National Monuments Under Threat
“This battle is over some of the most valuable public lands in America—and, it is over the rule of law. Everybody has to comply with the law, even the president of the United States.”
An executive order by President Trump put a slew of national monuments on the chopping block. Some of our nation’s most cherished lands and waters are at risk, including Utah’s Bears Ears and Cascade-Siskiyou National Monument in Oregon. On September 12, 2017, Earthjustice senior staff Heidi McIntosh, Tracy Coppola, and Drew Caputo, discussed Earthjustice’s strategies to save these natural and cultural gems from the political wrecking ball. The conversation, a teleconference with Earthjustice supporters, was moderated by Minna Jung.
Today, we are here to talk about national monuments: the special public lands across our country that have been set aside and protected for public use, such as Grand Staircase-Escalante, Bears Ears and Mojave Trails, just to name a very few examples of these wonderful places. And, the reason why we are talking about national monuments today, and so much recently, is because of the threats to these monuments from the Trump administration.
With us today is Heidi McIntosh, managing attorney of Earthjustice's Rocky Mountain office in Denver. Heidi came to Earthjustice in 2012 with more than two decades of environmental litigation experience. She has worked on cases ranging from threatened and endangered species protection, to fending off efforts to designate roads and off-road vehicle trails in Utah's wild canyon country.
We're also joined today by Tracy Coppola. Tracy is a senior legislative counsel with our Policy and Legislation team in Washington, D.C. Her work covers public lands, including national forests, Bureau of Land Management lands, and national parks. Tracy has a decade of experience in legislative and administrative advocacy, and organizing at the federal and state levels.
And, we have Drew Caputo, who is our vice president of litigation for Lands, Wildlife and Oceans. Drew leads Earthjustice’s expansive docket of litigation to protect the nation's public lands and cherished wild places, irreplaceable species, and ocean fisheries and habitats.
What are national monuments? How are they created?
National monuments are unique among the special and protected land designations on federal public lands, because they are created pursuant to a special, but narrow, grant of authority to the president to regulate federal public lands.
Under the Antiquities Act, the president can essentially sign a proclamation to protect certain areas as national monuments. Once he signs the proclamation, those monuments get immediate protection, and they have to be managed to preserve the special values that are present on the monument.
Areas that qualify include sites of historic or cultural significance, or areas of scientific interest—like a region of unusual geologic formations, or areas with ecological or biological significance. There's no size limit on national monuments. They could be as small as a few hundred acres or as large as millions of acres.
And since its enactment, the Antiquities Act has been used more than 150 times to designate and protect national monuments. And some of our western icons—like Grand Canyon National Park, or Bryce National Park, or Zion and Arches National Parks—began life as national monuments. But others have remained national monuments for many decades and have become world-renowned, like the Grand Staircase-Escalante National Monument.
What are the threats that are facing national monuments today?
Members of Congress—primarily from the Utah delegation, but others as well—who are opposed to monuments, have asked the president to rollback monument designations, with particular monuments in their sights. And those include the Grand Staircase-Escalante National Monument and the Bears Ears National Monument in southern Utah.
The president began a review process and directed the Secretary of Interior to review all monuments designated since 1996 and over 100,000 acres in size, and to make recommendations about their fate.
Why 1996? 21 years ago seems like an odd benchmark. But that's no coincidence that's the year President Clinton designated the Grand Staircase-Escalante National Monument, just north of the Utah-Arizona border, which has magnificent canyons, towering plateaus, and a fossil record found nowhere else in the world.
But, it also has a large coal deposit. President Clinton designated the monument to protect it from coal development. And now, of course, President Trump, we believe, is eager to reverse that protection, so he can open up that area to mining.
Bears Ears is also on the chopping block. This is really a magnificent place. It's also close to my heart. Native Americans have lived in this canyon complex for thousands of years, and early communities left cliff dwellings, granaries, rock art, pottery, burial sites, and all kinds of other artifacts—all of which face ongoing threats of looting and vandalism. And as a result of consultation with a coalition of five tribes from the Four Corners areas, President Obama designated the monument last December.
These and other monuments are at risk. Secretary Zinke submitted a report and recommendations to the president about the fate of these monuments on August 24. But it hasn't been released to the public yet. So, we're a little in the dark—although we're pretty confident that those Utah monuments, and likely Cascade-Siskiyou National Monument in Oregon, are all on the chopping block.
On Earthjustice’s decades-long work defending national monuments and developing the law on national monument protections.
National monuments are an important conservation feature. Across the nation, and particularly in the West, there are a large number of national monuments that are very popular and provide important protections.
Ongoing conservation of national monuments is a priority for the conservation community here in the West. We've long partnered with groups, like Southern Utah Wilderness Alliance, Sierra Club, The Wilderness Society, and others, to ensure that monuments get the protections that they deserve.
For example, we've been working since the 1990s to protect the Grand Staircase from ongoing threats from grazing, off-road vehicles, and new roads. We helped our partners as they engaged in the management planning process for the monuments. I started working on the Grand Staircase before it was a monument, early in the 1990s, challenging a proposed coal mine, in the heart of what would become the monument, on the Kaiparowits Plateau.
Over the years, we've really tried to focus efforts on developing the law on national monument protections. We've brought suits to heighten the protections of the Upper Missouri River Breaks National Monument in Montana, and the Vermilion Cliffs and Grand Canyon-Parashant National Monuments in Arizona.
Because of the importance of the issue and our longstanding work and partnerships on monuments, we're playing a leading role in defending the monuments against what we expect to be a pretty broad attack by President Trump on individual monuments.
But we're also concerned about the viability and ongoing historic importance of the Antiquities Act as a tool to ensure that places that need protection, get it. As our clients say, an attack on one national monument is an attack on all. And they're right. We are really committed to and dug in on this fight.
And we intend to do whatever we can to hold President Trump accountable to the law.
The role of policy and legislation in protecting national monuments.
I'm with Policy and Legislation team, based in D.C., on the Hill, where Congress lives. And the reason why we have this team is that while our legal victories have great impact—they inspire me every day—they also need to be protected outside of the court.
And that's where the Policy and Legislation team comes into play. It is very much in partnership with the litigation team, the national monuments issue is a good example of this.
In general, a lot of our policy work focuses on preventing bad bills or other legislative vehicles that are introduced to undermine our progress. And, at the same time, we also advocate for passage of stronger federal environmental laws and rules. That's often where it's most rewarding, because we get to work with and cultivate champions in Congress on our issues.
Even in these challenging, chaotic times, we build lasting and diverse coalitions to elevate the voices of constituents all over the country—like yourselves. And, we work with our friends in Congress, who are really fired up about this issue, and continue to be.
This issue is a unifier. Because, we can’t imagine our country without these incredible lands, or having them segmented or shrunk, or given over to industry or other entities that don't care about them. That’s clearly unacceptable—to us, to you.
The national monuments issue has been contentious for a number of years. In many ways, this administration has chosen the wrong battle. This has become a good example of how communities are brought together for a common cause.
It's been inspirational, because there are so many constituents, so many different groups, that are looking at this public lands issue at a national level and a local level. They really want to fight for these lands, because these lands tell a story—they're beautiful, they're ecologically and culturally rich. And, they want to, of course, protect these lands from exploitation.
This issue is a unifier. Because, we can't imagine our country without these incredible lands, or having them segmented or shrunk, or given over to industry or other entities that really don't care about them. That's clearly unacceptable—to us, to you.
I want to give an example of how amazing your voice is. We had a national public comment period, and we were working with a number of other groups—national, local groups—to encourage public participation in this comment period.
Secretary Zinke opened up the public comment period after the president issued his executive order regarding the review of monuments. When I first read it, it was easy to take a cynical view on the value of that type of process by just looking at the scope alone—Bears Ears, for example.
There were tribal stakeholders who were evaluating a potential monument, and fighting for it, for years. And then the administration—the Obama administration, at that time—spent at least another year reviewing that proposal.
Whereas Zinke was ordered to complete his Bears Ears review in just 45 days. And, the initial comment period was just 15 days. So, it's pretty much a slap in the face when you look at it.
Also, this review period covered the review of the 27 monuments initially. It covered more than 11 million acres on land alone. Not to mention, the oceans monuments, that are vast.
But, with your help, we showed them. I really want to thank you. Earthjustice supporters contributed more than 165,000 supportive comments for the 60-day comment period. Together with our partners, we flooded the Department of Interior with more than 2.7 million comments in support of keeping these iconic monuments intact and protected.
With our coalition partners, we studied the comments themselves to make sure that we could say definitively that more than 99 percent of these comments demanded that the president leave these lands alone—these monuments, these oceans, protected areas: leave them alone.
That says a lot. It says a lot to your strength and to your voice.
Many stakeholders have spoken up for national monuments.
It's an inspiration that so many stakeholders care about this issue. I want to mention a few.
We have—together with our coalition—the outdoor recreation economy that came out in droves and continue to fight for these national monuments. This is an industry where there's over $800 billion spent in consumer spending annually. Millions of jobs go into this sector—and our monuments support this.
And the forefront voice, especially in Bears Ears, are the tribes, with a historical, culturally rich history there.
And, we also have several military leaders who came out to support these monuments. Just yesterday, I was reviewing a letter from about 40 military leaders, from all branches, that went to Secretary Zinke, saying: "Secretary, please release this report. We deserve to know what's in it."
Hunters and the sporting community have very helpful in this regard. As you may know, Secretary Zinke sees himself as a sportsman, and his first public meeting was with the 'hook and bullet' groups. Now, this group is often the most vocal voice in pointing out the fact that Zinke says that he is the design of Teddy Roosevelt. They have been at the forefront in in looking at this issue and saying, “Protect our public lands.” He abandoned animal welfarists and conservationists.
And also, many state actors, like attorneys general in several states, have come and shared their voices, saying: “We want these monuments intact.”
Congressional bills have been introduced to undermine the Antiquities Act. But a wide array of congressional members are responding to your concerns.
The national monuments issue has been on Congress's radar. In the first few weeks of session, there were agenda-driven bills. These bills were introduced to undermine or cut into the Antiquities Act in various forms. But there's a flip side to that.
There is a wide array of congressional members who are clearly responding to you. They're responding to their constituents, every step of the way. At the end of last year, when we all thought this fight was really starting to brew, we were educating the new congressional members to make sure that this theme of 'an attack on one is an attack on all' really resonated.
We don't have the Utah delegation fighting with us—but we do have several congressional members fighting for Bears Ears and other monuments.
The Washington delegation—Senators Cantwell and Murray—have been very vocal and a leader on this issue. Many western Democrats have also been extremely helpful and continue to be so.
On what is expected in Secretary Zinke’s secret report, and what lies ahead in this unprecedented attack on national monuments.
This process has been anything but transparent. We don't know anything about what's in the report. And we don't know what they're going to do with that information or when they may act. So, we can only control what we're doing ourselves and with our partners.
And, I can tell you that we are ready to launch an immediate legal challenge to whatever the president does on these monuments.
I expect we're going to see significant reductions to Bears Ears—possibly on the order of a loss of 80, 85, 90 percent of that monument. And, we're also likely going to see a significant reduction in the Grand Staircase-Escalante. And not only a reduction, but to add insult to injury, they're probably going to start the process of leasing some of the areas now within the monument for coal mining.
And so, there is plenty of legal work to do. We're working with partners coast to coast to coordinate a legal challenge to whatever Trump is going to do in terms of this unprecedented attack on national monuments.
No president has launched such a broad-scale attack on a system like the national monuments system. It's really unusual. And it's not acceptable—it's not something that we're going to accept. And I know that is not something that our members are going to stand still for.
Looking forward, Congress is probably going to be called on to approve a land management bill for Bears Ears and for others. That's still a little bit vague right now.
But if there is a bill that comes out specifically either addressing this report or the aftermath of, I think, we’ll have a strong fight that we can wage in Congress. Congress is watching closely.
Ideally, we will see the report soon. That is something that we have been urging—and congressional members have been urging . But on the Hill, we are ready to fight against that type of bill that would call on Congress to eliminate or undermine the Antiquities Act even further.
This is the most anti-environmental administration since the dawn of the modern environmental movement in the 1960s and 70s
The best-case scenario is that the administration decides to do the right thing and drop the assault on national monuments. I don't say that in a particularly hopeful way, because from a policy perspective, this is the most anti-environmental administration since the dawn of the modern environmental movement in the 1960s and 70s. I say that with regret, not with anything else.
But, I think they can read the politics. And the raw reality is that in addition to being illegal, the proposed attack on national monuments is deeply unpopular politically.
So, the best-case scenario is that they would realize that, it's not only in the best interest of national monuments, but in their own best political interests, to veer off from this attack.
We are fighting against a coalition of deeply wealthy resource extractive industries.
What the national monuments fight has done, first and foremost, is shown the stakes of what we're fighting over now.
If you asked me at the end of the last century, would we, at the beginning of this century, be fighting about whether we continue to protect some of our nation's most valuable public lands, I wouldn't have believed that.
But those are the stakes right now. These are some of the most valuable public lands in America. You can look on our website at photographs of places like Bears Ears and Grand Staircase—they are eye-wateringly beautiful places. And if you read about their stories, they're incredibly moving in terms of, for example, the cultural importance to Native American communities of Bears Ears.
These lands are unbelievably valuable—and they are at risk. What's also important about this is it shows who we're fighting against. We are fighting against a coalition of, first of all, deeply wealthy resource extractive industries—like, for example, the coal industry, that Heidi described as having its greedy eyes on coal deposits that are inside Grand Staircase-Escalante National Monument.
But we're also fighting against a group of ideologues. This is the modern-day manifestation of the Sagebrush Rebellion from the 1970s, where small numbers of right-wing ideologues believed that public lands that actually belong to all Americans, instead belong to the people who are right there and want to use them for mining, or logging, or whatever.
Everybody has to comply with the law—even the president of the United States.
The other thing at stake is the rule of law. The Constitution devotes authority over our public lands to Congress, not to the president. And the Antiquities Act allows the president to protect national monuments. But it doesn't allow the president to reverse protections for national monuments.
So, if President Trump tries to do that, the stakes here are not just what happens to these monuments—which is really important—but the stakes are also: are the checks and balances, and the rule of law that are at the heart of our system of government, are they going to be respected?
And we talk about Earthjustice's role in battles like that—and that's what it means, when we say 'The earth needs a good lawyer.' Our goal is, first and foremost, to protect the integrity of these unbelievably valuable places—but it's also to make sure that we protect our system of government and laws, in which everybody has to comply with the law—not just you, and not just me, but also the president of the United States.
The Antiquities Act has been used by presidents—Democratic and Republican—to designate more than 150 national monuments.
The Antiquities Act is 111 years old. It has been used by presidents—Democratic and Republican—to designate over 150 national monuments.
And for most of that time, a national monument designation was relatively noncontroversial. They were folded into our system of public lands conservation—they were popular and valued by the public. And, some became iconic national parks.
It wasn't until fairly recently that they started to get more attention and become more controversial—probably, most recently starting with a flurry of litigation involving the Grand Staircase-Escalante, and challenges to President Clinton’s authority to designate that monument.
There have been a couple of other legal challenges to national monuments in recent years, none of which were successful. President Trump's anticipated rollback of these monuments really is a break with history.
While there have been some instances in the past where presidents have made adjustments to national monuments, none of those adjustments were controversial or inspired litigation, so there's no court authority on them either.
The president lacks the legal authority to rollback national monuments.
We've researched the issue up and down, and left to right, every which way, and we're confident that the president lacks the authority to rollback these monuments. It has to do with the basic division of authority among the three branches of government.
Congress generally has the sole authority to regulate federal public lands. But, in the case of the Antiquities Act, it gave the president a very narrow aspect of its own property clause authority to do just one thing—and that is to designate national monuments.
Congress did not give the president the authority to rollback national monuments. And if Congress doesn't give the president that authority, the president doesn't have it. Because it's not in the president's own bucket of authority.
Even with executive orders, the president is subject to the same laws that everyone else.
The legality of the president's executive order depends on what he's doing.
For example, the executive order that President Trump signed on monuments in April—it didn't do anything more than mandate a review of the monument designations going back to 1996.
Now, the truth is, he didn't need to sign an executive order to mandate such a monument. That was a political show, rather than something that was legally necessary. He could have had his assistant call the Interior Department and say, 'Do a review.' And it would have had the same effect as signing an executive order to do that.
The key point on executive orders, though, is that the president is subject to the same laws that everyone else is. So, if the president wants to sign an executive order to mandate that his government do a review of national monuments, that's perfectly within his legal authority, and everything is good with that.
If the president signs an order to do something that falls outside his constitutional and legal authority—which disposing of national monuments would do, because that's Congress's role—that executive order is illegal. And we have the ability to go to court on behalf of the monuments, and the people who care about the monument, to make sure that the president follows the law, just like everyone else.
State governments can play an extremely important role in raising their voices on the national monuments issue.
These are federal lands. So, if their protections as national monuments are successfully reversed by the Trump administration, they won't be national monuments anymore. But they will still be federal public lands. They would be subject to the management authority of the federal government, rather than the state government; there's nothing directly that the state government could do.
This is a big political fight, however. And state governments are extremely important in raising their voices on issues that they don't even have direct authority over. But, we see circumstances where states have successfully influenced federal decisions on things within the federal sphere.
Many state officials have been speaking up about the need to protect national monuments. And that's going to be an important part of the continuing national conversation about this. Because this attack on national monuments is unpopular, including with many state governments. And the more the Trump administration hears from those influential leaders, the better it is for those of us who are trying to protect the monuments.
Is there Republican support in Congress for protecting national monuments?
The more controversial this issue has become, the less appetite there has been for members to speak out against it. It's going to be an ongoing battle, though.
In many ways, public lands has been a [bipartisan] issue. For example, Secretary Zinke, when he was sworn in earlier this year, made several proclamations where he said he didn't want to see public lands sold off to the highest bidder, or he wanted to make sure that public lands remain public. That sentiment does resonate with Republican leaders. But I can't say that this particular national monuments issue has as many Republicans as Democrats at this point.
Congress is waiting to see what happens with the Zinke report. There are members ready to go forward with a destructive bill.
There have been a handful of bills that were introduced early on this session. The general sentiment is that members are waiting. This has been a long process this year.
Those bills may not go anywhere. They tend to be broadly worded; there are some that even would go so far as to require state governments to have the authority from now on. They are very agenda-driven bills.
It will depend on what happens with this report [from Secretary Zinke]—what it dictates to Congress or what it suggests Congress do. And then Congress will take it from there. There certainly are members who are chomping at the bit to go forward with a destructive bill.
In efforts to reverse Obama administration initiatives, President Trump has taken actions that violate the law. They are illegal. And we are suing.
Elections have consequences. A new president has the ability in many circumstances to change policies of his or her predecessor.
But, whatever a president does has to be consistent with the law. And in a variety of circumstances, President Trump has taken actions in an effort to reverse Obama administration initiatives that violate the law.
I'll give you two examples, beyond what we fear is the coming example of the national monuments reversal, which would exceed his constitutional and legal powers.
In March, the president directed the Interior Department to lift the moratorium on new federal coal leasing on public lands that was imposed in early 2016 by the Obama administration. And the Trump administration did so, without evaluating any of the environmental consequences of suddenly reopening the coal leasing program and leasing more lands, which has a variety of environmental consequences—including consequences for climate change.
So, we have sued the Trump administration for that action, because lifting the coal moratorium without doing any environmental analysis is a violation of the National Environmental Policy Act. That's one example where an act to reverse an Obama administration policy was done illegally by the president.
Another example is that the president, in April, purported to reverse President Obama's protection of most of the Arctic Ocean and parts of the Atlantic Ocean from being available for offshore oil drilling.
The federal statute that governs the management of offshore oil drilling allows presidents to withdraw areas from availability for offshore drilling—but doesn't allow them to take protected areas and put them back into the pool of available waters. That again is something for Congress, not the president. And so, we sued the president on that issue too.
The point is that while presidents can adopt new policies, their ability to do so is constrained by the law as written. And in none of these circumstances has Trump gone through Congress to get a new law. He simply tried to act unilaterally through his own executive orders, and where those orders conflict with the law, they are illegal. And we are suing him about them.
Elevating the voices of local stakeholders in each region, for each monument is critical.
Looking at Bears Ears as an example, we wanted to make sure that the Bears Ears Inter-tribal Coalition‘s voice really resonated strongly—that it was very much front and center. That was something that early on, Earthjustice and other groups agreed needed to be a priority.
Because clearly the tribes were the initial stakeholders. And they have a very strong voice, that unfortunately, has been undermined in many ways by this administration—certainly by this review.
In terms of how the review is actually conducted—the tribes were really left out of it in many ways.
The great strength is not only in numbers, but in the varying voices.
Regional voices have been instrumental in this campaign, throughout this whole process. Secretary Zinke did mention that he's very concerned that regional voices were not consulted. They certainly were, because the tribes in Bears Ears were the ones that were at the forefront of trying to put forth that designation.
We also worked with other groups to make sure that those voices were highlighted—through media pieces, through op-eds, through rallies conducted by The Wilderness Society and other groups that were on the ground in many of the regions where these monuments exist. That was an ongoing process. It was an ongoing drumbeat. And it still continues.
Early on we were trying to get as much information on what monuments could be under attack. We knew Bears Ears had a target on it but weren't really sure that it would be as expansive as it ended up being.
Making sure the local stakeholders in each region and for each monument were at the forefront was critical. That was the main tactic instead of just having it be a national campaign.
Always making sure that constituents were not only calling into their members but also visiting with their congressional members—either here in D.C., which is great, but even sometimes much more impactful, in district offices.
Whenever Congress was out of session, we made sure that constituents were attending those town hall meetings. We had a lot of leaders from the Sierra Club and other groups that were on the ground working with us to make sure that those voices were elevated.
It was very much of a coalition effort all along. And it's going to continue to be.
Thankfully, the Inter-tribal Coalition’s voices finally got heard. We need to continue making sure that that continues to happen.
Just as we will sue the president, if he does anything to overturn or restrict national monuments on land, we will do the same thing if he does anything against marine monuments.
Just as there's a push from industry and right-wing ideologues to overturn and restrict national monuments on land, there's a similar push to do the same thing for marine national monuments.
Presidents of both parties—Republicans and Democrats—have designated and expanded national monuments in the ocean. And one of them, Papahānaumokuākea Marine National Monument, is in Hawaiʻi. The goal behind attacking national monument protections is to drastically expand commercial fishing, by either overturning or restricting the size of the national monument.
There's no constraint on the national monument for recreational fishing—what you and I consider fishing, anyone can do. But there is a restriction on industrial fishing. And that's founded in good science, which shows that if you protect areas, the fish will be able to grow there and populate not just the area that you protect, but areas outside of that.
These are the same kinds of valuable wild places as Bears Ears or Grand Staircase-Escalante They're just under water. And they're just as important for wildlife in the marine context, as the lands are important for wildlife in the land context.
So, just as we will sue the president, if he does anything to overturn or restrict national monuments on land, we will do the same thing if he does anything against marine monuments.
We’ve been working with many other conservation groups legislatively and in litigation to defend national monuments.
National monuments, and their protection, are a high priority for virtually every conservation community that cares about public lands, wildlife, and the cultural importance and historical importance of those places.
If you can think of an environmental group that works on those issues, they are probably a member of this coalition—and that includes NRDC, The Wilderness Society, and Sierra Club, as well as a number of others.
We've been working with them throughout the year, because we soon realized after the election that national monuments were going to have a big target on them in this administration. We've been working with them both legislatively and in litigation to defend them.
There are a couple of groups which have their own litigators and have a particular stake in monuments. And they will act as ‘counsel of record’ in the case, along with us.
And then there are other groups who are not acting as ‘counsel of record’ and may not have a lawyer on staff, and so they really rely on us for representation—in what we think will be a pretty significant body of litigation, challenging President Trump's role in the attack on the monuments.
This is a time when activism, individual activism and group activism, has made a huge difference.
Thank you to all of you for everything that you have done. This is a time when activism—individual activism and group activism—has made a huge difference. Day after day, when we ask our supporters to take action, the number of people who show up and the comments that they submit, have been truly inspirational and have been one of the main sources of fuel for us at Earthjustice to continue doing our work and to continue with the legal battle.
Thank you to our callers today for the great questions and for joining us for this teleconference. Without your support, I don't know how we would do this work.
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