National Monuments Lawsuits Two Years Later

 by Aaron Paul, Staff Attorney

One wonders, doesn’t one, how it is that Rule 12(b)(1) of the Federal Rules of Civil Procedure has for a year had southeast Utah’s national monuments in its vise-grip maw.

It’s true, as you may have read in the news the week before last, that the lawsuits filed in late 2017 over President Trump’s efforts to dismantle Bears Ears and Grand Staircase-Escalante national monuments are moving forward thanks to a recent ruling by the court. Yet in a technical sense, the lawsuits remain at the threshold, hung up over a fight about whether the court has the power to resolve them. This is what I mean by Rule 12(b)(1).

So what gives? 

The national monuments cases in review

Two Decembers ago, the president proclaimed his belief that Bears Ears and Grand Staircase ought to be smaller and less well protected. His predecessors had created the monuments under the Antiquities Act of 1906, which allows presidents to “declare” historic landmarks, structures, and other objects of historic or scientific interest and to “reserve” parcels of land as national monuments. 

Eschewing both history and syntax, President Trump invoked the act in an effort to un-declare and un-reserve what his predecessors had set aside for protection. So, later that day, the Hopi, Navajo, Ute, Ute Mountain Ute, and Zuni tribes followed by a host of conservation groups, including the Trust, sued.

What’s at stake and why it matters

Hanging in the balance in those lawsuits are not only Bears Ears and Grand Staircase, but all 127 other national monuments in this country, and the very power of future presidents to protect places as varied as Canyon de Chelly, the A.G. Gaston Motel, the Stonewall Inn, Fort McHenry, the home of César Chávez, the Statue of Liberty, and the Grand Canyon.

It makes good sense that Congress in 1906 empowered future presidents to safeguard places like those at the stroke of a pen, for even a protection-minded Congress almost always works too slowly to forestall the ceaseless and swift onslaughts from those who would mine, drill, loot, develop, or even accidentally damage places that are historically or scientifically important. And for that same reason, it makes good sense for Congress to have kept to itself the power to reverse a monument designation — so that Congress, with deliberation, could undo safeguards a president might rashly bestow, but a president could not rashly and irrevocably destroy what Congress, with deliberation, would protect. After all, an ancient cliff dwelling or redwood forest or the house of a civil rights champion can be preserved for a time and later destroyed, but the opposite is not true.

That is the conclusion the national-monument lawsuits ask the courts to confirm. But before a federal court can reach that conclusion, it must be assured that it is empowered to act — that it has jurisdiction. And that’s where Rule 12(b)(1) comes in.

The fine print of Rule 12(b)(1)

A host of detailed procedural rules govern how lawsuits in federal court proceed. Rule 12(b)(1) allows a defendant in a lawsuit to contend immediately after the suit is filed that the court lacks the power to resolve it. And that is what the government did in the monuments cases. 

Given the complexity of these lawsuits, it took a year for all the participants to present their written arguments to the court on this question of jurisdiction. The week before last, the court demurred, issuing an order seeking additional information from our coalition and the tribes. In a sense, that order has procedurally reset the lawsuits to the stage they were in just before they were filed in December 2017 — with one major caveat: the parties have now submitted a wealth of arguments to the court on the key legal questions in play, which could allow for the cases to move promptly to a resolution once the court’s recent order is addressed.

What’s on the horizon for the monuments cases

In the meantime, the Trump administration has been hustling to issue new management plans that will speed along all sorts of harm to the granaries, petroglyphs, dinosaur bones, natural bridges, aging dugways, hanging gardens, pinnacles, hoodoos, and the like, that had been subject to the Antiquities Act’s safeguards.

Having the courts resolve the all-important questions at stake in the monuments lawsuits could not be more pressing. With the help of our lawyers at Earthjustice, we’re working quickly to address the court’s recent order, and in the new year, the lawsuits will once again be careening toward a long-sought and much-needed resolution.