National heritage areas (NHAs) are a way to conserve and restore important natural, historical, and cultural resources for this and future generations while at the same time generating local economic activity through tourism. NHAs are established by Congress but administered by local entities with the assistance of the National Park Service.Read More
The 115th (2017–2018) Congress poses an existential threat to America’s public lands, which comprise 609 million acres across our fifty states. As Republicans have the majority in both the Senate and the House of Representatives, anti-public-land Republicans are well positioned to advance a wide range of truly horrible legislation....
The support for federal public lands to remain federal public lands and to be managed responsibly for the benefit of this and future generations is broad and deep, while opposition to federal public lands is narrow and shallow. Yet, as has been shown by a plethora of evil legislation, the only thing necessary for bad legislation to pass is for good people not to object.
I object. How about you?Read More
There is no question that an Act of Congress can eliminate, shrink, or weaken a national monument proclaimed by a president pursuant to authority granted by Congress. What Congress giveth, Congress can taketh away. The property clause of the U.S. Constitution (Article 4, Section 3, Clause 2) ensures that. Yet in fifty-five Congresses over the past 110 years, Congress has rarely acted to eliminate, reduce, or weaken a national monument proclamation by a president.Read More
The 2016 election of Donald Trump in the Electoral College was a troubling development on many fronts, including that of conserving certain federal public lands as national monuments for this and future generations. The Trump administration is considering entreaties from some aggrieved Republican U.S. senators and members of Congress—as well as some shortsighted local economic interests—to either abolish, reduce, or weaken national monuments proclaimed by previous presidents. They are concentrating on those national monument proclamations by all presidents whose last names start with the letter O.
Proclamations: Exercising Congressionally Delegated Authority
President Obama’s use of the congressionally delegated authority to proclaim national monuments was both vast and visionary. Since President Theodore Roosevelt signed the Antiquities Act of 1906, all U.S. presidents except for Republicans Nixon, G.H.W. Bush, and Reagan have utilized the authority by proclaiming national monuments. Some presidents have proclaimed a lot, some just a few, and some none at all.
The Antiquities Act is as eloquent and visionary as it is brief. Here are the two most important provisions:
(a) Presidential Declaration.—
The President may, in the President’s discretion, declare by public proclamation historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest that are situated on land owned or controlled by the Federal Government to be national monuments.
(b) Reservation of Land.—
The President may reserve parcels of land as a part of the national monuments. The limits of the parcels shall be confined to the smallest area compatible with the proper care and management of the objects to be protected.
It is important to note that when a president proclaims a national monument, the president is not exercising constitutional authority as president but rather exercising a constitutional authority granted to Congress in the “property clause” (Article IV, Sec. 3, Clause 2) that Congress has delegated to the president. Congressional power over federal public lands is a matter of very settled law, but that doesn’t mean a few whackos don’t reject it.
National monuments are “proclamations,” not “executive orders.” The president issues executive orders under the faithful execution clause of the Constitution (in Article II, Section 3). A president may expand, revoke, or modify a previous executive order. An executive order and a presidential proclamation under the Antiquities Act are absolutely not one and the same.
Mistaken Ideas About Undoing Proclamations
National monument opponents believe a president can undo a national monument proclamation of a predecessor. They are wrong. Let’s examine three potential (il)legal lines of attack: abolition, reduction, and weakening.
The command of the Antiquities Act’s paragraph (a) is clear: the president may declare national monuments. There is no authority to un-declare them. If Congress had meant for a later president to overrule a previous president, it would has said so. Congress did not.
No president has ever abolished a prior president’s national monument. Congress has, but Congress can.
Paragraph (b) requires that a national monument be the “smallest area compatible with the proper care and management of the objects to be protected.” Another gambit—which national monument opponents believe may have a better chance of withstanding judicial scrutiny—is for a later president to officially proclaim that a previous president got it wrong in the original proclamation and secured too much area as a national monument. Another argument might be that factual circumstances have changed, so a smaller area will still protect the objects proclaimed for protection.
Some presidents have by subsequent proclamation reduced the area within a national monument. In some cases, the reduction was accompanied by an expansion elsewhere. While this is precedent in practice, it is not precedent in court—because no court has ever been asked to rule on the matter.
Again, if Congress had meant for a later president to overrule a previous president, it would have said so. Congress did not.
The final gambit may be gutting the protections afforded in the national monument proclamation. Modern national monument proclamations have tended to be very specific and directive as to how the administering agency is to manage the monument (what is allowed and not allowed, and that kind of thing). Some presidents have, by subsequent proclamation, changed management requirements.
While this is precedent in practice, it is not precedent in law—because no court has ever been asked. Again, if Congress had meant for a later president to overrule a previous president, it would have said so. Congress did not.
If President Trump tries to abolish, reduce, or weaken a national monument proclaimed by a predecessor, he will be challenged in federal court and we shall all see if the Antiquities Act means what it says.
For those who want to go deeper on national monuments and law and the power of a subsequent president to cause mischief, I commend to you:
• “The Monumental Legacy of the Antiquities Act of 1906” (Georgia Law Review, Winter 2003) by professor of natural resources law Mark Squillace of the University of Colorado School of Law
• “Antiquities Act: Scope of Authority for Modification of National Monuments” (November 14, 2016) by Alexandra M. Wyatt, legislative attorney for the Congressional Research Service
Endnote: A Novel Legal Challenge
Two lawsuits have been filed to overturn the 47,624-acre expansion of the Cascade-Siskiyou National Monument (CSNM) in Oregon by President Obama in 2016. The original CSNM was proclaimed by President Clinton in 2000 (~52,000 acres since enlarged by 13,359 acres due to the acquisition of generally undeveloped inholdings from willing sellers). The first case was filed in the U.S. District Court for the District of Columbia by the Association of Oregon and California Counties (“Addicted Counties”), while the second case was filed in the United States District Court for Oregon (Medford) by a couple of timber companies (“Big Timber”).
Addicted Counties believe that their share of timber receipts from the sale of federal timber within the monument expansion to Big Timber will decline. Both Addicted Counties and Big Timber allege that the Antiquities Act of 1906 is trumped (no pun intended; it used to be such a fine word) by the Oregon and California Lands Act of 1937. The latter statute generally prescribes the management of more than two million acres of federal forestland in western Oregon. Big Timber and Addicted Counties believe the O&C Act is a timber uber alles statute, though they’ve yet to find a federal court judge who agrees with them. This is Big Timber’s and Addicted Counties’ latest of several (so far unsuccessful) attempts to have a court declare that the O&C Act of 1937 is indeed a combination of the 11th Commandment and the 28th Amendment. The O&C Act is, in fact, Congress’s first attempt to write a multiple use statute, and along with statutes enacted before and after 1937 (such as the Endangered Species Act and the Clean Water Act) guide the management of the O&C lands. Both Earthjustice and the Western Environmental Law Center have intervened in the two cases on behalf of several conservation organizations (woe unto Big Timber and Addicted Counties).
To get down and dirty on this obscure statute that applies only to certain federal public lands in western Oregon, I commend to you:
• “The Oregon and California Lands Act: Revisiting the Concept of ‘Dominant Use’” by Deborah Scott and Susan Jane Brown (Journal of Environmental Law and Litigation, 2006)
• “The Oregon and California Railroad Grant Lands’ Sordid Past, Contentious Present, and Uncertain Future: A Century of Conflict” by Michael C. Blumm and Tim Wigington (Boston College Environmental Affairs Law Review, 2013).
[A Monumental Battle, Part 2: National Monuments in the Congress addresses current congressional shenanigans.]
Compared to its four adjacent neighbors, Oregon has the smallest percentage of its lands designated as units of the National Wilderness Preservation System. While the average of the areas of the five states protected as wilderness is more than 9 percent, in Oregon less than 4 percent of the land is so protected. Oregon has 47 wilderness areas totaling 2,457,473 acres. Additional potential wilderness areas (a.k.a. roadless areas) in Oregon total more than 12 million acres, with approximately 61 percent of that area being generally tree-free (in the Oregon High Desert and other desert areas considered part of the sagebrush steppe, aka Sagebrush Sea) and the remainder generally forested. Congress should expeditiously expand the National Wilderness System in Oregon.Read More
During this Trumpian Quadrennium, with a Congress hostile to conservation, the chances of expanding the National Wildlife Refuge System (NWRS) approach zero. Yet the need to double the size of the system has never been greater, so now is the time to start.Read More
Our beloved National Wildlife Refuge System arose with little systematic thought. From President Theodore Roosevelt’s proclamations of the first “national bird reservations,” many areas have been established under a multitude of names (wildlife refuges, wildlife ranges, game ranges, wildlife management areas, waterfowl production areas, and more). What they all have in common is that their primary purpose is the conservation of native animals.Read More
The National Wildlife Refuge System didn’t get fully formed until 1997, when Congress passed a law that says the system brings together “all lands, waters, and interests therein administered by the Secretary as wildlife refuges, areas for the protection and conservation of fish and wildlife that are threatened with extinction, wildlife ranges, game ranges, wildlife management areas, or waterfowl production areas.” The same law states that the mission of the NWRS is to “administer a national network of lands and waters for the conservation, management, and where appropriate, restoration of the fish, wildlife, and plant resources and their habitats within the United States for the benefit of present and future generations of Americans.”Read More
Why wilderness? Why the hell not wilderness?! As Edward Abbey proclaimed in The Journey Home, “The idea of wilderness needs no defense. It only needs more defenders.” Unfortunately, the default setting of our Western society is that nature does not have value unless we can dig it up, cut it down, graze it off, plow it under, drain it dry, make it wet, or haul it away. Even wilderness defenders need information and arguments with which to persuade an increasingly online—and out of touch—public about the importance of and threats to wilderness.Read More
In its recently revised resource management plans for western Oregon, the Bureau of Land Management has identified 290 parcels of federal public lands, ranging in size from 0.01 to 440.2 acres and totaling 18,458.95 acres, as suitable for disposal. Although disposing of 0.7 percent of the approximately 2,600,000 acres of western Oregon BLM public lands may not seem like a big deal, many of these parcels have high public values.Read More
Finally on March 30, 1891, Congress enacted the Forest Reserve Act, which allowed the president to proclaim national forests from lands in the federal public domain. President Benjamin Harrison (1889–1893), who signed the legislation, eventually proclaimed forest reserves totaling 13 million acres, including the nation’s first: Yellowstone Park Timber Land Reserve (today, mostly the Shoshone National Forest in Wyoming).
President Grover Cleveland (1893–1897) created more forest reserves totaling 25.8 million gross acres (not all within the reserve boundary was federal public domain). President William McKinley (1897–1901) followed by proclaiming 7 million acres. President Theodore Roosevelt (1901–1909) established an additional 150 million acres of what would become known as national forests....
Thanks, Benny, Grover, and, most especially, Teddy!
However, more forest lands should be included in the National Forest System. This includes 2.6-million acres of generally forested Bureau of Land Management holdings in western Oregon. It includes other generally-forested BLM lands in eastern Oregon, Montana, Alaska and elsewhere. It includes large amounts of private industrial and small private timberlands that could be acquired from willing sellers.
History has shown we cannot rely on the private sector to conserve forests, protect drinking water, and provide other public values, including wildlife habitat, recreation opportunities, and scenic views. The private values of timberlands are in conflict with these public values and are driven by a desire to maximize profit, return on investment, and net present value. If the public wants to have those public values, these conservation responsibilities must be borne mostly by the public—not the private—sector.Read More
The Snake River in Hells Canyon would be dammed today if not for former Senator Bob Packwood (R-OR). The French Pete watershed would not have been returned to its rightful place in the Three Sisters Wilderness if not for Packwood.
No, Packwood is not dead yet, but he is in his ninth decade (and with all his marbles, the last time I saw him). I am implementing a new policy to remember some Oregon public lands conservation greats before they, in words from Hamlet’s "To be, or not to be" soliloquy, “have shuffled off this mortal coil mortal coil.” It is an interesting exercise and a challenge to write a remembrance of someone not yet passed. I’ll call it a premembrance.Read More
Take a gander at your favorite statewide maps, on paper or in Google Maps, and you may be left with the impression that those green polygons labeled National Forest are indeed solid expanses of national forest. In the West and Alaska, mostly yes; in the East, not so much.
Only 54 percent of the lands within the official boundaries of eastern national forests are federal public lands. Compare that to 90 percent of western national forest lands and 95 percent of Alaskan national forest lands. Nationally, only 83 percent of the Forest Service green on maps is Forest Service land.Read More
Alas, Congress adjourned at the end of 2016 without enacting the Oregon Wildlands Act into law. We expect the bill to be reintroduced in the next Congress but are not optimistic about its passage. But while the congressional conservation pipeline may be clogged, it is not full. Now is the time for more legislation to be introduced to designate more wild and scenic rivers in Oregon.Read More
At 61 and with acrophobia, I’m no use in climbing old trees to defend them from the chainsaw. But a younger generation of activists will sit, en masse, in those threatened old-growth trees, in front of bulldozers, and/or in appropriate offices. And if it comes to that, I’m happy to get arrested in offices of the Forest Service, the Bureau of Land Management, the Republican Party, the timber industry, or elected officials.
Bring it on, President Trump. Bring it on, Big Timber. Bring it on, Rep. Walden. Go ahead, make my day: reignite the Pacific Northwest timber wars.
Let the battle be joined, as nothing less is at stake than the lands and forests we leave to future generations.Read More
With President-elect Trump having won the Electoral College and the Republicans being in the majority of both houses of the coming 115th (2017-2018) Congress, the public lands conservation community is going to be on defense like never before.
It was either the Prussian general Carl von Clausewitz (1780–1831) or the Manassa Mauler, William Harrison "Jack" Dempsey (1895–1983) who famously said that the best defense is a good offense. The conservation community needs to be for good things while we are opposing bad things.
Though we’ve burned through one-sixth of the current century, Congress has yet to enact any sweeping and bold public lands conservation legislation in the new millennium. There’s still time though, and a crying need.
You may be questioning my grip on reality at this moment, given the recent election. While I am quite cognizant of the dark times that await us, I’m equally aware that it often takes several Congresses (two-year terms) to enact sweeping and bold legislation into law....
There is no time like the present to begin to change political reality.
The people of Boston might make more money chopping up Old Ironsides into souvenirs and leasing out the space on the water to a floating casino, but they can’t. The oldest commissioned ship in the United States Navy doesn’t belong to them alone. The people of Washington DC might make more money if the National Mall were converted to condominiums, but they can’t. The nation’s lawn doesn’t belong to them alone.
Nor do the nation’s federal public lands belong to locals alone.Read More
One of my obsessions in life is to disabuse any and all that holders of permits (or leases) to graze livestock of the federal public lands have a “right” to do so.... Federal grazing permits/leases do not convey “grazing rights” on federal public lands. Grazing permits issued by the Bureau of Land Management (BLM) and Forest Service allow the permit/lease holder the privilege to use publicly owned forage on federal public lands. The permits do not confer a right to permittees/lessees to graze public lands.... If the Forest Service or Bureau of Land Management revokes or does not renew a federal grazing permit or lease, it is not a [constitutional] “taking.” The withdrawal of a giving is not a taking.Read More