Tribes: Utah bid to reject monuments is ‘absurd and confusing’

By Jennifer Yachnin | 05/09/2023 01:26 PM EDT

The Native American tribes, Justice Department and environmental groups urged a court to toss the case brought by the state of Utah against President Joe Biden’s decision to re-expand the Grand Staircase-Escalante and Bears Ears national monuments.

Bears Ears National Monument.

This long exposure shot taken at midnight shows the two bluffs known as the "Bears Ears" in the Bears Ears National Monument on May 12, 2017, outside Blanding, Utah. George Frey/Getty Images

Native American tribes this week pressed a federal court to dismiss a lawsuit challenging the boundaries of two national monuments in Utah, asserting state officials misread a 1906 law to obtain “absurd and confusing results.”

The Biden administration and environmental groups also urged the U.S. District Court for the District of Utah to toss the case in separate filings.

The lawsuits are the latest challenges to Grand Staircase-Escalante and Bears Ears national monuments, long the focus of criticism from Republican lawmakers in Utah who say the sites should be significantly smaller.


The state, along with Kane and Garfield counties, filed a lawsuit last year alleging President Joe Biden exceeded his authority under the Antiquities Act of 1906 when he restored more than 2 million acres that had been removed by the Trump administration.

In court documents filed in April, Utah Solicitor General Melissa Holyoak said the state is losing revenues from mineral leasing and grazing fees, and asked the court to allow its challenge to move forward.

But in a reply filed Monday, attorneys representing the Hopi Tribe, Pueblo of Zuni, Ute Mountain Ute Tribe and Navajo Nation Department of Justice argued that Utah officials have broadly misinterpreted the Antiquities Act.

“Utilizing inapplicable canons of construction, dictionaries from another time, and a strained construction, Plaintiffs’ responses are an attempt to narrow the application of the Antiquities Act,” the tribes’ motion states. “Under their definitions, it is really only historic landmarks and historic or prehistoric structures that can be protected. Their construction leads to absurd and confusing results, and it ignores the plain language of the Act.”

The 1906 law allows a president to set aside existing public lands to protect areas of cultural, scientific or historical interest.

Utah officials have argued that Biden misused the law when he included various animal and plant species, landscapes and objects like “unimpeded views of the night sky” in his proclamations to protect the sites.

But attorneys for a host of environmental and conservation groups — including the Center for Biological Diversity, the Grand Canyon Trust, Great Old Broads for Wilderness, the National Parks Conservation Association, the Natural Resources Defense Council, the Western Watersheds Project, WildEarth Guardians, the Wilderness Society, the Sierra Club and the Southern Utah Wilderness Alliance — argued in their own filing that complex ecosystems and large swaths of land have long been preserved as monuments.

“Plaintiffs base all their claims on the flatly erroneous premise that national monuments may protect only discrete items like archeological ‘relics,’ and cannot protect landscapes, habitats, or wildlife of scientific interest,” the environmental groups stated.

The motion continued: “For more than a century, then, Presidents have understood that habitats, plants, and animals are protectable objects of interest under the Act.”

The environmental organizations also pushed back on Utah’s reliance on a written statement Supreme Court Chief Justice John Roberts authored in 2021 questioning whether presidents have abused the law by creating “ever-expanding antiquities.”

The motion notes that the statement — issued alongside the Supreme Court’s refusal to weigh in on a case challenging President Barack Obama’s creation of a marine national monument in the Atlantic Ocean — does not carry any legal authority.

“It is outlandish that Plaintiffs rely on the statement to support their mistaken assertion that the Court’s prior holdings were ‘pure dicta,’ given that the statement of a single Justice, in a case where the Court denied certiorari, is itself the ‘purest form of dicta’—and is ‘potentially misleading’ to boot,” the attorneys wrote.

In a separate filing, the Justice Department also objected to arguments from Utah and the two counties that monuments are causing the state to alternately lose revenues from the loss of mining and other land uses, and spend additional funds because of rising visitation.

“The primary theory of injury in their pleading [increased visitation] is defective: they cannot establish that the Biden Proclamations — as opposed to the prior existence of the Monuments, pandemic tourism, and even their own active efforts to attract tourists — caused the increase visitation that they now complain about,” wrote Environment and Natural Resources Division Assistant Attorney General Todd Kim, Natural Resources Section Senior Attorney Michael Sawyer and others.

“Nor can the Court issue an order that remedies these alleged increased-visitation harms. Tellingly, their opposition pivots, downplaying the tourism theory to instead focus on still-insufficient theories about decreased revenues, the inability to enforce state laws on federal land, and alleged increased expenditures,” the motion continued.