Justice Department Affirms the Legality of Shrinking and Removing National Monuments

The U.S. Department of Justice (DOJ) released a new opinion¹ in late May detailing why President Trump can legally shrink and outright remove national monuments under the Antiquities Act of 1906 (Antiquities Act).² Specifically, Trump seeks to remove the Chuckwalla and the Sáttítla Highlands National Monuments created by President Biden to free up the land for oil and gas drilling.³

The Antiquities Act enables the President to establish national monuments “of historic or scientific interest” on federally owned land “confined to the smallest area compatible with the proper care and management of the objects to be protected.”⁴ In its 50-page memo, the DOJ argues that the Antiquities Act gives the president the power to establish and remove National Monument designation while also making the federal land available for public use. Additionally, the DOJ argues that the Proposed Abolishment of Castle Pinckney National Monument (Castle Pinckney),⁵ which has been the main defense against removing national monument designation,⁶ is invalid and should be disregarded.

In the new opinion, the DOJ makes distinctions between the various words used in the Antiquities Act, Castle Pinckney, and the rest of the opinion. The DOJ states that the monument itself is not the parcel of land on which it is situated. Instead, “it is the ‘landmark,’ ‘structure’ or ‘other object’ declared to be of historic or scientific interest by the President.” Early on, the DOJ notes that many presidents have diminished the land that national monuments reside on.⁸

President Kennedy, for example, shrunk Bandelier National Monument by nearly 4000 acres “after concluding that the objects were not of sufficient scientific or historical interest to be declared a national monument.”⁹

Using these points, the DOJ then turns to the latter portion of the Antiquities Act that details the size of the land the national monument is on, specifically on how it should be the smallest area necessary for the monuments’ upkeep and protection. The DOJ points out the vastness of the Chuckwalla and the Sáttítla Highlands National Monuments (over 720,000 acres¹⁰ and 220,000 acres¹¹ respectively) and how the Biden administration made “little effort to describe how its massive expanse is nonetheless the ‘smallest’ area necessary.”¹² By explicitly pointing out this discrepancy between the regulation and size of monuments, the DOJ is likely attempting to highlight the perhaps superfluous land set aside under the Antiquities Act.

Next, the DOJ transitions into dealing with the specific power to de-designate national monuments. First, the DOJ explains why they operate under the 2014 rewrite of the Antiquities Act since it makes “clear that the statute empowers two separate, discretionary acts, which are discussed in two separate statutory subsections,” those being the power to designate national monuments and the power to reserve parcels of land for those monuments.¹³ The DOJ posits that surely Congress knows about the history of president’s removing national monuments. So, if they did not address it in the 2014 rewrite, that “could itself be reason to argue that [Congress] agreed with the President’s asserted authority.”¹⁴ They therefore “believe that the second presidential power granted by the Antiquities Act . . . also carries with it the power to reconsider a past President’s exercise of that power.”¹⁵ In other words, a president may resize or remove a national monument created by a past president under the power vested in the Antiquities Act.

Attempting to refute common objections to their view, the DOJ argues that Castle Pinckney “‘conflicts with the plain language’ of the post-2014 Antiquities Act.”¹⁶ The DOJ argues that Castle Pinckney disregarded historical context and failed to address court cases that seem to overrule Castle Pinckney altogether.¹⁷ The DOJ does clarify that “although none [of the cases are] directly controlling, each case evidences an understanding contemporaneous with the Antiquities Act that the President has implied powers to change public-land use.”¹⁸ The DOJ ultimately says that “Castle Pinckney’s failure to fully and adequately address this historical context, combined with the many other faults in its reasoning, lead us to believe that it should no longer serve as Executive Branch precedent.”¹⁹

The DOJ notes that the most convincing objection to their argument is “a perceived inconsistency with the Supreme Court’s recent ruling that only a clear statement from Congress can change the boundaries of an Indian ‘reservation.’”²⁰ Some argue that, if this is the case for Indian reservations, it is also the case for national monuments. While the DOJ concedes that, “to the extent that Attorney General Cummings had Indian reservations in mind when he made his broad statements [in Castle Pinckney] about the meaning of the term ‘reserve,’ he was correct that by 1938, the boundaries of Indian reservations were effectively permanent.”²¹ However, the DOJ argues that these Indain reservations are not permanent because of the fact they are ‘reservations’; rather, “they were permanent because Congress said so . . . an explicit statement of legislative policy that has never been extended to the Antiquities Act.”²² As such, the DOJ argues, the rules for Indian reservations do not extend to national monuments.

The DOJ ultimately concludes that “there is nothing in the [Antiquities] Act’s text, Congress’s subsequent actions, or our legal tradition to suggest that the President can remove the protected status of some of the objects to be protected but cannot alter the factual findings as to all of them.”²³ In other words, the president may alter a prior designation of a national monument “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.”²⁴ Given President Trump’s readiness to remove national monuments for energy production, it seems it will be only a matter of time before he abolishes the Chuckwalla and the Sáttítla Highlands National Monuments, among others.²⁵

¹ Revocation of Prior Monument Designations, Off. Legal Couns. (May 27, 2025) [hereinafter Revocation Opinion].
² 54 U.S.C. §§ 320301–320303.
³ Justice Department Says Trump Can Cancel National Monuments That Protect Landscapes, N.P.R. (Jun. 11, 2025).
⁴ 54 U.S.C. § 320301(a)-(b).
⁵ 39 Op. Att’y Gen. 185 (1938).
⁶ In 1938, President Franklin D. Roosevelt had inquired about whether or not a sitting President could remove national monuments under the powers granted by the Antiquities Act. In particular, President Roosevelt wanted to remove Castle Pinckney National Monument in South Carolina. The Attorney General at the time, Homer Cummings, stated in his subsequent opinion that the President does not have the power to abolish national monuments while also articulating how that power lies with Congress alone. Since the release of that opinion, no President has totally abolished a national monument, and Castle Pinckney was abolished by Congress in 1956. See Taylor Luneau, Executive Power over National Monuments: An AAC Member and Natural Resource Law Scholar Weighs in on the Future of Bears Ears, Am. Alpine Club (Mar. 28, 2017); Castle Pinckney Nat’l Monument, S.C., Pub. L. No. 447-104 (1956).
⁷ Revocation Opinion, supra note 1, at 5 (internal citation omitted).
⁸ Id. (internal citation omitted).
⁹ Id. at 7.
¹⁰ Chuckwalla National Monument, Dep’t Interior (Jan. 14, 2025).
¹¹ Sáttítla Highlands National Monument, Dep’t Agric., (last visited Aug. 21, 2025).
¹² Revocation Opinion, supra note 1, at 12 (internal citation omitted).
¹³ Id. at 15–16.
¹⁴ Id. at 16.
¹⁵ Id. at 22.
¹⁶ Id. at 28 (quoting Reconsidering Whether the Wire Act Applies to Non-Sports Gambling, Off. Legal Couns. 176 (Nov. 2, 2018)).
¹⁷ Revocation Opinion, supra note 1, at 29–30 (detailing U.S. Supreme Court cases that go against Castle Pinckney).
¹⁸ Id. at 30.
¹⁹ Id. at 40.
²⁰ Id. at 43–44 (quoting McGirt v. Oklahoma, 140 S. Ct. 2452 (2020)).
²¹ Id. at 45.
²² Id.
²³ Id. at 20.
²⁴ Id. at 50 (internal citation omitted).
²⁵ Wyatt Myskow, Department of Justice Gives Trump Go-Ahead to Eliminate National Monuments, Inside Climate News (Jun. 11, 2025).