A federal appeals court heard oral arguments in Colorado on Sept. 26 in a legal challenge to two of the largest national monuments in the continental U.S.; Bears Ears and Grand Staircase-Escalante in southern Utah.
Plaintiffs, including the state of Utah, two of its counties, a recreation group and a few individuals, are hoping the case will set limits on the century-old law used to protect large swaths of public land.
The litigation centers around a federal law signed in 1906 called the Antiquities Act, which allows presidents to protect areas of federal lands with “critical natural, historical and scientific resources.”
The dispute started when former President Trump dramatically shrunk both monuments in 2017. Then, a few years later, the Biden Administration reversed that move, restoring the monuments to more than three million acres total.
Utah sued saying Biden overstepped his authority, in part because the monuments are too big. Presidents are only allowed to reserve “the smallest area compatible” with protecting the resources, according to the Antiquities Act.
“President Biden’s designations are as large as several states—which far exceeds his authority and is an abuse of the Act,” said Utah Attorney General Sean D. Reyes in a press release.
Yet the vast red canyons and cliffs of the Bears Ears region hold a plethora of historic and cultural sites important to the Tribal Nations, said Matthew Campbell, the Deputy Director of the Native American Rights Fund.
“If there’s one place that’s deserving and worthy of protection under the Antiquities Act, it’s certainly Bears Ears,” said Campbell, who is representing the Hopi and Ute Mountain Ute tribes, as well as the Pueblo of Zuni. Along with the Navajo Nation, they intervened in the case on the side of the federal government.
A district court judge ruled against Utah’s claims last year, and the state appealed to the 10th Circuit.
During the 10th Circuit hearing this week, Utah Solicitor General Stanford Purser quoted Chief Justice John Roberts, who has suggested that presidents may be abusing the power of the Antiquities Act. Purser said this case should go to the U.S. Supreme Court to determine the limits of that power.
The lower court previously found that it couldn’t review the claims about Biden’s monument proclamations. John E. Bies, the attorney for the Biden Administration reiterated this point during the hearing, saying the Antiquities Act gives presidents broad authority to make decisions on monuments, and that courts can’t intrude on those judgments.
But attorneys for Utah and other plaintiffs disagreed and said courts should be able to review the monument designations in this case because they go beyond the legal authority of the Act.
The panel of three 10th Circuit judges includes two appointed by Biden and one by Trump.
This story was produced by the Mountain West News Bureau, a collaboration between Wyoming Public Media, Nevada Public Radio, Boise State Public Radio in Idaho, KUNR in Nevada, KUNC in Colorado and KANW in New Mexico, with support from affiliate stations across the region. Funding for the Mountain West News Bureau is provided in part by the Corporation for Public Broadcasting.
