In a sign that both Bears Ears and Grand Staircase Escalante are going to be restored to their previous sizes once a DC Circuit judge issues her final ruling, the judge has dismissed the Trump administration’s motion to dismiss the case, finding that the plaintiffs have standing and that the decision regarding Trump’s shrinking of monuments under the Antiquities Act will be done on the merits.
A little background. Presidents have shrunk monuments before, starting with President Taft in 1911. Most of them fell under ‘ implied powers’ that was the ruling of the Supreme Court in the 1915 case called Midwest Oil. this ‘ Midwest Oil’ doctrine covered presidential reductions for the better part of 60 years, and presidents up to Kennedy sliced off pieces of monuments, a few hundred acres here, a couple thousand acres here. This was balanced, and then some, by monument expansions. Congress repealed the Midwest Oil doctrine in 1976 as part of passing the Federal Land Policy and Management Act , leaving monument expansions as the only modification authority left to the president. FLPMA also forbids the interior secretary from making any changes to existing monuments.
Thus Zinke’s recommendation to shrink the monuments was illegal, as was Trump’s acting on it. Once established, a monument is permanent, as held in a 2004 case concerning marine areas within Glacier Bay national park in Alaska , unless Congress decides to undo it, which hasn’t been done since 1956. Most of the time, Congress renames a monument, as was the case with the 3 parts of the World War II Valor in the Pacific NM , which became 2 monuments and a memorial in the recent lands bill.
By throwing out the administration’s attempt to dismiss the case, the judge makes it likely that, on the merits, the tribes and environmental groups challenging Trump’s reductions will win. Recent court cases concerning other Obama-era monument moves have resulted in the monuments being upheld. so if Obama had the right to create Northeastern Canyons and Seamounts at 3.1 million acres, then he also had the right to create Bears Ears at 1. 35 million acres. When the president creates a monument, he is carrying out the job given to him by Congress. What a president creates, another may not un-create. Congress, in passing FLPMA , made that very clear.
If the judge restores the two monuments, the management plans and leases will be voided, as if they were never handed out in the first place.
Heres a link to the judges ruling.
earthjustice.org/...