Tuesday, December 5, 2023 | Back issues
Courthouse News Service Courthouse News Service

Tribes Challenge Shrinking of Monuments as Zinke Pushes More Changes

On the heels of the President Donald Trump’s proclamations to drastically cut two national monument’s borders, Interior Secretary Ryan Zinke released a final report recommending two more monuments for the chopping block and creating three new ones.

(CN) – On the heels of President Donald Trump’s proclamations to drastically cut two national monument’s borders, Interior Secretary Ryan Zinke released a final report recommending two more monuments for the chopping block with three new ones created.

Zinke’s final report is the child of Trump’s executive order this past April to review the monuments, a move that spawned a landslide of public response. The 20-page report outlines four major points: keep federal lands federal, add three new monuments, modify the boundaries of four monuments and expand access for hunting and fishing.

Besides the two cuts to national monuments announced Monday – Utah’s Bears Ears and Grand Staircase-Escalante – Zinke’s report recommends downsizing Gold Butte National Monument in Nevada and Cascade-Siskiyou National Monument on the California-Oregon border.

In a somewhat surprising move, Zinke also recommended establishing three new national monuments. He advised giving monument status to the home of Medgar Evers, an essential member of the National Association for the Advancement of Colored People who was murdered by white supremacists in the driveway of the home in 1963.

Two other monument recommendations include a Union Army base in Kentucky that was used to train black people during the Civil War, and 130,000 acres within Montana’s Lewis and Clark National Forest, a site sacred to people of the Blackfeet Nation.

Zinke believes his recommendation for monument modifications reflects past administrations’ mistakes.

“America has spoken and public land belongs to the people,” said Zinke in a statement. “As I visited the monuments across this country, I met with Americans on all sides of the issue – from ranchers to conservationists to tribal leaders – and found that we agree on wanting to protect our heritage while still allowing public access to public land.”

But while Zinke cites the American public as the reason for cutting boundaries, Jaina Moan, executive director of Friends of Gold Butte, credits Nevadans and national-monument lovers for her opposition. Moan held a press conference Tuesday in response to Zinke’s final report.

“It’s disheartening. It’s saddening,” said Moan, backed by supporters. “It makes me and a lot of people angry, which is why we’re here to say, today, that Gold Butte National Monument is wanted by Nevadans and by all of those who appreciate the value of our antiquities and our treasured public lands.”

Visitors to the Gold Butte National Monument in Nevada enjoy massive sandstone towers and unique wildlife like the Mojave Desert tortoise. It is also a place of cultural and spiritual significance to Native American tribes.

The Cascade-Siskiyou National Monument spans part of Oregon and California, and was originally established by President Bill Clinton in 2000. While many of the national monuments are set up to protect areas of cultural significance, this monument protects diverse environmental and wildlife features: three mountain ranges converge here, and it is also home to several endangered species.

U.S. Sen. Ron Wyden of Oregon blasted Zinke’s report and statement, saying the proposed modifications are motivated by corporate interest rather than the public’s.


“Secretary Zinke is NOT listening to Oregonians with his vague recommendation to close off public access to the Cascade-Siskiyou monument,” Wyden, a Democrat, tweeted. “These public lands belong to ALL Oregonians and Americans – NOT to corporations and Trump’s department heads.”

But Zinke said the idea the federal government would sell former monument land is a myth.

“The secretary adamantly opposes the wholesale sale or transfer of public lands. The Antiquities Act only allows federal land to be reserved as a national monument,” Zinke said. “Therefore, if any monument is reduced, the land would remain federally owned and would be managed by the appropriate federal land management agency.”

Yet Zinke’s report is only a recommendation, his department’s statement does not directly address the possibility of selling land to corporations.

The report also says a president should not restrict public access, prevent hunting and fishing, burden private land, or eliminate traditional land uses, except when needed to protect the objects. According to the secretary’s report, that power belongs to Congress alone.

Trump has not yet publicly responded to Zinke’s final recommendations. But many have responded to Trump’s announcement to gut Bears Ears and Grand Staircase-Escalante: a coalition of five Native American tribes filed a federal complaint late Monday challenging Trump’s authority to modify the 1.4 million-acre Bears Ears.

The lawsuit filed by the Navajo Nation, along with the Hopi, Zuni, Ute Indian and Ute Mountain Ute Tribes, came the same day Trump said he would slash Bears Ears by 85 percent and the 1.9-million acre Grand Staircase-Escalante monument by about 46 percent.

In a separate proclamation, Trump designated two smaller monuments: the Indian Creek and Shash Jaa.

But the tribes say only Congress has the authority to modify national monuments under the Antiquities Act, which does not allow presidents to rescind, modify or revoke and replace national monuments with smaller ones.

"President Trump’s unprecedented proclamation revoking Bears Ears and replacing it with two new monuments violated the Antiquities Act, seized an authority that the Constitution vests in Congress, exceeded the power delegated to the president by Congress, and should be declared unlawful and enjoined to prevent its implementation," the tribes’ complaint states.

The lawsuit, filed on behalf of the tribes by attorneys from the Native American Rights Fund and the Navajo Nation Department of Justice, names as defendants Trump, Zinke and Interior Department acting director Brian Steed and Zinke, along with Department of Agriculture Secretary Sonny Perdue and Forest Service chief Tony Tooke.

The filing attorneys did not respond to an email seeking comment on the lawsuit, nor did the White House, the Department of the Interior and the Forest Service.

President Barack Obama created Bears Ears this past December, in the waning weeks of his presidency. Clinton created the Grand Staircase-Escalante in 1996, and it was the largest national monument until Monday.

According to the lawsuit, the tribes staunchly advocated for making the Bears Ears area into a monument, since the land remains significant to them.

"Bears Ears has been home to Native peoples since time immemorial, and is still cherished by Native peoples for its cultural, spiritual, and archaeological importance," the tribes say in their complaint.

They say they use the area to collect natural items for medicinal purposes and religious and cultural ceremonies, in addition to using it for ceremonies, and for hunting, fishing and gathering.

"Bears Ears is so culturally and spiritually significant that some ceremonies use items that can only be harvested from Bears Ears," they say.

With modifications to 129 other national monuments a possibility, the tribes fear failing to restrain the president will leave the others at risk.

"The historic and cherished national monument system will be destabilized. Congress clearly did not intend for that result," the tribes say in their lawsuit. "It enacted the Antiquities Act to preserve America’s historic and scientific heritage for the benefit of current and future generations. Congress reserved to itself the authority to revoke or modify those monuments, and granted the president only the power to create them."

The tribes say they also fear that without the protections afforded to Bears Ears, the land will be subject to gas and oil drilling, uranium mining, vandalism and grave robbing.

In addition to violations of the Antiquities Act, the tribes claim violations of Articles I, II and IV of the U.S. Constitution, saying Trump encroached upon the power of Congress by attempting to amend the Antiquities Act to allow him to revoke, diminish or replace monuments.

The tribes also assert violations of the Administrative Procedure Act by Zinke and Perdue, who they say are required to protect the full 1.4 million-acre Bears Ears monument since Trump lacks the authority to modify it.

The tribes seek a finding of the aforementioned violations, an order that Trump rescind his proclamations or prohibiting him from carrying them out.

Conservation groups also joined in the fray, suing Monday to block Trump’s proclamation as to Grand Staircase-Escalante.

Categories / Courts, Government, National, Regional

Subscribe to Closing Arguments

Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.