As the Tenth Circuit considers Utah’s challenge to President Joe Biden’s re-establishment of Bears Ears and Grand Staircase-Escalante national monuments, judicial review is likely to be the biggest question before the appeals court, attorneys say.
The state and two Utah counties want the US Court of Appeals for the Tenth Circuit to halt presidential use of the Antiquities Act to create vast national monuments—a legal question aimed at the US Supreme Court. But the appeals court in Garfield County v. Biden is expected to sidestep that question.
The state and counties appealed last year after Judge David Nuffer of the US District Court for the District of Utah tossed out their lawsuit because Biden’s actions under the Antiquities Act aren’t reviewable by the courts. Utah’s complaint was statutory, not constitutional, Nuffer ruled.
“The bigger issue with the Garfield Case is, even though the federal courts have been unwilling to provide meaningful judicial review, the Utah district court said there is no judicial review,” said Frank Garrison, an environmental lawyer for the Pacific Legal Foundation, representing timber industry associations as amicus curiae in the case.
“Sovereign immunity—that’s the bigger issue in this case. Are courts going to be able to check the president?” Garrison said.
Oral Arguments Expected
Together, Bears Ears and Grand Staircase-Escalante are roughly the size of Connecticut—more than 3 million acres in southern Utah. The state says that such a land mass violates the Antiquities Act because the law allows only the “smallest area compatible” to safeguard antiquities to be included in a national monument.
“They keep expanding these designations, and they keep getting bigger and bigger,” blocking drilling, mining, and logging, Garrison said.
Former President Donald Trump shrank the monuments in 2017, but Biden expanded them to their original footprint, sparking Utah’s lawsuit.
The Biden administration, environmental groups, and tribes are asking the appeals court to affirm the district court’s dismissal of Utah’s complaints.
Utah and the counties are scheduled to file a response by Feb. 9. If the court grants oral arguments, they’re likely to be held in March or April, Garrison said.
Utah’s central concern is whether it’s legal for the president to use the Antiquities Act to block mining, oil and gas drilling, and other development by creating sprawling national monuments. Attorneys representing the state didn’t respond to a request for comment.
The lawsuit could garner the attention of the Supreme Court.
‘Amorphous Expanses’
Chief Justice
Environmental groups who have joined the Garfield County litigation argue that the Supreme Court settled the issue in 1920, when it upheld a challenge to President Theodore Roosevelt’s 1908 use of the Antiquities Act to protect 880,000 acres in the Grand Canyon, which eventually became a national park.
“It would be a surprising and remarkable outcome if the Tenth Circuit ignored precedent and held the monuments here unlawful,” Tom Delehanty, an attorney for Earthjustice, which represents environmental groups in the litigation, said in an email. “No court has ever found a monument violated the Antiquities Act, and we do not think the Tenth Circuit should (or will) break that new ground here.”
If the Tenth Circuit rules Antiquities Act proclamations are reviewable, the case should be remanded to the district court to address the merits of Utah’s claims against the Biden administration, said Matthew Campbell, staff attorney for the Native American Rights Fund, which is representing the Hopi and Ute Mountain Ute tribes, and the Zuni Pueblo, in the litigation.
“The district court here did not even reach the merits,” Campbell said. “There needs to be a full airing of those questions.”
Dense with Artifacts
The challenges to Bears Ears and Grand Staircase-Escalante are baseless because courts have never struck down the use of the Antiquities Act, and Congress has never amended the primary terms of the law and has expanded some monuments created under it, 29 law professors wrote in an amicus brief filed Jan. 16 in the Garfield County case.
Biden acted properly when restoring the two Utah monuments because they’re both dense with cultural artifacts sacred to tribes throughout the region, wrote the professors, including John Leshy, former Interior solicitor during the Clinton administration.
The professors wrote that the Antiquities Act doesn’t provide for judicial review.
“Of the twenty-one presidents who have served since the Act was passed over 117 years ago, eighteen—nine Republicans and nine Democrats—have used it to establish some 150 protected areas covering nearly 100 million acres of public lands,” the law professors wrote. “The Antiquities Act has proven to be one of the most important and enduring pieces of public land legislation in U.S. history.”
Recent presidents of both parties have declared giant monuments under the act, including Papahānaumokuākea Marine National Monument in the Pacific Ocean, an initially 140,000 square mile preserve initially created by President George W. Bush and later expanded by President Barack Obama.
Biden has used the act several other times during his presidency, most recently to declare the nearly 918,000 acre Baaj Nwaavjo I’tah Kukveni—Ancestral Footprints of the Grand Canyon National Monument in Arizona, and the 506,800 acre Avi Kwa Ame National Monument in Nevada.
The case is Garfield Cty. v. Biden, 10th Cir., 23-04106, 1/16/24.
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