By Bryan Mette. Full Text.
The Antiquities Act of 1906 authorizes the President to designate national monuments on federally owned lands. Administrations have employed this authority to create approximately 160 national monuments. In December 2017, President Trump raised the ire of national monument proponents when he drastically reduced the size of Grand Staircase-Escalante and Bears Ears National Monuments in Utah. These actions were quickly challenged and are currently being litigated. Yet, they were not the first challenges to presidential actions taken pursuant to the Act.
Ever since the Act’s passage, various aggrieved parties have challenged presidential national monument designations and federal courts have consistently struggled with two issues frequently arising in these suits. One, are such actions subject to judicial review given that the Act grants the President discretion in designating national monuments? And two, assuming that courts may review these challenges, what is the appropriate standard of review to apply?
To answer these questions, this Note begins by examining some notable monument designations to track the evolution of the President’s authority under the Act. It then examines case law from the Supreme Court, courts of appeals, and district courts regarding challenges to national monument designations to divine principles helpful in developing the proposed solution. This Note proposes that Congress amend the Antiquities Act to clarify that courts do indeed have the power to review challenges to presidential national monument designations. It also suggests that Congress institute various standards of review depending on the type of challenge brought by parties. Finally, it suggests that Congress also amend current law to clarify that the President may not revoke or reduce preexisting national monuments.