04/22/2020 - Regulatory Rollback - Student Work

Cascade-Siskiyou National Monument Litigation May Cause Circuit Split

by Libby Dimenstein, JD 2022

Cascade-Siskiyou National Monument, located in Southwest Oregon and Northern California, lies at the intersection of the Siskiyou, Klamath, and Cascade Mountain Ranges. Created by President Clinton in 2000 under the authority granted him by the Antiquities Act of 1906, the Monument stands out for its remarkable biodiversity and variety of geological, aquatic, and archaeological features. Visitors today use the Monument for camping, hiking, horseback riding, hunting, fishing, and skiing.

In 2017, President Obama expanded Cascade-Siskiyou by around 48,000 acres to protect its ecological integrity. Environmental groups, scientists, local groups, and both Oregon senators called for and supported the expansion. Like President Clinton, President Obama accomplished this action by invoking his authority under the Antiquities Act. First championed by President Theodore Roosevelt, the Antiquities Act allows presidents to safeguard federally-controlled landmarks of historic or scientific interest by publicly proclaiming them National Monuments. Presidents may use these proclamations to withdraw Monument land from new commercial development and mineral exploitation.

The Bureau of Land Management (BLM) oversees Cascade-Siskiyou. BLM must manage the land in accordance with Presidents Clinton and Obama’s proclamations, which both prohibit commercial timber harvest throughout the Monument. BLM also must manage most of the land (40,000 out of the Monument’s 52,000 original acres and 40,000 out of the 48,000 expansion acres) in accordance with the Oregon and California Revested Lands Act of 1937 (the O&C Act).  This Act created the O&C Lands, 2.4 million acres of forestland that lie in a checkerboard pattern across 18 counties in western Oregon, and placed these lands under the Department of Interior’s jurisdiction. According to the Act, these lands “shall be managed . . . for permanent forest production, and the timber thereon shall be sold, cut, and removed in conformity with the princip[le] of sustained yield . . .” “Sustained yield” refers to a resource management strategy in which annual timber harvest never exceeds annual timber growth.

In response to President Obama’s expansion, multiple industry and interest groups sued the US government, claiming that the expansion violated the O&C Act. In 2017, two groups filed challenges to the action in the US District Court for the District of Columbia. The Association of O&C Counties (1:17-cv-280), an interest group representing residents of O&C counties, and the American Forest Resource Council (1:17-cv-441), a timber industry group, brought the suits. They allege that President Obama’s inclusion of O&C Lands in the Cascade-Siskiyou expansion violates the O&C Act because it prohibits commercial timber harvest on O&C Land within the Monument’s boundaries, contravening the Act’s requirement of sustained timber yield. They argue that because Congress passed the O&C Act after the Antiquities Act and because the O&C Act addresses a more specific subject matter, its provisions supersede those in the Antiquities Act that grant the President the authority to expand Cascade-Siskiyou.

Concurrently, a timber industry company sued over substantially the same issue in the Northern District of Oregon (1:17-cv-285). Though the parties in the three cases made almost identical arguments, the two district courts reached opposite conclusions, establishing a potential circuit split (a situation in which two courts of appeals disagree on the same legal issue).

The Oregon Decision

In April 2019, Oregon District Magistrate Judge Mark D. Clarke published a report and recommendation, holding that the Monument expansion did not violate the O&C Act and fell within President Obama’s authority under the Antiquities Act. Judge Clarke noted that courts are “very limited in their review of congressionally authorized presidential actions” and will only intervene when a President acts unconstitutionally or outside of the authority granted by a statute. Relying on Supreme Court precedent, Judge Clarke asserted that the Antiquities Act delegates “broad power” to the President. He then concluded that President Obama’s monument expansion, which the President properly justified, did not exceed the scope granted him by the Act.

Judge Clarke further explained that a provision in the O&C Act that repeals any conflicting laws does not repeal the Antiquities Act. The clause, called a non obstante clause, states that “[a]ll Acts or parts of Acts in conflict with this Act are hereby repealed to the extent necessary to give full force and effect to this Act.” According to Judge Clarke, however, courts will not repeal one statute unless a later statute “expressly” contradicts it or would be meaningless if the earlier statute were not repealed.

Judge Clarke found that while the Antiquities Act and O&C Act exist in tension with each other, the latter does not expressly contradict the former. The O&C Act does not set aside federal land exclusively for commercial timber harvest. No court has ever construed it to do so, and even before Cascade-Siskiyou’s creation, BLM removed O&C Land from commercial timber production. Although the Act does require “sustained yield” of timber on O&C Land, it does not mandate maximum sustained yield of commercial timber production, but merely the maintenance of the timber resource. According to Judge Clarke, the O&C Act’s requirements therefore do not directly conflict with President Obama’s use of the Antiquities Act to expand Cascade-Siskiyou and its timber protections.[1]

The DC Decision

The DC District Court disagreed. In a November 2019 consolidated opinion, Judge Richard J. Leon found that the Monument expansion violated the O&C Act. The opinion also invalidated two BLM Resource Management Plans that prohibited commercial timber production on certain O&C Land, which had been challenged in two previous suits (1:16-cv-1599 and 1:16-cv-1602).

Regarding the monument expansion, Judge Leon acknowledged that courts often defer to the President’s judgment when the President uses discretion granted him by Congress—here, discretion under the Antiquities Act. However, the DC Circuit has previously found that an independent statute can limit even this broad Presidential authority. According to Judge Leon, when there is no “clear intention otherwise,” a specific statute will not yield to a general one, regardless of when the statutes were enacted. Because the general statute (the Antiquities Act) does not mention managing O&C land, it cannot override the specific statute (the O&C Act). Thus, Judge Leon found that if President Obama’s executive order expanding the Monument violated the O&C Act, it would be unlawful.

Judge Leon then interpreted the “sustained yield” mandate differently than Judge Clarke. He emphasized that the O&C Act requires not only the maintenance of the timber resource, but also that the timber is “sold, cut, and removed.” As such, he held that the prohibition on commercial timber harvest in Cascade-Siskiyou unacceptably conflicts with the O&C Act’s timber requirements, and thus President Obama’s expansion was unlawful.

Conclusion

The losing parties in both lawsuits appealed the district courts’ decisions. In February 2020, though, the Department of Justice (DOJ) submitted requests to suspend both sets of litigation (hold the cases in abeyance). DOJ is requesting that this suspension last until the DC District Court issues its final order on remedies in the cases related to BLM’s resource management plans.[2] The requested remedies include an injunction directing the Secretary of the Interior to offer timber for sale by certain deadlines. According to the DOJ brief, the nature and scope of the mandated remedy may determine whether the government continues with its appeal of the DC decision and its defense of the Oregon decision in the Ninth Circuit.

The non-governmental parties in both sets of cases, including the environmental group intervenors in the Oregon case, filed briefs opposing these suspension requests. The briefs argue that the forthcoming remedies “do not involve national monuments, presidential proclamations, or the Antiquities Act,” and thus do not bear on the cases challenging President Obama’s monument expansion. Both courts have yet to respond to these motions.

If the circuit courts ultimately affirm both lower court decisions, the Supreme Court could choose to take up the issue and resolve the split. In recent years, various legal challenges have questioned the scope of presidential power under the Antiquities Act. In 2017, a series of environmental groups and Native American tribes filed lawsuits in the DC District Court contesting President Trump’s removal of land from Bears Ears and Grand Staircase-Escalante National Monuments in Utah. These suits, which are both pending, argue that the Antiquities Act gives presidents the power only to establish or expand national monuments, not to shrink or destroy them. In a separate case, also filed in 2017, several fishing industry groups challenged President Obama’s creation of Northeast Canyons and Seamounts National Marine Monument, which lies off the New England coast. The groups argued that the Antiquities Act does not authorize presidents to create marine monuments because the ocean is not “land owned or controlled by the Federal government,” as required by the text of the statute. Though the DC Circuit Court rejected the fishing industry claims in late 2019, the plaintiffs say that they plan to petition the Supreme Court to hear their case. The existence of these ongoing suits, combined with the potential circuit split over President Obama’s monument expansion, increases the chance that the Court ultimately chooses to offer its input on Cascade-Siskiyou and the reach of the Antiquities Act.

 

[1] The District Court adopted Judge Clarke’s report and recommendation.

[2] These remedies will be for three cases challenging BLM’s Resource Management Plans in the District Court for the District of Columbia: the two addressed in Judge Leon’s consolidated opinion (1:16-cv-1599 and 1:16-cv-1602), and one that alleges a violation of the Administrative Procedure Act (1:15-cv-1419).