Monuments

Note: this post has been updated to reflect corrections on the mineral leasing vs. locatable question supplied by a member of the TSW community.

Having read through the Proclamation, my impressions were that 1) there’s a lot of human roads, powerlines, and other human development within the Monument, 2) not much is going to change except for some things about new minerals*, and 3) there’s a lot more planning and advisory groups and and public involvement. Which will keep agency folks likely tied up from doing the fuels and prescribed burning funded by Congress and managing recreation pressure. With reduced numbers of people and difficulty hiring- on the other hand, I didn’t see a required plan timeline (maybe I missed it). And it often takes two years to get all the FACA paperwork done, which would potentially take us past the beginning of the next Admin. It might have been simpler to say “hey FS and BLM, you’re doing a swell job at protecting things, we’re just going to order no new mineral leasing..”. But perhaps there’s no legal way to do that kind of surgical intervention focused on what appears to be the real target.

*update-“Uranium is not a leasable mineral under the Mineral Leasing Act. It is locatable under the Mining Law of 1872. So DOI is closing off the land to entry under the Mining Law to stop uranium development. Those holding mining claims will likely be required to go through a validity determination to determine if they have a commercially viable mine under the tests established by that process. It’s possible that the withdrawal from all forms of entry under public land law could prohibit wind and solar facilities that are permitted under FLPMA title V ROW. They are only allowed to use public land for wind and solar if they obtain a ROW permit under FLPMA the public land law statute. All the existing infrastructure is a FLPMA Valid Existing Right and protected by Fifth Amendment, FLPMA and terms of proclamation.”

“History: 1. Clinton designated a number of BLM monuments at the end and when Bush administration arrived they were left with the planning that does go through NEPA.
2. Obama’s 20 year withdrawal of this same area was challenged by NMA (National Mining Association) unsuccessfully in AZ and Ninth Circuit. NMA v. Zinke [Salazar] (2017) arguing the Secretary lacked withdrawal authority among other reasons. The litigation started in 2011 over the NEPA prepared for the withdrawal by Salazar.”

And going back to the previous post, remember that to the GAP 1 and 2 types, the whole Monument is now more Protected (roads and all) than a Forest Service Roadless Area, or even than it was two weeks ago.

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Interesting story by Bobby Magill in Bloomberg Law..

The monument will help the US atone for forcibly removing tribes from parts of the Grand Canyon when Congress declared it a national park more than a century ago, a senior White House official said, speaking to reporters Monday on condition of anonymity.

Hmm.. helping “atone”.  Why not just give the Park back to the Tribes directly?

Anyway..

The monument will help address past injustices and protect lands that many tribes refer to as their ancestral home, the official said. The land around the Grand Canyon shouldn’t be open to new mining claims, the official said. Mining companies are interested in the area to help boost a domestic uranium industry they see as key to bolstering emissions-free nuclear energy. Environmental and tribal groups worry uranium mining will contaminate water flowing through tribal land and harm the Grand Canyon.

But the monument isn’t expected to block Energy Fuels Inc. from mining for uranium at its existing Pinyon Plain Mine, which will be within the monument about 13 miles south of the Grand Canyon.
Some Mining Continues
The company’s rights to uranium and high-grade copper deposits at Pinyon Plain have been affirmed by federal courts, Energy Fuels Vice President Curtis Moore said. Even with the monument designation, the company is preparing for production to begin sometime within the next two years, he said. The company has other uranium prospects in the area, and if the monument threatens any valid existing rights to those minerals, “we’d probably have to pursue a takings challenge,” Moore said.

“It just doesn’t seem like great policy to be locking up our best uranium deposits,” Moore said, calling them “carbon killers” because they provide fuel for nuclear power plants. All valid existing rights to minerals within the monument, including uranium, will be preserved, White House officials said. The monument affects only future mining claims.

Back to the Declaration:

 All Federal lands and interests in lands within the boundaries of the monument are hereby appropriated and withdrawn from all forms of entry, location, selection, sale, or other disposition under the public land laws or laws applicable to the Forest Service, other than by exchange that furthers the protective purposes of the monument; from location, entry, and patent under the mining laws; and from disposition under all laws relating to mineral and geothermal leasing.

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Public Involvement, some Service-Firstiness and Joint Planning

The Secretaries shall provide for maximum public involvement in the development of the management plan, as well as consultation with federally recognized Tribal Nations and conferral with State and local governments.  In preparing the management plan, the Secretaries shal1 take into account, to the maximum extent practicable, maintaining the undeveloped character of the lands within the monument; minimizing impacts from surface-disturbing activities; providing appropriate access for livestock grazing, recreation, hunting, fishing, dispersed camping, wildlife management, and scientific research; and emphasizing the retention of natural quiet, dark night skies and scenic attributes of the landscape.  In the development and implementation of the management plan, the Secretaries shall maximize opportunities, pursuant to applicable legal authorities, for shared resources, operational efficiency, and cooperation, and shall, to the maximum extent practicable, carefully incorporate the Indigenous Knowledge or special expertise offered by Tribal Nations and work with Tribal Nations to appropriately protect that knowledge.

I wonder if they need alternatives and an EIS ? “The Important People made all the Important Decisions without involving you, but you folks directly impacted are allowed to color within the lines we’ve drawn” -kind of demoralizing, I would think.

Tribal Nation Co-Stewardship

Lots of Secretaries’ “exploring” this and that language. again it sounds like standard policy under the 2021 Joint Secretarial Order number 3403. But maybe there are differences, perhaps knowledgeable people can point them out?

 The Secretaries shall explore opportunities for Tribal Nations to participate in co-stewardship of the monument; explore entering into cooperative agreements or, pursuant to the Indian Self-Determination and Education Assistance Act, 25 U.S.C. 5301 et seq., contracts with Tribes or Tribal organizations to perform administrative or management functions within the monument; and explore providing technical and financial assistance to improve the capacity of Tribal Nations to develop, enter into, and carry out activities under such cooperative agreements or contracts.  The Secretaries shall further explore opportunities for funding agreements with Tribal Nations relating to the management and protection of traditional cultural properties and other culturally significant programming associated with the monument.

The Secretaries shall consider appropriate mechanisms to provide for temporary closures to the general public of specific portions of the monument to protect the privacy of cultural, religious, and gathering activities of members of Tribal Nations.

There’s a Tribal Commission to give input on the plan and management of the Monument.  There’s also a FACA Committee with a RAC-like list of the usual suspects.

 The advisory committee shall consist of a fair and balanced representation of interested stakeholders, including the Arizona Game and Fish Department; other State agencies and local governments; Tribal Nations; recreational users; conservation organizations; wildlife, hunting, and fishing organizations; the scientific community; the ranching community; business owners; and the general public in the region.

The Monument Already Has Lots of Human Structures  and Those Things Can Be Expanded and  New Ones Built

Nothing in this proclamation shall be construed to preclude the renewal or assignment of, or interfere with the operation, maintenance, replacement, modification, upgrade, or access to, existing or previously approved flood control, utility, pipeline, and telecommunications sites or facilities; roads or highway corridors; seismic monitoring facilities; wildlife management structures; or water infrastructure, including wildlife water developments or water district facilities, within the boundaries of existing or previously approved authorizations within the monument. Existing or previously approved flood control, utility, pipeline, telecommunications, and seismic monitoring facilities; roads or highway corridors; wildlife management structures; and water infrastructure, including wildlife water developments or water district facilities, may be expanded, and new facilities of such kind may be constructed, to the extent consistent with the proper care and management of the objects identified above and subject to the Secretaries’ authorities, other applicable law, and the provisions of this proclamation related to roads and trails.

Transportation Planning

For purposes of protecting and restoring the objects identified above, the Secretaries shall prepare a transportation plan that designates the roads and trails on which motorized and non-motorized mechanized vehicle use, including mountain biking, will be allowed.  The transportation plan shall include management decisions, including road closures and travel restrictions consistent with applicable law, necessary to protect the objects identified in this proclamation.  Except for emergency purposes, authorized administrative purposes, wildlife management conducted by the Arizona Game and Fish Department, and the retrieval of legally harvested elk and bison, which are otherwise consistent with applicable law, motorized vehicle use in the monument may be permitted only on roads and trails documented as existing in BLM and Forest Service route inventories that exist as of the date of this proclamation.  Any additional roads or trails designated for motorized vehicle use must be designated only for public safety needs or the protection of the objects identified above.

It’s not clear to me if temp roads for fuel treatments would be OK..”public safety” “protection of species (species being an object identified above)?” But those wouldn’t be system roads so.. and here’s more on veg management:

The Secretaries may carry out vegetative management treatments within the monument to the extent consistent with the proper care and management of the objects identified above, with a focus on addressing ecological restoration; wildlife connectivity; or the risk of wildfire, insect infestation, invasive species, or disease that would endanger the objects identified in this proclamation or imperil public safety.  Nothing in this proclamation shall be construed to alter the authority of any party with respect to the use of prescribed fire within the monument.

Grazing and Fire Suppression

Nothing in this proclamation shall be deemed to prohibit grazing pursuant to existing leases or permits within the monument, or the renewal or assignment of such leases or permits, which the BLM and Forest Service shall continue to manage pursuant to their respective laws, regulations, and policies.

Nothing in this proclamation shall be construed to alter the authority or responsibility of any party with respect to emergency response activities within the monument, including wildland fire response.

Military Uses and Fish and Wildlife

 Nothing in this proclamation shall preclude low-level overflights of military aircraft, flight testing or evaluation, the designation of new units of special use airspace, the use or establishment of military flight training routes, or low-level overflights and landings for wildlife management conducted by the Arizona Game and Fish Department over the lands reserved by this proclamation.  Nothing in this proclamation shall preclude air or ground access to existing or new electronic tracking communications sites associated with special use airspace and military training routes.

Nothing in this proclamation shall be deemed to enlarge or diminish the jurisdiction or authority of the State of Arizona with respect to fish and wildlife management, including hunting and fishing, on the lands reserved by this proclamation, or to affect the State’s access to the monument for wildlife management, including access prior to and during the development of the management and transportation plans provided for above.  The Secretaries shall seek to develop and implement science-based habitat and ecological restoration projects within the monument and shall seek to collaborate with the State of Arizona on wildlife management within the monument, including through the development of new, or the continuation of existing, memoranda of understanding with the Arizona Game and Fish Department.

 

As for me, to know that with a flick of a pen the President can undo the painful and laborious work of RMPs and Forest Plans, it would not encourage me to spend volunteer hours working on them.  For employees, it reminds me of my old expression about planning.. “the pay’s the same” and “if you’re not the lead mule, the scenery never changes.” But maybe that’s just me.

The WaPo has an interesting story on the  Baaj Nwaavjo I’tah Kukveni Grand Canyon National Monument (proposed with so far unknown boundaries).

Federal officials have started telling tribal and environmental groups to be available for a potential Grand Canyon announcement early next week, which would fall during Biden’s travel, said four of the people, all of whom spoke on the condition of anonymity to discuss an announcement not yet public.

Who needs those pesky old maps.. or talking to people in the area in some kind of public process?

“No decisions have been made,” White House spokesman Abdullah Hasan said in an email. “But I can tell you that President Biden has conserved more land and water in his first year than any president since JFK, and his climate protection record is unmatched.”

There’s an interesting LA Times article on the San Gabriel National Monument.  It’s easy for a Prez to designate something.. it’s easy to to claim that it’s now under “permanent protection”.. not so easy to have enough money to manage visitors..

Nine years after President Obama upgraded the region to monument status — an act intended to foster a cleaner and safer wilderness — park officials and volunteers have been struggling to cope with the consequences of surging visitation, particularly in summertime.

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But how exactly would making a Monument itself make something cleaner and safer?  And it’s not a Wilderness (granted I don’t exactly know what the reporter meant by wilderness). Maybe the Angeles needed more funding, not a Monument designation. I wonder how often this kind of “magically more money” thinking is involved in Monumentizing.

Refuse has been a health concern in the area since 2000, when the California Regional Water Quality Control Board ordered the Forest Service to reduce trash levels in the East Fork to zero within three years.

In response, rangers and volunteers were stationed at popular picnic sites to direct visitors to roadside trash bins and provide them with information about environmental issues and litter laws. They also posted “No Littering” signs printed in English and Spanish.

That strategy was abandoned a few years later because of budget cuts.

Now, there is renewed talk of devising strategies to limit visitors and instruct them on how to be better stewards of the environment.

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The flood of ill-behaved tourists isn’t the only reason for the area’s problems. Implementation of a management plan for the East Fork, finalized in 2019, was stalled by COVID-19 and a lawsuit.

“We desperately need an East Fork stewardship plan that is adequately funded and staffed,” said Isaac Brown, a senior scientist at Stillwater Sciences, a consulting firm specializing in restoring rivers and floodplains.

The Forest Service has long complained of high turnover rates in management, chronic budget cuts, and being unable to pay wages high enough to attract sufficient numbers of “forestry technicians” to remove all the trash that accumulates each day along the East Fork. Pay for such positions in Angeles National Forest start at about $43,600 a year, officials said.

Most of the Forest Service’s budget is set aside for wildfire protection, as well as repairing campgrounds, roads and infrastructure damaged by torrential rains earlier this year, officials said.

Some critics see a connection between chronic overcrowding and the promotional efforts of large nonprofits that seek to increase access to the monument. Critics say the organizations have failed to take into account the toll on wildlife and habitat.

Piles of trash have not only blighted the landscape in San Gabriel Mountains National Monument, they have also raised contamination concerns for one of the region’s largest watersheds.

(Allen J. Schaben / Los Angeles Times)

Belen Bernal, executive director of Nature for All, a coalition of environmental and community groups that has long campaigned for more parks and safe outdoor opportunities in one of the largest metropolitan areas in the United States, agrees — up to a point.

“It’s true that we are looking at increased access,” Bernal said. “But during the summer months it’s a whole different ball game. This is a management issue.

“We’re not entirely happy about the situation in the monument. Just a year away from its 10th anniversary, it still doesn’t have enough restrooms, dumpsters or even a visitor center.”

President Biden said in his inauguration speech:

History, faith, and reason show the way, the way of unity.

We can see each other not as adversaries but as neighbors.

We can treat each other with dignity and respect.

We can join forces, stop the shouting, and lower the temperature.

For without unity, there is no peace, only bitterness and fury.

No progress, only exhausting outrage.

No nation, only a state of chaos.

This is our historic moment of crisis and challenge, and unity is the path forward.

OF course, the more cynical among us will say “beautiful words but the President has no choice but to hire people he owes- political operatives- to carry out his policies, and they have made no such pledge.” In fact, I’m not sure that those operatives have the skills or patience that even the humblest member of a humble forest collaborative might have.

Still, folks are always talking about “holding people accountable” and I don’t see anyone else attempting to hold the Biden Admin accountable, except possibly R’s- but it’s hard for me to see any truths through the murk of partisan mud-slinging. So I think I’ll rate Biden Admin efforts on a 10 point scale, where 10 is unifying and 0 is pointedly not “lowering the temperature..” that being what I have previously called “a sharp stick in the eye.”

I would give the Bears Ears decision a zero. Here’s what I would have done instead.

First of all I’d make an announcement.

This back and forth over Monuments has gone on too long. We need to establish a solution that takes into account the views of all parties and that all parties can live with over the long-term, that will stand the test of time. These decisions should not be made by strokes of the pen in DC nor by the federal courts, but by the people- including all the people who are affected. That’s the only way we can understand and incorporate social and environmental concerns as well as justice and equity, in an open and transparent way. My goal is to provide support for a long-term solution, considering all previous efforts, and building on the agreements that we already have. These lands are important to all of us, and deserve the best we can give them through formal and public deliberation on an array of ideas and approaches. I want the success of my Administration to be measured by the relationships we have improved, and the trust we have built, as well as the end-product of an agreement. I want to honor the role of peacemaking inside our country as we honor it in the international realm.

Process-wise, I’d try to take down the temperature and deal with on-the ground questions with a wide range of alternative and collaborative approaches:

* Sit down with political leaders in Utah, all Tribes, as well as other stakeholders, and design a collaborative process with the help of professional environmental conflict resolution folks. The FS does this for humble regulations, so why not a massive land use decision?

*As part of that, starting from a ground based process.. what do you want to protect the area from? Mining, oil and gas, OHV’s, vandalism?

*Have an opportunity for public comment on specific issues.

*Intentionally find people to serve that both “sides” respect as well as folks from both “sides”, including Tribes who hold different views. Have them analyze the current protections. Which ones are working well and which ones aren’t working? Where and why? Does the solution (say, to vandalism or illegal ATVs) require something that drawing lines on maps won’t provide? If so, what are mechanisms to make that happen?

* The BLM and the FS have a variety of other land designations of various protections. What are the advantages of a Monument over other designations? Is it marketing tourism or something more concrete?

* Have Tribes look at different options of “advisory committees” and “co-management” and design a process for being involved, what kind of decisions, what level, what kind of authority?

Overall, the point would be to take the issue from a partisan political football to an atmosphere of place-based joint problem-solving, which… we have a long history of doing. Colorado and Idaho Roadless were examples of such processes. They took the symbology of Roadless Protection and crunched through the details- specific concerns in specific places- with people who are affected. And at the end, even with partisan politics and litigation in various forms, did deals that everyone can live with.

For those interested, Stacy Young wrote an interesting article in the Canyon Country Zephyr on the legalities and some legal history.

I tend to think of the Antiquities Act as perhaps a red herring. The legal case seems to follow from the idea that “having a Monument is the Right Thing” and using this tool we can override other views. Pragmatically, though we all could save ourselves a lot of legal and communication work and vast amounts of NGO money (and spend it on law enforcement around Bears Ears instead?) by the Administration instead simply saying.. “we believe we can work through this together in an atmosphere of mutual respect. That is our passion and our promise.”

We can join forces, stop the shouting, and lower the temperature.

For without unity, there is no peace, only bitterness and fury.

No progress, only exhausting outrage.

No nation, only a state of chaos.

This is our historic moment of crisis and challenge, and unity is the path forward.

Those are powerful words, Mr. President and if you need help translating them into action (in our humble area of federal lands and forests), I and others are right here.