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Monument Moves Leave Unresolved Scope of Presidential Power (1)

Oct. 8, 2021, 6:28 PMUpdated: Oct. 8, 2021, 7:29 PM

President Joe Biden’s restoration of the original boundaries of Utah’s Grand Staircase-Escalante and Bears Ears national monuments will leave untested for now whether his predecessor’s decision to shrink the monuments is legal, attorneys said Friday.

Few lawyers are expecting the central legal question over a president’s authority under the Antiquities Act to be resolved anytime soon.

Litigation challenging President Donald Trump’s actions are likely moot, meaning the question of whether a president can shrink or abolish a previous president’s national monument designation will remain unresolved for years, said David McDonald, a Mountain States Legal Foundation attorney representing Kane County, Utah.

“The next time a Republican is in the White House, there is going to be a rematch of this fight,” McDonald said.

Biden on Friday reversed Trump’s 2017 decision to shrink Bears Ears by nearly 85% and Grand Staircase-Escalante by almost half. Protecting monuments helps to safeguard water resources and reduce the impacts of wildfire, Biden said at Friday’s signing ceremony.

A president’s power to change a monument’s size without Congress’ approval can affect how oil, gas and other natural resources are developed on federal lands. That’s because the Antiquities Act allows presidents to designate a national monument on federal lands and possibly prohibit energy development within its boundaries.

Monuments also destroy industry’s ability to “do logging and mining,” McDonald said, even though environmental groups favor monuments to protect natural resources. Coal mining, for example, is banned at Grand Staircase-Escalante.

‘The Status Quo’

Tribes and environmental groups sued in federal court after Trump shrunk the monuments, but those cases were stayed when Biden said early this year that he would likely reverse that decision.

The U.S. District Court for the District of Columbia in March stayed the Bears Ears monument cases, including Hopi Tribe v. Trump, and the Grand Staircase-Escalante lawsuits, including Wilderness Society v. Trump.

“Our position is the president clearly lacks the authority under the Antiquities Act” to shrink or abolish an existing monument, said Heidi McIntosh, an attorney with the environmental advocacy law firm Earthjustice. “If there’s no decision, it maintains the status quo.”

But it’s too early to say whether the cases will be dismissed because the Trump administration allowed mining claims to be staked, while other “ripple effects” will need to be resolved, McIntosh said.

Biden’s move clearly moots the pending cases, said Shawn Welch, partner in the Salt Lake City office of Holland & Hart, who represents clients in energy, environmental and natural resources litigation.

“The people who say President Trump had the legal authority to reduce the monuments will have a hard time saying President Biden can’t restore them or change their boundaries,” he said.

Question of Authority

Courts have generally deferred to presidential authority under the Antiquities Act, leading presidents “to do largely as they see fit,” said Thomas Jensen, a partner at Perkins Coie LLP in Washington.

“And so the stakes are high, and the uncertainty is enough to likely to keep the battle going for some time,” Jensen said.

Legal experts disagree about the president’s authority over monument size.

“I think that the answer is simple—the President has the authority to establish, and enlarge a monument, and the remedy is a political one before Congress,” said Sam Kalen, a natural resources law professor at the University of Wyoming.

But Mark Squillace, a natural resources professor at the University of Colorado Law School, said only Congress has the authority to shrink a monument once it has been lawfully designated by the president.

“Trump had no authority to shrink the monuments, and those decisions were never lawful,” Squillace said.

‘One-Upmanship’

Trump cut the land in Bears Ears National Monument, created by Obama in 2016, from about 1.35 million acres to about 200,000 acres. Trump shrank Grand Staircase-Escalante, created by President Bill Clinton in 1996, from 1.8 million acres to about 1 million acres.

Utah Republicans and local governments have been seething over the monuments since they were created, calling them a land-grab that restricts coal mining, grazing and other uses of the land. The monuments were created from existing federal land and overseen by the Bureau of Land Management.

“The abuse of the Act is that it’s become about the one-upmanship of protecting and setting aside acres, creating an acreage arms race, instead of focusing on specific cultural and historic resources such as ruins, artifacts, and other articles of antiquity,” Welch said.

Multiple back-and-forth public lands decisions under the act, Welch said, has turned the lands in question “into political footballs, and that’s not the purpose of the act.”

—With assistance from Tripp Baltz.

(Adds reporting throughout. )

To contact the reporter on this story: Bobby Magill at bmagill@bloombergindustry.com

To contact the editors responsible for this story: Chuck McCutcheon at cmccutcheon@bloombergindustry.com; Rebecca Baker at rbaker@bloombergindustry.com

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