American Forest Resource Council v. United StatesAmerican Forest Resource Council v. United States
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
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.
Three years later, the Congress amended the grant to require the railroads to sell granted land to “actual settlers only, in quantities not greater than one-quarter section to one purchaser, and for a price not exceeding two dollars and fifty cents per acre.”
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
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
Undeterred by its earlier failures, the Congress again sought to remedy “the region‘s perilous economic and environmental situation,” id., via the
[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 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.
Since 1937, the BLM2 has carried out the O & C Act‘s directive to declare an “annual productive capacity,”
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,”
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 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
The BLM incorporated the NWFP‘s core principles into its 1995 RMPs for the O & C land.9 Most notably, the 1995 RMPs, like the NWFP, divided the O & C land into reserves and matrix: 19 per cent of the O & C land was designated as late-successional reserves, 38 per cent as riparian reserves, and 28 per cent as matrix. See Pac. Rivers 2018 WL 6735090, at *2 (describing 1995 RMPs). Because the 1995 RMPs permitted logging only on land designated matrix, the reserve-heavy allocation dramatically reduced the O & C land‘s timber output. The 1995 RMPs declared an ASQ of 203 million board feet, far less than historic harvest levels. See
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 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.
B. THE ANTIQUITIES ACT
As abstruse as the O & C Act‘s operation is, these lawsuits require us to interpret that legislation in light of earlier—and potentially conflicting—legislation; to wit, the Antiquities Act of 1906. The 1906 statute provides that “[t]he President may, in the President‘s discretion, declare by public proclamation historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest that are situated on land owned or controlled by the Federal Government to be national monuments.”
Since the Act‘s enactment, the Presidents have established 161 national monuments. See National Monument Facts and Figures, NATIONAL PARK SERVICE, https://www.nps.gov/subjects/archeology/national-monument-facts-and-figures.htm (last visited June 28, 2023) [https://perma.cc/87EY-6T47]. Indeed, all but three Presidents holding office since 1906 have invoked its authority. See CAROL HARDY VINCENT, CONG. RSCH. SERV., R41330, NATIONAL MONUMENTS AND THE ANTIQUITIES ACT 1 n.5 (2023).
Two of these appeals involve one such designation. In 2000, the President used the Antiquities Act to reserve approximately 53,000 acres of land in southwestern Oregon—including roughly 40,000 acres of O & C land—as the Cascade-Siskiyou National Monument (the Monument). See Proclamation No. 7318, 65 Fed. Reg. 37249 (June 13, 2000).11 The Monument was created to protect the region‘s “unique geology, biology, climate, and topography,” including its “biological diversity,” which, according to the Proclamation, is “unmatched in the Cascade Range.” 65 Fed. Reg. at 37249. The Proclamation, in effect, outlaws logging within the Monument:
The commercial harvest of timber or other vegetative material is prohibited, except when part of an authorized science-based ecological restoration project aimed at meeting protection and old growth enhancement objectives. . . . No portion of the monument shall be considered to be suited for timber production, and no part of the monument shall be used in a calculation or provision of a sustained yield of timber. Removal of trees from within the monument area may take place only if clearly needed for ecological restoration and maintenance or public safety.
65 Fed. Reg. at 37250.
In 2017, the President issued Proclamation 9564, which added roughly 48,000 acres to the Monument, including 40,000 acres of O & C land. See 82 Fed. Reg. 6145 (Jan. 18, 2017).
Proclamation 9564 provided that the expansion land is subject to the “same laws and regulations that apply to the rest of the monument,” including the logging prohibition. Id. at 6149. As a result, roughly 10 million board feet of timber the BLM planned to sell during fiscal year 2017 could not be sold and the O & C counties missed out on an estimated $1.75 million in revenue. Going forward, the counties anticipate that the expansion will cause them collectively to lose between $1 million and $2 million of revenue annually.
II. PROCEDURAL HISTORY
As noted, these appeals spring from five lawsuits. In two of the suits, which we call the “Monument cases,” plaintiffs the American Forest Resource Council—a trade association that advocates for sustained yield logging on public timberland—and the Association of O & C Counties sued the United States, the President, the Secretary and the BLM (collectively, the Government). They challenged Proclamation 9564, the 2017 Proclamation that expanded the Monument. By outlawing logging on the O & C land included in the Monument, they asserted, the President violated the O & C Act‘s directive that O & C timberland “shall be managed . . . for permanent forest production.”
In two different lawsuits, which we refer to as the “Plan cases,” the plaintiffs—the American Forest Resource Council, the Association of O & C Counties and other trade associations and companies in the timber industry—sued the BLM Director and the Secretary, contending that the 2016 RMPs violated the O & C Act by placing large swaths of O & C land in reserves where logging is not permitted. The Government responded that the 2016 RMPs were consistent with the discretion the O & C Act grants the Secretary and that they reasonably harmonized the Secretary‘s competing statutory obligations.
In the final lawsuit, the “Swanson case,”12 the plaintiffs—companies in the timber industry—sought an order compelling
The 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 timber-production mandate the O & C Act imposed. Id. at 191. Finally, in the Swanson case, the district court directed the Secretary to offer the ASQ for sale every year in perpetuity. Swanson Grp. Mfg. LLC v. Bernhardt, 417 F. Supp. 3d 22, 30 (D.D.C. 2019); Am. Forest Res. Council v. Nedd, 2021 WL 6692032, at *6 (D.D.C. Nov. 19, 2021). The Government timely appealed.
III. DISCUSSION
A. REVIEWABILITY
Before we turn to the merits, we must decide whether the plaintiffs’ claims are reviewable. The Government contends that the Monument cases are not judicially reviewable because there is no applicable statutory cause of action and because non-statutory review is unavailable where, as here, a plaintiff challenges a discretionary exercise of presidential authority based on an “at-most ambiguous limitation” from a separate statute. Appellant Br. at 33. We disagree.
Although the Government correctly notes that the O & C Act and the Antiquities Act are silent regarding judicial review and the APA‘s general review provision does not permit review of presidential action because the President is not an agency within the meaning of that statute, see Franklin v. Massachusetts, 505 U.S. 788, 800–01 (1992), the absence of a statutory review provision does not necessarily preclude judicial review of presidential action altogether. We have previously said that a claim alleging that the President acted in excess of his statutory authority is judicially reviewable even absent an applicable statutory review provision. See, e.g., Chamber of Com. v. Reich, 74 F.3d 1322, 1326–28 (D.C. Cir. 1996).13
That makes good sense. Even when the Congress gives substantial discretion to the President by statute, we presume it intends that the President heed the directives contained in other enactments. See id. at 1328 (“[C]ourts will ‘ordinarily presume that Congress intends the executive to obey its statutory commands and, accordingly, that it expects the courts to grant relief when an executive agency violates such a command.‘” (quoting Bowen v. Mich. Acad. of Fam. Physicians, 476 U.S. 667, 681 (1986))). The Congress can and often does cabin the discretion it grants the President and it remains the responsibility of the judiciary to ensure that the President act within those limits. See id. at 1327; Mountain States, 306 F.3d at 1136.
Perhaps more to the point, we have consistently reviewed claims challenging national monument designations like the one challenged here. See Mountain States, 306 F.3d 1132; Tulare Cnty. v. Bush, 306 F.3d 1138 (D.C. Cir. 2002); Mass. Lobstermen‘s Ass‘n v. Ross, 945 F.3d 535 (D.C. Cir. 2019). In those cases, we have reviewed claims that the President exceeded his authority under the Antiquities Act and claims that he violated a separate statute through an otherwise appropriate exercise of his Antiquities Act authority. In Mountain States, for example, the plaintiffs challenged a number of monument designations as statutorily ultra vires. See 306 F.3d at 1133. They argued the designations “reach[ed] far beyond the purpose, scope, and size of any national monuments contemplated by Congress under the [Antiquities] 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
Like the plaintiffs in Massachusetts Lobstermen‘s Ass‘n and Mountain States, the plaintiffs here argue that the President‘s exercise of authority under the Antiquities Act was ultra vires because it was inconsistent with an independent statute—the O & C Act. Consistent with our precedent, we easily conclude that the plaintiffs’ claims are reviewable.
B. MONUMENT CASES
We turn to the merits and begin with the Monument cases. The Government challenges the district court‘s decision that the President‘s expansion of the Monument constitutes an invalid use of his Antiquities Act authority because the expansion conflicts with the O & C Act. The Government makes two arguments. First, because the O & C Act is directed at the Secretary, it does not limit the President‘s authority to reserve land under the Antiquities Act. Second, the Monument‘s expansion is consistent with the O & C Act because that Act does not mandate that every acre of O & C land be classified as timberland and, even for land that is so classified, the Act does not mandate that every acre be used solely for logging. Instead, the O & C Act contemplates a flexible concept of sustained yield management that permits the BLM to consider conservation values in making timber harvest decisions.
The Government‘s first contention need not long detain us. Although the O & C Act is addressed to the Secretary rather than to the President, that merely reflects the fact that the O & C land is administered by the Interior Department. The Congress usually directs its enactments to the executive official responsible for a program‘s administration rather than to the President himself. But that does not necessarily mean that the legislation does not also affect the President. For example, although the substantive provisions of the NLRA address the National Labor Relations Board, not the President, we concluded in Chamber of Commerce that the NLRA limited the President‘s discretion under the Procurement Act. See Chamber of Com., 74 F.3d at 1332–33.
The O & C Act restricts the President‘s power to designate monuments under the Antiquities Act for the same reason the NLRA restricts the President‘s discretion under the Procurement Act: discretion conferred upon the President by the Congress is constrained by the limitations the Congress prescribes. Because the President relied solely on the Antiquities Act to expand the Monument, he was constrained by the Congress‘s other enactments in exercising that delegated power. See Mountain States, 306 F.3d at 1137 (“the President exercise[s] his delegated powers under the Antiquities Act” in creating monuments (emphasis added)); see also United States v. California, 332 U.S. 19, 27 (1947), supplemented, 332 U.S. 804 (1947).
(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
The Government next contends the Monument‘s expansion is permissible because it is compatible with the O & C Act. Its argument, in effect, is that the Antiquities Act and the O & C Act can be harmonized. The Supreme Court has counseled that, “[w]hen confronted with two Acts of Congress allegedly touching on the same topic, [we are] not at ‘liberty to pick and choose among congressional enactments’ and must instead strive ‘to give effect to both.‘” Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612, 1624 (2018) (quoting Morton v. Mancari, 417 U.S. 535, 551 (1974)). A party suggesting two statutes cannot be reconciled “bears the heavy burden of showing ‘a clearly expressed congressional intention’ that such a result should follow.” Id. (quoting Vimar Seguros y Reaseguros, S.A. v. M/V Sky Reefer, 515 U.S. 528, 533 (1995)). Accordingly, in reviewing an alleged statutory conflict, we must bear in mind the “strong presumption” that repeals by implication are ‘disfavored’ and that ‘Congress will specifically address’ preexisting law when it wishes to suspend its normal operations in a later statute.” Id. (alterations accepted) (quoting United States v. Fausto, 484 U.S. 439, 452-53 (1988)).
We believe that the Antiquities Act and O & C Act are indeed compatible. We first observe that the 1937 O & C Act did not repeal the 1906 Antiquities Act, either explicitly or by implication. The O & C Act does not allude to the Antiquities Act, see Murphy, 65 F.4th at 1132, and the only evidence of implied repeal the plaintiffs point to—the O & C Act‘s generic non-obstante clause14—applies by its terms only to “Acts or parts of Acts in conflict with this Act.” Act of Aug. 28, 1937, ch. 876, 50 Stat. 874, 876. The Antiquities Act, however, is not in conflict with the O & C Act. The O & C Act can reasonably be read in a manner that renders the statutes harmonious. Because it can be so read, it must be. See Epic Sys. Corp., 138 S. Ct. at 1624.
First, the text of the O & C Act provides that only the “portions of the” O & C land “which have heretofore or may hereafter be classified as timberland[]” must be managed “for permanent forest production... in conformity with the princip[le] of sustained yield.”
We are unpersuaded by the plaintiffs’ contention that O & C lands were once, and thus must continue to be, classified “based on their productive capacity.” Appellee Br. at 32. Granted, before the O & C Act was enacted, land was classified according to its capacity to produce timber. The Chamberlain-Ferris Act defined “timberland[ ]” as “land[] bearing a growth of timber not less than three hundred thousand feet board measure on each forty-acre subdivision.” Chamberlain-Ferris Act, § 2, 39 Stat. at 219. That definition, however, was omitted from the O & C Act. We presume the omission was intentional. See Banks v. Booth, 3 F.4th 445, 449 (D.C. Cir. 2021) (“Congress says what it means and means what it says.“); cf. Fed. Express Corp. v. Dep‘t of Com., 39 F.4th 756, 768 (D.C. Cir. 2022) (“When Congress includes particular language in one section of a statute but omits it in another section of the same Act, courts presume that Congress knew what it was doing and meant for the omission to have significance.” (cleaned up)). The O & C Act simply does not define “timberland” or establish a procedure for classifying O & C land. And we decline to fill in those gaps with provisions from the outdated Chamberlain-Ferris Act, legislation that was, after all, replaced by the O & C Act because of its defects. See Clackamas Cnty., 219 F.2d at 486-87; see also Bates v. United States, 522 U.S. 23, 29 (1997) (“[W]e ordinarily resist reading words or elements into a statute that do not appear on its face.“).
We believe Proclamation 9564 reclassified, albeit by implication, the 40,000 acres of O & C land the President added to the Monument as non-timberland, thereby removing the land from the O & C Act‘s “permanent forest production” mandate. Moreover, “[t]his is not a case where the executive‘s action eviscerate[d] Congress‘s land-management scheme, nor is it a case that concerns ‘vast and amorphous expanses of terrain.‘” Murphy, 65 F.4th at 1137-38 (quoting Mass. Lobstermen‘s Ass‘n v. Raimondo, 141 S. Ct. 979, 981 (2021) (Roberts, C.J., statement respecting certiorari denial)). Rather, the Proclamation‘s Monument expansion was modest, affecting only 40,000—less than two per cent—of the more than two million acres of O & C land, and neither unduly interfering with the principal objective of the O & C Act nor abridging the Secretary‘s authority to regulate the vast bulk of the O & C land.15
The O & C Act‘s history confirms that the Congress intended to give the Secretary flexibility to decide how best to carry out the program of “sustained yield” management. As we have explained, it was enacted to address two failures of the Chamberlain-Ferris Act and the Stanfield Act: “One was that they required the timber to be sold as rapidly as possible and the cut-over lands disposed of. The other was that they ... creat[ed] a deficit due from the federal Treasury” to the O & C counties. Clackamas Cnty., 219 F.2d at 487. To remedy these defects, the O & C Act “provided for the management of the timber on a conservation basis and for the payment to the counties of the net proceeds from the sales each year.” Id.; see also H.R. Rep. No. 75-1119, at 2 (1937) (explaining that, under the earlier statutes, “[n]o provision was made for the administration of the land on a conservation basis looking toward the orderly use and preservation of its natural resources.“). In lieu of the former clear-cutting regime, the O & C Act provided that timberland should be managed in accordance with the “innovative” principle of “sustained yield” so that the land‘s “natural assets could be ‘conserved and perpetuated.‘” Murphy, 65 F.4th at 1136 (quoting H.R. Rep. No. 75-1119, at 4). The goal of the O & C Act, then, was to “provide conservation and scientific management for this vast Federal property which now receives no planned management beyond liquidation of timber assets and protection from fire.” H.R. Rep. No. 75-1119, at 2; see also S. Rep. No. 75-1231, at 1, 4 (1937) (statement of Acting Interior Secretary that “[p]roper protection of the interest of the communities, the States, and the Government requires a long-range program of planning, having for its object a well-regulated system of cutting, based upon the kind, character, and suitability of the timber, rather than
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
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.”
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 accordance with sustained yield principles. The 2016 RMPs fall well within that discretion.
The 2016 RMPs established two main types of reserves: late-successional reserves and riparian reserves. As we noted earlier, late-successional reserves were created to preserve critical habitat for the northern spotted owl and other endangered and threatened species. See A. 3423 (“The objective of [l]ate-[s]uccessional [r]eserves ... is to protect and enhance conditions of late-successional and old-growth forest ecosystems, which serve as habitat for late-successional and old-growth related species.“). Riparian reserves were created to “protect the water systems and their attendant species.” Pac. Rivers, 2018 WL 6735090, at *2. Both categories of reserves are consistent with the O & C Act.
The creation of the reserves can reasonably be viewed as an exercise of the Secretary‘s discretion to reclassify O & C land as non-timberland, thus removing the land
Second, both the ESA and the CWA support the establishment of reserves on O & C land. Late-successional reserves, as noted, were created primarily to preserve habitat for ESA-listed species. As the 2016 RMPs explain, northern spotted owls in particular require large, contiguous blocks of forest for habitat and late-successional reserves allow for the continuing existence of such blocks. Thus, the reserves are consistent with the ESA‘s requirement that the Secretary ensure her actions are “not likely to jeopardize the continued existence” of any listed species or “result in the destruction or adverse modification” of the species’ designated critical habitat as well as its directive that the Secretary “review other programs administered by [her] and utilize such programs in furtherance of the purposes of this chapter.”
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
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.”
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.”
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: pre-planning, planning and preparation. In the pre-planning phase, the BLM collects information about forest and watershed conditions and access to each of the potential project areas, ascertains property lines through official land surveys, initiates pre-project clearance surveys for endangered species (some of which require two consecutive years of surveys), requests easements where its access is limited, develops preliminary timber harvest plans and initiates the public scoping process pursuant to the National Environmental Policy Act (NEPA). In the planning phase, the BLM completes its field evaluations, develops refined harvest plans and alternative project designs and prepares an environmental impact statement pursuant to NEPA, along with a biological assessment of the probable effect the sale will have upon ESA-listed species and their critical habitat. Finally, in the preparation phase, the BLM develops the final project design, issues a record of decision and prepares the timber sale contract and appraisal. The timber is then sold at auction pursuant to BLM regulations. See 43 C.F.R. pt. 5440. This complex process of planning, preparing and selling a timber contract generally takes between three and five years.
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. 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. 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. 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. 891.
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. 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.