Six years after bowing out of a lawsuit in which it aligned with the conservative Mountain States Legal Foundation and its challenge of the creation of Grand Staircase by former President Clinton in 1996, the state filed a friend-of-the-court brief late Friday requesting that the appeals panel re-examine the president's powers under the Antiquities Act.
State officials sought permission to file the brief last week, and got the go-ahead on Wednesday.
The brief, authored by Assistant Attorney General Mark Ward, argues that a lower court interpretation of the Antiquities Act in the case "allows the President to single-handedly bypass Congressional and state land-management policies and tie up any federal land in Utah through future monument decisions.
"This unchecked power the flawed ruling concentrates in the President portends serious consequences for Utah," the brief continued.
"Nearly 70 percent of all Utah land is federally controlled. . . . A mere stroke of an unchecked presidential pen could send Utah reeling."
Critics, such as the Southern Utah Wilderness Alliance (SUWA), which intervened in the suit in defense of the monument, have assailed the state's re-entry into the case. SUWA officials argue that the state agreed dropped all claims against the monument when it signed off on a $50 million land swap for School Institution and Trust Land parcels inside Grand Staircase in 1998.
The state acknowledged as much in its brief.
Nonetheless, it said, it is proceeding because the district court decision "not only upheld the Grand Staircase National Monument's validity and size, but did so on the mistaken ground that the President may reserve as much land for a national monument as he deems necessary, no questions asked."
The Huntsman administration found itself in a political mess last week when Ward initially said the state would challenge the size and boundaries of the monument - angering environmental and outdoor recreation groups still smarting from the state's "No More Wilderness" settlement with the Interior Department in 2003. By week's end, administration officials backed off, saying they were only challenging the scope of the president's monument-making powers.
Utah staked out that territory in the brief, noting that "it does not specifically challenge the creation or size of the monument at issue in this case."
Yet, the state also has asked the court to specifically examine the portion of the Antiquities Act that states the president may declare monuments, but under limits "which in all cases shall be confined to the smallest area compatible with the proper care and management of the objects to be protected."
"The district court misconstrued the Act as giving the President non-reviewable discretion both to create a monument and to determine its size," Utah argued.
jbaird@sltrib.com
