January 19, 2017

Trump can scale back monument designations, experts say

Legal experts say the Trump administration has the authority to scale back national monuments designated by other presidents, but that such action would be challenged in court.

The Owyhee River canyon in Oregon, part of an area proposed to become a national monument. Legal experts say the Trump administration has the authority to reduce the scale of any national monument established by previous presidents. They warn, however, that such a move would certainly be challenged in court. (COURTESY BUREAU OF LAND MANAGEMENT)

Mateusz Perkowski
Capital Press

The Trump administration could sharply revise controversial national monument designations made by its predecessor, though it’s unclear such changes would be a high priority, experts say.

Pro-monument environmental groups would also likely seek to counteract such moves, testing largely uncharted legal waters.

While the Trump administration could not entirely revoke earlier national monument designations, their size and land use restrictions within their boundaries could be modified, said Karen Budd-Falen, an attorney who represents ranchers in public land disputes.

“All that stuff is fair game for the Trump administration,” she said. “It’s pretty clear they have maneuvering room.”

Theoretically, Trump could go beyond recent designations — such as the expansion of the Cascade-Siskiyou National Monument in Oregon — and amend monuments created by presidents before Obama, Budd-Falen said.

“There’s not a statute of limitations or a time frame on these things,” she said.

Ranchers fear that grazing will be increasingly restricted within the 49,000 acres recently added to the Cascade-Siskiyou National Monument.

Under an opinion issued in 1938, the U.S. Attorney General said Congress delegated its authority to create national monuments to the president in the Antiquities Act.

However, the power to revoke such designations belongs solely to Congress, not to succeeding presidential administrations, according to the opinion.

Even so, the Trump administration could greatly reduce the scale of a national monument by shrinking it to a quarter-acre, for example, Budd-Falen said.

The Republican-controlled Congress could also outright overturn a national monument designation or simply excise tracts that are most problematic for ranchers and other natural resource users, said Scott Horngren, an attorney with the Western Resources Legal Center, which litigates on behalf of agriculture and timber interests.

“They could use a scalpel,” said Horngren.

With the multitude of contentious issues facing the Trump administration and Congress, though, it’s open to question whether they’ll want to tackle disputes over national monuments, he said. “We just don’t know that.”

If the Trump administration did drastically roll back the size of a national monument, environmental groups could argue in federal court that the reduction was made arbitrarily in violation of the Antiquities Act, Horngren said.

Under that statute, national monuments should be as small as possible to protect resources within the monument, so the Trump administration could argue that his predecessor’s boundaries were too expansive, he said.

Though opponents of national monument designations tend to cast them as “midnight regulations” by outgoing presidents, in reality, new monuments and expansions must be justified in “rationales,” said Michael Blumm, an environmental law professor at Lewis & Clark Law School.

If the Trump administration decided to significantly shrink a national monument, it would have to provide a similarly well-reasoned justification, he said.

“The courts have taken seriously those rationales,” Blumm said. “There can’t be any arbitrary decision-making.”

Presidents do have a “fair amount” of flexibility in deciding what uses are permitted within national monuments, as long as they don’t undermine the monument’s fundamental values, he said.

A major reduction in a national monument’s boundaries would be unprecedented, partly because past presidents have been reluctant to scale back earlier designations, Blumm said.

The Bush administration, for example, defended national monuments created by the Clinton administration, he said.

The issue goes beyond partisan politics and resonates with concerns about the institution of the presidency, Blumm said. “Presidents like the monument authority, especially on their way out, because it provides them with a legacy.”

January 17, 2017

Congressman: Obama says no to Grand Canyon Monument

The proposed Greater Grand Canyon Heritage National Monument would encompass 1.7 million acres in northern Arizona.

By Loretta Yerian
Williams News

WILLIAMS, Ariz. — According to Arizona Representative Raúl Grijalva (D), the Obama administration has decided not to designate the 1.7 million acre Greater Grand Canyon Heritage National Monument before Obama leaves office this week.

In the Jan. 6 press release, Grijalva expressed his disappointment in the decision not to establish the monument, which would have encompassed all of the north Kaibab and Tusayan ranger districts of the Kaibab National Forest as well as lands on the Arizona Strip north of the Colorado River. All lands are currently managed by the Bureau of Land Management, the U.S. Forest Service, Arizona Game and Fish Department, Arizona State Trust Lands, along with approximately 28,000 acres under private ownership.

“I can only express my profound disappointment,” Grijalva said. “The Grand Canyon is one of the world’s most iconic and popular natural places, not just for its beauty but for its importance to tribal culture and history. Instead of building on former Secretary Salazar’s work, the interior and agriculture departments are apparently willing to leave the future of the Grand Canyon and the health of Arizona tribes up to Donald Trump. I am not.”

In 2016, Williams was among a number of cities and towns to pass resolutions opposing the establishment of the monument.

In April, Williams councilman Frank McNelly, representing Williams City Council and as a private rancher, joined small business owners, sportsmen, farmers, ranchers, elected officials and other stakeholders for a public session in Kingman that roundly criticized the proposed monument.

At the time, McNelly said he and other council members were frustrated that state leaders had not consulted with local northern Arizona community members about the monument. He said the land was appropriately managed now and the council saw no reason for the designation of a monument.

“There is very little private land in this state and I think it is very important the people of this state manage the land and not be dictated from some government agency,” McNelly said.

McNelly said he was glad of the outcome and said it was the right decision for the people who live and work the area that would have been in or near the designation.

“I think it is a really positive thing for the state and I would really praise Paul Gosar for his efforts and his vision on giving a voice to this and doing what he could to stop it,” he said. “It is better for the people who live here to decide and make the regulations and rules that govern the land where we live and work.”

Supporters of the designation, which included local and national environmental groups, the Navajo Nation and the Hopi and Havasupai tribes were disappointed in the decision and have vowed to continue to fight for preservation efforts.

“While the lands beyond the rim of the Grand Canyon are no less spectacular, culturally important, or economically vital than before, they do now face an even greater risk,” said Sandy Bahr, director of the Grand Canyon Chapter of the Sierra Club. “We remain dedicated to working with area tribes and communities to ensure these lands are protected for future generations.”

Navajo Nation President Russell Begaye expressed his gratitude in the recent designation of Bears Ears National Monument in Utah, but said he was disappointed in the decision for the Grand Canyon monument.

“We are disappointed that the Grand Canyon was not included in the designation by President Barack Obama under the Antiquities Act,” Begaye said. “We were hopeful to have both designations, but we are thankful for the Bears Ears designation. The Grand Canyon is an international monument that is visited by millions of people each year. The next administration should seriously consider designating the Grand Canyon under the Antiquities Act as a national monument to protect the canyon from mining and abuse in the name of economic development. This landscape should not be destroyed but saved for future generations to admire the beauty of the Southwest. We need to make sure that it is protected as a national monument.”

Supporters of the monument said designation of the monument would have protected wildland species and rare plants, protect cultural and archaeological sites, manage wildlife migration routes, reduce road density, provide retirement of grazing rights and helped prevent new uranium mines.

Polls showed that Arizonans varied in their support for the monument. Arizona representative Grijalva and former Rep. Ann Kirkpatrick supported the designation while U.S. Sen. John McCain (R), U.S. Sen. Jeff Flake (R) and Gov. Doug Ducey opposed the designation.

On Jan. 6, Grijalva reintroduced the Greater Grand Canyon Heritage National Monument Act and started mobilizing monument supporters for a strong push in the 115th Congress. The bill, which closely mirrors the previous version, would confer national monument status on two parcels of federal land, one north and one south of Grand Canyon National Park.

“The need to protect the Grand Canyon is bigger than who’s president or who sits in Congress,” Grijalva said. “The American people demand that this important place be preserved. People from all walks of life have been fighting this fight for a long time, and we’re going to keep working until we get it done.”

McNelly said he will be more confident in the decision not to designate the monument after President-elect Donald Trump’s inauguration Jan. 20 and said he thought it was a good effort by Arizonans who opposed the designation, which he doesn’t see changing anytime soon.

“Right now Grijalva is in the minority, being a democrat. We have the majority and our champion, Paul Gosar who I’m sure will be on top of all those things,” he said. “I think Grijalva needs to get over it and go back to worrying about Tucson and not worrying about Williams and the North Rim.”

January 16, 2017

Rule easing public lands transfer concerns hunters, others

FILE - In this July 23, 2003 file photo, a pronghorn antelope doe keeps watch as two fawns peer out from tall grass in the heart of southeastern Oregon's Hart Mountain National Antelope Refuge near Adel, Ore. A change in U.S. House rules making it easier to transfer millions of acres of federal public lands to states is worrying hunters and outdoor enthusiasts who fear losing access. Lawmakers earlier this month passed a rule eliminating a significant budget hurdle and written so broadly it includes national parks. (AP Photo/Don Ryan, File)

Associated Press

BOISE, Idaho (AP) - A change in U.S. House rules making it easier to transfer millions of acres of federal public lands to states is worrying hunters and other outdoor enthusiasts across the West who fear losing access.

Lawmakers earlier this month passed a rule eliminating a significant budget hurdle and written so broadly that it includes national parks.

President-elect Donald Trump's pick for Interior secretary, Montana Rep. Ryan Zinke, voted for the rule change as did many other Republicans. The Senate would have to weigh in on public land transfers as well.

"Anybody who uses them for any kind of outdoor activity â snowmobiling, mountain biking, hunters, all that â they're very alarmed by all this," said Boise State University professor and public lands policy expert John Freemuth. "The loss of access that this could lead to."

The rule passed by the House defines federal land that could be given to states as "any land owned by the United States, including the surface estate, the subsurface estate, or any improvements thereon."

About a million square miles of public land is managed by the federal government, mostly in 12 Western states, according to the Congressional Research Service. Some state lawmakers in recent years have made failed efforts to wrest control of those lands, mainly to reduce obstacles to accessing resources such as timber, natural gas and oil, Freemuth noted.

U.S. lawmakers have the authority to transfer those lands to states. Outdoor recreationists fear states would then sell the land to private entities that would end public access.

Zinke, whose confirmation hearing to become Interior secretary is Tuesday, has a track record of opposing public land transfers. Last summer, he resigned as a delegate to the Republican National Convention, which favors such transfers.

"The congressman has never voted to sell or transfer federal lands and he maintains his position against the sale or transfer of federal lands," Heather Swift, a Zinke spokeswoman, said in an email.

Whit Fosburgh, CEO of the Theodore Roosevelt Conservation Partnership, which works to guarantee places to hunt and fish, said he's inclined to excuse Zinke on his House vote favoring transfers because of his record being "very solid on these public lands issues."

Still, Fosburgh was irked that the House approved a rule that he said essentially allows federal public land to be given away as if it had no value.

Rep. Mike Simpson, R-Idaho, also voted for the rule easing transfers. But Simpson was also the driver of a 2015 bill that created three wilderness areas in Idaho after he got ranchers, recreationists and environmental groups to back the plan after a 15-year effort.

The possibility that President Barack Obama would designate a much larger area as a national monument is widely believed to have led to the bill passed by the House and Senate.

"There is no disputing Congressman Simpson is a supporter of public lands," Nikki Wallace, a spokeswoman for Simpson, said in an email.

Freemuth noted that even with a rule change, land transfers would face significant challenges.

"Whatever Zinke says early will affect those attempts," Freemuth said.

He and Fosburgh fear that federal land turned over to states would be too expensive to manage, particularly when it comes to fighting wildfires.

Freemuth believes states would sell land to private entities. Fosburgh was equally dismissive, saying transfers would eventually lead to private owners and no public access.

"You get rid of public lands, you end hunting and fishing in this country as we know it today," Fosburgh said.

January 1, 2017

Obama’s public lands policy leaves legacy of conflict

Push to control state lands at odds with locals

Interior Secretary Sally Jewell looks from Dead Horse Point, near Moab, Utah, where President Obama designated one of two national monuments Wednesday, that have become key flash points over use of public land in the U.S. West. (Associated Press)

By Valerie Richardson
The Washington Times

With two new massive set-asides in his final weeks in office, President Obama has moved aggressively to solidify a legacy on public lands that’s often put the White House at odds with state officials who want to see more local control over land use.

Mr. Obama already held the record for creating or expanding national monuments when he used the Antiquities Act last week to set aside a combined 1.65 million acres for Bears Ears in Utah and Golden Butte in Nevada.

In doing so, however, Mr. Obama also solidified his reputation for using public lands to reward his friends and enrage his enemies.

Environmentalists cheered his commitment to conservation, but Republican lawmakers, state officials and locals accused him of ignoring their input in order to score political points, lock up productive lands and expand federal control.

Rep. Rob Bishop, the Utah Republican who chairs the House Natural Resources Committee, said the hotly disputed designations represent business as usual for Mr. Obama.

“Much of the agenda, like the monuments, was done behind closed doors, in the shadows, in secret, and would otherwise be rejected under established democratic processes,” said Mr. Bishop. “They systematically abused executive powers through unilateral rules, orders and memorandums designed to make energy and resource development uneconomical.”

In the name of environmental protection, the Obama administration has tightened its hold on federal lands, adding layers of regulation on energy development, halting new coal leases, using the Endangered Species Act to restrict grazing, and taking a hard line on violations.

“Keep it in the ground, lock it up and let it burn. That’s been the policy for the last eight years,” said Montana state Sen. Jennifer Fielder, who heads the American Lands Council.

The result has been a backlash by groups such as the council, which formed in 2012 to counter the Obama administration’s expansion of federal authority by calling for transferring control of federal lands to the states.

Environmentalists have responded by doubling down with a push to stop energy development on public lands altogether with the “keep it in the ground” movement.

Mr. Obama’s final year in office has also seen a surge in unrest from protesters on public lands. In January, anger on the ground turned deadly when Robert “LaVoy” Finicum was shot and killed at an FBI roadblock during an armed occupation of the Malheur National Wildlife Refuge near Burns, Oregon.

The protest centered two ranchers sentenced to five-year prison terms after fires they set to control weeds spread to federal land.

On the other end of the political spectrum, thousands of protesters converged on federal land near Cannon Ball, North Dakota, to object to the administration’s approval of the Dakota Access pipeline easement near the Standing Rock Sioux reservation.

Hundreds have been arrested by local authorities since Aug. 10, but the Obama administration has taken a hands-off approach to the occupation. The protesters scored a win Dec. 5 when the U.S. Army Corps of Engineers agreed to withdraw the easement in order to conduct another environmental review.

In the administration’s corner are those who argue that Mr. Obama has provided balance to a public-lands policy that has in the past favored industries, including energy and agriculture, at the expense of conservation.

Matt Lee-Ashley, senior fellow and director of public lands for the liberal Center for American Progress, said part of the tension has come from the changing balance of power.

“I think if you look back for decades, extractive industries have had greater power in Washington and have had a big say in the decisions about the management of public lands, and we’re seeing greater balance now from the outdoor recreation industry, for example,” said Mr. Lee-Ashley. “A lot of states are weighing in on behalf of conservation and recreation. There are more people sitting at the table making these decisions, including conservationists, recreationists and Native American leaders.”

He said he saw Mr. Obama’s approach to environmental protection on public lands changed after his 2012 reelection victory.

“We saw the pace of conservation work pick up dramatically in the second term,” Mr. Lee-Ashley said. “There was a much greater balance between development and conservation on public lands in the last two or three years of his presidency.”

Mr. Obama has countered naysayers by pointing out that oil and gas development on public lands has increased during his administration, but his critics have argued that the increase has been far greater on private land.

The average leased for energy extraction on public lands has decreased steadily since Mr. Obama took office, according to figures from the House Natural Resources Committee.

Kathleen Sgamma, president of the Western Energy Alliance, blamed in part what she described as the Obama administration’s “bureaucratic stifling.”

“There’s just so many ways that they have blocked productive uses of federal land,” said Ms. Sgamma. “Making it more difficult at every step of the process, whether you’re trying to graze on an allotment that’s been in your family for over 100 years, or trying to move forward with your leases and get through the environmental analysis that the government simply won’t complete.”

Whether Mr. Obama’s latest monuments will survive is also in question. Utah Attorney General Sean Reyes has vowed to file a lawsuit, while Rep. Jason Chaffetz, Utah Republican, and others have called for the designations to be repealed.

“We look forward to working with President-elect Trump to follow through on his commitment to repeal midnight regulations,” Mr. Chaffetz said in a statement. “We will work to repeal this top-down decision and replace it with one that garners local support and creates a balanced, win-win solution.”