Association of O&C Counties v. Trump et al

REPLY to opposition to motion re MOTION for Summary Judgment and Federal Defendants' Memorandum in support

D.D.C.September 13, 2018

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ASSOCIATION OF O&C COUNTIES ) ) Plaintiff, ) ) v. ) No. 1:17-cv-280-RJL ) DONALD J. TRUMP, et al., ) ) Defendants, ) ) ) SODA MOUNTAIN WILDERNESS COUNCIL, ) et al., ) Defendant-Intervenors. ) ________________________________________________) FEDERAL DEFENDANTS’ REPLY IN SUPPORT OF FEDERAL DEFENDANTS’ CROSS MOTION FOR SUMMARY JUDGMENT Case 1:17-cv-00280-RJL Document 53 Filed 09/13/18 Page 1 of 26 i TABLE OF CONTENTS I. INTRODUCTION ........................................................................................................... 4 II. ARGUMENT .................................................................................................................... 6 A. Because Plaintiffs do not Plead Any Facts Showing that the President Acted in a Manner Inconsistent With Delegated Authority From Congress, Judicial Review is not Available. ................... 6 B. The Monument Boundary Modification is Not Ultra Vires as a Matter of Law. ................................................................................................... 11 1. This Circuit has Confirmed that Monument Lands Can Have a Dual Status and Overlapping Statutory Purposes. ........ 13 2. Plaintiffs’ Reliance on the Non Obstante Clause and the Solicitor’s Legal Memorandum is Misplaced. ................................. 18 III. CONCLUSION .............................................................................................................. 23 Case 1:17-cv-00280-RJL Document 53 Filed 09/13/18 Page 2 of 26 ii TABLE OF AUTHORITIES Cases American Bar Ass’n v. FTC, 430 F.3d 457 (D.C. Cir. 2005) ................................................................................... 23 Chamber of Commerce v. Reich, 74 F.3d 1322 (D.C. Cir. 1996) ............................................................................. 3, 5, 6 Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612 (2018) .............................................................................................. 20 Franklin v. Massachusetts, 505 U.S. 788 (1992)............................................................................................... 6, 22 Headwaters v. Bureau of Land Management, 914 F.2d 1174 (9th Cir. 1990) .................................................................................. 12 Lands Council v. McNair, 537 F.3d 981 (9th Cir. 2008) .................................................................................... 15 McMaster v. United States, 731 F.3d 881 (9th Cir. 2013) .............................................................................. 23, 25 Miccosukee Tribe of Indians of Fla. v. U.S. Army Corps of Engr’s, 619 F.3d 1289 (11th Cir. 2010) .......................................................................... 21, 23 Morton v. Mancari, 417 U.S. 535 (1974)................................................................................... 9, 17, 20, 21 Mountain States Legal Foundation v. Bush, 306 F.3d 1132 (D.C. Cir. 2002) ................................................................. 3, 4, 5, 7, 12 Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89 (1984) ...................................................................................................... 6 Portland Audubon Society v. Babbitt, 998 F.2d 705 (9th Cir. 1993) .............................................................................. 19, 24 Portland Audubon Soc'y v. Lujan, 795 F. Supp. 1489 (D. Or. 1992) ............................................................................... 24 Radzanower v. Touche Ross & Co., 426 U.S. 148 (1976)............................................................................................. 21, 22 Seattle Audubon Soc’y v. Lyons, 871 F. Supp. 1291 (W.D. Wash. 1994) ............................................................... 19, 22 Swanson Grp. v. Salazar, 951 F.Supp. 2d 75 (D.D.C. 2013) ........................................................................ 15, 19 Case 1:17-cv-00280-RJL Document 53 Filed 09/13/18 Page 3 of 26 iii Tulare Cty. v. Bush, 185 F. Supp. 2d 18 (D.D.C. 2001) ............................................................................. 17 Tulare Cty. v. Bush, 306 F.3d 1138 (D.C. Cir. 2002) ........................................................... 6, 12, 14, 15, 16 TVA v. Hill, 437 U.S. 153 (1978)................................................................................................... 23 United States v. California, 436 U.S. 32 (1978) .............................................................................................. 16, 17 Utah Ass’n of Counties v. Bush, 316 F. Supp. 2d 1172 (D. Utah 2004) ....................................................................... 17 Whitman v. Am. Trucking Associations, 531 U.S. 457 (2001)................................................................................................... 23 Statutes 16 U.S.C. § 1609 ............................................................................................... 14, 15, 16 16 U.S.C. § 1611 ........................................................................................................... 14 16 U.S.C. § 521 ............................................................................................................. 17 16 U.S.C. § 528 ............................................................................................................. 15 43 U.S.C. § 1181a-1181j .............................................................................................. 13 43 U.S.C. § 2601 ....................................................................................................... 7, 18 54 U.S.C. § 320301(a) .................................................................................................... 3 54 U.S.C. § 320301(d) .................................................................................................. 17 Pub. L. No. 106-393 § 2(a), 114 Stat. 1607 (2000) ........................................................ 8 Pub. L. No. 110-343, Title VI, § 601 (2008) ................................................................... 8 Pub. L. No. 114-10 § Title V, 524 (2015) ....................................................................... 8 Pub. L. No. 111-11, 123 Stat. 991 (2009) ...................................................................... 8 Pub. L. No. 75-405, 50 Stat. 876 (1937) ...................................................................... 21 Regulations Proclamation No. 7318, 65 Fed. Reg. 37249 (June 9, 2000) ................................. 10, 13 Proclamation No. 9564, 82 Fed. Reg. 6145 (Jan. 12, 2017) .................................. 10, 13 Case 1:17-cv-00280-RJL Document 53 Filed 09/13/18 Page 4 of 26 4 Donald J. Trump, President of the United States of America; the United States of America; Ryan Zinke, Secretary of the Interior; and the Bureau of Land Management (collectively “Federal Defendants”) respond to the summary judgment opposition briefs filed by the American Forest Resource Council (“AFRC”) (“AFRC ECF 49”) and Association of O&C Counties (“AOCC”) (“AOCC ECF 49”) (collectively “Plaintiffs”) in one consolidated reply brief in support of Federal Defendants’ cross motion for summary judgment.1 I. INTRODUCTION In June of 2000, President Clinton designated the Cascade-Siskiyou National Monument (“Monument”) and prohibited the commercial harvest of timber within the Monument area, except for science-based ecological restoration projects. Some of the lands within the Monument, however, are also subject to the Oregon & California Revested Lands Act (“O&C Act”) and the designation created tension between the O&C Act’s mandate of permanent forest production and the Monument’s prohibition. Nevertheless, the Plaintiffs here did not challenge President Clinton’s designation or contend that there was a statutory conflict with the prohibition on commercial timber harvest. It was not until after Congress passed legislation furthering the protections and purposes of the Monument and 1 Federal Defendants will file an identical reply in support of Federal Defendants’ cross motion for summary judgment in each case. In addition, opening briefs have been filed in the third case pending in the District of Oregon and briefing is set to conclude by mid-November. Murphy Co. v. Trump, No. 1:17-cv-00285-CL (D. Or. Filed Feb. 17, 2017). Case 1:17-cv-00280-RJL Document 53 Filed 09/13/18 Page 5 of 26 5 President Obama modified the boundaries of the Monument—notably relying only on the previous prohibition—that these Plaintiffs first pursued this theory. As explained below, judicial review of Proclamation 9564 is not available, but even if it were, Plaintiffs’ arguments attacking the Proclamation lack merit. Plaintiffs neither argue that the President lacked delegated authority, nor that there was a violation of the Antiquities Act’s statutory standards. Because they cannot claim that the President acted in excess of delegated authority, or did so contrary to Congress’ enumerated standards under the Antiquities Act, judicial review of Proclamation 9564 is not available in these cases. Further, to the extent the Court finds it could review Proclamation 9564 under Plaintiffs’ ultra vires theory, there is no conflict between the President’s exercise of authority under the Antiquities Act and the O&C Act. The Bureau of Land Management (“BLM”) has consistently recognized and managed “reserves” on O&C lands—both within and outside of the Monument. These reserves are tracts of lands that have been set aside for conservation or recreational purposes instead of timber harvest in accordance with the principles of sustained yield. In fact, many of the 2.1 million acres of O&C lands—including areas outside the Monument—are not subject to sustained yield timber harvest. The existence of these areas undermines Plaintiffs’ argument that there is a direct conflict between the O&C Act and the Proclamation’s restrictions on timber harvest. Thus, Plaintiffs fail to demonstrate that Proclamation 9564 is ultra vires, and this Court should grant Federal Defendants’ cross motions for summary judgment. Case 1:17-cv-00280-RJL Document 53 Filed 09/13/18 Page 6 of 26 6 II. ARGUMENT A. Because Plaintiffs do not Plead Any Facts Showing that the President Acted in a Manner Inconsistent With Delegated Authority From Congress, Judicial Review is not Available. Plaintiffs do not allege that the modification of the Monument boundary failed to comply with the Antiquities Act’s statutory provisions. The Antiquities Act authorizes the President to declare objects of historic or scientific interest on federal lands as National Monuments and reserve parcels of land for these monuments, with the limitation that the reservation must be confined to the smallest area compatible with the proper care and management of the objects to be protected. 54 U.S.C. § 320301(a), (b). Plaintiffs never contend that the President failed to protect an object of scientific interest, or designated an area larger than necessary. AFRC ECF 49 at 2 (“AFRC’s motion does not question whether the President complied with the legal requirements of the Antiquities Act . . . .”). The lack of any allegation (or even argument) on these two points sets this case apart from Mountain States Legal Foundation v. Bush, 306 F.3d 1132, 1136 (D.C. Cir. 2002) and Chamber of Commerce v. Reich, 74 F.3d 1322 (D.C. Cir. 1996), two cases on which Plaintiffs rely. Plaintiffs’ reliance on Mountain States is misplaced. AOCC ECF 49 at 10-11; AFRC ECF 49 at 3. In that case, the plaintiffs argued primarily that the President did not have the statutory authority under the Antiquities Act to designate monuments for natural objects, as opposed to man-made objects. 306 F.3d at 1137 (“Mountain States asserted, that Congress intended only that rare and discrete Case 1:17-cv-00280-RJL Document 53 Filed 09/13/18 Page 7 of 26 7 man-made objects, such as prehistoric ruins and ancient artifacts, were to be designated.”). In response, the government argued that judicial review should be cabined to whether the proclamations were, on their face, consistent with the Act’s delegated authority, something the district court termed “facial review.” Id. at 1134; id. (“The government argued that because the President had issued the Proclamations under the Antiquities Act, judicial review was limited to whether the President exercised his discretion in accordance with the standards in the Act, and that review of the face of the Proclamations sufficed to dispose of Mountain States’ arguments.”). Applying an even more limited review than suggested in the district court, the D.C. Circuit found that Mountain States failed “to allege facts to support the claim that the President acted beyond his authority under the Antiquities Act.” Id. at 1137. Importantly, the D.C. Circuit did not perform a searching review of the proclamations at issue or closely examine the tension with other implicated statutes, but rather confined its review to the allegations in the complaint to determine whether there was a valid Antiquities Act claim. Id. Indeed, the court explicitly stated that it was not deciding the “ultimate question” of whether judicial review of a Presidential proclamation was available at all. Id. (“Mountain States presents the court with no occasion to decide the ultimate question of the availability or scope of review for exceeding statutory authority.” (emphasis added)). That is, the D.C. Circuit never decided whether judicial review was available under the Antiquities Act; it merely affirmed the district court’s dismissal of the complaint. Id. at 1136 (“The instant case, however, presents no occasion for the Case 1:17-cv-00280-RJL Document 53 Filed 09/13/18 Page 8 of 26 8 court to engage in ultra vires review of the Proclamations . . . .”). Despite Plaintiffs’ near total reliance on Mountain States, this case does not provide a basis for this Court’s review of Plaintiffs’ claims.2 Unlike the plaintiffs’ allegations in Mountain States, Plaintiffs here make no specific allegations the President did not comply with the Antiquities Act.3 See also Tulare Cty. v. Bush, 306 F.3d 1138, 1140-41 (D.C. Cir. 2002) (outlining the claims for relief contesting compliance with the Antiquities Act statutory provisions). In the absence of any factual contention that Proclamation 9564 deviates from the Antiquities Act criteria, this Court has no occasion to inquire whether the President 2 Plaintiffs also cite to Reich, 74 F.3d at 1329, for the proposition that “there is no sovereign immunity to waive.” AFRC ECF 49 at 5. Unlike Reich, however, where the challenged Executive Order significantly diverged from the President’s congressionally-delegated authorities and statutory intent, Plaintiffs here do not even assert that Proclamation 9564 exceeded the authorities delegated to the President by Congress. Thus, there is no question that the President acted within his authority. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 101 n.11 (1984). Rather, Plaintiffs’ claim is founded on the assertion that the President violated the O&C Act, not on the assertion that the President acted ultra vires with respect to his exercise of delegated powers under the Antiquities Act. But that bootstrapped Administrative Procedure Act (“APA”) claim against the President cannot work. Franklin v. Massachusetts, 505 U.S. 788, 796 (1992). The powers delegated to the President grant significant discretion to the President in declaring national monuments. This case does not involve action outside the bounds of the President’s Antiquities Act authority, and therefore Plaintiffs have failed to establish a waiver of sovereign immunity. Reich, 74 F.3d at 1329. 3 AOCC spends considerable briefing explaining that it has made statements alleging that the President violated the Antiquities Act, but its argument is circular because it depends on Plaintiffs’ contention that the Antiquities Act has been impliedly amended. AOCC ECF 49 at 10. Simply stating that the President violated the Antiquities Act does not truly challenge compliance with its statutory requirements. Not once does AOCC contend that biodiversity is not an “object” within the meaning of the statute, or that the Monument is too large. Id. Case 1:17-cv-00280-RJL Document 53 Filed 09/13/18 Page 9 of 26 9 deviated from the delegation of authority from Congress. It is Plaintiffs’ allegations in this case that preclude judicial review.4 Moreover, Plaintiffs’ response fails to explain why the O&C Act constrains the President’s delegated authority to designate National Monuments since the Act’s purpose is to provide management direction to the Secretary of the Interior for certain lands. As explained previously, the O&C Act is directed at the Secretary of the Interior’s management; it neither imposes any statutory requirements on the President nor strips him of any authority. 43 U.S.C. § 2601. Even with prodding, Plaintiffs do not explain how the President could violate duties specific to the Secretary of the Interior. Instead, their focus is misdirected to the actual land, rather than the statutory language that specifies how the Secretary of the Interior must manage those lands. Id. This is a distinction with a difference, especially in light of Congress’ subsequent legislation promoting and providing additional protections for these specific Monument lands. See Omnibus Public Land Management Act of 2009, Pub. L. No. 111-11, 123 Stat. 991, sections 1401-1405 (2009). Congress certainly recognized the existence of different land uses within the Monument, separate and apart from on-going Secretarial management of those lands. See id. at Section 1402(b)(2) (Interior “shall not establish any new allotments for livestock grazing that include any Monument land (whether leased or not leased 4 Under these circumstances, close attention to the Plaintiffs’ pleaded allegations is not formalistic. Mountain States, 306 F.3d at 311 (“the court is necessarily sensitive to pleading requirements where, as here, it is asked to review the President’s actions under a statute that confers very broad discretion on the President and separation of powers concerns are presented.”). Case 1:17-cv-00280-RJL Document 53 Filed 09/13/18 Page 10 of 26 10 for grazing on the date of enactment of this Act).”); Id. §§ 1403; 1404(a) (“For the purpose of protecting and consolidating Federal land within the Monument, the Secretary— (1) may offer to convey to Deerfield Learning Associates the Federal parcel in exchange for the Deerfield parcel.”) (emphasis added).5 More fundamentally, as illustrated by this subsequent legislation, Congress does not consider the Presidential action of creating the Monument and the Secretary of the Interior’s management of O&C lands to be mutually exclusive.6 It fully recognized the existence of the Monument, and how Secretarial management within the boundaries could be affected, but nevertheless provided additional protections to lands within the Monument. Id. Plaintiffs have not shown that Congress intended the O&C Act to diminish the President’s powers under the Antiquities Act. And as Interior’s management of the Monument has shown the O&C and Antiquities Acts 5 Similarly, Proclamation 9564 is not the first federal action that has diminished timber harvests under the O&C Act but triggered no response from Congress. For decades now, Congress has considered the effect of reserves on O&C lands, and while it has enacted legislation to counter the financial effects of those reserves on the counties, it has not enacted any legislation that contradicts or calls into question BLM’s management of those lands to satisfy its statutory mandates. See Secure Rural Schools and Community Self-Determination Act of 2000, Pub. L. 106- 393 § 2(a), 114 Stat. 1607 (Findings and Purpose) (H.R. 2389); Pub. L. 110-343, Title VI, § 601 (H.R. 1424) (2008 Reauthorization of U.S.C. § 7101, section 3); Pub. L. 114-10 § 524, (2015 Reauthorization). 6 Cf. Morton v. Mancari, 417 U.S. 535, 548-49 (1974) (Congress’ retention of Indian employment preference in statutes post-dating EEOC Act of 1972 refuted argument that it intended Act to repeal the preference because ascribing such contradictory intentions would “attribute[] to Congress irrationality and arbitrariness.”). Case 1:17-cv-00280-RJL Document 53 Filed 09/13/18 Page 11 of 26 11 can apply to the same lands, without conflict.7 The premise of Plaintiffs’ argument, that there is a direct statutory conflict between the O&C Act and the Antiquities Act which in turn provides the extraordinary avenue of ultra vires judicial review of a Presidential proclamation, fails at its most fundamental point. The statute allegedly giving rise to Plaintiffs’ perceived conflict (O&C Act) does not even apply to the President, and there is another statute (FLPMA) that expressly forecloses the Secretary of the Interior from providing the relief Plaintiffs seek here. The President has not acted outside the Act’s delegated authority but rather, in a manner consistent with Congressional action following the original designation. To invoke the ultra vires exception for judicial review absent a waiver of sovereign immunity, there must be something more than what Plaintiffs have presented here. Plaintiffs have failed to demonstrate that ultra vires judicial review is warranted under these circumstances. B. The Monument Boundary Modification is Not Ultra Vires as a Matter of Law. Plaintiffs continue to argue that O&C lands must be managed exclusively for maximum commercial timber harvest. AOCC ECF 49 at 17 (arguing the sole 7 Congress clearly envisioned a subordinate role for Interior relative to the President vis-a-vis Antiquities Act authority. In the Federal Land Policy and Management Act (“FLPMA”), which grants the Secretary of the Interior authority to withdraw public lands, Congress expressly prohibited the Secretary from modifying or revoking National Monuments established under the Antiquities Act. 43 U.S.C. § 1714(j); see also (H.R. Rep. No. 94-1163 at 9 (1976)). Case 1:17-cv-00280-RJL Document 53 Filed 09/13/18 Page 12 of 26 12 mandate in the O&C Act is that timber must be “sold, cut and removed”); AFRC ECF 49 at 11 (“the term ‘permanent forest production’ can only mean forest management that results in the sale and removal of timber . . . ”).8 Plaintiffs make no allowance for reserves or areas that are set aside for purposes other than the “sale and removal” of timber. Id. The fundamental problem is that the Secretary of the Interior is not required to harvest all trees on O&C lands as the Plaintiffs suggest. There are, and have been for decades, reserves or set-asides within the larger O&C land base where “permanent forest production” encompasses the permissible and legal management of areas without scheduled commercial timber harvest. See Fed. Defs.’ Cross-Mot. for Summ. J. Ex. Nos. 6, 7, 8, 9 (ECF No. 46-2) (reflecting various reserves where certain stands of commercial timber are not sold and removed according to certain silvicultural prescriptions on a particular rotation length). The Secretary of the Interior, acting through BLM, retains considerable discretion to manage O&C lands under the principle of sustained yield to effectuate a number of purposes, including watershed protection and recreation. The President’s removal of roughly 16,500 acres from the harvest land base through the Antiquities Act does not run afoul of the O&C Act’s permanent forest production 8 AFRC states that “no timber production will occur on these lands.” AFRC ECF 49 at 10 (emphasis in original). That assertion is not accurate. See Proc. No. 7318, 65 Fed. Reg. 37249, 37250 (June 9, 2000) (“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. Any such project must be consistent with the purposes of this proclamation.”) (emphasis added); Proclamation 9564, 82 Fed. Reg. 6145, 6146 (January 12, 2017) . Case 1:17-cv-00280-RJL Document 53 Filed 09/13/18 Page 13 of 26 13 mandate.9 Even if the Court reviews Proclamation 9564, there is no direct statutory conflict and the Monument is not ultra vires as a matter of law. 1. This Circuit has Confirmed that Monument Lands Can Have a Dual Status and Overlapping Statutory Purposes. Plaintiffs rely heavily on the Ninth Circuit’s decision in Headwaters v. Bureau of Land Management, 914 F.2d 1174, 1183 (9th Cir. 1990), for the point that permanent forest production is the dominant purpose on O&C lands. AOCC ECF 49 at 25; AFRC ECF 49 at 8. They argue that because: (1) the Ninth Circuit characterized permanent forest production as the dominant purpose on O&C lands, and (2) President Clinton’s designation established the Monument as the dominant reservation on a subset of those lands, these statuses are mutually exclusive and therefore the Monument boundary modification is ultra vires. AFRC ECF 49 at 3. As explained above and in our previous brief, Plaintiffs’ incorrect reading of the O&C Act is inconsistent with the Secretary and BLM’s long-standing implementation of the O&C Act, under which not every acre of O&C lands must be offered for commercial timber harvest to effectuate the Act’s dominant purpose. More importantly, Plaintiffs almost entirely ignore this Circuit’s controlling 9 Plaintiffs quote extensively from a 2008 Final Environmental Impact Statement on the Western Oregon Plan Revisions for the proposition that the O&C Act cannot support multiple objectives, like watershed protection. AOCC ECF 49 at 18 (Exhibit M to Supplemental Declaration of Per Ramfjord). Plaintiffs, however, fail to disclose that the Records of Decisions culminating BLM’s decisionmaking process were challenged, and that BLM did not oppose vacatur of these plan amendments, primarily because BLM had failed to properly account for endangered species and the impacts on watersheds. Pacific Rivers Council v. Shepard, No. 03:11-cv-442-HU (Mar. 20, 2012, D. Or.), ECF 72 at 10 (district court adopting the magistrate judge’s recommendation to vacate the Western Oregon Plan Revision amendments). Case 1:17-cv-00280-RJL Document 53 Filed 09/13/18 Page 14 of 26 14 precedent establishing that Monument lands can enjoy a dual status and fulfill overlapping statutory mandates. Tulare Cty. v. Bush, 306 F.3d 1138 (D.C. Cir. 2002); Mountain States, 306 F.3d at 1136. What Plaintiffs fail to acknowledge is that this Circuit has recognized (not once, but twice) that Monument lands are not relegated to an exclusive statutory purpose. By definition, dual does not mean exclusive. Plaintiffs do not dispute that lands within the Monument retain their status under the O&C Act. See Proclamation. No. 9564, 82 Fed. Reg. at 6149. Nothing in this proclamation shall be deemed to revoke any existing withdrawal, reservation, or appropriation; however, the monument shall be the dominant reservation.”); see also Proc. No. 7318, 65 Fed. Reg. at 37250 (“The Secretary of the Interior shall manage the monument through the [BLM], pursuant to applicable legal authorities (including where applicable the [O&C] Act of August 28, 1937, as amended (43 U.S.C. § 1181a-1181j . . . .”). More specifically, although lands inside the Monument are subject to the prohibitions set forth in the original Proclamation, the Secretary of the Interior is also responsible for managing these lands under other applicable legal authorities, including the O&C Act. Thus, these Monument lands have overlapping statutory purposes. And this is where Tulare County and Mountain States are particularly instructive. In Tulare County and Mountain States, the plaintiffs argued that because the disputed lands had been reserved by Congress for certain purposes, the President could not designate those lands as a Monument because it would create a statutory Case 1:17-cv-00280-RJL Document 53 Filed 09/13/18 Page 15 of 26 15 conflict with how those lands were managed. For example, in Tulare County the disputed lands were originally part of the Sequoia National Forest and thus subject to the National Forest Management Act (“NFMA”), providing the Forest Service with the authority to manage these lands for a number of purposes, some of which were clearly in tension with the Monument’s prohibitions. Similar to the O&C Act, NFMA requires that National Forest System lands be administered for timber, among other uses, and authorizes timber sales on National Forest System lands in an amount “equal to or less than a quantity which can be removed from such forest annually in perpetuity on a sustained-yield basis . . . ” 16 U.S.C. § 1611. NFMA also provides that “no land now or hereafter reserved or withdrawn from the public domain as national forests . . . shall be returned to the public domain except by an act of Congress.” 16 U.S.C. § 1609. But like the Monument here, the Proclamation designating the Giant Sequoia Monument stated that “[a]ll federal lands and interests in lands within the boundaries of this monument are hereby appropriated and withdrawn from entry, location, selection, sale, leasing, or other disposition under the public land laws . . . ” Tulare Cty., 306 F.3d at 1143 (emphasis added). Because of the perceived conflict, Plaintiffs argued that the Monument prohibitions precluded management under NFMA, i.e., there was an irreconcilable conflict. Id. Obviously, there was tension, if not outright conflict, between Congress’ instruction as to how the Forest Service must manage these lands under NFMA and the prohibitions created by the President designating Giant Sequoia Monument under the Antiquities Act. Indeed, 16 U.S.C. § 1609 uses affirmative language Case 1:17-cv-00280-RJL Document 53 Filed 09/13/18 Page 16 of 26 16 clearly stating that no National Forest lands “shall be returned to the public domain except by an act of Congress.”10 The D.C. Circuit, however, reconciled this by acknowledging a dual status for federal lands classified as Monuments. Tulare Cty., 306 F.3d at 1143. Even though it recognized the Monument as the “dominant” reservation and expressly acknowledged the tension with 16 U.S.C. § 1609, it nevertheless held that “[t]he Proclamation thus conceives of the designated land as having a dual status as part of both the Monument and the Sequoia National Forest” and continued by finding that it “is therefore wholly consistent with NFMA.” Id. at 1143. The D.C. Circuit recognized that, while designations under the Antiquities Act can create tension with pre-existing statutory obligations, Congress’ delegation of authority to the President under the Antiquities Act permits 10 AOCC’s passing attempt to distinguish Tulare County on the basis that there was “no identified conflict” lacks support. AOCC ECF 49 at 31. Clearly, the plaintiffs in that case, as well as the D.C. Circuit, noted the tension between NFMA and the Proclamation. 306 F.3d at 1143 (dismissing county’s claim that “the current management of the Monument violates NFMA”). Likewise, AOCC’s attempt to distinguish the string of Antiquities Act cases as merely providing “overlapping protections” is an oversimplification. In their attempt to distinguish NFMA from the O&C Act, Plaintiffs mischaracterize both, simultaneously minimizing the Forest Service’s mandate under NFMA to accommodate timber production and BLM’s discretion under the O&C Act to set the Allowable Sale Quantity (“ASQ”) for O&C lands. See, e.g., 16 U.S.C. § 528 (“the national forests . . . shall be administered for outdoor recreation, range, timber, watershed, and wildlife and fish purposes.”); The Lands Council v. McNair, 537 F.3d 981, 990 (9th Cir. 2008) (en banc) (“[I]t has never been the case that “the national forests were . . . to be ‘set aside for non- use.’”); Swanson Grp. v. Salazar, 951 F.Supp. 2d 75, 82 (D.D.C. 2013) (“Indeed, BLM has discretion as to establishing the ASQ.”), overruled on other grounds, 790 F.3d 235 (D.C. Cir. 2015). As noted above, the D.C. Circuit’s express recognition of 16 U.S.C. § 1609 in its Tulare County opinion had nothing to do with “overlapping protections” but rather involved whether these lands were impermissibly being “returned to the public domain without an act of Congress.” Case 1:17-cv-00280-RJL Document 53 Filed 09/13/18 Page 17 of 26 17 reservations of public land for dual and overlapping statutory purposes, and this does not conflict with Congressional intent. Id.; cf. United States v. California, 436 U.S. 32, 40-41 (1978) (recognizing that a “reservation under the Antiquities Act thus means no more than that the land is shifted from one federal use, and perhaps from one federal managing agency, to another”).11 As the court succinctly stated in Utah Ass’n of Counties v. Bush when confronted with a similar Antiquities Act claim, “[s]tatutory overlap is not unusual.” 316 F. Supp. 2d 1172, 1192 (D. Utah 2004); see also Morton, 417 U.S. at 551 . Here lies the deficiency in Plaintiffs’ Headwaters argument. Besides the fact that Headwaters is not controlling in these cases, Plaintiffs’ reading of it does not comport with this Circuit’s more nuanced evaluation of Antiquities Act claims. Dual status embraces more than one use.12 BLM retains discretion under the principle of sustained yield to accommodate a variety of activities on O&C lands. 11 As the district court in Tulare County recognized, Congress can limit Presidents’ use of the Antiquities Act. Tulare Cty. v. Bush, 185 F. Supp. 2d 18, 27 n.2 (D.D.C. 2001), aff'd, 306 F.3d 1138 (D.C. Cir. 2002). The Tulare County court suggested that the Weeks Act, which expressly provides that certain lands be “permanently reserved, held and administered as national forest lands,” is an example of such a limitation, id. (citing 16. U.S.C. § 521), but the O&C Act contains no such express reservation language. Congress has also expressly limited presidential authority to designate national monuments in particular areas, but has not done so with respect to lands in southern Oregon. See 54 U.S.C. § 320301(d) (limiting the President’s authority to extend or establish National Monuments in Wyoming without first obtaining express authorization of Congress). 12 A necessary predicate for dual status, of course, is that the lands must be in federal ownership. United States v. California, 436 U.S. at 40. For that reason, the Office of Legal Counsel opinion regarding the sale of Governor’s Island Plaintiffs discuss, AOCC ECF 49 at 15, does not apply here; lands that Congress has designated for permanent alienation lack any federal status. Case 1:17-cv-00280-RJL Document 53 Filed 09/13/18 Page 18 of 26 18 See 43 U.S.C. § 2601 (Congress contemplating management in manner “providing recreational facilities”). This does not mean BLM has unfettered authority under the Act, but the principle of sustained yield is not as rigid as Plaintiffs make it out to be. And if BLM retains this discretion under the O&C Act, Plaintiffs fail to explain the more dispositive question of why the President invoking delegated authority from Congress should be held to some more exacting standard. The D.C. Circuit recognizes that statutory tension does not preclude the lawful exercise of delegated authority by the President to create National Monuments, even if that designation alters the existing management of those lands. Plaintiffs’ failure to meaningfully address these controlling precedents, Tulare County and Mountain States, is more than telling. Proclamation 9564 is not ultra vires. 2. Plaintiffs’ Reliance on the Non Obstante Clause and the Solicitor’s Legal Memorandum is Misplaced. Even before the Monument was designated by President Clinton, BLM removed these O&C lands from commercial timber harvest. As explained in our opening brief, the precursor to the Monument was the Cascade Siskiyou Ecological Emphasis Area (“CSEEA”). See Mem. in Supp. of Fed. Defs.’ Cross-Mot. for Summ. J. & Opp’n to Pl.’s Mot. for Summ. J. , ECF 47 at 12-14 (“Defs.’ Br. ECF 47”). The CSEEA prohibited timber harvest for 10 years as reflected in the BLM’s 1995 Resource Management Plans. Defs.’ Ex. 11 at 73, ECF No. 46-2. Indeed, throughout southern Oregon and northern California, BLM consistently exercised Case 1:17-cv-00280-RJL Document 53 Filed 09/13/18 Page 19 of 26 19 its discretion under the O&C Act to exclude suitable timberlands from commercial timber harvest for a variety of reasons. Id. Out of roughly 2.1 million acres of O&C lands, hundreds of thousands of acres are not subject to commercial timber harvest. See e.g., Defs. Br. ECF 47 at 12 n.4 (providing reserve numbers from the 2016 RMP). Even within the Monument boundary expansion, of the 39,841 acres designated as O&C lands, only 16,448 acres were previously included within the “harvest land base” in the 2016 RMP. And the courts that have considered this issue have found reserves on O&C lands legally permissible. Portland Audubon Society v. Babbitt, 998 F.2d 705 (9th Cir. 1993); Swanson Grp, 951 F. Supp. 2d at 79; Seattle Audubon Soc’y v. Lyons, 871 F. Supp. 1291, 1314 (W.D. Wash. 1994), aff’d, 80 F.3d 1401 (9th Cir. 1996) (per curiam). Against this factual and legal backdrop, as well as BLM’s longstanding practice of creating reserves on O&C lands, Plaintiffs argue that a non obstante clause and a legal memorandum from the 1940s should control the outcome in this case. Both assertions lack merit. First, Plaintiffs over-read the non obstante clause in the O&C Act. According to Plaintiffs, whenever there is perceived statutory tension, the Court should decline to evaluate whether there is an actual statutory conflict, and should instead simply presume the non obstante clause to be controlling, thereby eliminating any perceived tension. AOCC ECF 49 at 15 (“the assessment of whether a sufficient conflict exists to apply the non obstante clause itself cannot be based on a ‘struggle to harmonize’ the O&C Act with the Antiquities Act in the name of the presumption Case 1:17-cv-00280-RJL Document 53 Filed 09/13/18 Page 20 of 26 20 against implied repeal.”). Plaintiffs’ approach would flip the presumption against implied repeals on its head. Foregoing a threshold analysis of whether there is truly an irreconcilable statutory conflict before finding an implied repeal operative is decidedly not the law. Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612, 1624 (2018); Morton, 417 U.S. at 551 (“[T]he intention of the legislature to repeal must be clear and manifest.”).13 And the Supreme Court has stressed that there must be an irreconcilable conflict – not simply tension – to warrant a finding that the earlier statute has been impliedly repealed. Morton, 417 U.S. at 545-46 (statute prohibiting discrimination in employment on the basis of ‘race, color, sex, or national origin’ did not repeal employment preference for qualified Indians at Bureau of Indian Affairs); Radzanower v. Touche Ross & Co., 426 U.S. 148, 155 (1976) (“It is not enough to show that the two statutes produce differing results when applied to the same factual situation, for that no more than states the problem.”). The primary deficiency in Plaintiffs’ argument is that the non obstante clause 13 Plaintiffs also claim that BLM recently confirmed their interpretation of the non obstante clause in a separate case. But that case does not address the issue of what effect, if any, the O&C Act’s non obstante clause has on earlier legislation concerning Presidential authority. To the contrary, that case addresses BLM’s duty to harmonize the O&C Act with later-enacted legislation directed at the agency. The footnote Plaintiffs now cite made that simple point in response to the plaintiff’s selective reliance on certain irrelevant agency documents. Ass’n of O&C Counties v. Steed, Case No. 1:16-cv-01602-RJL (ECF No. 23) (noting early interpretations of O&C Act did not address “whether or how to reconcile the [Endangered Species Act] and the O&C Act.”). Case 1:17-cv-00280-RJL Document 53 Filed 09/13/18 Page 21 of 26 21 explicitly calls for a statutory conflict before it becomes operable. See Pub. L. No. 75-405, 50 Stat. at 876. (“in conflict with this Act”). And this determination must be made within the context to which it is applied. Miccosukee Tribe of Indians of Fla. v. U.S. Army Corps of Engr’s, 619 F.3d 1289, 1299 (11th Cir. 2010) (“A general repealing clause is explicit only in the sense that it is announcing a repeal of ‘all law’ or ‘any law’ or ‘federal laws’—its actual reach depends on an analysis of the statutory language relevant to it.”). Reserving some O&C lands in order to fulfill other statutory mandates is consistent with sustained yield management. See e.g., Lyons, 871 F. Supp. at 1314. There is no irreconcilable conflict in reserving 16,500 acres of the 2.1 million under the Act’s purview to fulfill statutory purposes other than permanent timber production. Cf. Radzanower, 426 U.S. at 156 (no implied repeal where application of earlier and conflicting venue provision would have “no impact whatever upon the vast majority of lawsuits” brought under later statute). In the face of this precedent, Plaintiffs urge this Court to find that Congress, in an Act addressing only the Secretary’s management of the lands,14 fully intended to pre-empt and curtail delegated Presidential authority under the Antiquities Act, based on their misinterpretation of the O&C Act. But Congress “does not … hide 14 The failure of the O&C Act to address Presidential power also counsels against finding that Congress intended it to repeal the Antiquities Act. Courts require an express statement from Congress that a statute applies to presidential action, not merely an implication. See Franklin v. Massachusetts, 505 U.S. 788, 800-01 (1992) (“Out of respect for the separation of powers and the unique constitutional position of the President, we find the textual silence is not enough . . . We would require an express statement by Congress before assuming it intended the President’s performance of his statutory duties to be reviewed for abuse of discretion.”). No such express statement is in the O&C Act. Case 1:17-cv-00280-RJL Document 53 Filed 09/13/18 Page 22 of 26 22 elephants in mouseholes.” Whitman v. Am. Trucking Associations, 531 U.S. 457, 468 (2001), see also American Bar Ass’n v. FTC, 430 F.3d 457, 467 (D.C. Cir. 2005). There is no direct statutory conflict here. Plaintiffs’ approach to implied repeals is not warranted under these circumstances. Miccosukee Tribe, 619 F.3d at 1299 (“Without that careful analysis, a general repealing clause is a blunt tool prone to repeal too little or too much.”); see also TVA v. Hill, 437 U.S. 153 (1978). Second, as we explained previously, Solicitor M-Opinions convey legal opinions to assist Department of the Interior components in interpreting and implementing statutes, but they are not legislative rules and do not go through notice-and-comment rulemaking procedures. McMaster v. United States, 731 F.3d 881, 896 (9th Cir. 2013). It is true that in 1940 the Solicitor of the Department of the Interior provided an opinion on the scope of Presidential (as opposed to Departmental) authority. However, over the ensuing eight decades, BLM has excluded O&C lands from the harvest land base, thereby reducing the Allowable Sale Quantity (“ASQ”). See Defs.’ Ex. 8 [IND_0513027] (providing BLM’s interpretation of how it arrives at ASQ on O&C lands: “The BLM makes this determination of the annual productive capacity (or allowable sale quantity (ASQ) accounting for the requirements of compliance with other laws and with consideration of the objectives, land use allocations, and management direction of the RMP, which affect the amount of timber that each of the sustained yield units can produce.”) (Emphasis added). Moreover, the legal regime governing federal lands has changed since this memorandum was written. Portland Audubon Soc'y, Case 1:17-cv-00280-RJL Document 53 Filed 09/13/18 Page 23 of 26 23 998 F.2d at 709 (“We find that the plain language of [the O&C Act] supports the district court's conclusion that the Act has not deprived the BLM of all discretion with regard to either the volume requirements of the Act or the management of the lands entrusted to its care.”); see also Portland Audubon Soc'y v. Lujan, 795 F. Supp. 1489, 1500–02 (D. Or. 1992); see also Defs. Ex. 10 (reflecting BLM’s recognition of the changing legal regime). The memorandum cannot be read in isolation; nor can it be read without regard the last 70-plus years of the BLM’s management O&C lands and the body of caselaw, which has developed regarding the O&C Act. See Skidmore v. Swift, 323 U.S. 134, 130 (1944) (deference to a position hinges in part on “its consistency with earlier and later pronouncements.”) Compare with McMaster, 731 F.3d at 892 (Solicitor’s opinion under consideration analyzed not only “text, purpose, and legislative history of the Wilderness Act” but also “the ‘modern judicial treatment of valid existing rights with respect to legislation affecting mining claims and patents.’”). III. CONCLUSION The Court should grant Federal Defendants’ cross motion for summary judgment and deny AOCC and AFRC’s motions for summary judgment. Federal Defendants respectfully request the Court to enter judgment on their behalf. Respectfully submitted September 13, 2018. JEFFREY H. WOOD Acting Assistant Attorney General Case 1:17-cv-00280-RJL Document 53 Filed 09/13/18 Page 24 of 26 24 /s/ Coby Howell COBY HOWELL Senior Trial Attorney Wildlife & Marine Resources Section Environment & Natural Resources Division U.S. Department of Justice c/o U.S. Attorney’s Office 1000 SW Third Avenue Portland, OR 97204-2902 (503) 727-1000 (Tel.); (503) 727-1117 (Fax) Email: Coby.Howell@usdoj.gov JACQUELINE M. LEONARD United States Department of Justice Environment & Natural Resources Division Natural Resources Section P.O. Box 7611 Washington, D.C. 20044 Phone: (202) 305-0493 Fax: (202) 205-0506 Email: Jacqueline.Leonard@usdoj.gov Attorneys for Federal Defendants CERTIFICATE OF SERVICE I hereby certify that on September 13, 2018, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system, which will send notification of such filings to the parties entitled to receive notice. /s/ Coby Howell COBY HOWELL Senior Trial Attorney Wildlife & Marine Resources Section Environment & Natural Resources Division Case 1:17-cv-00280-RJL Document 53 Filed 09/13/18 Page 25 of 26 25 U.S. Department of Justice c/o U.S. Attorney’s Office 1000 SW Third Avenue Portland, OR 97204-2902 (503) 727-1000 (Tel.); (503) 727-1117 (Fax) Email: Coby.Howell@usdoj.gov Case 1:17-cv-00280-RJL Document 53 Filed 09/13/18 Page 26 of 26