AFRC-AOCC Reply Brief Counters Claims on O&C Act, Monument Expansion in Supreme Court Case

Today, the American Forest Resource Council (AFRC) and the Association of O&C Counties (AOCC), along with a coalition, filed a reply brief in AFRC et al. vs. United States of America et al, No. 23-524, in support of the petition for a writ of certiorari pending before the U.S. Supreme Court challenging the Obama-era expansion of the Cascade-Siskiyou National Monument (CSNM) and the Bureau of Land Management’s (BLM) 2016 Resource Management Plans (RMPs) for Western Oregon O&C lands.

In November, AFRC and AOCC asked the Supreme Court to determine whether the Executive Branch enjoys unfettered authority to indefinitely suspend or cancel the operation of a federal law established by Congress. The Court may decide whether to accept the case at their scheduled conference on March 22.

In response to the AFRC-AOCC joint petition, the government and anti-forestry intervenors filed briefs in opposition, claiming the President and his agencies have discretion to use the Antiquities Act to reclassify lands that Congress had expressly designated for a specific purpose.

In 1937, Congress approved the O&C Act requiring the BLM to manage O&C lands for permanent forest production on the basis of sustained yield, meaning that each year BLM is to harvest the volume of timber that is grown by the forest during the same year so that harvest levels can be sustained in perpetuity.

With the stroke of a pen, and with no environmental analysis or public process, President Obama nullified a federal law and directed the BLM to ignore Congressional direction on how to manage the O&C lands in Southwest Oregon. The Obama Administration also imposed new RMPs in 2016, governing the 2.6 million acres of O&C lands, which prohibited sustained-yield timber harvests on 80% of the total O&C land base, despite the O&C Act requiring all O&C lands to be managed for that specific purpose.

In its reply brief, AFRC and AOCC countered the Obama Administration’s expansion of the national monument and RMPs violated both the letter and intent of federal law, as well as decades of administrative records and legal cases that established sustained-yield timber harvest as the dominate use of the O&C lands.

In responding to the opposition briefs, AFRC and AOCC argue the Antiquities Act was never intended to grant the executive branch ‘carte blanche’ to override congressional land management policy, and pointed to grave concerns expressed by Chief Justice John Roberts and Ninth Circuit Judge Tallman regarding the misuse of the Antiquities Act and the questions they raise over the separation of powers doctrine in the U.S. Constitution.

AFRC-AOCC brief also pointed to the amicus curae brief, signed by 29 U.S. Senators and Representatives from 16 different states, urging the Court to address important separation of powers issues, including the role of Congress in establishing land management policy, and the limited role of the executive branch to carry out those instructions, and the important role of the Court to ensure “that each Branch of government would confine itself to its assigned responsibility.”


 “We are asking the Supreme Court to answer a question that all Americans should care about, one that gets to the heart of our democracy and the separation of powers doctrine enshrined in the United States Constitution: who makes the laws regarding federal land management, Congress or the Executive Branch? Executive decisions that directly undermine Congressional action on the same lands – set a dangerous precedent for every federal land management law that Congress has approved.  Right now and without Supreme Court review and intervention, every acre of federal land and water is fair game for a President to designate and manage as he sees fit under the Antiquities Act.  No public involvement.  No analysis.  No Congress.  Anytime, anywhere.  I don’t know a single American who would support giving a president that unlimited power, at least Americans who still believe in democracy.” – Travis Joseph, AFRC President

 “The 2016 Resource Management Plans and the inclusion of the O&C lands in the Cascade-Siskiyou Monument has preempted the mandates and priorities established by Congress and has led to a drastic decline in county revenues, timber volumes, economic opportunities and jobs. It’s time for the U.S. Supreme Court to restore the O&C Act to its original Congressional purpose.” – Tim Freeman, Douglas County Commissioner and AOCC President

 “The Constitution makes it clear that Congress, not the President, makes our laws. The President’s job is not to make law, but to enforce them. Yet, in recent years, Presidents have increasingly usurped congressional authority by using the Antiquities Act to ‘Monumentize’ millions upon millions of acres of public land rendering massive areas largely untouchable. This blatant disregard for the will of the people is an affront to the Constitution. We urge the Supreme Court to hear these cases and to make it clear that the President cannot circumvent Congress by rewriting our nation’s public land laws with the stroke of a pen.” – U.S. Representative Cliff Bentz

“Regardless of who’s in the White House, Americans of all political stripes should be concerned whenever the Separation of Powers doctrine in our Constitution is diminished by administrative fiat. No President should enjoy unfettered authority to indefinitely suspend or cancel the operation of federal law. For these reasons, we encourage the Supreme Court to take this case, address the use and abuse of the Antiquities Act, and provide certainty for rural Oregon by upholding the O&C Act as Congress intended.” – Former U.S. Representatives Kurt Schrader and Greg Walden (Read their recent op-ed in the Portland Tribune)