AMERICAN FOREST RESOURCE COUNCIL, APPELLEE v. UNITED STATES OF AMERICA, ET AL., APPELLEES SODA MOUNTAIN WILDERNESS COUNCIL, ET AL., APPELLANTS
No. 20-5008
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
July 18, 2023
Argued November 16, 2022. Consolidated with 20-5009, 20-5010, 20-5011, 22-5019, 22-5020, 22-5021
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.
Opinion for the Court filed by Circuit Judge HENDERSON.
KAREN LECRAFT HENDERSON, Circuit Judge: In these consolidated appeals we face the question whether overlapping statutes that affect more than two million acres of federally owned forest land in southwestern Oregon are reconcilable and therefore operative. The appeals arise from three sets of cases filed by an association of fifteen Oregon counties and various trade associations and timber companies. Two of the cases challenge Proclamation 9564, through which the President expanded the boundaries of the Cascade-Siskiyou National Monument. Two others challenge resource management plans that the United States Bureau of Land Management (BLM), a bureau within the United States Department of the Interior (Interior), developed to govern the use of the forest land. The final case seeks an order compelling the Interior Secretary to offer a certain amount of the forest‘s timber for sale each year. The district court entered summary judgment for the plaintiffs in all five cases. As detailed infra, we reverse.
I. BACKGROUND
A. THE O & C ACT
We begin in 1866, when the Congress authorized a grant of public land to two railroad companies to facilitate the construction of a rail and telegraph line between Portland, Oregon and San Francisco, California.
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 (O & C counties) for the railroad companies’ unpaid taxes and to create a “special fund” using the proceeds from O & C land and timber sales, which fund was to be distributed among several parties in a rather complex order. See
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.
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
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
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
It was not until 2008 that the RMPs were revised. They established an ASQ of 502 million board feet, more than double the ASQ set by the 1995 RMPs. The 2008 RMPs were subsequently vacated because they were approved without the consultation required by section 7 of the ESA. See Pac. Rivers Council v. Shepard, No. 03:11-cv-00442-HU, 2011 WL 7562961 (D. Or. Sept. 29, 2011), report and recommendation adopted, 2012 WL 950032 (D. Or. Mar. 20, 2012). As a result, the 1995 RMPs were reinstated in 2012. See Pac. Rivers Council, 2012 WL 950032, at *4.
Revised RMPs were issued again in 2016. The 2016 RMPs are the subject of one portion of this appeal. Like the 1995 and 2008 RMPs, the 2016 RMPs divide O & C land into multiple management categories: 499,000 acres (20%) are designated as “harvest land base,”10 958,000 acres (38%) as late-successional reserves and 520,000 acres (21%) as riparian reserves. The remaining land is allocated to congressional reserves, national conservation land and district-designated reserves. The 2016 RMPs establish a total ASQ of 205 million board feet—slightly more than the ASQ set by the 1995 RMPs—and allow for the timber volume in fact sold to vary up to 40 per cent from the ASQ. See Swanson Grp. Mfg. LLC v. Bernhardt, 417 F. Supp. 3d 22, 27–28 & n.4 (D.D.C. 2019). The minimum timber volume the BLM must sell annually, then, is 123 million board feet and the maximum is 287 million board feet. As far as the
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
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).
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 the final lawsuit, the “Swanson case,”12 the plaintiffs—companies in the timber industry—sought an order compelling the Secretary to sell a certain amount of timber each year. They argued that the O & C Act imposes upon the Secretary a non-discretionary duty to sell annually a volume of timber that is not less than the declared ASQ. The Government denied that the O & C Act created any such non-discretionary duty and also argued that, even assuming it did, the Secretary‘s compliance vel non was unreviewable under the APA because the volume of timber the Secretary offers for sale each year is not a “discrete” agency action. See Norton v. S. Utah Wilderness All. (SUWA), 542 U.S. 55, 64 (2004).
The district court entered summary judgment for the plaintiffs in all five cases. In the Monument cases, the court held that the O & C Act mandated timber production on all O & C timberland and precluded the expansion of the Monument, notwithstanding the President‘s Antiquities Act authority. See Am. Forest Res. Council v. Hammond, 422 F. 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.,
The Government contends that even if non-statutory review of an ultra vires challenge to presidential action is available in some cases, review should be denied here because the Antiquities Act vests the President with broad discretion and the O & C Act puts no discernible limit on that discretion. For support, the Government cites the Supreme Court‘s statement in Dalton v. Specter that non-statutory review is unavailable “when the statute in question commits the decision to the discretion of the President.” 511 U.S. at 474. As we explained in Chamber of Commerce, however, ”Dalton‘s holding merely stands for the proposition that when a statute entrusts a discrete specific decision to the President and contains no limitations on the President‘s exercise of that authority, judicial review of an abuse of discretion claim is not available.” 74 F.3d at 1331 (emphasis added). Dalton has no force where, as here, “the claim instead is that the presidential action... independently violates [another statute].” Id. at 1332; see also Mountain States, 306 F.3d at 1136 (“Judicial review in such instances does not implicate separation of powers concerns to the same degree as where the statute did ‘not at all limit’ the discretion of the President.” (quoting
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]
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
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
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).
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
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.”
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.”
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 Moreover, although the principal
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
First, the balance the 2016 RMPs strike between conservation and logging is a valid exercise of the Secretary‘s discretion under the O & C Act. The Act, as we have explained, gives the Secretary discretion in classifying the land, balancing the Act‘s multiple objectives and meeting the requirement that timberland be managed for permanent forest production in accordance with sustained yield principles. The 2016 RMPs fall well within that discretion.
The 2016 RMPs established two main types of reserves: late-successional reserves and riparian reserves. As we noted earlier, late-successional reserves were created to preserve critical habitat for the northern spotted owl and other endangered and threatened species. See A. 3423 (“The objective of [l]ate-[s]uccessional [r]eserves ... is to protect and enhance conditions of late-successional and old-growth forest ecosystems, which serve as habitat for late-successional and old-growth related species.“). Riparian reserves were created to “protect the water systems and their attendant species.” Pac. Rivers, 2018 WL 6735090, at *2. Both categories of reserves are consistent with the O & C Act.
The creation of the reserves can reasonably be viewed as an exercise of the Secretary‘s discretion to reclassify O & C land as non-timberland, thus removing the land from the O & C Act‘s “permanent forest production” mandate. See
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
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
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
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.
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.