Last Monday, I wrote about President Trump’s new executive order on national monument designations ahead of its announcement on Wednesday, April 26. Before the final order was issued, some details of the announcement had been released to the press. Most of those turned out to be accurate. The order requires the Department of the Interior to undertake a review of monuments designated since January 1996 to assess whether their size and scope are aligned with the requirements of the Antiquities Act.
Some additional aspects of the order were not disclosed in the earlier media reports, however. For one thing, the review is supposed to assess whether there was “adequate public outreach and coordination with relevant stakeholders” prior to monument designation. Additionally—and most important— within 45 days of the order (i.e., by June 10), the Secretary of the Interior is to provide an interim report on Bears Ears National Monument, which was created by President Obama in December 2016.
Giving the timing, Obama’s action to create Bears Ears has been described as a “midnight” monument designation, but that label is misplaced. The idea for a monument had been in play for many years, with significant local involvement. In early 2009, a coalition of Native American tribes introduced a monument plan, which was followed by much negotiation and discussion in the years leading up to its designation. Representative Rob Bishop (R-UT) himself—now an outspoken critic of the monument—introduced a bill in Congress to protect Bears Ears in July 2016, the Utah Public Lands Initiative (H.R. 5780). Although the bill included many other provisions, the boundaries of Bears Ears in it were very similar to those in Obama’s designation. The Department of the Interior’s report on Bears Ears should reveal that coordination with stakeholders was more than “adequate.”
But the requirement that the review of Bears Ears be completed in only 45 days is worrisome. Does it provide enough time for information gathering and consultation with a diverse set of stakeholders? And this begs the broader question of whether the review of monuments designated since 1996 is reasonable. In my earlier post, I said that it was. In part, this was because the alternative that many had feared—action by the Trump administration to rescind monument designations outright—would have been far worse. But in addition, I believe retrospective analyses can be useful for assessing the merits of prior government decisions, be they agency regulations, acts of Congress, or presidential proclamations and executive orders. Support for such evaluations is often lacking, but they can be incredibly useful if done in an unbiased way with data, rigorous analytical methods, and a balanced approach.
Can we expect the Interior Department’s review of national monuments to be balanced and rigorous? This remains to be seen. Personally, I have considerable faith in the civil servants that work in our government agencies. And the professionals in Interior know a thing or two about the benefits of national monuments, the processes by which monuments have been designated, and the trade-offs inherent in any decision about public lands. But beyond Bears Ears, the reviews overall need to be completed by August 4—a mere 120 days to review potentially 57 monuments, the total number designated since January 1996. Reviews for all 57 are unlikely, but the executive order requires one for each monument greater than 100,000 acres in size (of which there are 22), or those that the Secretary of the Interior determines did not have “adequate public outreach and coordination with relevant stakeholders.”
Two things, in short order, should tell us something about what’s to come. First, the Secretary of the Interior will need to determine exactly which monuments will be reviewed. How long will the list be and which monuments will be on it? Second, what process will the Interior Department use for Bears Ears? Will it gather information from experts on the value of the monument’s archaeological sites? Will it consult with the tribes in the region, and accurately characterize the extensive public consultation process that took place prior to the monument’s designation? Will it take into account the broad benefits of the monument or bow to political pressures, mainly coming from Utah’s political leaders? The review process for Bears Ears National Monument specifically and the interim June report will shed light on how politicized we can expect this entire process to be.