Cascade-Siskiyou National Monument expansion sparks controversy

Oregon family-owned timber businesses, Murphy Company and Murphy Timber Investments, LLC, recently petitioned the Supreme Court seeking to overturn the U.S. Court of Appeals for the Ninth Circuit’s decision upholding the Cascade-Siskiyou National Monument’s expansion. The same day, an association of several Oregon counties and a trade association also filed a petition challenging a decision by the D.C. Circuit that upheld the same monument expansion. Lying at the heart of both cases is a conflict between the Antiquities Act of 1906, which authorizes presidential monument designations, and the Oregon and California Railroad and Coos Bay Wagon Road Grant Lands Act of 1937 (O&C Act). These cases present a rare opportunity for the Court to weigh in on presidents’ increasing use of the Antiquities Act to declare monuments and, in the same proclamations, issue land use restrictions on vast swaths of western lands which increasingly conflict with federal land management statutes. As demonstrated by the recently filed petitions, these presidential land use prohibitions, here relating to the commercial harvest of timber, inevitably harm local businesses and governments.

Passed in 1906 as a response to the defacing and plundering of Pueblo sites in the Southwest, the Antiquities Act permits Presidents to designate monuments and to reserve associated federal lands from appropriation. In other words, in the early 1900s, when the federal government was trying to give away or sell land for settlement in the West, the President could make exceptions for areas of special historic or scientific interest. The Antiquities Act also made it illegal to take or destroy ruins, monuments, or antiquities. The Act limits the President’s discretionary declarations “to the smallest area compatible with the proper care and management of the objects to be protected[,]” and says nothing about presidents prohibiting other public uses. Recent declarations, however, have been increasing in size, scope, and restrictions. The O&C Act is a federal land management law that reserves certain federal land in Oregon for “permanent forest production” to directly benefit surrounding communities.

Initially declared in 2000 and expanded in 2017, the Cascade-Siskiyou National Monument now spans more than 114,000 acres straddling the California-Oregon border. President Obama’s 2017 expansion added tens of thousands of acres of O&C lands to the monument and prohibited timber harvest on them.

The Murphy Petitioners are asking the Court to decide “whether the Antiquities Act authorizes the President to declare federal lands part of a national monument” and restrict certain uses within the monument “where a separate federal statute reserves those specific federal lands for a specific purpose that is incompatible with” the President’s monument proclamation.

There is good reason to think that, not only will the Supreme Court agree to hear this case, but that the family-owned timber businesses may prevail. First, Chief Justice Roberts has signaled concerns over large-scale monuments and their potential incompatibility with the Antiquities Act requirement that a monument cover the “smallest area” needed to protect the identified historic and scientific interests. The restriction for the “smallest area” was demanded by western legislators in the early 1900s, specifically to protect local financial interests. While the Supreme Court passed on accepting a recent challenge to a marine monument declaration covering thousands of square miles of ocean floor, the Chief Justice’s statement respecting denial of certiorari suggests that he, and other justices, may be willing to place monument designations and their accompanying restrictions under a microscope. Also, the Court has, in recent years, seemingly granted more petitions challenging excessive uses of Executive power, and this challenge fits that pattern.

Further, as we argue in the New Civil Liberties Alliance’s amici brief in support of certiorari, the declaration expanding the monument conflicts with the O&C Act because the Act requires the “permanent” management of O&C lands for sustained timber harvest while the monument designation explicitly prohibits commercial timber harvest. The Ninth Circuit incorrectly “reconciled” these competing directives by finding that Congress’s statutory mandate could be dispensed with for any given parcel of land. But executive dispensing power – the power to just dispense with at least part of an inconvenient law – was definitively eliminated in England before the United States was even formed, and has no place under our Constitution or the rule of law. In this case, the portions of the presidential proclamations that prohibit land use Congress previously designated contravene the express will of Congress. And courts should not permit such violation of separation of powers and the rule of law.

These cases have potential impacts far beyond Oregon. The New Civil Liberties Alliance’s brief points out that unilateral presidential land use restrictions in monument designations frequently conflict with the Federal Land Policy and Management Act of 1976 – and other land use statutes that post-date the Antiquities Act and provide protections for local stakeholders. Moreover, the West is no stranger to ever-expanding monument designations. The ongoing battle over the size and scope of the Bears Ears and Grand Staircase-Escalante National Monuments, which currently cover thousands of square miles, is now before the Tenth Circuit and may eventually work itself up to the Supreme Court. Additionally, the amici brief filed by the New Civil Liberties Alliance addressed the interests of the Arizona Farm Bureau Federation, whose members are affected by the newly designated Baaj Nwaavjo I’tah Kukveni Grand Canyon National Monument, covering over 900,000 acres in Arizona.

The cases are Murphy Company, et al. v. Joseph R. Biden, Jr., President of the United States, et al. (No. 23-525) and American Forest Resource Council, et al. v. United States, et al. (No. 23-524). The United States’ responses in opposition are due on or before Jan. 17. The Court will likely consider the petitions sometime this spring.