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Government Asks Court To Dismiss Utah's Bid To Shrink National Monuments

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Justice Department lawyers have asked a federal judge to dismiss Utah's efforts to shrink both Bears Ears (above) and Grand Staircase-Escalante national monuments/BLM file

A bid by Utah officials to see the boundaries of Bears Ears and Grand Staircase-Escalante national monuments shrunk should be dismissed because they have not demonstrated a cause of action for the court to consider nor has the federal government waived its sovereign immunity to allow a lawsuit against it, according to a motion filed by the federal government.

The state of Utah and two of its counties went to federal court last August in an effort to overturn the latest boundary change to the two national monuments, arguing that President Biden overreached the authority given him under The Antiquities Act.

Last Friday the U.S. Justice Department filed a motion (attached below) to have the lawsuit dismissed, noting in part that the Utah officials failed to show that Congress relinquished its sovereign immunity in the matter and in part because they failed to show they've suffered any injuries that would give them standing in the case.

The state officials "assert an inability to impose their policy preferences on how the federal lands making up the monuments are managed," the DOJ lawyers claimed. "They argue that Utah law directs federal lands to be managed to 'achieve and maintain at the highest reasonably sustainable levels a continuing yield of energy, hard rock, and nuclear resources' and 'directs land-use policies on federal land to ‘achieve and maintain livestock grazing at the highest reasonably sustainable levels.' But this alleged impairment of Utah’s ability to direct how the United States manages federal public lands pursuant to state law is not a cognizable injury because Utah lacks any such authority. It is well established that 'state jurisdiction does not extend to any matter that is not consistent with full power in the United States to protect its lands, to control their use, and to prescribe in what manner others may require rights in them.'"

The legal battle hinges on the authority The Antiquities Act grants the president of the United States to unilaterally designate national monuments. Former President Trump flew to Salt Lake City in December 2017 to issue presidential proclamations that sheered nearly 2 million acres from the two monuments; the 1.9-million-acre Grand Staircase-Escalante had been designated by President Clinton in 1996, while the 1.3-million-acre Bears Ears had been designated by President Obama in 2016.

Bears Ears as originally designated was home to multiple culturally significant and archaeological sites dating as far back as 11,000 BCE. The land is still used today by tribal members, who continually visit it to conduct religious ceremonies and other traditional practices. Grand Staircase, meanwhile, is extremely rich in paleontological resources, with nearly 150 scientists having said the monument “hosts one of the highest concentrations of dinosaur fossils in the world,” and that only 6 percent has been surveyed, and that “the potential for future discovery is tremendous.”

But Trump maintained that Clinton and Obama overreached their authority under The Antiquities Act by creating national monuments larger than needed to protect historic, cultural, archaeological, and paleontological resources. The Republican then issued an executive order to cut Grand Staircase by a bit more than 1 million acres and broke it into three monuments known as Grand Staircase, Escalante Canyons, and Kaiparowits. Bears Ears shrank to a bit more than 201,000 acres in the Indian Creek and Shash Jáa units from its original size of 1.3 million acres.

Biden in the fall of 2021 reversed Trump's actions in a move both to keep a promise to restore the boundaries and also to uphold "the longstanding principle that America’s national parks, monuments, and other protected areas are to be protected for all time and for all people," the White House said at the time.

But in their lawsuit, Utah authorities claimed Biden went too far by restoring the original monument boundaries, arguing that the boundaries he restored were "not confined to qualifying historic landmarks, historic and prehistoric structures, or other objects of historic or scientific interest."

To that point, DOJ pointed out that "Plaintiffs provide no valid grounds for excluding species, habitats, or ecosystems as qualifying objects under the Antiquities Act." They noted, while citing a case involving the Devils Hole pupfish at Death Valley National Park, that the U.S. Supreme Court has held that species can merit protection under the Act .

"The Supreme Court has thus already resolved the question at hand: species can be 'objects of scientific interest.' That holding makes eminent sense as entire scientific fields—e.g., botany, zoology—are devoted to studying such species," the motion to dismiss pointed out.

In supporting DOJ's motion, the Southern Utah Wilderness Alliance (brief attached below) pointed out that the Supreme Court in the past has held that "the Act authorizes Presidents to designate monuments protecting large landscapes by upholding the validity of the 800,000-acre Grand Canyon monument. In two subsequent cases, the Court also confirmed that Presidents may designate national monuments to protect wildlife and their habitat."

The advocacy group added that "the Supreme Court again confirmed that Presidents may designate national monuments to protect wildlife and habitat. The Court recounted at length how the Glacier Bay monument was established and expanded in the 1920s and 30s to protect its 'complex ecosystem,' including fish, birds, bears, and other wildlife."

In their brief (attached below) in support of DOJ, the Hopi Tribe, Navajo Nation, Pueblo of Zuni, and Ute Mountain Ute Tribe said Biden had the authority to designate not just "historic landmarks, historic and prehistoric structures, or other objects of historic or scientific interest" but also lands with scenic beauty and even ecosystems as well as objects of scientific interests.

"Plaintiffs attack the President’s discretion head on by asserting that the most generous amount of land that could be reserved is not more than a few acres for each item and never more than 160 acres," the tribes aded. "The Antiquities Act, however, places no acreage limits on the amount of federal land that can be reserved, but rather gives the President broad discretion to reserve the land that is necessary. The legislative history supports this understanding."

Previous Traveler articles involving the two monuments:

Number Of Litigants In Bears Ears, Grand Staircase Lawsuit Swells

Conservation Groups Move To Intervene In Bears Ears Legal Battle

Battle Over Bears Ears Continues In Utah

Utah Sues To Overturn Bears Ears, Grand Staircase-Escalante Boundaries

Biden To Restore Boundaries To Bears Ears, Grand Staircase Monuments

Haaland's Utah Visit Leaves Her Much To Ponder Over Bears Ears, Grand Staircase Boundaries

Bears Ears: Endangered Wilderness

Proposed Management Plans For Utah Monuments Released, Draw Criticism

Law Professor Enumerates Flaws With President's Monument Modifications

President Trump Issues Proclamation To Shrink National Monuments, Tees Off Legal Battle

Senator Says President Trump Will Reduce Size Of National Monuments In Utah

Interior Secretary Calls For Reduction In Size Of Bears Ears National Monument

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Comments

Utah's case should absolutely be thrown out. As this is federal lands, the state has no claim to it, and no say over its management. A monument is simply the frederal government taking land it already owns and changing how it is managed. Utah tried to overturn  Grand Staircase Escalante before,  in a case callided Utah Association  of counties v Bush, in 2004 the courts told them to get lost. The court not only rejected the states claims, but ruled that theres no means of judicial review when it comes to monuments, since those are a matter of executive discretion. The courts cannot second guess the president, on matters where the decision is left solely to him. Bedrock Separation of powers, that.

 Simply put the state lacks standing, as Wyoming did when it challenged the  then-Jackson Hole NM in 1945, and Alaska did when it challenged all 17 of Carters monuments in 1980. in both cases, the courts held that  both presidents had met their obligations under the Antiquities Act. Utah is challenging this in a long shot bid to get this to the Supreme Court where Chief  Justice Roberts has made no secret of his disdain for the broad powers of the Antiquities Act.Nevermind that it was the Supreme Court in Cameron v US (1920) and Cappaert v US (1976) that set the wide scope of executive authority under the act in the first place .

Congress is the proper venue for addressing monument disputes. It can change borders, change budgets, change designations, etc. It has done so for over 100 years, and in 1998, it made changes to Grand Staircase Escalante, changing its borders in land exhanges, that ended up expanding the monument from 1.7 million acres to 1.88 million. So in the case of GSENM, Congress has already approved the monument at its current size.

Any Supreme Court ruling that eviscerated the Antiquities Act would itself be an enormous violation of the separation of powers, and would be, basically unenforcible, as no President  would ever tolerate having one of the offices most important powers wiped away.  It would have all the enforciability of Chief Justice Taneys ruligs against Lincoln in the Civil War concerning Lincolns actions with regard to habeus corpus,  Lincoln ignored the Supreme Court, Biden likewise would ignore any anti-Antiqities Act ruling from this Supreme Court. I wouldnt put it past the Court either, Any court that has overturned 50 years of precedent in Dobbs and is probably going to gut 40 years of precedence concerning Chevron, would have no qualms about overturning 103 years of precedence in overturning Cameron.

nevermind that it would be unenforcable , or piss off  a vast majority of the American public into voting in droves to protect their parks in the next election. . we may not be able to define what ' woke'; is, but don't you dare harm our parks. the Antiquities Act is the only quick means of protrecting areas, Congress on average creates a new monument every 3 years or so, and still hasn't  reached the total number of monuments in 117 years that Clinton and Obama totaled in 16. the Antiquities Act, itself, was a recognition by Congress that it was not the proper vehicle for quick action. over 100 years since, Congress has shown time and again, that giving the job  to the president and getting out of the way was the right move.


In their brief (attached below) in support of DOJ, the Hopi Tribe, Navajo Nation, Pueblo of Zuni, and Ute Mountain Ute Tribe said Biden had the authority to designate not just "historic landmarks, historic and prehistoric structures, or other objects of historic or scientific interest" but also lands with scenic beauty and even ecosystems as well as objects of scientific interests.

 

It would have been appropriate and useful to cite other NAs who oppose Biden's action.


Utah's case should absolutely be thrown out. As this is federal lands, the state has no claim to it, and no say over its management

 

#1.  If so, then Utah. NAs, Nick, Sierra Club et al. have no standing to challenge a future president's [unilateral] decision to shrink the monument.  But I doubt you'd agree to that, right?  Wouldn't it be better if the NPS, BLM, state of Utah, locals, NAs & tribal authorities, & interested users come to a consensus (and get both houses of congress to enact the agreement) as to the size and management of the monument?  Your simplistic and biased  view simply continues and indeed, worsens the controversy, with no resolution in sight.

#2.  WHENEVER the president acts (as Biden did in this case), he must follow other laws, such as the Adminstrative Procedures Act (APA).  When he didn't, there are several parties who have standing to object and pursue a legal remedy.  That's what you have here.


A Johnson, a presdent cannot shrink national monuments. Congress removed that ability in 1976 by passing the Federal land Policy and Management ACT (FLPMA). Prior to FLMPA presdents could and did shrink monuments, most notably, WIlon who shrunk Mount Olympus in WA from 640000 acres to 340000 acres in 1915. Monument reductions were held to be an implied power of the presdent by the Supreme Court in a 1915 case called Mdwest Oil, holding the presudent has implied powers in regsrds to managing  federal lands.  Presidents tweaked monuments borders from time to time for roughly 50 years from 1910 to the mid 1960s, but prior to Trump, no monument had been shrunk since FLPMA was passed.

in passing FLPMA Congrss overturned MIdwest Oil, limiting executive power to that expressly granted by Congress and removing any implied authorty. Congress also barred the Interior secretary from mking any changes to national monuments., under the erroneous assumption that the Interior secretary could also create monuments.  By recommending Trump shrink Bears Ears, then secretary Zinke clearly violated section 204(j) of FLPMA as both Bears Ears and Grand Staircase were existing monuments prior to Trump taking office. Put simply a new president can add monuments, or expand existing ones. but he cant shrink monument created by  prior presidents.His hanbds are tied.  Congress quite clearly resrved that authority to itself. if it were legal to shrink monuments after FLPMA, then presidents would surely have done so at some point prior to Trump.  Reagan surely would have shrunk some of Carters monuments in Alaska . He didnt. Bush 43 would have shrunk Clinton's. In fact Bush very much  wanted to, but was told by the Office of Legal Counsel that he had no authority to do that. Bush ended  up creating marine monuments in the Pacific  far larger than any Clinton, Obama or Biden have done. no one challenged any of Bushs actions, and subsequent courts rulings that have addresed the matter have been clear Bush was within his right to create them at the size he did.

 As for the Administratative Procedures Act , Alaska challenged Carters monuments on the basis that the monumrents violated the APA. the courts rejected that claim, holdig that the APA does not apply to the President. Monuments have been challenged in courts for over 100 years based on pretty much every legal grounds you can think of. the APA is a frequent  basis of challenge and the courts have repeatedly held it does not apply to the president. the APA aplies to  management of monuments by the agencies charged with managing them, like the Forest Service, Park Service etc. the APA applies to them.  the president, however is exempt.

  As for the controversy, there is none. President Clinton created Grand Staircase Esclante in 1996. Congress changed the borders of the monuments and expanded it in 1998. in 2004 the courts upheld the initial designation.Grand Staircase Escalante is a valid monument, sanctioned by both Congress and the courts. Legally, the monument is a settled matter. Clinton was within his authority to create it at the size he did. Likewise, Obama was within his right to create Bears Ears, as he created Northeastern Canyons and Seamounts, whose validty was upheld by the courts recently.  theres a proper venue for dealing with monuments disputes, its called Congress. The courts have said as much.

 You clearly don't like the president has the authority to desgnate monuments. You're not the first to hold that opinion,People havent liked that fact since 1906.  its why whenever theres a monument created theres usually a conservative state or conservative legal group  challenging said monument in court , and losing said challenge.   every president up to FDR set aside at least 8 monuments or more, from both partoes. today, Democratic presidents invoke the authoroty far more often than their Republican counterparts. Which is fine. How often, or how seldom, a president invokes the Antiquities Act is part of his discreiion.  Trump invoked the act twice, officially, desgnating Camp Nelson in 2018 and adding 11000 acres to Bears Ears in 2017.

 the purpose of the Antiquities Act is to allow for quick action, something Congress does not do except in extreme circumstances, and one of the reasons Congrss granted discretionary  authority to the presidentin the first place. 1 person can always act quicker than 10 or 435 people. the more people you involve in a process, especially if there is disagreement, the longer it takes. Congrss understood that at the time the law was enacted, and in the 70s when it was repealing all sorts of old conservation  laws, it left the Antiquities Act alone, because Congress felt the law was still necessary.  When Congress tweaked the US Code in 2014, it left the Act alone again, only making a tweak so that the monument proclamations no longer refer to the date the law was signed into law (June 8, 1906) but to the section of the Code the Antiquitries act is in(320301). Congress, clearly, still believes having the law on the books is  important. Congress could choose to repeal the Antiqities Act at any time. It doesnt  because  such a bill would be dead on arrival at the Whte House and thers no way that there would be 23rds support in both houses to ovveride said veto. Further,  the Antiquities Act also covers monuments created by Congress. the same law the presidents use, Congress also uses. Congress would have  to devise a whole new system.

 As for getting everyone involved, that , traditionally has been  in the manageement of the monuments. where has hunting been done? how can we  improve acess?  how do we strike the balance between recreation and preservation? Where can ATVs go? etc   Theres a reason monument management plans take 3 years to finalize, and someimes longer than that/.

a lot of your concerns would be addressed if a sgnificant level of funding came with each designation, with some money going to each of the states, counties and tribes. People historially gripe less when you hand them a check with lots of zeroes on it. Right now, monuments are a unfunded mandate , the states and counties don;t get a penny and the budgets Congress approves for them have been tiny, for instance the first budget for Kathadin Woods and Waters was a mere 400,000. 400000 bucks to manage nearly 90000 acres? that doesnt go very far. 100 million, on the other hand? thats more reasonable. 

   If it were up to me, I would give the president a monument designation and management budget every year, with a range of funding depending on how big the monuments size is, with a floor and a ceiling.  the 7000 acres Castner Range? 100 million, the minimum possible . Well 70 million after 10 million to Texas, El Paso, and connected tribes. Ave Kwa Ame at 500000 acres? Budget is 1 billion, with 100M payouts.  a 10 million acres Bristol Bay monument in Alaska? 2 billion the maximum possible, , with 200 million yearly payouts. To preserve checks and balances, Congress and Congress alone, could raise or lower the budgets. 


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