Lawsuits challenging the White House’s ability to set aside large swaths of public land as a national monument are advancing in at least four court cases across the US, including one long-stayed case that Utah is seeking to reopen.
The litigation, together with Utah’s separate petition this month before the US Supreme Court questioning the legitimacy of federal ownership of public lands, stands to transform land ownership and natural resources uses across the country.
If Utah were to win that case and its Antiquities Act cases, “it would reflect one of the most significant restrictions possibly in the management of public lands at least over the last 100 plus years,” said Sam Kalen, an environmental law professor at the University of Wyoming.
The litigation will reach a new phase Sept. 26 when the US Court of Appeals for the Tenth Circuit hears oral arguments in Garfield County v. Biden. The county and the state of Utah are challenging President Joe Biden’s use of the Antiquities Act to expand Utah’s Bears Ears and Grand Staircase-Escalante national monuments after former President Donald Trump shrank them in 2017.
The two Utah cases are inconsistent with each other, but “both are quite radical” and conflict with more than a century of law and practice, said John Leshy, a professor of real property law at University of California College of the Law, San Francisco, and former Interior solicitor during the Clinton administration.
Utah “essentially argues that any national monuments larger than a few acres are illegal,” potentially undoing existing monuments and preventing new ones, he said.
‘Up for Grabs’
The litigation is part of a movement among several Western states, counties, and industry groups to end the president’s ability to use the 1906 Antiquities Act to block mining, oil and gas drilling, fishing, and other extractive uses on sometimes millions of acres of federal land or waters to protect the historic artifacts and ecosystems found there.
The two main monuments being challenged, Bears Ears and Grand Staircase-Escalante, protect sandstone canyons and Indigenous sacred sites. Together, they are roughly the size of Connecticut—more than 3 million acres in southern Utah. The state says such a land mass violates the Antiquities Act because the law protects only the “smallest area compatible” to safeguard historic artifacts.
Environmentalists say the ligation stands to hamstring the White House’s ability to protect fragile land and ecosystems that are essential to biological diversity.
“Monuments are up for grabs,” as are federal lands that are home to imperiled species, said Randi Spivak, public lands policy director for the Center for Biological Diversity, an environmental group.
Legal groups fighting against monument designations say larger legal questions are at stake.
Frank Garrison, an attorney at the Pacific Legal Foundation, said presidents have “abused” the Antiquities Act for more than a century by setting aside too much land without Congressional approval.
National monuments, which presidents often designate near the end of their terms, are often giant and represent “unchecked executive authority,” said Robert Welsh, an attorney for the Mountain States Legal Foundation, which is representing Utah’s Garfield and Kane counties in the case.
Setting aside entire regions of land without Congressional action raises questions about the separation of powers and congressional delegation of authority, Welsh said.
Focus on Tenth Circuit
Legal challenges to national monuments focus on judicial review, who has standing to sue, the size of monuments allowed under the Antiquities Act, and whether the act allows waters to be protected.
Judicial review is expected to be the biggest question before the appeals court in Garfield County after Judge David Nuffer of the US District Court for the District of Utah in 2023 dismissed the county’s lawsuit against the monuments. Nuffer ruled that Biden’s expansion of Bears Ears and Grand Staircase-Escalante aren’t reviewable by the courts.
“If the Tenth Circuit says you can’t challenge the president’s actions under the Antiquities Act, that would be pretty huge, and that will spark the Supreme Court’s interest,” Garrison said.
The plaintiffs in the case are aiming it at the high court after Chief Justice
The state of Utah is separately asking a judge to dismiss a 2017 environmental group challenge to Trump’s use of the Antiquities Act to mostly dismantle Bears Ears and Grand Staircase-Escalante.
Utah in May filed a motion to reopen Wilderness Society v. Trump and a related case in US District Court for the District of Columbia, which were stayed after Biden was elected in 2021 because he was expected to expand the monuments back to their original sizes.
The Biden administration argued the cases should remain closed until the Tenth Circuit rules in Garfield County, but Utah wants the court to dismiss them because Biden granted the plaintiffs’ wish—a proclamation restoring the monuments’ pre-Trump boundaries.
Environmental groups argue that a Tenth Circuit ruling could reinstate Trump’s dismantled monuments, and the cases should remain stayed until after the appeals court rules.
“Utah’s insistence that this case should be dismissed because the Biden Proclamation offered Plaintiffs complete relief is especially difficult to credit given that Utah is simultaneously attempting to nullify the Biden Proclamation in another court,” the environmental groups wrote in a June brief.
Two other pending cases also challenge the scope of monuments allowed under the Antiquities Act.
In Green v. Biden, in US District Court for the Eastern District of New York, fishermen say a marine monument off the coast of New England has illegally banned them from fishing the area and that the act doesn’t allow waters to be declared a monument.
In an Arizona case, state lawmakers are challenging a 2023 monument that Biden created around the Grand Canyon because they say it cuts off state sovereignty over land it controls. The Biden administration is asking the US District Court for the District of Arizona to dismiss Arizona State Legislature v. Biden because it says the lawmakers lack standing to sue.
Most presidents of both political parties since Roosevelt have used the Antiquities Act to declare monuments, and anti-monument advocates hope the lawsuits will prevent future presidents from blocking mining, fishing, and drilling on larger and larger monuments.
Garrison said that if a president can declare an ecosystem, such as a fishery, as a national monument, there are really no limits on the White House’s power.
“The whole earth is basically a connected ecosystem,” he said. “If the president wanted to, he could declare every piece of federal land in the West as a national monument because ecosystems within it are designatable objects.”
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