Jordan K. Lofthouse
Camille Harmer
Arthur R. Wardle
Megan E. Hansen
Landon C. Stevens

Introduction and Background

The Department of the Interior’s request for comment on the designation of Bears Ears National Monument and other monuments designated over the past 20 years responds to Executive Order 13792 (hereafter ‘The Executive Order’), issued by President Trump.[1] The Executive Order instructs the Secretary of the Interior to consider past designations’ adherence to statutory language in the Antiquities Act of 1906 (54 U.S. Code § 320301), among other criteria.

One of the most controversial of these designations has been Bears Ears National Monument. Strata is a public policy think tank based in Logan, Utah, that uses public choice theory and constitutional political economy to evaluate the legal and economic ramifications of government actions, especially as they relate to environmental policy. We are interested in the review of Bears Ears National Monument because we are concerned about the rule of law, the abuse of government power, and the effects of government policies on a wide range of people. Our organization is composed of academics and policy professionals who engage in research to better understand the incentives behind government policies and the consequences that result from these policies. We have found that Bears Ears National Monument, as currently designated, does not comport with the Act’s “requirements and original objectives.” We have also found that the current designation does not “appropriately balance the protection of landmarks, structures, and objects against the appropriate use of federal lands and the effects on surrounding lands and communities.”[2]

In December 2016, President Obama signed a presidential proclamation establishing Bears Ears National Monument in southeast Utah. In this proclamation, President Obama extolled the scenic amenities of the region and cited the area’s cultural and historical importance to local Native American people. The language of the proclamation argues that the natural, historical, and cultural amenities in the area need protection. President Obama claimed that the monument’s 1.35 million acres are “the smallest area compatible with the proper care and management of the objects to be protected.”[3] In the five months since President Obama established the monument, the debate for and against it has been widely publicized and contentious. The heightened emotions surrounding the review of this national monument should not influence how the Department of the Interior analyzes the monument’s economic impacts, legal implications, and effects on conservation. Below, we have listed seven factors that the Department of the Interior should consider in its review of Bears Ears National Monument. The factors are listed in the order we discuss them throughout the document.

  1. The monument violates the law by being significantly larger than “the smallest area compatible with the proper care and management of the objects to be protected” and includes many objects for protection beyond the scope of the Antiquities Act.
  2. The creation of the monument seems to be rooted in the desire to establish an “environmental legacy,” rather than the stated purpose of the Antiquities Act.
  3. Historical precedent gives ample evidence that the executive may unilaterally reduce the size of improperly large designations.
  4. The monument designation does little to give additional protection to the amenities described in the presidential proclamation.
  5. Federal, state, and local lawmakers supported land use policies that would balance the use of federal lands between competing interests. The monument designation overrode local interests.
  6. The proclamation heavily emphasizes the importance of the area to Native Americans, but the future management may not actually reflect the desires of the Native peoples who value the land.
  7. The designation does not necessarily give more freedom to Native Americans to use their sacred land as they see fit.

[1] Exec. Order No. 13792, 82 Fed. Reg. 82 (2017).

[2] Review of Certain National Monuments Established Since 1996; Notice of Opportunity for Public Comment. 82 Fed. Reg. 90 (2017).

[3] Proclamation No. 9558, 82 Fed. Reg. 1139 (2017).