GM 17-027

Executive Order on Review of National Monuments, especially Bears Ears; Public Comments Requested by May 26 on Bears Ears

On April 26, 2017, the Trump Administration released Executive Order 13792, “Review of Designations under the Antiquities Act,” which directs the Secretary of the Interior to conduct a review of national monuments established or expanded since January 1, 1996. 82 Fed. Reg. 20429 (May 1, 2017). The scope of this review is to include all such monuments that are larger than 100,000 acres plus any other monuments which the Secretary determines to have been designated or expanded “without adequate public outreach and coordination with relevant stakeholders.” The stated purpose of this review is “to determine whether each designation or expansion conforms to the policy set forth” in section 1 of the order. That policy statement asserts that national monument designations may “create barriers to achieving energy independence, restrict public access to and use of Federal lands, burden State, tribal, and local governments, and otherwise curtail economic growth.” The policy statement concludes: “Designations should be made in accordance with the requirements and original objectives of the Act and appropriately balance the protection of landmarks, structures, and objects against appropriate use of Federal lands and the effects on surrounding lands and communities.” The Order may be found here:

The Order directs the Secretary to produce an interim report within 45 days and a final report within 120 days. In both the interim and final report, the Secretary is directed to make recommendations for “such Presidential actions, legislative proposals, or other actions” to carry out the policy stated in section 1 of the Order. The interim report will focus on the Bears Ears National Monument, which was established by presidential proclamation on December 28, 2016. 82 Fed. Reg. 1139 (Jan. 5, 2017), see our General Memorandum 17-004 (Jan. 10, 2017). Other national monuments may be included in the interim report, but Bears Ears is the specific target. The Office of the Secretary has published a notice in the FEDERAL REGISTER inviting written comments for the review. 82 Fed. Reg. 22016 (May 11, 2017). The notice lists 22 national monuments that are being reviewed. The deadline for filing comments on the review of Bears Ears is May 26; the deadline for comments relating to the other national monuments is July 10. The notice in the FEDERAL REGISTER may be found here:

National monuments are established under the authority of the Antiquities Act of 1906, 54 U.S.C. § 320301, which authorizes the President to proclaim national monuments on lands owned or controlled by the federal government in order to preserve “historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest.” Designation as a national monument provides enhanced protection for lands that are already under federal control, putting these lands off-limits for new claims under the federal mining laws and from other kinds of extractive resource development under the public land laws. Valid existing rights are not affected. The statute does not give the President authority to abolish a national monument, although Congress can, and, through the appropriations process, place restrictions on allowable uses that can be rendered unenforceable.

The driving force in the establishment of Bears Ears National Monument was a coalition led by five tribes: the Hopi Tribe, Navajo Nation, Ute Indian Tribe of the Uintah and Ouray Reservation, Ute Mountain Ute Tribe, and Zuni Tribe. It is the first national monument established at the behest of Indian tribes, and the proclamation creating it also established the Bears Ears Commission, consisting of one elected officer from each of the five tribes, to ensure that decisions made by the federal land-managing agencies are informed by tribal traditional and historical knowledge. On April 26, the date the Executive Order was signed, the Bears Ears Commission sent a letter to the Secretary of the Interior, renewing the requests for meetings previously made by the tribes that comprise the Bears Ears Inter-Tribal Coalition and inviting him to the next meeting of the Commission on May 17. The letter may be found here:

In both the interim and final report, the Secretary is directed to consider six factors, plus “such other factors as the Secretary deems appropriate.” The first listed factor appears to be intended to build a case for reducing the size of specific national monuments. This factor quotes statutory language providing that the land area set aside be “the smallest area compatible with the proper care and management of the objects to be protected.” The second factor calls for an examination of whether the designation of any given national monument was appropriate. The third and fourth factors call for looking into possible interference with the “multiple-use policy” applicable to most federal public lands and effects on non-federal land. The fifth factor calls for considering the concerns of state, tribal, and local governments, particularly fiscal impacts and the effects on economic development.

Please let us know if we may provide additional information or assistance regarding the review of national monuments to be conducted pursuant to this Executive Order.