Zinke hints at changes to Bears Ears, Grand Staircase-Escalante
Interior Secretary Ryan Zinke ended his four-day visit to Utah with a press conference Wednesday at a cloudy airport in Kanab, flanked by U.S. Rep. Chris Stewart and surrounded by a tight huddle of state and local politicians as he talked to reporters about the prospects he might support rescinding or diminishing the Bears Ears and Grand Staircase-Escalante national monuments.
Several hundred feet away, a crowd of demonstrators shook signs and chanted at him, demanding that he "save our monument" and "talk to us," joining a chorus of monument supporters who argued over the course of the week that Zinke had spent too little time listening to voices who support keeping the two monuments.
Zinke, a tall Montana Republican and former Navy SEAL who started the year as a congressman before being named to his new post by President Donald Trump, donned a black cowboy hat, gave a wave to the crowd and smiled, striking a positive tone as the chanting continued in the background.
“I'm more optimistic leaving than when I came,” he told reporters. "If you take the two sides, if there's two sides or three sides, there's much more commonality. Everybody wants to protect their cultures and traditions."
Zinke denied repeatedly before his visit that he would look objectively at what should happen to the monuments, but he hinted Wednesday that he came away ready to make changes.
"There's a lot of things I found out we can do better," he said, mentioning specifically the demand to apply for permits online and easing access for Boy Scouts and other groups.
He said the review process would continue from here, not saying whether he would recommend any physical changes to the boundaries or designations of the monuments, but suggested he disagreed with the way the monuments were created.
Zinke's predecessor, Sally Jewell, visited the Bears Ears area in July, hosting the press for much of the tour and holding a public hearing in Bluff, but Zinke said repeatedly throughout his trip that his visit was the first chance for locals to communicate directly with the administration, especially on Grand Staircase-Escalante.
"This is the first time we've given locals a say," he said, referencing his time spent with local leaders. He reminded reporters that then-Gov. Michael Leavitt learned about the Grand Staircase-Escalante designation by reading it in a newspaper.
A number of the airport demonstrators were area business owners and conservationists, including many with the pro-monument Escalante-Boulder Chamber of Commerce, the leadership of which said Zinke refused a visit. Zinke said he met with as many people as he could and that if he missed any particular groups "that's the breaks." He encouraged people to submit comments online.
Trump signed an executive order in April ordering a review of Bears Ears, Grand Staircase-Escalante and 25 other national monuments - every monument designated in the past 21 years that exceeded 100,000 acres.
But the order was largely about Utah, specifically bookended by the timeframe when Grand Staircase-Escalante was designated in 1996 and when Bears Ears was created last year.
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Zinke was noncommittal about how strenuously he would review any others, acknowledging that the emphasis on Utah’s monuments were because they were “the most controversial.”
He did say he planned to visit Maine, where a similar debate had erupted between some residents when President Barack Obama created the Katahdin Woods and Waters National Monument, and his home state of Montana, where the Upper Missouri River Breaks Monument was created in 2001.
There was no mention of other western monuments listed in Trump’s order, including several in the area of Bears Ears and Grand Staircase, such as Vermilion Cliffs and Grand Canyon-Parashant in northern Arizona and Gold Butte in eastern Nevada.
“My intention is not to rip off a band-aid if it’s healed,” Zinke said.
In Utah, there was pressure coming from all sides as Zinke considers his review.
A number of locals, along with Native American tribes, conservationists, archaeologists, paleontologists and others have spoke out in support of keeping the monuments, but Utah's full delegation of congressional leaders have pushed for changes, along with a majority of the state legislature, Gov. Gary Herbert and a majority of the surrounding county and municipal governments.
Any attempts to rescind or diminish any monument is likely to spark a heated legal battle over whether the executive branch has any right to do so.
The Antiquities Act, signed into law by Theodore Roosevelt in 1906, gives the president broad power to establish national monuments as a way to protect federal land that contains “historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest.”
Many U.S. national parks started as national monuments, including four of the “Mighty Five” national parks in Utah, and there are more than 129 monuments across the country.
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A monument designation prevents new mining and drilling operations, and can curtail logging, grazing, road building, recreation and other uses, depending on management rules set up upon designation.
The Antiquities Act has no direct language giving presidents the power to rescind designations made by their predecessors, but Zinke and others have pointed to some legal experts who argue Trump could have an implied power to rescind or diminish any monument.
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“It is a general principle of government that the authority to execute a discretionary power includes the authority to reverse the exercise of that power,” concludes a recent report published in the right-leaning American Enterprise Institute by John Yoo, a University of California-Berkeley law professor, and Todd Gaziano, a senior fellow in constitutional law for the Pacific Legal Foundation.
“A basic tenet of constitutional law is that no president can bind future presidents in the use of their constitutional authorities,” Yoo said.
Others argue there are no implied powers in the Antiquities Act, since it deals with public lands, over which only Congress was given Constitutional authority.
A report by the Congressional Research Service published in November found legal analyses going back to the 1930s concluding the president has no power to repeal a past designation.
An opinion by Attorney General Homer Cummings in 1938 implying then-President Franklin D. Roosevelt could not abolish a monument and language in the 1976 Federal Land Policy and Management Act reaffirming that only Congress would have “the authority to modify and revoke withdrawals for national monuments created under the Antiquities Act.”
“The issue is not whether the Constitution’s grant of executive power conveys the power to revoke national monuments, but whether Congress has given that power to the president,” wrote Robert Rosenbaum, a retired partner in the law firm of Arnold & Porter Kaye Scholer, in the Washington Post.
Attempts to diminish the size of a monument would face the same legal obstacle, Rosenbaum said.
There are some questions there though, and the Congressional Research Service report noted that past presidents have deleted acres from outside monuments by claiming that they didn’t meet the Antiquities Act standard of protecting the “smallest area compatible with proper care and management of the objects to be protected.”
The report concluded the president also has broad authority to modify the management of monuments, although “the outer boundaries of this authority, too, appear to be untested.”
Zinke has said there is “no doubt” the president has the authority to amend a monument, but acknowledged that the final decision could be decided in court.
Although 11 monuments have been abolished by Congress, no president has ever done so.
“Legally, it’s untested,” Zinke said. “I would think that (if) the president would nullify a monument, it would be challenged and then the court would determine whether or not the legal framework allows it or not.”
Members of the five Native American tribes that co-manage the Bears Ears monument and first pushed for its creation have vowed to sue if necessary to protect sacred lands, and a collection of conservation groups and others have made similar commitments.
State and local governments are also researching legal avenues.
Many are both for and against the monument as he began a process ordered in late April by President Donald Trump to review all national monuments created using the Antiquities Act since 1996 that are larger than 100,000 acres.
“I think the states are already going to figure out what is legal and what isn’t,” said Utah Rep. Mike Noel, a Republican who has represented parts of Kane and San Juan counties in the state legislature since 2003. “I think I’d leave it up to (Zinke) to decide what to do.”
Trump’s order gave the Interior Department until June 10 to offer a report on Bears Ears, and four months to review Grand Staircase-Escalante and the other monuments.
The department opened a public comment period website, and Zinke pushed repeatedly for those interested in submitting comments to do so via www.regulations.gov.
U.S. Sen. Martin Heinrich, D-New Mexico, complained that the website option would be of little use to many of the area Navajos and other Native Americans who don't have easy internet access or maintain oral customs, asking the public comment period on Bears Ears be extended.
Many monument supporters argued that Zinke's time spent in Utah was overwhelmingly spent with state and local officials who want to see both monuments either rescinded or diminished, including the Utah Dine Bikeyah, a nonprofit Navajo group that helped push for the Bears Ears designation.
Public comment period
The Interior Department announced plans to open a public comment period for its review of national monuments, starting Friday. Comments can be submitted online at www.regulations.gov by entering “DOI-2017-0002” in the Search bar, or by mail to Monument Review, MS-1530, U.S. Department of the Interior, 1849 C Street NW, Washington, D.C., 20240.