Litigation Update: Sagebrush Rebels and Western States Challenge Presidential Monument Designations

Emily Maning: Hello everyone, and welcome to this Federalist Society Virtual event. My name is Emily Maning and I'm Deputy Director of Strategic Partnerships with the Federalist Society. Today we're excited to host a litigation update on the Sagebrush rebels and Western States challenge to presidential monument designations. We're joined today by Adam Griffin, Separation of Powers attorney at Pacific Legal Foundation. Adam is a graduate of the University of North Carolina School of Law. After Law school, he spent two years litigating for liberty at the Institute for Justice as an Inaugural Law and Liberty fellow. He also served as a law clerk to Chief Judge Richard E. Myers in the United States District Court for the Eastern District of North Carolina. If you'd like to learn more about Adam, his full bio can be viewed on our website. After Adam gives his opening remarks, we will turn to you the audience for questions. If you have a question, please enter it into the Q&A function at the bottom of your Zoom window, and we'll do our best to answer as many as we can. Finally, I'll note that as always, all expressions of opinion today are those of our guest speakers, not the Federalist Society. With that, thank you for joining us today. And Adam, the floor is yours.

Adam Griffin: Thanks, Emily. And thank you to the Federalist Society for hosting this event and for everyone, for being here today. I'm here to talk about the Antiquities Act, presidential designations of national monuments under the act, and active litigation about the scope of presidential power under the Antiquities Act. Chris Heaton, my client, is a sixth generation rancher in northern Arizona. His family came over to that area, southern Utah, Northern Arizona six generations ago in the original Mormon migration, his great-grandfather homesteaded the land before BLM existed. He and his father have ranched the land since he was a young man, and he continues to ranch the land. Today he has cattle with a genetic line going back to his great grandfather, the original homesteader of the land out there. And he works the land, ranches the land, tends to the land, cares for the land but in August and plans to pass the land onto his children. In August of 2023, President Biden declared a national monument over 917,000, nearly a million acres of land in northern Arizona declared at the ancestral footprints of the Grand Canyon National Monument. He was able to do that with the single stroke of the pen. 

The president was able to declare that million acres a national monument, and that covered the entirety of Chris Heaton's Whitecross Ranch first, and, and these national monuments come with significant potential restrictions on property use. And so in going through and talking about how we got to this place where the president has this authority to declare a million acres of land a national monument covering someone's ranch, I'll first discuss the Antiquities Act passage text in history, and then I'll turn to some of the legal issues that, that exercises of presidential authority under the Act raise.

And then I'll turn to some of the active litigation, including Heaton v. Biden. Congress enacted the Antiquities Act in 1906. It empowers the president to unilaterally declare certain things on federal land to be national monuments. The act was passed to give the president quick authority to protect invaluable artifacts and sites of historic or scientific interest on federal land. There was a problem of looting and vandalism of Native American artifacts during the settlement of the West and, and in the early 1900s. And so, they passed this act to give the president unilateral authority to declare certain small items and certain landmarks as national monuments for protection. But the Antiquities Act imposed important limits on this presidential authority. A national monument has to be a historic landmark, a historic or prehistoric structure, or some other object of historic or scientific interest.

 Of these three items, a landmark, a structure, an object, it has to be located on federal land. And then whenever the president designates one of these structures, landmarks or objects of historic and scientific interest for protection, they can only declare the smallest area of land compatible with the protection of that monument. Early on, presidents adhered to these limitations. President Theodore Roosevelt, he had the first national monument that was declared was Devil's Tower. That was a single tower surrounded by a thousand and about a thousand acres of land, even large monuments in the early years. So the Grand Canyon, before it was a National Park, President Roosevelt declared it as a national monument. That was a single canyon, and there was, I think, about 800,000 acres surrounding that canyon, but it was still, it was a single canyon with acreage around it.

But modern presidents have started to push the boundaries of the Antiquities Act. For example, 90% of all the acres designated under the Antiquities Act have been designated since 2006. But this expansion of authority really began with President Clinton who expanded presidential proclamations under the Antiquities Act to include nebulous ecosystems, which were objects under the Clinton Administration's interpretation of the Antiquities Act. They could declare an entire ecosystem to be an object as a national monument. President Bush expanded the ecosystem designations to the sea declaring an 89 million acre Northern Hawaiian Islands Marine national monument saying that ocean and submerged land was federal land, and that the ecosystem in the Northern Hawaiian Islands was an object that could be protected as a national monument. President Obama declared more national monuments than any other President, 29, and he declared the Northeast Canyons and Seamounts National Monument designating millions of acres of Atlantic Ocean and banning all commercial fishing within the boundaries of that monument.

Now, after President Obama's proclamations, the Antiquities Act became something of a political seesaw. So President Trump reduced the size of several monument designations and lifted some restrictions on land use, including that commercial fishing ban. But then when President Biden went into office, he re-expanded the size of several monuments and reimposed restrictions on land use. So now there's been this political seesaw where presidents expand monuments, contract monuments, impose restrictions and then lift restrictions, and all of this with no congressional action under a 1906 statute with no notice and comment, and no input from the executive branch if the, unless the president asks for it, because he can unilaterally declare these national monuments. Amidst this modern expansion of Power Chief Justice John Roberts, and a concurrence from denial of cert in a 2021 challenge to that commercial fishing ban acknowledged the problem under the Antiquities Act.

He stated that "The Antiquities Act has been transformed into a power without any discernible limit to set aside vast and amorphous expanses of terrain above and below the sea." Now, before I get into the legal issues that these expansions of authority under the Antiquities Act have raised and active litigation the Pacific Legal Foundation where I work, just released a research and brief on modern exercises of authority under the act it's called, "With The Stroke of a Pen, The Antiquities Act and Executive Discretion." And it's linked in the show notes for this presentation in the event description. And there are just a few facts that I want to highlight from that report that I think signal what kind of authority we're dealing with when the president is able to declare anything, basically, a national monument with the stroke of a pen.

Today, the federal government owns about 28% of all US land, so 640 million acres. That means 28% of US land is subject to this unilateral authority. Most land in the Western United States is federally owned. For example, 80% of Nevada is federal land. So when we have such large areas of the United States that are federal land that also means that the president's authority here is very expansive. Federal lands contain valuable resources, including timber, minerals, energy sources, and such resources are critical for supplying goods from agricultural products to lithium which is used in renewable energy technology. 22% of crude oil, 13% of natural gas, and 41% of coal produced in the United States all come from federal land. And under existing law, federal land is subject to mixed use, which means that it maximizes the productive use of the federal land. But when national monuments are imposed, there are new restrictions on land use, including restrictions on grazing, mining, and fishing.

 Special interest lobbying plays an important role in the creation of these national monuments. As I'll discuss in a few minutes, some of these national monuments start off as committees in Congress. These law -special interest lobbying groups, environmental and conservation groups can't get it through Congress, so they go to the president who's able to unilaterally declare a national monument. So the legal issues that this has presented are statutory interpretation questions, major questions doctrine, and also the nondelegation doctrine. As stated before, presidents can only declare landmark structures and other objects of historic or scientific interest as national monuments that imposes some textual limits, that these are supposed to be discrete things like landmark structures and objects, not amorphous ecosystems and landscapes. There's also the limitation that it has to be on land owned or controlled by the federal government.

And there's a debate about whether submerged land or ocean is land. Someso some of the arguments have been that water is not land. Presidents must also limit any parcel of land reserved for a national monument to the smallest area compatible with the proper care and management of the monument. And these millions and millions of acre designations have been challenged as not the smallest area compatible with protecting individual objects or landmarks. The major questions doctrine has come into play in some of these cases. For those who aren't familiar, the major questions doctrine requires clear congressional authorization when the executive claims highly consequential power over politically and economically significant issues. National monuments restrict significant economic activity, including ranching, mining and fishing, and often include significant political issues related to the climate agenda of environmental special interest groups. For example, in the Chris Heaton case the ancestral footprints of the National Monument that President Biden recently declared, locks up valuable uranium deposits that could help provide emission free nuclear energy.

And it also has national security implications, because currently the US gets most of its uranium from Russia and Soviet bloc countries. If there was greater development of uranium on these federal lands, then that would increase US independence from its current dependence on energy supplies from Russia. The some of the other issues raised by the Antiquities Act expansions are the nondelegation doctrine, because if there are no textual limits, if, if the major question doctrine doesn't apply, then the president may have unilateral authority to declare the entire 28% of the United States that's federal land a national monument, everything down from a squirrel or an acorn to the entirety of the landmass, ecosystems and landscapes. And so that would be an unbounded power over federal land, even though Article Four, Section Three, Clause Two gives Congress the exclusive power to make laws regulating federal land.

 One of the other interesting questions raised by some of these challenges to national monument designations is whether or not the judiciary actually can even review these challenges. So under a pair of cases, Franklin v Massachusetts and Dalton v. Specter, the president is exempt from review under the APA. So I mentioned earlier that the president has unilateral authority to declare a national monument, and so there's no and so there's no notice and comment rulemaking, no agency action involved so that he's outside the scope of the APA. And then they've also said that when the president is being sued outside the APA, there's no waiver of sovereign immunity. So perhaps the president is immune from even judicial review for any of these monument designations. However, there are exemptions to sovereign immunity for ultra vires claims and constitutional claims, and most of the litigation has argued, the statutory claims.

If it's not an object, a landmark structure, if it's outside the bounds of the text of the national of the Antiquities Act, then it's ultra vires. And if we have a non-delegation claim, then it's constitutional. And so those claims are reviewable as an exemption from sovereign immunity. But that has been an active debate in the courts. That brings us to Utah's challenge to the Bear's Ears and Grand Staircase Escalante National Monuments. So these are two national monuments that were declared in the 1990s. President Trump reduced these monument sizes, and then Biden re-expanded them. So now they cover about 3.2 million acres in Utah. And the state of Utah with several other plaintiffs sued, but the district court actually held that their challenge, they were challenging this National Monument designation as beyond the scope of the Antiquities Act, because it was one of these ecosystem landscapes or objects.

And everything within the landscape of the 3.2 million acres is also an object in a national monument. So they sued saying that violates the Antiquities Act. But the district court held that sovereign immunity barred their suit. They said that this ultra vires claim about the statute, that it was actually a misuse of authority, not outside the scope of the authority. So they said, this is actually under the - this is a claim about the president misusing his authority under the statute rather than acting outside the bounds of the statute. They're on appeal to the 10th Circuit, Utah's appeal to the 10th Circuit saying "No, if the, if we're saying that the President is acting outside the bounds of his authority under the act, that's an ultra vires claim. It's not a claim about whether he's misused authority under the act. It's about a claim about him being outside the bounds of the act."

So that's an interesting case. That's at the 10th Circuit. And there's, I think, oral argument this fall. Another active lawsuit right now is fishermen have challenged the Northeast Canyons and Seamounts Marine National Monuments. This is one of those in the Northeast. They've declared several million acres of ocean, 3.2 million acres of submerged land in the Atlantic Ocean and banned commercial fishing. President Trump lifted that ban on commercial fishing, but President Biden reimposed that ban on commercial fishing. So the fishermen have renewed their challenge and have sued to say that this Antiquities Act designation, is beyond the scope of the proclamation and should be invalidated, so that the fishermen can go back to fishing in these waters. There was a previous challenge in 2019 but the DC Circuit rejected the challenge to the Antiquities Act, and they appealed for cert but they were denied the grant of cert, although Chief Justice Roberts issued that concurrence that I mentioned earlier, signaling that there was some kind of, there was a problem with the modern presidencies expansions of authority under the act.

And so that case has just recently been filed. Finally, the Heaton case that I started with - Chris Heaton - challenged President Biden's designation of the ancestral footprints of the Grand Canyon National Monument. That monument has stated that a million acres is a landscape, and a landscape is an object. Chief Justice Robert's concurrence made a relevant point here when he said that "Most ordinary speakers of the English language would not say 5,000 acres of submerged land below the ocean is an object." and the same I think is true here. Most people would not look out over a million acre landscape and say you know, "Wow, that's a beautiful object." so that's, they're suing to say that's outside the bounds of the plain meaning of the statute. What this monument designation has done to the Heatons is, there's a criminal penalty provision associated with the Antiquities Act.

It says, any appropriation, injury, disruption, destruction of any part of the monument can trigger criminal liability - federal criminal liability. And when you have someone who's engaged in recreation and ranching and tending to this monument every day, tending to his ranch every day, he's threatened by these criminal penalties when he takes his family hiking on the ranch, when he runs cattle on the ranch, when he goes into the waters and, and uproots different trees and things of that nature to tend to the ranch, he's subject to potential criminal penalties. So he has sued, he's in the District Court of Arizona suing to have this monument designation invalidated as a violation of non-delegation, major questions and the plain text of the Antiquities Act. So all of this active litigation, this expansion of Presidential authority raises some questions about what the solutions might be.

And I think the obvious one is that there should be some judicially manageable standards on the scope of presidential authority under the act. Presently, there have been very few, if any cases that have actually invalidated a proclamation or limited the President's authority under the Antiquities Act. And so the judiciary should provide clear standards and limiting principles for the President's authority. For example, the court should define what is and what is not an object under the act, and should provide a standard for determining what the smallest area compatible is when drawing the boundaries for a particular monument. In the past Congress has provided some minimal limitations on the ability of the President to declare national monuments within specific states but Congress could place further limits on the president's power under the act, including subjecting presidential proclamations to notice and comment rulemaking, and the APA. Before I finish up and get to the end of this, if anyone has any questions, I think that you can put them in the chat. There may be a Q&A feature that you can put those questions in as well. So, in conclusion, what we have is a 1906 statute, the Antiquities Act that was passed really for fairly modest aims, the president declaring landmark structures, objects, and national monuments to protect the smallest area around those monuments from vandalism and looting. But in recent years, a hundred years later, presidents are asserting the authority to declare millions and millions of acres as national monuments. And oftentimes these are pretext for the climate agenda for locking up land use and mining and development and productive use on the federal land, and also for conservation purposes.

But those kinds of things should be handled by Congress, not the president. There are tons of statutes like the National Parks and also other environmental statutes like the Endangered Species Act and Clean Water Act that either go through Congress before they're designated or that require notice and comment and administrative rulemaking. And so the Antiquities Act circumventing these - both the legislative process and the administrative notice and comment process - created a real expansive presidential authority that the judiciary should step in and constrain, and then hopefully also Congress and the agencies could, can step in and do more to make these proclamations democratically accountable. And if there are any questions Emily, back to you.

Emily Maning: Great. So thank you so much for this great discussion, Adam. We'll now turn to audience questions. If you have a question, please enter it into the Q&A function at the bottom of your screen. We'll do our best to answer as many as we can. So, Adam, what are the best arguments put forward by defenders of these large national monuments?

Adam Griffin: So, defenders of the monuments first have asserted that there's sovereign immunity. And so that's the argument that the president here is exercising his discretion given to him by Congress, that if Congress wants to change the president's authority here, Congress can change that authority and otherwise, this is within the power of the President's discretion. I think that although that gained purchase in the Utah District Court, I think that's a dangerous interpretation to say that presidents acting without basically unlimited authority over federal land, are not subject to judicial review at all. I think that the judiciary has an incredibly important responsibility in interpreting and reviewing presidential action to make sure that when the president is faithfully executing the laws, or executing the laws, that he's acting in conformity with the plain text of the act. So, but that's one of the leading arguments that proponents of these monuments have put forward.

Emily Maning: So the next question is a few questions in one from the audience. Does the Antiquities Act apply to land owned and controlled by the federal government and have courts applied this to waters that the US doesn't own, but controls? And is there an issue whether subsequent presidents can reduce or expand land subject to the act?

Adam Griffin: So I think the answer to your first question is, yes, they have applied this to waters that the federal government controls but does not own. The Antiquities Act does say "land owned or controlled by the federal government." So it doesn't have to be land owned by, it can be land controlled by the federal government. And so the answer to the first question is yes, they have done that, and they have done that with respect to oceans. To the second question, there is some significant debate about whether presidents can reduce or expand national monuments. Certainly the proclamation by its plain text empowers presidents to expand or to create - sorry, not to expand, to create - national monuments, but there's debate about whether they can reduce the size of those unilaterally because the text itself doesn't say that they can reduce the size and scope of the monuments.

But many have argued that that is an implied power within, that the power to create, is the power to destroy, or the power to create and expand is the power to reduce. But that is an active debate. There's a large scholarly literature on that question. I know John Yoo and Todd Gaziano have an article on this subject. And under the Trump administration, there were environmental and conservation groups that sued to have certain restrictions on monuments reviewed by the judiciary to say the president doesn't have the power to restrict the monument. So that's an active debate. And it's different than the challenges that we're lodging against the creation of the national monuments altogether.

Emily Maning: So the next audience member is asking, "What judicially manageable standards would you put on the President's authority under the Antiquities Act?"

Adam Griffin: So under the Antiquities Act, I think that first there needs to be limits on landmark structures and objects. And there's a case, Yates v. United States that deals with tangible objects, and whether a fish was a tangible object under the Sarbanes Oxley Act, and the analysis there largely said, well, a fish could be an object, but it's not an object in the context of the Sarbanes Oxley Act. And I think the same is true here that an object in the context of the Antiquities Act can't just mean anything. It can't just be a completely open-ended concept. Chief Justice Roberts said that it's a textual oddity called 5,000 square miles of land beneath the ocean and object. So there's certain common sense limitations on what the word object means in context. There's also and I'm not - I can't speak Latin - but “Noscitur a sociis" - the word is known by the company it keeps - and “sui generis”, that a word in a list should conform to that list. So landmarks, structures, and objects. It should be discrete physical things that are situated, fixed on land that the president can declare as a national monument for protection, not vast and amorphous ecosystems and landscapes.

So there should be a constraint put on "object." and then there and I think that's the leading limitation that the court should be imposing, but they should also come up with some kind of judicially manageable standard for the "smallest area compatible." If you look at early national monuments, there were tight boundaries drawn around the objects. Whereas now since everything is an object, everything is the smallest area compatible, and there's basically conclusory statements about what the smallest area compatible is. So there should also be some kind of judicially manageable standard for determining what the smallest area compatible is. And certainly these million acre designations around amorphous landscapes are beyond the scope of that smallest area compatible.

Emily Maning: So the next question is asking about the word monument itself. Does that have a common sense meaning that could inform the scope of the Antiquities Act?

Adam Griffin: You know, I, I think it possibly could. I think "monument" still also signals a landmark ,structure, object, this kind of single item. So I think the monument also signals this kind of single item idea. Also the word antiquity itself is also helpful. The title is helpful in defining the scope of the act because an antiquity is an antiquity is, is an, is an old historic or an old historic item. And so I think that antiquity also helps to limit the scope of landmark structure and objects so that the president can't be declaring these vast amorphous expanses of land and terrain to be a national monument, but instead needs to be designating single objects and single items to be national monuments.

Emily Maning: So we've had a few questions from the audience about the new BLM rule. One question asks it's not precisely implicated under this case, but can you offer any insights on the viability of the new BLM rule that also overreaches to make land off limits to multiple uses via conservation?

Adam Griffin: So I'm actually, I am not familiar. I'm tangentially familiar with the new BLM rule, but I'm not I'm not well versed in the details, so I probably shouldn't speak on the new BLM rule.

Emily Maning: Not a problem. We do have one final question from the audience. That question asks, "If you put standards around 'smallest area compatible' as a practical matter, wouldn't that just turn into a battle of experts, which the president would then win as a result of deference?"

Adam Griffin: Well, I guess that depends on whether the president will get deference on those questions. But I, I also think this, the smallest area compatible has a couple of limitations. There's a canon called the superfluity canon, which says that when you're interpreting one piece of text, you shouldn't render another piece of text superfluous. And so the smallest area compatible signaled Congress's intent to have presidents declare single things, single objects, landmarks, or structures to be national monuments, and then to have small areas designated for that protection. So what that does, is that if an object is anything, then the smallest area compatible with the protection of that object is superfluous. So I think one thing the smallest area compatible does is it adds that superfluidity to it. It adds that superfluidity canon and that congressional intent to have landmarks, structures, and objects be limited and constrained.

 But I, I think that there is the potential for certainly a debate about what is, and isn't the smallest area compatible with the air for a monument. But there, if that limit isn't enforced, then there is an outer bounds limitation. And so huge expanses of terrain for single objects would be clearly outside the bounds. So it puts some things outside the bounds. And if we're, if we get to the point where we're having a battle of experts over, is it this, is this too far? Is that too far? Then I actually think we're in a much better place than we are now, where we have no judicial review, everything being upheld, smallest area compatible being superfluous because objects include everything. So if we get to that point, I actually think that we've gained a lot of ground in limiting presidential authority under the act.

Emily Maning: Alright. Well on -

Adam Griffin: That was a good question.

Emily Maning: (Laughs) Well, on behalf of the Federalist Society, thank you for joining us for this great discussion today. Thank you also to our audience for joining us. We greatly appreciate your participation. Check out our website fedsoc.org or follow us on all major social media platforms @fedsoc to stay up to date with announcements and upcoming webinars. Thank you once more for tuning in and we are adjourned.