Legal Updates

Bears Ears . . . What Does it All Mean?

Last week, Natural Resources Chairman Rob Bishop (R-Utah), formally introduced his revamped House Bill, the Public Lands Initiative, which seeks to designate millions of acres of proposed Wilderness, establish large motorized recreation areas, and expedite the development of oil, gas and minerals in southeastern Utah. The Bill encompasses the controversial Bears Ears, a pair of buttes located in San Juan County, Utah. Bordered on the west by Dark Canyon Wilderness and Beef Basin, on the east by Comb Ridge and on the north by Indian Creek and Canyonlands National Park, the Bears Ears are named for their resemblance to the ears of a bear emerging from the horizon. Various American Indian cultural legends and history stories incorporate the Bears Ears into their lore. Bishop initially introduced the Public Lands Initiative legislation in January but, due to its failed initial reception, the Bill has undergone various changes in the intervening months.

Bishop’s draft legislation from January would have protected 4.3 million acres, including 2.2 million acres of wilderness, in seven counties: San Juan, Grand, Emery, Carbon, Uintah, Duchesne and Summit. The original plan included a conservation designation of 1.1 million acres around the Bears Ears buttes. The new legislation increases the designation to 1.4 million acres of the now proposed 4.6 million acre region as a national conservation area surrounding Bears Ears, but leaves more lands available for multiple uses. The Bill would transfer all federally-owned energy and mineral resources in the southern Utah area to state control, paving the way for new uranium, coal, and oil extraction.

In addition to granting the State of Utah unilateral control over federal energy and minerals across southern Utah, Bishop’s Bill would open Recapture Canyon, one of many areas in the region rich in Native American sacred sites, to motorized vehicles, fulfilling an objective of anti-federal government activists who staged an armed takeover of the area in 2014 under the direction of Cliven Bundy.

Although the Bill seeks to establish use designations and expand certain protections to these federal lands, Bishop has openly and strongly argued against designation of Bears Ears as a National Monument. Meanwhile, the Inter-Tribal Coalition, a five-tribe organization made up of the Hopi Tribe, Navajo Nation, Ute Mountain Ute Tribe, Pueblo of Zuni, and Ute Indian Tribe, is pushing for National Monument protections of the Bears Ears region within Bishop’s Bill. The leaders of the Inter-Tribal Coalition, who walked away from talks with Bishop last December, disapprove of the latest version of Bears Ears protections contained within his revised Bill, released July 14, 2016, and instead are lobbying President Obama to designate a 1.9 million acre section of the land as “Bears Ears National Monument.”

As discussed in a prior WSMT blog post, the path to National Monument designation and protection began in 1906, when Congress passed the Antiquities Act in response to looting and grave-robbing taking place in the Four Corners region, at places like Mesa Verde, Colorado (which is now a World Heritage Site as well). The Antiquities Act grants the President authority to designate National Monuments in order to protect “objects of historic or scientific interest.” The full extent of presidential authority came to light after President Clinton’s surprise proclamation establishing the Grand Staircase-Escalante National Monument in 1996 led Utah counties to sue, arguing that the Antiquities Act violates the Constitution by usurping Congress’s power to manage federal lands. However, the Tenth Circuit Court of Appeals ultimately sided with the White House, holding that courts lack authority to determine whether the President abused his discretion in designating a National Monument. The result is that a president’s power under the Antiquities Act is effectively unlimited. Indeed, the Grand Staircase Escalante decision continues to shape the politics of public lands, frustrating critics of the Antiquities Act.

Clinton’s designations set a template for the Obama Administration which has approached the designation of National Monuments as a way to bolster safeguards for the country’s national treasures. In the case of Bears Ears, those in favor of National Monument designation, including the Inter-Tribal Coalition, assert that the area is imperiled by the kind of looting and pillaging that first inspired the Antiquities Act, as well as the modern threat of unrestricted ATVs ripping through the desert terrain.

Opponents disagree with the need for National Monument designation. Bishop has heard their concerns and, in response, undertaken a swift effort to develop a Bill that maintains balance. His Bill establishes areas outside of the proposed Wilderness as “energy zones” to foster development of oil and gas, coal, and other minerals—important economic staples for Utah. In part, Bishop and his fellow critics look at the Grand Staircase-Escalante decision as a symbol of federal power run amok. Because Clinton carried out the designation in near-total secrecy, it seeded distrust and resentment among state officials. Moreover, critics blasted Clinton for locking up potential for development of the encompassed massive coal deposit and turning the region into a vast playground for Easterners—concerns that hit close to home for opponents of the Bears Ears National Monument. On the other hand, conservationists maintained that protecting Grand Staircase-Escalante was a key step in leveraging the recreational value of BLM lands. Negative reaction in the days following the announcement of Bishop’s redrafted Bill confirms that the Bill is insufficient to bring the contrasting objectives of mineral development and conservation into agreement.

While Utah is already widely known for its spectacular outdoor recreation opportunities at treasured destinations and recreation havens—including, for example, Arches National Park, Dinosaur National Monument, Zion National Park—Bears Ears would add another gem. The state’s public lands bring in dollars from residents, as well as out-of-state and international visitors. According to the Outdoor Industry Association Utah generates $12 billion in consumer spending and $3.6 billion in wages and salaries related to outdoor recreation, no small impact on the state’s economy (and, for that matter, the national economy too).

An important piece of the proposed legislation is the separate and distinct use designations which specifically includes areas that permit motorized recreation, a wildly popular activity in Utah. But there will also be plenty of hiking, biking and other opportunities to appreciate this unique area. Regardless of final form, the Bears Ears Public Lands Initiative Legislation will continue to provide outdoor recreation opportunities in Utah.

Due to the magnitude and complexity of the Bill, Bishop expects it to get a vote this fall after further hearings and committee vetting. However, a National Monument designation may already be a done deal in the eyes of the Obama Administration. Secretary of the Interior Sally Jewell visited the area in the days surrounding Bishop’s announcement of the revised Bill. While her attendance doesn’t necessarily mean a monument decision is imminent, other such visits have foreshadowed National Monument designations.