b"February 9, 1979\n\n79-13\n\nMEMORANDUM OPINION FOR THE\nDIRECTOR, OFFICE OF MANAGEMENT AND\nBUDGET*\nDepartment of Agriculture, Forest Service\xe2\x80\x94\nDepartment of the Interior, National Park\nService\xe2\x80\x94Management Functions Over National\nMonuments in Admiralty and Misty Fiords,\nAlaska\xe2\x80\x94Executive Order No. 6166 (5 U.S.C. \xc2\xa7 901\nnote)\xe2\x80\x94National Forest Management Act of 1976\n(16 U.S.C. \xc2\xa7 1609)\n\nThis memorandum responds to the inquiry by your General Counsel\xe2\x80\x99s\noffice whether \xc2\xa7 2 o f Executive, Order No. 6166 (1933), 5 U .S.C . \xc2\xa7 901\nnote (1976), creating national m onuments at Admiralty and Misty Fiords,\nAlaska, requires the transfer o f management functions over national\nforest lands within the m onuments from the Forest Service o f the D epart\xc2\xad\nment o f Agriculture to the National Park Service o f the Departm ent o f the\nInterior; and, if so, what legal action would be necessary to secure the\nForest Service\xe2\x80\x99s continuing administration o f the lands. We conclude that\nthe order does require the transfer o f management, and that a legally ef\xc2\xad\nfective reorganization plan, or other legislative action, is necessary in\norder to authorize the Forest Service to administer the two monuments.\nExercising his powers under \xc2\xa7 2 o f the Antiquities Act o f 1906, 16\nU.S.C. \xc2\xa7 431 (1976),' the President, on December 1, 1978, created\nnational m onuments in Admiralty Island (Proc. 4611, 43 F.R. 57009\n\n* This mem orandum was supplemented and, in the main, superseded by a M em orandum\nOpinion for the Director o f the Office o f M anagement and Budget, dated February 8, 1980,\nreflecting a reconsideration o f this opinion requested by the General Counsel o f the D epart\xc2\xad\nment o f Agriculture.\n1 Section 2 o f that Act rieads:\nThe President o f the United States is authorized, in his discretion, to declare by\n(Continued)\n\n85\n\n\x0c(1978)), and Misty Fiords, Alaska (Proc. 4623, 43 F.R. 57087 (1978)).\nW ithin Misty Fiords National M onum ent are approximately 2,285,000\nacres o f Federal land that had been reserved as part o f Tongass National\nForest in 1907, 35 Stat. (Pt. 2) 2152. W ithin Admiralty Island National\nM onum ent are approximately 1,100,000 acres o f Federal land that were\nadded to Tongass National Forest in 1909, 35 Stat. (Pt. 2) 2226. Because\nthe President\xe2\x80\x99s powers under the Antiquities Act o f 1906 extend to any\n\xe2\x80\x9c objects o f historic or scientific interest that are situated upon the lands\nowned or controlled by the G overnm ent,\xe2\x80\x9d the forest system status o f A d\xc2\xad\nmiralty Island and Misty Fiords did not bar the creation o f monuments on\nthose sites. Neither were the m onum ents barred because o f the require\xc2\xad\nment under \xc2\xa7 9 o f the National Forest Management Act o f 1976, 16\nU .S.C . \xc2\xa7 1609 (1976), that lands set aside by the President as part o f the\nnational forest system not be returned to the public domain except by act\no f Congress. The reservation o f national forest lands as parts o f national\nm onum ents did not return those lands to the public dom ain, but, on the\ncontrary, further restricted their lawful use to purposes consistent with the\npreservation o f the m onum ents\xe2\x80\x99 objects.\nUnder \xc2\xa7 2 o f Executive Order No. 6166, issued in 1933:\nAll functions o f adm inistration o f * * * national m onu\xc2\xad\nments * * * are consolidated in the National Park Service in\nthe Departm ent o f the Interior * * *; except that where deemed\ndesirable there may be excluded from this provision any public\nbuilding or reservation which is chiefly employed as a facility in\nthe work o f a particular agency. [5 U.S.C. \xc2\xa7 901 note (1976).]\nBecause the Admiralty Island and Misty Fiords National Monuments are\ncovered by \xc2\xa7 2 and do not fall within the single stated exception to its\ngeneral provisions, one consequence o f the President\xe2\x80\x99s creation o f na\xc2\xad\ntional monum ents on national forest lands would appear to be the transfer\no f the management o f those lands from the Forest Service to the National\nPark Service. Such a transfer is consistent with a 1972 agreement between\nthe Departm ents of Agriculture and the Interior that the 1933 Executive\norder did \xe2\x80\x9c expunge the dual reservation status formerly existing on\nmonum ents carved out o f National Forests, and vested administration of\nthose areas in the Departm ent o f the Interior.\xe2\x80\x9d 2\n\n(Continued)\npublic proclam ation historic landm arks, historic and prehistoric structures, and other\nobjects o f historic or scientific interest that are situated upon the lands owned or con\xc2\xad\ntrolled by the Governm ent o f the United States to be national m onum ents, and may\nreserve as a part thereof parcels o f land, the limits o f which in all cases shall be con\xc2\xad\nfined to the smallest area com patible with the proper care and m anagement o f the ob\xc2\xad\njects to be protected. W hen such objects are situated upon a tract covered by a bona\nfide unperfected claim or held in private ownership, the tract, or so much thereof as\nmay be necessary for the proper care and management o f the object, may be relin\xc2\xad\nquished to the G overnm ent, and the Secretary o f the Interior is authorized to accept\nthe relinquishment o f such tracts in behalf o f the Governm ent o f the United States.\n2 Q uoted in .a letter o f December I I, 1978 from the Acting General Counsel, USDA,\nto the Acting Assistant A ttorney 'General, Office o f Legal Counsel.\n\n86\n\n\x0cThe Department o f Agriculture (USDA) argues, however, that \xc2\xa7 9 o f the\nNational Forest Management Act o f 1976, pro tanto, superseded Execu\xc2\xad\ntive Order No. 6166 with respect to national monuments that incorporate\nnational forest lands.3 Based on the legislative history, USDA interprets\n\xc2\xa7 9 to require that national forests set aside by the President remain within\nthe national forest system, except when removed from the system by act o f\nCongress. Because Congress has vested management authority over the\nsystem in USDA and the Forest Service, it follows, according to USDA,\nthat until Congress acts to the contrary, all lands set aside by the President\nas national forests must be administered by the Forest Service.\nIf \xc2\xa7 9 requires Admiralty Island and Misty Fiords to remain within the\nnational forest system, the statutes relevant to the management o f that\nsystem further require that the m onuments be managed by the Forest Serv\xc2\xad\nice. 16 U.S.C. \xc2\xa7 472, 551, 1600 (1976). Ordinarily, in cases where statutes4\nare inconsistent, the most recent statute controls. Under this rule, the 1976\nAct\xe2\x80\x94if it does require that national forest m onuments remain within the\nnational forest system\xe2\x80\x94would impliedly limit or repeal the management\nprovisions o f the Executive order. We conclude, however that \xc2\xa7 9 does not\nrequire Admiralty Island and Misty Fiords to remain within the national\nforest system and that a contrary interpretation would misconstrue the\nstatute. Thus, unless amended, Executive Order No. 6166 remains in\nforce.\nThe disputed portion o f \xc2\xa7 9 reads:\nNotwithstanding the provisions o f the Act o f June 4, 1897, no\nland now or hereafter reserved or withdrawn from the public do\xc2\xad\nmain as national forests pursuant to the Act o f March 3, 1891, or\nany act supplementary to and am endatory thereof, shall be re\xc2\xad\nturned to the public domain except by an Act o f Congress.\nThe term \xe2\x80\x9c public dom ain\xe2\x80\x9d is not defined in the Act, but ordinarily it\nrefers to unreserved lands o f the United States that are subject to disposal\nor appropriation under the public land laws. Considering the plain m ean\xc2\xad\ning o f its words, \xc2\xa7 9 seems only to require that lands, once withdrawn by\nthe President as parts o f national forests, may not again become subject to\nprivate appropriation under the public land laws without an act o f C on\xc2\xad\ngress. Such an interpretation appears wholly consistent with the express\n\n! In connection with this opinion, we sought the views o f the Departm ent o f Agriculture\nand o f the Departm ent o f the Interior. Agriculture furnished its views to us by letter dated\nDecember II, 1978 (see note 2, supra). In addition, we have consulted the Assistant A ttorney\nGeneral, Lands and Natural Resources Division.\n4 Because Exec. O rder N o. 6166 has the force o f law and cannot be amended without the\nassent o f Congress, see discussion, infra, our opinion assumes that the ordinary rules o f\nstatutory interpretation, e.g., implicit repeals are disfavored, apply to the order. However,\nour conclusion as to the effect o f Exec. O rder No. 6166 does not rest on our judgm ent as to\nthe deference a court would accord its provisions, but rather on our interpretation o f 16\nU .S.C. \xc2\xa7 1609(a). Preterm itting any determ ination o f the force that the order would have if\nfound inconsistent with a subsequent statute, we do not believe the proper construction o f \xc2\xa7 9\nis inconsistent with the order.\n\n87\n\n\x0cpurpose o f the section to preserve lands reserved as national forests for the\n\xe2\x80\x9c long-term benefit\xe2\x80\x9d o f \xe2\x80\x9c present and future generations.\xe2\x80\x9d\nIn suggesting a narrower interpretation, namely, that \xe2\x80\x9c shall [not] be\nreturned to the public dom ain,\xe2\x80\x9d means \xe2\x80\x9c shall not leave the National\nForest System,\xe2\x80\x9d Agriculture relies on one paragraph in the legislative\nhistory that appears in the report o f the Senate Committee on Agriculture\nand Forestry on the National Forest Management Act o f 1976, S. Rept.\n893, 94th Cong., 2d sess. (1976). The single relevant paragraph concerning\n\xc2\xa7 9 reads:\nSection 9 o f the bill amends redesignated section 11(a) o f the\nForest and Rangeland. Renewable Resources Planning Act of\n1974 by adding a provision which, in effect, gives Congressional\nstatus to National Forest lands reserved from the public domain.\nO ther National Forests lands already have Congressional status\nthrough specific Acts, such as the Weeks Act. The new provision\nstates that, notwithstanding the authority conferred on the Presi\xc2\xad\ndent to revoke, modify, or suspend proclamations or executive\norders setting apart and reserving public dom ain land as Na\xc2\xad\ntional Forests, public dom ain lands which are now or may here\xc2\xad\nafter be reserved as National Forests are not to be returned to the\npublic domain except by an act o f Congress. This does not affect\nthe President\xe2\x80\x99s authority to combine National Forests, separate a\nforest into two o r more National Forests, or change the bound\xc2\xad\nary lines o f a forest, providing such changes do not remove lands\nfrom National Forest status. Also unaffected are existing\nauthorities regarding exchanges o f lands involving public domain\nNational Forests. [Id. at 19.]\nThis paragraph is, at best, inconclusive with respect to the proper inter\xc2\xad\npretation o f \xc2\xa7 9. It states that the President may still modify the size and\nboundaries o f national forests, \xe2\x80\x9c providing such changes do not remove\nlands from National Forest status.\xe2\x80\x9d It further states that \xc2\xa7 9 gives congres\xc2\xad\nsional status to national forest lands reserved from the public domain and\nmakes reference to an impliedly analogous provision in the Weeks Act.\nHowever, the Weeks Act, which permits the purchase o f lands \xe2\x80\x9c necessary\nto the regulation o f the flow o f navigable streams or for the production of\ntim ber,\xe2\x80\x9d 16 U .S.C . \xc2\xa7 515 (1976), expressly (16 U.S.C. \xc2\xa7 521) provides that\nsuch lands:\n[S]hall be permanently reserved, held, and administered as na\xc2\xad\ntional forest lands under the provisions o f section 471 o f this title\nand acts supplemental to and am endatory thereof.\nCongress\xe2\x80\x99 willingness and ability to provide in the Weeks Act expressly for\nthe permanent adm inistration, as national forests, o f lands purchased for\nforest use raises the question why Congress chose words with plainly dif\xc2\xad\nferent meanings in the Forest Management Act o f 1976 if its purpose was\nthe same.\nThe inference that Congress did not intend to provide in the National\n88\n\n\x0cForest Management Act the same permanent status to lands reserved from\nthe public domain as the Weeks Act accorded to certain acquired lands is\nbuttressed by Congress\xe2\x80\x99 enactment in 1958 o f a statute that expressly made\nacquired lands not covered by the Weeks Act subject to its protective pro\xc2\xad\nvisions, and specifically excepted lands reserved from the public domain.\n16 U.S.C. \xc2\xa7 521a (1976). Congress, when it wanted to expand the coverage\no f the Weeks Act, thus referred to it expressly. Congress\xe2\x80\x99 decision neither\nto adopt the Weeks A ct\xe2\x80\x99s phrasing, nor to incorporate it by reference as it\nhad done in 1958, strongly implies that the intended effects o f the 1976\nAct, 16 U.S.C. \xc2\xa7 1609(a), and the protective provisions o f the Weeks Act,\n16 U.S.C. \xc2\xa7 521, are not the same.\nFurther, USDA\xe2\x80\x99s interpretation poses a potential problem for the inter\xc2\xad\npretation o f \xc2\xa7 2 o f the Antiquities Act o f 1906, supra. Under this section,\nthe President is empowered to declare certain landmarks, structures, and\nobjects as national monuments, and to:\n[RJeserve as a part thereof parcels o f land, the limits o f which in\nall cases shall be confined to the smallest area compatible with\nthe proper care and management o f the objects to be protected.\nIf it were true that lands reserved from the public domain as national\nforests were to continue to be national forests without regard to their sub\xc2\xad\nsequent incorporation in national m onuments, then such lands would con\xc2\xad\ntinue to be subject to the uses approved for national forests by the Act o f\nJune 4, 1897, 16 U .S.C . \xc2\xa7\xc2\xa7 473-478 (1976), the Multiple Use-Sustained\nYield Act o f 1960, 16 U.S.C. \xc2\xa7\xc2\xa7 523-31 (1976), the Forest and Rangeland\nRenewable Resources Planning Act o f 1974, 16 U .S.C . \xc2\xa7\xc2\xa7 1601-10 (1976),\nand the National Forest Management Act o f 1976. O f these approved\nuses, it is readily conceivable that timbering, in particular, might conflict\nin a given case with the protection o f objects properly designated as the\nbases for a national m onum ent. In such a case, the perpetual forest system\nstatus o f public domain lands reserved as national forests would conflict\nwith the President\xe2\x80\x99s ability to create and protect national monum ents on\npublic domain lands, a conflict clearly not provided for by any o f the\nforest acts.\nIn a given case it may be that no such conflict would exist and the fulfill\xc2\xad\nment o f national forest objectives may be wholly consistent with the pur\xc2\xad\nposes o f a national m onum ent. However, Congress has anticipated the\npossibility o f conflict between m onum ent and national forest uses and it\nprohibited the President from creating national forests out o f national\nmonuments, 16 U .S.C . \xc2\xa7 471(b) (1976). (This section was repealed by Pub.\nL. No. 94-579, Title VII \xc2\xa7 704(a), 90 Stat. 2792.) This provision effectively\nleaves to Congress the judgm ent o f compatibility since Congress could, if\nit so chose, give to any public land dual m onum ent and forest status.\nIt might be argued that the forest statutes may be read as not requiring\ntimbering on every acre o f forest land, even if the forest land is ideally\nsuited for such use. The complexity o f the forest-related statutes and the\nunforeseen problems that would be posed, however, further support an\n89\n\n\x0cinterpretation o f the National Forest Management Act o f 1976 which\navoids even potential conflict with the Antiquities Act. Attributing to \xc2\xa7 9\nthe plain meaning o f its words avoids that conflict and is consistent with\nthe statute\xe2\x80\x99s purpose and with the language o f the Weeks Act, 16\nU .S.C .\xc2\xa7 521a; it also preserves Congress\xe2\x80\x99 role in determining whether,\nwith respect to a particular parcel o f public domain land, m onum ent and\nforest uses are compatible.\nBecause o f our interpretation o f \xc2\xa7 9, the Admiralty Island and Misty\nFiords National M onum ents are not parts o f the National Forest System\nbut simply national m onum ents. Accordingly, Executive Order No. 6166\nrequires the transfer o f management functions from the Forest Service to\nthe National Park Service. In order to permit the Forest Service to manage\nthese m onum ents, the President would have to submit to Congress a\nreorganization plan under \xc2\xa7 2 o f the Reorganization Act o f 1977, 5 U.S.C.\n\xc2\xa7\xc2\xa7 901-12 (1977), presumably upon finding that the return o f management\nfunctions to the Forest Service would \xe2\x80\x9c prom ote the better execution o f the\nlaws,\xe2\x80\x9d 5 U .S.C . \xc2\xa7 901(a)(1) (1977). Under \xc2\xa7 2, the plan would become ef\xc2\xad\nfective \xe2\x80\x9c at the end o f the first period o f sixty calendar days o f continuous\nsession o f Congress\xe2\x80\x9d after the transmission o f the plan, unless either\nHouse o f Congress voted to disapprove the plan. It is not possible to\namend Executive O rder No. 6166 merely by issuing an am endatory order\nbecause the original order itself became effective only with the assent of\nCongress. The A ttorney General in 1934, concluded that the President\ncould revoke provisions o f Executive orders issued under the Act o f March\n3, 1933 only \xe2\x80\x9c in the same m anner in which they were enacted into law.\xe2\x80\x9d\n37 Op. Atty. Gen. 418 (1934). The current transfer o f functions under a\nnew reorganization plan would be consistent with the Attorney General\xe2\x80\x99s\nconclusion.5\nL a rry A . H am m ond\n\nD eputy Assistant A ttorney General\nOffice o f Legal Counsel\n\n5 The President, o f course, is not required to act by reorganization plan and may, if he so\nchooses, submit a legislative proposal subject to the usual constitutional processes. Under\neither alternative, it should be recognized that the legislative designation o f the Forest Service\nas the managing authority for two m onum ents will not itself determine the standards under\nwhich the m onum ents must be adm inistered. Unlike the National Park Service, whose gov\xc2\xad\nerning statutes, 16 U .S.C . \xc2\xa7\xc2\xa7 1-3 (1976), impose particular duties on the Service in connec\xc2\xad\ntion with all lands under its adm inistration, the Forest Service is subject to no such specific\nm andate concerning the adm inistration o f non-national forest system lands. In recom mend\xc2\xad\ning appropriate congressional action, the President may wish to consider the uses to which\nthe m onum ent lands should be subjected and to propose to Congress a more restrictive set o f\nuses than would ordinarily apply to national forests.\n\n90\n\n\x0c"