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Can Zinke shrink Bears Ears?

The Interior Secretary hints at a smaller, scattered national monument.

 

Following six weeks of intense nationwide debate, and after more than 150,000 comments piled up on the federal government’s regulations.gov website, Interior Secretary Ryan Zinke on June 12 released his interim report on the Trump administration’s review of the newly designated Bears Ears National Monument. Zinke’s suggestions were tentative — final recommendations are due on Bears Ears and other monuments later this year — and vague. Still, they sparked fiery words of protest from the Native American, environmental and outdoor industry groups who advocated for the monument’s creation.

“We are deeply upset at Secretary Zinke’s announcement today,” Utah Diné Bikeyah, a local tribal group, said in a statement. “The Secretary failed to take the time to listen to the very people who know best what is at stake at Bears Ears and ignored overwhelming support in Utah for the monument.”

Most significantly, Zinke proposes shrinking the boundaries of the current 1.35 million-acre monument to “be consistent with the intent of the (Antiquities) Act,” and asking Congress to authorize tribal co-management of whatever “designated cultural areas” remain after the shrinkage. He also suggests that Congress designate areas within the current monument boundaries as national recreation or conservation areas, and that it “clarify the intent of the management practices of wilderness or wilderness study areas within a monument.”

Ravens chat on a fence in southeastern Utah, with Comb Ridge, Elk Ridge and the Bears Ears in the background.
Jonathan Thompson

Zinke would not say how many acres he’d like to slash from the monument, nor where they’d be. But he indicated that protections would remain on “high density areas of artifacts,” including the area directly around the Bears Ears landform and Newspaper Rock — a cliff face covered in petroglyphs that rises up just feet from a highway leading to the Needles District of Canyonlands National Park. “There is no doubt that there are historic and prehistoric structures and objects of interest within Bears Ears,” Zinke said. “These items and objects can be identified, segregated and reasonably separated.”

This suggests that Zinke envisions a number of discrete protected areas — somewhat like the relatively minuscule Hovenweep National Monument east of Bears Ears — rather than a single contiguous monument, as it is now. “If you look at Bears Ears as a whole,” he said, “there is a lot more drop-dead gorgeous land than there are historic structures and historic landmarks.”

The land in question is home to tens of thousands of archaeological sites, including dwellings, great kivas, granaries, shrines, petroglyph panels and other architectural features with unknown function, such as the “roads” that reach out into the landscape from some pueblos. These places are intimately tied to the canyons, mesas, dirt, plants and rocks surrounding them; the landscape — “drop-dead gorgeous” or otherwise — is the landmark worthy of protection. 

“Here, the human landscape is meaningless outside the natural context — human constructions are not considered out of their relationship to the hills, valleys and mountains,” noted the late Rina Swentzell, a noted scholar from Santa Clara Pueblo whose ancestors lived in the northern San Juan region, in a 1991 paper she co-wrote. “The material village is one of the concentric rings about the symbolic center of the world. It is not given more weight or focus than the area of the fields, hills, or mountains. It constitutes one place within the whole. The web of human existence is interlaced with what happens in the larger natural context and therefore flows into the adjacent spaces, hills and mountains.”

Zinke did not say how he plans to identify and separate out such places, nor who would be involved in such a process. He did, however, suggest that once the new boundaries were drawn, he advocated co-management by tribes. That’s what the inter-tribal coalition originally proposed, but the monument as designated by then-President Obama relegated the tribes to a super-advisory council role, instead. The areas that are ultimately protected would then be equipped with infrastructure, Zinke said, such as parking lots, restrooms and trails, and would be staffed with law enforcement.

The tribes in question were not impressed. “The Bears Ears region is not a series of isolated objects, but the object itself, a connected, living landscape, where the place, not a collection of items, must be protected,” noted a statement from the Bears Ears Inter-Tribal Coalition. “You cannot reduce the size without harming the whole.”

Looming in the background of all these details is the bigger legal question: Do Zinke or President Donald Trump even have the power to make these sorts of changes? The Antiquities Act expressly grants the president only the authority to create monuments for a specific purpose. And the one time a president — Franklin D. Roosevelt, in 1938 — set out to abolish such a monument, his attorney general opined that the Antiquities Act gave him no such power. A May 2017 legal analysis by Mark Squillace, a law professor at the University of Colorado, and three other scholars, argues that the Federal Land Policy and Management Act of 1976 “makes it clear that the President does not have any implied authority to (abolish or modify monuments), but rather that Congress reserved for itself the power to modify or revoke monument designations.”

In other words, if Trump tries to radically shrink the monument himself, he will be challenged in court by multiple parties, and likely will lose. Zinke and Trump might, instead, ask Congress to go about redrawing the monument’s lines, creating national conservation areas instead. This, however, merely would be a sort of redo of the Public Lands Initiative spearheaded by Rep. Rob Bishop, R-Utah, over the past several years. The PLI flopped in Congress. Despite Republican majorities in both houses, any new effort to shrink national monuments is likely to do the same.

Jonathan Thompson is a contributing editor at High Country News. He is currently writing a book about the Gold King Mine spill.