Why Obama shouldn’t unilaterally declare a Bears Ears monument

December 13, 2016

President Obama and I haven’t always seen eye to eye on public policy. But what many don’t know is that we’ve also agreed, and worked together, on several issues — including ending the warrantless surveillance of Americans and forging a compromise bill to reform unfair federal sentencing laws.

We also share a concern for our nation’s founding document and the health of the institutions it created. For instance, the president and I both prefer that major policy changes be made, as the Constitution requires, through the legislative process by which Congress writes and passes legislation and the president either vetoes or signs it.

As Obama told New York Magazine before the election, “If there’s one wish that I have for future presidents, it’s not an imperial presidency, it is a functional, sensible majority-and-opposition being able to make decisions based on facts and policy and compromise. That would have been my preference for the majority of my presidency. It was an option that wasn’t always available. But I hope the American people continue to understand that that’s how the system should work.”

I share this hope.

The framers of the Constitution made Congress the most powerful branch of the federal government, giving it the exclusive authority to make and change federal laws, because they knew it would be the most accountable to the people. They believed that a consent-based government such as ours would cease to function if Americans came to see it as illegitimate, so they put Congress in charge of federal lawmaking and then they put the people in charge of Congress.

That is why it would be a mistake for the president to listen to those urging him to unilaterally declare a Bears Ears National Monument in southeast Utah. Any such declaration would short-circuit an ongoing healthy debate, further sow distrust in government among the American public and push us another step closer to an imperial presidency.

There is so much common ground when it comes to protecting the million-plus acres of public lands in southeast Utah. Above all, everyone involved wants to ensure that the vast stretch of land in the Bears Ears region, which contains tens of thousands of Native American cultural sites and some of the most beautiful scenery in the world, is preserved for future generations.

But there are also some honest disagreements about how exactly the land should be protected. Most Native Americans who live around Bears Ears and use the land on a daily basis fear that a monument designation will strictly limit their access to it. Other Utahns in the region worry that they will no longer be able to use the land for grazing and mineral development, which is exactly what happened after President Bill Clinton unilaterally designated the Grand Staircase-Escalante a national monument in 1996. Even advocates for a national monument worry that current law does not provide tribes with a meaningful role in management of a monument.

Supporters of a monument designation cite the 1906 Antiquities Act, but that law was specifically written to protect archaeological sites from looting and vandalism. That is why the act requires designated monuments to be “confined to the smallest area compatible with the proper care and a management of the objects to be protected.” The Obama administration has used the law to set aside 548 million acres of land and water, more than double any other administration. The act was never intended to give a president the unilateral power to dictate land-use management wherever he saw fit.

The administration recently blocked the Dakota Access Pipeline due to strong opposition from local residents. I urge it to give the same respect to the residents of San Juan County, Utah. They do not want this monument. They do not want outside interests from coastal urban areas dictating to them how to live their lives and manage their lands.

This does not have to be a divisive issue. The House recently moved a bill through the Natural Resources Committee that could better protect these lands. The existing legislation is not perfect, but if it is allowed to work its way through the legislative process, subject to amendments in both the House and the Senate, it can produce a consensual outcome.

We can settle this issue through democracy and compromise — unless Obama decides to cut short this debate by declaring a national monument via executive fiat. Undoubtedly, such an action would make many Democrats and special-interest groups happy. But at what cost? As one of his final acts as president, is Obama willing to take our great nation one step closer to the imperial presidency that he, most Americans and I rightly fear?

Op-ed Originally Published in the Washington Post