Take down the Antiquities Act

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The goal of a lawsuit Utah officials filed last month against President Joe Biden’s restoration of two protected landscapes isn’t just to cut a total of 2 million acres from Bears Ears and Grand Staircase-Escalante National Monuments.

The actual prize is a US Supreme Court ruling neutralizing the Antiquities Act, which Attorneys at Law have used since Theodore Roosevelt of 1906 to designate monuments, often covering hundreds of thousands of acres.

Such designations amount to “presidential abuse of the Antiquities Act” and must end, according to the proposal put forward last year by the state’s outside law firm, Consovoy McCarthy, to win the lucrative contract to orchestrate the complex litigation.

The resulting lawsuit, filed in Salt Lake City‘s U.S. District Court last month, is the first shot in a lawsuit that is expected to take years to resolve and cost Utah taxpayers millions of dollars.

“Litigation in the district court should be conducted with an eye toward preserving all necessary legal rights and factual arguments for a trip to federal court and the U.S. Supreme Court,” proclaims the filing, which was submitted by Convoy partner Tyler Green, Utah’s only time Attorney General. “In our view, Utah should consider stops at both venues essential to this effort.”

$5 million has already been set aside

Green and other Convoy partners drafted the lawsuit in conjunction with Green’s former boss, Utah Attorney General Sean Reyes. It is argued that Presidents do not have the power to designate large areas under the Antiquities Act.

According to Utah legal scholar Brigham Daniels, an expert in environmental and property law, courts have repeatedly and unequivocally upheld large designations over the years.

“The tremendous momentum of the law over more than a century points in the other direction. They will ask the Supreme Court to reverse this area of ​​law,” said Daniels, who teaches as a visiting professor at the University of Utah while on leave from his regular tenure at Brigham Young University. “It will be a very time-consuming and costly affair for the state. There’s a very, very good chance that at the end of the day it’s just a token legal battle, that he has no legs, that all of this was basically a political statement.”

The current conservative majority on the Supreme Court may be receptive to the state’s arguments, but Daniels said he would not rely on the outcome Reyes and other elected Utah leaders want.

It’s not known exactly how much Cosovoy’s services will cost the state, but the Legislature has earmarked $5 million for public-land litigation this year. The firm’s senior attorneys charge $675 an hour. So far, the state has paid the company $522,000, according to the Utah Public Expenditure Database.

“Based on the federal government’s actions to date, we expect that it will mobilize overwhelming resources in a year-long legal battle to try to salvage the President’s unlawful designations that continue to impact the lives and livelihoods of Utah residents,” he said Attorney General through a spokesman. “Therefore, demonstrating a genuine commitment to enforcing the plain text of the law against years of expected federal resistance, culminating in review by the U.S. Supreme Court, was critical to our selection of outside counsel.”

“Damn the torpedoes”

Bears Ears and Grand Staircase were originally designated by President Barack Obama in 2016 and President Bill Clinton in 1996 at 1.3 million and 1.8 million acres, respectively. Biden’s order simply restored the monuments’ borders after they were drastically reduced by President Donald Trump.

Reyes claims Biden’s actions violated the “plain language” of the Antiquities Act, which limits the size of designations protecting historic structures and objects of scientific interest.

“These proclamations purport to make monuments out of things well beyond the purview of the law,” his office said.

The Convoy firm’s filing indicates Utah’s long-standing desire to resolve this issue related to proper sizing of monument markers.

“We see only one good reason for Utah not to exhaust all appellate review avenues: an amendment to the enacted text of the Antiquities Act,” it said. “Besides that, we recommend destroying the torpedoes.”

“A Great Natural Wonder”

With few exceptions, the other western states adopted the monuments designated within their borders, or at least learned to live with them. However, Wyoming objected to the designation of the 222,000-acre Jackson Hole National Monument in 1943, so Congress amended the Antiquities Act to exempt the Cowboy State from future designations without legislature approval.

The monument was later incorporated into Grand Teton National Park, which has since become a popular tourist destination. The same is true of Mukuntuweap National Monument, designated by President Howard Taft in southwestern Utah in 1909. Today this monument is known as Zion National Park.

Teddy Roosevelt made the first major proclamation under the Antiquities Act in 1908 when he designated Grand Canyon National Monument, which encompassed a 277-mile stretch of the Colorado River in Arizona.

An Arizona politician, Ralph Cameron, campaigned against designating 800,000 acres, arguing the president had no authority to cancel the reservation.

However, in a 1920 ruling, the Supreme Court affirmed that the Antiquities Act empowers presidents to name monuments of any size. The court ruled unanimously that the canyon itself was “an object of unusual scientific interest.”

Since the Grand Canyon’s designation, presidents of both parties have used the law to protect more than 100 million acres of public lands in dozens of monuments, according to law professor John Leshy, who advised Clinton as an Interior Department attorney in the 1990s.

“In all that has happened, almost without exception, no action has ever been taken by the courts, Congress, or subsequent Presidents to relax the protections afforded to public lands by law,” Leshy wrote in a recent article for the American Bar Association . “No court opinion at any level has discovered and enforced limits on the President’s power under the law.”

Unanswered questions?

But Reyes and the Consovoy team seem undeterred by this century of monument designation case law, citing the Antiquities Act’s own language. The law requires that designations be limited to the smallest practicable size. That provision indicates that landscape-oriented designations are not what Congress intended, the lawsuit says.

“The Monuments Litigation provides an ideal vehicle for finalizing unresolved questions about the scope of the President’s powers under the Antiquities Act. However, to best serve Utah’s interests, those answers must come from the United States Supreme Court,” Green wrote in the firm’s proposal. “Therefore, Consovoy McCarthy LLP, if elected, will be litigating the Monuments Challenge (referred to in paragraph 1 of the Complaint) with a single objective: to establish and establish a legal and factual record sufficient to obtain a Supreme Court review of merits. “

Consovoy proposed three other proposals for the Utah Treaty: Perkins Coie of Portland, Oregon; Gibson Dunn & Crutcher of Washington, DC; and Mitchell, Barlow & Mansfield of Salt Lake City with Lehotsky Keller LLP on the appeals page.

Critics accused the firm of “pandering” Utah’s conservative leadership instead of giving it an honest assessment of the case’s true prospects.

“Time and time again, federal courts have upheld Congress’s authority to the President to erect national monuments,” said Steve Bloch, legal director of the Southern Utah Wilderness Alliance. “Yet if you read Consovoy’s proposal, you would think the courts have gone both ways and there is a lot of controversy, when in reality that just isn’t the case.”

Green’s role on the heritage preservation team was one of the firm’s key selling points.

A 2005 law school graduate of the University of Utah, Green served as Utah Attorney General under Reyes from 2015 to 2020, when he resigned and soon after joined Consovoy as a senior partner.

Founded by young, politically committed lawyers, this DC-based law firm has earned a reputation for advocating conservative positions. His attorneys helped Trump fend off congressional investigations while he was still president and have since led cases on behalf of states that objected to Biden’s climate policies.

The firm may have limited experience in public property matters compared to its peers, but it does have strong ties to the conservative wing of the Supreme Court. Four of the team’s attorneys, including Green, worked for Justice Clarence Thomas, and lead attorney Jeffrey Harris worked for Chief Justice John Roberts.

If Utah has its way, the fate of the Antiquities Act could soon be in the hands of these influential judges.

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