Top Line: Big Timber’s and Addicted Counties’ supreme gambits to gut the Cascade-Siskiyou National Monument have failed, but the monument is still in mortal peril from the Bureau of Land Management.
Figure 1. Pilot Rock in the Soda Mountain Wilderness in the Cascade-Siskiyou National Monument. The prominent landmark served to guide invading settlers and is now quite noticeable from I-5. Source: Bureau of Land Management.
On March 25, 2024, the US Supreme Court declined to take up the question of the legality of President Obama’s 2017 proclamation expanding the Cascade-Siskiyou National Monument (CSNM), which sits astride the California-Oregon border. The Supreme Court let stand two appeals court decisions that the expansion is indeed quite legal.
Map 1. The Cascade-Siskiyou National Monument, Oregon and California. The red line is the Pacific Crest National Scenic Trail. Source: Bureau of Land Management.
The CSNM was first established in 2000 by President Clinton at ~53,000 acres in size, ~40,000 acres of which were infamous “O&C” federal public lands. Since 2000, the Bureau of Land Management (BLM) has acquired and incorporated 12,000 acres of previously private lands into the monument. With President Obama’s expansion in 2017 of ~48,000 acres, ~40,000 acres of which were O&C lands, the monument now comprises 113,507 acres of federal public lands administered by the BLM.
Figure 2. Twolobe larkspur in the Cascade-Siskiyou National Monument. Hummingbirds love larkspur, as do I, but for a different reason. If eaten, larkspur is extremely poisonous. Native wildlife are smart enough to avoid the plant, but domestic livestock are not. Source: Bureau of Land Management.
The BLM has recently issued a new draft management plan for the expanded national monument. The document makes clear that the monument is still in peril, as the BLM just cannot seem to understand that a national monument is special and different and requires special administration different from other lands it administers.
Figure 3. The former Box-O Ranch in the Cascade-Siskiyou National Monument. Source: Bureau of Land Management.
Big Timber’s Dead-End Road
In 2017, three entities sued the president for daring to expand the Cascade-Siskiyou National Monument pursuant to congressionally delegated authority under the Antiquities Act of 1906. Murphy Timber Company and Murphy Timber Investments, LLC, filed suit in the US District Court for Oregon. The American Forest Resource Council (AFRC), of which Murphy is a member, and the Association of O&C Counties (AOCC) filed suits in the US District Court for the District of Columbia. The alleged presidential “overreach” was that the monument expansion included some infamous “O&C” lands.
The “O&C” lands are federal public lands originally granted to the Oregon and California Railroad and later revested to the federal government for not complying with the terms of the land grant. Murphy, AFRC, and AOCC all contended that the congressional enactment of the Oregon and California Lands Act of 1937 precluded a president from proclaiming a national monument on O&C lands, now administered by the Bureau of Land Management.
Figure 4. Old-growth incense cedar in the Cascade-Siskiyou National Monument. Source: Bureau of Land Management.
The judge in the US District Court for the District of Oregon rejected Murphy’s claim, as did a panel of three judges in the US Ninth Circuit Court of Appeals. From the Ninth Circuit Court of Appeals opinion:
But Murphy overreads the extent of congressional commitment to timber production in the O&C Act and improperly discounts the considerable discretion that the statute grants the Department in managing O&C Lands for uses other than timber. After reviewing the O&C Act’s plain text and legislative history, we hold that the Proclamation is a valid exercise of the President’s Antiquities Act authority.
Figure 5. Part of the US Supreme Court’s order list of March 25, 2024, showing the outcome of the Murphy case, which sought to eviscerate the Cascade-Siskiyou National Monument. Read all about the case listed above it, American Forest [Resource] Council, in the next Public Lands Blog. Source: United States Supreme Court.
The judge in the US District Court for the District of Columbia agreed with plaintiffs AFRC and AOCC, but a panel of three judges in the US District of Columbia Circuit Court of Appeals totally reversed the district court judge, with reasoning similar to the Ninth Circuit Court of Appeals in the Murphy case. In essence, Big Timber and Addicted Counties “overread” the Oregon and California Lands Act of 1937 to be the legal, social, economic, political, and religious equivalent of an 11th Commandment and a 28th Amendment combined. However, I’m getting ahead of myself. Stay tuned for the next Public Lands Blog post, where I examine these recent judicial rulings pertaining to the O&C Lands Act outside the narrow context of the Antiquities Act of 1906.
Figure 6. Boccard Point in the Soda Mountain Wilderness in the Cascade-Siskiyou National Monument. Mount Shasta is in the background; the “water feature” in the midground was Irongate Reservoir, which no longer exists, as Irongate Dam and three other dams on the Klamath River have been drained and are being dismantled in the largest dam removal project in the United States. Source: Bureau of Land Management.
Recently, the US Supreme Court declined to take up the cases, so it’s the end of the road for Murphy, AFRC, and AOCC in re: an expanded Cascade-Siskiyou National Monument. (See ya at the next expansion, suckers!)
Two justices (Gorsuch and Kavanaugh) would have taken the case, but the other seven would not. Just guessing here, but Justices Thomas and Alito may have been tempted to take the case (it only takes four justices to take a case, but five justices to decide a case), but there is so much other judicial damage they want to do and so little Court time that they passed on this one. Chief Justice Roberts is fishing for a case to eviscerate the Antiquities Act of 1906, in which Congress granted the president the power to proclaim national monuments, but this wasn’t the case he was looking for.
Figure 7. The Pacific Crest National Scenic Trail near Hobart Bluff in the Cascade-Siskiyou National Monument. Source: Bureau of Land Management.
The New Menace: The BLM’s Draft Resource Management Plan
Just after the Supremes crushed the dreams of Big Timber and Addicted Counties, the BLM issued a new draft management plan for the expanded national monument. Public comment is being taken until July 5. I’ve yet to get deeply into the 830-page document, but it appears the BLM believes it can “balance” the Antiquities Act command to protect all objects of historic or scientific interest (all those important, if not unique, scientific and historical resources) with other uses and abuses in the monument. That’s not the way the Antiquities Act works.
Figure 8. The BLM’s proposed new management plan for the Cascade-Siskiyou National Monument. The BLM just cannot seem to understand that a national monument is special and different and requires special administration different from other lands it administers. Source: Bureau of Land Management.
Fundamentally, the BLM just doesn’t get it. The agency routinely and cavalierly disrespects the Cascade-Siskiyou National Monument. The agency fails to appreciate that a national monument is different from other public lands and that the Antiquities Act itself and the presidential proclamations that established and expanded the Cascade-Siskiyou National Monument require the agency to behave differently as compared to most other lands it administers. Certainly, the BLM has not elevated its management of the Cascade-Siskiyou National Monument commensurate with the monument’s social and legal importance but rather has in the bureaucratic mind lumped it in with the other public lands it (mis)manages for “multiple use” (effectively a code phrase for “timber”).
Let’s explore just one recent egregious example.
Forest Carnage in the Name of Safety
A little background. As federal forest management agencies have lost their social license to log mature and old-growth forest just for the logs to mill, they have concocted new reasons to log such trees, such as:
· to reduce wildfires (the only way to prevent forest fires is to prevent forests)
· for “forest health” (some trees are dying and all will eventually, so get the logs now)
· for wildlife (some species prefer “early seral” habitats created by clear-cuts; never mind that there is already a surfeit of these)
· for salvage (trees are dead, so get the logs)
· for public safety (a tree may fall on a road, though the odds of a car being hit by one are astonishingly low)
The public safety ploy is tried and true. Not only must standing dead trees be cut down because they will eventually fall down, but also living trees that could fall down in the road or across a trail or whatever must be cut down. The latter includes “hazard” trees that physically and geometrically cannot possibly fall on a road.
In 2021, the Medford District of the BLM gave itself a free pass to not have to comply with the National Environmental Policy Act if it wants to salvage log any and all BLM trees “that present a hazard to the public or infrastructure”—infrastructure like every road and trail on the district. In the document granting themselves a free pass, the BLM promised safeguards and a process to prevent unnecessary damage. However, the process certainly wasn’t followed for recent logging carnage in the Cascade-Siskiyou National Monument.
Figure 9. Recent “hazard” tree logging in the Cascade-Siskiyou National Monument. Source: Soda Mountain Wilderness Council.
The gambit is basically this. Although cutting of large trees is increasingly disfavored on public lands, if bureaucrats propose to do such logging in the name of public safety, they can likely get away with it. Further, while the equipment is deployed, the BLM foresters want to bring in as many large logs as they can to be trucked to a mill, so they define as many trees as possible as “hazard” trees. First, they define the “safety zone” on either side of a road (“infrastructure”) to be exceedingly spacious. If there are non-hazard trees (all the better if they are old growth) in the way of logging the hazard trees (which are more likely than not old growth), those can be cut down, too.
Figure 10. Trees that were bureaucratically deemed a hazard to “infrastructure” (aka “road”). Not! Note the distance from the road of stumps in the background, the height of the residual trees next to said stumps, the general flatness of the terrain. Source: Soda Mountain Wilderness Council.
The exemption document demonstrates a remarkable misunderstanding of very elementary geometry and effectively asserts that gravity works differently on Medford District BLM lands from anywhere else. Let’s probe this document more deeply, as it demonstrates just how disingenuous and depraved is the Medford District BLM bureaucracy. As each sentence of the “safety zone” paragraph of perfect perfidy is uniquely perverse, I will present and comment on each separately.
Hazard trees would be felled within 1-1/2 tree lengths [of roads] on flat sites.
First, to get the terminology straight, a tree only has “length” if already on the ground (even if just in the forester’s mind); a standing tree has height. So what this sentence says is that the loggable “safety zone” to drop any and all “hazard” trees on flat ground is the area between the edge of the road and a parallel line drawn 1.5 tree heights from the edge of the road. This means that 33 percent of the loggable “safety zone,” the portion between the line drawn 1.5 tree heights from the road and a hypothetical line drawn 1 tree height from the road, has “hazard” trees that could not even touch the road if they fell down themselves. Perhaps only the BLM knows that such trees jump up to half their height (and always toward a road) as they are naturally falling.
Since slide or roll distance increases with percent slope and soil conditions, the distance needed for the safe removal of hazard trees on the upslope side of roads or facilities would be determined on a tree-by-tree basis by a competent person.
It seems the 1.5-tree-heights “safety zone” may not be enough for some “hazard” trees, and the zone may need to be expanded on uphill slopes. But the reality is that even if a “hazard” tree falls naturally on a steep slope, it’s not going to roll all the way to the road—unless the BLM has already removed every tree in its path and limbed every branch on its trunk. Even if it does so roll, it’s all the easier to butcher the tree into logs next to the road anyway, which is the actual intent, not safety.
On the downslope side of roads/trails or facilities, only hazard trees likely to fall towards the road/trail prism [the disturbed footprint] or facility within one to 1-1/2 tree lengths would be felled.
In other words, downhill from roads, only “hazard” trees that know how to defy gravity and fall uphill would be felled. The trick will be to identify these trees before they fall. There must be some! To be fair, perhaps the BLM expects these “hazard” trees with special powers not to jump uphill as they fall, but only to roll uphill (limbs and all) after they are felled.
Time for a New Custodian for the Cascade-Siskiyou National Monument
For more than a century now, national monuments, national forests, national wildlife refuges, and the like have been carved out of lands administered by the Bureau of Land Management (or its predecessor, the General Land Office). President Clinton’s secretary of the interior from 1993 to 2001, Bruce Babbitt, wanted to change the BLM’s culture to be more one of conservation and less one of exploitation. Babbitt observed that it wasn’t helpful for the bureaucracy routinely to lose “crown jewels” to other agencies, as this gave the BLM no incentive to conserve things. Well-conserved lands would just be lost (thinking like a bureaucrat, not a public servant at this point).
Figure 11. Jenny Creek Wild and Scenic River within the Cascade-Siskiyou National Monument. Source: Bureau of Land Management.
In an attempt to improve the BLM, Babbitt created out of thin air the National Landscape Conservation System (later blessed by Congress) as a home for the BLM’s special places. Babbitt’s thinking was that the bureaucracy would improve as the higher and more noble demands of conservation for the benefit of this and future generations were thrust upon it. But the BLM choked, and the bureaucracy generally has not taken the opportunity to change its ways. As that great environmentalist Sir Winston Churchill said: “Never try to teach a pig to sing; it wastes your time and it annoys the pig.” The BLM simply cannot sing. If history is any guide (and it is), BLM simply will never sing.
It’s time for Congress to transfer the Cascade-Siskiyou National Monument to the National Park Service to be administered as part of the National Park System.
Figure 12. In 2017, then Secretary of the Interior Ryan Zinke (left) recommended that President Trump emasculate the Cascade-Siskiyou National Monument. Didn’t happen, but watch out if Trump gets another term. Source: Bureau of Land Management.
For More Information
Hall, Shaun. March 25, 2024. US Supreme Court Won’t Take Up Challenge to Cascade-Siskiyou Monument Expansion. Rogue Valley Times.
Perkowski, Mateusz. April 5, 2024. Timber Industry Won’t Concede Defeat in National Monument Battle, Experts Say. Capital Press.
United States Court of Appeals for the District of Columbia Circuit. July 18, 2023. American Forest Resource Council v. United States of America.
United States Court of Appeals for the Ninth Circuit. April 24, 2023. Murphy Co. v. Biden.
Figure 13. A very clear, moonless night in the very dark Cascade-Siskiyou National Monument. Source: Bureau of Land Management.
Bottom Line: It’s time to transfer the Cascade-Siskiyou National Monument to the safekeeping of the National Park Service in the National Park System.
Figure 14. Spring Creek Wild and Scenic River within the Cascade-Siskiyou National Monument. Source: Bureau of Land Management.