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Judge in national monuments challenge says courts have no role to play

Bears Ears National Monument
Howard Berkes
Bears Ears National Monument

A federal judge recently dismissed the state of Utah’s lawsuit claiming that President Joe Biden had overstepped his authority by restoring two national monuments – and ruled that actions like Biden’s aren’t reviewable by courts.

In 2021, the president restored the Grand Staircase-Escalante and Bears Ears monuments to roughly their original size after his predecessor Donald Trump had shrunk them dramatically. Utah officials sued, claiming in part that Biden had ignored limits in the 1906 Monuments and Antiquities Act.

“That the Bears Ears and Grand Staircase-Escalante reservations constitute an abuse of the President’s authority under the [Act] follows from a straightforward reading of [its] text,” the original complaint said.

But U.S. District Judge David Nuffer rejected Utah’s claims.

John Leshy, an emeritus professor at UC Law in San Francisco and former Interior Department solicitor, said there have been a number of unsuccessful legal challenges to new monuments. But he called this decision unique because the judge addressed whether courts can even evaluate monument designations.

“Before deciding if the Proclamations are unlawful, the court must decide if they can be reviewed by a court. They cannot,” Nuffer wrote in the dismissal. “Judicial review requires a waiver of sovereign immunity, which is not present.”

“It's never been said that explicitly before,” Leshy said of that element of the ruling. “And everybody is expecting, and I'm sure Judge Nuffer himself would expect, this is going to go up to the court of appeals and maybe even to the Supreme Court.”

Utah officials have said they are appealing the ruling. But even if higher courts disagree, Leshy said that doesn’t necessarily mean they’ll reverse Biden’s actions.

“It just means they're going to entertain the arguments and decide," he added.

As Boise State Public Radio's Mountain West News Bureau reporter, I try to leverage my past experience as a wildland firefighter to provide listeners with informed coverage of a number of key issues in wildland fire. I’m especially interested in efforts to improve the famously challenging and dangerous working conditions on the fireline.