Bears Ears National Monument
The National Monument Review process detailed earlier in this blog (Part 1 Part 2) has now reached the federal courts. On December 4, 2017, President Trump signed proclamations downsizing both Grand Staircase-Escalante and Bears Ears National Monuments. President Trump’s proclamations reduce the size of Bears Ears by approximately 85% and Grand Staircase-Escalante by 40%. The proclamations are slated to take effect on February 2, 2018—unless they’re held up by the federal court system.
Immediately after President Trump’s proclamations, Native American tribes and environmental non-profits alike filed a series of lawsuits challenging Proclamation 9681, which reduced the size of Bears Ears National Monument. On December 4, 2017, the Native American Rights Fund filed suit in the Federal District Court for the District of Columbia on behalf of a number of tribes. On December 6, 2017, Utah Dine Bikeyah, Patagonia, The Access Fund, and others filed a similar suit in the same court. Lastly, on December 7, Earthjustice filed suit on behalf of a number of environmental organizations. (see bottom of article for Complaints and a list of plaintiffs)
What do the Lawsuits Say?
Each of the lawsuits are very similar. They are all filed in the United States District Court for the District of Columbia. They all name President Trump, Secretary of the Interior Ryan Zinke, Secretary of Agriculture Sonny Perdue, Acting Director of the BLM Brian Steed, and Chief of the Forest Service Tony Tooke as defendants. They all challenge Proclamation 9681, and they all seek both declaratory and injunctive relief. The groups are all asking the court to declare Proclamation 9681 illegal, and prevent the down-sizing from happening.
The lawsuits all have very similar arguments for why Proclamation 9681 is illegal. Here is quick breakdown and generalized summary of the arguments:
- Violation of the Antiquities Act (all cases)
- Plaintiffs argue that the Antiquities Act only gives the President power to create National Monuments, not reduce or remove them.
- Plaintiffs also argue that even if the President did have the power to reduce National Monuments, he would have to do so in a manner consistent with the purpose of the Antiquities Act.
- Violation of the Separation of Powers (all cases)
- This is an extension of the first Antiquities Act claim.
- Under the Constitution, Congress has exclusive power over federal public lands but may delegate it to the President as they see fit.
- If it is true that the President doesn’t have the power to reduce National Monuments, that power must lie with Congress.
- An attempt to use that power would be a violation of the Separation of Powers.
- Violation of the Take Care Clause (Dine Bikeyah and Earthjustice)
- Another extension of the first Antiquities Act Claim.
- The Constitution says the President must “take Care that the Laws be faithfully executed.”
- Plaintiffs argue that by failing to faithfully execute the Antiquities Act, the President violated this clause as well.
- Violation of the Property Clause (NARF)
- This is another way of arguing that the President violated the Separation of Powers.
- Violation of the Administrative Procedure Act (Earthjustice and NARF)
- This argument applies to the Bureau of Land Management and Forest Service.
- Plaintiffs argue that because Proclamation 9681 was invalid, any action by the agencies to follow it would be a violation of the Administrative Procedure Act.
All three cases in a nutshell: The Antiquities Act only gives the President power to create National Monuments, not shrink or remove them.
Where are We Now?
The lawsuits are very early in their development. So far Complaints and Pro Hac Vice appearances have been filed, to start the lawsuits and allow attorneys who do not generally practice in front of the D.C. Court to appear. The largest development so far has been the Motion to Consolidate filed by the Federal Defendants on December 27, 2017. This motion would consolidate all three cases in to one. The argument is that the cases are effectively the same, and consolidation would make everything easier for the court and parties. This type of action is permissible under the Federal Rules of Civil Procedure.
The Plaintiffs in the cases (all 25 of them) have not opposed the Motion. Instead, they have requested that they retain the ability to file and argue motions separately. This is not uncommon in large federal cases like this. The agreement makes things more efficient for the court and the Defendants while allowing the Plaintiffs to individually be heard, and retain the power to file their own motions and appeals. It is likely the court will rule favorably for consolidation in the near future.
It is very likely that the Plaintiffs in all three cases are working right now on Motions for Preliminary Injunction (PI) and/or Motions for Temporary Restraining Order (TRO). A PI holds the status quo while a lawsuit is occurring. A TRO is an earlier measure that holds the status quo until the court has rule on the PI. It is only a little over two weeks until the Proclamation will take effect. It will be important for the Plaintiffs to secure a TRO and then a PI to protect Bears Ears from development while the lawsuit continues. If a PI is not secured, agencies may move forward with reducing Bears Ears and selling oil and gas leases. If this were to occur, permanent damage could occur as major federal questions like this are often in court for years
Unfortunately, the courts aren’t the only branch of government involved. The “National Monument and Creation Act”, known by opponents as the “No More Parks Act” has been introduced to the House by Rep. Rob Bishop. Relevant sections of the Act would explicitly allow the President to reduce the size of National Monuments, effectively rendering the strongest claims of the lawsuits moot. Whatever happens, it’s happening fast and will leave a lasting impact on our National Monuments.
NARF’s lawsuit represents Hopi Tribe, Navajo Nation, Ute Indian Tribe, Ute Mountain Ute Tribe, and Zuni Tribe. NARF’s Complaint
Utah Dine Bikeyah is a non-profit Native American organization founded to protect Bears Ears. They are joined in their lawsuit by Patagonia Works, Friends of Cedar Mesa, Archaeology Southwest, Conservation Lands Foundation, Patagonia Works, The Access Fund, National Trust for Historic Preservation, and Society of Vertebrate Paleontology. Utah Dine Bikeyah’s Complaint
Earthjustice is an environmental law firm, their suit was filed representing Natural Resource Defense Council, National Parks Conservation Association, The Wilderness Society, Southern Utah Wilderness Alliance, Grand Canyon Trust, Great Old Broads for Wilderness, Western Watersheds Project, Sierra Club, Center for Biological Diversity, Wildearth Guardians, and Defenders of Wildlife. Earthjustice’s Complaint