Supreme Court Shows Little Interest in Investigating Executive Power under the Antiquities Act

Yet another case that Justice Kavanaugh would like to hear that does not interest enough of his colleagues.

This morning the Supreme Court denied certiorari in Murphy Co. v. Biden, a challenge to President Obama's invocation of the Antiquities Act to expand a national monument designation so as to place additional federal timber lands in Oregon off limits to timber development.

Here was the question presented portion of the petition filed on behalf of the Murphy Company:

The Antiquities Act of 1906 authorizes the President, "in [his] discretion," to declare that "historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest" found on federal land are "national monuments" and to "reserve parcels of land as a part of the national monuments" so long as those parcels are "confined to the smallest area compatible with the proper care and management of the objects to be protected." 54 U.S.C. 320301. Three decades after that Act's passage, in the Oregon and California Railroad and Coos Bay Wagon Road Grant Lands Act of 1937 (O&C Act), Congress reserved certain federal lands in Oregon for "permanent forest production," mandating that "the timber thereon shall be sold, cut, and removed in conformity with the princip[le] of sustained yield" timber production. 43 U.S.C. 2601. In 2017, President Obama invoked the Antiquities Act to add O&C Act timberlands to an existing Oregon national monument established to protect biological diversity, see Proclamation 9564, 82 Fed. Reg. 6,145 (Jan. 12, 2017)—despite the fact that lands that are part of that monument may not be used in "provision of a sustained yield of timber," Proclamation 7318, 65 Fed. Reg. 37,249, 37,250 (June 9, 2000).

The question presented is whether the Antiquities Act authorizes the President to declare federal lands part of a national monument where a separate federal statute reserves those specific federal lands for a specific purpose that is incompatible with national-monument status.

Although the case received a decent amount of interest from amici (five in support of certiorari, and one joining the federal government in opposition), it appears that four justices were not interested in hearing the case.

Justice Kavanaugh expressed an interest in the case, however. Today's orders list noted that both Justice Kavanaugh and Justice Gorsuch (the one justice to have served in a western state) would have voted to grant certiorari.  As I have noted several times before, Justice Kavanaugh quite regularly notes his willingness to grant certiorari when his colleagues are not so convinced.

While the Court showed no interest in examining the Antiquities Act today, I suspect they may wish to consider the scope of executive branch authority under this statute eventually, particularly since recent administrations have been reasonably aggressive invoking it.