Utah’s attorney general, indicating he’s willing to eventually approach the U.S. Supreme Court over President Biden’s boundary revisions to Bears Ears and Grand Staircase-Escalante national monuments, has appealed a lower court’s ruling against the state.
Late last week U.S. District Judge David Nuffer said the state was in no position to second guess Biden’s decision to restore the monuments’ original boundaries as set by Presidents Clinton and Obama.
The legal battle hinged on the authority The Antiquities Act grants the president of the United States to unilaterally designate national monuments. Former President Trump flew to Salt Lake City in December 2017 to issue presidential proclamations that sheared nearly 2 million acres from the two monuments; the 1.9-million-acre Grand Staircase-Escalante had been designated by Clinton in 1996, while the 1.3-million-acre Bears Ears had been designated by Obama in 2016.
Bears Ears as originally designated was home to multiple culturally significant and archaeological sites dating as far back as 11,000 BCE. The land is still used today by tribal members, who continually visit it to conduct religious ceremonies and other traditional practices. Grand Staircase, meanwhile, is extremely rich in paleontological resources, with nearly 150 scientists having said the monument “hosts one of the highest concentrations of dinosaur fossils in the world,” and that only 6 percent has been surveyed, and that “the potential for future discovery is tremendous.”
But Trump maintained that Clinton and Obama overreached their authority under The Antiquities Act by creating national monuments larger than needed to protect historic, cultural, archaeological, and paleontological resources. The Republican then issued an executive order to cut Grand Staircase by a bit more than 1 million acres and broke it into three monuments known as Grand Staircase, Escalante Canyons, and Kaiparowits. Bears Ears shrank to a bit more than 201,000 acres in the Indian Creek and Shash Jáa units from its original size of 1.3 million acres.
Biden in the fall of 2021 reversed Trump’s actions in a move both to keep a promise to restore the boundaries and also to uphold “the longstanding principle that America’s national parks, monuments, and other protected areas are to be protected for all time and for all people,” the White House said at the time.
In their lawsuit, Utah authorities claimed Biden went too far by restoring the original monument boundaries, arguing that the boundaries he restored were “not confined to qualifying historic landmarks, historic and prehistoric structures, or other objects of historic or scientific interest.”
Judge Nuffer, however, ruled that, “It has long been held that where Congress has authorized a public officer to take some specified legislative action when in his judgment that action is necessary or appropriate to carry out the policy of Congress, the judgment of the officer as to the existence of the facts calling for that action is not subject to review. President Biden’s judgment in drafting and issuing the Proclamations as he sees fit is not an action reviewable by a district court.”
On Monday Utah’s attorney general, Sean D. Reyes, filed a motion to appeal the lower court’s ruling to the 10th U.S. Circuit Court of Appeal. His office said it was “a necessary stop before any trip to the U.S. Supreme Court.”
“All along, the State of Utah has sought appropriate protections of the precious, unique area in the heart of the Bears Ears and Grand Staircase-Escalante regions,” Reyes said. “But the current monument designations are overkill by millions of acres. President Biden’s designations exceed his authority. We eagerly anticipate explaining to the Tenth Circuit why the law and the facts are on our side.”