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Law professors from across U.S. say Utah’s national monument lawsuit doesn’t hold water  


Law professors from across U.S. say Utah’s national monument lawsuit doesn’t hold water  

Jan 24, 2024 | 8:07 am ET
By Kyle Dunphey
Law professors from across U.S. say Utah’s national monument lawsuit doesn’t hold water  
Ruins are pictured near the Fish Creek area of Bears Ears National Monument in San Juan County on May 18, 2018. (Kyle Dunphey/Utah News Dispatch)

A group of law professors are pushing back on Utah’s effort to scale back Bears Ears and Grand Staircase Escalante national monuments, arguing the president can, in fact, issue large monument designations and attempts to challenge that authority have failed. 

In a brief filed last week in the 10th Circuit Court of Appeals, a group of 29 law professors — described as “experts in the field of public land law and natural resources law” — accused the state of Utah of trying “to rewrite the Antiquities Act under the guise of statutory interpretation.” 

The brief lays out several arguments: Congress used flexible language when drafting the Antiquities Act, giving the president “broad discretion to protect a wide array of resources and features”; in the 117 years since the act was passed, presidents have used the act to protect “tens of millions of acres of public land”; and prior U.S. Supreme Court rulings found the president can “protect natural as well as cultural resources as objects of historic or scientific interest.” 

Central to the professors’ argument is judicial review — specifically, that when Congress passed the Antiquities Act, it did not create a standard of review for federal courts to ensure that the president’s actions were consistent with the act. 

In short, “it’s not for the courts to substitute their judgment for the President’s decision.” 

That’s according to Chris Winter, the executive director of the Getches-Wilkinson Center for Natural Resources, Energy, and the Environment at the University of Colorado Law School. Winter also serves as counsel for the professors. 

The brief challenges several points made in Utah’s lawsuit, including how “generic geological items” like sandstone cliffs and “living creatures” are not eligible for protection, or that a monument should not exceed a certain acreage. 

“Such incredible assertions turn a blind eye to more than 100 hundred years of history and the numerous proclamations in which Presidents have protected not only a columnar tower, sandstone canyons, the flora and fauna of granite islands, redwood trees, and tidewater glaciers, but a vast array of other cultural and natural features of ‘historic or scientific interest,’” the brief states. 

The brief cites several U.S. Supreme Court rulings where similar claims were dismissed, including a 2005 case where the state of Alaska argued that parts in Glacier Bay National Monument were not set aside to protect wildlife. The court ruled against Alaska. 

“Following this guidance, lower courts have unanimously rejected assertions that the President lacks authority under the Antiquities Act to protect natural and geologic resources,” the brief writes. 

Utah sued over Bears Ears and Grand Staircase Escalante national monuments in 2022, but the case was dismissed in August by a U.S. District Judge. Within days, the state filed an appeal with the 10th Circuit Court of Appeals. Utah Gov. Spencer Cox has previously said he expects the case to end up before the U.S. Supreme Court. 

The brief, which was filed Jan. 16, was signed by professors from law schools around the country, including the University of Utah, University of Michigan, George Washington University, University of Miami and more. The professors were acting in their own capacity, and not on behalf of their universities.