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Focus on Regulation

Awaiting a monumental decision by the President

As expected, Secretary of the Interior Ryan Zinke on Thursday delivered his draft report to the President regarding the fate of certain national monuments, as directed by Executive Order No. 13792. Specifically, the President required that Secretary Zinke undertake an unprecedented review of all national monuments of more than 100,000 acres, which had been established under authority of the Antiquities Act since 1976. The Antiquities Act was enacted in 1906, and provides that a President may designate a national monument on federally-owned lands to protect historic landmarks and historic and pre-historic structures and objects of historic or scientific interest. The President was inspired to re-evaluate these actions of his predecessors by politicians in western States, notably including Utah, who had long objected to the establishment of national monuments on federally-owned public lands in their states.

Twenty-seven, and counting…

Twenty-seven monuments meet the President’s criteria, and the Secretary was asked to judge whether any or all of these warranted modification or rescission because they exceed in size the “smallest area compatible with proper care and management of the objects to be protected.” Monument lands are typically administered by the Bureau of Land Management, and are “withdrawn” from future extractive uses which might otherwise occur on public lands. Opponents of monument designation argue that economic use of the public lands is more beneficial to nearby communities. During his study, Secretary dropped from further review six monuments of the qualifying 27, and in July made an interim report on the Bears Ears National Monument in Utah, finding preliminarily but without specificity that it did not meet Antiquities Act criteria.

To modify, but not to rescind…

While transmitting his draft report to the White House on Thursday, Secretary announced that he does not recommend the complete rescission of any national monument designation. Otherwise, the Secretary did not disclose the nature or bases of his findings and recommendations to the President.  However, published reports indicate that the Secretary has recommended substantial reductions in size of at least three monuments: Bears Ears and Grand Staircase Escalante in Utah, and Cascade-Siskyou in Oregon.

Bears Ears National Monument

Bears Ears is indeed deserving of special attention because of its size (1.36 million acres), the richness and diversity of its archeological resources, and its spiritual significance to Native Americans of the region. The Navajo, Hopi, Ute, Ute Mountain Ute, and Zuni joined in the Bears Ears Coalition to urge permanent protection of this cultural heritage. When President Obama issued his Proclamation to establish the Bears Ears National Monument, he recognized its importance to Native Americans by requiring that they be consulted in writing, and provide substantive input in administering, the management plan for this newly-protected landscape. Not surprisingly, tribal members were among the more than 2.8 million Americans who overwhelmingly recommended to Secretary Zinke that the monuments not be revised or rescinded.

A monumental decision…

Hogan Lovells represents, pro bono public, the clearly-delineated interests of Native Americans, conservationists, archeologists, preservationists, and outdoor recreationists who seek to protect the integrity of the Bears Ears National Monument, and to secure for Presidents the continued use of the American Antiquities Act of 1906. Very soon, President Trump will respond to Secretary Zinke’s recommendations on the disposition of 21 national monuments, including Bears Ears. In so doing, the President will signal whether he values this extraordinary prerogative of Presidential authority to permanently protect “historic landmarks, historic and pre-historic structures, and other objects of historic or scientific interest.”