Bears Ears And Grand Staircase Management Plans Likely Illegal, Legal Researchers Say
Updated 11:33 a.m. MST 2/15/2020
The recently released management plans for Bears Ears and Grand Staircase Escalante national monuments, already slammed by tribes and environmentalists, may also violate federal law, according to a new law review article by two University of Utah researchers.
In an analysis published this month in the law journal Natural Resources & Environment, John Ruple and Heather Tanana, both researchers at the Wallace Stegner Center at the S.J. Quinney College of Law, compare the draft plans for the two controversial Southern Utah monuments to federal statute pertaining to monument management plans.
Their conclusion: the Bureau of Land Management’s plans don’t go far enough to protect the resources identified in the monument proclamations.
Current laws require the BLM to prioritize the protection of those resources over other uses, Tanana said.
“So, BLM, when they’re managing these national monuments, they have to do so in a way that’s going to protect the monument objects that resulted in the designation in the first place,” she added.
But the BLM did not do that in their draft plans for the monument, according to the researchers.
In response to the study, the BLM said the plans will “ensure that all activities conducted within the monuments are consistent with the proper care and management of the objects and values identified in the presidential proclamations.”
A Low Bar
As part of the management planning process, the BLM creates multiple management plans, including a baseline that represents the least possible action. Called a “no action alternative,” it’s the yardstick against which the impacts of the other plans are measured.
In the case of both Grand Staircase Escalante and Bears Ears National Monuments, the BLM used the management plans in place at the time of President Trump’s 2017 reduction of the monuments as the “no action alternative,” Ruple said.
For Bears Ears, that means the baseline plan — or “no action alternative” — didn’t include the requirements imposed by a national monument designation, because the area was previously managed as BLM and National Forest land, which require less protection than a monument under federal law.
Created in 1999, the previous Grand Staircase management plan, which the agency used as the baseline, didn’t take into account the Omnibus Public Land Management Act of 2009, which added protection for monument objects.
“We don’t believe that the BLM, in developing its proposed management plans, considered how those legal requirements changed that baseline,” Ruple said. “So what we have is a baseline that assumes a higher level of impact can occur than is possible under the law.”
The BLM also chose to recommend the least protective plan for both monuments out of the proposed alternatives, according to Ruple. He said there’s less protection for scenic values and land with wilderness characteristics under the plans finalized this month than before. Both plans also make it far easier to develop rights of way for utilities and other infrastructure, he added.
A New Precedent
Ruple said tribes and environmental groups are likely to sue the Trump administration over the management plans. Any legal challenge to the plans would be separate from the ongoing lawsuit over the 2017 reduction of the monuments. Ruple is on the board of Friends of Cedar Mesa, which is a plaintiff in that lawsuit.
He said such a challenge would result in new legal precedent clarifying how federal agencies like the BLM should balance recreational and other uses against the protection of monument objects.
But there’s a downside to litigation, too, according to Tanana.
“It’s going to further delay us getting final plans in place for these monuments. It’s going to take costs away from the agencies to be able to manage these,” Tanana said.
But that could all be moot if a judge rules to overturn the monument reductions in the pending lawsuit, and the planning process could start over.