The newly installed Bears Ears National Monument sign marking the boundary of Bears Ears National Monument during the sign unveiling on June 18, 2022. (Photo courtesy Bureau of Land Management)
Thursday was a big day for the future of the Bears Ears and Grand Staircase-Escalante national monuments, as attorneys argued for and against the legality of President Joe Biden’s decision to reinstate the monuments after former President Trump reduced their original size.
For about an hour, attorneys presented their oral arguments in two lawsuits challenging the monuments — Garfield v. Biden and Dalton v. Biden — which have now been consolidated into one case, before a panel of three judges from the U.S. Court of Appeals for the 10th Circuit.
The hearing took place at the Wittemyer Courtroom at the University of Colorado Boulder Law School.
It’s unclear when or how the panel of judges will make a decision, but one thing is certain — the legal challenge to the monuments is far from over.
The key question Thursday was whether a court can review challenges to the Antiquities Act, a law passed by Congress in 1906 that gives the president authority to declare national monuments to protect areas of cultural, historical and scientific significance.
It’s how President Theodore Roosevelt issued protections for the Grand Canyon, and has been used by presidents since, including Democratic presidents Bill Clinton, who designated Grand Staircase-Escalante, and Barack Obama, who designated Bears Ears.
In 2017, both monuments were drastically reduced in size by President Donald Trump, who cut Bears Ears from 1.36 million acres to 1 million acres, and Grand Staircase-Escalante from 1.35 million acres to just 229,000 acres.
Then, in 2021, President Joe Biden restored the monuments to their original size, again using the Antiquities Act. That authority was promptly challenged by the state of Utah, which in 2022 joined forces with Garfield County to sue the Biden Administration in federal court.
Another lawsuit was then filed by local landowners and the BlueRibbon Coalition, a nonprofit that advocates for outdoor recreation and has repeatedly protested public land and conservation policies from the federal government. Those suits have now been consolidated.
The Antiquities Act, the state’s lawsuit argued, was not intended to enact sweeping, million-plus acre designations. But the suit was dismissed in August 2023 by U.S. District Judge David Nuffer, who wrote that the Antiquities Act grants discretionary authority to the U.S. president when it comes to monument designations.
According to Stanford Purser with the Utah Attorney General’s Office, who argued the state’s case on Thursday, Nuffer’s decision was based on a lack of guidance — guidance that the justices with the 10th Circuit should provide.
“The court can and should interpret these limits within the Antiquities Act to confirm that Utah and the counties have a stated claim … that in turn will provide the guidance that the district court said he needs to proceed in this case,” said Purser. “He sort of just threw up his hands and said, ‘I don’t know what to do here.’”
John Bies, who represented the United States, on the other hand argued that the Antiquities Act grants the president such broad authority that it’s not the court’s responsibility to review monument designations. The judges pushed back, asking him a hypothetical question — if Biden designated all federal land in Utah a national monument, should that be subjected to review?
“If they have a bonafide basis, they can designate any federal land,” Bies said.
Judge Joel Carson pressed him further. “There are all sorts of historic sites and important species in Utah. Could they do it?”
Bies responded, “Yes.”
But the justices’ skepticism extended to both sides on Thursday, with Carson pointing out that no matter what’s in the monument proclamation, there will be elements of sovereign immunity — the premise that the federal government can make certain decisions within its jurisdiction that cannot be challenged. Regardless of what Utah claims, sovereign immunity could stand in their way.
Carson was also skeptical of the scope of the review Utah requested, which identifies protections for scores of “objects” in the monument that the state says are unwarranted.
“Do you expect that this court would go through your complaint and pass judgment on all 500 objects?” he asked.
Purser responded that the state has a case “if there’s even one object.”
Matthew Campbell, an attorney for the Native American Rights Fund who represented the tribal nations, echoed Bies, telling the court that the question of ultra vires — the legal term that in this case refers to Biden going beyond his authority — is not applicable. Campbell also pushed back on the state’s claim that some objects in the monuments don’t warrant protection under the Antiquities Act.
“It identified dwellings, communal houses, burial grounds,” he said. “Many of the places within Bears Ears and Grand Staircase-Escalante were within the president’s jurisdiction to protect.”
Harry Graver, the attorney for BlueRibbon, boiled their argument down to a simple soundbite.
“The president has authority under the Antiquities Act to set aside land for A, B and C. Our contention is he set aside land for D, E, F,” said Graver. “You’re doing something you were never allowed to do.”
A long road to the U.S. Supreme Court
Utah leaders have repeatedly said their goal is to present their case to the U.S. Supreme Court, evidenced by how Purser opened his argument on Thursday, citing U.S. Supreme Court Chief Justice John Roberts, who in 2021 said the Antiquities Act has “somehow been transformed” to have no limits.
“He hoped that the U.S. Supreme Court would get a case where they can review these limits. This is that case,” Purser said.
Almost immediately, Judge Richard Federico asked Purser if any previous cases challenging the president’s authority have been successful. Purser acknowledged they have not, but said the arguments Utah is now presenting haven’t been raised in the past, telling the judges, “Here we have a clear case of proclamations that exceed any reasonable interpretation of the Antiquities Act.”
It wasn’t immediately clear how the court will rule, as justices pressed attorneys on both sides.
Regardless, the path to the high court will be convoluted — if the 10th Circuit rules in favor of the federal government and effectively dismisses Utah’s lawsuit (which several attorneys after the hearing told Utah News Dispatch would be very unlikely) the state will have a clear path to appeal to the U.S. Supreme Court. But the appeal would be centered on how courts can review challenges to the Antiquities Act, not whether the monuments are lawful.
If there’s a remand, the case would go back to Nuffer, although it’s unclear if he would take it up again or defer to another judge. The legality of the monuments would then be left up to the district courts and it’s likely that any ruling would result in another appeal, until it gets to the Supreme Court.
After the hearing, Steve Bloch with the Southern Utah Wilderness Alliance, an environmental group, said he thinks the 10th Circuit judges will likely send the case back to a lower district — but he doesn’t expect that to help the state.
“I’m not going to be surprised if there’s a remand to the district court,” said Bloch, whose organization has challenged multiple decisions from the state of Utah and the Trump administration in court. “We’re comfortable with that because what the president did here is within the wheelhouse of the Antiquities Act.”
Bloch said any kind of review ordered by the court will not be as comprehensive as what Utah hopes.
Meanwhile Ben Burr, the executive director of the BlueRibbon Coalition, said he’s hopeful the court will give them a path forward, providing attorneys representing his group and the state guidance on how challenges to the Antiquities Act should proceed.
“A good decision for us would be to just give us something to work with,” he said. “We believe there’s an appetite in the Supreme Court, it’s just getting them the right case. That’s what we believe we’re doing through this process, but it’s definitely not a straight line.”
In a statement following the hearing, Utah Attorney General Sean Reyes reiterated the state’s argument, while telling Utah News Dispatch the state is still seeking “appropriate safeguards for the cherished lands in the heart of Bears Ears and Grand Staircase-Escalante regions.”
“Designations of this magnitude require resources, careful planning, and input from local stakeholders,” Reyes said. “We have eagerly awaited the opportunity to explain to the Tenth Circuit how the law and facts favor more reasonable-sized monuments.”