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Environmental, Natural Resources, & Energy Law

Blumm comments to Zinke regarding Cascade-Siskiyou Monument

June 13, 2017

Prof. Blumm drafted and submitted comments to Interior Secretary Ryan Zinke concerning his review of the Cascade-Siskiyou National Monument in southern Oregon/northern California (June 12, 2017). Seven law professors signed the letter, including Prof. Powers and Prof. Rohlf. See content of the letter below:

 

Dear Secretary Zinke:

            We are teachers of natural resources law and policy at law schools in the vicinity of the Cascade-Siskiyou National Monument.  We wish to comment both on the wisdom and legality of the review of monuments that the president has ordered you to undertake and on the designation of the Cascade-Siskiyou monument in southern Oregon and northern California.  We divide these comments up into separate sections accordingly.

Your Review of National Monuments

            You have said that President Theodore Roosevelt will be your model, an admirable aspiration.  TR would have nothing to do with revocation or reducing the size of monuments.  As you surely must know, he established the Grand Canyon National Monument in 1908.

            And, worth noting, President George W. Bush did not attempt to revoke any of the monuments proclaimed by President Clinton.  In fact, the Bush Justice Department defended the Clinton monuments in court.  And won.

            Also worth noting is that none of the monuments you are charged with reviewing constituted a “midnight land grab.”  No private property is encumbered.  These are federal lands and are owned by all Americans and, as monuments, their ownership does not change. There is in short no “grab.” And most of these monuments—like the Cascade-Siskiyou National Monument we discuss below—were designated only after considerable local involvement and local support.

            Existing grazing permits are utterly unaffected by monument designation.  Existing mineral leases are also preserved. Other economic activities would be subject to a management plan that would reflect local involvement, but they would not be precluded by a proclamation itself.

            Moreover, we think you must tell the president that he lacks the authority to rescind or reduce the size of national monuments.  The attorney general seventy-nine years ago informed President Franklin D. Roosevelt that he lacked authority to revoke monument status because that power was not delegated to him by Congress in the 1906 Antiquities Act.  Further, the Federal Land Policy and Management Act (FLPMA) of 1976 not only reiterated this limitation but also applied to boundary modifications.  For details, please consult the persuasive analysis by four of our colleagues in the Virginia Law Review Online, at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2967807 and included as an attachment to our comments. This article makes clear that revocations or modifications of national monuments are the exclusive authority of Congress under its constitutional Property Clause authority.  Certainly the Secretary would not want to recommend that the president invade congressional authority under Article IV, section III, clause 2 of the Constitution. 

            Executive branch authority over monuments is powerful, but it is limited to designating them.  Revoking or rescinding them is a congressional authority under the Property Clause of the Constitution.  Both the Antiquities Act and its interpretation by the attorney general and FLPMA recognize the congressionally imposed limits on executive authority.  And in fact the executive has seemed to do so as well, as no monuments have been revoked or diminished since the enactment of FLPMA over forty years ago.

            The attorneys general of both the states of New Mexico and Washington have already promised court challenges if you recommend to the president that he revoke or modify the monuments in their states.  They will not be alone. You will invite divisive litigation that lacks substantial local support.  As you know, there is no precedent for a successful challenge to a presidential revocation.  Rightly so, since revocation is a congressional authority, one Congress has been careful to preserve.  A monument revocation designed to appease a narrow local economic interest or ideological opposition to the Antiquities Act is unlikely to survive judicial review. 

While we understand that you are not “afraid” of a lawsuit, we also choose to believe that as a Navy Seal, you hold the U.S. Constitution in high regard.  In fact, you have put your life on the line to defend it.   Defending our national laws and ideals does not just happen on battle fields.  This review provides you that opportunity again.  We urge you to act like Teddy Roosevelt and defend the laws, ideals, and public lands that make this nation great.

The Expansion of the Cascade-Siskiyou National Monument

            Expansion of the Cascade-Siskiyou National Monument was wholly justified to fulfill its stated biodiversity purposes (established nearly two decades ago), took place only after substantial public involvement and with considerable local support, and is not inconsistent with the Oregon and California Lands Act of 1937 (O&C Act).  Timber interests led by the American Forest Resources Council (AFRC) have erroneously claimed that the expansion of the monument conflicts with the O&C Act.  Also erroneous are claims that the expanded monument will inhibit active forest management necessary to combat wildfires and insect infestations and inhibit access to private lands within and adjacent to the monument.  We explain the fallacious nature of these claims below.

            According to the resource management plan drafted by the Bureau of Land Management for the monument:

The presidential proclamation reserved the CSNM in recognition of its remarkable ecology and to protect a diverse range of biological, geological, aquatic, archeological, and historic objects. The resources found in the monument, both individually and collectively, comprise a unique and diverse ecosystem…

The ecological and biological importance of the area now known as the CSNM has long been acknowledged (Detling 1961; Nelson 1997; Prevost et al. 1990). The establishment of the CSNM recognized the high number of native species and plant community richness of the area, as well as the natural ecological processes that create and maintain this diversity, as outlined in the presidential proclamation:

The monument is home to a spectacular variety of rare and beautiful species of plants and animals, whose survival depends upon its continued ecological integrity. Plant communities present a rich mosaic of grass and shrublands, Garry and California black oak woodlands, juniper scablands, mixed conifer and white fir forests, and wet meadows. Stream bottoms support broad-leaf deciduous riparian trees and shrubs. Special plant communities include rosaceous chaparral and oak-juniper woodlands. The monument also contains many rare and endemic plants, such as Greene’s Mariposa lily, Gentner’s fritillary, and Bellinger’s meadowfoam.

The monument supports an exceptional range of fauna, including one of the highest diversities of butterfly species in the United States. The Jenny Creek portion of the monument is a significant center of fresh water snail diversity, and is home to three endemic fish species, including a long-isolated stock of redband trout. The monument contains important populations of small mammals, reptile and amphibian species, and ungulates, including important winter habitat for deer. It also contains old growth habitat crucial to the threatened Northern spotted owl and numerous other bird species such as the western bluebird, the western meadowlark, the pileated woodpecker, the flammulated owl, and the pygmy nuthatch…

 The CSNM was created to protect the ecological integrity of an area with outstanding biological diversity…Pursuant to the Antiquities Act, 16 U.S.C. § 431-433, the President dedicated the public lands within the Cascade-Siskiyou National Monument to the purposes outlined in the proclamation. The proclamation delineated a purpose for the monument that is more specific than those described for most other BLM-administered lands. The presidential proclamation provides the principal management direction for the monument and identifies many specific species, plant communities and other objects of scientific and historic interest in this area. Although important individually, it is the interrelationship of these objects in the context of natural environmental processes that create this diverse ecosystem. Therefore, the overall vision for management of the CSNM is to protect, maintain, restore or enhance relevant and important objects and natural processes.

The expanded monument is fully consistent with the statutory limit of being “the smallest practicable area” consistent with preserving the area’s values.  In fact, a case could be made that the monument is too small, since the final boundaries omitted significant areas of biological and ecological significance identified by scientists as necessary to protect the monument’s identified “objects,” amounting to over 10,000 acres, because the president wished to not interfere with motorized recreation, private land owner concerns, and other developments.  No court has ever ruled that the president designated a monument violating the “smallest practicable area” language.

            AFRC has argued that the monument’s expansion was rushed, not publicly supported, and the product of “Executive overreach.”  Those charges do not stand up to scrutiny, as the public process for monument expansion began in 2011, when eighty-five scientists concluded that population pressures, adjacent land uses, and climate trends made the then-existing boundaries inadequate to safeguard the biodiversity the monument aimed to protect.  The scientists called for expansion of the monument to protect these purposes, and six years later the Obama Administration did so, although not to the extent that the scientists had recommended, and not before both Oregon Senators tried to pass legislation that would have protected much of the same landscape.

            Also untrue is the claim that the expansion of the Cascade-Siskiyou National Monument lacked public support.  The expansion was in fact welcomed by many in the local community and beyond.  The mayors, city councils, and chambers of commerce in the two cities closest to the monument unanimously supported the expansion.  So did the state legislators in the districts where the original monument was located, the Klamath Tribes, and Oregon’s governor.  Hundreds of people in four public meetings supported the proposed expansion.  Public comments received by Senator Jeff Merkley ran three-to-one in favor of the expansion. The expansion was hardly a so-called “midnight monument” created without the participation of important stakeholders.  Even though some do not support the monument’s expansion, this fact does not mean that their participation was not sought nor their voices unheard.

            Timber interests like AFRC have claimed that the O&C Act forbids the monument’s expansion because it included some forfeited railroad grant lands subject to that statute, which these interests argue requires dominant management for timber production. That allegation is erroneous. The 1937 statute called for “forest production,” not timber production, and expressly included watershed and stream protection and recreational use among its purposes.  The O&C Act is clearly not a single-purpose statute, and multiple interpretations by your Department and the BLM have concluded as much numerous times over the past 80 years.

The basis for AFRC’s claim about timber dominance lies in a 1940 Solicitor’s Opinion which suggested that the inclusion of O&C lands in the Oregon Caves National Monument would be inconsistent with the statute.  That opinion has not survived subsequent Solicitors’ Opinions or multiple decisions by the Ninth Circuit Court of Appeals.

           

            Numerous subsequent Solicitor Opinions have determined that the O&C Act embraced the multiple-use philosophy that would ultimately be codified in the Multiple-Use Sustained-Yield Act of 1960 (MUSYA) governing national forest lands.  In fact, the 1937 O&C Act represented Congress’s first endorsement of multiple-use, which was being practiced on the ground by the Forest Service long before MUSYA codified it in 1960.  For example, in 1941 the Solicitor opined that O&C Lands should be managed on the same basis as national forest lands.  A 1943 opinion made clear that the statutory language “permanent forest production … [and] providing a permanent source of timber supply” was limited by sustained-yield plans that reflected the O&C Act’s watershed protection and recreational purposes.  A 1958 opinion upheld long-term recreational leases as consistent with the O&C Act’s timber language quoted above. 

 

            A 1979 opinion concluded that “permanent forest production” meant neither “commercial forestry” nor dominant use, deciding that “there is no reason to conclude that recreation is always subordinate” to other statutory purposes.  And a 1981 opinion stated that maintaining proper old-growth habitat was consistent with the multiple-use directives of the O&C Act, explaining that “it is also clear not only from the language of the Act itself, but also from the legislative history that the O&C Act is a conservation measure requiring a form of multiple-use management.”  This raft of post-1940 Solicitor Opinions makes evident that the 1940 opinion is not the precedent that AFRC claims it to be.

 

            The courts have also made clear that the O&C Act is not a timber-dominant statute.  It contains no statutory withdrawal for timber production, and therefore is a general land management statute subject to processes and considerations imposed by other statutes like the National Environmental Policy Act, the Endangered Species Act, and the Migratory Bird Treaty Act.  See, e.g., Portland Audubon Soc’y v. Babbitt, 998 F.2d 705 (9th Cir. 1993); Seattle Audubon Soc’y v. Lyons, 871 F. Supp. 1291, 1314 (W.D. Wash. 1994); Gifford Pinchot Alliance v. Butruille, 752 F. Supp. 967 (D. Or. 1990).  In the Portland Audubon decision, the appeals court concluded that “only a clear and unavoidable conflict” would exempt O&C management from duties imposed by other statutes. 

            As the Ninth Circuit found with respect to the statutes mentioned above, there is no “clear and unavoidable” conflict between the O&C Act and the Antiquities Act.  The latter was enacted over thirty years before the O&C Act, in which Congress could have—but did not—exempt the latter from the former.  The two statutes must therefore be read together, which can easily be accomplished through the definition of “multiple use,” which does not require all uses from every acre of federal land at all points in time, or even the most remunerative uses.  Instead, the courts have repeatedly held that the lands in total must reflect a balance of multiple uses.  There is no evidence to suggest that the entirety of the O&C estate fails to represent a balance of multiple uses.

            Second, beyond the legal infirmities inherent in AFRC’s argument concerning the effect of the O&C Act, AFRC makes two other erroneous allegations, arguing that the monument expansion will: 1) inhibit active forest management necessary to combat forest fires and insect infestations, and 2) “inhibit access” to private land within and adjacent to the monument’s boundaries.

            The monument’s original 2000 proclamation not only did not forbid active forest management, it anticipated “science-based ecological restoration” and management for public safety concerns.  The 2017 expansion incorporated active forest management for these concerns, which clearly would include thinning projects that are consistent with the “objects” that the monument protects.  A resource management plan for the monument contains numerous references to active forest management, belying the claim that the monument would block such measures where based on the best available science and necessary to prevent wildfires or insect infestations. 

            As for the contention that the monument’s expansion will threaten access to private inholdings and adjacent private lands, the proclamations expressly state that no such access will be blocked.  Both the 2000 and 2017 proclamations contain language preserving all valid existing private rights, which certainly include private rights-of-way.  The existing monument management plan also addresses private access.  Moreover, the 2017 expansion explicitly anticipates a travel management plan authorizing “snowmobile and non-motorized mechanized use off of roads” where consistent with the purposes of the monument.  AFRC’s access concerns are simply misplaced.

Conclusion

            We hope these comments dispel erroneous legal claims, unfounded assertions concerning active forest management and access, and inaccurate allegations about the lack of public participation surrounding the designation and expansion of the Cascade-Siskiyou National Monument.  The monument has been a gift to Oregonians, Californians, and all Americans. 

            We urge you in the strongest possible terms to respect the prerogative of prior presidential initiatives to protect such remarkable places for future generations.  Your legacy will be based on the actions you take with respect to the current review of dozens of national monuments, including the Cascade-Siskiyou National Monument, so we urge you to proceed with extreme caution and respect for the process that led to the designation of these special places.

            Thank you for this opportunity to correct the record.

 

Michael C. Blumm

Jeffrey Bain Faculty Scholar & Professor of Law

Lewis and Clark Law School

 

Adell L. Amos, Associate Dean

Clayton R. Hess Professor of Law

University of Oregon, School of Law

 

Ann Carlson

Shirley Shapiro Professor of Environmental Law

Faculty Co-Director, Emmett Institute on Climate Change and the Environment

UCLA School of Law

 

Tim Duane, Ph.D., J.D.

Professor of Environmental Studies

University of California

 

Melissa Powers

Jeffrey Bain Faculty Scholar & Professor of Law

Director, Green Energy Institute

Lewis & Clark Law School

 

Dan Rohlf

Professor of Law and Of Counsel, Earthrise Law Center

Lewis & Clark Law School

 

Mary Christina Wood

Philip H. Knight Professor

Faculty Director, Environmental and

Natural Resources Law Center

University of Oregon School of Law