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creates a national monument, the area is "reserved" for the protection of sites and objects there, and may also be "withdrawn," or exempted, from laws that would allow for mining, logging or oil and gas development.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.
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 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.
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.
Reposted with permission from our media associate YES! Magazine.
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History Reverberates on Native Lands<p>Native communities in North America have been disrupted and displaced for centuries. Many face long-standing food and water <a href="http://www.nativepartnership.org/site/DocServer/2017-PWNA-NPRA-Food-Insecurity-Project-Grow.pdf?docID=7106" target="_blank">inequities</a> that are further complicated by this pandemic.</p><p>On the Navajo reservation, which covers more than 27,000 square miles in Arizona, Utah and New Mexico, 76% of households already <a href="https://www.researchgate.net/publication/235390130_High_levels_of_household_food_insecurity_on_the_Navajo_Nation" target="_blank">have trouble affording enough healthy food</a>, and the nearest grocery store is often hours away. COVID-related restrictions have further curtailed access to food supplies.</p><p>Clean water for basic sanitary measures like hand-washing is also scarce. Native Americans are <a href="http://uswateralliance.org/sites/uswateralliance.org/files/Closing%20the%20Water%20Access%20Gap%20in%20the%20United%20States_DIGITAL.pdf" target="_blank">19 times more likely</a> to lack indoor plumbing than whites in the U.S. Nearly one-third of Navajo households <a href="https://www.nbcnews.com/news/us-news/coronavirus-hits-indian-country-hard-exposing-infrastructure-disparities-n1186976" target="_blank">lack access to running water</a>.</p><p>Many <a href="https://www.cdc.gov/mmwr/volumes/69/wr/mm6915e3.htm" target="_blank">health issues</a> that can increase COVID-19 mortality rates occur at high levels among Native Americans. These <a href="http://www.ncai.org/news/articles/2020/03/18/the-national-congress-of-american-indians-calls-for-more-attention-to-covid-19-impacts-to-indian-country" target="_blank">underlying</a> and <a href="https://doi.org/10.1016/S0140-6736(20)30893-X" target="_blank">preexisting</a> conditions – things like hypertension, diabetes, obesity and cardiovascular disease – are <a href="https://www.cdc.gov/mmwr/volumes/69/wr/mm6913e2.htm" target="_blank">linked to diet</a> and stem from <a href="https://www.oupress.com/books/15107980/indigenous-food-sovereignty-in-the-united-sta" target="_blank">disruption and replacement</a> of Indigenous food systems.</p>
High Exposure Rates<p>These factors have clear health impacts. On the Navajo reservation, for instance, through May 27, 2020, <a href="https://www.navajo-nsn.gov/News%20Releases/OPVP/2020/May/FOR%20IMMEDIATE%20RELEASE%20-%201620%20recoveries_102%20new%20cases%20of%20COVID-19_and%20one%20more%20death%20reported.pdf" target="_blank">4,944 people</a> out of a population of 173,000 had tested positive for COVID-19, and 159 had died.</p><p>This infection rate per capita exceeds those in hot spots such as <a href="https://www.forbes.com/sites/alexandrasternlicht/2020/05/19/navajo-nation-has-most-coronavirus-infections-per-capita-in-us-beating-new-york-new-jersey/#11a4fac08b10" target="_blank">New York and New Jersey</a>. Importantly, however, it may also reflect a much <a href="https://www.sltrib.com/news/2020/04/19/navajo-nation-has-higher/" target="_blank">more proactive approach to testing</a> on reservations than in many other jurisdictions.</p><p>The fact that elderly people are especially vulnerable to COVID-19 could worsen the pandemic's effects in Indian Country. Elders are the <a href="https://ais.washington.edu/research/publications/spirits-our-whaling-ancestors" target="_blank">keepers of traditional knowledge, tribal languages and culture</a> – legacies whose loss already threatens the persistence of indigenous communities.</p><p>Elders also play key roles in preserving traditional plant and medicine knowledge. In the absence of COVID-19 interventions from Western medicine, many elders have been called on to perform healing practices, which increases their exposure risk.</p>
Little Help From Federal and State Governments<p>Many tribal members rely on the federal government's <a href="https://www.ihs.gov/" target="_blank">Indian Health Service</a> for health care. But <a href="https://theconversation.com/tribal-leaders-face-great-need-and-dont-have-enough-resources-to-respond-to-the-coronavirus-pandemic-134372" target="_blank">lack of capacity</a> at the agency has hampered its response. Budget shortfalls, <a href="https://indiancountrytoday.com/news/report-grossly-inaccurate-data-used-to-divvy-up-relief-funds-for-tribes-9qkkHmeXj0uhRC42mXYqCA" target="_blank">inaccurate data</a>, the challenges of providing <a href="https://indiancountrytoday.com/news/coronavirus-risk-is-compounded-by-the-rural-DC-rMTUzzE6WDGee8jbENQ" target="_blank">rural health care</a> and ongoing personnel shortages in IHS clinics are compounded by staff being <a href="https://navajotimes.com/reznews/dikos-ntsaaigii-doodaa-nation-musters-defense-against-covid-19/" target="_blank">pulled away</a> to fight the virus in large cities.</p><p>And while many states have raised frustrations with the Trump administration's unwillingness to distribute protective supplies from the <a href="https://www.vox.com/recode/2020/4/3/21206170/us-emergency-stockpile-jared-kushner-almost-empty-coronavirus-medical-supplies-ventilators" target="_blank">dwindling national stockpile</a>, IHS and tribal health care authorities <a href="https://www.azpm.org/p/home-articles-news/2020/3/17/167874-bill-calls-for-more-tribal-community-access-to-federal-stockpile-of-medical-supplies/" target="_blank">never had access</a> to the stockpile at all.</p><p>Although the federal government has begun <a href="https://www.hhs.gov/about/news/2020/05/22/hhs-announces-500-million-distribution-to-tribal-hospitals-clinics-and-urban-health-centers.html" target="_blank">distributing relief funds</a> to IHS agencies, there have been serious problems with the accompanying supplies. The Navajo Nation has received <a href="https://www.indianz.com/News/2020/05/22/propublica-former-trump-aide-provided-fa.asp" target="_blank">faulty masks</a>, and a Seattle Native health center asked for tests but <a href="https://www.nbcnews.com/news/us-news/native-american-health-center-asked-covid-19-supplies-they-got-n1200246" target="_blank">received body bags instead</a>.</p><p>Meanwhile, federally imposed limits on tribal sovereignty have obstructed tribal governments' efforts to deal with the pandemic themselves. Federal and state governments are <a href="https://www.seattletimes.com/seattle-news/makah-tribe-fights-coronavirus-with-self-reliance-and-extreme-isolation/" target="_blank">challenging tribes' jurisdictional authority</a> to <a href="https://www.azfamily.com/news/mayor-of-page-accused-of-racist-social-media-comment-toward-navajo-nation-president/article_e2e6efd6-8db4-11ea-a8a2-7f6976d702f6.html" target="_blank">close borders to tourists</a> who may carry the virus. South Dakota's governor has <a href="https://www.theguardian.com/us-news/2020/may/14/sioux-coronavirus-roadblocks-south-dakota-governor" target="_blank">threatened legal action</a> against two tribes who set up checkpoints to monitor incoming traffic on their reservations.</p>
Environmental Injustices on Native Land<p>Energy development and resource extraction have had <a href="https://www.haymarketbooks.org/books/898-all-our-relations" target="_blank">disproportionate impacts</a> on tribes for many years. Today, many Native American leaders worry that ongoing energy production – <a href="https://www.ncsl.org/research/labor-and-employment/covid-19-essential-workers-in-the-states.aspx" target="_blank">an "essential" activity under federal guidelines</a> will bring outsiders into close contact with reservation communities, worsening COVID risks.</p><p>The owners of the Keystone XL oil pipeline have announced that they intend to continue construction, which will bring an influx of workers along the proposed route through Montana, South Dakota and Nebraska. The Rosebud Sioux Tribe in South Dakota and Fort Belknap Indian community in Montana have filed for a <a href="https://www.narf.org/keystone-xl/" target="_blank">temporary restraining order</a>, and a key permit for the pipeline was <a href="https://www.democracynow.org/2020/4/16/headlines/us_judge_revokes_crucial_permit_for_keystone_xl_pipeline" target="_blank">revoked in April 2020</a>, but work continues at the U.S.-Canada border.</p><p>Construction is accelerating on the <a href="https://www.azcentral.com/story/news/politics/border-issues/2020/03/17/border-patrol-waives-laws-border-wall-construction-southern-arizona/5063618002/" target="_blank">southern border wall</a>, which bisects the <a href="http://www.tonation-nsn.gov/" target="_blank">Tohono O'odham reservation</a> in Arizona and Mexico. The Trump administration has <a href="https://www.thenation.com/article/politics/border-coronavirus-military-immigration/" target="_blank">increased patrols at the border</a>, despite the tribe's concern that the patrols' presence is <a href="https://www.usatoday.com/story/news/nation/2020/04/06/coronavirus-cbp-160-cases-covid-19-officers-agents/2958736001/" target="_blank">spreading coronavirus</a> on the reservation.</p><p>And in Bristol Bay, Alaska, a salmon fishing season that brings in thousands of temporary workers is <a href="https://indiancountrytoday.com/news/it-s-hard-when-you-love-something-xlS49l2N20KZjqumwfzZfQ" target="_blank">set to open in June</a> because the federal government has also deemed commercial fishing "<a href="https://www.cisa.gov/sites/default/files/publications/CISA-Guidance-on-Essential-Critical-Infrastructure-Workers-1-20-508c.pdf" target="_blank">essential critical infrastructure</a>." Many local Native villages depend on the fishery for income, but have nonetheless pleaded with state regulators to <a href="https://indiancountrytoday.com/news/urgent-calls-to-close-the-massive-bristol-bay-fishery-8lYsGkUeDUyCBW7FMwpSfA?fbclid=IwAR1710u4rQnriq_MgH2ueQxOFtfGiGiH8I2ZdJRCZS9f28Zl-JNkPLpnzZo" target="_blank">cancel the season</a>. The regional hospital has just four beds for possible COVID-19 patients.</p>
Bold Action in Native Communities<p>Native communities are taking decisive action to reduce the spread of COVID-19. They're imposing aggressive <a href="https://www.nytimes.com/2020/04/09/us/coronavirus-navajo-nation.html" target="_blank">quarantine</a> measures like lockdowns, curfews and border closures. Communities are <a href="https://www.theguardian.com/us-news/2020/mar/18/covidcoronavirus-native-american-lummi-nation-trailblazing-steps" target="_blank">ramping up health care capacity</a> and elder support services, and banishing nontribal members who <a href="https://rapidcityjournal.com/news/local/oglala-sioux-council-banishes-non-member-with-covid-19-from-reservation/article_60b665c3-9d1b-5d48-a576-51774e4fb41a.html" target="_blank">violate travel restrictions</a>.</p><p>Other strategies include helping hunters <a href="https://indiancountrytoday.com/news/ammo-fuel-for-hunters-to-feed-others-Ki3zK6du-ky-UogoB9-aNQ" target="_blank">provide traditional foods</a> to their communities, <a href="https://ndncollective.org/indigenizing-and-decolonizing-community-care-in-response-to-covid-19/" target="_blank">mobilizing to support tribal health care workers</a>, and <a href="https://www.ehn.org/coronavirus-native-americans-2645923635.html" target="_blank">linking the pandemic and the climate crisis</a>. Looking ahead to a post-COVID future, we believe one priority should be attending to <a href="http://www.beacon.org/As-Long-as-Grass-Grows-P1445.aspx" target="_blank">front-line environmental justice struggles</a> that center tribes' sovereignty to act on their own behalf at all times, not just during national crises.</p>
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