Management of Admiralty Island and Misty Fiords National Monuments
E x e c u tiv e O rd e r N o. 6166 leaves in ta c t forest reserv atio n s o n national m o n u m en t lands, an d th e D e p a rtm e n t o f A g ric u ltu re an d th e D e p a rtm e n t o f th e In te rio r th u s share ad m in istrativ e responsibility fo r A d m ira lty Island and M isty F io rd s N ational M o n u m ents. C o n clu sio n o f op in io n o f F e b ru a ry 9, 1979 (3 O p. O .L .C . 85 (1979)), that m an ag em en t fu n ctions in c o n n e c tio n w ith th e tw o national m o n u m en ts m ust be tra n s ferred from th e D e p a rtm e n t o f A g ric u ltu re to the D e p a rtm e n t o f the In terio r, rec o n sid ere d and am en d ed.
February 8, 1980
M EM O R A N D U M O P IN IO N FO R T H E D IR E C T O R , O F F IC E O F M ANA GEM ENT AND BUDGET
This is to advise you that, at the request o f the G eneral Counsel to the U.S. D epartm ent o f A griculture (U SD A ), we have reconsidered and are amending, as follows, our February 9, 1979, memorandum to you concerning the “ M anagement o f Adm iralty Island and Misty Fiords National M onum ents.” [3 Op. O.L.C. 85 (1979)]. We concluded in that opinion that §2 o f Executive O rder No. 6166, 5 U.S.C. §901 note (1976), required a transfer o f managem ent functions from the Forest Service in U SD A to the National Park Service in the D epart ment o f the Interior w ith respect to tw o national m onuments created in D ecem ber 1978, on national forest lands. As explained below, we have subsequently concluded that both U SD A and Interior have legal au thority to manage the lands in question.
I. Background to the February 9, 1979, Opinion
T he President, on D ecem ber 1, 1978, exercised his pow ers under §2 o f the Antiquities A ct o f 1906, 16 U.S.C. §431 (1976), to create national monum ents at Adm iralty Island and Misty Fiords, Alaska. Pres. Proc. Nos. 4611 & 4623, 43 Fed. Reg. 57,009, 57,087 (1978). Included within these monuments w ere approxim ately 3.4 million acres o f federal land that had been reserved as part o f Tongass National Forest in 1907 or 1909. 35 Stat. (Pt. 2) 2152, 2226. On Novem ber 30, 1978, your General C ounsel’s office inquired orally o f this Office w hether the placem ent of a m onum ent reservation on these national forest lands required the transfer o f the management o f the lands to the D epartm ent o f the
396 Interior under Executive O rder No. 6166, issued in 1933. Section 2 of that order provides: All functions o f administration o f . . . national monuments . . . are consolidated in the National Park Service in the D epartm ent of the Interior . . .; except that w here deemed desirable there may be excluded from this provision any public building or reservation w hich is chiefly employed as a facility in the work of a particular agency. In response to your inquiry, on D ecem ber 1, 1978, we solicited views on this question from Interior and USDA. Interior chose to express no view. U SD A forw arded its opinion to us that §2 o f Executive O rder No. 6166 would have expunged the forest status o f Misty Fiords and Adm iralty Island—thus requiring a transfer o f m anagement functions from U SD A to Interior—but for §9 o f the National Forest M anage ment A ct o f 1976, 16 U.S.C. § 1609 (1976), which, in its view, pro tanto repealed the executive order and required the management of national forest land to remain in the Forest Service until rem oved by A ct of Congress. In essence, our February 9, 1979, opinion treated U S D A ’s analysis as the sole issue in dispute, and concluded, contrary to its view, that §9 o f the National Forest M anagement A ct had no effect on the operation of the executive order. We consequently informed you that, absent some legislative action, the m anagement o f these m onuments had to be tranferred from the U SD A to Interior.
II. Reconsideration
On Septem ber 12, 1979, U S D A ’s G eneral Counsel forw arded certain materials to us suggesting the appropriateness o f reconsidering our February 9, 1979, opinion. A lthough, in prior conversations, the G en eral Counsel had indicated that he did not wish to challenge our conclusions on the relationship o f the Forest M anagem ent A ct to Exec utive O rder No. 6166, he questioned the premise, implicit in our opin ion and in his ow n D epartm ent’s earlier view, that Executive O rder No. 6166 operated to expunge the national forest status o f A dm iralty Island and Misty Fiords. In his view, such status, at least w ith respect to monuments created on forest lands after 1933, could be expunged solely by the express exercise o f authority under 16 U.S.C. §473, which permits the President to revoke o r modify prior presidential actions creating national forests, such as Tongass National Forest, out o f unre served public lands. He urged that the effect o f the executive order was only to vest additional management responsibilities in the D epartm ent o f the Interior for national m onuments created on forest lands, thus permitting the tw o departm ents to share adm inistrative responsibility for Adm iralty Island and Misty Fiords.
397 We have concluded that U S D A ’s G eneral Counsel has correctly interpreted the 1933 order. T he purpose of Executive O rder No. 6166 was to effect economies in governm ent by facilitating the consolidation o f similar functions under single governm ent authorities. W ith respect to national monuments, it consolidated m anagement functions in the National Park Service o f the D epartm ent o f the Interior. Its subject m atter, how ever, does not include the status o f reservations attaching to national m onum ent lands. It does not expressly expunge nonm onum ent reservations on national monum ent lands, and no expungement appears by implication. T he executive order is fully effec tive so long as it is interpreted to make possible National Park Service m anagem ent o f forest lands that are national monuments, which itself does not require the elimination o f forest status. T he conclusion that Executive O rder No. 6166 leaves forest reserva tions on national m onum ent lands intact is buttressed by the existence, since 1897, o f express statutory authority perm itting the President to expunge the forest status o f forest lands rem oved previously by the President from unreserved public lands. 16 U.S.C. §473 (1976). N oth ing . in the executive order suggests that it is to be viewed as an alternative or even an additional means o f term inating the forest status o f national forests. Indeed, the o rd e r’s limited organizational function is inconsistent w ith the notion that it confers additional substantive au thorities w ith respect to public lands. In cases o f national monuments created on national forest lands since 1933, the President has consist ently exercised his authority under 16 U.S.C. § 473 to revoke or modify the forest status o f lands he wished to be treated as having only national m onum ent status. See, e.g., Pres. Procs. Nos. 2330, and 2339, 53 Stat. (Pt. 3) 2534, 2544 (1939). This practice implies a continuing adm in istrative interpretation that Executive O rder No.
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Management of Admiralty Island and Misty Fiords National Monuments
E x e c u tiv e O rd e r N o. 6166 leaves in ta c t forest reserv atio n s o n national m o n u m en t lands, an d th e D e p a rtm e n t o f A g ric u ltu re an d th e D e p a rtm e n t o f th e In te rio r th u s share ad m in istrativ e responsibility fo r A d m ira lty Island and M isty F io rd s N ational M o n u m ents. C o n clu sio n o f op in io n o f F e b ru a ry 9, 1979 (3 O p. O .L .C . 85 (1979)), that m an ag em en t fu n ctions in c o n n e c tio n w ith th e tw o national m o n u m en ts m ust be tra n s ferred from th e D e p a rtm e n t o f A g ric u ltu re to the D e p a rtm e n t o f the In terio r, rec o n sid ere d and am en d ed.
February 8, 1980
M EM O R A N D U M O P IN IO N FO R T H E D IR E C T O R , O F F IC E O F M ANA GEM ENT AND BUDGET
This is to advise you that, at the request o f the G eneral Counsel to the U.S. D epartm ent o f A griculture (U SD A ), we have reconsidered and are amending, as follows, our February 9, 1979, memorandum to you concerning the “ M anagement o f Adm iralty Island and Misty Fiords National M onum ents.” [3 Op. O.L.C. 85 (1979)]. We concluded in that opinion that §2 o f Executive O rder No. 6166, 5 U.S.C. §901 note (1976), required a transfer o f managem ent functions from the Forest Service in U SD A to the National Park Service in the D epart ment o f the Interior w ith respect to tw o national m onuments created in D ecem ber 1978, on national forest lands. As explained below, we have subsequently concluded that both U SD A and Interior have legal au thority to manage the lands in question.
I. Background to the February 9, 1979, Opinion
T he President, on D ecem ber 1, 1978, exercised his pow ers under §2 o f the Antiquities A ct o f 1906, 16 U.S.C. §431 (1976), to create national monum ents at Adm iralty Island and Misty Fiords, Alaska. Pres. Proc. Nos. 4611 & 4623, 43 Fed. Reg. 57,009, 57,087 (1978). Included within these monuments w ere approxim ately 3.4 million acres o f federal land that had been reserved as part o f Tongass National Forest in 1907 or 1909. 35 Stat. (Pt. 2) 2152, 2226. On Novem ber 30, 1978, your General C ounsel’s office inquired orally o f this Office w hether the placem ent of a m onum ent reservation on these national forest lands required the transfer o f the management o f the lands to the D epartm ent o f the
396 Interior under Executive O rder No. 6166, issued in 1933. Section 2 of that order provides: All functions o f administration o f . . . national monuments . . . are consolidated in the National Park Service in the D epartm ent of the Interior . . .; except that w here deemed desirable there may be excluded from this provision any public building or reservation w hich is chiefly employed as a facility in the work of a particular agency. In response to your inquiry, on D ecem ber 1, 1978, we solicited views on this question from Interior and USDA. Interior chose to express no view. U SD A forw arded its opinion to us that §2 o f Executive O rder No. 6166 would have expunged the forest status o f Misty Fiords and Adm iralty Island—thus requiring a transfer o f m anagement functions from U SD A to Interior—but for §9 o f the National Forest M anage ment A ct o f 1976, 16 U.S.C. § 1609 (1976), which, in its view, pro tanto repealed the executive order and required the management of national forest land to remain in the Forest Service until rem oved by A ct of Congress. In essence, our February 9, 1979, opinion treated U S D A ’s analysis as the sole issue in dispute, and concluded, contrary to its view, that §9 o f the National Forest M anagement A ct had no effect on the operation of the executive order. We consequently informed you that, absent some legislative action, the m anagement o f these m onuments had to be tranferred from the U SD A to Interior.
II. Reconsideration
On Septem ber 12, 1979, U S D A ’s G eneral Counsel forw arded certain materials to us suggesting the appropriateness o f reconsidering our February 9, 1979, opinion. A lthough, in prior conversations, the G en eral Counsel had indicated that he did not wish to challenge our conclusions on the relationship o f the Forest M anagem ent A ct to Exec utive O rder No. 6166, he questioned the premise, implicit in our opin ion and in his ow n D epartm ent’s earlier view, that Executive O rder No. 6166 operated to expunge the national forest status o f A dm iralty Island and Misty Fiords. In his view, such status, at least w ith respect to monuments created on forest lands after 1933, could be expunged solely by the express exercise o f authority under 16 U.S.C. §473, which permits the President to revoke o r modify prior presidential actions creating national forests, such as Tongass National Forest, out o f unre served public lands. He urged that the effect o f the executive order was only to vest additional management responsibilities in the D epartm ent o f the Interior for national m onuments created on forest lands, thus permitting the tw o departm ents to share adm inistrative responsibility for Adm iralty Island and Misty Fiords.
397 We have concluded that U S D A ’s G eneral Counsel has correctly interpreted the 1933 order. T he purpose of Executive O rder No. 6166 was to effect economies in governm ent by facilitating the consolidation o f similar functions under single governm ent authorities. W ith respect to national monuments, it consolidated m anagement functions in the National Park Service o f the D epartm ent o f the Interior. Its subject m atter, how ever, does not include the status o f reservations attaching to national m onum ent lands. It does not expressly expunge nonm onum ent reservations on national monum ent lands, and no expungement appears by implication. T he executive order is fully effec tive so long as it is interpreted to make possible National Park Service m anagem ent o f forest lands that are national monuments, which itself does not require the elimination o f forest status. T he conclusion that Executive O rder No. 6166 leaves forest reserva tions on national m onum ent lands intact is buttressed by the existence, since 1897, o f express statutory authority perm itting the President to expunge the forest status o f forest lands rem oved previously by the President from unreserved public lands. 16 U.S.C. §473 (1976). N oth ing . in the executive order suggests that it is to be viewed as an alternative or even an additional means o f term inating the forest status o f national forests. Indeed, the o rd e r’s limited organizational function is inconsistent w ith the notion that it confers additional substantive au thorities w ith respect to public lands. In cases o f national monuments created on national forest lands since 1933, the President has consist ently exercised his authority under 16 U.S.C. § 473 to revoke or modify the forest status o f lands he wished to be treated as having only national m onum ent status. See, e.g., Pres. Procs. Nos. 2330, and 2339, 53 Stat. (Pt. 3) 2534, 2544 (1939). This practice implies a continuing adm in istrative interpretation that Executive O rder No. 6166 does not itself autom atically term inate the national forest status o f m onum ents created on national forest lands. On N ovem ber 17, 1972, U S D A and Interior entered into an agree ment, concluding that Executive O rder No. 6166, as amended, ex punged the dual status o f m onum ents created on forest lands prior to 1933. In essence, the departm ents agreed to follow a 1933 opinion of the Solicitor o f the D epartm ent o f the Interior, holding that, in the absence o f a timely interdepartm ental agreem ent to the contrary, the managem ent o f pre-1933 m onum ents on forest lands was transferred autom atically to Interior by Executive O rder No. 6166. W e have not been asked to consider this opinion o r the 1972 agreem ent, and express no view as to their conclusions. W e note, how ever, that such a determ i nation as to pre-1933 monuments, w hich did not construe the effect of the executive o rder on the status o f reservations attaching to national m onum ent lands, does not preclude a case-by-case adm inistrative deci sion as to the proper m anagem ent o f post-1933 national monum ents to
398 the extent perm itted by the executive order and any other applicable statutory authorities. Executive O rder No. 6166 creates management authority in the National Park Service with respect to national m onu ments even if created on forest lands; w hether that authority is exclu sive, additional, delegable, or forfeitable depends on the terms o f the order and other authorities that may exist with respect to the lands.
III. Management Options
Because the President, in creating Adm iralty Island and Misty Fiords National M onuments, did not term inate the national forest status of those lands, the National Park Service, under Executive O rder No. 6166, and the Forest Service, under its statutory authorities, 16 U.S.C. §551 et seq., are both authorized to participate in the m anagement o f these monuments. Both, we have been advised, have appropriations that may be applied to this purpose. On January 15, 1980, representatives o f this D epartm ent met with representatives o f U SD A and Interior, to discuss the future m anage ment o f A dm iralty Island and Misty Fiords. T he U SD A and Interior representatives agreed that the Forest Service and the National Park Service would enter into a memorandum of understanding to govern the management o f these monuments, accounting for the land use stand ards binding on the departm ents and specifying each departm ent’s regu latory and budgetary responsibilities. We have concluded that this is a permissible option for structuring the m anagement responsibilities o f the tw o departments. Cf. 16 U.S.C. § 2 (1976), perm itting the Secretary of A griculture to cooperate with the National Park Service, to the extent requested by the Secretary o f the Interior, in the supervision, m anage ment, and control o f national m onuments contiguous to national forests.
L arry A. H am m ond' D eputy Assistant Attorney General Office o f Legal Counsel