Native American tribes spent decades trying to get the federal government to protect their historic lands in Utah from desecration and abuse. Their hard work finally paid off when President Barack Obama last year agreed to turn 1.35 million acres of land in the southeastern part of the state into the new Bears Ears National Monument.
But President Donald Trump made revoking the designation — or at least reducing the size of the national monument — a top priority upon entering the White House. After years of struggling to gain protections for the land, Native Americans are once again mobilizing a defense of Bears Ears — and if the president chooses to tamper with the national monument designation, they’re confident they would win in court.
Simply put, presidents lack the authority to shrink the size of a monument, according to Mark Squillace, a professor of law at the University of Colorado Law School and the former director of its Natural Resources Law Center. When Congress delegated power to the president to reserve land as national monuments under the Antiquities Act, it did not include the power to make modifications to the monument or revoke the monument’s status, he told ThinkProgress.
Squillace is not prepared to call a legal challenge to any potential threat to Bears Ears “a slam-dunk case.” But he emphasized that efforts to abolish or diminish national monuments are powers reserved to Congress.
The Trump administration appears to believe otherwise. In an interim report released last week, Interior Secretary Ryan Zinke recommended that Trump significantly reduce the size of Bears Ears National Monument, an area of land that is considered sacred and is home to an estimated 100,000 archaeological sites.
Though Zinke did not say how many acres would be cut from the monument, he did suggest there are “a lot more” landscapes that do not need to be protected as a national monument than there are historical artifacts and sacred sites that warrant protection under the Antiquities Act of 1906.
Tribal and conservation groups agree with Squillace’s legal interpretation. While the Antiquities Act granted presidents the power to designate national monuments, the Federal Land Policy and Management Act of 1976 made it even more explicit that Congress reserved for itself, not the president, the power to modify or revoke the designations, said Dan Hartinger, national monuments campaign manager for the Wilderness Society.
Zinke “made it pretty clear” he intends to shrink Bears Ears “drastically and carve it up into much smaller postage-stamp sized areas that are separated from each other and managed separately,” Hartinger said. A reduction of the size of the Bears Ears national monument that Zinke appears to have proposed would be “akin to a revocation,” he argued.
Trump signed an executive order in April that gave the Department of the Interior 120 days to file a report evaluating two decades’ worth of national monument designations under the Antiquities Act. The executive order also directed Zinke to submit an interim report on Bears Ears within 45 days.
The recommendations in the interim report, released a week ago, will likely be addressed by Trump later this year. If the president chooses to approve Zinke’s recommendations, Squillace predicts tribes will be among the first to go to court to stop them from going into effect.
Trump’s decision to target Bears Ears angered Native Americans. Zinke then ratcheted up tensions when he claimed last Monday that Native American leaders supported the decision to shrink the size of the national monument. The Interior secretary told reporters during a conference call that Native leaders were “very happy” about the proposal and “willing to work with us” on co-managing a reduced Bears Ears.
Native leaders immediately issued statements accusing Zinke of misrepresenting their views on Bears Ears. Davis Filfred, a Navajo Nation Council Delegate, blasted Zinke’s claim that tribes were “happy” with the proposal. “I haven’t been happy with [Zinke] since day one. I don’t know what that word happy is,” Filfred told the Center for Western Priorities, a conservation and advocacy organization. “We don’t want it to be rescinded. We wanted it left alone.”
Bears Ears was protected at the request of the Navajo, Hopi, Ute, Ute Mountain Ute, and Zuni tribes, all with strong historical, spiritual, and cultural ties to the monument. The Navajo Nation “does not believe that [Zinke’s] statement reflects our position,” Katherine Belzowski, an attorney with the Navajo Nation Department of Justice, told ThinkProgress.
“We don’t know why he has that impression. We don’t know of anyone who would have spoken to him to give him that idea that this is something that we were satisfied with,” Belzowski said.
Under the Antiquities Act, 16 presidents have proclaimed 157 national monuments. “For more than 100 years, presidents from Teddy Roosevelt to Barack Obama have used the Antiquities Act to protect our historical, scientific, and cultural heritage, often at the very moment when these resources were at risk of exploitation,” Squillace wrote in an article that he co-authored with three other law professors and was published in the June issue of the Virginia Law Review.
“Courts should defer to the choices made by the president proclaiming the monument and the relevant objects designated for protection. Otherwise, a future president could undermine the one-way conservation authority afforded the president under the Antiquities Act and the congressional decision to reserve for itself the authority to abolish or modify national monuments,” Squillace and his co-authors wrote in the article.
Some conservative legal experts believe presidents have the power to revoke and make changes to a national monument. Arguments that limit the president’s authority to significantly reduce prior national monument designations are “based on the erroneous premise that the president lacks authority to revoke monuments,” law professor John Yoo and attorney Todd Gaziano argued in a report published in March by the American Enterprise Institute.
There are past cases when presidents reduced the size of a national monument. But those boundary changes were left intact because they were not challenged in court. If Trump chooses to reduce the size of Bears Ears or another national monument, a court challenge would be guaranteed.
During his review of Bears Ears, Zinke met with tribal leaders in Salt Lake City for about two hours to discuss the national monument, Belzowski said. Zinke spent the bulk of his time getting the input of Utah’s congressional delegation, who opposed the national monument designation, and local officials, including San Juan County Commission leader Phil Lyman, who strenuously opposes the monument designation. Lyman once reportedly declared tribal input wholly irrelevant because they “lost the war.”
Squillace emphasized that a president does not have a legal obligation to consult with tribal leaders — or state and local politicians — when making decisions on national monuments. Under the National Historic Preservation Act, there would normally be an obligation for agencies to allow tribes to participate in the decision-making process through a formal consultation process.
“But a president is not bound by the National Historic Preservation Act because the president is not considered an agency for the purposes of administrative law,” he said.
The same principle held true for Trump’s decision on whether to withdraw from the Paris climate agreement. No law required the president to consult with any outside groups prior to making his decision — and, according to news reports, Trump chose to keep any discussions on the Paris agreement in-house among his closest advisers.
Zinke’s decision to spend more time with Utah officials who oppose the national monument status demonstrated a lack of an evenhanded approach between government, business, and tribal stakeholders, according to tribal officials. “By cherry-picking a few Navajo people from San Juan County, you are undermining the clear position of the Navajo Nation tribal government,” Navajo Nation councilmember LoRenzo Bates said.
Zinke’s report also included several recommendations directed at Congress, including enabling tribal co-management of the monument. The Interior secretary asked Congress to create alternate designations such as national conservation or recreation areas within what is currently Bears Ears National Monument, and to clarify wilderness management practices within national monuments.
But Hartinger contends Congress does have the desire to take up any measures that would weaken the national monument system. “If you look last year, the Utah delegation had a bill called the Public Lands Initiative that, despite having two committee chairman and a very senior member of the Senate in their delegation drafting the bill, they couldn’t even get it through one chamber of Congress, which speaks to how unpopular their legislation was,” he said.
The failed Public Lands Initiative, according to the Grand Canyon Trust, would have transferred 100,000 acres of the Ute Tribe of Utah land to the state of Utah for fossil fuel development, diminished the voice of Native American tribes in management of the Bears Ears cultural landscape, encouraged development of fossil fuels and uranium, prohibited “sensible management” of livestock grazing, and handed over public lands and public roads to the state of Utah to further the state’s “anti-public lands agenda.”
The Interior Department’s final report, with recommendations for all 27 monuments, including Bears Ears, is scheduled to be send to the president on August 24.
Public land advocates believe the Grand Staircase-Escalante National Monument in Utah and the the Katahdin Woods and Waters National Monument could be next on Zinke’s hit list.
“There are several other national monuments where people are already mobilizing and submitting comments,” the Navajo Nation’s Belzowski said. “All those national monuments in the executive order are on the table for action taken against them.”
Hartinger also is on guard for new attacks on national monuments. The Trump administration’s willingness “to test dubious legal authority to roll back drastically a national monument that by some common analysis found that 96 percent of public comments supported the continued protection of shows that we can’t rule anything out,” he said.
“Once you made it clear that you are willing to contravene legal opinions and over a century of use of the Antiquities Act, that’s definitely a fear,” Hartinger said.