The Tribes v. Donald Trump

2 May

Ethel Branch, attorney general for the Navajo Nation, sits on a leather couch in a Salt Lake City production studio, sipping bottled water and keeping a close eye on the television screen. Every few minutes, she picks up one of two iPhones laid in front of her to tap out an e-mail. It’s December 4, 2017. She’s been waiting for this day for eight months.

A few miles away, at the Utah State Capitol, the President of the United States stands at a podium beneath a mural that reads PEACE WITH THE INDIANS. Looking at the cameras, Donald J. Trump makes a rough attempt at humor, allowing that, before arriving, he called “all of the friends I have in Utah.” President Trump asked them a crucial question about today’s announcement: “Will it be at all controversial? They all told me no.” He turns and flicks his eyebrows up, lips funneled in mock bewilderment. In the studio, Branch’s colleague Jonathan Nez, vice president of the Navajo Nation, paces, emanating anger.

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Branch’s face registers patient, precise focus. She’s here to tape an interview with MSNBC after the president’s speech. She wears a black blazer, a matching skirt, and, on her left wrist, a turquoise bracelet. At 38, she oversees a Navajo Nation criminal-justice system that extends throughout Arizona, New Mexico, and Utah. Back in the nineties, when Trump was negotiating various bankruptcies, she was castrating horses and winning rodeo-queen contests on the reservation. She went on to graduate from Harvard Law School and the university’s Kennedy School of Government, and took over the tribe’s Department of Justice at 36.

On screen, the president tries to convey the significance of today’s proceedings. “I’m a real estate developer,” he says. “When they start talking about millions of acres, I say, ‘Say it again?’ ”

Say it again: Bears Ears, a landscape marked by two mesas climbing out of the Utah desert, geologic high marks overseeing a sacred region of canyons and cliff dwellings. In 2015, five tribes, some of which have long been at odds—notably the Hopi and the Navajo—formed the Bears Ears Intertribal Coalition, an effort to protect the area.

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Branch at Bears Ears (Morgan Rachel Levy)

That work was rewarded in December 2016, when outgoing president Barack Obama created Bears Ears National Monument using the 1906 Antiquities Act. The protected area encompassed more than 1.35 million acres of the Colorado Plateau, sloping upward from the desert floor at Valley of the Gods to the piñon and juniper forests of Cedar Mesa and then north to the Bears Ears buttes themselves. The Clovis people hunted here as early as 13,000 years ago, and the Ancestral Puebloans built cliff dwellings in the canyons. The great Navajo leaders K’aayélii and Manuelito were born near the Bears Ears buttes. The region’s canyons are home to an estimated 100,000 archaeological sites dense with rock art, hogans, granaries, pots, and baskets.

President Obama’s proclamation gave the tribes an advisory role in managing the monument. It also spelled out the name of Bears Ears in the Hopi, Navajo, Ute, and Zuni languages. For the tribes, that acknowledgement was a historic event; it marked the ­beginning of a cooperative plan to share indigenous knowledge with all comers.

But as soon as Trump took office, Utah’s Republican congressional delegation began to apply pressure, seeking to overturn the designation. In April 2017, Trump signed an executive order instructing secretary of the interior Ryan Zinke to review 27 national monuments, including Bears Ears and 1.7-million-acre Grand Staircase–Escalante, also in Utah, which Bill Clinton designated in 1996. Trump has flown here today to follow Zinke’s recommendations to shrink both monuments. Grand Staircase–Escalante will be cut in half, while Bears Ears will be reduced by 85 percent.

Two days ago some 5,000 protesters, the vast majority of them Native, poured into Salt Lake City. Branch was the first speaker to address them. Standing on the capitol steps, she introduced herself in Navajo and talked about “the potency of our prayers and the potency of our ceremonies.” Her sunglasses glinting, she said, “The earth needs us, it needs to heal,” and the crowd responded with a deep roar. Someone raised a sacred eagle staff behind her. Then she issued a challenge to President Trump. “I want him to visit Bears Ears. Take off his shoes, take off his socks, and squeeze the dirt with his toes and feel the heartbeat of Mother Earth.”

Trump did none of that. And it will soon fall to Branch and her legal colleagues to try and block his proclamation, to continue the centuries-old war for Native American rights while arguing the most consequential public-lands case in a generation, one that could determine the limits of presidential authority on much of America’s wild estate.

For 20 minutes in the television studio, Branch is silent as a lake. Her inscrutable expression cracks just once. It happens at the beginning of Trump’s speech, when he turns to Orrin Hatch, the senior senator from Utah, who has fiercely advocated for downsizing the Bears Ears monument. “You meet fighters and you meet people that you thought were fighters, but they’re not so good at fighting,” Trump says. “He’s a fighter.”

Branch’s eyes lead the rest of her face into a wide smile, the kind that’s not entirely warm; the kind that telegraphs, Bless your heart.

A fighter.

At that, Ethel Branch laughs out loud.

Natalie Landreth doesn’t listen to the speech. She knows what’s coming. She spent the weekend skiing near her home in Anchorage, Alaska, and consulting a document counting the Chickasaw who in 1837 were sent on the Trail of Tears, where many of Landreth’s ancestors perished. It’s motivation for the coming fight.

But now it’s Monday, Bears Ears day. Landreth steps into her kitchen, makes a pot of coffee and a piece of toast. It occurs to her that the Hopi Tribe just swore in its new chairman on Friday. That means on his first day in office, the new tribal executive, a former radio DJ, will be suing the president. When Landreth reaches for her toast, she sticks her hand in her coffee. Too much adrenaline.

Landreth is 44, a star attorney for the Native American Rights Fund, a nonprofit group that represents the thorniest cases in Indian country. NARF was born of the civil rights movement, an organization created to defend those who had binding treaties but few lawyers to enforce them. It was founded in 1970 by a group of tribal leaders and fiery young attorneys in California, who were soon joined by author and native-rights activist Vine Deloria Jr. In his 1969 classic Custer Died for Your Sins, Deloria called the law “a trap for the unwary and a dangerous weapon in the hands of those who understood how to use it.”

In short order, NARF turned the law into a weapon for Native Americans, using it to prevail over the states of Maine (in a prece­dent-setting case that upheld previously unrecognized tribes’ claims to land taken by the state) and Washington (in a seminal fishing-rights case). In 1973, its attorneys successfully pushed Congress to reverse the policy of tribal termination, begun in the 1950s to rid sovereign tribes of federal services. NARF also won a series of cases that led to the 1990 Native American Graves and Repatriation Act, to stop museums from incentivizing grave robbers. NARF calls its litigators modern-day warriors.

The group is now headquartered in Boulder, Colorado, with satellite offices in Anchorage and Washington, D.C., and has 17 full-time attorneys. “The best Native lawyers in the whole country work for us,” says John Echohawk, the organization’s executive director. “And everybody knows that.”

Landreth was hired on at 29 and has since chalked up a record that includes just one loss. “I look at Natalie as a transcendently great lawyer,” says Charles Wilkinson, one of NARF’s first attorneys, who teaches at the University of Colorado Law School and has written numerous books on Native sovereignty and the law.

NARF’s lawyers have been busy since Trump’s inauguration. “It’s like being in a fort under siege,” says Landreth, “and wondering, When are we going to get some water?” On January 24, four days after his inauguration, the president signed an executive order green-lighting the Keystone XL and Dakota Access pipelines, among other infrastructure projects, disregarding the historic Standing Rock protests with a pen stroke. Shortly afterward he revoked an Obama executive order giving Alaskan tribes a say in managing 112,300 square miles of the Bering Sea. In February 2017, as politicians from Utah began pushing for the revision of the Bears Ears monument, three of the tribes on the Bears Ears coalition—the Hopi Tribe, the Pueblo of Zuni, and the Ute Mountain Ute Tribe—asked NARF to represent them. The Navajo planned to represent themselves, and the Ute Indian Tribe used Fredericks Peebles and Morgan, which serves as its general counsel.

Back in Anchorage, the phone starts to ring: reporters looking for quotes. Landreth takes this job; she’s as outspoken as Branch is circumspect. A couple of days ago, during a press conference anticipating President Trump’s proclamation, she upstaged senator Tom Udall of New Mexico and Patagonia CEO Rose Marcario, firing away about the historical looting in Bears Ears (“Certain people seem to treat this area as though it is a bank”) and fact-checking the Utah congressional delegation’s rhetoric about how Trump and Zinke were merely returning lands to locals. “The Bears Ears National Monument was created by local people,” Lan­dreth said, “regardless of what you may hear from Senator Hatch.”

The tribes’ complaint hinges on the Antiquities Act. The statute gives the president authority to create a national monument in order to protect objects and sites of significant interest, provided that he designates “the smallest area compatible with proper care and management of the objects to be protected.” Since it was signed into law by Theodore Roosevelt, presidents have shrunk more than a dozen monuments, notably Washington’s Mount Olympus National Monument, which Woodrow Wilson downsized by half during World War I in order to source timber for military supplies. (Congress later protected most of those lands as Olympic National Park.) But those early modifications were never challenged in court. In 1976, Gerald Ford signed the Federal Land Policy and Management Act. While the law itself didn’t directly address whether or not a president could modify monuments, the final House report on the legislation noted that it “specifically reserves to the Congress the authority to modify and revoke withdrawals for national monuments created under the Antiquities Act.” Trump is the first president to attempt to shrink a monument since the act was passed.

“Whether the president has the authority to do that is a very significant question,” says Mark Squillace, a public-lands expert and law professor at the University of Colorado. “If the court decides that the president does have that authority, it really creates a lot of chaos in public-land management.” On the other hand, Squillace says, if the court determines that the president has the authority only to create a monument, and not to modify an existing one, “then lands are protected. And that’s a big deal.”

The attorneys have had a draft of their complaint ready to file for nearly a year. Echohawk convened NARF’s legal team in February 2017. Landreth’s location in Alaska was an inconvenience, but he wanted her to work the case. He also tapped Matthew Campbell, a 36-year-old member of ­Alaska’s Na­tive Village of Gambell who grew up in suburban Denver and came to NARF in 2013 after following a winding path in his younger life. “I became interested in the law,” he says, “because I had run-ins with the law.” He’s now half of a legal power couple; his wife, Nikki Borchardt Campbell, is executive director of the National American Indian Court Judges Association.

The lawyers wanted to file suit within hours of President Trump signing his proclamation. Now, watching the screen in Salt Lake City, Branch says, “He still hasn’t signed it.” The team can’t make final edits until the proclamation’s language is official. No one is sure yet whether Trump will repeal Bears Ears entirely and replace it with two smaller areas, or make a dramatic reduction.

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Campbell in NARF’s Boulder, Colorado, office (Morgan Rachel Levy)

Finally, after an extended preamble, Trump sits down at a large desk surrounded by the Utah delegation. To his right are Hatch and representative Chris Stewart; to his left, representative Rob Bishop, governor Gary Herbert, and Mike Lee, the junior senator. Just outside the inner circle stands Rebecca Benally, a San Juan County commissioner and member of the Aneth chapter of the Navajo Nation, which has shown support for the reduction. Zinke stands behind Trump, and just in front of him, unsmiling, is a Navajo elder in traditional jewelry. Seeing her, Branch says, “Poor lady.”

Branch keeps asking to view the language in the proclamation, but it’s not yet publicly available. She’s shuttled into a television studio to tape the MSNBC interview. “They think that talking to one Native American person, one Navajo person, constitutes consultation with the Navajo Nation,” she intones, “and they’re gravely mistaken.”

Hours later, after the extent of the reduction becomes clear, Campbell edits the suit from NARF’s Boulder office while Branch rushes off to another press conference and then to the airport, where she’s the last to board the plane. By the time she lands in Albuquerque, New Mexico, The Hopi Tribe, et al., v. Don­ald J. Trump, et al. has been filed in D.C. District Court.

Both the Trump administration and the Utah congressional delegation often make the case that those who live closest to Bears Ears oppose the Obama designation. San Juan County’s three commissioners—Benally; Phil Lyman, a descendant of a Mormon pioneer who arrived in the area on the 1880 Hole in the Rock Expedition; and Bruce Adams, a white rancher—have vociferously objected to the protection of Bears Ears. Benally has repeatedly suggested that a monument designation could inhibit the gathering of firewood, despite the fact that the Obama proclamation explicitly allowed the practice.

Benally’s voice has proven problematic for the Native coalition. Aneth is the only one of nine Navajo chapters with land in Utah that has opposed the monument; Benally’s stance gives the Utah delegation’s NIMBYism a sheen of credibility. But monument supporters say the region’s politics does not accurately reflect its population. San Juan County has been the subject of scrutiny over racial gerrymandering for decades. In 2012, the Navajo Nation filed a suit claiming that the county had failed to redraw its districts in accordance with the Voting Rights Act. A federal district judge has repeatedly sided with the tribe. Should the suit, which Branch is overseeing, hold up, San Juan County could soon have a majority Navajo commission.

But for now, all three commissioners have characterized federal land management in the area as overreaching. On December 2, as Branch was issuing her challenge to President Trump in front of a roaring crowd of thousands, Lyman spoke to a group at the San Juan County courthouse, in Monticello. He assumed a polite and restrained tone even as he invoked dire threats. Using a quote attributed to Thomas Jefferson, he warned of a day when “our children wake up homeless on the continent their fathers conquered.” Lyman used the word conquered three times, then walked off to applause.

The Bears Ears dispute concerns more than just ruins. It addresses the question of whose voice rings out loudest, of whose history is prioritized. San Juan County is an area larger than Connecticut, with a population of around 17,000. The northern half is dominated by the heavily Mormon towns of Blanding and Monticello; to the west lies the red-rock country of Bears Ears. Its southern and eastern portions are primarily Navajo and Ute. The county has resources—oil near Aneth, uranium in White Canyon—but over the years, the negative impacts of extraction have seriously affected local Native Americans, in the form of contaminated groundwater near a uranium mill in White Mesa and dozens of oil spills that have flowed into the San Juan River’s tributaries.

There is a third economic engine—tourism, in the form of off-roaders and desert rats looking to follow the footsteps of Edward Abbey and Everett Ruess. Still, traffic has always been thin compared with areas farther north, in Canyonlands and Moab, or west, toward Lake Powell. For adventure purists, the region has long been an empty sandstone heaven. Author Craig Childs has traversed the area for decades, often on his own. At first he was opposed to a monument. “The idea of having the place hardened by pullouts and trailheads didn’t at all appeal to me,” he says. “But when I step away from it and look at it from a larger perspective of time and decades and centuries, I think it’s something that is more about ­preserving sacred and incredible landscapes for a longer time frame.”

For decades, white residents of the region made a habit of pothunting—searching for artifacts—near Bears Ears. To Navajos, that sounded a lot like grave robbery. In 2009, the FBI and agents of the Bureau of Land Management conducted an elaborate pothunting sting in the Four Corners region that ended with 23 arrests and 12 indictments. Shortly after being arrested, two people committed suicide, including Blanding’s main doctor, James Redd.

The events heightened the anti-federal sentiment within Blanding; for many Navajos, they also solidified the importance of protecting the region’s antiquities. In 2010, Mark Maryboy, a Navajo leader who in 1986 became the first Native San Juan County commissioner (he served four terms), decided to do something about it. Along with Gavin Noyes, a white community activist, Maryboy interviewed some 75 Native citizens, asking what they wanted to see around Bears Ears. The answer was fairly uniform: most wanted some protection for the region’s sacred sites.

Meanwhile, environmental groups including the Conservation Lands Foundation, based in Durango, Colorado, and the Southern Utah Wilderness Alliance (SUWA) had been seeking to protect the area as well. Maryboy recruited other Navajo, and in 2012, he and Noyes launched a nonprofit organization called Utah Diné Bikéyah (“people’s sacred lands” in Navajo). At first, UDB tried to work with Utah politicians to protect the Bears Ears area. Congressman Bishop was then soliciting input on a bill called the Public Lands Initiative, which he pitched as a compromise. But UDB never felt that he took the group’s proposals seriously, and the bill failed to gain any traction.

Since 2010, UDB had been reaching out to tribes with ancestral ties to the Bears Ears region. Initially, the Hopi, Ute Mountain Ute, and Zuni were wary, since the effort was led by Navajos. The animosity between the tribes is centuries old, but in a meeting in April 2015 in Bluff, Utah, Maryboy acknowledged to Hopi and Zuni leaders that their ancestors had preceded the Navajo at Cedar Mesa. “Welcome home,” Maryboy said. People wept.

Members of the fledgling Bears Ears Intertribal Coalition soon started traveling to Washington, D.C., where they found a willing audience in the office of interior secretary Sally Jewell. In July 2016, Jewell went to Bears Ears and came away impressed by the coalition’s proposal.

That December, she sent President Obama a memo recommending the designation of Bears Ears National Monument. Just after Christmas, Obama did just that, creating a monument that preserved existing grazing leases and mining claims but banned future mineral activity. Hatch and Bishop almost immediately began referring to it as a land grab. During President Trump’s first week in office, Hatch, the chairman of the powerful Senate Finance Committee, said the president was “eager to work with me” on Bears Ears. In March, one of his aides e-mailed ­Zinke’s staff a map that would “resolve all known mineral conflicts,” reflecting the desires of a program that funds public schools through oil and gas leasing and other development. Meanwhile a uranium company that operates a mill just outside the monument’s boundaries started lobbying Zinke’s office.

In May 2017, Zinke traveled to Bears Ears, where he scolded a Native protester who kept asking him questions, holding up a finger and telling her, “Be nice!” When the Interior Department released a video showing him riding a horse in the area, Ethel Branch noticed that someone held the reins for him as he mounted. What kind of cowboy does that? she wondered.

That September, The Washington Post published a leaked copy of Zinke’s review of the 27 monuments. The memo acknowledged that protected areas can generate tourism revenue, but also stated that in some instances the “jobs and the resulting revenues from tourism do not necessarily offset the lost or forgone revenue resulting from the limitations placed on land development.” No examples were cited. It acknowledged that Interior had received 2.8 million public comments, overwhelmingly in favor of keeping the monuments, but said that those comments were mostly generated by nonprofits. “Too often,” the memo read, “it is the local stakeholders who lack the organization, funding, and institutional support to compete with well-funded NGOs.”

The review was catnip for President Trump—written with a conspiratorial whiff but lacking any cited sources, privileging the perspective of aggrieved locals, and animated by the notion that wealth comes out of the ground.

“You have this identity issue,” says Campbell. “This living-in-two-worlds issue.” He is talking not just about himself but about his profession. For Native litigators, the job is not only to win. It’s to faithfully and sensitively convey a client’s worldview in a venue that’s often unfriendly to that perspective, to demand respect for that position so that the court elevates it.

According to Landreth, “Microsoft’s lawyers, for example, don’t say, ‘Well, our culture dictates that this software is sacred.’ You have to figure out how you’re going to litigate it while at the same time protecting your clients and their culture and religious views.”

Together, Campbell, Landreth, and Branch represent a new generation of legal advocates for Indian country. They came to the work from different places—suburban Denver, the consumer panoply of Orange County, California, and an Arizona ranch with no running water or electricity.

“It’s powerful to see young Native American attorneys defend the sovereign lifestyles of tribal people,” says Heather Kendall-Miller, a NARF attorney from Alaska and one of the handful of Native women to have argued in front of the Supreme Court.

In high school, few would have pegged Campbell as a legal power broker in the making. He was a disinterested student in Littleton, Colorado, and attended Fort Lewis College, in Durango, which offers Native students a tuition waiver. (The college once tried to eliminate the waiver, but in 1973, John Echohawk helped win a case that kept it in place.) Campbell graduated with a GPA of 2.8, and after college he applied to law schools but didn’t get in. He was working at a gym in Durango when he received a flyer in the mail advertising a prelaw summer institute for Native students at the University of New Mexico. In Campbell’s recollection, it emphasized that a weak academic record was not disqualifying.

“I was like, Wow, this is really speaking to me,” Campbell says. In Albuquerque, something flipped inside. He excelled in his studies, and at the end of the summer course several law schools expressed interest in him. He chose Arizona State University, which has one of the best Indian law programs in the nation, and there he met his wife, Borchardt.

Branch and Landreth, meanwhile, met at Harvard in the late 1990s. Branch was an undergrad, Landreth a law student. Tall and poised, Landreth was the daughter of a Navy sailor; she’d spent her early childhood on a remote Aleutian island but was raised in Orange County after her parents divorced. Her mother wanted her to have the best education possible. “We had the fanciest public schools,” she says, “and the cheapest apartments.” Upon arriving at Harvard, she met a white girl from Montana who suggested that Landreth shouldn’t tell anyone she was Native. Instead she started attending meetings of Harvard’s Native American Program. “Whether you were an urban Indian or reservation Indian, it didn’t matter,” she says. “You had this common history.”

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Branch (left) and Landreth in 1998 (Morgan Rachel Levy)

One day during her senior year, Landreth saw a poster advertising a speech by attorney general Janet Reno, who came to discuss the fledgling Office of Tribal Justice. Landreth, an art history major, attended the talk and was so moved that she approached Reno after. “I want to work with you,” she recalls saying. Reno connected her to a colleague, who offered Landreth an internship in the new office. Her employer thought Landreth was already in law school. “I didn’t know how to find anything in the Department of Justice library,” Landreth says. The next year, she was accepted to Harvard Law.

Branch also had something of an awakening in Cambridge. Not regarding identity—she was pretty clear on that. But she never knew why her family and neighbors lacked electricity and running water. The town of Leupp, Arizona, close to her family’s ranch, was too small to accommodate a high school, and Native history wasn’t taught in nearby Winslow. During her sophomore year at Harvard, Branch took a class on the history of the American West. When the teaching assistant outlined the basics of the Indian Wars—the forced marches and the dispossession, the origins of historical trauma—the circumstances back home began to make more sense.

One day in another history tutorial, the lecturer had the class read a book examining the settling of the frontier from the indigenous point of view. It was bloody enough that one young woman started to tear up. Another student argued that there were bad characters on both sides and that Native Americans had blocked progress. The lecturer looked to Branch. Branch crisply laid out the definition of genocide and applied it to the work of the Texas Rangers. The lecturer suggested she take up law.

Landreth, meanwhile, clerked for an Alaska Supreme Court justice before heading to Los Angeles to work in entertainment law. It was lucrative, if exhausting. In 2003, she saw a job opening at NARF, applied, and, together with her fiancé, an army engineer, moved up to NARF’s Anchorage office, where she took a steep pay cut. The couple married that December; three days later, her husband deployed to Iraq for 15 months.

Landreth went to work underneath Kendall-Miller. Her first oral argument came in a case concerning several coastal Alaskan tribes’ claims to aboriginal fishing and hunting rights in the wake of the Exxon Valdez spill. She appealed a district court decision and found herself arguing in front of the Ninth Circuit Court of Appeals en banc—meaning that all 11 judges grilled her at once. She prepared diligently, argued, then heard nothing for more than a year. When the ruling finally came in, she lost six to five.

Landreth found out about the verdict the day her son was born. Later she reviewed the case over and over. “That was the worst,” she says, “feeling like you came so close, like what could I have done better to get that sixth person?” Kendall-Miller saw it differently. “I recognized immediately that she had great, great talent.”

In 2008, a new intern joined NARF’s Alaska office: Ethel Branch, in her fourth year at Harvard Law. From there she went to private firms in Portland, Oregon, and Seattle, specializing in tribal issues. In 2015, the Navajo Nation reached out to Branch, asking her to apply for the position of deputy attorney general. Midway through the process, she received a different offer: attorney general, overseeing a staff of 88. Branch packed her bags and moved into a place in the Navajo capital, Window Rock, Arizona, with her mom and three nieces, plus two dogs and a cat, all female. Her mother does the laundry and keeps everyone fed. “Other­wise,” Branch says, “it would be a wolf’s den.” Recently, she got into her Nissan Pathfinder to find dark stains on the ceiling. Her mom had used the passenger seat to transport an alpaca with a bloody nose.

At work, Branch oversaw an ongoing dispute with the Environmental Protection Agency over the 2015 Gold King Mine spill that turned the Animas and San Juan Rivers copper and polluted Navajo Nation agricultural waters. She also launched a white-collar-crime initiative that hasn’t exactly ingratiated her with Navajo power brokers. Soon after coming on board, she began attending meetings of the Bears Ears coalition. She found herself traveling up to the high desert, once camping between the twin buttes under a full moon. On another trip, her elementary-school-age niece sang a traditional song about the region. Branch sometimes kept a sleeping bag in her office in order to head up to Bears Ears. She felt that something powerful was protecting the region—something, she says, “that transcends the law.”

The tribes were hardly alone in preparing a complaint. In the Trump era, the gears of liberal outrage have spun freely, providing a boon to the bottom line of environmental and social-justice organizations across the country. By April 2017, when President Trump signed the executive order launching Zinke’s monument review, everyone from Earthjustice to the Natural Resources Defense Council to Patagonia was exploring lawsuits over Bears Ears. Visits to the monument spiked, and UDB prepared to sue as well. For Branch and the NARF lawyers, the outcry was welcome. But the team wanted to keep the tribal voice separate from that of the environmental groups.

“In an ideal world,” Branch says, “it would be cool to work together. But we’re dealing with very different interests.” Campbell echoed that sentiment. For her part, Landreth likened the environmentalists’ pile-on in the months leading up to the proclamation to “a high school party—if I’m not invited, I’m going to die!”

Landreth’s primary concern was that the tribes respond first. “It’s the first truly Native American monument,” she says. “Let the tribes talk about how fucked-up it is that the one he goes after is the one run by Indians.”

The other plaintiffs respected that. After The Hopi Tribe, et al., v. Donald J. Trump, et al. was filed on December 4, two other coa­litions of nonprofits held off for a couple of days before filing their suits in federal district court in D.C. Landreth was pleased. One suit was brought by the Natural Resources Defense Council, SUWA, and nine other environmental groups represented by Earthjustice. The other was brought by UDB, the Conservation Lands Foundation, Patagonia, and a group of archaeological and conservation organizations. Meanwhile, two other nonprofit coalitions sued to block the halving of Grand Staircase–Escalante.

Each of the complaints addresses presidential authority under the Antiquities Act and the Federal Land Policy and Management Act. But they differ in regard to the antiquities at stake. The environmental groups’ complaint emphasizes “outstanding opportunities for sightseeing, hiking, backpacking, wildlife viewing, spiritual reflection, and other outdoor activities.” The suit brought by UDB and Patagonia references both Bears Ears’ archaeological sites and its spectacular climbing.

The tribes’ suit reads differently. It is, of course, full of legalese. But it also notes that the Zuni consider water to be “similar to the blood of their mother” and states that “Hopi ancestors buried in the area continue to inhabit the land.” Another passage reads: “The Bears Ears landscape also has seminal importance in Navajo songs, prayers, and healing ceremonies that have unique and close ties to the Bears Ears region, its flora and fauna, and its historical and spiritual qualities, including the Anaaji (Enemy Way), the Dinéee (Wild Game Way), the Dzilkíji (Mountaintop Way), and the Hozhooji (Blessingway), which seeks to restore and revitalize hózhó (harmony, beauty, and balance) for the individual for whom the ceremony is performed.”

“If you read a thousand other complaints in federal court,” says Landreth, “you will not see one that looks like that.”

But once the suits were filed, the press filled up with stories about Patagonia—both its lawsuit and its home page, which the company altered to read, simply, “The President Stole Your Land.” The narrative proved easier for reporters to digest.

“I love Patagonia,” Landreth told me after­ward. “I’m sure they’re great people. My sense is theirs is a voice people would listen to.” She paused. She liked what the company did on its website, she said. “But at the same time, it made me kind of sad. Anything we said about looting or sacredness of the land in 50-plus interviews never received that level of penetration. What are we doing wrong?”

If the plaintiffs’ cards are on the table, the federal government has not shown its hand. According to the University of Colorado’s Squillace, the government will have to argue “implied authority”—that the president has a power that’s not articulated in the Antiquities Act. The Department of Justice lawyers representing the administration could conceivably argue that Obama didn’t adhere to the act’s mandate to protect only “the smallest area compatible.” But, says Squillace, “That’s a very tough argument, because the plaintiffs are going to be able to show all kinds of objects that were intended for protection by the Obama administration that are now outside the protected area.” In February, in fact, a team of scientists announced that they’d discovered a bed of Triassic phytosaur fossils—an early crocodile—in an area of Bears Ears that had been stripped of protections; the fossils are located in the Chinle formation, parts of which also contain uranium.

Still, Zinke’s final report, made public in December, suggests that previous presidential overreach is an animating idea behind the revised monument. It also suggests that extraphysical and even environmental concerns should not affect the creation of monuments. “Throughout the review,” he wrote, “I have seen examples of objects not clearly defined in the proclamations. Exam­ples of such objects are geographic areas including viewsheds and ecosystems. Proper use of the Act should specifically identify the ‘historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest,’ and the quantity of land necessary to protect each object, if any.”

In January, the Department of Justice requested that the case be moved from D.C. to Utah, on the grounds that the monuments are located there. “Both parties are trying to get to the friendliest forum they can find,” Squillace told me. At press time, judge Tanya Chutkan, an Obama nominee, had yet to decide on that motion. She did, however, rule on the federal government’s motion to consolidate the suits into one. Chutkan grouped the suits together as The Hopi Tribe, et al., v. Donald J. Trump, et al. for the purpose of scheduling, but agreed with the plaintiffs that the tribes could file their own briefs and argue separately.

How long all this will take is unknown. The fight is, in the words of John Leshy, a former solicitor at Interior, “a pretty straightforward kind of case” from a litigation point of view. But it’s hugely consequential, potentially dictating the stability of America’s 117 national monuments—and pitting an indigenous worldview against that of a real estate developer from Queens.

One treasure is nearly impossible to find in Bears Ears: a map of the original 1.35-million-acre monument. Because Trump took office just a month after Obama’s announcement, little infrastructure has been added. There are no Bears Ears National Monument signs in Bluff. According to Friends of Cedar Mesa, a local environmental group, use of toilet paper at the smattering of ranger stations and outhouses in the area has increased in the past year, indicating significant growth in tourism. But Bluff won’t be rivaling Moab in the near future; it still has just a few lodges and restaurants that are open occasionally. And those who wish to access the monument still need a good set of jacked-up tires and some local knowledge.

On February 2, a 60-day temporary moratorium on mining claims in the Obama monument expired, meaning that anyone with a couple hundred bucks can show up, put some sticks in the ground, and claim mineral rights, just as they could for decades prior to December 2016. But the price of uranium is low; despite dire warnings from the environmental community, the race to stake new claims has not yet heated up.

The next day, on February 3, Ethel Branch’s Pathfinder hurtles out of Bluff toward Bears Ears. The road is empty. Branch and a Hopi friend, a former Marine named Alfred, are driving to see some ruins. Alfred steers up the Moki Dugway, a steeply switchbacked road that climbs to Cedar Mesa. They keep driving until they can see the twin mesas of Bears Ears. Far to the southwest looms the shadow of a curved mountain.

“Navajo Mountain,” Branch says.

“Hopi Mountain,” Alfred corrects her. They laugh. Alfred started visiting Bears Ears in the eighties. Branch never came as a kid. “We couldn’t go 40 miles without the ranch truck breaking down,” she later explains.

That afternoon, Alfred turns onto a cratered dirt road leading toward Cave Towers, an Ancestral Puebloan site in Mule Canyon. There’s a crunch, and it sounds like the right rear wheel has bottomed out. Branch and Alfred step from the car to find they have a flat tire. But there’s only so much daylight. The tire can wait. They walk out and find a sign asking that hikers visit with respect. There are two misspellings. A disappointed Branch wonders aloud if she has a Magic Marker back in the car.

She and Alfred continue on, and after a few hundred yards they come to a yawning canyon. At its head are a number of ancient towers made of red rock and mud—perhaps defense outposts. Branch stays away from the ruins in accordance with Navajo custom. A few hundred yards beneath the towers, Alfred points out some small structures tucked into the cliffs—Puebloan homes. The walls have holes, he says: spaces for arrows. The people here were guarding something of great value.

Swallows dive in and out of the canyon walls. Alfred hikes back to change the tire. Branch sticks around a little while longer. She walks to the lip of the canyon and pauses. “You can hear it,” she says, and sure enough there’s a gurgle. At the bottom of the canyon, far beneath the towers and settlements, there’s a clear spring bubbling with life. Something to protect.

Contributing editor Abe Streep (@abestreep) wrote about Patagonia and the fight over public lands in September 2017.

Patagonia and the Federal Government Go Head to Head

8 Dec

Earlier this year, Yvon Chouinard, the founder of Patagonia, told me, “I didn’t realize how much power we have. And to not use it would be irresponsible.” It seems we’re just starting to see what he meant by that.

On Monday, immediately after President Trump issued a proclamation cutting Bears Ears National Monument into two significantly smaller areas, Patagonia unveiled its stark new homepage, designed to prod and provoke. Black and white, it read, simply, "The President Stole Your Land," then suggested that viewers tweet in protest or donate to tribal and public-land advocacy groups, including those now filing suit to block Trump’s action. The gear maker's move was promptly picked up by GQ, The Washington Post, The Atlantic, Outside, USA Today, and other press, and was shared and endorsed on social media by New Mexico Senator Martin Heinrich, among others. Patagonia, it was said, was “going to war” and giving “Trump the finger.” The website’s take-action button temporarily crashed from all the traffic.

Ryan Zinke, the secretary of the interior, was not pleased. On a Tuesday conference call with reporters he called Patagonia “a special interest group.” (Outside was not on the call. Despite repeated efforts to join, one of our editors was blocked. The previous day, the magazine had published a critical profile of Zinke by Elliott Woods that illustrated, among other issues, the secretary’s struggles to properly rig a fly rod.) Zinke continued his attack on Patagonia: “I think it’s shameful and appalling that they would blatantly lie in order to gain money in their coffers.” The interior department’s press secretary and Patagonia have since engaged in a Twitter scrap over Zinke’s use of charter flights, including one that cost taxpayers more than $12,000. Someone at Patagonia called those “private jets." The Interior’s press account called that #fakenews.

Then, on Friday afternoon, the official Twitter account of the House Committee on Natural Resources, which is chaired by Utah Congressman Rob Bishop, who pushed for the changes to the monument, chimed in. “Patagonia doesn’t want #MonumentsForAll,” the account tweeted, “They just want your money.” Embedded was an image playing off Patagonia’s home page design that read “Patagonia Is Lying To You.” The committee also sent out a weekly email newsletter on Friday with the subject line: "(Patagonia: don't buy it)." 

These counterattacks challenged both the veracity and motive of Patagonia’s statement. That Patagonia’s action could help the brand's bottom line doesn’t seem outside the realm of possibility. The company’s history of turning activism and philanthropy into profit is well-documented; the strategy is core to its mission, and in turns enables more activism. In 2016, the New Yorker called this phenomenon the “Patagonia feedback loop.” Its founder, Yvon Chouinard, has written and spoken at length about this idea, and sometimes reacts in an aw-shucks manner when bold moves result in financial gains. I asked Corley Kenna, the company’s senior director of communications, if the company had seen a sales surge following Monday’s website move. She wrote me: “We don’t even discuss how sales have been affected. The first television commercial we ever ran in our company’s history”—one that aired earlier this year about Bears Ears— “was to protect these lands, not sell clothing. We do this because it’s the right thing to do, period.”

Still, shortly after the company launched its homepage Monday, a Twitter user with nearly 100,000 followers wrote: “We all should go shop at @patagonia NOW! I bought some wonderful clothes tonight.” I’d be shocked if Patagonia put any sort of financial calculus into the release of its home page. But I’d also be shocked if sales didn’t rise this week. The criticisms of Zinke and the House Committee on Natural Resources, which are currently ringing around Twitter, might even fuel that phenomenon. As Chouinard has said, “You can’t buy advertising like that.”

There is also the question of the homepage’s accuracy. Was land in fact stolen on Monday? Should Trump’s proclamation hold up in court, the land removed from monument status at Bears Ears and Grand Staircase Escalante will continue to be managed by federal, taxpayer-funded agencies such as the Bureau of Land Management and the Forest Service. Bishop has favored legislation allowing the federal government to transfer public land to the states. But the idea of land transfer has become politically toxic in the past year, since the Republican party put it in its 2016 agenda. In the immediate future, such a possibility remains remote for the disputed Utah lands. “They will continue to be federal public lands,” says Josh Ewing, of the pro-monument non-profit group Friends of Cedar Mesa. “They just won’t all be protected public lands.” (Jonathan Thompson at High Country News recently published a good analysis of monument protections and what could be lost at Bears Ears.) 

Zinke, who professes to love public land but has taken a beating in the Montana press over his monuments review, went out of his way in Tuesday’s conference to say that no land had been “transferred or sold.” It seemed to be the verb “stole” that really touched his nerve. When I asked Patagonia about that word choice, Hans Cole, the director of environmental campaigns and advocacy, cited the potential for oil and gas development and looting of ancient ruins and artifacts—an ongoing problem in the area. “The truth,” he wrote, “is that the President’s decision robs American citizens and future generations of something that belongs to all of us.”

That sentence would likely pass muster in Outside’s fact checking department. But the compelling and viral simplicity of “The President Stole Your Land” would receive more careful scrutiny. Mark Squillace, an expert on natural resources law at the University of Colorado, told me, “It’s not entirely accurate.” John Leshy, a public lands expert at the University of California Hastings college of law and a former solicitor for the interior department, called the statement’s veracity a question of interpretation. “Is it a theft of real estate,” he asked? “Not exactly. But if you interpret land to mean the magnificent resources on that land that now have less protection I think ‘stole your land’ is a fair characterization.”

Still, precision matters. A bulletproof version of the much-discussed statement might read “The President Unprotected Your Land” or “The President Failed to Properly Consult Tribal Interests and Left Your Land Open to the Potential for Energy Development.” Those, however, might not have generated so much news. Patagonia could have used “The President Grabbed Your Land,” but that was already taken, having been used repeatedly in recent months by members of the Utah delegation, including Bishop, to protest Obama’s designation of Bears Ears. And any slogan involving this president and the word “grab” seems likely to elicit a reflexive cringe, gag, or trip to the shower—not ideal for wartime messaging.

So how about this? “The President Appropriated Your Land.” With that in mind, I called up Shaun Chapoose, a member of the Ute Indian Tribe business committee and one of the leading advocates for the original Bears Ears National Monument. His tribe is one of five suing to halt Trump’s proclamation. When I asked him about the Patagonia-Zinke row, he said, “I find it comical as hell. That was the same war cry that the Utah delegation was using—It was a land grab! It’s kind of ironic. The same tactic that was used to change the monuments is being used against them and they find it offensive.” He started laughing as he further considered the word “stole.” He said: “For me it’s like, ‘Welcome to our world.’”

The Outdoor Industry’s Protests Won’t Save Public Lands

5 Dec

In February, the outdoor industry exerted political strength for the first time when it elected to remove Outdoor Retailer, its $45 million trade show, from Salt Lake City, on account of the Utah Congressional delegation’s anti-public lands stance. Shortly afterward, Rose Marcario, the CEO of Patagonia, the company that facilitated the move, told me that the industry had to be “as relentless as the NRA,” and that it couldn’t “give up an inch” of protected public land. In April, the Outdoor Industry Association (OIA) released figures estimating the collective recreational business’s economic impact at $887 billion. In July, at the summer Outdoor Retailer show in Salt Lake City, thousands of people in flat-brimmed caps and plaid took to the streets, prompting the New York Times to run a rather credulous piece on the industry’s newfound clout. Celebrations were in order; the once timid business, it seemed, was woke and ready to rumble.

Then came yesterday. President Trump, standing in the Utah capitol underneath a mural that read PEACE WITH THE INDIANS, took a cleaver to Bears Ears National Monument, cutting it by more than one million acres. He also halved its neighbor, Grand-Staircase Escalante. The action was most damaging to the tribes that had spent years lobbying for the protection of Bears Ears, an area they consider sacred. Shortly after the announcement, Navajo Nation vice president Jonathan Nez raised Trump’s recent treatment of his tribe’s revered code talkers. “One week ago today our code talkers were disrespected,” Nez said, “and one week later we get this. It just shows this administration does not respect indigenous people.”

But the resizing of Bears Ears also stung the outdoor industry. The Access Fund rallied climbers to go to Salt Lake City this weekend, where they were joined by representatives from Patagonia and Black Diamond. They gathered outside the capitol building on Saturday, at a 5,000-person pro-monument rally, and then yesterday, at a smaller event to protest Trump’s arrival. Their mood was not joyful or triumphant; rather, they carried a newfound doubt. “There’s a certain feeling of fatigue,” said Peter Metcalf, former president of Black Diamond, who attended both the Saturday and Monday events. “Like ‘I gotta be here, I’m glad I’m here representing my beliefs. However, I’m questioning whether this has substantial value.’” Everyone, he said, was “sharing a degree of absolute frustration and weariness with what’s going on.”  

“This action,” Amy Roberts, the executive director of the OIA, told me, “will go down in history as one of the most unpopular things [Trump] has done.”

Ron Hunter, Patagonia’s environmental activism manager, also attended yesterday. “I wish we had gotten it together earlier as an industry,” he said. “If we had been showing up five or ten years ago, we might not be here.”

Last night, the Navajo Nation and the Hopi, Zuni, Ute, and Ute Mountain Ute tribes filed a complaint against President Trump seeking an injunction to prevent the modification of Bears Ears. This morning, a coalition of environmental groups led by Earth Justice announced their own suit seeking to protect Grand-Staircase Escalante. Patagonia intends to sue over the Bears Ears action as well, using a novel legal strategy; Brady Robinson at the Access Fund, which advocates for climbers, told me the group is “evaluating our legal options,” since yesterday’s action would leave many of Bears Ears’s crags unprotected.

But a judge might very well consolidate related suits. That is to say, it seems likely that the outdoor industry’s legal efforts will end up in a supporting and potentially symbolic role.

What, then, of the industry’s supposed newfound strength? Metcalf said yesterday amounted to a declaration of war. “I feel it’s like a Pearl Harbor-type event,” he said, “and it’s our job as citizens and industry to make those who did this rue this day by responding with incredible strength.” The North Face and Keen are financially supporting a “Visit With Respect” educational center near the outskirts of Bears Ears; yesterday Patagonia unveiled a banner on its homepage reading THE PRESIDENT STOLE YOUR LAND. It was widely circulated, yet its “Take Action” button did little more than allow visitors to fire off an indignant tweet.

Being woke and winning are different matters. These days, lasting victories come from the courtrooms and the ballot box. Hunter, at Patagonia, told me, “We’ve got to get involved in electoral politics.” To that end, the OIA has a political action committee that is seeking to back a few candidates in next year’s midterm elections. The Democratic Conservation Alliance PAC was founded earlier this year to capitalize on pro-public lands sentiment as well. And Metcalf, an independent, told me he is exploring the founding of a Utah-based political action committee to potentially target anti-public lands legislators in next year’s Republican congressional primaries and in the state’s county commission races. “We need to carefully pick campaigns and districts to get involved with,” he said. “The one thing we have to do is find candidates aligned with the public land agenda—and help them.”

The outdoor industry has until now proved effective at praising itself and raising money for feel-good causes. Whether it can organize its economic muscle into something more consequential remains to be seen. Yesterday, the president stripped away protections from many millions of inches of land. It happened on the industry’s watch.

Could Logging Reduce Wildfires?

28 Sep

One recent day, I found myself up near Seeley Lake, Montana, an empty vacation community. The air was, officially speaking, “hazardous,” or, as an air quality specialist memorably put it, “a hideous brown spiral of misery and despair.” It was the tail end of a long fire season. More than 1 million acres had burned, and in some parts of the state, it was so hot and dry after two months without rain that vegetation on rocks was catching fire. In Seeley Lake, more than 500 homes had been evacuated due to the 160,000-acre Rice Ridge Fire. “Stop smoking,” a cook in a Seeley Lake diner joked to her lone customer, as though such a thing were possible. On another day, at the nearby sprawling fire camp, I ran into a woman named Mary who had been evacuated. She was looking for a target for her frustrations and focused it on too-thick forests. “We haven’t been able to log,” she said. She blamed “people who don’t live here who have frivolous lawsuits.” And: “The owl or slug or whatever.”

The source of this animus was no secret. Since late August, Montana Rep. Greg Gianforte and Senator Steve Daines have been beating the drum advocating for increased logging on federally managed public lands. “Extreme environmentalists,” Gianforte has said, are to blame for bringing lawsuits that prevent logging on Forest Service land in order to protect habitat for endangered species. Arkansas Rep. Bruce Westerman is pushing a bill that would limit environmental groups’ ability to seek injunctions and exclude Forest Service land under 10,000 acres from environmental assessments under the National Environmental Policy Act (NEPA), opening up a vast amount of land to industry.

Interior Secretary Ryan Zinke, whose seat Gianforte filled, has written a memo advocating for “aggressive and scientific fuels reduction management”—longhand for getting the cut out. This week, at a meeting with an oil and gas group, Zinke reportedly said that President Donald Trump wants expedited permits for drilling and logging as of “yesterday.”

This strategy is unsurprising—politicians tend to think in electoral rather than ecological cycles. But they don’t seem to be aware that cutting won’t solve the problem. Much of the area consumed by the Rice Ridge Fire had previously been logged. “It’s not really a complicated issue,” says Mark Finney, a 55-year-old research ecologist at the University of Montana’s renowned Fire Lab, which is run by the Forest Service. “The solution to the fire question is more fire. It’s more fire of a different kind.”

Finney holds the Forest Service’s consensus view that a century of fire suppression has created dense low-elevation forests primed to burn. He says foresters can log sustainably there—as long as they light prescribed burns after the cutting’s done. “Preventative medicine,” Finney says, “is more effective than emergency response.”

Some scientists see the agency’s push for mitigation as problematic. Chad Hanson, an ecologist and director of the California-based John Muir Project, says the Forest Service’s scientists “are under a lot of pressure to not say things that contradict the Forest Service’s management program.” He holds that we should simply create defensible space around communities—essentially, massive fire breaks clear of fuel—but otherwise keep logging to a minimum and let large wildfires burn.

But Hanson doesn’t reside in Montana, where a lot of people live off the fire-industrial complex. Many of my friends, acquaintances, and sources in Missoula work for companies that receive government contracts: to survey hillsides, to slash and log the understory, to replant land with seedlings. That’s before you consider the hotshots who arrived this summer from as far away as Alaska and Tennessee for a healthy dose of risk coupled with high pay. (Wildland firefighters get time-and-a-half for overtime, plus an extra 25 percent boost in hazard pay.) The 28,000-acre Liberty Fire, near Arlee, Montana, cost the federal and state government $20 million; the Lolo Peak Fire (53,900 acres) cost $48 million; the Rice Ridge Fire, by Seeley Lake, $47 million. For a state with dearly held notions of rugged individualism, Montana feeds pretty vigorously from the government’s trough.

The fire science community, like any such group, contains a degree of internecine dispute. But both Hanson and Finney agree on the fundamental fact that more acreage needs to burn. During our meeting, Finney tells me we need “about five times” more acreage to burn per year than we see on average. Politicians were calling the season catastrophic, as were many publications, this one included; Finney, like most of his colleagues, wanted to see more fire. “There’s a lot of good burning going on right now,” he says. The trick will be adding actual fire science into the politicized rhetoric.

Outside Finney’s office, white government pickups and the camo Humvees of the National Guard zoomed around. Western Montana had the feeling of mild invasion that marks most disaster zones, wherein a faraway force is summoned to save the locals. Some of the money for the cavalry came from the Federal Emergency Management Agency—and a new bill in Congress would make those funds even more readily available—but most of it came from the Forest Service. The agency has spent more than $2 billion suppressing wildfire this summer, the most expensive fire season in history. Doing so, the Forest Service has engaged in a practice called fire borrowing, meaning the agency takes from funds that would be otherwise used for, say, mitigation projects like thinning and prescribed burns. “The harder we fight,” Finney says, “the worse it gets, and the more we have to fight.”

Logging on its own won’t help that. The congressional delegation’s bluster sounds somewhat akin to a city planner complaining about traffic while pitching a bunch of new six-lane highways. It treats fire as affront—something that happens to us—rather than facing the more confounding heart of the matter: that fire is a part of our habitat, and we’ve exacerbated it by snuffing out blazes and contributing to a warmer, drier climate. In recent years, groups like the Nature Conservancy and the Wilderness Society have partnered with local communities to work toward developing cooperative efforts to thin underbrush, perform controlled burns, and create defensible space. In theory, this kind of work could create a more diversified fire-industrial complex, one in which firefighters make their money before things turn deadly. But cooperative efforts are now being drowned out by a war of words between Montana’s politicians and its more litigious environmental groups, raising the prospect of another round of timber wars—the court battles between activists and industry that fractured Montana in the 1990s. “There’s a better way than to battle it out in court,” says Jordan Reeves, of the Wilderness Society.

To hear the scientists tell it, logging itself won’t offer much benefit unless we start making better use of prescribed fire. Lacking it, we might simply be able to expect more invasions of the cavalry. Which suits some Montanans just fine. Just before it snowed last week, one wildland firefighter, who asked not to be named, told me, “We’re rounding third base and heading for home.” He smiled. “But you want to stay on third base as long as possible.” This is what they say smoke smells like in Montana: money.

Montana’s Wildfires Are Raging and Barely Contained

8 Sep

This weekend, the community of Seeley Lake, Montana, was supposed to be hosting the Norman Maclean festival, in honor of the author of A River Runs Through It and Young Men and Fire. Maclean wrote the book that made Missoula’s rivers famous in a cabin here; his son, John, has used the cabin as a base while writing about deadly wildfire. But the festivities have been moved to Missoula, where the smoke is a little less thick.

Much of Seeley Lake has been evacuated due to the Rice Ridge Fire, a 120,759-acre fire that’s been burning since July 24, has so far cost $32.6 million, and is just 5 percent contained. Its western edge is just a couple miles from the high school. Just about 15 miles to the west is another blaze, the Liberty Fire—current size and price tag: 23,053 acres and $16.6 million. Seeley Lake has become a makeshift operating base for an interagency team of 725 Forest Service firefighters, water tenders, and excavator operators, as well as private contractors, all working long hours through one of the most devastating fire seasons in recent memory.

Women and men from the National Guard zip around in fatigues, while in Cory’s Valley Market firefighters with smudged faces and cargo pants buy soda. The air has a thick and pale yellowish sheen. An air quality specialist recently dubbed it “a hideous brown spiral of misery and despair.”

“If the fires weren’t going we’d probably be in a hurricane,” a public information officer for the Forest Service named Mike Cole told me, with something like a sigh.

With the Gulf recovering from a deadly hurricane, Florida preparing for one, and Mexico rattling from a magnitude 8.2 earthquake, it’s easy to forget that the West is on fire. Large swaths of Oregon, California, Washington, Idaho, and Montana are burning. In Montana, more than one million acres have burned, and some residents have complained about a lack of attention from national media. Yesterday on the radio, an expert cheerily noted that it’s so dry in Glacier National Park that rocks are catching fire. The moon is the color of a plum, the sun a bit lighter.

This summer, two firefighters have lost their lives in Montana, one of them a 19-year-old hit by a tree near Seeley Lake in July. So far, further tragedy has been avoided, but only just: last Saturday, three firefighters (including two hot shots) on the Liberty Fire temporarily deployed their shelters before winds shifted, allowing them to escape to a safe zone. They’ve since left Montana, replaced by the next round of cavalry. The flights in here are full of firefighters—from West Virginia, Vermont, New Hampshire, all coming to do their 14-day stint on the line.

The weather forecast suggests that they’ll keep arriving for the foreseeable future. The smoky inversion hovering over the area has made for grim breathing, but it’s scheduled to lift this afternoon, bringing new worries: the forecast calls for potential thunderstorms, followed by winds that could fuel the flames. “Stay tuned,” Cole said, “when the weather changes.”  

Patagonia’s Big Business of #Resist

24 Jul

On February 16 of this year, the outdoor industry transformed. This wasn’t due to a first ascent, a remarkable new piece of gear, or some surprise merger of iconic companies. Rather, what happened that morning was the most mundane of modern American rituals: a conference call. Around 15 minutes into the conversation, a 52-year-old businesswoman from Staten Island, New York, declared war on the ruling party of the United States of America.

The call included Utah’s Republican governor, Gary Herbert, the leadership of the Outdoor Industry Association (OIA), and top executives from Patagonia, the North Face, and REI. They had convened to discuss the Utah congressional delegation’s efforts to roll back protections for America’s federally managed public land—­specifically, ­President Obama’s designation of the Bears Ears National Monument, a 1.4-million-acre swath of high desert considered sacred by local tribes. For the outdoor industry, attacks on public land constitute a dire threat, since that land provides the 610-million-acre ballpark for gearmakers’ $887 billion game. Among the Republican establishment, public land has become a primary target. In the party’s 2016 platform, the GOP demanded the transfer of some federally managed land to the states.

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The stakes for the conference call may have been high, but expectations were not. Salt Lake City had hosted the industry’s semiannual trade show, Outdoor Retailer, since the mid-1990s, with the event drawing some $45 million to the state each year. That kind of money can buy influence, but within Washington’s halls of power, the outdoor industry had long been seen as a self-licking ice cream cone: easily pleased with itself and unable to withstand even mild heat.

“They don’t like conflict,” one Capitol Hill insider told me in early February. “I don’t think they have the gumption for the fight.” That harsh assessment was widely shared. In the weeks leading up to the call, Peter Metcalf, the founder of Black Diamond, worked behind the scenes to push the OIA to get serious, writing an op-ed in the Salt Lake Tribune suggesting that the group pull its show out of Utah “in disgust” if the state didn’t end its “all-out assault … on America’s best idea.” But it wasn’t the first time that Metcalf had proposed secession. “I think we get a similar letter from Peter every six months,” Utah’s lieutenant governor told a public-radio reporter afterward—a rhetorical pat on the head. 

Things took a hard turn when Yvon Chou­i­nard, the 78-year-old iconoclast and ­founder of Patagonia, announced that his company would boycott future shows if Utah didn’t change its stance on Bears Ears. Arc’teryx and Polartec soon followed. On the call with Governor Herbert, the industry was led by Amy Roberts, the executive director of the OIA, who soon turned the floor over to Patagonia CEO Rose Marcario—the ­woman from Staten Island. The industry leaders were demanding that the governor publicly reject his congressional delegation’s calls to gut the Bears Ears protections, and Marcario calmly explained the seriousness of their conviction. “Just on this call right now, the CEOs represent a little more than $5 billion in revenue,” she said, “and it’s rare we come together galvanized in this way. This is not a political issue or a ploy or anything like that. It’s a moral issue for us.” Scott Baxter, the president of the North Face, echoed Marcario, as did Jerry Stritzke of REI. After some 40 minutes, Herbert refused to meet the demand. The industry leaders thanked him, signed off, and started looking for a new home for their $45 million prize. 

Rose Marcario, CEO of Patagonia. (Spencer Lowell)

The effect was something like a kick from a blinkered horse. Herbert’s office quickly made statements regarding the “offensive” decision and complaining about the industry’s “gross ingratitude.” Colorado governor John Hickenlooper amped up his bid to lure the show to his state by professing his support for public land. (His efforts would eventually be successful.) In Montana, senator Jon Tester said that the industry had sent “a hell of a message.” New Mexico senator Martin Heinrich called it “a juggernaut of economic force.” Neil Kornze, the director of the Bureau of Land Management under President Obama, told me, “It was almost like a phoenix rising.” 

The only person, it seemed, who wasn’t impressed was the man in charge of the company that made it happen. A couple of weeks after the call, I traveled to Patagonia’s campus in Ventura, California, a collection of stucco buildings that manages to be understated despite the fact that it is taking over one side of town. Chouinard and I met in a conference room adorned with paintings of Yosemite National Park. He did not exude optimism. “Welllll,” he sighed from his belly before discussing the impending collapse of the American empire, the importance of lentils as a cover crop, his support for California’s withdrawal from the Union, or “those assholes at Forbes magazine,” who had recently labeled him a billionaire. 

Billionaire. To Chouinard, that’s borderline libel. For decades he has professed to loathe growth. Still, the hard fact remains that the Responsible Company—the title of Chouinard’s 2012 book—is on track to be a billion-dollar global enterprise within the next couple of years.

When I asked about the industry’s newfound clout, he rubbed his head and let out a short, rueful laugh. “You know,” he said, “it’s a real weenie industry. These people are scared of their own shadow. I mean, it’s really a disappointment.”

In short order, he criticized the fishing industry, the surfing industry, and REI for failing to give enough money to environmental causes. “The whole outdoor industry is just run by a bunch of weenies,” he went on, “And they’re not stepping up. They just suck the life out of outdoor resources and give nothing away.”

He wanted me to know something else. “There’s nobody outside the company that understands what we’re doing here,” he said. “They just don’t understand.”

Almost anyone who has flipped through one of Patagonia’s famous catalogs—which is to say, everyone in the outdoor industry—has come across the company’s mission statement: “Build the best product, cause no unnecessary harm, use business to inspire and implement solutions to the environmental crisis.” People close to Patagonia say that this treasured culture hasn’t changed and that Chouinard talks about the same things in the boardroom today that he did 30 years ago. 

But a close examination reveals an enormous recent shift, one that could upend the outdoor industry and have a broad-­reaching impact on American politics and business practices. In his bestselling 2005 book, Let My People Go Surfing, Chouinard wrote about maintaining “a controlled growth rate of about five percent.” Since 2009, a year after Marcario was hired as CFO, ­annual growth climbed to 14 percent, according to Fortune. Patagonia says that revenue and profits have quadrupled over the past ­seven years. In 2016, sales jumped 18 percent, according to the company—more than three times REI’s growth rate. The North Face, meanwhile, declined by 2 percent, to $2.3 billion. Patagonia now controls 9 percent of the outdoor industry’s apparel market, a figure that doesn’t include the company’s massive direct-to-­consumer business. To many competitors, it seems that Chouinard and Marcario have removed the governor that had long restrained the brand’s revenue engine. 

To hear Chouinard and Marcario explain it, Patagonia is simply responding to a natural demand for products made by companies with an environmental and social conscience—a well-known preference among millennial consumers. “What we are doing is stealing other companies’ business,” Choui­nard told me in Ventura. “The outdoor industry is not in good shape. You do the right thing, it leads to more business. What am I going to do, say no?”

That struck me as a typical Chouinard answer—incisive, self-effacing, devil-may-care. But Patagonia’s growth is no coincidence. The brand now encompasses a venture-capital fund that supports green startups, a food label, book and film divisions, and, most visibly, a politically active environmental arm that’s picking public fights with the Trump administration, starting with Bears Ears. Those battles are fought on principle, but they also ­directly jolt the bottom line by energizing Patagonia’s fast-growing customer base. This business model goes far beyond 1% for the Planet, the corporate-­giving program Chouinard cofounded in 2002, or earning B Corp certification for meeting high standards for environmental impact, accountability, and transparency. Patagonia has become something like a for-­profit development organization, attempting to inject its ethos into more and more aspects of the global economy. Each of its branches helps expand the brand’s do-gooder image, which in turn attracts new consumers, boosts revenue, and allows the company to push its progressive agenda even further. 

“In the end,” says Marcario, a no-­nonsense woman with a quick laugh, “the great brands will be the ones that have vision to face facts square in the eye and take action—radical action.” 

When I asked Chouinard what people outside the company don’t understand about Patagonia, he said, “How serious we are about basically saving the planet.” 

Of course, such grand ambition requires enormous resources. In the global scheme of things, Patagonia touching the hem of $1 billion essentially elevates it from featherweight to lightweight. For the near future, the company cannot compete with the political influence of, say, the oil and gas industry—a primary opponent in the public-land fight. Continued rapid growth could eventually change that—the company’s investment fund, Tin Shed Ventures, has nearly quadrupled in size since 2013, from $20 million to $75 million. For now, though, Patagonia’s power lies mostly in its ability to revolutionize the outdoor industry—the nascent phoenix, which, at nearly $1 trillion, has the cash and the customers to influence national policy. But it remains to be seen whether other companies in the industry are committed to sustained political activism and are willing to follow the lead of a man prone to calling them out as weenies. 

And if Patagonia ends up forging ahead alone, one wonders just how much can be expected of a company that gives its employees every other Friday off to surf.

Patagonia's campus has the feel of a food co-op crossed with a ­liberal-arts col­lege crossed with a surf shop. Its defin­ing elements include a next-­generation gear lab and a day care center. Employees enjoy nothing more than sharing Yvon stories, like the one about him sleeping in the back of an old Honda Element during a recent fishing trip, or the one about him climbing over the fence to the seaside community where he has a home after forgetting the gate code.

But Chouinard no longer does much of the heavy lifting. Marcario came to the company in 2008, following a career in private equity and the tech industry that included a stint as the CFO of Apple offshoot General Magic. After taking a few months to travel around India, she applied to Patagonia with some trepidation, because she had heard “that Yvon hated bankers and finance people.” Over the course of her interviews with him, she questioned Patagonia’s lack of growth. “I remember saying it seemed like the company was super small compared with what it should be,” she says. “He said that it was ‘controlled growth.’ I remember challenging him—saying, Well, maybe it’s just that you’re not fulfilling demand.”

Growth has long been a touchy subject at Patagonia. In 1991, with the country in a recession, Patagonia’s sales were well short of expectations and Chouinard laid off 20 percent of his staff. Afterward, he resolved to avoid debt and pursue only natural growth. “Growth for growth’s sake is not a goal,” says former CEO Kris Tompkins, who still sits on Patagonia’s board. Chouinard and his wife and cofounder, Malinda, Tompkins says, “want a high-quality company based on the criteria they set, and the size it becomes is the size it becomes.”

For decades, Patagonia sought to demonstrate that profitability and environmentalism can go hand in hand—to show a better way by, for example, encouraging fair-trade practices in foreign factories. The company advised Walmart, helping the retail behemoth clean up its supply chain, and worked with Nike to create the Textile Exchange, a nonprofit that encourages more sustainable practices in the apparel industry. Chouinard now believes that he was mistaken in trying to influence publicly traded companies. “I was pretty naive thinking you could do that,” he told me. 

Marcario presented an alternative: grow Patagonia into a much bigger brand so that everything it did would have greater impact. She was uniquely qualified to make this argument. In her youth, she was an outspoken progressive activist, arrested during protests on issues like LGBT rights, AIDS, and women’s health. “She understands the need for revolution,” Chouinard has said. But she also understands business. Upon taking the CFO job, she streamlined distribution and shipping, installed industry-standard software, and focused on improving e-commerce. “Doing things that, you know, like, retailers do,” she laughs. During her first year, in 2008, the global economy crashed, but Patagonia—and much of the outdoor industry—didn’t: the company experienced growth in the high single digits. Casey Sheahan, Patagonia’s CEO at the time, told me that this was due to people “aligning themselves tribally” at a time of strife. It was a hint of the opportunity that would come with the rise of Trump.

Sheahan also told me that, at the time he left Patagonia, more than 50 percent of the revenue came from direct-to-­consumer business via Patagonia’s stores and e-­commerce. He suspects that the percentage is bigger today. (The company wouldn’t confirm or deny this.) Selling directly to a consumer, rather than through a third-party retailer like or REI, ­increases both revenue and influence. According to Joe Flannery, a veteran outdoor-industry marketer and senior VP of technical apparel for Newell Brands, which owns Marmot and Coleman, Patagonia’s direct-to-consumer sales “represents one of the most powerful mechanisms of any brand. When you have that direct interaction, that means the consumer is digesting what you’re saying.”

In 2011, Patagonia ran a full-page ad in The New York Times showing a piece of the company’s apparel below the headline “Don’t Buy This Jacket.” The ad made the case that customers should audit their own consumption, but as The New Yorker ­noted in a 2016 story, “The slogan sounded an ­awful lot like ‘Buy this jacket, not that other one, from the North Face.’” In 2012, the year before Marcario was appointed CEO, Patagonia had rebooted the Footprint Chronicles, an online tool that allows customers to track goods through its supply chain, adding cotton farms, updating it for mobile, and integrating it with its e-commerce site. 

“That was a defining moment,” says Flannery. “From the time they did that, track their market share and you’ll see there are clear winners and losers.” His own employer has taken a cue: in 2016, Marmot paid a fortune for a cheeky Super Bowl commercial. This fall the company is beginning an initiative to green its manufacturing practices called TreadLight, which includes a new technology that reduces the use of chemicals and water in the making of rainwear. 

Members of Patagonia’s marketing and environmental-activism teams reviewing monuments threatened by the Trump administration. (Spencer Lowell)

In 2012, Chouinard also started Patagonia Provisions, an environmentally conscious food endeavor that sells wild Alaskan pink salmon, organic grains, and beer made with Kernza, a perennial wheatgrass. In 2013, Marcario launched the company’s venture fund to create companies offering the kinds of things Patagonia both believes in and would like to use, such as water-free textile-­washing machines and bison raised on family ­ranches. To manage the fund, she hired Phil Graves away from the financial-consulting giant Deloitte. He is one of a growing cadre of key players who don’t exactly fit ­Patagonia’s classic dirtbag-climber mold. Others include general counsel Hilary Dessouky, formerly of Levi’s, and public relations director Corley Kenna, who previously was a VP of commu­ni­cations for Ralph Lauren and deputy research director of Hillary Clinton’s 2008 presidential campaign.

The company also used its tax equity to invest more than $60 million in residential rooftop solar projects and poured money into film, producing a full-length documentary called DamNation about the ills of hydropower. It was beautifully shot and unapologetically strident, a common trait in Patagonia’s expanding media line. (Disclosure: Last year I edited a Patagonia book about bears in Mongolia.) The environmental-activism team now has a staff of 14, up from eight in 2012. During the 2016 presidential election, Patagonia hosted a series of voter-education events linked to environmental issues at its 30 nationwide retail locations. On election day, it closed all its offices and stores. When Trump won, the company opted to give away all its profits on Black Friday to environmental groups. Sales totaled $10 million, and Patagonia attracted 25,000 new customers. 

“You can’t buy advertising like that,” Chouinard says. He adds, “I didn’t realize how much power we have. And to not use it would be irresponsible.”

This is what real corporate power looks like: The Koch brothers’ network of nonprofit organizations persuading members of Congress to sign a pledge not to vote for climate-change legislation unless it includes a tax break. Apple forcing utilities to adopt renewable energy when negotiating locations for its sprawling data centers. 

Patagonia does not have that kind of ­power. Jigar Shah, a clean-energy entrepreneur and author of Creating Climate Wealth: Unlocking the Impact Economy, calls Patagonia one of the world’s five most influential companies when it comes to the environment. Competitors, he said, are “embarrassed” when Patagonia dreams up things like its Black Friday sale. But influence and power are different. When I asked Shah about the possibility of the company driving large-scale global change on its own, he said, “You and I both know they can’t.”

In some circles, Patagonia is viewed like $20 hand-roasted coffee at the farmers’ market—excellent but not easily scaled. A veteran of the solar-funding world noted that while Tin Shed Ventures backs admirable projects, they tend to be small, uncompromising, and “more likely to create good stories than impactful results.” Miriam Horn, an agriculture and fisheries expert at the Environmental Defense Fund and the author of Rancher, Farmer, Fisherman: ­Conservation Heroes of the American Heartland, told me: “I’m still waiting to be convinced by Patagonia Provisions. They have the right goals, worrying about carbon sequestration and soil, but their approach seems ­boutiquey.” M. Sanjayan, the CEO of Conservation International, called Patagonia “a pointy stick that you can use in a smart way.” He added, “We’re all happy they’re around and love wearing their stuff, but the conversation around the table with big players is not with Patagonia.”

Marcario and Chouinard say they’re playing a longer game. At its core, Patagonia has always been a company of invention, and with many issues they appear to be looking toward a far-off, more hopeful future. At times this can make them a lonely voice. In February, Kenna, the public relations director, who has good relationships on Capitol Hill, traveled with Lisa Pike Sheehy, Patagonia’s VP of environmental activism, to Washington for a series of meetings on public land and agriculture. When I was in Ventura, they debriefed Marcario inside Patagonia’s executive office. Marcario wore flip-flops and spoke quickly, tapping her left leg, laughing often, and dropping the occasional f-bomb—like when discussing the U.S.’s “fucking interests in fossil fuels.” Despite Patagonia’s bullishness about regenerative ag, Pike Sheehy said, the phrase was “fairly absent” during her Beltway meetings. Kenna had spoken with the chief of staff for Jon Tester, Montana’s Democratic senator, who is an organic farmer. Even so, Kenna said, “This wasn’t something they were talking about, and here’s an organic farmer in the Senate!”

The most promising takeaway from the trip was something Pike Sheehy heard Salt Lake City mayor Jackie Biskupski say during a presentation for environmental funders, shortly after the OIA had officially announced that it would be pulling Outdoor Retailer out of Utah. The mayor spoke about the growing ability of the outdoor industry to flex its economic muscle—and how that’s going to hurt. Pike Sheehy added, “It was exciting for me, as someone who’s been attending these meetings for over 15 years, to have the outdoor industry even mentioned as one with power. It was like a quantum leap.”

Indeed, the industry’s hardball strategy with Utah caught the attention of significant forces on the other side of the public-land issue. In March, The Wall Street Journal ran an editorial slamming Patagonia, titled “Utah Faces Down the Rock-Climbing Industrial Complex”—a sign of respect, it seemed. The author, Terry Anderson, of the Montana-based Property and Environment Research Center, which has taken funding from the Charles Koch Foundation, complained about the “enormous subsidy from the American taxpayer” that outdoor companies receive in the form of federally managed land. 

Corley Kenna (left) and Lisa Pike (right). (Spencer Lowell)

This April, the OIA released a statement claiming that the industry generates $887 billion in annual domestic consumer spending, supporting 7.6 million jobs. Despite those numbers, the OIA has yet to embrace the dirty tools of real political influence. It has just two registered lobbyists, compared with the army working for oil and gas. But according to Sally Jewell, the former interior secretary and CEO of REI from 2005 to 2013, the industry “can compete with people.” She means that in a practical way. This spring, Jason Chaffetz, the outgoing Utah congressman, withdrew a bill that would have transferred millions of acres of federal land to the states, after hunting and fishing groups staged rallies opposing the measure. 

REI, with a membership of 16 million—more than three times that of the NRA—is theoretically capable of exerting enormous pressure on lawmakers. With Bears Ears, it made a strong effort to do just that. During the Interior Department’s open-comment period on national monuments in the spring, REI sent out mass mailings to its members and produced an advocacy video for YouTube, generating what it says were 20 percent of all comments filed in the first week. Other brands threw their weight behind the cause, with the North Face doing an all-out social-media push to get customers to send their thoughts to the government through the Monuments for All website. Patagonia invested some $1.7 million in a Bears Ears campaign that included newspaper ads, a virtual-reality film, and a banner ad across the top of the New York Times website. It also launched an online platform that allowed users to send a comment directly to the Interior Department with a single click, resulting in some 150,000 submissions. Despite all that, interior secretary Ryan Zinke in June issued a report recommending that President Trump shrink the monument. 

It’s one thing for outdoor companies to align on protection for public land, but it’s another entirely for them to put effort into the many issues that Patagonia seeks to champion. As REI CEO Jerry Stritzke put it to me, “We stay away from political matters” that aren’t central to the outdoors. He likes to talk about bipartisanship. So does Scott Baxter of the North Face and Amy Roberts of the OIA. Many brands in the industry serve a diverse constituency, selling products to both crunchy backpackers and swing voters. These companies face enormous risks by taking sides. Some of them saw the very public rift with Utah as a mistake. “There’s no lack of companies that are not ­happy,” said Peter Metcalf, the Black Diamond founder and Chouinard protégé. Jewell told me that, rather than taking an intransigent stance with Governor Herbert, “I would have been inclined to more diplomacy.”

Here lies a critical fault line. Patagonia aims to galvanize the industry during a time of crisis, but it insists on an uncompromising path of resistance. It’s a strategy that makes sense, given that the brand sells all those LIVE SIMPLY hats and T-shirts to a grassroots base that feeds on liberal outrage. Patagonia can gain only by fighting with everything it’s got. “Why should we kowtow to these redneck voters and Republican politicians?” Choui­nard asked when I met with him in early March. “The most you can achieve is a compromise, and that never solves a problem.”

This spring, the OIA was exploring plans to launch a nonprofit organization focused on public land and climate. When I asked Marcario if she would join, she responded carefully: “I’d like to see what they propose.” In a conversation with Patagonia VP of human resources Dean Carter, I wondered how Marcario and Chouinard would do sitting around a table with more politically cautious companies. He envisioned the industry’s larger players “wanting to be in a safe space, and Rose and Yvon going the opposite direction—‘screw safe,’ ” he said. “It would just drive us nuts.”

If you want to fight the power on your own, there’s one proven approach: take the bastards to court. Just hours after Zinke issued his recommendation that President Trump downsize Bears Ears, Patagonia announced plans to sue the administration should it issue any order diminishing the monument’s protections. In a public conference call alongside Navajo Nation attorney general Ethel Branch and New Mexico senator Tom Udall, Dessouky, Patagonia’s lead counsel, said, “We believe strongly that this is a step we need to take on behalf of our customers.” 

The company had spent months planning for legal action and settled on a bold approach. It would seek standing to sue on the grounds that, as Dessouky later explained to me, for Patagonia “finding environmental solutions through business is as important as selling clothes.” She added: “We have an obligation as a benefit corporation to have a material effect on the environment.” This is an untested strategy. In many ways, Pata­gonia would be asking the courts to vali­date Choui­nard’s alternative ­economic universe, the ambitious model of responsible capitalism that has been his life’s work. 

Legal experts I spoke to suggested that such a filing could be a long shot. Dan Farber, an expert on legal standing at the University of California at Berkeley, said that he thought the argument regarding the company’s focus on finding environmental solutions “seems problematic, because it’s not firmly connected to any particular parcel of land or administrative action. If I were in the government, I’d argue that it’s like ­Exxon saying they have standing to challenge anything that lowers the amount of driving people do.” Amanda Leiter, a law professor at American University who has worked in the Department of the Interior, argued that it “isn’t sufficient just to say we’ve spent money advocating one side of the issue.” 

Still, just the threat of the lawsuit fueled speculative news stories. The week Patagonia announced its strategy, the Huffington Post ran a piece titled “Patagonia’s CEO Is Ready to Lead the Corporate Resistance to Donald Trump.” Shortly after, Breitbart News, the conservative site formerly run by White House strategist Stephen K. Bannon, published two attack pieces, one noting that “extreme environmentalism is far from the only liberal activism in which the company has engaged.” No one at Patagonia disputed this statement. Why would they? You can’t buy advertising like that. 

The courts probably won’t end up ruling on Patagonia’s right to sue, one way or the other. Should Trump issue an order to shrink Bears Ears, immediate legal challenges will be filed by native tribes and multiple environmental NGOs. According to Mark Squillace, an expert on natural-­resources law at the University of Colorado, the courts will likely ask all plaintiffs with similar complaints to combine their briefs—only one plaintiff needs to qualify for a suit to go forward.

Patagonia is already financially supporting a coalition of nonprofits preparing to seek an injunction against any order reducing the size of Bears Ears. Joining a multiparty suit that may well drag on for years will demand many more dollars. Marcario is fine with that. “We need to win,” she told me sternly. “I’ve said to the outdoor industry, ‘We have to be as relentless as the NRA.’ We cannot give up an inch of protected land on our watch. Not an inch.” She added: “This is why our brand exists.”

In 1995, Yvon Chouinard wrote an essay outlining his vision for the future, called “The Next Hundred Years.” He shared candid reflections about grappling with whether it would do more good to give the company’s money away and check out, or to stay in the game to continue forwarding the business model. He settled on the latter. “If you want to change government, change the corporations, and the government will follow,” he wrote. “If you want to change corporations, change the consumers.”

One could argue that Patagonia has already done this. Chouinard may think that consulting with Walmart was a waste of time, but the retail giant has remained on a ­greener path, recently announcing its intent to remove a gigaton of carbon from its supply chain. Talk to anyone in the outdoor industry and they’ll tell you that Patagonia’s ­efforts overseas have improved labor practices from Sri Lanka to Vietnam. In 2018, during the midterm elections, Patagonia plans to turn its retail stores into get-out-the-vote centers. Meanwhile, everyone from Marmot to Orvis has launched a philanthropic wing.

The question now is what Patagonia could accomplish if it became a Nike-size megabrand. Rather than having an influence on 81 factories worldwide, as it currently does, it could influence practices in thousands of facilities, giving Marcario a seat with heads of state. Patagonia’s film division would be able to compete with Participant Media, producer of An Inconvenient Truth and Fast Food Nation. Patagonia Provisions could fill the aisles of Whole Foods with enough wild salmon that it has the economic clout to deny new dams or mines in Alaska and British Columbia. “If they became gigantic and other businesses that weren’t as progressive were displaced, that would be a good thing,” say Auden Schendler, VP of sustainability for the Aspen Skiing Company and a leader in the outdoor industry’s efforts to address climate change

That kind of power would create many more scenes like the one I witnessed in May at the company’s distribution center in Reno, Nevada. Patagonia has a staff of about 500 there and was unveiling a new child care facility. At 9 a.m., Marcario took a tour of the building with senator Catherine Cortez ­Masto, the Democrat who was ­elected to fill Harry Reid’s seat last November. The women walked to an outdoor patio full of local-news cameras and Patagoniacs in plaid, then took their places in front of a small ­gazebo adorned with the company logo. Rick Ridgeway, Patagonia’s VP of environmental affairs, introduced Marcario as the “chief activist officer” and praised her as the person who had “scaled the business.” He ­added: “We are now a global leader.” Marcario leaned forward slightly, smiled, and blinked, her hands held behind her back. Marcario said, “When CEOs ask, ‘How can I get more ­women on my board? How can I get more women in management?’ I say, ‘Start a child care center.’ ”

The senator took the mic. She talked about Patagonia serving as an example for business and called the Reno center “a jewel.” Then she pivoted, placing a hand on her heart and saying, “I’m so glad Patagonia is leading that fight to protect our public lands. Believe me, that fight is just beginning.” 

Meanwhile, back in Ventura, the Pata­gonia army will surely continue to take breathers from the battlefield. During one of my visits to the campus, I witnessed an adventure race that had employees sprinting through the streets of the city in spandex and tutus. A traveling artist joined in, ­declaring without irony, “Adventure is my medium.” On another night, I had dinner with a group of young staffers at a seafood joint. After a couple of beers, I asked them what they thought of the word “Patagucci,” the pejorative used to characterize the company’s prices. A long silence followed. Then a bearded guy who works in marketing said, “I take offense to it. That’s a bit of a bummer. There’s a reason why Patagonia costs so much.” The term, he said, “hurts me.” One of the company’s top designers backed him up: “Fantastic answer. I aggressively agree with that.” Then he added, “If we can get people inspired and having new experiences—­‘revolution’ might be too strong a word,” he said. “But I don’t think it is.” 

Then they all started telling Yvon stories: About the time he tied a muffler to a car with a piece of fishing line. About the time he told a staffer to skip a flight because a TSA agent threatened to confiscate a fly box. About the fact that he doesn’t use computers or cell phones. They were striving, it seemed, to prove Patagonia’s authenticity by connecting the founder’s rugged past with the company’s shiny present and unknown future. It was at once sweet, plaintive, and a little cultish. But still—who would you rather buy your jacket from?

Abe Streep (@abestreep) is an Outside contributing editor.