February 1, 2018

Utahns should not have to rely on the federal government to defend their access to public lands

By Jeffrey W. McCoy Attorney

Yesterday, PLF filed a reply brief in support of our clients’ motion to intervene in a lawsuit challenging the reduction of the Bears Ears National Monument.  The lawsuit, brought by (among others) Patagonia, a retail company that sells outdoor wear, alleges that President Trump acted illegally when he freed up over one million acres of land in Utah. Our clients are Utahns who want to participate in the lawsuit to defend the monument reduction and ensure that the public lands remain accessible for everyone.  And PLF wants to ensure that federal monuments comply with the law by comprising the smallest area compatible with the care and management of antiquities and similar historic objects.

Last week, Patagonia and the other plaintiffs filed an opposition to the motion to intervene.  They argued that the federal government would adequately represent the interests our clients, and that there was no need for PLF to get involved.  PLF and our clients are certainly happy with the decision to reduce the monument, but we’re skeptical that the federal government has the same interests in defending the reduction as those that use the land.

One reason why we are skeptical is that the federal government is taking a different view about the proper size of national monuments in a separate monument litigation.  PLF is currently representing New England fishermen in a challenge to the Northeast Canyons and Seamounts Marine National Monument.  In that case, we believe that the monument violates the Antiquities Act in part because of its enormous size.  But the federal government has yet to change its position that the 5,000 square mile monument is “the smallest area compatible with proper care and management of the objects to be protected.”  Clearly, PLF and our clients have different views over what the President can, and must, do regarding national monuments.

But even if the federal government did not take different positions in different cases, our clients still have unique interests to protect in the Bears Ears Monument litigation.  Our clients want to ensure that the lands at issue remain accessible for disabled and elderly recreationists, guarantee the ability of sportsmen to engage in conservation projects on the land, and safeguard grazing rights on the land.  Our clients should not have to rely on the federal government to defend these interests, especially when they can do so themselves.

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Bears Ears National Monument Litigation

In December 2016, under cover of the Antiquities Act, President Obama unilaterally created the 1.35 million acre Bears Ears National Monument. One year later, President Trump slashed the size of the monument by 85 percent—to around 200,000 acres, freeing up more than one million acres for public use. Outerwear retailer Patagonia, environmental groups, and others sued the federal government, saying the President’s decision was illegal. On behalf of recreationists, ranchers, sportsmen and conservation organizations, and Utah state representative Michael Noel, Pacific Legal Foundation is defending the monument’s reduction to ensure that public lands remain accessible to everyone.

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