169
The opinion therefore appeared to take as a given that the “smallest area compatible” provision of the Antiquities
Act authorized Presidents to reduce the acreage of monuments. In the 2017 monument litigation, the United
States cited the Castle Pinckney opinion in support of this same position; in keeping with the opinion’s conclusion,
however, the government conceded that Presidents could not abolish national monuments altogether.170
In May 2025, the OLC published a memorandum opining that the Antiquities Act “permits a President to alter a
prior declaration of a national monument, including by finding that the ‘landmarks,’ ‘structures,’ or ‘objects’
identified in the prior declaration either never were or no longer are deserving of the Act’s protections.”171 Such a
finding, the memorandum continued, “can have the effect of eliminating entirely the reservation of the parcel of
land previously associated with a national monument.”172 The opinion argued that “the President has discretion to
reconsider a past President’s discretionary act,” including executive orders and presidential memoranda and
directives, and that “courts have recognized that, for executive agencies, ‘[t]he power to reconsider is inherent in
the power to decide.’”173 The memorandum further relied on the historical practice of Presidents changing
165 Proposed Abolishment of Castle Pinkney National Monument, 39 Op. Att’ys Gen. at 190.
166 Id. at 186–87.
167 Id. at 187; Rock Island Military Reservation, 10 Op. Att’ys Gen. 359, 363 (1862) (“But, in my opinion, [the
President] had no power to take them out of the class of reserved lands, and restore them to the general body of public
lands. It is certain that no such power is conferred on the President in the act under which the selection of a site for Fort
Armstrong was made.”).
168 Rock Island Military Reservation, 10 Op. Att’ys Gen. at 364 (“When the President, in the exercise of the discretion
vested in him by the act of 1809, selected Rock Island as the site of a fort, and expended the money appropriated
therefor in erecting the fort, and occupied it as a military station, thus setting it aside as a reservation for military
purposes, the power conferred by the act was exhausted, and he had no more authority to recall that reservation, and
restore the land to the condition of other portions of the public lands not so appropriated, than he would have had to
expend the public money in erecting the fort without an appropriation by Congress for that purpose.”).
169 Proposed Abolishment of Castle Pinkney National Monument, 39 Op. Att’ys Gen. at 188.
170 Government Reply Brief (2590), supra note 159, at 25–26 (“[I]t remains the United States’ position that, consistent
with a 1938 Attorney General opinion, the President cannot completely abolish a national monument, [but] this same
opinion supports the [United States’] position here” that the President can diminish the area of national monuments.)
171 Revocation of Prior Monument Designations, 49 Op. O.L.C. at 1 (2025).
172 Id.
173 Id. at 16–17 (quoting Albertson v. FCC, 182 F.2d 397, 399 (D.C. Cir. 1950)). The opinion also cited Macktal v.
Chao, 286 F.3d 822, 825–26 (5th Cir. 2002) and Belville Mining Co. v. United States, 999 F.2d 989, 998 (6th Cir.
1993), in which the U.S. Courts of Appeals for the Fifth and Sixth Circuits recognized inherent agency authority to
reconsider adjudicative decisions with respect to an attorney’s fee award and strip mining rights, respectively.
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monument boundaries without congressional response174 and reasoned that courts’ deferential posture with
respect to presidential monument declarations would apply equally to subsequent reconsiderations thereof (with
respect to both the designation of the object to be protected and the reservation of land surrounding it).175 Based
on these and other arguments, OLC concluded that the 1938 opinion from Attorney General Cummings was
“incorrect” and could “no longer be relied upon.”176
Arguments regarding the scope of the President’s authority to modify or eliminate national
monuments are generally rooted in some combination of the text of the Antiquities Act,
consideration of inherent presidential authorities, historical sources and practice, and the role of
other natural resources statutes. Arguments related to reduction and revocation proceed along
similar, but not identical, paths. One distinction relates to historical practice: while Presidents
have diminished national monuments, no President has eliminated a monument altogether.
Another potential distinction relates to the “smallest area compatible” requirement of the
Antiquities Act: while a reduction in size could be argued to be justified by this provision, a full
revocation of monument status likely could not (because the phrase refers to the reservation of
lands surrounding the object of historical or scientific interest, rather than to the object itself).177
Nonetheless, due to their substantial overlap, this report treats the arguments relating to reduction
and elimination as coextensive except where relevant distinctions exist.
Statutory Language and Authority to Reduce or Eliminate
Monuments
By its plain terms, the Antiquities Act gives the President the power to “declare” monuments and
“reserve” lands, and is silent as to the power to reverse those actions.178 Proponents of the “oneway” view of the act argue that that silence means that Congress did not delegate the power to
reverse a declaration or reservation and thus retained that power for itself.179 Proponents have
bolstered this argument by reference to the act’s goal of granting the President an expedient
means of protecting threatened objects of historical and scientific interest; undoing such
protection or revising its parameters would arguably not be as urgent a matter and as such would
be more amenable to the legislative process.180
174 Id. at 18.
175 Id. at 21.
176 Id. at 1, 26–43.
177 See, e.g., Tribal Plaintiffs’ Memorandum in Opposition to Cross-Motion for Partial Summary Judgment and Reply
in Support of Motion for Partial Summary Judgment at 23, Hopi Tribe v. Trump, No. 17-cv-02590 (D.D.C. Apr. 10,
2020), Dkt. No. 178 (“Because those two powers are distinct, the President would need distinct powers to revoke the
declaration of monument objects and to unreserve lands.”).
178 54 U.S.C. § 32031(a), (b).
179 See, e.g., Squillace et al., supra note 160, at 56; Memorandum in Support of Plaintiffs’ Motion for Partial Summary
Judgment, Wilderness Soc’y v. Trump, No. 17-cv-02587 (D.D.C. Jan. 9, 2020), Dkt. No. 133.
180 See Squillace, supra note 1, at 553–54; see also Letter from 121 Law Professors, to Ryan Zinke, Sec’y, U.S. Dep’t
of Interior & Wilbur Ross, Sec’y, U.S. Dep’t of Com., at 2 (July 6, 2017), https://legal-planet.org/wpcontent/uploads/2017/07/national-monuments-comment-letter-from-law-professors_as-filed.pdf#page=2
[https://perma.cc/PL5X-J2NE] (“Congress was neither nimble enough to identify all of the resources needing
protection, nor to craft appropriate protections for the lands containing those resources. Recognizing these limitations,
Congress endowed the President with broad authority to set aside national monuments to protect areas with scientific,
cultural, or historic value to the entire nation, authorizing him to act with an expediency that Congress could not
muster. No similar need existed for rapid revisions to national monuments, and therefore, there was no need to
empower the President to take such action.”).
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On the other side, proponents of presidential authority to modify and eliminate monuments argue
that the absence of explicit authority in the language of the act does not reflect congressional
intent to deny the President such authority. With respect to the text of the act, they argue that the
requirement that the area of land reserved “shall be confined to the smallest area compatible”
with preserving the monument imposes a continuing obligation that cannot be met without the
accompanying authority to reduce a monument when circumstances change, or when it is later
determined that excess lands were included in the reservation.181
Inherent Authority to Reduce or Eliminate Monuments
Those who argue on behalf of the President’s authority to reduce or revoke monuments posit that
a grant of authority to do something inherently includes the authority to undo it.182 For example,
in its briefing in the 2017 monument litigation, the United States argued that the Antiquities Act
was akin to other statutes that “authorize various Executive Branch officers to regulate,
administer, and make decisions, without expressly saying that those decisions can be repealed or
modified.”183 In this view, the President possesses authority to diminish existing monuments—
even absent express statutory authorization—based on “the general principle that reconsideration
‘is inherent in the power to decide.’”184 The plaintiffs in the 2017 monument litigation, on the
other hand, argued that “there is no such principle”—pointing out, for example, that a President
cannot undo a pardon or take back a signature on legislation.185 Commentators have also
distinguished presidential authority under the Antiquities Act from any inherent reconsideration
authority in executive branch agencies; they argue that while agencies generally do have authority
181 See, e.g., Federal Defendants’ Memorandum in Support of Cross-Motion for Partial Summary Judgment and
Opposition to Plaintiffs’ Motions for Partial Summary Judgment at 4, 42, Hopi Tribe, No. 17-cv-02590 (D.D.C. Feb.
19, 2020), Dkt. No. 169-1 (“Congress’ express instruction to limit the size of monument reservations is consistent with
the idea that Monument reservations can be modified.”); id. at 29, 42 (modification power necessary “to ensure
compliance with the statutory directive to confine the reservation to the ‘smallest area compatible with the proper care
and management of the objects to be protected’” (quoting 54 U.S.C. § 320301(b)); see also Yoo & Gaziano, supra note
160, at 660–61 (concluding that this language from the Antiquities Act is “[o]ne textual signal in support of boundary
adjustments” by Presidents and that “[t]here is nothing in the Act that privileges the original designation . . . over a later
presidential proclamation”). One critique of this reading responds that the act’s requirement that the reservation of land
be the smallest area compatible with managing the monument is a one-time determination rather than an ongoing
obligation. See, e.g., Grand Staircase-Escalante Partners Plaintiffs’ Memorandum in Opposition to Federal Defendants’
Motion to Dismiss at 40, Wilderness Soc’y, No. 17-cv-02587 (D.D.C. Nov. 15, 2018), Dkt. No. 63 (requirement that
the lands reserved be the “smallest area compatible” “conditions and limits the initial exercise of the establishment
power, and is not a separate grant of power that gives rise to an ongoing test of a monument’s proper size”) (emphasis
added).
182 See, e.g., Yoo & Gaziano, supra note 160, at 639–47.
183 Government Reply Brief (2587), supra note 159, at 20; see also Yoo & Gaziano, supra note 150, at 639 (“There are
scores of congressional statutes authorizing or requiring the executive branch to issue regulations and take other actions
to protect the environment, worker safety, consumer product safety, highway safety, airline safety, consumer financial
protections, food and drug protections, and many others. When Congress gives an agency the authority to issue
regulations, particularly discretionary authority, it is presumed that the agency also has the authority to repeal those
regulations.”).
184 Government Reply Brief (2587), supra note 159, at 28–29 (quoting Albertson v. FCC, 182 F.2d 397, 399 (D.C. Cir.
1950) and citing Sierra Club v. Van Antwerp, 560 F. Supp. 2d 21, 23 (D.D.C. 2008)). See also Yoo & Gaziano, supra
note 150, at 639 (“A background principle of American law . . . is that the authority to execute a discretionary
government power usually includes the power to revoke it—unless the original grant expressly limits the power of
revocation.”).
185 See UDB Plaintiffs’ Memorandum of Points and Authorities in Opposition to Federal Defendants’ Motion to
Dismiss at 32, Hopi Tribe, No. 17-cv-02590 (D.D.C. Nov. 15, 2018), Dkt. No. 71 (“The Government next adverts to
‘the general principle that reconsideration is inherent in the power to decide.’ There is no such principle.” (quoting
Memorandum in Support of Federal Defendants’ Motion to Dismiss at 31, Hopi Tribe, No. 17-cv-02590 (D.D.C. Oct.
1, 2018), Dkt. No. 49-1)).
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to reverse course on regulations, that authority derives from the definition of “rulemaking” under
the APA, which includes “formulating, amending, or repealing a rule.”186
Comparing the Antiquities Act to Other Natural Resources Statutes
Both sides of the debate draw on other natural resources statutes in support of their positions.
Opponents of reduction and revocation authority point to natural resource statutes
contemporaneous to the Antiquities Act in which Congress did include explicit revocation
authority, suggesting that where Congress was inclined to delegate that authority, it did so
explicitly.187 The Antiquities Act, they conclude, should therefore not be read to contain an
implied authority to reverse course.188 Proponents of reduction and revocation authority have
articulated counterarguments distinguishing these statutes from the Antiquities Act.189
For example, both sides in the 2017 monument litigation drew support from the Pickett Act of
1910, which allowed the President to reserve lands for various purposes.190 The plaintiffs argued
that the Pickett Act explicitly provided that “such withdrawals or reservations shall remain in
force until revoked by him or by an Act of Congress,” and that the Antiquities Act by contrast
included no similar provision.191 The United States responded that the Property Clause of the
Constitution clearly gives Congress the authority to revoke any executive land withdrawal; the
fact that the Pickett Act mentioned it anyway, the government argued, indicated that “the
President’s revocation authority, mentioned in the same clause, was likewise undisputed.”192
186 Squillace et al., supra note 150, at 67 n.56 (citing 5 U.S.C. § 551(5) (2012)).
187 See, e.g., id., at 58 (“The narrow authority granted to the President to reserve land under the Antiquities Act stands
in marked contrast to contemporaneous laws that delegated much broader executive authority to designate, repeal, or
modify other types of federal reservations of public lands.”). Such statutes include the Organic Administration Act, ch.
2, 30 Stat. 11, 34 (1897) (codified as amended at 16 U.S.C. §§ 473–482, 551) (authorizing President to “revoke,
modify, or suspend” existing forest reservations in order to “remove any doubt” regarding such authority); the
Reclamation Act, ch. 1093 § 3, 32 Stat. 388, 388 (1902) (codified as amended at 43 U.S.C. § 416 (authorizing the
Secretary of the Interior to “withdraw . . . lands” and “restore to public entry any of the lands so withdrawn”); and the
Pickett Act, ch. 421 § 1, 36 Stat. 847, 847 (1910) (codified at 43 U.S.C. §§ 141–143 (repealed 1976)) (providing that
lands withdrawn by the President will remain reserved “until revoked by him or by an Act of Congress”).
188 Squillace et al, supra note 150, at 58 (“Unlike the Pickett Act and the Forest Service Organic Administration Act,
the Antiquities Act withholds authority from the President to change or revoke a national monument designation. That
authority remains with Congress under the Property Clause.”).
189 See, e.g., Federal Defendants’ Memorandum in Support of Cross-Motion for Partial Summary Judgment and
Opposition to Plaintiffs’ Motions for Partial Summary Judgment, supra note 178, at 38 (“Contemporaneous statutes do
not indicate that modification authority must be express”); Revocation of Prior Monument Designations, 49 Op. O.L.C.
slip op. at 36 (May 27, 2025) (arguing “none of these statutes compares to the Antiquities Act in text, structure,
purpose, or history”). Similar arguments have arisen in the course of litigation over the President’s authority to walk
back prior Presidents’ actions under the Outer Continental Shelf Lands Act. See CRS Legal Sidebar LSB11388, The
Scope of Offshore Energy Withdrawals, by Adam Vann (2026); CRS Report R48901, Offshore Oil and Gas
Development: Legal Framework, by Adam Vann at 4–7 (2026).
190 Pickett Act, ch. 421 § 1, 36 Stat. 847, 847 (1910).
191 Tribal Plaintiffs’ Memorandum in Support of Motion for Partial Summary Judgment, Hopi Tribe, No. 17-cv-02590
(D.D.C. Jan. 9, 2020), Dkt. No. 163 (quoting Pickett Act, ch. 421, 36 Stat at 847).
192 Federal Defendants’ Memorandum in Support of Cross-Motion for Partial Summary Judgment and Opposition to
Plaintiffs’ Motions for Partial Summary Judgment, supra note 178, at 39; see also Yoo & Gaziano, supra note 150, at
640 (discussing the Pickett Act and Forest Service Organic Act and concluding that “[o]n balance, these two examples
suggest a congressional awareness that the President is generally able to reverse executive directives”).
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“Congressional Acquiescence,” United States v. Midwest Oil Co., and the Federal
Land Policy and Management Act
Proponents of presidential authority to diminish monuments argue that Presidents have done so in the past,
without congressional response—and that such lack of response indicates implicit congressional approval of the
practice.193 The Supreme Court ratified a similar argument in United States v. Midwest Oil Co., in which the Court
sustained President Wilson’s withdrawal of certain public lands from mineral exploration.194 First documenting the
“long-continued practice” involving “[s]cores and hundreds” of similar orders, the Court found that such acts,
“being subject to disaffirmance by Congress, could occasion no harm to the interest of the public at large,” and
that “Congress did not repudiate the power claimed or the withdrawal orders made.”195 Because Congress had
“uniformly and repeatedly acquiesced in the practice,” and because “officers, lawmakers, and citizens naturally
adjust themselves to any long-continued action of the Executive Department, on the presumption that
unauthorized acts would not have been allowed to be so often repeated as to crystallize into a regular practice,”
the Court held the withdrawal was authorized by “an implied grant of power” from Congress.196
In 1976, Congress passed the Federal Land Policy and Management Act of 1976 (FLPMA), which established new
authority for the Secretary of the Interior to make land withdrawals, consolidated land management authority, and
established a general policy of multiple-use land management.197 FLPMA explicitly repealed “the implied authority
of the President to make withdrawals and reservations resulting from acquiescence of the Congress (U.S. v.
Midwest Oil Co., 236 U.S. 459).”198
While FLPMA also repealed a number of preexisting statutory land withdrawal authorities, it did not repeal the
Antiquities Act.199 FLPMA expressly prohibits the Secretary of the Interior from modifying or revoking any
withdrawal creating national monuments under the Antiquities Act, but is silent as to the President’s authority to
do so.200 This provision came from H.R. 13777, as introduced and as reported by the 94th Congress. The relevant
committee report stated that the bill “would also specifically reserve to the Congress the authority to modify and
revoke withdrawals for national monuments created under the Antiquities Act. . . . These provisions will insure
that the integrity of the great national resource management systems will remain under the control of the
Congress.”201 Some commentators have taken this as evidence that Congress intended this provision of FLPMA to
prohibit any executive modifications or reversals of monument proclamations, notwithstanding the law’s reference
only to the Secretary of the Interior.202 Other commentators argue that, had Congress intended to limit
presidential authority, it would have done so explicitly.203
Alternative Approach: Lifting Land Use Restrictions
Reducing or eliminating monuments may not be the only option for expanding the available uses
of reserved lands. For example, rather than reducing or eliminating the monuments themselves,
193 See Federal Defendants’ Memorandum in Support of Cross-Motion for Partial Summary Judgment and Opposition
to Plaintiffs’ Motions for Partial Summary Judgment, supra note 178, at 42 (arguing that presidential modification
authority is “cemented by decades of presidential practice in modifying monument designations and congressional
acquiescence to that practice despite numerous opportunities to curtail it”).
194 United States v. Midwest Oil Co., 236 U.S. 459 (1915)
195 Id. at 469–71.
196 Id. at 471–75.
197 See Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 876 (1990) (prior to FLPMA, management of public lands under
“miscellaneous laws” “became chaotic,” resulting in passage of FLPMA to establish “a policy in favor of retaining
public lands for multiple use management”). See also STAFF OF S. COMM ON ENERGY & NAT. RES., 95th Cong.,
LEGISLATIVE HISTORY OF THE FEDERAL LAND POLICY AND MANAGEMENT ACT OF 1976 (PUBLIC LAW 94-579), at vi
(Comm. Print 1978) (“The Federal Land Policy and Management Act of 1976 represents a landmark achievement in
the management of the public lands of the United States. For the first time in the long history of the public lands, one
law provides comprehensive authority and guidelines for the administration and protection of the Federal lands and
their resources under the jurisdiction of the Bureau of Land Management. This law enunciates a federal policy of
retention of these lands for multiple-use management and repeals many obsolete public land laws which heretofore
hindered effective land use planning for and management of public lands.” (memorandum of Chairman Henry M.
Jackson).
(continued...)
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President Trump took a different tack by issuing proclamations authorizing commercial fishing in
two national marine monuments. The April 17, 2025, proclamation Unleashing American
Commercial Fishing in the Pacific lifted a ban on commercial fishing in the Pacific Islands
Heritage Marine National Monument.204 The February 6, 2026, proclamation Unleashing
American Commercial Fishing in the Atlantic did the same for the Northeast Canyons and
Seamounts Marine National Monument.205 Both proclamations were subject to legal challenges
alleging the lifting of prior proclamations’ commercial fishing bans exceeded the President’s
authority under the Antiquities Act, among other claims.206 The court in the Pacific Islands
Heritage case entered an administrative stay in January 2026 at the request of the parties
following a confidential settlement conference.207 The government filed a motion to dismiss the
Northeast Canyons and Seamounts case in July 2026, arguing that the plaintiffs lacked standing to
sue.208
Considerations for Congress
The Antiquities Act represents a broad delegation of land management authority from Congress to
the President, allowing for swift and unilateral preservation action. In interpreting the constraints
within the act described above—that objects must be of “historic or scientific interest,” that they
be on land “owned or controlled” by the federal government, and that land reservations must be
of “the smallest area compatible with proper care and management” of the objects being
protected—courts have been largely deferential to presidential authority. Courts have never struck
198 Pub. L. No. 94–579, § 704(a), 90 Stat. 2744, 2792.
199 Id.
200
Id. § 204(j), 90 Stat. at 2754 (codified at 43 U.S.C. §1714(j)) (“The Secretary shall not . . . modify or revoke any
withdrawal creating national monuments under [the Antiquities Act] . . . .”).
201 H. REP. NO. 94-1163, at 9 (1976). The conference report did not change this provision.
202 See, e.g., Squillace et al., supra note 150, at 61–64 (analyzing legislative activity surrounding FLPMA and
concluding that sec. 204(j) reflects congressional intent “to constrain all executive branch power to modify or revoke
national monuments, not just Secretarial authority”); see also Revised Amicus Curiae Brief of Law Professors
Supporting Plaintiffs’ Opposition to Motion to Dismiss at 14 n.4, Hopi Tribe v. Trump, No. 17-cv-02590 (D.D.C. Mar.
27, 2019), Dkt. No. 124 (“This provision makes little sense as the Secretary of the Interior never was delegated
authority to establish national monuments—much less alter their boundaries. A review of the legislative history reveals
that this was either a drafting error on the part of Congress, or an attempt to clarify that Congress reserved the authority
to alter monument boundaries to itself.”).
203 See, e.g., Yoo & Gaziano, supra note 150, at 652–53 (arguing with respect to sec. 204(j) that “[t]he text creates no
ambiguity or inference that Congress modified the President’s authority in the Antiquities Act. The opposite reading of
the text is much stronger, i.e., that Congress knew how to write express limitations and that it would have listed the
President if its restriction on the Secretary of Interior’s power was intended to bind the President”).
204 Proclamation No. 10918, 90 Fed. Reg. 16987 (Apr. 17, 2025).
205 Proclamation No. 11009, 91 Fed. Reg. 6489 (Feb. 6, 2026).
206 See Complaint for Injunctive and Declaratory Relief at 31, Conservation Law Found. v. Trump, No. 26-cv-01528
(D.D.C. May 4, 2026), Dkt. No. 1 (alleging among other things that the President lacks authority under the Antiquities
Act to revoke the commercial fishing prohibition because that prohibition is “fundamental to the proper care and
management of the Monument objects”); Complaint for Declaratory & Injunctive Relief at 6, Kāpa‘a v. Trump at 6,
No. 25-cv-00209 (D. Haw. May 22, 2025), Dkt. No. 1 (“The Trump Proclamation deprives the Monument Expansion’s
scientific objects of the protections they had under the 2014 Proclamation, leaving them vulnerable to the very damage
that the Monument reservation was designed to avoid.”).
207 Stipulation re: Administrative Stay at 3, Kāpa‘a, No. 25-cv-00209 (D. Haw. Jan. 28, 2026), Dkt. No. 48; Electronic
Order, Kāpa‘a, No. 25-cv-00209 (D. Haw. Jan. 28, 2026), Dkt. No. 49.
208 Motion to Dismiss for Lack of Jurisdiction, Conservation Law Found., No. 26-cv-01528 (D.D.C. May 6, 2026),
Dkt. No. 24.
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down a monument declaration on the basis that an object was inappropriate or the land ineligible
for monument designation, nor on the basis that the area of land reserved for the monument was
too big. The extent of courts’ authority to review such determinations at all remains unsettled.
Chief Justice Roberts has suggested that these issues may warrant scrutiny from the Court, and
such scrutiny may or may not ultimately contract the President’s heretofore expansive authority
under the act. Congress has the option to await any further judicial reckoning with the scope of
presidential authority, or to amend the act to expand, contract, or further articulate the bounds of
that authority.
Bills in recent Congresses have proposed various restrictions on presidential authority but have
not been enacted. For example, H.R. 2645 in the 119th Congress would place a default time limit
on monument designations (the earlier of six months or the last day of the pertinent Congress)
and prohibit Presidents (for a period of twenty-five years) from redesignating areas that expired
under that time limit or were otherwise rejected by Congress. As additional examples, several
bills from the 116th Congress included a finding that only Congress possessed authority to
reduce, diminish, or revoke a national monument209 or otherwise sought to limit presidential
authority to reduce monument size.210 Two of these bills would also have established a “National
Monument Enhancement Fund” and authorized appropriations of $100,000,000 for that fund.211
By contrast, amendments to various appropriations bills would have limited spending for the
creation of national monuments generally212 or in particular areas.213 Legislative changes to the
Antiquities Act have also targeted particular terms that have generated controversy, such as
“objects” or “lands.” For example, H.R. 1664 in the 116th Congress would have limited the
“objects” subject to designation to “objects of antiquity,” specifically excluding “natural
geographic features” and most “objects not made by humans,” and would have specifically
excluded “submerged land or water” from the definition of “lands” under the act.214 If Congress
sought to preserve the current judicial approach to the act, by contrast, it could make explicit that
the act applied to naturally occurring phenomena or entire ecosystems, whether on dry land or
underwater. Congress could also adjust presidential discretion with respect to monument size by
eliminating the “smallest area compatible” requirement on the one hand or imposing an acreage
limit on the other.
The Antiquities Act does not currently address what restrictions come with national monument
status, such that monument proclamations have largely established acceptable land uses (or have
instructed managing agencies to develop plans for land management within certain parameters).
Congress has the option to standardize some or all land use restrictions on monument land by
statute or to impose procedural requirements for the President in establishing or modifying such
limits (such as public notice and comment, consultation with local and state governments, or
others).
As described above, courts have been generally deferential in their review of presidential
monument declarations.215 While courts have been willing to evaluate whether “objects” or
“lands” qualify for protection “as a matter of law,” they have largely not engaged in the fact-
209 See S. 367, 116th Cong. (2019), H.R. 1050, 116th Cong (2019).
210 See H.R. 1664, 116th Cong. (2019).
211 See S. 367, 116th Cong. (2019), H.R. 1050, 116th Cong (2019).
212 H. Amdt. 596, 118th Cong. (2023).
213
H. Amdt. 1126, 118th Cong. (2024); H. Amdt. 1137, 118th Cong. (2024).
214 H.R. 1664, 116th Cong. (2019).
215 See supra “Judicial Review.”
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intensive inquiry of what constitutes the “smallest area compatible” with monument protection.216
By articulating standards for calculating that area and specifying a standard of judicial review,
Congress could more fully empower courts to decide whether a given monument proclamation is
consistent with the law.
Author Information
Cassandra J. Barnum
Legislative Attorney
Disclaimer
This document was prepared by the Congressional Research Service (CRS). CRS serves as nonpartisan
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under the direction of Congress. Information in a CRS Report should not be relied upon for purposes other
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216 Mass. Lobstermen’s Ass’n v. Ross, 945 F.3d 535, 540 (D.C. Cir. 2019). The D.C. Circuit has suggested that the
determination is reviewable but would require “plausible factual allegations” that the President had exceeded his
considerable authority under the act. Id. One federal district court found that the President’s exercise of discretion
under the act was wholly unreviewable. See Utah Ass’n of Cntys. v. Bush, 316 F. Supp. 2d 1172, 1183 (D. Utah 2004)
(“Clearly established Supreme Court precedent instructs that the Court's judicial review in these circumstances is at
best limited to ascertaining that the President in fact invoked his powers under the Antiquities Act. Beyond such a
facial review the Court is not permitted to go. When the President is given such a broad grant of discretion as in the
Antiquities Act, the courts have no authority to determine whether the President abused his discretion.” (citations
omitted)).
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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.