Bears Ears Brinkmanship: With Friends Like These, Does Cedar Mesa Need Enemies?


In large part, my personal opposition to a large new national monument in San Juan County was always based on a straightforward risk assessment of the likely consequences under “monument” versus “no monument” scenarios.

On the one hand, it seemed obvious that San Juan’s high-quality backcountry was unlikely to ever be degraded by extractive land uses irrespective of monument status. Demagoguery about pump jacks between the Bears Ears aside, the region west of US-191 has a very long track record of minimal-to-nonexistent development. Oil and gas production peaked decades ago, and very little even of that past activity occurred inside what became the 2016 Bears Ears boundary. The mining story is about the same.

Also, to be comprehensive about the impact of monument designation on resource extraction, any theoretical reduction in extractive activity within a new monument’s boundaries has to be weighed against the certainty of increased extractive activity elsewhere in Utah, as monument designations trigger the unlocking of Trust Lands in exchange for developable federal land.

There were also already numerous restrictive designations blanketing San Juan County’s backcountry, including three Wilderness Study Areas totaling over 200,000 acres just on Cedar Mesa. (For context, the effective Cedar Mesa Wilderness is about the same size as Zion and Arches National Parks combined.) Similarly restrictive designations or management imperatives applied to most of the other significant, distinct landforms that are now subsumed by the Bears Ears brand. Arguably, such low-key designations and imperatives are more purely tilted toward the mission of conservation than national park  or monument designations, which are geared more toward recreation and tourism.

It also never made sense to me to assume that “monument” would work as a magic word to safeguard cultural resources. Only enforcement of the many existing laws protecting such artifacts, or, far better still, a respectful and patient process of public education, is likely to change attitudes and behavior on that front.

On the other hand, monument designation would redefine the meaning of the landscape, which would permanently spike tourism and amenity migration to the region, which would in turn significantly and negatively impact the natural landscape and accelerate the socioeconomic restructuring of its gateway communities.

So, on balance and compared to many other parts of the Colorado Plateau, San Juan County was still doing awfully well simply by being difficult — difficult to reach, difficult to traverse, difficult to comprehend. Any intervention aimed at improving upon existing conditions would be a delicate process involving considerable risk of costly unintended consequences.

Day Zero

The calculus above assumed a generic political climate, one in which the prospective monument got typical (inadequate) funding and modest public attention outside the region. In this scenario, the new monument would be hailed as a landmark victory by Antiquities Act maximalists and received bitterly by those who oppose the sweeping use of that law. The designation would of course drive even deeper the partisan and ideological wedge that exists across Utah’s canyon country and beyond, but otherwise the fallout would be as it has been in the past.

Of course, Bears Ears was not created in a generic political environment, but in the aftermath of the acrimonious 2016 election. This detail about the timing of the monument designation turns out to be fairly important yet is consistently neglected in the common Bears Ears narrative. The story usually goes that the monument was designated and then came the provocative and unpredictable Trump, but that actually gets the order of events backwards. Donald Trump was already President-elect when the designation was made.

To me, on election night 2016, the decision to designate a large national monument in San Juan County went from being a questionable theoretical proposition to a clear act of environmental negligence. There was no plausible scenario at that point in which the new monument would be implemented with any enthusiasm. A more realistic expectation was for the catastrophe that has unfolded.

First, Do Harm

It turns out Obama’s staff at Interior made a similar assessment of the situation in late 2016, but, remarkably, rather than conclude that designating the monument had become a colossally bad idea, they determined that it was the most responsible thing they could do.

We know this for sure because of a presentation at John Hopkins University that involved several monument advocates. Much of the information presented is well-worn terrain, but there are also a number of novel and surprising claims made by all of the panelists.

One such nugget comes about an hour into the presentation, when Tommy Beaudreau, Chief-of-Staff of former Interior Secretary Jewell, explains that the decision to launch the monument directly into the current political thresher was done with full knowledge that what has happened would happen. He acknowledges that the administration knew in late 2016 that the monument proclamation would be received as an act of provocation if not a declaration of total war. They knew there was no chance that the monument as designated would be properly funded or any other constructive steps taken toward its implementation. They knew the ensuing controversy would be protracted and the outcome of the fight uncertain. They knew this chain reaction would negatively impact the landscape and its cultural resources. And still they set it in motion.

The obvious question is this: how could anyone make a risk assessment even superficially similar to the one outlined at the top yet reach a completely opposite conclusion about what constitutes a responsible course of action? The answer, it turns out, depends on whether you’re trying to protect a place or a particular interpretation of the Antiquities Act.

This becomes clear during the same segment of the Johns Hopkins presentation, when Beaudreau explains in clear and relatively detailed fashion that what made some sacrifice of Bear Ears tolerable is that it represents the best opportunity to “prepare the battlefield” for a court fight over the limits of the Antiquities Act.

With that, we have a closing statement on how the Obama administration’s approach to federal land management in southern Utah morphed from a version that defined “inclusivity” as requiring cooperation with Old West user groups and competing political ideals to one that defined “inclusivity” along standard left-identitarian lines, in which racial and political tribalism is not transcended, just (ostensibly) flipped.

After all, the thinking summarized by Beaudreau at Johns Hopkins represents a complete reversal by an administration, which, in earlier days, had acknowledged the toxicity of using the Antiquities Act in the manner exemplified by Grand Staircase-Escalante and Bears Ears. In 2010, Ken Salazar, Secretary Jewell’s predecessor, had in fact promised that the President would not “establish any national monuments without local permission (which means there will not be any).”

Whether, as an academic question, the Antiquities Act could be used in such a sweeping fashion was beside the point. Doing so was an irresponsible use of executive power. Predictably, this pledge was the cause of considerable consternation among groups who have long calculated that they could bypass the hassle and compromise intrinsic to the legislative process to approximate a Red Rock Wilderness Act one 2-million-acre monument at a time.

The beginning of the shift in both narrative and policy can be traced to about 2014 and the merger of the Cedar Mesa monument proposal with the Greater Canyonlands monument proposal. The new and improved boundaries were then rebranded as Bears Ears and the monument issue racialized as some weird sort of half-baked reparations.

This history gives further context to Beaudreau’s comments, since the battlefield preparation undertaken by pro-monument advocates obviously extends well beyond literal courtrooms to include the court of public opinion. Playing up the preciousness of Bears Ears does nothing to change the calculus for the (implausible) industrial use of the land, and playing up the essentialist indigeneity of the monument proposal does nothing to safeguard the region’s cultural resources. But both tropes are incredibly useful for framing monument supporters as the kind of people who love nature and archaeology, and monument opponents as the kind of people who shoot guns at rock art and decorate their yards and homes with plundered pottery and exhumed infant mummies.

Two Can Prepare a Battlefield

For many obvious reasons, monument opponents have been pretty lousy at influencing public opinion. But they still have friends in government, including more allies in the judiciary than some may realize.

At the time of the Bears Ears designation, it was clear that the Trump administration would be naming at least one Justice to the Supreme Court (Gorsuch) and likely one or two more than that (Kavanaugh so far). It was also clear that the Trump administration would be busily filling judicial vacancies in the lower federal courts at the same time as a Bears Ears lawsuit would unfold procedurally. As I write this, that project now stands at 29 new judges named to federal appellate courts, 53 to district courts, and counting.

So, the Bears Ears plaintiffs must know that, while they may have been able to steer the case into a relatively friendly court initially, the lawsuit may well ultimately be decided not by a liberal-majority court nor even a conventionally conservative one, but one consisting in significant part of judges groomed and handpicked by a Federalist Society that has declared its mission to include the dismantling of the federal administrative state.

The movement to restructure the judiciary has been decades in the making and, now that the decisive moment has finally arrived, there is no chance the architects of this campaign will fail to knock down the pins they have so carefully lined up.  A fight over the Antiquities Act is likely to be a fairly minor battle in what is shaping up to be a major struggle to reorient American law, and it is impossible to guess for certain how this structural context will affect the outcome of any particular lawsuit. But it is likely to matter a lot more than all the symposia, opinion letters and amicus briefs devoted to the case.

So, when Beaudreau and other monument plaintiffs and their allies discuss the legal fight and express supreme confidence in the outcome, it sounds an awful lot like whistling past the graveyard or, alternatively, a conversation from inside an ideological bubble. The kind of hermetic monologue that has become all too common in modern America’s hyper-polarized political climate.

Meanwhile, the human impacts on the region increase bit by bit, just as we all knew they would, and the political discourse around federal land management is more bitter than ever, as was equally predictable. It’s all nearly enough to make you wonder if the Obama administration was originally correct to think that the legislative process is the only responsible way to make complex, permanent, large-scale federal land management decisions.

When a Guppy Swallows a Whale: The Anatomy of the Bluff Incorporation

The community of Bluff voted in November to incorporate as a Utah town. In ordinary times, such a step is not unusual or particularly noteworthy. But these are not ordinary times in San Juan County nor are the details of this particular incorporation.

Bluff Balloon Festival
Salt Lake Tribune

Bluff Goes Big

The most attention-grabbing fact of the incorporation is its size: 38 square miles, which is more than 60 times the size of Bluff’s present developed footprint. The scale of the new boundary is fairly hard to contextualize, but one way to try is by linking it to population and housing estimates.

Bluff currently has a population of 265, a developed footprint of around 400 acres, and a residential stock of 184 homes including both household and non-household units (second homes, vacation rentals, etc.). Effective household size is therefore about 1 ½ people per dwelling unit and net residential density about one dwelling unit per 2 ¼ acres. Using these facts as analytical pivots, we can game out a few hypothetical scenarios about Bluff’s buildout.

For example, if Bluff were to continue to pursue a sprawling development pattern of, say, one home per two acres, a housing stock of about 12,000 units would fit within the new town limits. Assuming basically the same household composition as Bluff has today, this would spread a population of around 18,000 people across an area only a bit smaller than San Francisco (population 865,000).

If, on the other hand, Bluff were to grow according to a more efficient development pattern yielding a residential density of something like 5 homes per acre, the town could grow its housing stock 11 times over to 2,000 residences without expanding beyond its current developed footprint at all and could build over 120,000 residential units, almost 700 times more than it has today, before running out of land within town limits.

Of course the possibility of either of these thought experiments becoming reality is roughly zero. The Bluff Incorporation Feasibility Study projects an average population growth rate of about 0.5%, which equates to well under one new Bluff household per year. Even after accounting for residential demand for second homes and other non-household dwelling units, the study projects a need for less than two new homes per year.

Based on these facts, it is quite an understatement for the Feasibility Study to note that “[t]he proposed Bluff Town area has an ample amount of vacant land within the proposed boundaries.” After all, assuming even the sprawling development pattern that typically prevails in the New West, it would take thousands of years for Bluff to reach buildout at the study’s projected growth rate.

Given these conditions — minimal development pressure and abundant under-utilized land within Bluff’s existing footprint — the expansive Bluff boundary was obviously not established based on any sort of ordinary relationship between municipal incorporation and the provision of services to a discrete population, either now or in any conceivable future.

Non-Private Land

There is another unusual element about Bluff’s incorporation: the large amount of SITLA and BLM land encompassed within the new boundary. According to the feasibility study, of the 38 square miles contained within Bluff town limits, “SITLA and BLM lands will comprise 16.5 sq miles.” The straightforward reading of this statement is that about 43% of Bluff is non-private land managed by federal or state entities, leaving roughly 57% in private ownership. But even a cursory review of the incorporation map reveals that this cannot be the case, since the property color-coded as private is obviously much less than a majority of the land contained within Bluff boundaries.

To independently estimate the composition of land ownership, we can tally the number of township sections in each category. BLM land within the town boundary totals 12 sections in their entirety or near-entirety plus smaller portions of 11 additional sections. SITLA land also totals 12 sections in their entirety or near-entirety plus smaller portions of 7 additional sections. Since each section is one square mile, BLM and SITLA land therefore adds up to almost 24 square miles just counting sections that are entirely or almost-entirely within their ownership category, which is about 50% more than the 16.5 square miles referenced in the incorporation feasibility study. Once the partial sections are also accounted for, SITLA and the BLM may each manage something like the 16.5 square miles referenced in the study. If so, that would mean 33 of the 38 square miles inside Bluff boundaries are BLM or SITLA lands and less than 15% is private property.

Whatever the exact figures, the information in the feasibility study is a curious calculation and presentation of the composition of land ownership within Bluff’s new city limits, and begs further questions about the thought process that led to the new Bluff town limits. But before entertaining such questions, it may be instructive to make a short narrative and analytical detour.

The Wayne County Template

It is entirely likely that the Bluff residents who drove the boundary-drawing process are familiar with the experience of their New West antecedents, including in other parts of southern Utah. In particular, they may have learned some interesting lessons in land use realpolitik from a recent dispute in adjacent Wayne County. The facts of that controversy are as follows.

A local road construction company reached agreement with SITLA to undertake sand and gravel mining operations on a 120-acre trust land parcel located in unincorporated Wayne County near Teasdale. Consistent with its ordinary practice, SITLA required that the prospective mine operator secure local zoning approval prior to beginning operations. In this instance, that meant applying for both a zone change and conditional use permit (CUP). The construction company applied for the necessary approvals and the application was met with organized opposition from some area residents. Wayne County eventually concluded that it had no zoning authority over trust lands, and, on that basis, declined to take any action on the zone change application. The county went on to treat the CUP as an independent application and approved the conditional use permit.

Photo: The Insider

The opponents of the gravel operation then sued and the trial court affirmed the county’s conclusion that local land use authorities lack jurisdiction over trust lands. Secondarily, the court disagreed with the county as to its handling of the CUP. (Because conditional uses are specific uses permitted within a specific zone, albeit with mitigation of negative impacts, issuance of a CUP cannot be severed from the applicable zone that permits the use in question. To properly approve the CUP, Wayne County would have had to also approve the rezone request.) In effect, the court held that when SITLA submits to local land use authorities, it is engaging in arguably useful but ultimately non-binding regulatory theater.

What happened next is interesting. Rather than allow the gravel operation to proceed, as the court had made clear was its right, SITLA canceled the mining lease. In doing so, SITLA cited one of the main arguments of the opponents of the application, namely, that the parcel may have become more valuable as a prospective residential subdivision than as a gravel pit.

SITLA then included the parcel in its semi-annual auction of properties deemed suitable for disposal and, in yet another twist, the property failed to attract a bid greater than the reserve price of $6,600/acre. Not from a prospective developer; not from the gravel mining company; and not from the opponents of the gravel mine who were adamant that the property be preserved in an undeveloped state. So far, SITLA has declined to say if or when the land may be back on the auction block and has also given no indication that the failure to sell the parcel has caused it to reconsider the canceled mining lease.

This episode underscores at least two conditions of land use in Utah: (1) the modern SITLA is not an ideological or partisan agency, but a professional technocracy that must carefully manage its public reputation while pursuing its legal mandate to generate revenue for the beneficial owners of trust lands; and (2) like well-heeled NIMBYs everywhere, amenity migrants wield considerable political power to tilt land use in the direction of their particular preferences even where they lack any legal authority to do so and despite operating within an ostensibly pro-productivist political environment.

And so, despite a few interesting wrinkles, this tale from Wayne County is pretty typical of rural gentrification across the Colorado Plateau. Land uses like grazing and resource extraction are especially disfavored by New West settlers, but really almost any land use has the potential to be opposed as a threat to the establishment of a bourgeois utopia. Of course the systematic replacement of industrial-age land uses and social values with their post-industrial counterparts enhances the saleability of the place to the next wave of middle-class amenity migrants who then add their influence to the rebranding campaign. Lather, rinse, repeat.

In this account of the process of rural restructuring in the West, generational blue-collar residents lose their grip on their home’s sociopolitical landscape by losing their grip on the physical landscape. But note that this shift is often as much a transformation of the symbolic, social meaning of the landscape as any significant change in its actual use. For example, rebranding the San Juan backcountry as “Bears Ears” changes almost nothing about the landscape in productivist terms, but completely changes its social and economic meaning along post-industrial middle-class lines. Note also that this revolution in sociopolitical status typically occurs well before incumbent locals lose their majority status at the ballot box. In the gentrifying New West, it is rule-by-the-few zoning, not elections, that defines most of the important terms of social and economic life. With this in mind, let’s return to Bluff.

SITLA’s Bluff Block

This Is Bears Ears
View of Bluff Bench southeast across Highway 191.

Most of the trust land within Bluff boundaries consists of a large contiguous block on the so-called Bluff Bench above town. This should strike the informed observer as unusual on its face. The typical distribution of trust lands is the same as existed at statehood, with sections 2, 16, 32, and 36 of each township belonging to particular named beneficiaries (mostly K-12 schools). This allocation explains the distinctive blue checkerboard on a typical map of Utah. When, instead of that pattern, you see a large block of trust lands like the one north of Bluff — aggregated to include multiple adjacent sections and located near roads and/or towns — it is the result of an intentional exchange transaction between Utah and the federal government. These generally take one of two forms:

(1) “In-Lieu” Lands. As mentioned above, the Utah Enabling Act granted to the state four sections of each township to be used for the financial support of education. However, Congress had already disposed of some of the specific enumerated sections and so the Enabling Act also stipulated that Utah would be entitled to take equivalent property of the state’s choice from other sections of available federal land. Utah completed its process of electing these so-called in-lieu lands over the course of about 20 years, beginning in the 1960s. (Unsurprisingly, this was not a smooth or linear process, but the details of related controversies are beyond the scope of this analysis.)

The Bluff Block is a particularly good example of how this wrinkle was ironed out. Sections 32 and 36 of the township in which Bluff is located (Township 40 South Range 22 East) are south of the San Juan River, which makes them part of the Navajo Reservation and therefore ineligible for inclusion in the state’s grant of trust land. In turn, this and similar withdrawals by Congress of lands across Utah triggered an election of equivalent federal land elsewhere as replacement state trust land. The Bluff Block appears to have been assembled in 1977 as one such election in this process of reconciliation. Given the productivity of the nearby Aneth oil fields during this period, it is almost certain that these sections were chosen for their fossil fuel potential. But as yet, after more than 40 years, there has been really no energy development on this particular tract of land and overall oil and gas production in San Juan County has steadily declined over that same period.

(2) Negotiated Exchange Lands. The completion of a negotiated exchange is typically triggered by a specific land use conflict. When this sort of exchange is successful at all, it usually involves a years-long process of painstaking negotiation and due diligence.

For example, when a large national monument like Grand Staircase-Escalante (GSE) or Bears Ears is created, the Secretary of Interior is directed to acquire the trust land locked within the new monument’s boundaries through an exchange of other federal land of equal value. In the case of GSE, the monument boundary encompassed around 176,000 surface acres of trust lands (and 24,000 acres of subsurface mineral rights), which eventually led to a legislated land swap: SITLA exchanged a total of about 377,000 acres (its GSE inholdings along with other trust land located within National Parks, National Forests, and Indian reservations) for $50 million and about 139,000 acres of federal land. Noteworthy blocks of land acquired by the state through this exchange included a massive tract surrounding Big Water near Lake Powell (a corner of which is now home to Amangiri) and land with high mineral potential in the Uintah Basin.

Such exchanges are often hailed as win-win propositions by productivists and post-productivists alike, and in some respects they certainly count as that. After all, a negotiated exchange represents a far more constructive treatment of Utah’s vast non-private lands than the state of “total warfare” that typically prevails. And if we as a society accept the premise that some places are more worthy of conservation than others, it probably follows that resource extraction and other industrial uses should be concentrated in some areas rather than others (not to mention the fact that economic value, whether related to agricultural, industrial or recreational uses, is not equally distributed across non-private lands). But the careful observer may note that there are contradictions lurking here.

Cornering SITLA

It may also, by this point, occur to the careful observer that SITLA and rural Utah counties are increasingly placed in a difficult predicament by two major political and economic forces. The first is the shift by the U.S. government from a policy of acquisition and disposition of federal land to one of retention. Starting no sooner than the passage of the Taylor Grazing Act in 1934 and ending no later than passage of the Federal Land Policy and Management Act in 1976, the federal government first tacitly then explicitly ended its policy of non-retention of federal public land. In numerical terms, 816 million acres of public domain land was conveyed into private ownership between 1781 and 2006,  97% of which occurred prior to 1940.

One of the results of the timing of this policy shift relative to Utah’s existence as a state is that federal land policy de facto applies not just to federal land, but also to most Utah state trust lands, which amount to roughly 3.4 million acres or 6% of Utah’s land mass. SITLA has a constitutional mandate to use the land under its management to generate revenue for Utah’s schools, but its ability to do this is significantly constrained by the scattered nature of SITLA’s holdings combined with direct federal ownership of 2/3 of Utah. This combination means that most trust land is persistently locked within larger tracts of federal lands, which are managed according to entirely different legal paradigms and for entirely different purposes. The practical effect is that the federal government indirectly controls more non-private land in Utah than it owns outright in 35 other U.S. states.

The second major political and economic force painting SITLA and many rural Utah counties into a difficult corner is the colonization of the rural West by the post-industrial professional-managerial class. This is the Wayne County example, in which, despite a lack of local jurisdiction, zoning decisions heavily influenced by amenity in-migrants bend the use of trust land toward the creation of a sprawling, gentrified New West. If extractive or industrial land uses are taken completely off the table, and an area is instead marketed for its value as a New West enclave, the only viable alternative that remains to SITLA is to sell or otherwise develop their holdings for residential, resort or similar purposes.

Moving the Goal Posts

This Is Bears Ears
View northwest across Bluff Bench — East Bears Ear in distance.

Recapping in chronological order each key trend or event in the life of SITLA’s Bluff Block provides an interesting example of the interplay of these dual forces in real, historical terms.

For our purposes, the beginning of the story was Utah statehood and the grant of four sections of each township to be managed according to trust principles for the benefit of Utah’s schools. Over the ensuing 80 years, federal land policy shifted from disposition to retention. Then, in 1977, Utah selected the Bluff Block as an in-lieu exchange tract. Beginning in earnest in the 1990s, New West gentrification spread across canyon country and, not coincidentally, escalating arguments over public lands became a constant feature of the region. And so, by the 2010s, with a Democratic President in the White House, Bluff had become a natural beachhead for the final push for a massive national monument designation in San Juan County.

As various competing maps were drawn during the lead-up to Obama’s proclamation, some monument advocates included SITLA’s Bluff Block within their proposed boundaries. At first blush, this made little sense: the Bluff Bench has limited archaeological or scenic value and looping all of it into monument boundaries required a lone, notable incursion east of Highway 191. But some Bluff residents apparently reckoned they could persuade the Obama administration to stretch the purpose of the Antiquities Act to include its use as a potent method of local zoning. And so, at the end of 2016, most of the Bluff Block was indeed encompassed within the monument boundaries as a result of this lobbying.

(For their part, Diné Bikeyah did not include the Bluff Bench in their 2013 proposal. In fact, their boundary along the east of Comb Ridge essentially matches the eventual “Hatch Memo” boundaries.)

This inclusion of SITLA’s Bluff Block within the 2016 monument glossed over the fact that this tract of land is not only not federal land, but is trust land previously acquired by Utah in exchange for other federal land elsewhere in the state. Pro-monument folks extol the virtues of state-federal exchanges when it’s convenient, but will endlessly demagogue SITLA the rest of the time and even attempt to recapture or otherwise block the use of the very trust land previously acquired by Utah in state-federal exchanges.

Drawing Conclusions

All of this history and nuance remained unacknowledged by The New York Times (and the many other news outlets who picked up their coverage) when they recently published documents describing how, as one of the final chapters in the story so far, SITLA’s Bluff Block came to be removed from monument boundaries as part of the Trump-Zinke boundary reduction.

There has also been, as far as I can tell, no recognition that incorporating something like 33 square miles of non-private property into Bluff town boundaries is a variation on the tactic of including that land within monument boundaries. In terms of blocking disfavored land uses, what may or may not ultimately be accomplished in this instance through use of the Antiquities Act is likely to be fairly easily achieved through garden variety NIMBYism as expressed in the local zoning context.

After all, given the endless national controversy surrounding Bears Ears and local zoning dynamics typified by the Teasdale gravel-mine-that-wasn’t, there is now no realistic scenario in which SITLA will ever lease its Bluff Block for energy development or any other significant industrial purpose. Nor is any other economically productive use of the land likely except maybe, someday, hospitality or residential development. That scenario also seems highly implausible given the character of the land in question, but if it does occur, it will be entirely because of demand created by the marketing of Bluff as a New West enclave.

This is how a small group of self-serving residents, with significant help from their non-resident allies, will successfully dictate the use of thousands of acres land they do not own and which is not subject to their zoning authority. Such control will either be a superfluous constraint on non-productive lands or will cost San Juan County and the State of Utah millions of dollars in school funding and property taxes.


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An HR 4532 Explainer

House Resolution 4532 (HR 4532 or Act), a bill introduced by Representative John Curtis at the same time as President Trump modified Bears Ears National Monument (BENM), is an interesting piece of legislation that deserves more serious consideration than it is getting.

The Shash Jáa and Indian Creek Management Framework

The majority of national monuments are managed by the National Park Service (NPS). The Bureau of Land Management (BLM) and Forest Service also manage or co-manage a number of larger, landscape-scale monuments, including Grand Staircase-Escalante and Bears Ears. A handful of other federal agencies manage the small number of monuments not administered by the NPS, BLM or Forest Service. HR 4532 would depart from this paradigm by delegating principal management authority not to career bureaucrats at federal agencies but to management councils composed primarily of local representatives serving for a limited term.

Under HR 4532, the principal administrative authority for the Shash Jáa National Monument would be a body called the Tribal Management Council (TMC), which would consist of seven members appointed by the President after consultation with Utah’s congressional delegation. One member of the TMC would be an employee of either the Department of Interior (DOI) or Department of Agriculture, and the other six would be Utah residents not employed by the federal government. In turn, the six Utah members would be from defined populations: three members of the Navajo Nation, including at least one member of the Aneth Chapter, one member of the White Mesa Utes, and two San Juan County Commissioners.

The Indian Creek Management Council (ICMC) would be similar to the Shash Jáa TMC, but with different composition. Specifically, the ICMC would be a five-member council consisting of one employee of the DOI or Agriculture, one representative from the executive branch of the State of Utah, one member of a federally recognized Utah Indian Tribe, and two San Juan County Commissioners.

In addition to requiring tribal membership on the management councils, including majority membership on the Shash Jáa TMC, the Act would retain the Bears Ears Commission (BEC) in the same advisory role as established by President Obama’s 2016 proclamation. (The BEC is a five-member body, with one representative each from the Hopi Nation, Navajo Nation, Ute Mountain Ute Tribe, Uintah Ute Tribe, and the Zuni Tribe.) By preserving the BEC, the Act would keep open a channel for incorporating into monument management the insight and input of two contemporary Puebloan tribes who have ancestral roots in the region but have been physically disconnected from southeastern Utah for generations.

HR 4532 also requires the formation of a nine-member Archaeological Resource Protection Unit (ARPU), which would consist of experts in the preservation of antiquities and other resources of significant value in the monument. The Act requires staffing each of the Shash Jáa and Indian Creek units with at least 10 law enforcement officers, and appropriates $10.5 million ($1.5 million per year for seven years) for the development and implementation of the monument management plan. By allocating meaningful resources to the monument, the Act could substantially improve the preservation of antiquities and other important resources.

Observations and Analysis

The management structure contemplated by HR 4532 can fairly be summarized as orienting decision-making authority at the local level, but within parameters established by federal and state law and with the input and guidance of relevant scientific and cultural advisers. The Act requires the formulation of a management plan that is responsive to the monument’s declaration of purpose[1] and complies with federal laws like the Federal Land Policy and Management Act, Native American Graves Protection and Repatriation Act, Archaeological Resources Protection Act, etc. This planning directive is substantially the same as other national monuments, but the task of crafting and implementing the plan is given to a local management council rather than a federal agency.

This approach to public lands management is somewhat similar to that of the 62,000-acre Red Cliffs Desert Reserve in Washington County. In that case, the designation of the Mojave desert tortoise as threatened under the Endangered Species Act led to a multi-entity management compact and Habitat Conservation Plan (HCP). The HCP delegates principal management responsibility to Washington County, with guidance provided by a Habitat Conservation Advisory Committee, a seven-member body with one member each from: the US Fish and Wildlife Service, BLM, Utah Department of Natural Resources, Washington County Mayors’ Association, an environmental organization, citizens-at-large, and the local development community. Further scientific expertise is provided by a Technical Committee made of up government agency staffers, and day-to-day operational responsibility is shouldered by a small staff of employees led by a Reserve Administrator. Funding of Reserve administration is born primarily by the county; in its first 20 years of existence, the average annual cost to the county has been about $0.5 million per year. Of course, Red Cliffs Desert Reserve is not perfectly analogous to Shash Jáa and Indian Creek monuments, but its history may be instructive for anyone trying to better envision the way HR 4532 might work in practice.

Two Other Noteworthy Details

  1. HR 4532 is not a land transfer bill. The public’s land would not be grabbed, stolen or sold by its passage. The federal government would continue to manage the vast majority of the land in San Juan County, just as they have for decades. For most of the land placed outside the new monument boundaries, this primarily means the continued implementation of the BLM’s current Resource Management Plan.
  2. There has been a steady stream of misleading and factually questionable articles suggesting that the point of the monument reduction is to roll back the prohibitions on resource extraction contained in the 2016 Bears Ears Proclamation. It is noteworthy, therefore, that HR 4532 would withdraw from resource extraction not just the land within Shash Jáa and Indian Creek monument boundaries, but the same roughly 1.35 million acres as the Obama-designated boundaries. This bears repeating: in terms of resource extraction, there is zero difference between President Obama’s 2016 Proclamation and Representative Curtis’s HR 4532.[2]



[1] HR 4532 § 101(b). PURPOSE. –The purpose of the Shash Jáa National Monument shall be to protect, conserve, and enhance the unique and nationally important historic, sacred, cultural, scientific, scenic, archaeological, natural, and educational resources of the Shash Jáa National Monument.

[2] HR 4532 § 3. WITHDRAWAL.

Subject to valid existing rights, all Federal land and interests in land within the exterior boundaries of the Bears Ears National Monument declared under Presidential Proclamation 9558, dated December 28, 2016, is withdrawn from—

(1) all forms of entry, appropriation, and disposal under the public land laws;

(2) location, entry, and patent under the mining laws; and

(3) operation of the mineral leasing, mineral materials, and geothermal leasing laws.

The Trust Land Canard

The nature and purpose of state trust lands has to be one of the more misunderstood subtopics within the larger public lands conversation. I’m certain that much of the confusion about trust lands is simply due to a lack of knowledge on a somewhat arcane subject, but there is no doubt that this confusion is also magnified and cynically exploited by mainstream environmentalists. A clear case in point, from a profile of Congressman Rob Bishop published this summer:

To critics, … handing over the American public’s land to states just doesn’t make environmental sense. “The state of Utah does a terrible job of managing the land it has,” says Scott Groene, executive director of the Southern Utah Wilderness Alliance. “They sold half of the land they were granted at statehood. They have trashed most of the land they still own.” States neither have the money nor impetus for environmental protection, many critics say. When times grow tight, they argue, the temptation to sell off the land to the private sector is too great. Within the last two years alone, Utah has sold several parcels of state land to the highest bidder.

— Solomon, C. Environmentalists’ Public-Lands Enemy Number One. Outside Magazine.

Distilled to its essence, the argument here is that Utah would be a terrible manager of any land transferred to the state by the federal government in the future because it has been a terrible manager of the land it received in the past. The main problem with this argument is that it is based on a false premise, namely that there is categorical equivalence between the lands granted to states at statehood and lands retained by the federal government and managed by agencies like the Forest Service, BLM and National Park Service.

The truth, however, which is certainly known by a professional environmentalist like Groene and should be known by a journalist like Solomon, is that the lands granted to states as they entered the union — starting with Ohio in 1803 — are not actually state or public lands in any meaningful sense of the term. Instead, states took title to these lands only as trustee, with beneficial title belonging to specific, named beneficiaries. As such, these lands were never meant to be managed according to administrative law for the benefit of the general public, but according to trust law principles for the economic benefit of the named beneficiaries, mostly public schools. Some version of this mandate is typically codified in state enabling acts and/or constitutions, giving this distinction the force of law, not mere policy preference.

So for Groene and Solomon to cite the development or sale of trust lands as evidence of any state’s inability to manage land for anything other than economic purposes is not just irrelevant, but is actually a perversion of the fact that the economic use of trust lands was, from the beginning, their entire reason for being.

Demagoguing Resource Extraction

The other day, the Tribune published another broadside on the GOP’s drive to revise the monument. It included this note:

3. There are no real energy resources anywhere in Bears Ears

Last session, the Utah Legislature called for the repeal of the Bears Ears Monument citing, among other reasons, the way it would impede the plentiful energy extraction, sapping revenue that otherwise could flow into the state’s school system.

But one of the most striking things when you look at the state’s Bears Ears maps is how, aside from a band of uranium deposits north of the buttes, there really are no energy or mineral resources to speak of anywhere inside the monument — no coal, no oil, no gas, not even any potash.

You can see the area speckled with oil wells that have been drilled over the years, but the oil just isn’t there.

Then you look east, over Comb Ridge that forms the boundary for the monument, and it is a bonanza. It’s almost like, when the monument was designated, the boundaries weren’t arbitrary and the Interior Department drew the borders to avoid damaging the potential jobs and wealth in the county.

Neat how that works, right?

The information in the map undermines the argument the monument is costing San Juan County and the state jobs — but that doesn’t mean they’ll stop complaining about it.

My Comment

Every once in a while, monument advocates have trotted out the argument advanced here: that monument designation won’t cause local economic harm by reducing energy and mineral development in San Juan County because, after all, there isn’t anything of value to drill or mine inside the monument. (See also this page for another example of the argument.)

It always strikes me as a bit odd when this observation about the lack of energy or mineral resources west of Highway 191 is made by the same groups and publications that ordinarily argue that the monument is the only thing standing between a pristine San Juan County and oil pumps as far as the eye can see. (For just a few examples, see here, here, and here.)

Still, as far as it goes, it is refreshing when monument proponents make this argument because it is basically true. It also happens to be a core argument of many monument opponents: since there is substantially nothing worth drilling for or mining inside the monument, monument designation is redundant in terms of precluding those land uses.

Some monument opponents are even aware that:

1. Oil and gas production in San Juan County peaked 30 years before the monument was designated, and is down by one-half and two-thirds, respectively, from those highs [source].

2. A total of around 15,000 acres of the BLM’s Monticello Planning Area  — well under 1% of the total acreage — has ever been disturbed for oil or gas drilling and, as implied by point #1 above, old wells are being abandoned at about twice the rate as new ones are being drilled [source].

Taken together, it seems like the reclamation of abandoned well sites would be a more relevant and impactful environmental goal than tagging non-productive land with a superfluous monument designation.