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Big win for Bears Ears, Grand Staircase-Escalante
Judge tosses Utah's lawsuit seeking to eviscerate the national monuments
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, Capitol Reef, 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:
“Here, the human landscape is meaningless outside the natural context — human constructions are not considered out of their relationship to the hills, valleys and mountains. The material village is one of the concentric rings about the symbolic center of the world. It is not given more weight or focus than the area of the fields, hills, or mountains. It constitutes one place within the whole. The web of human existence is interlaced with what happens in the larger natural context and therefore flows into the adjacent spaces, hills, and mountains.”
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As long as we’re on the topic, I figured I’d point out some of the iffier mining claims that were staked in Bears Ears National Monument in the months leading up to the 2016 designation or during the Trump shrinkage years between 2017 and 2021. The key is below the image.
A: The Kimmerle family, of Moab, is one of the plaintiffs in the lawsuit seeking to shrink or eliminate Bears Ears and Grand Staircase National Monuments. They also hold a number of mining claims within the monument’s boundaries. They staked some of the Cedar claims on a mesa just east of Hideout Canyon in the months just before Obama established BENM — and the remainder after then-Pres. Donald Trump removed this area from the national monument. Then, in 2021, before President Biden returned this area to the national monument, Kimmerle Mining staked five new claims (Geitus 9-13) here and acquired additional claims from another mining company. Kimmerle Mining promptly filed for a permit to do exploration work here. The permit application is pending.
B: In 2016, just months before the Obama administration established Bears Ears National Monument, someone named Iva L. Perkins from Blanding staked a handful of claims straddling what would become the Bears Ears boundary line. This isn't the outer edge of the monument; rather it's next to the top of Black Mesa, which Obama left out of the monument, making it an island of unprotected land. Perkins’ claims appear to be at least partly within the monument, however.
C: In 2018, after Trump had shrunk Bears Ears National Monument, Kimmerle Mining staked the Easy Peasy claim in the Cottonwood Wash drainage. The land has since been returned to national monument status, but the mining claim remains active.
D: Kimmerle Mining staked the Lucky Lady 2 along upper Cottonwood Creek in 2018, after Trump had removed this area from the national monument. It is now within the monument.
E: The Bears Ears Inter-Tribal Coalition wanted Harts Point to be included in the national monument. However, when Obama established the monument in 2016 he left it out, probably as a concession to the uranium and oil and gas industries. In the last year or so, Atomic Minerals and affiliated companies have staked hundreds of claims on this slickrock peninsula that reaches into the monument and are looking to do exploratory drilling there.
F: The Daneros Mine was established in 2009 and produced until 2012, when it was put on standby due to low uranium prices. Energy Fuels, which operates the White Mesa Mill, purchased the mine in 2012 then sold it to Consolidated Uranium (with which Energy Fuels is a partner) in 2020. It was inside the proposed boundaries of Bears Ears National Monument, but the Obama administration excluded the mine and surrounding uranium-rich areas from the established monument, and it now sits just outside the boundaries. Consolidated says the mine is "well positioned for a rapid restart" as market conditions warrant.
G: The White Mesa Uranium Mill, owned and operated by Energy Fuels, is the nation’s only running uranium mill. It also serves as a de facto radioactive waste dump, processing waste feeds for other folks.
H: In 2014, Charles Kimmerle staked the Jessica claims between the heads of Hideout and Cheesebox Canyons. They were included within Bears Ears National Monument in 2016, removed in 2017, and returned to monument protection in 2021.
I: There are also a small handful of mining claims in Grand Staircase-Escalante National Monument that were staked in 2018, after Trump had shrunk it, and now remain within the national monument.