John Leshy: Utah wants to disable the law that led to the creation of four of its ‘Mighty Five’

Federal courts would be foolish to take Utah’s lawsuit seriously.

As the 20th century dawned, Manifest Destiny was encroaching on one of America’s marvels, the Grand Canyon. Miners and livestock herders had invaded it, and unscrupulous promoters were cashing in on tourists who wanted to see one of the wonders of the world.

This pillage alarmed President Theodore Roosevelt. “The ages have been at work on it,” he had warned in 1903, “and man can only mar it.”

In 1906, he signed the Antiquities Act, giving presidents unilateral authority to protect “historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest” on public lands by setting them aside as national monuments. In early 1908, frustrated by Congress’s failure to protect the canyon as a national park, Roosevelt used the act to protect more than 800,000 acres as the Grand Canyon National Monument.

In the years since, 16 of the following 20 presidents (seven Republicans and nine Democrats) used the Antiquities Act to establish 141 national monuments that have preserved hundreds of millions of acres of wild and historic places on and offshore. Two of these, Grand Staircase-Escalante, established by President Bill Clinton, and Bears Ears, set aside by President Barack Obama, protect magnificent Utah landscapes sacred to Native Americans stretching across more than three million acres of public lands.

Now these two have become legal battlegrounds. The state of Utah is fighting in federal court to gut the very law that first protected its landscapes that have since become among the nation’s most popular national parks, visited about 10 million times in 2022. The courts should toss out the state’s lawsuit.

In 2017, President Donald Trump reduced Grand Staircase-Escalante and Bears Ears in size by more than half. Four years later, President Biden restored them. Last August, the state of Utah filed a lawsuit in Federal District Court in Utah challenging Biden’s action. Utah’s complaint explicitly seeks to have the federal courts all but eviscerate the power Congress gave the president in the Antiquities Act.

Utah relies heavily on a statement that the Supreme Court chief justice, John Roberts, attached to a March 2021 decision in which the court declined to hear a challenge to another monument created by Obama, the Northeast Canyons and Seamounts Marine National Monument, which protects submerged public lands off the New England coast. In his statement, which no other justice joined, Roberts wondered whether at some point the court should take a closer look at how presidents have used the Antiquities Act, and in particular its instruction to protect “the smallest area compatible with the care and management of the objects to be protected.”

“Somewhere along the line,” he wrote, “this restriction has ceased to pose any meaningful restraint.”

Utah’s complaint picks up on Roberts’ invitation and offers a genuinely radical interpretation of the Antiquities Act. In the state’s view, the Antiquities Act gives the president authority to protect at most a few dozen acres around discrete, specific features, such as a pictograph panel, or an unusual geological formation, like an arch, and not vast landscapes, like the Grand Canyon. (This would mean that Trump’s action was also illegal, because he left protections in place for more than a million acres.)

Roberts’ superficial musings paid no attention to the act’s vital legacy of protecting landscapes rich in natural beauty, historical significance and ecological importance. And he failed to note how, almost without exception, Congress has endorsed these presidential actions. For example, nearly half of the 63 national parks established by Congress — including such crown jewels as Bryce, Zion, Arches and Capitol Reef in Utah, Acadia in Maine and Olympic in Washington — were first protected by presidents using the Antiquities Act.

Only twice in 116 years has Congress limited a president’s power under that law. The first time was in 1950, when Congress added Jackson Hole National Monument, created by Franklin Roosevelt, to Grand Teton National Park, but at the same time forbade future use of the act in Wyoming. Congress did something similar in 1980, when it curbed future presidential use of the Antiquities Act in Alaska as it protected 104 million acres of public land in that state, including 56 million acres in national monuments that President Jimmy Carter had established two years earlier.

Roberts also failed to note that both the Supreme Court and lower federal courts have consistently rejected claims that presidents abused their Antiquities Act authority. In 1920, the Supreme Court unanimously upheld Roosevelt’s Grand Canyon National Monument. Likewise, Utah’s recent complaint pays almost no attention to these decisions — including one by a federal judge in Utah who ruled that Clinton’s decision to protect Grand Staircase-Escalante was within the “broad grant of discretion” Congress made in the Antiquities Act, leaving the courts “no authority to determine whether the president abused his discretion.” Notably, the principal plaintiff in that case, an association of Utah counties, did not appeal.

Utah’s complaint acknowledges how successful the Grand Staircase-Escalante and Bears Ears monuments have been in attracting visitors. This is a bad thing, Utah argues, because visitors are damaging those places, vandalizing archaeological sites and getting lost, taxing local search and rescue teams. But rather than working with Congress to provide more funds to manage visitors, Utah is asking unelected judges to intervene to strip protections from these areas — as if that would make them less attractive to visit.

In January, the federal government asked the court to dismiss Utah’s lawsuit.

Utah has benefited enormously from the long history of Congress and the executive branch working together to protect public lands there. For years, Utah’s Office of Tourism has touted what it calls the state’s “Mighty Five” national parks, four of which were first protected by presidents using the Antiquities Act. “Picture this,” says one of the state’s promotional videos. “Your next trip. Utah. Five national parks.”

Congress has been responsive to some of Utah’s concerns. It agreed to make modest adjustments in the boundaries of Grand Staircase-Escalante. It passed three measures that together gave Utah hundreds of thousands of acres of federal lands with mineral and other development potential in exchange for hundreds of thousands of acres of state lands scattered inside the Grand Staircase-Escalante and other protected areas. (A similar plan is being developed for state lands inside the Bears Ears National Monument.) And in 2019, Trump signed into law a bill supported by the Utah congressional delegation that added protections to about a million acres of public lands not far from these two contested monuments.

All this makes clear that the political process still works to balance state and national concerns over how our public lands are managed. It also makes clear that the federal courts would be foolish indeed to take Utah’s lawsuit seriously and upend one of the most consequential, and successful, laws Congress has ever enacted.

John Leshy, an emeritus professor at the University of California College of the Law, San Francisco, is the author of “Our Common Ground,” a political history of America’s public lands. This article originally appeared in The New York Times.