Quantcast
Trump Watch
Patagonia

Why Trump’s Shrinking of Bears Ears Will Be Reversed

By Eric Biber, Nicholas Bryner, Sean B. Hecht and Mark Squillace

On Dec. 4, President Trump traveled to Utah to sign proclamations downsizing Bears Ears National Monument by 85 percent and Grand Staircase-Escalante National Monument by nearly 50 percent. "[S]ome people think that the natural resources of Utah should be controlled by a small handful of very distant bureaucrats located in Washington," Trump said. "And guess what? They're wrong."


Native American tribes and environmental organizations have already filed lawsuits challenging Trump's action. In our analysis as environmental and natural resources law scholars, the president's action is illegal and will likely be overturned in court.

Contests Over Land Use

Since 1906 the Antiquities Act has given presidents the authority to set aside federal lands in order to protect "historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest."

When a president creates a national monument, the area is "reserved" for the protection of sites and objects there, and may also be "withdrawn," or exempted, from laws that would allow for mining, logging or oil and gas development. Frequently, monument designations grandfather in existing uses of the land, but prohibit new activities such as mineral leases or mining claims.

Because monument designations reorient land use away from resource extraction and toward conservation, some monuments have faced opposition from local officials and members of Congress. In the past two decades, Utah has been a flashpoint for this debate.

In 1996 President Clinton designated the Grand Staircase-Escalante National Monument, a region of incredible slot canyons and remote plateaus. Twenty years later, President Obama designated Bears Ears National Monument, an area of scenic rock formations and sites sacred to Native American tribes.

Utah's governor and congressional delegation have long argued that these monuments are larger than necessary and that presidents should defer to the state about whether to use the Antiquities Act.

Zinke's Review

In April, President Trump ordered a review of national monuments designated in the past two decades. Trump directed Interior Sec. Ryan Zinke to recommend steps to eliminate or shrink these monuments or realign their management with Trump administration priorities.

Secretary Zinke's review was an arbitrary and opaque process. During a rushed four-month period, Zinke visited only eight of the 27 monuments under review. At the end of the review, the Interior Department released to the public only a two-page summary of Zinke's report.

In September, the Washington Post published a leaked copy of Zinke's detailed recommendations. They included downsizing, changing management plans, or loosening restrictions at a total of 10 monuments, including three ocean monuments.

Trump's Proclamations

Trump's proclamations on Bears Ears and Grand Staircase-Escalante note the long list of objects that the monuments were created to protect, but claim that many of these objects are "not unique," "not of significant scientific or historic interest" or "not under threat of damage or destruction."

As a result, Trump's orders split each monument into smaller units, excluding large tracts that are deemed "unnecessary." Areas cut from the monuments, including coal-rich portions of the Kaiparowits Plateau, will be reopened to mineral leasing, mining, and other uses.

In our view, Trump's justification for these changes mischaracterizes the law and the history of national monument designations.

What the Law Says

The key question at issue is whether the Antiquities Act empowers presidents to alter or revoke decisions by past administrations. The Property Clause of the Constitution gives Congress the power to decide what happens on "territory or other property belonging to the United States." When Congress passed the Antiquities Act, it delegated a portion of that authority to the president so that administrations could act quickly to protect resources or sites that are threatened.

Critics of recent national monuments argue that if a president can create a national monument, the next one can undo it. However, the Antiquities Act speaks only of designating monuments. It says nothing about abolishing or shrinking them.

Two other early land management statutes—the Pickett Act of 1910 and the Forest Service Organic Act of 1897—authorized the president to withdraw other types of land, and specifically stated that the president could modify or revoke those actions. In contrast, the Antiquities Act is silent on reversing past decisions.

In 1938, when President Franklin D. Roosevelt considered abolishing the Castle-Pinckney National Monument—a deteriorating fort in Charleston, South Carolina—Attorney General Homer Cummings advised that the president did not have the power to take this step. (Congress abolished the monument in 1951).

Congress enacted a major overhaul of public lands law in 1976, the Federal Land Policy and Management Act, repealing many earlier laws. However, it did not repeal the Antiquities Act. The House Committee that drafted the 1976 law also made clear in legislative reports that it intended to prohibit the president from modifying or abolishing a national monument, stating that the law would "specifically reserve to the Congress the authority to modify and revoke withdrawals for national monuments created under the Antiquities Act."

Since that time, no president until Trump has attempted to revoke or downsize any national monument. Trump's changes to Bears Ears and Grand Staircase-Escalante depend on an argument that presidential declarations about what a national monument protects are subject to second-guessing by subsequent presidents. These claims run counter to every court decision that has examined the Antiquities Act.

Courts have always been deferential to presidents' use of the law, and no court has ever struck down a monument based on its size or the types of objects it is designed to protect. Congress, rather than the President, has the authority to alter monuments, should it decide that changes are appropriate.

The Value of Preservation

This summer 118 other law professors, as well as California Attorney General Xavier Becerra and a number of conservation organizations, cited our analysis in letters to Sec. Zinke concluding that the president does not have authority to downsize or revoke national monuments.

Although many national monuments faced vociferous local opposition when they were declared, including Jackson Hole National Monument (now part of Grand Teton National Park), over time, Americans have come to appreciate them.

Indeed, Congress has converted many into national parks, including Acadia, the Grand Canyon, Arches and Joshua Tree. These four parks alone attracted more than 13 million visitors in 2016. The aesthetic, cultural, scientific, spiritual and economic value of preserving them has long exceeded whatever short-term benefit could have been derived without legal protection.

Bears Ears and Grand Staircase-Escalante are home to many natural and archaeological wonders, including scenic bluffs, petroglyphs, burial grounds and other sacred sites, and a rich diversity of plant and animal life. The five Native American tribes that supported protecting Bears Ears, led by the Navajo Nation, have vowed to defend the monuments in court. President Trump's effort to scale back these monuments oversteps his authority and is unlikely to stand.

This is an updated version of an article originally published on April 27 by The Conversation. It has been edited for YES! Magazine.

Reposted with permission from our media associate YES! Magazine.

Show Comments ()
Sponsored
TAFE SA TONSLEY / Flickr

Worldwide Clean Energy Investments Hit $333.5 Billion Last Year

Global investment in renewable energy hit $333.5 billion in 2018, the second-highest on record, according to a new analysis from Bloomberg New Energy Finance (BNEF).

That's a 3 percent jump from 2016 and 7 percent short of the $360 billion record set in 2015.

Keep reading... Show less
Renewable Energy

How Blockchain Could Boost Clean Energy

By Jeremy Deaton

Bitcoin, the much-hyped cryptocurrency, made headlines recently for driving a surge in power use. Around the globe, digital entrepreneurs are 'mining' bitcoins by solving complex math problems, using supercomputers to get the job done. Those supercomputers use a ton of power, which largely comes from coal- and gas-fired power plants spewing gobs of carbon pollution.

But while hackers wreak havoc on the climate, blockchain, the bleeding-edge technology behind bitcoin, could one day help clean up the mess. Climate wonks say blockchain has a role to play in the clean-energy economy, helping homeowners sell electricity, allowing businesses to trade carbon credits, and making it easier for governments to track greenhouse gas emissions.

Keep reading... Show less
Abdallah Issa / Flickr

Post-Fire Landslide Problems Likely to Worsen: What Can Be Done?

By Lee MacDonald

Several weeks after a series of wildfires blackened nearly 500 square miles in Southern California, a large winter storm rolled in from the Pacific. In most places the rainfall was welcomed and did not cause any major flooding from burned or unburned hillslopes.

But in the town of Montecito, a coastal community in Santa Barbara County that lies at the foot of the mountains blackened by the Thomas Fire, a devastating set of sediment-laden flows killed at least 20 people and damaged or destroyed more than 500 homes. In the popular press these flows were termed "mudslides," but with some rocks as large as cars these are more accurately described as hyperconcentrated flows or debris flows, depending on the amount of sediment mixed with the water.

Keep reading... Show less
The most notable observation from the count was DeMartino's sighting of the golden crowned kinglet, but in general volunteers found the same species they normally do. (Photo above is of a golden crowned kinglet, but not the one DeMartino spotted.) Melissa McMasters

Birders Get a First Look at How 2017 California Wildfires Affected Wildlife

By Matt Blois

A neighbor knocked on Rick Burgess's door at about 9:30 p.m. to tell him a fire was coming towards his home in Ventura, California. When he looked outside he saw a column of smoke, and the hills were already starting to turn orange. He loaded up his truck with a collection of native plants he was using to write a countywide plant guide, and barely had enough time to get out.

Keep reading... Show less
Sponsored
A learning garden from Kimbal Musk's nonprofit called Big Green. The Kitchen Community

Elon Musk's Brother Wants to Bring #RealFood to 100,000 Schools Across America

Kimbal Musk's nonprofit organization, The Kitchen Community, is expanding into a new, national nonprofit called Big Green, to build hundreds of outdoor Learning Garden classrooms across America.

Learning Gardens teach children an understanding of food, healthy eating and garden skills through experiential learning and garden-based education that tie into existing school curriculum, such as math, science and literacy.

Keep reading... Show less
Drilling fluids spilled into Ohio wetlands during construction of the Rover Pipeline in April. Sierra Club

Rover Pipeline Spills Another 150,000 Gallons of Drilling Fluid Into Ohio Wetlands

Energy Transfer Partners' troubled $4.2 billion Rover pipeline has spilled nearly 150,000 gallons of drilling fluid into wetlands near the Tuscarawas River in Stark County, Ohio—the same site where it released 2 million gallons in April.

The 713-mile pipeline, which will carry fracked gas across Pennsylvania, West Virginia, Ohio and Michigan and Canada, is currently under construction by the same Dallas-based company that built the controversial Dakota Access pipeline.

Keep reading... Show less
Sponsored

Large Dams Fail on Climate Change and Indigenous Rights

Brazil has flooded large swaths of the Amazon for hydro dams, despite opposition from Indigenous Peoples, environmentalists and others. The country gets 70 percent of its electricity from hydropower. Brazil's government had plans to expand development, opening half the Amazon basin to hydro. But a surprising announcement could halt that.

Keep reading... Show less
Jim Henderson / Wikimedia Commons

World's Largest Money Manager: Companies Must Respond to Social and Climate Challenges

The world's largest publicly traded companies must take a more active role in solving social issues or face blowback from investors, the CEO of BlackRock said Tuesday.

"To prosper over time, every company must not only deliver financial performance, but also show how it makes a positive contribution to society," Laurence Fink wrote in his annual letter to CEOs of companies in which BlackRock invests. BlackRock is the world's largest money manager, with more than $6 trillion in assets.

Keep reading... Show less
Sponsored

mail-copy

The best of EcoWatch, right in your inbox. Sign up for our email newsletter!