The Antiquities Act Says Smallest Area Compatible, So Read the Text Again

Congress once asked a President to be modest, and put the request into the statute in plain English. It did not say "be thoughtful" or "consider the neighbors." It said the land reserved shall be confined to the smallest area compatible with the proper care and management of the objects to be protected. That is a limit, with a verb in front of it (the verb is "shall," the one word in legislative English that does not mean "might"), written in 1906 by lawmakers who had just watched pothunters carry the pottery of the Southwest away by the wagonload.

Then, over the next hundred and some years, presidents of both parties proclaimed monuments the size of small states and a lot of people stopped reading past the first sentence. So let us read the whole thing. The Antiquities Act is short enough to read over a cup of coffee, and it repays the effort, because the fight over it is a fight over words.

The setting: why Congress acted in 1906

By the end of the nineteenth century, ancient sites on federal land in the Southwest were being plundered. Cliff dwellings and pueblo ruins held pottery, tools and burials, and collectors were digging them up and shipping them east to private cabinets and museums. There was no federal law against it. Archaeologists and their allies in Congress pushed for a statute, and Congress passed the Antiquities Act, which Theodore Roosevelt signed on June 8, 1906.

The Act did three things at once. It made it a crime to appropriate, excavate, injure or destroy an object of antiquity on federal land without permission. It created a permit system for legitimate scientific work. And it gave the President a power to protect important places quickly, by proclamation, without waiting for Congress to pass a bill for each one. The speed was the point. A site could be lost in a season.

Section 2, read passage by passage

The power lives in the Act's second section. In the current codification it is at Title 54 of the U.S. Code, Section 320301. Read the key text in order.

The President may, in the President's discretion, declare by public proclamation historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest that are situated on land owned or controlled by the Federal Government to be national monuments

What it grants. The President may declare national monuments. The things being declared are listed: historic landmarks, historic and prehistoric structures, and "other objects of historic or scientific interest." The list begins with things a person made and ends with a general phrase. A fair reader sees the pattern: the statute is about objects, things you can point to, and the objects are interesting for their history or their science.

What it requires. The objects must be "situated on land owned or controlled by the Federal Government." The President cannot declare a monument on your farm. He can reserve federal land.

The next clause is the one that matters most.

The President may reserve parcels of land as a part of the national monuments. The limits of the parcels shall be confined to the smallest area compatible with the proper care and management of the objects to be protected.

The 1906 text said the limits "in all cases" shall be so confined. The codification of 2014 dropped some of the older wording but kept the sense. Read it again as a lawyer would. The President may reserve land as a part of the monument, and the land may not be larger than the smallest area compatible with the proper care and management of the objects.

Break that sentence into its parts.

1. "Parcels of land." The thing reserved is a parcel, a piece of ground, with limits.
2. "The limits of the parcels shall be confined." "Shall" is mandatory. Nobody gets to treat this as advice.
3. "To the smallest area." The superlative is the heart of it. Not a reasonable area, not an appropriate area, not an area necessary to the objects, but the smallest.
4. "Compatible with the proper care and management." The measure of how small is how much it takes to care for and manage the object, which is a practical test, not a landscape-scale one.
5. "Of the objects to be protected." The objects, again, are the unit. The land exists to serve the objects, not the other way around.

If the words are given their ordinary meaning, the statute asks for a modest footprint matched to the thing being protected. You protect a cliff dwelling by reserving the cliff dwelling and a buffer around it. You do not protect it by reserving a million acres of the desert in which it sits, unless the desert is itself an object of historic or scientific interest, and then only as small a part as management requires.

The first monuments: the Act used as written

The record in the early years supports the modest reading. The first national monument, proclaimed by Roosevelt on September 24, 1906, was Devils Tower in Wyoming, a distinctive rock formation rising from the plains. The reservation was a modest one, aimed at the tower and its immediate surroundings. Roosevelt then used the Act for other landmarks, among them cliff dwellings and inscribed rock. These were objects in the ordinary sense.

The pattern changed early, though. In January 1908 Roosevelt proclaimed the Grand Canyon a national monument, reserving more than 800,000 acres. Someone with a mining claim on the canyon rim challenged it, which tells you the opposition arrived about as quickly as the proclamation did.

Cameron v. United States: the Court weighs in

The case was Cameron v. United States, decided in 1920. Ralph Cameron claimed a tract on the south rim of the Grand Canyon under a mining claim located in 1902, and he and his associates used it for a livery stable and other business purposes. The government treated that as a trespass and wanted him off. His claim dated from 1902, years before the monument.

The Supreme Court ruled against him. It agreed with the proclamation that the Grand Canyon is an object of unusual scientific interest, called it the greatest eroded canyon in the United States, if not in the world, and upheld the reservation. The opinion does not discuss the smallest-area limit at all; it treated the Grand Canyon as the object, and that is the point defenders of big monuments take from it.

That is the case defenders of big monuments rely on, and it deserves a fair reading. A single geological feature can be large. If the object is the canyon, the area compatible with its protection is the canyon. The case did not decide that a President may reserve land far beyond whatever object he names. It upheld a reservation for one very large object. The skeptics read the case as one about an unusual object; the defenders read it as one that blessed discretion. Both are reading the same opinion.

Cappaert: a pool in a cavern

If the Grand Canyon is the big case, the small one is Cappaert v. United States, decided in 1976. Devil's Hole, a limestone cavern in Nevada, holds a pool of water that is home to a tiny fish, the Devils Hole pupfish. In 1952 President Truman proclaimed a 40-acre tract around Devil's Hole as a detached part of Death Valley National Monument. Starting in 1968 a neighboring ranch pumped groundwater and the pool's level began to fall.

The Court held that the 1952 reservation carried with it rights to enough unappropriated water to maintain the pool's level and preserve its scientific value. The case is a model of the statute's logic at work: the object is small and specific, the reservation is matched to its need, and the Court asked what the care of the object required. The Court also stressed that the reservation covered only the amount of water necessary to fulfill its purpose, no more. For purposes of this post, Cappaert shows what "smallest area compatible" looks like when someone takes it seriously.

The modern monuments: from objects to landscapes

Then the practice changed in scale. The two Utah designations show it best.

On September 18, 1996, President Clinton proclaimed the Grand Staircase-Escalante National Monument, about 1.7 million acres of southern Utah, as the proclamation counted them. The announcement was made at the Grand Canyon in Arizona, a detail that Utah's officials noticed. The proclamation rested on the scientific and historic objects found across the area.

On December 28, 2016, President Obama proclaimed the Bears Ears National Monument, about 1.35 million acres in southeastern Utah, covering an area with a dense concentration of archaeological sites and sacred to a number of Native American tribes.

The cultural and archaeological value of Bears Ears is real, and nobody serious disputes that the area holds extraordinary sites. The question is the match between the objects and the acreage. When the object is a particular ruin, a particular rock panel or a particular kiva, the compatible area is some count of acres around it. When the object is "the landscape," and the landscape is defined as 1.35 million acres, the statute's superlative has been replaced with a general purpose, namely that the whole region is worth protecting. That is a worthy goal. It is not what the sentence says.

Defenders of the practice reply that the objects in these areas are dense and interconnected, that the area is a cultural landscape, and that the courts that have reviewed such designations have given the President substantial deference. The D.C. Circuit in 2002 affirmed the dismissal of a county's challenge to a Clinton-era designation of giant sequoia groves in California, and a federal district court in Utah in 2004 upheld the Grand Staircase designation. The courts have so far been unwilling to second-guess the President's judgment about size. That is the legal reality, and an honest case against big monuments has to start from it.

What the Constitution adds

Why should a conservative, as opposed to a person who simply likes mining, care? Because the Antiquities Act is a delegation of power from Congress to the President over federal land, and Congress holds that power under the Property Clause of Article IV. Why Washington Owns Most of Nevada and What the Property Clause Allows reads that clause. A delegation can be as broad as its text. This one has a built-in boundary, and a President who ignores the boundary is exercising a power Congress did not give him.

There is a second reason. A statute that says the smallest area, read by the executive as the largest area the courts will tolerate, is a good example of how the administrative state grows. The words stay on the books while the practice drifts, like a speed limit sign on a road where everyone has agreed to stop looking at it, until the text no longer constrains anyone. The remedy is to hold officials to what the law says and to ask Congress to update it if it wants something different, a theme in Madison Called It the Very Definition of Tyranny, and Agencies Hold All Three. The same reach beyond the text shows up in the Endangered Species Act fights, read in Does the Commerce Clause Reach a Red Wolf That Never Leaves the County, and the conservation tradition behind the Act is traced in Theodore Roosevelt Made Conservation a Conservative Cause, and It Still Is.

Can a later President shrink a monument?

The Act is silent on that. It says the President may declare monuments and reserve land; it says nothing about abolishing them or reducing them. That silence has produced two readings.

The no-reduction view. The power to declare is a power Congress gave, and the power to undo is one it kept. A 1938 opinion from Attorney General Homer Cummings, about the Castle Pinckney monument, said that the President has no authority to abolish a national monument once established, and that only Congress may do so. In 2025 the Justice Department's Office of Legal Counsel concluded that the 1938 opinion was incorrect and could no longer be relied upon, which shows how unsettled the point remains.

The reduction view. The power to proclaim carries a power to modify. If a President can reserve land under the discretion the Act gives him, a successor exercising the same discretion can decide that the smallest area compatible is smaller than the first thought. This view points to history: President Wilson cut the Mount Olympus monument roughly in half in 1915.

The practice in recent years has put the question in play. In December 2017, President Trump reduced Bears Ears by roughly 85 percent and Grand Staircase-Escalante by about half. In October 2021, President Biden restored both to their former size. Lawsuits followed each step, and no final Supreme Court ruling has settled whether a President may shrink a monument. In March 2021, in a statement concurring in the denial of certiorari in a case about a marine monument, Chief Justice Roberts noted that no court of appeals had addressed how to interpret the Act's smallest-area requirement. That is as far as the Court has gone.

Here is the consequence worth noticing. If the first President can reserve land by pen, and the second cannot return it by pen, then the Act is a one-way ratchet. If both can, then land use in a region turns on the outcome of each election. Neither is a comfortable arrangement for the people who live next to the land. That is precisely the kind of question Congress is supposed to settle, and it has not.

Congress has acted on monuments before. It has abolished some and expanded others by statute. It also limited the President's power in two places: after the 1943 proclamation of Jackson Hole National Monument in Wyoming, Congress barred further presidential monuments in that state in 1950, and after President Carter's 1978 Alaska withdrawals were challenged, Congress in 1980 required its own approval for withdrawals in Alaska larger than 5,000 acres. Those laws show that the remedy is available and that Congress has used it when the matter was pressing enough.

The strongest argument for big monuments, answered

The best case for the broad reading is that modern science has shown how interdependent ecosystems and cultural landscapes are. Protecting a single ruin without its watershed or viewshed may leave it exposed to the very harms the Act was meant to prevent. The word "proper" in "proper care and management" gives the executive room, and a President who reads it as calling for a landscape-scale reservation is making a judgment the Act commits to him.

That is a respectable argument. The answer has three parts. First, "smallest" is still the operative word, and "proper" modifies care, not area. Second, if the landscape-scale judgment is right, the proper tool is a statute, passed by Congress, designating a national conservation area or a national park, which Congress has done many times and which gives local people a voice through their representatives. Third, an interpretation under which the limit never limits anything is not an interpretation of the limit.

The case in brief

1. The Antiquities Act of 1906 lets a President reserve federal land for monuments, but the limits of the parcels must be confined to the smallest area compatible with the proper care and management of the objects to be protected.
2. The text speaks of objects, parcels and the smallest area, which points to a footprint matched to what is being protected; the early monuments such as Devils Tower fit that reading.
3. Cameron v. United States (1920) upheld the Grand Canyon as a single large object, and Cappaert v. United States (1976) tied the reservation to what the object's protection required.
4. The 1996 Grand Staircase-Escalante and 2016 Bears Ears monuments, of roughly 1.7 million and 1.35 million acres, stretch the phrase, and courts have so far deferred to the President on size.
5. Whether a later President may shrink a monument is unsettled, and the clean answer is for Congress to legislate rather than for each administration to reverse the last.

What you can do: read Section 320301 of Title 54 on Congress.gov, then ask your member of Congress whether the Antiquities Act's size limit and its reduction question should be settled by a statute.