by Tim Peterson, Utah Wildlands Director
Today, Interior Secretary Ryan Zinke announced an interim report that recommends shrinking Bears Ears National Monument, but postponed a final decision for action on Bears Ears until after the national monuments review period ends on August 24, 2017. Zinke also reopened the public comment period on Bears Ears, which now ends July 10, 2017.
The Bears Ears report was mandated by President Trump’s executive order calling for review of 27 national monuments designated in the Obama, Bush, and Clinton administrations.
Aside from regurgitating the order mandating it, the report is brief, and though it contains some details, it’s short on specifics. The secretary recommends shrinking the monument, recommends that Congress create national conservation or national recreation areas, and asks Congress to clarify how the monument is managed. The report asserts that Bears Ears is too big, but provides no hard evidence backing this claim. "There is a lot more drop-dead gorgeous land" than historic objects in Bears Ears, Zinke told reporters.
With the report, the secretary still seems unfamiliar with both the monument’s proclamation and the kinds of objects of historic and scientific interest that national monuments protect.
Representative Raul Grijalva, ranking member on the House Natural Resources Committee says it best:
“The Secretary’s report is nonsense. The memo released today doesn’t give any accounting of the public comments the Interior Department received as part of this review process. It doesn’t reference any maps or specify legislative language. It doesn’t explain what the president will do regarding Bears Ears. It doesn’t even explain what alleged problem this review is trying to solve.”
Though the secretary’s report cites 76,500 comments submitted by the public, the true number is much higher (at least 685,000) because thousands of comments uploaded by groups and organizations, including the Grand Canyon Trust, were counted as single comments. Overall, almost a million positive comments so far favor keeping our national monuments as they are. Despite the overwhelming response, the secretary reopened the public comment period on Bears Ears. The original deadline to comment on Bears Ears was May 26, 2017. Now comments will be accepted until July 10.
Perhaps the administration was not happy with the results of the initial 15-day public comment period, with nearly nine to one self-identified Utahns in favor of keeping Bears Ears intact. Senator Hatch and other anti-public lands politicians in Utah are sure to keep the pressure high for Zinke and Trump to shrink Bears Ears, so it’s more important than ever to submit your comments in favor of keeping Bears Ears as it is by July 10.
Bears Ears is more than just a national monument — it is a testament to the unifying and healing power of place. Five sovereign tribal nations — the Hopi, Navajo, Ute, Ute Mountain Ute, and Zuni — backed by more than 200 other tribes, united under a shared vision to protect and defend their ancestral lands around Bears Ears. The importance of this extraordinary harmony cannot be overstated. Bears Ears, despite the disrespectful behavior exhibited by some out-of-touch Utah politicians, has begun healing relationships among southwestern tribes.
Bears Ears National Monument also contains the strongest model of federal-intertribal collaborative management to date in American law. The long overdue provision in the monument’s proclamation establishing the Bears Ears Tribal Commission gives the tribes a seat at the table in the management of their ancestral lands. The tribal commission is already meeting, and taking positive steps to improve how the land is managed. The true promise of Bears Ears — integrating traditional knowledge and western land management — is in its infancy. But the misplaced frustration of some Utah politicians who urged the president to undo Bears Ears threatens to abruptly disrupt this new measure of social equity.
Secretary Zinke recommends in his report that Congress act to give tribes a collaborative management role at Bears Ears, but with the current stagnant climate in Washington, legislation is a dead end. Congressman Rob Bishop (R- Utah) had his chance to strike a balance on Bears Ears, and he failed. Secretary Zinke also seems to want to restrict the areas tribes should co-manage, calling for their assistance only in “designated cultural areas,” which artificially separates the tribes’ long and deep connection with the entirety of the landscape. He even asserted that tribes are “happy with the recommendation,” another “alternative fact” from the Trump administration.
Secretary Zinke’s recommendation lacks a clear strategy on how the monument will be reduced in size. He recommends “lawful exercise of the President's authority granted by the [Antiquities] Act,” but should President Trump decide to act by executive order, such an action would clearly exceed his authority. The Antiquities Act of 1906 gives presidents the authority to create, but not to reduce or eliminate national monuments. From 1920 when the Supreme Court affirmed the legality of Teddy Roosevelt’s 800,000 acre designation of Grand Canyon to 2004’s district court ruling affirming Grand Staircase-Escalante National Monument, the courts have universally found monument designations proper and left them alone.
Though national monuments have been reduced in size by presidents in the past, such actions were taken when clear and obvious errors were made in drawing the boundaries, when these areas were minimally explored and unfamiliar to western science. No monument has been reduced by executive action in almost 60 years, and in the intervening years, our nation’s public lands laws were consolidated and streamlined by the Federal Land Management and Policy Act of 1976 (FLPMA). The law increased and affirmed the authority of Congress to make decisions regarding disposing of public lands, and it left the Antiquities Act untouched. In FLPMA itself and in the congressional record, it is clear that the Antiquities Act “deliberately provides for one-way designation authority. The President may act to create a national monument, but only Congress can modify or revoke that action.” By issuing an order, President Trump would be acting as if he is above the law.
Our commitment to stand behind the tribes in protecting Bears Ears remains steadfast. We are in this for the long haul, and we will not rest until Bears Ears National Monument enjoys the permanence it deserves — for the sovereignty of tribes, for the land, and for future generations.
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