Nearly two weeks ago, plaintiffs filed a pair of motions in the U.S. District Court for the District of Columbia seeking summary judgments against Donald Trump’s shrinking of two national monuments in Utah—Bears Ears and Grand Staircase-Escalante. "The proposed summary judgment motions will be 'partial' in the sense that they seek to resolve plaintiffs' entitlement to relief on their core claims that the President lacks constitutional or statutory authority to revoke or reduce a national monument," according to the motions.
In briefs filed on Wednesday, the Department of Justice is seeking a summary judgment of its own against lawsuits filed by five American Indian tribes and environmental advocates seeking a reversal of Trump’s decision to greatly reduce the size of both monuments, one designated by President Bill Clinton, one by President Barack Obama. Thus begins a months-long court duel over the future of the monuments and constitutional separation of powers.
At risk is the natural beauty of the land, the plants and creatures living on it, tens of thousands of Native American artifacts dating back millennia, and the protection of sites sacred to the tribes. Despite the ongoing lawsuits, the Trump regime has already targeted land he removed from the monuments for development, including mining and drilling. So it’s no hard task figuring out what will happen if the government wins. Plaintiffs in the Native American and environmental lawsuits say that lands Trump placed outside the monuments’ boundaries have already been damaged by new mining claims and off-road vehicle use—both of which were previously outlawed—as well as looting and vandalism.
But there’s more at stake than the size of two of the nation’s 128 designated monuments. While most legal authorities familiar with the matter believe the vast preponderance of legislation and precedent means the plaintiffs fighting the shrinking of the monuments will ultimately win, that is not guaranteed given the trajectory the federal judiciary has been on.
Under the Antiquities Act of 1906, presidents have considerable authority to establish national monuments. Several since Teddy Roosevelt have designated at least one. Some have also expanded existing monuments or, until legislation passed in the 1970s, occasionally reduced them. Foes of shrinking the monuments in Utah argue that such reductions are now an usurpation of congressional power.
As reported by Greenwire reporter Jennifer Yachnin, in the filing for a summary judgment in Hopi Tribe et al. v. Trump et al., Native American Rights Fund attorney Natalie Landreth, a Chickasaw, wrote: "The issue here is simple: whether the President had the authority to do what he did. He clearly did not. Neither the plain text of the Antiquities Act, nor its legislative history can be reasonably construed to allow the President to do what he purported to do here. [...] These powers do not encompass the powers President Trump claims." She said that if Trump gets his way, it might change the intent of the Antiquities Act, "render[ing] all national monuments subject to the impulse of every new President."
The government obviously sees things differently. In the Department of Justice’s filing in the case of Grand Staircase-Escalante, Environment and Natural Resources Division attorney Romney Philpott wrote, "The fundamental question at issue ... is whether presidents have the authority under the Antiquities Act to modify the boundaries of national monuments. The answer is yes." He argued that congressional statutes altering the boundary don’t eliminate the president’s "broad power" under the law.
Unless the judge decides one side or the other’s request for summary judgments is in order, the substance of the cases could be decided in May. Whichever way the decision goes, an appeal is a near certainty given how high the stakes are.