WEBVTT - National Monuments at Risk & SNAP Benefits 0:00:02.880 --> 0:00:08.000 This is Bloomberg Law with June Grossel from Bloomberg Radio. 0:00:08.960 --> 0:00:12.719 It's been thirteen months in counting since the Tenth Circuit 0:00:12.760 --> 0:00:17.120 heard oral arguments in a case over the president's executive 0:00:17.160 --> 0:00:22.360 authority to protect or abolish US national monuments. This comes 0:00:22.400 --> 0:00:26.320 as the White House is rolling back public lands protections. 0:00:27.160 --> 0:00:30.920 The Tenth Circuit heard oral arguments in September of twenty 0:00:30.960 --> 0:00:36.080 twenty four in Garfield County versus Biden, a case plaintiffs 0:00:36.120 --> 0:00:39.479 are aiming at the Supreme Court as they challenge the 0:00:39.520 --> 0:00:43.920 president's executive power to block mining, oil and gas drilling, 0:00:44.040 --> 0:00:47.720 and other developments under the Antiquities Act. In May, the 0:00:47.760 --> 0:00:53.040 Trump Justice Department outlined a rationale for abolishing national monuments, 0:00:53.440 --> 0:00:56.600 many of which have been declared by presidents to protect 0:00:56.840 --> 0:01:01.400 large swaths of public land from development. But President Donald 0:01:01.400 --> 0:01:06.759 Trump has been largely hostile to large national monuments. The 0:01:06.920 --> 0:01:10.000 Interior Department, which manages most of the one hundred and 0:01:10.040 --> 0:01:14.600 thirty eight national monuments, has been cutting staff, expanding mining, 0:01:14.800 --> 0:01:18.360 oil drilling, and logging on federal lands, and is also 0:01:18.560 --> 0:01:22.760 reviewing whether it can open national monuments to mining. My 0:01:22.840 --> 0:01:26.560 guest is environmental law expert Pat Parento, a professor at 0:01:26.560 --> 0:01:29.880 the Vermont Law and Graduate School, Pat tell us about 0:01:29.880 --> 0:01:34.160 this case, Garfield County versus Biden, which is before the 0:01:34.200 --> 0:01:35.000 Tenth Circuit. 0:01:35.800 --> 0:01:41.559 So this is a challenge to President Biden's reinitiation of 0:01:41.880 --> 0:01:46.679 a National monument designation for Bears Ears in Utah, Southern Utah. 0:01:47.080 --> 0:01:50.640 It's over a million acres. It's one of the richest 0:01:51.280 --> 0:01:57.800 archaeological and Native American cultural artifact pieces of property in 0:01:57.840 --> 0:02:01.560 the entire United States. Are like five vibes who claimed 0:02:01.680 --> 0:02:06.520 various you know, heritage and interests in this area. And 0:02:06.840 --> 0:02:09.440 you know, it's another one of these designations under the 0:02:09.480 --> 0:02:14.480 Antiquities Act, the nineteen six law. There have been one 0:02:14.560 --> 0:02:19.160 hundred and fifty different designations by you know, Republican and 0:02:19.280 --> 0:02:21.440 Democratic presidents over the years. 0:02:21.960 --> 0:02:23.160 So this one is. 0:02:23.120 --> 0:02:27.000 A challenge from the state of Utah challenging the Bears 0:02:27.000 --> 0:02:32.760 Ears Monument. There's another related challenge to a monument in Colorado, 0:02:33.480 --> 0:02:38.399 the Grand staircase Escalante National Monuments. So both of these 0:02:38.480 --> 0:02:40.720 cases are working their way through the. 0:02:40.639 --> 0:02:45.800 Courts, and the lower court ruled that the Antiquities Act 0:02:45.880 --> 0:02:51.079 doesn't allow judicial review for monument designations. 0:02:51.120 --> 0:02:51.560 Correct. 0:02:51.919 --> 0:02:58.920 Basically, the lower court judge Utah Federal judge ruled that 0:03:00.160 --> 0:03:04.400 the Antiquities Act is a delegation of authority to the 0:03:04.440 --> 0:03:11.160 president that gives him complete discretion and leaves no role 0:03:11.320 --> 0:03:15.320 for the courts to review actions that the president takes 0:03:15.520 --> 0:03:20.200 under the Antiquities Act. And as we may talk, that 0:03:20.400 --> 0:03:23.200 was the focus of the argument in the Tenth Circuit 0:03:23.240 --> 0:03:25.519 Court of Appeals in September. 0:03:26.040 --> 0:03:30.160 So are there other acts where it's been determined that 0:03:31.000 --> 0:03:34.320 there can be no court review of what a president 0:03:34.560 --> 0:03:36.280 or an agency does. 0:03:37.000 --> 0:03:41.720 No. This is a doctrine in administrative law known as 0:03:41.840 --> 0:03:46.040 committed to agency discretion or in this case, committed to 0:03:46.120 --> 0:03:51.640 the president's discretion. And the Overton Park case is is 0:03:51.720 --> 0:03:55.520 the seminal case on this doctrine, and it basically says 0:03:55.560 --> 0:03:59.920 there's a presumption that you can review actions that federal 0:04:00.160 --> 0:04:04.400 agencies take, except where there's quote no law to apply. 0:04:05.520 --> 0:04:08.760 So that's one of the questions here is does the 0:04:08.800 --> 0:04:14.480 Antiquities Act give the courts standards that they can use 0:04:14.960 --> 0:04:19.640 to judge whether or not a president has exceeded his authority. 0:04:19.760 --> 0:04:23.320 That's the claim that Utah is making that Biden had 0:04:23.360 --> 0:04:28.840 no authority to designate something this large under the Antiquities Act, 0:04:29.400 --> 0:04:32.640 And from what I've read about the oral argument in 0:04:32.680 --> 0:04:36.679 the Tenth Circuit, it seems to me that the Court 0:04:36.800 --> 0:04:41.839 is likely to rule that there's at least some limited 0:04:41.880 --> 0:04:47.880 ability of courts to review presidential declarations like this, designations 0:04:48.000 --> 0:04:51.360 like this. Exactly how the Court's going to come down 0:04:51.400 --> 0:04:54.679 on that, and what it says to the lower court 0:04:54.720 --> 0:04:58.080 if it sends this case back to the lower court, 0:04:58.120 --> 0:05:01.159 what kind of guidance it gives the lower courts? 0:05:01.240 --> 0:05:04.200 That I think is sort of where we are right now. 0:05:04.960 --> 0:05:09.919 So, the Trump Justice Department in May declared that presidential 0:05:09.920 --> 0:05:12.960 authority to create or abolish monuments is one of the 0:05:13.000 --> 0:05:18.120 White House's most sweeping unilateral powers, and that a US 0:05:18.279 --> 0:05:22.520 president has the power to create and undo national monuments 0:05:22.600 --> 0:05:26.359 under the Antiquities Act. So that is a reversal of 0:05:26.400 --> 0:05:29.160 a nineteen thirty eight Justice Department opinion. 0:05:29.880 --> 0:05:30.760 Yes, that's true. 0:05:31.000 --> 0:05:34.799 There was an Attorney General opinion from nineteen thirty eight 0:05:35.400 --> 0:05:40.200 which basically said that, you know, presidents have the authority 0:05:40.279 --> 0:05:45.919 to designate national monuments and very very broad authority to 0:05:46.000 --> 0:05:51.440 do so without any real significant limitations on the president's authority. 0:05:52.040 --> 0:05:56.760 And also this opinion said once a monument has been designated, 0:05:57.160 --> 0:06:01.720 it's up to Congress to decide whether to rescind the 0:06:01.800 --> 0:06:06.480 designation or reduce it or do something with it. But 0:06:06.800 --> 0:06:12.000 you know, the Act doesn't explicitly say that subsequent presidents 0:06:12.760 --> 0:06:16.039 like Trump in this case, have the authority to either 0:06:16.160 --> 0:06:23.000 rescind altogether a designation, which this latest Justice Department opinion 0:06:23.040 --> 0:06:27.080 is saying he does have that authority, or substantially reduce it. 0:06:27.120 --> 0:06:32.400 I mean, over the years, presidents have and Congress has 0:06:33.040 --> 0:06:38.120 reduced to some extent designations, but only in a very 0:06:38.360 --> 0:06:41.680 minor way, you know, a few thousand acres, not millions 0:06:41.680 --> 0:06:45.200 of acres. Right, So we are in a grade zone. 0:06:45.800 --> 0:06:51.480 Sounds familiar, right, where Yeah, always the statute is far 0:06:51.520 --> 0:06:57.000 from crystal clear on both whether subsequent presidents can completely 0:06:57.040 --> 0:07:01.080 rescind a designation or cut it back substantially the way 0:07:01.120 --> 0:07:04.880 Trump did in these two monument cases we're talking about. 0:07:05.200 --> 0:07:09.560 In his first term, he reduced the Grand Staircase monument 0:07:09.640 --> 0:07:13.800 by eighty five percent, and he reduced the Bear's Ears. 0:07:13.520 --> 0:07:16.560 By forty five percent. So you know, we're in. 0:07:16.480 --> 0:07:19.160 This area where the courts really are going to struggle 0:07:20.320 --> 0:07:24.160 with coming up with a rule that says what exactly 0:07:24.200 --> 0:07:29.920 can subsequent presidents do about prior designations, and how much 0:07:29.960 --> 0:07:33.360 of that authority is really left to Congress. I mean, 0:07:33.400 --> 0:07:38.280 these are public lands, after all, they're subject to Congress's 0:07:38.840 --> 0:07:43.160 property authority under the property clause of the Constitution. So 0:07:43.200 --> 0:07:46.360 there's a separation of powers argument in all of this, 0:07:46.520 --> 0:07:49.720 which is, you know, once a designation has been made, 0:07:49.840 --> 0:07:53.480 maybe the best argument is it's really up to Congress 0:07:53.480 --> 0:07:56.440 to decide what to do about that, if it wants 0:07:56.480 --> 0:07:59.600 to do something about that. And instead of having this 0:07:59.680 --> 0:08:03.920 flip flop between presidents, it's in, it's out, some of 0:08:03.960 --> 0:08:05.200 it's in, some of it's out. 0:08:05.320 --> 0:08:07.600 I mean, that's really chaotic. 0:08:07.800 --> 0:08:11.080 Right, So, if this case gets to the Supreme Court 0:08:11.120 --> 0:08:14.160 and in, it might maybe not right now because the 0:08:14.200 --> 0:08:17.040 current posture of the cases is on this question of 0:08:17.120 --> 0:08:17.920 do the courts. 0:08:17.680 --> 0:08:19.760 Have any authority at all to review it? 0:08:20.040 --> 0:08:23.560 But assuming the case does get to the Supreme Court, 0:08:23.880 --> 0:08:26.400 I would predict that separation of powers will be a 0:08:26.480 --> 0:08:28.600 central focus for the court. 0:08:28.960 --> 0:08:33.360 In fact, Chief Justice John Roberts in twenty twenty one, 0:08:33.440 --> 0:08:39.440 in a case called Massachusetts Lobsterman's Association versus Ramundo, sort 0:08:39.440 --> 0:08:43.040 of issued an invite to challenge the scope of presidential 0:08:43.120 --> 0:08:45.760 power under the Antiquities Act. He said, its use has 0:08:45.800 --> 0:08:50.240 been transformed into a power without any discernible limit to 0:08:50.280 --> 0:08:53.760 set aside vast and amorphous expanses of terrain. 0:08:54.880 --> 0:08:58.200 Yeah, that's got a lot of people worry. It was 0:08:58.280 --> 0:09:01.120 what we call dictum, right, And in fact, in that 0:09:01.200 --> 0:09:04.960 Lobsterman case, the court denied review and said we're not 0:09:05.000 --> 0:09:09.600 going to review President Obama's designation of two monuments off 0:09:09.679 --> 0:09:16.319 the Eastern United States Seamounts and Canyons Monument. So it 0:09:16.400 --> 0:09:18.360 was dictum. It was not part of the holding. It 0:09:18.400 --> 0:09:22.280 wasn't the ruling at all. But every time a justice 0:09:22.280 --> 0:09:26.360 says something raises a question, that gets a lot of 0:09:26.400 --> 0:09:31.160 people thinking, Okay, well, perhaps Chief Justice Roberts is concerned 0:09:31.360 --> 0:09:36.240 about this expansive authority that the president is issuing. But 0:09:36.440 --> 0:09:40.040 on the other hand, what we're seeing from this particular 0:09:40.160 --> 0:09:45.360 Supreme Court, if anything, is allowing the president to assert 0:09:45.480 --> 0:09:50.760 all kinds of executive authority under this unitary executive doctrine. 0:09:50.880 --> 0:09:51.080 Right. 0:09:51.520 --> 0:09:54.199 So this is going to be an interesting issue if 0:09:54.200 --> 0:09:57.000 and when it does get to the Supreme Court. You know, 0:09:57.080 --> 0:10:00.680 will Chief Justice Roberts believe that the enti equities act 0:10:00.800 --> 0:10:01.920 is is too. 0:10:01.760 --> 0:10:05.400 Broad a delegation in some respect. We don't know. 0:10:05.720 --> 0:10:09.120 It's too early to say, but he certainly has flagged 0:10:09.120 --> 0:10:14.080 the issue, and Utah is relying very heavily on that 0:10:14.200 --> 0:10:16.120 statement from Chief Justice Roberts. 0:10:16.920 --> 0:10:20.320 But in March of last year, the Supreme Court had 0:10:20.360 --> 0:10:24.880 a chance to diminish the president's power to establish new 0:10:25.000 --> 0:10:28.120 national monuments right in a pair of cases, but they 0:10:28.120 --> 0:10:28.760 didn't take it. 0:10:29.280 --> 0:10:29.840 That's right. 0:10:30.160 --> 0:10:33.840 That case is kind of unusual because it dealt with 0:10:34.240 --> 0:10:38.520 another federal statute in Oregon. And if we can recall, 0:10:38.640 --> 0:10:42.280 when the railroads were being built across the western United States, 0:10:42.320 --> 0:10:46.160 the Congress said to you know, Union Pacific and other railroads, 0:10:46.200 --> 0:10:49.600 if you build these these lines that we need, we're 0:10:49.640 --> 0:10:52.280 going to give you every other section of public land 0:10:52.440 --> 0:10:56.280 as an inducement to make the capital investment in these 0:10:56.360 --> 0:10:57.000 rail lines. 0:10:57.080 --> 0:10:58.800 Right. So there was a. 0:10:58.720 --> 0:11:03.600 Statute in that actually said some of the lands that 0:11:03.640 --> 0:11:09.560 were designated in the monument were actually authorized by Congress 0:11:09.600 --> 0:11:13.839 to be logged timbered for timber companies. And it was 0:11:13.880 --> 0:11:16.560 the timber companies who were arguing to the Supreme Court 0:11:16.760 --> 0:11:20.840 the President is exceeding his authority to designate these lands 0:11:20.880 --> 0:11:23.040 as a monument when Congress has. 0:11:22.960 --> 0:11:25.000 Already said they should be logged. Right. 0:11:25.480 --> 0:11:29.439 So the Court did not take that case. And certainly, 0:11:29.520 --> 0:11:33.480 if Justice Roberts was keen on taking a case to 0:11:33.600 --> 0:11:37.720 review the authority under the Antiquities Act, that might have 0:11:37.840 --> 0:11:40.680 been a case to do that. It wasn't a clear 0:11:41.400 --> 0:11:44.199 issue for the Antiquities Act though, because of the fact 0:11:44.240 --> 0:11:47.520 that this other statute was involved, and it might have 0:11:47.640 --> 0:11:50.640 been more a question of is there really a conflict 0:11:51.120 --> 0:11:55.839 between the Antiquities Act and this other statute or not. Ultimately, 0:11:55.880 --> 0:11:59.880 the Court declined to review it, and Roberts didn't file 0:12:00.280 --> 0:12:03.760 any kind of dissent or opinion saying we should have 0:12:04.280 --> 0:12:09.360 taken it. Both Gorsich and Kavanaugh did say that we 0:12:09.480 --> 0:12:12.760 think the Court should take this case, but probably because 0:12:12.800 --> 0:12:17.160 of this potential conflict between these statutes, not so much 0:12:17.520 --> 0:12:21.360 the pure question of does the Antiquities Act give the 0:12:21.400 --> 0:12:26.360 President broad authority to set aside literally millions of acres 0:12:26.760 --> 0:12:29.840 of public land. That remains to be seen whether that 0:12:29.960 --> 0:12:31.760 issue gets to the Supreme Court. 0:12:32.120 --> 0:12:34.560 Coming up next on the Bloomberg Law Show, I'll continue 0:12:34.559 --> 0:12:38.360 this conversation with Professor Pat Parento of the Vermont Law 0:12:38.440 --> 0:12:42.880 and Graduate School so what's taking the Tenth Circuit so long? 0:12:43.400 --> 0:12:49.040 I'm June Grosso and you're listening to Bloomberg. The Antiquities 0:12:49.080 --> 0:12:52.280 Act is a law passed in nineteen oh six that 0:12:52.440 --> 0:12:57.400 authorizes the president to proclaim national monuments on federal lands 0:12:57.679 --> 0:13:03.040 to protect significant natural history or scientific features. Presidents have 0:13:03.200 --> 0:13:05.840 used the Act more than one hundred times to create 0:13:05.960 --> 0:13:10.000 national monuments, from the Grand Canyon to the Statue of Liberty. 0:13:10.280 --> 0:13:13.240 A case before the Tenth Circuit Court of Appeals is 0:13:13.440 --> 0:13:18.960 challenging the president's executive authority to protect or abolish national 0:13:19.040 --> 0:13:22.480 monuments under the Antiquities Act. The State of Utah is 0:13:22.640 --> 0:13:27.960 challenging the legal basis for Utah's Grand Staircase, Escalante and 0:13:28.040 --> 0:13:32.440 Bare Ears, national monuments created by former Presidents Bill Clinton 0:13:32.559 --> 0:13:36.560 and Barack Obama under the Antiquities Act. President Trump shrank 0:13:36.679 --> 0:13:41.160 both monuments in twenty seventeen, and then former President Joe 0:13:41.200 --> 0:13:45.760 Biden expanded them to roughly their original boundaries. I've been 0:13:45.760 --> 0:13:49.360 talking to environmental law professor Pat Parento of the Vermont 0:13:49.440 --> 0:13:53.520 Law and Graduate School, So Pat. The Tenth Circuit heard 0:13:53.679 --> 0:13:57.560 oral arguments in this case last year. In September twenty 0:13:57.600 --> 0:14:00.840 twenty four, They apparently have the lowest number of pending 0:14:00.880 --> 0:14:03.960 cases of all the US appeals courts and claims on 0:14:04.000 --> 0:14:07.440 the website, it has one of the fastest turnaround times 0:14:07.440 --> 0:14:10.840 of any federal circuit court. But in this case, it's 0:14:10.840 --> 0:14:15.120 been thirteen months and still no opinion. Is that unheard of? 0:14:15.840 --> 0:14:19.200 Not unheard of, but very unusual for the Tenth Circuit. Yeah, 0:14:19.480 --> 0:14:23.200 it's one of the more efficient courts. It's Justice Gorsuch's 0:14:23.280 --> 0:14:26.280 former court where he was many years on the Tenth Circuit. 0:14:26.920 --> 0:14:30.600 So yeah, there's a lot of speculation about why is 0:14:30.640 --> 0:14:33.320 the court taking so long? As they say this was 0:14:33.320 --> 0:14:37.160 a procedural question, I mean, an important one, but still 0:14:37.480 --> 0:14:39.920 a technical question of you know, do the court have 0:14:39.960 --> 0:14:44.119 any authority at all to review designations of national monuments? 0:14:44.840 --> 0:14:48.280 And so some speculation is, well, there's probably a descent. 0:14:48.520 --> 0:14:51.520 It's a three judge panel, I forget exactly the makeup 0:14:51.880 --> 0:14:53.040 of who the appointees are. 0:14:53.040 --> 0:14:55.600 I think there may be a Trump appointee on the panel. 0:14:56.160 --> 0:14:59.400 And so one theory is, well, there's probably a descent, 0:14:59.480 --> 0:15:03.960 that always a longer period of time. Another is that 0:15:04.000 --> 0:15:07.360 the court is wrestling with should it just reman the 0:15:07.400 --> 0:15:11.240 case to the district Court with some instructions that yeah, 0:15:11.320 --> 0:15:14.080 you have a role to play, but it's limited in 0:15:14.120 --> 0:15:18.040 some way. Or is the court thinking, you know what, 0:15:18.120 --> 0:15:21.560 maybe we should tackle the real question, the substantive question 0:15:21.640 --> 0:15:23.160 of what authority. 0:15:22.640 --> 0:15:24.240 The president has. 0:15:24.840 --> 0:15:27.960 It was clear from the oral argument that the court 0:15:28.280 --> 0:15:32.560 that panel understands everybody in Utah in particular, wants this 0:15:32.680 --> 0:15:35.960 case to go to the Supreme Court. They're counting, you know, again, 0:15:36.000 --> 0:15:40.000 on what Justice Roberts has said as maybe an indication 0:15:40.080 --> 0:15:43.280 they could win in the Supreme Court on the limitation 0:15:43.440 --> 0:15:46.440 on the president's authority. So, I don't know, it's too 0:15:46.480 --> 0:15:49.400 hard to predict what's taking them this long. 0:15:50.200 --> 0:15:52.080 I would guess that we're probably. 0:15:51.680 --> 0:15:54.960 Going to see a decision certainly this year, in the 0:15:55.000 --> 0:15:58.320 next month or so. Oh yeah, you'd like to think 0:15:58.360 --> 0:16:01.520 so maybe a Christmas president of it might be a 0:16:01.640 --> 0:16:03.800 lump of coal and somebody's stocking. 0:16:04.600 --> 0:16:09.480 The Justice Department outlined a rationale for abolishing national monuments. 0:16:09.560 --> 0:16:11.360 I mean, is there any doubt that Trump is going 0:16:11.400 --> 0:16:14.840 to try to maybe not abolish, but certainly cut back 0:16:14.880 --> 0:16:17.600 on monuments, And I mean he wants to use the 0:16:17.680 --> 0:16:21.000 land for what oil and gas drilling or something. 0:16:21.440 --> 0:16:23.720 Yeah, there's not a whole lot of oil and gas 0:16:23.720 --> 0:16:27.560 in bears Ears, there is uranium, and he has made 0:16:27.640 --> 0:16:31.440 us you know, resuscitating the nuclear industry as one of 0:16:31.480 --> 0:16:34.000 his goals, and other minerals. You know, if once you 0:16:34.080 --> 0:16:36.440 get in there and start poking around, you could probably 0:16:36.480 --> 0:16:39.400 find other copper or other minerals. 0:16:39.000 --> 0:16:40.440 Right that have some value. 0:16:40.720 --> 0:16:45.080 So, yeah, Trump is not going to live with you know, 0:16:45.320 --> 0:16:49.240 huge set asides of millions of acres of land that 0:16:49.360 --> 0:16:53.120 has mineral value in it, that's for sure. So at 0:16:53.160 --> 0:16:56.400 a minimum, he's going to look at these designations and 0:16:56.560 --> 0:16:59.920 ask his friends in the industry, and of course Republican 0:17:00.640 --> 0:17:04.280 governor of Utah, what do you want in these areas 0:17:04.720 --> 0:17:07.200 and we will make sure that we don't set those aside. 0:17:07.240 --> 0:17:11.399 That's probably what we could expect from this administration. Not 0:17:11.560 --> 0:17:16.199 an outright repeal, although you know maybe I wouldn't think so. 0:17:16.320 --> 0:17:19.000 I would think it would be more of carve. 0:17:18.760 --> 0:17:22.200 Them down, way way down, and make sure that you've 0:17:22.240 --> 0:17:28.160 excluded any mineral areas of the designations from being set aside. 0:17:28.359 --> 0:17:30.600 I mean, what do you think about the Antiquities Act? 0:17:30.640 --> 0:17:32.600 Does it give too much power to presidents? 0:17:33.320 --> 0:17:35.960 Gives a lot of power for sure, you know, when 0:17:35.960 --> 0:17:39.719 you think about it, some of the iconic national parks 0:17:39.760 --> 0:17:42.960 in the United States. Grand Canyon was one of the 0:17:43.000 --> 0:17:46.840 first areas to be designated a monument. There were plans 0:17:46.960 --> 0:17:49.920 to build mines in the Grand Canyon at one point, 0:17:49.920 --> 0:17:56.119 even a dam in the Grand Canyon. Zion, Teton Acadia. 0:17:56.520 --> 0:17:59.679 You know, these are some of the most popular national 0:17:59.720 --> 0:18:03.600 park in the country. They all began as national monuments. 0:18:03.840 --> 0:18:08.520 So and again it's presidents of both political parties. Eisenhower 0:18:08.560 --> 0:18:09.760 did it, George W. 0:18:09.880 --> 0:18:12.520 Bush did it. Even Herbert Hoover did it. 0:18:12.680 --> 0:18:17.600 Right, So a lot of our public lands heritage is 0:18:17.680 --> 0:18:22.240 attributable to the Antiquities Act. It's been incredibly important for 0:18:22.359 --> 0:18:24.160 preserving our natural heritage. 0:18:24.320 --> 0:18:25.000 So there's that. 0:18:25.520 --> 0:18:28.320 But then there's also the question of it's a very 0:18:28.359 --> 0:18:32.280 short statute. I mean, it's like three sentences and there's 0:18:32.320 --> 0:18:35.160 not a lot of you know, guidance I guess on 0:18:35.800 --> 0:18:39.159 either what should be designated. You know, it refers to 0:18:39.280 --> 0:18:42.760 things like objects of historic or scientific interest. 0:18:42.840 --> 0:18:44.719 Well, that's pretty darn broad. 0:18:45.080 --> 0:18:49.240 It also says that the designations quote shall be confined 0:18:49.560 --> 0:18:54.160 to the smallest area compatible with proper care and management 0:18:54.200 --> 0:18:57.119 of the objects to be protected. That's some of the 0:18:57.240 --> 0:19:02.520 language that Utaw and others that oppose broad authority under 0:19:02.520 --> 0:19:05.800 the Antiquities Actor citing to the courts and saying, look, 0:19:05.840 --> 0:19:09.119 look here, you know, you don't get a million acre 0:19:09.720 --> 0:19:14.520 designation when you're trying to protect the smallest area of 0:19:14.640 --> 0:19:19.560 specific objects and so forth. So lots of room I 0:19:19.640 --> 0:19:23.879 think to argue about should this statute be updated and 0:19:24.000 --> 0:19:29.640 refined in certain ways? Again, Congress is perfectly capable of 0:19:30.040 --> 0:19:32.760 doing whatever they want with public lands, and there would 0:19:32.800 --> 0:19:36.560 be no ability of the courts to do anything else. 0:19:36.680 --> 0:19:40.920 You know, Congress's power over public land is plenary. It's 0:19:41.040 --> 0:19:44.080 unreviewable by the courts. The Supreme Court has said that 0:19:44.200 --> 0:19:47.919 in Missouri versus Holland. So in lots of ways you 0:19:47.960 --> 0:19:52.040 can argue what's good public policy with these lands? Should 0:19:52.040 --> 0:19:55.280 there be a little bit more guidance from Congress, which 0:19:55.320 --> 0:20:00.840 is the body that's responsible for stewardship of these lands. Ultimately, yeah, 0:20:00.880 --> 0:20:04.200 there's good arguments, I'm sure both ways. But one thing 0:20:04.240 --> 0:20:08.720 that's really clear is without the Antiquities Act, a lot 0:20:08.760 --> 0:20:12.359 of really precious areas of the United States would have 0:20:12.400 --> 0:20:13.720 been lost before now. 0:20:14.800 --> 0:20:17.159 And pat when I was researching this case, I found 0:20:17.200 --> 0:20:21.040 something interesting a little off topic, but in the case 0:20:21.240 --> 0:20:25.280 Utah versus United States, the State of Utah asserts that 0:20:25.320 --> 0:20:29.560 the federal government, which owns nearly seventy percent of Utah, 0:20:29.920 --> 0:20:33.439 lacks constitutional authority to retain much of that land. But 0:20:33.480 --> 0:20:37.520 the Supreme Court denied a motion for leave to file 0:20:37.560 --> 0:20:41.480 a bill of complaint under the court's original jurisdiction. Seventy 0:20:41.560 --> 0:20:44.320 percent of Utah by the federal government. 0:20:44.560 --> 0:20:48.119 Yeah right, I mean, it's like, give us your money 0:20:48.280 --> 0:20:51.159 and stay out of the way. Give us these lands 0:20:51.160 --> 0:20:54.360 to use as we like, and don't put any restrictions 0:20:54.359 --> 0:20:57.440 on them. You know, it's a challenge for sure when 0:20:57.480 --> 0:21:01.960 seventy percent of your state is governed by the federal government. 0:21:02.480 --> 0:21:04.800 But if you look at what's happening on the ground 0:21:05.440 --> 0:21:08.760 in Utah, there's an enormous amount of public lands being 0:21:08.800 --> 0:21:12.840 developed for oil and gas, for mineral development, for water 0:21:13.359 --> 0:21:18.320 rights and water use. So, you know, is the fact 0:21:18.400 --> 0:21:21.560 that there's a lot of federal land in Utah crippling 0:21:21.600 --> 0:21:25.520 the Utah economy. You can't make that case. Really, these 0:21:25.640 --> 0:21:29.440 national parks that began as national monuments again, just think 0:21:29.520 --> 0:21:35.280 about it, Zion National Park, Arches, canyon lands, you know, 0:21:35.800 --> 0:21:39.879 these national parks are huge economic. 0:21:39.359 --> 0:21:41.600 Assets for the state of Utah. 0:21:42.000 --> 0:21:46.320 Four of the five top national parks in Utah began 0:21:46.440 --> 0:21:50.199 as national monuments. So it's really I think I'd have 0:21:50.280 --> 0:21:53.880 to say hypocritical for Utah to say, you know, these 0:21:53.960 --> 0:21:57.399 national monuments and national parks are a big drain on 0:21:57.480 --> 0:21:58.240 our economy. 0:21:58.280 --> 0:21:59.520 It just isn't true. 0:22:00.000 --> 0:22:04.200 We'll keep watching to see when the decision finally comes down. 0:22:04.760 --> 0:22:08.080 Thanks so much, Pat. That's professor Pat Parento of the 0:22:08.160 --> 0:22:12.520 Vermont Law and Graduate School. Up to forty two million 0:22:12.560 --> 0:22:16.359 Americans didn't receive their SNAP benefits on the first of 0:22:16.400 --> 0:22:20.240 the month, but the Trump administration told a federal judge 0:22:20.280 --> 0:22:23.240 today that it will comply with a court order to 0:22:23.359 --> 0:22:27.760 fund US food aid benefits for November during the government shutdown, 0:22:28.160 --> 0:22:31.280 but only at fifty percent of the amount that eligible 0:22:31.320 --> 0:22:35.840 households normally receive. This follows back to back rulings from 0:22:35.960 --> 0:22:39.040 judges in Boston and Rhode Island who found that the 0:22:39.080 --> 0:22:44.920 Trump administration likely violated US law in suspending SNAP during 0:22:44.960 --> 0:22:49.480 the government shutdown. Joining me is constitutional law professor Harold 0:22:49.560 --> 0:22:54.120 Krant of the Chicago Kent College of Law, how to judges. 0:22:54.359 --> 0:22:58.840 Judge John McConnell in Rhode Island and Judge Indira Talwani 0:22:58.920 --> 0:23:03.000 in Boston, almost at the same time that Trump administration 0:23:03.119 --> 0:23:08.439 officials likely violated the law when suspending SNAP during the 0:23:08.480 --> 0:23:12.399 government shutdown. Tell us a little about those opinions. 0:23:13.040 --> 0:23:17.520 Rulings are relatively similar. They require, first of all, that 0:23:17.680 --> 0:23:22.720 conditional funds supplemental funds be used to pay as much 0:23:22.800 --> 0:23:26.919 of the benefits for the next month as possible. And indeed, 0:23:27.000 --> 0:23:30.679 Congress set up a contingency fund and funded it two 0:23:30.760 --> 0:23:33.480 years in a row, three billion dollars each year. So 0:23:33.520 --> 0:23:37.240 there's six billion dollars in contingency funds that are ready 0:23:37.240 --> 0:23:40.520 to be spent. And the Trump administration have said, we 0:23:40.600 --> 0:23:44.600 have no legal authority to spend contingency funds because Congress 0:23:44.640 --> 0:23:48.320 hasn't funded the program for the next fiscal year, which 0:23:48.359 --> 0:23:51.439 is a non secutor. And the court said, what are 0:23:51.440 --> 0:23:55.040 you talking about. That's why Congress created a contingency fund. 0:23:55.320 --> 0:23:57.439 And so I think that the courts both are on 0:23:57.680 --> 0:24:01.240 very strong ground and saying that contingency funds at the 0:24:01.280 --> 0:24:04.919 minimum have to be expended against six billion dollars, not 0:24:05.040 --> 0:24:08.520 everything for the first month, but three quarters roughly. And 0:24:08.600 --> 0:24:11.680 so the Trump administration will use the six billion dollars 0:24:11.720 --> 0:24:15.520 to at least pay part of next month's SNAP benefits, 0:24:15.720 --> 0:24:16.640 which are due. 0:24:17.560 --> 0:24:20.960 Judge McConnell also said that government had to determine if 0:24:20.960 --> 0:24:26.000 it can supplement that limited contingency pool of money with 0:24:26.119 --> 0:24:28.720 another fund that includes customs receipts. 0:24:29.680 --> 0:24:33.200 Congress has created a kind of slush fund, if you will, 0:24:33.400 --> 0:24:37.560 from tri fees that can be used in emergencies, and 0:24:37.640 --> 0:24:40.240 the Department of Agriculture has used that sort of slush 0:24:40.240 --> 0:24:43.440 fund in the past to pay for other food programs, 0:24:43.480 --> 0:24:46.399 such as the Women's Infant and Children Program or the 0:24:46.440 --> 0:24:47.360 Whig program. 0:24:47.800 --> 0:24:51.240 So the Trump administration has agreed to fund the benefits 0:24:51.240 --> 0:24:54.199 in November up to the full amount of the SNAP 0:24:54.359 --> 0:24:58.119 contingency funds. So that's fifty percent of the amount that 0:24:58.240 --> 0:25:03.360 eligible households normally receive. Does that comply with the court's orders? 0:25:03.960 --> 0:25:06.200 They are complying with the judges order. That the Trump 0:25:06.240 --> 0:25:10.640 administration is complying with the judge's order. The judgment discretionary 0:25:10.760 --> 0:25:13.600 as to whether the federal government has to dip into 0:25:13.800 --> 0:25:16.919 other discretionary pots of money to cover the shortfall in 0:25:16.960 --> 0:25:19.879 the program. So the real only other issue that I 0:25:19.880 --> 0:25:22.440 can think of is that claimants could say that they 0:25:22.440 --> 0:25:26.040 have an entitlement under the due process clause to receive 0:25:26.040 --> 0:25:30.680 the money because the government has committed themselves to paying 0:25:30.680 --> 0:25:31.480 SNAP benefits. 0:25:31.720 --> 0:25:32.760