President Joe Biden’s order to review Utah monuments leaves options open, but expansion all but certain

With the stroke of a pen, President Joe Biden could return Utah’s two largest national monuments to their original sizes. Instead, he opted to open a 60-day review into how his predecessor shrunk the Bears Ears and Grand Staircase-Escalante national monuments by 2 million acres, leaving open a range of options for the new administration.

An executive order issued Wednesday instructs the Interior Secretary, a post likely to be filled by Rep. Deb Haaland of New Mexico, to submit findings and recommendations for moving forward on the future of these landscapes that have been ground zero in Utah’s public lands battles going back nearly a century.

An imperiled landscape

Most observers suspect Biden plans ultimately to restore the monuments as part of a larger campaign to reverse environmental policies implemented by President Donald Trump.

“There is little doubt left from the comments that [Biden] has made that the intent is to reinstate both monuments that were incorrectly undone by action that is being challenged in court,” former Interior Secretary Sally Jewell told The Salt Lake Tribune in an interview Friday. “There’s little doubt that he will reinstate those [monuments] and for absolutely the right reasons.”

Back in 2015 and 2016, Jewell led President Barack Obama’s efforts to increase protections for the Bears Ears region at the behest of five Native American tribes with ancestral ties to the lands surrounding Bears Ears Buttes, a landscape that had endured more than 100 years of looting and grave robbing. Thanks to bungling from Utah’s congressional delegation, legislative efforts supported by the Obama administration to safeguard the area failed, according to Jewell, leaving Obama to act before he left office.

And that meant wielding the mighty executive powers given presidents under the Antiquities Act to set aside public lands to protect artifacts, geologic features and other objects of scientific and cultural interest. On Dec. 28, 2016, the Democratic executive designated 1.3 million acres as Bears Ears National Monument, which Trump largely dismantled a year later.

But now Utah state and federal elected leaders are rushing to dissuade Biden from again turning to the Antiquities Act to restore the monuments, arguing such a move would be a “unilateral” overreach by a federal government imposing its will on Utahns.

Is consensus still possible?

Rep. John Curtis, R-Utah, whose district includes Bears Ears National Monument, told The Tribune in an interview Friday that he was pleased to see Biden starting with a review period.

“We viewed that as a very positive sign,” Curtis said, adding that the ultimate decision over the fate of Bears Ears should neither be rushed nor delayed indefinitely. “I’m hopeful and optimistic … that we could find a resolution that would once and for all solve this rather than this back-and-forth between Republican and Democratic presidents.”

Curtis had been in office just three weeks when Trump made the cuts in 2017, and he acknowledges that he was not yet ready at the time to find a collaborative solution to the issue. A bill Curtis introduced in the wake of the cuts drew criticism from tribal leaders and never saw a vote.

In the three years since, Curtis has met with leaders from all five nations in the Bears Ears Inter-Tribal Coalition — Hopi Tribe, Navajo Nation, Ute Mountain Ute Tribe, Pueblo of Zuni and Ute Indian Tribe — as well as stakeholders across San Juan County and elsewhere in Utah.

Clark Tenakhongva, vice-chairman of the Hopi Tribe and a member of the inter-tribal coalition, has developed a friendship with Curtis and the two have hiked together in the Bears Ears region. Curtis said that thanks to those experiences and others, he and his staff are much better prepared to engage on the issue and to develop legislation.

“We’re ready to put lots of time and energy into this if we can find a path forward that would bring consensus to a very contentious issue,” Curtis said.

Ultimately, Curtis would like to see legislation that satisfies the inter-tribal coalition’s goal of protecting culturally significant sites in the Bears Ears landscape while also balancing opportunities for economic development in the region. He points to a 2018 public lands law, which set aside new wilderness areas in Emery County and drew support from both conservative lawmakers and environmental groups, as a potential model for resolving the monuments debate.

Utah’s new governor, Spencer Cox, is another voice calling for consensus and an end to these lands being used as a “political football” in the future.

“Can we give on some issues? Can they give on some issues?” he said on Thursday. “Can we come to a peaceful resolution of this so we’re not fighting this battle every year?”

For many, the debate is over

Woody Lee, executive director of the pro-monument group Utah Diné Bikéyah and a member of the Navajo Nation, said that after years of discussions and public meetings leading up to the 2016 designation of Bears Ears and during the Trump administration’s own review process in 2017, the relevant discussions have already happened.

“There is no reason for President Biden to delay on restoring Bears Ears National Monument,” Lee said. “The people have already spoken. When [Interior] Secretary [Ryan] Zinke conducted a public review in 2017, more than 2 million Americans submitted comments with 98% in support of protections. The same year, votes were held in every Navajo Chapter House in Utah [except the Aneth Chapter] during town hall-style meetings where everybody gets to vote. Once again, 98% of [participating] Navajo citizens in Utah voted in favor of protection.”

Biden’s call for a review process won praise from some monument backers, however, particularly in light of the ongoing public health crisis that should be commanding the new president’s full attention.

“He’s sending a strong signal that says, ‘Look, we’re going to do something here, but before deciding exactly what we do, we want to hear from people, including the tribes.’ That just makes a huge amount of sense. So I was very glad to see it,” said John Leshy, a University of California law professor and former Interior Department lawyer who played an important role in President Bill Clinton’s 1996 designation of the Grand Staircase monument.

Unsettled legal questions

Under pressure from Utah politicians, Trump cut Bears Ears to just 200,000 acres in two disconnected units. The southern one encompasses the region’s two most distinct landforms, Bears Ears Buttes and Comb Ridge, while the northern one covers Indian Creek. Cut out were Valley of the Gods, Grand Gulch, Arch Canyon, Dark Canyon and Cedar Mesa. At the same ceremony in the Utah Capitol, Trump reduced Grand Staircase by half, carving out its vast coal deposits with near-surgical precision.

The Trump administration claimed the Antiquities Act empowered him to slash the monuments, but five pending lawsuits and several legal scholars contend otherwise.

The lawsuits, since consolidated into one case, could settle the argument, but it is likely the court will now stay proceedings until after Biden decides the monuments’ fate. His executive order authorizes the attorney general to seek such a stay. If Biden restores the monument, the case would likely be dismissed, leaving open the possibility that the next Republican president would simply continue the cycle: designate and rescind, designate and rescind.

“Whether or not one president can reduce monuments that another president designated, I think that question will always be there,” Leshy said. “But I have a sense that cooler heads on all sides would at this point like to have a definitive resolution and that would involve legislation.”

Haaland, the Interior nominee, introduced legislation in 2019 that would have amended the Antiquities Act and clarified that presidents can only create, not reduce, national monuments. But the bill never saw a vote.

Jewell: Bishop blew chance for compromise

Meanwhile, Jewell would like to get one thing straight about the Bears Ears monument designation. It did not come about because Obama unilaterally decided what was best for that southeast Utah landscape held sacred by numerous tribes.

“This suggestion by Utah’s politicians that this was unilateral is nonsense,” Jewell said. “The way that the Utah congressional delegation is trying to erase history in the process that we went through has been exceedingly frustrating to me.”

Jewell worked closely with the staffs of Reps. Rob Bishop [who just retired from Congress] and Jason Chaffetz [whose seat Curtis now holds] to craft legislation that would satisfy the tribes’ interests in protecting the Bears Ears under the so-called Public Lands Initiative. But at the 11th hour, Bishop introduced a bill that removed agreed-upon language — omissions that the Obama administration couldn’t live with, according to Jewell.

At the time, Bishop did say, seemingly as a joke, that he hoped Obama would designate a Bears Ears monument so he could use that action to take down the Antiquities Act.

Bishop’s subsequent legislative efforts to gut the Antiquities Act failed, but Trump did heed the Utah congressional delegation’s call to slash both Utah monuments.

Jewell agrees that finality on the monument question would be in everyone’s best interest, but she contends these battles should have ended when the monuments were designated.

“What’s very frustrating is that businesses, communities need certainty. Flip-flopping around on boundaries does not bring them certainty. Grand Staircase has been a national monument for over 20 years,” Jewell said.

“I visited and went out to sites in 2017 with [monument paleontologist Alan] Titus to the areas that are extraordinary for their paleontological values and that most exquisite site” where more than two dozen new species of dinosaurs have been discovered, she said. “It was part of the [monument] that was unprotected by the Trump administration.”

Utah leaders invited to San Juan County

San Juan County Commissioner Kenneth Maryboy, a member of the Navajo Nation who supported the Bears Ears monument as an activist and tribal leader in the lead-up to Obama’s designation, said he hopes Utah’s leaders will engage with the county commission and community members on the issue.

“It’s about time that our spiritual leaders and the local people get to meet with these [decision-makers] to where we can start educating them about the sacredness and the value of what this monument means,” Maryboy said.

Lee of Utah Diné Bikéyah also offered an open invitation to the state’s leaders to visit the Bears Ears landscape during Biden’s review period.

“We have been repeatedly inviting the Utah delegation to come and meet with us, and we’re saying that again,” Lee said. “If they would listen really carefully, they could hear our songs echoing off the walls within the canyons, and they could see the offerings our tribes have left for many years. They could see all the things that we have been talking about and how treasured they are to not only Native Americans, but to the world itself.”

—Tribune Reporter Bethany Rodgers contributed to this article.