Tenth Circuit: Ultra Vires Exception Allows Judicial Review of Antiquities Act Monument Proclamations Where Statute Imposes Discernible Limits

1. Introduction

This appeal arises from President Biden’s 2021 proclamations expanding two Utah national monuments—Grand Staircase-Escalante and Bears Ears—under the Antiquities Act, 54 U.S.C. § 320301. The expansions increased monument reservations to roughly 3.23 million acres total and identified over 500 “objects” for protection, ranging from archeological sites and petroglyphs to natural features and wildlife.

The plaintiffs included the State of Utah and counties (the “Utah Plaintiffs”), along with individual recreation users and an advocacy organization (BlueRibbon Coalition). They sued the President and federal land-management officials and agencies (Interior/BLM, Agriculture/Forest Service) seeking to block implementation. Tribal nations and environmental groups intervened to defend the proclamations.

Key issues on appeal were:

• Sovereign immunity and reviewability: whether courts may hear an ultra vires challenge alleging the President exceeded statutory limits in the Antiquities Act.
• APA review: whether interim management plans were “final agency action” under the Administrative Procedure Act.
• Standing: whether individual plaintiffs and BlueRibbon had standing (and whether arguments were preserved).

2. Summary of the Opinion

The Tenth Circuit affirmed in part, vacated in part, and remanded.

• Ultra vires / sovereign immunity: The court held the district court applied an overly restrictive view of the ultra vires exception and wrongly treated the Antiquities Act as insulating the President from judicial review simply because the Act uses “discretion” language. The panel held that where a statute “places discernible limits” on presidential authority, courts may review whether the President acted beyond those limits. The court did not decide whether plaintiffs ultimately plausibly alleged ultra vires action; it remanded for the district court to interpret the Act’s limits and apply the correct standard.
• APA claims: Because the challenged interim BLM management plans were superseded by final resource management plans issued in January 2025, the panel vacated the dismissal of APA claims and remanded for the district court to address mootness/effect of superseding final plans.
• Standing (individuals/BlueRibbon): The dismissal of the individual plaintiffs and BlueRibbon was affirmed because they waived the standing argument by not raising it in the opening brief (attempting to address it only in reply).
• Form of dismissal: The panel noted jurisdictional dismissals must be without prejudice and modified the district court’s “with prejudice” disposition accordingly (citing Brereton v. Bountiful City Corp.).

3. Analysis

3.1 Precedents Cited

A. Sovereign immunity and the ultra vires exception

The court grounded its sovereign-immunity framework in Supreme Court and Tenth Circuit precedent:

• Michigan v. Bay Mills Indian Cmty. and Dep't of Agric. Rural Dev. Rural Hous. Serv. v. Kirtz were cited for the baseline proposition: sovereign immunity bars suit absent consent/waiver.
• Fed. Deposit Ins. Corp. v. Meyer and Wyoming v. United States supplied the rule that immunity extends to officials acting on behalf of the sovereign.
• Pennhurst State Sch. & Hosp. v. Halderman and Larson v. Domestic & Foreign Com. Corp. framed the key carveout: when an officer acts beyond statutory authority (or unconstitutionally), the act is not sovereign and immunity does not apply.
• United Tribe of Shawnee Indians v. United States was used to emphasize the pleading burden: the plaintiff must allege not merely illegality, but that the officer was not exercising delegated power.

The panel’s central corrective to the district court drew heavily from the D.C. Circuit’s warning in Chambers of Com. of U.S. v. Reich against allowing officials to evade all limits “so long as the President claims” statutory authority.

B. Discretion, nonreviewability, and when courts can still police statutory limits

The opinion distinguished cases where Congress gave the President unfettered discretion from cases where Congress set enforceable boundaries:

• Dalton v. Specter was treated as the archetype of unreviewable presidential discretion, because the base-closure statute “prevent[ed]” nothing and allowed presidential choice “for whatever reason he s[aw] fit.”
• Martin v. Mott and Dakota Cent. Tel. Co. v. State of S. Dakota ex rel. Payne illustrated contexts (military emergencies/war) where the nature of the delegated power implies exclusive presidential judgment.
• United States v. George S. Bush & Co. supported the proposition that when a statute commits a determination to the President’s “judgment,” courts will not second-guess.

Against that line, the court relied on Mountain States Legal Found. v. Bush (D.C. Circuit) and Murphy Co. v. Biden (Ninth Circuit) to support a key move: Dalton’s bar does not control where the authorizing statute (or another statute) imposes “discernible limits” on presidential action.

C. Antiquities Act judicial engagement (objects and scope)

To rebut the notion that Antiquities Act decisions are categorically beyond judicial competence, the panel invoked the Supreme Court’s prior engagement with Antiquities Act terms:

• Cameron v. United States (Grand Canyon as an “object of unusual scientific interest”).
• Cappaert v. United States (Devils Hole pool as an “object[] of historic or scientific interest”).
• United States v. California (monument reservation and submerged lands context).

While these cases did not arise as injunction suits against the President, the majority used them as evidence that courts can interpret “objects of historic or scientific interest” and are not barred from construing Antiquities Act limits.

D. The post-APA “Hail Mary” ultra vires concept and Kyne

The panel confronted the government’s reliance on a stricter conception of ultra vires review:

• Nuclear Regul. Comm'n v. Texas described certain ultra vires claims as “rarely” successful and criticized attempts to “dress up” ordinary statutory arguments as ultra vires.
• The court distinguished that discussion as tied to the Leedom v. Kyne context—interlocutory, otherwise unreviewable agency action—and noted the Court has “strictly limited” Kyne to prevent end-runs around statutory review schemes (with Boire v. Greyhound Corp. reinforcing that caution).
• The majority did not decide whether a Kyne-like heightened standard applies to this presidential-ultra-vires setting, leaving that for remand.

E. Statutory interpretation after Chevron’s overruling

The panel used Loper Bright Enters. v. Raimondo to reinforce that statutory ambiguity is not a delegation of law-interpreting power; courts still “say what the law is” (invoking Marbury v. Madison). This supported the court’s rejection of the dissent’s view that undefined or broad terms (“objects,” “compatible”) necessarily commit interpretation to presidential discretion.

F. Standing, waiver, and appellate practice

• In re: Motor Fuel Temperature Sales Pracs. Litig. and M.D. Mark, Inc. v. Kerr-McGee Corp. supported the holding that arguments raised first in a reply brief are waived.
• As to Utah Plaintiffs, the panel applied standard standing law and cited Wyoming ex rel. Crank v. United States and Lujan v. Defs. of Wildlife; it rejected the government’s standing attack.

G. Remedies and equitable review

Addressing whether plaintiffs had a cause of action and what relief could run against whom, the panel:

• Distinguished Safe Streets All. v. Hickenlooper (no free-floating “equity” cause of action to enforce the Supremacy Clause in that posture).
• Referenced Armstrong v. Exceptional Child Ctr., Inc. for the proposition that equitable relief to restrain ultra vires action is a longstanding doctrine, though potentially limited by Congress.
• Flagged remedial constraints: even if the President acted ultra vires, injunctions may need to run against subordinate officials rather than the President, leaving that question for the district court.

3.2 Legal Reasoning

A. What the district court got wrong about ultra vires pleading

The district court treated plaintiffs’ theory as an impermissible challenge to how the President used delegated power, rather than whether he had power to do what he did. The Tenth Circuit rejected the district court’s framing that plaintiffs must allege the President lacks authority to designate monuments at all. Instead, plaintiffs may concede general authority yet still contend the President exceeded statutory limits in a particular proclamation (e.g., designating non-qualifying “objects” or reserving more than the “smallest area compatible”).

B. Discretion to “declare” is not discretion to redefine Congress’s categories

The panel’s key interpretive move is grammatical and structural: § 320301(a) says the President may “in [his] discretion” declare qualifying items to be monuments; it does not say the President has discretion to decide that anything whatsoever qualifies as a “historic landmark,” “structure,” or “object of historic or scientific interest.” The court treated this as a conventional limit: discretion operates within categories Congress supplied, and courts can interpret those categories using ordinary tools of statutory interpretation (including the anti-surplusage principle).

C. The “smallest area compatible” clause is judicially cognizable

The court emphasized § 320301(b)’s mandatory language (“shall be confined”) and its separation from the “discretion” clause in subsection (a). It rejected the view that terms like “compatible” automatically commit boundary-setting to the President alone; at most, they may require judicial deference, not abdication.

D. Separation of powers cuts in favor of enforcing congressional limits

The majority reframed separation-of-powers concerns: refusing review where Congress has imposed discernible limits undermines legislative supremacy by rendering statutory constraints non-enforceable. The court thus treated judicial review as consistent with Congress entrusting courts to “determin[e] the limits of statutory grants of authority” (quoting Mountain States’ use of Reich/Stark v. Wickard).

E. The remand is about defining the limits, not deciding the ultimate legality

Despite strong language rejecting categorical nonreviewability, the panel expressly declined to decide the merits (including whether the proclamations in fact exceed the Act). Instead, it remanded for the district court to:

• interpret “historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest,”
• interpret “the smallest area compatible with the proper care and management,”
• determine whether plaintiffs plausibly alleged ultra vires action (and whether a heightened Kyne-like standard applies).

F. The dissent’s limiting approach

Judge Federico agreed the district court overreached by affording “total immunity,” but argued the majority’s approach authorizes an impermissibly expansive merits review under the guise of ultra vires doctrine. Relying on Nuclear Regul. Comm'n v. Texas and related D.C./Fifth Circuit formulations (Fed. Express Corp. v. U.S. Dep't of Com., Apter v. Dep't of Health & Hum. Servs., Danos v. Jones), the dissent advocated an ultra-narrow “specific prohibition” or “patent” violation test, suggesting only limited facial checks (e.g., whether land is federally owned/controlled; whether another statute independently bars the action; or whether a Wyoming-style express prohibition is violated).

The majority responded (implicitly and explicitly) that the dissent’s approach effectively converts statutory limits into non-enforceable aspirations whenever the statute uses broad terms, contrary to the judicial role articulated in Loper Bright Enters. v. Raimondo.

3.3 Impact

The opinion’s practical and doctrinal significance is substantial in three respects:

• Antiquities Act litigation in the Tenth Circuit: Plaintiffs challenging monument proclamations are not categorically barred by sovereign immunity where they plausibly allege the President exceeded statutory limits. This opens a pathway to litigate the meaning of “objects” and “smallest area compatible” on the merits—questions often avoided via justiciability doctrines.
• Presidential statutory compliance review: The court explicitly joined circuits recognizing that statutory (not merely constitutional) ultra vires challenges may proceed where statutes impose “discernible limits,” aligning the Tenth Circuit with Mountain States Legal Found. v. Bush and Murphy Co. v. Biden.
• Remedies and institutional design: Even if presidential action is reviewable, the opinion flags remedial complexity—particularly whether relief can run directly against the President or must be directed at subordinate officials. This invites future litigation on separation-of-powers remedies, not just merits.

At the same time, the court preserved significant uncertainty by leaving open whether plaintiffs must satisfy a heightened Kyne-like standard and what “plausibility” means in this unique ultra vires posture.

4. Complex Concepts Simplified

• Sovereign immunity: The federal government generally cannot be sued without its consent. That protection extends to officials when they act as the sovereign.
• Ultra vires: If an official acts beyond the authority Congress gave (or in violation of the Constitution), the act is treated as not truly “sovereign,” and immunity may not apply. The hard part is distinguishing (a) illegal use of granted power (often still immune) from (b) actions outside the granted power (potentially reviewable).
• “Committed to discretion” (nonreviewability): Courts often cannot review decisions Congress assigned to an official’s judgment without meaningful legal limits. But if Congress wrote enforceable limits (“discernible limits”), courts can interpret and police them.
• Administrative Procedure Act (APA) “final agency action”: You generally can’t sue under the APA until the agency has taken a final, operative action. Interim plans may be non-final; here, final plans later issued, changing the posture.
• Standing: A plaintiff must show a concrete injury caused by the defendant and likely redressable by the court. Appellate waiver rules also matter: if a party fails to brief standing errors in the opening brief, the issue can be forfeited.

5. Conclusion

Dalton v. Trump establishes (for the Tenth Circuit) that sovereign immunity does not categorically bar judicial review of Antiquities Act monument proclamations where plaintiffs plausibly allege the President exceeded statutory limits—particularly the limits on what may be declared (“objects of historic or scientific interest”) and the land-area constraint (“smallest area compatible”). The court rejected the district court’s view that only constitutional challenges are reviewable and aligned itself with circuit authority permitting review when statutes impose “discernible limits” on presidential discretion.

The decision’s immediate effect is procedural but consequential: it reopens the courthouse door for merits litigation over the Antiquities Act’s limiting language, while leaving unanswered (for now) the precise standard for proving presidential ultra vires action and the permissible scope of remedies. The dissent underscores the fault line ahead: whether this review remains genuinely narrow or becomes a vehicle for broad merits second-guessing of monument designations.