AFRC Asks Supreme Court to Clarify: Who Makes Public Land laws, Congress or the President?

Should a U.S. President enjoy unfettered authority to indefinitely suspend or cancel the operation of a federal law established by Congress?

That’s a question the American Forest Resource Council (AFRC) is asking the U.S. Supreme Court to answer. Today, AFRC and the Association of O&C Counties (AOCC) filed a joint petition for a writ of certiorari with the Court that seeks review of 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.

“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?” said AFRC President, Travis Joseph.

“Whether you’re living in Southwest Oregon near the illegal expansion of the monument, in Utah where numerous presidential proclamations have placed massive areas off limits in recent years, or in Washington, D.C. where concerns about the protection of our democracy and Constitutional processes are top of mind, this case and its outcome are critical to the future management of our Federal lands.”

Joining AFRC in petitioning the Supreme Court is AOCC, which represents the western Oregon counties that, by law, receive half of the timber receipt revenues generated by active management of O&C lands. The 2016 RMPs and the monument expansion have negatively impacted the counties’ ability to sustain essential public services, and their communities have suffered economically due to the dramatic decline in sustainable timber harvests on O&C lands.

“The O&C Act is the first legislation passed by Congress limiting the annual harvest level on a specific category of federal forest land. The inclusion of the sustained-yield mandate stopped the practice of overharvesting by prohibiting harvest levels that exceeded the annual growth of timber on the land base. This balanced, scientific approach to management has provided a consistent flow of timber volume and revenue for the Counties and the Federal Government, while at the same time providing an array of recreational activities, abundant wildlife habitat, clean water, and increased resilience to catastrophic events such as wildfires,” said Douglas County Commissioner Tim Freeman, AOCC President.

“Unfortunately, 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 which has led to a measurable decline in all of the benefits and amenities listed above. The O&C Act should be restored to its original Congressional purpose.”


The O&C Act requires 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.

Proper sustained-yield management has proven to be successful in maintaining healthy and resilient forests, and also providing sustainable economic opportunities in rural communities.  Under the O&C Act, sustained-yield timber harvest is the dominate use of the 2.6 million acres of land in Oregon.  The Ninth Circuit has long-recognized this dominant-use mandate since its seminal decision in Headwaters, Inc. v. Bureau of Land Mgmt., 914 F.2d 1174, 1184 (9th Cir. 1990).

Since the late 1930s, 18 western Oregon counties that contain these unique lands – called O&C Counties – have depended on the responsible, sustained yield management of the O&C lands and subsequent revenues to support essential public services, including law enforcement, search and rescue, public health, and youth and senior services.

In the final days of his presidency in 2017, President Obama signed a proclamation expanding the CSNM by 48,000 acres under the Antiquities Act, most of which overlapped with O&C lands. 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 purpose.

In 2019, in response to lawsuits separately brought by AFRC and AOCC challenging the monument expansion, Judge Leon understood the obvious conflict and found that the President lacked authority to override the clearly expressed will of Congress when it came to the management of federal lands. Specifically, the District Court found that the O&C Act’s mandate—that O&C lands “shall” be managed for permanent forest production—“cannot be rescinded by Presidential Proclamation.” Judge Leon also determined the BLM’s 2016 RMPs violated the O&C Act because the RMPs prohibited sustained-yield management on approximately 80 percent of the O&C lands.

On July 18, 2023, the D.C. Circuit Court of Appeals reversed Judge Leon’s interpretation of the O&C Act and upheld the CSNM expansion and the BLM’s 2016 RMPs.  The D.C. Circuit held that the President can use a proclamation under the Antiquities Act to “remov[e] the land from the O & C Act’s ‘permanent forest production’ mandate,” leaving no limits on the reach of the President’s power under the Antiquities Act. Similarly, the D.C. Circuit found that the BLM could reclassify lands in a manner that would remove them from the O&C Act’s dominant use mandate.

In a parallel case in the Ninth Circuit Court of Appeals brought by Murphy Company and Murphy Timber Investments, family-owned Oregon businesses having affected lands within and adjacent to the CSNM expansion, a divided court issued a similar opinion on the Monument. In a strong dissent, Judge Richard C. Tallman pointed out the dangerous precedent moving forward for “every federal land management law” and the risk of granting the “President unfettered authority to indefinitely suspend or cancel the operation of federal law” through the Antiquities Act.  Murphy Company also is seeking Supreme Court review. If the petition is granted, the Supreme Court will review the case.