Tuesday, December 5, 2017

Grand Staircase-Escalante and Bears Ears National Monuments Litigation

The map of central and southern Utah changed dramatically on December 4.  That day, roughly half of the Grand Staircase-Escalante National Monument and over 90% of the Bears Ears National Monument were eliminated, returning those lands to the status they held prior to the designations (federal, but with fewer protections).  Within hours of Trump signing Proclamations creating new, smaller monuments to replace Grand Staircase and Bears Ears (proclaimed by Presidents Clinton and Obama, respectively), multiple complaints have been filed in federal district court in Washington, D.C.

Earthjustice took the lead in the first Grand Staircase-Escalante National Monument lawsuit, representing 7 other national and regional environmental groups, and raising four claims against the President, the Department of Interior, and the BLM.  The five claims involve constitutional arguments (separation of powers and Take Care Clause violations), APA and Antiquities Act violations, all of which focus on Trump’s lack of authority to revoke the proclamations of his predecessors.  The constitutional arguments mirror those in other recent litigation challenging Trump’s executive actions – that he has exceeded the Constitutional limitations placed on his office and intruded on the functions of Congress.  Regarding the Antiquities Act, the environmental groups argue that the narrow delegation to the President to create national monuments does not carry with it the implied authority to revoke them.  The APA claim is against Interior and the BLM only, asserting that any implementation of Trump’s Monday order constitutes “arbitrary and capricious agency action not in accordance with law” because the order is unconstitutional.

A second Grand Staircase lawsuit was filed by a local nonprofit, Grand Staircase-Escalante Partners, along with the Society for Vertebrate Paleontology and the Conservation Lands Foundation, raising five claims against the President and Secretary of Interior Ryan Zinke.  These largely mirror the claims in the Earthjustice complaint, although the constitutional claims do not include the Take Care Clause and focus on the separation of powers issues. A new argument in this complaint is that given the length of time since Grand Staircase was created, Congress has demonstrated that it has exclusive authority over the Monument (potentially heading off any argument related to Congressional acquiescence that Trump or Zinke might make in the future).  The final claim in this complaint is that the Federal Lands Policy and Management Act, combined with the Antiquities Act, creates a statutory “superstructure” governing this Monument, which neither Trump or Zinke are authorized to circumvent in any way.

The Native American Rights Fund filed a complaint on behalf of the five tribal proponents of the Bears Ears National Monument (Navajo Nation, Hopi Tribe, Zuni Tribe, Ute Mountain Ute and Ute Indian Tribes), asserting four claims against Trump, the Secretaries of Interior and Agriculture, and the directors of the Forest Service and BLM. This complaint also alleges constitutional violations, and claims under the Antiquities Act and the APA.  This Antiquities Act claim is slightly different than the one in the Earthjustice complaint, and argues that not only Trump’s orders, but any agency implementation of those orders is ultra vires action violating the Antiquities Act. The tribes also argue that Trump’s orders are unconstitutional based on separation of powers concerns and the Property Clause (which vests all decisions about federal land ownership with Congress, unless expressly delegated to the President or to an agency). Finally, the tribes' APA claim is based on section 706(1) (authorizing courts to “compel agency action unlawfully withheld”) because BLM and Forest Service have failed to develop a Monument Management Plan under the lawful proclamation issued by President Obama, which created the Bears Ears National Monument on December 28, 2017. 

On December 6, Utah Dine Bikeyah, a nonprofit organization focused on preserving places of cultural value to the Navajo Nation, filed a complaint on Bears Ears, joined by 7 other plaintiffs, including Patagonia and the Access Fund.  This complaint largely mirrored the tribes' complaint, especially as to the causes of action. The first two claims allege that the Revocation Proclamation was an ultra vires action outside the scope of the Antiquities Act.  They add more factual detail about the impacts to excluded areas by off-road vehicle use, in particular.  Counts three and four allege separation of powers and Take Care Clause violations, mirroring the claims in the Earthjustice complaint on Grand Staircase-Escalante.

The next day, NRDC filed a complaint on Bears Ears as well, joined by 9 other national and regional environmental groups.  This complaint largely mirrors that of Earthjustice on the Grand Staircase-Escalante Proclamation.

Some of these issues are ones of first impression, and others are not.  It is clear that the Property Clause places decisions about public lands squarely within Congress’s domain, but that those powers can be delegated to the Executive.  The issue of whether the Antiquities Act contains an implied power to reverse Monument proclamations is one of first impression, although at least one Attorney General opinion and several public lands scholars’ recent analysis have concluded no such authority exists (see opposing arguments here).  Parties to the litigation have created maps representing their best estimation of the new Monument boundaries.

- Hillary Hoffmann


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