By Anthony Moffa, visiting professor of law at the University of Maine School of Law in Portland
Bangor Daily News op-ed
A year ago, President Donald Trump announced the largest rollback of federal land protections in American history when he proclaimed the reduction of two western national monuments: Bears Ears and Grand Staircase-Escalante. With no mention of the Katahdin Woods and Waters, you may have thought Trump’s presidential reach was not coming to our monument in Maine. Think again.
Federal Judge Tanya Chutkan in Washington, D.C. is considering a case about those western monuments and will make a decision that will affect all monuments. In other words, we are not yet out of the woods. The same questionable authority used to reduce the western monuments threatens the protections of Katahdin Woods and Waters — and the particulars of this public lands melodrama have yet to play out. Chutkan is considering a government motion asking the court to dismiss these challenges to Trump’s rollback from tribes, scientists, environmental groups and outdoor retailers.
While the Department of Justice asserts wide-reaching executive authority over monuments in court, the Department of Interior is moving forward on a separate front with the very land management changes whose legality is being litigated. Trump’s December 2017 proclamation was followed by new management proposals for Bears Ears and Grand Staircase.
The Interior Department has also begun a planning process for Katahdin. Interior Secretary Ryan Zinke has explained his recommendation for “ active timber management” in Katahdin Woods and Waters as not a free license to the timber industry. But the Monument Management Plan, not Zinke’s statements will define what “active timber management” will be allowed.
The plan for Katahdin Woods and Waters will be subject to public process, and will inevitably be reviewed by a federal judge. The reviewing court, and citizens concerned about the fate of their public lands, would do well to recognize that plans opening up our national monuments to damaging uses violate the spirit and the letter of public lands law.
National monuments are designated by the president under the Antiquities Act because they include “objects of historic or scientific interest” that warrant legal protection. Proclaiming a national monument provides that protection, prohibiting the destruction or excavation of designated objects, and obligating the government to manage the land for the objects’ protection. If Zinke were to put in place management plans that authorize activities that destroy those objects of significance — such as logging “the rich and storied Maine Woods” or mining “the Grand Staircase” — it would illegally undermine the protection provided by the act.
Even if the plans do not permit destruction per se, the law requires plans be consistent with “proper care and management of the objects to be protected.” To understand this obligation, federal courts look to the designating proclamation. Most, if not all, monument proclamations warn “all unauthorized persons not to appropriate, injure, destroy, or remove any feature” of the monument. In the case of Katahdin Woods and Waters, the proclamation specifically protects “regenerating forests” that were previously logged. A management plan that permitted cutting down those trees would rightly be overturned by a reviewing court.
As Mainers, and as Americans, we should appreciate the rich history of protection for our public lands in our country and question significant departures from that precedent. National monuments have been an important part of that history since President Theodore Roosevelt established the first national monument over 100 years ago. Since that time, in the more than 100 monuments that have been designated by various presidents, the federal government has rightly put the preservation of scientific and historic objects for the benefit of all citizens ahead of other potential uses such as logging, mining, and drilling. Zinke would do well to remember this history and not depart from it.
As has already been reported, “active timber management” could very well refer to the cutting of trees for commercial sale as wood pellets, paper goods, housing materials, and other products. If the management plan for Katahdin Woods and Waters indeed permits such uses, it will be the subject of litigation. I am not confident such a plan would, or should, survive examination in a court of law.
It is my true hope, which ought to be shared by all Mainers, that “active timber management” means something less expansive, and our tax dollars do not have to be wasted in pursuit of a legally questionable gift to the timber industry.