Bears Ears Monument Designation Was the Right Decision at the Right Time

Posted on January 24, 2017 by Zach C. Miller

On December 28, 2016, President Obama by Proclamation under the federal Antiquities Act designated 1.35 million acres of federal lands in southeastern Utah as the Bears Ears National Monument.  That action culminated nearly a century of efforts to protect this unique, canyon-country site, which is archaeologically rich, ecologically diverse, and the ancestral homeland of a number of southwestern Indian tribes.

Immediately after this designation, the Utah governor and congressional delegation, some local officials, and various conservative pundits railed that the designation was an illegal and inappropriate “federal land grab,” was done without proper public input, will unduly impede traditional tribal and local activities, and can and should promptly be reversed and rescinded by the incoming Trump Administration.

Each of those claims has no factual or legal merit.  The most recent Bears Ears proposal was initiated several years ago by local Navajo leaders and formally endorsed by the Navajo Nation and four other tribes whose ancestors inhabited this area, as well as other local and national Indian and conservation groups.  It has been thoroughly vetted for several years and was the subject of a number of public meetings throughout 2016, including several local meetings attended by Interior Secretary Jewell.  As a result of that extensive public input, the Obama administration excluded over 600,000 acres of initially-proposed lands that contain oil and gas leases, existing and prospective uranium mining sites, limestone quarries, grazing areas, local water supply watersheds, and other objected-to areas.  The designation also expressly protects all valid existing rights, preserves access by Native Americans for traditional uses such as sacred ceremonies and gathering plants and firewood, and creates an Advisory Committee of state, local, and tribal representatives and private landowners to provide information and advice to BLM and the U.S. Forest Service in their joint administration of the monument and development of appropriate management and transportation plans.  As a result, the principal existing activities that will be restricted within the designated Monument are the ongoing illegal theft and vandalism of federal and tribal archaeological sites.

The Proclamation also uniquely creates a Bears Ears Commission consisting of an official from each of the five Native American tribes with historic ties to the area, to provide guidance and recommendations on the management of the Monument and related plans.  This is the first, and long-overdue, instance of Native American tribes being directly involved in coordinating with federal agencies to manage a monument that protects sacred sites on their ancestral homelands.

Regarding whether this action is a proper use of the Antiquities Act, it is widely acknowledged that this area contains one of the densest and most significant concentrations of archaeological and paleontological sites and specimens in North America.  It is also uncontroverted that historic sites in the area have been extensively looted and vandalized over the last century.  The FBI has conducted major enforcement actions against illegal “pot-hunters” in this area, including as recently as 1986 and 2009.  Complaints that state and local officials can better protect against such theft and vandalism ignore that most illegal pot-hunters have been local denizens and that, until fairly recently, the University of Utah museum was a major purchaser of the pilfered artifacts.  Providing federal protection to these highly-jeopardized antiquities on federal public lands is precisely what the Antiquities Act was designed and intended to do.  Far from being improper, this protective measure is long overdue.

In terms of timing and process, the Administration waited patiently until a long-pending legislative alternative proposal to protect the area failed in Congress.  That bill, introduced by Utah Congressman R. Bishop and dubbed the Public Lands Initiative (PLI), would have put 1.4 million acres into two National Conservation Areas (NCAs) and a separate wilderness area, but it provided less protection and increased state and local control over uses in the NCAs, with no direct tribal involvement.  But that bill failed to move through Congress before it adjourned.  In addition to waiting for completion of that legislative process, by reducing the monument designation from the initially proposed 1.9 to the final 1.35 million acres, the Obama Administration also largely aligned the boundaries of the final monument designation with those of the failed PLI proposal and excluded the central areas of objection.

Regarding the proposal for the incoming Trump Administration to administratively rescind this designation, there is no legal authority for the President to do so.  The Antiquities Act authorizes a President to designate an area as a national monument on federal lands when necessary to protect the appropriate sites and resources.  It does not authorize a President to rescind a designation made by some predecessor, and no President has ever done so in the 111-year history of the Act.  The Attorney General in 1938 formally opined that the Act does not provide for such rescission, and nothing has changed that would alter that conclusion.  The Congressional Research Service recently confirmed the absence of any such authority or precedent.  Republican Party members would also do well to recall that the Antiquities Act was signed in 1906 by its own conservation hero, Teddy Roosevelt, who used it to designate 18 monuments in three years, seven of which later became popular national parks, including at the Grand Canyon.  All but three presidents since that time have done the same.  As was the case with all those actions by Teddy and others, after all the immediately-following outrage and uproar, this measured Bears Ears designation will no doubt later be acknowledged as a brave, innovative, and critical action to protect this long-vandalized and currently-threatened area.

In sum, the recent designation of the Bears Ears Monument was the right decision at the right time for the right reasons, and there is no legal basis to rescind or restrict it without an act of Congress.  The incoming Administration and Congress should not heed recent partisan, emotional calls to try to undo it and should instead work with the new tribal Commission and all affected stakeholders to develop a fair and appropriate management plan for the new Monument.

Snatching Air Permitting Certainty from the Jaws of Tribal NSR Rule Vacatur for Non-Reservation Lands

Posted on February 19, 2014 by John Jacus

The recent decision of the D.C. Circuit in Oklahoma DEQ v. EPA vacated the 2011 Tribal NSR Rules with respect to non-reservation lands for which EPA has not made a prior determination of tribal jurisdiction. By its broad terms, the opinion’s reach extends well beyond lands solely within Oklahoma (“We…vacate the Indian Country NSR Rule with respect to non-reservation Indian country.”). States with EPA-approved implementation plans may once again permit facilities within their borders located on such non-reservation lands, in the wake of this decision. Though it may be decried by EPA and Native American tribes as effecting a partial loss of federal jurisdiction and/or tribal sovereignty, it should be praised by all who value legal and regulatory certainty, especially including those who wish to obtain air permits for their commercial activities within Indian Country.

EPA promulgated the Tribal NSR Rules to fill a regulatory gap created by the asserted general lack of state authority to regulate air quality within Indian Country. It did so by exercising its authority under Clean Air Act § 7601(d)(4) to administer a federal program over Indian Country in the stead of the tribes. This gap persisted for twenty years, until the Tribal NSR Rules were finalized as a Federal Implementation Plan (FIP) for Indian Country lands nationwide that lacked such a plan.

This twenty-year regulatory gap led to the inability to obtain air permits in Indian Country for certain activities, or the conduct of such activities without air permits at all: neither a good result. It also led to enforcement against even well-controlled activities and facilities in Indian Country because without a legally and practically enforceable limit on their emissions, such as in a valid permit, EPA and tribes were required to assume emissions were as high as their potential to emit without controls, often triggering the most serious, alleged violations. This unhappy state of affairs persisted from the passage of the 1990 CAA amendments until 2011, interrupted only in 2006 by the faint promise of proposed rules that would take another five years to be finalized.

When is a Regulatory Gap not a Gap?

EPA’s overbroad assertion of jurisdiction under the Tribal NSR Rules is what ultimately led to the vacatur of the rules for non-reservation lands. The case turned on the D.C. Circuit’s prior holding in Michigan v. EPA, which involved review of the Federal Operating Permits program for Indian Country. In that rule, EPA had established a federal CAA program throughout Indian Country, but declared it would “treat areas for which EPA believes Indian Country status is in question as Indian Country.” 64 Fed. Reg. at 8262. The court in Michigan sided with the petitioners and confirmed § 7601(d)(4) permits the EPA to act only in the shoes of a tribe, and EPA could not regulate in Indian Country where a tribe could not, i.e., on non-reservation lands where there had been no demonstration of tribal jurisdiction. The Oklahoma DEQ decision was controlled by this prior interpretation of EPA’s authority under § 7601(d)(4), and confirmed that a state “has regulatory jurisdiction within its geographic boundaries except where a tribe has a reservation or has demonstrated its jurisdiction.”

The good news is that part of the gap EPA sought to fill was not a gap at all: states with valid SIPs were authorized all along to issue permits for activities on non-reservation lands for which tribal jurisdiction has not been demonstrated.  The decision reaffirms such authority of states for such non-reservation lands, so air permitting with respect to them may proceed, albeit after a period of transition (EPA had loudly proclaimed in the Tribal NSR Rules that states don’t have jurisdiction anywhere in Indian Country).

While this result is not optimal from a tribal perspective, and appears to complicate the future ability of tribes to assume the broadest possible authority to regulate air quality, it is not all bad. For example, in Oklahoma, where no reservation lands remain due to the assimilationist policies of the last century, and where title to allotment lands is a legal quagmire preventing anyone from easily determining if a project is on non-reservation lands within Indian Country, the state may once again issue permits to protect air quality. I suggest it is also not a bad thing in other states, since the ability to obtain valid state air permits for activities on non-reservation lands within Indian Country will not only protect air quality there, but will create air permitting certainty, thereby removing some of the regulatory barriers to economic development on non-reservation lands.