SBA Office of the National Ombudsman: Overview, History, and Current Issues

Summary: The Office of the National Ombudsman was created in 1996 as part of P.L. 104-121, the Contract with America Advancement Act of 1996 (Title II, the Small Business Regulatory Enforcement Fairness Act of 1996 [SBREFA]). Housed within the U.S. Small Business Administration (SBA), the office's primary purpose is to provide small businesses, small government entities (those serving populations of less than 50,000), and small nonprofit organizations that believe they have experienced unfair or excessive regulatory compliance or enforcement actions (such as repetitive audits or investigations, excessive fines, and retaliation by federal agencies) a means to comment about such actions.

Summary: The Office of the National Ombudsman is an impartial liaison that reports small business regulatory fairness matters to the appropriate federal agency for review and works across government to address those concerns and reduce regulatory burdens on small businesses.

Summary: SBREFA also created 10 Small Business Regulatory Fairness Boards, one in each of the SBA's 10 regions, to advise the National Ombudsman on matters related to federal regulatory enforcement activities affecting small businesses.

Summary: Specifically, the National Ombudsman

Summary: works with each federal agency with regulatory authority over small businesses to ensure that small businesses are provided a means to comment on the federal agency's regulatory compliance and enforcement activities; receives comments from small businesses regarding actions by federal agency employees conducting small business regulatory compliance or enforcement activities; refers comments to the affected federal agency's inspector general in appropriate circumstances while maintaining the confidentiality of the person or small business making these comments; issues an annual report to Congress and affected federal agencies evaluating the agency's compliance and enforcement activities, including a rating of their responsiveness to small businesses; provides the affected federal agency with an opportunity to comment on the annual report prior to publication and includes in the report a section in which the affected federal agency may comment on issues that are not addressed by the National Ombudsman in revisions to the draft; and coordinates and reports annually on the Small Business Regulatory Fairness Boards' activities, findings, and recommendations to the SBA Administrator and the heads of affected federal agencies.

Summary: This report examines the Office of the National Ombudsman's origin and history; describes its organizational structure, funding, functions, and current activities; and discusses a recent legislative effort to enhance its authority. During the 115th Congress, S. 1146, the Small Business Regulatory Relief Act of 2017, would have, among other provisions,

Summary: expanded the National Ombudsman's authority to work with federal agencies on the development of best practices for educating, training, and assisting small entities in understanding and complying with federal regulations; and authorized the National Ombudsman to evaluate federal agency regulatory compliance guides, ensure that those guides are available to small business development centers and other SBA management and training resource partners, conduct small business customer service surveys on an ongoing basis to assess the timeliness and quality of federal agency regulatory activities, and develop an outreach program to promote awareness of the National Ombudsman's activities.

Summary: This report also discusses some challenges facing the Office of the National Ombudsman

Summary: although it is generally recognized as an independent, impartial office, it is housed within the much larger SBA and remains subject to its influence; the National Ombudsman has often stayed in the position for a relatively short time. Frequent turnover can lead to continuity problems for the office; it does not have the authority to compel federal agencies to undertake specific actions to resolve disputes. As a result, although its annual rating of federal agency responsiveness to small business concerns does provide it a means to exert some influence on federal agency actions, its role in resolving disputes is somewhat constrained; and its relatively limited budget and staffing level restrict its ability to engage in outreach activities that could increase small business awareness of its existence and services.

There are about 150 ombudsman offices located throughout the federal government. About a third of them are statutorily authorized. The others were created through executive action. Although there are differences among them in terms of their origin, staffing, funding, and organizational structure, they are all tasked with receiving and helping to resolve disputes in an impartial manner. Some ombudsman offices are limited to helping to resolve disputes that arise within the federal agency in which they are housed. Others are limited to helping to resolve disputes received from the agency's clients. Still others may help to resolve disputes that arise both within the federal agency and from the agency's clients.

The Office of the National Ombudsman, housed within the U.S. Small Business Administration (SBA), is fairly unique in that it is authorized to help resolve disputes received from the public across federal agencies. It was created in 1996 as part of P.L. 104-121 , the Contract with America Advancement Act of 1996 (Title II, the Small Business Regulatory Enforcement Fairness Act of 1996 [SBREFA]). It is a relatively small office, with authorization for up to seven employees. It currently has five employees: a Deputy National Ombudsman (Mina Wales), an administrative officer, an external outreach manager, and two case management specialists. The National Ombudsman position, which is currently vacant, is appointed by the SBA Administrator.

The Office of the National Ombudsman's primary purpose is to provide small businesses, small government entities (those serving populations of less than 50,000), and small nonprofit organizations that believe they have experienced unfair or excessive regulatory compliance or enforcement actions (such as repetitive audits or investigations, excessive fines, and retaliation by federal agencies) a means to comment about such actions. As an impartial liaison, the Office of the National Ombudsman "directs reported regulatory fairness matters to the appropriate agency for high-level fairness review, and works across government to address those concerns, reduce regulatory burdens, and help small businesses succeed."

SBREFA also created a five-person Small Business Regulatory Fairness Board in each of the SBA's 10 regions to advise the National Ombudsman on matters related to federal regulatory enforcement activities affecting small businesses.

Specifically, SBREFA directs the SBA Administrator to designate an ombudsman to

work with each federal agency with regulatory authority over small businesses to ensure that small businesses that receive or are subject to an audit, on-site inspection, compliance assistance effort, or other enforcement-related communication or contact by federal agency personnel are provided a means to comment on those regulatory compliance and enforcement activities; receive comments from small businesses regarding actions by federal agency employees conducting small business regulatory compliance or enforcement activities; refer comments to the affected federal agency's inspector general in appropriate circumstances and maintain the confidentiality of the person or small business making these comments; based on substantiated comments received from small businesses and Small Business Regulatory Fairness Boards, annually report to Congress and affected federal agencies an evaluation of the federal agency's regulatory compliance and enforcement activities, including a rating of the agency's responsiveness to small businesses; provide the affected federal agency with an opportunity to comment on the National Ombudsman's annual report to Congress prior to publication and include in the final report a section in which the affected federal agency may comment on issues that are not addressed by the National Ombudsman in revisions to the draft; and coordinate and report annually on the Small Business Regulatory Fairness Boards' activities, findings, and recommendations to the SBA Administrator and the heads of affected federal agencies.

This report examines the Office of the National Ombudsman's origin and history; describes its organizational structure, funding, functions, and current activities; and discusses a recent legislative effort to enhance its authority. During the 115 th Congress, S. 1146 , the Small Business Regulatory Relief Act of 2017, would have, among other provisions,

expanded the National Ombudsman's authority to work with federal agencies on the development of best practices for educating, training, and assisting small entities in understanding and complying with federal regulations; authorized the National Ombudsman to evaluate federal agency regulatory compliance guides, ensure that those guides are available to small business development centers and other SBA management and training resource partners, conduct small business customer service surveys on an ongoing basis to assess the timeliness and quality of federal agency regulatory activities, and develop an outreach program to promote awareness of the National Ombudsman's activities; and authorized to be appropriated such sums as are necessary to carry out these additional responsibilities.

On March 19, 1996, the Senate passed, 100-0, S. 942 , the Small Business Regulatory Enforcement Fairness Act of 1996. The bill, which included provisions creating the Office of the National Ombudsman and 10 regional Small Business Regulatory Fairness Boards, was later incorporated into P.L. 104-121 , the Contract with America Advancement Act of 1996. The bill was based on recommendations of the 1995 White House Conference on Small Business.

The 1995 White House Conference on Small Business, like its 1980 and 1986 predecessors, was preceded by state conferences and regional meetings. The 1,904 delegates to the 1995 White House Conference on Small Business considered more than 150 policy recommendations forwarded from the regional meetings and six petitions. Through a series of votes, the delegates narrowed the list of policy recommendations to 60, which were sent to the President and Congress for consideration. Improving the Regulatory Flexibility Act was the 3 rd highest vote-getter (1,398 votes) at the conference and paperwork and regulatory reform was the 25 th highest vote-getter (1,046 votes). SBREFA addressed both recommendations. The Office of the National Ombudsman and the Small Business Regulatory Fairness Boards were created to address the recommendation concerning federal regulatory reform.

During Senate floor debate, the bill's proponents argued that the Office of the National Ombudsman was part of the bill's overall effort to create a "more cooperative and less punitive regulatory environment between agencies and small business that is less threatening and more solution-oriented than we have achieved in the past." They argued that it would "help small businesses get fair and legal treatment from the government if they have been treated unfairly" and "also assist small businesses in recovering legal fees as a result of unfair Government actions."

During floor debate, Senator John Glenn indicated that he supported the legislation but was concerned that the Office of the National Ombudsman and the Small Business Regulatory Fairness Boards could "end up creating a one-sided record of complaints that will distort the broad public mission of our agencies." He also indicated that federal agencies are not "the enemy when they carry out the laws passed by the people's representatives in Congress" and was "happy, at least, that in the final version of the bill before us, the Ombudsman will focus on general agency enforcement activity and not attempt to evaluate or rate the performance of individual agency personnel."

Senator Carl Levin also supported the legislation but argued that "the committee [on Small Business] should have taken more time to look at the pros and cons of placing an ombudsman in each regulatory agency, rather than relying on a lone ombudsman in the Small Business Administration to cover all agencies."

Initially, the Office of the National Ombudsman was located in Chicago and had a three-person staff. The first National Ombudsman (Peter Barca) was appointed in November 1996, and 50 small business owners were appointed to the 10 Small Business Regulatory Fairness Boards in that same month. The Small Business Regulatory Fairness Boards were all chartered by February 1997, and became operational in June 1997.

During its first year, the Office of the National Ombudsman also created its first small business appraisal form to receive small business comments, developed a structure to evaluate federal agency regulatory compliance and enforcement activities, instructed Small Business Fairness Board members about SBREFA, published a brochure, established its toll-free 1-888-REGFAIR telephone number, created a website, and held 10 public hearings across the nation "to enable small businesses to publicly bring forth their concerns of the regulatory enforcement structure." The Office of the National Ombudsman also received 735 telephone calls, had more than 56,000 hits on its website, and had 110 small businesses initiate an appraisal form. Fifty filed a completed appraisal form, and 33 of these forms were forwarded to federal agencies for responses.

To the dismay of some Members, the Office of the National Ombudsman did not issue a report card on federal agency compliance and enforcement practices in its first annual report to Congress, dated December 31, 1997, primarily because the National Ombudsman felt that the office had not had sufficient small business participation to grade the agencies' performance. Instead, the National Ombudsman provided synopses of 12 small business appraisal forms that illustrated what the National Ombudsman identified as "four common themes in the regulatory environment" that are faced by small businesses: "(1) agencies change their rules in the middle of the game; (2) agencies disregard the economic and other consequences of their actions on small businesses; (3) small businesses often get ensnarled in conflicting regulatory requirements when two federal agencies' jurisdiction overlap; and (4) small businesses fear federal agency retaliation."

In FY1998, the SBA provided the Office of the National Ombudsman its first annual budget (see Table 1 ). The SBA provided $500,000 ($351,000 was actually spent that year), sufficient to hire seven staff members (a writer, clerk or receptionist, agency investigator, attorney, public information officer, special assistant, and policy coordinator), and pay for travel, printing, and overhead expenses (photocopying, telephone line, postage, supplies, etc.).

Actual staffing levels have varied somewhat over the years. Including the National Ombudsman, there were 3 staff members in FY1997, 11 in FY1999, 9 in FY2000, 8 in FY2002, 7 from FY2007 to FY2014, 4 from FY2015 to FY2017, 6 in FY2018, and 5 in FY2019. As mentioned previously, the Office of the National Ombudsman has authorization for up to seven employees (including the National Ombudsman position, which is currently vacant).

The Office of the National Ombudsman's annual report to Congress subsequently included its mandated report card on federal agency regulatory performance, and that section of the report became the focus of congressional hearings, primarily because several federal agencies received relatively low grades, especially in the timeliness of their responses to small business comments. The National Ombudsman added a "best practices" section to the annual report to Congress "so one agency would know what the other agencies are doing and have that dialogue going on, and to encourage them" to do better.

Peter Barca left the National Ombudsman position in July 1999, leaving the position vacant until January 2000 when Gail A. McDonald was appointed the second National Ombudsman. Shortly after her appointment, the SBA's Administrator at that time, Aida Alvarez, decided to relocate the Office of the National Ombudsman from Chicago to SBA's headquarters in Washington, DC, reportedly in an effort to increase the office's "visibility" within the administration. The physical relocation was completed in August 2001.

In 2002, the Office of the National Ombudsman entered into a memorandum of understanding with the SBA Office of Advocacy in which both parties "pledged the highest degree of cooperation" and the Office of Advocacy (which focuses on issues related to the development of federal regulations and their impact on small businesses) agreed "to offer the services of its Regional Advocates in planning the Ombudsman's regional fairness board hearings."

In 2003, the third National Ombudsman, Michael L. Barrera, testified during a congressional hearing that "as public awareness of ONO [Office of the National Ombudsman] grows, cooperation among the small business community and Federal regulatory agencies is [also] growing." He noted that federal agency attendance at Small Business Regulatory Fairness Board hearings "has improved dramatically" and pointed out that the Internal Revenue Service, through its Taxpayer Advocate system, "now attends every RegFair Hearing and Roundtable conducted by ONO."

In 2006, the Office of the National Ombudsman renewed its previous memorandum of understanding with the SBA Office of Advocacy "to foster increased cooperation between the offices as they both work to provide a more small business friendly regulatory environment." Specifically, the Office of the National Ombudsman agreed to

receive comments and concerns regarding the impact of regulations on small business and the burden of regulatory compliance and federal regulatory enforcement; where appropriate, forward such comments to the Office of Advocacy; provide information and materials generated through the Office of the National Ombudsman's activities that are more appropriately within the Office of Advocacy's jurisdiction; and promote the SBA's programs and services, including the Office of Advocacy's regulatory and research role, through its various hearings and roundtables and "include the Office of Advocacy Regional Advocates in the planning and implementation of those activities as appropriate."

The SBA Office of Advocacy, which has a larger budget and more staff than the Office of the National Ombudsman, agreed to

provide material that may be distributed to participants in the Office of the National Ombudsman's Regulatory Fairness Program; and provide the National Ombudsman with regulatory complaints and other information generated by small business interests that are more appropriately within the Office of the National Ombudsman's jurisdiction.

The Office of Advocacy's FY2019 appropriation is $9.120 million and it has authorization for 52 full-time equivalent employees.

In recent years, Congress has focused increased attention on the Office of the National Ombudsman's efficacy in helping small businesses resolve their regulatory disputes with federal agencies, as opposed to focusing on how many small businesses contacted the office, submitted a formal comment, or participated in one of the office's hearings and roundtable discussions. For example, in 2016, the House Committee on Small Business noted that the National Ombudsman "has no investigative capacity nor authority to overrule, stop or delay a federal action" and asked the National Ombudsman to report back to the committee the percentage of cases that were referred to federal agencies for resolution in FY2014 (420) that resulted in a favorable outcome for the small businesses, "such as reduction of a penalty." The National Ombudsman reported that 41 of the 420 small businesses (about 10%) that had a regulatory compliance or enforcement dispute forwarded to a federal agency in FY2014 for resolution received a favorable outcome.

Current Organizational Structure and Funding

As noted previously, the Office of the National Ombudsman has authorization for seven employees (including the National Ombudsman position, which is vacant) and currently has five employees: a Deputy National Ombudsman, an administrative officer, an external outreach manager, and two case management specialists.

The 10 Small Business Regulatory Fairness Boards are required to meet at least annually to advise the National Ombudsman on matters related to federal agency small business regulatory activities, report substantiated instances of excessive federal enforcement actions against small businesses, and prior to publication, comment on the National Ombudsman's annual report to Congress.

The boards are composed of five volunteers who are an owner, operator, or officer of a small business. Board members are appointed by the SBA Administrator, after receiving the recommendations of the chair and ranking minority member of the House Committee on Small Business and the Senate Committee on Small Business and Entrepreneurship. No more than three board members may be of the same political party, they cannot be a federal officer or employee, in either the executive branch or Congress, and they serve at the pleasure of the SBA Administrator for terms of three years or less.

The boards are based in the SBA's 10 regions

Region 1 (serving Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont); Region 2 (serving New Jersey, New York, Puerto Rico, and the U.S. Virgin Islands); Region 3 (serving Delaware, Maryland, Pennsylvania, Virginia, West Virginia, and the District of Columbia); Region 4 (serving Alabama, Florida, Georgia, Kentucky, Mississippi, North Carolina, South Carolina, and Tennessee); Region 5 (serving Illinois, Indiana, Michigan, Minnesota, Ohio, and Wisconsin); Region 6 (serving Arkansas, Louisiana, New Mexico, Oklahoma, and Texas); Region 7 (serving Iowa, Kansas, Missouri, and Nebraska); Region 8 (serving Colorado, Montana, North Dakota, South Dakota, Utah, and Wyoming); Region 9 (serving Arizona, California, Hawaii, Nevada, and the territories of Guam and American Samoa); and Region 10 (serving Alaska, Idaho, Oregon, and Washington).

As shown in Table 1 , the SBA provided the Office of the National Ombudsman $1.313 million in FY2018, and an estimated $1.143 million in FY2019. The SBA has requested $1.438 million for FY2020.

Unlike the SBA's Office of Advocacy, which is also tasked with serving as an independent advocate for small businesses in the regulatory process (but primarily at the developmental stage), the Office of the National Ombudsman does not have its own funding account. The SBA funds the Office of the National Ombudsman through its salaries and expenses' executive direction subaccount. That account includes funding for the SBA's Office of the Administrator, Office of General Counsel, Office of Government Relations, Office of Hearings and Appeals, Office of Marketing and Communications, Office of Performance Management and Chief Financial Officer, and the National Ombudsman. The Office of Advocacy was also funded through that account, but Congress directed the SBA to provide the Office of Advocacy its own budgetary account in P.L. 111-240 , the Small Business Jobs Act of 2010, as a means to enhance the Office of Advocacy's independence from the SBA Administrator. To date, similar legislation has not been introduced to provide the Office of the National Ombudsman its own funding account within the SBA. Instead, ombudsman advocates have argued that ombudsman offices "should not have duties within the agency that might create a conflict with their responsibilities as a neutral, and their budgets should be publicly disclosed."

The Ombudsman's Regulatory Activities and Outreach Efforts

Small businesses that believe they have experienced excessive or unfair federal regulatory compliance or enforcement actions may file a formal comment with the Office of the National Ombudsman. The formal comment typically includes the following basic information and a signed consent form (SBA Form 1993) authorizing the Office of the National Ombudsman to pursue the matter with the federal agency:

a description of the specific action taken by the federal agency and the results of this action; the specific resolution sought; and any relevant documentation.

These comments may be filed online or in paper form, and commenters can receive information regarding the comment form or information about the Office of the National Ombudsman by calling the National Ombudsman's Regulatory Fairness Helpline at 888-REG-FAIR. In addition, small businesses may file comments "on-the-spot" at any of the Office of the National Ombudsman's regional hearings and roundtables.

Once a comment is submitted, a case management specialist reviews the case and any supporting documentation to ensure that the necessary authorization and other information are present. The case management specialist then determines how the Office of the National Ombudsman can best assist the small business, advises the small business of expected next steps, and, if the comment is to be forwarded to a federal agency, explains the parameters of the SBREFA review.

Comments forwarded to a federal agency include a request for "a prompt, high-level, responsive review of the matter reported." The federal agency is asked to consider the fairness of the case from a small business perspective and "to provide a practical, timely response that balances the spirit of the regulation with the specific circumstances of the small business." All comments are handled on a confidential, protected basis, and can be raised anonymously, if preferred by the small business.

The case management specialist then follows up with the federal agency and the small business as appropriate and communicates with the small business owners the actions taken to assist them.

In FY2018, the Office of the National Ombudsman assisted 354 small businesses, responded to numerous general inquiries, conducted 10 regional regulatory fairness roundtables across 5 of its regions, completed 118 outreach events, and initiated contact with 100 trade associations representing more than 2 million small business owners and SBA resource partners. The National Ombudsman also met with senior officials representing 27 federal agencies.

In addition, the National Ombudsman's annual report includes a report card providing letter grades (which can range from A to F) for each federal agency (and in several instances, for individual offices within the federal agency)

two grades rating the agency's responsiveness to small business concerns (the timeliness of the agency's response and the quality of the response); three grades rating the agency's compliance with SBREFA (the agency's nonretaliation policies against small business commenters, the provision of regulatory compliance assistance to small businesses, and the provision of notice to small businesses of their rights under SBREFA); and an overall grade.

In FY2017, 39 federal agencies and offices received an overall grade of A, 1 received an overall grade of B, 1 received an overall grade of C, and the Department of Veterans Affairs received an overall grade of D. No agencies received an overall grade of F.

Some Members and small business advocates have argued that the Office of the National Ombudsman should be provided additional resources. For example, on March 29, 2017, a small business advocate argued the following at a Senate Committee on Small Business and Entrepreneurship hearing:

Where the Office of Advocacy works on the front end of a development of a significant regulation, the Office of the National Ombudsman is charged with helping small businesses on the back end, with all regulation compliance. It serves as the conduit for small businesses to have their grievances about compliance problems, or other issues, with Federal agencies, heard directly by the agencies, in an effort for successful resolution. In this way, the Office of the National Ombudsman, and the agencies, can detect patterns of compliance problems so that the agencies can revisit rules for modification.

This important component of the rulemaking process is woefully underfunded. The Office of the National Ombudsman actually relies on volunteers to help get the message out about its vital small business services. It is, for the most part, unknown and underutilized. If Congress really wants to help small businesses with Federal regulations, invest more in the small business outreach, support, and feedback loop.

As mentioned previously, many small businesses that submit formal comments to the Office of the National Ombudsman do not receive a favorable outcome from the federal agency. Some Members and small business advocates have argued that the Office of the National Ombudsman should be provided additional authority to assist small businesses in their efforts to resolve their regulatory disputes with federal agencies. For example, during the 115 th Congress, S. 1146 , the Small Business Regulatory Relief Act of 2017, would have, among other provisions,

Others Members appear unconvinced that providing the Office of the National Ombudsman additional resources and/or authority is necessary. They have argued, for example, that the best way to reduce small business regulatory burden is not more government but less regulation.

The Office of the National Ombudsman is a small office with a relatively large mandate—to serve as an impartial liaison across federal agencies for small businesses that believe they have not been treated fairly in the enforcement of federal regulations. It faces several challenges.

First, the Office of the National Ombudsman is generally recognized as being an independent, impartial office, but it is housed within the SBA and remains subject to its influence through (1) its proximity to the agency and its organizational culture; (2) the budgetary process, which provides the SBA Administrator the authority to determine the Office of the National Ombudsman's budget; and (3) the appointment and removal process, which provides the SBA Administrator the authority to hire and fire the ombudsman. In addition, the sheer size of the SBA (more than 3,200 full-time employees and an annual budget of about $700 million) relative to the Office of the National Ombudsman, and the existence of the SBA's Office of Advocacy, which has a similar mission (but focused primarily on regulatory development as opposed to regulatory compliance and enforcement), makes it more difficult than would otherwise be the case for the Office of the National Ombudsman to be recognized by stakeholders as the definitive voice for small businesses in the regulatory process.

Second, the National Ombudsman has often had a relatively short tenure. The last two National Ombudsmans (Earl L. Gay and Nathan J. Miller) each served for about a year. The National Ombudsman has left office for various reasons, such as a change in Administration or for opportunities in the private sector. Frequent turnover can lead to continuity problems for the office.

Third, the Office of the National Ombudsman does not have the authority to compel federal agencies to undertake specific actions to resolve disputes. As a result, although its annual rating of federal agency responsiveness to small business concerns does provide it a means to exert some influence on federal agency actions, its role in resolving disputes is somewhat constrained.

Finally, the Office of the National Ombudsman's relatively limited budget and staffing level restricts its ability to engage in outreach activities that could increase small business awareness of its existence and services.


The Antiquities Act: History, Current Litigation, and Considerations for the 116th Congress

Summary: Summary

Summary: The Antiquities Act authorizes the President to declare, by public proclamation, historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest situated on federal lands as national monuments. The act also authorizes the President to reserve parcels of land surrounding the objects of historic or scientific interest, but requires that the amount of land reserved be confined to the smallest area compatible with the proper care and management of the objects to be protected. Since its enactment in 1906, Presidents have used the Antiquities Act to establish 158 monuments, reserving millions of acres of land in the process. Presidents have also modified existing monuments, whether by increasing or decreasing their size (or both), on more than 90 occasions.

Summary: Though most monument proclamations have been uncontroversial, some have spurred corrective legislative action and litigation. Congress has twice imposed geographic limitations on the President's authority under the Antiquities Act in response to proclamations reserving millions of acres of land in Wyoming and Alaska. Litigants have also challenged the President's authority to establish certain monuments, disputing whether the historic or scientific objects selected for preservation were encompassed by the act, as well as whether the amount of land reserved exceeded the smallest area necessary for the objects' preservation. Courts, however, have uniformly rejected these challenges and adopted a broad interpretation of the President's authority under the Antiquities Act.

Summary: No President has purported to revoke a national monument, but past Presidents have reduced the size of existing monuments on 18 occasions. In 2017, President Trump issued proclamations reducing the size of the Grand Staircase-Escalante National Monument and the Bears Ears National Monument. Various groups have sued to block these proclamations, arguing that the President exceeded his authority under the Antiquities Act. Because none of the prior proclamations diminishing monuments was challenged in court, these lawsuits offer the first opportunity for a court to decide whether the act empowers the President to diminish a national monument.

Summary: Those challenging President Trump's proclamations argue that the Antiquities Act's authorization for the President to "declare" national monuments and "reserve" surrounding lands does not include the distinct power to revoke or diminish an existing monument. They underscore this point by noting that, unlike the Antiquities Act, several contemporaneous public land laws expressly authorized the President to undo a prior reservation of land. The plaintiffs also highlight a number of 19th and early 20th century legal opinions from the executive branch concluding that the President lacks authority to undo a reservation of land absent express statutory authorization. Finally, the plaintiffs argue that the Federal Land Policy and Management Act of 1976 (FLPMA)—which prohibited the Secretary of the Interior from modifying or revoking a national monument established under the Antiquities Act—demonstrates Congress's intent to consolidate modification power in the legislature.

Summary: By contrast, the United States argues that the requirement that reserved land be "the smallest area compatible" with the preservation of the designated objects empowers the President to reduce the size of a monument when he determines that more land was reserved than necessary. The United States also contends that the Executive has implied authority to revisit prior discretionary decisions. Further, the United States argues that the President's authority to diminish monuments is confirmed by the 18 times past Presidents have done so and by several executive branch legal opinions that support this conclusion. Finally, the United States argues that FLPMA is irrelevant because that law prohibits the Secretary of the Interior, not the President, from diminishing monuments.

Summary: While the President's authority to diminish a national monument has been questioned, there appears to be no dispute that Congress has authority to do so, a power it has exercised before. Several Members of Congress have introduced legislation either codifying or reversing President Trump's proclamations or placing limits on the President's authority under the Antiquities Act going forward.

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. The act authorizes the President to declare, by public proclamation, historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest located on federal land as national monuments. 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." Though the Antiquities Act was enacted with the primary goal of preserving archaeological sites, it has also been frequently used to protect naturally occurring objects, such as the geological features within the Grand Canyon National Monument. Once a national monument is established, use of the lands and resources within the monument's boundaries are subject to the limitations specified in the proclamation itself and other sources of law, without need of congressional authorization. Since its enactment, Presidents have used the Antiquities Act to establish 158 national monuments, reserving millions of acres of land in the process, and to modify existing monuments more than 90 times.

Like many laws concerning federal lands, the Antiquities Act operates in the midst of an ongoing, and sometimes contentious, public policy debate regarding how to best reconcile the need to preserve natural resources and other objects located on public lands with the needs of the local communities affected by the limitations on land use that follow from the creation of a national monument. Though most monument proclamations have been uncontroversial, some have precipitated corrective legislation and litigation. In two instances, Congress passed legislation placing geographic limits on the President's authority to establish national monuments. Attempts to undo proclamations through litigation have been less successful, as courts have uniformly upheld challenged proclamations through a broad interpretation of the Antiquities Act.

The Antiquities Act has received renewed attention in recent years as a result of President Trump's December 2017 proclamations reducing the size of the Grand Staircase-Escalante National Monument and the Bears Ears National Monument. Various groups have challenged those proclamations in federal district court, arguing (among other things) that the Antiquities Act does not empower the President to diminish the size of national monuments. These cases will be the first time a court has had an opportunity to address whether the President has such authority.

This report begins by discussing the Antiquities Act's legislative history. It then provides an overview of the act's provisions before reviewing past presidential proclamations as well as judicial decisions and legislation related to certain monument proclamations. Finally, the report discusses the current litigation involving President Trump's proclamations diminishing the Grand Staircase-Escalante and Bears Ears monuments, with a focus on the parties' arguments addressing whether the Antiquities Act authorizes the President to diminish a national monument.

Legislative History of the Antiquities Act

Congress passed the Antiquities Act in 1906, and President Theodore Roosevelt signed it into law that same year. As this section discusses, this law's enactment marked the culmination of a multiyear effort to empower the federal government to take swift action to protect archaeological sites and other objects of historical and scientific value from destruction.

In the 1880s, a growing interest emerged in the prehistoric ruins and other archaeological sites located in the western United States. Prehistoric ruins were initially discovered by ranchers and other prospectors in Colorado, New Mexico, and Arizona. Word of these discoveries spread rapidly, leading to extensive and unregulated excavation of these sites by antiquity hunters from around the world. Amateur excavators removed large quantities of artifacts from prehistoric sites and sold them to exhibitors, museum curators, and private collectors, often causing extensive damage to the ruins during the excavation process. These excavations continued throughout the 1880s and 1890s, leading one observer to bemoan that "[a] commercial spirit is leading to careless excavations for objects to sell, and walls are ruthlessly overthrown, buildings torn down in hope of a few dollars' gain."

During this period, federal law did not provide general protection against the excavation or destruction of historic sites located on public lands or require a permit before excavation could commence. Nonetheless, some limited protections did apply. First, the General Land Office was authorized to "withdraw specific tracts of land from sale or entry for a temporary period," a power it exercised with increasing frequency as the threat to historic sites grew. Second, through the Forest Reserve Act of 1891, the President had authority to "create permanent forest reserves by executive proclamation." However, though lands within forest reserves were "withdrawn from disposition and entry under the homestead and other laws, they were not protected from other forms of development, especially mining." Thus, none of these laws authorized the President to make permanent and comprehensive reservations for the purpose of preservation.

With the need for federal intervention apparent, Congress set out to empower the President to expeditiously protect historic sites from further destruction. Legislation to protect the nation's antiquities was first introduced in Congress in 1900, though the various proposals differed in how they defined the objects to be protected and how the objects were to be designated. The first bill, introduced by Representative Jonathan P. Dolliver of Iowa, would have authorized the President to designate as a park or reservation "any prehistoric or primitive works, monuments, cliff dwellings, cave dwellings, cemeteries, graves, mounds, forts, or any other work of prehistoric or primitive man" in addition to "any natural formation of scientific or scenic value or interest, or natural wonder or curiosity on the public domain." Under this bill, the President would have had authority to designate surrounding land needed for such preservation "as [the President] may deem necessary for the proper preservation or suitable enjoyment of said reservation," and the Secretary of the Interior would have been empowered to acquire private lands or interests within reservation areas. A proposal supported by the Department of the Interior that same year would have similarly vested protective powers in the President, but it defined the objects to be preserved more generally than Representative Dolliver's proposal, protecting "tracts of public land" based on their "scenic beauty, natural wonders or curiosities, ancient ruins or relics, or other objects of scientific or historic interest, or springs of medicinal or other properties." Neither of these proposals limited the amount of land the President could reserve.

In contrast to these proposals, a bill introduced that same Congress by Representative John Shafroth of Colorado and reported out of the House Committee on the Public Lands provided much narrower authority to the executive branch. That legislation would have authorized the Secretary of the Interior—rather than the President—to "reserve from sale, entry, and settlement" any public lands containing "monuments, cliff dwellings, cemeteries, graves, mounds, forts, or any other work of prehistoric, primitive, or aboriginal man," but it would have limited the Secretary to creating monuments in Colorado, Wyoming, and the then territories of Arizona and New Mexico, with no monument to exceed 320 acres.

None of these proposals passed either chamber of Congress. In the following Congress, the Senate did pass legislation aimed at protecting antiquities. That legislation would have authorized the Secretary of the Interior to make "temporary withdrawals" of land to protect "historic and prehistoric ruins, monuments, archaeological objects, and other antiquities," but only to the extent "necessary for the preservation" of those objects. Permanent withdrawals would have been authorized for "ruins and antiquities of special importance," but the amount of land reserved could not "exceed[] six hundred and forty acres in any one place."

As these proposals were being considered, some Members of Congress sought to limit the total amount of land the Executive could withdraw. During a hearing before the House Committee on the Public Lands on the Senate-passed legislation, Delegate Bernard Rodey of New Mexico expressed his desire that the bill contain "some limit upon the amount of withdrawals that [the Executive] could make," noting that much of the land in New Mexico was already withdrawn from public use and that many archaeological sites in need of preservation were located within this territory. Delegate Rodey worried that the Executive could evade an acreage limitation—such as the 640-acre limitation in the Senate-passed bill—by creating multiple 640-acre tracts. Other committee members and witnesses, however, concluded that the Executive was "not . . . likely to" evade an acreage limitation in this way and that a 640-acre limitation "would prevent very extensive reservations in any one State." In response to Delegate Rodey's concerns, Edgar Lee Hewett—a prominent archaeologist who was closely involved in developing the Antiquities Act —suggested that the President's discretion could be sufficiently checked by language stating "that positively no more land shall be withdrawn than is necessary for the purpose." The House Committee on the Public Lands reported the Senate bill to the full House, but the legislation was opposed by the Smithsonian Institution and ultimately did not win passage.

After more than half a decade of debate, the 59th Congress passed the Antiquities Act in 1906. Legislation drafted by Edgar Lee Hewett was introduced in both chambers of Congress in 1906. This proposal authorized the President (rather than the Secretary of the Interior) to issue "public proclamation[s]" to protect "historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest" on federal land as "national monuments." This proposal also limited the amount of land reserved for each monument "to the smallest area compatible with the proper care and management of the objects to be protected[.]"

The Senate bill was passed by voice vote in that chamber on May 24, 1906. During the House debate, Representative John Lacey—chairman of the House Committee on the Public Lands—responded to an inquiry from Representative John Stephens of Texas as to "[h]ow much land will be taken off the market in the Western States by the passage of the bill?" Representative Stephens was particularly concerned that the bill provided authority similar to the Forest Reserve Act of 1891, under which Presidents had set aside tens of millions of acres of land. "Not very much," was Representative Lacey's reply, pointing to the language in the proposed legislation requiring that the amount of land reserved be "the smallest area necessary" to preserve designated objects. This assurance mirrored that found in the House report on the bill, which explained that "[t]he bill proposes to create small reservations reserving only so much land as may be absolutely necessary for the preservation of these interesting relics of prehistoric times."

The House passed the Senate bill on June 5, unanimously and without amendment. President Theodore Roosevelt signed the bill into law on June 8, 1906.

The Antiquities Act consists of four sections. In its first section, the act imposes a fine or imprisonment for not more than 90 days (or both) on "any person who shall appropriate, excavate, injure, or destroy any historic or prehistoric ruin or monument, or any object of antiquity, situated on lands owned or controlled by the Government of the United States." As written, this section prohibits damaging objects of antiquity, regardless of whether the President had established a monument under the authority conferred by Section 2 of the act. The penalties of this section apply in addition to general federal prohibitions on the misappropriation of federal property.

The second section—the core of the act—authorizes the President "in his discretion" "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." In addition to protecting the "objects" themselves, the act also authorizes the President to "reserve . . . parcels of land" to be part of the monuments, but requires that those parcels be "confined to the smallest area compatible with the proper care and management of the objects to be protected."

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 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). As a result, presidential proclamations under the Antiquities Act offer a more expeditious means of preserving federal lands than other environmental statutes.

The act also does not specify what effect the establishment of a national monument has on the use of the objects and lands encompassed within the monument, other than by prohibiting the appropriation, excavation, injury, or destruction of "historic or prehistoric ruin[s]," "monument[s]," or other "object[s] of antiquity." Instead, limitations on the use of lands and resources within a monument follow from a variety of other sources. The Mineral Leasing Act prohibits new mineral leasing within national monuments, and a presidential proclamation may impose additional restrictions on mining and mineral claims, as well as oil and gas leases, timber harvesting, and hunting, fishing, and grazing. Use restrictions may also be found in the management plans developed by the agency responsible for overseeing a given monument. Monuments established in the last 50 years have also made accommodations for the continued exercise of valid rights existing at the time of the monument's creation.

The act is also silent on which federal agency is responsible for managing a national monument once established. For much of the act's history, the National Park Service was most often selected for this task. Indeed, every monument from 1933 to 1978 was assigned to the National Park Service's care. However, some Presidents have departed from this practice and tasked other agencies (such as the Bureau of Land Management) with this responsibility.

In its last sections, the act authorizes the executive branch to issue permits for "the examination of ruins, the excavation of archaeological sites, and the gathering of objects of antiquity" for the benefit of scientific or educational institutions in order to "increas[e] the knowledge of such objects" and for their "permanent preservation in public museums." The act also authorizes the responsible executive departments to issue "uniform rules and regulations" to effectuate the act's provisions.

President Theodore Roosevelt did not tarry long before using his new authority. On September 24, 1906, President Roosevelt issued his first proclamation under the Antiquities Act to protect Devil's Tower—a "lofty isolated rock" and "natural wonder" located in Wyoming —with a reservation of land totaling 1,152 acres. Most of President Roosevelt's initial designations similarly adhered to Representative Lacey's predication that "[n]ot very much" land would be reserved through presidential proclamations under the act. President Roosevelt's second designation in December 1906 (El Morro in New Mexico) consisted of 160 acres and his third (Montezuma Castle in Arizona, also in December 1906) was 161 acres. But it did not take long for the size of monuments to increase. As part of his establishment of the Chaco Canyon National Monument in March 1907, President Roosevelt reserved 20,629 acres, while his creation of the Petrified Forest National Monument in Arizona set aside 60,776 acres. Yet these designations were dwarfed by his establishment of the 808,120-acre Grand Canyon National Monument, by far the largest of President Roosevelt's monuments. All told, President Roosevelt designated 18 monuments in his final years in office.

Over the last century, Presidents have utilized the Antiquities Act to varying degrees. Presidents from Taft through Eisenhower established or enlarged 10 or more monuments each, with President Franklin Roosevelt leading the pack with 30. Presidents after Eisenhower used the act to a lesser extent. Presidents Kennedy and Johnson each created or enlarged less than ten monuments, President Ford enlarged two, and Presidents Nixon, Reagan, and George H. W. Bush created or enlarged none. President Carter, however, created or enlarged 17 monuments.

The Antiquities Act's three-term dormancy ended with the election of President Clinton. During his two terms in office, President Clinton established 19 new monuments and enlarged three more. These new monuments included the 1.7 million-acre Grand Staircase-Escalante National Monument in Utah. Following a decline in use under President George W. Bush, who created six national monuments, President Obama exceeded all his predecessors by establishing 29 new monuments and enlarging another five. Among these was the 1.35 million-acre Bears Ears monument in Utah, designated in the last week of President Obama's presidency. To date, President Trump has established one national monument, the Camp Nelson National Monument in Kentucky.

All told, Presidents Theodore Roosevelt through Trump have used the Antiquities Act to establish a total of 158 national monuments. These presidents also issued proclamations modifying existing monuments over 90 times. Though many of these monuments have retained their status as national monuments, Congress has exercised its authority under the Property Clause to alter certain monument designations, whether by incorporating the monument (or portions thereof) into the National Park System, transferring the monuments to state control, or abolishing the monument outright.

No President has purported to abolish a national monument, but past Presidents have reduced the size of monuments on 18 separate occasions. President Franklin Roosevelt took such action four times during his presidency, while President Eisenhower did so on six occasions. Presidents Taft, Wilson, Coolidge, Truman, and Kennedy each reduced three or fewer monuments. In some instances, Presidents have simultaneously removed lands from a monument reservation while adding others. No President after Kennedy diminished an existing monument until President Trump's issuance of proclamations in December 2017 diminishing the Grand Staircase-Escalante National Monument by 700,000 acres and the Bears Ears National Monument by 1.15 million acres.

Legislation and Litigation in Response to Proclamations

Most monument declarations have not generated significant debate. Over the years, however, a few monuments have proved controversial, resulting in corrective legislation, litigation, or both. In two instances, Congress imposed restrictions on the President's authority to establish national monuments in Wyoming and Alaska, and in some cases it has abolished monuments altogether. But through all this, Congress has not fundamentally altered the authority of the President under the Antiquities Act. Courts also have broadly interpreted the President's authority to designate prehistoric ruins and other man-made structures (in addition to naturally occurring objections of scientific interest) and to determine the amount of lands needed for their preservation. Finally, though the Supreme Court has not directly addressed the scope of judicial review of a presidential proclamation, courts that have addressed the issue have concluded that such review is deferential.

The first lawsuit implicating an Antiquities Act proclamation involved President Theodore Roosevelt's 1908 creation of the Grand Canyon National Monument, which reserved the land designated as part of that monument "subject to all prior valid adverse claims." A businessman and his associates continued to conduct mining operations within the bounds of the monument, arguing first that the President had "no authority" to establish the monument because it was not the type of object encompassed by the act, and second that they had a valid and preexisting "lode mining claim." In its 1920 decision in Cameron v. United States , the Supreme Court rejected this challenge. Recognizing the Grand Canyon as "the greatest eroded canyon in the United States" and "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." Thus, the Court concluded that the Grand Canyon was an "object[] of unusual scientific interest" for purposes of the Antiquities Act.

President Franklin Roosevelt's 1943 establishment of the Jackson Hole National Monument—a 221,610-acre monument in Wyoming — generated both litigation and legislation. Litigants sued in federal district court in Wyoming to invalidate the proclamation, claiming (among other things) that the reserved land "contain[ed] no objects of an historic or scientific interest" and was "not confined to the smallest area compatible" with the preservation of the monument. The court concluded first that it had "limited jurisdiction to investigate and determine whether or not the Proclamation" was lawful. Though acknowledging that a court could void a proclamation lacking any evidentiary support, the court concluded that it lacked authority to determine the legality of the monument based on its own assessment of the preponderance of the evidence. The court thus held that its review was limited only to assessing whether the government had put forward "substantial evidence" to sustain the proclamation. Relying on that standard, the court upheld the Jackson Hole National Monument. It found that the United States' evidence of "trails and historic spots in connection with the early trappings and hunting of animals" and "structures of glacial formation and peculiar mineral deposits and [indigenous] plant life" was sufficient to sustain the proclamation with respect to both the nature of the objects designated and the amount of lands reserved. In so doing, the court placed the "burden . . . on the Congress to pass such remedial legislation as may obviate any injustice brought about" by the proclamation.

Congress's response to the Jackson Hole monument has been described as "perhaps the most successful congressional opposition to a monument proclamation." Extensive hearings were held by committees in both chambers. The House Committee on the Public Lands emphasized the economic injury that the reservation of land would inflict on the local communities, including by reducing the tax base for local governments and "destroying the cattle business." The Senate Committee on Public Lands and Surveys went further, and concluded that the Jackson Hole proclamation "disregarded" the Antiquities Act's requirement that reserved lands be "confined to the smallest area" necessary for preservation. 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."

Congress ultimately approved legislation abolishing the Jackson Hole monument, but President Roosevelt pocket-vetoed that bill. Responding in kind, Congress refused to fund the Jackson Hole monument for the next seven years. The fate of Jackson Hole was finally resolved when President Truman signed legislation to consolidate it with the existing Grand Teton National Park. But Congress further restricted the President's authority under the Antiquities Act by including a provision in this legislation that amended the Antiquities Act to prohibit the President from establishing monuments within Wyoming.

Though the Antiquities Act authorizes the President to set aside "lands," the Supreme Court in the 1970s concluded that the act authorizes the preservation of waters and submerged lands as well. In Cappaert v. United States , the United States sought to prevent ranchers, the Cappaerts, from pumping groundwater on their ranch that was two and one-half miles from an underground pool known as "Devil's Hole," located within a 40-acre plot of land within the Death Valley National Monument. The Cappaerts' use of groundwater, the United States argued, reduced the water level of Devil's Hole and threatened the survival of a rare desert fish—the Devil's Hole pupfish—living within. The United States argued that this pumping was prohibited because the proclamation adding Devil's Hole to the Death Valley National Monument also reserved the groundwater feeding the pool. Relying on the Antiquities Act's legislative history, the Cappaerts argued that the inclusion of Devil's Hole in the Death Valley monument was unlawful because the act allows only the protection of land, not water or animals. In any event, the Cappaerts argued, the inclusion of thousands of square miles of groundwater for the preservation of the 40-acre Devil's Hole violated the requirement that land reservations "be confined to the smallest area compatible" with the preservation of the designated objects.

The Supreme Court rejected the Cappaerts' arguments in a few brief sentences. Relying on Cameron , the Court concluded that the underground pool, and the endangered pupfish living within, were objects of scientific interest and thus appropriate subjects of protection under the Antiquities Act. Two years later, the Supreme Court in United States v. California reaffirmed that the Antiquities Act allows the President to withdraw bodies of water, as well as plots of land, when it upheld President Truman's expansion of the Channel Island National Monument.

In 1980, Congress also imposed an additional territorial restriction on the President's authority under the Antiquities Act, this time in response to President Carter's creation of numerous monuments in Alaska. In 1971, Congress passed and President Nixon signed the Alaska Native Claims Settlement Act, which authorized the Secretary of the Interior to propose up to 80 million acres for preservation and gave Congress five years to approve or disapprove the recommendation. During that five-year window, the lands would be temporarily withdrawn. But when it became clear that Congress would not act before this deadline, President Carter invoked his authority under the Antiquities Act to establish 17 new or expanded monuments within Alaska, totaling 56 million acres.

These monument proclamations "sparked bitter opposition in Alaska," leading to protests throughout the state. Responding to these protests, and with the twin goals of securing environmental protection and providing for the economic needs of Alaskans, Congress passed and the President signed the Alaska National Interest Lands Conservation Act (ANILCA). 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 President Carter's monuments. But to avoid a repeat of the controversy that surrounded President Carter's proclamations, Congress again limited the President's authority under the Antiquities Act, providing that "future executive branch action which withdraws more than five thousand acres, in the aggregate, of public lands within the State of Alaska" will not be "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."

Like the Jackson Hole monument, several of President Carter's Alaska monuments were challenged in federal district court. The district court, while recognizing that the Antiquities Act limits the President's discretion as to which objects may be protected and how much land may be included in a monument, rejected the plaintiffs' argument that the Antiquities Act does not apply to naturally occurring objects of scientific interest. The court observed that prior Presidents had repeatedly used the Antiquities Act for this purpose and Congress had not amended the Antiquities Act in response, thus indicating Congress's tacit approval of the practice. No appeal was taken from the district court's decision in this case.

Litigation over the Antiquities Act abated during the 1980s and early 1990s, as President Reagan and President H. W. Bush did not use the Antiquities Act to establish national monuments. That hiatus came to an end with challenges to several of President Clinton's monument designations, including the Grand Staircase-Escalante monument in Utah and the Giant Sequoia monument in California. The plaintiffs in two cases— Mountain States Legal Foundation v. Bush and Tulare County v. Bush —argued (among other things) that President Clinton exceeded his authority under the Antiquities Act because that law 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.

The U.S. Court of Appeals for the D.C. Circuit rejected these arguments. The court of appeals disposed of the first objection based on the Supreme Court's holdings in Cameron and Cappaert . "[T]he President's Antiquities Act authority," the court explained, "is not limited to protecting only archaeological sites." The court of appeals then decided that it had no occasion to resolve the second argument—that the reserved land was not the smallest area compatible with the preservation of the objects—because it determined that the plaintiffs failed to meet their burden of "identify[ing] the improperly designated lands with sufficient particularity to state a claim."

Notably, the district court in each of these cases dismissed the suits by concluding that judicial review of proclamations under the Antiquities Act is limited "to the face of the Proclamation," thus prohibiting courts from reviewing "the President's determinations and factual findings." The D.C. Circuit, however, declined to "decide the availability or scope of judicial review of a Presidential Proclamation . . . under the Antiquities Act," based on its conclusion that the plaintiffs had failed to allege facts which could plausibly show noncompliance with the Antiquities Act. At the same time, the court of appeals suggested that judicial review of an Antiquities Act proclamation would be appropriate to the extent of ensuring that the President acted within his statutory authority. Relying on Cappaert and Cameron , the D.C. Circuit explained "that [judicial] review is available to ensure that the Proclamations are consistent with constitutional principles and that the President has not exceeded his statutory authority."

Though the D.C. Circuit in Mountain States and Tulare did not purport to definitively resolve the scope of judicial review of a monument proclamation, a federal district court in Utah Association of Counties v. Bush did. This case involved a challenge to President Clinton's designation of the Grand Staircase-Escalante monument, with the plaintiffs taking the view that the President exceeded his authority under the Antiquities Act by "fail[ing] to designate the requisite objects of historic or scientific value" and "not limit[ing] the size of the monument to the 'smallest area' necessary to preserve the objects." The district court, however, declined to engage in an in-depth review of these claims, concluding instead that because the Antiquities Act commits the creation of monuments to the President's discretion, judicial review of those proclamations is limited to "ascertaining that the President in fact invoked his powers under the Antiquities Act"—that is, that he "considered the principles that Congress required him to consider." Under this deferential standard, the court rejected the plaintiffs' claims because it was "evident from the language of the Proclamation" that President Clinton had "considered the principles that Congress required him to consider."

The most recent case to address the scope of presidential power under the Antiquities Act involved a challenge to President Obama's establishment of the 4,913-square mile Northeast Canyons and Seamounts Marine National Monument. As its name suggests, this monument is composed of "underwater canyons and mountains, and the ecosystems around them," sitting approximately 130 miles off of the coast of Massachusetts in an area of water known as the Exclusive Economic Zone. Those challenging the designation argued that the term "lands" in the Antiquities Act does not encompass submerged lands and, even if it does, that the amount of "land" reserved was not the smallest necessary for preserving the designated objects. In addition, the plaintiffs contended that the monument proclamation was invalid because the reserved waters were not completely controlled by the United States, thus violating the requirement in the Antiquities Act that reserved lands be "owned or controlled by the Federal Government."

The district court began with the scope of its review. Relying on the Supreme Court and D.C. Circuit cases discussed above, the court distinguished between two types of challenges to a presidential proclamation. The first category involves those "that can be judged on the face of the proclamation," such as the argument in Cappaert that only archaeological sites qualify as objects of historic or scientific interest under the act. When a challenge is premised on a disputed question of law, judicial review is conducted without deference. The district court distinguished this category of challenge from those "requir[ing] some factual development," such as the argument raised in Mountain States and Tulare that the amount of land reserved was not "the smallest area compatible with the proper care and management of the objects to be protected." Though recognizing that "[t]he availability of judicial review of this category of claims . . . stands on shakier ground," the court relied on Mountain States and Tulare to conclude that a plaintiff asserting such a challenge must at least "offer plausible and detailed factual allegations that the President acted beyond the boundaries of authority that Congress set."

With this framework, the district court rejected the plaintiffs' challenges. As to their first argument, the court relied on Capp a e rt and California to conclude that the Antiquities Act authorizes the President to reserve submerged lands and the water associated with them. As to the second argument, the district court recognized that it fell within the second category of challenges, thus potentially limiting the scope of the court's review. But, as in Mountain States and Tulare , the district court concluded that it did not need to resolve the scope of judicial review because it found that the plaintiffs failed to offer specific, nonconclusory factual allegations "establishing a problem with [the monument's] boundaries."

The court also rejected the plaintiffs' argument that President Obama lacked authority under the Antiquities Act to establish the monument because the United States did not have "complete control" over the Exclusive Economic Zone. The court first concluded that the Antiquities Act does not require that the United States have complete control over the relevant area, only that the United States "'exercise directing or restraining influence.'" Applying this definition, the court concluded that the United States' "broad sovereign authority" to regulate and manage the Exclusive Economic Zone for conservation and other purposes—a level of influence unrivaled by any other sovereign—established the federal control necessary under the Antiquities Act.

In summary, Courts have consistently interpreted the Antiquities Act as giving the President broad authority to protect objects of historic and scientific interest and to determine the amount of lands needed for their preservation. Despite repeated arguments to the contrary, courts have uniformly concluded that the Antiquities Act is not limited to the protection of prehistoric ruins and other man-made structures, but encompasses naturally occurring objects of scientific interest, including bodies of water and submerged lands. And, though it has received less judicial attention, at least one court has held that the United States need not have absolute control over the lands (or waters) at issue in order for them to fall within the ambit of the Antiquities Act. However, the scope of judicial review of a monument proclamation has not been settled. Though courts appear to acknowledge that review of a presidential proclamation is deferential, particularly with respect to factual and discretionary determinations, they have not definitively decided what amount of review is appropriate.

Presidential Authority to Diminish Monuments

The President has clear authority under the Antiquities Act to establish national monuments. Less clear, however, is the President's authority to diminish a previously established monument or to abolish a monument altogether. As already discussed, several Presidents in the early and mid-20th century reduced the size of existing monuments, but none of those modifications was challenged in court, thus leaving the lawfulness of that practice unresolved.

That may soon change. On December 4, 2017, President Trump issued two proclamations modifying the Grand Staircase-Escalante National Monument (established by President Clinton) and the Bears Ears National Monument (established by President Obama). This was the first time since President Kennedy that a President has diminished a national monument. President Trump's proclamations explained that each of the monuments contained objects that were "not . . . of any unique or distinctive scientific or historic significance" and were not in danger of being damaged or destroyed. The proclamations explained that other federal laws enacted after the Antiquities Act's passage protected many of these objects, such as the Archaeological Resources Protection Act and the Endangered Species Act. 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." All said, President Trump's proclamations reduced the Grand Staircase-Escalante monument from 1.7 million acres to 1 million acres and the Bears Ears monument from 1.35 million acres to 228,784 million acres.

President Trump's proclamations attracted significant attention, leading many scholars to take a renewed look at presidential authority under the Antiquities Act. These proclamations have also been challenged in court, and those cases are now pending in the U.S. District Court for the District of Columbia.

As discussed below, the plaintiffs in these cases have raised multiple arguments to oppose the proclamations. First, the plaintiffs argue that the Antiquities Act does not authorize the President to abolish or diminish monuments once established. Second, the plaintiffs contend that, absent statutory authorization, President Trump's proclamations exceed his authority under the Constitution and conflict with Congress's constitutional power to regulate public lands. Third, and finally, some of the plaintiffs have brought a claim under the APA against the Secretary of the Interior and other federal officials, arguing that because President Trump's proclamations are unauthorized, these officials will be acting unlawfully in failing to abide by the original proclamations issued by President Clinton and President Obama. The United States contests the plaintiffs' standing to sue, contends that judicial review of Presidential proclamations is limited in scope, and argues that the plaintiffs' arguments are meritless in any event. The remainder of this report discusses the central arguments made by the plaintiffs and the United States in this litigation.

The parties advance competing interpretations of the Antiquities Act. The plaintiffs contend that the President's authority under the act is limited to the express grants of authority in the text itself, namely, the power to "declare" monuments and to "reserve" surrounding lands—neither of which includes or implies the distinct power to diminish or revoke a monument. "In ordinary parlance," the plaintiffs argue, "the phrases to 'declare national monuments' and to 'revoke' or 'shrink' national monuments are polar opposites[.]" Under this reading, the Antiquities Act authorizes the President to create national monuments in order to provide for the expeditious protection of objects of historical and scientific interest, but leaves with Congress the authority to modify monuments once established.

The plaintiffs point to a number of contemporaneous statutes to support this reading, principally the Forest Service Organic Act of 1897, the Reclamation Act of 1902, and the Pickett Act. Because these statutes contain express grants of authority to the President to modify or otherwise alter an initial reservation of public lands, the plaintiffs argue that the absence of similar language in the Antiquities Act implies the absence of similar authority. In particular, the plaintiffs note that the Forest Reserve Act of 1891 authorized the President to "set apart and reserve . . . public land bearing forests" and to "declare the establishment of such reservations and the limits thereof," but did not also include authorization to revoke or modify a reservation once made. After President Cleveland and several Members of Congress expressed the view that the Forest Reserve Act did not authorize the President to alter an existing reservation, Congress passed the Forest Service Organic Act to fill that gap. That law expressly authorized the President to "revoke, modify, or suspend" existing forest reservations in order to "remove any doubt" regarding the President's authority to do so. Having just gone to the trouble of expressly authorizing the President to modify a prior land reservation, the plaintiffs argue that it "belies logic" that Congress would have intended the Antiquities Act to confer this authority sub silentio . And the plaintiffs highlight the fact that Representative Lacey—one of the primary supporters of the Antiquities Act—stated that the Forest Reserve Act did not authorize the President to alter existing reservations. The plaintiffs also point to the Reclamation Act of 1902—authorizing the Secretary of the Interior to "withdraw . . . lands" and "restore to public entry any of the lands so withdrawn" —and the Pickett Act of 1910—providing that lands withdrawn by the President will remain reserved "until revoked by him or by an Act of Congress" —to show that when Congress intends to authorize the President to alter a reservation of federal land, it confers that authority expressly. Finally, in addition to these laws, the plaintiffs identify other "near-contemporaneous statutes that expressly include language regarding modification or revocation of withdrawn land."

By contrast, the United States argues that the Antiquities Act does authorize the President to modify a previously established monument. The United States places significant weight on the act's requirement that the area of land reserved "shall be confined to the smallest area compatible" for preserving the monument. That language, the United States argues, imposes a continuing obligation that cannot be met without the accompanying authority to reduce a monument when it is later determined that excess lands were included in the reservation. Moreover, the United States asserts that 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.'" According to the United States, "[n]umerous statutes authorize various Executive Branch officers to regulate, administer, and make decisions, without expressly saying that those decisions can be repealed or modified." The Antiquities Act is, in the United States' view, no exception.

Finally, the United States contests the plaintiffs' argument that contemporaneous public land laws imply the absence of modification authority in the Antiquities Act. With respect to the Pickett Act, the United States notes that this law provided that "withdrawals or reservations shall remain in force until revoked by [the President] or by an act of Congress ." Given that Congress has authority under the Property Clause of the Constitution to dispose of federal law as it sees fit, the United States argues that this language must be read as simply acknowledging existing authority vested in both Congress and the President. As for the Forest Service Organic Act, the United States contends that the legislative record shows mixed opinions among Members of Congress on whether the President had authority under that law to modify existing reservations. Thus, the United States contends that this law's inclusion of language authorizing the President to alter reservations does not reflect a congressional consensus that the President did not have this power already, but merely shows that Congress took a belt-and-suspenders approach in order to (in the words of the statute) "remove any doubt" on this question.

Noting that historical practice may inform a court's understanding of executive power, the United States argues that the long-standing practice of executive monument modification and congressional acquiescence in this practice shows that the President has authority under the Antiquities Act to modify existing monuments.

The United States first points to the fact that past Presidents have reduced the size of national monuments a total of 18 times, including President Taft's reduction of the Petrified Forest National Monument "[o]nly five years after passage of the Antiquities Act." Though Congress was no doubt aware of these modifications, the United States observes that Congress never passed legislation disapproving this practice, even as Congress did amend the Antiquities Act after President Franklin Roosevelt's creation of the Jackson Hole National Monument to prohibit the establishment of future monuments in Wyoming.

The United States also relies on various legal opinions from the executive branch to bolster its argument that Congress has acquiesced in an executive assertion of authority to diminish monuments. In a series of opinions issued in 1915, 1935, and 1947, the Department of the Interior concluded that the President has authority under the Antiquities Act to reduce the size of existing monuments. These opinions identified two sources for that power. First, the Department of the Interior concluded that the President had an implied power to undo reservations or withdrawals of public land. For this, the Department of the Interior relied on the Supreme Court's 1915 decision in United States v. Midwest Oil , which held that Congress had implicitly delegated authority to the President to withdraw or reserve lands from public use by acquiescing in the Executive's "long-continued practice" of making such withdrawals and reservations. From this principle, the Department of the Interior concluded that the President had acquired an implied power to diminish the size of national monuments through congressional acquiescence in this practice, as well as the Executive's practice of reducing Indian reservations established by executive order pursuant to statutes that, like the Antiquities Act, did not expressly authorize modification. Second, in opinions from 1935 and 1947, the Department of the Interior argued for presidential modification authority based on the language in the Antiquities Act requiring that lands reserved be "the smallest area compatible" for the preservation of the designated objects.

The plaintiffs contest the United States' reliance on congressional and executive practice. While noting that "past practice does not, by itself, create power," the plaintiffs further argue that history does not show the "systematic, unbroken, executive practice" "long pursued to the knowledge of Congress and never before questioned" that is necessary to support the United States' acquiescence argument. The plaintiffs note that even during the time when several Presidents were reducing monuments, various departments within the executive branch issued opinions concluding that the President does not have implied authority to undo a reservation of land. Thus, in a 1924 opinion, the Department of the Interior concluded that the President did not have authority to modify a monument because a monument once established "becomes a fixed reservation subject to restoration to the public domain only by legislative act." This view was reiterated in a 1932 opinion from the Department of the Interior.

The U.S. Attorney General also issued opinions on this question, though the one opinion to address the scope of presidential authority under the Antiquities Act left the issue of monument modification unresolved. In a 1938 opinion, Attorney General Homer Cummings considered whether the President has authority under the Antiquities Act to abolish the Castle Pinckney National Monument. Noting that Presidents had "from time to time . . . diminished the area of national monuments . . . by removing or excluding lands therefrom," the Attorney General concluded that "[the President's] power so to confine that area" does not include "the power to abolish a monument entirely." In support of this conclusion, the 1938 opinion relied on 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. "The grant of power to execute a trust, even discretionally," the Attorney General argued, "by no means implies the further power to undo it when it has been completed."

Both the United States and the plaintiffs maintain that the 1938 Attorney General opinion supports their position. Though stating that it agrees with the 1938 Attorney General opinion with respect to monument abolition , the United States asserts that this opinion supports the existence of authority to modify monuments through its acknowledgment that prior Presidents had done so and through its reliance on the Antiquities Act's requirement that reservations be limited to the smallest area necessary. The plaintiffs, by contrast, argue that the same logic that led the Attorney General to conclude that the Antiquities Act does not confer authority to abolish monuments shows that the President also lacks authority to modify monuments.

The plaintiffs also argue that the United States' claim of an unbroken assertion of, and congressional acquiescence in, executive authority to diminish national monuments is undermined by the numerous instances in which the executive branch itself sought statutory authorization to reduce existing monuments—requests that Congress uniformly denied. For example, the Secretary of the Interior in 1925—the year after that department issued an opinion disclaiming presidential modification authority —sent a letter to Congress requesting that it pass legislation to provide this authorization. Though legislation was introduced in both chambers to accomplish this end, neither became law. In fact, only a few months earlier the Department of the Interior had asked Congress to reduce the Casa Grande Ruins National Monument and at the same time grant the President authority "in his discretion to eliminate lands from national monuments by proclamation." But while Congress did pass legislation reducing the Casa Grande Ruins National Monument, it did so only after removing the language that would have given general modification authority to the President.

Finally, the plaintiffs rely on the enactment of the Federal Land Policy and Management Act of 1976 (FLPMA) to show that the President lacks authority to modify national monuments. Congress passed FLPMA to modernize and streamline the management of federal lands. In so doing, FLPMA repealed 29 separate statutes authorizing the President to make withdrawals of federal land and simultaneously "repealed" the Supreme Court's decision in United States v. Midwest Oil Co. —one of the bases relied on by the Department of the Interior to find an implied presidential authority to diminish national monuments. At the same time, a provision in FLPMA prohibits "[t]he Secretary" from "modify[ing] or revok[ing] any withdrawal creating national monuments under [the Antiquities Act]," while leaving the act otherwise unchanged. While acknowledging that FLPMA's prohibition is directed to the "Secretary"—not the President—the plaintiffs point to the House report accompanying the legislation, which stated that FLPMA "reserve[s] to the Congress the authority to modify and revoke withdrawals for national monuments created under the Antiquities Act" —suggesting an intent to consolidate all withdrawal authority in Congress. The United States responds that FLPMA's use of the term "Secretary," rather than "President," is controlling, and that the legislative history on which the plaintiffs rely cannot overcome the plain statutory language.

Assuming that the President has authority to diminish an existing monument, the parties dispute the scope of judicial review of a presidential proclamation that purports to exercise that authority. As previously discussed, the D.C. Circuit in Mountain States and Tulare , and the district court in Massachusetts Lobstermen's Association , did not definitively resolve the scope of judicial review of a monument designation, while the district court in Utah Association of Counties concluded that judicial review was limited to assessing whether the President considered the principles specified in the Antiquities Act. Both parties rely on these cases to support their positions.

The United States contends that judicial review of Presidential proclamations is "extremely limited" to "addressing . . . whether the President's decision to modify the Monument is authorized by the Antiquities Act"—that is, "whether the President, on the face of the Proclamation, exercised his authority in accordance with [the] act's standard." On this view, if a proclamation invokes the standards specified in the Antiquities Act in the course of diminishing a monument, a court has no authority to evaluate the factual determinations underlying the proclamation or to review the manner in which the President chose to exercise his discretion in reducing the monument. The United States supports its position by noting that a President's discretionary decisions—unlike agency action—are not subject to "arbitrary and capricious" or "abuse of discretion" review under the APA. Thus, the United States asserts that President Trump's proclamations must be upheld because, on their face, they "'advert[] to the statutory standard' for designating monument objects and reserving monument lands."

The plaintiffs, by contrast, contend that courts are not limited to assessing whether a proclamation purports to apply the Antiquities Act, but are authorized to conduct a more searching inquiry to ensure that the President "'has not exceeded his statutory authority.'" On this view, courts have authority to review the factual determinations and rationale underlying a proclamation that diminishes a national monument to ensure that the President did not abuse his discretion in modifying the monument's boundaries. Applying this more searching inquiry, the plaintiffs contend that President Trump's proclamations—though purporting to only "modify" the Grand Staircase-Escalante and Bears Ears monuments—effected "the wholesale dismantling" of these monuments, thus constituting an abuse of any presidential authority that might exist to diminish a national monument. Further, as required by Mountain States and Tulare , the plaintiffs identify particular objects that, in their view, should not have been removed from the boundaries of these monuments. At least one plaintiff has also argued that President Trump's proclamations were an abuse of discretion because they were "improperly motivated by potential energy production and resource extraction," rather than "the protection and preservation of sensitive resources."

Some plaintiffs also note that President Trump's proclamations not only reduced the amount of land reserved for these monuments, but also removed certain objects from these monuments. They argue that because the "objects" selected for preservation under the Antiquities Act are the "monuments" under the act, the exclusion of any previously designated object is, in effect, a revocation of a monument —a power the Executive has disclaimed. Thus, these plaintiffs contend that President Trump's proclamations surpassed any authority that might exist under the Antiquities Act to "diminish" or "modify" the amount of land included in a monument designation.

There are viable arguments on both sides of the debate over the President's authority to diminish monuments. Both parties purport to rely on the text of the Antiquities Act, and both have marshalled historical sources and practice to support their respective interpretations. As one scholar has concluded, "[r]isk is present all around," as "the legal authorities are mixed and none are clearly controlling."

However, though the President's authority to diminish monuments may reasonably be questioned, it appears clear that Congress has authority to codify or repeal a presidential proclamation. The Property Clause of the Constitution gives Congress the "[p]ower to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States." The Supreme Court has long held that "the power over the public land thus entrusted to Congress is without limitations." And Congress has exercised this authority on several occasions in response to presidential proclamations issued under the Antiquities Act, whether by incorporating monuments (or portions thereof) into the National Park System, transferring certain monuments to state control, or by abolishing monuments outright.

Legislation was introduced in the 115th and 116th Congresses in response to President Trump's proclamations diminishing the Grand Staircase-Escalante and Bears Ears monuments. Some proposals would have overridden President Trump's proclamations and expanded the monuments to their original (or greater) size. Other Members of Congress have proposed amending the Antiquities Act to limit the President's authority to declare national monuments and to bar the President from diminishing existing monuments, except in specified circumstances. At present, none of these proposals has passed either chamber of Congress. In the absence of congressional action, the President's authority to diminish national monuments will ultimately be decided by the courts.