American Forest Resource Council v. United States ( 2023 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 16, 2022 Decided July 18, 2023
No. 20-5008
AMERICAN FOREST RESOURCE COUNCIL,
APPELLEE
v.
UNITED STATES OF AMERICA, ET AL.,
APPELLEES
SODA MOUNTAIN WILDERNESS COUNCIL, ET AL.,
APPELLANTS
Consolidated with 20-5009, 20-5010, 20-5011, 22-5019,
22-5020, 22-5021
Appeals from the United States District Court
for the District of Columbia
(No. 1:17-cv-00441)
(No. 1:17-cv-00280)
(No. 1:15-cv-01419)
(No. 1:16-cv-01599)
(No. 1:16-cv-01602)
2
Brian C. Toth, Attorney, U.S. Department of Justice,
argued the cause for federal appellants. With him on the briefs
were Todd Kim, Assistant Attorney General, and Robert J.
Lundman, Attorney. Mark R. Haag, Attorney, entered an
appearance.
Kristen L. Boyles argued the cause for appellants Soda
Mountain Wilderness Council, et al. With her on the briefs was
Susan Jane M. Brown. Patti A. Goldman entered an
appearance.
Julia K. Forgie and Katherine Desormeau were on the
brief for amicus curiae Natural Resources Defense Council in
support of appellants.
David O. Bechtold, Per A. Ramfjord, and Julie A. Weis
argued the causes for appellees. With them on the brief were
Sarah Ghafouri, Jason T. Morgan, Ariel Stavitsky, and
Caroline Lobdell.
Frank D. Garrison, Clerk M. Neily III, and Damien M.
Schiff were on the brief for amici curiae Pacific Legal
Foundation and Cato Institute in support of appellees.
3
Before: HENDERSON and PAN, Circuit Judges, and
EDWARDS, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge HENDERSON.
KAREN LECRAFT HENDERSON, Circuit Judge: In these
consolidated appeals we face the question whether overlapping
statutes that affect more than two million acres of federally
owned forest land in southwestern Oregon are reconcilable and
therefore operative. The appeals arise from three sets of cases
filed by an association of fifteen Oregon counties and various
trade associations and timber companies. Two of the cases
challenge Proclamation 9564, through which the President
expanded the boundaries of the Cascade-Siskiyou National
Monument. Two others challenge resource management plans
that the United States Bureau of Land Management (BLM), a
bureau within the United States Department of the Interior
(Interior), developed to govern the use of the forest land. The
final case seeks an order compelling the Interior Secretary to
offer a certain amount of the forest’s timber for sale each year.
The district court entered summary judgment for the plaintiffs
in all five cases. As detailed infra, we reverse.
I. BACKGROUND
A. THE O & C ACT
We begin in 1866, when the Congress authorized a grant
of public land to two railroad companies to facilitate the
construction of a rail and telegraph line between Portland,
Oregon and San Francisco, California. Act of July 25, 1866,
ch. 242, 14 Stat. 239; see also Clackamas Cnty. v. McKay,
219 F.2d 479, 481–82 (D.C. Cir. 1954) (recounting grant’s
history), vacated as moot, 349 U.S. 909 (1955). For each mile
of railroad the companies completed, they received every odd
numbered, alternate section of public land “to the amount of
4
twenty alternate sections per mile (ten on each side) of [the]
railroad line.” Act of July 25, 1866, § 2, 14 Stat. 239–40; see
also David Maldwyn Ellis, The Oregon and California
Railroad Land Grant, 1866–1945, 39 PAC. N.W. Q. 253, 277
(1948) (reciting conditions of grant). There were no restrictions
on the railroads’ authority to sell or otherwise dispose of the
land.
Three years later, the Congress amended the grant to
require the railroads to sell granted land to “actual settlers only,
in quantities not greater than one-quarter section to one
purchaser, and for a price not exceeding two dollars and fifty
cents per acre.” Act of Apr. 10, 1869, ch. 27, 16 Stat. 47; see
also Clackamas Cnty., 219 F.2d at 483 (“The railroads through
sale of the land were supplied with funds, and the condition that
the land be sold to setters in small parcels and at a cheap price
was to serve the cause of extensive settlement.”). The railroads
did not abide by these terms1 and, in 1916, the Congress
responded by revesting title in all of the land the railroads had
not sold—about 2.9 million acres—in the United States. See
Chamberlain-Ferris Act, ch. 137, 39 Stat. 218 (1916). It
directed the Interior Secretary to classify the revested land
(O & C land), “by the smallest legal subdivisions thereof,” into
three categories: timberland, power-site land and agricultural
land. Id. § 2, 39 Stat. at 219. It also directed the Secretary to
1
See Michael C. Blumm & Tim Wigington, The Oregon &
California Railroad Grant Lands’ Sordid Past, Contentious Present,
and Uncertain Future: A Century of Conflict, 40 B.C. ENV’T AFF. L.
REV. 1, 12 (2013) (“By 1903, the [railroad] had sold 5306 tracts,
totaling approximately 820,000 acres. These sales ranged from $5 to
$40 per acre, and the railroad sold some 524,000 acres of the patented
land in parcels greater than 160 acres.”); Clackamas Cnty., 219 F.2d
at 482 (“The railroad . . . ma[de] sales of from 1,000 to 20,000 acres
to one purchaser at prices ranging from $5 to $40 an acre and, in one
instance, a sale of 45,000 acres at $7 an acre to a single purchaser.”).
5
sell the timber on the portions classified as timberland “as
rapidly as reasonable prices can be secured therefor in a normal
market.” Id. § 4, 39 Stat. at 219–20.
Handing 2.9 million acres of land back to the United States
removed “huge tracts of land” from state and local property tax
rolls. Clackamas Cnty., 219 F.2d at 483. To make up for the
consequent loss of tax revenue, the Congress directed the
Secretary to compensate the affected counties (O & C
counties) for the railroad companies’ unpaid taxes and to create
a “special fund” using the proceeds from O & C land and
timber sales, which fund was to be distributed among several
parties in a rather complex order. See Chamberlain-Ferris Act,
§§ 9–10, 39 Stat. at 221–23.
The funding scheme, however, did not work as intended.
Few timber sales occurred and, consequently, many O & C
counties received no funds between 1916 and 1926. See
Blumm & Wigington, supra, at 20. The Congress attempted to
rehabilitate the scheme by enacting the Stanfield Act, ch. 897,
44 Stat. 915 (1926), but that attempt also failed, as it “merely
shift[ed] the debts from the counties onto the U.S. Treasury,”
Murphy Co. v. Biden, 65 F.4th 1122, 1127 (9th Cir. 2023).
Undeterred by its earlier failures, the Congress again
sought to remedy “the region’s perilous economic and
environmental situation,” id., via the Oregon and California
Railroad and Coos Bay Wagon Road Grant Lands Act (O & C
Act), ch. 876, 50 Stat. 874 (1937) (codified as amended at
43 U.S.C. §§ 2601–2634). The third time was the charm; the
O & C Act remains in effect today and is one of the subjects of
these appeals. It provides, in pertinent part:
[S]uch portions of the revested Oregon and
California Railroad and reconveyed Coos Bay
Wagon Road grant lands as are or may hereafter
6
come under the jurisdiction of the Department
of the Interior, which have heretofore or may
hereafter be classified as timberland[] . . . 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] . . . .
The annual productive capacity for such lands
shall be determined and declared as promptly as
possible after August 28, 1937, but until such
determination and declaration are made the
average annual cut therefrom shall not exceed
one-half billion feet board measure: Provided,
That timber from said lands in an amount not
less than one-half billion feet board measure, or
not less than the annual sustained yield capacity
when the same has been determined and
declared, shall be sold annually, or so much
thereof as can be sold at reasonable prices on a
normal market.
43 U.S.C. § 2601. The O & C Act, as amended, further
provides that one-half of the proceeds of O & C timber sales
are to be distributed to the O & C counties. Id. § 2605(a); see
also Blumm & Wigington, supra, at 21 (“[B]y 1981, the O &
C counties and the U.S. Treasury were each entitled to 50% of
timber receipts.”).
7
Since 1937, the BLM2 has carried out the O & C Act’s
directive to declare an “annual productive capacity,” 43 U.S.C.
§ 2601, by establishing the “allowable sale quantity” (ASQ).3
The ASQ is an estimate of the volume of O & C timber that can
be cut and sold in a given year without depleting the
timberland. In other words, it is “the capacity of the lands,
allocated to sustained yield objectives, to produce timber at a
level that will remain constant over time.” A. 4843 (Salem
district supporting data, resource management plan (RMP)
evaluation report, 2012). The ASQ is thus “neither a minimum
level that must be met nor a maximum level that cannot be
exceeded,” but “an approximation.” A. 4892 (1995 RMP,
Roseburg district). The actual volume of timber sold often
deviates from the ASQ.
The ASQ has fluctuated over time, starting at 500 million
board feet in 1937 and peaking at 1.2 billion board feet in 1972.
See Murphy, 65 F.4th at 1127. Because the BLM administered
the O & C timberland from 1937 until the 1980s with the
principal goal of maximizing timber production,4 the ASQ for
those years was consistently high. From 1959 to 1976, for
instance, the ASQ did not fall below 874 million board feet,
and actual timber sales regularly exceeded one billion board
2
The BLM was created in 1946 when the President combined
the General Land Office and the Grazing Service. Before 1946, the
O & C land was administered by the General Land Office. STEPHEN
DOW BECKHAM, BUREAU OF LAND MGMT., O & C SUSTAINED
YIELD ACT: THE LAND, THE LAW, THE LEGACY 13 (1987),
https://www.blm.gov/sites/blm.gov/files/OC_History.pdf
[https://perma.cc/9BSX-RR3L].
3
“Allowable sale quantity” is synonymous with “annual
productive capacity,” “annual sustained yield capacity” and
“sustained yield capacity.” A. 2144 n.5.
4
We use the terms “timber production” and “logging”
interchangeably.
8
feet per year. See KATIE HOOVER, CONG. RSCH. SERV., R42951,
THE OREGON AND CALIFORNIA RAILROAD LANDS: IN BRIEF 3–
4 (2023).
But timber production on the O & C land plummeted in
the late 1980s and early 1990s as the BLM attempted to
reconcile the O & C Act’s directive to manage O & C land for
“permanent forest production,” 43 U.S.C. § 2601, with other,
later-enacted statues, especially the Endangered Species Act
(ESA), 16 U.S.C. § 1531 et seq., and the Clean Water Act
(CWA), 33 U.S.C. § 1251 et seq. The ESA requires all federal
agencies to ensure that their actions are “not likely to
jeopardize the continued existence” of any threatened or
endangered species “or result in the destruction or adverse
modification” of the species’ designated critical habitat.
16 U.S.C. § 1536(a)(2). To comply with this obligation, federal
agencies must “consult” with the expert wildlife agencies—the
Fish and Wildlife Service (Interior Department) and the
National Marine Fisheries Service (Commerce Department)—
before taking action that could adversely affect listed species.
Id. § 1536(a)(3); see Shafer & Freeman Lakes Env’t
Conservation Corp. v. FERC, 992 F.3d 1071, 1079 (D.C. Cir.
2021).
In 1990, the Fish and Wildlife Service listed the northern
spotted owl5 as “threatened” based in part on “the loss and
5
“The northern spotted owl is the largest of three subspecies of
spotted owls, and inhabits . . . forests from southwestern British
Columbia, through Washington and Oregon, and into northern
California. . . . Northern spotted owls are medium-sized, chocolate
brown owls with dark eyes, and they have round or irregular white
spots on their head, neck, back, and underparts.” Northern Spotted
Owl, U.S. FISH & WILDLIFE SERV.,
https://www.fws.gov/species/northern-spotted-owl-strix-
9
adverse modification of suitable habitat as the result of timber
harvesting.” 55 Fed. Reg. 26114 (June 26, 1990). The owl’s
listing spawned a slew of litigation, which eventually
culminated in the Northwest Forest Plan (NWFP). See Seattle
Audubon Soc’y v. Lyons, 871 F. Supp. 1291, 1300–02 (W.D.
Wash. 1994) (discussing history of northern spotted owl
litigation), aff’d sub nom. Seattle Audubon Soc’y v. Moseley,
80 F.3d 1401 (9th Cir. 1996). The NWFP governs all of the
federal land administered by either the United States Forest
Service (Agriculture Department) or the BLM that is within the
northern spotted owl’s range, including the O & C land.6 Id.Among other actions, the NWFP (1) created “late-successional
reserves” and “riparian reserves”7 in which logging is generally
occidentalis-caurina (last visited June 28, 2023)
[https://perma.cc/2B4A-U4QD].
6
The NWFP covers 25 million acres of federal land, including
19 national forests and 7 BLM districts in California, Oregon and
Washington. The O & C land makes up 11 per cent of the total
NWFP management area. See HOOVER, supra, at 4 n.14.
7
“Late-successional reserves [a]re intended to serve
predominantly as habitat and riparian reserves [a]re intended to
protect the water systems and their attendant species.” Pac. Rivers v.
BLM, No. 6:16-cv-01598-JR, 2018 WL 6735090, at *2 (D. Or. Oct.
12, 2018), report and recommendation adopted, 2019 WL 1232835(D. Or. Mar. 15, 2019), aff’d, 815 F. App’x 107 (9th Cir. 2020); see
also A. 3423 (“The objective of [l]ate-[s]uccessional [r]eserves . . . is
to protect and enhance conditions of late-successional and old-
growth forest ecosystems, which serve as habitat for late-
successional and old-growth related species.”); A. 3294 (“Riparian
[r]eserves . . . maintain and restore riparian structures and functions
of intermittent streams, confer benefits to riparian-dependent and
associated species other than fish, enhance habitat conservation for
organisms that are dependent on the transition zone between upslope
and riparian areas, improve travel and dispersal corridors for many
terrestrial animals and plants, and provide for greater connectivity of
the watershed.”).
10
prohibited in order to protect habitat for endangered species,
including the northern spotted owl; (2) designated unreserved
areas as “matrix” or “adaptive management areas” where
timber harvesting can go forward subject to environmental
restrictions; and (3) implemented an “aquatic conservation
strategy”8 that overlay reserve and matrix land with a system
of watersheds where activities are restricted to protect water
quality and aquatic species. See Lyons, 871 F. Supp. at 1304–
05.
The BLM incorporated the NWFP’s core principles into
its 1995 RMPs for the O & C land.9 Most notably, the 1995
RMPs, like the NWFP, divided the O & C land into reserves
and matrix: 19 per cent of the O & C land was designated as
late-successional reserves, 38 per cent as riparian reserves, and
28 per cent as matrix. See Pac. Rivers 2018 WL 6735090, at *2
(describing 1995 RMPs). Because the 1995 RMPs permitted
logging only on land designated matrix, the reserve-heavy
allocation dramatically reduced the O & C land’s timber
output. The 1995 RMPs declared an ASQ of 203 million board
feet, far less than historic harvest levels. See id.In 1994, various timber companies, including some of the
plaintiffs here, filed several lawsuits against the Secretary. See
Am. Forest Res. Council v. Shea, 172 F. Supp. 2d 24, 28
(D.D.C. 2001) (reciting procedural history). They argued that
8
The “aquatic conservation strategy” is “a comprehensive plan
designed to maintain and restore the ecological health of the
waterways in federal forests.” Pac. Rivers, 2018 WL 6735090, at *2.
9
Under the Federal Land Policy and Management Act, the
Secretary must “develop, maintain, and, when appropriate, revise
land use plans which provide by tracts or areas for the use of the
public lands.” 43 U.S.C. § 1712(a). A “resource management plan”
is “a land use plan as described by the Federal Land Policy and
Management Act.” 43 C.F.R. § 1601.0–5(n).
11
the proposed 1995 RMPs violated the O & C Act by holding
back large tracts of O & C land from logging. The cases settled
in 2003 and, as part of the settlement agreement, the Secretary
agreed to revise the 1995 RMPs.
It was not until 2008 that the RMPs were revised. They
established an ASQ of 502 million board feet, more than
double the ASQ set by the 1995 RMPs. The 2008 RMPs were
subsequently vacated because they were approved without the
consultation required by section 7 of the ESA. See Pac. Rivers
Council v. Shepard, No. 03:11-cv-00442-HU, 2011 WL
7562961 (D. Or. Sept. 29, 2011), report and recommendation
adopted, 2012 WL 950032 (D. Or. Mar. 20, 2012). As a result,
the 1995 RMPs were reinstated in 2012. See Pac. Rivers
Council, 2012 WL 950032, at *4.
Revised RMPs were issued again in 2016. The 2016 RMPs
are the subject of one portion of this appeal. Like the 1995 and
2008 RMPs, the 2016 RMPs divide O & C land into multiple
management categories: 499,000 acres (20%) are designated as
“harvest land base,”10 958,000 acres (38%) as late-successional
reserves and 520,000 acres (21%) as riparian reserves. The
remaining land is allocated to congressional reserves, national
conservation land and district-designated reserves. The 2016
RMPs establish a total ASQ of 205 million board feet—slightly
more than the ASQ set by the 1995 RMPs—and allow for the
timber volume in fact sold to vary up to 40 per cent from the
ASQ. See Swanson Grp. Mfg. LLC v. Bernhardt, 417 F. Supp.
3d 22, 27–28 & n.4 (D.D.C. 2019). The minimum timber
volume the BLM must sell annually, then, is 123 million board
feet and the maximum is 287 million board feet. As far as the
10
Like “matrix” land, the “harvest land base” is managed to
“achieve continual timber production that can be sustained through a
balance of growth and harvest.” Pac. Rivers, 2018 WL 6735090, at
*2 n.4.
12
record discloses, the timber volume in fact sold has met or
exceeded the ASQ every year since the 2016 RMPs were
adopted.
B. THE ANTIQUITIES ACT
As abstruse as the O & C Act’s operation is, these lawsuits
require us to interpret that legislation in light of earlier—and
potentially conflicting—legislation; to wit, the Antiquities Act
of 1906. The 1906 statute provides that “[t]he President may,
in the President’s discretion, declare by public proclamation
historic landmarks, historic and prehistoric structures, and
other objects of historic or scientific interest that are situated
on land owned or controlled by the Federal Government to be
national monuments.” 54 U.S.C. § 320301(a). It further
authorizes the “President [to] reserve parcels of land as a part
of the national monuments” but requires that the parcels be
“confined to the smallest area compatible with the proper care
and management of the objects to be protected.” Id.§ 320301(b).
Since the Act’s enactment, the Presidents have established
161 national monuments. See National Monument Facts and
Figures, NATIONAL PARK SERVICE,
https://www.nps.gov/subjects/archeology/national-monument-
facts-and-figures.htm (last visited June 28, 2023)
[https://perma.cc/87EY-6T47]. Indeed, all but three Presidents
holding office since 1906 have invoked its authority. See
CAROL HARDY VINCENT, CONG. RSCH. SERV., R41330,
NATIONAL MONUMENTS AND THE ANTIQUITIES ACT 1 n.5
(2023).
Two of these appeals involve one such designation. In
2000, the President used the Antiquities Act to reserve
approximately 53,000 acres of land in southwestern Oregon—
including roughly 40,000 acres of O & C land—as the
13
Cascade-Siskiyou National Monument (the Monument). See
Proclamation No. 7318, 65 Fed. Reg. 37249 (June 13, 2000).11
The Monument was created to protect the region’s “unique
geology, biology, climate, and topography,” including its
“biological diversity,” which, according to the Proclamation, is
“unmatched in the Cascade Range.” 65 Fed. Reg. at 37249. The
Proclamation, in effect, outlaws logging within the Monument:
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. . . . 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.
65 Fed. Reg. at 37250.
In 2017, the President issued Proclamation 9564, which
added roughly 48,000 acres to the Monument, including 40,000
acres of O & C land. See 82 Fed. Reg. 6145 (Jan. 18, 2017).
11
Shortly after its issuance, several advocacy groups
challenged Proclamation 7318, along with five other national
monument designations, as unconstitutional under the Property
Clause, U.S. CONST. art. IV, § 3, cl. 2, and as ultra vires vis-à-vis the
Antiquities Act. We upheld the Monument’s designation in
Mountain States Legal Foundation v. Bush, 306 F.3d 1132 (D.C. Cir.
2002). Notably, however, the Mountain States plaintiffs did not
argue that Proclamation 7318 conflicted with the O & C Act.
14
Proclamation 9564 provided that the expansion land is subject
to the “same laws and regulations that apply to the rest of the
monument,” including the logging prohibition. Id. at 6149. As
a result, roughly 10 million board feet of timber the BLM
planned to sell during fiscal year 2017 could not be sold and
the O & C counties missed out on an estimated $1.75 million
in revenue. Going forward, the counties anticipate that the
expansion will cause them collectively to lose between
$1 million and $2 million of revenue annually.
II. PROCEDURAL HISTORY
As noted, these appeals spring from five lawsuits. In two
of the suits, which we call the “Monument cases,” plaintiffs the
American Forest Resource Council—a trade association that
advocates for sustained yield logging on public timberland—
and the Association of O & C Counties sued the United States,
the President, the Secretary and the BLM (collectively, the
Government). They challenged Proclamation 9564, the 2017
Proclamation that expanded the Monument. By outlawing
logging on the O & C land included in the Monument, they
asserted, the President violated the O & C Act’s directive that
O & C timberland “shall be managed . . . for permanent forest
production.” 43 U.S.C. § 2601. Notwithstanding their
concession that he was authorized by the Antiquities Act to
expand the Monument, they argued that he could not exercise
that authority without violating the O & C Act. The
Government responded that the claim is not subject to judicial
review because neither the O & C Act nor Antiquities Act
creates a private right of action and presidential action is not
reviewable under the Administrative Procedure Act (APA).
And even if the plaintiffs’ claims are reviewable, the
Government argued, the Monument’s expansion was
consistent with the O & C Act.
15
In two different lawsuits, which we refer to as the “Plan
cases,” the plaintiffs—the American Forest Resource Council,
the Association of O & C Counties and other trade associations
and companies in the timber industry—sued the BLM Director
and the Secretary, contending that the 2016 RMPs violated the
O & C Act by placing large swaths of O & C land in reserves
where logging is not permitted. The Government responded
that the 2016 RMPs were consistent with the discretion the
O & C Act grants the Secretary and that they reasonably
harmonized the Secretary’s competing statutory obligations.
In the final lawsuit, the “Swanson case,”12 the plaintiffs—
companies in the timber industry—sought an order compelling
the Secretary to sell a certain amount of timber each year. They
argued that the O & C Act imposes upon the Secretary a non-
discretionary duty to sell annually a volume of timber that is
not less than the declared ASQ. The Government denied that
the O & C Act created any such non-discretionary duty and
also argued that, even assuming it did, the Secretary’s
compliance vel non was unreviewable under the APA because
the volume of timber the Secretary offers for sale each year is
not a “discrete” agency action. See Norton v. S. Utah
Wilderness All. (SUWA), 542 U.S. 55, 64 (2004).
The district court entered summary judgment for the
plaintiffs in all five cases. In the Monument cases, the court
held that the O & C Act mandated timber production on all
O & C timberland and precluded the expansion of the
Monument, notwithstanding the President’s Antiquities Act
authority. See Am. Forest Res. Council v. Hammond, 422 F.
12Swanson Group Manufacturing LLC was a plaintiff in district
court. Although the company was dismissed from the case in 2016,
see Swanson Grp. Mfg. LLC v. Jewell, 195 F. Supp. 3d 66, 73
(D.D.C. 2016), the parties continue to refer to the case as the
“Swanson case.”
16
Supp. 3d 184, 192–93 (D.D.C. 2019). In the Plan cases, the
court found that the O & C Act precluded the Secretary from
reserving O & C land from timber production and that the ESA
did not give the Secretary authority to disregard the timber-
production mandate the O & C Act imposed. Id. at 191.
Finally, in the Swanson case, the district court directed the
Secretary to offer the ASQ for sale every year in perpetuity.
Swanson Grp. Mfg. LLC v. Bernhardt, 417 F. Supp. 3d 22, 30
(D.D.C. 2019); Am. Forest Res. Council v. Nedd, 2021 WL
6692032, at *6 (D.D.C. Nov. 19, 2021). The Government
timely appealed.
III. DISCUSSION
A. REVIEWABILITY
Before we turn to the merits, we must decide whether the
plaintiffs’ claims are reviewable. The Government contends
that the Monument cases are not judicially reviewable because
there is no applicable statutory cause of action and because
non-statutory review is unavailable where, as here, a plaintiff
challenges a discretionary exercise of presidential authority
based on an “at-most ambiguous limitation” from a separate
statute. Appellant Br. at 33. We disagree.
Although the Government correctly notes that the O & C
Act and the Antiquities Act are silent regarding judicial review
and the APA’s general review provision does not permit review
of presidential action because the President is not an agency
within the meaning of that statute, see Franklin v.
Massachusetts, 505 U.S. 788, 800–01 (1992), the absence of a
statutory review provision does not necessarily preclude
judicial review of presidential action altogether. We have
previously said that a claim alleging that the President acted in
excess of his statutory authority is judicially reviewable even
absent an applicable statutory review provision. See, e.g.,
17
Chamber of Com. v. Reich, 74 F.3d 1322, 1326–28 (D.C. Cir.
1996).13
The Government contends that even if non-statutory
review of an ultra vires challenge to presidential action is
available in some cases, review should be denied here because
the Antiquities Act vests the President with broad discretion
and the O & C Act puts no discernible limit on that discretion.
For support, the Government cites the Supreme Court’s
statement in Dalton v. Specter that non-statutory review is
unavailable “when the statute in question commits the decision
to the discretion of the President.” 511 U.S. at 474. As we
explained in Chamber of Commerce, however, “Dalton’s
holding merely stands for the proposition that when a statute
entrusts a discrete specific decision to the President and
contains no limitations on the President’s exercise of that
authority, judicial review of an abuse of discretion claim is not
available.” 74 F.3d at 1331 (emphasis added). Dalton has no
force where, as here, “the claim instead is that the presidential
action . . . independently violates [another statute].” Id. at
1332; see also Mountain States, 306 F.3d at 1136 (“Judicial
review in such instances does not implicate separation of
powers concerns to the same degree as where the statute did
‘not at all limit’ the discretion of the President.” (quoting
13
The United States Supreme Court has not yet decided if a
claim that the President acted in excess of his statutory authority is
subject to non-statutory review. When facing such a claim, the Court
generally assumes review is available and rejects the claim on the
merits. See, e.g., Trump v. Hawaii, 138 S. Ct. 2392, 2407 (2018)
(assuming without deciding ultra vires claim against President based
on Immigration and Nationality Act is reviewable); Dalton v.
Specter, 511 U.S. 462, 474 (1994) (“We may assume for the sake of
argument that some claims that the President has violated a statutory
mandate are judicially reviewable outside the framework of the
APA.”).
18
Dalton, 511 U.S. at 476)). We thus concluded in Chamber of
Commerce that we could review a claim alleging that a
Presidential order issued under the Federal Property and
Administrative Services Act conflicted with the National Labor
Relations Act (NLRA) even though the former vested “broad
discretion” in the President. 74 F.3d at 1330–32.
That makes good sense. Even when the Congress gives
substantial discretion to the President by statute, we presume it
intends that the President heed the directives contained in other
enactments. See id. at 1328 (“[C]ourts will ‘ordinarily presume
that Congress intends the executive to obey its statutory
commands and, accordingly, that it expects the courts to grant
relief when an executive agency violates such a command.’”
(quoting Bowen v. Mich. Acad. of Fam. Physicians, 476 U.S.
667, 681 (1986))). The Congress can and often does cabin the
discretion it grants the President and it remains the
responsibility of the judiciary to ensure that the President act
within those limits. See id. at 1327; Mountain States, 306 F.3d
at 1136.
Perhaps more to the point, we have consistently reviewed
claims challenging national monument designations like the
one challenged here. See Mountain States, 306 F.3d 1132;
Tulare Cnty. v. Bush, 306 F.3d 1138 (D.C. Cir. 2002); Mass.
Lobstermen’s Ass’n v. Ross, 945 F.3d 535 (D.C. Cir. 2019). In
those cases, we have reviewed claims that the President
exceeded his authority under the Antiquities Act and claims
that he violated a separate statute through an otherwise
appropriate exercise of his Antiquities Act authority. In
Mountain States, for example, the plaintiffs challenged a
number of monument designations as statutorily ultra vires.
See 306 F.3d at 1133. They argued the designations “reach[ed]
far beyond the purpose, scope, and size of any national
monuments contemplated by Congress under the [Antiquities]
19
Act” and were also “contrary to various statutes relating to the
protection of environmental values on federal land.” Id. We
found both types of claims reviewable notwithstanding the
broad discretion the Antiquities Act vests in the President. See
id. at 1136–38.
Massachusetts Lobstermen’s Ass’n is similarly instructive.
There, commercial fishing associations challenged the
presidential proclamation that created the Northeast Canyons
and Seamounts Marine National Monument. 945 F.3d at 537.
The fishermen argued, among other things, that the monument
was incompatible with the National Marine Sanctuaries Act, a
statute that authorizes the government to designate and manage
marine sanctuaries in the “exclusive economic zone”—the
span of ocean between 12 and 200 nautical miles off the
Nation’s coasts. Id. at 538–39 (quoting 16 U.S.C. § 1437(k)).
We concluded that the claim was reviewable, again despite the
President’s Antiquities Act discretion. See id. at 540.
Like the plaintiffs in Massachusetts Lobstermen’s Ass’n
and Mountain States, the plaintiffs here argue that the
President’s exercise of authority under the Antiquities Act was
ultra vires because it was inconsistent with an independent
statute—the O & C Act. Consistent with our precedent, we
easily conclude that the plaintiffs’ claims are reviewable.
B. MONUMENT CASES
We turn to the merits and begin with the Monument cases.
The Government challenges the district court’s decision that
the President’s expansion of the Monument constitutes an
invalid use of his Antiquities Act authority because the
expansion conflicts with the O & C Act. The Government
makes two arguments. First, because the O & C Act is directed
at the Secretary, it does not limit the President’s authority to
reserve land under the Antiquities Act. Second, the
20
Monument’s expansion is consistent with the O & C Act
because that Act does not mandate that every acre of O & C
land be classified as timberland and, even for land that is so
classified, the Act does not mandate that every acre be used
solely for logging. Instead, the O & C Act contemplates a
flexible concept of sustained yield management that permits
the BLM to consider conservation values in making timber
harvest decisions.
The Government’s first contention need not long detain us.
Although the O & C Act is addressed to the Secretary rather
than to the President, that merely reflects the fact that the
O & C land is administered by the Interior Department. The
Congress usually directs its enactments to the executive official
responsible for a program’s administration rather than to the
President himself. But that does not necessarily mean that the
legislation does not also affect the President. For example,
although the substantive provisions of the NLRA address the
National Labor Relations Board, not the President, we
concluded in Chamber of Commerce that the NLRA limited the
President’s discretion under the Procurement Act. See
Chamber of Com., 74 F.3d at 1332–33.
The O & C Act restricts the President’s power to designate
monuments under the Antiquities Act for the same reason the
NLRA restricts the President’s discretion under the
Procurement Act: discretion conferred upon the President by
the Congress is constrained by the limitations the Congress
prescribes. Because the President relied solely on the
Antiquities Act to expand the Monument, he was constrained
by the Congress’s other enactments in exercising that delegated
power. See Mountain States, 306 F.3d at 1137 (“the President
exercise[s] his delegated powers under the Antiquities Act” in
creating monuments (emphasis added)); see also United States
v. California, 332 U.S. 19, 27, supplemented, 332 U.S. 80421
(1947) (“[N]either the courts nor the executive agencies[] could
proceed contrary to an Act of Congress in [a] congressional
area of national power.”).
The provision of the O & C Act that the plaintiffs argue
constrains the President’s discretion, moreover, is written in the
passive voice, see 43 U.S.C. § 2601 (O & C land “shall be
managed . . . for permanent forest production . . . in
conformity with the princip[le] of sustained yield”), suggesting
that the directive applies without respect to a particular actor.
See Bartenwerfer v. Buckley, 143 S. Ct. 665, 672 (2023)
(“[T]he passive voice signifies that ‘the actor is unimportant.’”
(quoting B. GARNER, MODERN ENGLISH USAGE 676 (4th ed.
2016))); see also Dean v. United States, 556 U.S. 568, 572
(2009) (“The passive voice focuses on an event that occurs
without respect to a specific actor.”). The provision thus
declares that whoever manages O & C land must do so “for
permanent forest production.” 43 U.S.C. § 2601.
The Government next contends the Monument’s
expansion is permissible because it is compatible with the
O & C Act. Its argument, in effect, is that the Antiquities Act
and the O & C Act can be harmonized. The Supreme Court has
counseled that, “[w]hen confronted with two Acts of Congress
allegedly touching on the same topic, [we are] not at ‘liberty to
pick and choose among congressional enactments’ and must
instead strive ‘to give effect to both.’” Epic Sys. Corp. v. Lewis,
138 S. Ct. 1612, 1624 (2018) (quoting Morton v. Mancari,
417 U.S. 535, 551 (1974)). A party suggesting two statutes
cannot be reconciled “bears the heavy burden of showing ‘a
clearly expressed congressional intention’ that such a result
should follow.” Id. (quoting Vimar Seguros y Reaseguros, S.A.
v. M/V Sky Reefer, 515 U.S. 528, 533 (1995)). Accordingly, in
reviewing an alleged statutory conflict, we must bear in mind
the “‘strong presumption’ that repeals by implication are
22
‘disfavored’ and that ‘Congress will specifically address’
preexisting law when it wishes to suspend its normal operations
in a later statute.” Id. (alterations accepted) (quoting United
States v. Fausto, 484 U.S. 439, 452–53 (1988)).
We believe that the Antiquities Act and O & C Act are
indeed compatible. We first observe that the 1937 O & C Act
did not repeal the 1906 Antiquities Act, either explicitly or by
implication. The O & C Act does not allude to the Antiquities
Act, see Murphy, 65 F.4th at 1132, and the only evidence of
implied repeal the plaintiffs point to—the O & C Act’s generic
non-obstante clause14—applies by its terms only to “Acts or
parts of Acts in conflict with this Act.” Act of Aug. 28, 1937,
ch. 876, 50 Stat. 874, 876. The Antiquities Act, however, is not
in conflict with the O & C Act. The O & C Act can reasonably
be read in a manner that renders the statutes harmonious.
Because it can be so read, it must be. See Epic Sys. Corp., 138
S. Ct. at 1624.
First, the text of the O & C Act provides that only the
“portions of the” O & C land “which have heretofore or may
hereafter be classified as timberland[]” must be managed “for
permanent forest production . . . in conformity with the
princip[le] of sustained yield.” 43 U.S.C. § 2601. In
anticipating that only “portions” of the O & C land were to be
classified as timberland, the Act necessarily implies that land
may be classified as timberland or not. The land classified as
timberland is subject to the statute’s “permanent forest
production” instruction but land not so classified is not. See
Murphy, 65 F.4th at 1134 (“The Department’s duty to oversee
the lands is obligatory (‘shall be managed’), but treating every
14
The clause provides that “[a]ll 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.” Act of Aug. 28, 1937, ch. 876, 50 Stat.
874, 876.
23
parcel as timberland is not.”). The Act’s “or may hereafter”
language indicates, moreover, that a parcel’s timberland
classification is not fixed; it may be reclassified in the future.
The O & C Act’s text does not specify what officer or
entity classifies O & C land, how land should be classified or
what classifications exist aside from “timberland[]” and
“power-site land[] valuable for timber.” 43 U.S.C. § 2601. Nor
does the Act require a fixed proportion of O & C land to be
classified as timberland. In fact, the Act does not define
“timberland.” Given the Act’s classification ambiguities and
our obligation to reconcile the O & C Act and Proclamation
9564 if possible, see Epic Sys. Corp., 138 S. Ct. at 1624, we
believe the Act provides the Secretary with considerable
discretion regarding the classification and reclassification of
O & C land. Our conclusion accords with the decision we
issued long ago in Clackamas County, where we observed that
the O & C Act “conferred upon the Secretary of the Interior
many duties requiring the exercise of his discretion and
judgment,” one such duty being the “classification of land.”
219 F.2d at 487.
We are unpersuaded by the plaintiffs’ contention that
O & C lands were once, and thus must continue to be, classified
“based on their productive capacity.” Appellee Br. at 32.
Granted, before the O & C Act was enacted, land was classified
according to its capacity to produce timber. The Chamberlain-
Ferris Act defined “timberland[ ]” as “land[] bearing a growth
of timber not less than three hundred thousand feet board
measure on each forty-acre subdivision.” Chamberlain-Ferris
Act, § 2, 39 Stat. at 219. That definition, however, was omitted
from the O & C Act. We presume the omission was intentional.
See Banks v. Booth, 3 F.4th 445, 449 (D.C. Cir. 2021)
(“Congress says what it means and means what it says.”); cf.
Fed. Express Corp. v. Dep’t of Com., 39 F.4th 756, 768 (D.C.
24
Cir. 2022) (“When Congress includes particular language in
one section of a statute but omits it in another section of the
same Act, courts presume that Congress knew what it was
doing and meant for the omission to have significance.”
(cleaned up)). The O & C Act simply does not define
“timberland” or establish a procedure for classifying O & C
land. And we decline to fill in those gaps with provisions from
the outdated Chamberlain-Ferris Act, legislation that was, after
all, replaced by the O & C Act because of its defects. See
Clackamas Cnty., 219 F.3d at 486–87; see also Bates v. United
States, 522 U.S. 23, 29 (1997) (“[W]e ordinarily resist reading
words or elements into a statute that do not appear on its
face.”).
We believe Proclamation 9564 reclassified, albeit by
implication, the 40,000 acres of O & C land the President
added to the Monument as non-timberland, thereby removing
the land from the O & C Act’s “permanent forest production”
mandate. Moreover, “[t]his is not a case where the executive’s
action eviscerate[d] Congress’s land-management scheme, nor
is it a case that concerns ‘vast and amorphous expanses of
terrain.’” Murphy, 65 F.4th at 1137–38 (quoting Mass.
Lobstermen’s Ass’n v. Raimondo, 141 S. Ct. 979, 981 (2021)
(Roberts, C.J., statement respecting certiorari denial)). Rather,
the Proclamation’s Monument expansion was modest,
affecting only 40,000—less than two per cent—of the more
than two million acres of O & C land, and neither unduly
interfering with the principal objective of the O & C Act nor
abridging the Secretary’s authority to regulate the vast bulk of
the O & C land.15 Moreover, although the principal
15
The plaintiffs do not seriously dispute that land may be
reclassified or that only land classified as timberland is subject to the
O & C Act’s timber-production mandate. Instead, they contend that
“all the lands at issue here are classified as timberland[].” Appellee
Br. at 32. But they provide no evidence—and we find none in the
25
management objective of the O & C Act is “permanent forest
production . . . in conformity with the princip[le] of sustained
yield,” 43 U.S.C. § 2601; see also Headwaters, Inc. v. BLM,
914 F.2d 1174, 1184 (9th Cir. 1990) (“[T]he O & C Act
envisions timber production as a dominant use.”), the Act also
authorizes the Secretary to manage the O & C land for uses
other than the production of timber, including “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. The Act
grants the Secretary discretion to decide how best to implement
and balance these objectives. See Murphy, 65 F.4th at 1134.16
record—manifesting that the land added to the Monument was in fact
classified as timberland before the Proclamation was issued.
16
The Congress’s re-enactment of the Antiquities Act in 2014
without mention of the Monument further indicates that it did not
intend the O & C Act to limit the Antiquities Act. “When Congress
revisits a statute giving rise to a longstanding administrative
interpretation without pertinent change, the congressional failure to
revise or repeal the agency’s interpretation is persuasive evidence
that the interpretation is the one intended by Congress.” CFTC v.
Schor, 478 U.S. 833, 846 (1986) (cleaned up). The Congress first
enacted the Antiquities Act in 1906 and the O & C Act in 1937. The
President established the Monument in 2000. In 2009, the Congress
enacted legislation that dealt with grazing rights, land swaps and
wilderness preserves on the Monument. See Omnibus Public Land
Management Act of 2009, Pub. L. No. 111-11, §§ 1401–05, 123 Stat.
991, 1026–32. Then, in 2014, the Congress recodified the Antiquities
Act with no mention of the Monument. See Pub. L. No. 113-287, §
3, 128 Stat. 3094, 3259–60 (2014). This sequence of events suggests
that the Congress has acquiesced in the Executive’s interpretation of
the Antiquities Act. See Jackson v. Modly, 949 F.3d 763, 773 & n.11
(D.C. Cir. 2020).
26
The O & C Act’s history confirms that the Congress
intended to give the Secretary flexibility to decide how best to
carry out the program of “sustained yield” management. As we
have explained, it was enacted to address two failures of the
Chamberlain-Ferris Act and the Stanfield Act: “One was that
they required the timber to be sold as rapidly as possible and
the cut-over lands disposed of. The other was that
they . . . creat[ed] a deficit due from the federal Treasury” to
the O & C counties. Clackamas Cnty., 219 F.2d at 487. To
remedy these defects, the O & C Act “provided for the
management of the timber on a conservation basis and for the
payment to the counties of the net proceeds from the sales each
year.” Id.; see also H.R. Rep. No. 75-1119, at 2 (1937)
(explaining that, under the earlier statutes, “[n]o provision was
made for the administration of the land on a conservation basis
looking toward the orderly use and preservation of its natural
resources.”). In lieu of the former clear-cutting regime, the
O & C Act provided that timberland should be managed in
accordance with the “innovative” principle of “sustained yield”
so that the land’s “natural assets could be ‘conserved and
perpetuated.’” Murphy, 65 F.4th at 1136 (quoting H.R. Rep.
No. 75-1119, at 4). The goal of the O & C Act, then, was to
“provide conservation and scientific management for this vast
Federal property which now receives no planned management
beyond liquidation of timber assets and protection from fire.”
H.R. Rep. No. 75-1119, at 2; see also S. Rep. No. 75-1231, at
1, 4 (1937) (statement of Acting Interior Secretary that
“[p]roper protection of the interest of the communities, the
States, and the Government requires a long-range program of
planning, having for its object a well-regulated system of
cutting, based upon the kind, character, and suitability of the
timber, rather than upon the actual presence on a given
subdivision of a fixed amount of merchantable timber.”
(emphasis added)).
27
In addition, the Monument’s expansion is itself consistent
with sustained yield forestry. The expansion “provides vital
habitat connectivity, watershed protection, and landscape-scale
resilience for the area’s critically important natural resources.”
82 Fed. Reg. at 6145. It effectuates the Act’s aims of
“protecting watersheds” and “regulating stream flow,” see
43 U.S.C. § 2601, by protecting “hydrologic features” which
are “vital to the ecological integrity of the watershed as a
whole,” 82 Fed. Reg. at 6147. It also helps to “provid[e] a
permanent source of timber supply” in the long term, see
43 U.S.C. § 2601, by protecting the region’s water and
endangered species—both essential to maintaining a forest’s
vitality. Finally, the expansion provides recreational
opportunities for residents and visitors, see, e.g., 82 Fed. Reg.
at 6147 (“Ornithologists and birdwatchers alike come to the
Cascade-Siskiyou landscape for the variety of birds found
here.”); id. (“The landscape also contains many hydrologic
features that capture the interest of visitors.”), consistent with
the O & C Act’s aim of “providing recreational facil[i]ties,”
43 U.S.C. § 2601.
In sum, the O & C Act provides the Secretary three layers
of discretion: first, discretion to decide how land should be
classified, which includes discretion to classify land as
timberland or not, second, discretion to decide how to balance
the Act’s multiple objectives, and third, discretion to decide
how to carry out the mandate that the land classified as
timberland be managed “for permanent forest production.”
43 U.S.C. § 2601.
C. PLAN CASES
In the Plan cases, the plaintiffs contend that the 2016
RMPs violate the O & C Act because they place portions of
O & C land in reserves where timber production is generally
28
prohibited. Their challenge, however, fails for the same reason
the Monument plaintiffs’ challenge to Proclamation 9564 fails:
the 2016 RMPs do not violate the O & C Act. Rather, the 2016
RMPs are a permissible exercise of the Secretary’s discretion
under the O & C Act. The 2016 RMPs also reasonably
harmonize the Secretary’s O & C Act duties with her
obligations under two other statutes—the ESA and the CWA.
First, the balance the 2016 RMPs strike between
conservation and logging is a valid exercise of the Secretary’s
discretion under the O & C Act. The Act, as we have explained,
gives the Secretary discretion in classifying the land, balancing
the Act’s multiple objectives and meeting the requirement that
timberland be managed for permanent forest production in
accordance with sustained yield principles. The 2016 RMPs
fall well within that discretion.
The 2016 RMPs established two main types of reserves:
late-successional reserves and riparian reserves. As we noted
earlier, late-successional reserves were created to preserve
critical habitat for the northern spotted owl and other
endangered and threatened species. See A. 3423 (“The
objective of [l]ate-[s]uccessional [r]eserves . . . is to protect
and enhance conditions of late-successional and old-growth
forest ecosystems, which serve as habitat for late-successional
and old-growth related species.”). Riparian reserves were
created to “protect the water systems and their attendant
species.” Pac. Rivers, 2018 WL 6735090, at *2. Both
categories of reserves are consistent with the O & C Act.
The creation of the reserves can reasonably be viewed as
an exercise of the Secretary’s discretion to reclassify O & C
land as non-timberland, thus removing the land from the O & C
Act’s “permanent forest production” mandate. See 43 U.S.C.
§ 2601. The reserves also reasonably balance the O & C Act’s
29
several objectives. Riparian reserves advance the aims of
“protecting watersheds” and “regulating stream flow.” Id.Those reserves, the 2016 RMPs explain, “provide substantial
watershed protection benefits” and “help attain and maintain
water quality standards, a fundamental aspect of watershed
protection.” A. 3126. They also “help regulate streamflows by
moderating peak streamflows and attendant adverse impacts to
watersheds.” A. 3170. Both late-successional and riparian
reserves also advance the Act’s principal objective—providing
a permanent source of timber supply—because a failure to
protect endangered species (and their critical habitat) and water
quality, both necessary for the continuing vitality of the forest
ecosystem, would eventually limit the lands’ timber production
capacity. See A. 3678 (“Contributing to the conservation and
recovery of listed species is essential to delivering a predictable
supply of timber.”). In addition, if the Secretary were to
threaten further the endangered species on O & C land,
litigation would likely result and injunctions against timber
sales sought, potentially disrupting timber production. See
A. 3677 (“Declining populations of species now listed under
the Endangered Species Act have caused the greatest
reductions and instability in the BLM’s supply of timber in the
past.”); A. 4691 (between 1999 and 2007, “legal challenges”
and other factors “greatly reduced” BLM’s ability to sell
timber); A. 4716, 4721 (timber production during the first
decade after the NWFP’s promulgation was about one-half of
what was expected due to litigation and ESA requirements,
among other factors); see also Portland Audubon Soc’y v.
Babbit, 998 F.2d 705, 709–10 (9th Cir. 1993) (affirming
injunction barring Secretary from selling timber across entire
spotted owl range); Or. Nat. Res. Council v. Allen, 476 F.3d
1031, 1037–38 (9th Cir. 2007) (invalidating incidental take
statement for 75 timber sales); Klamath Siskiyou Wildlands
Ctr. v. Boody, 468 F.3d 549, 562–63 (9th Cir. 2006) (setting
aside timber-regeneration sales).
30
Second, both the ESA and the CWA support the
establishment of reserves on O & C land. Late-successional
reserves, as noted, were created primarily to preserve habitat
for ESA-listed species. As the 2016 RMPs explain, northern
spotted owls in particular require large, contiguous blocks of
forest for habitat and late-successional reserves allow for the
continuing existence of such blocks. Thus, the reserves are
consistent with the ESA’s requirement that the Secretary
ensure her actions are “not likely to jeopardize the continued
existence” of any listed species or “result in the destruction or
adverse modification” of the species’ designated critical habitat
as well as its directive that the Secretary “review other
programs administered by [her] and utilize such programs in
furtherance of the purposes of this chapter.” 16 U.S.C.
§ 1536(a)(1), (2).
The ESA supports the creation of riparian reserves because
“[p]roviding clean water is essential to the conservation and
recovery of listed fish, and a failure to protect water quality
would lead to restrictions that would further limit the BLM’s
ability to provide a predictable supply of timber.” A. 3678.
And, as the 2016 RMPs recognize, “[t]he system of late-
successional reserves and riparian reserves, watershed
restoration, and the other components of the [RMPs’] aquatic
conservation strategy provide a sound framework for meeting
Clean Water Act requirements.” A. 3128.
In short, the 2016 RMPs are well within the Secretary’s
discretion under the O & C Act and are consistent with the
Secretary’s other statutory obligations.
D. SWANSON CASE
The O & C Act provides that “timber . . . in an amount not
less than one-half billion feet board measure, or not less than
the annual sustained yield capacity when the same has been
31
determined and declared, shall be sold annually, or so much
thereof as can be sold at reasonable prices on a normal market.”
43 U.S.C. § 2601. The Swanson plaintiffs contend that this
language requires the Secretary to sell or offer for sale the
declared annual sustained yield capacity—that is, the declared
ASQ—every year. The Government contends that the O & C
Act’s timber-volume provision is not enforceable via the APA.
The Swanson plaintiffs’ claim is brought under section
706(1) of the APA, which provides that a reviewing court shall
“compel agency action unlawfully withheld.” 5 U.S.C.
§ 706(1). As the Supreme Court has explained, a claim under
section 706(1) “can proceed only where a plaintiff asserts that
an agency failed to take a discrete agency action that it is
required to take.” SUWA, 542 U.S. at 64; see also HARRY T.
EDWARDS & LINDA A. ELLIOT, FEDERAL STANDARDS OF
REVIEW: REVIEW OF DISTRICT COURT DECISIONS AND AGENCY
ACTIONS 144 (3d ed. 2018). The “discreteness” requirement is
rooted in the APA’s insistence upon “agency action” as a
necessary predicate to judicial review. See SUWA, 542 U.S. at62–63. An “agency action” is an agency’s determination of
rights and obligations, see Bennett v. Spear, 520 U.S. 154, 177–
78 (1997), by way of a “rule, order, license, sanction, relief, or
the equivalent or denial thereof, or failure to act,” 5 U.S.C.
§ 551(13). All five categories of action listed in the APA’s
definition—rule, order, license, sanction and relief—are
“circumscribed” and “discrete.” SUWA, 542 U.S. at 62. And
only an act or “failure to act” with “the same characteristic of
discreteness” is reviewable under the APA. Id. at 63. Thus, a
failure to act is challengeable under section 706(1) only if it is
both an “agency action”—that is, an action involving the
determination of rights and obligations—and is discrete.
To understand the reason that the plaintiffs’ requested
relief does not constitute discrete agency action, some
32
background on the Secretary’s timber sale process is necessary.
The sale process comprises three pre-sale phases: pre-planning,
planning and preparation. In the pre-planning phase, the BLM
collects information about forest and watershed conditions and
access to each of the potential project areas, ascertains property
lines through official land surveys, initiates pre-project
clearance surveys for endangered species (some of which
require two consecutive years of surveys), requests easements
where its access is limited, develops preliminary timber harvest
plans and initiates the public scoping process pursuant to the
National Environmental Policy Act (NEPA). In the planning
phase, the BLM completes its field evaluations, develops
refined harvest plans and alternative project designs and
prepares an environmental impact statement pursuant to
NEPA, along with a biological assessment of the probable
effect the sale will have upon ESA-listed species and their
critical habitat. Finally, in the preparation phase, the BLM
develops the final project design, issues a record of decision
and prepares the timber sale contract and appraisal. The timber
is then sold at auction pursuant to BLM regulations. See 43
C.F.R. pt. 5440. This complex process of planning, preparing
and selling a timber contract generally takes between three and
five years.
For a given fiscal year, the timber volume the BLM offers
corresponds to the sum of all of the timber volumes offered for
sale at all of the individual timber auctions conducted that year
across the O & C land. Thus, the total timber volume sold
comprises timber sales that can take years to finalize. The total
timber volume the BLM offers for sale in a given year is thus
not a discrete agency action. Instead, it is a measurement—a
synthesis of multiple sales made over several years. See Ohio
Forestry Ass’n, Inc. v. Sierra Club, 523 U.S. 726, 734–35
(1998) (rejecting argument that plaintiffs could “mount one
legal challenge” to forest plan rather than “pursue many
33
challenges to each site-specific logging decision to which the
Plan might eventually lead”). The total timber volume offered
does not involve the determination of rights and obligations
and is not a decision “from which ‘legal consequences will
flow.’” Bennett, 520 U.S. at 178 (quoting Port of Boston
Marine Terminal Ass’n v. Rederiaktiebolaget Transatlantic,
400 U.S. 62, 71 (1970)). It is neither a litigable “determination”
nor “decision.”17
In this sense, the Swanson plaintiffs’ request is analogous
to the sort of “broad programmatic attack,” SUWA, 542 U.S. at
64, the Supreme Court rejected in Lujan v. National Wildlife
Federation, 497 U.S. 871, 890–91 (1990). There, the plaintiff
challenged the BLM’s “land withdrawal review program,”
which involved the status of millions of acres of federal land.
See id. at 875–76. The Court held that the plaintiff could not
“challenge the entirety of [the] so-called ‘land withdrawal
program’” because the program was “not an ‘agency action’
within the meaning of § 702.” Id. at 890. The “land withdrawal
program,” it reasoned, “does not refer to a single BLM order or
regulation” but rather “is simply the name by which petitioners
have occasionally referred to the continuing (and thus
constantly changing) operations of the BLM in reviewing
withdrawal revocation applications and the classifications of
public lands.” Id. As such, it was not “an identifiable ‘agency
action’” and the plaintiff could not “seek wholesale
improvement of [the] program by court decree.” Id. at 890–91.
Rather, “[u]nder the terms of the APA,” the plaintiff had to
“direct its attack against some particular ‘agency action’ that
causes it harm.” Id. at 891.
17
We do not mean to suggest that the total volume of timber
sold in a given year is not ascertainable and measurable. It is. But its
ascertainability does not make it a discrete agency action.
34
So too here. The Swanson plaintiffs’ requested relief is
targeted at the “continuing . . . operations of the BLM”—
years’ worth of policy choices and site-specific decisions—
rather than “some particular ‘agency action.’” Id. at 890–91.
They complain not that the Secretary failed to take a specific
action but rather that she failed to carry out the O & C Act’s
general directives. Their blunderbuss challenge to the BLM’s
program is better aimed at “the offices of the Department or the
halls of Congress,” not at the court. Id. at 891.
For the foregoing reasons, we reverse the district court’s
judgments in the Monument cases, the Plan cases and the
Swanson case and remand for proceedings consistent with this
opinion.
So ordered.