Opinion: U.S. Supreme Court should check executive overreach on federal lands, antiquities act

On March 22, the U.S. Supreme Court will decide whether to hear a case that could decide the future of public lands in the West. The outcome of American Forest Resource Council vs. United States will determine if the president has unlimited powers to make, change and execute federal laws on public lands without congressional approval, environmental or economic analysis, public input or court review.

In 1937, Congress approved the O&C Act, promising to sustainably harvest timber from 2.6 million acres of federal lands in Oregon and share revenues with counties to support public services that host these non-taxable lands. For decades, these counties shared a strong partnership with the Bureau of Land Management (BLM) as the agency dutifully implemented the law. County budgets were balanced, and our rural communities were prosperous and safe. Unfortunately, past presidential administrations reneged on this promise.

In 2012, we worked across the aisle to introduce the bipartisan O&C Trust, Conservation and Jobs Act that sought to cut through the polarization of the “Timber Wars,” bring balance to the management of these lands, and offer certainty for our rural communities. This would have been accomplished through a public trust, managed by Oregonians for Oregonians, and ensuring that diverse interests had a seat at the table. While the measure passed through the U.S. House multiple times on a bipartisan vote, we were unable to get this legislation through the Senate and on to the president’s desk.

Twelve years later, the many challenges associated with O&C lands persist. Counties that host these lands continue to struggle to balance their budgets, especially as federal safety net payments intended to replace lost timber revenue become increasingly uncertain.

Rural Oregon continues to suffer economically. We’ve seen three mill closures in Oregon this year alone due to a lack of timber supply, leading to lost jobs, lost tax revenues and lost infrastructure. The result is insufficient law enforcement, inadequate public services and more human suffering from drug abuse and lack of opportunities.

Past presidential administrations made the situation worse by redesignating portions of these lands through the Antiquities Act, setting aside tens of thousands of acres of O&C lands as a national monument, and later directing the BLM to impose restrictive management plans that have now placed three-quarters of O&C lands off-limits to forest management.

These unchecked executive actions gut the intent and implementation of the O&C Act with real world consequences for rural Oregon communities and forests. The lack of active forest management is contributing to unhealthy forests and massive carbon emissions from severe wildfires.

These executive actions also raise serious questions about federal land management, and who makes the laws: the president or the Congress? This is a question that forestry, logging and county associations have been asking the courts to answer. For more than a quarter-century, federal district and appellate courts on both sides of the country have offered conflicting opinions, often misunderstanding the history of O&C lands and how these lands fit within the complex web of federal environmental laws and regulations.

When we crafted our O&C lands legislation 12 years ago, we signaled to all interested parties that failure by Congress to clarify the law would undoubtedly prompt the Supreme Court to finally settle the question. That’s where we are today.

Regardless of who’s in the White House, Americans of all political stripes should be concerned whenever the separation-of-powers doctrine in our Constitution is diminished by administrative fiat. No president should enjoy unfettered authority to indefinitely suspend or cancel the operation of federal law. For these reasons, we encourage the Supreme Court to take this case, address the use and abuse of the Antiquities Act, and provide certainty for rural Oregon by upholding the O&C Act as Congress intended.

Kurt Schrader, a Democrat, served as U.S. Representative for Oregon’s 5th congressional district from 2009 to 2023. Greg Walden, a Republican, served as U.S. Representative for Oregon’s 2nd congressional district from 1999 to 2021.

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