Amicus Curiae Brief — Murphy Company, et al., Petitioners v. Joseph R. Biden, Jr., President of the United States, et al.

No. 23-525

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In The

Supreme Court of the United States

---------------------------------♦--------------------------------MURPHY COMPANY, et al.,

Petitioners,

v.

JOSEPH R. BIDEN, JR., et al.,

Respondents.

---------------------------------♦--------------------------------On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

---------------------------------♦--------------------------------BRIEF OF PUBLIC LANDS COUNCIL AND

NATIONAL CATTLEMEN’S BEEF ASSOCIATION

AS AMICI CURIAE IN SUPPORT OF PETITIONERS

---------------------------------♦--------------------------------JESSIE BARRINGTON

Counsel of Record

AARON BRUNER

DEREK GAUTHIER

WESTERN RESOURCES

LEGAL CENTER

9220 SW Barbur Blvd.,

Suite 119 #327

Portland, OR 97219

(503) 768-8500

JBarrington@wrlegal.org

Counsel for Amici Curiae

================================================================================================================

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

QUESTION PRESENTED

Whether the Antiquities Act authorizes the

President to declare federal lands part of a national

monument where a separate federal statute reserves

those specific federal lands for a specific purpose that

is incompatible with national-monument status.

ii

TABLE OF CONTENTS

Page

IDENTITY AND INTEREST OF

AMICI CURIAE................................................

1

SUMMARY OF ARGUMENT ..............................

3

ARGUMENT ........................................................

5

I.

THE LOWER COURT’S HOLDING EFFECTIVELY ALLOWS A PRESIDENT TO

OVERRIDE CONGRESSIONAL DIRECTION FOR PUBLIC LAND .......................

5

II.

A GATEWAY TO PRESIDENTIAL NULLIFICATION OF PUBLIC LAND USE,

BYPASSING CONGRESSIONAL INTENT ......................................................... 11

III.

PIVOTAL BATTLE AGAINST EXECUTIVE OVERREACH IN THE FACE OF

LEGISLATIVE SILENCE ......................... 14

IV.

“NO TOUCH” RESERVES CONFLICT

WITH THE TEXT AND PURPOSE OF

THE O&C ACT .......................................... 17

V.

IMPLICATIONS FOR AGENCY OVERREACH IN PUBLIC LANDS MANAGEMENT ........................................................ 21

CONCLUSION..................................................... 26

iii

TABLE OF AUTHORITIES

Page

CASES

Am. Forest Res. Council v. Hammond, 422

F. Supp. 3d 184 (D.D.C. 2019) .................................16

Am. Forest Res. Council v. United States, 77

F.4th 787 (D.C. Cir. 2023) .................................. 1, 3, 4

Babbitt v. Sweet Home Chapter of Cmtys. for a

Great Or., 515 U.S. 687 (1995) ................................25

Bond v. United States, 564 U.S. 211 (2011) ................10

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

Inc., 419 U.S. 281 (1974)..........................................20

Chevron, U.S.A., Inc. v. NRDC, Inc., 467 U.S. 837

(1984) .......................................................................15

Cleveland v. United States, 329 U.S. 14 (1946) ..........16

Clinton v. City of New York, 524 U.S. 417 (1998)..... 8, 13

DOT v. Pub. Citizen, 541 U.S. 752 (2004) ...................20

FDA v. Brown & Williamson Tobacco Corp., 529

U.S. 120 (2000) ........................................................22

Headwaters, Inc. v. Bureau of Land Mgmt., 914

F.2d 1174 (9th Cir. 1990) ....................................... 7, 8

INS v. Chadha, 462 U.S. 919 (1983) ...........................17

Marbury v. Madison, 5 U.S. (1 Cranch) 137

(1803) ................................................................. 13, 14

Mass. Lobstermen’s Ass’n v. Raimondo, 141

S. Ct. 979 (2021) ........................................................6

Mistretta v. United States, 488 U.S. 361 (1989) .........15

iv

TABLE OF AUTHORITIES—Continued

Page

Murphy Co. v. Biden, 65 F.4th 1122 (9th Cir.

2023) ............................................................ 1, 3, 6, 23

Nat’l Ass’n of Home Builders v. Defs. of Wildlife,

551 U.S. 644 (2007) .................................................19

O’Neal v. United States, 814 F.2d 1285 (9th Cir.

1987) ...................................................................... 7, 8

Pa. Coal Co. v. Mahon, 260 U.S. 393 (1922) ...............10

Perez-Guzman v. Lynch, 835 F.3d 1066 (9th Cir.

2016) ........................................................................16

Radzanower v. Touche Ross & Co., 426 U.S. 148

(1976) .......................................................................16

Sackett v. EPA, 598 U.S. 651 (2023) ...........................22

Util. Air Regul. Grp. v. EPA, 573 U.S. 302 (2014) ........9

West Virginia v. EPA, 142 S. Ct. 2587 (2022) ......... 6, 22

Youngstown Sheet & Tube Co. v. Sawyer, 343

U.S. 579 (1952) .................................................... 6, 12

CONSTITUTIONAL PROVISIONS

U.S. Const. art. IV, § 3, cl. 2 ........................................21

STATUTES

16 U.S.C. §§ 473 et seq. ...............................................22

16 U.S.C. § 528 ............................................................22

16 U.S.C. § 1433(b) ......................................................11

16 U.S.C. §§ 1600 et seq. .............................................22

v

TABLE OF AUTHORITIES—Continued

Page

30 U.S.C. §§ 21 et seq. .................................................22

30 U.S.C. § 612 ............................................................22

43 U.S.C. §§ 315 et seq. ...............................................22

43 U.S.C. § 1701 .................................................... 21, 23

43 U.S.C. § 1702 .............................................. 21, 23, 24

43 U.S.C. § 1712 .................................................... 23, 24

43 U.S.C. § 1732(b) ......................................................23

43 U.S.C. §§ 2601 et seq. ............................... 7, 8, 18, 19

43 U.S.C. § 2602 ..........................................................19

43 U.S.C. § 2603 ..........................................................19

43 U.S.C. § 2604 .................................................... 19, 20

43 U.S.C. § 2605 ..........................................................18

54 U.S.C. §§ 100101 et seq. .........................................11

54 U.S.C. § 320301 ......................................................11

OTHER AUTHORITIES

65 Fed. Reg. 37,249–50 (Jun. 9, 2000) ..........................7

82 Fed. Reg. 6,145 (Jan. 12, 2017) ................................7

Alexander Hamilton, The Federalist No. 78

(1788) .......................................................................16

Bureau of Land Mgmt., Proposed Rule,

Conservation and Landscape Health, 88 Fed.

Reg. 19,583 (Apr. 3, 2023) .......................................24

vi

TABLE OF AUTHORITIES—Continued

Page

Bureau of Land Mgmt., Socioeconomic Impact

Report 2022 .............................................................25

CRS Rep. R42951, The Oregon and California

Railroad Lands (O&C Lands): in Brief (May

25, 2023) ...................................................................18

Dept. of Interior, Nat. Park Serv., R. Lee, The

Antiquities Act of 1906 (1970) ................................11

Maher, A., Ashwell, N., Maczko, K., Taylor, D.,

Tanaka, J., & Reeves, M. (2021), An economic

evaluation of federal and private grazing land

ecosystem services supported by beef cattle

ranching in the United States, Translational

Animal Science ........................................................25

Solicitor Memorandum, M-37078, National

Wildlife Refuge Land Exchanges (May 31,

2023) ........................................................................24

U.S. Dept. of the Interior, BLM, O&C Sustained

Yield Act: the Land, the Law, the Legacy

(1937-1987) .............................................................18

1

IDENTITY AND INTEREST OF AMICI CURIAE

Under Supreme Court Rule 37, the Public Lands

Council (“PLC”) and the National Cattlemen’s Beef Association (“NCBA”), submit this amicus brief supporting the Petitioners in Am. Forest Res. Council v. United

States, 77 F.4th 787 (D.C. Cir. 2023) and Murphy Co. v.

Biden, 65 F.4th 1122 (9th Cir. 2023).1

PLC and NCBA, representing stakeholders in the

ranching and agricultural sectors, assert a direct interest in the outcome of these cases. Their concern centers

on the legal implications of presidential powers to designate extensive tracts of public lands as national

monuments. This concern is highlighted by the expansion of the Cascade-Siskiyou National Monument, indicative of executive overreach under the Antiquities

Act. This act of expansion of an already existing national monument poses significant risks to the economic well-being of PLC and NCBA members who rely

on access to federal lands for their livelihoods. The

amici advocate for the establishment of a reliable and

equitable regulatory environment that supports the

continuous operation of ranches on both private and

public lands.

1

Pursuant to this Court’s Rule 37.2, counsel of record for all

listed parties received notice at least 10 days prior to the due date

of the Amici Curiae’s intention to file this brief. Pursuant to Rule

37.6, Amici Curiae affirms that no counsel for any party authored

this brief in whole or in part, and no counsel or party made a monetary contribution intended to fund the preparation or submission

of this brief.

2

PLC advocates for ranchers who use public lands

and strive to conserve the natural resources and heritage of the Western United States. As a Colorado nonprofit corporation, PLC’s membership includes a broad

spectrum of state and national cattle, sheep, and grassland associations, as well as individual ranchers who

collectively own approximately 120 million acres of

productive private land in the West. These members

are also responsible for managing extensive public

land and national forest areas through grazing allotments secured via permits and leases from federal

agencies such as the Bureau of Land Management and

the U.S. Forest Service, with a notable presence in

Oregon.

Similarly, NCBA serves cattle producers of varying scales across all states. This Colorado nonprofit organization counts around 30,000 direct members and,

via affiliated associations, represents close to 140,000

producers. Many members hold permits and leases for

livestock grazing on federal lands, including those in

Oregon.

The legal ramifications of these two cases are of

great significance to PLC and NCBA members, with

the potential to set a precedent on the presidential

authority to unilaterally designate vast public lands

as national monuments. Such a legal precedent has

the capacity to shift the dynamics of land use and management in the country, with direct consequences for

the economic and operational practices of PLC and

NCBA members. These individuals and entities, firmly

established in the ranching and farming industries,

3

maintain a strong interest in ensuring that executive

decisions, like the expansion of national monuments,

are judiciously balanced and consider the varied interests and rights of land users. The participation of PLC

and NCBA in these cases underlines their dedication

to protecting the interests of their members and to promoting the responsible use of public lands, thereby

highlighting the significance of these legal challenges

in determining the future of federal land management

and property rights in America.

---------------------------------♦---------------------------------

SUMMARY OF ARGUMENT

In the cases of Am. Forest Res. Council, 77 F.4th

787 and Murphy Co., 65 F.4th 1122, the Supreme Court

is positioned to address a pivotal conflict between legislative directives and environmental conservation efforts. This tension is exemplified by the interaction

between the Oregon and California Railroad Revested

Lands Act of 1937 (“O&C Act”) and the expansive application of the Antiquities Act to countermand timber

production and other uses for O&C Act lands. The

broader concern is whether the Antiquities Act and

other environmental statutes, like the Endangered

Species Act (“ESA”) and the Clean Water Act (“CWA”),

are being applied too broadly, encroaching on existing

direction of more specific laws, like the O&C Act.

4

A crucial point of contention in both cases is the

expansion of the Cascade-Siskiyou National Monument, which epitomizes executive overreach and raises

substantial constitutional questions, particularly concerning the erosion of the separation of powers. In Am.

Forest Res. Council, Plaintiffs also dispute the Bureau

of Land Management’s (“BLM”) 2016 Resource Management Plans (“RMPs”) for O&C lands, which prioritize species preservation over the O&C Act’s directive

to manage such lands for permanent timber production. This questions the congruence of government actions with Congressional intent and the degree of

power granted to executive agencies, especially concerning the reservation of extensive O&C land areas

for conservation.

At the heart of these legal battles is the necessity

to apply the Antiquities Act and other environmental

laws in a way that respects the original intent of Congress. The Supreme Court’s role in these cases is crucial for understanding the limits of executive power

under laws like the Antiquities Act.

The challenges from groups like the American

Forest Resource Council, Murphy Company, and others against the expansion of the Cascade-Siskiyou

National Monument highlight a deep conflict. The

increasing use of the Antiquities Act to create large

national monuments, often against local preferences,

brings into focus concerns about the President overstepping their authority. The Supreme Court’s review

is essential to prevent this overreach and to maintain

the balance of power as established in the

5

Constitution. The outcomes of these cases will significantly influence how power is divided within the federal government and will shape the future of

environmental and natural resource law in the United

States.

---------------------------------♦---------------------------------

ARGUMENT

I.

THE LOWER COURT’S HOLDING EFFECTIVELY ALLOWS A PRESIDENT TO OVERRIDE CONGRESSIONAL DIRECTION FOR

PUBLIC LAND

The Antiquities Act does not serve as carte blanche

for the President to unilaterally negate existing federal land designations. This Court’s review will resolve

escalating tension between the expansive application

of the Antiquities Act and the specific mandates of

dominant use statutes, particularly the O&C Act.2 This

2

While these cases primarily deal with the tension between

the Antiquities Act and the O&C Act, it is important to note that

other dominant use statutes are also implicated in the broader

context of this legal analysis. These include the Mineral Leasing

Act of 1920, which governs the leasing of public lands for mineral

development; the Federal Land Policy and Management Act of

1976, which sets out the procedures for managing public lands;

the Multiple Use-Sustained Yield Act of 1960, which mandates

that national forests be managed for multiple uses and sustained

yields of products and services; the Taylor Grazing Act of 1934,

which provides for the regulation of grazing on public rangelands

to improve rangeland conditions; the Outer Continental Shelf

Lands Act of 1953, which governs the activities on the outer continental shelf of the United States; and the Geothermal Steam Act

6

clash presents a unique opportunity for the Court to

reaffirm the separation of powers doctrine, a fundamental principle of American constitutional governance. Resolution of this specific legal conflict will also

help clarify the boundaries of executive authority in

public lands management, which has significant national and regional implications for public land users.

See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S.

579 (1952) (limiting executive power in matters of national importance).

The turn of the millennium marked a noticeable

increase in monument designations under the Antiquities Act.3 This trend, coupled with legal challenges

that follow such designations, underscores the urgency

of an opinion from this Court clarifying that the President has no authority to override Congressional land

management decisions. This Court noted the severity

of executive overreach in designating monuments in

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

(2021) (statement of Roberts, C.J.). See also Murphy Co.

v. Biden, 65 F.4th 1122, 1138 (9th Cir. 2023) (Tallman,

J., dissenting). Those observations reinforce the need

for this Court’s intervention. To that end, this Court

should assess the Antiquities Act’s application with

scrutiny like that applied in West Virginia v. EPA, 142

S. Ct. 2587 (2022).

of 1970, which governs the leasing of public lands for geothermal

steam and associated geothermal resources.

3

Since 2000, the President has enlarged eight national

monuments and has created fifty-nine. See https://www.nps.gov/

subjects/archeology/national-monument-facts-and-figures.htm.

7

The Cascade-Siskiyou National Monument was

originally established in 2000 under Proclamation

7318. 65 Fed. Reg. 37,249–50 (Jun. 9, 2000). Proclamation 7318 reserved the lands for the primary purpose

of protecting the area’s “spectacular biological diversity” and prohibited use of the lands for various resource development purposes, including timber

harvest and mining. Id. The reservation also directed

the Secretary of the Interior to study livestock grazing

and phase out grazing permits within the monument’s

boundaries where incompatible with its purposes. In

2017, the monument was expanded via Proclamation

9564, to be managed largely “under the same laws and

regulations that apply to the rest of the monument.”

82 Fed. Reg. 6,145 (Jan. 12, 2017).

The expansion, occurring just eight days before

President Obama’s term expired, presents significant

issues of statutory interpretation and constitutional

concerns of executive overreach. The monument includes lands governed by the O&C Act, 43 U.S.C.

§§ 2601 et seq., lands intended mainly “for timber production to be managed in conformity with the provision of sustained yield.” O’Neal v. United States, 814

F.2d 1285, 1287 (9th Cir. 1987) (per curiam). The O&C

Act “envisions timber production as a dominant use.”

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

1174, 1184 (9th Cir. 1990). Proclamation 9564 prohibits both timber production and the use of such lands as

part of the sustained yield calculation for O&C lands.

82 Fed. Reg. 6,145. This conflict between the monument designation and the mandates of the O&C Act

8

upends Congress’s intention for such lands to be used

for sustained-yield timber production and other compatible resource uses, such as livestock grazing, to provide revenue for local communities. See 43 U.S.C.

§ 2601. Similar to Clinton v. City of New York, 524 U.S.

417 (1998), expansion of the monument exhibits executive overreach given the President’s act directly contradicts the statutory directives of the O&C Act.

The O&C Act, a state-specific statute, mandates

sustained-yield timber production and revenue-sharing with local communities. 43 U.S.C. § 2601. Through

the O&C Act, Congress identified a strong public interest in providing for sustained-yield timber harvest on

O&C lands. Congress mandated that O&C lands designated as timberlands “shall be managed . . . for permanent forest production,” 43 U.S.C. § 2601, and the

Ninth Circuit characterized sustained-yield timber

production as the “dominant use” of timberlands under

the O&C Act. Headwaters, Inc., 914 F.2d at 1184; see

also O’Neal, 814 F.2d at 1287 (per curiam) (“[T]imber

production to be managed in conformity with the provision of sustained yield.”). Despite this mandate, Proclamation 9564 prohibits commercial timber harvest on

these lands countermanding the O&C Act. The direct

conflict between Proclamation 9564 and the O&C Act’s

mandate presents this Court with a distinct chance

to determine the extent to which executive discretion

can supersede the explicit provisions of statutory language.

Executive actions that overstep clear statutory

guidelines are a definitive case of executive overreach.

9

In 2014, the Court made clear that agencies “may not

rewrite clear statutory terms to suit [their] own sense

of how the statute should operate.” Util. Air Regul. Grp.

v. EPA, 573 U.S. 302, 328 (2014). That case considered

whether the Environmental Protection Agency (“EPA”)

had authority to regulate greenhouse emissions of

smaller stationary sources under the Clean Air Act,

such as shopping centers, apartment buildings, and

schools. Id. at 311, 328. The Court’s decision confirmed

that EPA exceeded its jurisdiction by neglecting the

specific limits set by Congress. Such actions by agencies were criticized as they compromise the foundational principle of separation of powers. The Court

recognized that the purported authority of the EPA

could disrupt the constitutional balance of powers,

wherein the legislative body is tasked with creating

laws, and the executive, often through its agencies, is

entrusted with their faithful execution. Id. That case

demonstrates that extending monument designations

beyond what is stipulated by the Antiquities Act represents a similar trend of executive overreach.

The issues presented in the cases at hand transcend abstract debates on the bounds of executive authority; the designation made under Proclamation

9564 carries weighty and escalating socio-economic

consequences for the affected localities. The tangible

economic effects of limiting land use, for instance, by

barring timber harvesting through the Antiquities Act,

will profoundly impact communities that have relied

on such activities, formerly safeguarded by federal

laws. The O&C Act’s revenue-sharing model is an

10

economic lifeline for many localities in the region.

Overlooking these impacts, the sweeping application of

the Antiquities Act risks the long-term economic wellbeing of these communities. Judicial review and the establishment of boundaries will produce a predictable

application of the Antiquities Act that respects both

environmental and economic needs.

Extensive application of the Antiquities Act, especially in areas regulated by dominant use statutes

such as the O&C Act, inverts the principles of our Constitution, transforming our Republic from a system

grounded in laws to one dictated by individual discretion. See Bond v. United States, 564 U.S. 211, 222–23

(2011). As Justice Holmes once noted, “We are in danger of forgetting that a strong public desire to improve

the public condition is not enough to warrant achieving

the desire by a shorter cut than the constitutional way

of paying for the change.” Pa. Coal Co. v. Mahon, 260

U.S. 393, 416 (1922).

The Supreme Court’s clarification on the scope of

executive authority under the Antiquities Act and reaffirmation of the separation of powers principle is

crucial. The Court’s decision will establish a vital precedent for public land management and the balance of

power between the executive and legislative branches,

guiding future policy development in a direction that

benefits both the environment and society.

11

II.

A GATEWAY TO PRESIDENTIAL NULLIFICATION OF PUBLIC LAND USE, BYPASSING CONGRESSIONAL INTENT

The Antiquities Act, established in response to

looting of Pueblo ruins in the Southwest, grants Presidents the discretion to designate national monuments

on federal lands to preserve historical or scientific

objects. Dept. of Interior, Nat. Park Serv., R. Lee, The

Antiquities Act of 1906, at 33, 48 (1970); 54 U.S.C.

§ 320301(a). This Act, however, represents a markedly

distinct approach to land and marine conservation

compared to other legislative measures. Unlike the

National Marine Sanctuaries Act, which requires comprehensive consultations and evaluations for establishing marine sanctuaries, 16 U.S.C. § 1433(b), or the

creation of National Parks, which needs explicit Congressional authorization, 54 U.S.C. § 100101 et seq., the

Antiquities Act vests unilateral discretion in the President.

This discretion is cabined by the Antiquities Act’s

requirement that the land designated as a national

monument must be limited to the smallest area necessary to protect the objects of interest. Id. § 320301(b).

Despite this stipulation, the Antiquities Act has increasingly been used to protect expansive, often

vaguely defined areas, creating significant concerns

about presidential overreach, undermining the Antiquities Act’s original intent and threatening the separation of powers. This trend justifies Supreme Court

intervention to ensure adherence to the Antiquities

Act’s original intent and uphold separation of powers

12

principles, as delineated in Youngstown Sheet & Tube

Co., 343 U.S. 579, which emphasized the necessity of

Congressional authorization in curbing executive

power.

Proclamation 9564 stands in stark opposition to

the objectives of the O&C Act. It imposes new restrictions on lands earmarked by Congress for timber

production, thereby ceasing commercial timber harvesting and sustainable yield assessments in these areas. This action effectively removes these lands from

the collective pool of timberlands intended to adhere to

the O&C Act’s mandates. This not only neglects the

legislative purpose of the O&C Act, which is to ensure

consistent yield calculations across all designated timberlands, but also represents an encroachment of executive power.

The discord between the O&C Act and Proclamation 9564 is unmistakable. The O&C Act mandates a

continuous yield of timber, yet Proclamation 9564 removes O&C timberlands within the monument boundaries from this requirement. While the Antiquities

Act allows the President broad leeway to create national monuments, this latitude does not include the

authority to override or suspend federal statutes. By

explicitly barring sustained yield calculations, the

proclamation mandates the Secretary of the Interior to

ignore statutory responsibilities under the O&C Act,

which are crucial for the continued provision of timber

to communities that economically rely on it.

13

The obligation of the Secretary to conduct sustained yield analyses for all O&C lands, as required by

the O&C Act, is not a matter left to executive discretion

but a specific statutory duty. As established in Marbury v. Madison, such responsibilities are ministerial

and must be executed in accordance with the law, irrespective of executive decrees. Marbury v. Madison, 5

U.S. (1 Cranch) 137 (1803). The Constitution further

directs the President to ensure that the laws are faithfully executed, a duty that includes adhering to and

enforcing statutory requirements like those set forth

in the O&C Act. Rather than execute the law as intended, this Proclamation effectively amends it.

This situation mirrors executive overreach as addressed in Clinton v. City of New York, where this

Court invalidated the line-item veto as an unconstitutional expansion of executive power. Clinton, 524 U.S.

at 445–47. In both instances, the executive branch canceled a duly enacted statute, violating the principles

of separation of powers and the checks and balances

system integral to our constitutional framework. The

Court in Clinton held that “ ‘[r]epeal of statutes, no less

than enactment, must conform with Art. I.’ There is no

provision in the Constitution that authorizes the President to enact, to amend, or to repeal statutes.” Id. at

438 (internal citation omitted). Proclamation 9564, by

overriding statutory requirements of the O&C Act, is

simply a unilateral amendment to an existing statute.

The D.C. District Court recognized the Proclamation’s

conflict with the O&C Act as ultra vires. Yet the D.C.

Circuit’s reversal, proposing harmonization, effectively

14

sidesteps the critical constitutional issue at the core of

this designation. The interpretation by the D.C. Circuit

suggests that the Antiquities Act grants an executive

officer the authority to disregard responsibilities imposed by another act of Congress, a concept that this

Court disavowed in Marbury v. Madison. The precedent set by Marbury is that executive measures cannot

supersede obligations that are legally mandated. Id. at

138–39 (“The President cannot authorize a secretary

. . . to neglect the execution of duties mandated by

law.”).

The Court’s review has important implications beyond the scope of the Antiquities Act and the O&C Act.

Review of this decision will instruct lower courts on the

interpretation and application of executive power in

the context of land management and beyond, ensuring

that presidential actions remain within the bounds of

Congressional and constitutional mandates.

III. PIVOTAL BATTLE AGAINST EXECUTIVE

OVERREACH IN THE FACE OF LEGISLATIVE SILENCE

The Supreme Court’s interpretation of the Antiquities Act, juxtaposed against the O&C Act, is key,

particularly considering the perils of courts interpreting Congressional silence. The D.C. Circuit’s decision

to harmonize these two statutes, despite their apparent conflict, creates dangerous precedent for other

Congressional land management mandates. This interpretive approach signals endorsement of executive

15

overreach by default, which this Court cautioned

against in decisions like Chevron, U.S.A., Inc. v. NRDC,

Inc., 467 U.S. 837 (1984).

The historical importance of the separation of

powers warrants Supreme Court scrutiny when executive actions under the Antiquities Act conflict with explicit legislative directives, like those in the O&C Act.

Heightened in an era of noticeable executive overreach, the issue is ripe for review. Maintaining the separation of powers, as reinforced in Mistretta v. United

States, 488 U.S. 361 (1989), helps prevent any branch

from gaining undue control or undercutting the authority of another coequal branch. The Supreme

Court’s intervention in this conflict is crucial to demarcate the limits of executive authority and preserve the

integrity of our constitutional framework.

When legislative texts are ambiguous or silent, the

Supreme Court’s role in interpretation is essential.

Congressional silence should not be interpreted as

carte blanche for executive discretion, especially when

it results in conflicts with other legislative mandates.

The judiciary’s responsibility in interpreting these ambiguities is central to upholding the legislative structure and intent, thereby ensuring the constitutional

system’s balance. Here the executive branch, via the

Antiquities Act, invades the legislative domain, specifically in terms of land management as directed by Congress in the O&C Act.

The interpretation by the D.C. Circuit Court, equating Congressional silence to an implicit endorsement

16

of unrestricted Presidential authority under the Antiquities Act, is inconsistent with several fundamental

canons of statutory construction. The legal maxim of

generalia specialibus non derogant dictates that specific statutory provisions override more general ones.

This legal tenet, as highlighted in Perez-Guzman v.

Lynch, 835 F.3d 1066 (9th Cir. 2016), and by Judge

Richard Leon in Am. Forest Res. Council v. Hammond,

422 F. Supp. 3d 184, 192 (D.D.C. 2019), suggests that

the Antiquities Act, being less specific, does not negate

the mandates of the more specific O&C Act. Additionally, the doctrine that later statutes generally supersede earlier ones further supports the precedence of

the O&C Act, both more recent and more specific than

the Antiquities Act. Radzanower v. Touche Ross & Co.,

426 U.S. 148, 153–54 (1976).

The stance of the D.C. Circuit Court starkly contrasts with fundamental constitutional principles and

misinterprets the role of courts within our tripartite

system of government. As Alexander Hamilton explained in The Federalist No. 78, the Judiciary’s duty

is not to defer to potential legislative action but to

actively check unlawful executive actions. Deducing

Congressional intent from inaction, a concern echoed

in Cleveland v. United States, 329 U.S. 14 (1946), calls

for judicial intervention to uphold the rule of law and

respect the explicit text of statutes such as the O&C

Act.

A decision by this Court in these cases will set a

crucial precedent that affects the administration of

public lands and the delineation of authority between

17

the executive and legislative branches. The Court’s decision will clarify the constitutional tenets applicable

to public land governance. It will not only define the

boundaries of the Antiquities Act but also fortify the

principle of separation of powers, affirming that executive measures are meant to implement, not establish,

policy. The significance of this case transcends land administration, bearing upon the very pillars of our republic’s governance.

The unchecked actions of the executive branch

have produced a conflict that is systematically weakening the legislative branch’s authority, thereby disrupting the constitutional balance of power. Such a

scenario, warned against in INS v. Chadha, 462 U.S.

919 (1983), where the Court invalidated a legislative

veto as unconstitutional, could disrupt the constitutional framework. The Supreme Court’s decision here

will influence not just the interpretation of the Antiquities Act but also broader constitutional law and governance. It is imperative that this Court endorse a

balanced approach that honors both the letter and

spirit of our laws, thereby preserving the fundamental

tenets of our constitutional democracy.

IV. “NO TOUCH” RESERVES CONFLICT WITH

THE TEXT AND PURPOSE OF THE O&C

ACT

The O&C Act requires that timberland subject to

the act be managed for “permanent forest production”

and that timber be sold, cut, and removed according to

18

the principle of “sustained yield.” 43 U.S.C. § 2601. The

O&C Act directs the Secretary of the Interior to declare

the “annual productive capacity” of O&C timberland

and offer timber commensurate with that capacity for

sale each year. Id. Along with providing for “a permanent source of timber supply,” the O&C Act recognizes

other purposes served by forest production on O&C

lands, including “protecting watersheds, regulating

stream flow, and contributing to the economic stability

of local communities and industries, and providing recreational facilities.” Id.

Economic development for local community stability is the driving purpose of the O&C Act—meant to

benefit those areas of western Oregon with large

amounts of land in federal management and subject to

additional constraints due to the complex checkerboard of public, private, and state land ownership of

the area.4 Together with mandating permanent forest

production on lands governed by the O&C Act, it also

provides for payments to O&C counties to compensate

for counties that had lost some of their tax base.5

To fulfill this primary purpose, the O&C Act sets a

minimum harvest of 500 million board feet or the

4

U.S. Dept. 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 (discussing re-vestment

of former Oregon and California Railroad lands to federal government).

5

See id. § 2605; CRS Rep. R42951, The Oregon and California Railroad Lands (O&C Lands): in Brief, at 4–7 (May 25, 2023),

available at: https://crsreports.congress.gov/product/pdf/R/R42951.

19

annual sustained yield capacity. Id. To the fullest extent such timber will be sold, BLM must meet these

targets—full stop. Id. Many other unique tools are provided to the Secretary of the Interior to manage O&C

lands, including authority to enter into cooperative forest management agreements among diverse landholders; offer grazing leases where compatible with O&C

purposes; and engage in consultation and collaborative

agreements for wildfire protection purposes among

federal, state, and local governments. Id. §§ 2602–03.

Nowhere in the statute did Congress provide any

substantive direction in considering effects on water

quality or flow, or on species listed under the ESA,

when determining productive capacity. Rather, the

O&C Act merely authorizes the Secretary of the Interior to issue rules and regulations to carry out the purposes of the O&C Act. Id. § 2604. To the extent the

government relies on either “past practice” or other

sources of authority to devote O&C Act lands to conservation purposes, such as the ESA or CWA, this

Court has emphasized that such duties do not apply

when, as here, an agency is required by statute to undertake a particular action. Nat’l Ass’n of Home Builders v. Defs. of Wildlife, 551 U.S. 644, 669 (2007).

Considering this context, it becomes evident that

BLM’s 2016 RMPs conflict with both the letter and the

spirit of the O&C Act. The RMPs effectively restrict

sustained yield management on almost 80% of BLM

lands and BLM anticipates a sustained yield harvest

of just 205 million board feet from the remaining areas.

This approach contradicts the O&C Act, as the Act does

20

not authorize the creation of areas that are completely

exempt from resource management or harvesting. The

O&C Act specifically addresses the subdivision of O&C

lands in a limited context, stating only as follows:

If the Secretary of the Interior determines

that such action will facilitate sustained-yield

management, he may subdivide such revested

lands into sustained-yield forest units, the

boundary lines of which shall be so established that a forest unit will provide, insofar

as practicable, a permanent source of raw materials for the support of dependent communities and local industries of the region. . . .

43 U.S.C. § 2604. Subdivisions for the purpose of ESA

species protection or other environmental purposes do

not fulfill the primary purpose of the O&C Act of

providing a permanent source of raw materials that

support dependent communities and industry in western Oregon.

Thus, the establishment of such vast “no touch” reserves by the 2016 RMPs contradicts the clear text of

the O&C Act. Lacking any basis in sustained yield, the

reserves actively undermine the O&C Act’s primary

purpose, which is to sustain the livelihoods of local

communities that depend on the sustained yield of timber and other resources from these lands for jobs and

revenue. See Bowman Transp., Inc. v. Ark.-Best Freight

Sys., Inc., 419 U.S. 281 (1974) (noting importance of

interpreting statutes within their unique legal and

historical contexts); DOT v. Pub. Citizen, 541 U.S. 752

21

(2004) (discussing importance of considering wider impact of environmental policies).

The Court should grant the writ because this case

presents an opportunity to restore the management of

O&C lands to their original purpose.

V.

IMPLICATIONS FOR AGENCY OVERREACH

IN PUBLIC LANDS MANAGEMENT

As the Court considers whether to grant certiorari,

it also must weigh the broader implications of these

cases for federal land use planning outside the context

of the O&C Act. Congress, not the President or executive agencies, has the primary authority to designate

or modify uses for public lands.

Congress’s power to manage the public lands generally derives from Article IV, Section 3 of the Constitution, which states, in part, “Congress shall have 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. Congress delegated some, but not all, of this authority to the Department of the Interior, and the BLM,

to manage the public lands via statutory authorities

that include the Federal Land Policy and Management

Act (“FLPMA”)6 and other use-specific statutes that

6

FLPMA designates principal uses and provides for “multiple use” and “sustained yield” of those natural resources to meet

the nation’s need for domestic sources of minerals, food, timber,

and fiber from the public lands. 43 U.S.C. § 1701(a)(7), (12); id.

§ 1702(l) (“The term ‘principal or major uses’ ” of public lands

22

pre- or post-date FLPMA.7 While agencies have some

measure of discretion to implement these statutes,

such discretion is bounded by statutory text. The mandate of the O&C Act for sustainable timber production

stands firm, not to be superseded barring an unequivocal directive from Congress. Should agencies aim to

diverge from these statutory land use provisions, they

are required to demonstrate “clear congressional authorization” for such deviation. West Virginia v. EPA,

142 S. Ct. 2587, 2621 (2022); see also FDA v. Brown &

Williamson Tobacco Corp., 529 U.S. 120 (2000); Sackett

v. EPA, 598 U.S. 651 (2023). This Court is positioned to

ensure that agency actions do not exceed the bounds

set by legislation.

To allow the President to unilaterally restrict existing land uses on vast areas of lands and “ecosystems” under the Antiquities Act also risks, by

implication, endorsing agency action to implement

such designations that contradicts existing statutory

“includes, and is limited to, domestic livestock grazing, fish and

wildlife development and utilization, mineral exploration and

production, rights-of-way, outdoor recreation, and timber production.”).

7

A comparable approach was taken with the Department of

Agriculture and its land management agency, the U.S. Forest Service, via the Organic Act of 1897, 16 U.S.C. §§ 473 et seq.; the National Forest Management Act of 1976, id. §§ 1600 et seq., and the

Multiple-Use Sustained-Yield Act of 1960, id. § 528. Examples of

use-specific statutes specifying management of the public lands

and National Forest System include, but are not limited to, the

Taylor Grazing Act, 43 U.S.C. §§ 315 et seq., the Mining Law of

1872, 30 U.S.C. §§ 21 et seq., and the Surface Use Act, 30 U.S.C.

§ 612(b).

23

direction. As framed by the dissent in Murphy Co. v.

Biden:

Indeed, the far-reaching implications of the

majority’s interpretive rule are sobering:

every federal land management law that does

not expressly shield itself from the Antiquities Act is now subject to executive nullification by proclamation.

Murphy Co., 65 F.4th at 1141–42 (Tallman, C.J., concurring).

For public land use planning under FLPMA, the

primary authorities delegated to the Secretary of the

Interior are the general planning authority and the

general leasing and permitting authority. See 43 U.S.C.

§§ 1712, 1732(b). Yet Congress was clear to cabin the

Secretary’s authority by focusing on achieving multiple use and sustained yield of the major or principal

uses identified in Section 1702. Id. § 1702(l). Congress

has otherwise generally retained its authority to designate new uses (or withdraw uses) of the public lands,

with some exceptions. See id. § 1701(b) (“The policies

of [FLPMA] shall become effective only as specific statutory authority for their implementation is enacted by

this Act or by subsequent legislation.”).

Relevant to these cases, Congress has generally

reserved to itself the power to designate particular

lands for conservation purposes.8 Statutes including

8

BLM’s sole statutory authority to designate areas of existing public lands for protection is through the designation of areas

of critical environmental concern in areas needing “special

24

the Wilderness Act, National Parks Act, and the others

guiding designations as National Conservation Lands,

are primary examples.9 These laws and designations

vary in scope and intent and they offer a framework

that empowers the Secretary of the Interior to manage

those lands for a variety of conservation purposes and

compatible uses.

To sanction monument designations that contradict Congress’s intent to retain authority to designate

lands for conservation purposes flouts separation of

powers principles and sets the stage for agency overreach in the development of land use plans. Moreover,

focusing narrowly on single issues like species protection under the ESA may neglect comprehensive land

management strategies that consider the conservation

benefits of existing uses of public lands. For instance,

grazing activities on public lands generate $1.439 billion annually and support more than 2 million jobs

management attention.” See 43 U.S.C. §§ 1712(c)(3), 1702(a).

However, the Department of the Interior has also used land exchanges for the purpose of establishing wildlife refuges pursuant

to the National Wildlife Refuge System Administration Act and

other authorities. See Solicitor Memorandum, M-37078, National

Wildlife Refuge Land Exchanges (May 31, 2023). But see Bureau

of Land Mgmt., Proposed Rule, Conservation and Landscape

Health, 88 Fed. Reg. 19,583 (Apr. 3, 2023) (recent BLM proposal

arguably exceeding its limited authority under FLPMA), available

at: https://www.federalregister.gov/documents/2023/04/03/202306310/conservation-and-landscape-health.

9

National Conservation Lands under BLM management

include over 37 million acres to conserve particular features and

include designations such as Wilderness and Wilderness Study

Areas; Wild and Scenic Rivers; National Scenic and Historic

Trails; National Conservation Areas; and National Monuments.

25

across the West but are also responsible for more than

$8.5 billion in ecosystem services each year.10

The Supreme Court’s involvement is vital in ensuring land management policies respect legislative

boundaries. Consistent land management practices

should align with legal frameworks and Congressional

mandates. This case presents an opportunity for the

Court to endorse balanced, sustainable land management that adheres to Congressional frameworks.

---------------------------------♦---------------------------------

10

Bureau of Land Mgmt., Socioeconomic Impact Report 2022,

https://www.blm.gov/about/data/socioeconomic-impact-report-2022;

Maher, A., Ashwell, N., Maczko, K., Taylor, D., Tanaka, J., &

Reeves, M. (2021), An economic valuation of federal and private

grazing land ecosystem services supported by beef cattle ranching

in the United States, Translational Animal Science, https://doi.

org/10.1093/tas/txab054. See also Babbitt v. Sweet Home Chapter

of Cmtys. for a Great Or., 515 U.S. 687 (1995) (stressing the importance of considering a broader ecological context in ESA interpretations).

26

CONCLUSION

For the reasons stated above, the Petition for Writ

of Certiorari should be granted.

DATED: December 13, 2023.

Respectfully submitted,

JESSIE BARRINGTON

Counsel of Record

AARON BRUNER

DEREK GAUTHIER

WESTERN RESOURCES

LEGAL CENTER

9220 SW Barbur Blvd.,

Suite 119 #327

Portland, OR 97219

(503) 768-8500

JBarrington@wrlegal.org

Counsel for Amici Curiae