Amanda Pampuro

BOULDER (CN) — Landowners and two Utah counties asked the 10th Circuit on Thursday to enable review of President Joe Biden’s widened boundaries around two grand Southwestern monuments following a lower court's finding that the president’s decision is exempt from court examination entirely.

“When something is ultra vires, sovereign immunity doesn’t apply,” argued attorney Tyler Green, on behalf of Garfield and Kane counties in southern Utah. “It’s a longstanding equity practice to protect that.”

Congress enacted the Antiquities Act in 1906, giving the president the power to declare national monuments to protect historic landmarks, objects of scientific interest and surrounding lands.

From Teddy Roosevelt’s creation of the Grand Canyon National Monument in 1908 to George W. Bush’s designation of the Marianas Trench National Monument in 2009, controversy has often followed these grand designations.

Bill Clinton established the Grand Staircase-Escalante National Monument in northern Arizona and southern Utah in 1996, and Barack Obama declared Utah’s Bears Ears National Monument right before leaving office. In response to controversy, Donald Trump shrank both reserves and removed many restrictions. When he entered office in 2021, Biden reversed at once, expanding both monuments’ boundaries to encompass 3 million acres of federal land and reinstating Democrat-era protections.

Two lawsuits followed, one by local property owners and the other by the two Utah counties bordering the monument, Garfield and Kane. In court documents, rancher Zebediah Dalton argued Biden stretched the definition of “monument” to encompass “an indeterminate collection of geographic areas, ecosystems, habitats, and even types of animals — from moths to minnows, shrimp to sheep.”

The lower court consolidated then dismissed both cases in August 2023, finding federal sovereign immunity rendered the Antiquities Act proclamations unreviewable.

Dalton and the counties appealed.

“Where is our authority to step in and say that he’s using powers he was never given, when no court has said that and Congress has been responsible for checking those powers?” asked U.S. Circuit Hudge Ricardo Federico, a recent Joe Biden appointee.

Green said the court has a duty to review overreaches of power regardless of who makes them.

“It’s very important to disentangle when someone is misbehaving,” said Green, with the firm Consovoy McCarthy. “There is a big difference between exercising power you never had, or wielding that power in a way that violates it. So, yes the president had power under the Antiquities Act, but if you’re wielding it in a way that Congress never meant, you’re acting as an individual.”

Trump-appointed U.S. Circuit Judge Joel Carson wondered whether the Antiquities Act has limits or if a president could declare all federal land in Utah a national monument on a whim.

“They can designate any federal land where they had a bona fide reason,” U.S. Attorney John Bies answered. “The recourse would be political, not through the courts.”

After Franklin Roosevelt established the Jackson Hole National Monument in 1943 for example, lawmakers amended the Antiquities Act to prohibit the president from establishing any more monuments in Wyoming without permission from Congress.

Bies argued that opening the case for review under the guise of ultra vires would unreasonably expand the court's powers beyond what the Administrative Procedure Act offers.

Member of the several Native American tribes intervened in favor of maintaining the monument boundaries which they had long lobbied to establish.

“I think even the original Congress understood parts of Bears Ears were within the jurisdiction and authority of the president to protect,” argued attorney Matthew Campbell on behalf of the Hopi Tribe, Navajo Nation, Pueblo of Zuni, and Ute Mountain Ute.

Campbell explained that the monuments contain areas of cultural significance including burial grounds, kivas, dwellings petroglyphs and ancient roads.

Biden-appointed U.S. Circuit Judge Veronica Rossman rounded out the panel.

The hearing was held in the Wittemyer Courtroom at the University of Colorado Boulder Law School before a lively and engaged audience. The court did not indicate when or how it would decide the case.