The dispute over Bear’s Ears National Monument is a watershed moment in the history of Federal regulation of public lands. At stake is the President’s authority to reduce the size of national monuments previously established by the Antiquities Act. The dispute is an “environmentalization” of traditional land use disputes. The debate of public land use traditionally pitted grassroots conservative organizations like the sagebrush rebellion or the sovereign citizen movement against the federal government. Bear’s Ears instead pits a grassroots liberal organization against a federal government acting on behalf of corporate interests. The Bear’s Ears dispute shows that liberal activists now see public land use as an avenue for environmental change.

Background: The Antiquities Act and Diné Bikéyah

The Antiquities Act of 1906 allows the President to establish national monuments in areas of “Historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest that are situated upon the lands owned or controlled by the Government of the United States.”[1] National monuments are protected land on which new mineral exploration, mining leases, and most other development activities have been restricted since 1996.[2]

Bear’s Ears in Southern Utah has been the home of Native peoples since time immemorial, upwards of 30 tribes have called the area home at some point or another.[3] Containing over 100,000 archeological sites, the area has been plagued by looting since the late 19^th century.[4] Operation Cerberus Action brought the pillaging problem to the fore in 2006 by indicting 23 residents near Bears Ears for illegally removing 256 artifacts worth hundreds of thousands of dollars from public land.[5] The sting convinced Native activists of the need to further protect their cultural remains while further embittering local residents against the Federal Government, especially after the suicide of a prominent doctor caught to the sting.[6] In 2010, Native activists formed the Utah Diné Bikéyah to lobby then President Obama to declare the Bears Ears region a national monument.[7] On December 28, 2016 Obama declared the Bears Ears National Monument. It was to be jointly by the federal government and the Bears Ears Commission formed of five tribes.[8] The Diné Bikéyah is also revolutionary as a liberal, grassroots public lands advocacy group. Traditionally, public lands activism has been conservative, seeking local control over federal lands or their abolishment entirely.[9] This liberal activism is interesting in that locals seek federal control in order to overcome entrenched issues in business and state level politics.

The Trump Administration

            The monument was immediately controversial. On April 26, 2017 Trump signed Executive Order 13792 directing Secretary of the Interior Zinke to review all monument designations since 1996.[10] In statement, Trump called the Antiquities Act an “egregious use of government power.”[11] On December 4, 2017 Trump reduced Bears Ears from 1.35 million acres to 228,284 acres.[12]

Economic Impacts

            The reduction was motivated, in part, by fossil fuel and uranium mining interests. The Kaiparowits Plateau contains 11.36 billion tons of coal and was part of the monument reduction.[13] A FOIA request by the New York Times revealed that the Department of the Interior was directed to determine the natural resource values of Bears Ears and was lobbied by Senator Orrin Hatch to open up oil leases.[14] There were 300 Uranium Mine claims within the Obama-era designation and Canadian company Energy Fuels heavily lobbied the Department of the Interior to open the area to uranium mining.[15]

The Utah state government passed a resolution in February 2017 in both branches of the legislature by a 2-1 margin asking Trump to rescind the Bear Ears monument.[16] This was probably motivated because revenues from federal lands in Utah are a major funding source to the Utah school system. In 2019 the Permanent State School Fund holds 2.5 billion dollars from public land leases.

However, the Bears Ears reduction has also negatively affected the state’s economy. Monuments stimulate local economic growth, for example the Grand Staircase-Escalante National Monument in Utah increased the number of jobs in the two counties surrounding the monument by 38 percent and per-capita income by 30 percent.[17] Additionally, the Bears Ears controversy drove away an outdoor industry trade show that generated $80 million annually in economic activity for the state.[18] Additionally, Uranium mining has left a toxic legacy across the southwest, especially in Native communities. The EPA has enforced over $1.7 billion in settlements for uranium miners.[19] Cleaning up old mines is also an expensive undertaking, reclamation and remediation of a large mine costs between $5.5 – 16 million.[20] Less than half of the Navajo Nation’s 523 abandoned mines have been cleaned up which continue to poison Native communities to this day.[21]

Public Opinion

            Utahans are divided on the issue. 71% supported the idea of the monument in 2016.[22] However, support lessened with the official declaration. In 2018, 46% of Utahans supported Trump’s reduction and 49% opposed. Utahans support the idea on monuments over all by a 2 to 1 ratio.[23] In 2019, the San Juan county commission reversed its position and announced its support for Bear’s Ears.[24] This was the first commission elected using judicially redrawn electoral maps after the previous districting was found to be racially gerrymandered to exclude Native voters.

Legal Challenges

Trump’s reduction was met with immediate legal challenge. Trump was sued by a myriad of groups from the Natural Resource Defense Council to Native advocacy groups to the Patagonia outdoors company. Trump is the first president to reduce a monument since 1963. This is because the Federal Land Policy and Management Act of 1976 reserved the power to modify or revoke monument designations for Congress alone.[25] The power to revoke protections on the land, such as moratoriums on mineral exploration, are also reserved to Congress. It is likely the court challenges will reverse Trump’s reductions. The courts have already denied the federal government’s request for case dismissal and the plaintiffs are preparing for a summary judgement.

Conclusion

The Bears Ears debate shows the contentiousness of public land in the West. The debate is at the intersection of many factors, from the protection of native culture to state economic interests to the basic constitutionality of the Antiquities Act. It has also expanded the public lands debate battleground for environmental interests. Control of public lands is control of the resource extraction industry in the west and a major avenue for environmental activism. The Antiquities Act will be increasingly politicized and increasingly challenged. Politicization will filter to the local level in the west because of state’s dependence on public land revenues and employment.

[1] “American Antiquities Act of 1906 16 USC 431-433,” https://www.nps.gov/history/local-law/anti1906.htm

[2] https://fas.org/sgp/crs/misc/R41330.pdf, (June 8, 1906).

[3] Christian Wilkinson, “”At Bears Ears We Can Hear the Voices of Our Ancestors in Every Canyon and on Every Mesa Top”: The Creation of the First Native National Monument,” https://scholar.law.colorado.edu/articles/1046/, (2018).

[4] ibid

[5] Brendan Boreal,“ FBI Sting Catches Alleged Archaeological Thieves in Southwest,” https://www.scientificamerican.com/article/fbi-sting-alleged-artifact-thieves/, (June 16, 2009).

[6] Joe Monzingo, “A Sting in the Desert,” https://graphics.latimes.com/utah-sting/, (September 21,2014).

[7] Christian Wilkinson, “”At Bears Ears We Can Hear the Voices of Our Ancestors in Every Canyon and on Every Mesa Top”: The Creation of the First Native National Monument,” https://scholar.law.colorado.edu/articles/1046/, (2018).

[8] Ibid.

[9] Jason Thompson, “The first Sagebrush Rebellion: what sparked it and how it ended,” https://www.hcn.org/articles/a-look-back-at-the-first-sagebrush-rebellion, (January 14, 2016).

[10] Donald Trump, “Executive Order 13792 of April 26, 2017: Review of Designations Under the Antiquities Act,” https://www.federalregister.gov/documents/2017/05/01/2017-08908/review-of-designations-under-the-antiquities-act, (April 26, 2017).

[11] Juliet Eilperin, “ Trump orders review of national monuments, vows to ‘end these abuses and return control to the people’,”  https://www.washingtonpost.com/news/energy-environment/wp/2017/04/25/zinke-to-review-large-national-monuments-created-since-1996-to-make-sure-the-people-have-a-voice/, (April 26, 2017).

[12] Keith Scheider,“ In an unprecedented action, Trump dramatically shrinks two national monuments in Utah, ”  https://www.latimes.com/nation/la-fg-trump-national-monuments-20171204-story.html, (December 4, 2017).

[13] Eric Lipton and Lisa Friedman, “Oil Was Central in Decision to Shrink Bears Ears Monument, Emails Show,” https://www.nytimes.com/2018/03/02/climate/bears-ears-national-monument.html , (March 2, 2018).

[14] Ibid.

[15] Hiroko Tabuchi, “Uranium Miners Pushed Hard for a Comeback. They Got Their Wish,” https://www.nytimes.com/2018/01/13/climate/trump-uranium-bears-ears.html, (January 13, 2018).

[16] “H.C.R. 11 Concurrent Resolution Urging the President to Rescind the Bears Ears National Monument Designation,” https://le.utah.gov/~2017/bills/static/HCR011.html, (February 3, 2017).

[17] Pew Charitable Trust, “5 Reasons to Protect Bears Ears,” https://www.pewtrusts.org/-/media/assets/2016/11/bearsears_5reasons_fs_v2.pdf, (November 2016).

[18] McClatchey Washington Wire, “Utah loses trade show over Bears Ear,” https://www.vcstar.com/story/money/business/2017/04/07/outdoor-industry-walks-out-utah-over-bears-ears-dispute/100176002/, (April 7, 2017).

[19] EPA, “Cleaning Up Abandoned Uranium Mines,” https://www.epa.gov/navajo-nation-uranium-cleanup/cleaning-abandoned-uranium-mines.

[20] DOE, “Defense-Related Uranium Mines Cost and Feasibility Topic Report,” https://www.energy.gov/sites/prod/files/2017/07/f35/S10859_Cost.pdf, (June 2014).

[21] EPA, “Cleaning Up Abandoned Uranium Mines,” https://www.epa.gov/navajo-nation-uranium-cleanup/cleaning-abandoned-uranium-mines.

[22] Creation Justice Ministries, “Poll: 71% of Utahns Support Bears Ears National Monument,” https://bearsearscoalition.org/poll-71-of-utahns-support-bears-ears-national-monument/, (May 2016).

[23] Pew Charitable Trust, “5 Reasons to Protect Bears Ears,” https://www.pewtrusts.org/-/media/assets/2016/11/bearsears_5reasons_fs_v2.pdf, (November 2016).

[24] Associated Press, “San Juan County formally switches sides in Bears Ears debate,” https://kutv.com/news/local/san-juan-county-formally-switches-sides-in-bears-ears-debate, (April 17, 2019).

[25] https://www.virginialawreview.org/volumes/content/presidents-lack-authority-abolish-or-diminish-national-monuments