Posted on January 24, 2017 by Zach C. Miller
On December 28, 2016, President Obama by Proclamation under the federal Antiquities Act designated 1.35 million acres of federal lands in southeastern Utah as the Bears Ears National Monument. That action culminated nearly a century of efforts to protect this unique, canyon-country site, which is archaeologically rich, ecologically diverse, and the ancestral homeland of a number of southwestern Indian tribes.
Immediately after this designation, the Utah governor and congressional delegation, some local officials, and various conservative pundits railed that the designation was an illegal and inappropriate “federal land grab,” was done without proper public input, will unduly impede traditional tribal and local activities, and can and should promptly be reversed and rescinded by the incoming Trump Administration.
Each of those claims has no factual or legal merit. The most recent Bears Ears proposal was initiated several years ago by local Navajo leaders and formally endorsed by the Navajo Nation and four other tribes whose ancestors inhabited this area, as well as other local and national Indian and conservation groups. It has been thoroughly vetted for several years and was the subject of a number of public meetings throughout 2016, including several local meetings attended by Interior Secretary Jewell. As a result of that extensive public input, the Obama administration excluded over 600,000 acres of initially-proposed lands that contain oil and gas leases, existing and prospective uranium mining sites, limestone quarries, grazing areas, local water supply watersheds, and other objected-to areas. The designation also expressly protects all valid existing rights, preserves access by Native Americans for traditional uses such as sacred ceremonies and gathering plants and firewood, and creates an Advisory Committee of state, local, and tribal representatives and private landowners to provide information and advice to BLM and the U.S. Forest Service in their joint administration of the monument and development of appropriate management and transportation plans. As a result, the principal existing activities that will be restricted within the designated Monument are the ongoing illegal theft and vandalism of federal and tribal archaeological sites.
The Proclamation also uniquely creates a Bears Ears Commission consisting of an official from each of the five Native American tribes with historic ties to the area, to provide guidance and recommendations on the management of the Monument and related plans. This is the first, and long-overdue, instance of Native American tribes being directly involved in coordinating with federal agencies to manage a monument that protects sacred sites on their ancestral homelands.
Regarding whether this action is a proper use of the Antiquities Act, it is widely acknowledged that this area contains one of the densest and most significant concentrations of archaeological and paleontological sites and specimens in North America. It is also uncontroverted that historic sites in the area have been extensively looted and vandalized over the last century. The FBI has conducted major enforcement actions against illegal “pot-hunters” in this area, including as recently as 1986 and 2009. Complaints that state and local officials can better protect against such theft and vandalism ignore that most illegal pot-hunters have been local denizens and that, until fairly recently, the University of Utah museum was a major purchaser of the pilfered artifacts. Providing federal protection to these highly-jeopardized antiquities on federal public lands is precisely what the Antiquities Act was designed and intended to do. Far from being improper, this protective measure is long overdue.
In terms of timing and process, the Administration waited patiently until a long-pending legislative alternative proposal to protect the area failed in Congress. That bill, introduced by Utah Congressman R. Bishop and dubbed the Public Lands Initiative (PLI), would have put 1.4 million acres into two National Conservation Areas (NCAs) and a separate wilderness area, but it provided less protection and increased state and local control over uses in the NCAs, with no direct tribal involvement. But that bill failed to move through Congress before it adjourned. In addition to waiting for completion of that legislative process, by reducing the monument designation from the initially proposed 1.9 to the final 1.35 million acres, the Obama Administration also largely aligned the boundaries of the final monument designation with those of the failed PLI proposal and excluded the central areas of objection.
Regarding the proposal for the incoming Trump Administration to administratively rescind this designation, there is no legal authority for the President to do so. The Antiquities Act authorizes a President to designate an area as a national monument on federal lands when necessary to protect the appropriate sites and resources. It does not authorize a President to rescind a designation made by some predecessor, and no President has ever done so in the 111-year history of the Act. The Attorney General in 1938 formally opined that the Act does not provide for such rescission, and nothing has changed that would alter that conclusion. The Congressional Research Service recently confirmed the absence of any such authority or precedent. Republican Party members would also do well to recall that the Antiquities Act was signed in 1906 by its own conservation hero, Teddy Roosevelt, who used it to designate 18 monuments in three years, seven of which later became popular national parks, including at the Grand Canyon. All but three presidents since that time have done the same. As was the case with all those actions by Teddy and others, after all the immediately-following outrage and uproar, this measured Bears Ears designation will no doubt later be acknowledged as a brave, innovative, and critical action to protect this long-vandalized and currently-threatened area.
In sum, the recent designation of the Bears Ears Monument was the right decision at the right time for the right reasons, and there is no legal basis to rescind or restrict it without an act of Congress. The incoming Administration and Congress should not heed recent partisan, emotional calls to try to undo it and should instead work with the new tribal Commission and all affected stakeholders to develop a fair and appropriate management plan for the new Monument.