The Antiquities Act: A Tool for Conservation, or a Law Without Limit?

Edith Harold: Hello everyone and welcome to this Federalist Society virtual event. My name is Edith Harold and I'm an assistant Director of Practice Groups with the Federalist Society. Today we're excited to host this FedSoc Forum called "The Antiquities Act, a tool for conservation or a law without limit?" Speaking on the panel today we have Harry Graver, who is an Associate at Jones Day, and Professor Sam Kalen of University of Wyoming College of Law. Joining us as our moderator today is Jeff Beelaert, who is a partner at Stein Mitchell and a member of the Environmental Law and Property Rights Practice Group. If you'd like to learn more about today's moderator at speaker, their full bios can be viewed on our website, FedSoc.org. Throughout the program, we may turn to 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 will do our best to answer as many as we can. Finally, I'll note that all expressions of opinion today are those of our guest speakers, not The Federalist Society. With that, Jeff, thank you for joining us today and I'll hand things over to you.

Jeff Beelaert: Thank you very much and thank you to Professor Kalen and Harry Graver for joining us today. As Edith mentioned, this is sponsored by the Environmental Law and Property Rights Practice Group, of which I'm a member, and the Antiquities Act, our topic of discussion today, I would just sort of like to start with a recent case that's been litigated in the 10th circuit and our first panelist was on the legal team that briefed this case in the 10th Circuit, his name is Harry Graver, he's at Jones Day, as Edith mentioned, he previously clerked for Judge Wilkinson on the fourth Circuit and Justice Kavanaugh on the Supreme Court, works on issues and appeals at Jones Day. Professor Kalin is a professor at the University of Wyoming College of Law. He's the William T. Schwartz Distinguished Professor of Law and Associate Dean. He's the co-founder of the School's Center for Law and Energy Resources in the Rockies and previously served in the solicitor's office at the Department of the Interior during the Clinton administration and has practiced many years before becoming a professor. He's published many books, many articles, and currently teaches environmental law, administrative law, legal history, public lands, energy and Indian law. So thank you for joining us here today. So I guess just to start this off, Harry, maybe you could sort of walk us through what the Antiquities Act does and then also sort of discuss the case that you are a member of the legal team that briefed it in the 10th Circuit.

Harry S. Graver: Absolutely, yeah, thank you Jeff. Thanks for everyone for putting this together. So I guess we'll start the Antiquities Act, it is an old law that is starting to be used in very big and novel ways. The Antiquities Act was passed in 1906. The impetus for it essentially was that a bunch of people were going out west and pilfering American lands of historical artifacts, relics, things like that, and federal law had nothing to say for it. So originally what happened is a group of archeologists got together for the better part of about a decade trading bills with Congress to figure out what to do about this problem. So they came up with the Antiquities Act and I think a helpful thing, it says, here's the key text of the act. This is what it was in 1906. It's what it's now, this is the key part of it.

It says the President may at the President's discretion declare by public proclamation, historic landmarks, historic and prehistoric structures and other objects of historic or scientific interest that are situated on land owned controlled by the federal government to be national monuments. Okay, I won't read it all again, but the basic idea is that objects of historic or scientific interests can be protected as national monuments under the Antiquities Act. What has happened soon after the Act's passage but a lot in recent years is that what constitutes an object has grown and grown and grown in somewhat novel ways, and that's kind of what brings it to our suit here, which relates to two monuments from President Biden out in Utah. They relate to Grand Staircase and Bear's Ears. Now, both of those came from prior administrations. Grand Staircase came from the Clinton administration and it was controversial from day one, so much so that Bill Clinton announced it from Arizona on its inception day, not in Utah, and then for President Obama with Bear's Ears, it came in his closing days in office.

And these take out huge parts of Utah, about 3 million acres in land, which about collectively the size of Connecticut or so. And what's interesting about this case is that it really tests the frontiers of what can be an object under the act. In our suit, we identify five from President Biden's proclamations that are really the heart and soul of the proclamations in our view. One is that he sets aside all of the land on the idea that the landscape itself is an object situated on land, and then there's four other sets that kind of fit the same bill. You have geographic regions, ecosystems, habitats and animals. Those are sort of the things that we have in mind. And I think the key part of the case and the reason that it's important is it really tests whether the Antiquities Act poses any real limit at all because there's no inch of federal land that does not have at least an ecosystem or a habitat or is not grazed by some animal.

The last thing I would say, just by way of background, so the procedural history of it is that we brought this suit alongside the state of Utah. So we represent a host of individual plaintiffs folks that want to use this land. And the key thing is that once something's declared a national monument, it's pretty much shut off for all productive uses. So we have guys who are, one's a uranium miner, one's a rancher, one's an off-roading group. One is someone who wants to access these lands for resources and they can't do that anymore so long as these monuments are in effect. And then we're alongside the state of Utah, which obviously has its own interest there. The district court kicked out our suit and it held that monument designations are unreviewable as a matter of law. That's the first time that's ever happened. There's been plenty of antiquities act suits.

But it says none of them have succeeded, but all of them have failed on the merits. No court has ever held before that they're just, or no appellate court rather, or the Supreme Court has ever held that. They're unreviewable as a matter of law. That was the main focus in the 10th Circuit a few weeks ago is whether or not these proclamations can be reviewed by a federal court at all. We touched on the merits a little bit, but that was kind of a secondary issue. So that's all by way of background, the Antiquities Act and this case right now going on in Utah.

Jeff Beelaert: Appreciate that. Professor Kalen, I just want to provide you sort of a chance to introduce yourself, maybe give your views about this particular statute, maybe some of your experiences and what it does and what it's meant to do.

Prof. Sam Kalen: Well thanks Harry. I think you did a great job of giving the folks an idea about the evolution of the Antiquities Act. I guess in all honesty or at least transparency, I was involved early on in the Grand Escalante because that's when I was in the solicitor's office. So I won't say anything I guess directly about that. But I think that a couple important points to think about when we begin to take a look at issues involving the Antiquities Act, the act has been used both by Republicans and Democrats historically. So I think there's a really good history of bipartisan support, if you will, for the use of the Antiquities Act. And in fact, a lot of the national parks, premier national parks, including one obviously here in Wyoming, have ultimately been designated or were originally designated as national monuments. So Congress too has reflected on some of the designations and turned them into national parks.

The other thing that's before we get into some of the details that it's worth at least noting is that in a lot of the areas what we have seen in terms of the scholarship and the economics is that in some areas, including one area here in Wyoming, a long time ago, folks wanted it designated as a national monument, an area it's a small cave area in Wyoming, in order to attract economic activity to an area. So we have seen, for example, even in King County as reports about how economic growth has occurred as a consequence of the designation. So I think it's important to appreciate that. And even when you had President Trump while he decreased, it's important to understand the two monuments that we're talking about today. The Interior Department actually recommended that President shrink or abolish a lot more national monuments. They wrote a memo to President Trump and President Trump only address those two national monuments.

And President Trump also signed a bill, a very large public lands bill, which added basically new wilderness lands, monuments and even wild and scenic rivers to the national system. So when we take a look at the questions that were being looked at today, I think really it raises two or three specific and some subsidiary questions. The first one is really as Harry said, does any court really have the power to even review a proclamation designating a particular area as a national monument or effectively is the executive immune from the doctrine or basically because of the doctrine of sovereign immunity? And the second question is really if review is available, I think this is where Harry was going, if review is in fact available, what really is the scope or the nature of that review? And then there's a subsidiary question to that is really then what type of objects can be protected under the Antiquities Act and does the act extend beyond let's say archeological objects and then of course really not in this litigation, there's a fourth issue or a fourth question, and it's really the outstanding dispute, which I don't think we're going to get into, but maybe we can, about whether a president can either abolish or even shrink a national monument. 

But again, that's not directly related to the pieces of the Dalton and the Garfield County cases that we're going to be taking a look at today. But I think Harry might be a little bit shocked, I don't know. On the first point, there's probably a lot of overlap between myself and others. I don't see why there's not judicial review. I mean obviously the Administrative Procedure Act is not available. We all know that the APA waives sovereign immunity, and that's how you can bring cases against federal agencies and US district court. But that does not apply to the president. And in fact, the Department of Justice here has emphasized that Congress has provided no mechanism for judicial review of designations of national monuments.

Of course, that's not surprising as Harry had really portrayed. I mean in 1906, no one would've thought about actually providing for a provision for digital review. So the interesting thing is that the question on scope of review and whether or that can even be reviewed in the first place comes down to a really interesting debate for lawyers about what is the scope of the "Ultra Vires" doctrine that allows you to go after, if you will, let's say a presidential decision. And part of the debate is can you only bring a case against the president when you're alleging constitutional violations or can you bring a case when you're alleging a violation of a statute? The US indicates that we don't need to have any check on the president, and I'll agree with the US' position on what some of the checks are on a presidential decision making process.

And I was there early on in the Grand Escalante, there's no doubt there are checks. The deliberative process that the administrative agencies use when they go with the White House and talk with the White House about a designation of Monument, they clearly are a lot more deliberative. They take a long time. Nowadays you get petitions for designation of monuments. When I left, my former colleagues actually had to go out and walk and map the area. So there's a lot more care and they got caught in a storm, by the way, but there's a lot more care that actually goes in to designating a monument. It's not as if the president simply says, okay, I'm going to designate a monument, and then two weeks later they designate a monument. So there is really a check on what the president does. The second thing is that when the president acted in the Grand Escalante, obviously there was no really advanced warning on Grand Escalante.

It caught some people by surprise. Ever since then, and particularly with President Obama, we have seen presidents really engage, including with President Biden really engage the public. So there's no surprise, which really was one of the controversies about the Grand Escalante to start with. The other thing is that when Congress passed the Federal Land Policy Management Act or "FLPMA" in 1976, there was some question about whether we should get rid of the Antiquities Act. And obviously Congress made a deliberate decision not to get rid of the Antiquities Act in 1976. But I really want to at least underscore one point is that I think Harry's right, I mean there's been no court that has said they are completely immune from review. It goes back almost probably to Marbury v Madison. If a President acts without any statutory or delegated authority, clearly there ought to be ability to review a particular case.

And if a statute granted a president the ability to buy a house in let's say Wyoming and the President bought a house in Montana, you're really going to tell me, a court's going to say, oh yeah, the president can use federal money to basically buy the house in Montana. So I think where we probably agree is on that issue where we probably disagree is really on the scope of review and what you really can do. And I think the answer is whether or not, at least from my perspective, whether or not the president has at least plausibly made a case for why a particular area is a legitimate object of historic or scientific interest. And also plausibly, there's a subsidiary question that I think Harry's going to get into about whether or not the president has designated basically the smallest area possible. So those are sort of the key issues. And I'll sort of turn it back over to Harry. I mean, I can pick up on my details of those other issues, but I don't want to go too long without going back to Harry.

Jeff Beelaert: Thank you. Well, I want to touch a little bit on at least the judicial review aspect of this before we move on too much further. But it seemed to me like the 10th circuit during oral argument was sort of struggling with this issue. It sounds like the DC circuit, maybe the district court in DC there's been cases suggesting that you can challenge these sorts of Antiquities Act proclamations by alleging that it's an "Ultra Vires" act by the president. And it sounded to me like the 10th Circuit was struggling with, well, does that really get to the merits of the scope or the interpretation of the statute or what does a plaintiff need to do to allege that sort of exception? And it sounded to me, not only was the court struggling with that, but it was also struggling with, well, what's the cause of action? And I wonder the government points out in their brief Congress, and I think Professor Kalen, you hinted on this, Congress never provided private party an enforcement action. So Harry, maybe if you could address that. It seems like the 10th Circuit was concerned about that. What's your response to some of the things that Professor Kalen said, but also how do you fit within this sort of "Ultra Vires" claim and then what's sort of the cause of action by which plaintiffs are allowed to bring these sorts of challenges?

Harry S. Graver: It's a really important point. As you noted, it was the main focus of argument in the 10th Circuit. A really big monument designations are a really big deal, and even if the president chooses to take in a lot of input by the letter of the statute alone, he can just go out to the rose garden and shout it out loud and you have a national monument. So the president's given a tremendous amount of authority here. So for it to go unchecked, I think that was the first thing that the 10th circuit was just instinctually uncomfortable with. I think this goes into what the professor was saying about the types of review that are available, because what's tricky about ultra vires review is the word jurisdiction, it's kind of thrown around a ton in all these cases, it gets very confusing very quick. Our core claim though, I think kind of rests in the heartland, which is that when the president acts in excess of authority, when he does something he was never authorized to do in the first place, that is garden variety ultra vires review.

You can look at Youngstown for example. Does the president have statutory or constitutional authority to seize the mills? So when the question is whether or not you have the power to do X, that's sort of in the heart land. And what happens there is that when you act in excess of authority, you don't have sovereign immunity attached because you're operating as an individual, you're not operating as the sovereigns agent. So sovereign immunity never attaches in the first place and then for a cause of action, it's longstanding equitable practice that when an executive agent operates in excessive authority and hurts, you can go to a court to stop that action. So you can look at, there's an old chestnut case called McAnnulty from 1902 ish. There's Youngstown, there's Dames and Moore. Even in the Trump immunity case, which obviously is not shy about the role of the president in our constitutional system, the chief said, if the president claims authority to act, but in fact exercises mere individual will and authority without law, the courts may say so. So that's our basic claim because what I was saying before is what we focused on is the monuments are based on things that are not objects.

So you've set aside land to protect items that you never had the authority to do so. As professors touching on, it gets kind of a little bit more complicated based off of other possible antiquities act claims that people can make. And in fact, the State of Utah really pressed these in particular, and we joined those arguments, but it was the focus of their brief. You can think about whether or not something is an object is a little bit more of a binary decision. Where it gets tricky is where the statutory standard involves some discretion. So is something really historic, is something really scientific? Is it actually, one other key piece of the Act has touched on is, not only do you have to set aside objects, but you need to set aside the smallest amount of land compatible with their protection. How does a court figure out what's smallest and how does that fit into ultra vires review?

There is a little bit of a mismatch and it's a little bit hard, and the DC circuit struggled with this as you noted. When it comes to sort of those discretionary terms and how that fits into ultra vires review, I think it's really hard to say that there's no review at all because Congress intended for those terms to be very meaningful limits on the President and just to kind of write them out of the statute or to make them matters to the President's discretion seems to be sort of no limit at all. But I think it's trickier. With us, it's much more garden variety. You have a clear concrete, statutory term: "Is something an object?", and if it's not an object, you don't have any power to protect it under the Antiquities Act. And I think there we're much more in the Youngstown territory than the Dalton and those sort of line of cases.

Jeff Beelaert: Okay. One of the things that the government pointed out in its brief was that Congress retains the authority to change presidential proclamations or to withdraw them. So this idea that, well, Congress itself has done this in the past, that a president may decide to set aside or to reserve land under the Antiquities Act and that Congress then can come back and say, no, that was a mistake, or withdraw it, or that that's sort of on the backend. And I think Professor Kalen, you also mentioned that Congress also could look at a designation for a monument and decide, well wait a minute, this actually is valuable land. We need to set it aside for a national park or national, there's some other designation that Congress can then decide what do you make of that, that there's sort of this congressional oversight that's already baked into a proclamation made under the Antiquities Act.

Harry S. Graver: Elise, our take was that, and I think this is a point that Professor Kalen was mentioning before is it's certainly true that Congress has a role here and it's played that role in the past, but that's I think also true with every statutory interpretation case where the president can always violate a law, Congress can always intervene. That doesn't mean the courts have no role to play, but one part I just want, I think, helpful context here that's important is it's true that the presidents or presidents for long time have use the Antiquities Act in increasingly broad ways, but President Biden's proclamations are still unprecedented. The key part of it is that they've set aside 3 million acres on the idea that landscapes are objects situated on land. And then there's this part of this troubling trend, which the chief justice flagged a couple terms ago in a separate writing where you're setting aside all of these acres for what he called "imprecisely demarcated concepts", things like ecosystems and habitats, things that don't have any independently discernible bounds.

And when there are no independently discernible bounds, then it's just in the eyes of the President, there's no enforceable limited at all. The act quickly becomes a blank check. So I think the key part here is just that I think it's true, and it was a helpful sort of atmospheric point for the government being like this has been around for a while. Congress has intervened when it's been really excessive. They've blessed these practices before. But I think the point to emphasize is at least over the last couple decades in particular, the act has really started to be abused in novel ways. And President Biden's proclamations are sort of chief in point with that, with the sort of land as object theory of the Antiquities Act. If that's true, then again there's no meaningful limit at all on the Antiquities Act. You can set aside the entire west to protect a single B. And on the president's view, that's both unreviewable and completely authorized by Congress.

Prof. Sam Kalen:

The only follow up I have on that is a couple points. I think that we need to be careful because there really aren't that many challenges to national monuments. Most of the national monuments are not really ever involved in litigation. So we're really talking only about a handful of national monuments that we've seen litigation on. So it's not like in other areas where there's been a lot of challenges is why the laws perhaps less clear in some of these areas. Even on judicial reviewers, we just don't have that many cases. The second thing is that Congress does have a unique ability, it's a little bit than in other types of programs because the nature of particularly national monuments and public lands, the role vis-a-vis the executive in Congress, that's why President Trump signed that omnibus land bill. I mean, we have negotiations quite often that are unique that relate to our public lands and natural resources,

so I think that the role of Congress is possibly a little bit different. And we also, we tend to take a look at a little bit more of the interest of the state when we do designate national monuments when it becomes a really controversial matter, and yeah, there have been a couple times when it's been fairly controversial, those two instances. One was in Alaska with Jimmy Carter, and that resulted in specific legislation not allowing the president to basically go over 5,000 acres of national monument without congressional approval up in Alaska. And obviously here in my state of Wyoming, we have a provision after what happened in Jackson Hole that basically says Congress told the President no more national monuments in Wyoming. Now Wyoming was the first state with a national monument. So Congress can act. And I think the other thing that's important to think about is the language does say discretion.

And so there's no doubt that a court cannot review whether the president's acted arbitrarily capricious. They can't really review arguably a record because what record are we going to talk about? This is not a typical administrative procedure act type case. So when we take a look at the scope of limited review, and I think this is why some of the law professors wrote an amicus brief is it's very limited, so long as it's plausibly stated that the president has designated something that is either an object of scientific or historic interest. I think that that's where the inquiry ends. But if the president were to designate a parking lot that just happens to be at the Department of Energies or the Department of Defense's lands owned by the US, that plausibly would be arguably reviewable and outside the bounds. So I think there are going to be some cases that might fit that problem beyond the discretion, but the idea of affording immunity, if you will, to discretionary decisions that dates back to Marbury v Madison, if you take a look at the whole evolution, I think the McAnnulty case you even talked about, it's a Man Amos type case. The court can issue basically equitable relief because the statute is clear, there's no discretion, and that's what Marbury v Madison was based on is that the difference between being able to review an executive branch decision is where there is discretion, that's political choice, it's up to Congress to second guess it, second guess it, where it is not a political decision, but a exercise of clear statutory directive: that's where a court can enter and basically issue some sort of equitable relief.

Jeff Beelaert: And I mean it sounds like this act, the Antiquities Act is actually broad. I mean, we talked about the language that the president has discretion, but Harry, I think I take your point to suggest that, but that discretion is also cabined by the words around it. And we're talking about discretion for monuments, discretion for smallest amount of land that's going to protect this area of interest, or at least some object within that area that the land that's being set aside is meant to be tied to something on the landscape. This object, this notion of an object. And I read the government's brief and I think that the government identifies areas in which Native Americans were present, some of the archeological sites, things like that, that are spread out throughout this area. And in fact, the government says, well, and we're not even going to identify all the others that are there because they're so precious that we don't want people trumping around and ruining some of these sites. I mean, what do you make of that? The government, yes, we're going to identify and tell you that they're sprinkled out throughout this entire area, but nonetheless we're going to designate 3 million acres. I mean, where do you see the scope of discretion falling outside of what the act allows, at least in the context of this case?

Harry S. Graver: I think that Utah did a very helpful thing in their complaint where if you took all, I think I forgot exactly what was maybe 300 acres for each of the identified objects, it added up to about 10% of the set aside land, maybe less so the objects that we really focused on, these kind of imprecisely demarcated concepts really do the work in filling up all of the huge chasms of land in between all of those identified and almost certainly valid objects. On the discretion point, I think I might have a slightly narrower view of it because what the acts says is the president may, in the president's discretion declare by public proclamation, blah, blah, blah, national monuments, I think he has complete discretion over whether or not to declare a monument. And that's almost certainly unreviewable. If everyone is saying you need to set aside 500 acres for so-and-so the president chooses not to do it, unreviewable. I don't think he has discretion to say what the law's terms mean.

And that's going back to the Youngstown anywhere where there's precedent from Marbury onward. That's the traditional function of the courts. I think that again, and you can kind of see maybe parallels to this in the world post Loper Bright about what role there is for courts in enforcing statutory terms because you can imagine differences between sort of concrete limits and discretionary terms. A good example is in the presidential reviewability space, it's this old case called South Dakota versus something South Dakota, whatever, where there is a fight about a statute that gave the president the authority to control the phone lines during a time of war if necessary. So the two key statutory terms were control and necessary, and the court parsed the two. What it said essentially is that, well, the necessary piece that's probably unreviewable because that is kind of a pure judgment call and we don't really have any law to apply here besides our own sense of things.

And it's really inappropriate for a court to substitute its own judgment for that of the presidents, so you have a wiggle word like necessary. Then they reviewed a challenge as to what the word control means, whether you can take the full phone line or just part of it or something like that. And I think that's what our case is, is that there's certain parts of this that get harder when it involves judgment calls, scientific, historic, Utah has a lot of persuasive points on this, but it's a different in kind still than something like "Object", which I think has just a independently discernible definition as just a matter of statutory interpretation. And I think here as really any other statutory charge, the president doesn't have discretion over what that term means. And the last thing I would just say on this is the Antiquities Act was this was not kind of a passing legislative effort that was sort of tossed in at the end of one session.

This was debated for five to six years, and the key constituency was members of Western states were petrified about the president getting a blank check to set aside huge amounts of land. And to the extent it's relevant, the legislative history here is overwhelmingly clear. Everyone is saying: "Don't sweat it, these are small reservations. It's for just the objects of antiquity. It's for all these relics getting taken. Don't worry, we're not setting aside your entire state." It's evolved towards that. And I think that the limits that we're emphasizing and the basic point that we're saying is that even if the president has discretion, Congress did not stumble into the one thing that they did not want him to have, which was a blank check. So I think once you reduce these independent limits as just like, well, those are judgment calls for the president, then you have Congress fail at its one goal in a spectacular fashion. And there's no real reason I think to read the act that way.

Jeff Beelaert: And just as a sort of point of clarification, I mean we're talking about federal land, right? We're not designating State of Utah land. I mean, this is land that belongs to the federal government from the get go. And I think in your case at least you have individual plaintiffs that use this federal land, a rancher, a minor, whatever it is. Can you just sort of explain how does it change their use of the land? What does the monument designation do that changes what they could do with their land? Because I think that the government in response is suggesting, well, no, we've carved out all the exceptions that even though you have a monument designation and even though it is 3000 or whatever, 3 million acres in this area, that you still are allowed to exercise your rights if you have a valid mining claim or if you have a grazing permit or whatever it is. Is that true or is that something that the courts maybe the 10th circuit might've overlooked?

Harry S. Graver: I think they picked up on it, and as we talked about an argument, the government insistence on that point, I don't think bears out. I mean without getting into the nitty gritty of it, just taking it 30,000 feet, the entire purpose of these monuments, and the reason they were trumpeted as these huge deals is to prevent the very things that our guys want to do. So these are massive conservation efforts that will stop ranching, mining off-roading and the like. And then we're just like, well, we want to do the ranching mining and off-roading. And what happens just is a technical matter is that usually the default for federal land, which is important to keep in mind is majorities of western states. It's huge percentages of Western states. Usually it's this thing called a multiple use mandate, just you keep it flexible, you have a bunch of different priorities.

You allow for the productive use of land to be measured against conservation interests, but it's a balanced effort. Here you put a huge premium on essentially conservation alone. So the idea that you're going to be able to pursue mining is non-existent. Ranching is strictly limited. Off-roading, you can see this in the management plans that have come out. Trails are getting closed, the expansion of trails are shut off. The basic idea is that character of these lands by design, by intent and design change dramatically. So again, the entire purpose for setting aside a monument is to curb certain activities. And there's fights about that as a policy matter, but I think it's very clear that life will be very different on these monument lands if they're upheld.

Prof. Sam Kalen: Well, I think I would just add is a caveat, we have to understand that every monument designation has valid existing rights language. So there are a lot of, for example, under the 1872 mining law, if someone is staked and has a valid mineral discovery on lands, then the only difference, and this came up in the oral argument, I think the only difference is you might have a validity examination to actually make sure that they're legitimate mining claims, but other than that, it does not take away the ability to mine existing, if you will, mining claims. And the other thing that we've seen historically is that people come in and locate mining claims as nuisance value mining claims. So arguably what it does is it takes away people who just want to basically develop or locate nuisance mining claims to then get bought out. So I don't know that it is as dramatic as Harry is suggesting.

I mean, obviously one of the things that we first saw with Grand Escalante, and I remember it in vivid detail, is people were claiming right away what was going to happen. And we kept telling folks, I mean everyone kept saying, "Hey look, we don't have our management plan." It's ultimately the management plan that's going to drive what decisions occur in a particular area. And even absent a monument designation, you can take a look at the fight or the dispute that's occurring up here in Wyoming. We have a new management plan that's going to reduce the amount of coal leasing that's going to occur in the Powder River basin that's taking away an existing use because it's been designated whatever in terms of the way the new management plan is. So there's nothing about the monument designation per se that can occur that couldn't occur in some other mechanism anyway if the administration was so inclined.

Jeff Beelaert: And just as a sort of litigation wise, I mean whenever the federal government is or Bureau of Land Management or whoever's putting out these land management plans, forest a service, whatever the land is, is also subject to litigation. I mean, you would still have potentially plaintiffs who are unhappy with the land management plans or the balance that was struck by the government. I mean you still, I would think would end up with parties being able to challenge those sorts of uses. So I think courts are familiar with those sorts of cases. I think it's sort of the Antiquities Act case that at least in the 10th circuit that it seemed to me like the panel just wasn't really sure what did make of this. And I mean maybe you can help us on this, Harry, but what's your version of what an object is? I mean, you've sort of told us what an object isn't, right, that it's not landscape or that maybe it's not some of these animals, but what did the Biden administration, or at least this designation, what did they say about what they view as an object?

Harry S. Graver: So we have done a lot of briefing. I think the government's brief here is north of 150 pages. On my reads, I do not think they've offered a concrete definition of the word "object". I think the idea essentially is- and oral argument, what they kept saying needs to be a bonafide object. An object is a bonafide object. There's still not kind a lot of meat on the bone. What we offered, which was a combination of just every traditional statutory interpretation tool was that an object needs to be a discreet material thing akin to a landmark or structure that is a fixed the land. And we're just pulling that from the statute itself. Just again, you have a objective historic or scientific interest or it says landmarks, historic and prehistoric structures and other objects of historic or scientific interests that are situated on land owned by the government.

So basic idea there, and again, just pulling it up a little bit higher level is the basic point is it's not that objects can't be really big. One of the most famous national monuments is with Grand Canyon, we have no beef with the Grand Canyon. They can be really big. The key point though is an object needs to be something with independently discernible bounds. And just as s we like a structure like a landmark, no one's ever been told to take a left at the ecosystem. It needs to be something that people can see on their own because otherwise judicial review of any stripe is just completely unavailable. And again, this comes back to the theme of our case is the one touchstone here where you've taken a wrong turn with respect to reading the Antiquities Act is: "Do you render it limitless?" And once an object breaks beyond that definition that we offered, I don't think there's any way in which it doesn't become limitless.

And again, these proclamations are sort of case and points and the government's committed avoidance to ever define objects. We certainly ask them to, we ask 'em to an argument, we ask 'em to in the briefs, I think they want to maintain complete flexibility because their view of the act is essentially that it's in the eye of the president and the president alone, which is radically different than it was in 1906. But again, if the statute's unreviewable, that's the reality. It could be a ham sandwich, it can be a old relic, it can be anything in between.

Prof. Sam Kalen: But isn't it fair to say that, I think that it can be reviewable- but limited review, and I think where we probably differ is whether discretion applies to objects of historic or scientific interest. And one of the big differences it sounds like that I might have is that I think that word discretion is really reminiscent of the era where it basically was saying these decisions overall, which include identifying objects of historic or scientific interest, these decisions are in the discretion of the President. You're cutting off the designation from the aspects of the designation in saying one is completely in the discretion but the rest is not. And it's up to the judiciary to decide whether or not something fits within an object of scientific or whatever. But the other thing that we need to appreciate is the Supreme Court's already said in Caper that we can use water in order to protect, say the Desert Pupfish or something.

So it's not limited. I mean we got to be careful when you talk about landscapes. Landscapes are, can be, ecological systems for those in Utah, you go along if you will, the crust of the land there that's been there for a thousand years and people who might walk on it would destroy that landscape that developed over a thousand years. Well just as a crust on the top of the surface. So we got to be careful when we use a broad term like landscape because it really is an ecosystem and it is of scientific interest. So I don't know that it easily comes down to a court's ability to actually judge whether or not something is of scientific or historic interest.

Harry S. Graver: I think the one thing I'd add is that I am more sympathetic to that, on the scientific front, versus just whether or not something is an object in the first place. A good example I think is with the animals that are at issue here. So a good example is that there's a ton of bees, for instance, referenced throughout the proclamations. Our problem with the bees was not that they were not of scientific interest, we were not having kind of a battle of the experts as sort of these bees were important enough scientifically to merit a monument designation. Our point was just that absent some intervening act of cruelty, an animal is not affixed to the land. So it doesn't meet the definition of object under the statute. So our fight, I agree that courts do not want to and they've avoided being in the business of second guessing the President's judgment as to the adjectives, whether it's historic or scientific. We're going to, the much more fundamental point before you even get there is this thing an object in the first place and having some confined limit there I think is essential for this act to work.

Jeff Beelaert: And I guess before we open up any questions, I think maybe just give you an opportunity Harry, what is it that you'd like to see the courts do? I mean I think you're unhappy with, or your clients are unhappy with sort of this mass designation of monument. I mean is the goal here, I think if I understood you correctly, is that it's fine to designate limited areas as monuments. You are okay with that, but it's not okay to have this sort of massive designation. And where does judicial review fit into that? A court then would say to the President: "This was ultra vires, you don't have the authority to do so. It must be limited." And then that what comes from an order from a district court suggesting, because it sounds like there has to be some sort of balancing or telling the president what falls outside the act and what doesn't. Am I characterizing your position correctly?

Harry S. Graver: Yeah, I mean our main thing and the reason that I think the suit is important is it tests really the outer frontiers of the act and there's a ton of possible Antiquities Act litigation out there. Ours I think is, our focus is more modest, which is that A: we want it to say it's reviewable, that's important. B: on the merits, what we want to knock out are these sort of blank check objects. A good example, just as related to is that in DC circuit litigation a handful of years ago, an oral argument, the government said on their position that the president can set aside 3 billion acres of water or nautical, whatever it is along the Atlantic Ocean to protect a single ecosystem. His call, what's an ecosystem? Our view is we want to knock out those blank check objects and then there could be fights about historic, scientifics- those are harder and more granular, but what we want to do is just ensure the act has some limit at all and that's the main focus of this case.

Jeff Beelaert: Okay. Well we have 15 minutes left. There are a number of questions that the audience has asked. I'll try to get through these as best I can, but if there's anyone that has a question and would like to post it, please do so in the little q and a tab. The first one is for Harry, super basic question, but do the claimant injured parties, there's states, native American nations, et cetera, most frequently assert a federal government taking IE. What is the most typical effective basis for cause of damage? Are you familiar with takings cases or takings claims being asserted in this sort of litigation?

Harry S. Graver: Not that familiar. If Professor Kalen mentioned there is this whole fight about valid existing rights. Usually the nature of the fight is that you have some right to use federal land and whether the regulatory burdens attached to that right are increased based on a valid proclamation and that's really our fight. So Zeb Dalton's one of our main plaintiffs, he's a rancher in Utah. It's not that they're extinguishing his ranch, but they're just making it incredibly hard to ranch to get range improvements approved, things like that. So I'm not too familiar with takings claims coming up here. I wouldn't rule it out, but usually it's not the most common way we go about this.

Prof. Sam Kalen: Yeah, I mean the only takings type arguments we've seen people try to make is whether or not they had a property interest in grazing and obviously that didn't work. The other taking type of case we've seen is on the use of water rights and use of water on public lands and whether or not takings- anyway, but I think it's unrelated to Antiquities Act

Jeff Beelaert: And sort of the follow-up question from this person was how compensation would be calculated. I think you've sort of answered this, but in the context of a takings case, it's something be a property right. I think it's the fair market value of the property as it existed at the time of the taking. Courts do calculate this sort of litigation. I think for the broader point for Antiquities Act here, we just haven't seen that to the extent it comes up later, there is a set way that courts are familiar with making these sorts of determinations. Alright, let me move on to the next one. The Maine, and I think this is New Mexico or National Monument did not designate federal land without any involvement by Congress says that Forest Service accepted a donation of private land on the condition that it would then be designated as, I guess this is National Monument. This would seem to go further than the language and the intent of the Antiquities Act, then Grand Staircase or Escalante or Bear's Ears, and I guess this is getting at National Monument in Maine. Are you familiar with that particular designation? Either one of you?

Harry S. Graver: I'm not. There is a provision of the act that I think that contemplates relinquishment to the federal government. I don't really know how that, I haven't seen litigation about that or know too much about how that works in practice, but I would imagine it comes from that. Although we did fight about the government in our case being like if it is truly unreviewable, what stops the president from designating someone's private house, a national monument? And they're like, well, it has to be- maybe that's outside the outer bounds, but it does designating private land at least touches on if this is unreviewable, just how far does that power go?

Jeff Beelaert: Professor Kalen? What do you think if you owned hundreds of acres of private land in Wyoming?

Prof. Sam Kalen: I'm looking at the question and I can't tell if they mean the Marine Monument.

It could very well mean that they're talking about the Marine Monument, but then they go on about New Mexico and the Forest Service. So that wouldn't make, I don't know that that's the question, so I'm not sure I understand that. But don't forget that it was Roosevelt in the history of Jackson Hole who was getting the land and donating and getting it to enter the federal government to then be a part of a national monument IE Grant Tetons, which is what we have right now. So I don't know that there's anything that prohibits anyone from donating land. There is actually A DOI donation policy, so there are policies related to donations and so I'm not sure I understand specifically what they're asking to be honest.

Jeff Beelaert: And I take it that this question gets to sort of the notion that we talked about earlier, that there is at least for some of these National Monument designations, a lot of back and forth between let's say the White House, Congress. I mean to the extent that a private person had a swath of land and wanted to go through the Department of Interior or whatever and ask for it to be designated as a national monument. I mean, it sounds like that would be sort of part of this political process that might lead to the President doing it.

Prof. Sam Kalen: And one thing that maybe they're getting at is that only Congress can add lands to a national park. So if you wanted to donate land to the federal government and have it as a national monument until Congress can act on whether to enlarge the boundaries of a park, I could see that in a modern day situation.

Jeff Beelaert: And I think Harry, you would agree that if that were to occur, you still would be confined by the language of the Antiquities Act. So if we're talking about a national monument, I think you'd still have to identify objects. You'd still have to identify something that falls within the plain language of what this statute seeks to accomplish.

Harry S. Graver: Yeah, exactly.

Jeff Beelaert: Okay, here's an anonymous question. How much discretion can Congress delegate to the President to make rules and regulations for federal property under Article four Power? In other words, assuming Congress gave the President a blank check, would that violate the non delegation doctrine? What do you think? Do you think that there's any sort of argument under the Antiquities Act that there is no intelligible principle or that there may be sort of a non delegation doctrine claim that might be brought here?

Harry S. Graver: We did not press expressly a non delegation argument, but essentially what we said is the same way that you kind of use major questions in non delegation as a common sense check on your statutory interpretation. I think that applies here in full. If the law just said the president can set aside any federal lands he wants for any reason, that would raise serious non delegation questions, I think. That is, as I understand it, essentially the position of the executive branch now. So when you end up in that place, our point is this, it's kind of a common sense red flag the same way a major question doctrine I think would be kind of a common sense red flag here, given how important these issues are to the management of states out west and how few at least statutory checks there are in the President. If it really could set aside millions and millions and millions of acres with a snap of fingers, you would think Congress would probably say that more clearly or there'd be some indication of legislative history that Congress thought it was stumbling into this. So I think that we didn't press the argument expressly, but I do think it has a lot of work to play in the statutory interpretation question.

Prof. Sam Kalen: Yeah, I mean the only caveat to we have to be careful is that we're dealing with an entirely different clause here. It's the property clause of the Constitution. And what we don't have is case law that suggests any limits on delegating authority to the President. What we have is the Supreme Court, a lineage of cases out of the US Supreme Court that talk about the broad power almost as broad as you can imagine under the property clause. So applying the non delegation clause to the property clause would be new. It's not been, obviously, as Harry said, raised in this case. And I'll be honest, I have not seen any really legitimate case in recent times, ever raising a non delegation argument under the property clause.

Jeff Beelaert: Yeah, I mean I think we made this point earlier, but it's federal land, right? I mean Congress, at the end of the day, it's the federal government's land. So the way that the federal government decides if Congress is going to delegate authority to the President to designate monuments, I think on the here, I think that the government may suggest that there is an intelligible principle, right? That the statutory language limits when the designation can occur. And to the extent that you would try to work that through that analysis, I think that's sort of the response the government might give. Let me try and get through a couple more questions, though, before we finish. "160 years ago, Olmsted, the park designer for Yosemite, said before many years, if proper facilities are offered, these hundreds will become thousands, and in a century the whole number of visitors will be counted by millions. An injury to the scenery so slight that it may be unheeded by any visitor now will be one multiplied by these millions." What are your thoughts, and maybe this in the context of, I think you were talking about the crust professor, what do you think about the designation of broad swaths of land to protect these sorts of very fragile, what could be fragile ecosystems?

Prof. Sam Kalen: I actually think what the authors or the question goes to is Olmsted was worried about the level of visitorship on modern national parks. He obviously had even some role elsewhere and across the country as sort of a visionary in some respects. But what he really was worried about is visitorship. This was in an area where Yosemite was being used by concessionaires to basically, and it was ultimately going to destroy the landscape. And that's what he was worried about. They were worried about protecting the landscape. So I think that what he was doing there is suggesting we need to protect Yosemite, overall Yosemite, we're worried about the landscape of Yosemite, we're worried about the number of visitors that might ultimately impact Yosemite. I don't know that that's a good issue for the National Park system. Some of us have written on it. I don't know that it's related to really what the litigation is on the Antiquities Act.

Harry S. Graver: The one thing I'd say is too is it does help underscore that the Antiquities Act is very much not the only arrow in the quiver for protecting important environmental interests. And this was a big part of, at least this aspect of it was a big part of the case, which is that usually when Congress is dealing with a lot of issues of federal land management as all of these finely reticulated schemes, if the Antiquities Act is really as broad as the President says it is now, and really as borderline plenary as the President says, it's now, it fits pretty uncomfortably with all of those schemes. So why do you go through all the hassle for designating a park or marine monument or marine sanctuary, something like that you can sort of snap your fingers and declare a monument instead? I think it's to say there are a lot of statutory schemes out there to protect a lot of important interests. So I don't think there is a pressure to make the Antiquities Act sort of be this end all be all for conservation interests.

Jeff Beelaert: Just regardless of who the next President is going to be. I think that if the next president were to disagree with President Biden's proclamation, nothing's stopping the next president from redefining the scope of this particular monument. Is that correct?

Harry S. Graver: So there is a- that is our view, but it is not the only, there is a big fight about essentially whether the Antiquities Act is a one-way ratchet and whether the president can reduce monuments. So President Trump did reduce these monuments as Professor Kalen was saying, and that is being, I think, still litigated somehow. I don't know how it's not mooted, it's been still kicking around, I think in DC. So it is not as if this can just get resolved by the next President one way or the other. I think either way, whether you want big monuments or smaller ones, either it's us or the Sierra Club is going to litigate.

Jeff Beelaert: Okay. So I think from your view, these cases are not going away anytime soon.

Harry S. Graver: I don't, unless sooner or later the Supreme Court needs to say what the issue has become, I think increasingly important, and sooner or later it's going to become too important for the court not to say anything. But until then, I think these cases are going to keep coming.

Jeff Beelaert: Well, we've reached sort of the end of our one hour time. I want to thank both Harry and Professor Kalen for taking the time to be with us today. I believe this is available online for those that would like to watch again, and thank you to the Federalist Society for allowing us to be here today. Appreciate your time and appreciate the great questions that were asked by the audience.

Edith Harold: Yeah, and likewise, on behalf of the Federalist Society, thank you so much to Harry and Professor Kalen for speaking with us today and to Jeff for moderating. We're so grateful for your time and expertise. Thank you also to our audience for joining us, we really appreciate your participation. You can stay up to date with announcements and upcoming webinars on our website FedSoc.org or on all major social media platforms. Thanks once more for tuning in and we are adjourned.