Foster – Winter 2024

Cascade-Siskiyou National Monument & Judicial, Congressional, and Local Opposition to Modern Executive Action under the Antiquities Act

Heather Foster

On January 12, 2017, President Obama issued an executive order redesignating nearly 47,000 acres of forestland in Oregon and California as part of an expansion to the Cascade-Siskiyou National Monument.[1] This redesignation halted all timber-harvesting activity in the protected area. The Obama administration intended to promote “vital habitat connectivity, watershed protection, and landscape-scale resilience” for the region’s endemic flora and fauna.[2]  Responding in part to a 2015 report calling for increased preservation efforts in the region,[3] Cascade-Siskiyou’s expansion aimed to preserve the habitats of endangered species, such as the northern spotted owl, gray wolf, and shortnose sucker, and promote biodiversity. The American Forest Resource Council (AFRC) and 15 Oregon countries challenged this proclamation.[4] These challenges were consolidated in the Court of Appeals for the District of Columbia, which upheld the constitutionality of this executive action.[5] The challengers have sought Supreme Court review of this decision. The legal controversy surrounding the creation of Cascade-Siskiyou should encourage the executive branch act cautiously when creating future national monuments.

In expanding Cascade-Siskiyou, President Obama relied on authority derived from the Antiquities Act of 1906,[6] which authorizes the president to designate “objects of historical or scientific interest” situated on federal land as national monuments.[7] Such land must be limited to “the smallest area compatible with proper care and management of the objects to be protected.”[8] In response to this application of the Antiquities Act, over two dozen outraged congressmen filed an amicus brief, urging the Supreme Court to take up the case on appeal and put a stop to the “limitless delegation” of authority that the Antiquities Act provides to the executive branch.[9] Despite this congressional fervor, the Supreme Court likely will not use this case as a vehicle to curb presidential power under the Antiquities Act.

Many of the Republicans advocating for review believe that the Court will grant AFRC’s petition for certiorari because of Chief Justice John Robert’s 2021 call to curb the executive branch’s extensive use of the Antiquities Act.[10] In 2021, the Supreme Court denied certiorari to Massachusetts Lobstermen’s Association v. Raimondo, a D.C. Circuit decision upholding President Obama’s use of the Antiquities Act to create the Northeast Canyons and Seamounts Marine National Monument.[11] Chief Justice Roberts released an unusually pointed statement along with the Court’s denial of certiorari, which he suggested that a different case may successfully challenge the president’s “power without any discernible limit” to set aside vast swaths of land in the name of preserving antiquities.[12]

The Chief Justice’s comments about unfettered presidential power focused on the Act’s requirement that the preserved area must be the smallest area compatible with the stated mission of the presidential proclamation. He argued that this smallest area compatible requirement renders the Antiquities Act ineffectual in placing “any meaningful restraint” on the executive branch.[13] Chief Justice Roberts was specifically concerned about the recent trend of presidential creation and expansion of marine national monuments.[14] President Bush created the first marine national monument in 2006.[15] Today, there are five marine national monuments, all of which are exponentially larger than their terrestrial counterparts.[16] The Chief Justice feared that the creation of marine monuments transformed the Antiquities Act into “a power without any discernible limit to set aside vast and amorphous expanses of terrain… below the sea.”[17]

However, the vastness of these modern marine monuments bears little resemblance to Cascade-Siskiyou National Monument, which is 28 times smaller than the smallest marine monument even after President Obama’s 2017 expansion.[18] Ultimately, though the Court is concerned with whether the smallest area compatible requirement should exert some constraint on presidential authority, the size of Cascade-Siskiyou will almost certainly fail to agitate the Court’s consternation in a way that the marine national monuments do.

The Supreme Court is also unlikely to find another compelling reason to hear AFRC’s case because the D.C. Circuit ruling did not actually address the smallest area compatible requirement, much like the decision in Lobstermen that the Court declined to hear.[19] AFRC challenged the constitutionality of President Obama’s Cascade-Siskiyou expansion on the grounds that it conflicted with the Oregon and California Railroad and Coos Bay Wagon Road Grant Lands Act (“O & C Act”) and unconstitutionally undercut Congressional authority over timberland in the newly-designated area.[20] Consequently, the D.C. Circuit only addressed whether the Antiquities Act came into conflict with the O & C Act and, if such conflict existed, which act should govern the land in controversy.[21] This judgment further decreases the chance of a successful Supreme Court appeal when read in relation to Lobstermen. Chief Justice Roberts explicitly noted that the Court did not grant certiorari in Lobstermen because “[n]o court of appeals has addressed the questions… about how to interpret the Antiquities Act’s smallest area compatible requirement.”[22] The current bench’s focus on this element of the Antiquities Act suggests that certiorari will only be granted if the smallest area compatible requirement is directly considered by a lower court.

Even if the Court had a constitutional concern beyond the smallest area compatible requirement, AFRC v. U.S. almost certainly does not stoke such alternative judicial concerns because the D.C. Circuit’s holding largely aligns with the Court’s current majority on questions of legislative delegation and separation of powers.[23] The D.C. Circuit held that President Obama’s expansion of Cascade-Siskiyou was constitutional because, though it regulates land also regulated by the O & C Act, the proclamation’s regulatory scheme is reconcilable with the O & C Act.[24] Both President Obama’s proclamation and the O & C Act give the Secretary of the Interior significant discretion over how the relevant land is managed.

Furthermore, President Obama’s directive for the newly-incorporated area is consistent with the sustained yield forestry principles promoted by the O & C Act.[25]  Ultimately, while the ruling upheld this specific use of Antiquities Act authority, the Court’s broader holding curbed future presidential action under the Antiquities Act.[26] In its ruling, the D.C. Circuit held that AFRC was correct in its contention that, when a congressional act and an Antiquities Act executive order come into conflict, the congressional act reigns supreme.[27] This holding materially limits the authority of the executive branch to regulate preserved lands and reflects the current Supreme Court’s skepticism towards legislative delegation.[28] In theory, the Supreme Court could go further than the D.C. Circuit and determine that President Obama’s expansion did unconstitutionally conflict with the O & C Act; however, the Court does not have a strong ideological motivation to overturn the lower court’s ruling.

Recent criticism of the Antiquities Act from local municipalities, congressional Republicans, and Chief Justice John Roberts should encourage the executive branch to proceed with caution when creating and expanding national monuments in the future. However, the AFRC case will certainly not be the case that turns this warning into a substantive limitation on the president’s power to declare national monuments under the Antiquities Act. The Supreme Court’s primary concern, the dormant smallest area compatible requirement, went unaddressed by lower courts in this case. Further, the long-term impact of the D.C. Circuit’s ruling aligns with the conservative preferences of the current Supreme Court.

[1] Proclamation No. 9564, 82 Fed. Reg. 6145, 6148 (Jan. 12, 2017).

[2] Id. at 6145.

[3] Gregory Scruggs, U.S. Conservation Groups have Rallied to Protect Other At-risk Areas, Thomas Reuters Foundation News (Jan. 7, 2019),

[4] Jennifer Yachnin, Timber industry asks Supreme Court to revisit Antiquities Act, Greenwire (Nov. 16, 2023, 1:21 PM),

[5] Am. Forest Res. Council v. U.S., 77 F.4th 787, 805 (D.C. Cir. 2023).

[6]  Proclamation No. 9564, 82 Fed. Reg. at 6148.

[7] An Act For the Preservation of American Antiquities, 16 U.S.C. § 431-433 (1906).

[8] Id.

[9] On Petitions for Writs of Certiorari to the United States Courts of Appeals for the Ninth and District of Columbia Circuits as Brief of Amici Curiae Members of Congress in Support of Petitioners, Am. Forest Res. Council v. U.S., 77 F.4th 787 (D.C. Cir. 2023) (No. 20-5008 Consolidated with 20-5009, 20-5010, 20-5011, 22-5019, 22-5020, 22-5021), 2023 U.S. App. LEXIS 18207 53 ELR 20112.

[10] Yachnin, supra note 4.

[11] Mass. Lobstermen’s Ass’n v. Raimondo, 141 S. Ct. 979 (2021).

[12] Statement of Roberts, C.J. on Petition for Writ of Certiorari to the United States Court of Appeals for the District of Columbia Circuit, Mass. Lobstermen’s Ass’n v. Raimondo, 141 S. Ct. 979 (2021).

[13] Id.

[14] Id.

[15] Proclamation No. 8031, 71 Fed. Reg. 36443, 36443 (Jun. 15, 2006).

[16] Press Release, The White House, Fact Sheet: President Obama to Create the World’s Largest Marine Protected Area (Aug. 26, 2016); U.S. Create Largest Protected Area in the World, 3X Larger Than California, National Geographic (Sept. 26, 2014),

[17] Mass. Lobstermen’s Ass’n, 141 S. Ct. at. 981.

[18] See Kara Rollins & Zhonette Brown, Cascade-Siskiyou National Monument expansion sparks controversy, Daily Journal (Jan. 4, 2024),,straddling%20the%20California%2DOregon%20border; Northeast Canyons and Seamounts Marine National Monument, NOAA Fisheries (Sept. 12, 2023),,and%20discovery%20since%20the%201970s.

[19] Am. Forest Res. Council, 77 F.4th at 805; Mass. Lobstermen’s Ass’n, 141 S. Ct. at 980.

[20] Am. Forest Res. Council, 77 F.4th at 805.

[21] Id. at 789.

[22] Mass. Lobstermen’s Ass’n, 141 S. Ct. at 980.

[23] Devon Ombres, The Supreme Court’s Assault on Government Could Make the Far-Right’s Dreams Come True, Center for American Progress (Feb. 15, 2024).

[24] Am. Forest Res. Council, 77 F.4th at 800.

[25] Id. at 802.

[26] See id. (affirming that, when a congressional act comes into conflict with a presidential proclamation authorized by the Antiquities Act, the congressional act reigns supreme).

[27] Id. at 799.

[28] Matt Ford, The Supreme Court Conservatives’ Favorite New Weapon for Kneecapping the Administrative State, The New Republic (March 13, 2023),

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