This is an archived article that was published on sltrib.com in 2016, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.
It has been said that "we are entitled to our opinions, just not our own facts." Recent debate over the Public Lands Initiative and Bears Ears National Monument proposal makes this a good time to review the facts about national monument designations.
For 110 years, the Antiquities Act has empowered presidents to protect lands having historic or scientific interest. Indeed, 15 of the last 19 presidents, Republicans and Democrats alike, have designated national monuments. Grand Canyon, Capitol Reef and Arches national parks all began as national monuments.
Critically, the Antiquities Act affords presidents the ability to craft monument designations that are responsive to local concerns. President Obama, for example, recognized the importance of water to westerners when, in creating the Basin and Range National Monument, he stated that the monument neither created new federal water rights nor altered existing state-issued water rights. In creating the Browns Canyon National Monument, he expressly recognized state "jurisdiction and authority with respect to fish and wildlife management." In creating the Río Grande Del Norte National Monument, he protected utility line rights-of-way within the monument. Similarly, the Basin and Range National Monument proclamation states that, "nothing in this proclamation shall be deemed to affect authorizations for livestock grazing, or administration thereof, on federal lands within the monument. Livestock grazing within the monument shall continue to be governed by laws and regulations other than this proclamation." And of course monument proclamations apply only to federal land. As the San Gabriel Mountain National Monument proclamation and every other recent proclamation make clear, monuments are established "subject to valid existing rights." These kinds of assurances, and more, are common in monument proclamations.
Recent national monument proclamations also universally require managers to create a management plan in consultation with state, local and tribal government because, as all six members of Utah's congressional delegation recently noted, "the wisest land-use decisions are made with community involvement and local support, ... [and] the most effective land management policy is inclusive and engaging, not veiled or unilateral."
That is why, in creating the Berryessa Snow Mountain National Monument, President Obama directed monument managers to "provide for public involvement in the development of the management plan including, but not limited to, consultation with tribal, state and local governments. In the development and implementation of the management plan, [federal agencies] shall maximize opportunities ... for shared resources, operational efficiency, and cooperation."
Furthermore, monument designations do not, as some have claimed, limit American Indian access or use to do so would violate the American Indian Religious Freedom Act, which declares that "it shall be the policy of the United States to protect and preserve for American Indians their inherent right of freedom to believe, express, and exercise the traditional religions ... including but not limited to access to sites, use and possession of sacred objects, and the freedom to worship through ceremonials and traditional rites."
In fact, in designating the Chimney Rock Mountains National Monument, President Obama required the Forest Service to "protect and preserve access by tribal members for traditional cultural, spiritual, and food- and medicine-gathering purposes, consistent with the purposes of the monument, to the maximum extent permitted by law." Virtually identical language is found in each of the six most recent monument proclamations.
If President Obama does create the Bears Ears National Monument, we should expect that he will take similar steps to protect state, local and tribal interests. Let's set aside political rhetoric and debate the Bears Ears proposal and Public Lands Initiative with these facts in mind.
John Ruple is an associate professor of law (research) at the University of Utah's S.J. Quinney College of Law, and a fellow with the University's Wallace Stegner Center for Land, Resources and the Environment.