Public Lands and the Public Good: The Limitations of Zero-Sum Frames
| Author | Sarah Krakoff |
| Pages | 133-171 |
133
Chapter 7
Public Lands and the
Public Good:
The Limitations of
Zero-Sum Frames
Sarah Krakoff
I. Introduction
Owls versus jobs. Water for farmers versus water for salmon. Big dam versus
tiny snail darter. Environmental disputes are often described in this way, as
contests over limited resources that require one side to lose in order for the
other to win. If we accept this ga me theoretic framework, including its prob-
lematic assumptions about rational self-interest, then the resulting task is to
identify “true” zero-sum ga mes. Other chapters in this volume engage in that
project.1 Yet, there is a cost to accepting that framework at all. “I win and
therefore you lose” characterizations can become self-fullling prophecies.
Indeed, zero-sum views of the world seem to be corroding ever y aspect of our
public and private lives, eviscerating the ver y idea of a greater good. e irony
is that environmental protection, at its core, embodies notions of value that
go beyond measurable economic self-interest. To sub sume environmental law
within the rational ga me theoretic framing obscures the norms underlying
acceptance of that fra mework and displaces competing accounts of how we
arrived at environmental conicts, how we might address them, as well as
dierent understandings of human nature itself.2
1. See Robin Craig, Zero-Sum Games in Pollution Control: Ecological resholds, Planetary Boundaries,
and Policy Choices, and J.B. Ruhl & James Salzman, Why Environmental Zero-Sum Games Are Real,
in B Z-S E (ELI 2018).
2. See M T, R I D (2006) (critiquing rational
choice theories).
Note: Parts of this chapter were originally published in Public Lands, Conser vation, and
the Possibility of Justice, 53 H. C. R-C. L L. R. 213 (2018),
and are republished with permission.
134 Beyond Zero-Sum Environmentalism
Rather than tinker from within the zero-sum f rame, what if we pulled
back the lens and viewed natura l resource conicts in their historical and
social contexts? Owls-versus-jobs is the snapshot. e long view would
describe how federal forest service policies subsidiz ed unsustainable log-
ging, resulting in undiversied and therefore fragile economies. It would
include how eorts to undermine labor organizing in t he Pacic North-
west prevented alliances bet ween environmentalists and loggers. e longer
view is harder to describe in a bumper sticker. But excavating the lega l/
historical forces that lead to par ticular environmental disputes may help us
move beyond unhelpful dichotomies. In the heat of the conict, it may feel
like owls are the opposite of jobs. But reication of that feeling obscures
how law and politics embedded certain values that naturalized the jobs-owl
dichotomy. If we have shaped such a world to date, can we reorient to allow
endangered species to coexist with our livelihood? Or, more modestly, can
we at least reect on how law and politics have constructed a world where
such trade os seem inevitable?
is chapter will peek behind the construction of zero-sum fra ming in
the context of disputes about public lands. In the waning week s of his second
term, President Barack Obama designated Bears E ars National Monument
(Bears Ears) pursuant to his authority under the Antiquities Act of 1906.3
e monument was the rst ever to be proposed by American Indian tribes.
Five tribes—the Hopi Tribe, Navajo Nation, Ute Mountain Ute, Uintah a nd
Ouray Ute, and Zuni Tribes—formed the Bears Ears Coalition, which sub-
mitted the proposal to the president in October 2015. After more than one
year of study by the U.S. Department of the Interior (DOI), which included
listening sessions in Utah, meeting s with state and local ocials, and input
from environmental groups, President Obama signed the Bears Ear s National
Monument Proclamation on December 28, 2016.4
To it s supporters, Bears Ears seemed like an easy c ase for the protective
authority of the Antiquities Act, which authorizes the president to establish
monuments on federal public lands to preserve “historic and prehistoric struc-
tures, and other objects of historic or scientic interest.”5 To its opponents,
however (including prominent Utah politicians), it was a “land grab” and an
3. Presidential Proclamation No. 9558: Establishment of the Bears Ears National Monument,
Dec. 28, 2016, available at https://obamawhitehouse.archives.gov/the-press-oce/2016/12/28/
proclamation-establishment-bears-ears-national-monument.
4. See id.
5. Antiquities Act of 1906, Pub. L. No. 209, 34 Stat. 225, codied as amended at 54 U.S.C. §320301(a)
(2014).
Chapter 7: Public Lands and the Public Good 135
“attack on an entire way of life.”6 eir zero-sum framings could be sum-
marized as “preservat ion versus democracy,” “resourc e extraction versus pres-
ervation,” “preservation versus property rights,” “local (non-Indian) control
versus outsider inuence,” and various versions of “jobs versus environment.”
In keeping with zero-sum nar ratives, and in response to Sen. Orrin Hatch
(R-Utah) and others in the Utah delegation, President Donald Trump issued
a proclamation on December 4, 2017, shrinking Bears Ears by 85% (from
1.35 million acres to a little over 200,000 acres) and dividing it into two
much smaller management areas.7 e new proclamation omitted vast por-
tions of territory that contain historic, scientic, and cultural resources.8
President Trump’s response to Bears Ears (and other monuments) ts well
within zero-sum understa ndings of public lands management: previous pres-
idents had preserved too much of a limited resource, taking jobs and money
away fr om impor tant constituents .9
e story of Bears Ears c an be told dierently. e ve tribes that pro-
posed the Bears Ea rs National Monument and several others (including Pai-
utes, Goshutes, and Pueblo peoples) at one time populated all of southern
Utah. American invasion and settlement, accompanied by military force,
nearly eliminated tribal peoples from the southern part of the state by the
late 1800s. Today, only a small strip of the vast Navajo Reservation and a
tiny community of Utes remain in Utah ’s southeastern quarter. And yet,
the tribes’ attachment to Bears Ears remains erce. Bears Ears is a place of
origin stories. e renowned Navajo leader, Chief Manuelito, who negoti-
ated the Treaty of 1868 that enabled his people to return to their homeland,
was born in the shadow of the Bears Ears buttes. Tribal members from all
over the Southwest come to Bears Ears to collect piñon nuts, rewood, and
native plants for medicine. Families hold ceremonies for their children and
visit the Ancient Puebloan sites that belonged to their relatives. Elders and
medicine people tend the land. e designation of Bears Ears a s a national
monument—a public lands monument open to all but managed in consulta-
6. See Brian May, Utah Guv Calls Bear’s Ears Monument Proposal a “Political Tomahawk,” S
L T., July 27, 2016; Brian May & omas Burr, Obama Declares Bears Ears National
Monument in Southern Utah, S L T., Dec. 28, 2016, www.sltrib.com/home/4675012-155/
mike-lee-staer-says-bears-ears.
7. Presidential Proclamation No. 9681, 82 Fed. Reg. 58081 (Dec. 4, 2017).
8. See Nadja Popovich, Bears Ears National Monument Is Shrinking: Here Is What Is Being Cut, N.Y.
T, Dec. 8, 2017, www.nytimes.com/interactive/2017/12/08/climate/bears-ears-monument-
trump.html; Pam Avery, Major Fossil Cache Found on Lands Cut From Bears Ears National Monu-
ment, W S, Feb. 22, 2018, https://wilderness.org/press-release/major-fossil-cache-
found-lands-cut-bears-ears-national-monument.
9. President Trump also vastly diminished the Grand Staircase-Escalante National Monument. See
Presidential Proclamation No. 9682, 82 Fed. Reg. 58089 (Dec. 4, 2017).
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