From the Land Desk: A big win for Bears Ears and Grand Staircase-Escalante National Monuments

This story was originally published by The Land Desk on August 15, 2023.

Sacred lands, public lands, tribal nations, and the Antiquities Act all scored a huge victory last week when a federal judge dismissed a lawsuit seeking to rescind President Biden’s 2021 restoration of Bears Ears and Grand Staircase-Escalante National Monuments. District Judge David Nuffer found that the Antiquities Act gives the president broad authority to designate national monuments and that it is up to Congress — not the courts — to review or limit that authority if it so chooses.

Some quick background:

• 1996: President Bill Clinton establishes Grand Staircase-Escalante National Monument on about 1.7 million acres of federal land in southern Utah. Conservative Utah politicians and Sagebrush Rebels and the Wise Use movement are apoplectic, insisting it would destroy the economies and cultures of the communities in and near the monument. 
• 1997: SITLA and the Utah Association of Counties — with the backing of Mountain States Legal Foundation and William Perry Pendley — file lawsuits asserting the monument’s establishment was illegal and arguing that the Antiquities Act itself is unconstitutional. SITLA dropped its case after reaching a lucrative land exchange deal with the feds.
• 2006: A federal appeals court dismisses the Utah Association of Counties lawsuit. By then, Congress had added acreage to GSENM, weakening opponents’ case. 
• 2010: Cedar Mesa — now inside Bears Ears National Monument — is included on a list of areas the Obama administration is considering for national monument or other protections. 
• 2015: Five sovereign tribal nations form the Inter-Tribal Coalition and propose the establishment of Bears Ears National Monument on 1.9 million acres of federal land in San Juan County, Utah.
• 2016: President Obama designates the monument on 1.3 million acres, leaving out areas as a concession to local opponents and the uranium and oil and gas industries. 
• 2017: President Trump dramatically shrinks both GSENM and BENM, cutting them down to 1 million acres and 201,876 acres, respectively. This is widely considered to be illegal, since the Antiquities Act only grants presidents the authority to create, not destroy or shrink, national monuments.  
• 2021: President Biden restores the original boundaries of both monuments and adds a bit of acreage, so that Grand Staircase-Escalante is now 1.87 million acres and Bears Ears 1.36 million acres. 
• 2022: The state of Utah files a complaint in federal court, arguing that Biden overstepped his authority in restoring the national monument boundaries. The state is joined by Kane and Garfield Counties; Zebediah Dalton, who has federal grazing leases within Bears Ears (and who was one of the ranchers involved in Gategate, which is chronicled in my book Sagebrush Empire); Kyle Kimmerle, who staked uranium mining claims there after Trump shrank it; Suzette Morris, a Ute Mountain Ute tribal member; and the BlueRibbon Coalition, a group that advocates for motorized off-road vehicle users.
• 2023: The case is dismissed. 

Utah’s case was built on a simple, yet flimsy, premise: The national monuments are just too darned big! Seriously. They argued that the protected areas are simply too vast to qualify for designation under the part of the Antiquities Act that says national monuments “shall be confined to the smallest area compatible with proper care and management of the objects to be protected.”

And that, the plaintiffs alleged, is keeping them from mining, drilling, riding their ATVs, doing search-and-rescue work, grazing, chaining forests, managing wildlife, collecting religious items, and maintaining roads on “twice the number of total acres in the President’s home state of Delaware … and just smaller than Connecticut.” (Why these folks insist on comparing Western landscapes to tiny Eastern states I will never know. Memo to y’all: It doesn’t help your case.)

Maybe Utah should have just stopped there. Instead, they go on to argue that within the 3.2 million acres of national monument, just nine “objects” are “could qualify for declaration as a national monument”: the Bears Ears Buttes; Butler Wash Village, Doll House and Moon House (Ancestral Puebloan sites); Newspaper Rock (a petroglyph panel); San Juan Hill and Dance Hall Rock (landmarks along the Hole-in-the-Rock Trail forged by Mormon colonizers in 1879); the Twentymile Wash Dinosaur Megatrackway; and Grosvenor Arch. And that’s it, folks. That’s the entirety of Utah’s list of maybes for a national monument, which, in the plaintiffs’ dreams, would comprise just 6,480 acres — i.e., an area even smaller than Delaware — even smaller than Washington, D.C.! Basically, these folks would just draw little circles around each of these landforms and call it good.

Of course, anyone who has been to or is familiar with these areas knows that there are literally tens of thousands of landforms and cultural sites that are equally worthy of protection. And that every one of those sites is like a thread in the greater tapestry of the cultural and natural landscape. Establishing just a handful of specific landforms as national monuments isn’t not compatible with “proper care and management of the objects to be protected.” Imagine if Arches National Park protected only the arches, themselves, while allowing uranium mining and off-road use and oil and gas drilling on the surrounding ground? Or if Yellowstone National Park was comprised only of Old Faithful and a handful of the most spectacular geysers?

But it wasn’t the glaring logical flaws in the plaintiffs’ arguments that got the case thrown out. It was also legally unsound. Judge Nuffer found that the monument proclamations aren’t subject to judicial review, because that would require a waiver of sovereign immunity. Another of the plaintiffs’ claims, that very general directives to federal land managers somehow hampered the plaintiffs’ livelihoods and actions, was found similarly faulty. The memos were not final agency actions, and therefore not subject to judicial review.

So the national monuments will stand and the agencies and tribal nations tasked with stewarding them can continue their work creating management plans.

Meanwhile, Utah Gov. Spencer Cox told the Deseret News the state plans to continue its Quixotic quest by appealing the decision and taking its “smallest area compatible” argument all the way to the Supreme Court. What Cox doesn’t seem to understand is that the Antiquities Act vests the president with the discretion to determine what that smallest area compatible is. Congress has chosen not to put some sort of limit on that, so Utah’s case is likely to get shot down once again.

Or, Cox and friends can start using their brains for a change and perhaps recognize all of the benefits the Antiquities Act has brought to the state in the form of land protections — Zion, Arches, Canyonlands, et al were all designated as national monuments under the Act before Congress made them into national parks — and economic infusion of visitor dollars. Then they can stop spending Utah taxpayer funds on ill-conceived legal battles that are not only badly argued, but have no clear objectives. What, exactly, do the state leaders hope to gain by destroying these national monuments and the Antiquities Act? Do they think opening up these areas to mining and drilling will revive the zombie-like uranium industry or the fading coal industry? It won’t.

I’ll leave you with what I find to be a powerful and succinct argument for landscape-scale preservation. It’s from a 1991 paper on Ancestral Puebloan culture in the Four Corners region co-written by the late Rina Swentzell, a scholar from Santa Clara Pueblo:

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KSUT publishes selected articles from The Land Desk, a newsletter from Jonathan P. Thompson.

The Land Desk explores news from the Four Corners, Colorado Plateau, and Native and Indigenous lands. It includes, in the words of Thompson, "commentary, fact-checks, myth-busting, essays, photos, and data-visualizations focusing on public lands, water, stolen and colonized lands, climate, politics, economics, environmental justice, energy, resource exploitation..."

Jonathan is a longtime Four Corners-based journalist and author of River of Lost Souls, Behind the Slickrock Curtain, and Sagebrush Empire.