Case 1:17-cv-02590-TSC Document 95 Filed 11/27/18 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
HOPI TRIBE, et al.,
Plaintiffs,
v.
DONALD J. TRUMP, in his official
capacity as President of the United States,
et al.,
Defendants.
UTAH DINÉ BIKÉYAH, et al.,
Plaintiffs,
v.
DONALD J. TRUMP, in his official
capacity as President of the United States,
et al.,
Defendants.
___________________________________
NATURAL RESOURCES DEFENSE
COUNCIL, et al.,
Plaintiffs,
v.
DONALD J. TRUMP, in his official
capacity as President of the United States,
et al.,
Defendants.

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) Case No. 1:17-cv-02590 (TSC)
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) Case No. 1:17-cv-02605 (TSC)
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) Case No. 1:17-cv-02606 (TSC)
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CONSOLIDATED CASES
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FEDERAL DEFENDANTS’ RESPONSE IN OPPOSITION
TO MOTIONS FOR LEAVE TO FILE BRIEF AS AMICUS CURIAE

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Federal Defendants oppose the Motions of the Law Professors, Members of Congress,
Conservatives for Responsible Stewardship, Local Elected Officials, Archaeological
Organizations, National Congress of American Indians et al., and Outdoor Alliance (together
“Proposed Amici”) for leave to file briefs as amicus curiae (“Amicus Motions”) responding to
Federal Defendants’ Motion to Dismiss the claims of the three groups of plaintiffs in this
consolidated case. See ECF Nos. 75, 82, 84, 87, 91, 93, and 94, respectively. The Court
should exercise its discretion to deny the Amicus Motions because Federal Defendants will be
prejudiced by having to review and respond to the proposed seven additional substantive
briefs—each of which expressly oppose Federal Defendants’ Motion to Dismiss.
Discussion
In this consolidated case, Plaintiffs challenge Proclamation 9681, which modified the
Bears Ears National Monument (“Monument”). Plaintiffs allege that the Proclamation violated
the Antiquities Act and various constitutional provisions. On October 1, 2018, Federal
Defendants moved to dismiss Plaintiffs’ claims, arguing that the Court lacks subject matter
jurisdiction due to, inter alia, lack of standing and ripeness, and that Plaintiffs’ claims fail on the
merits, including because the Proclamation was authorized by the Antiquities Act. See ECF No.
49. On the same date, Federal Defendants moved on parallel grounds to dismiss the Plaintiffs’
claims in the related case, The Wilderness Society v. Trump (“TWS”), No. 1:17-cv-2587, which
involves challenges to Proclamation 9682, modifying the Grand Staircase-Escalante National
Monument.
The three plaintiff groups in this case have each filed opposition briefs responding to
Federal Defendants’ motion to dismiss. ECF Nos. 71, 72, and 74. In TWS v. Trump, the two
plaintiff groups have also filed opposition briefs. See TWS, ECF Nos. 61, 63. These five

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opposition briefs present a combined total of 199 pages—excluding exhibits—addressing the
arguments in Federal Defendants’ motions to dismiss in the two cases.1 In addition, eleven
states (the “States”) have filed, as of right under LCvR 7(o)(1), a 25-page amicus brief in each
of the two cases. ECF No. 89; TWS, ECF No. 74.
The Proposed Amici in this case now seek to add seven briefs, containing 148 additional
pages (excluding exhibits), to the briefing in this case. Some of the same organizations and
individuals (as well as one additional proposed amicus) are also seeking permission to file briefs
totaling 130 pages in TWS v. Trump. See TWS v. Trump, ECF Nos. 65, 67, 69, 71, 73, and 76.
All of these proposed amicus briefs (as well as the States’ two amicus briefs and the five namedplaintiffs’ briefs) argue that Defendants’ motions to dismiss in the two cases should be denied.
This blitz of non-party briefing opposing Federal Defendants’ positions in this litigation
is inherently prejudicial to Federal Defendants. Given the already robust briefing presented in
Plaintiffs’ opposition briefs, granting the Amicus Motions is unnecessary, and it may impede the
Court’s ability to render an expeditious decision on Defendants’ motion to dismiss—a concern
Plaintiffs have previously raised. Sept. 24, 2018 Status Hearing Tr. 39:11-40:13. While some
of the Proposed Amici argue that any prejudice arising from their motions has been cured by the
Court’s extension of Federal Defendants’ reply deadline to December 13, they are wrong. See,
e.g., ECF No. 93 at 2. The extension of the reply deadline to December 13 was sought because
the extension of the Plaintiffs’ response deadline to November 15 made filing a reply brief
within two weeks of that date unworkable, given that Federal Defendants had to respond to
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In both cases, Plaintiffs filed identical joint appendices that include 237 pages of exhibits. ECF
No. 73; TWS, ECF No 62. In addition, the plaintiffs in the five cases attached another 200
additional pages of exhibits to their opposition briefs. See ECF Nos. 71, 72, and 74; TWS, ECF
Nos. 61 and 62. Certain of the Proposed Amici also include exhibits, totaling approximately 300
pages in each of the two cases. See ECF Nos. 87, 91, and 93; TWS, ECF Nos. 65, 69, and 73.
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multiple briefs from the Plaintiffs and the intervening Thanksgiving holiday. See ECF No. 65 at
3. Similarly, the fact that some of the proposed amicus briefs have arguments that overlap with
Plaintiffs’ arguments does not reduce Federal Defendants’ prejudice, because Federal
Defendants do not have adequate time or space to address every formulation of the arguments
that Proposed Amici may have presented.
Under these circumstances, the Court should deny the Amicus Motions.
Respectfully submitted this 27th day of November, 2018,
JEAN E. WILLIAMS
Deputy Assistant Attorney General
/s/ Romney S. Philpott
Romney S. Philpott
U.S. Department of Justice
Environment and Natural Resources Division
Natural Resources Section
999 18th St., #370
Denver, CO 80202
Phone: 303-844-1810
Fax: 303-844-1350
E-mail: Romney.Philpott@usdoj.gov
Judith E. Coleman
U.S. Department of Justice,
Environment and Natural Resources Division
Natural Resources Section
P.O. Box 7611, Ben Franklin Station
Washington, D.C. 20044-7611
Phone: 202-514-3553
Fax: 202-305-0506
Email: Judith.Coleman@usdoj.gov
Attorneys for Federal Defendants

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CERTIFICATE OF SERVICE
I hereby certify that on this 27th day of November, 2018, I filed the above pleading with
the Court’s CM/ECF system, which provided notice of this filing by e-mail to all counsel of
record.

/s/ Romney S. Philpott
Romney S. Philpott

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