PORTLAND, Ore. (CN) — A Ninth Circuit panel on Monday ended a timber company's challenge of the Obama administration’s expansion of the Cascade-Siskiyou National Monument in southwestern Oregon.
In January 2017, then-President Barack Obama issued Proclamation 9564 under the Antiquities Act expanding the Cascade-Siskiyou National Monument, causing the Clinton-era monument’s 101,000 acres to overlap with timberlands regulated by the Oregon and California Railroad and Coos Bay Wagon Road Lands Act.
Murphy Timber Company sued the government shortly after, claiming the expansion under the Antiquities Act of 1906 conflicts with the O&C Act, as it places federal lands under the jurisdiction of the U.S. Department of Interior for permanent forest production, protection of watersheds, regulation of streams and recreational facilities and ensuring economic stability for local communities and timber industries.
Murphy also argued the proclamation’s restrictions on logging increased the land’s risks of wildfire and insect infestations, and asked a federal judge to vacate the expansion and issue an injunction requiring the government to manage O&C lands as directed.
U.S. District judge Michael McShane declined and issued summary judgment in favor of the government and five intervening environmental groups. On appeal in August 2022, a Ninth Circuit panel poised to side with the timber company.
But on Monday, the panel ruled the O&C Act did not repeal the Antiquities Act, which grants the president broad authority to create national monuments from federal lands to preserve sites of historical and scientific value.
“Murphy urges that the O&C Act’s directive of ‘permanent forest production’ circumscribed the scope of presidential authority over these specific lands,” U.S. Circuit Judge M. Margaret McKeown, a Bill Clinton appointee, wrote for the panel. The panel found Murphy overread Congress’ commitment to timber production and discounted the discretion that the statute grants the Bureau of Land Management in managing O&C land for uses other than timber.
The panel also rejected Murphy’s claims that the proclamation and the O&C Act are in conflict as “unsubstantiated,” with McKeown writing that Murphy misunderstood the powers granted to the president when issuing proclamations.
Citing the Supreme Court case United States v. California, McKeown wrote that the high court held that the Antiquities Act permits the president to create national monuments and reserves by issuing a proclamation with respect to land owned or controlled by the government. This authority, McKeown wrote, includes “the power to shift federal land from one federal use to another, with a concurrent shift in the laws and regulations governing its use.”
Obama’s proclamation is hardly the first of its kind, McKeown noted, and said Murphy’s argument would allow a president to repeal any disagreeable statute — reducing Congress to a “bit player in federal land-management policy."
McKeown found Obama’s proclamation is consistent with the O&C Act, “which governs a much larger swath of timberlands in Oregon and gives the secretary discretion in administering those lands within the act’s directives.”
U.S. Circuit Judge Jed. Rakoff, another Clinton appointee, concurred. But U.S. Circuit Judge Richard Tallman — also a Clinton appointee — blasted the majority in a partial dissent by noting the O&C Act expressly states "all 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.”
Tallman said the conflict between the O&C Act and Obama’s proclamation “could not be more self-evident” given that the O&C Act requires sustained yield calculation for all O&C timberlands and that the proclamation removes timberlands from this yield if it falls within the monument.
While the Antiquities Act provides a president with broad authority to establish monuments, Tallman argued it does not give them the authority to suspend another act of Congress. By doing so, Tallman wrote the proclamation directs the secretary to disregard their duties to ensure timber is available to meet the economic needs of timber-dependent communities.
“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,” Tallman wrote. “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."
He said the majority's opinion "continues a troubling trend of increased judicial deference to presidential uses of the Antiquities Act" and that "the majority seems unbothered by today’s erosion of our constitutional principles. I am not so sanguine and must respectfully dissent.”
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