Congress
In 2000, Secretary of the Interior Bruce Babbitt created, by administrative order, the National Landscape Conservation System (NLCS), to “conserve, protect, and restore these nationally significant landscapes that have outstanding cultural, ecological, and scientific values for the benefit of current and future generations.”
Read MoreHowever, their cosponsoring a tundra wilderness bill in Alaska and a red rocks wilderness bill in Utah—at relatively large acreages of 1.6 and 9.1 million acres respectively—contrasts unfavorably with the Oregon congressional delegation’s efforts to conserve and restore Oregon’s green forests, tan deserts, and blue waters for the benefit of this and future generations.
Read MoreIn 1986, Congress enacted the Columbia River Gorge National Scenic Area Act to, among other things, “establish a national scenic area to protect and provide for the enhancement of the scenic, cultural, recreational, and natural resources of the Columbia River Gorge.” In 2017, Representative Greg Walden (R-2nd-OR) proposes to throw it out the window.
Read MoreThe congressional conservation pipeline is clogged. This is not because it is too full of fine legislation that would elevate the conservation status of certain public lands by designating wilderness, wild and scenic rivers, and other special protection areas, but because of the general dysfunction of Congress. (I hear it was worse before the Civil War.) One bill in that pipeline, sponsored by Senator Ron Wyden (D-OR) and cosponsored by Senator Jeff Merkley (D-OR), is the proposed Oregon Wildlands Act (OWA) of 2017 (S.1548, 115th Congress).
Read MoreThe federal public lands along more than half of the stream mileage in the National Wild and Scenic Rivers System (NWSRS) can be mined, notwithstanding its congressional “protection” in wild and scenic rivers (WSRs). This is because the Wild and Scenic Rivers Act of 1968 (WSRA) established three different classifications for WSR segments—wild, scenic, and recreational—and banned mining or not based on the classifications. The WSRA needs fixing to offer uniform protection against mining in the NWSRS.
Read MoreWith some tweaks, the proposed Northern California Conservation and Recreation Act can be a great bill that when enacted into law will be a gift of enduring benefit to this and future generations of North Coast Californians, all Californians, and all Americans.
Read MoreThe Owyhee Canyonlands in Oregon are worthy of inclusion in the National Park System, administered by the National Park Service. Now that would be local economic development! The Owyhee Canyonlands are worthy of designation by Congress as an overarching national conservation area with underlying wilderness and wild and scenic rivers where appropriate. The Owyhee Canyonlands are not deserving of a half-assed mineral withdrawal that locks in other harmful uses.
Read MoreAs Jim Weaver quietly lives out his days in his beloved Oregon, this and future generations are in his debt because even though he represented the congressional district ranked highest for timber production in the nation, Weaver was a strong and tireless proponent of wilderness. There are wilderness areas today safely on the map, both inside and beyond his congressional district, because Jim Weaver stood up for the wild in Oregon in ways that no elected official had done before or has done since.
Read MoreThe United Nations recently announced twenty-three additions to the World Network of Biosphere Reserves (WNBR). At the same council meeting where those additions were made, a request by the United States to remove seventeen was also approved. The Trump administration has trumpeted its general disdain for the United Nations, but this withdrawal was done without fanfare and so received very little press coverage.
Read MoreFederal conservation systems are an unqualified social good and generally provide elevated protection and better management to important federal public lands and to resources and areas of high national significance. All existing federal conservation systems could be improved, and none should be weakened or discarded. Those that haven’t yet been codified by Congress need to be.
Read MoreIt costs more to feed a domestic housecat than to graze domestic livestock on federal public lands.
Read More“Birds should be saved for utilitarian reasons; and, moreover, they should be saved because of reasons unconnected with dollars and cents. A grove of giant redwoods or sequoias should be kept just as we keep a great and beautiful cathedral. The extermination of the passenger-pigeon meant that mankind was just so much poorer. . . . And to lose the chance to see frigate-birds soaring in circles above the storm, or a file of pelicans winging their way homeward across the crimson afterglow of the sunset, or a myriad of terns flashing in the bright light of midday as they hover in a shifting maze above the beach-why, the loss is like the loss of a gallery of the masterpieces of the artists of old time.”
This least outdoors-loving American president makes me appreciate the most outdoors-loving president, Theodore Roosevelt. TR spent many a night outside of a bed under the open stars, including three nights in the Sierra with John Muir. Before TR left office in 1909, he had established, sometimes with Congress and sometimes without: 51 bird reservation, four national game reserves, five national parks, 18 national monuments, and 150 national forests. I fear the losses to be toted up when Trump leaves office.
Read MorePresident Trump signed an executive order on April 26, 2017, that directs Secretary of the Interior Ryan Zinke to review sixty-two of the last three presidents’ national monument proclamations, dating back to 1996. The review will result in a final report in four months that “shall include recommendations, Presidential actions, legislative proposals, or other actions consistent with law.”
The administration is interested in either totally abolishing, reducing in size, and/or weakening the protections for national monuments. Those prerogatives belong to Congress. If Trump tries, he’ll get a multitude of tweets saying, “See you in court!”
Read MoreNational 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 MoreHole in the Ground is just a run-of-the-mill extraordinary piece public land on the Deschutes National Forest in Lake County Oregon, where many times over many decades the author has camped either in solitude or with lovers and/or friends on the rim and enjoyed the, scenery, solitude and stars.
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 MoreCrabtree Lake in Crabtree Valley, home to some of the largest and oldest trees in Oregon, located on western Oregon public lands administered by the Bureau of Land Management, in Linn County, is part of the proposed Douglas-Fir National Monument. Photo: David Stone, Wildlands Photography.
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 MoreJenny Creek in the original (2000) Cascade-Siskiyou National Monument, Jackson County, Oregon. Photo: Pepper Trail
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.
Abolition
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.
Reduction
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.
Weakening
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.]
“Friends at home! I charge you to spare, preserve and cherish some portion of your primitive forests; for when these are cut away I apprehend they will not be easily replaced.”
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 MoreGiven Oregon’s historically close ties to the timber industry, it is hard to imagine that a U.S. senator from Oregon could be a co-sponsor of the original legislation that became the Wilderness Act of 1964. Yet Senator Richard Lewis Neuberger was no ordinary U.S. senator.
Read MoreThe 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.
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