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Inside the Legal Case We’re Making to Save Our National Monuments
An explanation of the legal issues, what’s at stake and what happens next
A visitor looks at pictographs in Grand Gulch on Nov. 6, 2017.
© Steven Gnam
Grand Gulch is among the more than one million acres reduced from Bears Ears National Monument.
Grand Gulch is among the more than one million acres reduced from Bears Ears National Monument. Nov. 6, 2017
© Steven Gnam

President Trump has slashed the size of two national monuments in Utah — Grand Staircase-Escalante and Bears Ears — by almost two million acres. The Dec. 4, 2017, decision marked the largest rollback of federal land protection in the nation’s history.

Within hours of that action, Earthjustice sued over the decision to shrink Grand Staircase, charging that the president violated the 1906 Antiquities Act by stripping monument protections from this national treasure.

Days later, we filed a second lawsuit on similar grounds to protect Bears Ears, following in the footsteps of several Native American tribes who have already sued the president.

Drew Caputo, Vice President of Litigation for Lands, Oceans and Wildlife, and Heidi McIntosh, Managing Attorney of the Rocky Mountain regional office, explain the legal issues.

Map of unprotected areas in Grand Staircase-Escalante National Monument.
Map of unprotected areas in Bears Ears National Monument.
Reduced from Grand Staircase-Escalante (left) and Bears Ears (right) was more than one million acres, from each monument.
What are the key legal issues in the Grand Staircase-Escalante case, and do they differ from the Bears Ears case?

Both of our cases to defend Bears Ears and Grand Staircase-Escalante revolve around two key legal issues. One is an issue of statutory law and the other is constitutional law, and they’re conceptually related. (Read the legal documents.)

The statutory issue is that monuments are governed by the Antiquities Act, which is a statute enacted into law during the Theodore Roosevelt administration. It’s been used by 16 presidents since Teddy Roosevelt to protect some of our most valuable public lands.

Congress doesn’t act quickly, hardly ever, so the act provided a mechanism for the president to act quickly to protect land while Congress takes its time on national park designations. In practice, that means that some of our most valuable national parks, like the Grand Canyon, Arches and Acadia, were all originally protected as national monuments. Thanks to the Antiquities Act, these iconic places were still there and intact when Congress eventually protected them as national parks.

But the Antiquities Act, as written, is a one-way ratchet. It gives the president the authority to designate the protection of a monument, but it doesn’t give the president the authority to unprotect monuments. That is something Congress can do, but there is nothing in the act that gives presidents that power. So when Trump purports to be acting under the act, that authority simply isn’t there.

The constitutional issue is very similar except it’s a matter of constitutional law. The constitution gives Congress, not the president, authority over public lands. Congress can delegate its authority to the president, but it has to do so by statute, and that delegation of authority is only as broad as Congress makes it in the statute. And in the Antiquities Act, Congress’s delegation of authority to the president is limited, specifically that the president can act to protect a monument. But the Antiquities Act provides no delegation of authority to the president to reduce an already-designated monument, which is exactly what Trump is doing.

By exercising authority that the constitution gives to Congress and that Congress hasn’t delegated to the president, Trump is violating the separation of powers.

There is another legal argument for the Grand Staircase-Escalante National Monument. In the 21 years since its designation, Congress has passed several statutes that essentially ratified the monument, including a 2009 bill that included all national monuments in a new, protected category of lands called the National Landscape Conservation System. The president has no authority to repeal that legislation with an executive order. He just can’t do it.

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  • Moki Dugway, Bears Ears National Monument.
    Bob Wick / BLM
    Moki Dugway, Bears Ears National Monument.
  • Valley of the Gods, Bears Ears National Monument.
    Bob Wick / BLM
    Cedar Mesa, Citadel Ruins, Bears Ears National Monument.
  • Grand Gulch, Bears Ears National Monument.
    Bob Wick / BLM
    Grand Gulch, Bears Ears National Monument.
  • Valley of the Gods, Bears Ears National Monument.
    Bob Wick / BLM
    Valley of the Gods, Bears Ears National Monument.
  • Valley of the Gods, Bears Ears National Monument.
    Bob Wick / BLM
    Valley of the Gods, Bears Ears National Monument.
  • Valley of the Gods, Bears Ears National Monument.
    Bob Wick / BLM
    Valley of the Gods, Bears Ears National Monument.
What’s at stake in this legal battle?

If we lose, President Trump’s actions will stand, and Bears Ears and Grand Staircase will be shells of the monuments they once were. And the precedent it would create could threaten other national monuments. The stakes are pretty high here.

Most presidents’ public lands policy involves protecting and stewarding the most valuable lands. Trump’s public lands policy is, “How can I maximize industry profit from our public lands?” His public lands policy is essentially the agenda of the fossil fuel industry, the mining industry and several other industries that are a lot more focused on their own profits than on the public good. These public lands belong to every American, and they were passed down to us, intact and protected, by our ancestors. The question is, are we going to pass them on that way to our children and our children’s children, or are we not?

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How long could it take to resolve these cases?

We can’t really say. Judges have very wide power to decide how quickly a case is going to move. Our goal is to move them forward as quickly as possible in order to reverse Trump’s illegal actions.

How does our lawsuit differ from the tribes’?

We’re all on the same page in terms of the legal arguments that we’re raising.

  • Grand Staircase-Escalante National Monument.
    Bob Wick / BLM
    The vast and austere landscape of the Grand Staircase-Escalante National Monument offers a spectacular array of scientific and historic resources.
  • Grand Staircase-Escalante National Monument.
    Bob Wick / BLM
    The vast and austere landscape of the Grand Staircase-Escalante National Monument offers a spectacular array of scientific and historic resources.
  • Grand Staircase-Escalante National Monument.
    Bob Wick / BLM
    The vast and austere landscape of the Grand Staircase-Escalante National Monument offers a spectacular array of scientific and historic resources.
  • Grand Staircase-Escalante National Monument.
    Bob Wick / BLM
    The vast and austere landscape of the Grand Staircase-Escalante National Monument offers a spectacular array of scientific and historic resources.
  • Grand Staircase-Escalante National Monument.
    Bob Wick / BLM
    The vast and austere landscape of the Grand Staircase-Escalante National Monument offers a spectacular array of scientific and historic resources.
  • Grand Staircase-Escalante National Monument.
    Bob Wick / BLM
    The vast and austere landscape of the Grand Staircase-Escalante National Monument offers a spectacular array of scientific and historic resources.
  • Grand Staircase-Escalante National Monument.
    Bob Wick / BLM
    The vast and austere landscape of the Grand Staircase-Escalante National Monument offers a spectacular array of scientific and historic resources.
  • Grand Staircase-Escalante National Monument.
    Bob Wick / BLM
    The vast and austere landscape of the Grand Staircase-Escalante National Monument offers a spectacular array of scientific and historic resources.
  • Grand Staircase-Escalante National Monument.
    Bob Wick / BLM
    The vast and austere landscape of the Grand Staircase-Escalante National Monument offers a spectacular array of scientific and historic resources.
  • Grand Staircase-Escalante National Monument.
    Bob Wick / BLM
    The vast and austere landscape of the Grand Staircase-Escalante National Monument offers a spectacular array of scientific and historic resources.
  • Grand Staircase-Escalante National Monument.
    Bob Wick / BLM
    The vast and austere landscape of the Grand Staircase-Escalante National Monument offers a spectacular array of scientific and historic resources.
  • Grand Staircase-Escalante National Monument.
    Bob Wick / BLM
    The vast and austere landscape of the Grand Staircase-Escalante National Monument offers a spectacular array of scientific and historic resources.
  • Grand Staircase-Escalante National Monument.
    Bob Wick / BLM
    The vast and austere landscape of the Grand Staircase-Escalante National Monument offers a spectacular array of scientific and historic resources.
Proponents of Trump’s decision to slash monument protections have pointed out that previous presidents have taken similar actions. How are Trump’s actions different?

There are three big differences.

First, those past presidential actions all happened a long time ago; the last one was by President Kennedy in 1963, more than half a century ago. Since then, Congress has passed other statutes like the Federal Land Policy and Management Act, as well as the statutes related specifically to Grand Staircase. We believe those statutes indicate that Congress essentially ratified the notion that the president doesn’t have authority to mess with already-designated monuments. So those past presidential actions are no longer relevant.

Second, in those past circumstances the president’s actions were never challenged, but that doesn’t mean they were legal. If I’m polluting illegally and nobody challenges me, that doesn’t mean what I did was legal. It just means that nobody challenged it. In the monuments cases, this is the first time that anybody has challenged it. And the fact that it escaped unchallenged in the past is completely irrelevant to whether it’s legal the first time it’s challenged.

In addition, all of those potential actions to reduce monuments happened before there was any environmental law or public interest firms who could challenge this type of action. In fact, many of these decisions were made before Congress passed the Administrative Procedure Act, which provides the legal framework for challenging governmental actions.

Third, the great majority of those past presidential reductions were nibbling around the edges of monuments, making relatively small adjustments to the boundaries. What Trump did here was to make huge scale reductions. He didn’t take a scalpel to the national monuments. He took a chainsaw and slashed Bears Ears by 85 percent and Grand Staircase by half.

So the past reductions, which were mostly small changes on the margins to a monument, say nothing about the legality of a wholesale dismemberment of these monuments, which drastically undermines their integrity as monuments.

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Now that President Trump has stripped protections for these monuments, are the courts the only way to reverse this?

Yes. Another option would be for Congress to act, but this Congress is almost as hostile to protecting public lands as President Trump. And even if Congress passed a bill to reverse President Trump’s actions, he could veto the bill. The courts are the last refuge for monument protection here, at least until the country sees a change in presidents.

Is this the final attack on national monuments?

No. I think we’ll see other actions by Trump to reduce monument boundaries and change protections of other monuments. And if and when he makes more terrible decisions to gut the country’s national monuments, we’ll see him in court.

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