This academic writing is a watered-down reflection of a major research labor of my latest semester. Federal lands should, in my mind, be sacred, respected, and enjoyed. However, the public discussions revolving around the current administration’s reduction of Bears Ears and Grand Staircase-Escalante National Monuments has prompted me to think much deeper about public spaces: what is legally “ours”? What are we fighting for?

I would like to thank my totally incredible advisor, Karin Wadsack, for her support and guidance in this research. Tim Peterson at the Grand Canyon Trust was wildly helpful in helping me understand the current situation surrounding these “sales.” I will attempt to update this post as information continues to come out about these NM reductions.

National Monuments can be designated one of two ways: either via Congressional legislation, or by the president using the Antiquities Act. A National Monument (NM) is a protected land or historical area that may be managed by any federal land management agency, including the National Park Service or Bureau of Land Management[i]. Generally, public and commercial activities in practice before the establishment of the NM may continue after its transfer to the federal land management agency. Public activities include recreation found in other public lands, like hiking and fishing, while commercial activities may grandfather in mining claims, gas leases, etc. In the past, some lands originally designated as NMs have eventually become National Parks, including the Grand Canyon, Zion, and Grand Teton.

Antiquities Act

            The Antiquities Act was signed into law by President Teddy Roosevelt in 1906. The act originally intended to stop the theft of Native American artifacts from public land. However, it also gave presidents authority to create NMs without Congressional approval. The privilege has since been extremely popular; only four presidents have not established new NMs under the Antiquities Act since it was signed into effect[ii]. The Antiquities Act very clearly designated the requirements for establishing these new public lands; it includes the stipulation that a monument must be the “smallest area compatible” with protecting the objects of scientific or historical significance that prompted the designation. This line is central to the current lawsuits against the Trump Administration’s reduction of Utah NMs. However, the Antiquities Act does not feature any discussion authorizing presidential modification of the NM once it has been designated[iii]. Only Congress can truly “undo” a NM status.

Reductions

While the Antiquities Act has been used in the past to reduce the size of some national monuments, these reductions have never been contested in court. Generally, reductions are made when the designations involve errors in mapping or misrepresentation of geological features. However, there have been a handful of instances during which federal lands have been intentionally reduced after designation as a NM. These reductions have been made under the case of “demonstrated national need.”
The first such instance was the cancellation of Jackson Hole National Monument in 1943; the proclamation was unpopular as it incorporated the entire city of Jackson, WY, into an exaggerated Grand Teton National Park[iv]. Jimmy Carter also designated fifty-six million acres worth of NMs in Alaska; these were contested as largely unnecessary, attaching supplementary legal strings to lands that were already protected under the Alaska National Interest Lands Conservation Act[v]. The Supreme Court asserted in Cameron v United States, in 1920 that there is no maximum size restriction as per The Antiquities Act; this case revolved around a proposition that what would become the Grand Canyon National Park contained lands of significant scientific and public interests. This court case was pivotal in asserting the importance of scientific and cultural interests in public lands; there is a legitimate reason in protecting areas from development when community interests are at stake.

The only time a President himself has moved to largely reduce a NM was in 1915 under President Woodrow Wilson. The almost 50% reduction of Mount Olympus National Monument was never contested in court. This was an actively supported demonstration of national need. The massive reduction of Mount Olympus NM occurred during World War I; the timber made available was used for military operations. There has not been a similarly grand reduction of NM boundaries since 1963, with President Kennedy’s reduction of Bandelier NM. However, that reduction allowed closer management of tree species to better protect the Ancestral Pueblo cultural resources the NM was intended to preserve. Without the status of NM, the land management agency was more free to prescribe burns and preform light landscaping, to ensure tree lines were minimally threatened. While the natural landscape is now being altered, the argument is that the cultural resources are now better protected.

In 1973, the Federal Land Policy and Management Act (FLMPA) was enacted to more strictly govern how BLM lands are managed. FLMPA did not alter the Antiquities Act in any way; rather, it reserves the authority solely for Congress to alter or shrink a NM.

Utah’s National Monuments

Upon Interior Secretary Ryan Zinke’s 2017 review of 26 NMs, two have be recommended to be reduced in size. On December 4, 2017, President Trump signed an executive order to reduce Grand Staircase-Escalante NM by 46%, and reduce Bears Ears NM by 85%. The reduction of Bears Ears NM is the largest elimination of protected land in American history. Both NMs are located in southern Utah.

 

During this time of political unrest surrounding their monument status, the BLM and private fundraisers are actively educating visitors on Leave No Trace principles; the greatest perceived threat to the NMs at this time is visitors at sensitive ruins[vi] .

A potential threat to these lands actively discussed in the media surrounds the idea that some of these lands will now be reopened to mineral, oil, and gas extraction. However, the last drilled well on any Bears Ears lands was in 1984, and it was plugged in 1992. Bears Ears NM was established during the Obama Administration, meaning there was plenty of time before the area became public land during which there was no extraction. Though there are plentiful oil and natural gas regions on Bears Ears’ northern and southeastern territories, the areas are extremely difficult to access, and of archeological significance. For the designation of any NM under “archeological or cultural significance”, a document is published by the land management agency to outline what objects exactly the designation will be attempting to protect. If cultural resources are the main interest, the NM requires a fairly large area to encompass any and all religious or historical occurrences for a given community. In addition to these timeline and accessibility factors, the economic viability of oil and gas is quickly decreasing. It is all-around unlikely that land reduced from Bears Ears NM will be drilled in the foreseeable future.^vi

Grand Staircase-Escalante was enacted as a NM during the Clinton Administration, meaning the local community has been accustomed to its existence for longer than that surrounding Bears Ears NM. The tourism surrounding Grand Staircase-Escalante is by far the largest, if not essentially the only, contributor to the local economy[vii] Before its designation, much of the land was used for cattle grazing, and some community members still refer to the designation as controversial for forcing ranchers off family land^{vi, [viii]} . The designation of the monument in 1996 was perceived to hurt the Southern Utah’s economy in that it held back other natural resource industries. The NM prevented a planned coal mine from opening; some locals argued that the “environmental scrutiny” surrounding NM land prompted a local lumber mill to close in 2009 ^vi.

Why These Lands?

            There has been rising speculation about the politics surrounding the reductions of these particular lands. Again, of the 26 NMs formally reviewed, it is curious that only two were suggested for reduction: both in southern Utah, both by significant amounts.

It has been suggested that Utah county commissioners, senators, and other high-ranking federal employees urged these monuments to be revisited by the federal government^viii. Let’s discuss two characters surrounding this situation: Senator Orrin Hatch is currently chair of President Trump’s Finance Committee. Rob Porter served as is President Trump’s White House Scheduler until February 2017. This position allowed Porter control of all papers that eventually cross the president’s desk. Rob Porter is the former Chief of Staff for Senator Orrin Hatch. Leaked emails between Orrin Hatch and other politicians or state employees, and between Senator Hatch and Secretary Zinke, urge for the reduction of the NMs[ix] (Lipton and Friedman, 2018). According to these leaked emails, the reductions are in hopes for increased federal land claims. Federal land, not under NM status, is available for sale of land claims, like oil or natural gas development through the responsible land management agency. Oil development could be highly profitable on the newly demoted lands.

Though these lands were withdrawn in early February 2017, there was an active GOP Bill until that same month in favor of selling federal lands. The bill called for a “disposal of excess federal lands”, which also happens to be the current language used by the BLM when describing potential sales. Though the BLM was originally intended to protect grazing rights, this bill advocated for new mandates: when calculating the cost of disposing of federal land, the Congressional Budget Office cannot consider future revenues the federal government could have received from the land from energy production, recreation, grazing or other uses[x]. Congress is not trying to sell of these lands entirely; as later discussed, the true public sale of these lands would require an act of Congress solely dedicated to the favor of the sale. Revenue can be earned by retained the areas as federal land and selling oil and natural gas claims. This supports the claims that Secretary Zinke’s suggestions were largely motivated by the potential revenues from new resource rights.

Selling Federal Land

Just because NMs do not get frequently overturned, does not mean that other federally managed land is never sold. However, the BLM does not offer much land for sale because of a 1976 congressional mandate that these lands be generally retained in public ownershipⁱ. The Bureau of Land Management breaks potential sales into two major property categories: real property or public land. BLM real property may include former government buildings or military bases; BLM public land includes undeveloped areas with no improvements, such as the proposed NM reductions.

Utah’s NMs, Currently

As of May 2018, there are no federal lands for sale as a result of Secretary Zinke’s recommendations. The areas will still be considered federal lands if they are indeed reduced from monument status, because they were federal lands before the designation^viii. In fact, under Federal Land Policy and Management Act (FLMPA), the sale of these lands would require an act of Congress. FLPMA clearly identified that neither a president nor an act concerning NM reductions would hold legal bearing in the large-scale disposal of NM lands. If the NMs are reduced, the disposed areas would revert to its management status; for BENM, this would follow a 2008 BLM resource plan. Management of these lands would continue as per usual, but without considering the impacts of cultural significance; if an area is considered to generally hold cultural significance, oil and gas claims can be opened anywhere. While it is more difficult to open claims over a particular cultural site, such as ruins, the immediate area surrounding those sites is fair to claim. These cultural sites would be the original claim for monument status. This disregard for cultural significance would allow for new claims for uranium, oil, or natural gas.

 

If you have any opinions, thoughts, or additional information surrounding these reductions in National Monuments, please DM me or send me an email! I am really interested in talking about this situation.

 

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References

[i] BLM. “Programs: Lands and Realty: Land Tenure: Sales and Exchanges.” Sales and Exchanges | BUREAU OF LAND MANAGEMENT, 27 Oct. 2016, www.blm.gov/programs/lands-and-realty/land-tenure/sales-and-exchanges.

[ii] National Park Service. “NPS Archeology Program: Antiquities Act Centennial.” National Parks Service, U.S. Department of the Interior, 5 May 2017, 06:53:03, www.nps.gov/archeology/sites/antiquities/MonumentsList.htm.

[iii] Steinmetz, Katy. “Bears Ears: A Battle Over the Antiquities Act Is Coming.” Time, Time, 5 Dec. 2017, time.com/5047904/bears-ears-grand-staircase-trump-shrinks/.

[iv] Robert W. Righter. “National Monuments to National Parks: The Use of the Antiquities Act of 1906”. Archived from the original on 27 May 2006. Retrieved May 16, 2006.

[v] U.S. Fish and Wildlife Service. “Digest of Federal Resource Laws of Interest to the U.S. Fish and Wildlife Service: Alaska National Interest Lands Conservation Act of 1980”. Archived from the original on 26 June 2006. Retrieved May 16, 2006.

[vi] Nordhaus, Hannah. “What Trump’s Shrinking of National Monuments Actually Means.” National Geographic, National Geographic Society, 2 Feb. 2018, news.nationalgeographic.com/2017/12/trump-shrinks-bears-ears-grand-staircase-escalante-national-monuments/.

[vii] Anderson, Matthew. “How to Fix the Unintended Consequences of Grand Staircase-Escalante.” TheHill, 16 Feb. 2018, thehill.com/opinion/energy-environment/374280-how-to-fix-the-unintended-consequences-of-grand-staircase.

[viii] Peterson, Tim. “Grand Canyon Trust – Utah Wildlands Program Director.” 17 Apr. 2017.

[ix] Lipton, Eric, and Lisa Friedman. “Oil Was Central in Decision to Shrink Bears Ears Monument, Emails Show.” The New York Times, The New York Times, 2 Mar. 2018, www.nytimes.com/2018/03/02/climate/bears-ears-national-monument.html.

[x] Cama, Timothy. “GOP Lawmaker Withdraws Bill to Sell Federal Land.” TheHill, 2 Feb. 2017, thehill.com/policy/energy-environment/317514-gop-rep-pulls-bill-to-sell-federal-land.