Monument expansion violates federal law

This paper has reported on multiple legal challenges to President Obama’s expansion of the Cascade-Siskiyou National Monument in Southern Oregon and Northern California. As a lead plaintiff in one of those challenges, I want to explain why we — members of the forest products industry — filed a lawsuit. The reason might surprise you.

In the final days of President Obama’s second term, the president used authorities granted by Congress under the 1906 Antiquities Act to designate approximately 48,000 acres of federal lands as a national monument. The forest products industry is not disputing the legality of the Antiquities Act or a president’s discretion to use the Antiquities Act consistent with specific limitations set by Congress.

However, in this case, the lands designated by President Obama had already been designated by an act of Congress (the O&C Act) for a completely different purpose: supporting local governments through sustainable forest management. The law unambiguously requires all O&C lands to be managed for permanent forest production. To be clear, “permanent forest production” does not mean clearcuts of old growth. It does not mean going back to 1960s-era harvest levels. Nor does it mean sacrificing our clean water, air, or recreational opportunities.

What it does mean is that the O&C Lands are required by law to produce timber. By contrast, President Obama’s Cascade-Siskiyou National Monument expansion explicitly prohibits harvesting timber on these same lands. This conflict is at the heart of our lawsuit: Can a president — Democrat or Republican — unilaterally designate public lands for a specific purpose even if that purpose directly contradicts federal law and congressional intent?

President Franklin Roosevelt’s lawyers already answered this question 70 years ago when the Roosevelt administration was considering an expansion of the Oregon Caves National Monument using the Antiquities Act. Roosevelt’s top lawyer at the Department of the Interior advised President Roosevelt that he did not have the authority because Congress had already reserved O&C lands in Southern Oregon for timber production. Overriding Congress with an executive action would violate the separation-of-powers doctrine that provides the very foundation of our Constitution.

We, members of the forest products industry, agree, and we believe most Oregonians share our view that it is imperative that the president, regardless of party, always follow the law and the Constitution.

Some Oregonians strongly disagree with the plain meaning of the O&C Act — its requirement to harvest timber — and are actively seeking to change it. Others advocate for increased active management of O&C forests to create more jobs, revenues to support basic county services, and to promote forest health.

Diversity of opinion is one of the strengths of our democracy, and we should protect those rights and privileges at all costs. But regardless of one’s personal view, there is a constitutional process for petitioning the government and elected officials to change existing law.

Any member of Congress, including the Oregon congressional delegation, could have introduced legislation to expand the Cascade-Siskiyou National Monument. Had a bill been introduced, it would have been publicly vetted and required to go through a rigorous congressional review process. Before making it to the president’s desk, the bill would have had to pass both the House and Senate. There’s no doubt it’s a difficult, frustrating, slow process — exactly the intent of the Framers to ensure changes to law are durable and exhaustively considered. It is revealing that no member of Congress, the people’s elected representatives, pursued legislation to expand the monument.

In fact, since the O&C Act was passed, Congress has chosen not to make any major changes to the law despite having 80 years to do so. The law has not been amended. It has not been repealed. It has not been replaced. The O&C Act remains the law of the land.

So, when readers of this paper hear from supporters of the monument expansion — as I have — that our lawsuit is “anti-conservation,” is an “attack” on the Antiquities Act, or about “clearcutting old growth,” I hope they will recognize that these false accusations distract the public from the true intent of our lawsuit. We are asking an independent branch of government, our courts, if the plain words of federal law — in this case the O&C Act — actually mean what they say, or if the president has unchecked power to change the meaning of the law. The answer to that question should be important to everyone, opponents and proponents of the monument alike.

— Travis Joseph is president and CEO of the American Forest Resource Council, a nonprofit trade association representing the forest products industry.


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