Biden’s National Monuments Power Set for Tenth Circuit Scrutiny

Whether judges can weigh the president’s right to set aside millions of acres of federal land as a national monument will be the central issue in Thursday’s oral arguments before an appeals court panel in Colorado.

The US Court of Appeals for the Tenth Circuit will hear oral arguments in Garfield County v. Biden, in which the county and the state of Utah claim that President Joe Biden’s re-establishment of the original boundaries of Grand Staircase-Escalante and Bears Ears national monuments violate the 1906 Antiquities Act because they’re too big to protect historical objects the law was intended to preserve.

If the litigation, which is broadly believed to be aimed at the US Supreme Court, gets to the merits, it could determine whether it’s legal for any president to unilaterally set aside large regions of federal land to block mining, oil and gas drilling, and other development by creating large national monuments, something that has become common mainly among Democratic presidents.

Grand Staircase-Escalante and Bears Ears, which together are more than 3 million acres, or roughly the size of Connecticut, were created by Presidents Bill Clinton and Barack Obama at their current size to protect sandstone canyons and Indigenous sacred sites on US Forest Service and Interior Department land from coal mining and oil and gas drilling.

After Utahns said it was wrong for the White House to block development by presidential fiat, President Donald Trump shrank them to a fraction of their size. Biden reversed Trump’s move in 2021.

Judicial Review

But the merits of the case won’t be the main question the panel will address Thursday.

“The main question before the court of appeals is whether the president’s actions are unreviewable, as the district court found,” said John Leshy, a professor of real property law at University of California College of the Law, San Francisco, and former Interior solicitor during the Clinton administration. “That outcome is hard to predict, but other courts have reviewed presidential actions in such circumstances.”

The appeals court panel hearing the case includes Judge Joel M. Carson III, a Trump appointee; Judge Veronica S. Rossman, a Biden appointee; and Judge Richard E.N. Federico, also a Biden appointee.

Judge David Nuffer of the US District Court for the District of Utah in 2023 dismissed Utah’s lawsuit against the monuments because he ruled that Biden’s actions under the Antiquities Act aren’t reviewable by the courts.

“Counsel might be pressed for some sort of ‘test’ that will permit some claims to move forward but block most claims against a designation of a monument,” said Sam Kalen, an environmental law professor at the University of Wyoming.

Nuffer spent very little time in his ruling discussing the merits, focusing mainly on his position that he lacked jurisdiction to review Biden’s actions under the Antiquities Act, said Sarah Matsumoto, director of the Environmental Law Clinic at the University of Colorado Law School, where the oral arguments will be held on Thursday.

Though the appeals court panel will focus on judicial review, it’s possible they’ll also address the merits, she said.

The state claims that protecting millions of acres of federal land by presidential decree violates the Antiquities Act because the law protects only the “smallest area compatible” to safeguard historic artifacts.

“I understand why folks who maybe wish to use land for other purposes could be frustrated by designations” of monuments, Matsumoto said. “The president has pretty broad discretion. If he or she oversteps, Congress can respond, and has responded in the past.”

Congress previously limited the president’s use of the Antiquities Act in Alaska and Wyoming. Congress in 1950 responded to President Franklin D. Roosevelt’s creation of a national monument that eventually became Grand Teton National Park by exempting Wyoming from the act.

After President Jimmy Carter created numerous monuments in Alaska in 1978, Congress responded by limiting the size of monuments created using the act in Alaska to 5,000 acres.

Aimed at Chief Justice

Matsumoto said the case is important because the plaintiffs sued after Chief Justice John Roberts hinted in a 2021 response to a denial of certiorari in Massachusetts Lobstermen’s Association v. Raimondo that he’d be interested in hearing a challenge to the Antiquities Act.

Roberts wrote that the act’s use has been “transformed into a power without any discernible limit to set aside vast and amorphous expanses of terrain,” and the court may have an opportunity to consider the issue in the future.

Attorneys for Garfield County and the state of Utah didn’t respond to requests for comment. The US Forest Service declined to comment, and the Interior Department didn’t respond to a request for comment. Both are defendants in the case.

Environmental groups who have joined the Utah litigation argue that the US Supreme Court settled the issue in 1920, when it upheld a challenge to President Theodore Roosevelt’s 1908 use of the Antiquities Act to protect 880,000 acres in the Grand Canyon, which eventually became a national park.

Plaintiffs Garfield County and Kane County, Utah, are represented by Consovoy McCarthy, and the state of Utah is represented by Consovoy McCarthy and the Utah Attorney General’s Office.

The case is Garfield County v. Biden, 10th Cir., No. 23-4106, oral arguments 9/26/24.