Environmental Protection

Gov’t Says Trump Had Power To Shrink National Monuments

The federal government continued to argue that the Antiquities Act gives President Trump the power to reduce the size of two national monuments, pushing back in D.C. federal court against opposition raised by amici in support of the tribes and environmental groups challenging the presidential proclamation.

The government said Wednesday that the amici, which include Democratic members of congress, law professors and archeological groups, were wrong to claim the president had “revoked” or “abolished” the Bears Ears and Grand Staircase-Escalante national monuments.

Both monuments still exist, they are simply smaller in size, the government says. It said under the Antiquities Act of 1906, the president has the authority to designate national monuments that make up the “smallest area” deemed to be appropriate in order to protect natural and cultural assets.

“Amici (and plaintiffs) have no trouble reading into the act an implied authority to modify the boundaries to enlarge the lands reserved for a monument — despite the absence of express textual authorization,” the government said. “Accordingly, they cannot reasonably dispute that the ‘smallest area’ requirement firmly supports federal defendants’ interpretation — that the president has the authority to modify monument boundaries.”

In their November amicus brief, over two dozen Democratic senators and almost 100 Democratic representatives said the “smallest area” requirement was not meant to facilitate the reduction in size of monuments, but rather to ensure that monuments were not overly large in size when they were initially created.

But the government said Wednesday that courts have held that the Antiquities Act gives the president broad power to designate national monuments. Therefore the act can be interpreted as “establishing authority for the president to unilaterally act, and continue to act, to ensure monument reservations were reserved to the requisite ‘smallest area’ — rather than imposing a prohibition on presidents creating new, vast reserves — which the courts have not seen fit to rigorously enforce in deference to presidential prerogatives.”

Whether the Antiquities Act gave the president the authority to reduce the size of the national monuments is the key question that amici must help the court to answer, U.S. District Judge Tanya S. Chutkan said in a March order.

The district court judge denied the National Congress of American Indians and the Association of American Indian Affairs’ motion to file an amicus brief, saying the groups had failed to provide insight into that pertinent question.

Brian Frazelle, an attorney at the U.S. Constitutional Accountability Center who represents the members of Congress, told Law360 in a statement Thursday that it is “obvious that the text of the Antiquities Act forbids what the administration is trying to do here.”

“So the administration has been reduced to claiming that other presidents committed similar violations in the past without Congress objecting — and that somehow this changed the meaning of the act,” he said. “But presidents can’t change the meaning of a law by repeatedly violating it, and Congress can’t change the meaning of a law by not amending it. The Supreme Court has been crystal clear on this point for decades.”

In December 2017, Trump issued two presidential proclamations modifying Grand Staircase-Escalante, which was designated a monument by President Bill Clinton, and Bears Ears, designated by President Barack Obama.

One of Trump’s proclamations divided the Grand Staircase-Escalante monument into three new areas and reduced it from 1.7 million acres to about 1 million acres. The other divided Bears Ears into two areas and reduced it from 1.35 million acres to about 200,000 acres.

Grand Staircase-Escalante and Bears Ears were originally requested by conservationists and Native American tribes and acclaimed after their designation for protecting important natural, cultural, historic and scientific sites and relics.

Those groups sued over the Trump administration’s modifications, saying they violate the Constitution’s separation of powers doctrine by taking power Congress reserved for itself, as well as the take care clause, which establishes that a president “take care that the laws be faithfully executed.”

The government’s arguments have received support from the state of Utah and the American Farm Bureau Federation, while the tribes and environmental groups challenging the president’s decision continue to argue that the Antiquities Act does not grant him the power to revoke national monument declarations.

The Hopi TribeNavajo NationUte Indian TribeUte Mountain Ute Tribe and Zuni Pueblo also said the Big Ears monument contains many important cultural sites, some of which date back 13,000 years, including petroglyphs and painted hand prints that tribal members visit. They said Trump’s decision doesn’t only run afoul of the Antiquities Act, but also abrogates the tribes’ right to engage with the federal government in collaborative management of all of the lands, according to court documents.

Representatives for the amici did not immediately respond to requests for comment Thursday.

The members of Congress are represented as amici by Elizabeth B. Wydra, Brianne J. Gorod and Brian R. Frazelle of Constitutional Accountability Center.

The government is represented by Jeffrey H. Wood, Romney S. Philpott and Judith E. Coleman of the U.S. Department of Justice‘s Environment and Natural Resources Division.

Garfield and Kane counties are represented by David McDonald and Zhonette Brown of Mountain States Legal Foundation.

Utah is represented by Anthony L. Rampton, Sean D. Reyes, Kathy A.F. Davis, Tyler R. Green, David Wolf, Lance Sorenson and David Halverson of the Utah attorney general’s office.

The American Farm Bureau Federation and Utah Farm Bureau Federation are represented by William G. Myers III and Victoria A. Marquis of Holland & Hart LLP.

The Wilderness SocietyDefenders of Wildlife, Grand Canyon Trust, Great Old Broads for Wilderness, Western Watersheds Project, WildEarth Guardians, Sierra Club and Center for Biological Diversity are represented by Heidi McIntosh, James Pew and Yvonne Yuting Chi of Earthjustice.

Utah Dine Bikeyah, Friends of Cedar Mesa, Archaeology Southwest, Conservation Lands Foundation Inc., Patagonia Works, The Access Fund, the National Trust for Historic Preservationand the Society of Vertebrate Paleontology are represented by James T. Banks, Adam M. Kushner, Douglas P. Wheeler III and Hunter J. Kendrick of Hogan Lovells.

The Hopi Tribe, Ute Mountain Ute Tribe and Zuni Tribe are represented by Natalie Landreth and Matthew Campbell of the Native American Rights Fund.

The Navajo Nation is represented by Paul Spruhan, Assistant Attorney General Navajo Nation Department of Justice.

The Ute Indian Tribe is represented by Jeff Rasmussen and Rollie Wilson of Fredericks Peebles & Morgan LLP.

The Natural Resources Defense Council is represented by Sharon Buccino, Jacqueline M. Iwata, Katherine Desormeau, Ian Fein and Michael E. Wall.

The Southern Utah Wilderness Alliance is represented by Stephen H.M. Bloch, Landon C. Newell and Laura E. Peterson.

The first set of consolidated cases is The Wilderness Society et al. v. Donald J. Trump et al., case number 1:17-cv-02587, and Grand Staircase Escalante Partners et al. v. Donald J. Trump et al., case number 1:17-cv-02591, in the U.S. District Court for the District of Columbia.

The second set of consolidated cases is Hopi Tribe et al. v. Donald J. Trump et al., case number 1:17-cv-02590, Utah Diné Bikéyah et al. v. Donald J. Trump et al., number 1:17-cv-02605, and Natural Resources Defense Council et al. v. Donald J. Trump et al., case number 1:17-cv-02606, in the U.S. District Court for the District of Columbia.

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