From the moment in April that Donald Trump put a 45-day deadline on a report on the Bears Ears National Monument, it was obvious that a skimpy document the likes of the draft that Secretary of Interior Ryan Zinke released Monday would be forthcoming.
It’s essentially a four-page boilerplate preface with a one-page “report” and set of recommendations that will presumably be spelled out more fully when the full review of Bears Ears and the other 26 monuments is done 72 days from now. Bottom Line: The 1.35-million-acre monument designated by President Barack Obama is too damned big and should be downsized. The amount of acreage in this proposed shrink job is yet to be determined. The report reads:
The review shows that rather than designating an area encompassing almost 1.5 million acres as a national monument, it would have been more appropriate to identify and separate the areas that have significant objects to be protected to meet the purposes of the [Antiquities] Act, including that the area reserved be limited to the smallest area compatible with the proper care and management of the objects.
Note, that 1.5-million-acre reference includes 200,000 acres of adjoining state public lands and private lands enclosed by the monument.
E&E News (paywall) reported that Arizona Rep. Raúl Grijalva, who is the highest-ranking Democrat on the House Natural Resources Committee, labeled Zinke’s report "nonsense”:
"The memo released today doesn't give any accounting of the public comments the Interior Department received as part of this review process," Grijalva said. "It doesn't reference any maps or specify legislative language. It doesn't explain what the president will do regarding Bears Ears. It doesn't even explain what alleged problem this review is trying to solve."
One of Zinke’s four barely sketched-out recommendations is the urging of Congress to give the five Native tribes of the Bears Ears Inter-Tribal Coalition a role in co-managing at least some culturally significant parts of the monument. Obama established official tribal management participation in the monument via the Bears Ears Commission. However, that management established by executive action is vulnerable to vanishing.
Depending on the details, congressionally approved co-management, an idea that originated with the tribes, would actually be a good precedent to set. But, as with Zinke’s entire report, there are no details. And as the five tribes and every other tribe in the nation is all too aware, the fine print is one of the many ways they have been robbed for generations.
American Indians were at the core of the 10-year fight. The Inter-tribal coalition comprises the Navajo, Hopi, Ute Mountain Ute, Pueblo of Zuni and the Ute Indian Tribe. They united with businesspeople, recreationists, preservationists, and other activists to get the designation for Bears Ear and were glad for President Obama’s action in the latter days of his administration.
But they were disappointed about how big the monument was. Obama kept 600,000 acres out of the monument that the tribal coalition had wanted to be included.
And now Zinke—with a whole lot of developers and drillers and their marionettes in the Utah state legislature agreeing with him—wants to remove more ancestral Indian land from the monument in order to make it available to whatever private owners wish to do with it.
Zinke tried to present an image of everything being hunky dory with the tribes, all of which strongly opposed Interior’s review. At a news conference, according to The Washington Post, Zinke said, “Overall, in talking to tribal leadership… they’re pretty happy and willing to work with us”:
The statement brought a quick rebuke from representatives of the Navajo Nation. “I haven’t been happy with him since day one,” said Davis Filfred. “I don’t know what that word happy is.”
Filfred said he told Zinke, and later his assistant, whom the secretary did not name, that the coalition of Ute, Navajo, Hopi and Zuni tribe leaders who fought 10 years for a monument designation wanted no change. He said Zinke is apparently speaking with the leader of a small Navajo faction that opposed the monument but isn’t part of the nation’s leadership.
“We don’t want it to be rescinded,” Filfred said. “We wanted it left alone. Right now, what I’m hearing is this is only a recommendation. But when they do make that move, we’re ready as a Navajo nation for a lawsuit, and all the other tribal leaders are ready. We have others who are ready for litigation. This is uncalled for.”
The Utah state legislature had passed a resolution asking that Trump rescind the Bear Ears designation altogether. But that would be without precedent, which surely figured into Zinke’s considerations. Downsizing, on the other hand, has been done to national monuments on more than one occasion.
Many state officials, ranchers, miners and businesspeople in the West view federal land management with an incandescent fury. They think too much land is tied up “unproductively” in government hands—some of us old-timers would say the people’s hands—and are not just trying to keep more land from being designated for protection in the future but are seeking the removal of land protected for decades.
Some of these actors are also again headed down a very old path that focuses on reducing the amount of land held in government trust for American Indians. As Zinke prepares to recommend casting out of the monument more acres of ancestral Native lands, there’s a small but emerging group scheming to lay the groundwork for privatizing reservation lands. There is no legal connection between these two, but there is certainly an attitudinal one, which takes a dim view of the public commons, of public anything, really, and large swaths of “unused” or “underused” land makes them sick to their wallets.
Based on limited case law, a couple of opinions from attorneys general, plus the Federal Land Management and Policy Act of 1976, the legal ground would seem to favor advocates of keeping Trump from reducing the size of Bears Ears as designated by Obama under the authority of the 111-year-old Antiquities Act. The legislative report issued by the House committee on FLPMA is clear about lawmakers’ intent, stating that the act was drafted with the idea that it “specifically reserve to the Congress the authority to modify and revoke withdrawals for national monuments created under the Antiquities Act.”
But there’s the rub. While Trump might like to do the job himself, that path will arouse a deluge of litigation that might put the regime into the same pickle the courts have done to it on the Muslim ban.
Which is why Zinke says he’ll be pushing Congress, not Trump, to do exactly that, modify Bears Ears. If Congress could be convinced, that would allow the White House to take credit without making this a contest of presidential power. Congress clearly can shrink the monument. And Zinke thinks Trump can convince the majority to do so.
Maybe so. But constituencies for keeping large swaths of public land intact and protected are not solely coastal liberals. And Trump is burdened with other problems right now, including the growing perception that he’s headed for the political precipice. Hard to lobby persuasively for passage of secondary legislation like this under conditions of operational chaos and stumblebummery at home and abroad, with prominent figures questioning not just your legitimacy but also your very soundness of mind.