Jonathan Thompson: Utah’s latest attack on the Antiquities Act

The bid to diminish national monuments threatens landscape preservation.

(Francisco Kjolseth | The Salt Lake Tribune) Arch Canyon within Bears Ears National Monument in Utah.

When President Joe Biden restored the Trump-shriveled boundaries of Grand Staircase-Escalante and Bears Ears in southern Utah in 2021, I allowed myself to believe, for a moment, that the brutal battle over these national monuments had finally come to an end.

Surely the state of Utah, which has aggressively marketed the national parks within its boundaries, had finally acknowledged that having another layer of protection for federal land was advantageous. After all, even some of the most vociferous local opponents of the national monument designations have, in recent years, profited handsomely from tourism, opening their own B&Bs or hotels or guide services and directly targeting national monument visitors.

But Utah’s leaders once again allowed their deeply ingrained anti-federal-land-management ideology to, ahem, trump any sort of pragmatism. Last August, the state filed a civil complaint aimed at diminishing the national monuments yet again — and, ultimately, doing much more: drastically undermining the Antiquities Act, making future landscape-level designations impossible.

The case gained momentum this spring, as the defendants and plaintiffs tossed out a flurry of motions to dismiss, responses and briefs, revealing their legal cards. I found myself especially intrigued by the plaintiffs’ arguments and the logic — or lack thereof — behind them. Why does Utah want to erase protections from this land? And what would a Utah-acceptable national monument look like, anyway? I dove in and what I found out was, as my mother-in-law might say: Very interesting. Let’s break it down.

The contested law: In 1906, in response to widespread looting of cultural sites, Congress passed the Antiquities Act, which declared, in part: The President … is hereby authorized, in his discretion, to declare by public proclamation historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest situated <on federal land> to be national monuments, and may reserve as a part thereof parcels of land, the limits of which in all cases shall be confined to the smallest area compatible with proper care and management of the objects to be protected …

The national monuments: Ninety years later, President Bill Clinton used that authority to establish Grand Staircase-Escalante National Monument on nearly 1.9 million acres of Bureau of Land Management and U.S. Forest Service land in Kane and Garfield counties in southern Utah. In 2016, at the behest of five sovereign Indigenous nations, President Barack Obama established Bears Ears National Monument on 1.3 million acres of BLM and Forest Service land in San Juan County, Utah. President Donald Trump shrank both national monuments significantly in 2017. Biden restored the original boundaries in 2021.

What monument designation does: It withdraws the land from new mineral and energy leases and mining claims, but does not affect existing leases, claims or rights of way. Neither Bears Ears nor Grand Staircase’s designation had any effect on current or future grazing leases or rights; in fact, records show that the permitted number of cattle grazing in both has remained more or less the same since 1996. However, when Biden restored the monuments, he also included a provision saying that if a livestock operator voluntarily retired a grazing lease, the retirement would become permanent — meaning the lease would not be offered to another operator. This might have the effect of phasing grazing out of the monuments over time. But for now ranchers, can pretty much do what they want on large portions of both national monuments.

Plaintiffs: Utah is joined by Zebediah Dalton, who has federal grazing leases within Bears Ears. Joining him are Kyle Kimmerle, who staked uranium mining claims there after Trump shrank it; Suzette Morris, a Ute Mountain Ute tribal member; and the BlueRibbon Coalition, a group that advocates for motorized off-road vehicle users.

Defendant intervenors: The Hopi Tribe, Navajo Nation, Pueblo of Zuni and Ute Mountain Ute Tribe — all members of the coalition that originally proposed Bears Ears — are intervenors on the defense side along with the Southern Utah Wilderness Alliance.

The plaintiffs’ beef, boiled down to the bone: The monuments, which together span about 3.2 million acres, are too vast to qualify for designation under the “smallest area compatible” part of the Antiquities Act. And that, the plaintiffs allege, is keeping them from mining, drilling, riding their ATVs, doing search-and-rescue work, grazing, chaining forests, managing wildlife, collecting religious items and maintaining roads on “twice the number of total acres in the President’s home state of Delaware … and just smaller than Connecticut.” (If I got a nickel every time someone used an East Coast state to illustrate how big something is in the West, I swear I’d have enough coins to fill the Grand Canyon. In its original complaint, Utah mentions Delaware five times, yet fails to note that San Juan County alone covers 5.2 million acres — it’s over three times larger than Delaware.)

In fact, the plaintiffs argue, the Antiquities Act doesn’t allow the president to reserve a whole landscape at all — only discrete objects on the landscape, such as individual structures or landforms.

(Leah Hogsten | The Salt Lake Tribune) A rainbow appears in Valley of the Gods, June 24, 2020.

Utah’s ideal national monument: Utah argues that only nine “objects” out of all of the innumerable landmarks on the 3.2 million protected acres “could qualify for declaration as a national monument”: the Bears Ears Buttes; Butler Wash Village, Doll House and Moon House (Ancestral Puebloan sites); Newspaper Rock (a petroglyph panel); San Juan Hill and Dance Hall Rock (landmarks along the Hole-in-the-Rock Trail taken by Mormon colonizers in 1879); the Twentymile Wash Dinosaur Megatrackway; and Grosvenor Arch. And that’s it, folks. That’s the entirety of Utah’s list of maybes for a national monument, which, in the plaintiffs’ dreams, would comprise just 6,480 acres — i.e., an area even smaller than Delaware — even smaller than Washington, D.C.!

Anyone who has ever visited either Bears Ears or Grand Staircase-Escalante knows how absurd, ignorant and illogical this list is. After all, if Bears Ears Buttes is worthy of national monument protections, then why not the equally significant Comb Ridge, Raplee Anticline, Arch Canyon, Grand Gulch, Valley of the Gods, Singing Canyon, Calf Creek Falls, Cosmic Ashtray, or the countless other landforms found in southern Utah? Why Moon House and Newspaper Rock but not the Citadel, Procession Panel, Split Level Village, Turkey Pen House, Wolfman Panel or House on Fire? Why are San Juan Hill and Dance Hall Rock — mere stopovers along the Mormons’ 1879 journey — worthy of protection, but not the Ancestral Puebloan “roads” that crisscross the landscape, or the countless ancient shrines or landforms that have played important roles in Indigenous peoples’ histories since time immemorial?

Even under the narrowest conceivable interpretation of the Antiquities Act, there are literally tens of thousands of cultural sites and structures and natural objects in these places that qualify for national monument protection. Making each and every one its own unit of a national monument would not only be illogical, but also impractical, not to mention culturally and environmentally myopic, conveniently overlooking the fact that these “objects” lose their meaning when they are taken out of the context of the larger landscape.

“The Bears Ears region is not a series of isolated objects, but the object itself, a connected, living landscape, where the place, not a collection of items, must be protected,” the Bears Ears Intertribal Coalition noted after Trump had trimmed the boundaries by 85%. “You cannot reduce the size without harming the whole.”

The problem is, however, that “harming the whole” — at least the part in between the plaintiffs’ nine “qualifying” objects — is exactly what Utah wants the freedom to do, if these legal arguments are to be believed. In Utah’s ideal national monument, the Bears Ears Buttes would be protected, but the state would deploy what it calls “methods to maintain healthy soil—such as chaining” — i.e., obliterating piñon-juniper forests — across vast swaths of surrounding federal land. Kimmerle would rake in millions of dollars of profit from a would-be uranium mine within what is now Bears Ears National Monument. And massive draglines would gouge away at the Kaiparowits Plateau in Grand Staircase-Escalante National Monument in search of every last bit of coal contained there.

Imagine if Utah’s notion of what a national monument should be were extended to Arches National Park, which was originally a national monument: Instead of a 75,000-acre swath of protected land, each arch would stand on its own, surrounded by a national monument boundary, while the landscape in between would be opened to drilling, mining, ATV-riding and potash ponds. The same goes for the other “Mighty Five” national parks in Utah (which together cover more land than, yes, Rhode Island).

Congress passed the Antiquities Act after years of deliberation and debate. The language is somewhat imprecise and even contradictory, both allowing the president to reserve areas “in his discretion” while also limiting it to the “smallest area compatible” with good management. This allows for broad interpretations for how it should be implemented. But the intent behind it is very clear: To protect and preserve the nation’s heritage and history. That simply cannot be achieved by tearing these objects out of their context. This is especially true when it comes to landscapes that are culturally as well as geologically significant, such as those at Bears Ears.

I’ll leave you with what I find to be a powerful and succinct argument for landscape-scale preservation. It’s from a 1991 paper on Ancestral Puebloan culture in the Four Corners region co-written by the late Rina Swentzell, a scholar from Santa Clara Pueblo:

“Here, the human landscape is meaningless outside the natural context — human constructions are not considered out of their relationship to the hills, valleys and mountains. The material village is one of the concentric rings about the symbolic center of the world. It is not given more weight or focus than the area of the fields, hills, or mountains. It constitutes one place within the whole. The web of human existence is interlaced with what happens in the larger natural context and therefore flows into the adjacent spaces, hills, and mountains.”

Jonathan Thompson

This column was first published at High Country News, where Jonathan Thompson is a contributing editor. He is the author of “Sagebrush Empire: How a Remote Utah County Became the Battlefront of American Public Lands.”