Bears Ears in the News: Biden’s Executive Order
Near Mexican Hat, Utah. Stephen Strom, 2017.
Welcome back to Bears Ears in the News, where we’re following the reaction to President Joe Biden’s executive order issued last week that, as the Salt Lake Tribune put it, “starts [the] process to restore national monuments.” Here’s more from crackerjack reporters Brian Maffly, Zak Podmore, and Taylor Stevens:
"Within the first few hours of taking the oath of office on January 20, the White House said the new president signed an executive order calling for...a review of the boundaries set for Bears Ears, designated by President Barack Obama in 2016, and Grand Staircase-Escalante, designated by President Bill Clinton in 1996.” Notably, “Biden’s order highlights the impermanence and perhaps futility of Trump’s gesture that severely shrunk those boundaries."
Reviewing Trump’s Reduction
You can read the full text of Biden’s executive order here.
It’s an expansive document, covering everything from establishing robust fuel-economy standards to calculating the “social costs of greenhouse gases,” and, in Section 3, “restoring national monuments.” Instead of recommending the immediate restoration of Bears Ears and Grand Staircase-Escalante, another Utah monument that was slashed in half on the same day Bears Ears was reduced, the order calls for the Interior Secretary to conduct a 60-day review of Trump’s monument reductions and recommend actions Biden can take. In the meantime, the Attorney General can call for the judge presiding over the the court cases challenging Trump’s order (one for Bears Ears, one for Grand Staircase-Escalante) to stay the cases until Biden acts.
“Expansion Almost Certain”
The review period leaves open the possibility of negotiating some sort of legislative compromise on Bears Ears through a vote in Congress, which some think would be less controversial than Biden reversing Trump’s actions via presidential proclamation. But as another recent Salt Lake Tribune piece illustrated, a number of past and present stakeholders and key players in the Bears Ears saga think Biden’s mind is made up. And with Rep. Deb Haaland (D-New Mexico) poised to become the new Secretary of the Interior, an Indigenous woman who has advocated for the restoration of Bears Ears will play a central role in deciding its fate.
“A Review in Name Only”?
If you thought Utah’s political establishment might not be jazzed about the prospect of Biden undoing Trump’s actions, you won’t be surprised by this headline: “Utah politicians oppose Biden’s executive order on Bears Ears and Grand Staircase.”
In an official statement released the same day as Biden signed the executive order, Republican elected leaders including Utah Governor Spencer Cox and U.S. Senators Mike Lee and Mitt Romney noted that "Roughly two-thirds of our backyard belongs to the federal government, which has meant land management actions have often been done to us rather than with us. A review in name only with predetermined results, which ultimately leads to a unilateral executive order enlarging the monuments’ boundaries, will not solve the root of the problem and will only deepen divisions in this country."
(Interestingly, some of these same politicians in 2017 praised President Trump’s unilateral executive order to drastically reduce the monument’s boundaries following what many saw as a review in name only with predetermined results.)
Here Comes the Opposition…
Fast forward a week. Having voiced their dissatisfaction with Biden’s executive order, Sens. Lee and Romney took the next step, introducing legislation that would prohibit the President from establishing or expanding a national monument in Utah without approval from Congress and state lawmakers. It’s clear that they are expecting President Biden to use the Antiquities Act of 1906, which gives the President the authority to unilaterally declare national monuments. President Barack Obama used the Act to establish the original Bears Ears National Monument in 2016 at the behest of five Native American tribes, who advocated for the protection of the landscape for its ecological and cultural significance. At the time, his decision to do so was criticized by many conservatives in Utah and across the U.S. as a prime example of “federal overreach,” major decisions about the fate of Western lands being made by D.C. politicians thousands of miles away.
The Legacy of “The Grand Staircase”
Twenty years earlier, rural Utahns voiced similar sentiments when President Bill Clinton used the Act to establish Grand Staircase-Escalante. Some locals were thrilled that the wild landscapes in their backyard were at last receiving federal protection. They also saw the opportunity to promote the monument to tourists who would spend their money locally and bolster the local economy. (Judging from data documenting the growth of the local economy after the monument was designated, it seems they were onto something.)
Others seethed at the federal government’s move to protect mineral-rich land from coal mining; a similar situation played out at Bears Ears with uranium mining and oil and gas extraction. The desire of local and national politicians to placate locals in both places who opposed the monuments’ designation informed the Trump administration’s decisions to reduce Grand Staircase and Bears Ears simultaneously.
What About a Legislative Solution?
Tellingly, Lee and Romney left the door open for compromise on Bears Ears, saying they would entertain discussions about the monument’s boundaries with the president and his cabinet if offered "a seat at the table” during the review process. This may be a nod to the work of their Congressional colleague, Rep. John Curtis (R-Utah), who since early 2018 has been meeting with stakeholders in San Juan County as well as members of each tribe in the Bears Ears Inter-Tribal Coalition to explore a legislative solution to the Bears Ears battle. Ideally, such legislation would balance landscape protection with the need for economic development, including drilling and mining, in Utah’s poorest county. Most importantly, at least in the eyes of Utah politicians, a decision made by Congress would be less controversial among their constituents than a unilateral decision made by a President.
Curtis introduced a bill in 2018 that sought to accomplish these goals, but his decision to include language in the bill that would codify the boundaries of Trump’s much-reduced monument alienated the tribes. The bill disappeared without fanfare, but, as this Salt Lake Tribune piece details, Curtis continued to build relationships with the tribes in the hopes that together, they might find a way to “yes” on Bears Ears.
“Tossed Back and Forth Every Election”
The same Tribune article notes that some Indigenous groups and members of the Obama administration involved in negotiations over Bears Ears think the time for compromise has long since passed. Yet some monument proponents concede that a legislative solution would allow for more certainty and lead to less politicking.
Friends of Cedar Mesa Executive Director Josh Ewing was involved in the failed multi-year effort by then-Rep. Rob Bishop (R-Utah) to craft a legislative solution that would have brought certainty on land-use issues for residents of San Juan County. Ewing, whose organization supported the creation of the monument, recently told KSL that “this landscape is far too important to be used as a political tool that gets tossed back and forth every election.”
And What About Those Lawsuits?
As mentioned earlier, there are lawsuits pending in federal court positing that Trump’s move to invalidate national monuments established by his predecessors was illegal. The central question all parties seek to answer: Was it? Does the Antiquities Act give a sitting U.S. president the authority to undo a past president’s monument designation(s)? Legal scholars have been debating this for years; stakeholders on both sides of the issue are eager to resolve it and have certainty moving forward.
One Thing’s for Certain: “Bears Ears is Just the Beginning”
President Biden has made racial justice and equity a key priority in his administration’s early days. This extends to Indian Country: Just over a week after taking office, he signed a Presidential Memorandum stating his commitment to “reinvigorat[ing] the tribal consultation process,” in which the federal government consults with tribal nations on a government-to-government basis concerning policies and priorities for tribes. This includes policies pertaining to public lands included in the original Bears Ears National Monument.
In this story from High Country News, "Tribal leaders say that returning millions of acres should be only the beginning of Biden’s commitment to protect more public lands — and that tribal nations should be leading the charge. It’s more than just the threat of degradation, they say; Indigenous voices are long overdue in public-land management."