Bears Ears National Monument: A Proper Boundary Reestablished
Environmental Policy Brief #132 | By: Tim Loftus | October 16, 2021
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In December of 2016, President Obama issued Presidential Proclamation 9558 – Establishment of the Bears Ears National Monument. This relatively new monument is unique. Situated in southeastern Utah, the monument was created largely at the behest of the Bears Ears Inter-Tribal Coalition composed of five Colorado Plateau tribes who share a longstanding cultural connection to the landscape: Hopi, Navajo, Ute Mountain Ute, Ute Indian Tribe of the Uintah and Ouray Reservation, and Zuni Tribe.
San Juan County, where the monument is located, is one of the most scenic areas in the country. For example, the county is home to a large portion of Canyonlands National Park, other national monuments, and so much more. Much of the land features an abundance of archeological and paleontological resources that are well preserved due to the arid climate. Thus, a higher level of protection is warranted amid the area’s growing popularity with tourists and outdoor enthusiasts, not all of whom visit with the respect necessary for the special, and sacred to many, nature of this land.
In the spring of 2017, then-President Trump ordered a review of all national monuments created since 1996. The order was carried out by then-Secretary of Interior, Ryan Zinke. Months later, one year after Bears Ears was established, Mr. Trump took unprecedented action and with Presidential Proclamation 9681, modified the boundary and reduced the size of Bears Ears by 85 percent. In essence, Mr. Trump abolished the vast majority of a national monument that was legally established by a previous President. This highly controversial, if not illegal, action sparked immediate challenges that remain pending in federal court.
When the Biden Administration came into power and Congresswoman Deb Haaland was appointed Secretary of Interior, an immediate review commenced of actions undertaken by the previous administration including a reduction in the spatial extent of Grand Staircase Escalante National Monument, established by President Clinton in 1996, and a reduction in protections for a marine reserve that was also established by President Obama.
In April of this year, Secretary Haaland visited both monuments in southern Utah to hear from many of the competing voices on the matter including tribal leaders and Republican leaders including Utah Governor Spencer Cox and U.S. Senator Mitt Romney. Ms. Haaland submitted her report to the White House not long after and while the contents of the report were made public only this month, it was reported in the New York Times on June 14th that Ms. Haaland recommended that Mr.Biden reinstate the original boundaries to both monuments in Utah. It has been widely expected since his inauguration that President Biden would restore the monument boundaries established by President’s Obama and Clinton.
Late last month, the Bears Ears Inter-Tribal Coalition sent a letter to President Biden expressing their frustration with the delay in taking action to restore and expand Bears Ears National Monument. The Coalition cited evidence of ongoing desecration and an unwillingness by the BLM and USFS to engage the Coalition in management and planning activities. The Coalition requested that the President take immediate action “to restore the protections of the sacred cultural landscape we call Bears Ears.”
A president’s authority for establishing new national monuments is found in the Antiquities Act of 1906. As is typical of new designations, monuments encompass existing federal lands such as those managed by the U.S. Department of Interior’s Bureau of Land Management (BLM), the U.S. Department of Agriculture’s Forest Service (USFS), or other federal agencies. Thus, a new monument designation includes land that is already under federal ownership. Should any private holdings or state parcels be encompassed by the new boundary, those parcels remain private or in state control as before.
The controversy that sometimes accompanies a new monument designation is usually related to restrictions that will, for example, prevent issuance of new grazing or mineral/oil/gas/timber extraction leases. All-terrain vehicle (ATV) use may also become more restricted. In short, the privilege of using public land in certain impactful ways, often for profit, and by a relatively few individuals is deemed less appropriate than a longer-term conservation of the public land and its resources for all Americans, both current and those to come.
Controversy has long been part of the history of some of America’s most iconic landscapes. The Grand Canyon, for example, struggled for many years to become a national park because of insufficient support in Congress at the time. Using new authority given to presidents under the recently passed Antiquities Act, President Theodore Roosevelt established the Grand Canyon National Monument in 1908. Eleven years later, President Woodrow Wilson signed the Grand Canyon National Park Act. Who among us will argue now that setting aside the Grand Canyon was a mistake?
Photo taken from: The Southern Utah Wilderness Alliance (areas in yellow denote land restored by Biden in 2021 to the monument)
Bears Ears National Monument was created for the exact reason(s) that the Antiquities Act exists: to create national monuments from federal lands to protect significant natural, cultural, or scientific features (emphasis added). Furthermore, the promise of acknowledging the wishes of several native-American tribes and using their input going forward for planning and management purposes is in keeping with our nation’s current attempts at giving voice to marginalized or underserved people.
As to the legitimacy of whether a sitting President can unilaterally abolish or materially change a national monument that was established by an earlier President under the authority of the Antiquities Act of 1906, a legal team at Arnold & Kaye Scholer LLP provided an analysis in May 2017. The analysis, performed at the request of the National Parks Conservation Association, was in response to the review order by President Trump that preceded the rollback of the Bears Ears National Monument and nearby Grand Staircase Escalante National Monument.
The analysis found ample and unequivocal evidence that Congress alone has the authority to revoke or materially change a monument’s size once it has been established. This legal opinion occurred outside of any currently pending adjudication.
Photo taken from: Roadtrippers
On October 8, 2021, President Biden restored the original boundary of Bears Ears National Monument and retained protections on additional acreage added by President Trump in his overall dismantlement of Bears Ears. In doing so, President Biden corrected what many believe to be an unprecedented mistake and unfortunate misreading of the relevant statute by his predecessor. Mr. Biden also restored the Grand Staircase Escalante National Monument to the boundaries that were in place on January 20, 2017. Furthermore, protections were restored to the Northeast Canyons and Seamounts Marine National Monument that was established by President Obama in September 2016.
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Rebecca M. Robinson. 2018. Voices From Bears Ears: Seeking Common Ground on Sacred Land. Tucson, AZ: The University of Arizona Press. 412 p.
The Washington Post. September 28, 2021. Native American tribes tell Biden they want ‘immediate action’ on Bears Ears National Monument, which Trump shrank – The Washington Post By Joshua Partlow. (accessed October 15, 2021)
The White House. October 7, 2021. FACT SHEET: President Biden Restores Protections for Three National Monuments and Renews American Leadership to Steward Lands, Waters, and Cultural Resources | The White House (accessed October 15, 2021)
U.S. Dept. of the Interior, Office of Congressional and Legislative Affairs. 2016. STATEMENT FOR THE RECORD – UNITED STATES DEPARTMENT OF THE INTERIOR – BEFORE THE COMMITTEE ON ENERGY AND NATURAL RESOURCES, UNITED STATES SENATE – CONCERNING THE DESIGNATION OF MONUMENTS PURSUANT TO THE AUTHORITY PROVIDED BY THE ANTIQUITIES ACT July 27, 2016 Antiquities Act | U.S. Department of the Interior (doi.gov) (accessed October 14, 2021)