Environmental, Natural Resources, & Energy Law Blog
No Standing in a Monumental Desert: Utah, The Grand Staircase-Escalante and Bears Ears - Nicole Croft
No Standing in a Monumental Desert: Utah, The Grand Staircase-Escalante and Bears Ears
The State of Utah is once again threatening two of America’s largest national monuments.This is a legal saga Utah has waged over 28 years, through five presidencies.Despite the economic benefits to the rural communities surrounding them, Utah is on the frontline in the fight against environmental conservation.This paper will explain why Utah, Kane and Garfield Counties do not have standing in Garfield Co. v. Biden to sue the Administration over the re-established boundaries of Grand Staircase-Escalante and Bears Ears National Monuments because the plaintiffs do not demonstrate concrete injury that would be relieved by judicial redress.
In Lujan v. Defenders of Wildlife, the Supreme Court held that standing requires “a concrete and particularized injury, that is traceable to the allegedly unlawful actions of the opposing party, and that is redressable by a favorable judicial decision.” As discussed further in this blog, in its lawsuit challenging the boundaries of the two national monuments, Garfield Co. v. Biden, the plaintiffs fail this standard. In Massachusetts v. EPA, the Supreme Court found that Massachusetts exceeded the Lujan standard in part and had standing to challenge the EPA because it is “a sovereign State…and actually owns a great deal of the territory alleged to be affected.”Utah and the counties fail this standard as well, as the lands in question are almost exclusively owned by the Federal government and managed by the Bureau of Land Management.
Both national monuments have been considered for special protection going back to 1936, but in 1996, the Clinton Administration established the Grand Staircase-Escalante National Monument , launching a visionary era for the landscape scale management of America’s most precious public lands.To the east of the state, Bears Ears National Monument was established in the final days of the Obama administration, largely due to the tireless and groundbreaking coalition of the Bears Ears Inter-Tribal Coalition consisting of the nations of Dinè (Navajo), Hopi, Ute, Ute Mountain Ute and the Pueblo of Zuni coming together for the first time to call for protection of their shared ancestral lands and asking to be charged with co-management of this sacred landscape along with the BLM and US Forest Service.
Shortly after the Grand Staircase-Escalante designation, Utah filed suit against the Clinton Administration claiming the designation was an “illegal attempt to prevent a proposed underground coal mine” and was an overreach of the Executive powers bestowed by the Antiquities Act of 1996.The suit was settled out of court through the exchange of state land parcels included within the Monument’s boundaries, and a federal payout of $50 million dollars, later codified as the Utah Schools and Lands Exchange Act of 1998.Despite this generous settlement, in 2004, Utah again challenged the Grand Staircase-Escalante in court and lost on the merits; the legality of the monument designation by President Clinton was affirmed.
In 2017, President Trump, with murky rationale, gutted the Utah monuments by retracting over two million acres of protected public lands from Grand Staircase-Escalante and Bears Ears. This action represented the largest rollback of public lands protections in American history, opening the gates to years of litigation and poor management of irreplaceable antiquities and natural resources.
The Biden Administration promptly rescinded these Executive actions in October 2021, restoring the Grand Staircase-Escalante historic boundaries and expanding Bears Ears slightly to more align with the request of the Bears Ears Inter-Tribal Coalition. Predictably, in August 2022, Utah and Kane and Garfield counties, home to Grand Staircase-Escalante, but not Bears Ears located across the state in San Juan County, filed a complaint, Garfield County et al v. Biden et al, again citing that these designations exceed the powers granted to the Executive by the 1906 Antiquities Act.Notably, San Juan County has not signed on to this litigation.
The court should dismiss this lawsuit for lack of standing. Utah and the counties’ claims of injury fail to rise to the Lujan requirements for standing as they misrepresent the facts and do not demonstrate how a favorable ruling would resolve their allegations.The keystone complaint throughout the brief is that the Biden Administration has increased tourism beyond the capacity to manage the monuments. The plaintiffs give President Biden too much credit for this increase.A key indicator of visitation, Transient Room Tax revenue, demonstrates that Garfield County saw only a 1.7% increase from 2019, when the Trump boundaries were in place to 2021 when the monuments were restored, and in San Juan County, home to Bears Ears, there was a 17.8% decrease in visitor tax revenue in this same period.These numbers must be considered through the lens of the on-going pandemic, but demonstrate that Utah and the Counties’ assertion of injury based on the Biden restoration of the monuments is purely speculative, not based in fact, and outside the scope of any judicial remedy.
Further, Utah fails to acknowledge that visitation in Southern Utah has been regularly increasing by design.The State of Utah has been broadly promoting tourism in these regions since 2016 under the “Road to Mighty” campaign.The Utah Travel Guide highlights tourist destinations in the region of these two monuments no fewer than 15 times.
The plaintiffs also raise multiple claims further demonstrating they do not have legal standing. They allege the designations prevent their ability to conduct restoration and prevent wildfires. This is a misrepresentation.The 1999 Grand Staircase Monument Management Plan clearly provided for broad habitat restoration including by mechanical methods such as chaining, and for wildfire suppression. There is no reason to speculate these actions will be excluded from the Management Plans currently being considered, which the Counties and State have opportunity to influence. The plaintiffs also assert that Monuments harm cattle grazing, when in fact, from 1996 to 2017, the number of cattle on the Grand Staircase-Escalante only decreased by .5%, despite crippling drought in the region. There is no evidence to suggest grazing leases would be harmed by Bears Ears, either. Utah and the counties allege the monuments harm the local economy, despite the Boulder-Escalante Chamber of Commerce’s unanimous position amongst members that the monument should not be reduced.Further, the County Commissioners of San Juan County demonstrated their support of Bears Ears and withdrew in 2019 as “objecting intervenors” to the litigation challenging the Trump reductions of Bears Ears. Plaintiffs also complain that monuments harm the economic interests of developing school trust lands within the Monuments’ borders. This assertion ignores the Utah Schools and Land Exchange Act (1998) that resolved this issue in the Grand Staircase-Escalante and also overlooks the fact that in May 2022, Utah lawmakers approved swapping 165,000 acres out of the new Bears Ears Boundaries.This issue was resolved prior to filing of this litigation.
In one of its most significant allegations, Utah and the counties claim the monument designations harm Native American interests by not providing explicit protection for indigenous cultural resources. However, no indigenous party has signed on to this complaint.For the Bears Ears, this claim ignores the tremendous effort and commitment the Bears Ears Inter-Tribal Coalition made to protect their ancestral lands.In the Bears Ears Proclamation, President Biden calls for the “federally recognized Tribes and State and local governments” to be “provide[d] maximum public involvement in the development” of a management plan for the Monument.Utah’s claims undermine the “historic consortium of sovereign tribal nations united in the effort to conserve the Bears Ears cultural landscape” and the nationwide indigenous support of the Bears Ears designation.
As for the Grand Staircase-Escalante, Biden’s 2021 proclamation explicitly protects Indigenous cultural resources:
“The Secretary shall, to the maximum extent permitted by law and in consultation with Tribal Nations, ensure the protection of sacred sites and cultural properties and sites in the monument and provide access to Tribal members for traditional cultural, spiritual, and customary uses, consistent with the American Indian Religious Freedom Act (42 U.S.C. 1996) and Executive Order 13007 of May 24, 1996 (Indian Sacred Sites)…”
For all of the reasons above, the plaintiffs’ lawsuit should be dismissed for lack of standing. In 2021, Chief Justice Roberts made it clear the Court was willing to consider the reach permitted to the Executive via the Antiquities Act.Utah, Kane and Garfield Counties have made clear they seek to advance this case all the way to the Supreme Court in an effort to significantly curtail the impact of the Act.But as discussed here, plaintiffs have misrepresented the alleged harms these monuments create and fail to demonstrate cognizable injury that could be remedied through a favorable judicial ruling.Utah Kane and Garfield Counties should be denied standing.
 Headwaters Economics.“National Monuments can boost local economies” (2021, May). https://headwaterseconomics.org/public-lands/national-monuments-studies/
 Lujan v. Defenders of Wildlife.504 U.S. 555 (1992)
 Massachusetts v. EPA. 549 U.S. 497 (2007)
 Bureau of Land Management, Proposed Escalante National Monument, U.S. Dept. of Interior, (1936) https://www.blm.gov/programs/national-conservation-lands/national-monuments/utah/bears-ears/1936-proposed-map
 Exec. Order No. 6920, 61 C.F.R. 50223 (1996).
 Omnibus Public Land Management Act of 2009, 16 U.S.C. §1001 (2009)
 Exec. Order No. 9558, 3 C.F.R. 407 (2016)
 Utah Ass’n of Counties v. Clinton, 255 F.3d 1246 (10th Cir. 2001)
 The Antiquities Act, 16 U.S.C. §431-33 (1906).The Antiquities Act of 1906 bestows the President unilateral authority to set aside “historic landmarks, historic and prehistoric structures and other objects of historic or scientific interest” on federal or government-controlled lands.
 16 U.S.C.§ 431 Utah Schools and Lands Exchange Act of 1998, Pub.I. No. 105-225,112 Stat. 3139 (1998).
 Utah Association of Counties v. Bush. 316 F.Supp.2d 1172 (2004)
 Exec. Order 9681 82 DR 58081 (2017)
 Julie Turkewitz, Trump slashed size of Bears Ears and Grand Staircase Monuments, The New York Times, A 1 (12/04/2017)
 Resource Management Plan for the Grand Staircase-Escalante National Monument and Kanab-Escalante Planning Area, 85 C.F.R. 9802, 9802-9803 (2020).
 Exec. Order No. 10286 86 FR 57335
 Exec. Order No. 10285 86 FR 57335
 Pl’s Compl. Para 3 (2022, Aug 24)
 Pl’s Compl. Paras 101, 145-8, 150-1, 161, 180, 195, 197, 199 (22, Aug 24)
 Kem C. Gardner Policy Institute.The State of Utah’s Travel and Tourism Industry (2022) https://efaidnbmnnnibpcajpcglclefindmkaj/https://gardner.utah.edu/wp-content/uploads/Travel-Tourism-Trifold-Jan2022.pdf?x71849
 Gorrell, M. (2016, Mar 25).“Utah unveils $4.6 million ‘Road to Mighty’ Tourism campaign.” Salt Lake Tribune.
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 Pl.’s Compl.Paras 18, 154. 166-8 (2022, Aug 24)
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 Exec. Order No. 10285 86 FR 57335, Exec. Order No. 10286 86 FR 57335
 Bureau of Land Management. Grand Staircase-Escalante Draft Livestock Grazing Plan Amendment and Update. (2017, Feb 3).
 Udall, B., Overpeck, J. The twenty-first century Colorado River hot drought and implications for the future. Water Resources Research. (2017, Mar).
 Waggoner, D. Statement for the Record, House Natural Resources Committee, (2019, Mar 13) chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/https://naturalresources.house.gov/imo/media/doc/Waggoner,%20Dana%20-%20Statement%20for%20the%20Record.pdf
 Assoc. Press. “Democrat-controlled San Juan County formally withdraws from Bears Ears court case.Salt Lake Tribune (2019, Apr 17).
 Pl.’s Compl. Paras 200, 203 (2022, Aug 24)
 16 U.S.C. § 431 Utah Schools and Lands Exchange Act of 1998, Pub.I. No. 105-225,112 Stat. 3139 (1998).
 Maffly, B. “Utah Lawmakers approve Bears Ears Land Swap.” Salt Lake Tribune. (2022, May 18)
 Exec. Order No. 10285 86 FR 57335
 Bears Ears Inter-Tribal Coalition.https://www.bearsearscoalition.org/ (n.d.)
 Native America Rights Fund.“Protecting Bears Ears National Monument.”https://narf.org/cases/bears-ears/ (n.d.)
 Exec. Order No. 10286 86 FR 57335
 Mass. Lobstermen’s Ass’n v. Raimondo.141 S. Ct. 979 (2021
 Maffly, B. “Goal of Utah’s Monument Lawsuit: Take down the Antiquities Act” Salt Lake Tribune. (Sep. 5, 2022)