Defining Ideas

Trump’s Environmental Federalism

Thursday, January 25, 2018
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Barbara Kelley

In 1906, Congress passed and President Theodore Roosevelt signed the Antiquities Act, granting the executive the authority to establish national monuments without congressional approval. The stated purpose of the law was to protect “historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest” using “the smallest area compatible with proper care and management of the objects to be protected.” There are now 129 national monuments, of which Roosevelt created 18. Since 1906, 15 presidents have created national monuments, and only Nixon, Reagan, and George H.W. Bush created none.

Two big differences stand out in recent designations. First, they tend to be larger—Grand Staircase-Escalante in Utah (1996) at 1.9 million acres compared to Devil’s Tower in Wyoming (1906) at 1,347 acres. Second, locking up large acreages without input from local residents has evoked the ire of those who live in the area and whose livelihoods depend on multiple uses of that land such as for grazing and energy development.

These two issues manifested themselves with the creation by President Clinton of the Grand Staircase-Escalante National Monument and the creation by President Obama of the 1.35 million acres Bears Ears National Monument. Both Utah monuments have beautiful canyons and include some magnificent cliff dwellings worthy of protection, but their land has also been used for grazing, energy production, and motorized vehicle recreation. For these reasons, Utah residents were concerned that locking up the land would reduce the possibility of multiple uses, take away local input into land use, and cost jobs. Feeling their voices were ignored by Clinton and Obama, Utah residents and their congressional delegation called on President Trump to rescind designation of Bears Ears and to reduce the size of Grand Staircase-Escalante.

In keeping with the administration’s tendency toward giving states more say in resource use and environmental regulation, the president called Obama’s monument binge “another egregious abuse of federal power” and ordered Interior Secretary Ryan Zinke to review more than two dozen monuments created in the last 25 years. Zinke’s review recommended and Trump agreed to reducing the size of Bears Ears to 200,000 acres divided into two non-contiguous parcels and reducing the size of Grand Staircase-Escalante to 1 million acres. These reductions still leave Bears Ears with an area larger than Zion and Bryce Canyon National Parks combined, and Grand Staircase-Escalante with acreage half the size of Yellowstone.

To solidify Trump’s nod toward federalism and provide more local input into federal land management, Rob Bishop (R-UT), chairman of the House Committee on Natural Resources, has introduced a bill (HR3990) to overhaul the Antiquities Act. It would still allow presidents to create national monuments, but would require strict environmental review under the National Environmental Policy Act for monuments in excess of 640 acres and require approval of “the elected governing body of each county, the legislature of each state, and the governor of each state” where a monument is proposed. Another bill, HR4532, introduced by Congressman John Curtis (R-UT), would create two different monuments out of the original Bears Ears designation and give local authorities and Native American tribes a bigger role in management of them. Worried that monument status would reduce grazing and hurt the ranching community, his bill specifically allows broader land use, including grazing, hunting, and motorized vehicle access.

Not surprising, preservationists, led by Patagonia, an outdoor equipment and clothing company owned by rock climbing icon Yvon Chouinard, have fought the president’s action and locked horns with Utah. The company spent hundreds of thousands of dollars producing a film arguing that monument designation was necessary to stop energy development in Bears Ears. It also convinced the Outdoor Industry Association (OIA), which profits from selling more parkas and backpacks to wilderness enthusiasts, to move its biannual Outdoor Retailer shows from Salt Lake City to Denver, a move that will deprive Salt Lake of an estimated 45,000 visitors and $42 million.

Opponents of more local control argue that it will open the door for special interests—especially oil, gas, and coal developers—who will “destroy 2 of the country’s most beautiful national monuments” and provide “blatant handouts to the oil and gas industry.” Patagonia contends “the President stole your land” and calls on the companies, environmental groups, and Indian tribes to join its lawsuit contending that changing designations by previous presidents violates the Antiquities Act.

Interior Secretary Zinke angrily called this charge “nefarious, false, and a lie.” His reaction is supported by the fact past presidents have reduced or rescinded designations on 18 other occasions. Most of the reductions have been small—in 1962 President Kennedy reduced Natural Bridges National Monument in Utah by 320 acres—but Mount Olympus National Monument, created by Teddy Roosevelt in 1909, was reduced three times by a total of 314,000 acres. Just as one Congress cannot bind another, one president cannot bind his successors in perpetuity.

Interestingly, at the same time that President Trump announced that he would reduce some national monuments, he designated three new ones, each smaller, less controversial, and more in keeping with original intent of the act. One of these is the 130,000-acre Badger-Two Medicine area in northwestern Montana, a sacred site to the Blackfeet tribe, which Secretary Zinke said would be appropriate for co-management by the tribe.

Claims that monument designation is a federal land grab or that it is theft by the president are misleading. The fact is that before designation the land was and still is federal land. The issue is what the land can be used for. Agencies including like the Bureau of Land Management, the U.S. Forest Service, and the National Park Service retain management responsibility of national monuments. Those agencies are governed by tough environmental laws such as the National Environmental Protection Act, the Federal Land Policy and Management Act, and the Endangered Species Act, all of which have been used frequently and successfully by environmentalists to stifle multiple use of federal lands in the name of preservation.

Under multiple use management, grazing permit owners work with local agency officials to determine how much and where grazing is allowed. Oil and gas developers cooperate with the same officials and with environmental groups to mitigate the effects of energy production. Once lands are designated national monuments, however, there is much less flexibility. Energy production is next to impossible, grazing can be reduced significantly, and recreational uses—especially mechanized vehicular uses—are limited. Indeed, since Grand Staircase-Escalante was created, grazing has been reduced by one-third, and leases to mine some of the estimated 62 billion tons of coal, the largest coal field in Utah, were bought out by the federal government and have not been reopened for development.

Even activities such as fishing and hunting can be restricted within national monuments. For this reason, it is surprising that Backcountry Hunters and Anglers, a hunting group whose mission is to preserve America’s “outdoor heritage of hunting and fishing,” has joined the preservationist fight. It spent $1.4 million on an advertising campaign, attacking President Trump’s and Secretary Zinke’s move to reduce national monuments in Utah, claiming that “world-class hunting opportunities” are under threat. In fact, Zinke recommended that the president leave the Upper Missouri Breaks monument intact and has issued an order to expand hunting, fishing, and other outdoor recreation opportunities on federal lands, including national monuments.

Claims that antiquities will be unprotected without monument designation are also false.  In 1979, Congress recognized that cliff dwellings and cultural sites could be destroyed by people looting them for their artifacts. Hence it passed the Archaeological Resources Protection Act (ARPA), which defines archeological resources as “Any material remains of human life or activities which are at least 100 years of age, and which are of archaeological interest.” The act protects these archeological assets by giving agencies the power to police against looting and impose severe fines and even imprisonment for those caught looting.

Of specific concern in the case of Bears Ears is Grand Gulch, a 37,850 acre canyon that Trump’s reduced monument excludes. The canyon contains magnificent cliff dwelling antiquities definitely worth protecting—but again, they already are protected. Grand Gulch is a “primitive area,” which requires that it be managed “to maintain primitive conditions of transportation, subsistence, habitation, and environment to the fullest degree compatible with their highest public use.” Coupled with ARPA, Grand Gulch is well protected without being in a national monument.

Trump’s response to the national monument controversies reflects what could be a significant legacy of his administration—the creation of an era of environmental federalism. He recognizes that a stroke of the executive pen to create national monuments has undermined local economies and removed local input from land use decisions. In general, Trump has sought to roll back more than 60 executive order environmental regulations ranging from Obama’s clean power plan to his delay of the Dakota Access Pipeline. Not only will environmental federalism inject more on-the-ground knowledge into land management; but it could also reduce polarization by bringing parties to the bargaining table instead of the courtroom.