In December 2017, Nancy Green sat down with University of Utah Law Professor John Ruple, to discuss the legalities surrounding the Bears Ears National Monument. Due to time limits, we were not able to include the following conversation in the show, but what he had to say was fascinating. In full disclosure, Professor Ruple is also on the board of Friends of Cedar Mesa.
John Ruple: I'm John Ruple. I'm a Research Associate Professor of Law here at the University of Utah’s S J Quinney College of Law, and I'm a fellow with the Wallace Stegner Center for Land, resources, and the environment. I'm also a volunteer board member of Friends of Cedar Mesa, which is one of the nonprofit entities that worked very hard in order to help designate Bears Ears National Monument and we are now suing the president over his decision to repeal and replace that monument.
Nancy Green: First things first, what are the differences between a national park, a national monument, and other land designations?
JR: Well, a national park is created by Congress. Only Congress can set aside a national park. The management of parks is first and foremost for protection of those park resources, and then to facilitate visitation. When we talk about a national monument, those are set aside by the president and the president has a lot more discretion in how those landscapes are managed. It becomes more of a balancing act. So you're more likely to have a working landscape like we have in the Grand Staircase Escalante, where you continue to have grazing on that landscape, where you continue to have firewood gathering, where you can continue to have hunting and activities that you're not going to see in a national park. In Utah we're incredibly proud of the "Mighty Five"-- of our five national parks. Four of the five of those parks started out as national monuments, and then Congress said these places are special, they need elevated protection, they need more than they receive as a national monument. So, Congress took that next step.
A wilderness area designation is in some way a very blunt instrument. Wilderness is designated by Congress and it's the probably the most protective designation within our public land system. Wilderness study areas are very similar, those are lands that the Bureau of Land Management has inventoried, at the direction of Congress, and said these areas have wilderness characteristics. At the direction of Congress, the BLM then submitted a recommendation to the president about what should be designated as wilderness. The president forwarded that recommendation to Congress, Congress has yet to act but Congress said until we do act, BLM, you need to manage those lands to protect those characteristics, those wilderness characteristics, in case we do want to protect them as wilderness. So, they're very high protective requirements um but they're-they're blunt tools. When we look at a wilderness area, it's about what you can't do. You can't take mechanized vehicles in there-cars or bicycles. The level of development, you can't really develop anything within a wilderness area or a wilderness study area and that's appropriate in many ways.
NG: Alright, Antiquities Act 101 – what is it, for people that don’t know?
JR: The Antiquities Act was passed a hundred and eleven years ago, back in 1906. Congress was concerned that certain parts of our federal landscape, our federal lands were under threat - that places with archeological resources were subject to looting, that other sensitive landscapes were being threatened by development. And Congress said essentially that we're not nimble enough to identify all of those places that are under threat. They delegated to the president the ability to identify federal lands that have historically or scientifically important objects and then to set aside national monuments to protect those resources.
NG: How does monument status affect land management?
JR: There's a statute creating what's called a National Conservation Area, formerly known as as the National Landscape Conservation System, and in that, Congress said that when a president creates a national monument, or we have wild and scenic rivers or wilderness study areas, that we have kind of a lens through which we look at the management of those resources. And we look first at the purpose behind the proclamation creating a monument. So, it does change how we strike that balance in competing uses. Looking at Bears Ears, yes, it's true that ballot existing rights will continue. It's true that grazing will continue across that landscape, but how the BLM goes about managing that land, that grazing use, can change. So, for instance, the number of livestock that are grazing is unlikely to change but the BLM may say we're going to fence those livestock away from sensitive archeological resources, from cliff dwellings, from sensitive springs, from other sites that are really sensitive in nature. It also may change, for instance, if you had mineral development or you had a road grading or expansion project that goes through the monument. The monument proclamation doesn't necessarily preclude those uses but it changes how we go about permitting them and the way that they look in the end.
NG: How does this affect the land use compared to before and after a monument designation?
JR: This is public land. There is no gate. There’s no entrance fee. You don't need a ticket to go in, you can drive right on in. Yes, there are places where you're going to have to step out of your car and walk just because it's a big rugged landscape. You can't drive an ATV everywhere all the time, but that was the case before [Bears Ears National Monument] was created. The BLM had a travel management plan in place that said vehicles had to remain on designated roads and trails. That's the case now. The monument plan didn't change that.
NG: What are the prospective benefits of monument protection?
JR: Increasing monument staff and a number of resource managers out on the ground would certainly help and I think that was one of the hopes behind the proposal for a national monument - is that it would change how the Forest Service and the BLM managed this landscape.
The provisions of a monument proclamation are enforceable as a matter of law. They're legally binding unless changed by Congress or by the president. The agencies can't simply ignore that direction. So, when President Obama said Native Americans you have the continued right to access this landscape and use it for ceremonial purposes to gather firewood, to gather plants and medicinal herbs for ceremonial uses, that matters. And it's not just protected in a proclamation, it's protected by other laws. So, I think we have to give that some credit. Yes, you can look at other national monuments that are managed in a different way, National Bridges being an example. Well, Natural Bridges was created more than a century ago. The proclamation set up different management requirements so we're really comparing apples to oranges. I think we have to look specifically at what this proclamation does. And if we want a better analogy, let's go over and look at the Grand Staircase Escalante National Monument (GSENM). That too is a monument that's managed by the BLM. It was set aside to be more of a multiple use monument, a living working landscape. And if we look at GSENM, which has been very controversial, there we see that grazing numbers have been remarkably constant over the last twenty-one years. The allowable AUMs, or annual unit months, the number we use to measure grazing across that landscape, it's remained stable at about seventy-one thousand AUM's annually.
NG: There’s been talk about Native American tribes having a role in managing the monument. President Obama’s proclamation gave the tribes an advisory role, but not co-management. What is the difference?
JR: You know the Bears Ears National Monument is really special. It's the first national monument that was set aside in response to a proposal from five Native American tribes, and it's also the first national monument that expressly granted to those tribes a role in developing management plans and in implementing that management. So that's really unique and somewhat unprecedented.
Co-management is a confusing concept. If by co-management we mean that the tribes would have decision-making authority over federal lands then it's safe to say that's a power that can be granted only by Congress, and President Obama couldn't do that, and didn't do that, in the original Bears Ears proclamation.
But, if the argument is somehow that President's Trump's proclamation gives the tribes a stronger voice, I think that's not true. You know if nothing else the commission that's created by President Trump, yes it includes Native Americans, but those Native American spokespeople representatives are not selected by the tribes. So, they don't even get to select their own representatives, and I think that's really problematic.
NG: Can you clear up some of the confusion surrounding the co-management provided in Obama’s proclamation, and what President Trump had planned?
JR: Well, the original Obama proclamation created a tribal commission made up of five Native Americans, one from each of the five tribes that brought forth the proposal to designate Bears Ears. And they would work very closely with the Forest Service, and the BLM, and with the local county and the state in order to develop management recommendations, and to help in implementing those management recommendations and drawing on their traditional cultural knowledge. They didn't have final decision-making authority - that remained with the federal government. But they had a very strong voice in making recommendations and being able to move those forward and being able to influence management on the ground. When we look at the Trump proclamation, it creates a commission that includes Native Americans that will have the ability to work with the BLM and the Forest Service on management, but the problem I think is that the tribes aren't in a position to select their own representatives, and that cuts to that question of sovereignty. If you don't even choose who speaks on your behalf, how much sovereignty do you really have?
NG: Speaking about control, can you dive a little deeper into federal control of lands in Utah?
JR: When we think about Utah about two thirds of the land within the state is under federal control. So, the federal government is charged with balancing a huge range of competing uses across that landscape - everything from mineral development to resource conservation and protection of archeological resources, and that's very challenging. You know we can all agree that there's a need to strike a balance but it's very difficult to agree on what the appropriate balance is. Those are very difficult things to balance and when the president creates a national monument, I think in the eyes of some that puts a thumb on the scale of that balance and people that feel like that expansive federal land ownership impacts them, you know, it just brings those feelings to the surface.
NG: And these are feelings that have been around since the settlement of the west, correct?
JR: Yeah, it's the frontier that settlers moved here in order to be able to create a new future, whether as homesteaders or miners or loggers that oftentimes with respect to public lands the use came first and then the federal government had to figure out how do we manage that-whether it's grazing or mining or logging or whatever it may be, in order to make sure that that national interest is met. You know it was 1934 when we passed the Taylor Grazing Act, in part because of the dust bowl, in part because of over grazing. And the federal government said, wait a minute we've got to do something about this problem. We've got to make sure that our grasslands and our grazing lands are managed in a way that protects that resource for the ranchers, for wildlife, and for the rest of America.
NG: What was the sagebrush rebellion, and how does that play into today's discussion?
JR: The sagebrush rebellion was kind of a chapter in our history where we saw a lot of pushback within the rural west against federal control of public lands. It came on the heels of some major environmental laws, things like the National Environmental Policy Act (NEPA), the Federal Land Policy and Management Act (FLPMA) and some other big statutes - the Endangered Species Act -that had a significant impact on how we as a nation manage our landscape, and you saw a lot of rural communities pushing back against that claiming that these federal lands really belong to states or claiming that state and local governments could control the way the federal government manages federal lands. Now legally these efforts were unsuccessful, but they tapped into really a visceral, deep-seated concern about control, you know a sense within a lot of local communities that we have been here for generations. We have been using this landscape in ways that support our family and support our community and generate valuable goods for the rest of the nation, whether we're talking about lumber or oil or coal or whatever that may be but all of a sudden the terms of that deal have changed. That promise that you will have continued access is now being limited a little bit as the nation says well we want you to have access, but it has to be managed in a way that protects that larger national need with respect to these lands.
NG: Looking at presidential control and influence – does a sitting president have the power to reduce or rescind a monument?
JR: The constitution vests the power over public lands exclusively in Congress. Congress delegated to the president the power to create national monuments but in doing so it said nothing about the power to revise or rescind those. So, the question is, what does silence mean? I think there's a very strong argument that silence meant that Congress intended to retain that power for itself.
NG: But haven’t presidents reduced monuments in the past?
JR: So, the counter argument is that presidents have indeed reduced national monuments over the last hundred and eleven years but it's been fifty-four years since they'd done so. Congress, since then, has passed legislation that has reigned in the president's power to make these kinds of reservations or land use decisions based on implied powers and Congress has asserted its power very aggressively in the public lands fair.
NG: What do you think is at stake in this larger conversation about public lands?
JR: This is all about control. This is about who decides what kinds of uses occur on that landscape, what is appropriate, and whose voice matters. I think there’s a sense of loss of control that the federal government already controls two thirds of the landscape, why do they need to come in and put more restrictions on what we locals can do and what we feel is our backyard. Of course, these lands were already federal lands. The federal government was already charged with managing them for the benefit not just of the local community but for every American. These belong to all of us so I think that's at the heart of it, the question of who is the landscape being managed for and how do federal land managers balance the needs of local communities and neighbors to these lands against a compelling national interest in conservation. You know when we-remember turn of the twentieth century there were four million people in the west, today there's seventy-four million. The pressure on these resources is growing on a daily basis. You know they're finite resources, they can only sustain so much use, and as those demands increase it's harder and harder to strike that balance, at least in a way that’s satisfactory to everybody involved.