Regulatory Developments

Two National Monuments Modified by Trump Proclamations

On Monday, President Donald Trump issued two proclamations “modifying” the boundaries of two national monuments in Utah: Bears Ears National Monument (BENM) and Grand Staircase-Escalante National Monument (GSENM). Under the proclamations, the area in the BENM protected under the federal 1906 Antiquities Act will be reduced by 85 percent from 1.35 million acres to 201,876 acres, and the protected area of the GSENM will be reduced by 50 percent from 1.9 million acres to 997,490 acres.

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The modifications, which will take effect 60 days after the December 4, 2017, signing, will divide the national monuments into noncontiguous parcels—two for the BENM and three for the GSENM. Upon the effective date, the proclamations state that the public and National Forest System lands excluded from the monument reservation will be open to:

  • Entry, location, selection, sale, or other disposition under the public land laws and laws applicable to the U.S. Forest Service;
  • Disposition under all laws relating to mineral and geothermal leasing; and
  • Location, entry, and patent under the mining laws.

End to Abusive Practice

“The Antiquities Act does not give the Federal Government unlimited power to lock up millions of acres of land and water, and it’s time we ended this abusive practice,” the president said. “Public lands will once again be for public use.”

The proclamations stated that the modifications are faithful to the goals of the Antiquities Act, which indicate that any reservation of land as part of a monument be confined to the smallest area compatible with the proper care and management of the objects of historic or scientific interest to be protected. Both proclamations state that some of the objects protected by previous presidents are not unique to the monument. Also, the proclamations continued, some of the particular examples of those objects within the monument are not of significant historic or scientific interest, are not under threat of damage or destruction such that they require a reservation of land to protect them, and are already subject to federal protection under existing law and agency management designations.

EO and Zinke Review

In April 2017, Trump issued an Executive Order (EO) directing Interior Secretary Ryan Zinke to review national monument designations made since January 1, 1996, where the designation covers more than 100,000 acres, where the designation after expansion covers more than 100,000 acres, or where Zinke determined that the designation or expansion was made without adequate public outreach and coordination with relevant stakeholders.

Zinke’s review included personally traveling to eight monuments and meeting with stakeholders. He then provided the president with a report in August, which included recommendations on modifying the size of certain monuments.

“As I visited the Monuments in Utah, I met with Americans on all sides of the issue—from ranchers to conservationists to tribal leaders—and found that we agree on wanting to protect our heritage while still allowing public access to public land,” said Zinke in a statement. “The people of Utah overwhelmingly voiced to us that public land should be protected not for the special interests, but for the citizens of our great country who use them, and this is what President Trump is doing today.”

Lawsuit Ready to Go

The expected announcements mobilized environmental and conservation groups who promptly filed a complaint with the U.S. Court of Appeals for the D.C. Circuit. The basis of the lawsuit, which is specifically directed at the GSENM modification, is that the Antiquities Act authorizes presidents to create national monuments; it does not authorize presidents to abolish them either in whole or in part.

“While past presidents have used the Antiquities Act to protect unique lands and cultural sites in America, Trump is instead mangling the law, opening this national monument to coal mining instead of protecting its scientific, historic, and wild heritage,” said Heidi McIntosh, managing attorney in Earthjustice’s Rocky Mountains office. “We will not let this stand. We will use the power of the law to stop Trump’s illegal actions.”

Trump’s proclamations are available here. The conservation group complaint is here.

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