Published: Jan. 24, 2024 By
Bears Ears National Monument

The Getches-Wilkinson Center and the Getches-Green Clinic recently teamed up with 29 law professors from around the country to submit an important amicus curiae brief in a case that could undermine the integrity of the Antiquities Act.

In 2021, President Biden issued two proclamations restoring Bears Ears and Grand-Staircase Escalante National Monuments in southern Utah. Both landscapes are rich in cultural, ecological, and paleontological objects that reflect millennia of human occupation and provide a living laboratory for scientific study. Professor Charles Wilkinson played a key role in the work that led to the original designation of both monuments, and scholars from the University of Colorado Law School have advanced the study of the Antiquities Act for many years.

The State of Utah and other parties challenged President Biden’s proclamations in the District of Utah, alleging that the President designated ineligible objects and protected too much federal public land in creating the monuments. The district court dismissed the lawsuit holding that there was no right to judicial review of a monument proclamation. The plaintiffs appealed the case to the 10th Circuit Court of Appeals.

Chris Winter, Executive Director of GWC, and Sarah Matsumoto, Director of the Getches-Green Clinic, worked on the amicus brief, which was signed by 29 environmental law professors from across the country. The law professors encouraged the 10th Circuit to refine the district court’s approach to judicial review of monument proclamations to align with how the D.C. Circuit court has addressed the issue. The D.C. Circuit Court allows for a limited form of facial review to ensure that the President acted within the authority delegated to the office by Congress. Here, it is clear that President Biden’s proclamations should be upheld under this limited form of review as a valid exercise of Presidential discretion.

Prof. Mark Squillace, Raphael J. Moses Professor of Law at Colorado Law School, and John Leshy, Distinguished Professor Emeritus, University of California College of the Law San Francisco, contributed extensive time and energy to the effort. We are also grateful for the key assistance of the clinical students – Lizzie Bird, Mariah Bowman, and Mike McCarthy.

You can also read a Bloomberg article discussing the amicus brief here.