The Battle to Save Bears Ears Wins Round 1

The Trump Administration recently suffered a setback in its attempt to dismantle Bears Ears and Grand Staircase-Escalante National Monuments, two parks created under the Antiquities Act by President Barak Obama.

While both parks are in Utah, the Trump Administration’s move to unmake the parks and the subsequent lawsuits are being carefully watched by park advocates throughout the West, because the outcome of Hopi Tribe vs. Donald Trump is expected to have long-reaching implications for federal lands all over the country, including Santa Monica Mountains National Recreation Area.

In 2017, as one of his first acts as president, Donald Trump stripped nearly two million acres of public land from the monuments. It was the first part of a systematic dismantling of protections for public lands that now stands at 13.5 million acres and includes more than 1.3 million acres in California’s Mojave Desert.

Bears Ears and Grand Staircase-Escalante represent one of the largest remaining undeveloped, road-free areas of wilderness in the contiguous United States. The national monuments are part of the ancestral homeland of the Navajo Nation, Hopi Tribe, Ute Indian Tribe, Ute Mountain Ute Tribe, and the Pueblo of Zuni. They are home to thousands of cultural heritage, archaeological and paleontological sites, but they also have mining and oil assets that the Trump Administration was eager to exploit.

Trump’s proclamation slashed Bears Ears by nearly 85 percent, leaving just two small non-contiguous parks. It was the largest rollback of federal public land protection in U.S. history, and was instantly met by multiple lawsuits filed by Native American Tribes, conservation organizations, outdoor recreation advocates, and other stakeholders. 

The lawsuits were consolidated into one suit—The Hopi Tribe vs. Donald J. Trump—that argues Trump’s attempt to revoke and replace the national monument was a violation of the United States Constitution and the Antiquities Act of 1906.

 “No President has ever previously sought to abolish [a national monument] by Proclamation because the Antiquities Act does not authorize the President to do so,”  the lawsuit states. “The President has exceeded the limited authority delegated to his office, and violated the Antiquities Act and the separation of powers established in the Constitution. Further, the President was plainly aware that he lacked the authority to revoke a monument.”

In response, the Trump Administration filed a motion to dismiss the lawsuits, arguing that the tribes and environmental advocacy groups “lacked standing” to challenge the President’s decision. 

On September 30, US District Court Judge Tanya S. Chutkan rejected the administration’s argument. The court ruling clears the way for the lawsuit to move forward.  

The judge also ordered a status conference “to discuss an expedited, coordinated schedule for the filing of an amended complaint and the subsequent briefing.”

The expedited schedule is being hailed with cautious optimism by activists, who have watched the Trump Administration launch a feeding frenzy of oil leases on more than 51,000 acres of land near the greatly diminished park, and rush through a management plan that would open the 85-percent carved off the original Bears Ears National Monument to oil and gas leases; roads; uranium mining; and “chaining,” a scorched earth clear-cutting process to convert forest and scrub land for cattle grazing.

The management plan has been denounced by environmental groups. “If we win the legal fight to restore Bears Ears National Monument, this plan will just be 800 pages of wasted effort,” said Heidi McIntosh, managing attorney of Earthjustice’s Rocky Mountains office. 

Earthjustice represents nine of the groups challenging the President’s actions: the Wilderness Society, the National Parks Conservation Association, the Sierra Club, the Grand Canyon Trust, Defenders of Wildlife, Great Old Broads for Wilderness, Western Watersheds Project, WildEarth Guardians, and the Center for Biological Diversity. The Natural Resources Defense Council and Southern Utah Wilderness Alliance are the co-plaintiffs in the lawsuit, represented by counsel from those organizations.

“When Trump went after our national monuments, he thought he could ride roughshod over this country’s cultural and natural heritage, and auction off iconic public lands that belong to all of us,” McIntosh said. “But this remains a country of laws. We will work relentlessly until we ensure that Bears Ears and Grand Staircase are protected forever as they were meant to be.”

The move to quickly sell off federal lands and strip the parkland of environmental protections has drawn extensive criticism from tribal groups, conservationists and Utah’s tourism industry. Tribal groups have blasted the Trump Administration for failing to protect cultural resources that include sacred sites and burials. Other resources at risk include key fossil beds, critically important watersheds and habitat for threatened and endangered animals.

For Southern Utah Wilderness Alliance legal director Stephen Bloch, a court date for the lawsuit can’t come soon enough. 

“The day of reckoning for President Trump’s unlawful attack on the Grand Staircase-Escalante and Bears Ears national monuments drew closer when Judge Chutkan issued her decision denying the United States’ motions to dismiss these cases,” Bloch wrote in a statement. “We intend to pursue these cases until these remarkable cultural, scientific and wild red rock landscapes are restored to their full glory.”

As the court case moves forward, many of the Tribal groups and non-profit conservation organizations involved in the suit, and in the fight to block the Trump Administration from weakening or eliminating other key environmental protections, have joined together to do their own lobbying, urging companies involved in mining or other extractive activities and the banks that fund them, not to conduct or finance any new or expanded commercial activity on any public lands and waters that were formerly or are currently protected.

“President Trump’s Department of Interior has been a catastrophe for our iconic American wildlife since day one,” wrote Marty Irby, Executive Director of Animal Wellness Action, announcing the newly formed coalition.

“Pillaging our nation’s public lands to line the pockets of oil barons and ranchers beholden to industrial agriculture will have disastrous consequences for generations to come,”stated Davis Filfred, Chair of the Utah Diné Bikéyah Board. “As Indigenous People of America, we are stewards of ancestral landscapes like Bears Ears and other cultural landscapes currently under threat from corporate hands. We ask the broader American public to stand with us to protect public lands—which starts with the recognition that Indigenous Peoples have always protected and will continue to protect their homelands.”

 

Suzanne Guldimann
Suzanne Guldimann

Suzanne Guldimann is an author, artist, and musician who lives in Malibu and loves the Santa Monica Mountains. She has worked as a journalist reporting on local news and issues for more than a decade, and is the author of nine books of music for the harp. Suzanne's newest book, "Life in Malibu", explores local history and nature. She can be reached at suzanne@messengermountainnews.com

2 Comments
  1. Grand Staircase Escalante was created by President Clinton, not President Obama. Clinton designated it in September 1996. Also, Grand Staircase was found to be valid at 1.9 million acres by the courts in 2004. thus the legality of that monument is settled. Once the courts rule a monument is valid, only Congress can then shrink or undo it. the president can expand monuments, per a pair of 1970s Supreme Court decisions, but shrinking monuments is reserved for Congress alone.

    Presidents, prior to the 1970s, could shrink monuments, using implied powers identified by the Supreme Court in a 1915 case called Midwest Oil, which became the so-called ‘Midwest Oil doctrine’. Presidents would shrink monuments, here and there, for about 50 years after the Supreme court decision, although Taft had shrunk a couple monuments prior to that decision. Monument reductions were usually small, ranging from hundreds of acres to a couple thousand acres. The only very large reduction occurred in 1915, when President Wilson cut the 640000 acre Mount Olympus National Monument in Washington nearly in half, slicing about 300000 acres off. Wilson however made sure that the Roosevelt elk and its habitat – which the monument was created to protect,-was not affected by the change, and there was no court challenge to test the legality of his move. Congress added the land back in in 1938 when it upgraded Mount Olympus to a national park.

    The last president to shrink a monument under Midwest Oil was Kennedy, when he trimmed off nearly 4000 acres off of Bandelier National Monument in New Mexico in 1963. In 1976, Congress passed the Federal Land Policy and Management Act, which repealed scores of old conservation laws, with the notable exception of the Antiquities Act. In the law Congress repealed the Midwest Oil decision, eliminating the presidents implied powers to shrink monuments. Congress also barred the Interior Secretary from making any changes to national monuments, in other words the Interior Secretary cannot recommend that a monument be shrunk.

    Thus then -Secretary Zinke’s recommendation to change Grand Staircase and Bears Ears, and several other monuments, were illegal, as was President Trump’s acting on them. What one president creates, another president may not uncreate, or significantly reduce. Trump cutting 1.15 million acres out of Bears Ears, basically undoes the monument in everything but name. Any changes to monuments, must protect the objects and sites the monument was created to protect, but the sheer size of the reductions make that impossible.

    Further, unlike Wilson, no care was taken that the changes did not impact the ruins and artifacts and habitat , and the current management plans are geared towards allowing oil and gas and other extractive uses, which monuments preclude. The management plans are basically an attempt to allow oil and gas drilling before the courts act. However, since the initial action is illegal, any subsequent action, such as management plans, or leases, are null and void. any mining and gas exploration will be voided by the court overturning the reductions, and the companies will be out whatever money they spent on those leases.

    the courts holding that Bears Ears is valid at 1.35 million acres and Grand Staircase at 1.9 million acres , will block future presidents from doing this in the future, and make clear that only Congress can shrink monuments. Presidents can expand monuments, but that is the only modification power left to the president after FLPMA.

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