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The Cedar Mesa Valley of the Gods is part of the 1.35 million-acre Bears Ears National Monument in southeastern Utah, which protects the area's most significant cultural landscapes.
The Cedar Mesa Valley of the Gods is part of the 1.35 million-acre Bears Ears National Monument in southeastern Utah, which protects the area's most significant cultural landscapes.

Zinke Recommends Reducing Bears Ears National Monument

After a 45-day review period, the Secretary of the Interior advised President Trump to redraw the boundary of the controversial national monument鈥攁 decision that will almost definitely be tested in court

Published: 
The Cedar Mesa Valley of the Gods is part of the 1.35 million-acre Bears Ears National Monument in southeastern Utah, which protects the area's most significant cultural landscapes.

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On Monday, Secretary of the Interior Ryan Zinke聽recommended that President Trump reduce the size聽of聽the controversial Bears Ears National Monument in southeast Utah, which聽Barack Obama created in December during the final days of his presidency. If Trump acts on the recommendation, the move to reduce the monument will almost certainly end up in court.

According to a 聽June 12, Secretary Zinke鈥檚 review 鈥渟hows that rather than designating an area encompassing almost 1.5 million acres as a national monument, it would have been more appropriate to identify and separate the areas that have significant objects to be protected to meet the purposes of the Act, including that the area reserved be limited to the smallest area compatible with the proper care and management of the objects.鈥

The memo does say that certain places within the current national monument deserve protection, a list that includes聽鈥渞ock art, dwellings, ceremonial sites, granaries, and other cultural resources that reflect its long historical and cultural significance to Native Americans.鈥澛燘ut Zinke鈥檚 memo suggests that those resources can be better managed if the national monument is reduced in size and聽tribes are given Congressional authority to co-manage it.

In a conference call with reporters, Zinke said he had not yet decided how much to recommend that Bears Ears be reduced in size. Even as he would recommend a reduction, Zinke recommended that Congress step forward and establish other designations where the monument might shrink. Such areas could include National Conservation Areas or National Recreation Areas鈥攄esignations that generally allow more uses and have fewer protections. The goal, he said, was to give Congress more of a say in the process. But聽such designations would also require an act of Congress, and are similar to the legislation that Utah Congressman Rob Bishop tried and failed to pass in previous years.听

Asked why it would work now, Zinke replied, 鈥淚 would give it one word: President Trump.鈥

Encouraging President Trump to undo some protections of the Bears Ears in hopes that a sclerotic Congress would sweep up behind him and add new protections struck one conservationist as dangerously backward. 鈥淚t鈥檚 like not paying your mortgage in hopes of one day planning on winning the lottery,鈥 said Josh Ewing, executive director of Friends of Cedar Mesa.听If Zinke and Trump truly had interest in protecting the Bears Ears, the issue would first go to Congress, which is the only body legally certain to have power over its future鈥攏ot stripped of protection first, then handed to Congress, he said. Now it will all end up in legal limbo due to lawsuits, he said.

Zinke鈥檚 recommendations comes just over a month after Trump made or expanded to 100,000 acres by the Antiquities Act since 1996. Secretary of Interior Ryan Zinke was asked to report back to the president聽in 120 days, after gathering public comments. The order called for a shorter comment period for the more controversial Bears Ears (it ended on聽May 26), followed by an interim report about Bears Ears 鈥渁nd such other designations as the Secretary determines to be appropriate for inclusion鈥澛爓ithin 45 days. That report was revealed Monday.

During his early May 鈥渓istening tour鈥 in Utah, Zinke visited not only Bears Ears, but also Grand Staircase-Escalante National Monument, which had been a considered a target for shrinking or abolishment. The Center for Western Priorities submitted electronically during the 15-day public comment period on Bears Ears. The group said it found more than 1,200 commenters who identified themselves as Utahans. Of those, 88 percent expressed support for keeping the monuments intact, while 11 percent urged Trump to rescind or shrink them.

,聽which is named for a pair of prominent buttes, after several Indian tribes聽asked him to protect the land, including , the monument鈥檚 centerpiece. It is estimated to contain at least 100,000 ancient granaries, cliff dwellings, and rock-art panels, as well as locations considered sacred to some Native American tribes. The designation came after Utah politicians spent more than three years trying to cobble together a lasting solution to decades-long battles over wilderness in eastern Utah聽without success.听

It is no accident that the first executive action regarding public lands comes in Utah. No place in the country is the federal government looked at with more slanted eye than here, and no place have national monuments incited more outrage and resentment among some locals, and politicians. Even though many Utahans applauded Obama鈥檚 declaration of the Bears Ears, the monument infuriated others who felt it was an example of executive overreach. (Many still fume over President Bill Clinton鈥檚 creation of the nearly 1.9-million-acre in southern Utah in 1996.) Utah鈥檚 congressional delegation and state politicians urged Trump to abolish the so-called midnight monument聽upon taking office. The state legislature passed a resolution to that effect in February, which Utah governor Gary Herbert signed.听

In聽response to those efforts, and to other measures taken by Utah鈥檚 state and federal lawmakers that would limit protections of public lands, Outdoor Retailer, a major trade show held twice a year聽in Salt Lake City, announced in February that it will leave Utah. It聽was a significant show of political and economic force by outdoor-industry leaders. The expo brings an estimated $45 million to the state annually.

Many had worried that Trump might completely eliminate Bears Ears, though it wasn鈥檛 clear if there was a legal precedent for such a move. No U.S. president has ever attempted it, according to the , an arm of the Library of Congress. As a result, there has never been a legal ruling on the matter. Several opinions聽dating back decades, however, state that only Congress has that power. In 1938, President Franklin D. Roosevelt considered abolishing聽the Castle-Pinckney National Monument in South Carolina. Roosevelt鈥檚聽attorney general, Homer Cummings, told him he had no authority to do so,聽and Roosevelt decided against trying.听鈥淗owever,鈥 the Congressional Research Service聽, 鈥済iven the silence of the on this specific question, as well as the potential analogy to other presidential executive orders and proclamations, the existence or scope of a president鈥檚 authority to abolish national monuments is still a matter of debate that has not been squarely resolved.鈥澛

Even without completely repealing the monument, any reduction is likely to result in a legal challenge. Before Zinke鈥檚 interim report聽California鈥檚 Attorney General Xavier聽Becerra聽told the Interior Department in an 11-page letter that his office would consider any reductions or removals of monuments illegal and that California would 鈥渢ake any and all legal action necessary鈥 to fight such a move against any of the six monuments under review in that state,聽聽on June 8. While Utah鈥檚 state government is unlikely to sue the government over a reduction of Bears Ears, environmental organizations are likely to take the issue to court.

There is some precedent for reducing national monuments, however.听 in New Mexico, created by Woodrow Wilson and expanded by both Herbert Hoover and Dwight Eisenhower. Kennedy聽also removed an additional 4,000 acres, for a net loss of 1,000, declaring the changes to be in the public interest.

Theodore Roosevelt signed the Antiquities Act in 1906 to help protect Native American sites from looting. The act gives the president the power to declare structures, landmarks, and places 鈥渙f historic or scientific interest that are situated upon the lands owned or controlled by the Government of the United States鈥澛爊ational monuments. Because聽doing so聽requires no congressional consensus, public input, or environmental review, it鈥檚 essentially a quick聽and easy way to protect large swaths of land instead of聽obtaining congressional approval to create a national park, which can be very difficult.

For these reasons, the Antiquities Act聽has been controversial nearly from the start, says James Morton Turner, an associate professor of environmental studies at Wellesley College and author of聽.

Even so, the act has been wielded by conservative and liberal presidents alike. In 2006, for example,聽 off the coast of Hawaii, at the time the largest protected marine environment in the world at 140,000 square miles. Last August, 鈥攁bout six times the size of Wyoming. Obama used the Antiquities Act more than any other president, designating 29 monuments聽and adding expansions to five existing ones. While conservationists applauded the actions as visionary, opponents鈥攗sually GOP politicians in states containing an abundance聽of federal land鈥攁ccused him of abusing his power聽and ignoring the will of locals.

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