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Zinke Recommends Revising Bears Ears National Monument

Interior Secretary Ryan Zinke has recommended President Trump and Congress “revise the existing boundaries” of Bears Ears National Monument.

The report comes a little over six weeks after Trump signed Executive Order 13792, calling for a “review” of all national monuments over 100,000 acres in size dedicated in the past 20 years. 27 monuments fell under the purview of this review. The Interior Department announced public comment on the review in early May.

According to a DOI press release, comment on Bears Ears has been extended to July 10; previously, public comment on Bears Ears had to be submitted by May 27, 2017, while all other monuments under review could be commented upon until July 12.

Bears Ears, of course, was designated a national monument by President Obama in the final weeks of December 2016, after Obama’s Interior Secretary Sally Jewell made a tour of the monument area in summer 2016. In 2015, a group of tribes formed the Bears Ears Inter-Tribal Coalition to stump in favor of monument designation.

The designation drew criticism from Utah GOP leadership, including Governor Gary Herbert, and Utah lawmakers in Washington. In particular, it drew the ire of U.S. Representative Rob Bishop (R-UT) who sought to include portions of Bears Ears in his Public Lands Initiative.

June 2016, an unknown group disseminated fliers around San Juan County falsely alleging a national monument designation would bar tribes from performing traditional herb- and wood-gathering activities. Although support of the monument has not been unanimous among area tribes, the Inter-Tribal coalition specifically sought a hand in drafting management practices, which included enshrining the right for Native Americans to gather herbs and the like.

Shortly after the November 2016 election, several Utah lawmakers (including U.S. Senator Orrin Hatch) to Zinke to address the monument designation, with some calling for a full rescission of monument status.

Under the 1906 Antiquities Act, presidents can establish national monuments and resize them; environmental legal scholars, however, say the president cannot unilaterally revoke monument status, saying such a move falls to Congress.

According to the Washington Post, Zinke, in an interim report postmarked June 10, 2017, did not dispute President Obama’s authority in designating Bears Ears a monument. He did, however, recommend that the President and Congress reassess the Bears Ears decision, saying the current monument designation exceeds the scope of the Antiquities Act. From the report:

In the final weeks of his second term, President Obama exercised his authority under the Antiquities Act (Act) to designate the Bears Ears National Monument (BENM) in Utah. The external boundary of BENM encompasses almost 1.5 million acres of land. The lands within BENM consist of Federal lands managed by the Bureau of Land Management (BLM) within the Department of the Interior (Department) and U.S. Forest Service (USFS) within the Department of Agriculture; the external boundary also encompasses sections of State land and smaller private parcels, one of which is owned by the Nature Conservancy. While there are designated wilderness and wilderness study areas (WSAs) within BENM, much of the land is compatible with multiple-use practices, including recreation; grazing; timber harvest; mining; and traditional activities such as gathering of medicinal herbs and plants, hunting, fishing, and wood-gathering.

The BENM contains unique geologic features and objects of historic or scientific interest deemed culturally important to Native American tribes, including artifacts, rock art, archeological sites, dwellings, and areas used for traditional rituals, gatherings, and tribal practices. Selected Native tribes have a formal advisory role under Proclamation No. 9558, but are not authorized a formal management role under existing law.

The Act authorizes the President to designate objects of scientific or historic interest on Federal lands for protection as a monument as defined in the establishing proclamation, but the authority to reserve lands as part of a monument is limited to an area that is “the smallest area compatible” with the proper care and management of those objects. The protection of qualifying objects within the monument can be identified and reasonably segregated to reflect the “smallest area compatible” intent and to concentrate preservation resources.

Therefore, in consultation with the Secretary of Agriculture, the Secretary of the Interior (Secretary) recommends that (1) the existing boundary of the BENM be modified to be consistent with the intent of the Act; (2) Congress authorize tribal co-management of designated cultural areas; (3) Congress designate selected areas within the existing BENM as national recreation areas or national conservation areas, as defined by law; and (4) Congress clarify the intent of the management practices of wilderness or WSAs within a monument.

Zinke wrote the report after touring the Bears Ears area and meeting with stakeholders, although on ground reports pointed out Zinke met more with anti-monument groups than pro-monument ones.

The decision fits a recent pattern with the Interior Department reversing course on decisions made during the Obama administration. Last week, we reported the Interior was considering scrapping greater sage grouse management plans, which were hammered out over five years of debate as an alternative to Endangered Species protections. Earlier this year, the Interior announced it would not consider transferring control of the National Bison Range to tribal hands.

The decision, predictably, sparked immediate outcry from environmental groups, while Utah lawmakers were more jubilant, according to the Post:

“If you look at the Bears Ears as a whole, there’s a lot more drop-dead gorgeous land than there are historic, prehistoric objects,” the secretary said, adding that he could not provide a specific acreage estimate because it would depend on how Congress would draw the new lines. Referring to the area’s key historic sites and structures, he said, “these items and objects can be identified, segregated and reasonably separated.”

The proposal drew sharp criticism of environmental and outdoors’ groups, along with praise from Utah Republicans.

National Wildlife Federation president and CEO Collin O’Mara, who participated in a signing ceremony at Zinke’s office during his first day on the job, said in a statement that the administration solicited public input on the matter, and “more than a million hunters, anglers, and outdoor enthusiasts from Utah and the entire country loudly proclaiming Bears Ears deserves protection. For the Administration to then ignore that broad showing of support and recommend reducing the boundaries of Bears Ears is both disappointing and baffling.”

Heidi McIntosh, managing attorney for the Rocky Mountains office of Earthjustice, said the environmental law firm’s attorneys were readying a lawsuit to challenge the recommendations. “Make no mistake: unilaterally shrinking the boundaries of Bears Ears National Monument would not only be a slap in the face to the five sovereign tribes who share sacred ties to this land, it would violate both the Antiquities Act and the separation of powers doctrine.”

[…]

Sen. Orrin G. Hatch (R-Utah) called the plan “an unquestionable victory for Utah.”

”This recommendation reflects a balance of our shared priorities of protecting this land and the antiquities that are found on it while still preserving local involvement, and taking into consideration the needs of the local communities,” Hatch said.

The Post adds the timeline on any Bears Ears legislation passing Congress is fuzzy; a bill to help guide officials differentiate between “national recreation areas” and “national conservation areas” stalled in the House last year. In addition, past officials from the W. Bush and Obama administrations have testified that conservation designations “should not diminish the protections that currently apply to the lands.”

Zinke said, regardless of when Congress passes the legislation, President Trump would probably sign it swiftly.

The announcement is a coup of sorts for the Utah GOP, who have been under the hot light for their public lands stance. Earlier this year, we reported that Outdoor Retailer, a bi-annual outdoor clothing and equipment convention held in Salt Lake City, would be moving out of Utah in light of Governor Herbert’s opposition to Bears Ears. Shortly after the Interior announced its monument review, Patagonia threatened litigation against the Trump Administration.

The news also comes after numerous western chambers of commerce petitioned the government to start an economic study of outdoor recreation, as mandated under the 2016 Outdoor REC act. Under the act, recreation must be considered when calculating the Gross National Product (GDP); similar studies have shown a positive correlation between proximity to federal lands and economic health and job growth in rural communities.

The implications of such a study would have much bearing on the fate and future of Bears Ears, irrespective of whether it retains its monument designation.

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