By: Sarah Benjamin

The Antiquities Act, which was passed in 1906, gives Presidents broad discretion to designate areas as National Monuments and thereby take them out of use for commercial industries and set them aside for the sole purpose of public recreation and enjoyment.[1] Since the Act’s passage, various Presidents have designated nearly 100 million acres of federal public lands.[2] On August 8, 2023, President Biden designated Baaj Nwaavjo I’tah Kukveni – Ancestral Footprints of the Grand Canyon National Monument.[3] On February 12, 2024, an Arizona rancher filed suit against President Biden claiming he abused his authority under the Antiquities Act in designating such a large area in Arizona as a national monument.[4] Also on Monday, February 12, 2024, Arizona lawmakers, Warren Peterson, Ben Toma, and Kimberly Yee filed suit against President Biden for violating the Antiquities Act.[5] Specifically, the lawmakers believe that Biden is abusing his discretion by making an unlawful grab and is overinclusive in his determination of what constitutes a monument.[6] The lawmakers and the rancher fear the impact that such designations have on industry. [7]Regardless of other federal laws, once land is taken from the public domain it cannot be used for mining, ranching, and other previously allowable uses.[8]

How to balance the interests of conservation and development is ongoing and has become especially contentious in recent years with the presidential fight over Bears Ears.[9] Since former President Obama’s designation of Bears Ears as a national monument under the Antiquities Act, there has been a discussion regarding whether a future president has the authority to modify or revoke land that was designated by a prior president.[10] Some have argued that while the Antiquities Act grants the President the power to reserve the land, the constellation of other federal land regulations including the Federal Land Policy and Management Act of 1976 (“FLPMA”), allow only Congress the ability to revoke or downsize a national monument.[11] Others argue that because the Antiquities Act only grants the president the explicit right to reserve the land and remains silent on modification or diminishment, there is no such right.[12] Despite the silence within the Act, many argue that a future president can consider mistakes previously made, and that this power is inherent in the discretion and requirement of confining a designation to the smallest area compatible with proper care and management of the objects to be protected.[13]

While the conversation regarding the abuse of executive power among presidents has increased, courts and Congress have a history of generally upholding presidential action despite challenges to the designations of national monuments.[14] The Supreme Court and many lower courts have permitted large natural areas and given deference to executively created monuments.[15] In Wyoming v. Frank, the state of Wyoming challenged the scope of President Roosevelt’s establishment of Jackson Hole National Monument in part for its grandeur.[16] The court ruled in favor of the executive action and applied a lenient standard of “whether the President’s action had been arbitrary and capricious and whether it had been supported by substantial evidence”.[17]

Given this lenient standard of review, the lawmakers and the Arizona lawmaker are unlikely to prevail in their lawsuits. President Biden in his proclamation was explicit in dictating the numerous reasons for why the area chosen had value and why it was the smallest compatible region possible.[18] Specifically, Biden refers to the fact that the area is the homeland of numerous Tribal Nations, demonstrates that the specific regions are known cultural and historic sites because they are listed on the National Register of Historic Places, and describes in detail how the areas contain the requisite historical objects such as evidence of ancient villages and habitations in the northwestern area via houses, storage sites, granaries, pictographs, and pottery.[19] President Biden has effectively refuted the claim that he acted arbitrarily or capriciously by being specific in the analysis of the historical context, locations, and evidence available in the area in his proclamation.

Many residents and lawmakers challenge designations because they feel that the change in use of the land will have a negative economic impact on the local businesses.[20] However, according to some research, it is possible that minimal changes would occur or there could be a potential boost in business.[21] The boost to commerce may be in the increase in tourism activity.[22] While there is a possible restructuring effect on businesses, the overall economic impact of land preservation and national monument designations may be positive for the nearby communities.

[1]16 U.S.C. § 431. (“The President of the United States is authorized … to declare by public proclamation historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest that are situated upon the lands owned or controlled by the Government of the United States to be national monuments, and may reserve as a part thereof parcels of land, the limits of which in all cases shall be confined to the smallest area compatible with the proper care and management of the objects to be protected”)

[2] Lisa Raffensperger, The Highs and Lows of the Antiquities Act, NPR Environment (May 23, 2008, 12:00 PM), https://www.npr.org/templates/story/story.php?storyId=90631198.

[3] FACT SHEET: President Biden Designates Baaj Nwaavjo I’tah Kukveni – Ancestral Footprints of the Grand Canyon National Monument, White House (Aug. 8, 2023), https://www.whitehouse.gov/briefing-room/statements-releases/2023/08/08/fact-sheet-president-biden-designates-baaj-nwaavjo-itah-kukveni-ancestral-footprints-of-the-grand-canyon-national-monument/; Press Release, U.S. Dept. of Interior, Secretaries Haal and and Vilsack Applaud President Biden’s Designation of the Baaj Nwaavjo I’tah Kukveni – Ancestral Footprints of the Grand Canyon National Monument (Aug. 8, 2023), https://www.doi.gov/pressreleases/secretaries-haaland-and-vilsack-applaud-president-bidens-designation-baaj-nwaavjo-itah;

[4] Complaint, Heaton v. Biden et. al, (No. 3:24-cv-08027); Madeline Lyskawa, Rancher Accuses Biden Admin of Abusing Antiquities Act, Law360 (Feb. 13, 2024, 12:38 PM), https://www.law360.com/articles/1797068/rancher-accuses-biden-admin-of-abusing-antiquities-act.

[5]  Tom Lotshaw, Arizona Lawmakers Sue Feds Over Grand Canyon Monument, Law360 (Feb.13, 2024, 1:39 PM), https://www.law360.com/articles/1797070/arizona-lawmakers-sue-feds-over-grand-canyon-monument.

[6] See Complaint at 3, Arizona State Legislature et al v. Biden et al, (No. 3:24-cv-08026) (stating in their complaint that the Biden administration is only quelled by discretion to not designate all federal lands).

[7] Id. But see Margaret Wells, et. al., National monuments and economic growth in the American West, 6 Sci. Advs. 1, 5-6 (2020) (advancing the argument that while many opponents to national monuments believe that monuments hurt the economy, there is evidence to support that monuments increase on local economies via amenity-driven economy).

[8] Jessica Nelson, Controversy Surrounding the Baaj Nwaavjo I’tah Kukveni National Monument, Medriva (Feb. 12, 2024, 7:13 PM), https://medriva.com/uncategorized/controversy-surrounding-the-baaj-nwaavjo-itah-kukveni-national-monument/.

[9] See Deepa Shivaram, Biden restores protections for Bears Ears monument, 4 years after Trump downsized it, NPR(Oct. 8, 2021, 3:23 PM), https://www.npr.org/2021/10/07/1044039889/bears-ears-monument-protection-restored-biden#:~:text=Biden%20restores%20protections%20for%20Bears,years%20after%20Trump%20downsized%20it&text=Somodevilla%2FGetty%20Images-,President%20Biden%20finishes%20signing%20one%20of%20three%20executive%20orders%20to,the%20White%20House%20on%20Friday.

[10] Id.; Justin S. Daniel, Presidential Authority and the Antiquities Act, Regul. Rev. (May 15, 2018), https://www.theregreview.org/2018/05/15/daniel-presidential-authority-antiquities-act/.

[11] Mark Squillace, et. al, Presidents Lack the Authority to Abolish or Diminish National Monuments, 103 Va. L. Rev. 55, 59 (2017).

[12] John Hudak, President Trump has the power to shrink national monuments, Brookings (Dec. 7, 2017), https://www.brookings.edu/articles/president-trump-has-the-power-to-shrink-national-monuments/ (stating that while there is an argument that president may only to reserve land, historical context of presidential action seems to support that future presidents may amend or reverse the actions of previous presidents).

[13] Id. See Tulare Cty. v. Bush, 306 F.3d 1138,1140-41 (D.C. Cir. 2002) (finding that Bush has the presidential authority to establish the Giant Sequoia National Monument under the Antiquities Act which encompassed 327,769 acres of California’s Sequoia National Forest regardless of county, public, and private use of the area for business and recreational purposes).

[14] Christine A. Klein, Preserving Monumental Landscapes under the Antiquities Act, 87 Cornell L. Rev. 1333,1342 (2002)

[15] Id. at 1344.

[16] See Wyoming v. Franke, 58 F. Supp. 890, 894 (D. Wyo. 1945).

[17] Klein, supra note 14, at 1349.

[18] See White House, supra note 3.

[19] A Proclamation on Establishment of the Baaj Nwaavjo I’tah Kukveni-Ancestral Footprints of the Grand Canyon National Monument, White House (Aug. 8, 2023), https://www.whitehouse.gov/briefing-room/presidential-actions/2023/08/08/a-proclamation-on-establishment-of-the-baaj-nwaavjo-itah-kukveni-ancestral-footprints-of-the-grand-canyon-national-monument/.

[20] Walls et. al., supra note 7 at 5.

[21] Id.

[22] Megan Lawson, National monuments can boost local economies Headwaters Economics (May 25, 2021), https://headwaterseconomics.org/public-lands/national-monuments-studies/.