Murphy Company v. Joseph Biden ( 2023 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MURPHY COMPANY, an Oregon
No. 19-35921
corporation; MURPHY TIMBER
INVESTMENTS, LLC, an Oregon
limited liability company, D.C. No.
Plaintiffs-Appellants, 1:17-cv-00285-CL
v.
OPINION
JOSEPH R. BIDEN, JR., in his official
capacity as President of the United
States of America; DEBRA A.
HAALAND, in her official capacity as
Secretary of Interior; U.S.
DEPARTMENT OF THE INTERIOR,
Defendants-Appellees,
SODA MOUNTAIN WILDERNESS
COUNCIL; KLAMATH-SISKIYOU
WILDLANDS CENTER; OREGON
WILD; WILDERNESS SOCIETY,
Intervenor-Defendants-
Appellees.
Appeal from the United States District Court
for the District of Oregon
Michael J. McShane, District Judge, Presiding
2 MURPHY CO. V. BIDEN
Argued and Submitted August 30, 2022
Seattle, Washington
Filed April 24, 2023
Before: M. Margaret McKeown and Richard C. Tallman,
Circuit Judges, and Jed S. Rakoff, * District Judge.
Opinion by Judge McKeown;
Partial Concurrence and Partial Dissent by Judge Tallman
SUMMARY **
Antiquities Act / Presidential Proclamation
The panel affirmed the district court’s summary
judgment in favor of the United States and intervenor
environmental organizations in an action brought by Murphy
Timber Company challenging Presidential Proclamation
9564, which was issued under the Antiquities Act, and
expanded the Cascade-Siskiyou National Monument in
southwestern Oregon.
The Antiquities Act grants the President broad authority
to create, by presidential proclamation, national monuments
from federal lands to protect sites of historic and scientific
*
The Honorable Jed S. Rakoff, United States District Judge for the
Southern District of New York, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
MURPHY CO. V. BIDEN 3
interest. The Oregon and California Railroad and Coos Bay
Wagon Road Grant Lands Act (“O&C Act”) addresses the
use of timberlands in the southwest corner of Oregon.
Murphy, an Oregon timber business, sought declaratory
and injunctive relief, and claimed that the Proclamation was
an invalid exercise of the Antiquities Act because it offended
the O&C Act’s promise to reserve certain lands for timber
production. A collection of environmental organizations
intervened to defend the Proclamation.
The panel first considered whether Murphy’s claim of
ultra vires and unconstitutional action with respect to the
Proclamation was immune from judicial review. In the
absence of a statutory waiver, the Supreme Court has
permitted judicial review of presidential actions in two
circumstances. First, the Court has recognized constitutional
challenges to presidential acts as reviewable. Second, the
Court has held that actions by subordinate Executive Branch
officials that extend beyond delegated statutory authority—
i.e., ultra vires actions—are reviewable. Whether
characterized as ultra vires or constitutional, the panel held
that Murphy’s claims against the President regarding
Proclamation 9564 were justiciable. Here, the core of
Murphy’s claim—that the President violated separation of
powers by directing the Secretary of Interior to act in
contravention of a duly enacted law—could be considered
constitutional and therefore reviewable. The panel
concluded that Murphy’s particularized allegations that the
O&C Act restricts the President’s designation powers under
the Antiquities Act satisfied the applicable jurisdictional
standard.
Next, the panel evaluated whether the Proclamation’s
restriction on logging was consistent with the O&C
4 MURPHY CO. V. BIDEN
Act. Murphy alleged that the O&C Act’s directive of
“permanent forest production” circumscribed the scope of
presidential authority over these specific lands. First, the
panel held that the O&C Act did not explicitly or impliedly
repeal the Antiquities Act. Nothing supports a claim that the
Antiquities Act proclamations are broadsides at land-
management laws and cannot coexist with preexisting
congressional mandates. The panel held that there was no
basis to suggest that Congress intended the O&C Act to
nullify the Antiquities Act—which was itself an act of
Congress. Second, the panel held that the Proclamation’s
exercise of Antiquities Act power was consistent with the
text, history, and purpose of the O&C Act. Timber
production was not the sole purpose that Congress
envisioned for the more than two million acres of O&C
lands. Congress delegated ample discretion to the
Department of the Interior to manage the lands in a flexible
manner. Third, the panel held that the dissent’s concerns
that the Proclamation and the O&C Act are in conflict are
unsubstantiated. The panel concluded that the Proclamation
was a valid exercise of the President’s Antiquities Act
authority, and the Proclamation was fully consistent with the
O&C Act.
Judge Tallman concurred in part because he agreed that
the court could review claims that the President’s execution
of one statute obstructed the operation of another. However,
he dissented from the majority’s conclusion that
Proclamation 9564 did not conflict with the O&C Act. He
wrote that the issue of whether the Antiquities Act and the
O&C Act can coexist in the abstract is beside the point.
Rather, the court must decide whether Proclamation 9564—
issued pursuant to the Antiquities Act—conflicts with the
O&C Act. A review of the plain text of the Proclamation
MURPHY CO. V. BIDEN 5
and the O&C Act reveals an obvious conflict. The O&C Act
requires sustained yield calculation for all O&C
timberlands. Proclamation 9564 removes O&C timberlands
from the sustained yield calculation if they fall within the
monument. By expressly singling out sustained yield
calculation for prohibition, the President’s proclamation
intentionally directs the Secretary to disregard her statutory
duties under the O&C Act to make sure that timber is
available for harvest to meet economic needs of timber-
dependent communities. Judge Tallman wrote that he would
give effect to the plain meaning of the O&C Act and declare
the Proclamation void as to O&C timberland.
COUNSEL
Julie A. Weis (argued) and Michael E. Haglund, Haglund
Kelley LLP, Portland, Oregon, for Plaintiffs-Appellants.
Robert J. Lundman (argued), Coby Howell, Brian C. Toth,
and Mark R. Haag, Attorneys; Todd Kim, Assistant Attorney
General; Environment and Natural Resources Division,
United States Department of Justice; Washington, D.C.;
Laura Damm and Brian Perron, Attorneys; United States
Department of the Interior; Washington, D.C.; for
Defendants-Appellees.
Kristen L. Boyles and Ashley N. Bennett, Earthjustice,
Seattle, Washington; Susan Jane M. Brown, Western
Environmental Law Center, Portland, Oregon; for
Intervenor-Defendants-Appellees.
6 MURPHY CO. V. BIDEN
OPINION
McKEOWN, Circuit Judge:
This case calls on us to consider the intersection of the
Antiquities Act, adopted in 1906, and the Oregon and
California Railroad and Coos Bay Wagon Road Grant Lands
Act (“O&C Act”), adopted in 1937. The Antiquities Act
grants the President broad authority to create, by presidential
proclamation, national monuments from federal lands to
protect sites of historic and scientific interest. See 54 U.S.C.
§ 320301(a)–(b). In contrast, the O&C Act is much
narrower in scope, addressing the use of timberlands in the
southwest corner of Oregon. See 43 U.S.C. § 2601 et seq.
In January 2017, President Obama issued a Proclamation
under the Antiquities Act expanding the Cascade-Siskiyou
National Monument (“Monument”) in southwestern
Oregon. Proclamation 9564 (“Proclamation”), 82 Fed. Reg.
6145 (Jan. 12, 2017). First established in 2000 by President
Clinton, the Monument boasts “an incredible variety of
species and habitats,” which form “a rich mosaic of forests,
grasslands, shrublands, and wet meadows.” Id. The
expanded Monument’s 101,000 acres, which intersect with
the ancestral homes of several Native American peoples,
also overlap with timberlands regulated by the O&C Act.
With limited exceptions, logging is banned within the
Monument.
Murphy Timber Company and Murphy Timber
Investments, LLC (collectively, “Murphy”) are Oregon
timber businesses. Murphy owns woodlands and purchases
timber harvested in western Oregon to supply its wood-
products manufacturing facilities. Concerned that the
Proclamation imposed a new limitation on its timber supply
MURPHY CO. V. BIDEN 7
and deleterious effects on its woodlands adjacent to the
expanded Monument, Murphy sued the President, the
Secretary of the Interior (“Secretary”), and the Bureau of
Land Management (“BLM”) seeking declaratory and
injunctive relief. Although Murphy named the Secretary and
BLM as defendants, the suit does not challenge any specific,
final agency action. Murphy claims that the Proclamation is
an invalid exercise of the Antiquities Act because it offends
the O&C Act’s promise to reserve certain lands for timber
production. A collection of environmental organizations
(together, “Soda Mountain”) intervened to defend the
Proclamation.
The dispute poses two questions for our review. We first
consider whether Murphy’s claim of ultra vires and
unconstitutional action with respect to the Proclamation is
immune from judicial review. Because we conclude that we
have jurisdiction to hear Murphy’s challenge, we next
evaluate whether the Proclamation’s restriction on logging
is consistent with the O&C Act. 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. The Antiquities Act and the later-enacted O&C Act
are not irreconcilable, nor did the O&C Act repeal the
Antiquities Act. The Proclamation is consistent with the
O&C Act’s flexible land-management directives, which
incorporate conservation uses. And, notably, only a tiny
percentage of the several million acres covered by the O&C
Act (“O&C Lands”) fall within the expanded Monument’s
territory. The Secretary retains broad discretion over the
millions of acres remaining. The Proclamation does not
usurp congressional intent or the Secretary’s authority to
regulate the O&C Lands as a whole. We affirm the district
8 MURPHY CO. V. BIDEN
court’s grant of summary judgment in favor of the United
States and Soda Mountain.
I. BACKGROUND
A. THE ANTIQUITIES ACT AND PROCLAMATION 9564
The Antiquities Act delegates to Presidents, in their
“discretion,” the power to designate “historic landmarks,
historic and prehistoric structures, and other objects of
historic or scientific interest” as national monuments and to
“reserve parcels of land” for protection. 54 U.S.C.
§ 320301(a)–(b). The meaning of “monument” under the
statute encompasses mountains and deserts, as much as it
does physical statues or icons. See Mark Squillace, The
Monumental Legacy of the Antiquities Act of 1906, 37 Ga.
L. Rev. 473, 477–86 (2003). Indeed, Theodore Roosevelt,
the President at the time of the Act’s passage and a noted
conservationist, designated eighteen monuments spanning
approximately 1.5 million acres under this new law. See id.at 474 n.6. In the years since, all but three Presidents have
exercised their Antiquities Act authority. National
Monument Facts and Figures, Nat’l Park Serv.,
https://www.nps.gov/subjects/archeology/national-monume
nt-facts-and-figures.htm (last updated Mar. 27, 2023).
Proclamations by Presidents Obama, Trump, and Biden have
brought the total number of national monument enactments
to 161. Id. President Biden recently announced two new
monuments: the Avi Kwa Ame National Monument in
Nevada and the Castner Range National Monument in
Texas. White House Statements and Releases (Mar. 21,
2023).
This case concerns one such set of designations. In June
2000, President Clinton reserved nearly 53,000 acres of
federal land as the Cascade-Siskiyou National Monument
MURPHY CO. V. BIDEN 9
for its “spectacular” biodiversity. Proclamation 7318, 65
Fed. Reg. 37249, 37249 (June 9, 2000). The President
proclaimed, “[w]ith towering fir forests, sunlit oak groves,
wildflower-strewn meadows, and steep canyons, the
Cascade-Siskiyou National Monument is an ecological
wonder, with biological diversity unmatched in the Cascade
Range.” Id. Logging was banned within the Monument
except in limited circumstances:
The commercial harvest of timber or other
vegetative material is prohibited, except
when part of an authorized science-based
ecological restoration project aimed at
meeting protection and old growth
enhancement objectives. Any such project
must be consistent with the purposes of this
proclamation. No portion of the monument
shall be considered to be suited for timber
production, and no part of the monument
shall be used in a calculation or provision of
a sustained yield of timber. Removal of trees
from within the monument area may take
place only if clearly needed for ecological
restoration and maintenance or public safety.
Id. at 37250.
In 2011, a group of scientists issued a report finding that
expanding the Monument was “required to fully protect the
unique biological diversity of the area.” Many local
Oregonians expressed their support for the scientists’
expansion plan. Heeding their call, President Obama in
2017 issued Proclamation 9564, expanding the Monument
by approximately 48,000 acres. 82 Fed. Reg. at 6145, 6148.
10 MURPHY CO. V. BIDEN
The expansion provided “habitat connectivity corridors for
species migration and dispersal” to better permit the
Monument’s diverse species to be “resilient to large-scale
disturbance such as fire, insects and disease, invasive
species, drought, or floods.” Id. at 6145. Further, the
Proclamation prohibited logging within the expanded area.
Id. at 6148–49. Both the original Monument and its
expansion overlap in part with the land managed under the
O&C Act. Though the parties offer competing calculations
about what constitutes “timberland,” the precise degree of
overlap is not consequential to our decision. Following the
Proclamation, BLM—the agency within the Department of
the Interior (“Department”) responsible for administering
federal lands—halted timber sales within the expanded
Monument.
B. THE O&C ACT
The O&C Act descends from the fraught history of
America’s westward expansion, punctuated as it was by the
exploitation of natural resources and federal money. In
1866, the United States made a grant of purportedly “public
lands” to private railroad companies to facilitate the
construction of a rail line between Oregon and California.
Clackamas County v. McKay, 219 F.2d 479, 481, 484 (D.C.
Cir. 1954) (citing Act of July 25, 1866, ch. 242, 14 Stat. 239),
judgment vacated as moot, 349 U.S. 909 (1955). Congress
in 1869 directed the railroads to sell the granted land to
“actual settlers only.” Act of Apr. 10, 1869, ch. 27, 16 Stat.
47. But the railroads violated the terms of the grant and, by
1893, had failed to dispose of the vast majority of the
parcels. See Clackamas, 219 F.2d at 482; Richard White,
Railroaded: The Transcontinentals and the Making of
Modern America 459 (2011).
MURPHY CO. V. BIDEN 11
Consequently, in 1916, Congress revested much of the
land and directed the Secretary to sell the timber “as rapidly
as reasonable prices can be secured.” Act of June 9, 1916,
Pub. L. No. 86, ch. 137, 39 Stat. 218, 220. But the 1916 Act
was “more a triumph of expediency than a statesmanlike
solution,” and its convoluted timber-for-taxes funding
scheme left many Oregon counties in “dire financial straits.”
David Maldwyn Ellis, The Oregon and California Railroad
Land Grant, 1866-1945, 39 Pac. N.W. Q. 253, 273, 275
(1948). In 1926, Congress’s next attempt at alleviating the
financial burden also failed, merely shifting the debts from
the counties onto the U.S. Treasury. Act of July 13, 1926,
Pub. L. No. 523, ch. 897, 44 Stat. 915; Ellis, supra, at 275.
Finally, in 1937, Congress passed the O&C Act to
remedy in part the region’s perilous economic and
environmental situation. Clackamas, 219 F.2d at 485–86.
The O&C Act provided “for the management of the timber
on a conservation basis,” and accorded significant discretion
to the Secretary of the Interior when it came to
“classification of land” and “sale of timber.” Id. at 487. The
statute reads, in part:
[S]uch portions of the revested Oregon and
California Railroad and reconveyed Coos
Bay Wagon Road grant lands as are or may
hereafter come under the jurisdiction of the
Department of the Interior, which have
heretofore or may hereafter be classified as
timberlands, and power-site lands valuable
for timber, shall be managed . . . for
permanent forest production, and the timber
thereon shall be sold, cut, and removed in
conformity with the principal [sic] of
12 MURPHY CO. V. BIDEN
sustained yield for the purpose of providing a
permanent source of timber supply,
protecting watersheds, regulating stream
flow, and contributing to the economic
stability of local communities and industries,
and providing recreational facilties [sic].
43 U.S.C. § 2601. The statute’s remaining sections detail
the Secretary’s duties and discretion to limit the Lands’
annual timber capacity in compliance with the principle of
sustained yield. Id.In the decades since, BLM has managed the more than
two million acres of O&C Lands in keeping with changing
conditions. For instance, the annual amount of timber that
BLM allows to be sold has fluctuated, starting at 500 million
board feet per year in 1937, peaking at more than 1 billion
board feet in 1972, and hitting a low of 13 million board feet
in 1994. Katie Hoover, Cong. Rsch. Serv. R42951, The
Oregon and California Railroad Lands (O&C Lands):
Issues for Congress 3, 5 fig. 3 (2015). The contested lands
are but a small fraction of the vast acreage managed by
BLM. In addition to timber management, BLM has guided
conservation activities on the O&C Lands. BLM
regulations, adopted to implement the O&C Act, have
authorized the agency to “preserve, protect, and enhance
areas of scenic splendor, natural wonder, scientific interest,
primitive environment, and other natural values for the
enjoyment and use of present and future generations.”
Portland Audubon Soc’y v. Lujan, 795 F. Supp. 1489, 1506
(D. Or. 1992) (quoting 43 C.F.R. § 6220.0-1), modified,
1992 WL 176353 (D. Or.), and aff’d sub nom. Portland
Audubon Soc’y v. Babbitt, 998 F.2d 705 (9th Cir. 1993).
Following the Monument’s designation and expansion,
MURPHY CO. V. BIDEN 13
BLM removed Monument lands from its analyses of annual
sustained yield and halted logging on those lands. To date,
BLM has offered one timber sale within the original
Monument in accordance with Proclamation 7318’s
provision for such harvest if it is “clearly needed for
ecological restoration and maintenance or public safety.”
See 65 Fed. Reg. at 37250.
C. THIS LITIGATION
In February 2017, Murphy brought suit in the District of
Oregon seeking declaratory and injunctive relief against the
President, the Secretary, and BLM. Murphy alleged that
President Obama’s Proclamation 9564 designation of O&C
Lands as Monument land violated the “timber production
purpose” of the O&C Act and the President therefore lacked
authority under the Antiquities Act to do so. Murphy also
claimed that the Proclamation’s restrictions on logging also
pose increased risks of wildfire and insect infestation. For
relief, Murphy requested vacatur of the Proclamation as to
the O&C Lands in the expansion, an injunction requiring the
government to manage O&C Lands exclusively pursuant to
the O&C Act, and a declaration as to the Proclamation’s
invalidity. Soda Mountain Wilderness Council and other
environmental organizations intervened.
In June 2017, the district court stayed the litigation after
President Trump directed the Secretary of the Interior to
review certain prior Antiquities Act designations, including
the Monument expansion. The Secretary recommended
reducing the size of the Monument, but President Trump did
not act on the recommendations. No final agency action
emerged from this review. Eventually, the district court
lifted the stay in February 2018, and all parties moved for
summary judgment. The government argued that sovereign
14 MURPHY CO. V. BIDEN
immunity bars Murphy’s claim against the President and that
the Proclamation and the O&C Act do not irreconcilably
conflict. Granting summary judgment for the United States
and Soda Mountain, the district court concluded that it had
jurisdiction to review whether the President had acted ultra
vires and held that the Proclamation was consistent both with
the President’s Antiquities Act authority and with the O&C
Act’s land-management directives.
II. ANALYSIS
A. JUSTICIABILITY
Before addressing the merits of Murphy’s statutory
claims, we first consider whether we have authority to do so.
Sovereign immunity generally bars suits against the United
States and its officials sued in their official capacity unless
Congress has expressly waived immunity by statute. Lane
v. Pena, 518 U.S. 187, 192 (1996). Where Congress has not
waived sovereign immunity, judicial review is never
available “when the statute in question commits the decision
to the discretion of the President.” Dalton v. Specter, 511
U.S. 462, 474 (1994). In the absence of a statutory waiver,
the Supreme Court has permitted judicial review of
presidential actions in two circumstances.
First, the Court has recognized constitutional challenges
to presidential acts as reviewable. In Franklin v.
Massachusetts, the state of Massachusetts and two of its
registered voters sued the President, the Secretary of
Commerce, Census Bureau officials, and the Clerk of the
House of Representatives over reapportionment policy,
particularly regarding the method used for counting federal
employees serving overseas. 505 U.S. 788, 790–91 (1992).
The Court held that the President’s actions could “be
reviewed for constitutionality,” even though they were “not
MURPHY CO. V. BIDEN 15
reviewable for abuse of discretion” under the Administrative
Procedure Act. Id. at 801; see also Dalton, 511 U.S. at 467–
72 (reaffirming the Franklin principle that “Presidential
decisions are reviewable for constitutionality” but clarifying
that not all claims alleging action in excess of statutory
authority are “ipso facto in violation of the Constitution”).
Second, the Court has held that actions by subordinate
Executive Branch officials that extend beyond delegated
statutory authority—i.e., ultra vires actions—are
reviewable. See Larson v. Domestic & Foreign Com. Corp.,
337 U.S. 682, 689–90 (1949). In Larson, the case in which
this theory was first articulated, a corporate plaintiff sued the
head of the War Assets Administration in the wake of World
War II, alleging the government breached a contract to sell
the corporation its surplus coal. Id. at 684. Although the
plaintiff’s suit was “nominally addressed to” the
Administrator, the Court affirmed dismissal on sovereign
immunity grounds because it was “in substance, a suit
against the Government.” Id. at 687–90. But in reaching
this conclusion, the Court articulated an important
exception: sovereign immunity does not shield an executive
officer from suit for actions in “conflict with the terms of his
valid statutory authority.” Id. at 695; see also Dalton, 511
U.S. at 472 (underscoring that “sovereign immunity [does]
not shield an executive officer from suit if the officer acted
either ‘unconstitutionally or beyond his statutory powers.’”
(quoting Larson, 337 U.S. at 691 n.11)).
Here, as a threshold matter, the United States urges that
Proclamation 9564 is immune from judicial review. The
government argues that because no statute waives sovereign
immunity or provides a cause of action for Murphy’s claims,
statutory judicial review is unavailable. Next, the
government contends that even ultra vires review of
16 MURPHY CO. V. BIDEN
Murphy’s statutory claim is unavailable because the
President acted pursuant to authority delegated by Congress
under the Antiquities Act, and the O&C Act does not
regulate the President’s discretion, only that of the Secretary
of the Interior. Murphy does not dispute that the Antiquities
Act grants the President the authority to designate national
monuments; instead, Murphy contends that Proclamation
9564, in particular, is reviewable as an ultra vires act.
Because the O&C Act places a “reviewable limit” on the
President’s authority to designate monuments under the
Antiquities Act, Murphy argues, Larson creates an exception
to sovereign immunity that allows jurisdiction.
Although neither the Supreme Court nor the Ninth
Circuit has directly addressed whether the Larson exception
applies to actions by the President, apart from the actions of
subordinate Executive Branch officials, precedent and
principle point in favor of jurisdiction here. The
reviewability of Murphy’s claim that the Secretary cannot
manage O&C Lands contrary to the O&C Act is a simpler
question. Yet, because Murphy’s claims against the
Secretary and against the President are thoroughly
interwoven, the justiciability of each demands a judicial
answer. Murphy’s complaint is not pristinely clear about the
appropriate avenue to jurisdiction. In addition to Murphy’s
arguments under Larson, Murphy’s challenge implicates
separation of powers concerns that resonate with the
constitutional claims recognized in Franklin. Yet, whether
characterized as ultra vires or constitutional, the result is the
same: we resolve that Murphy’s claims against the President
regarding Proclamation 9564 are justiciable.
When faced with such a “difficult question” of the
reviewability of certain executive actions, the Supreme
Court has in recent years adopted the practice of “assum[ing]
MURPHY CO. V. BIDEN 17
without deciding” justiciability. See Trump v. Hawaii, 138
S. Ct. 2392, 2407 (2018); see also id. at 2407 (noting that the
Court in Sale v. Haitian Centers Council, Inc., 509 U.S. 155(1993), “went on to consider on the merits a statutory claim
like the one before us without addressing the issue of
reviewability”). But relying only on “hypothetical
jurisdiction” risks rendering the disposition “nothing more
than a hypothetical judgment” and thereby diluting the
separation of powers. See Steel Co. v. Citizens for a Better
Env’t, 523 U.S. 83, 101 (1998). Here, Murphy does not
allege that Proclamation 9564 constituted an abuse of
discretion beyond the Antiquities Act guidelines; rather,
Murphy maintains that the President’s exercise of discretion
under the Antiquities Act independently violates the O&C
Act. In other words, Murphy’s claim asks only that we apply
our familiar tools of statutory construction and fulfill our
enduring “duty . . . to say what the law is.” Marbury v.
Madison, 5 U.S. 137, 177 (1803). Longstanding judicial
practice, therefore, urges that we explicitly decide the issue
of justiciability in this case.
Contemporary Ninth Circuit jurisprudence weighs in
favor of justiciability by taking an expansive view of the
constitutional category of claims highlighted in Dalton. In
Sierra Club v. Trump, for example, we held that a challenge
to presidential action will be considered constitutional, and
therefore justiciable under Franklin, so long as a plaintiff
claims that the President has “violat[ed] . . . constitutional
separation of powers principles” because the President’s
action lacked both “statutory authority” and “background
constitutional authority.” 929 F.3d 670, 696–97 (9th Cir.
2019); see also Sierra Club v. Trump, 963 F.3d 874, 889–90
(9th Cir. 2020) (reiterating that claims alleging the President
violated the Constitution by exceeding statutory authority
18 MURPHY CO. V. BIDEN
are justiciable as constitutional claims), vacated and
remanded on other grounds sub nom. Biden v. Sierra Club,
142 S. Ct. 46 (2021). While “an action taken by the
President in excess of his statutory authority [does not]
necessarily violate[] the Constitution,” Dalton, 511 U.S. at
473, specific allegations regarding separation of powers may
suffice. Here, the core of Murphy’s claim—that the
President violated separation of powers by directing the
Secretary to act in contravention of a duly enacted law—
could be considered constitutional and therefore reviewable.
The D.C. Circuit has had occasion to review analogous
cases concerning the reviewability of claims against the
President. In Chamber of Commerce v. Reich, plaintiffs
challenged President Clinton’s executive order, issued
pursuant to his Procurement Act authority, that barred the
federal government from contracting with employees
replacing striking workers. 74 F.3d 1322, 1324 (D.C. Cir.
1996). The court determined that it had jurisdiction to
review plaintiffs’ claims that the order constituted “a
palpable violation” of the National Labor Relations Act. Id.In two other cases, the D.C. Circuit acknowledged
jurisdiction over ultra vires allegations but ultimately
concluded that the claims failed because of insufficient
factual allegations. Plaintiffs in Mountain States Legal
Foundation v. Bush challenged the creation of six national
monuments, alleging the President acted ultra vires under
the Antiquities Act and contrary to other federal statutes.
306 F.3d 1132, 1133–34 (D.C. Cir. 2002). The D.C. Circuit
explained that Dalton’s restriction on reviewing presidential
acts for abuse of discretion “‘is inapposite’ . . . ‘where the
claim instead is that the presidential action . . .
independently violates’ another statute.” Id. at 1136(quoting Reich, 74 F.3d at 1332). The court proceeded to
MURPHY CO. V. BIDEN 19
review and reject plaintiffs’ argument that the presidential
action did indeed independently violate another statute, thus
affirming dismissal on the merits for failure to state a claim.
Id. at 1138. Applying this standard, the D.C. Circuit in
Massachusetts Lobstermen’s Association v. Ross concluded
that plaintiffs’ claims “that interpreting the Antiquities Act
to permit ocean-based monuments would render the
Sanctuaries Act a practical nullity” were justiciable but
without merit. 945 F.3d 535, 541, 544 (D.C. Cir. 2019)
(internal quotation marks omitted), cert. denied sub nom.
Mass. Lobstermen’s Ass’n v. Raimondo, 141 S. Ct. 979
(2021).
Against this backdrop, Murphy’s allegations are
sufficient to establish jurisdiction. Our resolution should not
be read to empower future objectors to frame any unpopular
presidential action as “ultra vires” and thus open the
floodgates to frivolous judicial challenges that hinder the
President’s power to respond to pressing issues. The
Supreme Court has emphasized that dismissal for lack of
jurisdiction is warranted if the alleged claim of statutory
excess is made “solely for the purpose of obtaining
jurisdiction or is wholly insubstantial and frivolous.” See
Larson, 337 U.S. at 690 n.10. And, again, the Court has
stipulated that not every ultra vires claim will necessarily
implicate constitutional concerns. See Dalton, 511 U.S. at
472. As the D.C. Circuit held in Mountain States Legal
Foundation, plaintiffs advancing ultra vires claims must
plead “plausible factual allegations identifying an aspect of
the designation that exceeds the President’s statutory
authority.” 306 F.3d at 1136–37. Far from providing
“only the bald assertion that the President acted outside the
bounds of his . . . statutory authority,” id. at 1137, Murphy’s
particularized allegations that the O&C Act restricts the
20 MURPHY CO. V. BIDEN
President’s designation powers under the Antiquities Act
satisfies the jurisdictional standard set forth here and
elsewhere. 1
B. THE ANTIQUITIES ACT’S CONSISTENCY WITH THE
O&C ACT
No party challenges President Obama’s general
authority to expand the Monument under the Antiquities
Act. And for good reason—that authority is not inconsistent
with the scope of the O&C Act. Murphy urges that the O&C
Act’s directive of “permanent forest production”
circumscribed the scope of presidential authority over these
specific lands. But Murphy overreads the extent of
congressional commitment to timber production in the O&C
Act and improperly discounts the considerable discretion
that the statute grants the Department in managing O&C
Lands for uses other than timber. After reviewing the O&C
Act’s plain text and legislative history, we hold that the
Proclamation is a valid exercise of the President’s
Antiquities Act authority.
1
Our conclusion that Murphy has credibly alleged a statutory conflict
does not dictate our determination on the merits. The pleading burdens
with respect to jurisdiction and the merits are not coterminous when the
claim is that the challenged action violates a separate statute conferring
no authority on the President. See Reich, 74 F.3d at 1330–31 (stressing
that “it is important carefully to distinguish between the government’s
argument on the merits and its non-reviewability claim” in ultra vires
suits involving two or more statutes because the fact that a statute affords
the President “broad authority”—though weighing heavily on the
merits—does not “preclude[] judicial review of executive action for
conformity with that statute—let alone review to determine whether that
action violates another statute.”).
MURPHY CO. V. BIDEN 21
1. The O&C Act did not repeal the Antiquities
Act.
The O&C Act did not explicitly or implicitly repeal the
Antiquities Act. To begin, the two statutes are directed at
different officials: the Antiquities Act vests authority in the
President, while the O&C Act concerns the Secretary and
says nothing about presidential authority. See Sale, 509 U.S.
at 171–79 (considering statutes’ direction at different
officials as a persuasive factor in reconciling a statute and an
executive order). Nor does the O&C Act make any reference
to the preexisting Antiquities Act. The Supreme Court has
counseled, “when two statutes are capable of co-existence, it
is the duty of the courts, absent a clearly expressed
congressional intention to the contrary, to regard each as
effective.” Morton v. Mancari, 417 U.S. 535, 551 (1974).
The Antiquities Act and the O&C Act are easily “capable of
co-existence.”
Lacking any evidence of an explicit repeal, Murphy
contends that the Antiquities Act and the O&C Act are
irreconcilable because the latter act’s non-obstante clause
implicitly repealed the President’s power under the
Antiquities Act. By its terms, that non-obstante clause
applies only if there is a statutory conflict: “All Acts or parts
of Acts in conflict with this Act are hereby repealed to the
extent necessary to give full force and effect to this Act.”
See Act of Aug. 28, 1937, ch. 876, 50 Stat. 876. Murphy
“faces a stout uphill climb” against the “strong presumption
that repeals by implication are disfavored.” Epic Sys. Corp.
v. Lewis, 138 S. Ct. 1612, 1624 (2018) (internal quotation
marks omitted). In urging that the Antiquities Act and the
O&C Act “cannot be harmonized,” Murphy “bears the heavy
burden of showing a clearly expressed congressional
intention that such a result should follow.” Id. (internal
22 MURPHY CO. V. BIDEN
quotation marks omitted). Murphy points to no such
evidence of congressional intent to repeal the Antiquities
Act. In fact, the O&C Act’s legislative history does not
contain any reference to the Antiquities Act, even though the
1906 law was hardly itself an antiquity by 1937, when the
O&C Act came into existence. President Franklin Delano
Roosevelt exercised his monument-making power eight
times that year alone. National Monument Facts and
Figures, supra. Rather, the legislative record supports that
Congress likely included the non-obstante clause as a fail-
safe to ensure that the 1937 O&C Act superseded the tangle
of statutes that had previously regulated the O&C Lands.
See H.R. Rep. No. 75-1119, at 2–4 (1937).
When Congress has wished to restrict the President’s
Antiquities Act authority, it has done so expressly.
Consider, for instance, the highly public dispute between
Congress and President Roosevelt over the establishment of
the Jackson Hole National Monument in 1943. That year,
President Roosevelt proclaimed 221,610 acres of federal
land in Wyoming as a national monument of historic
significance under the Antiquities Act, brushing aside strong
indications from Congress that they would disapprove of
such a move. See Robert W. Righter, Crucible for
Conservation: The Creation of Grand Teton National Park
109–10 (1982). Opposition to the monument was fierce, and
Congress reacted almost immediately: it appointed a joint
congressional committee to investigate the issue, and, a few
years later, it passed legislation that prohibited “further
extension or establishment of national parks or monuments
in Wyoming” without “express authorization” from
Congress. See Act of Sept. 14, 1950, Pub. L. No. 787, § 1,
64 Stat. 849, 849; see also Righter, supra, 110–19, 123–25.
To take another example, in response to President Carter in
MURPHY CO. V. BIDEN 23
1978 establishing more than 50 million acres across Alaska
as national monuments, Congress passed a law requiring that
the President seek congressional approval for land
withdrawals larger than 5,000 acres throughout the entire
state. See Act of Dec. 2, 1980, Pub. L. No. 96-487,
§ 1326(a), 94 Stat. 2371, 2488. Here, there is every reason
to believe that if Congress had intended the restrictions of
the O&C Act to apply when the President shifted the land
use in question, Congress would speak as clearly and
promptly here as it did in the cases of Alaska and Wyoming.
But no such action was here taken.
More broadly, the fact that the Supreme Court has never
overturned an Antiquities Act proclamation underscores the
statute’s vitality. See United States v. California, 436 U.S.
32, 35–36 (1978) (confirming the President’s Antiquities
Act power to add federally controlled lands to an existing
monument); Cameron v. United States, 252 U.S. 450, 455
(1920) (affirming the President’s authority under the
Antiquities Act to create a Grand Canyon National
Monument); see also Cappaert v. United States, 426 U.S.
128, 141–42 (1976) (holding that the “language of the
[Antiquities] Act . . . is not so limited” and includes the
authority to reserve rights to unappropriated water within a
national monument). In one such historical case, the Court
noted that the scope of President Truman’s enlargement of a
national monument in California was “a question only of
Presidential intent, not of Presidential power.” United States
v. California, 436 U.S. at 36.
Thus, nothing supports a claim that the Antiquities Act
proclamations are broadsides at land-management laws and
cannot coexist with preexisting congressional mandates.
There is no basis to suggest that Congress intended the O&C
24 MURPHY CO. V. BIDEN
Act to nullify the Antiquities Act—which was, after all,
itself an act of Congress.
2. The Proclamation’s Exercise of Antiquities
Act Power is Consistent with the Text,
History, and Purpose of the O&C Act.
The Proclamation’s exercise of Antiquities Act power is
consistent with the O&C Act. The O&C Act’s text, history,
and purpose are clear that timber production was not the sole
purpose that Congress envisioned for the more than two
million acres of O&C Lands. Congress delegated ample
discretion to the Department of the Interior to manage the
lands in a flexible manner.
a. Text
When “the meaning of the statute’s terms is plain,” the
court’s job “is at an end.” Bostock v. Clayton County, 140
S. Ct. 1731, 1749 (2020). Here, the O&C Act’s plain
language empowers the Department to classify and manage
the revested and reconveyed lands for several purposes—
predominantly, but not exclusively, timber production. We
cannot ignore the conservation provisions of the Act. As the
D.C. Circuit long ago recognized, the O&C Act “conferred
upon the Secretary of the Interior many duties requiring the
exercise of his discretion and judgment.” Clackamas, 219
F.2d at 487. The opening paragraph of the O&C Act reveals
the breadth of congressional purpose:
[S]uch portions of the revested Oregon and
California Railroad and reconveyed Coos
Bay Wagon Road grant lands as are or may
hereafter come under the jurisdiction of the
Department of the Interior, which have
heretofore or may hereafter be classified as
MURPHY CO. V. BIDEN 25
timberlands, and power-site lands valuable
for timber, shall be managed . . . for
permanent forest production, and the timber
thereon shall be sold, cut, and removed in
conformity with the principal [sic] of
sustained yield for the purpose of providing a
permanent source of timber supply,
protecting watersheds, regulating stream
flow, and contributing to the economic
stability of local communities and industries,
and providing recreational facilties [sic].
43 U.S.C. § 2601 (emphasis added).
The first italicized provision indicates that not all O&C
Lands were to be operated as timberlands. Instead, the
statute directs the Department to determine which portions
of the land should be set aside for logging and which should
be reserved. The Department’s duty to oversee the lands is
obligatory (“shall be managed”), but treating every parcel as
timberland is not. Reading the statute differently would
render the “heretofore” phrase mere surplusage and “run[]
afoul of the ‘cardinal principle’ of interpretation that courts
‘must give effect, if possible, to every clause and word of a
statute.’” Loughrin v. United States, 573 U.S. 351, 358
(2014) (quoting Williams v. Taylor, 529 U.S. 362, 404
(2000)). Murphy concedes as much in acknowledging that
“[s]ome O&C Act lands are not subject to the statutes’
sustained-yield timber production mandates.” Obviously,
Murphy can’t pick and choose which parcels should be
classified as protected timberlands. Otherwise, Murphy’s
argument would place the court or the timber company in the
driver’s seat and divest the Department of authority to make
26 MURPHY CO. V. BIDEN
dynamic, scientific decisions about which parcels should or
should not be logged.
Importantly, the statute authorizes the Department to
manage the O&C Lands for uses other than timber
production. While “providing a permanent source of timber
supply” is certainly primary, the Act delineates a number of
purposes for the Lands: “protecting watersheds, regulating
stream flow, and contributing to the economic stability of
local communities and industries, and providing recreational
facil[i]ties.” 43 U.S.C. § 2601. Our earlier decision in
Headwaters, Inc. v. BLM, Medford District, 914 F.2d 1174(9th Cir. 1990), which dealt specifically with the O&C Act,
does not counsel a different conclusion. To be sure,
Headwaters held that “the O & C Act envisions timber
production as a dominant use,” and rejected an
environmental group’s proposal to exempt “certain timber
resources from harvesting to serve as wildlife habitat”
because it was “inconsistent with the principle of sustained
yield.” Id. at 1183–84. But in Headwaters we never held
that the O&C Act required timber production to be the
exclusive use of O&C Land. Although saving the spotted
owl might have been beyond Congress’s vision of “forest
production,” id. at 1183, the statute’s specific reference to
“watersheds” and “recreational facil[i]ties” underscores that
Congress contemplated alternative, secondary uses for the
lands. Of note, Headwaters did not evaluate the O&C Act
in the context, at issue here, of reconciling its statutory
demands with the Antiquities Act. Ultimately, we affirmed
BLM’s exercise of discretion to manage the tract of O&C
Land at issue as it saw fit—in that case, for logging. Id. at
1183–84.
Our reading of the O&C Act does not diverge from
Headwaters’s recognition of the discretion vested in the
MURPHY CO. V. BIDEN 27
Department and BLM, a principle we apply here. We have
repeatedly reinforced that the O&C Act grants the
Department broad discretion to manage the lands in a
flexible manner. For instance, in Portland Audubon Society
v. Babbitt, we considered an analogous clash between the
O&C Act and the National Environmental Policy Act
(“NEPA”). 998 F.2d 705 (9th Cir. 1993). Environmental
groups sued BLM for failing to prepare a Supplemental
Environmental Impact Statement under NEPA in light of the
presence of northern spotted owls on O&C Land used for
logging. Id. at 707. Affirming the district court, we
underscored BLM’s discretion to manage O&C Land for
multiple purposes, holding that “the plain language of the
[O&C] Act supports the . . . conclusion that the Act has not
deprived the BLM of all discretion with regard to either the
[timber] volume requirements of the Act or the management
of the lands entrusted to its care.” Id. at 709. In the absence
of a “clear and unavoidable conflict” between the two
statutes, BLM could not use “an excessively narrow
construction of its existing statutory authorizations” under
the O&C Act to avoid compliance with NEPA. Id. (citation
omitted). Portland Audubon Society thus reinforces the
notion that BLM has latitude to reserve O&C Act land from
logging in light of competing directives.
Just a few years later, in Seattle Audubon Society v.
Moseley, we considered a logging-industry challenge to
BLM’s designation of certain O&C Lands as a spotted-owl
habitat. 80 F.3d 1401 (9th Cir. 1996) (per curiam). The
district court concluded that BLM’s “management decision
made here in regard to the [O&C] lands was a lawful
exercise of the Secretary’s discretion.” Seattle Audubon
Soc’y v. Lyons, 871 F. Supp. 1291, 1314 (W.D. Wash. 1994).
We affirmed. Moseley, 80 F.3d at 1406.
28 MURPHY CO. V. BIDEN
Together, these decisions reinforce our conclusion that
the O&C Act’s plain text envisions economic, recreational,
and environmental uses for the O&C Lands beyond logging
and grants the Department significant discretion in how to
achieve statutory compliance.
b. History and Purpose
The O&C Act’s legislative history confirms our reading
of the statute’s plain language. Congress drafted the O&C
Act to address “two basic criticisms” of its 1916 and 1926
statutory predecessors: “they required the timber to be sold
as rapidly as possible and the cut-over lands disposed of,”
and they created a financial deficit due from the federal
Treasury to Oregon counties. Clackamas, 219 F.2d at 487.
Accordingly, “[t]he purposes of the [1937] O & C act were
twofold”: provide a “stream of revenue” to the affected
counties and “halt [the] previous practices of clear-cutting
without reforestation.” Headwaters, 914 F.2d at 1183.
Although in Headwaters we rather cursorily addressed the
possibility of conservationist intent behind Congress’s
rejection of clear-cutting, id. at 1184, the historical record
contains ample evidence of the government’s growing
environmental concern. Without doubt, Congress intended
to bestow significant discretion to the Department to manage
the lands for posterity.
The O&C Act Committee Reports from the House and
the Senate convey a concern for conservation and an intent
to vest discretionary authority in the Department. H.R. Rep.
75-1119 (1937); S. Rep. No. 75-1231 (1937) (adopting the
House Report in full). The Reports frame the Act as a course
correction for the economic and environmental damage
wrought by the 1916 and 1926 Acts. These earlier statutes
“called for outright liquidation” of timber without making
MURPHY CO. V. BIDEN 29
any provision “for the administration of the land on a
conservation basis looking toward the orderly use and
preservation of its natural resources.” H.R. Rep. 75-1119 at
2. By 1937, times had changed: such a policy of
deforestation was “now believed to be wasteful and
destructive of the best social interests of the State and
Nation.” Id. at 2. Thus, Congress intended to set a
maximum, not a minimum, quota for timber production, so
that the O&C Lands’ natural assets could be “conserved and
perpetuated.” Id. at 2, 4. Such forward thinking drove the
statute’s innovative adoption of “sustained yield” forestry,
see id., and deference to the Department’s implementation
of that strategy. Heeding the concerns of the Department’s
Acting Secretary, Congress sought to “provide conservation
and scientific management for this vast Federal property
which now receives no planned management.” Id. at 2; see
also id. at 4–6 (reprinting in full a letter from the Acting
Secretary of the Interior).
Placing the Committee Reports in their historical context
makes Congress’s intent even clearer. The New Deal was
an era of agency expansion and pragmatic conservationism.
At the turn of the twentieth century, “[q]uick exploitation of
the natural resources” was the dominant ideology in the
West, and the federal government struggled to intervene.
Roy E. Appleman, Timber Empire from the Public Domain,
26 Miss. Valley Hist. Rev. 193, 196 (1939). By the 1930s,
however, Americans had developed an “increasing concern
for the conservation of the nation’s natural resources.” Paul
G. Dodds, The Oregon and California Lands: A Peculiar
History Produces Environmental Problems, 17 Env’t L. 739,
754 (1987).
In an era of scarcity like the Great Depression, economic
and environmental preservation took on new urgency.
30 MURPHY CO. V. BIDEN
President Roosevelt preached a “gospel of conservation,”
Remarks at the Celebration of the Fiftieth Anniversary of
State Conservation at Lake Placid (Sept. 14, 1935), which
pressed the need to “to conserve soil, conserve water and
conserve life,” Fireside Chat (Sept. 6, 1936). Meanwhile,
Secretary of the Interior Harold Ickes sought to rename his
agency as the “Department of Conservation” and double its
efforts to preserve natural resources and expand national
parks. Ickes Pushes New Department Unifying Federal
Conservation, N.Y. Times, Nov. 22, 1937, at 1, 7. Such a
shift in thinking resonated at the local level as well: the
northwest regional head of the U.S. Forest Service warned
in 1934 that Oregon and Washington were facing a “day of
social and economic reckoning” if they did not change their
timber practices. William G. Robbins, Timber Town:
Market Economics in Coos Bay, Oregon, 1850 to the
Present, 75 Pac. N.W. Q. 146, 152–53 (1984). The O&C
Act was designed to confront these contemporary challenges
and empower the Department to create a roadmap for the
future.
Accordingly, in the decades to follow, the Department
implemented an ever-evolving multiple use strategy for the
O&C Lands. Especially since the expansion of
environmental legislation in the 1970s, the Department has
increased protections for the Lands’ flora and fauna while
continuing to give credence to local communities’ reliance
on timber production. See, e.g., Lyons, 871 F. Supp. at1301–06, 1313–15 (summarizing the development and
legislative backdrop of BLM resource management plans
affecting O&C Lands in the 1980s and 1990s).
MURPHY CO. V. BIDEN 31
3. The Dissent Sidesteps the Fundamental
Questions of Repeal and Inconsistency.
The dissent’s concerns that Proclamation 9564 and the
O&C Act are in conflict are unsubstantiated. To begin, the
dissent misunderstands the powers granted to the President
when issuing proclamations pursuant to the Antiquities Act.
As the Supreme Court has noted, “[t]he Antiquities Act of
1906 permits the President . . . to create a national
monument and reserve for its use simply by issuing a
proclamation with respect to land owned or controlled by the
Government of the United States.” United States v.
California, 436 U.S. 32, 40 (1978) (emphasis added and
internal citation omitted). This authority includes the power
to shift federal land from one federal use to another, id., with
a concurrent shift in the laws and regulations governing its
use. “Without such reservation, the federal lands would
remain subject to . . . continued federal management for [the
previously] designated purposes.” Id. Put another way,
context is everything, and laws passed by Congress as to
how federal lands should be treated in one context may not
fairly apply when the land is shifted to a different use having
its own set of rules.
Applied here, this means that President Obama, through
his expansion of the Cascade-Siskiyou National Monument,
did no more and no less than take a small portion of the O&C
Lands and direct the Secretary to manage the area for a new
use. This would hardly be the first time a President has used
Antiquities Act authority to dedicate federal land for one use
that Congress had previously appropriated for a different
use. To take a recent example, President Obama in 2011
established the Fort Monroe National Monument,
Proclamation 8750, 76 Fed. Reg. 68625 (Nov. 1, 2011),
notwithstanding Congress’s delegation to the Secretary of
32 MURPHY CO. V. BIDEN
Defense of the exclusive authority to “utilize [and dispose
of] excess property . . . located” at the base after it was
decommissioned as a military installation that same year, see
10 U.S.C. § 2687 note § 2905(b) (Defense Base Closure and
Realignment Act of 1990). Though it is plain that the
President’s designation made it impossible for the Secretary
of Defense to exercise this delegated authority, no one
viewed the President’s proclamation as somehow violative
of Congress’s previous authorization to the Secretary.
Second, in the dissent’s view, such a reading of the
Antiquities Act would effectively allow the President to
repeal any disagreeable statute. This, however, reduces
Congress to a bit player in federal land-management policy,
erasing the long history of vigorous action it has taken in
response to what it perceived to be presidential overreach.
When Congress has disagreed with a President’s decision to
expand a monument or wanted to prevent the President from
exercising Antiquities Act powers in the first instance, it has
not hesitated to make its disagreement known through
legislative action. The earlier-discussed examples from
Wyoming and Alaska affirmatively demonstrate
congressional interplay with presidential authority under the
Antiquities Act. See Act of Sept. 14, 1950, Pub. L. No. 787,
§ 1, 64 Stat. 849, 849 (amending the Antiquities Act to
prohibit “further extension or establishment of national
parks or monuments in Wyoming” without congressional
authorization following a dispute over the Jackson Hole
National Monument); Act of Dec. 2, 1980, Pub. L. No. 96-
487, § 1326(a), 94 Stat. 2371, 2488 (prohibiting future
Executive Branch withdrawals of more than 5,000 acres of
public lands within Alaska).
We do not suggest that congressional silence is the
bellwether for interpretation. The important point is that the
MURPHY CO. V. BIDEN 33
designation here is not contrary to the text of the O&C Act,
nor does it represent any effort to modify or nullify the Act.
Finally, the dissent’s claim of executive nullification is
hyperbole. This is not a case where the executive’s action
eviscerates Congress’s land-management scheme, nor is it a
case that concerns “vast and amorphous expanses of terrain.”
Mass. Lobstermen’s Ass’n, 141 S. Ct. at 981 (Roberts, C.J.,
statement respecting the denial of certiorari). Of the more
than two million acres of O&C Lands, only some 40,000
acres—less than two percent—fall within the expanded
Monument’s territory, and the Secretary retains broad
discretion over the millions of acres remaining. The
Proclamation does not usurp congressional intent or the
Secretary’s broad authority to regulate the O&C Lands as a
whole. If the dissent had its way, a President’s Antiquities
Act proclamation would be ultra vires whenever it arguably
implicates some provision of a statute, no matter how minor
the provision or how minimal the monument. Not only
would such a rule be without precedent, but it could
potentially implicate many of the detailed land-management
statutes throughout the United States Code. See, e.g., 43
U.S.C. §§ 1711–23, 1751–52, 1761–87 (sections featuring
specific regulations on federal land). Most importantly, the
dissent’s theory sidesteps the foundational question of
whether the O&C Act repealed the Antiquities Act in the
first place—it did not. Whatever the dissent’s concerns with
the Antiquities Act writ large, this is not a case that tests the
bounds of the Act.
III. CONCLUSION
In short, the Proclamation is fully consistent with the
O&C Act, which governs a much larger swath of
timberlands in Oregon and gives the Secretary discretion in
34 MURPHY CO. V. BIDEN
administering those lands within the Act’s directives. We
affirm the district court’s grant of summary judgment in
favor of the United States and Soda Mountain.
AFFIRMED.
TALLMAN, Circuit Judge, concurring in part and dissenting
in part:
I
I agree that we may review claims that the President’s
execution of one statute obstructs the operation of another.
However, I must respectfully dissent from the majority’s
conclusion that Proclamation 9564 does not conflict with the
Oregon and California Railroad and Coos Bay Wagon Road
Grant Lands Act (O&C Act).
II
This case arises from the protracted history of
controversial land use decisions that have decimated Pacific
Northwest timber communities long dependent on logging
and wood product sales to sustain them. The management
of these vast swaths of federal land, removed from state and
local tax rolls, has had a checkered history to say the least,
but also a devastating economic impact on these towns. The
President’s unilateral action here favoring environmental
conservation interests is the latest skirmish.
Two small Oregon timber companies, Murphy Timber
Company and Murphy Timber Investments, LLC
(collectively Murphy Co.) own land that is impacted by
adjacent federal timberland. In 1937 Congress enacted the
O&C Act and directed the Secretary of the Interior
MURPHY CO. V. BIDEN 35
(Secretary) to manage those federal timberlands primarily
for “permanent forest production . . . in conformity with the
principal [sic] of sustained yield.” 43 U.S.C. § 2601. In
2017 President Obama issued a proclamation pursuant to the
Antiquities Act which doubled the size of a preexisting
national monument, created by President Clinton, to cover
O&C timberlands. Proclamation 9564, 82 Fed. Reg. 6145(Jan. 12, 2017). The Proclamation directs the Secretary to
manage lands “under the same laws and regulations that
apply to the rest of the monument,” 82 Fed. Reg. at 6149,
which absolutely prohibit sustained yield calculation and
“[t]he commercial harvest of timber” within the monument.
Proclamation 7318, 65 Fed. Reg. 37249, 37250 (June 9,
2000).
The question we face is whether the President, through
an Antiquities Act proclamation, may direct a subordinate to
disregard duties prescribed by another act of Congress. We
should hold that “[t]he President cannot authorize a secretary
. . . to omit the performance of those duties which are
enjoined by law.” Marbury v. Madison, 5 U.S. 137, 138-39,
154, 158 (1803) (summarizing and endorsing arguments of
counsel).
III
The majority opens with a sterile analysis of whether the
O&C Act repealed the Antiquities Act. But whether the
Antiquities Act and the O&C Act can coexist in the abstract
is quite beside the point. Rather, we must decide whether
Proclamation 9564—issued pursuant to the Antiquities
Act—conflicts with the O&C Act. Even a perfunctory
review of the plain text of the Proclamation and the O&C
Act reveals an obvious conflict.
36 MURPHY CO. V. BIDEN
The Antiquities Act permits the President, in his
“discretion, [to] declare by public proclamation historic
landmarks . . . situated on land owned or controlled by the
Federal Government to be national monuments.” 54 U.S.C.
§ 320301. The parcels of the monument that the President
may reserve must “be confined to the smallest area
compatible with the proper care and management of the
objects to be protected.” Id.Enacted three decades after the Antiquities Act, the O&C
Act mandates that O&C timberlands “shall be managed” by
the Secretary “for permanent forest production, and the
timber thereon shall be sold, cut, and removed in conformity
with the principal [sic] of sustained yield.” 43 U.S.C. § 2601(emphasis added). In calculating sustained yield, the
Secretary must consider the following statutory goals:
“providing a permanent source of timber supply, protecting
watersheds, regulating stream flow, and contributing to the
economic stability of local communities and industries, and
providing recreational facilties [sic].” Id. The O&C Act’s
non-obstante clause, which the majority dismisses as too
vague to mean anything here, expressly provides: “All Acts
or parts of Acts in conflict with this Act are hereby repealed
to the extent necessary to give full force and effect to this
Act.” O&C Act, Pub. L. No. 75-405, § 5, 50 Stat. 874, 875
(1937).
Proclamation 9564 doubles the existing Cascade-
Siskiyou National Monument to cover O&C timberlands,
and it directs the Secretary to manage those lands under
“laws and regulations,” 82 Fed. Reg. at 6149, that outright
prohibit “the commercial harvest of timber” and the
“calculation or provision of a sustained yield of timber” on
all lands falling within the monument. 65 Fed. Reg. at
MURPHY CO. V. BIDEN 37
37250. This removes the land entirely from inclusion as
available timberlands to meet statutory commands.
The conflict between the O&C Act and Proclamation
9564 could not be more self-evident. The O&C Act requires
sustained yield calculation for all O&C timberlands.
Proclamation 9564 removes O&C timberlands from the
sustained yield calculation if they fall within the monument.
Although the Antiquities Act does grant the President broad
authority to establish national monuments, nowhere does it
remotely purport to grant him authority to suspend the
operation of another act of Congress. By expressly singling
out sustained yield calculation for prohibition, the
President’s proclamation intentionally directs the Secretary
to disregard her statutory duties under the O&C Act to make
sure that timber is available for harvest to meet the economic
needs of timber-dependent communities.
The Secretary’s duty to conduct a sustained yield
analysis for all O&C timberland “is not a proceeding which
may be varied, if the judgment of the executive shall suggest
one more eligible; but is a precise course accurately marked
out by law, and is to be strictly pursued.” Marbury, 5 U.S.
at 158. The Secretary must “conform to the law, and in this
[s]he is an officer of the United States, bound to obey the
laws.” Id. She acts “under the authority of law, and not by
the instructions of the President. It is a ministerial act which
the law enjoins on a particular officer for a particular
purpose.” Id. And the President must “take Care that the
Laws be faithfully executed.” U.S. CONST. art II, § 3
(emphasis added).
Accordingly, the “judicial inquiry is complete” and “our
job is at an end.” Connecticut Nat.’l Bank v. Germain, 503
U.S. 249, 254 (1992) (quoting Rubin v. United States, 449
38 MURPHY CO. V. BIDEN
U.S. 424, 430 (1981)); Bostock v. Clayton Cnty., Georgia,
140 S. Ct. 1731, 1749 (2020). We may not rewrite statutes
or executive orders to avoid clear conflict, and the only task
that remains is to give effect to the plain meaning of the
O&C Act and declare the Proclamation void as to O&C
timberland.
Other principles of construction require us to give effect
to the O&C Act over Proclamation 9564. Under the canon
of generalia specialibus non derogant, “a ‘narrow, precise,
and specific’ statutory provision is not overridden by another
provision ‘covering a more generalized spectrum’ of issues.”
Perez-Guzman v. Lynch, 835 F.3d 1066, 1075 (9th Cir.
2016) (quoting Radzanower v. Touche Ross & Co., 426 U.S.
148, 153-54 (1976)). We “assume Congress intended
specific provisions to prevail over more general ones.” Id.As Judge Richard Leon correctly observed in American
Forest Resource Council v. Hammond, “[t]he Antiquities
Act says nothing specific about managing O&C timberland.
As such, it cannot be understood to nullify the timber harvest
mandates imposed by Congress in the O&C Act.” 422 F.
Supp. 3d 184, 193 (D.D.C. 2019) (citations omitted). An
executive proclamation issued pursuant to a general grant of
authority cannot supersede a specific act of Congress.
Furthermore, later-in-time statutes generally take
priority over earlier-enacted laws. See Bell v. United States,
366 U.S. 393, 407-08 (1961). The Antiquities Act, and any
execution of it, must yield to the O&C Act because Congress
enacted the O&C Act intending that it have “full force and
effect” notwithstanding the existence of the Antiquities Act.
O&C Act, § 5, 50 Stat. 875. But where an act is both later
in time and more specific, the “specific policy embodied in
a later federal statute should control our construction of the
[earlier] statute.” Food & Drug Admin. v. Brown &
MURPHY CO. V. BIDEN 39
Williamson Tobacco Corp., 529 U.S. 120, 143 (2000)
(quoting United States v. Estate of Romani, 523 U.S. 517,
530 (1998)). 1 As the later-in-time statute specifically
addressing the management of O&C lands to provide
sustainable timber, the O&C Act supersedes the Antiquities
Act and any ensuing proclamation.
The majority appears to have fashioned its own rule that
where Congress wishes to restrict the President’s Antiquities
Act authority, it must do so expressly. The majority cites
instances where Congress has enacted legislation rebuking
exercises of the Antiquities Act in Wyoming and Alaska,
concluding that “Congress would speak as clearly and
promptly here” if it felt the President had overstepped his
authority. This argument belies foundational principles of
constitutional law and misconstrues the role of courts in our
tripartite system of government.
The Judiciary may not abdicate its duty to curtail
unlawful executive action merely because Congress may
also act to restrain the President, THE FEDERALIST NO. 78
(Alexander Hamilton) (explaining constitutional limits “can
be preserved in practice no other way than through the
medium of courts of justice, whose duty it must be to declare
all acts contrary to the manifest tenor of the Constitution
void”), and citizens need not await congressional action
before seeking relief from unlawful executive action in the
courts. Id. (“There is no position which depends on clearer
1
For similar reasons, the majority’s reference to Congress’s vague
delegation of authority to the Secretary of Defense to “utilize excess
property” at closed military bases is inapposite. 10 U.S.C. § 2687 note
§ 2905(b)(1)(A) (Defense Base Closure and Realignment Act of 1990).
See also id. at § 2905(b)(1)(D) (also delegating authority to the Secretary
of Defense to “determine the availability of excess or surplus real
property for wildlife conservation purposes”).
40 MURPHY CO. V. BIDEN
principles, than that every act of a delegated authority,
contrary to the tenor of the commission under which it is
exercised, is void. . . . To deny this, would be to
affirm . . . that the representatives of the people are superior
to the people themselves . . . .”).
“The danger of imputing to Congress, as a result of its
failure to take positive or affirmative action through normal
legislative processes, ideas entertained by the [majority]
concerning Congress’ will” is well known to courts.
Cleveland v. United States, 329 U.S. 14, 23 (1946)
(Rutledge, J., concurring). “Congress cannot anticipate and
legislate with regard to every possible action the President
may find it necessary to take or every possible situation in
which he might act.” Dames & Moore v. Regan, 453 U.S.
654, 678 (1981). For those reasons, “[o]rdinarily, and quite
appropriately, courts are slow to attribute significance to the
failure of Congress to act on particular legislation.” Bob
Jones Univ. v. United States, 461 U.S. 574, 600 (1983). And
“[u]nder the Youngstown tripartite framework,
congressional acquiescence is pertinent when the President’s
action falls within the second category—that is, when he
‘acts in absence of either a congressional grant or denial of
authority.’” Medellin v. Texas, 552 U.S. 491, 528 (2008)
(quoting Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S.
579, 637 (1952) (Jackson, J., concurring)). In other words,
“[a]n inference drawn from congressional silence certainly
cannot be credited when it is contrary to” the text of the O&C
Act. Burns v. United States, 501 U.S. 129, 136 (1991).
Moreover, even an affirmative act of Congress cannot grant
the President the power to indefinitely modify or nullify duly
enacted law. See Clinton v. City of New York, 524 U.S. 417,
436-47 (1998). The majority’s deference to the political
MURPHY CO. V. BIDEN 41
branches of government in this case is contrary to our
commitment to the rule of law.
Indeed, the far-reaching implications of the majority’s
interpretive rule are sobering: every federal land
management law that does not expressly shield itself from
the Antiquities Act is now subject to executive nullification
by proclamation. I can find no limiting principle within the
majority opinion that counsels otherwise. I think it
manifestly more sensible to apply a different presumption: I
would not construe a statute to grant the President unfettered
authority to indefinitely suspend or cancel the operation of
federal law, see id. at 443-44 (distinguishing between
constitutional delegations of authority to suspend statutes
and unconstitutional delegations of authority to cancel
statutes), particularly where Congress has not expressly
done so nor conditioned the suspension authority upon some
intelligible changed circumstance. See, e.g., 46 U.S.C. §
3101 (“When the President decides that the needs of foreign
commerce require, the President may suspend a provision of
this part . . . .” (emphasis added)); 46 U.S.C. § 60304 (“If the
President is satisfied that the government of a foreign
country does not impose discriminating or countervailing
duties to the disadvantage of the United States, the President
shall suspend the imposition of special tonnage taxes and
light money . . . .” (emphasis added)); 22 U.S.C. § 4103(“The President may by Executive order suspend any
provision of this subchapter . . . if the President determines
in writing that the suspension is necessary in the interest of
national security because of an emergency.” (emphasis
added)).
A few simple counterfactuals illustrate the infirmity of
the majority’s position. As the majority notes, the year the
O&C Act was enacted, President Franklin Delano Roosevelt
42 MURPHY CO. V. BIDEN
exercised his Antiquities Act authority several times.
Suppose, for the sake of argument, President Roosevelt had
been opposed to logging and the O&C Act had been adopted
over his veto. According to the majority, President Roosevelt
could have lawfully obstructed the clear will of Congress by
issuing an Antiquities Act proclamation prohibiting
sustained yield logging on some or all of the timberland the
very next day.
Suppose a President wishes to protect Crater Lake
National Park from the harmful effects of park visitors.
Under federal law, the “National Park shall be open, under
such regulations as the Secretary of the Interior may
prescribe, to all scientists, excursionists, and pleasure
seekers.” 16 U.S.C. § 123. According to the majority,
however, the President can prohibit visitors by issuing an
Antiquities Act proclamation reclassifying the park as a
national monument. I cannot agree that Congress intended
to cede this unbridled power to the President when it enacted
the Antiquities Act.
By permitting Proclamation 9564 to supplant the O&C
Act, the majority has transmuted the Antiquities Act into a
coiled timber rattler poised to strike at any land management
law that the President dislikes.
IV
Notwithstanding the undeniable conflict between
Proclamation 9564 and the O&C Act, the majority concludes
they can be reconciled because the O&C Act “delegated
ample discretion to the Department of the Interior to manage
the lands in a flexible manner.” But it is unclear how the
mere grant of discretion as to how a sustained yield analysis
should be conducted can justify the President’s total
prohibition on even engaging in a sustained yield analysis in
MURPHY CO. V. BIDEN 43
the first place by removing O&C timberlands from the
calculation.
The majority first argues that the O&C Act and the
Proclamation are reconcilable because the Secretary has
unfettered discretion to classify or declassify O&C land as
timberland. This proposition is dubious at best. First,
interpreting the O&C Act to vest the Secretary with
unfettered discretion to declassify O&C timberland runs
afoul of the Constitution’s requirement that “an ‘intelligible
principle’ [must] guide the delegee’s exercise of authority.”
Gundy v. United States, 139 S. Ct. 2116, 2129 (2019). Given
the O&C Act incorporated O&C lands “heretofore” and
“hereafter” classified as timberlands, rather than grant the
Secretary unbounded discretion, it seems more likely that
Congress intended for the Secretary to classify O&C land
consistent with past practice, meaning “lands bearing a
growth of timber not less than three hundred thousand”
board feet per 40 acres. Chamberlain-Ferris Act, Pub. L. No.
86, ch. 137, § 2, 39 Stat. 218, 219 (1916); see also Bilski v.
Kappos, 561 U.S. 593, 647 (2010) (explaining “an ambiguity
in a later-in-time statute must be understood in light of the
earlier-in-time framework against which the ambiguous
statute was passed”).
Second, even assuming the Secretary possesses fiat
authority to declassify the O&C timberlands at issue, the
government has not directed us to a rulemaking by the
Secretary actually doing so. Since Murphy Co. has made
clear that its suit pertains only to O&C lands that the
Secretary has heretofore classified as timberlands, the
Secretary’s supposed authority remains unexercised and is
therefore irrelevant to this appeal.
44 MURPHY CO. V. BIDEN
Although conceding that the dominant use for O&C
timberlands is timber production to sustain struggling timber
communities, the majority next argues that the Proclamation
is justified because the Secretary has discretion to consider
the additional goals of “protecting watersheds, regulating
stream flow, and contributing to the economic stability of
local communities and industries, and providing recreational
facil[i]ties” when conducting a sustained yield analysis. 43
U.S.C. § 2601. But Proclamation 9564 is not an exercise of
the Secretary’s discretion; it is a presidential command. The
command does not itself direct the Secretary to exercise her
discretion in a certain manner, but rather it restricts her from
exercising any discretion at all by prohibiting sustained yield
analysis within the monument. It preordains a result and
directs the Secretary, for all time, to prohibit commercial
logging on the relevant O&C timberlands regardless of
changing conditions on the ground. The mere fact that the
Secretary could effectuate a similar outcome if given the
freedom to exercise her statutorily mandated O&C Act
discretion is insufficient to rescue the President’s unlawful
command.
V
Conservation is a noble goal, and national monuments
have undoubtedly preserved and proliferated the richness of
the American landscape. But the unfortunate back-end cost
of conservation is that small, local communities reliant on
the cultivation of natural resources to generate revenue to
sustain them are often left behind. Congress sought to strike
a balance with the O&C Act by granting the Secretary the
MURPHY CO. V. BIDEN 45
authority and ability to consider both the interests of
conservation and the interests of local communities. 2
I am troubled by the President’s overt attempt to
circumvent the balance struck by Congress and the
majority’s haste in labeling that attempt with the imprimatur
of law. The decision today continues a troubling trend of
increased judicial deference to Presidential uses of the
Antiquities Act. As the Chief Justice has observed, this trend
cannot continue indefinitely:
Somewhere along the line, [the Antiquities
Act’s textual limits have] ceased to pose any
meaningful restraint. A statute permitting the
President in his sole discretion to designate as
monuments “landmarks,” “structures,” and
“objects”—along with the smallest area of
land compatible with their management—has
been transformed into a power without any
discernible limit to set aside vast and
amorphous expanses of terrain above and
below the sea.
Massachusetts Lobstermen’s Ass’n v. Raimondo, 141 S. Ct.
979, 981 (2021) (Roberts, C.J., statement respecting the
denial of certiorari). These issues are not going away. Just
recently, President Biden designated two new national
monuments spanning over half a million acres. See FACT
2
Indeed, the Clinton Administration, which first established the
Cascade-Siskiyou National Monument, once boasted that the
administration had “stepped up to the challenge to get a sustainable
timber supply pipeline flowing again.” The Clinton White House, The
President’s Forest Plan, National Archives, https://clintonwhitehouse4.
archives.gov/WH/EOP/OP/html/forest.html (last visited Apr. 7, 2023).
46 MURPHY CO. V. BIDEN
SHEET: President Biden Designates Castner Range
National Monument, The White House (Mar. 21, 2023),
https://www.whitehouse.gov/briefing-room/statements-rele
ases/2023/03/21/fact-sheet-president-biden-designates-cast
ner-range-national-monument/; FACT SHEET: President
Biden Designates Avi Kwa Ame National Monument, The
White House (Mar. 21, 2023), https://www.whitehouse.gov/
briefing-room/statements-releases/2023/03/21/fact-sheet-pr
esident-biden-designates-avi-kwa-ame-national-monument/.
I agree with the Chief Justice that this trend is unsustainable
and likewise urge a return to the textual strictures of the
Antiquities Act.
At oral argument, the government conceded that if
Proclamation 9564 had expanded the monument to cover all
2.4 million acres of O&C land, it would have violated the
O&C Act. But the government insisted that the Proclamation
was lawful because the adverse effect on the O&C Act was
minimal. By accepting that argument, the majority engages
in a brand of incrementalism perilous to constitutional
principles that are absolute.
It may be expedient to delegate unfettered control over
the destiny of public lands to the President. But the
Constitution enshrines our fundamental understanding that
the separation of powers is an “essential precaution in favor
of liberty.” THE FEDERALIST NO. 47 (James Madison). Each
branch of government has an obligation to police the
boundaries of power and guard against delegations of, and
encroachments on, their constitutionally vested power. THE
FEDERALIST NO. 51. When called upon to adjudicate a case
or controversy, the Judiciary, as the apolitical expositor of
the Constitution, must decline to acquiesce in undertakings
by the political branches that would sacrifice constitutional
MURPHY CO. V. BIDEN 47
safeguards on the altar of political expediency. See United
States v. Nixon, 418 U.S. 683, 703 (1974).
Although the Constitution does not “absolutely separate”
the three forms of governmental power, it absolutely
prohibits the President from making law, even concerning
the most inconsequential of matters. THE FEDERALIST NO.
47. Proclamation 9564 violates this prohibition because it
directs the Secretary of the Interior to disregard her
obligations under the O&C Act. Only Congress may do this.
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. See Bond v. United States, 564 U.S. 211, 222-
23 (2011); Horne v. Dep’t of Agric., 576 U.S. 350, 362
(2015) (“The Constitution . . . is concerned with means as
well as ends.”). As Justice Holmes once noted, “We are in
danger of forgetting that a strong public desire to improve
the public condition is not enough to warrant achieving the
desire by a shorter cut than the constitutional way of paying
for the change.” Pennsylvania Coal Co. v. Mahon, 260 U.S.
393, 416 (1922). The majority seems unbothered by today’s
erosion of our constitutional principles. I am not so sanguine
and must respectfully dissent.