Utah is still fighting Biden over Bears Ears. Court arguments in Boulder showed a state desperate to take “its” land back.

Attorneys for President Joe Biden and the state of Utah were in court again last week arguing over the law that let Biden expand Bears Ears and Grand Staircase-Escalante national monuments by millions of acres after they were drastically downsized in 2017 by then President Donald Trump. 

The outcome of the case could determine how much authority a president has to resize national monuments under the Antiquities Act of 1906, which could one day impact newly designated Camp Hale National Monument and the proposed 400,000-acre Dolores River Canyon Country National Monument. 

The 10th Circuit Court of Appeals judges presiding over the case — Biden-appointed Richard Federico and Veronica Rossman and Trump-appointed Joel Carson III — likely won’t rule for months, one of the Biden attorneys said. But no matter what they decide, some experts say the case will likely continue moving toward the U.S. Supreme Court. 

The Antiquities Act and the pendulum of power 

The debate unfolded in front of dozens of law students in the Wittemyer Courtroom at the University of Colorado Law School in Boulder. It focused on whether a court can review challenges to the Antiquities Act, which was created to give presidents the authority to create national monuments to protect areas of cultural, historical and scientific significance. 

Presidents have used the Antiquities Act to establish 158 national monuments on 750 million acres that they have increased or decreased on at least 90 occasions. 

President Franklin D. Roosevelt in 1936 developed a proposal that would have protected much of what are now Bears Ears and Grand Staircase-Escalante monuments. However, Grand Staircase-Escalante didn’t become a monument until President Bill Clinton used the Antiquities Act to designate it in 1996 and Bears Ears wasn’t one until President Barack Obama designated it in 2016. 

Trump used his executive powers to lop 1 million acres from Clinton’s 1.36 million-acre Grand Staircase-Escalante designation and around a million from the Bears Ears boundary set by Obama. Trump also opened nearly a million acres in the area to coal mining and oil and gas drilling. But the pendulum swung back again in 2021 when Biden used the Antiquities Act to double the size of the monuments.  

In 2022, Utah officials along with other parties sued Biden for acting beyond his legal authority because the Antiquities Act was not intended to enact million-plus-acre designations. But the following year, U.S. District Court Judge David Nuffer dismissed the case, stating the Antiquities Act does grant presidents discretionary authority. 

Ruling on an inability to rule 

On Thursday, Stanford Purser with the Utah Attorney General’s Office told the three judges that the case had made its way to the 10th Circuit because Nuffer, the Utah-based federal judge, had “thrown up his hands” saying “I don’t know what to do here.” 

Three years ago, Supreme Court Justice John Roberts lamented how conditions within the Antiquities Act had ceased to pose any meaningful restraint, Purser added. 

But Rossman said she wasn’t sure how the judges were going to come up with a ruling different than Nuffer’s, throwing up their hands because the higher court’s decision could be barred by powers in the Antiquities Act that give presidents sovereign immunity, or the inability to be sued without their consent. 

The judges asked John Bies, attorney for the United States, if the power would let Biden make the entire state of Utah a national monument. 

Bies said yes if he had a “bona fide basis.” But Purser said if the president did declare all of Utah a monument he would be acting without the legal authority to do so. Then they discussed what factors constituted Bears Ears becoming a national monument. 

The plaintiffs in their written arguments for the 10th Circuit hearing stated that “the Antiquities Act has two express limits: the president may declare as a national monument only “historic landmarks, historic and prehistoric structures [or] other objects of historic or scientific interest” that are “‘situated’ on public lands” and that the amount of land conserved must be confined to the smallest area compatible with the proper care of the objects to be protected.  

The White House’s Proclamation on Bears Ears National Monument describes Bears Ears’ unique density of significant cultural, historical and archaeological artifacts spanning thousands of years, including remains of single-family homes, ancient cliff dwellings, large villages, granaries, kivas, towers, ceremonial sites, prehistoric steps cut into cliff faces, and a prehistoric road system that connected the people of Bears Ears to each other and possibly beyond.”

And Biden justified doubling what Utah’s Republican leadership called “a unilateral overreach by a federal government imposing its will” on the state based on Interior Secretary Deb Haaland’s recommendation and the Bears Ears Intertribal Coalition’s assurance that the monument represented a historic opportunity for the federal government to learn and incorporate tribal land management practices that the tribes developed over centuries and “are needed more now than ever.” 

But Utah in its written arguments said scores of objects Biden claimed qualify Bears Ears for monument designation “including hundreds of generic things like mule deer, boulders and potatoes … are not objects as properly defined in statute.” And even if they were, Biden went beyond his authority by expanding Bears Ears to 3.2 million acres, they wrote.  

But Rossman said she was struggling to find “cause of action,” or facts that give a plaintiff the right to sue a defendant, in the case.  

Matthew Campbell, an attorney for the Native American Rights Fund who represented the tribal nations, said the question of Biden overstepping his authority wasn’t applicable anyway,  because many of the places within Bears Ears and Grand Staircase-Escalante were within the president’s jurisdiction to protect.

Proving injurious harm hypothetically  

Later, the plaintiffs turned to the “tapestry of statutes” they mention in their written argument, “allowing multiple uses on the land that are displaced in ‘monument designation’” and the federal crime associated with “injuring or removing any of the 500-plus objects now declared to be national monuments including most plants, animals and rocks within the boundaries.” 

Utah’s attorneys argued that new regulations on things like mining within the boundaries would harm the miner, because they would now require an application costing upwards of $100,000. 

Judge Carson asked Bies, “Don’t you think that would cause (the miner) not to exercise the rights?” 

“He hasn’t been asked to pay the fee yet,” Bies answered. 

But what if he says, “I don’t have $100,000, so I don’t want to take the first step,” Carson pressed. 

“He’s alleging he has $2 million in lost profit,” Bies answered. 

“We’re at a very early procedural stage. We’re just looking at the allegations,” Rossman said. And the judges ended the hearing without making a ruling. 

After the hearing, Campbell told The Colorado Sun that it will likely be months before they do. 

Utah has said it plans to take the case all the way to the Supreme Court. 

But Campbell said there are many sites including kivas, burial grounds and ceremonial locations in Bears Ears and Grand Staircase “that are immensely important historically to the Tribes. We think that’s within the heart of the Antiquities Act. So this case should be tossed.”