                                                                        February 9, 1979


79-13       MEMORANDUM OPINION FOR THE
            DIRECTOR, OFFICE OF MANAGEMENT AND
            BUDGET*

            Department of Agriculture, Forest Service—
            Department of the Interior, National Park
            Service—Management Functions Over National
            Monuments in Admiralty and Misty Fiords,
            Alaska—Executive Order No. 6166 (5 U.S.C. § 901
            note)—National Forest Management Act of 1976
            (16 U.S.C. § 1609)


   This memorandum responds to the inquiry by your General Counsel’s
office whether § 2 o f Executive, Order No. 6166 (1933), 5 U .S.C . § 901
note (1976), creating national m onuments at Admiralty and Misty Fiords,
Alaska, requires the transfer o f management functions over national
forest lands within the m onuments from the Forest Service o f the D epart­
ment o f Agriculture to the National Park Service o f the Departm ent o f the
Interior; and, if so, what legal action would be necessary to secure the
Forest Service’s continuing administration o f the lands. We conclude that
the order does require the transfer o f management, and that a legally ef­
fective reorganization plan, or other legislative action, is necessary in
order to authorize the Forest Service to administer the two monuments.
  Exercising his powers under § 2 o f the Antiquities Act o f 1906, 16
U.S.C. § 431 (1976),' the President, on December 1, 1978, created
national m onuments in Admiralty Island (Proc. 4611, 43 F.R. 57009



   * This mem orandum was supplemented and, in the main, superseded by a M em orandum
Opinion for the Director o f the Office o f M anagement and Budget, dated February 8, 1980,
reflecting a reconsideration o f this opinion requested by the General Counsel o f the D epart­
ment o f Agriculture.
   1 Section 2 o f that Act rieads:
      The President o f the United States is authorized, in his discretion, to declare by
                                                                                  (Continued)

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 (1978)), and Misty Fiords, Alaska (Proc. 4623, 43 F.R. 57087 (1978)).
 W ithin Misty Fiords National M onum ent are approximately 2,285,000
 acres o f Federal land that had been reserved as part o f Tongass National
 Forest in 1907, 35 Stat. (Pt. 2) 2152. W ithin Admiralty Island National
 M onum ent are approximately 1,100,000 acres o f Federal land that were
 added to Tongass National Forest in 1909, 35 Stat. (Pt. 2) 2226. Because
 the President’s powers under the Antiquities Act o f 1906 extend to any
 “ objects o f historic or scientific interest that are situated upon the lands
 owned or controlled by the G overnm ent,” the forest system status o f A d­
 miralty Island and Misty Fiords did not bar the creation o f monuments on
those sites. Neither were the m onum ents barred because o f the require­
ment under § 9 o f the National Forest Management Act o f 1976, 16
U .S.C . § 1609 (1976), that lands set aside by the President as part o f the
national forest system not be returned to the public domain except by act
o f Congress. The reservation o f national forest lands as parts o f national
m onum ents did not return those lands to the public dom ain, but, on the
contrary, further restricted their lawful use to purposes consistent with the
preservation o f the m onum ents’ objects.
    Under § 2 o f Executive Order No. 6166, issued in 1933:
      All functions o f adm inistration o f * * * national m onu­
      ments * * * are consolidated in the National Park Service in
      the Departm ent o f the Interior * * *; except that where deemed
      desirable there may be excluded from this provision any public
      building or reservation which is chiefly employed as a facility in
      the work o f a particular agency. [5 U.S.C. § 901 note (1976).]
Because the Admiralty Island and Misty Fiords National Monuments are
covered by § 2 and do not fall within the single stated exception to its
general provisions, one consequence o f the President’s creation o f na­
tional monum ents on national forest lands would appear to be the transfer
o f the management o f those lands from the Forest Service to the National
Park Service. Such a transfer is consistent with a 1972 agreement between
the Departm ents of Agriculture and the Interior that the 1933 Executive
order did “ expunge the dual reservation status formerly existing on
monum ents carved out o f National Forests, and vested administration of
those areas in the Departm ent o f the Interior.” 2


(Continued)
     public proclam ation historic landm arks, historic and prehistoric structures, and other
     objects o f historic or scientific interest that are situated upon the lands owned or con­
     trolled by the Governm ent o f the United States to be national m onum ents, and may
     reserve as a part thereof parcels o f land, the limits o f which in all cases shall be con­
     fined to the smallest area com patible with the proper care and m anagement o f the ob­
     jects to be protected. W hen such objects are situated upon a tract covered by a bona
     fide unperfected claim or held in private ownership, the tract, or so much thereof as
     may be necessary for the proper care and management o f the object, may be relin­
     quished to the G overnm ent, and the Secretary o f the Interior is authorized to accept
     the relinquishment o f such tracts in behalf o f the Governm ent o f the United States.
   2 Q uoted in .a letter o f December I I, 1978 from the Acting General Counsel, USDA,
to the Acting Assistant A ttorney 'General, Office o f Legal Counsel.

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   The Department o f Agriculture (USDA) argues, however, that § 9 o f the
National Forest Management Act o f 1976, pro tanto, superseded Execu­
tive Order No. 6166 with respect to national monuments that incorporate
national forest lands.3 Based on the legislative history, USDA interprets
§ 9 to require that national forests set aside by the President remain within
the national forest system, except when removed from the system by act o f
Congress. Because Congress has vested management authority over the
system in USDA and the Forest Service, it follows, according to USDA,
that until Congress acts to the contrary, all lands set aside by the President
as national forests must be administered by the Forest Service.
   If § 9 requires Admiralty Island and Misty Fiords to remain within the
national forest system, the statutes relevant to the management o f that
system further require that the m onuments be managed by the Forest Serv­
ice. 16 U.S.C. § 472, 551, 1600 (1976). Ordinarily, in cases where statutes4
are inconsistent, the most recent statute controls. Under this rule, the 1976
Act—if it does require that national forest m onuments remain within the
national forest system—would impliedly limit or repeal the management
provisions o f the Executive order. We conclude, however that § 9 does not
require Admiralty Island and Misty Fiords to remain within the national
forest system and that a contrary interpretation would misconstrue the
statute. Thus, unless amended, Executive Order No. 6166 remains in
force.
   The disputed portion o f § 9 reads:
      Notwithstanding the provisions o f the Act o f June 4, 1897, no
      land now or hereafter reserved or withdrawn from the public do­
      main as national forests pursuant to the Act o f March 3, 1891, or
      any act supplementary to and am endatory thereof, shall be re­
      turned to the public domain except by an Act o f Congress.
The term “ public dom ain” is not defined in the Act, but ordinarily it
refers to unreserved lands o f the United States that are subject to disposal
or appropriation under the public land laws. Considering the plain m ean­
ing o f its words, § 9 seems only to require that lands, once withdrawn by
the President as parts o f national forests, may not again become subject to
private appropriation under the public land laws without an act o f C on­
gress. Such an interpretation appears wholly consistent with the express



   ! In connection with this opinion, we sought the views o f the Departm ent o f Agriculture
and o f the Departm ent o f the Interior. Agriculture furnished its views to us by letter dated
December II, 1978 (see note 2, supra). In addition, we have consulted the Assistant A ttorney
General, Lands and Natural Resources Division.
   4 Because Exec. O rder N o. 6166 has the force o f law and cannot be amended without the
assent o f Congress, see discussion, infra, our opinion assumes that the ordinary rules o f
statutory interpretation, e.g., implicit repeals are disfavored, apply to the order. However,
our conclusion as to the effect o f Exec. O rder No. 6166 does not rest on our judgm ent as to
the deference a court would accord its provisions, but rather on our interpretation o f 16
U .S.C. § 1609(a). Preterm itting any determ ination o f the force that the order would have if
found inconsistent with a subsequent statute, we do not believe the proper construction o f § 9
is inconsistent with the order.

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 purpose o f the section to preserve lands reserved as national forests for the
 “ long-term benefit” o f “ present and future generations.”
    In suggesting a narrower interpretation, namely, that “ shall [not] be
 returned to the public dom ain,” means “ shall not leave the National
 Forest System,” Agriculture relies on one paragraph in the legislative
 history that appears in the report o f the Senate Committee on Agriculture
 and Forestry on the National Forest Management Act o f 1976, S. Rept.
 893, 94th Cong., 2d sess. (1976). The single relevant paragraph concerning
 § 9 reads:
       Section 9 o f the bill amends redesignated section 11(a) o f the
       Forest and Rangeland. Renewable Resources Planning Act of
       1974 by adding a provision which, in effect, gives Congressional
       status to National Forest lands reserved from the public domain.
       O ther National Forests lands already have Congressional status
       through specific Acts, such as the Weeks Act. The new provision
       states that, notwithstanding the authority conferred on the Presi­
      dent to revoke, modify, or suspend proclamations or executive
      orders setting apart and reserving public dom ain land as Na­
      tional Forests, public dom ain lands which are now or may here­
      after be reserved as National Forests are not to be returned to the
      public domain except by an act o f Congress. This does not affect
      the President’s authority to combine National Forests, separate a
       forest into two o r more National Forests, or change the bound­
      ary lines o f a forest, providing such changes do not remove lands
      from National Forest status. Also unaffected are existing
      authorities regarding exchanges o f lands involving public domain
      National Forests. [Id. at 19.]
 This paragraph is, at best, inconclusive with respect to the proper inter­
pretation o f § 9. It states that the President may still modify the size and
boundaries o f national forests, “ providing such changes do not remove
lands from National Forest status.” It further states that § 9 gives congres­
sional status to national forest lands reserved from the public domain and
makes reference to an impliedly analogous provision in the Weeks Act.
However, the Weeks Act, which permits the purchase o f lands “ necessary
to the regulation o f the flow o f navigable streams or for the production of
tim ber,” 16 U .S.C . § 515 (1976), expressly (16 U.S.C. § 521) provides that
such lands:
      [S]hall be permanently reserved, held, and administered as na­
      tional forest lands under the provisions o f section 471 o f this title
      and acts supplemental to and am endatory thereof.
Congress’ willingness and ability to provide in the Weeks Act expressly for
the permanent adm inistration, as national forests, o f lands purchased for
forest use raises the question why Congress chose words with plainly dif­
ferent meanings in the Forest Management Act o f 1976 if its purpose was
the same.
   The inference that Congress did not intend to provide in the National

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Forest Management Act the same permanent status to lands reserved from
the public domain as the Weeks Act accorded to certain acquired lands is
buttressed by Congress’ enactment in 1958 o f a statute that expressly made
acquired lands not covered by the Weeks Act subject to its protective pro­
visions, and specifically excepted lands reserved from the public domain.
 16 U.S.C. § 521a (1976). Congress, when it wanted to expand the coverage
o f the Weeks Act, thus referred to it expressly. Congress’ decision neither
to adopt the Weeks A ct’s phrasing, nor to incorporate it by reference as it
had done in 1958, strongly implies that the intended effects o f the 1976
Act, 16 U.S.C. § 1609(a), and the protective provisions o f the Weeks Act,
 16 U.S.C. § 521, are not the same.
   Further, USDA’s interpretation poses a potential problem for the inter­
pretation o f § 2 o f the Antiquities Act o f 1906, supra. Under this section,
the President is empowered to declare certain landmarks, structures, and
objects as national monuments, and to:
      [RJeserve as a part thereof parcels o f land, the limits o f which in
      all cases shall be confined to the smallest area compatible with
      the proper care and management o f the objects to be protected.
If it were true that lands reserved from the public domain as national
forests were to continue to be national forests without regard to their sub­
sequent incorporation in national m onuments, then such lands would con­
tinue to be subject to the uses approved for national forests by the Act o f
June 4, 1897, 16 U .S.C . §§ 473-478 (1976), the Multiple Use-Sustained
Yield Act o f 1960, 16 U.S.C. §§ 523-31 (1976), the Forest and Rangeland
Renewable Resources Planning Act o f 1974, 16 U .S.C . §§ 1601-10 (1976),
and the National Forest Management Act o f 1976. O f these approved
uses, it is readily conceivable that timbering, in particular, might conflict
in a given case with the protection o f objects properly designated as the
bases for a national m onum ent. In such a case, the perpetual forest system
status o f public domain lands reserved as national forests would conflict
with the President’s ability to create and protect national monum ents on
public domain lands, a conflict clearly not provided for by any o f the
forest acts.
   In a given case it may be that no such conflict would exist and the fulfill­
ment o f national forest objectives may be wholly consistent with the pur­
poses o f a national m onum ent. However, Congress has anticipated the
possibility o f conflict between m onum ent and national forest uses and it
prohibited the President from creating national forests out o f national
monuments, 16 U .S.C . § 471(b) (1976). (This section was repealed by Pub.
L. No. 94-579, Title VII § 704(a), 90 Stat. 2792.) This provision effectively
leaves to Congress the judgm ent o f compatibility since Congress could, if
it so chose, give to any public land dual m onum ent and forest status.
   It might be argued that the forest statutes may be read as not requiring
timbering on every acre o f forest land, even if the forest land is ideally
suited for such use. The complexity o f the forest-related statutes and the
unforeseen problems that would be posed, however, further support an

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interpretation o f the National Forest Management Act o f 1976 which
avoids even potential conflict with the Antiquities Act. Attributing to § 9
the plain meaning o f its words avoids that conflict and is consistent with
the statute’s purpose and with the language o f the Weeks Act, 16
U .S.C .§ 521a; it also preserves Congress’ role in determining whether,
with respect to a particular parcel o f public domain land, m onum ent and
forest uses are compatible.
   Because o f our interpretation o f § 9, the Admiralty Island and Misty
Fiords National M onum ents are not parts o f the National Forest System
but simply national m onum ents. Accordingly, Executive Order No. 6166
requires the transfer o f management functions from the Forest Service to
the National Park Service. In order to permit the Forest Service to manage
these m onum ents, the President would have to submit to Congress a
reorganization plan under § 2 o f the Reorganization Act o f 1977, 5 U.S.C.
§§ 901-12 (1977), presumably upon finding that the return o f management
functions to the Forest Service would “ prom ote the better execution o f the
laws,” 5 U .S.C . § 901(a)(1) (1977). Under § 2, the plan would become ef­
fective “ at the end o f the first period o f sixty calendar days o f continuous
session o f Congress” after the transmission o f the plan, unless either
House o f Congress voted to disapprove the plan. It is not possible to
amend Executive O rder No. 6166 merely by issuing an am endatory order
because the original order itself became effective only with the assent of
Congress. The A ttorney General in 1934, concluded that the President
could revoke provisions o f Executive orders issued under the Act o f March
3, 1933 only “ in the same m anner in which they were enacted into law.”
37 Op. Atty. Gen. 418 (1934). The current transfer o f functions under a
new reorganization plan would be consistent with the Attorney General’s
conclusion.5

                                           L a rry A . H am m ond
                                   D eputy Assistant A ttorney General
                                                         Office o f Legal Counsel




   5 The President, o f course, is not required to act by reorganization plan and may, if he so
chooses, submit a legislative proposal subject to the usual constitutional processes. Under
either alternative, it should be recognized that the legislative designation o f the Forest Service
as the managing authority for two m onum ents will not itself determine the standards under
which the m onum ents must be adm inistered. Unlike the National Park Service, whose gov­
erning statutes, 16 U .S.C . §§ 1-3 (1976), impose particular duties on the Service in connec­
tion with all lands under its adm inistration, the Forest Service is subject to no such specific
m andate concerning the adm inistration o f non-national forest system lands. In recom mend­
ing appropriate congressional action, the President may wish to consider the uses to which
the m onum ent lands should be subjected and to propose to Congress a more restrictive set o f
uses than would ordinarily apply to national forests.

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