Restoring protections to Bears Ears will likely spark legal fights

When U.S. Interior Secretary Deb Haaland recommended last month that full protections be restored to three national monuments in the wilderness of Utah’s red rock country and off the New England coast, conservationists expected quick action. No drawn-out negotiations with Congress were needed; President Joe Biden could undo former President Donald Trump’s actions reducing the size of the protected lands and opening them up to development with the stroke of a pen.

Turns out, bringing back environmental protections takes time.

“It’s easy to tear things down, but takes longer to put them back together,” says Steve Bloch, the legal director for the Southern Utah Wilderness Alliance. “I expect the administration is doing its due diligence to make sure the restoration is as durable as possible.”

Biden is expected to return the boundaries of Utah’s Bears Ears and Grand Staircase-Escalante national monuments to their original size, and restore safeguards to a large marine reserve off the coast of New England. But even if he does, controversy over the size of protected lands designated as national monuments is likely to persist.

Utah Governor Spencer Cox suggested last spring that his state might sue if Biden decides to restore the monuments. And the Utah congressional delegation, which supported shrinking the size of the protected lands, has urged Biden to leave the decision to Congress.

Bears Ears was established by President Barack Obama in 2016 at 1.3 million acres; Trump reduced its size by 85 percent in 2016. The Grand Staircase-Escalante was created by President Bill Clinton in 1996; Trump shrunk it by almost half. Trump also opened the Northeast Canyons and Seamounts monument created by Obama, to commercial fishing.

In Trump’s view, some federal protections went too far. After reviewing 27 national monuments—all but one of them 100,000 acres or more—he ordered that the Utah monuments be downsized.

Presidential powers to create monuments 

The 1906 Antiquities Act vested presidents with the authority to create national monuments and determine their size. Five Native American tribes whose lands are included in the monuments and a consortium of environmental groups challenged in federal court Trump’s orders to reduce the size of monuments. The litigation was halted after Biden took office.

The Supreme Court declined to hear a separate court challenge brought by New England lobstermen against the creation of the Northeast Seamounts marine monument.

Still, conservatives who question the size of large monuments have not missed the significance of a four-page statement by Chief Justice John Roberts last March regarding the lobstermen’s suit. The power to set aside areas to protect artifacts and items of historical importance, Roberts noted, “must be confined to the smallest area compatible with the proper care and management of the objects to be protected.”

Haaland’s recommendations to restore the three monuments to their original size are included in a confidential report she submitted to Biden.

The administration is considering including the monuments in Biden’s pledge to conserve 30 percent of land and water in the United States as part of a global campaign to set aside 30 percent of the world for conservation. The so-called 30×30 plan, released last spring by the Biden administration, contains few details of which lands and waters would be protected.

Bloch thinks the prospect of further litigation may be the reason for Biden’s delay in announcing his decision. Chief Justice Roberts’s statement, Bloch adds, “leaves a trail of breadcrumbs for others to follow. He set out a marker that the state of Utah and other opponents are well aware of now.”

Bloch suspects the administration’s “due diligence” to future-proof any restoration from litigation may include strengthening the language of the proclamations that created the monuments and the description of the objects that deserve protection.

“We’re eager to have the monuments restored,” he says. “But I chalk it up to their working hard to do it right.”

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