SCOTUS Can Give Back The Public Land Biden Illegally Grabbed

There’s something undeniably American about searching the American Southwest for gold. As a young man, Mark Twain traveled to the Nevada Territory and, among other adventures, became a gold and silver prospector.

He wrote about the thrill of a strike: “You sweat and dig and delve with a frantic interest — and all at once you strike it! Up comes a spadeful of earth and quartz that is all lovely with soiled lumps and leaves and sprays of gold.”

Like so many throughout history, Twain’s search for gold wasn’t about the riches—it was about adventure. One of Twain’s contemporaries, Ralph Waldo Emerson, put it this way: “The desire of gold is not for gold. It is for the means of freedom and benefit.”

If you ask Dan Torongo, that’s it exactly. 

Most of the time, Torongo is an engineer with his own firm in Brighton, Michigan. He specializes in gas and diesel aftertreatment systems and components, in clean air. But his family caught the gold bug as far back as the 1970s and has long held claims in the Chuckwalla Mountains of California.

Now, however, his lifelong hobby of searching for gold — and that quintessential American dream of a big find — is in jeopardy. As one of his final acts in office, President Joe Biden on Jan. 14 created the 624,000-acre Chuckwalla National Monument. It runs from just south of Joshua Tree National Park, eastward to the Colorado River and Arizona.

By designating the area as a national monument, the Biden administration limited what activities can occur on the land. In a couple of years, the Bureau of Land Management will release a “monument plan,” which will detail exactly what the new restrictions will look like. While it’s true that the proclamation contains boilerplate language about protecting “existing rights,” previous monument plans, such as Bears Ears and Grand Staircase-Escalante, have imposed heavy burdens on miners like Torongo, including some $100,000 in new fees and permits. Creation of the monument also means Torongo can never acquire any claims adjacent to his current claims, which is something he was planning to do soon.

“They say they’re saving the land for the people,” Torongo says. “But they’re sealing off the land from the people.”

But now, attorneys with the Texas Public Policy Foundation’s Center for the American Future have filed suit on Torongo’s behalf in federal court in the Eastern District of Michigan, where Torongo and his family have lived for decades. The BlueRibbon Coalition, a national nonprofit dedicated to maintaining recreational access to public lands, is also a plaintiff.

In creating the monument, Biden invoked the Antiquities Act of 1906. But that law was intended to protect discrete artifacts, ruins, and sacred sites. It was never intended to be used to set aside hundreds of thousands of acres of public land in perpetuity.

The Chuckwalla National Monument is illegal and unconstitutional. Unfortunately, presidents will keep abusing the Antiquities Act until the courts stop them. Congress intended national monument designations to be used to protect discrete sites and objects, like a particular cliff dwelling or ruin. Presidents Clinton, Obama, and now Biden have instead used the act to close millions of acres of public land at the stroke of a pen.

Torongo and his family, going back to his grandfather and now extending to his children, have sunk a lot of money into their legal and recognized gold claims over the years. But no one is making any money — yet. The economy has a lot to do with whether it’s worth the effort.

“If you have cheap diesel fuel and expensive gold, you could make some money,” Torongo explains. “But no, you never really know. We’ve seen areas [within the claim] that looked promising, and could probably support a small claim, maybe make a living for a couple of people. But no one is getting rich.”

This fact wasn’t lost on Twain, either; he wrote in Roughing It, “During the gold rush it’s a good time to be in the pick and shovel business.”

Nor is this kind of mining disruptive to the ecosystem, Torongo explains. “It would take me 100 years and 1,000 pieces of equipment to move as much gravel as is moved every time it rains,” Dan notes, referring to how floods routinely remake the Chuckwalla landscape. 

“This is a labor of love,” Torongo says. “We were just about to start making some money when the bottom fell out of gold. I don’t know if we can ever make back the money we’ve put into it. But this is what our family does.”

The lawsuit could set up a U.S. Supreme Court showdown over the Antiquities Act. In a 2021 case, Chief Justice John Roberts wrote that presidents might be abusing the act, which specifies that the federal government should designate as small a site as possible, to preserve use of the land by the American people.

Either this is an abuse of the Antiquities Act, or the Antiquities Act is itself an unconstitutional delegation of Congress’s power to the executive branch. The Constitution entrusts Congress with these kinds of decisions and does not allow the legislative branch to abdicate this responsibility.

To read the text of the complaint, click here.

Matt Miller is a senior attorney at the Texas Public Policy Foundation, where he sues the government to enforce constitutional limitations on its power. Anelise Powers is an attorney at the Texas Public Policy Foundation, where she litigates on behalf of ordinary people whose lives, liberty, and property are threatened by government action in defiance of the Constitution.