National Monuments at Risk & SNAP Benefits

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1:45This is Bloomberg Law with June Grosso from Bloomberg Radio. It's been 13 months and counting since the 10th Circuit heard oral arguments in a case over the president's executive authority to protect or abolish U.S. national monuments. This comes as the White House is rolling back public lands protections. The 10th Circuit heard oral arguments in September of 2024 in Garfield County v. Biden, a case plaintiffs are aiming at the Supreme Court as they challenge the president's executive power to block mining, oil and gas drilling and other developments under the Antiquities Act. In May, the Trump Justice Department outlined a rationale for abolishing national monuments, many of which have been declared by presidents to protect large swaths of public land from development.

2:43But President Donald Trump has been largely hostile to large national monuments. The Interior Department, which manages most of the 138 national monuments, has been cutting staff, expanding mining, oil drilling, and logging on federal lands, and is also reviewing whether it can open national monuments to mining. My guest is environmental law expert Pat Parenteau, a professor at the Vermont Law and Graduate School. Pat, tell us about this case Garfield County versus Biden, which is before the 10th Circuit. So this is a challenge to President Biden's reinitiation of a national monument designation for Bears Ears in Utah, southern Utah.

3:30It's over a million acres. It's one of the richest archaeological and Native American cultural artifact pieces of property in the entire United States. There are like five tribes who claim various heritage and interests in this area. And it's another one of these designations under the Antiquities Act, the 1906 law. There have been 150 different designations by Republican and Democratic presidents over the years. So this one is a challenge from the state of Utah challenging the Bears Ears Monument. There's another related challenge to a monument in Colorado, the Grand Staircase Escalante National Monument.

4:21So both of these cases are working their way through the courts. And the lower court ruled that the Antiquities Act doesn't allow judicial review for monument designations? Correct. Basically, the lower court judge, Utah federal judge ruled that the Antiquities Act is a delegation of authority to the president that gives him complete discretion and leaves no role for the courts to review actions that the president takes under the Antiquities Act. And as we may talk, that was the focus of the argument in the Tenth Circuit Court of Appeals in September. So are there other acts where it's been determined that there can be no court review of what a president or an agency does?

5:19No, this is a doctrine in administrative law known as committed to agency discretion, or in this case, committed to the president's discretion. And the Overton Park case is the seminal case on this doctrine. And it basically says there's a presumption that you can review actions that federal agencies take, except where there's, quote, no law to apply. So that's one of the questions here is, does the Antiquities Act give the courts standards that they can use to judge whether or not a president has exceeded his authority? That's the claim that Utah is making, that Biden had no authority to designate something this large under the Antiquities Act.

6:12And from what I've read about the oral argument in the Tenth Circuit, it seems to me that the court is likely to rule that there's at least some limited ability of courts to review presidential declarations like this, designations like this. exactly how the court's going to come down on that and what it says to the lower court if it sends this case back to the lower court, what kind of guidance it gives the lower courts. That, I think, is sort of where we are right now. So the Trump Justice Department in May declared that presidential authority to create or abolish monuments is one of the White House's most sweeping unilateral powers, and that a U.S.

7:01president has the power to create and undo national monuments under the Antiquities Act. So that is a reversal of a 1938 Justice Department opinion? Yes, that's true. There was an attorney general opinion from 1938, which basically said that presidents have the authority to designate national monuments and very, very broad authority to do so without any real significant limitations on the president's authority. And also this opinion said, once a monument has been designated, it's up to Congress to decide whether to rescind the designation or reduce it or do something with it. But, you know, the act doesn't explicitly say that subsequent presidents, like Trump in this case, have the authority to either rescind altogether a designation, which this latest Justice Department opinion is saying he does have that authority or substantially reduce it.

8:10I mean, over the years, presidents have, and Congress has, reduced to some extent designations, but only in a very minor way, you know, a few thousand acres, not millions of acres, right? So we are in a gray zone. Sounds familiar, right? Always. Yeah, always. The statute is far from crystal clear on both whether subsequent presidents can completely rescind a designation or cut it back substantially the way Trump did in these two monument cases we're talking about in his first term. He reduced the Grand Staircase Monument by 85 percent, and he reduced the Bears Ears by 45 percent. So, you know, we're in this area where the courts really are going to struggle with coming up with a rule that says, what exactly can subsequent presidents do about prior designations, and how much of that authority is really left to Congress?

9:16I mean, these are public lands, after all. They're subject to Congress's property authority under the property clause of the Constitution. So there's a separation of powers argument in all of this, which is, you know, once a designation has been made, maybe the best argument is it's really up to Congress to decide what to do about that if it wants to do something about that. And instead of having this flip-flop between presidents, it's in, it's out, some of it's in, some of it's out. I mean, that's really chaotic, right? So if this case gets to the Supreme Court, and it might, maybe not right now because the current posture of the case is on this question of do the courts have any authority at all to review it.

10:03But assuming the case does get to the Supreme Court, I would predict that separation of powers will be a central focus for the court. In fact, Chief Justice John Roberts in 2021, in a case called Massachusetts Lobstermans Association versus Raimondo, sort of issued an invite to challenge the scope of presidential power under the Antiquities Act. He said its use has been transformed into a power without any discernible limit to set aside vast and amorphous expanses of terrain. Yeah, that's got a lot of people worried. It was what we call dictum, right? In fact, in that lobsterman case, the court denied review and said, we're not going to review President Obama's designation of two monuments off the eastern United States, Seamounts and Canyons monument.

10:58So it was dictum. It was not part of the holding. It wasn't the ruling at all. But every time a justice says something, raises a question, that gets a lot of people thinking, okay, well, perhaps Chief Justice Roberts is concerned about this expansive authority that the president is issuing. But on the other hand, what we're seeing from this particular Supreme Court, if anything, is allowing the president to assert all kinds of executive authority under this unitary executive doctrine, right? So this is going to be an interesting issue if and when it does get to the Supreme Court. Will Chief Justice Roberts believe that the Antiquities Act is too broad a delegation in some respect?

11:47We don't know. It's too early to say. But he certainly has flagged the issue. And Utah is relying very heavily on that statement from Chief Justice Roberts. But in March of last year, the Supreme Court had a chance to diminish the president's power to establish new national monuments, right, in a pair of cases, but they didn't take it. That's right. That case is kind of unusual because it dealt with another federal statute in Oregon. And if we can recall, when the railroads were being built across the western United States, the Congress said to Union Pacific and other railroads, if you build these lines that we need, we're going to give you every other section of public land as an inducement to make the capital investment in these rail lines, right?

12:40So there was a statute in Oregon that actually said some of the lands that were designated in the monument were actually authorized by Congress to be logged, timbered for timber companies. And it was the timber companies who were arguing to the Supreme Court. The president is exceeding his authority to designate these lands as a monument when Congress has already said they should be logged. Right. So the court did not take that case. And certainly if Justice Roberts was keen on taking a case to review the authority under the Antiquities Act, that might have been a case to do that. It wasn't a clear issue for the Antiquities Act, though, because of the fact that this other statute was involved.

13:30And it might have been more a question of, is there really a conflict between the Antiquities Act and this other statute or not? Ultimately, the court declined to review it. And Roberts didn't file any kind of dissent or opinion saying we should have taken it. Both Gorsuch and Kavanaugh did say that we think the court should take this case, but probably because of this potential conflict between these statutes, not so much the pure question of does the Antiquities Act give the president broad authority to set aside literally millions of acres of public land? That remains to be seen whether that issue gets to the Supreme Court.

14:15Coming up next on the Bloomberg Law Show, I'll continue this conversation with Professor Pat Parenteau of the Vermont Law and Graduate School. So what's taking the 10th Circuit so long? I'm June Grosso, and you're listening to Bloomberg. The thing about AI for business, it may not automatically fit the way your business works. At IBM, we've seen this firsthand. But by embedding AI across HR, IT, and procurement processes, we've reduced costs by millions, slash repetitive tasks, and freed thousands of hours for strategic work. Now we're helping companies get smarter by putting AI where it actually pays off, deep in the work that moves the business.

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16:35break each morning on Apple, Spotify, or anywhere you listen. The Antiquities Act is a law passed in 1906 that authorizes the president to proclaim national monuments on federal lands to protect significant natural, historic, or scientific features. Presidents have used the act more than a hundred times to create national monuments from the Grand Canyon to the Statue of Liberty. A case before the Tenth Circuit Court of Appeals is challenging the president's executive authority to protect or abolish national monuments under the Antiquities Act. The state of Utah is challenging the legal basis for Utah's Grand Staircase Escalante and Bare Ears National Monuments.

17:23Created by former presidents Bill Clinton and Barack Obama under the Antiquities Act, President Trump shrank both monuments in 2017, and then former president Joe Biden expanded them to roughly their original boundaries. I've been talking to environmental law professor Pat Parenteau of the Vermont Law and Graduate School. So, Pat, the Tenth Circuit heard oral arguments in this case last year in September 2024. They apparently have the lowest number of pending cases of all the U.S. appeals courts and claims on the website. It has one of the fastest turnaround times of any federal circuit court.

18:02But in this case, it's been 13 months and still no opinion. Is that unheard of? Not unheard of, but very unusual for the Tenth Circuit. Yeah, it's one of the more efficient courts. It's Justice Gorsuch's former court where he was many years on the Tenth Circuit. So, yeah, there's a lot of speculation about why is the court taking so long? As I say, this was a procedural question. I mean, an important one, but still a technical question of, you know, do the courts have any authority at all to review designations of national monuments? And so some speculation is, well, there's probably a dissent.

18:41It's a three-judge panel. I forget exactly the makeup of who the appointees are. I think there may be a Trump appointee on the panel. And so one theory is, well, there's probably a dissent. That always takes a longer period of time. Another is that the court is rustling with, should it just remand the case to the district court with some instructions that, yeah, you have a role to play, but it's limited in some way? Or is the court thinking, you know what, maybe we should tackle the real question, the substantive question of what authority the president has? It was clear from the oral argument that the court, the panel understands everybody in Utah in particular wants this case to go to the Supreme Court.

19:27They're counting, you know, again, on what Justice Roberts has said, as maybe an indication they could win in the Supreme Court on the limitation on the president's authority. So I don't know. It's too hard to predict what's taking them this long. I would guess that we're probably going to see a decision certainly this year, in the next month or so. I would hope. Yeah, you'd like to think so. Maybe a Christmas present of some kind. It might be a lump of coal in somebody's stocking. The Justice Department outlined a rationale for abolishing national monuments. I mean, is there any doubt that Trump is going to try to maybe not abolish, but certainly cut back on monuments?

20:08And I mean, he wants to use the land for what, oil and gas drilling or something? Yeah, there's not a whole lot of oil and gas in Bears Ears. There is uranium. And he has made us, you know, resuscitating the nuclear industry is one of his goals and other minerals. You know, if once you get in there and start poking around, you could probably find other copper or other minerals, right, that have some value. So yeah, Trump is not going to live with, you know, huge set-asides of millions of acres of land that has mineral value in it. That's for sure. So at a minimum, he's going to look at these designations and ask his friends in the industry and, of course, Republican governor of Utah, what do you want in these areas?

20:57And we will make sure that we don't set those aside. That's probably what we could expect from this administration. Not an outright repeal, although, you know, maybe. I wouldn't think so. I would think it would be more of carve them down, weigh, weigh down, and make sure that you've excluded any mineral areas of the designations from being set aside. I mean, what do you think about the Antiquities Act? Does it give too much power to presidents? Gives a lot of power, for sure. You know, when you think about it, some of the iconic national parks in the United States, Grand Canyon was one of the first areas to be designated a monument.

21:38There were plans to build mines in the Grand Canyon, at one point even a dam in the Grand Canyon. Zion, Teton, Acadia, you know, these are some of the most popular national parks in the country. They all began as national monuments. So, and again, it's presidents of both political parties. Eisenhower did it, George W. Bush did it, even Herbert Hoover did it, right? So a lot of our public lands heritage is attributable to the Antiquities Act. It's been incredibly important for preserving our natural heritage. So there's that. But then there's also the question of, it's a very short statute. I mean, it's like three sentences.

22:24And there's not a lot of guidance, I guess, on either what should be designated. You know, it refers to things like objects of historic or scientific interest. Well, that's pretty darn broad. It also says that the designations, quote, shall be confined to the smallest area compatible with proper care and management of the objects to be protected. That's some of the language that Utah and others that oppose broad authority under the Antiquities Act are citing to the courts and saying, look, look here, you know, you don't get a million acre designation when you're trying to protect the smallest area of specific objects and so forth.

23:10So lots of room, I think, to argue about should this statute be updated and refined in certain ways. Again, Congress is perfectly capable of doing whatever they want with public lands. And there would be no ability of the courts to do anything else. You know, Congress's power over public land is plenary. It's unreviewable by the courts. The Supreme Court has said that in Missouri versus Holland. So in lots of ways, you can argue what's good public policy with these lands. Should there be a little bit more guidance from Congress, which is the body that's responsible for stewardship of these lands, ultimately?

23:53Yeah, there's good arguments, I'm sure, both ways. But one thing that's really clear is without the Antiquities Act, a lot of really precious areas of the United States would have been lost before now. And Pat, when I was researching this case, I found something interesting, a little off topic, but in the case Utah versus United States, the state of Utah asserts that the federal government, which owns nearly 70 percent of Utah, lacks constitutional authority to retain much of that land. But the Supreme Court denied a motion for leave to file a bill of complaint under the court's original jurisdiction.

24:3470 % of Utah by the federal government? Yeah, right. I mean, it's like, give us your money and stay out of the way. Give us these lands to use as we like and don't put any restrictions on them. You know, it's a challenge for sure when 70 % of your state is governed by the federal government. But if you look at what's happening on the ground in Utah, there's an enormous amount of public lands being developed for oil and gas, for mineral development, for water rights and water use. So, you know, is the fact that there's a lot of federal land in Utah crippling the Utah economy? You can't make that case, really.

25:18These national parks that began as national monuments, again, just think about it. Zion National Park, Arches, Canyonlands. You know, these national parks are huge economic assets for the state of Utah. Four of the five top national parks in Utah began as national monuments. So it's really, I think, I'd have to say hypocritical for Utah to say, you know, these national monuments and national parks are a big drain on our economy. It just isn't true. We'll keep watching to see when the decision finally comes down. Thanks so much, Pat. That's Professor Pat Parenteau of the Vermont Law and Graduate School.

26:03Support for the show comes from public.com. If you're actively involved in your portfolio, you probably catch yourself repeating the same actions, buying the dip, manually sweeping idle cash, putting on a hedge. On public, you can now create AI agents that handle all these tasks on your behalf. Just describe what you want to do in plain English, like if the VIX hits 25, buy a put option on the S &P 500. Or if my cash balance goes above$20 ,000, move the excess into my direct index. You approve of the workflow and your agent handles the rest. Monitoring the market, watching for your conditions, and executing your strategies exactly as defined.

26:42An investing platform driven by your intent, not just your clicks. You can also get full read and write access to your account via the public API. Go to public.com slash market and fund your account in five minutes or less. That's public.com slash market. Paid for by Public Investing. Brokered services by Open to the Public Investing, Inc., member FINRA and SIPC. Advisory services by Public Advisors, LLC, SEC Registered Advisor. Complete disclosures available at public.com slash disclosures. The Bloomberg Sustainable Business Summit returns to Singapore on July 22nd. Our fifth annual Asia-Pacific Summit will explore how business and finance leaders are shaping the next phase of globalization by strengthening resilience and driving a multi-speed energy transition across Asia's diverse markets.

27:31Join us for solutions-driven discussions and networking opportunities. Thank you to our summit advisor, Bangkok Bank. Learn more at BloombergLive.com slash SBS dash Singapore. Up to 42 million Americans didn't receive their SNAP benefits on the first of the month. But the Trump administration told a federal judge today that it will comply with a court order to fund U.S. food aid benefits for November during the government shutdown, but only at 50 percent of the amount that eligible households normally receive. This follows back-to-back rulings from judges in Boston and Rhode Island, who found that the Trump administration likely violated U.S.

28:15law in suspending SNAP during the government shutdown. Joining me is constitutional law professor Harold Krent of the Chicago-Kent College of Law. How two judges, Judge John McConnell in Rhode Island and Judge Indira Tawwani in Boston, ruled almost at the same time that Trump administration officials likely violated the law when suspending SNAP during the government shutdown. Tell us a little about those opinions. Rulings are relatively similar. They require, first of all, that conditional funds, supplemental funds be used to pay as much of the benefits for the next month as possible. And indeed, Congress set up a contingency fund and funded it two years in a row,$3 billion each year.

29:05So there's$6 billion in contingency funds that are ready to be spent. And the Trump administration have said, we have no legal authority to spend contingency funds because Congress hasn't funded the program for the next fiscal year, which is a non sequitur. And the court said, what are you talking about. That's why Congress created a contingency fund. And so I think that the courts both are on very strong ground in saying that the contingency funds at the minimum have to be expended. Again,$6 billion, not everything for the first month, but three quarters roughly. And so the Trump administration will use the$6 billion to at least pay part of next month's SNAP benefits, which are due.

29:49Judge McConnell also said the government had to determine if it can supplement that limited contingency pool of money with another fund that includes customs receipts. Congress has created a kind of slush fund, if you will, from tariff fees that can be used in emergencies. And the Department of Agriculture has used that sort of slush fund in the past to pay for other food programs, such as the Women's Infant and Children Program or the WIC program. So the Trump administration has agreed to fund the benefits in November, up to the full amount of the SNAP contingency funds. So that's 50 percent of the amount that eligible households normally receive.

30:33Does that comply with the court's orders? They are complying with the judge's order. The Trump administration is complying with the judge's order. The judge made it discretionary as to whether the federal government has to dip into other discretionary pots of money to cover the shortfall in the program. So the only other issue that I can think of is that claimants could say that they have an entitlement under the due process clause to receive the money because the government has committed themselves to paying SNAP benefits. I don't think that entitlement argument would work because it's probably contingent upon there being sufficient money.