In a move that will likely further inflame Utah’s public land controversies, state officials led by Attorney General Sean Reyes filed a lawsuit Wednesday seeking to shed more than 2 million acres from the Bears Ears and Grand Staircase-Escalante monuments.
The vastness of these two designations far exceeds what is allowed under the 1906 Antiquities Act, the 1906 law President Joe Biden invoked last year in reestablishing monuments whose combined 3.2 million acres is twice the size of his home state of Delaware, alleges the 84-page suit filed in Salt Lake City’s U.S. District Court alleges.
Despite state leaders’ purported deference to local control, Democratic members of the San Juan County Commission, whose county includes Bears Ears, opposed their legal attack on the monument. The commission voted in support of the Bears Ears monument’s restoration soon after Trump shrunk it to about 200,000 acres.
“We’re going to continue to fight to keep the monument as it is,” said Commissioner Kenneth Maryboy, a member of the Navajo Nation which had sought the original monument designation with four other tribes. “This is our land. This is our homeland. And we like to protect all of our traditional values just as [others] would like to protect their churches.”
FILE - In this May 8, 2017, file photo, is Arch Canyon within Bears Ears National Monument in Utah. President Joe Biden said Wednesday, Jan. 20, 2021, he plans to review the Trump administration's downsizing of the Grand Staircase-Escalante and Bears Ears National Monuments in southern Utah. Bears Ears National Monument is on lands considered sacred to Native Americans who joined environmental groups in suing when the boundaries were redrawn in 2017. (Francisco Kjolseth/The Salt Lake Tribune via AP, File)
The suit asks the court to declare the monuments’ restoration unlawful and seeks an injunction blocking the Biden administration from implementing the president’s order reversing their reductions at the hands of President Donald Trump, Biden’s Republican predecessor.
Kane and Garfield counties, home to the Grand Staircase, are named co-plaintiffs in the suit, while San Juan is conspicuously absent. Although many San Juan residents opposed Bear Ears’ designation, the County Commission, now with a Navajo majority, has formally endorsed the monument’s restoration.
The Interior Department is currently developing new management plans for both monuments. It declined to comment on the suit.
Now in private practice, former Utah Solicitor General Tyler Green prepared the Utah suit with Consovoy McCarthy, the politically connected D.C.-based firm Reyes hired to conduct the monument litigation.
The filing targets Biden’s use of the Antiquities Act, which empowers presidents to set aside public land to protect historic landmarks, prehistoric structures and “other objects of historic or scientific interest.”
“Congress strictly limited the amount of land the president can reserve,” the suit states. “Under the Act’s plain text, the president’s power is limited to reserving only the ‘smallest area compatible with the proper care and management’ of the qualifying landmark, structure, or object.”
Citing a recent unofficial opinion by Supreme Court Chief Justice John Roberts, the suit claims that Biden and his two Democratic predecessors who initially designated the monuments, engaged in “‘a trend of ever-expanding antiquities’ reserved by presidents under an implausible and unlawful interpretation” of the Antiquities Act.
Even though presidents going back more than a century to Teddy Roosevelt have been designating large monuments, the suit claimed the Antiquities Act does not countenance placing monument status on entire landscapes.
“The Act does not authorize the president to declare generic and ubiquitous items or plants and animals as national monuments,” it alleges. “The Act does not authorize the president to draw boundaries around an enormous land area and then stitch together hundreds of items and features within those boundaries to try to reverse engineer a landscape-scale national monument.”
(Al Hartmann | Tribune file photo) Broken country of scrub and sandstone washes on top of the Kaiparowits Plateau in the Grand Staircase-Escalante National Monument, photographed in December, 2001.
Utah’s move quickly spurred heated condemnation from some of the tribal, science and conservation groups that lobbied hard for the Bears Ears’ original 1.3-million-acre designation set in 2016 by President Barack Obama.
“The tribes have been working for decades and really centuries to protect these lands, and it looks like we’ll have to continue that fight,” said attorney Matthew Campbell of the Native American Rights Fund.
He is representing three of the five tribes that proposed the monument and later sued to invalidate the Trump administration’s action reducing the monument. That and four related suits remain on hold in federal court.
“Once again, Utah’s political leaders are running roughshod over those who live closest to Utah’s national monuments — especially the tribes that have lived here since time immemorial,” said Scott Groene, executive director of Southern Utah Wilderness Alliance, or SUWA. “At a time when climate change is creating drought and extreme weather events in Utah, Utah’s politicians are exacerbating the harm by trying to upend the very public land protections that play a critical role in mitigating the effects of climate change. Utah residents deserve better.”
Groups and legal observers have previously predicted Utah’s long-threatened lawsuit would fail because many past large monuments, including President Bill Clinton’s 1996 Grand Staircase designation, have been upheld by the courts.
Sarah Bauman, executive director of Grand Staircase Escalante Partners, said Biden’s use of the Antiquities Act to restore the 1.9-million-acre monument in Kane and Garfield counties was appropriate considering the extremely important resources embedded in these public lands.
”Grand Staircase includes irreplaceable objects of historic and scientific interest — both natural and cultural. From the geological record of the earth’s history to sacred cultural sites of Indigenous Peoples to rare plants and unique paleontological research opportunities,” she said. “If these are lost, they are lost forever. Research shows majority support for these monuments in the State of Utah, and in our country.”
Obama and Clinton designated the monuments to protect their artifacts, fossils, native plants, canyons and mesas from looting, industrial development and motorized recreation.
But rather than protecting southern Utah’s archaeological and natural treasures, Biden’s order puts them at greater risk, according to a joint statement issued by an all-Republican cast of elected leaders that included Gov. Spencer Cox, Senate President Stuart Adams, House Speaker Brad Wilson and Utah’s entire congressional delegation.
“The vast size of the expanded Bears Ears and Grand Staircase-Escalante National Monuments draws unmanageable visitation levels to these lands without providing any of the tools necessary to adequately conserve and protect these resources,” the statement said. “We now challenge this repeated, abusive federal overreach to ensure that our public lands are adequately protected and that smart stewardship remains with the people closest to the land.”
State leaders renewed their insistence that congressional action would lead to a more lasting solution and more effective management of these treasured landscapes that are worthy of some protection.
“A congressional solution could better guard the area’s resources by ensuring tribal access to sacred sites, providing federal agencies with the management tools and funding they need, channeling visitation into appropriate protected locations, and giving local communities the funding and flexibility they need to thrive economically,” the statement said.
State Rep. Phil Lyman, R-Blanding, whose district covers both monuments, agreed Biden had overstepped his authority under the Antiquities Act and said now is the time for Utah to evaluate the entire premise of federal ownership of some much land inside the state.
“Until Utah claims jurisdiction over the land within its borders, we are complicit in the current dysfunctional and unconstitutional arrangement,” said Lyman, who fought the monument designation in 2016 while serving on the San Juan County Commission. “Arguing for slightly less federal control is equivocation. We can go through that exercise but the larger question of federal occupation of Utah is one that should be paramount and will not go away with these lesser legal arguments.”
His Democratic opponent in the upcoming election, Davina Smith, had a different take on the suit.
“This political pingpong must end,” said Smith, a member of the Navajo Nation. “It furthers the divides between our neighbors in rural Utah. The last thing rural Utah needs is wounds being reopened, uncertainty being created by lawsuits, and taxpayer money being spent recklessly. I will stay focused on what the state government can do to improve the lives of rural Utahns, and make sure we’re addressing the immediate needs of our communities.”
The Tribune’s Bluff-based reporter Zak Podmore contributed to this report.
