Monday, April 24, 2023

Murphy Co. v. Biden (9th Cir. - April 24, 2023)

You could be easily excused if you didn't feel like reading 47 single-spaced pages of fairly dense legal prose about the intersection of the Antiquities Act, passed in 1906, and the Coos Bay Wagon Road Grant Lands Act, passed in 191937, as applied to Proclamation 9564, issued by President Obama in 2017, that expanded the size of the Cascade-Siskkiyou National Monument and hence restricted preexisting timber logging in the newly designated and (to a degree) adjacent areas.

Heck, even the single sentence that I just wrote takes a lot to get through.

But it's pro-logging advocates on one side against anti-logging advocates on another. It's also a split opinion in the Ninth Circuit, with Judge McKeown writing the majority opinion -- coming out in favor of the the pro-Proclamation and anti-logging side -- with Judge Tallman dissenting (on the other side).

But even if you don't read the entire thing, here were my two favorite parts of the respective opinions:

(1) In the dissent, some fancy, highfautin language from Judge Tallman: "Proclamations and executive orders of this reach are often responsive to criticisms by advocates that Congress is too formalistic and inflexible in performing its legislative function as originally envisioned by the Framers in today’s dynamic world. The legislative process can sometimes be slow and frustrating, but the procedural strictures enshrined in our Constitution are unyielding because they exist to maintain our Republic’s status as a government of laws and not of men."

(2) In the majority opinion, the sly little joke from Judge McKeown: "Admittedly, the validity of the Proclamation—an Antiquities Act order that implicates the O&C Act—presents a statutory thicket. But, ultimately, Murphy’s claim of irreconcilability misses the forest for the trees." 

Ho ho ho. I get it.