Utah is getting lawyered up to wage a major legal confrontation over national monuments that could head all the way up to the Supreme Court.
Utah Attorney General Sean Reyes on Thursday issued a request for proposals, or RFP, for legal assistance to challenge President Joe Biden’s recent decision to restore two large national monuments in southern Utah.
The aim would be to unwind Biden’s order expanding the boundaries of the Bears Ears and Grand Staircase-Escalante national monuments by the 2 million acres stripped out by President Donald Trump four years ago.
The solicitation shows Utah officials intend to move forward with a suit targeting Biden’s use of the Antiquities Act to set aside vast areas of public lands as national monuments. Environmentalists dismissed the move as a waste of taxpayer dollars that could be better put to use protecting the monuments’ natural and cultural resources.
“These national monuments are national treasures, and it’s really frustrating and disappointing that Utah is so hellbent on trying to undo those designations,” said Steve Bloch, legal director for the Southern Utah Wilderness Alliance. “We’ve been down this road before. The state and others sued and lost about the size of the Grand Staircase-Escalante National Monument. I don’t know why there would be any different outcome now for either monuments.”
President Bill Clinton designated that monument’s boundaries at 1.9 million acres in 1996, while President Barack Obama designated Bears Ears at 1.35 million acres in 2016 at the request of five Native American tribes with ancestral ties to the landscapes surrounding Bears Ears Buttes. Acting at the request of Utah Republican politicians, Trump cut these monuments to 1 million and 200,000 acres, respectively, less than a year into his term.
In criticizing Biden’s Oct. 8 order putting the original boundaries back, Utah’s top political leaders argued the 1906 Antiquities Act allows presidents to designate only enough land for the “proper management” of the resources the monument was established to protect. The original footprints of the Grand Staircase and Bears Ears monuments exceeded the scope of the Antiquities Acts, they said.
But 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 an 818,000-acre monument at a spot called Grand Canyon. Many big monument designations later became America’s most beloved national parks, including Grand Teton, Zion and Grand Canyon.
A recent order written by Chief Justice John Roberts, however, indicates the Supreme Court could be open to weigh whether such large monuments are an appropriate use of the act.
The March 22 order was issued to explain the court’s refusal to hear a case seeking to invalidate Obama’s designation of the 3.1 million-acre Northeast Canyons and Seamounts Marine National Monument in the Atlantic. This appeal was not procedurally ripe for a Supreme Court review, but the case nonetheless raised crucial issues worthy of judicial attention, Roberts wrote. Biden’s Oct. 8 order also restored this marine monument, which Trump had dramatically cut back.
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.”
Utah officials have seized on Robert’s order to breathe new life into their campaign against big monument designations.
Environmental groups and tribes that championed the two Utah monuments say the lands inside them and the natural and cultural wonders they hold are worthy of protection under the act.
“When you think about places like the Grand Staircase-Escalante and Bears Ears, it’s harder to think of more deserving landscapes and objects,” Bloch said. “Fossils, sacred sites, unusual native flora and fauna that is at risk and not being safeguarded by other means. It’s exactly what the Congress was intending.”
If history is any guide, Utah’s challenge will likely fail in district court.
“There isn’t a single instance of the courts overruling a national monument on the grounds that the size is too big or any other sort of half-baked theory,” Bloch said. “So maybe it’s going to take them longer to come up with something even more creative this time around.”
The wording of the solicitation suggests the state intends to take its case to the Supreme Court.
“This request will continue until the conclusion of litigation, including all appeals, or until a final determination is made by the [Attorney General’s Office] to not pursue litigation further,” the request states.
Utah’s call for legal services requires that “the group of lead counsel and senior attorneys must have experience arguing appeals to the United States Supreme Court and United States Circuit Courts of Appeals” and “must have experience litigating public lands issues and providing legal services to states or state attorneys general.”
Firms interested in participating have until the close of business on Nov. 5 to submit proposals. The AG’s office will conduct interviews between Nov. 15 and 30.
The attorney general’s solicitation is seeking an entire team of lawyers for an indeterminate time frame, including a senior lead attorney with 20 years experience and a team of attorneys with 10 years of experience “litigating complex civil cases.”
“The lead attorney will charge between $750 and $1,250 an hour. Taxpayers are not going to get out of this for less than eight figures,” Bloch said. “It’s really outrageous that Utah is prepared to fight these monument designations, rather than roll up their sleeves and say ‘We’re so fortunate to have these national treasures here in our state. Let’s do everything we can to safeguard the resources and make sure that the visitors who are coming know how to treat these places with respect.’”
The Utah Legislature and San Juan County have already spent millions on outside lawyers and consultants on various public lands battles with almost nothing to show for it. In one notorious case, a law firm billed the state thousands in first-class travel and fancy meals.
That apparently won’t happen with the national monument litigation because the Attorney General’s RFP advises that the winning firm must seek approval before seeking reimbursement for travel-related costs.
“The Law Firm shall not be paid for the cost of luxury or other excessively expensive rates for airlines, hotels, meals, or other such expenses,” it adds.
A message left with the Attorney General’s Office on Thursday evening was not immediately returned.