The legal fight against President Donald Trump鈥檚 use of the Antiquities Act to shrink Bears Ears and Grand Staircase-Escalante national monuments is pretty straightforward. Take it from Navajo Nation Attorney General Ethel Branch. 鈥淭here is nothing in the Antiquities Act that authorizes the President to modify a national monument once it鈥檚 been designated,鈥 she says.
Suits challenging Trump鈥檚 proclamations, which cumulatively removed more than two million acres in Utah from protection on Monday, arrived swiftly. Late that day, Earthjustice鈥攔epresenting eight environmental organizations鈥攖eamed up with the Southern Utah Wilderness Alliance and the Natural Resources Defense Council to sue Trump for . On Tuesday, the five tribes represented in the Bears Ears Coalition鈥攖he Navajo, Hopi, Ute, Zuni, and Ute Mountain Ute鈥攆iled suit over Bears Ears getting hacked into two smaller monuments.
, Trump was advised to shrink rather than revoke the monuments because there's聽a precedent for such a move. (Woodrow Wilson halved Mount Olympus National Monument in 1915.) There are, however, major differences between now and then. Wilson鈥檚 move was designed to free up timber for the World War I effort, and it was never met with legal opposition. And Congress passed a law in 1976 that鈥檚 surely familiar to Utah鈥檚 Sagebrush Rebellion-inspired delegation鈥攖he Federal Land Policy and Management Act, which makes clear that the Antiquities Act, in Congress鈥 view at least, allows a president to designate national monuments and nothing else.聽
In July, that laid out the Trump Administration鈥檚 鈥減rofound misunderstandings of both the nature of national monuments and the President鈥檚 legal authority under the Antiquities Act.鈥 In the letter, the attorneys cited specific language in聽the Federal Land Policy and Management Act as proof. For instance, the law states that the executive branch may not 鈥渕odify or revoke any withdrawal creating national monuments.鈥 The legislative history, the lawyers wrote, shows that Congress 鈥渞eserved the authority to modify and revoke withdrawals for national monuments created under the Antiquities Act.鈥
鈥淭his opens the door to sort of a game of monument ping-pong, where you have anti-monument presidents stripping places of protection, only to be followed by pro-monument presidents who restore and even increase them,鈥 says Earthjustice attorney Heidi McIntosh. 鈥淭hat鈥檚 clearly not what Congress intended.鈥
Because legal arguments are rooted in the language of the Antiquities Act and Constitutional authority (the Supreme Court has repeatedly found that, under the Property Clause, Congress is the lone body that can set regulations on and dispose of public land), many of the finer points that constitute the basis of the Trump Administration鈥檚 argument may not stand up in court. Take, for instance, Zinke鈥檚 oft-repeated claim that Trump鈥檚 decision to shrink the monuments came in response to a misinterpretation of the Antiquities Act by previous presidents. 鈥淲hen the powers are abused to make a monument into a park, that is not within the powers of the president under the Antiquities Act to do,鈥 Zinke told the Washington Post. Yet he鈥檚 arguing the very same act justifies Trump鈥檚 sweeping changes to existing monuments.
In his , formally released Tuesday but leaked months ago, Zinke said landscape-scale monuments violate the act鈥檚 requirement that a monument be the 鈥渟mallest area compatible鈥 with protection of the object. But his interpretation places the focus on what sits outside the national monuments. One would be hard-pressed to argue that the size of Grand Staircase-Escalante was incompatible with the goal of protecting its unique geology and fossil record.
This notion is also on display with Bears Ears. During a recent airplane tour of the area, Friends of Cedar Mesa Executive Director Josh Ewing pointed out dozens of canyons and mesas with a 鈥渉igh density of archaeological sites.鈥 Most of them fell outside the boundaries of Trump's聽new, smaller Sh谩sh Jaa' and Indian Creek national monuments. Ewing鈥檚 point was clear: the new monuments are incompatible with protecting the sacred sites designated in the original Bears Ears proclamation.
Native American Rights Fund attorney Natalie Landreth, who represents the Hopi, Zuni, and Ute Mountain Ute tribes in the Bears Ears case, says this amounts to more than just the revisions for which the聽Trump Administration claims there鈥檚 a precedent. 鈥淭his is a full-scale revoke and replace,鈥 she said in a conference call. 鈥淚t creates two different monuments with two different names and two different boundaries. This is not, no matter what they want to call it, a boundary modification.鈥
Both lawsuits were filed in federal court in the District of Columbia. Others are likely to follow soon: parties like climbing advocacy group Access Fund and gear maker Patagonia have said they鈥檒l also sue. Other monuments are likely on the chopping block, too. Zinke鈥檚 report calls for Cascade-Siskiyou, in Oregon, and Gold Butte, in Nevada, to be re-sized, and he told the Washington Post he was 鈥渇airly confident鈥 Trump will follow his recommendations.