No, Patagonia, President Trump Is Not ‘Stealing Our Land’

On Monday, after President Trump announced he was reducing the size of the Bears Ears and Grand Staircase-Escalante national monuments in Utah, outdoors retailer Patagonia replaced the splash page of its website with the message: “The President Stole Your Land.”

Patagonia has since announced that it will sue the White House over the decision. Can Patagonia pursue such a lawsuit, and if so, what would it claim and how would Trump defend himself?

At the outset, the administration might challenge Patagonia’s standing to file a lawsuit over the re-designation of these monuments. Under our Constitution, the jurisdiction of federal courts is limited. At a minimum, a plaintiff must show: (1) an injury in fact; (2) traceable to the defendant’s conduct; and (3) a likelihood that a favorable decision will redress the plaintiff’s injury.

In this case, the injury is the most debatable. Patagonia can allege a direct injury and attempt to demonstrate that Trump’s decision has cost them business. Alternatively, Patagonia can try to allege third-party standing on behalf of customers (though this type of standing usually applies where a sales transaction is otherwise alleged to be illegal).

Unlike other environmental lawsuits, however, Patagonia’s assertion of standing arguably rests on whether the marginal disincentive of people to buy its wares caused by Trump’s decision is so minimal as to not constitute a concrete injury in fact, where the monument remains in a smaller form. Federal courts have wrestled with somewhat similar standing problems in other contexts.

Here’s Where They Argue If They Get In the Door

Let’s presume Patagonia finds a federal judge willing to say it has the standing to sue. Quite apart from the likelihood that Patagonia’s counsel would research to look for a friendly venue, the standing doctrine is sufficiently murky that the company may get past the courthouse door (and environmental groups asserting the interests of their members likely will).

Patagonia would likely try to bring to sue Trump for violating the Antiquities Act of 1906. The retailer might add constitutional claims that the president is violating the separation of powers or his duty to take care that the laws be faithfully executed, but these claims are largely contingent on the claim to be made under the act.

Let’s briefly examine how the act works. The Constitution’s property clause (Art. IV, sec. 3, cl. 2) provides in part that “Congress shall have the power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States.”

In the act, Congress provided that “[t]he President may, in the President’s discretion, declare by public proclamation historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest that are situated on land owned or controlled by the Federal Government to be national monuments.” Moreover, “[T]he President may reserve parcels of land as a part of the national monuments. The limits of the parcels shall be confined to the smallest area compatible with the proper care and management of the objects to be protected.”

Patagonia (or others) will argue that the authority Congress delegated to the president is narrow. Under this view, the power to “declare” or “reserve” does not extend to the reduction or revocation of a declaration or reservation proclaimed by a prior president. They will argue this interpretation is consistent with the congressional intent of allowing the president to protect lands swiftly in cases where Congress may be slow to act.

The Left and Right Switch Their Usual Sides

The administration would likely respond by arguing for a broad interpretation of the president’s discretion under the act, including the implied authority to reduce or revoke the declaration of a monument or reservation of land. The analogy would be to congressional delegations of legislative authority to the president or his executive agencies to make regulations, including the implied authority to amend and even repeal regulations a prior administration promulgated.

The administration could argue as an alternative fallback position that the president has the authority to reduce a monument declaration or reservation when such was not confined to the smallest area compatible with the proper care and management of the objects to be protected. This is a less desirable position, as it would put courts in the business of second-guessing presidential discretion in such matters. Moreover, in 1920, the Supreme Court held that the president had the power to protect the Grand Canyon, which is a large object indeed.

The posture of such a case may seem ironic to political observers. It is typically the Left arguing for broad delegations of power and the Right arguing for positions that restrain those delegations. Courts, however, are not guided by notions of irony. Courts would prefer to be guided by precedent, but there are no prior judicial decisions addressing the scope of the president’s authority under the act.

Expect Court Hijinks Thanks to Anti-Trump Sentiment

As a matter of legal history, the attorney general issued an opinion in 1938 that President Franklin Roosevelt lacked the authority to revoke a monument designation. That opinion, however, has never been relied upon by a court and it arguably misread a prior 1862 opinion regarding the abandonment of a military reservation.

As a matter of practical history, Presidents Taft, Wilson, Coolidge, Truman, Eisenhower, and Kennedy have all adjusted the boundaries of national monuments. In some of these cases, significant acreage was at issue. But these adjustments were never challenged in court.

In short, assuming Patagonia or some other plaintiff can show standing to sue, a court considering Trump’s power to reduce the sizes of the Bears Ears and Grand Staircase-Escalante monuments will be in largely uncharted waters. In the Trump era, based on how lower courts have mishandled challenges to his so-called travel ban, this may be an invitation to judicial mischief.

Whichever way a court—likely the Supreme Court—might rule on the issue, Patagonia is wrong to accuse Trump of stealing Americans’ land. This is a fight over whether and how the public gets to use or profit from public lands. Patagonia would like to profit from its customers’ use of those lands, while Trump thinks Patagonia can make do with smaller monuments, freeing up some land for use and profit by other citizens. That’s called land management, not theft.

Read more at The Federalist