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-fullling 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 game theoretic framing obscures the norms underlying

acceptance of that framework and displaces competing accounts of how we

arrived at environmental conicts, how we might address them, as well as

dierent 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. SeeM 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 frame, what if we pulled

back the lens and viewed natural resource conicts in their historical and

social contexts? Owls-versus-jobs is the snapshot. e long view would

describe how federal forest service policies subsidized unsustainable log-

ging, resulting in undiversied and therefore fragile economies. It would

include how eorts to undermine labor organizing in the Pacic North-

west prevented alliances bet ween environmentalists and loggers. e longer

view is harder to describe in a bumper sticker. But excavating the legal/

historical forces that lead to particular environmental disputes may help us

move beyond unhelpful dichotomies. In the heat of the conict, it may feel

like owls are the opposite of jobs. But reication 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 reect on how law and politics have constructed a world where

such trade os seem inevitable?

is chapter will peek behind the construction of zero-sum framing in

the context of disputes about public lands. In the waning week s of his second

term, President Barack Obama designated Bears Ears 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, meetings with state and local ocials, and input

from environmental groups, President Obama signed the Bears Ear s National

Monument Proclamation on December 28, 2016.4

To its supporters, Bears Ears seemed like an easy case 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 scientic 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-oce/2016/12/28/

proclamation-establishment-bears-ears-national-monument.

4. Seeid.

5. Antiquities Act of 1906, Pub. L. No. 209, 34 Stat. 225, codied 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 inuence,” 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, scientic, 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 from impor tant constituents.9

e story of Bears Ears can be told dierently. e ve tribes that pro-

posed the Bears Ears 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 as a national

monument—a public lands monument open to all but managed in consulta-

6. See Brian May, Utah Guv Calls Bear’s Ears Monument Proposal a “Political Tomahawk,” S

L T., July 27, 2016; Brian May & 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-staer-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).