American Forest Resource Council v. United States

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.

12

Swanson 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. 804

21

(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. at

62–63. 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.