Transfer of Management Functions Over National Monuments in Admiralty and Misty Fiords, Alaska

• Court: Department of Justice Office of Legal Counsel
• Decided: February 9, 1979
• Status: Published

Opinion

February 9, 1979

79-13 MEMORANDUM OPINION FOR THE DIRECTOR, OFFICE OF MANAGEMENT AND BUDGET*

Department of Agriculture, Forest Service— Department of the Interior, National Park Service—Management Functions Over National Monuments in Admiralty and Misty Fiords, Alaska—Executive Order No. 6166 (5 U.S.C. § 901 note)—National Forest Management Act of 1976 (16 U.S.C. § 1609)

This memorandum responds to the inquiry by your General Counsel’s office whether § 2 o f Executive, Order No. 6166 (1933), 5 U .S.C . § 901 note (1976), creating national m onuments at Admiralty and Misty Fiords, Alaska, requires the transfer o f management functions over national forest lands within the m onuments from the Forest Service o f the D epart­ ment o f Agriculture to the National Park Service o f the Departm ent o f the Interior; and, if so, what legal action would be necessary to secure the Forest Service’s continuing administration o f the lands. We conclude that the order does require the transfer o f management, and that a legally ef­ fective reorganization plan, or other legislative action, is necessary in order to authorize the Forest Service to administer the two monuments. Exercising his powers under § 2 o f the Antiquities Act o f 1906, 16 U.S.C. § 431 (1976),' the President, on December 1, 1978, created national m onuments in Admiralty Island (Proc. 4611, 43 F.R. 57009

* This mem orandum was supplemented and, in the main, superseded by a M em orandum Opinion for the Director o f the Office o f M anagement and Budget, dated February 8, 1980, reflecting a reconsideration o f this opinion requested by the General Counsel o f the D epart­ ment o f Agriculture. 1 Section 2 o f that Act rieads: The President o f the United States is authorized, in his discretion, to declare by (Continued)

85 (1978)), and Misty Fiords, Alaska (Proc. 4623, 43 F.R. 57087 (1978)). W ithin Misty Fiords National M onum ent are approximately 2,285,000 acres o f Federal land that had been reserved as part o f Tongass National Forest in 1907, 35 Stat. (Pt. 2) 2152. W ithin Admiralty Island National M onum ent are approximately 1,100,000 acres o f Federal land that were added to Tongass National Forest in 1909, 35 Stat. (Pt. 2) 2226. Because the President’s powers under the Antiquities Act o f 1906 extend to any “ objects o f historic or scientific interest that are situated upon the lands owned or controlled by the G overnm ent,” the forest system status o f A d­ miralty Island and Misty Fiords did not bar the creation o f monuments on those sites. Neither were the m onum ents barred because o f the require­ ment under § 9 o f the National Forest Management Act o f 1976, 16 U .S.C . § 1609 (1976), that lands set aside by the President as part o f the national forest system not be returned to the public domain except by act o f Congress. The reservation o f national forest lands as parts o f national m onum ents did not return those lands to the public dom ain, but, on the contrary, further restricted their lawful use to purposes consistent with the preservation o f the m onum ents’ objects. Under § 2 o f Executive Order No. 6166, issued in 1933: All functions o f adm inistration o f * * * national m onu­ ments * * * are consolidated in the National Park Service in the Departm ent o f the Interior * * *; except that where deemed desirable there may be excluded from this provision any public building or reservation which is chiefly employed as a facility in the work o f a particular agency. [5 U.S.C. § 901 note (1976).] Because the Admiralty Island and Misty Fiords National Monuments are covered by § 2 and do not fall within the single stated exception to its general provisions, one consequence o f the President’s creation o f na­ tional monum ents on national forest lands would appear to be the transfer o f the management o f those lands from the Forest Service to the National Park Service. Such a transfer is consistent with a 1972 agreement between the Departm ents of Agriculture and the Interior that the 1933 Executive order did “ expunge the dual reservation status formerly existing on monum ents carved out o f National Forests, and vested administration of those areas in the Departm ent o f the Interior.” 2

(Continued) public proclam ation historic landm arks, historic and prehistoric structures, and other objects o f historic or scientific interest that are situated upon the lands owned or con­ trolled by the Governm ent o f the United States to be national m onum ents, and may reserve as a part thereof parcels o f land, the limits o f which in all cases shall be con­ fined to the smallest area com patible with the proper care and m anagement o f the ob­ jects to be protected. W hen such objects are situated upon a tract covered by a bona fide unperfected claim or held in private ownership, the tract, or so much thereof as may be necessary for the proper care and management o f the object, may be relin­ quished to the G overnm ent, and the Secretary o f the Interior is authorized to accept the relinquishment o f such tracts in behalf o f the Governm ent o f the United States. 2 Q uoted in .a letter o f December I I, 1978 from the Acting General Counsel, USDA, to the Acting Assistant A ttorney 'General, Office o f Legal Counsel.

86 The Department o f Agriculture (USDA) argues, however, that § 9 o f the National Forest Management Act o f 1976, pro tanto, superseded Execu­ tive Order No. 6166 with respect to national monuments that incorporate national forest lands.3 Based on the legislative history, USDA interprets § 9 to require that national forests set aside by the President remain within the national forest system, except when removed from the system by act o f Congress. Because Congress has vested management authority over the system in USDA and the Forest Service, it follows, according to USDA, that until Congress acts to the contrary, all lands set aside by the President as national forests must be administered by the Forest Service. If § 9 requires Admiralty Island and Misty Fiords to remain within the national forest system, the statutes relevant to the management o f that system further require that the m onuments be managed by the Forest Serv­ ice. 16 U.S.C. § 472, 551, 1600 (1976). Ordinarily, in cases where statutes4 are inconsistent, the most recent statute controls. Under this rule, the 1976 Act—if it does require that national forest m onuments remain within the national forest system—would impliedly limit or repeal the management provisions o f the Executive order. We conclude, however that § 9 does not require Admiralty Island and Misty Fiords to remain within the national forest system and that a contrary interpretation would misconstrue the statute. Thus, unless amended, Executive Order No. 6166 remains in force. The disputed portion o f § 9 reads: Notwithstanding the provisions o f the Act o f June 4, 1897, no land now or hereafter reserved or withdrawn from the public do­ main as national forests pursuant to the Act o f March 3, 1891, or any act supplementary to and am endatory thereof, shall be re­ turned to the public domain except by an Act o f Congress. The term “ public dom ain” is not defined in the Act, but ordinarily it refers to unreserved lands o f the United States that are subject to disposal or appropriation under the public land laws. Considering the plain m ean­ ing o f its words, § 9 seems only to require that lands, once withdrawn by the President as parts o f national forests, may not again become subject to private appropriation under the public land laws without an act o f C on­ gress. Such an interpretation appears wholly consistent with the express

! In connection with this opinion, we sought the views o f the Departm ent o f Agriculture and o f the Departm ent o f the Interior. Agriculture furnished its views to us by letter dated December II, 1978 (see note 2, supra). In addition, we have consulted the Assistant A ttorney General, Lands and Natural Resources Division. 4 Because Exec. O rder N o. 6166 has the force o f law and cannot be amended without the assent o f Congress, see discussion, infra, our opinion assumes that the ordinary rules o f statutory interpretation, e.g., implicit repeals are disfavored, apply to the order. However, our conclusion as to the effect o f Exec. O rder No. 6166 does not rest on our judgm ent as to the deference a court would accord its provisions, but rather on our interpretation o f 16 U .S.C. § 1609(a). Preterm itting any determ ination o f the force that the order would have if found inconsistent with a subsequent statute, we do not believe the proper construction o f § 9 is inconsistent with the order.

87 purpose o f the section to preserve lands reserved as national forests for the “ long-term benefit” o f “ present and future generations.” In suggesting a narrower interpretation, namely, that “ shall [not] be returned to the public dom ain,” means “ shall not leave the National Forest System,” Agriculture relies on one paragraph in the legislative history that appears in the report o f the Senate Committee on Agriculture and Forestry on the National Forest Management Act o f 1976, S. Rept. 893, 94th Cong., 2d sess. (1976). The single relevant paragraph concerning § 9 reads: Section 9 o f the bill amends redesignated section 11(a) o f the Forest and Rangeland. Renewable Resources Planning Act of 1974 by adding a provision which, in effect, gives Congressional status to National Forest lands reserved from the public domain. O ther National Forests lands already have Congressional status through specific Acts, such as the Weeks Act. The new provision states that, notwithstanding the authority conferred on the Presi­ dent to revoke, modify, or suspend proclamations or executive orders setting apart and reserving public dom ain land as Na­ tional Forests, public dom ain lands which are now or may here­ after be reserved as National Forests are not to be returned to the public domain except by an act o f Congress. This does not affect the President’s authority to combine National Forests, separate a forest into two o r more National Forests, or change the bound­ ary lines o f a forest, providing such changes do not remove lands from National Forest status. Also unaffected are existing authorities regarding exchanges o f lands involving public domain National Forests. [Id. at 19.] This paragraph is, at best, inconclusive with respect to the proper inter­ pretation o f § 9. It states that the President may still modify the size and boundaries o f national forests, “ providing such changes do not remove lands from National Forest status.” It further states that § 9 gives congres­ sional status to national forest lands reserved from the public domain and makes reference to an impliedly analogous provision in the Weeks Act. However, the Weeks Act, which permits the purchase o f lands “ necessary to the regulation o f the flow o f navigable streams or for the production of tim ber,” 16 U .S.C . § 515 (1976), expressly (16 U.S.C. § 521) provides that such lands: [S]hall be permanently reserved, held, and administered as na­ tional forest lands under the provisions o f section 471 o f this title and acts supplemental to and am endatory thereof. Congress’ willingness and ability to provide in the Weeks Act expressly for the permanent adm inistration, as national forests, o f lands purchased for forest use raises the question why Congress chose words with plainly dif­ ferent meanings in the Forest Management Act o f 1976 if its purpose was the same. The inference that Congress did not intend to provide in the National

88 Forest Management Act the same permanent status to lands reserved from the public domain as the Weeks Act accorded to certain acquired lands is buttressed by Congress’ enactment in 1958 o f a statute that expressly made acquired lands not covered by the Weeks Act subject to its protective pro­ visions, and specifically excepted lands reserved from the public domain. 16 U.S.C. § 521a (1976). Congress, when it wanted to expand the coverage o f the Weeks Act, thus referred to it expressly. Congress’ decision neither to adopt the Weeks A ct’s phrasing, nor to incorporate it by reference as it had done in 1958, strongly implies that the intended effects o f the 1976 Act, 16 U.S.C. § 1609(a), and the protective provisions o f the Weeks Act, 16 U.S.C. § 521, are not the same. Further, USDA’s interpretation poses a potential problem for the inter­ pretation o f § 2 o f the Antiquities Act o f 1906, supra. Under this section, the President is empowered to declare certain landmarks, structures, and objects as national monuments, and to: [RJeserve as a part thereof parcels o f land, the limits o f which in all cases shall be confined to the smallest area compatible with the proper care and management o f the objects to be protected. If it were true that lands reserved from the public domain as national forests were to continue to be national forests without regard to their sub­ sequent incorporation in national m onuments, then such lands would con­ tinue to be subject to the uses approved for national forests by the Act o f June 4, 1897, 16 U .S.C . §§ 473-478 (1976), the Multiple Use-Sustained Yield Act o f 1960, 16 U.S.C. §§ 523-31 (1976), the Forest and Rangeland Renewable Resources Planning Act o f 1974, 16 U .S.C . §§ 1601-10 (1976), and the National Forest Management Act o f 1976. O f these approved uses, it is readily conceivable that timbering, in particular, might conflict in a given case with the protection o f objects properly designated as the bases for a national m onum ent. In such a case, the perpetual forest system status o f public domain lands reserved as national forests would conflict with the President’s ability to create and protect national monum ents on public domain lands, a conflict clearly not provided for by any o f the forest acts. In a given case it may be that no such conflict would exist and the fulfill­ ment o f national forest objectives may be wholly consistent with the pur­ poses o f a national m onum ent. However, Congress has anticipated the possibility o f conflict between m onum ent and national forest uses and it prohibited the President from creating national forests out o f national monuments, 16 U .S.C . § 471(b) (1976). (This section was repealed by Pub. L. No. 94-579, Title VII § 704(a), 90 Stat. 2792.) This provision effectively leaves to Congress the judgm ent o f compatibility since Congress could, if it so chose, give to any public land dual m onum ent and forest status. It might be argued that the forest statutes may be read as not requiring timbering on every acre o f forest land, even if the forest land is ideally suited for such use. The complexity o f the forest-related statutes and the unforeseen problems that would be posed, however, further support an

89 interpretation o f the National Forest Management Act o f 1976 which avoids even potential conflict with the Antiquities Act. Attributing to § 9 the plain meaning o f its words avoids that conflict and is consistent with the statute’s purpose and with the language o f the Weeks Act, 16 U .S.C .§ 521a; it also preserves Congress’ role in determining whether, with respect to a particular parcel o f public domain land, m onum ent and forest uses are compatible. Because o f our interpretation o f § 9, the Admiralty Island and Misty Fiords National M onum ents are not parts o f the National Forest System but simply national m onum ents. Accordingly, Executive Order No. 6166 requires the transfer o f management functions from the Forest Service to the National Park Service. In order to permit the Forest Service to manage these m onum ents, the President would have to submit to Congress a reorganization plan under § 2 o f the Reorganization Act o f 1977, 5 U.S.C. §§ 901-12 (1977), presumably upon finding that the return o f management functions to the Forest Service would “ prom ote the better execution o f the laws,” 5 U .S.C . § 901(a)(1) (1977). Under § 2, the plan would become ef­ fective “ at the end o f the first period o f sixty calendar days o f continuous session o f Congress” after the transmission o f the plan, unless either House o f Congress voted to disapprove the plan. It is not possible to amend Executive O rder No. 6166 merely by issuing an am endatory order because the original order itself became effective only with the assent of Congress. The A ttorney General in 1934, concluded that the President could revoke provisions o f Executive orders issued under the Act o f March 3, 1933 only “ in the same m anner in which they were enacted into law.” 37 Op. Atty. Gen. 418 (1934). The current transfer o f functions under a new reorganization plan would be consistent with the Attorney General’s conclusion.5

L a rry A . H am m ond D eputy Assistant A ttorney General Office o f Legal Counsel

5 The President, o f course, is not required to act by reorganization plan and may, if he so chooses, submit a legislative proposal subject to the usual constitutional processes. Under either alternative, it should be recognized that the legislative designation o f the Forest Service as the managing authority for two m onum ents will not itself determine the standards under which the m onum ents must be adm inistered. Unlike the National Park Service, whose gov­ erning statutes, 16 U .S.C . §§ 1-3 (1976), impose particular duties on the Service in connec­ tion with all lands under its adm inistration, the Forest Service is subject to no such specific m andate concerning the adm inistration o f non-national forest system lands. In recom mend­ ing appropriate congressional action, the President may wish to consider the uses to which the m onum ent lands should be subjected and to propose to Congress a more restrictive set o f uses than would ordinarily apply to national forests.