A group of 29 law professors from across the country have urged an appeals court to dismiss Utah’s lawsuit over its national monuments.
The law professors specialize in natural resources and public land law. They filed an amicus curiae brief — a type of legal brief by people who are not party to the case but want to offer arguments to the court for consideration — in the 10th Circuit Court of Appeals in Denver last week. Amicus curiae in Latin translates to “friend of the court.”
Utah’s case challenges the Antiquities Act, a 1906 law that authorizes the president to protect land by designating national monuments. President Joe Biden used the Antiquities Act to restore Bears Ears and Grand Staircase-Escalante National Monuments, both spanning millions of acres in southern Utah, to their original boundaries in 2021 after former President Donald Trump slashed their acreage in 2017.
The brief follows one filed in November by Arizona Republicans — but on Utah’s side. The Beehive State’s southern neighbor also attacked the Antiquities Act, comparing its usage to English monarchs putting forests aside for “royal use” in medieval times.
The professors’ filing claims that Congress did not delineate standards for the courts to review the president’s actions under the Antiquities Act. As a result, they write, the court should not “substitute its judgment for that of the President.”
Utah, however, argues that Biden overstepped his authority when he reversed Trump’s reductions. The state also claims that the two monuments are not “confined to the smallest area compatible with the proper care and management of the objects to be protected,” as the Antiquities Act directs.
Utah has also challenged the kinds of objects protected in Bears Ears and Grand Staircase-Escalante National Monuments.
The law professors’ brief counters that Congress has repeatedly confirmed the president’s power under the Antiquities Act and that the legislation has survived every past challenge in court. They also dispute Utah’s argument that “‘generic geological items’ like sandstone cliffs are not eligible for protection.”
The brief further argues that Congress intentionally used flexible language to give the president “broad discretion to protect a wide array of resources.” The Antiquities Act does not place strict limits on the size of monuments or what are considered “antiquities” worth protecting, relying instead on the President’s judgment.
The law professors cite the 117-year history of presidents using the Antiquities Act to protect land in the United States. Presidents used the legislation to protect many natural features throughout the country: Devils Tower in Wyoming, the Grand Canyon in Arizona, Muir Woods in California, Acadia National Park in Maine and Glacier Bay in Alaska, for example.
“Because Appellants cannot reconcile their claims with the full weight of this history, they choose to ignore it,” the brief reads. “The proclamations restoring Bears Ears and Grand Staircase-Escalante National Monuments are fully consistent with this rich historical legacy, which has resulted in the protection of vast areas of majestic and irreplaceable public lands across the country that the Antiquities Act has safeguarded for future generations to enjoy and steward.”
President Biden was careful and judicious in restoring the two monuments, the brief claims, as evidenced by the detail in the proclamations that designated them.
Utah filed its lawsuit challenging the national monuments in 2022. The state wants the courts to declare the monument designations unlawful, which would remove over 2 million acres from federal protection.
The Biden administration — alongside Native American tribes and environmental groups — wants the 10th Circuit Court of Appeals to dismiss Utah’s complaints, just like U.S. District Judge David Nuffer did in August of 2023.
Utah appealed Nuffer’s decision to the 10th Circuit Court just days afterward. Gov. Spencer Cox clarified that Utah wants the case to reach the Supreme Court.
