Gov. Spencer Cox says Utah is ‘likely’ to sue if Biden unilaterally enlarges Bears Ears, Grand Staircase monuments

He cites Supreme Court order from Chief Justice John Roberts that seems to invite challenges to expansive designations made by past presidents.

(Rick Bowmer | AP, pool) Utah Gov. Spencer Cox takes a selfie during a recent visit to Bears Ears National Monument. Citing a recent order written by Chief Justice John Roberts, Cox says Utah is "likely" to sue if President Joe Biden enlarges the monument without congressional approval. Pictured with Cox are Rep. Blake Moore, U.S. Interior Secretary Deb Haaland, Lt. Gov. Deidre Henderson and Sen. Mitt Romney.

Gov. Spencer Cox said this week that the state “likely” would sue the federal government if President Joe Biden enlarges two national monuments in Utah — which he vowed to do as a candidate — absent approval from Congress.

He remains optimistic the state’s negotiations with the Biden administration will result in a lasting solution to Utah’s monument controversies, the governor told reporters this week in response to questions about the ongoing process for restoring Bears Ears and Grand Staircase national monuments, which were reduced by 2 million acres by then-President Donald Trump.

But Cox emphasized he stands ready to go to court to reverse any unilateral action Biden might take regarding monument boundaries. He cited a recent statement from the U.S. Supreme Court suggesting past presidents have gone overboard in their use of the Antiquities Act, the 1906 law that empowers the chief executive to designate monuments on public land.

“I’m not posturing as a way to say to the administration, ‘Hey, if you don’t do this, we’re going to sue you,’” the governor said. “But if I’m being practical and realistic … that’s what’s likely to happen.”

Past court rulings long have affirmed presidents’ unilateral decisions setting aside vast tracts of public land under the Antiquities Act, dating back to Theodore Roosevelt’s 1908 designation of a 818,000-acre monument at a spot called the Grand Canyon. But a recent order written by Chief Justice John Roberts indicates the high court could be open to weigh whether such large monuments were an appropriate use of the act.

The March 22 order was issued to explain the court’s refusal to hear an appeal brought by commercial fishing associations that sought to invalidate a 3.1 million-acre marine monument designated by then-President Barack Obama. This appeal was not procedurally ripe for a Supreme Court review, but the fishers’ case nonetheless raised crucial issues worthy of judicial attention, Roberts wrote. Under what the justice saw as a questionable use of the Antiquities Act, the Northeast Canyons and Seamounts Marine National Monument will restrict commercial fishing over a vast area in the Atlantic.

Roberts expressed wonder that a law passed a century ago to protect Puebloan artifacts and other “objects of scientific and historic interest,” which were getting looted and vandalized at the time, could be stretched to include a piece of ocean larger than Connecticut.

“A statute permitting the president in his sole discretion to designate as monuments ‘landmarks,’ ‘structures’ and ‘objects’ — along with the smallest area of land compatible with their management — has been transformed,” Roberts wrote, “into a power without any discernible limit to set aside vast and amorphous expanses of terrain above and below the sea.”

His order appears to show sympathy with a position Utah’s political leaders have pushed for years.

“The broad authority that the Antiquities Act vests in the president stands in marked contrast to other, more restrictive means by which the executive branch may preserve portions of land and sea,” he wrote. Setting aside national marine sanctuaries and national parks requires a rigorous consultation process, while monuments under the Antiquities Act merely need a presidential proclamation.

“That flexibility, as mentioned, carries with it a unique constraint: Any land reserved under the act must be limited to the smallest area compatible with the care and management of the objects to be protected,” Roberts wrote. “Somewhere along the line, however, this restriction has ceased to pose any meaningful restraint.”

He concluded by saying “other and better opportunities” to explore this issue could arise for the top court, and referenced pending lawsuits concerning boundaries of other monuments. Two of the suits cited concern the Utah monuments.

Will courts uphold larger monuments?

Steve Bloch, legal director for the Southern Utah Wilderness Alliance, contends Roberts’ reasoning contradicts previous court opinions that have consistently upheld large monuments, including U.S. District Judge Dee Benson’s ruling on the 1.9 million-acre Grand Staircase, designated by President Bill Clinton in 1996.

“With regards to Bears Ears, it would be hard to think of a national monument that more squarely sits under the plain language and the intent of the Antiquities Act than a national monument advocated for specifically by Native American tribes,” Bloch said. “And the objects that are repeatedly referenced in the proclamation from Obama are the types of cultural, sacred, paleontological resources squarely within the act.”

Obama established Bears Ears on 1.35 million acres in San Juan County, substantially less than the 1.9 million sought by five tribes that share ancestral ties to these lands that were once inhabited by an ancient Puebloan civilization. Trump later reduced the monument to 200,000 acres. The tribes and various groups are challenging his moves cutting the two monuments in lawsuits that have been stayed pending the outcome of Biden’s review.

“I know with certainty that when President Biden restores the Grand Staircase and either restores or expands Bears Ears, that those decisions are going to be upheld by the courts,” Bloch said. “The [original] sizes of those monuments are entirely appropriate for the protection of those sorts of resources.”

Proclamations for both monuments identified the landscapes themselves as “objects” worthy of protection. All the designated lands were to remain open to livestock grazing and hunting.

Historically, Obama’s large designations were not that out of step with precedents set by other presidents.

The 44th president enlarged or designated 31 nonmarine monuments during his eight years in office, covering a total 5.7 million acres. Bears Ears was the largest. His designations averaged 185,311 acres, while Theodore Roosevelt’s 18 averaged more than 85,000 acres. Roosevelt’s largest was the Grand Canyon, which was mired in controversy for years after its 1908 designation, yet it became one of the nation’s most cherished national parks.

Obama, Clinton ‘abused’ the Antiquities Act

Such big designations are “bad policy” that oversteps the authority granted in the Antiquities Act, Cox argued during his monthly PBS Utah news conference and in a recent op-ed. Obama and Clinton “abused” the Antiquities Act when they “locked up” 3.2 million acres without the consent of local and state leaders, he said. Those sizes far exceeded what Congress intended when it required that monuments be confined to the “smallest area” possible.

Cox believes a lawsuit would have a higher likelihood of success in light of the chief justice’s recent statements, although he emphasized no one would be eager for yet another round of legal wrangling over the monuments.

“It would be really easy to make this a wedge issue. It would be really easy for me and my base to just throw bombs at the administration and to just pound the podium and say, ‘We’ll see you in court if you try to do this,’” Cox said. “That’s not helpful. It’s not what we want to do. What we want to do is we really want to solve this.”

So far, negotiations between Biden officials and the state’s congressional representatives have been amicable, he said, adding that U.S. Rep. John Curtis, R-Utah, and Interior Secretary Deb Haaland treated each other like “friends from the time that they were kids” during her recent trip to Utah.

Utah Attorney General Sean Reyes, whose office would handle any legal action against the Biden administration, says he — like Cox — hopes the president will agree to let Congress define the monument boundaries.

”If that cannot be achieved, we are ready to evaluate and pursue legal action the Governor and state leaders feel is necessary to preserve Utah’s rights regarding Bears Ears and Grand Staircase-Escalante public lands,” Reyes said in a statement.

Bloch countered that Congress long ago signed off on the Clinton-designated Staircase boundaries when it authorized a massive land exchange enabling Utah to trade its trust lands inside the monument for energy-rich federal land elsewhere.

“The state of Utah was made entirely whole. They got a $50 million check from the Treasury. They got coal-bed methane lands. They got coal leases. For the state to go back on that deal really raises your eyebrows,” Bloch said. “For Bears Ears, I’m sure that once the monument is restored, there will be a land exchange that will work out to the benefit of the school trust lands administration. These are things the state should be embracing, not running from.”