Two University of Colorado Law School professors submitted amicus briefs in litigations challenging the Trump administration’s recent actions shrinking Bears Ears National Monument and Grand Staircase Escalante National Monument.
President Clinton, pursuant to his authority under the Antiquities Act, established the Grand Staircase-Escalante National Monument on September 18, 1996. Under the same authority, President Obama established the Bears Ears National Monument on December 28, 2016. Both monuments span across a portion of the state of Utah and protect a vast area of illustrious canyons and rock lands filled with objects of scenic, cultural and scientific interest.
On April 26, 2017, President Trump called for a review of all national monument designations made since January 1, 1996, where the designation covers more than 100,000 acres or “where the Secretary of Interior determines that the designation or expansion was made without adequate public outreach or coordination with relevant stakeholders.” This review resulted in President Trump shrinking the size of both the Bears Ears National Monument and the Grand Staircase-Escalante National Monument.
Bears Ears National Monument consists of lands held deeply sacred to five American Indian tribes in its region. It is a land filled with spiritual, cultural, scenic and scientific interest. If you’ve ever visited the area, then you’ve likely been struck by its majestic twin rock formations in the shape of a bear’s ears. Similarly, Grand Staircase-Escalante is a landscape filled with significant ecological objects, including medicinal plants, springs and ceremonial sites. Both areas contain extremely sensitive cryptobiotic soils. National Monument status of these areas ensures the soil, cultural, scenic and scientific objects are preserved and protected from the destruction that would occur from the extraction of natural resources.
Colorado Law Professor Sarah Krakoff and Harvard Law School Professor Bob Anderson – both legal experts in America Indian law and public lands law – co-authored an amicus brief in the Bears Ears litigation. They argue that the Antiquities Act only gives the President authority to designate national monuments, not to revoke or reduce their boundaries.
They contend that Congress did not delegate to the President the power to revoke or shrink national monuments, and that public lands policy, federal land management schemes, legislative history, and the plain text of the Act supports this. Since passing federal land management laws like FLPMA, MUSY, and NFMA, Congress moved away from presidential discretion over public lands and instead, delegated land management authority to on-the-ground governing agencies equipped to handle rapidly changing conditions of lands. Without delegated authority from Congress to make such sweeping land grabs, the President lacks authority to shrink the boundaries of monuments. The brief is currently before the U.S. District Court for the District of Columbia as the court considers whether to grant the Trump administration’s motion to dismiss.
Additionally, Colorado Law Professor Mark Squillace and University of Nevada Las Vegas Law School Professor Bret Birdsong, co-authored the amicus brief in the related case regarding the Grand Staircase-Escalante National Monument. Squillace endorses the arguments put forth by Krakoff and Anderson in the Bears Ears amicus brief, and argues that shrinking Grand Staircase-Escalante would leave the various sensitive cryptobiotic soils and ecological resources vulnerable to mineral exploration, motor vehicle use, foot traffic, and the taking of geochemical rock and mineral specimens. Moreover, Squillace explains that Congress adopted and ratified the boundaries of the Monument with the passage of the Utah Schools and Lands Exchange Act of 1998. Trump’s reduction of the boundaries directly conflicts with an act of Congress and thus, he is without legal authority to reduce the boundary size. Squillace’s brief is also before the U.S. District Court for the District of Columbia.
Aside from the reductions illegality, the briefs argue that reducing the size of Bears Ears and Grand Staircase-Escalante National Monuments would jeopardize their many scientific, scenic, and cultural interests – the very things the Antiquities Act was meant to protect. The President’s actions are ultra vires – beyond his Presidential powers.
The Krakoff and Anderson full brief in the Bears Ears litigation can be found .
The Squillace and Birdsong full brief in Grand Staircase-Escalante litigation can be found here.
Tarah Bailey is a 2018 graduate of Colorado Law and the Getches-Wilkinson Center Graduate Fellow.