TOP LINE: Two national monuments in Utah have been restored, but it isn’t over.
Figure 1. Sixshooter Peaks and Indian Creek Canyon in the Bears Ears National Monument in Utah. Source: Bureau of Land Management.
My favorite Utah beer is Wasatch Brewing’s Polygamy Porter (motto: “Why just have one?”). Not only is it smooth, chocolatey, and easy-drinking, it’s also emblematic of the complex body politic that is the State of Utah. For example, the same Utah State Legislature that appropriates money to keep the national parks of Utah open during a federal government shutdown nonetheless wants all the federal lands transferred to state control as a stepping-stone to private control. (For more of my takes on Utah, see my Public Lands Blog posts “The Bipolar State of Utah and National Monument Designation” and “Statehood and Federal Public Lands: A Deal is a Deal.”)
I believe the Utah political elite wanted to severely reduce—but not eliminate—the two latest national monuments in Utah. They wanted national monuments just large enough to draw tourists but not large enough to prohibit serious exploitation of natural resources. Whatever their opinion, President Biden recently overrode President Trump’s 2017 overrides of President Clinton’s and President Obama’s proclamations that established the Grand Staircase–Escalante (1996) and Bears Ears (2016) National Monuments in southern Utah. Biden’s action, while greatly appreciated, simply undid damage by Trump. Today, the nation has no more national monument land than it once had, and a large court battle over the Antiquities Act of 1906 is still to come.
Figure 2. In the Grand Staircase–Escalante National Monument in Utah. Source: Bureau of Land Management.
Monumental Fights Over Federal Public Lands in Utah
Let us now relive a quarter century (so far) of presidential actions.
1996
On September 18, 1996, President Bill Clinton signed Presidential Proclamation 6920, which established the 1.7-million-acre Grand Staircase–Escalante National Monument (GS-ENM). Clinton signed the proclamation while overlooking the Grand Canyon across the state line in Arizona. Clinton was seeking his second term and the proclamation was politically popular nationally, though not so much in Utah. The Utah political elite were totally taken by surprise and were not happy. Clinton didn’t care, as he had no chance of getting Utah’s electoral votes anyway.
In running the first time in 1992, Clinton got fewer votes in Utah (25 percent) than the independent candidate H. Ross Perot (27 percent), while the incumbent President George H. W. Bush won easily (43 percent). In November 1996—after proclaiming the GS-ENM—Clinton upped his game in Utah (33 percent), but Bob Dole handily took the state with 54 percent of the vote. Perot ran again but did much worse (10 percent).
Monumental litigation ensued without effect, and Congress later blessed some exchanges of state lands within the monument for federal lands elsewhere.
2016
On December 16, 2016, President Barack Obama signed Presidential Proclamation 9558, which established the 1.35-million-acre Bears Ears National Monument (BENM), relatively near the GS-ENM. Obama’s second term would end in just over one month. The Obama administration took a long and public time pondering the new national monument before it acted. Perhaps this was worse for the Utah political elite than the surprise offered by the Clinton administration, as they had to long suffer what was inevitably coming.
A little over a month previously, Donald Trump had won the presidency (in Utah, Trump took 46 percent; Hillary Clinton, 27 percent; and conservative Evan McMullin, 24 percent). During the campaign, Trump had made it clear he’d help the Utah political elite to roll back national monuments.
2017
On December 4, 2017, President Donald Trump signed Presidential Proclamations 9681 and 9682 to reduce the BENM and GS-ENM by more than 1.1 million and 860,000 acres, respectively. The Utah political elite were ecstatic. Conservation organizations and some Native American tribes were not amused. Litigation ensued but had not been resolved by the time Biden acted (see below). The main question before the court was whether a later president could undo a national monument proclamation made by an earlier president. The Antiquities Act of 1906 says, among other things:
The President may, in the President’s discretion, declare by public proclamation historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest that are situated on land owned or controlled by the Federal Government to be national monuments.
The statute doesn’t say the president can undeclare national monuments. As there are other contemporaneous (shortly before and after 1906) statutes passed by Congress that expressly say the president can both do and undo certain things on public lands, the argument is that Congress meant national monument proclamations to be a one-way street. The court has not yet ruled in the case, and likely the case will be dismissed as moot in light of Biden’s reversal. Litigation challenging the Biden action on other grounds will follow.
I’m wondering if the US District Court judge in the case took their time because they didn’t want to have to rule on such a controversial case. Most district court judges see themselves being elevated to the US Court of Appeals, which requires another presidential nomination and Senate confirmation. Whatever the ruling in this case might have been, it would likely have made the judge politically ineligible for such an appointment.
2021
On October 8, 2021, President Joe Biden signed Presidential Proclamations 10285 and 10286 to restore the BENM and GS-ENM generally (see reference to the Trump Tract below) to their original extents. The Utah political elite were not amused and litigation will ensue. Conservationists and certain Native American tribes were relieved.
In his proclamation restoring the BENM, Biden took pains to make sure that an 11,200-acre parcel (hereafter, the Trump Tract) that Trump added to the BENM (a parcel that Obama declined to include) while otherwise severely shrinking the national monument remained as part of BENM (see Map 1 and Figure 3). For the record, Trump also proclaimed the 380-acre Camp Nelson National Monument in Kentucky (Proclamation 9811, October 26, 2018), proving himself to be only 99.41 percent bad.
Map 1. President Obama declared the Bear Ears National Monument as outlined here in black (~1.35 million acres). Trump shrunk it to ~0.25 million acres (the area shaded gray). Biden restored it to ~1,360,200 acres, carefully preserving the ~11,200-acre parcel that Obama eschewed and Trump embraced (the gray-shaded area outside of the black line). Source: Stephanie Smith, Grand Canyon Trust.
Figure 3. A portion of the Trump Tract, which includes Shay Mesa. Source: Tim Peterson/Lighthawk.
Coming Attractions
More litigation is inevitable. This time the legal question will likely be different. Another part of the Antiquities Act of 1906 says:
The President may reserve parcels of land as a part of the national monuments. The limits of the parcels shall be confined to the smallest area compatible with the proper care and management of the objects to be protected.
On October 8, 2021, President Biden signed Presidential Proclamation 10287, which un-gutted the Northeast Canyons and Seamounts Marine National Monument (NC&SMNM) in the Atlantic Ocean that on June 5, 2020, in Presidential Proclamation 10049, Trump had gutted. The NC&SMNM was established by President Obama in Presidential Proclamation 9496 on September 15, 2016. Gutting in this case was not a diminution in size but rather in protections. Obama’s proclamation banned commercial fishing, while Trump’s proclamation restored it. Biden’s proclamation returned to the original ban.
Litigation may well again ensue, but again on other grounds—or perhaps the same grounds to a more receptive US Supreme Court. Commercial fishing interests alleged that the NC&SMNM violated the congressional requirement that a national monument size be “confined to the smallest area compatible with the proper care and management of the objects to be protected.” They took their case to the US Supreme Court, which refused to hear the case (it takes four of nine judges to want to hear a case). However, in the order denying a “writ of certiorari” (Latin for “we’ll take the case”), Chief Justice John Roberts went on for four pages wondering aloud if presidents have violated the law in regard to “smallest area.” Roberts concluded his invitation to aggrieved parties to frame up a case with better facts by ending:
We may be presented with other and better opportunities to consider this issue without the artificial constraint of the pleadings in this case. See Pet. for Cert. 34 (citing five other cases pending in federal courts concerning the boundaries of other national monuments). I concur in the denial of certiorari, keeping in mind the oft-repeated statement that such a denial should not be taken as expressing an opinion on the merits. [citations omitted]
Biden’s trio of re-proclamations are replete with findings that indeed the president limited the area of the monuments to the minimum size necessary. It’s just that the “objects of historical or scientific interest” are quite large.
Given the current makeup of the Supreme Court, the use of the Antiquities Act to protect landscape-sized national monuments is in peril. One possible response is for conservationists to tactically withdraw our efforts to attain additional national monuments until the court makeup is again more favorable. Who knows when that will be, if ever? We do know that the critical need to attain protection of 30 percent of US lands for nature by 2030 requires the use of the Antiquities Act in this decade. (See Public Lands Blog post “Biden’s Bait and Switch.”)
In general, a law is not worth the paper it is written on if it cannot be enforced.
BOTTOM LINE: Perhaps the biggest court battle ever over the Antiquities Act of 1906 is still to come.