Order states that a “decision regarding the Antiquities Act will necessarily be one on the merits.”

October 1, 2019

On September 30, 2019, the federal district court for the District of Columbia issued orders denying government motions to dismiss the lawsuits seeking to overturn President Trump’s 2017 proclamations shrinking Bears Ears and Grand Staircase-Escalante National Monuments in Utah. We are plaintiffs in two of the suits.

These orders are not victories on the merits of our claims that President Trump acted illegally in dismantling the two monuments in Utah. They are nonetheless noteworthy, as the judge has rejected the government’s positions that the lawsuits must be thrown out for having no validity under the law and because the court lacks authority to even address the merits of our claims.

In our complaints, we and our co-plaintiffs claim the Antiquities Act—the law that grants a President the authority to designate national monuments—does not authorize the President to reduce or revoke existing monuments. Without express authorization from Congress, we suggest, Trump cannot diminish national monuments because a President’s authority over public lands is only as great as the power delegated by Congress. (The Constitution’s Property Clause reserves power over the public lands to Congress; the Antiquities Act is a delegation of that power to the President, but limits it to designating monuments.)

This is a straightforward, conventional, interpretation of both the Constitution and the Antiquities Act. But the government’s lawyers argued that not only does the President have the power to diminish existing monuments despite no such language in the Act, but that that power is wholly within the President’s discretion and therefore can’t be reviewed by the courts. The government’s lawyers maintained that both parts of their argument were so settled as a matter of law that the court should not even consider our arguments.

The judge wasn’t having it. The orders denying the motions to dismiss state that a “decision regarding the Antiquities Act will necessarily be one on the merits.” In other words, it’s certainly not settled that the President has authority to gut national monuments.

Again, we haven’t prevailed on our claim that Trump’s order to shrink the two monuments was beyond his authority, and thus illegal. But the judge’s ruling to deny the motions to dismiss is good news. We have sound legal arguments and are still on course to ultimately succeed. We’re confident Bears Ears and Grand Staircase-Escalante will be reinstated to their original glory.

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