With just three weeks left in his second term, under the Antiquities Act of 1906, President Barack Obama added two national monuments in Utah and Nevada Wednesday to the 25 new ones and expansions of three old ones that he has already designated over the past eight years. With that status these federal lands gain new protections from exploitation.
However, some foes of the designations hope to reverse them when the Trump regime takes office in January. They argue that Obama has abused the executive authority granted by the act. What they mean is they don’t like the law because it limits where and how private parties can make big bucks off public land.
No president ever has retracted a monument designated by a predecessor, and the courts have several times backed up executive authority in the matter, beginning with the case of Cameron vs. United States in 1920. But given the kind of renegade reinterpretation a Trumpian judiciary could take, there’s no certainty that stare decisis will keep an existing presidentially declared monument from being unproclaimed.
The most controversial of the monuments, Bears Ears in Utah, encompasses 1.35 million acres of stunningly beautiful public lands surrounding San Juan County in the southeastern part of the state. Obama’s detailed proclamation elegantly explains just how special it is.
Gold Butte National Monument in southern Nevada covers 300,000 acres, and is home to sweeping vistas, Native petroglyphs, and protected desert tortoises and bighorn sheep. It surrounds the 160-acres owned by the notorious cattle rancher and so-called “sovereign citizen” Cliven Bundy. He claims the monument has taken his family’s “ancestral” land, conveniently overlooking the fact that it was all grabbed from the Southern Paiute Indians, who lived in the area at least 750 years before Bundy’s ancestors and other European Americans showed up in the mid-1800s. In a statement, the Bundy family told Obama “we are saddened, but not surprised, by your decision to make our ranch and home a national monument.”
Here is Obama’s proclamation for Gold Butte.
Besides gorgeous landscapes and diverse plants and wildlife, both monuments contain Indian and paleo-Indian cultural artifacts, with each of them boasting a petroglyph-covered stone wall called “Newspaper Rock.” Bears Ears also contains many cliff dwellings among its estimated 100,000 archeological and sacred sites. Indians, who have for millennia hunted and gathered medicinal herbs in the area, will be a partner in the governance of Bears Ears. In the 1860s it became a hideout for some Navajo fleeing U.S. soldiers who marched thousands of tribespeople at gunpoint hundreds of miles from their homeland to a prison camp in southern New Mexico on what is remembered as The Long Walk. Some of them stayed in the area after the captive Navajo were allowed to return home. Ute, Shoshone, Hopi, and Zuni have even longer-standing connections to Bears Ears.
Environmentalists—like the Southern Utah Wilderness Alliance (SUWA) that has for decades been seeking protection for Bears Ears—and the five tribal governments of the Inter-Tribal Coalition are elated by the Bears Ears decision. But there is no joy in the all-Republican Utah congressional delegation or the governor’s mansion. That’s so even though the president reduced the monument from the 1.9 million acres backers had sought. Indeed, there are Republican plans—which were in the works well before the president’s announcement—to overturn monument status for the site once Obama leaves office.
Mark Green reported Utah Sen. Orrin Hatch’s reaction:
“With this astonishing and egregious abuse of executive power, President Obama has shown that far-left special interest groups matter more to him than the people who have lived on and cared for Utah’s lands for generations. For Utahns in general, and for those in San Juan County in particular, this is an affront of epic proportions and an attack on an entire way of life.
The President’s proposal, like so many others, goes well beyond the original authorities of the Antiquities Act, which was intended to give presidents only limited power to designate special landmarks, such as a unique natural arch or the site of old cliff dwellings, in anticipation of broad support from Congress. The President was never meant to set aside millions of acres against the express wishes of local communities and their elected representatives.”
But two weeks ago, Josh Ewing of Friends of Cedar Mesa had a reply to that:
"While we always preferred a legislative solution, this executive action is precisely what Congress envisioned when it delegated to the president the authority to create national monuments [...] With skyrocketing visitation [to the Bears Ears region] without management resources, continuing looting and vandalism, and the bull's-eye of out-of-state energy developers, we don't have 113 more years to wait for Congress to get the job done."The designation of the monuments has in the past generated opposition, but nothing quite like what we’ve seen recently.
Rep. Joel Briscoe, Democratic Caucus whip in the Utah House of Representatives and a member of the Commission for the Stewardship of Public Lands, said of Obama’s proclamation:
“This monument speaks to our core knowledge that this beautiful land was given to us to care for, learn from, and grow. Proposals to protect these sacred lands have been on the drawing board for 80 years. For decades, presidents, governors, state and local leaders have studied the best ways to protect these special places. We cannot ignore the deeply spiritual aspects of this land, its meaning to those who use it and love it, and its immeasurable worth to people now, and in the future. A monument like this is so much greater than all of us, than any political squabble. Creating the Bears Ears National Monument is the right thing to do, for Utah, for our country, and for our future.”
In Nevada, retiring Democratic Sen. Harry Reid and Democratic Rep. Dina Titus strongly supported the monument designation of Gold Butte. Reid has been pushing it for years and announced to a crowd of about 50 in August that he was certain the designation would occur before year’s end. Presumably, he heard it then from the guy who proclaimed it Wednesday.
Environmentalists and local Indians have pressed their elected representatives to protect the area for years. Gary Martin and Henry Brean reported:
The area has suffered a great deal of damage from vandals and off-road vehicles since 2014, according to the Friends of Gold Butte, a local nonprofit group whose members monitor the area and advocate on its behalf. [...]
The designation will help the Paiute tribes better protect the lands by allowing them to work hand-in-hand with the federal government, according to William Anderson, former chairman for the Moapa Band of Paiutes.
Anderson said the tribe members can provide expertise on what is culturally sensitive in the area while the federal government brings better protection and upkeep to the historic area.
“It allows so much potential for us to go ahead and closely monitor and closely protect the land that was originally ours,” he said.
But Republican Gov. Brian Sandoval and Republicans in the Nevada congressional delegation have objections. Sandoval said local input wasn’t considered and there should be “a more collaborative process when making such an important designation.” Input from Indians apparently isn’t considered real input by the governor.
Come January, however, and two GOP members of the House from Nevada will be replaced by Democrats, which reduces the possibility of any cooperation with the Utah congressional delegation over the monuments’ designation.
One of those delegates is Rep. Rob Bishop. He chairs the House Committee on Natural Resources and is a hard-core foe of designating more monuments without congressional approval. He favors turning over large swaths of federal land to the states, which would then be free to open it all up for development or sell it outright to private interests. He has introduced legislation to curtail presidential power under the Antiquities Act.
Bishop, who has vocally supported the land seizure movement epitomized by Bundy and his pals, co-founded the Federal Land Action Group, an extremist organization that advocates for disposing of federal public lands. He spent three years developing the Public Lands Initiative, an alternative to monument status. The PLI would have protected large tracts of land in the Bear Ears, but it would also have transferred tens of thousands of acres to the state of Utah, weakened the Wilderness Act, sped up oil and gas development. SUWA, the alliance, labeled it “the worst piece of wilderness legislation that’s been introduced in Congress since passage of the 1964 Wilderness Act.” Bishop sought to get PLI passed by Congress this year, but failed.
Whether he and other foes of Bears Ears, and possibly foes of Gold Butte, can succeed in getting a reversal of Obama’s designations after he leaves office remains to be seen. It certainly won’t happen—as some have suggested— by executive order on Donald Trump’s first day in office. Even if precedent on the Antiquities Act is ultimately chucked, that will take a while. Congress might be be persuaded to revise the act. But that too will bring on litigation that could take years to work its way through the courts.
Then, of course, the Trump regime could choose to undermine monument status by refusing to enforce the rules.