This is an archived article that was published on sltrib.com in 2017, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.
We are writing to encourage President Donald Trump and Interior Secretary-designate Ryan Zinke to proceed cautiously in determining whether to abolish or change the Bears Ears National Monument. While Utah's elected officials are imploring them to take prompt action, the recent Colorado College poll reveals that Utah voters, by a 15-point margin, favor the Bears Ears designation.
Given the depth and breadth of sentiments on all sides of the issue, we urge the administration to visit the monument and engage with its diverse stakeholders before proceeding. Postponing such a momentous decision costs only time and would de-escalate the simmering conflict, while providing the administration sufficient opportunity to weigh the implications of various courses of action.
By any objective standard, the Bears Ears National Monument designation fits the terms of the Antiquities Act. It protects "historic and prehistoric structures and other objects of historic or scientific interest" on federally owned lands. Indeed, the congressionally chartered National Trust for Historic Preservation recognizes that "perhaps nowhere in the United States are so many well-preserved cultural resources found within such a striking and relatively undeveloped natural landscape."
Moreover, the monument proclamation borrows heavily from the Utah delegation's Public Lands Initiative proposal to delineate the protected acreage, establish multi-party advisory groups and ensure Native American access for traditional purposes. Hurriedly revising the Bears Ears National Monument would put irreplaceable resources, and the Native Americans that depend upon them, at risk of irreparable injury.
A decision to abolish or alter the monument will thrust the new administration into an uncertain legal thicket. Because no president has attempted to abolish a national monument by proclamation, there is no definitive judicial interpretation whether such action would be authorized under the Antiquities Act. However, multiple legal analyses, including U.S. attorneys general opinions, agree that only Congress may undo a presidential proclamation of a national monument under the Antiquities Act. Although presidents appear to have the power to make minor revisions to a monument proclamation, no president has tried to do so to the extent or for the reasons cited by monument opponents, calling such an action into question as well.
It has been more than 50 years since a president last diminished a national monument, when John F. Kennedy redrew the boundary of Bandelier National Monument, cutting here and adding there, to enhance resource protection. No president has ever diminished a monument while the ink is still wet on the proclamation. President Taft moved swiftest, waiting three years to reduce a monument that he himself had created earlier in his own presidency. The largest reduction, trimming 311,280 acres from the Mt. Olympus National Monument, was done to increase the supply of high quality wood to produce Allied combat airplanes and lumber for ships during World War I. No similar exigencies exist today.
Moreover, abolishing or dramatically reducing the monument will not resolve the issues driving current frustrations: a landscape checkerboarded by multiple owners, competing management objectives, underfunded land managers, or polarized stakeholders. Instead, action taken in haste and without adequate public involvement will almost certainly invite protests and litigation. Litigation will, in turn, further complicate and delay good faith efforts to improve on-the-ground management. One need only consider the Dakota Access Pipeline controversy to appreciate the need for a deliberative and thoughtful approach to addressing complex legal issues and heartfelt Native American concerns.
The new administration is well positioned to chart a different and more considered course, building on the hard work that came before and addressing the specific issues that underlie the current discontent over our public lands. To help de-escalate the conflict, we urge the new administration to take the time to visit the monument and familiarize itself with its many resources, and to engage with its diverse stakeholders before moving forward.
Acrimony over public land management has reached a dangerous level. A steady hand is needed to guide us to the common ground that we believe exists. We are encouraged to have a Westerner and a sportsman poised to lead the Department of the Interior during these trying times. With mindful and respectful leadership, we believe that a peaceful and mutually beneficial path forward can be charted, and the public interest can be faithfully served. We urge President Trump and Interior Secretary-designate Zinke take that path.
Bob Keiter is the Wallace Stegner Professor of Law. John Ruple is an Associate Professor of Law and Stegner Center Fellow. Both work at the University of Utah's S.J. Quinney College of Law