Strange Days: A look back on the previous 11 months surrounding Bears Ears National Monument and a glance at the future

“This is not like any other time.”

Access Fund Policy Director Erik Murdock said it plainly over the phone on January 12, nearly a year ago. We were discussing the fate of Bears Ears National Monument in Utah.

Just two weeks earlier, Murdock had been in a celebratory mood after outgoing President Barack Obama designated the 1.35-million acre monument on December 28, 2016. The proclamation capped a movement that was initiated by Native American tribes, who had first asked US Presidential Candidate Robert F. Kennedy to consider protecting the land in the late 1960s (RFK was assassinated in 1968). Murdock had been on the project for more than a year since 2015, working with the Bears Ears Inter-Tribal Coalition, a partnership of five tribes that coalesced through their common desire to protect the lands of their heritage and their ways of life.

The tribes’ recent push to see Bears Ears protected started in 2010 with the formation of the Native American group Utah Dine Bikeyah. According to the UDB’s website, “former Utah Senator Rob Bennett asked Native people in San Juan County, Utah, if they had any interest in how public lands were managed. White Mesa Uta and Utah Navajo grassroots people responded that the depth of their connections are so deep that they had been afraid to speak out for fear of what might still be taken away. The ancestral lands of Bears Ears lie outside reservation boundaries and hold special historical and spiritual significance for regional Native people.”

The creation of Bears Ears National Monument was an important victory for the tribes, and also for climbers. When I first spoke with Murdock over the phone on December 30, 2016, I heard the clink of ice cubes in a glass as he made himself a beverage and sat down in a chair at his Washington, D.C., abode. He was tired and elated.

“This is one of the most satisfying projects I’ve ever worked on,” he said.

Not only was this vast, scenic and culturally significant area under heightened protection, climbing had been officially recognized in a presidential proclamation for the first time in history. That new benchmark and the new monument were supposed to be the focus of the original story for Alpinist. But President Donald Trump and the Republican-controlled Congress took aggressive action sooner than expected, and the House of Representatives passed legislation January 3 that assumes transfers of public lands to states or other entities will come at no cost to the federal government, which makes such transfers faster and easier.

“We expected this type of thing,” Murdock said January 12. “They’re greasing the skids, setting the playing field to make it easier…. Bears Ears will be attacked. I think they’re going to set to work early and often.” There was more energy in his voice this time. His words escalated in tempo and volume as he articulated the situation like a sportscaster. “Is this OK? Is this too much for you?” he asked at one point. But at the start of 2017, even Murdock couldn’t predict the full degree of what is now taking place.

Legislation favoring industrial uses such as mining continued to gain momentum in Washington, spurred on by most of Utah’s legislators, who seem to have waited years for an administration like Trump’s. In February, Patagonia helped catalyze a movement among members of the outdoor industry to join the Inter-Tribal Coalition and other organizations campaigning in favor of the monument. Patagonia urged outdoor industry leaders to pull away from Utah in response to the state’s efforts to rescind Bears Ears Monument. The initiative ultimately resulted in the annual, lucrative Outdoor Retailer summer and winter trade shows leaving Salt Lake City in favor of Denver, Colorado, after 20 years at the Salt Palace Convention Center.

In April, Trump ordered the newly appointed Interior Secretary Ryan Zinke to review all monuments that were designated since 1996 and larger than 100,000 acres. This set of parameters ensured the review would begin with Utah, which contained Bears Ears as well as the 1.9-million acre Grand Staircase-Escalante National Monument–designated by President Bill Clinton in 1996, an act that many Utah politicians have referred to as the original “land grab.” Many opponents of the monuments argue the monuments were established hastily and without much input from local stakeholders. Bears Ears, however, was designated after years of well-documented input from all the local stakeholders and only after Congress failed to vote on legislation that might have provided a more palatable compromise to some critics, such as Utah Rep. Rob Bishop’s Public Land Initiative (PLI).

Zinke visited Utah in mid-May, about the same time that a delegation of 50 high-profile climbers lobbied Congress on behalf of public lands as part of the Access Fund and American Alpine Club’s Climb the Hill event.

“During his visit, Zinke met with some tribal leaders for one* hour and refused to meet with local tribal governments or Utah Dine Bikeyah who conducted all of the elder interviews starting in 2010 to develop the proposal,” said UDB executive director Gavin Noyes. [*According to the Department of Interior, Zinke met with tribal representatives for less than two hours in Salt Lake City, and met with various tribal representatives in other places during his national tour.]

Zinke spent the majority of his visit in the company of those who opposed the monuments, including Utah Congressmen. He issued a preliminary review on Bears Ears in mid-June that proposed reductions to the monuments. He also floated the idea of tribes co-managing “designated cultural areas within the revised BENM boundaries”–a promise he must have known he couldn’t deliver without Congressional action. “And the tribes made it abundantly clear that they wanted the National Monument left alone,” Noyes said, “[but] the Utah Congressional delegation took it upon themselves to tell the tribes what they really want, and now they are trying to undermine tribal sovereignty under the banner of ‘tribal co-management,’ which is not what they have written up.”

In the original monument designation, “the tribes were granted collaborative management of the monument as advisors and actually had their relationship to the land identified as an object to be protected,” Noyes said. “This relationship is something this administration and Congress is trying to dismantle and replace with a committee (not appointed by tribes), that would oversee writing of the management plan. Only Congress can grant tribes decision-making authority, but this has not been proposed, and tribes have not been invited to the table to discuss these ideas.” (More on that shortly.)

Zinke submitted a final report with his recommendations to Trump at the end of August but didn’t disclose any details to the public.

“If you’re proud of something, and if it’s so good for the public interest, why hide it?” Murdock said at the time.

Zinke’s report was ultimately leaked to The Washington Post, and the report indicated that he had recommended shrinking the monuments.

On December 4, Trump signed two proclamations to shrink Utah’s Bears Ears and Grand Staircase-Escalante National Monuments by more than half of their current acreage (see story here). Changes to other monuments are expected to come, and the tribes, the Access Fund, Patagonia and a slew of other organizations have filed lawsuits.

Legal arguments

An August 2 High Country News article by Elizabeth Shogren articulated the situation well: “No president has ever abolished a national monument, and it has been more than 50 years since a president shrank one. Nor has Congress revoked any significant monuments…. A multitude of legal experts–including 121 law professors–argue that presidents lack the power to alter or revoke monuments. Meanwhile, a much smaller but no less adamant group asserts the opposite….”

The pro-monument argument, as summarized in the article, is essentially that only “Congress has authority over public lands unless it explicitly delegates that power” and that the Antiquities Act only gives a president the authority “to identify and reserve a monument, not to diminish or abolish one.”

Trump’s administration is arguing that “the power to designate a national monument implies the power to revoke one…. An even stronger case, they argue, can be made that presidents have the right to revoke any monument that was illegally designated, such as one that is overly large. The Antiquities Act specifies that presidents should preserve ‘the smallest area compatible with the proper care and management of the objects to be protected.'”

Shogren concludes:

Which of these arguments, if any, will prove most persuasive to the courts is uncertain, especially given that Congress has been silent on the issue. It has twice amended the Antiquities Act–to ban presidents from designating future monuments in Wyoming or monuments larger than 5,000 acres in Alaska–without specifying whether their size could be limited elsewhere or if a president can change or revoke one. What is clear is that Trump has taken the nation into uncharted territory when it comes to the future of the vast stretches of Western lands and waters preserved by his predecessors….

According to a National Geographic story by Laura Parker, “presidents have downsized about 20 monuments,” but most of those were minor adjustments to the boundaries.

Until December 4, the most significant reduction of a monument by a president happened in 1915 when President Woodrow Wilson shrank Washington state’s Mount Olympus National Monument by half of its 610,560 acres six years after it was designated by Theodore Roosevelt in 1909. The National Park service reports that the reasoning behind the reduction might have been an urgent need for timber supplies in response to the outbreak of World War I. The monument became Olympic National Park in 1938 under the presidency of Franklin D. Roosevelt, who later added 187,411 acres to the park in 1940, and another 20,600 acres in 1943. In the ensuing decades, several bills were defeated that sought to reduce the park by as much as 56,000 acres and extract more timber and minerals.

In Parker’s National Geographic story, titled “What You Need to Know About Trump’s National Monument Rethink,” she writes:

Disagreement over the Antiquities Act’s intent lies in its simplicity. The four-paragraph law clearly states that the president is authorized to “declare” national monuments. But the law says nothing about the presidential authority to do the reverse.

“The Antiquities Act does not provide for rescinding a national monument,” says Robert Keiter, director of the University of Utah’s Wallace Stegner Center, and a specialist in public lands law. “The courts have not ruled on whether there is an implied power in the statute. The issue has never been litigated previously.”

Numerous Attorney General opinions argue that the president lacks the power to revoke, most notably one authored by President Franklin Roosevelt’s attorney general in 1938. When FDR inquired if the Antiquities Act allowed him to scuttle a derelict Civil War-era fort in Charleston, South Carolina, as a national monument, he was advised it did not. Successive administrations heeded that advice….

The history of national monuments is replete with friction and strife, starting with the litigation over creation of the Grand Canyon National Monument, now one of the most popular tourist destinations in the world.

In 1907, opposing mining interests argued the monument was simply too large and violated a clause of the Antiquities Act that limits monuments to “the smallest area compatible with … the objects to be protected”…[but] the Supreme Court found that Theodore Roosevelt indeed had authority to create a monument of such vast size.

“An attack on tribal sovereignty”

Zinke and Trump insist that they have listened to the Native American tribes and are giving them what they want by undoing these two monuments. Individuals such as Rebecca Benally, a Dine (Navajo) tribe member and San Juan County Commissioner, have spoken out against the designations, but the governing bodies of the tribes are almost in complete unanimous support of Bears Ears and Grand Staircase Monuments remaining intact.

“There are two changes to the Bears Ears Commission of Tribes in Trump’s proclamation; renaming it the ‘Shash Jaa Commission,’ which is viewed as an attempt to curry favor with the Navajo, and create mistrust among tribes,” Gavin Noyes said. “The second change is appointing the commissioner from San Juan County’s 3rd district. Currently, this individual is Rebecca Benally who is allied with the Utah delegation, against the will of Utah Navajos who voted 98 percent in favor of keeping Bears Ears intact.”

Len Necefer is a member of the Navajo Nation who holds a PhD in engineering and public policy, and is also the founder of Natives Outdoors–a company that works with Indigenous artists and athletes to create outdoor apparel that supports tribal communities with a portion of its profits. He posted a reaction to Trump’s proclamations on his Facebook page:

Growing up on the Navajo Nation, my mom made it a point to get out and explore our ancestral homelands in what is now Bears Ears National Monument. Cedar Mesa, Dark Canyon Wilderness, Comb Ridge, Valley of the Gods were places that we would often visit as they were less than three hours away from our home in Tsaile, Arizona. These are where I had some of my first outdoor experiences. These places are where I encountered the thousands of years of history that I come from. This is the place where I first felt proud about being Navajo.

President Trump’s action to drastically reduce the Bears Ears and Grand Staircase Escalate National Monuments represents a step towards dismantling not only the institution of public lands, but the sovereignty of tribal nations. In so doing, the administration and their anti-public and tribal lands supporters have inadvertently strengthened a promising partnership between tribes and the outdoor industry. Combining the collective political and legal power of tribes with the outdoor industry’s substantial financial and social influence creates a powerful force.

The Bears Ears National Monument was established as a result of a multi-decade effort by the five tribes of the Bears Ears Intertribal Coalition. These tribes worked to collectively exert their sovereignty as native nations in an effort to protect the numerous cultural and ecological resources of their ancestral homes. The Coalition was driven by an understanding that the value of these ancestral resources far outweigh the value that could come from extraction of mineral resources…. [The Bears Ears Monument] represents a monumental step in recognizing the intrinsic capability and sovereignty of native nations. It also sets a precedent for advancing even more effective and sustainable public lands management. Sovereign tribal nations have a proven track record of honoring culture and history over money and profit; doing so is critical to protecting the integrity of public lands.

The proclamation establishing Bears Ears was also the first declaration that specifically mentioned the significant outdoor recreation value of such areas for activities including climbing, mountain biking, and rafting. This proclamation also signaled the opportunity for southern Utah, and places across rural America, to step away from the boom-and-bust cycles of resource extraction through cultivating sustainable outdoor recreation and tourism. Moab, Utah, is a great example of how this can happen…. The [former mining] community…[developed] an economy based in outdoor recreation and tourism. Today, Moab is a vibrant hub that attracts millions of visitors from around the world every year.

The Trump Administration has made the calculation that the support for public lands is fractured, and lacking resources. This is a gross underestimation. “Outdoor dirtbags” have become successful and politically active. The Outdoor Industry Association’s most recent economic impact study demonstrated that $887 billion in economic activity and 7.6 million jobs come from outdoor recreation economies. This puts them near the same level of significance of the oil and gas industry. According to the American Petroleum Institute, this industry supports 10.3 million jobs and generates $1.3 billion in economic activity annually. Outdoor companies such as Patagonia and REI have used this success to organize formidable support for protecting public lands–public comments on the Bears Ears reduction topped 2.8 million, with [the vast majority] opposing reduction. Interior Secretary Zinke tried to downplay the significance of this wave of opposition as a “well-orchestrated national campaign organized by multiple organizations.” Actually, it reflects on how important public lands are to the American people.

The administration’s decision to reduce national monuments is an opportunity for organizing. This is a critical moment for varied and diverse sets of user groups to come together in protecting public lands, tribal sovereignty, and our shared opportunity to have more sustainable economies. As the opposition to the Bears Ears reduction clearly indicates, this has already begun to happen. With advancements toward inclusivity in the politics of the outdoor industry, the administration has picked a losing battle that will only serve to strengthen public support for public lands and the many tribes who call these places home.

The website of Natives-Outdoors.org normally includes a shopping section for its own brand of apparel, but for the week following Trump’s proclamations it consisted of only a single page with the message: “On December 4th President Trump signed executive orders to dramatically shrink the Bears Ears & Grand Staircase Escalante National Monuments. This is an attack on tribal sovereignty & public lands. Please consider donating to the following organizations [Utah Dine Bikeyah and Friends of Cedar Mesa] to fight this unlawful act.”

“Given the gravity of the situation we are directing folks to support the organizations on the ground,” Necefer said in an email.

Q&A with Len Necefer

Can you elaborate about what [Natives Outdoors’ webpage] specifically means by “This is an attack on tribal sovereignty”?

Tribes are technically considered sovereign nations in the US–they are independent governments. The five tribes in this suit collectively worked together over many decades to protect this area. The action is an affront to their ability to govern.

In his speech, Trump said, “We have seen how this tragic federal overreach prevents many Native Americans from having their rightful voice over the sacred land where they practice the most important ancestral and religious traditions.” As a Native American, what would you say in response?

Bullshit first of all. For publishing purposes, the five elected governments that came together to push the protection of these areas are the voices of the people. The people elected these officials to work on their behalf to protect these areas. There’s a claim flying around that a majority of Utah Navajos don’t support this Monument, which is categorically false. All seven Navajo local government chapters in Utah all supported the creation of this monument. This is simply an attempt to try and divide and conquer the support.

Did you attend any of the pro-monument rallies before or during Trump’s announcement? If so, how would you describe what took place?

Yes I attended the rally on the day of his announcement. The event really seemed to be an outlet for folk’s frustration with the Trump administration through the lens of the monuments issue. The event was peaceful for the first part, however there were some scuffles between Trump supporters and one demonstrator. Overall it was an effective rally.

Necefer’s opinions reflect a majority consensus among the tribes that the monuments should be kept. Before Trump’s arrival in Utah, the Utah Dine Bikeyah website posted several comments from its members at the end of October that included the following statement from UDB Chairman Willie Grayeyes:

“Secretary Zinke refused to meet with the Native American community in San Juan County, and locals cannot recall a single time in Senator [Orrin] Hatch’s 42-year career when he has ever visited our reservations in San Juan County. Senator Hatch does not represent grassroots low-income people. Instead of further agitating our community along racial lines, we ask President Trump to stop the harm he is causing. Please leave all protections in place.”

[Another worthwhile interview with Len Necefer discussing the December 4 proclamations can be found here. Necefer was also interviewed about Natives Outdoors in a recent Alpinist.com story by Teresa Baker titled “The Changing Faces of the Outdoors.”–Ed.]

“Maps don’t lie”

Trump, Zinke, Utah Senator Orrin Hatch–who for many years has pushed for greater state control over public lands and favored industry over the environment–have all stated numerous times that their desire to change Bears Ears and Grand-Staircase National Monuments has nothing to do with energy development.

Yet, until the website was changed sometime around December 20, an “America First Energy Plan” was at the top of Trump’s list of “issues” outlined on WhiteHouse.gov, which states:

For too long, we’ve been held back by burdensome regulations on our energy industry…. We must take advantage of the estimated $50 trillion in untapped shale, oil, and natural gas reserves, especially those on federal lands that the American people own….

Under the objective of this stated goal, the BLM has been ordered to prioritize energy development in general over other uses.

Leading up to Trump’s December 4 proclamations to change the monuments, Murdock said there had been a flurry of leases issued for drilling along the boundaries of the protected area.

Alpinist attempted to check gas-leasing records with the BLM and was directed to the Department of Interior, which has not responded.

A series of reports in The Salt Lake City Tribune by Brian Maffly, however, track an uptick of drilling interests in the region in recent years. A September 25 article states, “The Bureau of Land Management plans to move forward on 52,000 acres of proposed oil and gas leases in archaeologically sensitive parts of southeastern Utah.” In a November 10 story, Maffly reported, “…anti-monument forces are promoting the hydrocarbon potential ‘locked up’ under both monuments. In direct conflict with [Gov. Gary] Herbert’s statement [that energy development was not a factor in the state’s request to have the monument rescinded], the caucus’ letter highlights access to oil and gas as a rationale for erasing the Bears Ears monument.”

“Bears Ears National Monument allows most uses* except for a couple, such as oil and gas development,” Murdock said. “[The politicians opposed to the monuments] keep saying this isn’t about energy but the maps don’t lie.” (See map below.) [*Hunting, fishing, gathering and wood cutting, cattle grazing, climbing, mountain biking, horseback riding and more, are permitted in the monument that is outlined in Obama’s proclamation.]

To be clear, there were legal, pre-existing leases for oil and gas development within the former Bears Ears Monument, but the original monument designation would have prevented more energy development from occurring.

A December 8 Washington Post article by Juliet Eilperin reported the newspaper had obtained documents that indicated “a uranium company launched a concerted lobbying campaign to scale back Bears Ears National Monument, saying such action would give it easier access to the area’s uranium deposits and help it operate a nearby processing mill….”

A press release from the Access Fund contends that “…much of the area excluded from the original Bears Ears National Monument would be opened up to mineral exploration and oil and gas leasing, including lands abutting the world-class climbing at Indian Creek.” (See map below.)

Arguments over size and “redundant” protections

Opponents of the monuments argue that archaeological sites are already protected by federal law and the monument designations do not provide additional protections. Devlin Gandy, an archaeological graduate student at Cambridge University specializing in the Great Basin area, however, said that “monument status gives more funding for archaeologist and Native stakeholders to monitor and protect these sites, and the planning of the monument implicitly involved Native stakeholders from the beginning.”

“There are potentially over 100,000 sites that haven’t been recorded yet…” Gandy said. “in these thousands of sites, we have traces of the rise and fall of multiple Southwest traditions and civilizations. We get a glimpse at how humans have already adapted to climate change, it gives us understanding into how the Great Basin itself came to be the Great Basin through human interaction. Beyond that, these places are the living history and culture for many tribes, as many Native people practice a spatial conception of history, meaning that where things happened are often more significant than exactly when they happened. These places are interwoven to cultural identity and they’re under threat now. Going further back, there’s some sites there that are potentially some of the oldest sites that we know of in the Americas at the moment…. There’s sites in the south side of the monument that just got cut out that have been suggested to be the only depictions of mammoths on the continent. If they’re mammoths, they’re the only known mammoths depicted in North or South America–they would be at least 10,000 years old….

“Bears Ears is also significant to the Mormon faith. The journey of the Mormon settlers to the San Juan River is a chronicled event in their lore. That path is now an archaeological site that was protected in its near-entirety by the monument, but parts of it have been removed under the new designations.

“With Bears Ears, there’s this remarkable continuity from the distant past of the Ice Age to the recent end of the Indian Wars (which finished in Bluff, Utah, with Posey’s War). The landscape has been interwoven and built with Native people for well over 10,000 years…. There are places there where people may have occupied almost continuously since the Ice Age.”

Theresa Pasqual, former director of Acoma Pueblo’s Historic Preservation Office, recently told High Country News: “Most of our pueblos are still transmitting their migration history through oral means. So when you have development that begins to impact many of these sites they are literally destroying the pages of the history book of the Pueblo people.”

Opponents also argue that the size of Bears Ears and Grand Staircase Monuments were unreasonably large and violate a provision in the Antiquities Act that states that monuments “shall be confined to the smallest area compatible with proper care and management of the objects to be protected.”

“The Access Fund believes 1.35 million acres is an appropriate size [for Bears Ears],” Murdock said. “If you start cutting it to pieces you lose that value. These vast landscapes are becoming more and more rare. Like the Grand Canyon, the vastness is the feature.”

“This is a precedent-setting moment,” Access Fund Executive Director Brady Robinson said in the December 6 press release. “This fight is about more than just protecting the incredible climbing at Bears Ears. Nearly 60 percent of climbing areas are on federal public lands, and this proclamation threatens the Antiquities Act and the very foundation of our public lands system. Bears Ears is a critical battle in the greater fight for America’s public lands.”

A Hazy Horizon

Meanwhile, another plot twist worth keeping in mind is that, according to a recent profile on OutsideOnline.com, Zinke had a reputation as a “green Republican” who wasn’t afraid to buck party lines before he was appointed as the new DOI Secretary.

So what does the future hold for America’s Indigenous people, public lands, recreation, environment, wildlife and industries?

That, apparently, will be for the courts to decide.

In the meantime, Friends of Cedar Mesa has launched a Kickstarter campaign to build a Bears Ears Education Center that would be operated independently from the government in an effort to inform the public, preserve tribal culture and history, and advocate for the lands’ continued protection.

[A story from April 7 detailing the various stakeholders in the Utah national monuments and their arguments for and against the designation, as well as a closer look at the Public Land Initiative can be found here.]