American Forest Resource Council President (AFRC) Travis Joseph had the following to say regarding the Ninth Circuit opinion on the Obama-era expansion of the Cascade Siskiyou National Monument (CSNM) on Western Oregon O&C Lands managed by the Bureau of Land Management (BLM):
“We’re pleased the Ninth Circuit affirmed that the president, regardless of political affiliation, is not above the law. Presidential proclamations made under the Antiquities Act that cut out the public from the process and fail to provide any environmental review before decision-making are, in fact, reviewable by courts. That’s a win for the American public by ensuring better accountability and transparency.
“The divided ruling also demonstrates the clear legal conflict between the O&C Act and the Antiquities Act. A United States District Court Judge in D.C. nullified the Cascade Siskiyou National Monument (CSNM) as an illegal overreach, and that decision is currently pending before the D.C. Circuit. The Ninth Circuit is also divided. Given these conflicts, the fate of the O&C Lands, the CSNM, and the future management of these unique forests and the communities that depend on them may ultimately be decided by the Supreme Court.
“This majority ruling also reaches far beyond the O&C Lands. Judge Tallman’s dissent rightly 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. The Judge’s Crater Lake example, and what it could mean for public access, should give all Oregonians pause.
Key Legal Arguments from Judge Tallman’s Dissent:
“Indeed, the far-reaching implications of the majority’s interpretive rule are sobering: every federal land management law that does not expressly shield itself from the Antiquities Act is now subject to executive nullification by proclamation. I can find no limiting principle within the majority opinion that counsels otherwise. I think it manifestly more sensible to apply a different presumption: I would not construe a statute to grant the President unfettered authority to indefinitely suspend or cancel the operation of federal law, see id. at 443-44 (distinguishing between constitutional delegations of authority to suspend statutes and unconstitutional delegations of authority to cancel statutes), particularly where Congress has not expressly done so nor conditioned the suspension authority upon some intelligible changed circumstance.”
“Suppose a President wishes to protect Crater Lake National Park from the harmful effects of park visitors. Under federal law, the ‘National Park shall be open, under such regulations as the Secretary of the Interior may prescribe, to all scientists, excursionists, and pleasure seekers.’ 16 U.S.C. § 123. According to the majority, however, the President can prohibit visitors by issuing an Antiquities Act proclamation reclassifying the park as a national monument. I cannot agree that Congress intended to cede this unbridled power to the President when it enacted the Antiquities Act.”
“By permitting Proclamation 9564 to supplant the O&C Act, the majority has transmuted the Antiquities Act into a coiled timber rattler poised to strike at any land management law that the President dislikes.”
“I am troubled by the President’s overt attempt to circumvent the balance struck by Congress and the majority’s haste in labeling that attempt with the imprimatur of law. The decision today continues a troubling trend of increased judicial deference to Presidential uses of the Antiquities Act.”
“At oral argument, the government conceded that if Proclamation 9564 had expanded the monument to cover all 2.4 million acres of O&C land, it would have violated the O&C Act. But the government insisted that the Proclamation was lawful because the adverse effect on the O&C Act was minimal. By accepting that argument, the majority engages in a brand of incrementalism perilous to constitutional principles that are absolute.”
“Although the Constitution does not ‘absolutely separate’ the three forms of governmental power, it absolutely prohibits the President from making law, even concerning the most inconsequential of matters. THE FEDERALIST NO. 47. Proclamation 9564 violates this prohibition because it directs the Secretary of the Interior to disregard her obligations under the O&C Act. Only Congress may do this.” Read the full dissent here.
The federal O&C Act requires the Bureau of Land Management (BLM) to manage Western Oregon O&C lands on the basis of sustained yield forestry– meaning harvesting a consistent amount in perpetuity that will not exceed harvesting more timber than what is grown by the forest every year. Revenues from the O&C lands are shared with Oregon counties to support essential public services including law enforcement, search and rescue, public health, and youth and senior services.
Due to the expansion’s violation of the O&C Act, AFRC filed a legal challenge to the expansion in D.C. District Court. This ongoing litigation is separate from the lawsuit from Murphy v. Biden that was the subject of today’s Ninth Circuit opinion.
In a separate decision in D.C. District Court Judge Richard Leon invalidated President Obama’s proclamation expanding the Cascade Siskiyou National Monument on O&C lands, finding no President has the unilateral authority to override Federal law and an Act of Congress. Specifically, the court found that the O&C Act mandate to manage the lands for permanent forest production “cannot be rescinded by Presidential Proclamation.” Judge Leon’s decision is currently pending before the D.C. Circuit.