Monday, May 22, 2017

These Places Matter

DOI Secretrary Ryan Zinke riding with cattle ranchers 
Hello Everyone:

Sorry about last week.  Yours truly had a family wedding to attend and barely time to write, let along think.  Blogger Candidate Forum was extremely annoyed by all of the nuptials-related chaos but is grateful for the new week and promises to discuss impeachment on Wednesday.  Today, we go back to the subject of National Monuments.

Why do male Secretaries of Interior always need to channel their inner cowboy?  Alright, Secretary Ryan Zinke is from Montana and makes a credible cowboy case.  Recently Secretary Zinke traveled to Utah to tour the Bears Ears National Monument to promote President Donald Trump's review of national parks and protected public lands.  Los Angeles Times reporter Evan Halper traveled to Utah to report on Secretary Zinke's efforts to promote the politically rich landowner rights movements in his article "Trump's national monument plan could easily fail-but he'll still declare victory."

Press Secretary Sean Spicer presenting POTUS's first quarter paycheck
to DOI Secretary Zinke

On April 27, 2017, President Trump signed executive order, directing the Department of Interior to review designations of national monuments greater than 100,000 acres created since 1996.  Mr. Halper writes, "It's a directive the may prove legally tenuous but is nonetheless creating rich political theater for the White House.  As if the Trump administration needs more drama. During the campaign, then-candidate Trump struggled in deep red Utah with the landowner rights movement.  Now as president, POTUS dispatched the rugged Secretary Zinke on a tour that annoyed environmentalists and Native American tribes.

Bears Ears National Monument
Two of the monuments under review is Bears Ears and Grand Staircase Escalante. both in Utah.  Both of these monuments were created in accordance with the 1906 Antiquities Act, signed into law by President Theodore Roosevelt.  This law gives the president the authority to designate national monuments and makes it a federal crime to destroy or alter ruins and artifacts on federal lands.    Recently, most of the large public lands protection bills have been stalled in Congress, thus presidents Clinton, Bush, and Obama used the act to protect vast amounts of lands, largely in the West, under federal protection. (; date accessed May 22, 2017)

Grand Staircase-Escalante

During his four-day tour, Secretary Zinke surveyed two controversial monuments: "the 1.35-million-acre Bears Ears, which President Obama established at the behest of tribes and conservationists in the final weeks of his administration and the 1.9-million-acre Grand Staircase Escalante, which riled local developers and energy companies since President Clinton created it in 1996."

In the nearby communities, these monuments are frequently called a betrayal, depriving the residents of potential employment from energy extractions and other opportunities.  Republican Utah Senator Orrin Hatch used the word again while rowing about it on the Senate floor.

Map of Pacific Remote Island National Monument

Ranking House National Resources Committee ranking Democrat Rep. Raul Grijalva told Mr. Halper,

They are trying to work with a favorable audience...Once they live the confines of Utah and start looking at all the those other monuments, the politics dramatically changes...

The attorney generals in New Mexico and Washington warned Sec. Zinke that "he has no authority to diminish their monuments, and California would not hesitate to engage in a fight should Zinke move on lands within its borders.  One of the national monuments on the review list is Berryessa Snow Monument north of Sacramento and San Francisco Bay.

Berryessa Snow Mountain
Polls in Utah show the public is split over whether or not Bears Ears should retain its designation.  State government leadership is largely united and Sec. Zinke is receiving kudos on this trip.

Utah state legislator Ken Ivory opined,

We now have an opportunity to discuss and deliberate like we didn't even during the Bush administration.

Mr. Ivory is leading a multi-state federal land initiative that would good further than President Trump's executive order.  His quest, which has allies in Congress, looks to nationally export Utah's strategy of "pushing the federal government to transfer its land to state control."

Sonoran Desert National Monument

The landowner rights movement is a sensitive political issue for both POTUS and Sec. Zinke, who are allied with a large coalition of hunters, anglers, and outdoor suppliers wondering about what the states would do with the federal lands.  Both Mr. Ivory and Rep. Grijalva consider themselve outdoorsmen and made promises that the Trump administration will not lose control of the millions of acres at stake.  Nonetheless, Mr. Ivory is encourage by the review order.  He said,

This will continue the discussion.

Papahānamokuākea Marine National Monument
The protected lands Sec. Zinke toured are the foundation of POTUS's order for review and is likely to end with the Secretary suggesting that both places either have their designation stripped or be downgraded greatly.  Sec. Zinke is racing to review both Bears Ears and Grand Staircase-Escalante and the other 19 monument, including six in California, before creating two lists of possible eliminations and rollbacks.  The first list will be ready in mid-June.

Evn Halper writes, "There is ample evidence the exercise could go sideways, as some of Trump's other executive have..."  President Trump promised that "The executive order...would force builders of the Keystoe XL oil pipeline to use American steel actually won't."

Hanford Reach National Monument
Kate Kelly, an advisor to former Department of Interior Secretary Sally Jewell, told Mr. Halper,

The review of these monuments is predicated on the idea that the president has the authority that he doesn't have...There is no legal basis for it.

There may be no legal basis but there is precedent for POTUS's move.  Mr. Halper writes, "The last time a president moved to get ride of a monument on his own authority was in 1938, when Franklin D. Roosevelt sought to jettison the Castle-Pinckney National Monument in South Carolina."  President Roosevelt's attorney general looked the options at the time; eventually reporting back that The President could not do that. This requires an act of Congress, "...which ultimately authorized the federal government to offload the property in the 1950s."  The president's authority to de-designated a monument, say environmentalists, has diminished since the FDR administration, after Congress approved legislation cementing federal protecting.

Rio Grande del Norte
New Mexico
Conservative think tank lawyers influential in shepherding POTUS's agenda posit that the FDR administration got it wrong.  "They say that not only does the president have explicit authority to scotch monuments but that many of monuments created under the century-old Antiquities Act were done so illegally.  The act,..., was never intended to preserve sprawling land masses the size of Delaware."

If we accept this argument, even President Theodore Roosevelt's designation of the Grand Canyon was out of bounds.  Since then, the Grand Canyon has been promoted, sort of, from national monument to national park and universally considered untouchable by the President Trump's national monument review order.

San Gabriel Mountains National Monument
Los Angeles, California

Todd Gaziano, an attorney with the Sacramento-based Pacific Legal Foundation, defended the president,

I think the president is in a strong position.

Evan Halper counters, "While no president has ever successfully eliminated national monuments, several have changed their shapes and even shrunk them."  President John F. Kennedy substantially reconfigured the borders of the Bandelier National Monument in New Mexico, trimming nearly 4,500 acres and adding 3,000, claiming that the boundaries of what was preservation worthy had evolved.  While still a monument, Olympic National Park in Washington, was trimmed multiple times to allow timber harvesting, including 1915, when Navy ships were still built from wood.

Sunset on the Upper Missouri River Breaks
Evan Halper points out major differences between the attempts by Presidents Roosevelt and Kennedy and the current efforts by the Trump administration: "the earlier presidential moves to redraw monument boundaries were not contested."  The courts have yet to render an opinion on whether a president can take such action when stakeholders such as Native American tribes, environmental groups, and lawmakers strongly object.

Those groups have made it extremely clear that they will not allow President Trump to remove protection of a single parcel of land without a fight.  Given POTUS's 40 percent approval rating, Native American tribes, environmentalists, and legislators have a good shot at winning the battle.

Former Department of Interior deputy solicitor general Justin Pidot told Mr. Halper, "if he were working for this administration he would be warning Zinke that the legal arguments are shaky.  But, Pidot allowed, that may not be an overriding concern in this case."  Specifically,

A lot of things this administration does, it does for political theater...They many say they have done them, and then they get to rail against the courts for stopping them.

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