Monday, March 13, 2017

Overturning Bears Ears an uphill challenge, lawyers say

...John Ruple, an attorney with the Wallace Stegner Center, said no monument has never been overturned since the 1906 Antiquities Act authorized them, but a few have been significantly reduced in size. “If they were to go down that road, it is a very difficult path,” he said. “The Supreme Court has upheld them.” Ruple said overturning or shrinking a monument would have to pass a two-part legal test: Did the president identify objects of scientific and historic interest, and did he designate the smallest boundary necessary to protect those resources? If the answer is yes, then it is on solid legal ground, he said. “Most important, the court said we are not going to second-guess the president on those facts,” Ruple said. He said the fastest time a monument was reduced was three years. If one was drastically reduced, it would likely face a legal challenges if resources identified in the monument proclamation were put at risk. Lawyers said that nothing in the Antiquities Act speaks to undoing monuments, and no president has ever tried to completely nullify one. In passing the Antiquities Act, Congress granted designation of national monuments by the president under the authority of the Property Clause of the U.S. Constitution, Ruple said. However, there are 16 examples where monuments have been reduced, mostly a small boundary adjustment or involving rights of way, Ruple said. Four were reduced significantly. “That implies congressional consent, so those opposed could make the argument the president should be able to exercise a boundary adjustment based on new information and his convictions,” he said. Nada Culver, an attorney for the Wilderness Society, noted that none of the monument boundary changes were challenged in court, something that local environmental groups and tribes are prepared to do. “Just saying ‘we don’t like it’ is not a good legal reason for a reduction,” Culver said. “We will challenge any reduction in any court we can to protect the monument’s resources, which will be at risk while we fight it out.”...more

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