Management of Admiralty Island and Misty Fiords National Monuments

Management of Admiralty Island and Misty Fiords National
Monuments
E x e c u tiv e O rd e r N o. 6166 leaves in ta c t forest reserv atio n s o n national m o n u m en t lands,
an d th e D e p a rtm e n t o f A g ric u ltu re an d th e D e p a rtm e n t o f th e In te rio r th u s share
ad m in istrativ e responsibility fo r A d m ira lty Island and M isty F io rd s N ational M o n u ­
m ents. C o n clu sio n o f op in io n o f F e b ru a ry 9, 1979 (3 O p. O .L .C . 85 (1979)), that
m an ag em en t fu n ctions in c o n n e c tio n w ith th e tw o national m o n u m en ts m ust be tra n s­
ferred from th e D e p a rtm e n t o f A g ric u ltu re to the D e p a rtm e n t o f the In terio r, rec o n sid ­
ere d and am en d ed.
February 8, 1980
M EM O R A N D U M O P IN IO N FO R T H E D IR E C T O R , O F F IC E O F
M ANA GEM ENT AND BUDGET
This is to advise you that, at the request o f the G eneral Counsel to
the U.S. D epartm ent o f A griculture (U SD A ), we have reconsidered
and are amending, as follows, our February 9, 1979, memorandum to
you concerning the “ M anagement o f Adm iralty Island and Misty
Fiords National M onum ents.” [3 Op. O.L.C. 85 (1979)]. We concluded
in that opinion that §2 o f Executive O rder No. 6166, 5 U.S.C. §901note (1976), required a transfer o f managem ent functions from the
Forest Service in U SD A to the National Park Service in the D epart­
ment o f the Interior w ith respect to tw o national m onuments created in
D ecem ber 1978, on national forest lands. As explained below, we have
subsequently concluded that both U SD A and Interior have legal au­
thority to manage the lands in question.
I. Background to the February 9, 1979, Opinion
T he President, on D ecem ber 1, 1978, exercised his pow ers under §2
o f the Antiquities A ct o f 1906, 16 U.S.C. §431 (1976), to create national
monum ents at Adm iralty Island and Misty Fiords, Alaska. Pres. Proc.
Nos. 4611 & 4623, 43 Fed. Reg. 57,009, 57,087 (1978). Included within
these monuments w ere approxim ately 3.4 million acres o f federal land
that had been reserved as part o f Tongass National Forest in 1907 or
1909. 35 Stat. (Pt. 2) 2152, 2226. On Novem ber 30, 1978, your General
C ounsel’s office inquired orally o f this Office w hether the placem ent of
a m onum ent reservation on these national forest lands required the
transfer o f the management o f the lands to the D epartm ent o f the
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Interior under Executive O rder No. 6166, issued in 1933. Section 2 of
that order provides:
All functions o f administration o f . . . national
monuments . . . are consolidated in the National Park
Service in the D epartm ent of the Interior . . .; except
that w here deemed desirable there may be excluded from
this provision any public building or reservation w hich is
chiefly employed as a facility in the work of a particular
agency.
In response to your inquiry, on D ecem ber 1, 1978, we solicited views
on this question from Interior and USDA. Interior chose to express no
view. U SD A forw arded its opinion to us that §2 o f Executive O rder
No. 6166 would have expunged the forest status o f Misty Fiords and
Adm iralty Island—thus requiring a transfer o f m anagement functions
from U SD A to Interior—but for §9 o f the National Forest M anage­
ment A ct o f 1976, 16 U.S.C. § 1609 (1976), which, in its view, pro tanto
repealed the executive order and required the management of national
forest land to remain in the Forest Service until rem oved by A ct of
Congress. In essence, our February 9, 1979, opinion treated U S D A ’s
analysis as the sole issue in dispute, and concluded, contrary to its view,
that §9 o f the National Forest M anagement A ct had no effect on the
operation of the executive order. We consequently informed you that,
absent some legislative action, the m anagement o f these m onuments had
to be tranferred from the U SD A to Interior.
II. Reconsideration
On Septem ber 12, 1979, U S D A ’s G eneral Counsel forw arded certain
materials to us suggesting the appropriateness o f reconsidering our
February 9, 1979, opinion. A lthough, in prior conversations, the G en­
eral Counsel had indicated that he did not wish to challenge our
conclusions on the relationship o f the Forest M anagem ent A ct to Exec­
utive O rder No. 6166, he questioned the premise, implicit in our opin­
ion and in his ow n D epartm ent’s earlier view, that Executive O rder
No. 6166 operated to expunge the national forest status o f A dm iralty
Island and Misty Fiords. In his view, such status, at least w ith respect
to monuments created on forest lands after 1933, could be expunged
solely by the express exercise o f authority under 16 U.S.C. §473, which
permits the President to revoke o r modify prior presidential actions
creating national forests, such as Tongass National Forest, out o f unre­
served public lands. He urged that the effect o f the executive order was
only to vest additional management responsibilities in the D epartm ent
o f the Interior for national m onuments created on forest lands, thus
permitting the tw o departm ents to share adm inistrative responsibility
for Adm iralty Island and Misty Fiords.
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We have concluded that U S D A ’s G eneral Counsel has correctly
interpreted the 1933 order. T he purpose of Executive O rder No. 6166
was to effect economies in governm ent by facilitating the consolidation
o f similar functions under single governm ent authorities. W ith respect
to national monuments, it consolidated m anagement functions in the
National Park Service o f the D epartm ent o f the Interior. Its subject
m atter, how ever, does not include the status o f reservations attaching
to national m onum ent lands. It does not expressly expunge
nonm onum ent reservations on national monum ent lands, and no
expungement appears by implication. T he executive order is fully effec­
tive so long as it is interpreted to make possible National Park Service
m anagem ent o f forest lands that are national monuments, which itself
does not require the elimination o f forest status.
T he conclusion that Executive O rder No. 6166 leaves forest reserva­
tions on national m onum ent lands intact is buttressed by the existence,
since 1897, o f express statutory authority perm itting the President to
expunge the forest status o f forest lands rem oved previously by the
President from unreserved public lands. 16 U.S.C. §473 (1976). N oth­
ing . in the executive order suggests that it is to be viewed as an
alternative or even an additional means o f term inating the forest status
o f national forests. Indeed, the o rd e r’s limited organizational function is
inconsistent w ith the notion that it confers additional substantive au­
thorities w ith respect to public lands. In cases o f national monuments
created on national forest lands since 1933, the President has consist­
ently exercised his authority under 16 U.S.C. § 473 to revoke or modify
the forest status o f lands he wished to be treated as having only
national m onum ent status. See, e.g., Pres. Procs. Nos. 2330, and 2339, 53
Stat. (Pt. 3) 2534, 2544 (1939). This practice implies a continuing adm in­
istrative interpretation that Executive O rder No. 6166 does not itself
autom atically term inate the national forest status o f m onum ents created
on national forest lands.
On N ovem ber 17, 1972, U S D A and Interior entered into an agree­
ment, concluding that Executive O rder No. 6166, as amended, ex­
punged the dual status o f m onum ents created on forest lands prior to
1933. In essence, the departm ents agreed to follow a 1933 opinion of
the Solicitor o f the D epartm ent o f the Interior, holding that, in the
absence o f a timely interdepartm ental agreem ent to the contrary, the
managem ent o f pre-1933 m onum ents on forest lands was transferred
autom atically to Interior by Executive O rder No. 6166. W e have not
been asked to consider this opinion o r the 1972 agreem ent, and express
no view as to their conclusions. W e note, how ever, that such a determ i­
nation as to pre-1933 monuments, w hich did not construe the effect of
the executive o rder on the status o f reservations attaching to national
m onum ent lands, does not preclude a case-by-case adm inistrative deci­
sion as to the proper m anagem ent o f post-1933 national monum ents to
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the extent perm itted by the executive order and any other applicable
statutory authorities. Executive O rder No. 6166 creates management
authority in the National Park Service with respect to national m onu­
ments even if created on forest lands; w hether that authority is exclu­
sive, additional, delegable, or forfeitable depends on the terms o f the
order and other authorities that may exist with respect to the lands.
III. Management Options
Because the President, in creating Adm iralty Island and Misty Fiords
National M onuments, did not term inate the national forest status of
those lands, the National Park Service, under Executive O rder No.
6166, and the Forest Service, under its statutory authorities, 16 U.S.C.
§551 et seq., are both authorized to participate in the m anagement o f
these monuments. Both, we have been advised, have appropriations that
may be applied to this purpose.
On January 15, 1980, representatives o f this D epartm ent met with
representatives o f U SD A and Interior, to discuss the future m anage­
ment o f A dm iralty Island and Misty Fiords. T he U SD A and Interior
representatives agreed that the Forest Service and the National Park
Service would enter into a memorandum of understanding to govern
the management o f these monuments, accounting for the land use stand­
ards binding on the departm ents and specifying each departm ent’s regu­
latory and budgetary responsibilities. We have concluded that this is a
permissible option for structuring the m anagement responsibilities o f the
tw o departments. Cf. 16 U.S.C. § 2 (1976), perm itting the Secretary of
A griculture to cooperate with the National Park Service, to the extent
requested by the Secretary o f the Interior, in the supervision, m anage­
ment, and control o f national m onuments contiguous to national forests.
L arry A. H am m ond'
D eputy Assistant Attorney General
Office o f Legal Counsel
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