Trump’s Power to Abolish Monuments Hangs on Prolonged Ruling

The 13-months-and-counting wait for an appeals court to rule on the legal underpinnings of US national monuments leaves in limbo President Donald Trump’s executive authority to protect or abolish them as the White House rolls back public lands protections.

The US Court of Appeals for the Tenth Circuit heard oral arguments in September 2024 in Garfield County v. Biden, a case plaintiffs are aiming at the US Supreme Court as they challenge the president’s executive power to block mining, oil and gas drilling, and other development under the Antiquities Act.

The plaintiffs in Garfield County are taking Chief Justice John Roberts up on his 2021 invitation in Massachusetts Lobstermen’s Association v. Raimondo to challenge the scope of presidential power under the act. The Justice Department in a May opinion declared that presidential authority to create or abolish monuments is one of the White House’s “most sweeping unilateral powers.”

The case, if granted certiorari after the Tenth Circuit rules, would test the high court’s willingness to constrain executive power, said Deborah Sivas, director of the Environmental and Natural Resources Law and Policy Program at Stanford Law School.

“It might look too much like the Court favors executive power when conservative presidents act, and constrain it when more progressive presidents act—not a good look for the court,” Sivas said. “I have to believe that Roberts still wants to fight against delegitimization of the Court as just another hack political branch.”

The long wait for a ruling is unusual for the Tenth Circuit, she said.

The Tenth Circuit had the lowest number of pending cases of all the US appeals courts as of the end of June and claims on its website that, though there is no specific timeline for the court’s rulings, it has “one of the fastest turnaround times of any federal circuit court.”

The Tenth Circuit Court’s executive office didn’t respond to a request for comment.

‘A Lot at Stake’

Since oral arguments, Trump was elected president and his Justice Department outlined a rationale for abolishing national monuments. The Interior Department, which manages most of the 138 national monuments, has been cutting staff, expanding mining, oil drilling, and logging on federal lands, and is reviewing whether it can open national monuments to mining. Interior declined to comment citing pending litigation.

Garfield County, filed by the state of Utah and several southern Utah counties, challenges the legal basis for Utah’s Grand Staircase-Escalante and Bears Ears national monuments, which together span more than 3 million acres. Created by former Presidents Bill Clinton and Barack Obama under the Antiquities Act, Trump shrank both monuments in 2017, and former President Joe Biden later expanded them to roughly their original boundaries.

The US District Court for the District of Utah ruled that the Antiquities Act doesn’t grant judicial review for monument designations.

“Designations under the Act have gotten bigger and bigger and have been used as pretext to cut off access to public lands,” Frank Garrison, an attorney for the Pacific Legal Foundation, an amicus curiae opposing large monuments in the case, said in an email. “The district court’s opinion essentially said people can’t sue over the designations, so there is a lot at stake.”

Attorneys for the plaintiffs, including the Utah attorney general’s office, didn’t respond to requests for comment.

Complex Issues

During oral arguments, which were held at the University of Colorado Law School, the panel of judges struggled with how they’ll approach judicial review. It’s unusual for an appeals court to get to the merits of a case if the district court said no claim had been stated, said Judge Joel M. Carson III, a Trump appointee.

Natural resources attorneys and law professors are split on the significance of the Tenth Circuit’s delay.

The delay is likely connected to the complexity of the issues and the time required to carefully craft the opinion, said Chris Winter, executive director of the University of Colorado Law School’s Getches-Wilkinson Center for Natural Resources, Energy, and the Environment.

“It could be that the court is taking extra care in drafting because the plaintiffs have already telegraphed that they are teeing the case up for a cert. petition to the Supreme Court,” Sivas said in an email.

Mark Squillace, a professor at the University of Colorado Law School and amicus curiae in the case, said the delay is “odd,” but not unprecedented.

“It may suggest a split on the court,” he said.

Tom Delehanty, a senior attorney for Earthjustice, which represents nine environmental groups that have intervened in the litigation, said the time it’s taking the court to rule is “on the long side,” but a ruling could come any day now.

“Regardless of the outcome, we’ll continue to defend Bears Ears and Grand Staircase from Utah’s relentless attacks on our cherished public lands,” he said.

The case is Garfield County v. Biden, 10th Cir., No. 23-04106, arguments held 9/26/24.