After taking office in 2021, President Joe Biden reversed his predecessor’s downsizing of Grand Staircase Escalante National Monument in Arizona and Bears Ears National Monument in Utah.
DENVER (CN) – In reviving challenges to former President Joe Biden’s expansion of Bears Ears National Monument in Utah, the 10th Circuit on Tuesday found a president’s decisions may be subject to judicial review if they go beyond the powers granted by Congress.
“When the president exceeds the legal limits placed on his power, his actions are not sovereign,” U.S. District Judge Joel Carson wrote in a 35-page opinion. “Instead, he acts ultra vires and does not enjoy immunity from suit. Under such circumstances, federal courts may review presidential acts that are alleged to exceed lawful authority.”
By passing the Antiquities Act in 1906, Congress gave the president the power to declare national monuments to protect historic monuments, objects of scientific interest, and surrounding lands using the “smallest compatible area.”
By law, former President Bill Clinton created the Grand Staircase-Escalante National Monument in northern Arizona and southern Utah in 1996, and former President Barack Obama declared Utah’s Bears Ears National Monument in December 2016. During his first term, President Donald Trump reduced both reserves and lifted many restrictions. When Biden took office in 2021, he immediately reversed course, expanding the boundaries of both monuments to include 3 million acres of federal land and restoring Democrat-era protections.
Two lawsuits followed, one by local property owners and the other by the two Utah counties bordering the monument, Garfield and Kane.
In court documents, farmer Zebediah Dalton argued that Biden expanded the definition of “monument” to include “an undefined collection of geographic areas, ecosystems, habitats and even animal species — from moths to mines, grasshoppers to sheep.”
The lower court was then consolidated discharged both cases in August 2023, the finding of federal sovereign immunity rendered the Antiquities Act proclamations uncontrollable.
Dalton and counties appealarguing that the president’s decisions were subject to review if they went beyond the powers granted by Congress.
The 10th Circuit agreed. The president is immune only when acting within his powers, and that venture into the “wilderness beyond” places the president’s decisions within the scope of judicial review.
As an example, Carson explained that the president could not prevent sheep from being slaughtered under a statute that gave him the power to protect livestock.
Whether Trump or Biden erred in how they revised national monument boundaries remains to be seen until the case returns to the courtroom of Obama-appointed Senior U.S. District Judge David Nuffer.
“Although we decline to go so far as to hold plaintiffs plausibly state an ultra vires claim, we conclude that the district court erred in dismissing plaintiffs’ claims,” Carson wrote. “The district court based its determinations on an erroneous view of the ultra vires exception to sovereign immunity, and we must correct those errors.”
This will not be the first time that federal courts will review presidential actions under the Antiquities Act. In 1908, the US Supreme Court took up a challenge to President Theodore Roosevelt’s designation of the Grand Canyon National Monument.
Although the three-judge appeals panel revived the case, it upheld the lower court’s dismissal of the individual landowners and the nonprofit BlueRibbon Coalition for lack of standing.
“The individual plaintiffs and BlueRibbon apparently challenge this holding. But in doing so, they did not address standing in their opening brief, focusing instead on whether sovereign immunity bars their suit and whether President Biden and the agency defendants violated the Antiquities Act,” Carson wrote. By the time the parties got up to their reply brief, it was too late.
Biden-appointed U.S. Circuit Judge Veronica Rossman signed the opinion with Carson.
Biden’s other appointment to the 10th Circuit, U.S. District Judge Richard Federico, wrote a 31-page dissent arguing that the majority gave the court too much authority for the second national monument designation.
“The majority opinion requires the district court to define the scope of the president’s authority and to essentially dismantle and set aside the proclamations declaring Bears Ears and the Grand Staircase-Escalante as national monuments,” Federico wrote. “Binding precedent does not permit this broad scrutiny.”
Attorney Tyler Green argued the case on behalf of Utah’s Garfield and Kane counties. U.S. Attorney John Bies defended the federal government. Attorney Matthew Campbell represented the Hopi, Navajo Nation, Zuni Pueblo and Ute Mountain Utes in the case. Neither attorney responded to a request for comment.
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