Wednesday, June 30, 2021

Oil, uranium motivated Trump to slash Bears Ears; litigation, land use questions now sit on Biden's desk

President Biden is likely to undo the Trump Administration's dramatic reduction of protected land in southern Utah, including the Bears Ears National Monument.  If he does, the restoration will end litigation over the permissibility of rescission under the Antiquities Act and extinguish ambitions of the natural resource extraction industry.

Traveling in Utah in recent weeks (drought, torts), I spent time crossing the south of the state from the Navajo Nation in the east to the Dixie National Forest in the west.  In the Escalante region in between, a whopping 1.88 million acres of south-central Utah is set aside as protected land under the Antiquities Act of 1906, an enactment of the Teddy Roosevelt Administration and genesis of the American park system, as the Grand Staircase-Escalante National Monument (GSENM).

A famous feature of GSENM is Grosvenor Arch, named for Gilbert H. Grosvenor,
the first full-time editor of National Geographic.


GSENM (U.S. BLM)
Immediately east of GSENM, the narrow Glen Canyon National Recreation Area tracks the Colorado River from Canyonlands National Park to Lake Powell.  And just east of there, couched within an L of the north-south Glen Canyon and the east-west Navajo Nation is the 1.35 million acres that President Obama designated, or proclaimed, in December 2016, as Bears Ears National Monument.

You might have heard of Bears Ears, because it was at the heart of the controversy ignited when President Trump attempted to substantially rescind the Obama proclamation and vastly reduce the size of public lands in southern Utah.  By proclamation in December 2017, President Trump shrank the Bears Ears designation from 1.35 million acres to just under 230,000 acres, and he cut GSENM almost in half, from 1.88 million acres to just about one million acres (L.A. Times graphics).

Bears Ears NM (U.S. BLM) (red border)
The power of a President to undo a designation under the Antiquities Act is an open legal question.  In the 1970s, Congress undid a perceived overreach by the Carter Administration in protecting land in Alaska.  But the executive power to roll back designations is untested, and Trump's rollbacks were, like so many things about the Trump Administration, unprecedented.  Lawsuits followed from environmentalists and Native American tribes.

"Bears Ears" refers specifically to two buttes, and they are a universally and immediately recognizable landmark in southern Utah.  On a clear day, they can be seen from both Monument Valley Tribal Park in Arizona and Mesa Verde National Park in Colorado.  Driving the Trail of the Ancients from the Valley of the Gods, up the Moki Dugway from Mexican Hat, Utah, I recognized the Bears Ears right away when they popped up over the scrubby horizon.  They truly do give the unmistakable impression of first sighting a bear in the wilderness, ears poking up over shrubbery.

My first sighting of Bears Ears buttes
Bears Ears buttes in a National Park Service photograph
Bears Ears National Monument embraces the Trail of the Ancients and a vast range of sites that are archaeologically invaluable and culturally precious to multiple tribes, including the Navajo, Ute, Pueblo, Hopi, and Zuni.  Historic cliff dwellings, sacred burial grounds, petroglyphs, and pictographs abound in the region.  Headlong development plans and rampant looting of indigenous artifacts were key motivators of pleas for federal protection.  The buttes are at the center of it all geographically and symbolically, but it's the surrounding land that really matters.

Petroglyphs such as these at Capitol Reef National Park date between 300 and 1300.
So that was the frame in which I understood the controversy over Bears Ears before I went to Utah: a classic problem of conservationism versus economic development, collectivist versus objectivist land use, both sides with fair claims to the greater good.  The heuristic is a cost-benefit analysis, but different decision-makers variably assess intangibles such as environment, culture, and history.  And the whole calculation is awkwardly tinged with the shame of America's imperial legacy vis-à-vis indigenous peoples.

That framing is accurate—but incomplete.

There is an angle that I was missing, and it became apparent on the ground, literally.  My back-country drive was the tip-off.  The Moki Dugway is a spectacular unpaved mountain pass, not for the vertigo-inclined.  The pass was carved out by private enterprise specifically to transport uranium mined in Fry Canyon to a processing facility in Mexican Hat.  Bears Ears is not just about conventional land use.  It's about what lies beneath: coal, oil, natural gas, and uranium.  The Trump reductions to Bears Ears and GSENM were mapped specifically to kowtow to the extractive industries.

Moki Dugway

Panorama from the Moki Dugway, looking south toward Monument Valley

Valley of the Gods from the Moki Dugway
This is a FOIA story.  Extraction is rarely mentioned in news reports about Bears Ears.  But a media lawsuit under the Freedom of Information Act yielded some 5,000 pages of records from the Department of Interior that show, The New York Times headlined in 2018, that "oil was central."

Bears Ears proposed boundary revision,
attached to Hatch office email,
to "resolve all known mineral conflicts"

In March 2017, the office of Senator Orrin Hatch (R-Utah) transmitted to the Trump Interior Department maps of mineral deposits in the Bears Ears National Monument with email messages, such as, "Please see attached for a shapefile and pdf of a map depicting boundary change for the southeast portion of Bears Ears monument." As the Times reported, a map recommending monument reduction "was incorporated almost exactly into the much larger reductions President Trump announced in December, shrinking Bears Ears by 85 percent."

Publicly, Trump Interior Secretary Ryan Zinke downplayed the role of extraction in the decision-making, for example, once declaring, according to the Times, "We also have a pretty good idea of, certainly, the oil and gas potential—not much! .... So Bears Ears isn't really about oil and gas."

Meanwhile, the Times reported, "internal Interior Department emails and memos also show the central role that concerns over gaining access to coal reserves played in the decision by the Trump administration to shrink the size of the [GSENM] by about 47 percent ...."  According to the Times, "Mr. Zinke's staff developed a series of estimates on the value of coal that could potentially be mined from a section of Grand Staircase called the Kaiparowits plateau.  As a result of Mr. Trump's action, major parts of the area are no longer part of the national monument.

"'The Kaiparowits plateau, located within the monument, contains one of the largest coal deposits in the United States,' an Interior Department memo, issued in spring 2017, said.  About 11.36 billion tons are 'technologically recoverable,' it projected."

In contrast, the Times reported, 20,000 pages of Interior records accessed in the FOIA lawsuit "detail the yearslong effort during the Obama administration to create new monuments, including input from environmental groups, Indian tribes, state officials and members of Congress."

Another Hatch office email attachment:
USGS-mapped uranium deposits
in and around Bears Ears

Earlier, in January 2018, Times reporting based on public records obtained from the Utah Bureau of Land Management revealed the centrality of uranium extraction in public policy on Bears Ears.  As controversial uranium mining operations were set to resume near the Grand Canyon, the Times reported, and "even as Interior Secretary Ryan Zinke declared last month that 'there is no mine within Bears Ears,' there were more than 300 uranium mining claims inside the monument.

"The vast majority of those claims fall neatly outside the new boundaries of Bears Ears set by the administration. And ... about a third of the claims are linked to Energy Fuels, a Canadian uranium producer. Energy Fuels also owns the Grand Canyon mine, where groundwater has already flooded the main shaft.

"Energy Fuels, together with other mining groups, lobbied extensively for a reduction of Bears Ears, preparing maps that marked the areas it wanted removed from the monument and distributing them during a visit to the monument by Mr. Zinke in May."

Straight line of uranium "road scar" at Capitol Reef,
visible from upper left to lower right

Not just on the Moki Dugway, the legacy of uranium mining is evident on the landscape in southern Utah.  For example, in the stunning vista of Grand Overlook at Canyonlands National Park, some unusually straight lines in the earth stand out in contrast with the curving tracks along the hilly contours.  The straight lines, a ranger told me, are "road scars" from truck routes, transporting the yield of uranium mines before the national park was established in 1964. 

At Capitol Reef National Park, on the eastern edge of GSENM north of Glen Canyon, one can see the fence-wood-sealed holes of old uranium mines on hillsides and cliff faces, always tracking a pale yellow stratum in the rock.  According to a National Park Service signboard, "[t]he thin band of yellow-gray" is "a layer of ancient, river-deposited sandstone containing trace amounts of uranium....

"Exploration and milling of uranium was encouraged by the US Atomic Energy Commission in the 1950s during the Cold War.  Prospectors flocked to the Colorado Plateau.  Even protected National Park Service lands were opened to mining.  Despite strong opposition from park managers, companies were allowed to build roads, dig mines, and construct camps in previously undisturbed lands."

Fenced uranium mine openings in yellow stratum at Capitol Reef National Park

Part of NPS signboard at Capitol Reef National Park

I do not here want to ignore the public good that flows from natural resource extraction.  I drive a car and heat a home with fossil fuels.  The Hatch memos to the Interior Department said that state taxes and fees on natural resource extraction would be used to fund public schools, libraries, and infrastructure.  Extraction provides jobs and drives economic development, which betters social conditions.  And as the Capitol Reef signboard intimated, domestic uranium yield was, and still is, vital to the national defense and can be supportive, or in other hands disruptive, of global security.

I don't here subscribe mindlessly to collectivist dogma.  My complaint is against opacity and deception.  The electorate can calculate the public good only with a complete and accurate accounting of the variables.

Three federal lawsuits over the Bear Ears/GSENM reductions were consolidated in Hopi Tribe v. Trump, No. 1:17-cv-02590-TSC (D.D.C. filed Dec. 4, 2017) (Court Listener).  By executive order on Inauguration Day in January 2021, President Biden instructed the Interior Department to review the Trump proclamations on Bears Ears and GSENM, as well as a marine national monument off the New England seaboard.  In March, the court granted a stay in Hopi Tribe, waiting to see what the Biden Administration would do.

Earlier this month, the Interior Department delivered its report to the White House.  The report has not been made public, but media outlets, including the Times, reported that Interior Secretary Deb Haaland, member of the Laguna Pueblo and the nation's first Native American cabinet secretary, recommended restoration of the national monuments to their pre-Trump proportions.  In a joint status report filed with the Hopi Tribe court on June 3, the parties asked the court to extend the stay, pending the President's reaction to the report from Interior.

Your humble blogger at Cedar Break National Monument in the Dixie National Forest
 (All photos not otherwise attributed: by RJ Peltz-Steele, CC BY-NC-SA 4.0.)

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