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The Bears Ears shuffle

Preservation vs. exploitation in southeast Utah, a five-year review
The distinctive Bears Ears can be seen for more than 100 miles in every direction. Different tribes in different languages all have the same name for the rock formations – Bears Ears. (Courtesy of Andrew Gulliford)

Using the Antiquities Act, five years ago this month President Barack Obama declared 1.35 million acres of San Juan County, Utah, a national monument.

Native American tribes and Indigenous peoples around the world expressed gratitude. Utah state and local politicians expressed outrage at what they claimed was “a land grab.”

Welcome to the 21st-century West, where even remote rural landscapes can become hotly contested. A year after Obama’s proclamation, President Donald Trump shrank the new national monument by 85%. Hard-working journalists followed the money to learn why Trump, probably illegally, reduced Bears Ears National Monument. There’s no language in the Antiquities Act that says a subsequent president can reduce a previous president’s national monument, but Trump ignored that. What he did not ignore were the money and pleas of lobbyists, and a company named Energy Fuels.

A small stone granary lies tucked away in one of dozens of canyons coming off Cedar Mesa. President Donald Trump shrank Bears Ears by 85% and eliminated Cedar Mesa within the monument, but President Joe Biden restored the original monument boundaries declared by President Barack Obama. All of Cedar Mesa is now protected. (Courtesy of Andrew Gulliford)

Energy Fuels spent thousands of dollars lobbying to shrink the monument’s size. Stories by both Juliet Eilperin in The Washington Post on Dec. 8, 2017, and Hiroko Tabuchi on Jan. 13, 2018, in The New York Times are revealing. On May 25, 2017, two weeks after Interior Secretary Ryan Zinke visited San Juan County, Energy Fuels CEO Mark Chalmers, who manages the White Mesa Mill near Blanding, Utah, wrote to the Interior Department saying the monument “could affect existing and future mill operations,” and “there are also many other known uranium and vanadium deposits located within the (original boundaries) that could provide valuable energy and mineral resources in the future.” Lobbying records verify that Energy Fuels hired the firm Faegre Baker Daniels and spent $30,000 with them “to work on the matter and other federal policies.”

According to the Post, Energy Fuels “urged the Trump administration to limit the monument to the smallest size needed ... to make it easier to access the radioactive ore.” The Times reported, “Energy Fuels, together with other mining groups, lobbied extensively for a reduction of Bears Ears, preparing maps that marked the areas it wanted removed from the monument and distributing them during a visit to the monument by Mr. Zinke.”

As an historian and a San Juan County, Utah, taxpayer, I decided to follow the money, too.

The presence of the past is palpable in Bears Ears at remote rock art sites where ancient stories are etched on stone. (Courtesy of Andrew Gulliford)

I wanted to know what happened with more than $500,000 that the then San Juan County commissioners spent with a New Orleans law firm. When I submitted a Utah open records act request, I received copies of the law firm’s invoices and the contract with the law firm but no work product, emails, reports or anything else. The contract looked interesting, especially the line that said the firm would submit to the county third-party billings and the county was to pay them immediately. I wondered what that meant, and down the rabbit hole I sped.

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The next few years brought a flurry of denials, refusals, failed mediation, two appearances before the Utah State Records Committee in Salt Lake City and finally a lawsuit in which the San Juan County attorney sued the state of Utah over not releasing records, emails and email responses. For an historian and an occasional journalist, that only whetted my appetite. What did the powers that be not want me to see?

The county attorney claimed lawyer-client privilege and yet my instincts told me that something else was going on. Lobbying is not protected. Taxpayers have the right to know how public money is spent. How and why were the county’s fancy lawyers trying to block the new national monument? Round and round the maypole I went.

In a review of the invoices I obtained, I found unexplained and un-itemized bills for undisclosed services. The invoices were from firms with addresses in Washington, D.C., and Las Vegas. These services cost the residents of San Juan County $132,938.40. A Google search of the names of these companies found that they are security firms that specialize in the Middle East.

The dramatic north-south alignment of Comb Ridge rises from the desert floor with views all the way to Monument Valley. The Comb Ridge unit of Bears Ears was retained by President Donal Trump and was never deleted from Bears Ears National Monument. Camping along the base of the Comb is a favorite pastime for Coloradans. (Courtesy of Andrew Gulliford)

The county spent more than $32,000 with Industrial Security Alliance Partners. The company’s website says they provide “security solutions for critical infrastructure to security and defense markets” and they support “security through the design, implementation and support of thermal surveillance, CCTV and communication systems that enhance military’s capability to defend against and respond to various types of threats from hostile forces and terrorists.” So why would a New Orleans law firm bill the public taxpayers of San Juan County, Utah, for work done by security firms doing business around the world? Were terrorists descending upon Monticello, Blanding, Bluff and Mexican Hat?

Then it clicked. Of course. Secretary of the Interior Zinke was an ex-Navy SEAL. What do ex-Navy SEALs do? They start international security firms. I had the dots but I could not connect them without the emails and work product. I won in court, but then I lost because the Utah Attorney General’s Office argued that because my request to the State Records Committee had been thrown into court, it had to stay there.

To the Hopis pottery sherds represent their ancestors footprints. Sherds can be picked up, photographed and examined, and then should be replaced exactly where they were found. (Courtesy of Andrew Gulliford)

My pro bono lawyers had had enough, so I punted. I kicked the ball to The Salt Lake Tribune, and they scored by getting all 400 of the emails denied me. Zak Podmore wrote a great story in the Tribune titled “‘We will circle all the wagons’: Newly obtained emails show San Juan County’s push to reduce Bears Ears.” So much for transparency and good government.

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Joe Biden was elected president. The Bears Ears shuffle began again. Obama’s boundaries for Bears Ears National Monument were re-instated Oct. 8, 2021, just in time for Indigenous Peoples Day – the former Columbus Day. Biden’s campaign website had proclaimed that “his administration will work with tribal governments and Congress to protect sacred sites and public lands and waters with high conservation and cultural values.” He kept his promise.

Biden’s Proclamation 10285 says: “Few national monuments more clearly meet the Antiquities Act’s criteria for protection than the Bears Ears buttes and surrounding areas.” Biden referred often to Obama’s Proclamation 9558 and reiterated “the compelling need to protect one of the most extraordinary cultural landscapes in the United States.”

A distinctive rock outcropping on Comb Ridge was named Highland Mary by Mormon pioneers who settled San Juan County, Utah. Navajos have a different name for the outcropping based on hunting bighorn sheep atop the Comb. (Courtesy of Andrew Gulliford)

Utah’s largely Mormon political delegation does not agree. They responded in an opinion piece in the Deseret News titled “A monumental insult.” The politicians argued that Biden’s proclamation “perpetuates a cycle of abuse under the Antiquities Act,” and that it happened “once again without local input,” which is false because newly elected county commissions in San Juan County and Grand County, and the town council in Bluff all voted to restore the original Bears Ears boundaries.

The Utah politicians’ real whopper, however, was the statement that Biden’s proclamation “fails to include the crucial input and involvement of local tribes in protecting and highlighting their own cultural heritage.” Not so. Governing bodies of the Navajo, Hopi, Zuni, Ute Mountain Ute and Northern Ute Nations have all gone on record in favor of Bears Ears. Their support has been unwavering.

By the end of October 2021, Utah’s attorney general requested bids for a legal team and senior attorneys with “experience arguing appeals to the United States Supreme Court and United States Circuit Courts of Appeals.” The state of Utah will sue the federal government over Biden’s Bears Ears restoration to avenge a perceived “monumental insult.” I wonder how many dollars will be siphoned off by lobbyists masquerading under lawyer-client privilege.

In their editorial in the Deseret News, Utah’s political delegation referred to San Juan County as “the poorest county of Utah,” yet the authors failed to acknowledge that in the state’s history other national monuments evolved into national parks that have brought millions of dollars annually into rural areas. Mukuntuweap National Monument became Zion National Park. Both Arches and Capitol Reef began as national monuments. Why not let Bears Ears National Monument, with effective Indigenous management, take its own course?

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When will the opposition and legal controversies end? Will it take Congressional action or more years in the courts? Over a century ago, Congress passed, and Theodore Roosevelt signed, the Antiquities Act to protect “objects of historic and scientific interest” using the “smallest area compatible with the proper care and management of the objects to be protected.” That language has already been to the nation’s highest court.

Across Bears Ears National Monument are dramatic examples of defensive architecture and refuge sites on cliff ledges where Ancestral Puebloans sought safety and shelter. (Courtesy of Andrew Gulliford)

When Roosevelt designated the Grand Canyon as a national monument with over 800,000 acres, the Supreme Court in 1920 said, yes, the president has that right and authority. A careful reading of Biden’s 14-page Proclamation 10285 reveals paragraph after paragraph that confirms the entire region is one landscape, one “object to be protected.”

Biden’s proclamation says: “The Bears Ears landscape ... is not just a series of isolated objects, but is, itself, an object of historic and scientific interest requiring protection under the Antiquities Act. Bears Ears is a sacred land of spiritual significance, a historic homeland and a place of belonging for Indigenous people from the Southwest. Bears Ears is a living, breathing landscape that – owing to the area’s arid environment and overall remoteness, as well as the building techniques which its inhabitants employed – retains remarkably and spiritually significant evidence of Indigenous use and habitation since time immemorial.”

Byron Cummings was one of the early founders of archaeology in the American Southwest. This map is from his pioneering study, “The Ancient Inhabitants of the San Juan Valley,” Bulletin of the University of Utah, November 1910. Much of Bears Ears National Monument is included in this map. Note that on the map the Bears Ears are given their Spanish name Orejas del Oso. (Courtesy of Andrew Gulliford)

There is not yet resolution of the vexing political question of the appropriate size for Bears Ears and whether the land should be open for drilling and mining. Once at the edge of the Ancestral Puebloan world a thousand years ago, Bears Ears is now at the center of a public lands debate, but momentum for preservation only builds. As the landscape sits patiently waiting, we continue to dance the Bears Ears shuffle.

Andrew Gulliford, an award-winning author and editor, is a professor of history at Fort Lewis College. In spring 2022, the University of Utah Press will publish his book “Bears Ears: Landscape of Refuge and Resistance.“ Reach him at andy@agulliford.com.

The presence of the past is palpable in Bears Ears at remote rock art sites where ancient stories are etched on stone. (Courtesy of Andrew Gulliford)
From the top of Cedar Mesa, stone fingers of canyons stretch to the east. Most canyons contain Ancestral Puebloan sites now protected within Bears Ears National Monument. (Courtesy of Andrew Gulliford)
Because of increased visitation to Bears Ears, the Bureau of Land Management has stabilized several sites and restricted access to them such as at Monarch Cave. Visitors can now photograph the centuries-old walls but not enter them. (Courtesy of Andrew Gulliford)
Tourists find potsherds and pieces of chert and put them on display on what is called a museum rock. This practice should be discouraged because visitors see the abundance of artifacts and pocket a few of them which is illegal. Anything on a museum rock should be lightly scattered. (Courtesy of Andrew Gulliford)
The architecture of cliff dwellings varies across Bears Ears National Monument from intricate stone walls built by Chacoan refugees to Mesa Verdean habitation sites and kivas, to wattle and daub structures like this one built by the Kayenta Anasazi. Multiple Native peoples speaking diverse languages moved in and out of the Bears Ears area over millennia. (Courtesy of Andrew Gulliford)