Caught in an Eddy: Zinke and the Future of Our Public Lands

By Randy Bishop

 In the Grand Canyon, Arizona has a natural wonder which is in kind absolutely unparalleled throughout the rest of the world. I want to ask you to keep this great wonder of nature as it now is. I hope you will not have a building of any kind, not a summer cottage, a hotel or anything else, to mar the wonderful grandeur, the sublimity, the great loneliness and beauty of the canyon. Leave it as it is. You cannot improve on it. The ages have been at work on it, and man can only mar it.

These are the words President Theodore Roosevelt used on January 11, 1908, as he exercised his executive power to protect 800,000 acres of Grand Canyon as a national monument.  Now a national park, Grand Canyon remains essentially the same great wonder of nature that it was in 1908, without “a building of any kind .  .  . to mar the wonderful grandeur, the sublimity, the great loneliness and beauty of the canyon.”

I first laid eyes on Grand Canyon and the Colorado River thirty-seven years ago. Inexperienced and mostly terrified, we ran the rapids, floated the slow pools, camped on beaches nestled in the canyon walls, and hiked the trails to waterfalls, emerald green pools, and thousand year old Anasazi ruins.

By Colorado River-running standards, our private trip was a quick one—twelve days, 227 miles, an average of roughly twenty river miles per day.  It was July and the days were hot.  We slept on the sandy beaches using only a bed sheet for cover and our life jackets as our pillow.  It was the adventure of a lifetime and it changed me in ways I am still striving to understand.

The lure of the Canyon proved irresistible and I returned on private trips in 1986, 1997, and 1999, each time using the maximum allowable time under a private permit, eighteen days.  The river and the Canyon were both familiar, and different, but the changes were brought about by nature, not because it was marred by humankind.

During this time-frame, similar wilderness/river-running opportunities took me to the Main Salmon River in the Salmon-Challis National Forest, the Middle Fork of the Salmon River in the Frank Church River of No Return Wilderness Area, the Selway River in the Selway-Bitterroot Wilderness and the Bitterroot National Forest, Hells Canyon of the Snake River in the Payette and Wallowa-Whitman National Forests in Idaho and Oregon, the Yampa and Green Rivers in Dinosaur National Monument in Utah, and the Umpqua River in the Umpqua National Forest in Oregon.  My appreciation of wilderness, solitude, friendship, laughter, and of life itself deepened with every adventure.

Each of these experiences was possible only because of the wisdom and courage of those who, acting in the tradition of Theodore Roosevelt, created and then preserved our national monuments, national forests, and national parks—our public lands.

At this time, the Department of Interior manages 400 national parks, 154 national forests, 560 national wildlife refuges, and nearly 250 million acres of other public lands.  Each year more than 47 million people enrich their lives in the same manner as I have, by visiting our public lands.

This month, Secretary of the Interior Ryan Zinke commences a review of more than two dozen national monuments to determine whether they should be removed from the map of our public lands.  During the confirmation process, Secretary Zinke made clear his desire to emulate President Theodore Roosevelt.  I am doubtful that Secretary Zinke is genuinely possessed of either President Roosevelt’s commitment to the creation and preservation of public lands or any similar readiness to vigorously fight against the corporate interests bent upon exploiting public lands for commercial gain.  I hope I am wrong about this.

Time will tell.

 

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Codifying Free, Prior and Informed Consent: Comparative Country Approaches in South America

By Kirsa Shelkey 

This past semester, I had the wonderful opportunity to attend the Rocky Mountain Mineral Foundation’s Conference on International Mining and Oil & Gas Law, Development, and Investment in Quito, Ecuador. The course ran three days, from April 26-28, 2017. The third day focused heavily on the environment, sustainability, and indigenous rights. I was pleasantly surprised that a Mining and Oil & Gas Conference would dedicate so much time to these topics, and particularly to consultation with indigenous communities.

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 After following Standing Rock and reading many Indian and environmental cases claiming National Environmental Policy Act (NEPA) violations this semester, it was refreshing to view consultation beyond its codification in the United States. A panel, consisting of legal counsel from Colombia, Peru, Paraguay, Bolivia, and Chile discussed and compared how their respective countries both codified and implemented consultation in relation to domestic mining and oil & gas projects.

ILO 169

In 1989, the International Labor Organization (ILO) adopted the Indigenous and Tribal People’s Convention (ILO 169). ILO 169 entered into force on September 5, 1991, and is currently ratified by 22 countries around the world, predominantly in South America. ILO 169 legally binds countries which are signatory. (The United States and Canada are not signatories.)

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Free, Prior, and Informed Consent

Free, prior, and informed consent (FPIC) is arguably the most important principle to come out of ILO 169. Article 15 and 16 state that indigenous peoples have the right “to participate in the use, management and conservation of these resources.” Before any exploration or exploitation of sub-surface mineral rights can begin, indigenous peoples are entitled to consultation where extraction impacts indigenous land. Finally, indigenous peoples cannot be removed from their ancestral lands without their free, prior and informed consent.

While ILO 169 required most South American countries to codify indigenous rights to FPIC and consultation into domestic law, corruption and implementation hinder whether consultation can domestically be considered meaningful. The Conference panelists comparatively analyzed how codification of FPIC resulted in various forms of consultation across South American, with implications for indigenous peoples and mineral extraction investors. The countries implemented ILO 169 and FPIC differently, because they do not uniformly agree as to (1) who needs to be consulted, (2) what right is protected, (3) what triggers consultation, and (3) when consultation is complete.
Who needs to be consulted? Who qualifies as indigenous?
In Article 1, ILO 169 defines the communities it applies to, including tribal peoples in independent countries whose social, cultural and economic conditions distinguish them from other sections of the national community, and whose status is regulated wholly or partially by their own customs or traditions or by special laws or regulations; and peoples in independent countries who are regarded as indigenous on account of their descent from the populations which inhabited the country, or a geographical region to which the country belongs, at the time of conquest or colonization or the establishment of present state boundaries and who, irrespective of their legal status, retain some or all of their own social, economic, cultural and political institutions.

Whether or not a group self-identifies as indigenous is strongly taken into account. The definition of indigenous in most South American countries hinges on whether the community is pre-founder (the Spanish) descendant. This definition does not include the Quechua or Aymara. Colombia, however, includes “ethically differentiated communities” within its scope, in recognition of its rich multiculturalism. Therefore, distinct African communities brought to Colombia by the Spanish are included and must be consulted.       

What right is protected?

As countries party to ILO 169, Chile, Argentina, and Paraguay, constitutionally recognize indigenous peoples’ right to consultation, but lack laws regulating consultation procedure. In Chile, indigenous peoples must show bad faith before they can successfully claim they were denied their right to consultation. This has proven a very high burden. Colombia, Ecuador, and Peru, to some extent, recognize that consultation is a procedural right, and have codified the process. Colombia’s process, for example, requires certification whether indigenous peoples do not inhabit extraction areas, coordination, pre-consultation, including co-establishment of an appropriate methodology for consultation, and documented consultation. While Peru’s consultation process is regulated, the panelist pointed out that corruption dramatically affects the process in Peru.

What triggers consultation? When does consultation occur?
            The countries represented by the panelists vary widely as to when consultation is triggered. In both Paraguay and Peru, for example, consultation is not triggered until after environmental review and the EIA are complete. Consultation is required when an administrative measure directly affects indigenous communities. In Paraguay and Peru communities are not directly affected until construction or mining operations actually begin, so consultation is triggered very late in the process. The Peruvian panelist pointed out that late consultation negatively impacts both indigenous communities and extraction companies. On the one hand, investment and corruption might compel approval of a project that late in the game; the decision to move forward has already been made. On the other, where consultation alters the original exploration plan, a new EIA or other changes financially impact investors and create an insecure business climate. In contrast, Colombia’s consultation occurs before both environmental review and licensing.
When is consultation complete? What does successful consultation look like?
In no South American country does ILO 169 convey a domestically codified indigenous veto right to mineral extraction affecting indigenous lands. However, recent case law in Colombia suggests that FPIC and consultation are closer to a veto power than previously thought. Colombia requires indigenous communities to understand the link between the project and how the project will impact them. Colombia essentially requires indigenous communities to give social license to resource extraction projects affecting their lands. This gray area (social license, but not a veto right) adds instability to mineral and oil & gas investment in the country, and as the Chilean panelist pointed out, reduces Colombia’s competitiveness in the sector. The Colombian panelist responded that, while he agreed, Colombia was setting a standard, making consultation more meaningful, and perhaps considering a shift to renewables. 
In Peru, Chile, Argentina, and Paraguay, while consultation is aimed at achieving agreement, the State can move forward with a project without indigenous consent, similar to the United States’ approach under NEPA. Chile only requires that bad faith occurred in communications with indigenous communities. 
All of the panelists further expressed that a gap exists between law and procedure and what happens in practice in their respective countries. While FPIC is codified across most of South America, it seems there is still an uphill battle for indigenous peoples in terms of meaningful consultation and indigenous land rights. However, some countries are doing better than others. Colombia and Ecuador seem to be taking a more proactive role in protecting indigenous rights to the FPIC and consultation envisioned by the ILO.
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Beach Biking

By Maresa Jenson

What should we do this weekend? My friends have a varied set of recreational interests, and are addicted to being outdoors. Perhaps hiking, biking, climbing, pack rafting, skiing, berry picking, or fishing? The discussion of Alaskan weekend plans was unpresumptuous, and always exciting.

This weekend what we were doing was something I had never considered, a fat bike trip on the beach. My friend Diana had biked the route before, and Kasilof to Homer was perfect for the long Fourth of July weekend. It was my first fat bike experience. Previously I had only quizzically watched intrepid winter riders precariously commuting, their large studded tires clinging to icy roadways.

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The intermittent rain this weekend provided cool conditions. We spent three days laughing—riding over loose and firm sand, navigating rocks, fording streams, considering the tides, and asking “will this work?” before taking off over two-foot-high seaweed, crackling under the bike tires. We went over and under obstacles, fishing net lines were set up continuously along the coast. There were beach bonfires, waterfalls, and bald eagles overhead. Clouds hovered, clinging to the volcanos across the Cook Inlet.

This was only a single weekend, one experience, a moment in time. Yet, whenever I interact with nature in a different way, I am reminded of the importance of public lands, and continue to develop my sense of place. It’s moments of snacking on cheese and crackers, truly taking the time to get to know yourself and others, appreciating scenery, and amazing places. Public lands allow us to have wild places, experience and preserve our country’s amazing landscapes, go camping, ski deep powder, and even bike on the beach. While law school does not lend itself to leading a balanced life, I remember why I am here. I believe in the importance of public lands. We need these wild places, not only for the health of our planet, but to ground our humanity.

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Mountain Dew by Jake Schwaller

Here’s the prompt: “what do public lands mean to you?”

Here’s the reply:

Someone’s got to say it. Sometimes a venture out into our public lands leads to a whole lot of misery. There are ticks, mosquitos, mountain lions, and bears out there. Oh my. Things go bump in the night, and when you are a twelve-year old and Dad decides to leave you in a tent while he hikes to a different lake to fish, and suddenly it gets dark outside, the situation can become all-out, flashlight-bearspray-pocketknife wielding panic.

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Playing harmonica to ward off bears in the tall grass shortly before the 10-foot bruin stood up. Photo by David Nicol.

And then you get older, and it doesn’t get better. You may find yourself miles from camp, midway up a nameless peak, with Jack Frost doing his best to steal your nose, fingers, and toes. Or you can be walking through a high-grass trail in rainy Katmai National Park, and suddenly a ten-foot tall brown bear stands up 15 yards away from you, eliciting a most unwelcome bowel movement on your part (okay, so I am making up the bowel movement, but you get the idea).

It can be worse in yet another way: sometimes it can be flat out boring. The fishing can die in the middle of the day, the salty snacks can all run out, and you may find yourself half-mindedly poking a flickering fire with a stick, miles and miles and miles away from a flickering screen filling your brain with infotainment.

It makes you contemplate that existentialist question: “what am I doing here?” But the question is stripped of any broad metaphysical interpretation. It isn’t a contemplation of existence or your place in the universe. Instead, you are simply asking what are you doing here—because right now, standing under a ponderosa pine and getting sap in your hair during this midsummer, midafternoon hailstorm is a pretty miserable experience.

Take, for example, an ill-fated hunting trip I went on over ten years ago. My dad had pulled me out of school for a week to go elk hunting. After a night feasting around a fire, one of our friends just had to go and shoot a cow elk far in the backcountry. The previous night’s feast had gone horribly awry with the introduction of someone’s seafood salad, and most us were suffering from a bout of food poisoning that next day. I had abstained from that dish, and was therefore the most capable of running errands up and down the ridge. I hiked a few miles and a few thousand feet up and down from camp to the kill site three times that day. My father was not as lucky with the seafood, and while sick helped clean the downed elk, tucked deep in a finger gulch below the ridge. It was cold, and the afternoon eventually turned into night. It was a rare year where we had friends with horses to help, but they did not arrive until two in the morning. Until then we had to wait. We sat there hungry, shivering, and exhausted. All I could think of was how much I wanted a Mountain Dew.

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A moment of beauty. Photo by author. 

Eventually the horses arrived. We strapped the elk over the backs of the horses, and our friends proceeded to lead them up the steep slope. We were at 9,000 feet of elevation, far from any light pollution with temperatures in the teens. The stars looked like pinheads of light that I could reach out and pluck from the sky. The horses—with the men leading them—were silhouetted against this background of stars, with the big dipper behind them. The slope was steep and rocky, and the horses’ shoes created showers of sparks on the rocks.

It was the most beautiful thing I have ever seen.

We made it up to the ridge and followed the horses down. Although I could feel the blisters on my heel, I couldn’t feel my toes. My legs were cramping. And when we finally got back to camp, someone had drunk the last Mountain Dew.

So why are you here, in our public lands? Why am I here? What do they mean to me? I won’t spout quotes from Thoreau, Leopold, or Abbey at you (although I suggest reading all of them, they have far more profound insights than I can give). I could say that outdoor humor writer Patrick F. McManus likely got it right when he titled his first collection “A Fine and Pleasant Misery,” but that also misses the mark for me. I could wax poetic and patriotic about our collective American identity with wild places, S’mores, and flags; but after a while that really starts to feel disingenuous.

Maybe that’s the key word: genuine. As the Google eloquently defines it: “truly what something is said to be, authentic.”

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Author after a particularly cold elk hunt. Photo by author. 

When going out in the woods ends up sucking, it genuinely ends up sucking. When out of something miserable comes something beautiful, it is something genuinely beautiful. Our public lands are the only place I have ever found that kind of genuine beauty. And out of all the oddball, miserable experiences, I have found other genuine moments. I’ve discovered who I am in the most genuine sense; out There, nobody knows or cares if I made it to the top of that unnamed mountain, or if the fish I caught was 20 inches or 6 inches. But I can care. I can be honest with myself. I can return from our public lands and tell stories and have memories of stars and sparks and Mountain Dew. And who is anyone without their stories? Sure, there are the tales of misery and woe, but there can be nothing good without the bad. For every fall day soured by soaked feet in a marsh, there is a spring day with a Western Meadowlark singing its song.  For every summer day choking on forest fire smoke, there is a powder day that means classes might have to wait. In our public lands, everything is there: the good, the bad, the boring, and the beautiful. And because they are our lands, we can all share in the stories—you and me.

So to answer that question about what public lands mean to me, I would have to genuinely reply: “everything.”

 

 

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Trump’s plan to dismantle national monuments comes with steep cultural and ecological costs

A joint piece by Michelle Bryan, Monte Mills, and Sandra B. Zellmer.

For the full article, please visit:

https://theconversation.com/trumps-plan-to-dismantle-national-monuments-comes-with-steep-cultural-and-ecological-costs-77075

 

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Two Hawks Dancing: The Importance of Public Lands to Protecting and Repatriating American Indian Cultural Items

By Kathryn Ore

It was one of those hot, windy summer days where the sky seems to meet the earth. I stood overlooking the landscape with the state archeologist, a tribal representative, and a state parks representative. Giant buttes stood solitary in the distance. Dry grasses crackled beneath our feet, patiently waiting for the flooding storms of late summer. Protected as a state park, the landscape was awe inspiring and full of a special energy. We were there for a solemn task, to rebury the remains of American Indian ancestors wrenched from their original resting places. We dug a series of holes, and carefully placed the boxes. The tribal representative sprinkled the graves with tobacco and smudged with burning sweet grass. Together, we turned slowly to face each direction. Two hawks joined overhead, dancing together.

Federal and state public lands are vital to the protection of American Indian burial sites. In the 1990s, federal and state statutes were enacted to prohibit the removal of burial goods and human remains on public lands. The Native American Graves Protection and Repatriation Act (NAGPRA) requires federal agencies and recipients of federal funding to repatriate American Indian cultural items—human remains, funerary objects, sacred objects, and items of cultural patrimony—to lineal descendants and culturally affiliated tribes. It also provides for the protection for American Indian burial sites, and places controls on inadvertent discovery or planned excavation of American Indian cultural items on federal and tribal lands.

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Many states further protect or provide incentives for protection of burial sites on private lands. In the majority of states, American Indian burials are protected by state legislation, which generally provides legal protections to unmarked burial sites on both public and private lands. However, not all states attach the same protections or have the means to proactively protect American Indian cultural items discovered on private lands. In states with fewer protections for private lands, public lands are extremely important to ensuring American Indian graves are left undisturbed.

My experience participating in the reburial of American Indian ancestors demonstrates the significance of public lands to the repatriation of American Indian cultural items. Many of our nation’s most treasured public lands are American Indian tribes’ most sacred places. Additionally, for cultural items without clear affiliation to a modern tribe, public lands are a somewhat neutral place for reburial. In my experience, the state park—a cultural site of extreme significance to a number of different tribes—agreed to allow American Indian ancestors to find refuge within its boundaries. Providing such a refuge helped reinvigorate and recognize the link between the ancestors who protected our lands in the past and the descendants who protect our land in the present.

As we finished our quiet blessings overlooking the vast landscape and returned to the road, I knew I had experienced something profoundly spiritual. I watched as two hawks flew into the horizon where the sky met the earth.

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Our Natural Inheritance: Finding Self-Reflection and Self-Awareness in Public Lands

By Erick Valencia

I grew up in a small town in Southwest Colorado surrounded by public land. Every year I’d hunt, fish, and camp with my dad, but I never truly appreciated these experiences had to offer me. I would have much rather gone to the nearby larger town with my three or four closest friends to cause mischief. I always spent a significant amount of time in public lands, but rarely was it a very meaningful experience. I dreamed that I would one day move to a big city where I would be happily surrounded by art, culture, and endless amounts of entertainment.

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Since my eighteenth birthday, I’ve wandered from city to city and town to town in search of education, jobs, recreation, and that elusive happiness of city life. I never felt a strong connection to any particular place, and I always felt lost in the seas of people. I found myself seeking out public lands to engage in those outdoor activities I learned from my dad. I’ve come to find that these natural places have always been a refuge for me. As an introvert, the solitude and quiet that public lands provide are essential. These places give me a sense of clarity and focus that often get lost in daily life as I’m bombarded with sensory stimuli that I must sift through and organize. They provide a place where I can be entirely selfish and self-indulgent without feeling as though I’m letting someone down or putting off something important. As I hike into the mountains or through the desert, I feel the uneven surface of the rocky, sandy trail underfoot. The cool wind and bright sun battle for control of my body temperature as they somehow manage to make me feel hot and cold at the same time. I can focus on the sound of my own breathing and the tensing of my muscles as I climb in elevation. I make constant adjustments to my gait and pace in response to changing terrain. And the feeling I get when I arrive at another beautiful destination or the thrill of seeing another new animal are just icing on the cake. There’s nowhere else that I can think of where I am so in tune with myself and my surroundings as when I am immersed in all the wonders of our public lands.

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Photo Credit: Casey Valencia

Beyond the benefits of self-reflection and self-awareness that public lands have offered me, many of my closest friendships have been forged on a trail. Whether I’m wandering through the desert in New Mexico, the endless ocean of sandstone in Canyonlands National Park, or gazing upon one of the last glaciers in Montana, some of the best times I can remember were spent with people I care about surrounded by the wide-open spaces of our natural inheritance. While memories of old jobs and objects and pains will eventually fade away, I’ll never forget those seemingly untouched places I’ve visited or their natural inhabitants. I’ll always remember resting atop a steaming volcano near the Southern border of Mexico after one of the hardest hikes of my life. I’ll remember the feeling of utter insignificance as I scurried among the giants of Sequoia National Park or peered down into the depths of the Grand Canyon of the Yellowstone. And how could I forget my first roadrunner, or the quetzals in Costa Rica, or the bear that got a little too close?

I’ve always sought out public lands for recreation, reflection, and as a temporary reprieve from life, and I always will. I haven’t yet found that location where I feel like I truly belong, but as long as the search keeps taking me to such amazing places with such wonderful sights, I’ll happily keep looking my entire life.

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Photo Credit: Casey Valencia

 

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