On April 26, 2017, President Trump issued an Executive Order on the Review of Designations Under the Antiquities Act (EO 13792), which calls for a review of all Presidential National Monument designations and expansions of these designations made since January 1, 1996. Within 45 days of the Executive Order, Secretary of the Interior Zinke is to provide an Interim Report to the President, and within 120 days, Secretary Zinke is to send in the final report to the President of the United States. Review of National Monuments may present a significant threat to sacred lands contained within them, and could open these National Monuments up to energy development, public access, harmful recreational activity, and mining that could have severe impacts on historic, environmental, and cultural resources. Bears Ears National Monument was the only National Monument specifically mentioned in the Executive Order and, as compared to the other National Monuments, it was granted only a two week public comment period. Public comments on Bears Ears National Monument end May 26, 2017.
The Secretary of the Interior has been directed by the Presidential Executive Order to consider the following:
(i) the requirements and original objectives of the Act, including the Act’s requirement that reservations of land not exceed “the smallest area compatible with the proper care and management of the objects to be protected”;
(ii) whether designated lands are appropriately classified under the Act as “historic landmarks, historic and prehistoric structures, [or] other objects of historic or scientific interest”;
(iii) the effects of a designation on the available uses of designated Federal lands, including consideration of the multiple-use policy of section 102(a)(7) of the Federal Land Policy and Management Act (43 U.S.C. 1701(a)(7)), as well as the effects on the available uses of Federal lands beyond the monument boundaries;
(iv) the effects of a designation on the use and enjoyment of non-Federal lands within or beyond monument boundaries;
(v) concerns of State, tribal, and local governments affected by a designation, including the economic development and fiscal condition of affected States, tribes, and localities;
(vi) the availability of Federal resources to properly manage designated areas; and
(vii) such other factors as the Secretary deems appropriate.
82 FR 20429-20430 (May 1, 2017).
Historically, no President to-date has ever taken away a National Monument designation or reduced the size of a National Monument. Legal experts question the authority that the President has under the Antiquities Act to reduce or revoke National Monument designations, claiming that this would require Congressional action. Senator Udall (D-NM), the Vice Chairman of the Senate Committee on Indian Affairs, tweeted on April 26, 2017, “The President doesn’t have the legal authority to rescind a national monument designation.” In his press release, Udall further stated, “As a member of the Appropriations and Indian Affairs committees, I will fight to protect and elevate these cherished monuments, and I won’t stand by if the Trump administration tries to open the door to selling them off to the highest bidder.”
On May 5, 2017, the Department of the Interior (DOI) released a list of affected National Monuments. The National Monuments currently under review include the following:
- Basin and Range (NV, 2015) (703,585 acres)
- Bears Ears (UT, 2016) (1,353,000 acres)
- Berryessa Snow Mountain (CA, 2015) (330,780 acres)
- Canyons of the Ancients (CO, 2000) (175,160 acres)
- Carrizo Plain (CA, 2001) (204,107 acres)
- Cascade Siskiyou (OR, 2000/2017) (100,000 acres)
- Craters of the Moon (ID, 1924/2000) (737,525 acres)
- Giant Sequoia (CA, 2000) (327,760 acres)
- Gold Butte (NV, 2016) (296,937 acres)
- Grand Canyon-Parashant (AZ, 2000) (1,014,000 acres)
- Grand Staircase-Escalanta (UT, 1996) (1,700,000 acres)
- Hanford Reach (WA, 2000) (194,450.93 acres)
- Ironwood Forest (AZ, 2000) (128,917 acres)
- Mojave Trails (CA, 2016) (1,600,000 acres)
- Organ Mountains-Desert Peaks (NM, 2014) (496,330 acres)
- Rio Grande del Norte (NM, 2013) (242,555 acres)
- Sand to Snow (CA, 2016) (154,000 acres)
- San Gabriel Mountains (CA, 2014) (346,177 acres)
- Sonoran Desert (AZ, 2001) (486,149 acres)
- Upper Missouri River Breaks (MT, 2001) (377,346 acres)
- Vermillion Cliffs (AZ, 2000) (279,568 acres)
- Katahadin Woods and Waters (ME, 2016) (87,563 acres)
- Marianas Trench (Pacific Ocean, 2009) (60,938,240 acres)
- Northeast Canyons and Seamounts (Atlantic Ocean, 2016) (3,114,320 acres)
- Pacific Remote Islands (Pacific Ocean, 2009) (55,608,320 acres)
- Papahanaumokuakea (HI/Pacific Ocean, 2006/2016) (89,600,000 acres)
- Rose Atoll (American Samoa/Pacific Ocean, 2009) (8,609,045 acres)
Tribes across the United States are calling for government-to-government consultations. At a press conference on May 3, 2017, the Bears Ears Inter-Tribal Coalition, consisting of representatives from the Navajo Nation, Ute Indian Tribe, Ute Mountain Ute, and the Pueblo of Zuni, spoke on the importance of protecting their Ancestral lands. Pueblo of Zuni representative and Co-Chair of the Bears Ears Inter-Tribal Coalition, Carlton Bowekaty, stated:
“I believe it is our duty to protect the traditional cultural knowledge that exists on Bears Ears National Monument. The reason why Bears Ears region is important to the Zuni People is because we have ancestral ties there. It is our belief that by reconnecting to our past, reconnecting with our language to these areas of cultural importance, that we bring balance to the world.”
Significant tribal cultural resources exist within Bears Ears–including sacred lands, burial grounds, medicinal plant growth areas, and many other tangible and intangible resources. These cultural resources would be in danger if the size of Bears Ears National Monument were reduced or designation was taken away.
The Bears Ears Inter-Tribal Coalition was established among the Hopi Tribe, Navajo Nation, Ute Mountain Ute, Ute Indian Tribe, and Pueblo of Zuni to advocate for a National Monument designation and to protect the tribal cultural resources therein through co-management of the area. Working tirelessly to achieve these objectives, the Bears Ears Inter-Tribal Coalition submitted a proposal and President Obama designated Bears Ears a National Monument in December, 2016. Now, the Bears Ears Inter-Tribal Coalition and the tribes involved are seeking government-to-government tribal consultations with Secretary Zinke during this federal review, which should occur in addition to the comparatively short public commentary period that is open to the general public.
Written public comments specifically on Bears Ears will be accepted until May 26, 2017 (see Federal Register Notice). All other written comments on National Monuments will be accepted by mail or online until July 10, 2017. To submit comments, go to regulations.gov and enter “DOI-2017-0002” in the search bar, or mail comments to Monument Review, MS-1530, U.S. Department of the Interior, 1849 C Street NW, Washington, DC 20240.” The Department of the Interior seeks public comments on:
(1) Whether national monuments in addition to those listed above should be reviewed because they were designated or expanded after January 1, 1996 “without adequate public outreach and coordination with relevant stakeholders;” and (2) the application of factors (i) through (vii) set forth above to the listed national monuments or to other Presidential designations or expansions of designations meeting the criteria of the Executive Order. With respect to factor (vii), comments should address other factors the Secretary might consider for this review.
For information on writing public comments please see the Federal Register Tutorial by the National Archives, Cornell University’s Regulation Room “What’s Effecting Commenting?”, and other resources provided by Turtle Talk. To read more about Bears Ears and its significance as a National Monument site, please see the information provided by the Bears Ears Inter-Tribal Coalition and Utah Diné Bikéyah, which also both provide opportunities to submit public comments.