Political debates often coalesce around competing narratives that, too often, wind up far removed from the facts. Debates surrounding the Bears Ears National Monument exemplify this tendency. What I try to do below through a series of questions is to unpick some of those narratives and to clarify some of the facts–facts that point up the complexity of the issue and that undermine the over-simplified narratives that, sadly, often get amplified by the media. I do so with a particular goal in mind, namely this: to the extent we get wrapped up in debating false or exaggerated narratives, more fundamental goals like protecting natural resources and/or strengthening rural economies tend to fall by the wayside. In fact, we may even end up harming those goals because, in a very real sense, we start debating the wrong issues.
Are these landscapes worth protecting? Absolutely. Over the years, I’ve grown to love this landscape–not for its dramatic vistas (though it offers some of those) but rather for its “living museum” quality and the way it slowly yields its secrets to the patient and the persistent. The region lacks the dramatic, grand scale cliff dwellings of Mesa Verde, some 30 miles to the East, but offers treasures of a less ostentatious sort: quiet canyons, soaring ravens, lonely mesas, crumbling, smaller-scale ruins perched on a cliff edge or tucked into a sandstone alcove, 700 year old fingerprints pressed into a piece of clay, brightly colored potsherds weathering away in the desert sun. This isn’t Zions, with its soaring canyon walls, Bryce with its ramparts of pastel towers, or Canyonlands with its infinite horizons and myriad overlooks. Points of interest here tend to be spread out, smaller, little known, and the coolest stuff may not be the most obvious: a random and ordinary-looking hill in this part of the world may be the remains of an ancient city. This path, a road built by an ancient people. This corn cob, the remains of an ancient meal. Fortunately, the distance of this area from population centers coupled with a lack of big, headliner attractions means a (relative) lack of people. That’s changing–a process that debates over the monument has only accelerated–and, sadly, all that increased interest and traffic threatens some of the very values that make this place special in the first place.
Are these landscapes–or at least a portion of them–worth protecting under the Antiquities Act? Yes! If the primary purpose of the Act is to protect antiquities generally (and its original impetus to protect Native American ruins and artifacts in particular), then creating a monument to protect the many archaeological resources in this area makes sense–far more sense, frankly, than many other monuments created in recent years to protect landscapes with nary an antiquity in sight. Of course, the analysis can’t end there, however. Legitimate questions remains as to the proper size and boundaries of such a monument, which brings us to the next set of questions …
Did President Trump act lawfully in cutting the size of the monument? How about President Obama in declaring such a large monument in the first place? Few people realize that the Antiquities Act itself is fairly simple and straightforward. It runs all of four paragraphs. You can read the entirety of it here in just a few minutes: https://www.nps.gov/history/local-law/anti1906.htm. Enacted in 1906 in an effort to protect archaeological resources in the southwestern United States from widespread looting by pothunters and treasure seekers, Section 1 of the Act imposes modest penalties–fines of “not more than five hundred dollars” and imprisonment of “not more than ninety days”–in an effort to protect such resources and other antiquities (like dinosaur bones) located on federal lands.
Those provisions are rarely invoked because other federal laws provide more robust protections for Indian ruins and dinosaur bones. The hotly disputed portion of the Antiquities Act comes in Section 2, which grants the President of the United States:
The authority, in his discretion, to declare by public proclamation historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest that are situated upon the lands owned or controlled by the Government of the United States to be national monuments, and may reserve as a part thereof parcels of land, the limits of which in all cases shall be confined to the smallest area compatible with proper care and management of the objects to be protected … .
That single sentence largely defines the terms of the legal debate over the actions of Presidents Obama and Trump as they relate to Bears Ears. Under a plain reading of the text, the act of “declaring a … national monument” falls within broad (but not unfettered) discretion given by Congress to the President. But does the word “declare” include the power to revise the boundaries of a monument designated by a prior President? If a President “declares” new boundaries–as several presidents before Trump have done–does that fall within the scope of his authority to “declare” a monument? How about to rescind a prior declaration? Finally, were the original boundaries as declared by President Obama “confined to the smallest area compatible with proper care and management of the objects to be protected”? That’s an important limitation on the President’s power. Was it honored with the original Obama declaration, the Trump revision, both, or neither? You decide. (By way of reference, you can read the Obama Declaration here: https://obamawhitehouse.archives.gov/the-press-office/2016/12/28/proclamation-establishment-bears-ears-national-monument and the Trump Declaration here: https://www.whitehouse.gov/the-press-office/2017/12/04/presidential-proclamation-modifying-bears-ears-national-monument.)
A few additional questions to consider:
Is this all about energy? If you buy into the hype, this debate is about either a “big oil conspiracy to rape and pillage a sacred landscape” (at one extreme) or “securing the economic future for rural Utah” (at the other). In truth, it’s neither. Why? For starters, the energy development potential of lands that fell within the original Obama Declaration and that now fall outside the Monument boundaries is low (see here for a reasonably objective point of reference: https://naturalresources.utah.gov/dnr-newsfeed/very-little-energy-potential-within-bears-ears-national-monument), meaning two things: first, it can’t be a ‘big oil conspiracy’ because big oil is, quite simply, not all that interested (either in destroying artifacts generally or developing this area in particular); second, reducing the size of the monument boundaries can’t be the salvation of rural Utah because–again–the high paying energy jobs that might be expected if this landscape were rich in energy potential won’t materialize because that potential simply isn’t there.
If the energy issue is over-hyped than what is this really about? Having spent a lot of time involved in this issue in one way or the other over the years, my sense is that Bears Ears represents something of a proxy war over a range of issues: federal overreach, county roads (RS-2477) and OHV use, climate change, and rural economic development–at least those and maybe more. The point is this: it’s complicated, and a lot of different agendas push and pull the debate away from a productive discussion about how to best protect the resources in question and the quality of life of the people who live there.
Did either President Obama’s declaration or President Trump’s declaration shift control of these lands from the federal control to state control? No. That’s an uninformed myth at best, a calculated distortion at worst. Neither declaration transferred so much as an inch of ground into or out of federal control. The sole debate involves the type of federal control and management, rather than federal v state or public v private control. Chances are that if someone makes such arguments about Bears Ears they are either (a) woefully misinformed, or (b) demagoguing the issue in an effort to manipulate your opinion. (That NEVER happens in public policy debates, right?!)
Are the lands that now fall outside the monument boundaries unprotected now that the boundaries have changed? No. All of the other federal laws and regulatory restrictions–NEPA, Wilderness Act, Endangered Species Act, Paleontological Resources Preservation Act, Archaeological Resources Protection Act, etc.–still apply. It simply means that protections associated with the Antiquities Act no longer apply. What does that mean in practice? It means that some of these lands are again open to applications to drill for oil or mine for minerals, subject to all other federal rules and regulations. Moreover, as we’ve already established, there really isn’t a lot potential for that on these lands, suggesting again that debates about energy are largely a sideshow.
How were Native American perspectives considered in the process? Which Native American Voices? How should they be? This may be one of the most interesting aspects of the debate. Why? Because Native American voices are not uniform on the issue, nor do they have an equal claim to the federal (non-reservation) lands in question. The Native American group most directly affected by the monument designation–Navajos living in Utah–tend to oppose the original designation and to support the move to reduce the Monument’s size or eliminate it altogether. On the other hand, a fairly broad coalition of Native American tribes called the Bears Ears Inter-Tribal Coalition, made up of the Hopi, Navajo Nation, Ute Mountain, Zuni, and Ute Indian tribes, supported the original Obama designation and opposed the Trump designation that reduced the Monument’s size.
While perspectives on the Monument vary, so do cultural and historic ties to the Ancestral Puebloan ruins and artifacts that dot this landscape. The word “Anasazi” has fallen out of favor in recent years and with good reason, as it’s a Navajo word that means “ancient enemy.” The Navajo settled this region after the civilization that built the ruins vanished, and the Navajo must have, at some point in their history, had conflict with that civilization. Likely, the most direct descendants of those people are the present day Puebloan tribes, including two members of the Inter-Tribal Coalition, the Hopis and the Zunis. Given that, how much weight should their opinions carry? Should it trump the views of Navajos who live in closest proximity and who have at least a few hundred years worth of history of their own tied to this place? Those aren’t easy questions to answer.
Nor is it clear how Monument designation either helps or hinders Native American interests. This is one of the poorest regions in the continental United States. Large swaths of the Navajo Nation still lack access to basic necessities like running water. Given that, what benefits local Native Americans more: natural resource development, tourism, or resource protection? Which of those goals are favored (or disfavored) by a designation? Should any one of these goals be elevated at the expense of the the others?
Lastly, even if the goal is preservation of cultural history (antiquities), which level of designation best promotes that goal? While Monument status may preclude some types of development, it also encourages tourism and outdoor recreation, both of which can do plenty of damage to sensitive cultural resources over the long term, particularly as increasing numbers of ignorant (if well-meaning) tourists flood into this remote landscape with very few resources available to manage all of that new use. Many of the most popular ruins in this area are already all-but devoid of artifacts. (The better known, the more they tend to be “swept clean.”) Pristine petroglyph panels have become marred by graffiti. Foot traffic and “look, I’m in a ruin!” selfies threaten thousand year old adobe walls.
That perspective is well-represented in this thoughtful op-ed published by Jim Stiles in the Denver Post last April: https://www.denverpost.com/2017/04/08/national-monument-status-is-not-enough-to-protect-bears-ears/
My point in all of this–again–is to point up some of the complexities associated with this debate and to undermine over-simplified narratives that tend to distort the real issues: how to we promote real and sustainable economic development, responsible energy development and tourism, and the preservation of priceless national and cultural treasures? Those goals are not mutually exclusive, though I fear superficial debates that either glorify or vilify monument status may jeopardize all of them. We can do better.