Repeal, reduce or retain?: Bears Ears, Canyons of Ancients to be scrutinized

by Gaily Binkly and David Grant Long | May 8, 2017 9:05 pm

PRESIDENT DONALD TRUMP FLANKED BY SECRETARY OF THE INTERIOR RYAN ZINKE AND VICE PRESIDENT MIKE PENCE WHILE SIGNING THE ANTIQUITIES ACT EXECUTIVE ORDER ON APRIL 26. pHOTO BY

President Donald Trump, flanked by Secretary of the Interior Ryan Zinke and Vice President Mike Pence, signed the Antiquities Act Executive Order on April 26. The order directs Zinke to consult local governments
and tribes in order to review national monuments created by the Antiquities Act since Jan. 1, 1996, that are greater than 100,000 acres in footprint, and report back to the president on suggested legislative or executive action within 120 days. Photo by Tami A. Heilemann/Creative Commons

For years after Canyons of the Ancients National Monument was designated in 2000, signs stubbornly declaring “No National Monument” were scattered around Montezuma County, to the puzzlement of area tourists.

Over time, they deteriorated and were taken down, but opposition to the monument lingers in some quarters among people who believe its proclamation resulted in restrictions to grazing, road access, and oil and gas development on the 170,000-acre landscape west of Cortez.

Now, suddenly, it looks as though monument opponents have a chance to see their dream realized – a reversal of the designation.

On April 26, President Trump signed an executive order calling for a review of all national monuments larger than 100,000 acres that were created over the past 21 years. The White House later released a list of 24 national monuments across the nation – from 1996’s Grand Staircase-Escalante in southern Utah to 2016’s Bears Ears in far southeastern Utah – that are to be scrutinized by the Interior Department to ascertain whether their size and scope are in line with the “intention” of the 1906 Antiquities Act.

Canyons of the Ancients is on the list.

AERIAL VIEW OF BEARS EARS NATIONAL MONUMENT WHICH ENCOMPASSES 1.35 MILLION ACRES

The new Bears Ears National Monument encompasses 1.35 million acres of rugged canyon country. Photo by Gail Binkly.

The executive order also provides that sites smaller than 100,000 acres “where the Secretary determines that the designation or expansion was made without adequate public outreach and coordination with relevant stakeholders” could be reviewed.

Ever since President Obama’s declaration of the 1.35-million-acre Bears Ears monument late in his final term, the vast majority of Utah’s elected leaders have been beating the drums for Trump to overturn that designation – and to whittle down the size of the 1.9-million-acre Grand Staircase monument as well.

But Canyons of the Ancients – which is now a fixture of the local landscape and famed for its world-class singletrack bike trails in Sand and East Rock canyons – seems an unlikely target for a rollback.

Still, conservation groups say it could be in the crosshairs, along with any of the rest of the two dozen monuments affected by the executive order.

“This is a full attack on all of them, because if you start to pull the thread on any of these monuments, the same underpinning statutes protect them all,” said Christy Goldfuss, vice president for energy and environment policy with the Center for American Progress Action Fund, in a media conference call on April 25.

“None of the monuments from that time forward [1996] should feel they are not being reviewed or considered.”

Sen. Martin Heimrich, D-N.M., agreed. “I worry that this is a very broad-brush attempt and any monument that’s on this list, people should be duly concerned about,” he said in the same phone call.

Behind closed doors

The Colorado Tourism Office voiced guarded concern about the review, saying in a release that the state’s 12 national parks and monuments, including Canyons of the Ancients, “are treasures and major tourism draws.”

“Canyons of the Ancients attracts 30,000 visitors per year to a rural area of Colorado,” the release said.

But it also said that, after a meeting with Interior Secretary Ryan Zinke, Colorado Gov. John Hickenlooper was “confident that the federal administration will work with the State of Colorado and our federal delegation to ensure our national monuments remain protected.”

The tourism office then said it is “optimistic. . .that it is unlikely Colorado’s monuments will be reviewed.”

Whatever the fate of Canyons of the Ancients, it’s clear that the two Utah monuments on the list will be seriously considered for possible changes.

Certain other aspects of the executive order, however, are not at all clear, including who exactly will be conducting it. There is no provision for a public process, Goldfuss said.

“The behind-closed-door review will not include the public and will let the industry pick and choose the areas on land and water that they want most,” she said. “It is not possible to change one monument through this closed-door process without undermining all of them.”

Another thing that is hazy is whether the president, acting alone, can “undeclare” a monument.

Mark Squillace, director of the Natural Resource Law Center at the University of Colorado Law School, says the answer “is quite clearly no.”

Speaking during the April 25 conference call, he said the Property Clause of the Constitution sets out the authority of Congress to manage public lands. Congress can delegate that power to the executive branch and did so with the 1906 Antiquities Act, which gives the president the authority to create national monuments.

However, Squillace said, the delegation of authority “is essentially limited to the terms of the statute that authorizes the president’s action.” And the Antiquities Act “does not include any authority to rescind or modify a monument created by a predecessor.”

This view was supported by a legal opinion written in 1938 by the attorney general for Franklin Roosevelt, who unequivocally stated that the act did not grant the president such ability, Squillace said.

Any doubt about that, he continued, was removed with the passage of the 1976 Federal Land Policy and Management Act, which contains language essentially clarifying that Congress alone has the authority to modify or revoke national monuments.

Squillace said although a few presidents (none since Dwight Eisenhower) have unilaterally changed the boundaries of monuments, their actions were never challenged, so there are no court decisions regarding the legality of those actions.

Congress clearly can alter or undo national monuments. But whether even the Republican-controlled House and Senate would pass legislation rescinding monuments – which are popular not only with conservationists, but recreationists, sportsmen, and the outdoor industry – is uncertain.

‘Troubling’

Opposition to national monuments generally stems from three causes:

CLIMATE MARCH PROTEST SIGN REFERENCES NATIONAL MONUMENTS

Protecting national monuments was a theme on many signs carried during the Climate March in Cortez on April 29. Photo by Gail Binkly.

In Utah’s San Juan County, home to the new Bears Ears monument, opposition to the designation is based on all three of those factors.

Utah’s citizenry is deeply Republican and conservative, except in and around Salt Lake City and on American Indian reservations. Utahans in general loathed both Bill Clinton, creator of Grand Staircase, and Barack Obama, who designated Bears Ears, and they remain incensed about both monuments.

Utah Congressmen Rob Bishop and Jason Chaffetz had worked frantically for the creation and passage of a sweeping bill called the Public Lands Initiative that could provide a compromise alternative to stave off the Bears Ears declaration. But in the end, the PLI bill was judged too friendly to industry and too dismissive of the role and concerns of Native Americans regarding the Bears Ears landscape, to which a number of tribes have long-standing ties.

The Bears Ears Intertribal Coalition – which includes the Navajo, Hopi, Ute Mountain Ute, Zuni, and Ute Indian tribes – supported the monument designation, which calls for strong tribal involvement in managing the area.

After Trump’s executive order, both the Navajo Nation Council and the Office of the President and Vice President issued statements opposing any rollback of Bears Ears.

“This has been a collective effort for tribal nations which has gone back into many presidential administrations,” said President Russell Begaye in the statement. “It was only after heavy consultation from tribal nations that the Obama Administration moved on the designation. . . .This designation supports tribal sovereignty. We are asking President Trump and Secretary Zinke, in their review of the designations, to uphold tribal sovereignty as mandated through our treaties with the federal government.”

In the April 25 conference call, Shaun Chapoose, chairman of the Ute Indian Tribe Business Committee, called Trump’s order “an attack once again on Indian Country.”

“We constantly hear this barrage of how the states feel they weren’t consulted, they were slighted, but in all of this the state never took the time to talk to the tribes themselves,” he said. If they had offered more consideration to tribal input, the PLI legislation might have had a different outcome, Chapoose said.

“So here we go again, the same situation. We’re going to send a task force out to start having discussion of what and how best to preserve something that actually involves me, a Native American with an ancestral tie, a historical tie, to this land, and the other four tribes, and yet we’re still left out of the conversation. It’s troubling.”

‘Industrial Tourism’

During the heated discussions over whether to create a national monument in the Bears Ears area, proponents argued that it is threatened by widespread looting of archaeological resources as well as potential uranium-mining and oil and gas development.

Opponents said those extraction prospects are unlikely but warned that monument status could imperil traditional uses such as wood-cutting and herb-gathering, though those are protected in the proclamation language. Both sides accused the other of fearmongering.

Supporters of traditional extractive industries remain upset about the creation of Grand Staircase because it locked up sizable coal reserves.

On the other hand, Kristina Waggoner, vice president of the Boulder-Escalante Chamber of Commerce, believes Grand Staircase has been an economic boon. Her family owns a small business in Escalante, gateway to the monument, she said during the April 25 call.

“My business has seen growth every year since we bought it 10 years ago,” she said. Revenue increased steadily over the last 10 years, and the business now has 25 employees, up from the original six.

The tiny town has gained a new medical clinic, two new hotels, a hardware store, and other businesses. “I directly relate this growth to the Grand Staircase-Escalante National Monument,” Waggoner said, her voice choked with emotion, “and that’s why I’m here today to support the monument, and for my 3-year-old son. I want him to have these experiences I’ve had. Once our land is gone, it’s gone forever.” But some observers worry that monument designations ultimately prove detrimental to remote areas because they attract so many new visitors without adding much on-the-ground protection.

Recreation is touted as a “green” economic- development alternative to mining and fossil-fuel extraction, but it can also take a heavy toll on the land, they point out.

“The Unspoken Threat to the [Bears Ears] area has always been Industrial Tourism,” wrote Jim Stiles of Monticello, Utah, co-publisher of the online Canyon Country Zephyr, in a recent issue: “For months prior to the December 28 announcement, monument proponents were silent on the issue and the impacts they might create. For groups like SUWA and the Grand Canyon Trust, this comes as no surprise – they haven’t acknowledged the impacts from an Industrial Recreation economy in almost two decades.

“And yet it was the Grand Canyon Trust’s Bill Hedden who warned in 1998 that, ‘Everywhere we looked, natural resource professionals agreed that industrial- strength recreation holds more potential to disrupt natural processes on a broad scale than just about anything else’.”

Wendy Black of Blanding, Utah, a staunch opponent of the Bears Ears designation, says visitation to the rugged area has already soared and there is no additional protection yet.

“It’s going to take a long time to put the infrastructure in place,” she told the Free Press.

Black and her husband own a few vacation rentals. “I can attest that tourism is up by tenfold,” she said. “It’s crazy.”

On a recent day, Black, an avid hiker, found two people lost in the sprawling landscape and had to show them the way out. “A lot of people don’t respect the land, they don’t understand it. They’re treating it like a playground,” she said.

She said she recently came across people with metates and manos, ancient cultural artifacts, they’d picked up. “A lot of people aren’t coming here because they love the area and want to protect it,” she said. “They want to find a little treasure. It’s human nature. If you find an arrowhead on the ground, very few people are going to walk over it.”

Although national-monument designation is supposed to bring additional resources such as more staff and educational signs, it won’t be enough, Black believes. She said Grand Staircase-Escalante National Monument has never been fully staffed. And monitoring people’s behavior across a landscape with more than 1 million acres is impossible.

“Fifty rangers couldn’t patrol this adequately,” Black said.

At one point she thought it would have been acceptable if Obama had designated a much-smaller monument in the ruins-rich area of Cedar Mesa, a portion of Bears Ears. But now she hopes Trump, or Congress, will rescind the entire monument designation.

“It would still be public land,” she said. “People could still come here, but it wouldn’t be so publicized.”

She worries the coming boom in tourism will change the easygoing, small-town feel of Blanding, even though she knows she stands to benefit from it economically.

“Money isn’t everything,” she said. “I hope in five years this monument is a forgotten place.”


Also on the list

Besides two national monuments in Utah and one in Colorado, the following monuments in the Four Corners states of Arizona and New Mexico are on the list for review:

• Grand Canyon-Parashant (Arizona, 1 million acres, designated in 2000)
• Sonoran Desert (Arizona, 486,000 acres, 2001)
• Vermilion Cliffs (Arizona, 280,000 acres, 2000)
• Ironwood Forest (Arizona, 129,000 acres, 2000)
• Organ Mountains-Desert Peaks (New Mexico, 496,000 acres, 2014)
• Rio Grande del Norte (New Mexico, 243,000 acres, 2013)

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