The Hopi, Zuni, Ute Mountain Ute, Ute Indian Tribe and the Navajo Nation, as well as a host of environmental groups including the Southern Utah Wilderness Alliance, filed the lawsuits.
Chutkan also combined two cases against the decision to reduce the size of Grand Staircase-Escalante National Monument.
The ruling comes after President Trump’s executive order in early December abolished Bears Ears and Grand Staircase-Escalante National Monuments, creating instead several smaller national monuments. Shash Jaa and Indian Creek National Monuments will replace the 1.35 million-acre Bears Ears National Monument. The two new monuments cover approximately 200,000 acres, an 85-percent reduction on the former Bears Ears Monument.
President Trump cited the Antiquities Act as the legal basis for his action reducing the size of national monuments. The lawsuits argue that the Antiquities Act grants the president the authority to create — but not to reduce or eliminate — national monuments. That authority, the plaintiffs argue, rests with Congress.
As the lawsuits move forward, mineral leasing has opened up in the former Bears Ears area. On Feb. 2, a 60-day moratorium expired, opening the door for oil, gas, coal and uranium companies to make requests and stake claims in the former national monument, prompting concern from environmental groups.
However, there is no sign of a rush to stake claims. Steve Bloch, legal director of SUWA, told the Salt Lake Tribune that the Bureau of Land Management told him that inquiries have been made but no claims sent in thus far.
“If a new mine were to open, it would be competing with existing mines in Utah for limited demand,” Michael Vanden Berg, energy and mineral program manager at the Utah Geological Survey, told the Salt Lake Tribune.
And the price of uranium, at $22 per pound, remains much lower than in the past and would “discourage any investment in new claims,” according to Luke Popovich, a spokesman for the National Mining Association.
The forum where the cases will be heard remains up in the air, after the U.S. Department of Justice requested on Jan. 18 that the cases, filed in the U.S. District Court in Washington, D.C., be moved to Utah’s district court. The motion argues that Utah has a vested interest in the case and that the location would be more convenient for the plaintiffs. The tribes responded on Feb. 1 with a motion in opposition, saying that they have land in Arizona, New Mexico and Colorado, and that more than one state’s residents would be affected by the decision.
“Contrary to the defendants’ argument,” the tribes’ motion states, “the interests of Utahns are not dominant in this case, would not be sufficient to overcome the tribes’ choice of forum even if they were, and the national importance of this case weighs heavily against transfer.”
Meanwhile, Utah Rep. John Curtis has introduced to Congress H.R. 4532, the Shash Jaa National Monument and Indian Creek National Monument Act. As Congress indisputably retains the authority to create national monuments, the bill, if passed, would render moot the lawsuits defending Bears Ears National Monument.
“This bill empowers Utah’s local tribes and community leaders to properly manage these areas,” said Representative Curtis in a Jan. 9 press release. “This bill creates real protection for important areas, above and beyond what any president can achieve by creating a national monument using the Antiquities Act.
“This bill provides at least 10 law enforcement personnel at each monument to protect important areas, and creates archaeological resources protection units to ensure the safety of important resources. This bill also has a mineral withdrawal for the original 1.35-million-acre designation under President Obama. This bill is about protecting areas, not opening mining, or oil and gas development. Perhaps most important, this bill creates long-term certainty for my constituents. By using the legislative process this area will be protected for generations to come in law, not subject to change by the stroke of a pen.”
Tribal leaders do not seem to agree. At a Jan. 9 hearing for the bill in the House Natural Resources Committee’s Subcommittee on Federal Lands, tribes and environmentalists gathered in Salt Lake City to protest the bill.
“Chairman Bishop and Congressman Curtis, as well as other supporters of H.R. 4532, continually make misleading and false claims that they are supporting ‘local tribes’ or empowering the voices of ‘local tribes,’” said Tony Small, vice chairman of the Ute Indian Tribe business committee in a press release by the Bears Ears Inter-Tribal Coalition. “The ‘local tribes’ Chairman Bishop and Congressman Curtis are referring to are individual tribal members cherry picked by the congressmen for their support of H.R. 4532, and this bill is an attempt to disrupt and undermine tribal governments by negotiating with individual tribal members.”