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Photo: Northern boundary of the 2016 Bears Ears National Monument designation as viewed from Dead Horse Point State Park. By At Home in Wild Spaces.
Utah – A month of hindsight is a valuable thing. With a new year now underway, let's examine what we know concerning the legality of last year's reductions to Utah's national monuments and discuss how the issue may develop in 2018.
The question where it all begins: Were President Trump's December reductions even legal? Answer: Undetermined
The argument for the legality of President Trump's monument reductions is relatively simple and based on two claims.
Claim #1-The Antiquities Act grants the President discretionary authority to both designate new monuments and alter or revoke previous designations.
Claim #2 - There is precedent.
So how well do these two claims hold up to scrutiny? Answer: Not great.
The Antiquities Act gives Presidents authority to create national monuments on federally owned land at their discretion, but says nothing of altering or revoking previous designations. Ultimately, all hope for the long term legitimacy of President Trump's monument reductions rests on the question of precedent.
There have been at least 19 occasions where past presidents have amended monument boundaries by executive action, but this is where support for Trump’s cuts gets, well... problematic.
Historic monument alterations by presidents weren't necessarily reductions. For example: On August 14, 1962 President Kennedy signed a proclamation declassifying 320 acres of Utah’s own Natural Bridges National Monument, also adding 5,236 acres to the monument. Other alterations addressed oversights in previous designations where private property had been included within the original monument.
This all begs the question: What criteria, if any, must be met before President’s may alter existing monuments? Again, on these questions The Antiquities Act is completely silent.
While there are some clear examples of a one or two relatively moderate reductions, generally speaking alterations have been both minor and infrequent. President Trump's reductions on the other hand are frankly – unprecedented. His Dec 4, 2017 proclamations shrink Bears Ears (originally 1.35 million acres) by 1.15 million acres, and Grand Staircase-Escalante (1.9 million acres) by nearly 900,000 acres.
Historically, presidential reductions to monuments rarely affected more than 800 acres, less than one thousandth of Trump's reduction to Grand Staircase. The largest historical monument reduction occurred in 1915 when President Wilson, claiming the timber was needed for the war effort in Europe reduced Mount Olympus National Monument by 313,000 acres, a reduction that went unchallenged in court as did FDR's 72,000 acre reduction of Grand Canyon National Monument in 1940.
President Trump’s Dec 4th reductions alone strip monument status from 2 million acres: nearly four and a half times the 461,000 acres removed from national monuments by all of Trump’s predecessors – combined. And unlike the now relatively moderate reductions to Olympic and Grand Canyon, Trump's reductions were immediately met by a cascade legal challenges.
Finally, there is the Federal Land Policy and Management Act of 1976 to consider. Passed since the last presidential monument reduction in 1964, granting congress power and influence over national monument management decisions.
Photo: Sunrise looking East from Bears Ears National Monument. By At Home in Wild Spaces
So what does this all mean for 2018?
Since past reductions went unchallenged, the question of legality is being argued into a void. There is no clear answer as of yet whether the President's discretionary power to designate monuments also extends to altering or diminishing designations.
President Trump's proclamations are set to go into effect in early February; 60 days after they were signed. If one of the various courts now considering challenges to the President's reductions were to rule against them, implementation of Trump's proclamations would likely be held in legal stasis until a final verdict is made.
The ultimate question of legality may well be decided by the U.S. Supreme Court, though not likely before years end. Whenever the decision comes, it's guaranteed to be historic.
And then there's the question of congressional elections. Can or would congress throw its hat into the ring with legislative measures to support or overturn the President's monument reductions? Utah's delegation has already put forth legislation that would, if passed, make the reductions permanent and transfer some ex-monument lands to the state of Utah.
What do you think? How and when will the fate of Bears Ears and Grand Staircase-Escalante National Monuments be decided. Make sure to leave a comment below and share.
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Preface: This article was written for and initially approved for publication by KSL.com (Utah's largest news organization). Plans for publication were however abandoned by management believing it "might cause friction" with the Deseret News (KSL's sister company), which published Governor Herbert's op-ed, 5 myths about bears ears on Dec 4th, 2017.
It is not the purpose of this article to attack the Governor or the Deseret News, but to make an independent and fact-based assessment of claims made in Governor Herbert's Dec 4th op-ed.
Photo courtesy of Geoff and Jamie Harmon.
December 4, 2017 – Following petitions by Utah's congressional delegation, the Utah state legislature and Utah's Governor Gary Herbert to shrink or rescind Grand Staircase-Escalante and Bears Ears National Monuments, President Donald Trump signed two presidential proclamations slashing monument status from 2 million acres previously designated by Presidents Bill Clinton and Barack Obama.
Immediately following the reductions, Utah's Governor Gary Herbert published an article in the Deseret News in which responds to what he calls 5 "myths" relative to the debate over Bears Ears National Monument.
What follows is a fact-based assessment of the arguments put forth in Governor Herbert’s op-ed 5 myths about Bears Ears. The Governor’s response to each "myth" will be rated as True, False, Problematic, Undetermined or Misleading. Due to the layered nature of the Governor's claims more than one verdict may be rendered.
(Note) For reasons not explained by Governor Herbert, his article omits any mention of Grand Staircase-Escalante National Monument. Since both Bears Ears and Grand Staircase-Escalante National Monuments were altered in parallel, this article will assess the governor’s claims as they relate to both monuments – not just Bears Ears.
“Myth” #1 according to Gov. Herbert: By reducing the size of BENM, these federal lands will be transferred to the state of Utah and/or private entities.
The Governor’s response: BENM was designated on federal lands that will remain under federal ownership regardless of monument status. Interior Secretary Ryan Zinke has adamantly opposed the wholesale transfer or privatization of federal public lands, and that commitment is reflected in this modification of monument boundaries.
While it is true that President Trump’s proclamations do not transfer ownership of any federal land to the “state or private entities”, it is also true according to Article IV Section 3 of the U.S. Constitution that Congress, not the president – makes all determinations regarding the sale or transfer of federal land. Secretary Zinke’s personal persuasions as cited by Governor Herbert do not dictate decisions concerning the sale or transfer of federal lands.
The Governor’s claim that monument lands won’t be “transferred to Utah/or private entities” must be rated as undetermined since removal of national monument status now allows for that possibility. And given Governor Herbert's own efforts along with Utah's congressional delegation and other state leaders to compel the federal government to relinquish ownership of more than 30 million acres of federal lands to the state of Utah, the Governor's claims must also be rated as misleading.
See also Transfer of Public Lands Act, Utah Public Lands Initiative, Utah Enabling Act Litigation and Utah H.C.R.1.
There is little to no evidence to suggest Utah's political leaders won't pursue State ownership of previous monument lands. Quite the opposite. Shortly after President Trump’s cuts to Grand Staircase and Bears Ears, Utah’s Representative Chris Stewart introduced new legislation that would, if passed by Congress, transfer former monument lands to the state of Utah.
Governor Herbert’s own public statements supply further uncertainty regarding his claims about the fate of declassified monument lands should the state acquire them, having state previously, “liquidating” federal land is an idea “worth exploring”, adding, “I would argue we could privatize public land and have it developed commercially…"
Sunrise from Bears Ears. Photo by At Home in Wild Spaces.
“Myth” #2 according to Gov. Herbert: Without national monument status, the vast landscape of the Bears Ears region will be subjected to unchecked exploitation.
The Governor’s response: Before Obama’s monument designation in December 2016, the Bears Ears region was mostly federal public land subject to a network of federal protections that conserve the area’s natural beauty and archeological treasures. Trump’s reconfiguration of the monument’s boundaries does not change the federal ownership of these lands and maintains the existing system of federal protections.
The Governor then cites the Dark Canyon Wilderness, and a number of the “wilderness study areas” which he claims “ensure the integrity of beautiful scenic vistas”, by prohibiting activities like, “motorized travel or natural resource extraction”.
Verdict: True but Problematic
The Governor is right that before Bears Ears and Grand Staircase were designated as monuments there were protections already in place like The Archaeological Resources and Protection Act, prohibiting looting or vandalism of archaeological sites and artifacts.
Each land management agency also has authority to enact and enforce protective policies and regulations governing both recreational and commercial use of public lands. There are however limits and susceptibilities within the protections cited by the Governor.
The Governor’s reference to Wilderness and Wilderness Study Areas is one such example. The Wilderness Act authorizes Congress to designated wilderness areas, which as the Governor claims permanently prohibit all motorized vehicles and natural resource extraction. Wilderness Study Areas or WSAs on the other hand are only managed as wilderness until Congress makes a determination on whether or not to grant them full wilderness status. They are not permanently protected.
The 43,353-acre Dark Canyon Wilderness is the only congressionally designated wilderness within the original Bears Ears National Monument, and protects a mere 3% of the land affected by the Obama era designation. Unless granted full wilderness status the eleven Wilderness Study Areas cited by Governor Herbert, only temporarily protect 381,000 acres (roughly 28%) of the 2016 Bears Ears designation from motor vehicle use and natural resource extraction.
Without monument protections the remaining 69% of the Bears Ears region remains susceptible to both motorized travel and natural resource extraction, as might portions of the eleven wilderness study areas if not granted full wilderness status.
Grand Staircase-Escalante contains twelve WSAs and no designated wilderness areas.
Finally, less than 10% of the more than 100,000 archaeological sites within Bears Ears have been formally surveyed. Archaeologists and Paleontologist alike have expressed concern that removal of monument status has compromised the safety of what has been called one of the countries largest stores of historic and prehistoric treasures.
Photo courtesy of Geoff and Jamie Harmon
“Myth” #3 according to Governor Herbert: Without national monument status, the Bears Ears region will be crisscrossed by coal mines, oil rigs and gas pipelines.
The Governor’s response: Mineral resources beneath Bears Ears are scarce. There is no developable oil and gas. The region’s nonrenewable resources, including uranium near the Daneros Mine, were actually outside the expansive monument boundaries declared by Obama. The integrity of the Bears Ears landscape, long kept intact before the creation of the monument, will almost certainly remain intact after Trump’s announcement. And to ensure this going forward, the state of Utah is asking for congressional legislation that will exclude the region from mineral extraction.
The “myth” as presented by the Governor is somewhat hyperbolic, but the governor’s claim that “(There) is no developable oil and gas” is incorrect. While there is some debate over the practicality of mining or energy extraction within much of the Bears Ears National Monument region, the USGS concluded the Paradox Basin (much of which was protected within Bears Ears NM) contained an estimated “89 million barrels of oil, 833 billion cubic feet of gas, and 18 million barrels of natural gas liquids”.
Since 2013 the oil and gas industry has in fact lobbied the BLM for access to more than 100,000 acres of land inside or within one mile of the Bears Ears NM. According to the BLM, “There are 23 existing federal oil and gas leases either partially or wholly located within the Bears Ears National Monument” as well as dozens of active and inactive oil, gas and mining (including uranium mining) operations.
While, there are different views about how accessible the natural resources may be within Bears Ears National Monument the same is not true of Grand Staircase-Escalante National Monument (home to the substantial Kaiparowits Plateau Coal Field), which contains an estimated 62.3 billion tons of “coal resources” the largest known deposit in Utah and made access-able under President Trump's reductions. The same assessment also concluded that, “the monument (Grand Staircase-Escalante) contains all the elements necessary for major oil and gas accumulations.”
The 1996 designation of Grand Staircase-Escalante National Monument in fact halted plans for a ANDALEX coal mine on the Kaiparowits plateau.
It is clear that both monuments house significant stores of natural resources, and removal of monument status raises questions about whether mining or drilling operations will again target declassified monument lands.
Governor Herbert's promise that, “the state of Utah is asking for congressional legislation that will exclude the region from mineral extraction” remains somewhat suspect given evidence that some of Utah's leaders have expressed extractive aspirations on federal and declassified monument lands.Utah’s Senator Orrin Hatch, has stated, “We’ve got billions of dollars in oil and gas leasing that would help our communities… in San Juan County and all over the state of Utah if we could just get the BLM to do its job...”
Whether or not in Governor Herbert’s words, “mines”, “rigs” and “pipelines” “crisscross” the area is yet to be seen, but having removed monument status from 2 million acres, President Trump has opened doors to that possibility.
Northern boundary of Bears Ears National Monument removed from monument under President Trump's proclamations (Photo taken from Dead Horse Point State Park). Photo by At Home in Wild Spaces.
“Myth” #4 according to Governor Herbert: National monument status will protect the rich archaeological sites and artifacts in the Bears Ears region.
The Governor’s response: Looting and vandalism are ongoing problems because the region lacks sufficient federal law enforcement. Existing federal laws such as the Archaeological Resources Protection Act and the Paleontological Resources Preservation Act are just two federal laws that protect precious cultural and scientific sites on federal land regardless of status. But the Bureau of Land Management’s law enforcement presence, once a formidable force in the area, has steadily declined due to federal budget constraints and workforce reductions. The designation of BENM brings no guarantees of improved law enforcement, but it does guarantee growing tourist visitation to vulnerable archaeological sites that will spread BLM resources even thinner and likely aggravate problems with looting and vandalism.
Verdict: True but Problematic.
(Note) This topic has previously been covered in section two, where the governor's arguments focused mainly on concerns relating to natural resource extraction and motorized vehicle use. The True but Problematic ruling will thus automatically be applied to this section as well. What follows will address the Governor's arguments relating to vandalism, visitation and law enforcement resources.
The Archaeological Resources Protection Act and The Paleontological Resources Preservation Act provide legislative protections for historic artifacts and fossils, they do not provide any protective measures for geologic or scenic features.
Looting, tagging, collecting or destroying historic/scientific artifacts or other natural resources persists on all public lands whether national parks, monuments, forests, BLM lands, etc. despite current laws and regulations prohibiting such activities.
Monument designations as with other layers of protection do not as the governor states, guarantee greater success when combating vandalism, without the adequate resources to enforce those protections.
Governor Herbert suggests a Bears Ears NM will “guarantee” greater numbers of visitors, potentially increasing concerns about vandalism, but in truth visitation will continue to grow, with or without monument protections give the popularity of locations such as Lake Powell, Monument Valley, Arches and Canyonlands National Parks, Natural Bridges National Monument, etc... all of which share boundaries with or are located near the affected monuments.
The Governor’s shift to the discussion of adequate resources is problematic given the initial boost to funding following the designation of 1996 Grand Staircase-Escalante. It may be true that monuments are not guaranteed more resources, but monuments have also historically been the recipients of greater resources.
There is also an element of culture that the Governor fails to address. Even with pre-monument laws and resources in place to protect what is considered the highest concentration of historic artifacts in the country, there have been local protests against those same regulations. The Governor himself even donated $10,000 for restitution fees for San Juan county commissioner Phil Lyman, found guilty of organizing and participating in a protest where he and others rode ATVs in prohibited areas with sensitive archaeological sites.
While the governor correctly names some limited protections and discusses the effect of budget and resource constraints, he fails to comprehensively address a number of important factors including cultural resistance to even pre-monument protections and vulnerabilities not covered by the legislation he has referenced.
“Myth” #5 according to Governor Herbert: National monument status is a boon for outdoor recreation.
The Governor’s response: Monument status can limit specific activities enjoyed by outdoor recreationists, such as mountain biking, certain types of rock climbing and motorized travel on back roads. Managing public lands for the full spectrum of outdoor recreation activities and tailoring them to the specific terrain is best done through land management plans that take input from local tribal leaders and local land managers who understand the unique nature of the area and its possible uses for responsible recreation.
While it is true that certain activities can be either restricted or prohibited, the main trouble with Governor Herbert’s argument is his suggestion that national monuments by default are some how more prohibitive of specific activities like “mountain biking, certain types of rock climbing or motorized travel on back roads” when these and other restrictions may or may not occur on monument or other federal lands.
National monuments are somewhat unique in that “they can be managed by any of seven different agencies – either individually or jointly”. When it comes to public lands; be it parks, monuments, forests, recreation or conservation areas, wilderness areas, rivers or refuges management agencies enact specific policies which vary from park to park, monument to monument, and so on.
Under management by the BLM and the Forest Service, none of the activities mentioned by Governor Herbert were prohibited within either Bears Ears or Grand Staircase Escalante National Monuments. The only activity prohibited by the monument designations was energy and mineral extraction.
The governor in fact provides some push back to his own claims, suggesting in his previous claim that a monument designation would “guarantee” increased “visitation”.
Finally the Governor states, “Managing public lands for the full spectrum of outdoor recreation activities and tailoring them to the specific terrain is best done through land management plans that take input from local tribal leaders and local land managers who understand the unique nature of the area and its possible uses for responsible recreation.” This is a somewhat puzzling argument to include since such a provision already existed within President Obama’s Bears Ears designation.
Tell us what you think. What does the future hold for Bears Ears and Grand Staircase-Escalante? Make sure to click here and read our latest article on what the new year means for Bears Ears and Grand Staircase-Escalante.