BLUFF — Could the new Bears Ears National Monument in southeast Utah be overturned or decreased in size by the Trump administration?
Utah legislators and the San Juan County Commission are urging President Donald Trump to undo the controversial monument. But at a legal forum put on by Friends of Cedar Mesa in Bluff, lawyers said it was unlikely.
And if an attempt was made to undo the 1.3 million-acre monument or reduce its size, environmentalists and Native American tribes said they would put up a fight to stop it.
“It is time to address the elephant in the room, and discuss the possibility of the monument being undesignated or shrunk,” said moderator Carl Rountree, to scattered boos from a crowd of about 300.
Newly appointed Interior Secretary Ryan Zinke has told anti-monument Utah politicians that one of his first plans was to visit the state to discuss Bears Ears.
“I’m looking forward to working with Zinke, and he will be here in the very near term,” said Utah BLM Director Ed Roberson. “We’re waiting to hear from him and the administration that the monument stands, then hiring a monument manager will be one of the first actions.”
John Ruple, an attorney with the Wallace Stegner Center, said no monument has never been overturned since the 1906 Antiquities Act authorized them, but a few have been significantly reduced in size.
“If they were to go down that road, it is a very difficult path,” he said. “The Supreme Court has upheld them.”
Ruple said overturning or shrinking a monument would have to pass a two-part legal test: Did the president identify objects of scientific and historic interest, and did he designate the smallest boundary necessary to protect those resources?
If the answer is yes, then it is on solid legal ground, he said.
“Most important, the court said we are not going to second-guess the president on those facts,” Ruple said.
He said the fastest time a monument was reduced was three years. If one was drastically reduced, it would likely face a legal challenges if resources identified in the monument proclamation were put at risk.
Lawyers said that nothing in the Antiquities Act speaks to undoing monuments, and no president has ever tried to completely nullify one.
In passing the Antiquities Act, Congress granted designation of national monuments by the president under the authority of the Property Clause of the U.S. Constitution, Ruple said.
However, there are 16 examples where monuments have been reduced, mostly a small boundary adjustment or involving rights of way, Ruple said. Four were reduced significantly.
“That implies congressional consent, so those opposed could make the argument the president should be able to exercise a boundary adjustment based on new information and his convictions,” he said.
Nada Culver, an attorney for the Wilderness Society, noted that none of the monument boundary changes were challenged in court, something that local environmental groups and tribes are prepared to do.
“Just saying ‘we don’t like it’ is not a good legal reason for a reduction,” Culver said. “We will challenge any reduction in any court we can to protect the monument’s resources, which will be at risk while we fight it out.”
Alfred Lomaquahu, who is vice chairman of the Hopi tribe and has ancestral ties to Bears Ears, said the monument has already shrunk to 1.35 million acres from the proposed 1.9 million acres.
“Why make it smaller? That concession has already been made, and it left out significant archaeological sites,” he said. “Our main concern is looting and desecration of sites. We would put up a big legal fight if there was an effort to reduce the protections of the monument because we want to keep what we fought so hard for.”
The Bears Ears National Monument is the first of its kind that will be co-managed by a Native American commission representing five regional five tribes.
Recently announced commission members include Terry Knight, of the Ute Mountain Ute tribe; Shaun Chapoose, of the Northern Ute tribe; James Adakai and Davis Filfred, of the Navajo tribe; and Alfred Lomaquahu, of the Hopi tribe.
