The Fight Over National Monuments Won’t Stop With Bears Ears

Trump plans to re-shrink Bears Ears and Grand Staircase-Escalante. I fear it won't stop there.

According to the ABC news affiliate in Salt Lake City, President Trump is expected to hold a signing ceremony for an order to re-shrink Bears Ears and Grand Staircase-Escalante National Monuments at 4:30 PM Eastern. Most reports you’re going to read about this will treat it as an end goal for the administration’s anti-public lands agenda, but it’s really just the beginning of something much worse.

While no details on the areas that will be impacted or what implementation may look like are available (I’ll update this article when that’s available), the order is expected to follow the broad strokes of the action taken during the first Trump administration.

Update: Here’s a link to the Bears Ears order, and a link to the Grand Staircase-Escalante order. Both essentially restore the cuts made during the first Trump administration, eliminating nearly three million total acres from monument protection.

Back on December 9, 2017, Trump reduced Bears Ears from 1.35 million acres to just 228,000, and Grand Staircase-Escalante from 1.87 million acres to about 1 million.

Both monuments are located in Utah. And while there was some benefit to extractive industries in that state from stripping monument protections from those areas, the move was broadly understood to be a symbolic one. President Obama established Bears Ears in 2016, and Grand Staircase-Escalante was created by President Clinton in 1996. President Biden restored both monuments in 2021.

The express power for Presidents to create national monuments was created by the Antiquities Act, which was signed into law by Theodore Roosevelt in 1906. He first used it to establish the 1,153 acre Devil’s Tower National Monument later that same year, then in 1908 used the act to protect the Grand Canyon from strip mining.

That was controversial at the time because a lot of people really wanted to exploit the Grand Canyon’s resources, and at 800,120 acres, they argued that the area protected by Teddy’s monument designation exceeded the act’s intention. Language in it specifically requires monument designations to be, “limited to the smallest area compatible with the care and management of the objects to be protected.”

The fight over what that meant reached the Supreme Court, and in 1920 those judges rejected challenges to Grand Canyon National Monument, establishing precedent allowing presidents to protect very large areas, so long as they protect an object of unusual scientific or historical interest.

And while that controversy has not stopped, the precedent for very large monuments established in 1920 has been upheld. In 1945, the Supreme Court upheld Franklin Roosevelt’s designation of the 221,610-acre Jackson Hole National Monument. In 1980, a federal court upheld Jimmy Carter’s creation of three national monuments in Alaska that totaled over 20 million acres. In 2002, a federal court upheld Bill Clinton’s creation of six national monuments.

But while courts have ruled that the Antiquities Act does give presidents the broad authority to protect large areas of federal land (or areas of ocean) by declaring them monuments, there has never been a ruling on whether or not the act also gives presidents the ability to reduce or eliminate them.

It seems ironic that the Trump administration is using an unadjudicated interpretation of the Antiquities Act to undo precedent confirmed twice by the Supreme Court. While there were legal challenges to the 2017 shrinkage order, they remained pending when Biden re-established the original boundaries.

Speaking of the Supreme Court, Chief Justice John Roberts is not happy with those previous rulings, and is openly case shopping for an opportunity to rein in what he sees as “a power without any discernible limit.”

That quote comes from a four-page public letter Roberts published in 2021 stating his desire to revisit the question of what power the Antiquities Act grants presidents, and outlining the kind of case he’d like to see brought before the Supreme Court that would allow him to issue what very much seems like a pre-determined ruling.

So what’s really going on here isn’t just Trump revisiting what he feels is a slight from Biden. It’s a targeted effort to trigger a case that will allow the far-right justices he’s appointed to the Supreme Court to massively reduce the scope of the Antiquities Act, or eliminate it altogether. And given the makeup of the court, the attempt by the executive branch to grab as much power as possible (again, an irony in the context of discussion of the Antiquities Act), and the unwillingness of Congress to exercise its responsibility for oversight, it’s conceivable that such a ruling could even be applied retroactively, eliminating or reducing the size of national monuments beyond those two in Utah, and preventing future presidents from establishing more.

How do I know that? Because that entire plan is written down in Project 2025.

“The new Administration must seek repeal of the Antiquities Act of 1906,” writes longtime anti-public lands activist, and reader of this newsletter, William Perry Pendley.

Pendley first served in the federal government as deputy to Reagan’s Secretary of the Interior James G. Watt. He then went on to a hold a variety of illegal positions managing the Bureau of Land Management during the first Trump administration. He authored Project 2025’s 28-page chapter on plans for the Department of the Interior.

In that, Pendley lays out the plan we’re now seeing implemented: “…the new Administration must vigorously defend the downward adjustments it makes to permit a ruling on a President’s authority to reduce the size of national monuments by the U.S. Supreme Court.”

What will that look like? Pendley helpfully laid exactly that out in 2024, when the Supreme Court rejected a case that challenged the expansion of two national monuments in Oregon, brought by the timber industry. According to Pendley, Chief Justice Roberts refused that case because it wasn’t expansive enough to allow him the ability to outlaw the Antiquities Act in its entirety.

“Chief Justice Roberts has made it quite clear he has some concerns about this statute and its abuse,” Pendley stated at the time. “The court wants to meet whatever [question] it’s looking for, and it appears this wasn’t it.”

This re-shrinking though, it could be “it.”

What would that take? Well, any suit challenging the legality of the shrinkage, since that’s inherently also a question of what powers the Antiquities Act grants.

Given that, and the expectation that any hypothetical future Democratic administration is likely to again reverse the presumed shrinkage, is it conceivable that the various groups that sued last time—tribes, enviro non-profits, etc—could simply play it cool, and wait for President Ocasio-Cortez to fix things in 2029?

Viewed through the lens of that question, this effort to challenge the Antiquities Act quickly seems much more broad reaching.

Is Interior’s new policy of subverting the National Environmental Policy Act, and the strong policies capable of withstanding legal challenges it was designed to create, intended to make legal challenges to this monument shrinkage inevitable? Is Congress’s unprecedented use of the Congressional Review Act to break the legality of the permitting processes on BLM and Forest Service lands put forth with a similar goal?

Even if actions like that weren’t specifically intended to create the kind of conditions that make lawsuits around the legality of this shrinkage inevitable, they will still have the same impact. It is conceivable that sometime between now and November 2028, we could lose much more than Bears Ears and Grand Staircase-Escalante.

Top photo: Tim Peterson

A journalist with more than two decades of experience working around the world, Wes Siler is here to cut through the outrage and disinformation to bring you the factual, insightful, actionable reporting you need to understand what’s going on. Upgrading to a paid subscription supports this reporting, and buys personal access to Wes, who will help you save money on gear, plan outdoor adventures, and prepare for real life, and who promises he’s less salty in real life than he sometimes comes across as on the Internet.