Environmental – Page 54

Legal Planet: “Politicians and Commentators Who Criticize Recent National Monuments Are Making Up Their Own Version of History”

May 20, 2017May 20, 2017Matthew L.M. Fletcher

By Sean Hecht (“Go Blue”), here.

An excerpt:

But the idea that large monument designations are new or inappropriate is, much like other current right-wing narratives about the Environmental Protection Agency and other federal agencies, a false story based on false history. Bears Ears contains tens of thousands of culturally and archaeologically significant sites. In this case, as in others, preserving a large area of land is warranted in order to adequately protect unique ecological and cultural resources. Beyond that, the history of the Act’s application, and the history of court decisions interpreting the Act, demonstrate that since the Act’s enactment, Presidents have lawfully designated large monuments to protect landscapes, ecosystems, and natural features as well as culturally important sites.

I haven’t done the math to fact-check the claim by Secretary Zinke that “since the 1900s, when the Act was first used, the average size of national monuments exploded from an average of 422 acres per monument.” The claim is written so ambiguously that it may mean any number of things. But any cursory look at the history of monument designations reveals that this claim, and similar claims by Sen. Hatch and others, are false or extraordinarily misleading.

In fact, the Antiquities Act has been used to protect enormous areas of land since 1908, when President Roosevelt designated the 818,000-acre Grand Canyon National Monument. He also designated the 615,000-acre Mount Olympus National Monument in 1909, and the 60,000-acre Petrified Forest National Monument in 1906, within a few months of the passage of the Act.

***

And from HuffPo: “Why Trump Doesn’t Have The Power To Mess With National Monuments.”

Micro-Response on the Presidential Authority to Terminate or Diminish National Monuments

May 19, 2017Matthew L.M. Fletcher

From one of the authors of the original paper:

It is true that there have been a number of proclamations diminishing monuments in the past but none of these have been challenged in court so no court has ever passed on the legality of these actions. Moreover, all of these actions were pre-FLPMA, which matters significantly here because FLPMA repealed the Midwest Oil decision. A 1935 Solicitor’s Opinion relied heavily on Midwest Oil to justify proclamations that diminished monuments. Post FLPMA, that justification is gone.

Original post here.

House Resources staff response.

The Rehearing En Banc Petition in the Culverts Case Has Been DENIED

May 19, 2017May 19, 2017Ann Tweedy

Here. Dissent to denial of rehearing by Judge O’Scannlain (joined by several other judges).

En banc materials here.

Panel materials here.

House Resources PR Staff Response to “New Scholarship Arguing ‘Presidents Lack the Authority to Abolish or Diminish National Monuments’”

May 18, 2017Matthew L.M. Fletcher2 Comments

Here (original post here):

I was just reading your blog “New Scholarship Arguing, ‘Presidents Lack the Authority to Abolish or Diminish National Monuments.’” Just wanted to send some additional info. Let me know if you have any questions!

Amending Proclamations:

This legal paper asserts that the President has the authority to revoke or reduce national monument designations
This is a great op-ed for more background: Trump Can Reverse Obama’s Last-Minute Land Grab
Presidents – both Republican and Democratic – have significantly reduced the size of monuments. Taft reduced one of his own designations by 95%.
- Taft, Petrified Forest, Arizona, 25,625 acres
- Roosevelt, Grand Canyon II, Arizona, 71,854 acres
- Kennedy, Natural Bridges, Utah, 320 acres
- Taft, Mount Olympus, Washington, 160 acres
- Wilson, Mount Olympus, Washington, 313,280 acres
- Coolidge, Mount Olympus, Washington, 640 acres
- Taft, Navajo, Arizona, 320 acres
- Eisenhower, Colorado, Colorado, 211 acres
- Kennedy, Bandelier, New Mexico, 3,925 acres
- Eisenhower, Hovenweep, Utah/Colorado, 40 acres
- Roosevelt, Craters of the Moon, Idaho, R.O.W.
- Roosevelt, Wupatki, Arizona, 52 acres
- Eisenhower, Glacier Bay, Alaska, 4,193 acres (water)
- Eisenhower, Arches, Utah, 720 acres
- Eisenhower, Great Sand Dunes, Colorado, 9,880 acres
- Roosevelt, White Sands, New Mexico, R.O.W.
- Eisenhower, Black Canyon of the Gunnison, Colorado, 470 acres
- Truman, Santa Rosa Island, Florida, 4,700 acres
As you can see, there’s precedent for both large diminishments (largest is 313,280 acres) and diminishments specifically in the state of Utah (3 total). The courts have generally upheld very broad discretion for the President to determine what is the “smallest area compatible” to manage the Monument – meaning they can also diminish if they believe the area originally created is not the smallest area necessary to protect the resource.

Don’t hesitate to reach out moving forward. (and Go Blue!)

Molly Block

Press Secretary

House Committee on Natural Resources

New Scholarship Arguing, “Presidents Lack the Authority to Abolish or Diminish National Monuments”

May 16, 2017May 16, 2017Matthew L.M. Fletcher2 Comments

Mark Squillace, Eric Biber, Nicholas S. Bryner, and Sean B. Hecht have posted “Presidents Lack the Authority to Abolish or Diminish National Monuments” on SSRN.

Here is the abstract:

By any measure, the Antiquities Act of 1906 has a remarkable legacy. Under the Act, 16 presidents have proclaimed 157 national monuments, protecting a diverse range of historic, archaeological, cultural, and geologic resources. Many of these monuments, including such iconic places as the Grand Canyon, Zion, Olympic, and Acadia, have been expanded and redesignated by Congress as national parks.

While the designation of national monuments is often celebrated, it has on occasion sparked local opposition, and led to calls for a President to abolish or shrink a national monument that was proclaimed by a predecessor. This article examines the Antiquities Act and other statutes, concluding that the President lacks the legal authority to abolish or diminish national monuments. Instead, these powers are reserved to Congress.

Note to Tribes Hoping for a Coal Comeback — Prepare for the Worst

May 16, 2017Matthew L.M. Fletcher1 Comment

There’s a new report on the coal industry Indian country should be reading. It concludes, “President Trump’s efforts to roll back environmental regulations will not materially improve economic conditions in America’s coal communities.”

HT.

Press Release: Blackfeet Nation Ratifies Water Compact

May 15, 2017Sarah M Donnelly

It took 35 years for the Blackfeet Nation to control its own water

Terri Hansen • May 10, 2017

In what the Blackfeet Nation is calling their most important development in a century, a majority of tribal members approved the Blackfeet Water Compact and Blackfeet Water Rights Settlement Act with Montana and the federal government, by a vote of 1,894 to 631.

Harry Barnes, Chairman of the Blackfeet Tribal Business Council, called it a “historic day for the Blackfeet people,” and well worth the time that Blackfeet staff and leaders had put into the effort the past four decades.

“My faith in the wisdom of the people’s vote has come to reality,” he said in a statement.

The history of the struggle between the tribes in Montana, and the State of Montana, over water rights began in the 1970s, when the federal government filed court water rights cases on behalf of all Montana tribes.

Montana filed competing water rights cases in state court. The U.S. and the tribes challenged Montana’s assertion that it had jurisdiction over Indian water rights on the reservation. What ensued was a history of court battles, meetings and negotiations that eventually led to the compact agreed to by Montana and the federal government. The last step was an April 20 vote by the Blackfeet membership.

The compact confirms the Tribe’s water quantity and rights, the Tribe’s jurisdiction and its authority to manage those rights on the reservation. Montana’s legislature ratified it in 2009, Congress approved the bill, and it was signed by President Barack Obama in January 2017.

The compact provides $422 million in federal funding for water-related projects on the reservation. Montana contributed an additional $49 million. The money will become available to the Tribe over a number of years.

“The funding will pay for such projects as installing municipal water systems to all communities on the reservation,” Jerry Lunak, the Blackfeet Water Resources Director told Indian Country Media Network. “We expect upgrades to existing irrigation systems on the reservation, and cost sharing for tribal members and others to upgrade irrigation on tribal and allotted lands.”

The main community on the Blackfeet Reservation is Browning, Montana. It happens to be the eastern entrance to Glacier National Park, with its incredible landscapes, alpine meadows, crystal-clear lakes and the glaciated mountain range—plus hordes of visitors. The park had about three million visitors last year, and although Browning hosts just one of four entrances, this presents opportunity for the Blackfeet Nation.

In a bid to attract those tourists to Blackfeet country, another project is slated to further develop and upgrade several campgrounds on the reservation. The settlement will also provide funding to upgrade their recreational lakes and improve their fisheries.

These projects mean jobs and benefits for tribal members on the rural reservation.

“The benefits of the water compact will be seen for generations to come,” Barnes said.

Zinke’s “Be Nice” Moment is a Highly Gendered Response

May 15, 2017May 15, 2017Matthew L.M. Fletcher1 Comment

Here is “Linguist Robin Lakoff on Women, Men and American Talk — Are women bound by a culture of niceness?”, from Moyers, focusing on Secretary Zinke’s aggressive effort to shut down questions from Cassandra Begay.

Video here: