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Oregon timber company asks Ninth Circuit to gut expansion of Cascade-Siskiyou National Monument

Can courts review executive actions taken under the Antiquities Act? A Ninth Circuit panel has its doubts.

SEATTLE (CN) — Attorneys for an Oregon timber company asked a Ninth Circuit panel on Tuesday to strike down then-President Barack Obama’s expansion of the Cascade-Siskiyou National Monument in Ashland, Oregon.

Murphy Company’s 2017 lawsuit challenges Obama’s Proclamation 9564, which expanded the Clinton-era monument by 48,000 acres. According to the lawsuit, Obama’s expansion of the national monument under the Antiquities Act of 1906 conflicts with the Oregon and California Revested Lands Sustained Yield Management Act of 1937.

The O&C Act, as it’s called, 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 economical stability for local communities and timber industries.

“Over 80% of the acres included within the monument expansion are O&C lands which have been specially designated by Congress in the O&C Act of 1937 for the express purpose of ‘permanent forest production,’” the timber company says in its complaint. “The president’s proclamation changing the statutory purpose of O&C lands from permanent timber production to the park-like preservation status of a national monument clearly violates the O&C Act and exceeds the scope of presidential authority under the Antiquities Act.”

The Murphy Company is an Oregon corporation with wood product manufacturing plants in White City, Rogue River, Eugene and Sutherlin, Oregon, and one in Elma, Washington. Murphy Timber Investments LLC specifically owns about 50,000 acres of timberland throughout southern Oregon, with just over 2,000 acres within the Cascade-Siskiyou expansion.

According to the lawsuit, the Murphy Company’s Oregon operations are dependent on timber harvest from public forests in southern Oregon for half of their annual raw material needs, much of which it purchased from the U.S. Forest Service, the Bureau of Land Management, the Oregon Department of Forestry and Josephine County. Over 20% of timber harvested come from land managed by these agencies.

“Permanent removal of over 40,000 acres of O&C lands from the timberland base managed by BLM will harm Murphy Company by reducing the supply of timber sold annually by BLM, which jeopardizes plaintiff’s log supply and the jobs of over 400 employees at its four Oregon manufacturing plants,” the company says in its lawsuit. "Additionally, removing such lands will underscore the company’s thinning operations designed to “address overstocked stands on 613 acres that pose significant wildfire risk.”

In March 2017, a federal judge ruled environmental groups could intervene with the lawsuit, including Oregon Wild, the Wilderness Society and the Soda Mountain Wilderness Council. “If they prevail in making this argument, I think it would be a giant setback across a whole range of conservation issues in Oregon," Oregon Wild Conservation director Steve Pedery told OPB in 2017.

At that point, Pedery said conservation groups got involved in the case because they didn’t trust the Trump administration to defend the national monument. On Tuesday, however, U.S. Circuit Judges Margaret McKeown and Richard Tallman, and Senior U.S. District Judge Jed Rakoff — all Bill Clinton appointees — appeared to lean toward the timber company's argument but questioned whether they had the authority to overturn a presidential decision.

“You’d have me, were not for the congressional declaration, that we’ve got to protect timber communities and provide them with a sustained yield so that they can get some revenue from all this land that is otherwise under the ownership or control of the federal government,” Tallman told government attorney Robert Lundman.

McKeown questioned the panel has jurisdiction for a “declaratory judgment vis-à-vis the [Interior] department officials.”

“If at the end of the day they’re really focused on what the president has done and that’s what they’re focused on here,” Lundman said. “They’re saying the proclamation was ultra vires, then the question is presidential review. You can’t end-run about it by getting a declaration against the agency. You need an agency action to review instead and there is none here.”

Murphy Company attorney Julie Weis said the issue may need to go to the Supreme Court.

“Allowing the president to bypass statutory limitations on governmental authority, particularly in the area of public land, where Congress has plenary authority, that would be highly repugnant to the rule of law," she said, adding: “There are limits on executive authority. Courts know that, and when the executive acts in a manner that is ultra vires, it is the court’s responsibility and privilege to enforce those restrictions."

The panel took the matter under submission and did not indicate how or when it would rule.

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