Petition for Writ of Certiorari — American Forest Resource Council, et al., Petitioners v. United States, et al.

No. 23-____

IN THE

Supreme Court of the United States

————

AMERICAN FOREST RESOURCE COUNCIL, et al.,

Petitioners,

v.

UNITED STATES OF AMERICA, et al.,

Respondents.

————

Petition for a Writ of Certiorari to the

United States Court of Appeals

for the District of Columbia Circuit

————

PETITION FOR A WRIT OF CERTIORARI

————

PER A. RAMFJORD

JASON T. MORGAN

ARIEL STAVITSKY

STOEL RIVES LLP

760 SW Ninth Avenue

Suite 3000

Portland, OR 97205

(503) 224 3380

Counsel for Association of

O & C Counties

TIMOTHY S. BISHOP

Counsel of Record

MAYER BROWN LLP

71 South Wacker Drive

Chicago, IL 60606

(312) 701 7829

tbishop@mayerbrown.com

Counsel for Petitioners

[Additional Counsel Listed on Signature Page]

QUESTIONS PRESENTED

In 1937, Congress passed the Oregon and California

Railroad and Coos Bay Wagon Road Grant Lands Act

of 1937 (O&C Act), which set aside nearly 2.6 million

acres of Oregon forestland as a permanent trust for

local governments to fund public services. Congress

mandated that these timberlands “shall” be managed

for “permanent forest production” and that timber

thereon be cut and sold under “the princip[le] of

sustained yield” to generate revenue for the affected

counties. 43 U.S.C. §§ 2601, 2605. Despite this clear

congressional mandate, the President used the

Antiquities Act of 1906 to add tens of thousands of

O&C timberland acres into a national monument

where sustained-yield timber harvest is prohibited.

Similarly, the Bureau of Land Management (BLM)

issued management plans for the entirety of the O&C

forestlands that dedicated 80% of the O&C lands to noharvest “reserves” for conservation purposes.

The questions presented are:

Whether the President can use an Antiquities Act

Proclamation to override Congress’s plain text in the

O&C Act to repurpose vast swaths of O&C timberlands as a national monument where sustained-yield

timber production is prohibited.

Whether the Secretary of the Interior can override

the O&C Act by designating 80% of the O&C timberlands as conservation “reserves” where sustainedyield timber harvest is prohibited.

ii

PARTIES TO THE PROCEEDING

Petitioners here, petitioner-appellees in the court of

appeals,1 are American Forest Resource Council;

Association of O&C Counties; Carpenters Industrial

Council, now known as Pacific Northwest Regional

Council of Carpenters; Douglas Timber Operators,

Inc.; C & D Lumber Co., now known as C & D

Partners, Inc.; Freres Lumber Co. Inc., now known as

Freres Engineered Wood; Seneca Sawmill Company,

now known as Sierra Pacific Industries; Starfire

Lumber Co.; Swanson Group Mfg.; Josephine County,

Oregon; Gahlsdorf Logging, Inc.; Young’s Trucking,

Inc; Oregon Forest and Industries Council; D & H

Logging Co.; Oregon Small Woodlands Association;

and Mountain Western Log Scaling and Grading Bureau.

Respondents here, respondent-appellants in the court

of appeals, are the United States of America; the

Bureau of Land Management; Joseph R. Biden, Jr. in

his official capacity as President of the United States

of America; Tracy Stone-Manning, Director, Bureau of

Land Management; and Debra A. Haaland, Secretary

of the Interior.

Respondent-Intervenors here, respondent-intervenorappellants in the court of appeals, are Soda Mountain

Wilderness Council, Klamath Siskiyou Wildlands

Center, and Oregon Wild.

1

The case caption in the District of Columbia Circuit listed

only American Forest Resource Council as appellee, and listed

the United States, et al. as appellees rather than appellants.

Petitioners understand that caption resulted from the court’s

policy in consolidated cases to utilize only the caption in the lead

underlying case. To avoid confusion here, petitioners have

produced a caption that accurately reflects all parties involved

and their respective roles.

iii

CORPORATE DISCLOSURE STATEMENT

Pursuant to Rule 29.6, petitioners state:

Association of O & C Counties (AOCC) is an unincorporated Oregon association and trade association

formed in 1925 to advocate for the long-term sustainedyield management of O&C lands for the benefit of the

AOCC member counties. Advocacy by AOCC led to the

development and enactment of the 1937 O&C Act.

Today, AOCC’s members include Klamath, Douglas,

Jackson, Curry, Coos, Lane, Lincoln, Linn, Polk,

Yamhill, Marion, Clackamas, Columbia, Washington,

and Tillamook Counties. AOCC advocates for the

social and economic well-being of its member communities, and the health and productivity of federal O&C

timberlands, including through sustained yield management to protect and support jobs and local economies,

essential public services, and healthy resilient forests.

The American Forest Resource Council (AFRC) is an

Oregon-based nonprofit and a regional trade association whose purpose is to advocate for sustained-yield

timber harvests on public timberlands and to enhance

forest health and resistance to fire, insects and disease

throughout the West. AFRC represents more than

50 forest product businesses and forest landowners

throughout Oregon, Washington, California, Nevada,

Idaho and Montana. AFRC promotes active management to attain productive public forests, protect the

value and integrity of adjoining private forests, and

support the economic and social foundations of local

communities. AFRC works to improve federal and

state laws, regulations, policies and decisions regarding access to and management of public forest lands

and protection of all forest lands;

iv

Carpenters Industrial Council, now known as

Pacific Northwest Regional Council of Carpenters, is

an Oregon-based nonprofit corporation;

Douglas Timber Operators, Inc. is an Oregon-based

nonprofit corporation and a trade association;

C & D Lumber Co., now known as C & D Partners,

Inc., is an Oregon-based, family-owned corporation;

Freres Lumber Co. Inc., now known as Freres

Engineered Wood, is an Oregon-based, family-owned

corporation;

Seneca Sawmill Company, now known as Sierra

Pacific Industries, is a California corporation;

Starfire Lumber Co. is an Oregon-based, familyowned corporation;

Swanson Group Mfg. LLC is an Oregon familyowned limited liability company that is a whollyowned subsidiary of Swanson Group, Inc., an Oregon

corporation;

Josephine County, Oregon is a municipal subdivision of the State of Oregon;

Gahlsdorf

corporation;

Logging,

Inc.,

is

an

Oregon-based

Young’s Trucking,

corporation;

Inc.

is

an

Oregon-based

Oregon Forest and Industries Council is an Oregonbased nonprofit corporation and a trade association;

D & H Logging Co. is an Oregon-based, familyowned logging corporation;

v

Oregon Small Woodlands Association is an Oregonbased nonprofit corporation;

Mountain Western Log Scaling and Grading Bureau

is an Oregon-based nonprofit corporation; and

Rough and Ready Lumber LLC, a plaintiff in the

underlying district court case but not an appellee or

petitioner, was an Oregon-based, family-owned limited

liability company that ceased being a going concern

during the course of the district court litigation.

To the best of undersigned counsels’ knowledge and

belief, except for Swanson Group Mfg. LLC, which

has a parent corporation as indicated above, none of

the foregoing petitioners have parent corporations;

no publicly held companies own 10% or more of

petitioners’ stock.

vi

RELATED PROCEEDINGS

Pursuant to Rule 14.1(b)(iii), the proceedings directly

related to this case in the U.S. District Court for the

District of Columbia and the U.S. Court of Appeals for

the D.C. Circuit are:

AFRC v. United States et al., 77 F.4th 787 (D.C. Cir.

July 18, 2023), No. 20-5008, reproduced in the Appendix

(App.) at 1a-35a.

AFRC v. Hammond, 422 F. Supp. 3d 184 (D.D.C.

2019), reproduced at App. 36a-53a. The opinion adjudicated four separate cases:

AFRC v. United States, et al., 1:17-cv-00441;

AOCC v. Biden, et al., 1:17-cv-00280;2

AFRC v. Stone-Manning, et al., 1:16-cv-01599; and

AOCC v. Stone-Manning, et al., 1:16-cv-01602.

The final merits order was entered on November 22,

2019.3

A final order on the remedy in cases 1:16-cv-01599

and 1:16-cv-01602 was entered on November 19, 2021

but is not at issue in this petition.

2

Although not a directly related proceeding, Murphy Co. v.

Biden, 65 F.4th 1122 (9th Cir. 2023), decided the same issue as

that adjudicated in AFRC v. United States, et al., 1:17-cv-00441,

and AOCC v. Biden, et al., 1:17-cv-00280. The Murphy Company

plaintiffs also are filing a petition for certiorari.

3

A fifth related case, Swanson Group Mfg. LLC, et al. v.

Haaland, et al., 1:15-cv-01419, was decided by separate opinion

in the district court and as part of AFRC v. United States, et al.,

77 F.4th 787 (D.C. Cir. 2023). It is not at issue here.

vii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ...............................

i

PARTIES TO THE PROCEEDING ....................

ii

CORPORATE DISCLOSURE STATEMENT .....

iii

RELATED PROCEEDINGS ...............................

vi

TABLE OF AUTHORITIES ................................

ix

OPINIONS BELOW ............................................

1

JURISDICTION ..................................................

1

CONSTITUTIONAL AND

STATUTORY PROVISIONS INVOLVED ......

1

STATEMENT OF THE CASE ............................

2

A. The O&C Act Mandates that Timberlands be Managed for Sustained-Yield

Timber Production to Fund Public

Services for Oregon Counties ...................

6

B. The Antiquities Act Grants the

President Power to Designate National

Monuments ...............................................

11

C. President Obama Expands the CascadeSiskiyou National Monument, Overriding the O&C Act Mandate for Timber

Production .................................................

13

D. BLM’s 2016 Resource Management

Plans Convert 80% of O&C Timberlands

to No-harvest Reserves to Meet

Purported Environmental Objectives ......

15

viii

TABLE OF CONTENTS—Continued

Page

E. The District Court Held That Actions of

the President and BLM Conflict with the

Plain Language and Intent of the O&C

Act..............................................................

16

F. The Court of Appeals Reversed ................

18

REASONS FOR GRANTING THE WRIT ..........

20

I. THE MONUMENT DECISION PRESENTS

THE

EXCEPTIONALLY

IMPORTANT

SEPARATION

OF

POWERS QUESTION OF WHETHER

THE PRESIDENT MAY USE AN

ANTIQUITIES ACT PROCLAMATION

TO OVERRIDE A STATUTORILY MANDATED USE OF PUBLIC LANDS ..........

20

II. THE PLAN DECISION SETS DANGEROUS PRECEDENT ON THE LIMITS

OF EXECUTIVE POLICY-MAKING

AUTHORITY OVER FEDERAL LANDS

AND THREATENS THE FINANCIAL

VIABILITY OF OREGON COUNTIES ...

26

CONCLUSION ....................................................

35

APPENDICES:

APPENDIX A: OPINION, U.S. Court of Appeals

for the District of Columbia Circuit (July 18,

2023) .....................................................................

1a

APPENDIX B: MEMORANDUM OPINION,

U.S. District Court for the District of Columbia

(November 22, 2019)............................................

36a

ix

TABLE OF CONTENTS—Continued

Page

APPENDIX C:

43 U.S.C. § 2601 ...............................................

54a

43 U.S.C. § 2605 ...............................................

56a

54 U.S.C. § 320301 ...........................................

58a

Chamberlain–Ferris Revestment Act of 1916,

64th Cong. ch. 137 (1916) .............................

59a

16 U.S.C. § 1531(a)(2) ......................................

71a

33 U.S.C. § 1251(a) ..........................................

73a

33 U.S.C. § 1313 ...............................................

75a

33 U.S.C. § 1323(a) ..........................................

87a

Presidential Proclamation 7318, 65 Fed. Reg.

37249 (June 9, 2000) ....................................

90a

Presidential Proclamation No. 9564, 82 Fed.

Reg. 6145 (January 12, 2017) ......................

97a

APPENDIX D: OPINION, U.S. Dep’t of the

Interior, Office of the Solicitor, M. 30506 (March

9, 1940) ................................................................. 109a

x

TABLE OF AUTHORITIES

CASES

Page(s)

Am. Forest Res. Council v. Dombeck,

No. 1:94-cv-01031 (D.D.C. filed May 11,

1994) ..........................................................

15

Ass’n of O&C Cntys. v. Babbitt,

No. 1:94-cv-01044 (D.D.C. filed May 12,

1994) ..........................................................

15

Biden v. Nebraska,

143 S. Ct. 2355 (2023) ............................... 25, 28

Bowman Transp., Inc. v. Ark.-Best

Freight Sys., Inc.,

419 U.S. 281 (1974) ................................... 5, 30

Burnet v. Harmel,

287 U.S. 103 (1932) ...................................

29

Cal. Coastal Comm’n v. Granite Rock Co.,

480 U.S. 572 (1987) ................................... 20, 24

Cameron v. United States,

252 U.S. 450 (1920) ...................................

12

Clackamas Cnty., Or. v. McKay,

219 F.2d 479 (D.C. Cir. 1954), vacated as

moot, 349 U.S. 909 (1955) .........................

7

Erlenbaugh v. United States,

409 U.S. 239 (1972) ...................................

29

Garfield Cnty., Utah v. Biden,

No. 4:22-cv-00059-DN-PK, 2023 WL

5180375 (D. Utah Aug. 11, 2023) .............

12

George v. McDonough,

142 S. Ct. 1953 (2022) ...............................

28

xi

TABLE OF AUTHORITIES—Continued

Page(s)

Headwaters, Inc. v. Bureau of Land Mgmt.,

914 F.2d 1174 (9th Cir. 1990)

............................2, 10, 17, 21, 25, 27, 28, 32, 33

Kingdomware Techs., Inc. v. United States,

579 U.S. 162 (2016) ...................................

21

Marbury v. Madison,

5 U.S. 137 (1803) .......................................

26

Mass. Lobstermen’s Ass’n v. Raimondo,

141 S. Ct. 979 (2021) ................... 2, 3, 12, 22, 24

Morton v. Mancari,

417 U.S. 535 (1974) ...................................

29

Motor Vehicle Mfrs. Ass’n of U.S. v. State

Farm Mut. Auto. Ins. Co.,

463 U.S. 29 (1983) ........................................

30

Murphy Co. v. Biden,

65 F.4th 1122 (9th Cir.) ............... 5, 6, 21-23, 25

Nat’l Ass’n of Home Builders v. Defenders

of Wildlife,

551 U.S. 644 (2007) ............................. 17, 18, 30

O’Neal v. United States,

814 F.2d 1285 (9th Cir. 1987) ...................

32

Or. & Cal. R.R. Co. v. United States,

238 U.S. 393 (1915) ......................................

7

Pac. Rivers Council v. Shepard,

No. 03:11-cv-00442-HU, 2011 WL

7562961 (D. Or. Sept. 29, 2011),

report and recommendation adopted as

modified, 2012 WL 950032

(D. Or. Mar. 20, 2012) ...............................

15

xii

TABLE OF AUTHORITIES—Continued

Page(s)

Perrin v. United States,

444 U.S. 37 (1979) .....................................

31

Skoko v. Andrus,

638 F.2d 1154 (9th Cir.)

cert. denied, 444 U.S. 927 (1979) ..............

32

State of Wyoming v. Franke,

58 F. Supp. 890 (D. Wyo. 1945) ................

12

Students for Fair Admissions, Inc. v.

President & Fellows of Harvard Coll.,

143 S. Ct. 2141 (2023) ...............................

23

Tulare Cnty. v. Bush,

306 F.3d 1138 (D.C. Cir. 2002) .................

12

United States v. Borden Co.,

308 U.S. 188 (1939) ...................................

29

United States v. Estate of Romani,

523 U.S. 517 (1998) ...................................

22

Utah Ass’n of Cntys. v. Bush,

455 F.3d 1094 (10th Cir. 2006) .................

12

Wachovia Bank v. Schmidt,

546 U.S. 303 (2006) ...................................

29

Watt v. Alaska,

451 U.S. 259 (1981) ...................................

29

Wis. Cent. Ltd. v. United States,

138 S. Ct. 2067 (2018) ...............................

30

CONSTITUTION

U.S. Const. art. II, § 3 ..................................

22

U.S. Const. art. IV, § 3, cl. 2........... 1, 5, 20, 22, 24

xiii

TABLE OF AUTHORITIES—Continued

STATUTES

Page(s)

28 U.S.C. § 1254(l) ........................................

1

Act of July 25, 1866, ch. 242, § 1, 14 Stat.

239 .............................................................

7

Act of April 10, 1869, ch. 27, 16 Stat. 47 .....

7

Antiquities Act of 1906, 54 U.S.C. § 320301

et seq. .................... 1-5, 11, 12, 13, 17, 18, 20-24

§ 320301(a) ................................................

11

§ 320301(b) ................................................

11

Chamberlain-Ferris Revestment Act of

June 9, 1916, ch. 137, 39 Stat. 218

.................................. 1, 2, 7, 9, 18, 25, 27-29, 33

§ 2, 39 Stat. 219 .................................... 7, 18, 27

Clean Water Act, 33 U.S.C. § 1251

et seq. ................................................ 1, 2, 19, 30

Endangered Species Act, 16 U.S.C. § 1531

et seq. ..................................... 1, 2, 15, 17-19, 30

Oregon and California Railroad and

Coos Bay Wagon Road Grant Lands Act

of 1937, 43 U.S.C. § 2601

et seq. .............................. 1-6, 8-11, 14-29, 31-34

§ 2605(a) ....................................................

4

Pub. L. No. 75-405, § 1, 50 Stat. 874 (1937)

8

tit. II, 50 Stat. 876 ....................................

8

Stanfield Act, ch. 897, 44 Stat. 915 (1926) ..

7

xiv

TABLE OF AUTHORITIES—Continued

OTHER AUTHORITIES

Page(s)

3 Fed. Reg. 1,795 (July 21, 1938) .................

10

55 Fed. Reg. 26,114 (June 26, 1990) ...............

15

BLM Records of Decision for Western

Oregon Plan Revisions (Dec. 30, 2008) ....

15

H.R. Rep. No. 1119, 75th Cong., 1st Sess. 2

(1937) .........................................................

31

H.R. Res. 5858, 75th Cong., 1st Sess. (1937) ...

8

Memorandum from Ryan K. Zinke, Sec’y of

the Interior, to the President, Final

Report Summarizing Findings of the

Review of Designations Under the

Antiquities Act (2017) ...............................

14

2B Norman Singer & Shambie Singer,

Sutherland Statutory Construction,

Westlaw (7th ed., database updated Nov.

2022) ..........................................................

29

Pres. Proc. No. 7318, 65 Fed. Reg. 37,249

(June 9, 2000) ........................................ 3, 13, 14

Pres. Proc. No. 9564, 82 Fed. Reg. 6145

(January 12, 2017) ..... 3-5, 14, 18, 19, 22, 24, 25

Press Release, Sale of O. and C. Timber, W.

Horning, U.S. Department of Interior

General Land Office (Mar. 1, 1939) .........

10

Proposed Resource Management Plan/

Final Environmental Impact Statement

for Western Oregon, Director’s Protest

Resolution Report (Aug. 5, 2016) .............

29

xv

TABLE OF AUTHORITIES—Continued

Page(s)

Relating to the Revested Oregon & California Railroad Reconveyed Coos Bay

Wagon Road Grant Lands Situated in the

State of Oregon: Hearing on H.R. 5858

Before the Comm. on the Public Lands,

75th Cong., 1st Sess. (Apr. 13, 1937) .......

8

1st Sess. (May 25, 1937) ...........................

8

Ronald Lee, Dep’t of Interior, Nat’l Park

Serv., The Antiquities Act of 1906 (1970) 12, 13

U.S. Dep’t of the Interior, Bureau of Land

Mgmt., O&C Sustained Yield Act: the

Land, the Law, the Legacy, 1937-1987

(1987), https://www.blm.gov/or/files/OC_

History.pdf ................................................

11

U.S. Dep’t of the Interior, Memorandum

from Deputy Solicitor to Director, Bureau

of Land Mgmt. (June 1, 1977) ..................

33

U.S. Dep’t of the Interior, Office of the

Solicitor, Opinion M. 30506 (Mar. 9,

1940) ................................................ 2, 22, 23, 27

Walter Horning, U.S. Dep’t of Interior

General Land Office, Forever Timber:

Perpetual Sustained Yield Forestry on the

Revested Oregon and California Railroad

Grant Lands and the Reconveyed Coos

Bay Wagon Road Grant Lands in Western

Oregon (1945) ................................................

10

xvi

TABLE OF AUTHORITIES—Continued

Page(s)

Walter Horning, U.S. Dep’t of Interior

General Land Office, The O&C Lands

and their Management, an Important

Advance in Forest Conservation (1940) ......

10

Webster’s New Int’l Dictionary (1930) ..........

28

1

PETITION FOR WRIT OF CERTIORARI

Petitioners respectfully seek a writ of certiorari to

review the judgment of the United States Court of Appeals

for the District of Columbia Circuit in this case.

OPINIONS BELOW

The District of Columbia Circuit’s decision (App.,

infra, 1a-35a) is reported at 77 F.4th 787 (D.C. Cir. 2023).

The district court’s merits decision (App., infra, 36a53a) is reported at 422 F. Supp. 3d 184 (D.D.C. 2019).

JURISDICTION

The judgment of the district court granting summary

judgment to petitioners was entered on November 22,

2019. App., infra, 36a, 37a. The judgment of the court

of appeals was entered on July 18, 2023. App., infra,

1a. On September 29, 2023, Chief Justice Roberts

extended the time within which to file a petition for a

writ of certiorari to and including November 15, 2023.

This Court has jurisdiction under 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Constitution’s Property Clause provides that

“[t]he Congress shall have power to dispose of and

make all needful Rules and Regulations respecting the

Territory or other Property belonging to the United

States.” U.S. Const. art. IV, § 3, cl. 2.

Relevant provisions of the Oregon and California

Railroad and Coos Bay Wagon Road Grant Lands

Act of 1937 (O&C Act), 43 U.S.C. § 2601 et seq.; the

Antiquities Act of 1906, 54 U.S.C. § 320301 et seq.;

Chamberlain-Ferris Act of June 9, 1916, 39 Stat. 218;

Endangered Species Act, 16 U.S.C. § 1531 et seq.;

and Clean Water Act, 33 U.S.C. § 1251 et seq. are

2

reproduced in the appendix to the petition. App., infra,

54a-89a.

STATEMENT OF THE CASE

This petition arises from parallel, consolidated challenges to two actions—a presidential national monument

proclamation and a Bureau of Land Management

(BLM) resource management plan. Those actions share

a common defect that urgently calls out for this Court’s

intervention: they override plain statutory language

and in doing so strike at the heart of the separation of

powers principle that is key to our Constitution.

The Constitution vests Congress with plenary power

over federal lands. In 1937, Congress exercised that

power in the O&C Act to make sustained-yield timber

harvest the “dominant use” of 2.6 million acres of land

in Oregon. Headwaters, Inc. v. Bureau of Land Mgmt.,

914 F.2d 1174, 1184 (9th Cir. 1990) (Headwaters). As

the Solicitor of Interior explained three years after

passage of the O&C Act, “Congress has specifically

provided a plan of utilization” for these lands, and “[i]t

is well settled that where Congress has set aside lands

for a specific purpose the President is without authority to reserve the lands for another purpose inconsistent

with that specified by Congress.” U.S. Dep’t of the

Interior, Office of the Solicitor, Opinion M. 30506, 3-4

(Mar. 9, 1940) (1940 Solicitor’s Opinion), App., infra,

111a-112a.

Yet that is precisely what occurred in these consolidated cases. Claiming authority under the Antiquities

Act—part of “a trend of ever-expanding antiquities,”

Mass. Lobstermen’s Ass’n v. Raimondo, 141 S. Ct. 979,

980 (2021) (statement of Roberts, C.J., respecting

denial of certiorari) (Mass. Lobstermen’s)—President

Obama in 2017 repurposed tens of thousands of O&C

3

timberland acres to “bolster protection of the resources

within the original boundaries of the [Cascade-Siskiyou]

monument” (the Monument). App., infra, 98a. That

action is a striking example of presidential overreach.

Indeed, in a statement accompanying denial of

certiorari in another Antiquities Act case that suffered

pleading deficiencies, Chief Justice Roberts referenced

this very case as one posing a “better opportunit[y] to

consider this issue.” Mass. Lobstermen’s, 141 S. Ct. at

981 (referencing “five other cases pending in federal

courts concerning the boundaries of other national

monuments,” including this case, No. 20-5008).

This Monument expansion is especially egregious

because the designation eviscerates the dominant purpose for which the land was designated by Congress.

The O&C Act mandates in terms that could not be

plainer that O&C timberlands “shall be managed * * *

for permanent forest production,” that “the timber

thereon shall be sold, cut, and removed in conformity

with the princip[le] of sustained yield,” that the

“annual productive capacity for such lands shall be

determined and declared,” and that “the annual

sustained yield capacity when the same has been

determined and declared, shall be sold annually * * *.”

43 U.S.C. § 2601 (emphases added; footnote omitted).

By contrast, Proclamation 9564 added O&C timberlands to the original Monument where “commercial

harvest of timber * * * is prohibited,” “[n]o 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.” 65 Fed. Reg. 37,249, 37,250

(June 9, 2000), App., infra, 93a; see also 82 Fed. Reg.

at 6,149 (Monument expansion subject to “same laws

and regulations that apply to the rest of the monu-

4

ment”), App., infra, 106a. A clearer override of congressional intent by executive fiat is hard to imagine.

The district court below understood this obvious

conflict: “[t]he congressional mandates to manage

O&C timberland ‘for permanent forest production’

* * * cannot be rescinded by Presidential Proclamation.”

App., infra, 49a. But the D.C. Circuit reversed, holding

that the President can use a proclamation under the

Antiquities Act to “remov[e] the land from the O & C

Act’s ‘permanent forest production’ mandate.” App.,

infra, 24a. That leaves no limits on the reach of the

President’s power under the Antiquities Act.

Separately, the Bureau of Land Management (BLM)

engaged in a similar re-writing of the O&C Act. In

2016, BLM issued resource management plans that

place 80% of all O&C timberlands into conservation

“reserves” where harvest is prohibited in favor of

BLM’s current environmental objectives. BLM’s action

overrides Congress’s mandates in the O&C Act and

compromises public services for local communities and

hundreds of thousands of residents in those communities due to loss of revenue from timber sales. 43

U.S.C. § 2605(a) (mandating that 50% of the revenue

from timber sales from O&C timberlands be paid to

the counties in which the timberlands are located).

Here, too, the district court saw the clear conflict:

“The O&C Act plainly requires that timber grown on

O&C land ‘be sold, cut, and removed in conformity

with the princip[le] of sustained yield,’” and therefore

BLM’s plans “which prohibit the selling, cutting, and

removing of timber in conformity with the principle

of sustained yield on portions of O&C timberland,

contravene the law.” App., infra, 44a. As with the

Monument case, however, the court of appeals brushed

those concerns aside, concluding instead that “[t]he

5

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.” App., infra, 29a. But the Secretary never

claimed to have reclassified these lands. This Orwellian

analysis (timberlands are non-timberlands) not only

tramples on congressional authority to set aside lands

for a particular purpose but also conflicts with settled

precedent that agency action can only be sustained for

the reason set forth by the agency. See, e.g., Bowman

Transp., Inc. v. Ark.-Best Freight Sys., Inc., 419 U.S.

281, 285-86 (1974) (“[W]e may not supply a reasoned

basis for the agency’s action that the agency itself has

not given * * *.”).

The decision below effectively gives the executive

carte blanche to override congressional authority

over federal lands, despite the Property Clause of the

Constitution, which confers on Congress the “power to

dispose of and make all needful Rules and Regulations

respecting the Territory or other Property belonging to

the United States.” U.S. Const. art IV, § 3, cl. 2.

Consistent with Chief Justice Roberts’s concern that

the Antiquities Act “has been transformed into a power

without any discernible limit to set aside vast and

amorphous expanses of terrain,” the court of appeals’

decision affirms untethered presidential authority

to override congressional policy, “transmut[ing] the

Antiquities Act into a coiled timber rattler poised to

strike at any land management law that the President

dislikes.” Murphy Co. v. Biden, 65 F.4th 1122, 1142

(9th Cir. 2023) (Tallman, J., dissenting in part).1 In the

1

Murphy Company and Murphy Timber Investments, LLC

brought a separate challenge to Proclamation 9564 in the District

of Oregon, which upheld the Monument expansion. A divided

6

case of BLM, the court’s ruling gives the agency

unfettered discretion to thwart congressional directive

simply by relabeling timberlands as non-timberlands

and putting those lands into no-harvest “reserves” that

serve other BLM objectives.

This Court should grant certiorari to restore the

effectiveness of the O&C Act (and the critical local

funding it provides) and to rein in the President’s

unwarranted use of national monument designations

to override plainly expressed congressional commands,

in violation of the separation of powers.

A. The O&C Act Mandates that Timberlands

be Managed for Sustained-Yield Timber

Production to Fund Public Services for

Oregon Counties.

In 1937, Congress reserved nearly 2.6 million acres

of federal forestlands in Oregon for “permanent forest

production,” mandating that the timber located on

lands “classified as timberlands” “shall be sold, cut,

and removed in conformity with the princip[le] of

sustained yield” harvest. 43 U.S.C. § 2601 (emphasis

added; footnote omitted). These O&C lands span 18

counties in western Oregon that comprise the members

of Petitioner the Association of O&C Counties.

The O&C Act arose from the saga of western

settlement and embodied a sweeping congressional

declaration intended to right past wrongs and ensure

a permanent, stable source of funding for struggling

Oregon communities. In 1866, Congress authorized a

land grant to the Oregon and California Railroad to

panel of the Ninth Circuit affirmed, with Judge Tallman

dissenting. Murphy Co., 65 F.4th 1122. Plaintiffs in that case are

filing a petition for certiorari.

7

encourage construction of a rail line connecting

Portland, Oregon to California. Act of July 25, 1866, ch.

242, § 1, 14 Stat. 239; Or. & Cal. R.R. Co. v. United

States, 238 U.S. 393, 400-11 (1915) (recounting history).

Congress soon amended that grant to require the land

be sold to settlers to further development in the region.

Act of April 10, 1869, ch. 27, 16 Stat. 47. But the

railroad company shirked that law, marketing or

retaining the land for timber speculation, claiming it

was unfit for settlement. Clackamas Cnty., Or. v.

McKay, 219 F.2d 479, 482 (D.C. Cir. 1954), vacated as

moot, 349 U.S. 909 (1955).

Congress responded by passing the ChamberlainFerris Act, which revested title of the O&C lands to the

United States. Chamberlain-Ferris Revestment Act of

1916, ch. 137, 39 Stat. 218 (Chamberlain-Ferris Act),

App., infra, 59a-70a. But because revesting title would

take the O&C lands out of the local tax base, Congress

directed the Secretary of the Interior to sell the lands’

timber and create a fund from which the affected

counties (the O&C Counties) would receive a share of

the timber receipts. 39 Stat. at 220-23; Clackamas

Cnty., 219 F.2d at 482. The Chamberlain-Ferris Act

defined “timberlands” to which the timber sale mandate applied as those “lands 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. Thus, the

Act required that land be “classified according to its

capacity to produce timber.” App., infra, 24a.

Revenues from the Chamberlain-Ferris Act proved

lower than anticipated, O&C Counties received no

additional payments, and a further attempted congressional fix to protect local revenues failed. Stanfield

Act, ch. 897, 44 Stat. 915 (1926). To address the O&C

8

Counties’ continuing financial crisis, the Department

of the Interior introduced House Resolution 5858, the

precursor to the O&C Act. H.R. Res. 5858, 75th Cong.,

1st Sess. (1937).

During that bill’s congressional hearings, Oregon

Representative James Mott, whose district spanned

the revested O&C lands, sought assurances that

Congress’s intended financial goal would at last be met

by ensuring that O&C timberlands would be harvested under a sustained-yield model. See, e.g.,

Relating to the Revested Oregon & California Railroad

Reconveyed Coos Bay Wagon Road Grant Lands

Situated in the State of Oregon: Hearing on H.R. 5858

Before the Comm. on the Public Lands, 75th Cong.

(1937 Hearings), 1st Sess. 27 (Apr. 13, 1937). To limit

discretion in administering that mandate and make

certain the O&C Counties would receive an adequate

funding stream, legislators agreed to incorporate a

mandatory minimum harvest level until the annual

productive capacity of the O&C timberlands was

established. See 1937 Hearings, 1st Sess. 116 (May 25,

1937) (statement of Rep. Mott “that assurance of a

minimum annual revenue is absolutely necessary to

the financial stability and welfare of the counties in

which the Oregon and California grant lands are

situated”). With that minimum harvest amendment

included, the O&C Act was signed into law. Pub. L.

No. 75-405, § 1, 50 Stat. 874 (1937).2

2

To ensure the primacy of timber production and its

contribution of funds to O&C Counties, Congress specified 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.” 50 Stat. at 876 (uncodified provision at end of Title II).

9

The O&C Act, in relevant part, provides:

Notwithstanding any provisions in the Acts

of June 9, 1916 (39 Stat. 218) [the ChamberlainFerris Act], and February 26, 1919 (40 Stat.

1179), as amended, such portions of the revested

Oregon and California Railroad and reconveyed

Coos Bay Wagon Road grant lands as are or

may hereafter come under the jurisdiction of

the Department of the Interior, which have

heretofore or may hereafter be classified as

timberlands, and power-site lands valuable

for timber, shall be managed, * * * for

permanent forest production, and the timber

thereon shall be sold, cut, and removed in

conformity with the princip[le] 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 facil[i]ties * * *.

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 (footnotes omitted).

10

As the text reflects, Congress recognized that

ancillary benefits would flow from managing the O&C

timberlands for sustained-yield timber production.

See, e.g., 3 Fed. Reg. 1,795, 1,796 (July 21, 1938) (“The

Act refers to certain secondary benefits of the forest

which are to be conserved by the new plan of

management.”). Those ancillary benefits—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 facil[i]ties”—were not goals in

themselves of the Act but were understood to flow from

the dominant use of O&C timberlands for sustainedyield timber production. 43 U.S.C. § 2601; see Headwaters,

914 F.2d at 1183-84.

The legislation worked. Two years later, Interior’s

Chief Forester, overseeing O&C Act administration,

confirmed in a press release that the O&C forests were

being managed “in accordance with the principles of

sustained yield forestry * * * as a vast estate held in

trust” to benefit the O&C counties. Press Release, Sale

of O. and C. Timber, W. Horning, U.S. Department of

Interior General Land Office (Mar. 1, 1939). Starting

in 1940, Interior sold 593 million board feet of timber

(beyond the 500 million board feet minimum harvest

requirement). Walter Horning, U.S. Dep’t of Interior

General Land Office, The O&C Lands and their Management, an Important Advance in Forest Conservation 7

(1940). And by 1942, Interior had determined that

2,446,000 acres of O&C Lands were properly classified

as “timberlands.” Walter Horning, U.S. Dep’t of Interior

General Land Office, Forever Timber: Perpetual Sustained

Yield Forestry on the Revested Oregon and California

Railroad Grant Lands and the Reconveyed Coos Bay

Wagon Road Grant Lands in Western Oregon 17 (1945).

11

Through the 1980s, the Department of the Interior

repeatedly upheld the O&C Act’s mandate in managing the O&C timberlands, rejecting attempts to

dedicate those lands for other purposes. In the first

30 years of responsible forest management guided by

Congress’s sustained-yield mandate, the O&C Act

returned more than “1.4 billion dollars * * * to Oregon

counties” and “enriched the lives of Oregonians, contributed to economic stability, and played an important

part in the nation’s commerce.” U.S. Dep’t of the

Interior, Bureau of Land Mgmt., O&C Sustained Yield

Act: the Land, the Law, the Legacy, 1937-1987, at 14-15

(1987).3 The O&C Counties used the funds for public

works and to support basic public services like law

enforcement, corrections, public and mental health

care, libraries, and a broad array of other services. Id.

at 15, 17. The forest products sector became the

bedrock of many of these communities and remains

one of the few reliable providers of family wage

employment in western Oregon.

B. The Antiquities Act Grants the President

Power to Designate National Monuments.

The Antiquities Act 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). The Antiquities

Act further requires that monuments must be “confined

to the smallest area compatible with the proper care

and management of the objects to be protected.” Id.

§ 320301(b). To date, courts have provided no meaningful

3

https://www.blm.gov/or/files/OC_History.pdf.

12

standard by which the legality of such proclamations

can be analyzed, and before the reversed district court

decision in this case no monument designation had

been invalidated by a court. See, e.g., Cameron v.

United States, 252 U.S. 450 (1920); State of Wyoming v.

Franke, 58 F. Supp. 890 (D. Wyo. 1945); Tulare Cnty. v.

Bush, 306 F.3d 1138 (D.C. Cir. 2002); Utah Ass’n of

Cntys. v. Bush, 455 F.3d 1094, 1096 (10th Cir. 2006);

Garfield Cnty., Utah v. Biden, No. 4:22-cv-00059-DNPK, 2023 WL 5180375 (D. Utah Aug. 11, 2023). In

consequence, the Antiquities Act has been “transformed into a power without any discernible limit,”

Mass. Lobstermen’s, 141 S. Ct. at 981 (Roberts, C.J.)

(statement respecting the denial of certiorari), and

presidents have abused it with the designation of ever

more expansive monuments to the detriment of local

communities.

The Antiquities Act has its origins in the exploration

of the desert Southwest, and the alarms raised by

archaeologists regarding the loss of irreplaceable

Native American relics. Ronald Lee, Dep’t of Interior,

Nat’l Park Serv., The Antiquities Act of 1906, 1-39,

47-78 (1970).4 While largely lobbied for by the archaeological community, the Antiquities Act’s authority

was extended to cover “other objects of historic or

scientific interest,” and the inclusion of the word

“scientific” became the basis for the protection of

natural areas by presidents. Id. at 74; see, e.g., Cameron,

252 U.S. at 455-56 (upholding Grand Canyon National

Monument as protecting an object of scientific interest).

4

Ronald Lee’s 1970 Report on the history of the Antiquities Act

is widely recognized as a leading authority on the history of the

Act and has been cited favorably by Chief Justice Roberts. See

Mass. Lobstermen’s, 141 S. Ct. at 980.

13

While the Antiquities Act permits the President to

reserve federal lands that contain historic or scientific

landmarks, its legislative history reveals that it was

never intended to become one of the Nation’s principal

land management statutes, or to permit the President

to override acts of Congress that mandate specific

land management practices in specific areas. Indeed,

concern over the President wresting land management

decisions away from Congress was a matter of significant debate in Congress. Early versions of the Antiquities

Act restricted the size of monuments to no more than

320 or 640 acres. Lee, supra, at 75. The Act only gained

support in Congress after the inclusion of the “smallest

area compatible” clause to assure western representatives that the grant of authority would be cabined.

Ibid. The “smallest area compatible” clause was thus

intended to ensure that the Antiquities Act did not

become a blank slate for a president to dictate broad

land management schemes in a manner that would

displace Congress from its constitutional role of

making land management law.

C. President Obama Expands the CascadeSiskiyou National Monument, Over-riding

the O&C Act Mandate for Timber

Production.

President Clinton designated the original 52,000acre Cascade-Siskiyou National Monument (Monument)

in Presidential Proclamation 7318. 65 Fed. Reg. at

37,250. That Proclamation expressly prohibited sustainedyield timber harvest within the Monument, stating

that “[t]he commercial harvest of timber or other vegetative material is prohibited” and that “[n]o portion of

the monument shall be considered to be suited for

timber production, and no part of the monument shall

14

be used in a calculation or provision of a sustained

yield of timber.” Ibid.

In 2017, President Obama issued Proclamation

9564, which expanded the Monument by an additional

48,000 acres, most of which were O&C lands. 82 Fed.

Reg. at 6,148; see Memorandum from Ryan K. Zinke,

Sec’y of the Interior, to the President, Final Report

Summarizing Findings of the Review of Designations

Under the Antiquities Act 11 (2017) (acknowledging

that the Monument expansion included a “substantial

number of [O&C Act] acres * * * statutorily set aside

for permanent forest production” under the O&C Act).5

Under Proclamation 9564, all lands in the Monument

expansion area, including O&C lands, were subject to

management “under the same laws and regulations

that apply to the rest of the monument.” 82 Fed. Reg.

at 6,149. As a result, sustained-yield timber production is expressly prohibited within the new portions of

the Monument, just as it is in the original portions of

the Monument. Accordingly, O&C timberlands included

in the Monument expansion, which were dedicated by

Congress more than 80 years ago to the dominant

purpose of sustained-yield timber harvest for the

economic benefit of the O&C Counties, are off-limits to

sustained-yield timber harvest and no longer generate

revenues for the affected counties.

5

https://www.doi.gov/sites/doi.gov/files/uploads/revised_final_

report.pdf.

15

D. BLM’s 2016 Resource Management Plans

Convert 80% of O&C Timberlands to Noharvest Reserves to Meet Purported

Environmental Objectives.

Following listing of the northern spotted owl as a

threatened species under the Endangered Species Act

(ESA), 55 Fed. Reg. 26,114 (June 26, 1990), the Secretary

of the Interior adopted a series of plans governing land

management on federal forests within the owl’s range,

including on O&C lands. Beginning with the 1995

plans, BLM stopped managing the O&C timberlands

for sustained-yield timber production and instead

created untouchable reserves to provide owl habitat

(see J.A. 3160, 3181, 3200, 3223, 3242, 3265), which

gutted the annual timber yield by over 80%. J.A. 3473.6

Many of the petitioners here sued, alleging the noharvest reservations violated the O&C Act. Ass’n of

O&C Cntys. v. Babbitt, No. 1:94-cv-01044 (D.D.C. filed

May 12, 1994); Am. Forest Res. Council v. Dombeck,

No. 1:94-cv-01031 (D.D.C. filed May 11, 1994). Those

cases settled, with BLM committing to revise the

plans, which it did in 2008, appropriately authorizing

sustained-yield harvest on the O&C timberlands. See

BLM Records of Decision for Western Oregon Plan

Revisions (Dec. 30, 2008). The 2008 plans were later

vacated—and the 1995 plans reinstated—after environmental groups sued on grounds the 2008 plans

were approved without ESA consultation. Pac. Rivers

Council v. Shepard, No. 03:11-cv-00442-HU, 2011 WL

7562961 (D. Or. Sept. 29, 2011), report and recommendation adopted as modified, 2012 WL 950032 (D. Or.

Mar. 20, 2012) (reinstating the 1995 plans).

6

“J.A.” refers to the Joint Appendix filed on September 29,

2022 in the court of appeals.

16

BLM finally issued revised resource management

plans in 2016 (the Plans).7 Those Plans strengthened

BLM’s effort to repurpose O&C timberlands to a

preservation purpose. They dedicated the vast majority

of O&C timberlands to non-timber harvest uses,

including committing nearly a million acres to species

preservation purposes. J.A. 1862, 2182. Timber harvest is

permitted on only 20 percent of land covered by the

Plans. The remaining two million acres are allocated

to conservation reserves “which do not have objectives

for sustained-yield timber production.” J.A. 1825.

Because the Plans excluded most O&C timberlands

from sustained-yield management, they project meager

annual timber harvests of about only 205 million board

feet. J.A. 1825. By comparison, the current sustainedyield capacity of all O&C timberlands is estimated to

be over 1 billion board feet per year. J.A. 3734.

BLM in its records of decision adopting the Plans did

not attempt to reconcile the O&C Act’s sustained-yield

mandate with the land reserves barring timber

harvest. BLM simply stated that its actions were

“consistent” with the Act, without further explanation.

J.A. 1841; 2144-45.

E. The District Court Held That Actions of

the President and BLM Conflict with the

Plain Language and Intent of the O&C Act.

Petitioners challenged the Monument expansion

and Plans on grounds they violated the O&C Act by

designating tens of thousands of O&C timberland

acres as off-limits to sustained-yield timber harvest.

7

One plan was issued for Northwestern & Coastal Oregon,

another for Southwestern Oregon.

17

In a decision that robustly analyzes the O&C Act’s

text, history, and application over the last century, the

district court held that both the Monument expansion

and Plans violated the plain language of the O&C Act.

App., infra, 36a-53a. As to the Monument, the court

held that the O&C Act limits presidential authority

and that the President exceeded that limit by purporting

to “rescind[]” Congress’s mandate that O&C timberlands

be managed “for permanent forest production” under

sustained-yield timber production. App., infra, 49a.

“Put simply,” the court concluded, “there is no way to

manage land for sustained yield timber production,

while simultaneously deeming the land unsuited for

timber production and exempt from any calculation of

the land’s sustained yield of timber.” App., infra, 51a52a. Thus, whatever the scope of executive authority

under the Antiquities Act, the President cannot

“nullify” the O&C Act’s “timber harvest mandates” for

O&C timberlands. App., infra, 51a.

The district court had “no doubt” too that the Plans

violated the plain language of the O&C Act. App.,

infra, 43a. In stark contrast to the O&C Act’s mandate,

the Plans “set[] aside [O&C] timberland in reserves

where the land is not managed for permanent forest

production and the timber is not sold, cut, and

removed in conformity with the principle of sustained

yield.” App., infra, 48a. And the O&C Act’s clear

statutory text is confirmed, the court observed, by the

drafters’ original intent. See App., infra, 45a (quoting

Headwaters, 914 F.2d at 1183, which found “no

indication that Congress intended ‘forest’ to mean

anything beyond an aggregation of timber resources”).

Nor, the court held, did the ESA override the O&C

Act’s sustained-yield mandate. App., infra, 47a-48a.

This Court definitively held in National Association of

18

Home Builders v. Defenders of Wildlife, 551 U.S. 644,

664 (2007), that the ESA did not implicitly repeal the

non-discretionary mandates of pre-existing statutes,

like the O&C Act. Under Home Builders, the district

court concluded, “BLM cannot justify a refusal to abide

by th[e O&C Act’s] statutory commands by pointing to

section 7 of the ESA” because “the “‘no jeopardy duty’”

simply ‘does not attach’ to such non-discretionary

mandates.” App., infra, 48a (quoting Home Builders,

551 U.S. at 669).

F. The Court of Appeals Reversed.

The D.C. Circuit reversed.

As to the Monument, the court first rejected the

government’s defenses that courts lack jurisdiction to

review presidential proclamations, and that the O&C

Act does not apply to the President. App., infra, 16a19a, 20a-21a. The court then sought to harmonize the

O&C Act with the Antiquities Act. It concluded the

O&C Act’s sustained-yield mandate only applies to

O&C lands classified as timberlands, and therefore a

no-harvest monument could exist on any O&C lands

not so classified. App., infra, 23a-24a. It then found

that the government had “considerable discretion

regarding the classification and reclassification of

O&C land,” a ruling premised on rejecting the definition of “timberlands” in the Chamberlain-Ferris Act, a

precursor statute to the O&C Act, App., infra, 23a-24a,

that is, “lands 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.

The court then found that Proclamation 9564

“reclassified, albeit by implication, the 40,000 acres of

O & C lands the president added to the Monument as

19

non-timberlands” (App., infra, 24a), though it pointed

to no evidence that the President had considered the

O&C Act in issuing the Proclamation. In the court’s

view, the President’s implicit reclassification of O&C

timberlands took those lands out of the scope of the

O&C Act and thereby harmonized the Act and

Proclamation.

The court also held that the O&C Act’s ancillary

benefits—protecting watersheds and regulating stream

flow (see App., infra, 25a-28a)—could be balanced on

equal footing with the dominant use, sustained-yield

timber production mandate of the Act. It held that, in

light of this equal footing, the O&C Act necessarily

imbues the government with discretion to designate

O&C timberlands as non-timberlands to achieve those

ancillary objectives, even to the detriment or exclusion

of the O&C Act’s dominant use. App., infra, 25a-28a;

see App., infra, 28a (“the O & C Act provides the

Secretary * * * [with] discretion to decide how to

balance the Act’s multiple objectives”).

Based on this same construction of the O&C Act, the

court also held that the Plans were a “permissible

exercise of the Secretary’s discretion under the” statute.

App., infra, 28a. The court held that BLM had appropriately “balance[ed]” the “multiple objectives” of the

O&C Act; that BLM may “reclassify” O&C timberlands

to non-timberlands; and that “both the ESA and the

CWA support the establishment of reserves on O & C

land.” App., infra, 28a-31a.

20

REASONS FOR GRANTING THE WRIT

I. THE MONUMENT DECISION PRESENTS

THE EXCEPTIONALLY IMPORTANT SEPARATION OF POWERS QUESTION OF

WHETHER THE PRESIDENT MAY USE

AN ANTIQUITIES ACT PROCLAMATION

TO OVERRIDE A STATUTORILY MANDATED USE OF PUBLIC LANDS.

The President’s use of the Antiquities Act to override

a clear statutory directive in violation of the separation of powers urgently calls for this Court’s review.

In the O&C Act in 1937, Congress exercised its

plenary authority under the Property Clause to set

aside specific federal lands for timber production and

expressly required that those lands “shall be managed”

for sustained-yield timber production. 43 U.S.C.

§ 2601. In 2017, the President desired to put those

same lands to a different use, and used a general

statute authorizing the designation of national monuments, passed 30 years before the O&C Act, to prohibit

sustained-yield timber on those same lands. That is

something the President cannot constitutionally do.

The President’s claim of Antiquities Act authority

here raises important questions that strike at the

core of the separation of powers. The Property Clause

vests Congress alone with the plenary power to “make

all needful Rules and Regulations” regarding public

lands. U.S. Const. art. IV, § 3, cl. 2; see Cal. Coastal

Comm’n v. Granite Rock Co., 480 U.S. 572, 581 (1987)

(“[T]he Property Clause gives Congress plenary power

to legislate the use of * * * federal land * * *.”). Here,

Congress “legislate[d] the use” of O&C timberlands in

the clearest possible terms: those timberlands



21

“shall be managed * * * for permanent forest

production”;



“the timber thereon shall be sold, cut, and

removed in conformity with the princip[le] of

sustained yield”;



the “annual productive capacity for such lands

shall be determined and declared”; and



“the annual sustained yield capacity when the

same has been determined and declared, shall

be sold annually.”

43 U.S.C. § 2601 (emphases added; footnote omitted).

The repeated use of the word “shall” leaves no ambiguity as to Congress’s intent. Kingdomware Techs., Inc. v.

United States, 579 U.S. 162, 172 (2016) (Congress’s use

of the word “shall” generally “imposes a mandatory

duty”). Thus for decades, courts have recognized that

the O&C Act is a “dominant use” statute that mandates timber production as its primary purpose.

Headwaters, 914 F.2d at 1184.

The President may not prohibit sustained-yield

production on these same timberlands through a proclamation under the Antiquities Act. The Antiquities

Act provides the President with authority to create

national monuments, but “nowhere does it remotely

purport to grant him authority to suspend the

operation of another act of Congress.” Murphy Co.,

65F.4th at 1139 (Tallman, J., dissenting in part). If it

did, “every federal land management law that does not

expressly shield itself from the Antiquities Act [would

be] subject to executive nullification by proclamation.”

Id. at 1141.

Still less do the general powers granted the

President in the Antiquities Act in 1906 allow the

22

President to override the very specific directives of the

1937 O&C Act. See, e.g., United States v. Estate of

Romani, 523 U.S. 517, 530, 532 (1998) (“the more

recent and specific provisions of [an] Act would apply

were they to conflict with the older * * * statute”; “a

specific policy embodied in a later federal statute

should control”). Indeed, nullification of the O&C Act

by proclamation runs afoul of the President’s constitutional obligation to “take Care that the Laws be

faithfully executed.” U.S. Const. art. II, § 3.

Simply put, “[t]he conflict between the O & C Act

and Proclamation 9564 could not be more self-evident.”

Murphy Co., 65 F.4th at 1139 (Tallman, J., dissenting

in part). And given the Property Clause, that conflict

can give rise to only one winner under separation of

powers principles: the O&C Act’s mandate for sustainedyield use of the O&C timberlands.

Not only does this case present these important

constitutional issues, but it also provides an excellent

vehicle to curtail the “ever-expanding” Antiquities Act,

which over time has been “transformed into a power

without any discernible limit.” Mass. Lobstermen’s,

141 S. Ct. at 980-81 (Roberts, C.J.) (statement respecting the denial of certiorari).

That is because the abuse of the Antiquities Act to

thwart congressional mandates is particularly evident

in this case, where the O&C Act is so clearly intended

to be a dominant use statute. Indeed, three years after

the O&C Act was passed, the Solicitor was asked by

the Secretary of the Interior “whether the president is

authorized” to put O&C lands into a national monument. 1940 Solicitor’s Opinion, App., infra, 110a. The

answer at the time was a resounding “no”:

23

There can be no doubt that the administration of the lands for national monument

purposes would be inconsistent with the

utilization of the O & C lands as directed by

Congress. It is well settled that where

Congress has set aside lands for a specific

purpose the President is without authority to

reserve the lands for another purpose inconsistent with that specified by Congress.

App., infra, 112a. The conflict in 1940 is the same as

now—“the disposal of timber in a national monument

is restricted” in a manner inconsistent with the O&C

Act. App., infra, 112a. As Judge Tallman explained,

“[e]ven a perfunctory review of the plain text of the

Proclamation and the O & C Act reveals an obvious

conflict.” Murphy Co., 65 F.4th at 1139 (Tallman, J.,

dissenting in part).

In the intervening 80 years, the textual mandate of

the O&C Act has not changed, and neither has the text

of the Antiquities Act. The only thing that has changed

is the expanding modern view of the Antiquities Act as

a tool to support presidential conservation objectives,

and the court of appeals’ decision in this case watering

down the mandates of the O&C Act to meet current

conservation goals. As discussed below, such reinterpretations are inconsistent with this Court’s instructions.

See, e.g., Students for Fair Admissions, Inc. v. President

& Fellows of Harvard Coll., 143 S. Ct. 2141, 2208

(2023) (Gorsuch, J., concurring) (“[O]ur task is to apply

the law’s terms as a reasonable reader would have

understood them at the time Congress enacted them.”).

The problems created by the evolving use of the

Antiquities Act are well documented. As Chief Justice

Roberts has explained, the Antiquities Act has over

time been “transformed into a power without any

24

discernible limit.” Mass. Lobstermen’s, 141 S. Ct. at 981

(Roberts, C.J.) (statement respecting the denial of

certiorari). Left unchecked, this power, and its

potential for abuse, will only grow.

While numerous questions exist regarding the extent

of the President’s authority under the Antiquities Act,

none is more fundamental than the one presented

here: can the President use the Antiquities Act to

override the will of Congress as expressed in a more

specific and later enacted land management statute?

That simple question about constitutional boundaries

between the President and Congress is one of exceptional importance, going to the very foundation of our

system of government.

Review is also urgently needed because the D.C.

Circuit’s decision opens the door to drastically expanding the use of the Antiquities Act. The court of appeals

sidestepped the separation of powers issue by suggesting that the President could through Antiquities Act

Proclamation “impliedly” reclassify O&C “timberlands”

as “non-timberlands.” App., infra, 24a (“We believe

Proclamation 9564 reclassified, albeit by implication,

the 40,000 acres of O & C land the president added to

the Monument as non-timberlands, thereby removing

the land from the O & C Act’s ‘permanent forest

production’ mandate.”). But the power to reclassify

federal lands that were classified by Congress for a

particular use is a plenary one vested in Congress by

the Property Clause. U.S. Const. art. IV, § 3, cl. 2.; Cal.

Coastal Comm’n, 480 U.S. at 580. The court of appeals’

unexplained ruling that the President may simply—

and not even expressly, but “impliedly”—reclassify

land use by proclamation leaves the Antiquities Act

without any principled limit: “a coiled timber rattler

poised to strike at any land management law that the

25

President dislikes.” Murphy Co., 65 F.4th at 1142

(Tallman, J., dissenting in part).

Equally problematic, the court of appeals’ decision

thwarts Congress’s policy objectives in the O&C Act.

“[T]he O & C Act was intended to provide the counties

in which O & C Act land was located with the stream

of revenue which had been promised but not delivered

by the Chamberlain-Ferris Revestment Act, 39 Stat.

218 (1916).” Headwaters, 914 F.2d at 1183. Congress

promised “permanent forest production” from the

O&C timberlands to achieve that important goal. 43

U.S.C. § 2601. The court of appeals’ decision allows the

President by fiat to destroy Congress’s careful plan to

fund local O&C communities, writing “permanent” out

of the statute. Courts, however, should not allow

executive officials to rewrite unambiguous statutory

mandates. See, e.g., Biden v. Nebraska, 143 S. Ct. 2355,

2371 (2023) (declining to uphold executive action that

rewrote a statute to include “radically new text”).

Review is urgently needed to give renewed meaning to

the O&C Act and restore the promises made by

Congress to the affected counties and their residents.

This case presents an excellent vehicle for review of

these important separation of power issues. The

conflict between the Monument Proclamation and the

O&C Act is exceptionally clear, as Judge Talman

explained in the Murphy case. In addition, the controversy is fully ripe, with the adverse effects of the ruling

below already being felt. The Proclamation immediately

resulted in cancelled timber sales on O&C timberlands,

and it continues to result in foregone sales every year

the Monument designation stands. The consequences

are immediate, and direct, and felt most keenly by

the communities that are now deprived of the funds

26

promised by Congress, including the members of

petitioner O&C Counties.

The court of appeals’ erroneous decision represents

the do or die moment for the O&C Act. If left to stand,

it gives the President unfettered discretion to impliedly

reclassify timberlands as non-timberlands and (as

addressed below), allows BLM unfettered discretion

to do the same. Unless the Court steps in “to say

what the law is,” (Marbury v. Madison, 5 U.S. 137, 177

(1803)), the O&C Act is a meaningless empty promise,

subject to implied reclassification at will by the

President (and the BLM). Review of this decision is

essential to avoid that unjust result.

II. THE PLAN DECISION SETS DANGEROUS

PRECEDENT ON THE LIMITS OF EXECUTIVE POLICY-MAKING AUTHORITY

OVER FEDERAL LANDS AND THREATENS THE FINANCIAL VIABILITY OF

OREGON COUNTIES.

The court of appeals approved BLM’s Plans that

place 80% of the O&C timberlands into no-harvest

reserves. It reasoned that the creation of those

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.” App.,

infra, 29a. That ruling misinterprets the language of

the O&C Act, subverts Congress’s goal to provide

funds for O&C communities, conflicts with decisions of

this and other courts, and in doing so violates the

separation of powers. It warrants this Court’s immediate review alongside the Monument Proclamation

ruling, which shares many of the same legal defects.

27

Allowing BLM to reclassify the timberlands specified

as such in the O&C Act infringes basic principles of

separation of powers and thwarts the will of Congress.

Congress “specifically provided a plan of utilization”

for the O&C timberlands. 1940 Solicitor’s Opinion,

App., infra, 111a. Specifically, sustained-use management for timber production on the 2.6 million acres

of O&C timberlands “was intended to provide the

counties in which O & C Act land was located with [a]

stream of revenue.” Headwaters, 914 F.2d at 1183.

The decision below allows BLM to override the

mandate and purpose of the O&C Act. The vast

majority of O&C timberlands are now in conservation

reserves that do not, and cannot, provide the counties

“with the stream of revenue which had been promised”

by Congress. In fact, those lands provide no revenues

at all. This is causing significant financial hardship to

the counties and impairing their ability to provide

basic services to hundreds of thousands of citizens. If

certiorari is not granted, the congressional purpose

will be permanently defeated.

Worse still, the court of appeals decision leaves no

protection for the remaining 20% of O&C timberlands,

as there is nothing to stop BLM from taking the rest.

Without intervention by this Court, there is nothing to

prevent BLM reclassifying the rest of the O&C

timberlands as “non-timberlands” to serve other BLM

objectives.

The court of appeals’ decision misinterprets the

O&C Act in ways that conflict with settled precedent

of this Court.

The term “timberlands” was defined in the

Chamberlain-Ferris Act in terms of timber producing

capacity of the land. 39 Stat. 219, Sec. 2 (“timberlands”

28

are any lands growing “not less than three hundred

thousand feet board measure on each forty-acre subdivision”), App., infra, 62a. When the term “timberlands”

was later used in the O&C Act without further definition, petitioners argued, the same definition carried

forward. The court of appeals disagreed. It held that

the O&C Act impliedly repealed the definition of

timberlands in the Chamberlain-Ferris Act simply

because “[t]hat definition * * * was omitted from the

O & C Act.” App., infra, 24a. And that ruling was the

foundation of the court’s conclusion that BLM’s noharvest reserves “can reasonably be viewed” as a BLM

decision to (impliedly) reclassify O&C timberlands

simply by calling them non-timberlands, exempt from

the O&C Act. App., infra, 29A.

That ruling was error. As Justice Barrett recently

explained, it is “well established that ‘[w]here Congress

employs a term of art obviously transplanted from

another legal source, it brings the old soil with it.’”

Biden, 143 S. Ct. at 2378-79 (Barrett, J., concurring)

(quoting George v. McDonough, 142 S. Ct. 1953, 1959

(2022)). That is what happened here. The O&C Act was

intended to provide the “stream of revenue which had

been promised but not delivered by the ChamberlainFerris Revestment Act.” Headwaters, 914 F.2d at 1183.

The use of “timberlands” in the O&C Act was directly

transplanted from the Chamberlain-Ferris Act—with

no new definition supplied—and brings the same

meaning with it. That use is consistent with the

ordinary dictionary definition of “timberland” at the

time as “[w]ooded or forested land, esp. when

consisting of marketable timber.” Webster’s New Int’l

Dictionary 2159 (1930).

The court of appeals’ implied repeal analysis also

runs head-first into other decisions of this Court.

29

Statutes in pari materia must be read together.

Wachovia Bank v. Schmidt, 546 U.S. 303, 316 (2006);

see also Erlenbaugh v. United States, 409 U.S. 239,

243 (1972) (“[A] legislative body generally uses a

particular word with a consistent meaning in a given

context.”). That is particularly true where, as here, “a

later statute refers to an earlier statute.” 2B Norman

Singer & Shambie Singer, Sutherland Statutory Construction § 51:3, Westlaw (7th ed., database updated

Nov. 2022); Burnet v. Harmel, 287 U.S. 103, 108 (1932).

A statute should not be understood to repeal another

unless Congress’s intent to do so was “clear and

manifest.” Morton v. Mancari, 417 U.S. 535, 551 (1974)

(quoting United States v. Borden Co., 308 U.S. 188, 198

(1939)). The panel’s threadbare implied repeal reasoning directly conflicts with this Court’s admonition that

“repeals by implication are not favored” and should not

be found “without seeking to ascertain the actual

intent of Congress.” Watt v. Alaska, 451 U.S. 259, 26667 (1981) (quoting Morton, 417 U.S. at 549).

Equally problematic, the court of appeals violated

settled precedent when it provided an explanation

that did not come from BLM itself. BLM did not state

in the agency record that it was reclassifying lands as

non-timberlands, or that the O&C Act repealed the

Chamberlain-Ferris Act definition of timberlands.

Rather, BLM stated that it used the longstanding

“Timber Capability Classification System,” a system

that (like the Chamberlain-Ferris Act’s “timberlands”

definition) looks at the ability of the land to produce

marketable timber. Proposed Resource Management

Plan/Final Environmental Impact Statement for

Western Oregon, Director’s Protest Resolution Report

197 (Aug. 5, 2016). BLM then placed lands that were

fully capable of timber production under its own

classification system into no-harvest reserves. Ibid.

30

There was no reclassification of timberlands to nontimberlands. BLM simply decided that most of the

O&C timberlands (as classified by its own timber

capability system) should be used to provide habitat

for the threatened spotted owl, and to protect water

systems and their attendant species.

This Court has given clear instruction that an agency

action reviewed under the Administrative Procedure

Act may only be upheld on a basis articulated by the

agency. Bowman Transp., 419 U.S. at 285-86 (“[W]e

may not supply a reasoned basis for the agency’s action

that the agency itself has not given * * *.”); Motor

Vehicle Mfrs. Ass’n of U.S. v. State Farm Mut. Auto. Ins.

Co., 463 U.S. 29, 43 (1983) (“The reviewing court should

not attempt itself to make up for * * * deficiencies” in

the agency’s reasoning). Yet here, the rationale offered

by the court of appeals is contradicted by that provided

by the agency.

The court of appeals barely mentions the actual

reason for no-harvest reserves stated by BLM to

protect species habitat under the ESA and the CWA,

and with good reason. This court in Home Builders

held that the ESA cannot be interpreted as having

implicitly repealed the non-discretionary mandates of

pre-existing statutes. 551 U.S. at 664. Under Home

Builders, BLM cannot use its obligation under the

ESA (or the CWA) to thwart clear and express

statutory mandates for the use of O&C timberlands.

The court of appeals compounded these errors in

statutory construction by applying a modern view to

“sustained yield” timber production that bears no

connection to how those terms were employed in 1937.

Wis. Cent. Ltd. v. United States, 138 S. Ct. 2067, 2070

(2018) (the court’s “job is to interpret the words

consistent with their ‘ordinary meaning ... at the time

31

Congress enacted the statute’”) (quoting Perrin v.

United States, 444 U.S. 37, 42 (1979)).

Here, the court of appeals reasoned that the noharvest reserves containing O&C timberlands “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 * * * would eventually limit the lands’

timber production capacity.” App., infra, 29a-30a.

But there is nothing to suggest that the term

“sustained yield” as used in 1937 contemplated species

habitat and ecosystem concepts. And a member of

Congress in 1937 could not plausibly have believed

that timber production capacity was limited or

impacted by “a failure to protect endangered species.”

App., infra, 29a.

Rather, the term “sustained yield” in 1937 was more

pragmatic:

All land classified as timber in character will

continue in Federal ownership and be managed

for permanent forest production on what is

commonly known as a sustained-yield basis.

Under such a plan the amount of timber

which may be cut is limited to a volume not

exceeding new growth, thereby avoiding

depletion of the forest capital. This type of

management will make for a more permanent

type of community, contribute to the economic

stability of local dependent industries, protect

watersheds, and aid in regulating streamflow.

H.R. Rep. No. 1119, 75th Cong., 1st Sess. 2 (1937). This

same report concludes that the O&C Act “establishes

a vast, self-sustaining timber reservoir for the future.”

Id. at 4.

32

Unsurprisingly, the court of appeals’ 21st century

conservation-centric view of “sustained yield” also

creates a circuit conflict. The Ninth Circuit rejected

this exact reasoning over 30 years ago in Headwaters,

stating:

Headwaters argues that the phrase ‘forest

production’ in section 1181a encompasses not

merely timber production, but also conservation values such as preserving the habitat

of the northern spotted owl. However,

Headwaters’s proposed use—exempting certain

timber resources from harvesting to serve as

wildlife habitat—is inconsistent with the

principle of sustained yield. As the statute

clearly envisions sustained yield harvesting

of O & C Act lands, we conclude that

Headwaters’s construction is untenable.

914 F.2d at 1183.

This conflict amongst the courts only underscores

the need for this Court to provide guidance as to the

meaning of the O&C Act. In Headwaters, BLM argued

that the O&C Act mandated timber production as the

“dominant use” of O&C timberlands, and the court

agreed, explaining that the O&C Act’s text “make[s] it

clear that the primary use of the [O&C Act] lands is

for timber production to be managed in conformity

with the provision of sustained yield.” Id. at 1184

(second brackets in original) (quoting O’Neal v. United

States, 814 F.2d 1285, 1287 (9th Cir. 1987) (holding

same); Skoko v. Andrus, 638 F.2d 1154, 1156 (9th Cir.)

(same), cert. denied, 444 U.S. 927 (1979)). Headwaters

further held that “[n]owhere does the legislative

history suggest that wildlife habitat conservation or

conservation of old growth forest is a goal on a par with

timber production, or indeed that it is a goal of the

33

O&C Act at all.” 914 F.2d at 1184. To construe the O&C

Act’s dominant use framework as akin to a multiple

use, balancing framework disregards the clear text

and context of the statute.

This confusion is further evidenced by the court of

appeals’ discussion regarding the ancillary benefits of

sustained-yield timber production: “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

(footnote omitted). The court of appeals elevated these

ancillary benefits as being on par with the O&C Act’s

dominant use, sustained-yield timber production purpose, concluding that these benefits were “objectives”

of the statute and that BLM has “discretion to decide

how to balance the Act’s multiple objectives.” App.,

infra, 30a.

This unwarranted endorsement of limitless agency

discretion confuses the benefits of “sustained yield

production” with the objectives of the Act to:

(1) “provide the counties in which O & C Act land was

located with the stream of revenue which had been

promised but not delivered by the Chamberlain-Ferris

Revestment Act” and (2) “halt previous practices of

clear-cutting without reforestation, which was leading

to a depletion of forest resources.” Headwaters, 914

F.2d at 1183; see also U.S. Dep’t of the Interior, Memorandum from Deputy Solicitor to Director, Bureau of

Land Mgmt. at 9 (June 1, 1977), J.A. 528 (the

“legislative history” and text of the O &C Act “force the

conclusion” that “[r]ather than allowing equal consideration of all land uses, the O & C Act requires that

lands be managed for commercial forestry if suitable”;

“[o]ther uses” are “only allowed when subordinated to

commercial forest management”).

34

The court of appeals’ decision eviscerates Congress’s

statutory directive for O&C timberlands. Instead of

being a “dominant use” designed to ensure revenue for

O&C communities, BLM has relegated sustained-yield

timber production to an ever-shrinking percentage of

the O&C timberlands with the panel’s blessing. And

there is nothing in the ruling below to prevent BLM

from shrinking that diminishing slice even more.

Certiorari is urgently needed to restore Congress’s

promise to the counties under the O&C Act that they

would receive a stream of timber revenue, and to

enforce core principles of separation of powers and

statutory interpretation.

35

CONCLUSION

The petition for certiorari should be granted.

Respectfully submitted,

JULIE A. WEIS

HAGLUND KELLEY LLP

2177 SW Broadway

Portland, OR 97201

(503) 225-0777

Counsel for American Forest

Resource Council, et al.

DAVID O. BECHTOLD

NORTHWEST RESOURCE

LAW PLLC

1500 SW First Ave., Suite 985

Portland, OR 97201

(503) 664-3582

SARA GHAFOURI

AMERICAN FOREST RESOURCE

COUNCIL

700 NE Multnomah St.

Suite 320

Portland, OR 97232

(503) 222-9505

Counsel for American Forest

Resource Council

November 2023

TIMOTHY S. BISHOP

Counsel of Record

MAYER BROWN LLP

71 South Wacker Drive

Chicago, IL 60606

(312) 701 7829

tbishop@mayerbrown.com

Counsel for Petitioners

PER A. RAMFJORD

JASON T. MORGAN

ARIEL STAVITSKY

STOEL RIVES LLP

760 SW Ninth Avenue

Suite 3000

Portland, OR 97205

(503) 224 3380

Counsel for Association of

O & C Counties

APPENDIX

APPENDIX TABLE OF CONTENTS

Page

APPENDIX A: OPINION, U.S. Court of Appeals

for the District of Columbia Circuit (July 18,

2023) .....................................................................

1a

APPENDIX B: MEMORANDUM OPINION,

U.S. District Court for the District of Columbia

(November 22, 2019)............................................

36a

APPENDIX C:

43 U.S.C. § 2601 ...............................................

54a

43 U.S.C. § 2605 ...............................................

56a

54 U.S.C. § 320301 ...........................................

58a

Chamberlain–Ferris Revestment Act of 1916,

64th Cong. ch. 137 (1916) .............................

59a

16 U.S.C. § 1531(a)(2) ......................................

71a

33 U.S.C. § 1251(a) ..........................................

73a

33 U.S.C. § 1313 ...............................................

75a

33 U.S.C. § 1323(a) ..........................................

87a

Presidential Proclamation 7318, 65 Fed. Reg.

37249 (June 9, 2000) ....................................

90a

Presidential Proclamation No. 9564, 82 Fed.

Reg. 6145 (January 12, 2017) ......................

97a

APPENDIX D: OPINION, U.S. Dep’t of the

Interior, Office of the Solicitor, M. 30506 (March

9, 1940) ................................................................. 109a

1a

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

————

No. 20-5008

————

AMERICAN FOREST RESOURCE COUNCIL,

v.

Appellee

UNITED STATES OF AMERICA, et al.,

Appellees

SODA MOUNTAIN WILDERNESS COUNCIL, et al.,

Appellants

————

Argued November 16, 2022

Decided July 18, 2023

————

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)

————

2a

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.

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

3a

President expanded the boundaries of the CascadeSiskiyou 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

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 onequarter section to one purchaser, and for a price not

4a

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 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

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.”).

5a

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 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

6a

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.”).

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

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].

7a

quantity” (ASQ). 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.

3

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 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,”

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.

8a

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 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

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-occidentalis-caurina (last

visited June 28, 2023) [https://perma.cc/2B4A-U4QD].

9a

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

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

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 latesuccessional and old-growth related species.”); A. 3294 (“Riparian

[r]eserves . . . maintain and restore riparian structures and

functions of intermittent streams, confer benefits to ripariandependent 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.”).

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.

10a

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 reserveheavy 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 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

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).

11a

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 landbase,”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 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

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.

12a

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-mon

ument-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 Cascade-Siskiyou National Monument (the Monument). See Proclamation No. 7318, 65

Fed. Reg. 37249 (June 13, 2000).11 The Monument was

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

13a

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). 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

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.

14a

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.

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

15a

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 nondiscretionary 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. 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

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.”

16a

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

17a

provision. See, e.g., 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

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.”).

18a

‘not at all limit’ the discretion of the President.”

(quoting 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 Assn 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

19a

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] 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

20a

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

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

21a

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 (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

22a

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 ‘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 nonobstante 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.

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.

23a

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 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.

24a

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.” ChamberlainFerris 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. 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 ChamberlainFerris 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,

25a

nor is it a case that concerns ‘vast and amorphous

expanses of terrain.’” Murphy, 65 F.4th at 1137-38

(quoting Mass. Lobstermen’s Assn 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 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

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 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

26a

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 cutover 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. 751119, 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

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).

27a

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)).

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

28a

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 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

29a

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 oldgrowth 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 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,

30a

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 timberregeneration sales).

Second, both the ESA and the CWA support the

establishment of reserves on O & C land. Latesuccessional 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

31a

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 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

32a

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 APR’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

background on the Secretary’s timber sale process is

necessary. The sale process comprises three pre-sale

phases: preplanning, planning and preparation. In the

preplanning phase, the BLM collects information

33a

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

challenges to each site-specific logging decision to

34a

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.

35a

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.

36a

APPENDIX B

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

————

Civil Case No. 16-1599 (RJL)

————

AMERICAN FOREST RESOURCE COUNCIL, et al.,

Plaintiffs,

v.

CASEY HAMMOND, et al.,

Defendants.

————

Civil Case No. 16-1602 (RJL)

————

ASSOCIATION OF O & C COUNTIES,

Plaintiff,

v.

WILLIAM PERRY PENDLEY, et al.,

Defendants.

————

Civil Case No. 17-280 (RJL)

————

ASSOCIATION OF O&C COUNTIES,

Plaintiff,

v.

DONALD J. TRUMP, et al.,

Defendants,

SODA MOUNTAIN WILDERNESS COUNCIL, et al.,

Defendant-Intervenors.

37a

————

Civil Case No. 17-441 (RJL)

————

AMERICAN FOREST RESOURCE COUNCIL,

Plaintiff,

v.

UNITED STATES OF AMERICA, et al.,

Defendants,

SODA MOUNTAIN WILDERNESS COUNCIL, et al.,

Defendant-Intervenors.

————

MEMORANDUM OPINION

(November 22, 2019)

[Dkt. ## 49, 50 (in Case No. 16-1599); 37, 38

(in Case No. 16-1602); 59, 60, 66

(in Case No. 17-280); 60, 61, 66 (in Case No. 17-441)]

The Oregon and California Railroad and Coos Bay

Wagon Road Grant Lands Act of 1937 (“O&C Act”),

43 U.S.C. § 2601 et seq., regulates timber harvest on

approximately two million acres of federal land in

western Oregon (“O&C land”). In these four cases,

plaintiffs challenge decisions made by the President

of the United States and by the Bureau of Land

Management (“BLM”)—the agency that administers

the O&C Act—that effectively reduce the amount of

O&C land that is available for commercial timber

harvest.1 In two of the cases, plaintiffs challenge

1

In Case Number 16-1599, the American Forest Resource

Council (a forest products trade association representing lumber

and plywood manufacturing companies) as well as the Carpenters

Industrial Council, Douglas Timber Operators, Inc., C & D Lumber

Co., Freres Lumber Co. Inc., Seneca Sawmill Company, Starfire

38a

Resource Management Plans, issued by BLM in 2016

(“the 2016 RMPs”), that set aside portions of O&C land

as reserves on which commercial timber harvest is

limited. In the other two cases, plaintiffs challenge a

Presidential Proclamation (“Proclamation 9564”), by

President Obama, that enlarged the Cascade-Siskiyou

National Monument in southern Oregon, thereby

limiting commercial timber harvest on the O&C land

that was added to the monument. See 82 Fed. Reg.

6145 (Jan. 18, 2017).

In all four cases, plaintiffs contend that the Government’s actions violate the plain text of the O&C Act.

Lumber Co., Inc., and Swanson Group Mfg. LLC (all entities

engaged in business related to the timber industry) sued BLM’s

director and the Secretary of the Interior, alleging that the 2016

RMPs are arbitrary, capricious, and unlawful. In Case Number

16-1602, the Association of O&C Counties, which represents

seventeen counties in western Oregon that contain O&C land,

sued the same defendants on the same allegations.

In Case Number 17-280, the Association of O&C Counties sued

President Donald J. Trump, the United States of America, the

Secretary of the Interior, and BLM, alleging that Proclamation

9564 is ultra vires. In Case Number 17-441, the American Forest

Resource Council sued the same defendants on the same allegations about Proclamation 9564. The Soda Mountain Wilderness

Council, the Klamath-Siskiyou Wildlands Center, and Oregon

Wild (public interest groups focused on protecting the environment in and around the Cascade-Siskiyou National Monument)

intervened in Case Numbers 17-280 and 17-441 to defend

Proclamation 9564.

Throughout this consolidated Memorandum Opinion, “plaintiffs”

will refer to the collective plaintiffs in all four cases. “Defendants,”

“the Government,” or the “United States” will refer to the

collective named defendants in all four cases. And “intervenors”

or “defendant-intervenors” will refer to the Soda Mountain

Wilderness Council, the Klamath-Siskiyou Wildlands Center, and

Oregon Wild, collectively

39a

They moved for summary judgment, and the Government cross-moved, defending the legality of the 2016

RMPs and Proclamation 9564. In the cases about

Proclamation 9564, intervenors filed additional crossmotions for summary judgment in defense of the

Proclamation.

In all four cases, plaintiffs are correct. Both the 2016

RMPs and Proclamation 9564 conflict with mandates

imposed by the O&C Act. For that reason, and for all

those that follow, plaintiffs’ motions for summary

judgment must be GRANTED, and the Government’s

and intervenors’ cross-motions for summary judgment

must be DENIED.

BACKGROUND2

The O&C Act requires that timberland subject to the

Act be “managed . . . for permanent forest production”

and that timber grown on the land “be sold, cut, and

removed in conformity with the princip[le] of sustained

yield.” 43 U.S.C. § 2601. To implement these provisions,

the Secretary of the Interior must declare the “annual

productive capacity” of O&C timberland, and then

offer timber commensurate with that productive

capacity for sale each year.3 Id. A portion of the

proceeds from the timber sales is then paid to the

2

Additional background about these cases can be found in

American Forest Resource Council v. Steed, No. 16-1599, 2019 WL

1440887 (D.D.C. Mar. 31, 2019). This Memorandum Opinion

discusses only the background relevant to the issues decided.

3

BLM, an agency with the Department of the Interior, has

administered the O&C Act since 1947. See Swanson Grp. Mfg.

LLC v. Bernhardt, No. 15-1419, 2019 WL 4750486, at *1 (D.D.C.

Sept. 30, 2019); U.S. Dep’t of the Interior, BLM, O&C Sustained

Yield Act: the Land, the Law, the Legacy (1937-1987) at 5,

available at https://www.blm.gov/or/files/OC_History.pdf.

40a

Oregon counties that contain O&C land. See id.

§ 2605(a).

The O&C land’s productive capacity—also referred

to as the allowable sale quantity (“ASQ”) of timber4 has

reached as high as 1.1 billion board feet per year. See

Administrative Record (Case No. 16-1599) (“AR”) .at

JA-14, IND_0527316-17 [Dkt. ## 37, 40]. For much of

the latter half of twentieth century, it remained

relatively close to that figure. See id. (showing an ASQ

of 874 million board feet or higher every year from

1959 until 1976). But in the 1990s, the ASQ dropped

precipitously.

In 1990, the U.S. Fish and Wildlife Service classified

the northern spotted owl as a threatened species

under the Endangered Species Act of 1973 (“ESA”),

16 U.S.C. § 1531 et seq. See Determination of

Threatened Status for the Northern Spotted Owl,

55 Fed. Reg. 26,114 (June 26, 1990). Two years later, a

federal district court in Oregon enjoined timber sales

on land, including land subject to the O&C Act, that is

suitable habitat for the threatened owls. See Portland

Audubon Soc’y v. Lujan, 795 F. Supp. 1489, 1510-11 (D.

Or. 1992). The injunction was not resolved until 1994,

when BLM, in conjunction with the United States

Forest Service, adopted a new “forest plan” to govern

the management of northern spotted owl habitat. See

Seattle Audubon Soc. v. Lyons, 871 F. Supp. 1291, 1300,

1302, 1304 (W.D. Wash. 1994).

Land subject to the 1994 forest plan was divided into

“reserve areas in which logging and other ground4

BLM uses “annual productive capacity,” “allowable sale

quantity,” and “annual sustained yield capacity” synonymously.

See Fed. Defs.’ Cross-Mot. Summ. J. (Case No. 16-1599) at 7 & n.3

[Dkt. # 50].

41a

disturbing activities [we]re generally prohibited” and

“unreserved areas” where “timber harvest [could] go

forward.” Lyons, 871 F. Supp. at 1304-05. In 1995,

with the forest plan in place, BLM issued RMPs that

adopted similar measures for O&C land. See, e.g., AR

at JA-27, IND_0523007; JA-28, IND_0523235. After

allocating certain timberland to reserves, where sustained yield timber harvest was not permitted, the

1995 RMPs set an ASQ of 203 million board feet per

year, about 20% of the one billion board feet ASQs

that had been declared in the past. See AR at JA-41,

IND_0340678; JA-46, IND_0514462; JA46, IND_0514701.

BLM revised the O&C land RMPs in 2016. Like

their predecessors, the 2016 RMPs divide O&C land

into separate management categories. See AR at JA46, IND 0514399-402. Only one of the six categories—

“harvest land base”—is managed to “achieve continual

timber production that can be sustained through

a balance of growth and harvest.” Id. at JA-46,

IND_0514402. The other five categories, which include

multiple types of ecological reserves, limit timber

production. See id. at JA-2, IND 0513044. When BLM

calculated the ASQ for O&C timberland in the 2016

RMPs, the agency looked only to timber grown in the

498,597-acre harvest land base. See id. at JA-1,

IND_0512707-10; JA-1, IND_0512745; JA-2, IND_051302729; JA-2, IND_0513065. Timberland in every other land

category, including the 957,872 acres of late-successional reserves and the 520,092 acres of riparian

reserves, was left aside. See id. This calculation yielded

an ASQ of 205 million board feet per year—a slight

increase from the 1995 RMPs, but still only about 20%

of the historic maximum. See id. at JA-1, IND_0512708

(ASQ for Coos Bay, Eugene, and Salem of 130 million

board feet); JA-2, IND_0513027 (ASQ for Klamath

42a

Falls, Medford, and Roseburg of 75 million board feet);

JA-14, IND_0527316-17 (historic ASQs).

A decade after the northern spotted owl was

classified as a threatened species, President Clinton

introduced one more variable to O&C land management by creating the Cascade-Siskiyou National Monument. See Proclamation 7318, 65 Fed. Reg. 37,249,

37,250 (June 13, 2000). At its inception, the monument

included approximately 40,156 acres of O&C Act land

within its boundaries. See Fed. Defs.’ Cross-Mot.

Summ. J. (Case No. 17-280), Ex. 15 at 11 [Dkt. # 60-2].

And since its inception, “[t]he commercial harvest of

timber . . . [has been] prohibited,” within the monument, “except when part of an authorized sciencebased ecological restoration project.” See Proclamation

7318, 65 Fed. Reg. at 37,250.

On January 12, 2017, shortly before he left office,

President Obama issued Proclamation 9564, which

added approximately 47,660 more acres of O&C land

to the Cascade-Siskiyou National Monument. See

Proclamation 9564, 82 Fed. Reg. 6145 (Jan. 18, 2017);

Declaration of Theresa M. Hanley (“Hanley Decl.”)

¶ 8 (Case No. 17-280) [Dkt. # 57-1]. The addition

effectively doubled the O&C land that can no longer be

used for timber harvest because it falls within the

monument’s boundaries.

Plaintiffs in these suits contend that both the 2016

RMPs and Proclamation 9564 violate the O&C Act. In

their view, setting aside O&C land to limit timber

harvest—whether the set aside is called a reserve or

a monument—contravenes Congress’s mandate that

O&C land “shall be managed . . . for permanent forest

production, and the timber thereon shall be sold, cut,

and removed in conformity with the princip[le] of

sustained yield.” 43 U.S.C. § 2601.

43a

The Government disagrees, of course. It argues that

the O&C Act gives BLM discretion to set land aside in

reserves and that the 2016 RMPs reflect a reasonable

balancing of the agency’s obligations under the O&C

Act and the ESA. The Government further argues that

Proclamation 9564 is a valid exercise of power that

Congress delegated to the President through the

Antiquities Act, 54 U.S.C. § 320301. Intervenors in

Case Numbers 17-280 and 17-441 support the Government on the latter point.

Plaintiffs, the Government, and intervenors have

all moved or cross-moved for summary judgment. On

March 31, 2019, I remanded these cases to BLM

to provide additional explanation of how BLM has

reconciled and, going forward, intends to reconcile the

varied land management obligations imposed by the

O&C Act, the 2016 RMPs, and Proclamation 9564.

BLM has now filed its explanation, and accordingly,

the questions whether the 2016 RMPs and Proclamation 9564 violate the O&C Act are ripe for resolution.

ANALYSIS

I. The 2016 Resource Management Plans

Of this there can be no doubt: the 2016 RMPs violate

the O&C Act. When a “statute’s language is plain,”

courts must “enforce it according to its terms.”5 Lamie

5

The Government does not appear to dispute that plaintiffs

have standing to challenge the 2016 RMPs, and I conclude that

plaintiffs have indeed established standing. When companies

allege standing to challenge an agency action based on economic

harm,

[t]he . . . inquiry boils down to whether the plaintiff has

adequately demonstrated: (1) a substantial probability

that the challenged government action will cause a

decrease in the supply of raw material from a particu-

44a

v. U.S. Trustee, 540 U.S. 526, 534 (2004) (quoting

Hartford Underwriters Ins. Co. v. Union Planters Bank,

N. A., 530 U.S. 1, 6 (2000)). The O&C Act plainly requires

that timber grown on O&C land “be sold, cut, and

removed in conformity with the princip[le] of sustained

yield.” 43 U.S.C. § 2601. So the 2016 RMPs, which

prohibit the selling, cutting, and removing of timber in

conformity with the principle of sustained yield on

portions of O&C timberland, contravene the law.

This conclusion follows directly from the language

in the O&C Act and the 2016 RMPs. The Act imposes

two relevant, mandatory directives on BLM’s management of all O&C land that has “heretofore or may

hereafter be classified as timberlands, and power-site

lands valuable for timber.” 43 U.S.C. § 2601. That land

“shall be managed . . . for permanent forest production,

lar source; (2) a substantial probability that the

plaintiff manufacturer obtains raw material from that

source; and (3) a substantial probability that the

plaintiff will suffer some economic harm as a result of

the decrease in the supply of raw material from that

source.

Carpenters Indus. Council v. Zinke, 854 F.3d 1, 6 (D.C. Cir. 2017).

Plaintiffs here have submitted declarations establishing that

they obtain timber from BLM, that the 2016 RMPs affect the

volume of timber they are able to obtain, and that decreases in

the volume of timber they are able to obtain harm their

businesses. See Declaration of Commissioner Simon Hare (Case

No. 16-1599) [Dkt. # 29-2]; Declaration of Todd A. Payne (Case No.

16-1599) [Dkt. # 29-3]; Declaration of Sean M. Smith (Case No.

16-1599) [Dkt. # 29-4]; Declaration of Steven D. Swanson (Case

No. 16-1599) [Dkt. # 29-5]; Declaration of Robert T. Freres, Jr.

(Case No. 16-1599) [Dkt. # 29-6]; Declaration of Travis Joseph

(Case No. 16-1599) [Dkt. # 29-7]; Declaration of Timothy Freeman

(Case No. 16-1602) [Dkt. # 37-3]; Declaration of Sid Leiken (Case

No. 16-1602) [Dkt. # 37-4]; Declaration of Craig Pope (Case No.

16-1602) [Dkt. # 37-5].

45a

and the timber thereon shall be sold, cut, and removed

in conformity with the princip[le] of sustained yield.”

Id. (emphasis added). Use of the word “shall” in a

statutory directive to an agency “signals mandatory

action.” Nat. Res. Def. Council v. Reilly, 983 F.2d 259,

266 (D.C. Cir. 1993) (citing Her Majesty the Queen v.

USEPA, 912 F.2d 1525, 1533 (D.C.Cir.1990)). When

managing O&C timberland, then, BLM must ensure

that the land continues to produce timber. See

Headwaters, Inc. v. Bureau of Land Mgmt., 914 F.2d

1174, 1183 (9th Cir. 1990) (“There is no indication that

Congress intended ‘forest’ to mean anything beyond an

aggregation of timber resources.”). And BLM must

ensure that the timber produced on O&C land is sold,

cut, and removed in conformity with the principle of

sustained yield. These are mandatory directives from

Congress.

The 2016 RMPs violate these mandatory directives

by excluding portions of O&C timberland from sustained

yield timber harvest. In the RMPs, BLM looked only

to the 498,597-acre harvest land base to calculate

the ASQ. See AR at JA-1, IND_0512707-10; JA-1,

IND_0512745;

JA-2,

IND_0513027-29;

JA-2,

IND_0513065. These 498,597 acres amount to about

20% of the land governed by the 2016 RMPs. See id.

Much of remaining land is set aside in various

reserves. See id. And some of the land placed into

reserves can indisputably be characterized as timberland.

See id. at JA-46, IND_0514442 (listing “Block Forest

Reserve[s]” among the areas where sustained-yield

timber harvest is prohibited); JA-46, IND_0514702

(explaining that “[t]he size of the Harvest Land Base

is dependent on . . . the size of the Late-Successional

Reserve”). But within the reserves, timber harvest is

permitted for only limited purposes and is not

performed on a sustained yield basis. See id. at JA-46,

46a

IND_0514339. In the 2016 RMPs, BLM explains, “the

term ‘reserve’ indicates that the BLM or Congress have

reserved lands within the allocation from sustainedyield timber production. These reserve land use allocations . . . are in contrast to the Harvest Land Base,

which includes management objectives for sustainedyield timber production.” Id. This decision to reserve

timberland from sustained yield timber production

cannot be squared, however, with the O&C Act’s

mandates: all land “classified as timberlands” must “be

managed . . . for permanent forest production,” and

that the timber produced on that land must “be sold,

cut, and removed in conformity with the princip[le] of

sustained yield.” 43 U.S.C. § 2601.

The Government raises two arguments in response.

It argues first that the O&C Act grants BLM discretion

in managing O&C land and second that the 2016

RMPs reasonably harmonize the agency’s competing

obligations under the O&C Act and section 7(a)(2) of

the ESA. See 16 U.S.C. § 1531(b).

The Government’s first point is true so far as it goes.

BLM does have some discretion when managing O&C

land. Indeed, this Court has recognized that “BLM has

discretion as to establishing the ASQ, selecting the

timberlands, pricing the sale (at ‘reasonable prices on

a normal market’), scheduling the sale, and even

rejecting bids.” Swanson Grp. Mfg. LLC v. Salazar, 951

F. Supp. 2d 75, 82 (D.D.C. 2013), vacated on other

grounds sub nom. Swanson Grp. Mfg. LLC v. Jewell,

790 F.3d 235 (D.C. Cir. 2015). The Ninth Circuit drew

a similar conclusion, holding, “the [O&C] Act has not

deprived . . . BLM of all discretion with regard to either

the volume requirements of the Act or the management of the lands entrusted to its care.” Portland

Audubon Soc. v. Babbitt, 998 F.2d 705, 709 (9th Cir. 1993).

47a

But even where an agency has discretion, courts

must “ensure that the [agency] . . . does not violate the

statutory limitations on [that] discretion.” Cont’l Air

Lines, Inc. v. C. A. B., 522 F.2d 107, 116 (D.C. Cir. 1974).

The mandatory directives in the O&C Act constitute

clear congressionally imposed bounds on the discretion

the statute otherwise imparts. See Gillan v. Winter, 474

F.3d 813, 818 (D.C. Cir. 2007) (“[T]he word ‘shall’ limits

the Secretary’s discretion . . . .”). Accordingly, when

exercising its discretion, BLM must do so in a way that

ensures that O&C timberland is managed “for

permanent forest production,” and that the timber on

that land is “sold, cut, and removed in conformity with

the princip[le] of sustained yield.” 43 U.S.C. § 2601.

The 2016 RMPs violate these mandates. As such, they

are unlawful—notwithstanding BLM’s discretion to

make management decisions about O&C land within

the statutorily imposed limits.

The Government’s argument about section 7(a)(2) of

the ESA fails for a similar reason. The Government

may be correct that BLM “must fulfill conservation

duties imposed by other statutes,” Seattle Audubon

Soc. v. Lyons, 871 F. Supp. 1291, 1314 (W.D. Wash.

1994), when exercising its discretion under the O&C

Act. But the Supreme Court itself has made clear that

section 7(a)(2) of the ESA does not alter mandatory

duties imposed on agencies by statute. In National

Association of Home Builders v. Defenders of Wildlife,

the Court rejected a “reading of § 7(a)(2) [that] would

. . . abrogate [a] statutory mandate” in the Clean Water

Act. 551 U.S. 644, 664 (2007). After applying Chevron

deference to an implementing regulation,6 the Court

held that “§ 7(a)(2)’s no-jeopardy duty covers only

6

The regulation to which the Supreme Court deferred remains

in effect. See Home Builders, 551 U.S. at 669; 50 C.F.R. § 402.03.

48a

discretionary agency actions and does not attach to

actions . . . that an agency is required by statute to

undertake once certain specified triggering events

have occurred.”7 Id. at 669. The O&C Act’s timber

harvest mandates fall into the latter category: once

O&C land is classified as timberland, BLM is required

to harvest the timberland pursuant to sustained yield

principles. See 43 U.S.C. § 2601. According to Home

Builders, then, BLM cannot justify a refusal to abide

by those statutory commands by pointing to section 7

of the ESA. “[Section] 7(a)(2)’s no-jeopardy duty” simply

“does not attach” to such non-discretionary mandates.

Home Builders, 551 U .S. at 669.

This Court must, therefore, conclude that the 2016

RMPs violate the O&C Act by setting aside timberland

in reserves where the land is not managed for

permanent forest production and the timber is not

sold, cut, and removed in conformity with

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