Trump can keep secret his legal reasoning for reducing Bears Ears and Grand Staircase-Escalante, judge says

Boise • The U.S. government does not have to turn over documents to an environmental law firm about the legal arguments for President Donald Trump’s decision to shrink national monuments, a judge ruled.

U.S. District Judge David Nye said Monday that the records are protected presidential communications.

Boise-based firm Advocates for the West had sued for 12 documents withheld from a public records request related to Trump’s decision to reduce Bears Ears and Grand Staircase-Escalante monuments in Utah. Trump also is considering scaling back other monuments.

“This decision shows how difficult it is to force sunlight on a government that flourishes in secrecy,” group attorney Todd Tucci said.

The group contends that the documents may justify why former presidents made monuments as large as they did and thus undercut Trump’s order in December to shrink the monuments in Utah.

Tucci said the group hasn’t decided whether to appeal the decision to the 9th U.S. Circuit Court of Appeals.

Justice Department spokesman Andy Reuss said Tuesday that the agency had no comment.

Tucci said the 12 documents, based on dates, appear to relate to national monuments formed or expanded between 2006 and 2016 and written during previous presidential administrations. Likely 12 national monuments are represented, Tucci said.

President Barack Obama created Bears Ears National Monument in 2016, and President Bill Clinton created Grand-Staircase Escalante National Monument in 1996. Like other presidents, they cited the 1906 Antiquities Act, which sets guidelines calling for the “smallest area compatible with proper care and management of the objects to be protected.”

Trump said he was scaling back the two monuments to reverse federal overreach and had acted within his authority. Past presidents have trimmed national monuments 18 times, but there’s never been a court ruling on whether the Antiquities Act also lets them reduce one.

“President Trump’s abrupt change in interpretation of the Antiquities Act should be subject to the light of day,” Tucci said.

The withheld documents “contain legal advice to the president and his advisers and should remain protected,” the judge wrote. “While public disclosure is an important and necessary part of any free society, so too is candor and privacy when those at the highest levels of government strive to determine the best course of action.”

The Trump administration is facing other lawsuits from conservation groups, tribes and outdoor retail company Patagonia over the monument reductions in Utah. The groups argue that the president exceeded his power and jeopardized protections for irreplaceable archaeological sites and important lands.

Tucci said those lawsuits aren’t likely to result in the 12 documents becoming public.

“I expect the federal government to jealously guard these documents in all future litigation,” he said.