Goal of Utah’s monument lawsuit: Take down the Antiquities Act

Consovoy McCarthy, the state’s outside law firm, stands to reap millions in fees getting case before the Supreme Court.

(Leah Hogsten | The Salt Lake Tribune) The Bears Ears buttes April 10, 2021. The namesake formation would be one of the few sites to remain in Bears Ears National Monument should Utah prevail in a lawsuit filed last month to invalidate President Joe Biden's order to restore Bears Ears and Grand Staircase-Escalante national monuments. Utah Attorney General Sean Reyes has hired the Consovoy McCarthy law firm to litigate the case all the way to the Supreme Court in hopes of gutting the 1906 Antiquities Act.

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The objective of a lawsuit Utah officials filed last month against President Joe Biden’s restoration of two protected landscapes is not just to trim a combined 2 million acres from Bears Ears and Grand Staircase-Escalante national monuments.

The real prize is a ruling from the U.S. Supreme Court neutering the Antiquities Act, the 1906 law presidents have been using since Theodore Roosevelt to designate monuments, often spanning hundreds of thousands of acres.

Such designations amount to “Presidential abuses of the Antiquities Act” and must end, according to the proposal submitted last year by the state’s outside law firm, Consovoy McCarthy, to win the lucrative contract to orchestrate the complex litigation.

The resulting lawsuit, filed last month in Salt Lake City’s U.S. District Court, is the first shot in a legal battle expected to take years to resolve and cost Utah taxpayers several million dollars.

“The district court litigation should be conducted with an eye toward preserving all necessary legal claims and factual arguments for a trip to a federal circuit court and to the U.S. Supreme Court,” proclaims the submission, signed by Consovoy partner Tyler Green, Utah’s one-time solicitor general. “In our view, Utah should consider stops in both venues as indispensable to this effort.”

$5 million already set aside

Green and other Consovoy partners drafted the suit in consort with Green’s former boss, Utah Attorney General Sean Reyes. It argues presidents do not have the power to designate large areas under the Antiquities Act.

Courts have repeatedly and unequivocally affirmed large designations over the years, according to Utah legal scholar Brigham Daniels, an expert in environmental and property law.

“The enormous thrust of the law over the course of more than a century has pointed in the other direction. You’re going to be asking the Supreme Court to make an about-face in this area of the law,” said Daniels, who teaches at the University of Utah as a visiting professor while on leave from his regular gig at Brigham Young University. “That is going to be a very time consuming and costly thing for the state to do. There’s a very, very good chance that at the end of the day, it’s only symbolic litigation, that it doesn’t have legs, that all of this was basically a political statement.”

The Supreme Court’s current conservative supermajority may be receptive to the state’s argument, but Daniels said he wouldn’t bank on the outcome Reyes and other elected Utah leaders want.

It’s not known exactly how much Cosovoy’s services will cost the state, but the Legislature this year appropriated $5 million for public lands litigation. The firm’s senior lawyers bill at a rate of $675 an hour. So far, the state has paid the firm $522,000, according to Utah’s public expenditures database.

“Based on the federal government’s past actions, we expect that it will devote overwhelming resources in a yearslong legal fight to try to salvage the President’s unlawful designations, which continue to interfere with the lives and livelihoods of Utahns,” the attorney general said through a spokesman. “So, evidence of a genuine commitment to enforcing the Act’s plain text against years of expected federal pushback all the way through the U.S. Supreme Court review was essential to our choice of outside counsel.”

‘Damning the torpedoes’

Bears Ears and Grand Staircase were originally designated by President Barack Obama in 2016 and President Bill Clinton in 1996, respectively, at 1.3 million and 1.8 million acres. Biden’s order simply reinstated the monuments’ boundaries after they were drastically reduced by President Donald Trump.

Reyes contends Biden’s action violated the “plain text” of the Antiquities Act, which limits the size of designations to protect historic structures and objects of scientific interest.

“These proclamations purport to make monuments out of things far beyond the scope of the Act,” his office said.

The Consovoy firm’s submission notes Utah’s long-standing desire to resolve this question regarding the proper size of monument designations.

“We see only one good reason for Utah to stop short of exhausting all avenues of appellate review: a change to the Antiquities Act’s enacted text,” it states. “Short of that, we recommend damning the torpedoes.”

‘A great natural wonder’

With few exceptions, the other Western public lands states embraced monuments designated in their borders, or at least learned to live with them. Wyoming, however, objected to the 1943 designation of the 222,000-acre Jackson Hole National Monument, so Congress amended the Antiquities Act to exempt the Cowboy State from any future designations without legislative approval.

The monument was later incorporated into Grand Teton National Park, which has since become a beloved destination. The same can be said for Mukuntuweap National Monument, designated by President Howard Taft in 1909 in southwest Utah. Today that monument is known as Zion National Park.

Teddy Roosevelt made the first large proclamation in 1908 under the Antiquities Act when he designated Grand Canyon National Monument covering a 277-mile segment of the Colorado River in Arizona.

An Arizona politician, Ralph Cameron, fought the 800,000-acre designation, arguing the president had no authority to set aside the reserve.

In a 1920 ruling, however, the Supreme Court confirmed the Antiquities Act authorizes presidents to designate monuments of any size. The court held the canyon itself is “an object of unusual scientific interest” in a unanimous ruling.

Since the Grand Canyon designation, presidents of both parties have used the act to protect more than 100 million acres of public land in dozens of monuments, according to law professor John Leshy, who as an Interior Department attorney in the 1990s, advised Clinton on the Staircase designation.

“As all that was happening, almost entirely without exception, neither the courts, nor the Congress, nor subsequent presidents have ever taken steps to relax protections the Act has been used to provide to public lands,” Leshy wrote in a recent piece for the American Bar Association. “No court opinion at any level has discovered and enforced limits on the president’s power under the Act.”

Unsettled questions?

But Reyes and the Consovoy team appear undeterred by this century of jurisprudence on monument designations, citing the Antiquities Act’s own language. The law calls for designations to be confined to the smallest size practical. This provision indicates landscape-scale designations are not what Congress intended, according to the suit.

“The Monuments Litigation constitutes an ideal vehicle for finally resolving unsettled questions about the scope of the President’s authority under the Antiquities Act. To best serve Utah’s interests, however, those answers must come from the United States Supreme Court,” Green wrote in the firm’s proposal. “That’s why, if selected, Consovoy McCarthy LLP will (from paragraph 1 of the Complaint) litigate the Monuments Challenge with a single goal: build and create a legal and factual record sufficient to obtain merits review at the Supreme Court.”

Consovoy beat out three other proposals for the Utah contract: Perkins Coie of Portland, Ore.; Gibson Dunn & Crutcher of Washington, D.C.; and Mitchell, Barlow & Mansfield of Salt Lake City with Lehotsky Keller LLP on the appellate end.

Critics accused the firm of “pandering” to Utah’s conservative leadership, instead of giving them an honest assessment of the case’s true prospects.

“Time and time again, federal courts have upheld Congress’s grant of authority to the president to establish national monuments,” said Steve Bloch, legal director for the Southern Utah Wilderness Alliance. “Yet if you were to read Consovoy’s proposal, you would think that courts have gone both ways, and there’s a lot of controversy, when in fact, that’s just not the case.”

Green’s role on the monument litigation team was one of the firm’s main selling points.

A 2005 graduate of the University of Utah’s law school, Green served as Utah solicitor general under Reyes from 2015 to 2020, when he resigned and soon after joined Consovoy as a senior partner.

Founded by young, politically engaged lawyers, this D.C.-based firm has garnered a reputation for advocating conservative positions. Its lawyers helped Trump ward off congressional investigations while he was still president and have since litigated cases on behalf of states objecting to Biden’s climate policies.

The firm may have limited experience in public lands issues compared with its rivals, but it boasted strong connections with the Supreme Court’s conservative wing. Four of the team’s attorneys, including Green, clerked for Justice Clarence Thomas and lead counsel Jeffrey Harris clerked for Chief Justice John Roberts.

If Utah gets its way, the fate of the Antiquities Act may soon be in the hands of those influential justices.