Original article can be found at The Christian Science Monitor
Originally published on December 4, 2017 By Amanda Paulson
President Trump unleashed the latest salvo Monday in a long-running battle over how America’s public lands should be treated.
In a stark contrast to recent presidents who have sought to leave a lasting legacy by creating national monuments, Mr. Trump plans to drastically reduce two of the monuments created by his predecessors. His action – which is expected to be challenged in court – will be a test of whether, in fact, he has the power to do so.
But, while Trump’s actions tread new legal ground, the underlying tensions at play in this current battle over America’s public lands stretch back more than a century. At the heart of these tensions lies both a shared sense of pride in America’s so-called natural cathedrals and a fundamental disagreement over how land use should be regulated.
“This is a reflection of the ongoing tug-of-war over preservation of resources and lands, and multiple-use activities” on those lands, says Robert Keiter, a law professor at the University of Utah in Salt Lake City and director of the Wallace Stegner Center of Land, Resources, and the Environment.
National parks are often cited as “America’s best idea,” but Professor Keiter notes that simply reserving vast tracts of lands in the public domain as national forests, an action which began in the late 19th century, was also a pretty radical step at the time. But while Americans historically have had a great deal of pride in those public lands, there has also been long-standing pushback from some Westerners both about the amount of land in the public domain and the way in which it’s used – a battle over use that Trump is wading into with the Utah monuments.
Trump’s announcement Monday in Salt Lake City has been long anticipated, and affects two national monuments in southern Utah, both of which have been controversial: Bears Ears, a 1.35 million-acre monument designated by President Barack Obama a year ago at the urging of five area Native American tribes; and Grand Staircase-Escalante, a 1.9 million-acre monument designated by President Bill Clinton in 1996. The presidential proclamations that Trump signed Monday turn Bears ears into two small monuments of 130,000 acres and 72,000 acres (an 85 percent reduction) and divide Grand Staircase-Escalante into three smaller monuments of 210,000 acres, 550,000 acres, and 240,000 acres, cutting the total protected space nearly in half.
A century-old dispute
Since the Antiquities Act was signed in 1906 by President Theodore Roosevelt, monuments have occupied a unique niche in American lands. They’re the only means by which a president, rather than Congress, can opt to protect lands, and 16 presidents have used the act to create more than 150 monuments, many of which later became some of America’s most iconic national parks.
The tension over how America’s public lands are used has its roots in the Western expansion of the 19th century, when settlers and companies hoping to make a profit looked to the vast mineral deposits and forests and grazing lands in the West as a potential bonanza, without many checks on use – practices that often led to rapid overgrazing, clearcutting, and degradation of lands that at one point seemed limitless. The notion that land should be set aside for something other than economic use was a fairly radical one at the time, and reflects the degree to which many Americans viewed their breathtaking vistas as a point of national pride: natural cathedrals as their answer to Europe’s treasured cathedrals.
“There was appropriate concern, maybe even despair, in the late 19th century over the outcome of full-out resource extraction and unrestrained land use,” says Patty Limerick, director of the Center of the American West at the University of Colorado in Boulder. But there was also, she notes, plenty of opposition among some Westerners to the idea of setting aside land for preservation, or even keeping such large tracts public. “There were some unmistakable currents of resistance 120 years ago,” says Professor Limerick. “Episodically, those currents of resistance seem to surge, and a movement that seems to echo previous movements comes into view.”
These tensions tend to bubble up anew at regular intervals, albeit with different constituencies and triggers each time. There was the Sagebrush Rebellion of the 1970s, the “wise-use movement” that gained traction in the late 1980s and ’90s, and the recent altercations over grazing rights that have been symbolized by the Bundy family and the standoff at the Malheur Wildlife Refuge in Oregon in 2016. The common element tends to be a growing sense that Westerners’ rightful use of public lands is being curtailed by a federal government overstepping its bounds. “Traditional users often see public lands as ‘their’ lands,” notes Mark Squillace, a professor of natural resources law at the University of Colorado Law School in Boulder.
While the context and circumstances have changed over the decades, at its heart, the tensions revolve around a fundamental disagreement over how land use should be regulated. Should public lands be exploited for “multiple use” – which often means mining, drilling, grazing, forestry, and other traditional extractive activities? Or preserved for natural beauty and low-impact recreational activities, as has increasingly been the emphasis in recent decades? While monuments – including Bears Ears and Grand Staircase-Escalante – are open to the public and often allow some traditional uses like grazing and hunting to continue, they generally close off the protected area to new drilling or mining leases. (The restrictions are specific to each particular monument.)
“Over the last half century we have moved progressively and noticeably toward the protection of public lands in the West, as reflected in the Wilderness Act of 1964 and all the various national parks and [monument] designations that have occurred,” says Keiter. Currently, he says, close to 40 percent of the public land in 11 Western states is in some sort of legally protected status: parks, monuments, wilderness areas, wilderness study areas, roadless areas, refuges. The general public has endorsed that shift, Keiter says. But “that sentiment and action has been met with mixed results in various Western states.”
Utah has been an epicenter of the latest battle over monuments, and its legislators have been the most vocal in urging Trump to shrink or eliminate certain monuments. But Professor Squillace and others note that four of Utah’s “mighty five” parks – which are a foundation of the state’s tourism industry and a source of great pride for Utahns – started as monuments.
When former Utah Rep. Jason Chaffetz (R) introduced a bill in January to sell 3.3 million acres of federal lands in the West, he was forced to withdraw it days later by his Republican constituents, many of whom regularly hunt and fish on those lands. Perceived threats to federal lands over the past year have resulted in huge rallies at statehouses in conservative states – including Idaho, Montana, Utah, and Wyoming – as local residents, many of them anglers and hunters, voiced their support of public lands.
On Saturday, thousands turned out in Salt Lake City to protest Trump’s anticipated actions on Bears Ears and Grand Staircase-Escalante, while a smaller rally gathered at a different location to thank Trump for those actions.
What remains unclear is whether Trump actually has the power to reduce these monuments. While some conservative legal scholars say he does, other law experts don’t believe that’s the case. The conservative argument claims that the Antiquities Act – in giving broad powers to create monuments – implies those powers can also be used to reduce or eliminate monuments. And it looks at the precedent of several past presidents, including Woodrow Wilson, Dwight Eisenhower, and Howard Taft, who reduced monuments.
None of those reductions were ever challenged in court, however, and none have occurred since passage of the Federal Land Policy and Management Act of 1976, which many legal experts believe even more explicitly limits presidential powers to revoke or reduce monuments.
“It’s a relatively straightforward legal issue the court will have to confront, about whether the president has the authority to alter a decision on a national monument by a predecessor,” says Squillace. “The Antiquities Act appears to grant only that one-way authority to grant the land.”
Squillace and others say the outcome of the court challenge will have long-range impacts not just for Bears Ears and Grand Staircase and their surrounding communities, but also for how monuments are approached in the future. In particular, they worry about a scenario in which subsequent Democratic and Republican administrations opt to create and un-create each other’s monuments, with the lands becoming a sort of partisan yo-yo. “It creates a real potential roller coaster with respect to managing these public lands,” says Squillace.