Just a few days before leaving office, President Barack Obama designated the Bears Ears landscape in Utah a national monument, one of several national monuments created by the president in the final weeks of his administration. But now, Utah Republicans in the State Senate and US Congress hope to eliminate or drastically reduce the size of Bears Ears.
No national monument of this size has ever been overturned.
On Friday, Utah Governor Gary Herbert signed a non-binding resolution asking President Trump to rescind Mr. Obama's order, which passed the State Senate with a strong majority vote of 22 to 6, largely along party lines. In Congress, Rep. Rob Bishop (R) of Utah, the chair of the House Committee on Natural Resources, has also pledged his help to eliminate the monument. But despite Republican unity on the issue, it could prove difficult to remove Bears Ears from federal protection.
The primary obstacle is the Antiquities Act, which authorizes US presidents to protect ancient artifacts, ruins, and areas of scientific interest. The act also allows for the creation of federally-protected land around these areas, forbidding any new development of the area, with some exceptions for grandfathered leases that existed before the monument was designated. More to the point, however, these areas can be designated only by the President, without approval from Congress.
"Under the Antiquities Act, there is no ability of having any input," Rep. Bishop told NPR.
President Theodore Roosevelt signed the Antiquities Act into law in 1906, and it has remained in place ever since. But for many Utah lawmakers, Obama's Bears Ears proclamation in the final days of his tenure went one step too far.
"I think the voice of the people needs to weigh in on these decisions," Utah Senate President Wayne Niederhauser told St. George News. "And that's the Congress of the United States."
The main objection laid out by supporters of the resolution, which was sponsored by Mr. Niederhauser and Utah House Speaker Greg Hughes, was not that none of the land deserved protection, but that the unilateral protection of such a wide area was made without the consultation of the people of Utah.
Governor Herbert agreed with the sentiment in a Facebook post, saying, "These lands deserve our protection, but a unilateral monument designation is not the way to do it. "
But the Antiquities Act leaves little wiggle room for Republicans. While Congress can overturn a president's decision to create a national monument, University of Colorado law professor Mark Squillace, an expert on the Antiquities Act, told NPR that that getting the votes will be difficult, if not impossible.
"It turns out that the designation of national monuments is very popular with the public," he says.
While a direct appeal to President Trump might seem like an compelling workaround of this problem, Professor Squillace also says that the Antiquities Act is structured so that a president can "modify or revoke" proclamations of national monuments. But that limitation has never been legally tested before.
There is also another significant problem for Republicans. When Obama designated Bears Ears last December, he evoked the spiritual traditions of the native Americans, to whom the land once belonged. As Henry Bruinius previously reported for The Christian Science Monitor:
Indeed, at the start of his proclamation protecting 1.35 million acres of land in the Four Corners region of southeastern Utah, Mr. Obama noted the many native words for the distinctive twin buttes that dominate the landscape: Hoon’Naqvut, Shash Jáa, Kwiyagatu Nukavachi, Ansh An Lashokdiwe – or “Bears Ears,” in English. The region is, he said, “profoundly sacred” to the Ute, Navajo, Hopi, and Zuni tribes.
“The star-filled nights and natural quiet of the Bears Ears area transport visitors to an earlier eon,” Obama said. “Against an absolutely black night sky, our galaxy and others more distant leap into view. As one of the most intact and least roaded areas in the contiguous United States, Bears Ears has that rare and arresting quality of deafening silence.”
Many native American leaders have already expressed their support for the national monument designation at Bears Ears, and have vowed to resist Republican attempts to rescind it. Utah Dine Bikeyah, a coalition of Native American tribes who support the monument, have said they will fight to keep the monument in place, condemning the resolution to appeal to Trump.
"It's going to go into lawsuit and tribes will file the lawsuits against this because this was an illegal action," a representative of the group told Fox 13. "The delegation has never consulted with the tribes."
Ultimately, the Bears Ears monument could also prove beneficial to the region as well. San Juan County, the county in which Bear Ears was designated, is one of the poorest in Utah, and it could potentially boost the local tourism and recreation industries if the national monument stays.
But Bishop says that it is important for locals to have a real voice in the decision rather than simply accepting a one-sided decision from the executive branch.
"No one ever gets to have a say, you don't work out things in advance," Bishop says. "It has to be a gotcha moment where the president unveils something unilaterally."