Bending Toward Justice: Environmental, tribal organizations sue to block Trump’s decision to shrink two national monuments

On Monday, President Donald Trump significantly reduced the size of two national monuments. Now the fight begins on whether the president has the legal authority to take such actions.

In a ceremony at the Utah State Capitol, the president cut Bears Ears National Monument by 85 percent and Grand Staircase-Escalante National Monument by nearly 46 percent. Both monuments are in southern Utah and make up more than one million acres of land.

Former President Barack Obama designated 1.35 million acres of land in the Bears Ears monument in late 2016, after years of urging by the Hopi, Navajo, Ute, and Zuni tribes and environmental groups. The area contains thousands of objects of historical and cultural importance to the tribes, along with hundreds of sacred sites.

Grand Staircase-Escalante National Monument came to life in 1996 under former President Bill Clinton. In the proclamation designating the 1.7 million acre Grand Staircase as a monument, President Clinton detailed the archeological, paleontological, cultural, and historical resources he aimed to preserve and protect. Two years later, Congress expanded the monument to 1.9 million acres as part of an exchange of land with Utah.

 

A national monument designation doesn’t stop all activity within the monument’s boundaries. Previously existing rights to private property, roads, mineral extraction, and grazing are incorporated into the monument’s land management plan, with a focus on preserving the historical, cultural and scientific resources in the area. Under Trump’s directive, the land areas removed from Bears Ears and Grand Staircase-Escalante will now be open to new efforts to mine coal and uranium, and drill for oil and natural gas.

Under Article IV of the U.S. Constitution, Congress has the sole authority to “dispose of,” and make all rules and regulations with respect to, federal land. Congress granted some of its authority over federal land to presidents — for the purpose of creating national monuments — under a 1906 law known as the Antiquities Act. That federal statute says that presidents may “declare by public proclamation, historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest” on federal land as national monuments.

Legal scholars strongly disagree over a president’s authority to shrink or eliminate a national monument under the Antiquities Act. The weight of authority suggests that the president does not have that power, as this Virginia Law Review article explains. No federal court has ever ruled on the issue. That is about to change.

Following the president’s decision to slash Bears Ears and Grand Staircase-Escalante, environmental groups, scientists and a tribal council filed three separate lawsuits seeking to stop the proclamation from taking effect. The Wilderness Society, joined by nine other environmental organizations, filed suit in a federal district court in Washington, D.C. to challenge the cuts to Grand Staircase-Escalante. The Society of Vertebrate Paleontology, along with two other groups intimately involved in research and preservation of sites in Grand Staircase-Escalante, filed a similar lawsuit in the same court.

The Bears Ears Inter-Tribal Council, comprised of the Hopi, Navajo, Ute, Ute Mountain Ute, and Zuni tribes, sued to stop the dismantling of Bears Ears National Monument. That lawsuit is also pending in federal district court in Washington, D.C. Following local court rules, I would expect that all three lawsuits will be consolidated and assigned to a single judge.

 

Trump’s decision to eliminate significant areas of Bears Ears and Grand Staircase-Escalante was the culmination of a process he put in motion in April, when he signed Executive Order 13792 and directed the Interior Secretary to review all national monument designations since 1996. Interior Secretary Ryan Zinke undertook that review and sought public comment on whether any monuments should be reduced or eliminated. More than 2.4 million comments were submitted. More than 90 percent of those comments requested that no changes be made to the national monuments under review.

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