ICYMI: UNITED TRIBES FILE FOR SUMMARY JUDGMENT IN BEARS EARS CASE

(January 9, 2020) Rising from the center of the southeastern Utah landscape and visible from every direction are twin buttes so distinctive that in each of the native languages of the region their name is the same: Hoon’Naqvut, Shash Jáa, Kwiyagatu Nukavachi, Ansh An Lashokdiwe, or “Bears Ears.” For hundreds of generations, native peoples lived in the surrounding deep sandstone canyons, desert mesas, and meadow mountaintops, which constitute one of the densest and most significant cultural landscapes in the United States. Abundant rock art, ancient cliff dwellings, ceremonial sites, and countless other artifacts provide an extraordinary archaeological and cultural record that is important to us all, but most notably the land is profoundly sacred to many Native American tribes, including the Ute Mountain Ute Tribe, Navajo Nation, Ute Indian Tribe of the Uintah Ouray, Hopi Nation, and Zuni Tribe. Presidential Proclamation and Establishment of the Bears Ears National Monument. December 28, 2016.

Two years ago on December 4, 2017, President Trump moved to revoke and replace the Bears Ears National Monument. This was seen as an attack on the five sovereign nations with deep ties to the Bears Ears region, and a violation of the separation of powers enshrined in our Constitution. No president has ever revoked and replaced a national monument before because it is not legal to do so. Only Congress may alter a monument. In light of this violation of law, the Native American Rights Fund, representing the Hopi Tribe, Pueblo of Zuni, and Ute Mountain Ute Tribe filed a lawsuit to protect Bears Ears. Native nations have spent years working to protect their sacred, ancestral lands. Millions of people have declared their support for our national monuments.

Last month, on Thursday, January 9, 2020, the tribal plaintiffs in the lawsuit to protect the Bears Ears National Monument filed a motion for partial summary judgment. The motion asks the judge to rule that President Trump’s attempt to reduce Bears Ears is beyond the president’s authority. Simply, the president is not authorized to revoke a national monument once it has been established.

In the motion, Native American Rights Fund Staff Attorney Natalie Landreth spells out the problem, “In an act untethered to principle or case law, President Trump did what no other President has done: revoked a national monument and replaced it with two small units comprising less than 15 percent of the original size of the Monument. In so doing, he acted well beyond the law and well beyond the Constitutional limits of his power.”

Their motion for summary judgment clearly lays out the issue at hand:

For the first time in history, five federally recognized Tribes banded together to advocate for a national monument to protect, for all Americans and for all time, a place so wondrous it had drawn people to it for more than 13,000 years. Rich in ancient and modern Native culture, and literally part of the homeland and history of the five Tribes in this case, it is known as Bears Ears National Monument. To the Tribes, it is a living and vital place where ancestors passed from one world to the next, often leaving their mark in petroglyphs or painted handprints, and where modern-day tribal members can still visit them. The Tribes worked for years to gather evidence and make a case for the protection of this landscape teeming with historical objects and sites. Recognizing that Bears Ears was exactly the kind of place for which the Antiquities Act was created, President Obama designated the Monument on December 28, 2016.

Less than a year later, in an effort to free up lands for uranium mining and other extractive industries, President Trump purported to revoke the Monument and replace it with two smaller, non-contiguous monuments. A stunning abuse of the Antiquities Act by any measure, the Trump Proclamation removed 85 percent of the original monument lands from protection, and removed 100 percent of protection from tens of thousands (and likely more) of cultural objects in the excised lands. The Antiquities Act – a law created specifically to protect historical objects and places –was used instead to remove protection from irreplaceable historical objects and places.

The issue here is simple: whether the President had the authority to do what he did. He clearly did not. Neither the plain text of the Antiquities Act, nor its legislative history can be reasonably construed to allow the President to do what he purported to do here. To the contrary, in revoking the original Bears Ears Monument and replacing it with two remnants, President Trump usurped power reserved only to Congress – a power that Congress has repeatedly reaffirmed and claimed for itself. This is a pure issue of law.

With this motion, the tribal plaintiffs simply ask the judge to acknowledge these facts and rule in favor of the first, second, and third claims in the tribal plaintiff’s amended complaint.

In another move by the Trump administration on Thursday, February 6, 2020, they finalized plans to allow mining and energy drilling on nearly a million acres of land in southern Utah’s Grand Staircase-Escalante National Monument which was established by President Bill Clinton on September 18, 1996.

The Department of Interiors release of formal land-use for approximately 861,974 acres of land will allow oil, gas and coal companies to complete the legal process for leasing mines and wells.

Together, the moves are the largest rollback of public lands protection in United States history.