[00:00:00] Speaker 01: In case number 20.5808, et al. [00:00:03] Speaker 01: American Forest Resource Council versus United States of America, et al. [00:00:07] Speaker 01: Soda Mountain Wilderness Council, et al. [00:00:10] Speaker 01: et al. [00:00:11] Speaker 01: Mr. Toad for the federal appellants. [00:00:13] Speaker 01: Ms. [00:00:13] Speaker 01: Boyles for the appellants of Soda Mountain Wilderness Council, et al. [00:00:17] Speaker 01: Mr. Bechtel for the Appellee's American Forest Resource Council, et al. [00:00:21] Speaker 01: Mr. Ramfjord for the Appellee's Association of Owens County, et al. [00:00:26] Speaker 01: Ms. [00:00:26] Speaker 01: Weiss or the Apple East Starfire Lumber Goat and South Coast Lumber Goat. [00:00:31] Speaker 07: Good morning. [00:00:33] Speaker 07: May I proceed? [00:00:33] Speaker 07: Yes. [00:00:36] Speaker 07: May I please the court? [00:00:38] Speaker 07: As this court knows, this set of appeals arises from disputes concerning approximately 2 million acres of federal managed land in the Pacific Northwest. [00:00:48] Speaker 07: It has been managed for decades with an understanding that there is a balancing [00:00:53] Speaker 07: when it comes to applying multiple statutes that dictate the management of the complex set of natural resources in this region. [00:01:03] Speaker 07: The district court here preserves the role and erroneously disrupted that settled understanding of how these lands are managed. [00:01:11] Speaker 07: And that settled understanding has been sent to you by Congress through a series of attempts. [00:01:16] Speaker 07: And the district court here erred in many respects that we outlined in our brief. [00:01:21] Speaker 07: But I'd like to focus my presentation this morning [00:01:23] Speaker 07: on one overriding theme, which is that the district court failed to rigorously oppose it on plaintiffs. [00:01:31] Speaker 04: Could you move a little closer to the back there? [00:01:34] Speaker 07: The district court failed to rigorously apply plaintiffs their heavy burden under epic systems to demonstrate a clear congressional intent that the Oregon and California Lands Act displaced the government's other responsibilities under other applicable statutes. [00:01:51] Speaker 07: The court's failure here [00:01:53] Speaker 07: It stems from three different components of the analysis, statutory text, the statutory history, and finally, the congressional enactments that demonstrate Congress's implicit assent to the way that the Secretary of the Interior and the President have been managing these lines for decades. [00:02:14] Speaker 07: Before I turn to those argument points, I'd like to just provide a little bit of context. [00:02:19] Speaker 07: or why this is such an extraordinary set of cases. [00:02:23] Speaker 07: The district court's decisions were unprecedented in three different respects. [00:02:26] Speaker 07: As to the monument challenge, this is the first time that a district court that we know of has ever issued a declaratory relief against the president invalidating presidentially proclaimed national monuments. [00:02:39] Speaker 07: The Antiquities Act was enacted in 1910. [00:02:43] Speaker 07: It's been on the books for over 100 years. [00:02:45] Speaker 07: Yet this is the first district court to invalidate [00:02:47] Speaker 07: presidential proclamation of a national monument. [00:02:50] Speaker 07: As to the plan cases, this district court decision is unprecedented because for over 25 years, with the approval of the district courts in the Western District of Washington and the District of Oregon, as affirmed by the Ninth Circuit, there has been a management regime in place known as the Northwest Forest Plan Amendment. [00:03:11] Speaker 07: And that has been accepted as a compromise between timber industry and environmental interests. [00:03:18] Speaker 07: as in always, you know, sometimes it works out to the benefit of one side or the other, but it has been understood to be a settled balance for land management. [00:03:28] Speaker 07: And again, the district court disrupted that settled understanding. [00:03:32] Speaker 07: Contrary to the only court ever to consider the question of whether the ONCF and the reserves on land managed land can be reconciled. [00:03:43] Speaker 04: And then finally... When you say the question is whether the O and C Act has displaced other statues, don't you have it in reverse? [00:03:53] Speaker 04: It's whether this proclamation under the monuments has displaced the O and C Act. [00:04:03] Speaker 04: That's been in existence since the 30s, so it's not displacing anything. [00:04:08] Speaker 04: The question is whether it's being displaced. [00:04:10] Speaker 07: Well, I think you could look at it either way. [00:04:13] Speaker 07: The way I'm seeing it is the president exercised the authority under the statute that existed before the ONC Act. [00:04:20] Speaker 07: And so you have to look to, and I don't know that the timing necessarily indicates the outcome because we have statutes that were passed before the ONC Act. [00:04:28] Speaker 07: We have statutes that were passed after the ONC Act. [00:04:31] Speaker 07: I think the fundamental mode of analysis is to look to whether plaintiffs have met their clear burden. [00:04:36] Speaker 07: demonstrating that. [00:04:38] Speaker 04: What's the statute other than the Antiquities Act and it's not the Monument Act. [00:04:45] Speaker 04: But what's another statute that has, I mean the Antiquities Act is older than the ONC Act. [00:04:54] Speaker 04: What other statutes are you talking about that are more recent than the ONC Act? [00:04:58] Speaker 07: For the plan, they're relevant to the plan cases, not the monument cases directly, but the Clean Water Act and the endangered species later enacted. [00:05:06] Speaker 07: But still, I think the timing is useful to look at. [00:05:10] Speaker 07: Certainly, we're turning to the monument case first. [00:05:13] Speaker 07: I think there is a clear path to reversal in that the Communities Act expressly confers powers on the president himself. [00:05:24] Speaker 07: The Oregon and California Lands Act doesn't mention the president at all. [00:05:28] Speaker 07: And you would expect that if it's going to take away those expressly delegated powers, which my friends on the other side point out stemmed from Congress's exercise of its property clause authority, it lawfully delegated that through the Antiquities Act to the president. [00:05:42] Speaker 07: You would expect that if Congress intended to take that back, it would mention the president in Oregon and California. [00:05:51] Speaker 07: And they don't. [00:05:52] Speaker 07: that sets that case apart from the plan challenges in the response center, and is a way that shows that the statutes can be reconciled. [00:06:00] Speaker 07: And therefore, under graphic systems, they must. [00:06:03] Speaker 02: So I understand your position to be that a president's action under the Antiquities Act is not reviewable. [00:06:11] Speaker 02: And how do you square that with the Reich case? [00:06:14] Speaker 07: So the Reich case involved the two different, you know, the executive order under the Chairman Act, [00:06:21] Speaker 07: by the president, and then it was held to conflict with the National Labor Relations Act. [00:06:26] Speaker 07: The government argued there that the statutes did not facially conflict, and that was the distinction. [00:06:31] Speaker 07: We would say it's the same distinction here. [00:06:33] Speaker 07: There is no facial conflict between the mention of the president in the Antiquities Act and the Oregon-California Relations Act. [00:06:42] Speaker 07: So we recognize that the government lost on that argument under those different statutes in Reich. [00:06:47] Speaker 07: We think here it's a [00:06:48] Speaker 07: easier case that it's not well it's not an easy but it's an easier question even applying the framework and right there isn't a facial conflict between the antiquities act and the oregon california it can be reconciled so it becomes a matter of how much so so in your view could the president designate the entire [00:07:11] Speaker 07: um o and c land tract as a monument i think that would be in a reconcilable conflict just on the facts if those were the facts pleaded i assume you know the proclamations here announced the acreage right so it's that you know they're publicly known on the face of the proclamation that in that hypothetical way designate the entire acreage that seems to be in a reconcilable conflict the order in california lands act deals with an entire set of lands you know it stems from this um remedy that was given to the counties for [00:07:41] Speaker 07: violation of these original grants to the railroads, where they didn't give away the land on the terms that Congress had constructed. [00:07:47] Speaker 02: But that would make it reviewable, just saying the result would be an irreconcilable conflict. [00:07:53] Speaker 02: Don't we have to review what the president did to determine if there is a conflict or not? [00:07:58] Speaker 02: I think that's the dilemma. [00:08:00] Speaker 07: And that's why there aren't a lot of cases that squarely address this. [00:08:05] Speaker 07: It doesn't seem like the Mount States case or the Tulare case [00:08:10] Speaker 07: There's a little fuzziness to the analysis because of the overlap, the merits question, and the reviewability question. [00:08:16] Speaker 07: I think where you are here is trying to judge whether the amount of acreage that was set aside is too much. [00:08:24] Speaker 07: And that's in the monument. [00:08:26] Speaker 07: And I think that's a question of the exercise of the president's discretion that is not reviewable under Franklin and under Dalton. [00:08:34] Speaker 02: But why isn't it just reviewable, but it's reconcilable once we review it? [00:08:39] Speaker 07: You know, we recognize that we're bound by right. [00:08:43] Speaker 07: I think applying right, we don't think that the proclamation here is, you know, that spatially conflicts with the antiquities act. [00:08:52] Speaker 07: We would just rest on that argument. [00:08:54] Speaker 07: I'm prepared to speak to the merits. [00:08:57] Speaker 07: I recognize that this court has considered presidential actions in the past. [00:09:02] Speaker 07: The Supreme Court has notably never squarely decided to resolve this question. [00:09:06] Speaker 07: So we know that you're preserving [00:09:11] Speaker 07: But if I could turn to the merits a little bit more, not only does the Oregon and California Lands Act not expressly mention the president, but as relevant to both the monument cases and the plan challenges, the statutes can be harmonized. [00:09:30] Speaker 07: The Oregon and California Lands Act, as in its text, a lot of places where there is discretion in the wording. [00:09:37] Speaker 07: And I don't think the district court rigorously looked at the [00:09:41] Speaker 07: as to determine whether there was any play in the joint, which is really all that's necessary for there to be discretion that's, you know, subjects that secretary's obligations to the Endangered Species Act, for example, or the Clean Water Act and cases. [00:09:59] Speaker 07: I just wanted to highlight three features of Section 2601 of Title 43, which is the main text we're talking about in both the planning cases and the monument cases. [00:10:10] Speaker 07: The first feature of the text that provides discretion is that the lands are referred to as those that may heretofore or may hereafter be classified as timberland. [00:10:20] Speaker 07: So there's some discretion whether to classify the lands as timberlands in the first place. [00:10:26] Speaker 04: Do you read that to mean, I read, or may hereafter, not to shrink it, but to expand it, expand it, the classification of timberlands? [00:10:40] Speaker 04: So, I mean, which may be classified heretofore or hereafter. [00:10:49] Speaker 04: It doesn't say, may be classified heretofore, [00:10:54] Speaker 04: Or here after reduced or. [00:10:57] Speaker 07: I think there's a recognition that the classification process could be looked at later, not just that it's redress. [00:11:04] Speaker 07: I agree. [00:11:05] Speaker 07: I agree. [00:11:06] Speaker 07: And I don't think that I mean, it doesn't speak to this. [00:11:10] Speaker 07: Maybe the statute is silent on specifically on revisiting classifications. [00:11:16] Speaker 07: I mean, it might not match to expressly, but I think it's fairly implied that if it can be classified later, that that classification may change. [00:11:26] Speaker 07: After all, they are going to- And reduce. [00:11:28] Speaker 07: Well, I mean, they're going to be cutting lands, right? [00:11:32] Speaker 07: And so the question is whether, and I was very concerned about keeping these lands productive in the long term. [00:11:39] Speaker 07: That was, and this, [00:11:40] Speaker 07: that tells with the statutory history. [00:11:43] Speaker 07: The statute was passed to move away from this clear cutting regime where the timber was just being liquidated for the benefit of generating revenue for the counties. [00:11:52] Speaker 07: And that was one, not generating enough revenue, but two, it was only generating revenue in the short term. [00:11:57] Speaker 07: So Congress, when it passed the 1937 Act, it moved away from that liquidation regime to a sustained yield management regime. [00:12:09] Speaker 07: And so that's the second feature of the statute here that provides some discretion. [00:12:13] Speaker 07: The classification, I think, demonstrates that there is authority to look at the lands and decide which ones are suitable for timberland. [00:12:20] Speaker 07: So that necessarily defeats the district court's assumption that all of the, which I think underlines its orders, that every single acre of these 10 million acres, if it's timberland, had to be covered. [00:12:33] Speaker 04: So I think that the fact that- So what's the second point of discretion in the OECD? [00:12:42] Speaker 07: permanent forest production and the timber being sold, et cetera, in conformity with the principle of sustained yield. [00:12:49] Speaker 07: This notion of sustained yield sort of embodies this concept of government being a steward of the resources. [00:12:55] Speaker 07: It's to get away from this prior liquidated timber regime and to have a forest, essentially a forest that can be [00:13:03] Speaker 07: sustainably used in the long term to produce timber, to generate revenue, and to achieve these other purposes that the statute goes on to talk about after talking about sustained yield, that I think do inform the understanding of that term, protecting watersheds, for example, providing recreational facilities, contributing to economic stability. [00:13:27] Speaker 07: All of those concepts provide a room for both the president [00:13:34] Speaker 07: taking a small fraction of lands, you're talking about? [00:13:37] Speaker 04: I want to get back to the classification point because in 1916, the definition of timberland reduced down to 7,500 board feet per acre. [00:13:58] Speaker 04: Is that correct? [00:13:59] Speaker 04: The 40-acre was $300,000. [00:14:02] Speaker 04: I think that's $7,500 an acre, which is a very dense forest. [00:14:07] Speaker 04: And my question is, in 1916, I imagine the forest in Oregon was just as dense as it could be. [00:14:18] Speaker 04: Is there any area of the Owen Sealand that still meets that? [00:14:23] Speaker 04: I realize that the 1937 Act [00:14:27] Speaker 04: repealed in part at least the 1916. [00:14:31] Speaker 04: And the only definition of what is timberlands that I could find was this 1983 classification used by Interior for timber production capability. [00:14:47] Speaker 04: So can you tell me what it is now that defines timberlands? [00:14:52] Speaker 04: How many board feet per acre? [00:14:55] Speaker 07: I don't know the exact material off [00:14:58] Speaker 07: I'm familiar with that. [00:14:59] Speaker 07: Do you know if it exists? [00:15:01] Speaker 07: They do have criteria. [00:15:04] Speaker 07: They're similar, I believe, to the ones that you just read. [00:15:10] Speaker 07: My point about the classification is not so much that classification is the way that the government segregated the lands here, either through the monument or through the reserves of the plants, but only that when you're looking at the statute, [00:15:24] Speaker 07: And you see that it provides the secretary discretion not to harvest timber on every single acre, be it according to that technical definition or be it according to these other broader concepts like sustained yield. [00:15:37] Speaker 07: But that is enough discretion to defeat this notion that statutes are reconcilable. [00:15:44] Speaker 02: In your view, is the default that the land is not timberland, it has to be affirmatively classified as timberland to be timberland, or is the whole thing [00:15:54] Speaker 02: timberland unless it gets reclassified as something else? [00:15:58] Speaker 07: I think it's the first that it had to be classified. [00:16:03] Speaker 07: And I don't want to get too bogged down in this. [00:16:06] Speaker 07: I think it demonstrates, I think, that not every acre had to be harvested. [00:16:13] Speaker 07: It also indicates that there's some further discretion that the secretary was able to access [00:16:23] Speaker 07: I want to emphasize, and I'm a little into my rebuttal time, but I want to answer the court's questions as fully as I can. [00:16:32] Speaker 07: I'd like to just briefly highlight Congress's activity in this area. [00:16:37] Speaker 07: And I think this is something that's important to construing the statute that the district court just ignored or disregarded altogether. [00:16:45] Speaker 07: And it's that Congress has been very actively engaged in essentially a dialogue that [00:16:52] Speaker 07: court rulings that come out in this area, with the actions of the Secretary of the Interior that have come out, with President Clinton's original proclamation of the monument. [00:17:02] Speaker 07: And Congress has assented to through enactments such as the... Are you getting into acquiescence? [00:17:11] Speaker 04: I'm sorry. [00:17:12] Speaker 04: Are you getting into congressional acquiescence? [00:17:14] Speaker 04: Yes. [00:17:15] Speaker 04: Well, I don't... Well, my colleagues may disagree. [00:17:18] Speaker 04: I don't think you meet those criteria at all. [00:17:22] Speaker 07: I guess I would just highlight that there is a legal backdrop that Congress has been actively engaged in. [00:17:32] Speaker 07: Where it is wanted to adjust monuments, where it is disapproved of monuments, it has adjusted boundaries. [00:17:41] Speaker 07: It can land out of federal ownership altogether. [00:17:43] Speaker 07: It has changed the configuration and given the rightness to be managed by other federal agencies. [00:17:52] Speaker 07: examples of this in our reply brief on pages seven and eight, but no two. [00:17:57] Speaker 00: Well, I mean, your point is not technical acquiescence. [00:18:00] Speaker 00: It's that Congress has never acted to disrupt the fluidity of the situation that we're looking at over the years. [00:18:10] Speaker 00: Your principal argument is this has always changed over the years. [00:18:14] Speaker 00: And the nature of the timber, how much can be harvested, et cetera, has never been static. [00:18:19] Speaker 00: And Congress was sitting there and watching it and they never interposed any objection that would change that. [00:18:25] Speaker 00: I thought that was your argument. [00:18:26] Speaker 00: That's that's right. [00:18:28] Speaker 00: And so it doesn't matter whether it's formal acquiescence. [00:18:31] Speaker 00: It's what's obvious. [00:18:32] Speaker 00: Congress has never disrupted the process of the president being able to claim and the secretary being able to act pursuant to 2601. [00:18:42] Speaker 00: I thought your principal objection on 2601 is the district court just gives it a clipped reading. [00:18:48] Speaker 00: The district court talks simply about gives us strength and we're reading to sustain yield and then ignores everything after timber supply ignores protecting water shares, regulating steam flow, contributing to economic stability and providing recreational facilities. [00:19:07] Speaker 00: That's in the statute that the other side is pointing to. [00:19:10] Speaker 00: Those are all the goals. [00:19:12] Speaker 00: It's not just timber supply. [00:19:15] Speaker 00: I thought that was what you were [00:19:17] Speaker 00: Because when you see some of the district court's decision, it just ignores the rest of 2601, as I recall. [00:19:24] Speaker 07: Yes, that's a fair summary of what the district court did. [00:19:27] Speaker 07: I think the congressional enactment, and yes, it actually is where the court started. [00:19:33] Speaker 07: District court did not consider the entirety of it. [00:19:36] Speaker 07: I recognize I'm in. [00:19:39] Speaker 04: All right, we'll give you some time. [00:19:42] Speaker 04: This boils. [00:19:51] Speaker 05: Good morning. [00:19:53] Speaker 05: Good morning. [00:19:54] Speaker 05: May I please escort? [00:19:55] Speaker 05: My name is Kristen Boyles, and I represent the Interveners Soda Mountain Wilderness Council this morning. [00:20:00] Speaker 05: We are defendant interveners in only the monument cases today. [00:20:06] Speaker 05: And I have about three points to continue the conversation that you've been having with Mr. Toth. [00:20:13] Speaker 05: And let me move to the first one, which is taking off where Judge Edwards, where you just were, [00:20:19] Speaker 05: This question of irreconcilable conflict, and in fact to Japan, you asked as well. [00:20:24] Speaker 05: There is no irreconcilable conflict between these two statutes, which is what you need to do to find, in order to find an implicit repeal. [00:20:34] Speaker 05: The statute talks about, the ONC Act talks about permanent forest production. [00:20:40] Speaker 05: Doesn't talk about commercial timber. [00:20:41] Speaker 05: Doesn't talk about commercial timber production. [00:20:44] Speaker 05: It talks about forest production. [00:20:46] Speaker 05: And then the Act itself, [00:20:47] Speaker 05: goes on to show that it's about more than just the trees in the farts. [00:20:52] Speaker 05: It is about the five goals that the Sustained Yield Act is supposed to protect. [00:20:57] Speaker 05: And those goals are timber, yes. [00:20:59] Speaker 05: They are protecting watersheds, regulating stream flows, helping to contribute to economic stability of these communities, and providing recreational facilities. [00:21:10] Speaker 05: And the district court below aired by saying shall means shall and not reading the rest of the sentence and not reading the rest of what the act requires that shows that this actually that owns the act of 1937 is much more of a conservation land management statute than the timber interests would have you believe. [00:21:34] Speaker 05: This is the the other point to make here in response to some of my [00:21:40] Speaker 05: opposing council is that the proclamations themselves do not prohibit commercial timber harvest. [00:21:47] Speaker 05: It is severely curtailed, absolutely, but it is not prohibited. [00:21:52] Speaker 05: It is allowed if there is a sustained science-based ecological restoration project, which is, as forestry has evolved over the years since 1937, essentially the same sort of science-based [00:22:09] Speaker 05: Forestry management practices that the 1937 Act was envisioning. [00:22:14] Speaker 05: This protection of all of the values of the forest, not just trees. [00:22:17] Speaker 04: Is it in the record how long it took for the other objectives to be pursued other than timber? [00:22:25] Speaker 04: How long? [00:22:26] Speaker 04: How long it took from 1937? [00:22:30] Speaker 05: I understand your question, Your Honor. [00:22:33] Speaker 05: These are all of the goals. [00:22:35] Speaker 05: I know, I'm saying. [00:22:37] Speaker 04: Have the streams always been protected? [00:22:39] Speaker 04: The ESA Act didn't come along until later. [00:22:45] Speaker 04: Was anybody concerned with these other projects before ESA, clean water, all of that? [00:22:57] Speaker 05: So, yes, your honor, I don't know. [00:23:00] Speaker 05: The record shows that the agency here has been acting to use its discretion about the volume of timber and the way it manages those lands since 1937. [00:23:10] Speaker 05: It is not said. [00:23:13] Speaker 05: every acre, every timber sale has to go forward. [00:23:18] Speaker 05: That is not its position. [00:23:19] Speaker 05: It's been quite discretionary. [00:23:21] Speaker 05: And of course, later acts, as you know, come in and provide even more requirements for the agency because it's not unusual for federal land to have multiple laws applied to it. [00:23:35] Speaker 04: Let me ask one more time. [00:23:37] Speaker 04: Does the record affirmatively show that from 1937 on, [00:23:42] Speaker 04: BLM affirmatively pursued the other objectives other than timber. [00:23:50] Speaker 05: I believe it does, Your Honor. [00:23:52] Speaker 05: I will point you to two places in the joint appendix. [00:23:55] Speaker 05: That's joint appendix at 810, starting at 810, and also starting at page 827. [00:24:02] Speaker 05: Those are two solicitor memos from 1981, and I realize that's not the timeframe you're talking about, but that has the history. [00:24:10] Speaker 05: Those two memos have the history looking backwards. [00:24:12] Speaker 05: And I think that can help answer that question. [00:24:16] Speaker 05: I just also want to mention that because there is no clear and manifest intent for Congress to repeal this law, you need to find that intent or the irreconcilable conflict in order to imply a repeal. [00:24:31] Speaker 05: There's nothing in the ONC Act that talks about the Antiquities Act. [00:24:38] Speaker 05: Congress did repeal laws in the ONC Act. [00:24:42] Speaker 05: It knows how to do that when it wants to. [00:24:44] Speaker 05: It repealed the Chamberlain-Farris Act and another public land law. [00:24:48] Speaker 05: And on the issue of not acquiescence, Your Honor, but on Congress's recognition that it doesn't need to step in here because there's no problems, Congress has funded the original monument, which contains ONC Act lands for the last two decades, and approved planning processes for it. [00:25:04] Speaker 05: It has funded voluntary land exchanges and grazing lease [00:25:08] Speaker 05: of buyouts within the original footprint on the monument. [00:25:11] Speaker 05: And when the Antiquities Act was recodified in 2014, Congress did absolutely nothing to indicate that there was a problem with ONC Act lands being part of a monument. [00:25:25] Speaker 05: For those reasons, Your Honor, we would respectfully request that you reverse the decision of the district court and confirm the Cascades ISQ National Monument. [00:25:35] Speaker 05: Thank you. [00:25:37] Speaker 05: Mr. Bechtold? [00:25:51] Speaker 04: Since you're with the American Forest Resource Council, can I just ask you, is there any acreage left that fits the definition of the 1916 Act without regard to whether it still applies? [00:26:05] Speaker 09: Hey, please, the court. [00:26:07] Speaker 09: You did pick up Brad with the 1969. [00:26:09] Speaker 09: He goes back and looks at how many four feet an acre can grow. [00:26:12] Speaker 09: That's a very common thing we do in forestry. [00:26:15] Speaker 09: What you most likely see done is a forest typing. [00:26:17] Speaker 04: Can you move closer? [00:26:18] Speaker 09: Where you would look at the soil type, look at the fertility of the soil, how much rainfall falls in place, what the elevation is. [00:26:24] Speaker 00: Lift the podium up, please. [00:26:27] Speaker 00: There's a button there. [00:26:31] Speaker 00: Bring the mics forward. [00:26:32] Speaker 00: Our mics are [00:26:34] Speaker 09: Looks like as high as it's going to go. [00:26:36] Speaker 09: Oh, geez. [00:26:41] Speaker 09: I don't know the exact acres that meets that, but 304 feet per 40 acres is not a very high level, given the amount of rainfall we're receiving. [00:26:49] Speaker 09: 300,000. [00:26:52] Speaker 09: It's 300 million four feet, as I believe it was in 1960. [00:26:57] Speaker 09: That's not an extremely high number. [00:26:59] Speaker 09: You would look at soil contents, rainfall, elevation, [00:27:03] Speaker 09: Essentially, what we do on commercial timberland is you have site classes. [00:27:07] Speaker 09: They have site classes for BLM, too. [00:27:09] Speaker 09: BLM can look at the site classes. [00:27:11] Speaker 09: The timberland's out there. [00:27:14] Speaker 09: I can't represent to you exactly how many acres on which site class out there. [00:27:19] Speaker 09: But an awful lot of this is going to meet that definition. [00:27:21] Speaker 09: No questions asked. [00:27:23] Speaker 09: The law was written in 1937, very intentionally, to ensure that timber was harvested from places that are considered timberlands, just like prop lands. [00:27:33] Speaker 09: Are those lands that are best suited for growing up commercial timber? [00:27:38] Speaker 04: What I'm curious about is the density of the forest now as compared to 100 years ago. [00:27:44] Speaker 04: Are there still parts of that forest that are as dense as they were 100 years ago? [00:27:50] Speaker 09: I'm sure there are places, but that definition isn't going to standing volume. [00:27:55] Speaker 09: What that definition is going to is the ability of the land to grow timber. [00:27:59] Speaker 09: So sustained field timber management is [00:28:02] Speaker 09: Some percentage of the state you're harvesting, some percentage of the state you're replanting, and some percentage of the state you're regrowing. [00:28:09] Speaker 09: And as you get those stands to a mature level, you harvest them. [00:28:12] Speaker 09: So when you're classifying a timberland based on four feet, you're classifying those lands based on the potential to grow this amount. [00:28:20] Speaker 09: So just like if you're harvesting corn, how many bushels of corn can you grow on an acre? [00:28:24] Speaker 09: It's not how many bushels of corn you have in May. [00:28:28] Speaker 09: It's how many bushels of corn you have in September. [00:28:30] Speaker 09: And so what that definition is saying is if you put these lands on a sustained yield management track, you harvest, replant, and regrow in perpetuity, are those lands going to get there? [00:28:40] Speaker 09: And the answer is yes. [00:28:41] Speaker 09: Those lands have the same potential to grow timber today that they did back in the day. [00:28:45] Speaker 09: probably places that have those volumes of stocking volumes that are being harvested. [00:28:49] Speaker 09: There's probably areas that were harvested last year that certainly do not have those volumes, but they will in 40 or 50 years. [00:28:55] Speaker 00: There are other interests we have to take into account, making the determination as to how much to harvest. [00:29:02] Speaker 00: That's what 2601 says. [00:29:06] Speaker 00: That's what the Clean Water Act says. [00:29:08] Speaker 00: That's what Endangered Species Act says. [00:29:10] Speaker 00: There are other lawsuits going on where other statutes are being enforced, which will affect how interior looks at what's available for harvesting, right? [00:29:22] Speaker 00: Yes, we're debating. [00:29:24] Speaker 00: It's a little clear number. [00:29:27] Speaker 00: You don't know that there's a clear number that's [00:29:29] Speaker 00: Each year, you have to take all of these factors into, they have to take all these factors into consideration, right? [00:29:36] Speaker 09: At the moment of classification of a timberland, at the moment they define something as a timberland, at that point, it has to be put into the management bucket, the same-yield management bucket. [00:29:47] Speaker 09: And what they're doing here is they're never making that determination of a timberland, particularly as it goes to the antiquities act. [00:29:52] Speaker 09: They're just saying, let's take these lands and set them aside, and never make the determination of a timberland. [00:29:58] Speaker 00: And to serve statutory interests. [00:30:01] Speaker 00: They're setting it aside. [00:30:03] Speaker 00: It's not a whimsical set aside. [00:30:06] Speaker 00: It's set aside pursuant to acts of Congress and the presidential determinations that have been made, right? [00:30:13] Speaker 00: You may not agree with those determinations, but it's not someone just saying, oh, let's just set aside. [00:30:19] Speaker 09: I wouldn't agree with that. [00:30:20] Speaker 08: You wouldn't agree with what? [00:30:22] Speaker 09: I wouldn't agree with the notion that these lands are set aside for statutory interests. [00:30:28] Speaker 09: particularly in my case as a monument. [00:30:31] Speaker 09: What the president has said is I want to get these landings. [00:30:35] Speaker 09: Specifically what he ordered was, I'm going to read from 65 RLS 37249, which is proclamation 7318, which is the management mandate. [00:30:46] Speaker 09: It specifically says, no portion of the monument shall be considered to be suited for timber production, and no part of the monument shall be used in the calculation and provision of a sustained yield of timber. [00:30:56] Speaker 09: What he's doing is he's taking the antiquities act, saying, I want to create an ecological reserve. [00:31:02] Speaker 09: And so I am going to completely write off the ONC Act mandate to put these lands into sustainable deal management. [00:31:07] Speaker 09: There's no balancing there. [00:31:11] Speaker 02: But why can't it be that that part is not classified as timber under the ONC Act and therefore the two acts are reconcilable? [00:31:18] Speaker 02: It's a monument and those parts of it that would have been ONC land are just not classified as timber under the ONC Act. [00:31:26] Speaker 02: And it's only 2% of the 2 million acres that are covered by the ONC Act. [00:31:31] Speaker 02: So what's the problem? [00:31:33] Speaker 02: The two responses to that. [00:31:35] Speaker 09: First, the president never made it to [00:31:38] Speaker 09: He decided this was a national monument. [00:31:41] Speaker 09: He said nothing about Timberland. [00:31:44] Speaker 09: If they were to make a determination of Timberland, they would have to go back to exactly what Judge Henderson said. [00:31:50] Speaker 09: They'd have to go back to the definition of what Timberland is. [00:31:53] Speaker 09: They can't come up with a definition of Timberland. [00:31:58] Speaker 02: It's not about defining Timberland. [00:31:59] Speaker 02: It's about classifying as Timberland, which the Secretary has discretion to do. [00:32:04] Speaker 02: We said so in our Clackamas case. [00:32:06] Speaker 09: I think that discretion is much more limited and it's limited by the exact definition that again, Judge Henderson pointed out. [00:32:13] Speaker 09: It refers back to the Act of 1916. [00:32:16] Speaker 02: Wasn't that repealed? [00:32:18] Speaker 02: The 1916 Act was repealed by the 1937 Act. [00:32:21] Speaker 09: But it's the only place it references back to it. [00:32:24] Speaker 09: It repeals it, but it's in the same policy. [00:32:26] Speaker 09: And again, even if that definition doesn't apply, let's look at the policy of the ONC Act. [00:32:30] Speaker 09: The policy of the ONC Act is to generate continuous news revenue for counties. [00:32:35] Speaker 02: But you have 98% of it left. [00:32:37] Speaker 02: You can still classify whatever you want on the remaining 98% as timberland. [00:32:42] Speaker 02: And I just don't see, isn't it our job to try to reconcile what the president did under the Antiquities Act with the ONC Act? [00:32:49] Speaker 02: And doesn't this reconcile it? [00:32:51] Speaker 09: I don't think it does. [00:32:53] Speaker 09: Think about it this way. [00:32:55] Speaker 09: So say I, in the Dallas Scholarship Fund for a million dollars, and I say these should go for underserved Oregonians. [00:33:05] Speaker 09: And I get it to the university, and the university says, I'm going to send $50,000 to update my quad. [00:33:11] Speaker 09: They say, don't worry about that. [00:33:13] Speaker 09: It's just a small amount. [00:33:13] Speaker 09: At the end of the day, somebody's still holding the pad. [00:33:16] Speaker 09: In this case, it's the county. [00:33:18] Speaker 09: We have set up it. [00:33:18] Speaker 02: But what if you gave it to them and said, you have discretion to use this as you will? [00:33:23] Speaker 09: I don't see that discretion. [00:33:24] Speaker 09: I see the ONC Act. [00:33:26] Speaker 02: The ONC Act says classified as timber. [00:33:28] Speaker 02: Somebody has to classify as timber. [00:33:32] Speaker 09: That is correct. [00:33:32] Speaker 02: Not all the land is timberland if some of it has to be classified as timber. [00:33:36] Speaker 09: And that classification has to be reasonably related to the purpose of the act and also the general understanding of what is timberland. [00:33:42] Speaker 09: And so if you have a forest that's growing that is generating volume for a community and you decide, I don't want to call that a timberland, not because it's not a timberland, but because I don't want it to be cut down on, I don't want an amount of time. [00:33:58] Speaker 09: I can finish if you want. [00:34:01] Speaker 09: I do think there has to be a standard as to the timberland. [00:34:04] Speaker 09: We can't just ignore it and ignore the policy and say something else. [00:34:09] Speaker 02: Who gets to decide what's the standard as to a timberland? [00:34:13] Speaker 09: In the Antiquities Act, no one ever made that decision. [00:34:16] Speaker 02: But no, in the ONC Act, it's the secretary. [00:34:19] Speaker 02: It's the agency. [00:34:20] Speaker 02: They have discretion to classify lands as timberlands. [00:34:24] Speaker 09: And I think that they still, there has to be a rational basis to do that and that they diverged from that rational basis. [00:34:30] Speaker 09: It's actually important to look at and define what is a timberland. [00:34:33] Speaker 09: And I think in that case, just to say it's a timberland because we don't want to harvest it, it's not a timberland because we don't want to harvest it, is arbitrary and capricious. [00:34:43] Speaker 00: That's all they said. [00:34:46] Speaker 00: What record are you looking at? [00:34:47] Speaker 00: That's all they said, we're not going to harvest it because we don't want to. [00:34:52] Speaker 00: I may have misdirected and it's okay if it's there, you need to point me to it. [00:34:56] Speaker 00: That's all the secretary said. [00:34:58] Speaker 00: My decision for not harvesting is because I don't want to. [00:35:02] Speaker 00: That's it. [00:35:04] Speaker 00: You can't be serious. [00:35:08] Speaker 00: I know you're an advocate, but that's an overstatement in the extreme. [00:35:12] Speaker 00: That's not what the secretary gave justification for why the position was reached. [00:35:17] Speaker 09: So one of the classifications in my case, which is the monument case, challenging presidential action, and Mr. Amster, we'll get up here in a second and address some of these other issues as to the set-asides and asserts of the plan. [00:35:29] Speaker 09: But as to the monument, that is unilateral presidential action in which he sets plans aside in violation of the ONC Act without making [00:35:37] Speaker 09: any determination under the act at all. [00:35:39] Speaker 09: He just acted under the Antiquities Act on his own. [00:35:42] Speaker 09: There was no independent analysis. [00:35:44] Speaker 00: Does the Antiquities Act give the president that discretion to act? [00:35:49] Speaker 09: The Antiquities Act. [00:35:49] Speaker 00: You don't like it, but does it give it? [00:35:51] Speaker 09: The Antiquities Act does not give the president the authority to violate other acts of Congress. [00:36:00] Speaker 09: Thank you for the additional time. [00:36:04] Speaker 04: Mr. Ramshour. [00:36:09] Speaker 08: Please support. [00:36:10] Speaker 08: My name is Peter Rampert. [00:36:12] Speaker 08: I represent the OCC and will be asking to affirm the land case on behalf of all police. [00:36:18] Speaker 08: I want to start by addressing this issue of classification. [00:36:20] Speaker 08: I think there's some confusion there. [00:36:23] Speaker 08: The government claims that the act gives DLM discretion to classify lands as timberlands or not, thereby suggesting that it classify them for some other reason, like creating reserves. [00:36:32] Speaker 08: That is not so. [00:36:34] Speaker 08: DLM's discretion to classify lands is actually governed by statute. [00:36:39] Speaker 08: The ONC Act itself refers back to the Act of June 9, 1916, which allowed the land to be classified into three different types of property. [00:36:49] Speaker 08: Power site lands, valuable for the production of water power. [00:36:52] Speaker 08: Timber lands, which were, as Judge Henderson noted, lands capable of producing 300,000 board feet of timber or more on a 48-year parcel. [00:37:02] Speaker 08: And agricultural lands, which are the remainder. [00:37:05] Speaker 08: The Act of 1916 does also refer to the potential of reclassifying lands, but only to bring them in their true character. [00:37:13] Speaker 08: And as to Judge Pan's question on whether or not the Act of 1916 was totally repealed, it was not repealed in part the way in which the land was managed under that Act was changed by the ONCE Act. [00:37:25] Speaker 08: So there is not this broad discretion to simply reclassify lands for another purpose or for the creation of reserves. [00:37:33] Speaker 08: And we disagree with it. [00:37:35] Speaker 08: With respect to some of the questions regarding the language of the ONC Act, the government claims that it has discretionary reserves because the ONC Act provides that the mandate to produce timber on a sustained yield basis is for the purposes of providing a permanent source of timber supply, protecting watersheds, regulating stream flow, and contributing to the economic [00:38:04] Speaker 08: stability of local communities, and providing recreational facilities. [00:38:09] Speaker 08: This language, in our view, really describes the benefits of sustained yield management. [00:38:13] Speaker 08: It does not displace the mandate itself to manage land for foreign-reforged production and sustained yield management. [00:38:21] Speaker 00: The language says sustain yield for the purpose of, and then it lists those [00:38:25] Speaker 00: It does. [00:38:26] Speaker 00: That's not saying the end result will be if you cut timber, then all of the rest will follow. [00:38:31] Speaker 00: It's saying the purposes that you're aiming for are what you just cited. [00:38:35] Speaker 08: But the act also talks about the fact that you measure the annual productive capacity for such lands, you determine that each year, and that whole annual productive capacity is to be sold [00:38:50] Speaker 08: annually or so much as can be sold. [00:38:53] Speaker 00: Right. [00:38:54] Speaker 00: But these other purposes are still in play. [00:38:58] Speaker 08: Those other purposes are still in play, but they're described largely in benefits of managing on a sustained-yield basis. [00:39:04] Speaker 08: They don't displace the fund. [00:39:05] Speaker 00: A sustained-yield for the purpose of, and then it lists the six things. [00:39:09] Speaker 00: It does. [00:39:09] Speaker 00: All of them are things that should be taken into account when you determine what the timber production is going to be. [00:39:17] Speaker 00: Well, [00:39:19] Speaker 00: Those are actually your argument that anything that grows should be cut down and if they don't cut it down, they violated the act. [00:39:27] Speaker 08: Oh, that's not how sustained yield works. [00:39:29] Speaker 00: Yeah, I know. [00:39:30] Speaker 00: I didn't think so, but I'm trying to understand what your argument is. [00:39:33] Speaker 00: So what else is taken into account? [00:39:35] Speaker 00: Any healthy tree out there should be cut down. [00:39:38] Speaker 00: Don't think about anything else, just whether they're healthy trees. [00:39:43] Speaker 08: Your honor is actually correct. [00:39:45] Speaker 08: The ONC Act is different from the prior act, which were outright liquidation. [00:39:49] Speaker 08: Anything that can be. [00:39:50] Speaker 08: That's exactly right. [00:39:51] Speaker 08: That's the history. [00:39:51] Speaker 08: That's the history. [00:39:52] Speaker 08: You change the sustained yield, which is you have a principle, you have a forest and you keep that forest in place. [00:39:59] Speaker 08: And as there's new growth, you take it off. [00:40:01] Speaker 08: It's like interest principle in a bank. [00:40:04] Speaker 00: And you take nothing else into account. [00:40:06] Speaker 00: You look at the quality of the growth period. [00:40:08] Speaker 00: That's what that statute says. [00:40:10] Speaker 08: That's what you say. [00:40:11] Speaker 08: That's what sustained yield means. [00:40:12] Speaker 00: What sustained yield is followed by for the purpose of, it gives meaning to sustained yield. [00:40:18] Speaker 00: And there are a number of purposes in there. [00:40:20] Speaker 00: And I assume the secretary has a discretion to take all those into account. [00:40:25] Speaker 08: Those are things that will result from management sustained yield. [00:40:28] Speaker 00: I didn't understand your argument with that one. [00:40:30] Speaker 00: You're saying, no, these are just results. [00:40:33] Speaker 00: Because if you read it that way, then timber supply is just... I'm not understanding to read it all. [00:40:38] Speaker 00: That's not the language. [00:40:40] Speaker 00: That's not what the language says. [00:40:42] Speaker 08: My reading, Your Honor, is that if you manage to sustain your basis and you have that principle in place, you keep that principle, then you have resulting benefits. [00:40:54] Speaker 08: That does provide a permanent source of timber supply. [00:40:57] Speaker 08: That does protect watersheds. [00:40:59] Speaker 08: That does regulate stream flow. [00:41:00] Speaker 08: That does contribute to the economic viability of local communities and industries. [00:41:05] Speaker 08: And that does provide recreational facilities. [00:41:07] Speaker 08: So it does all those things. [00:41:09] Speaker 08: And that's exactly what BLM itself acknowledged in the final environmental impact statement to the 2008 plans, where it said, quote, it would be inconsistent with the ONC Act to treat these expected benefits as additional objectives that must be balanced against sustained yield force management and thereby reduce annual productive capacity will be offered for sale. [00:41:31] Speaker 08: So from our perspective, you know, that those terms can't be used to justify reserving 80% of land [00:41:39] Speaker 08: or something other than permanent forest production on a sustained yield basis. [00:41:44] Speaker 08: And there's no pursuit that these reserves, one, contain timber lands, two, are in fact reserved for different purposes. [00:41:55] Speaker 08: Our land use allocations described in the plan that, quote, do not have objectives for sustained yield timber production. [00:42:02] Speaker 08: And that's the joint appendix 1825 and 26 and 21 and 25. [00:42:07] Speaker 08: Moreover, those lands are excluded from the calculation of the annual productive capacity that has to be offered for sale each year. [00:42:17] Speaker 08: And that's in 1825 and 26 and 2145. [00:42:23] Speaker 08: And those are the basic reasons that the district court ended up finding that the RMPs of the plant violated the ONC Act. [00:42:33] Speaker 08: So going beyond [00:42:36] Speaker 02: Is it your position, Council, is it your position that the Secretary has no discretion to manage these lands other than for timber production? [00:42:44] Speaker 02: Is that what you're trying to tell us? [00:42:45] Speaker 00: That's what you seem to be saying. [00:42:47] Speaker 02: And is that the only way you can win? [00:42:48] Speaker 02: We would have to find the Secretary has no discretion to do anything but manage these lands to produce timber. [00:42:54] Speaker 08: It's our position, Judge Pan, that the Secretary must manage land for permanent forest production on a sustainable basis. [00:43:03] Speaker 08: Within that discretion, within how you manage on a sustained-yield basis, you can do a lot of different things. [00:43:10] Speaker 00: Why don't you answer my colleague's question? [00:43:13] Speaker 00: It really leaves out. [00:43:16] Speaker 00: I'd really like to hear your answer to the question that she raised. [00:43:19] Speaker 08: And what I'm saying is that there is discretion, in fact. [00:43:22] Speaker 08: There's discretion within the sustained-yield mandate to regulate the rate, [00:43:28] Speaker 02: timing, sequence, location of harvest in any given area that allows for... I understand your answer to be the secretary has no discretion to manage this land for any purpose other than timber production, but within the goal of timber production, the secretary has discretion. [00:43:47] Speaker 02: Is that your position? [00:43:49] Speaker 02: And that's the only way you win. [00:43:50] Speaker 02: If we would have to hold the secretary has no discretion to manage this land for any purpose other than timber production, [00:43:57] Speaker 08: And that is because this is a unique, dominant use of the statute. [00:44:01] Speaker 08: This is not like other federal land management statutes. [00:44:04] Speaker 02: But you agree with me that that's the only way you win? [00:44:06] Speaker 08: Well, I think that is the way we win, and I think that it's right. [00:44:09] Speaker 08: I think that the statute is abundantly clear that this land shall be managed for permanent forest production, and that timber thereon shall be sold, cut, and removed in conformity with the principle of sustained yield. [00:44:21] Speaker 02: And so what about the Endangered Species Act? [00:44:23] Speaker 02: We haven't got it. [00:44:24] Speaker 02: What about the Endangered Species Act? [00:44:26] Speaker 02: And it's the Endangered Species Act. [00:44:28] Speaker 08: So the Endangered Species Act came on afterwards. [00:44:31] Speaker 02: And it doesn't apply here? [00:44:33] Speaker 08: Doesn't apply? [00:44:33] Speaker 08: Well, it does apply. [00:44:34] Speaker 08: It applies, absolutely. [00:44:35] Speaker 08: But it applies in the narrow circumstances that the National Association of Home Builders said it does. [00:44:40] Speaker 08: It applies to the discretionary acts that BLM can undertake. [00:44:45] Speaker 08: So here, for example, we don't want to say that BLM can't comply with the ESA. [00:44:51] Speaker 08: It can and must comply with the ESA. [00:44:53] Speaker 08: But only within the bounds of its discretion [00:44:56] Speaker 08: But you said they have no discretion. [00:44:58] Speaker 08: I did not say that, Your Honor, with all due respect. [00:45:01] Speaker 08: I said there is discretion with the location of cutting, the rate of cutting, the sequence of cutting. [00:45:07] Speaker 08: All of that is something that's done. [00:45:08] Speaker 08: Sustained yield management doesn't mean you go in and liquidate. [00:45:11] Speaker 08: It means you cut some here this year, you cut some there this year. [00:45:13] Speaker 02: Okay. [00:45:14] Speaker 02: So can you explain how that would work? [00:45:16] Speaker 02: How would the Secretary comply with the Endangered Species Act within the bounds of what you say he has discretion to do or she has discretion to do? [00:45:22] Speaker 08: The Secretary would go back and [00:45:25] Speaker 08: consult with Fish and Wildlife Service about how to develop a plan for conducting sustained yield management that included the entirety of the estate of the own sea land. [00:45:37] Speaker 02: And what if it's incompatible? [00:45:39] Speaker 08: Well, we don't want to. [00:45:41] Speaker 08: We don't know that would happen. [00:45:43] Speaker 02: I'm just interested in. [00:45:44] Speaker 08: Well, it would be that you go through the process of getting a biological opinion. [00:45:48] Speaker 08: There would be a jeopardy of determination. [00:45:50] Speaker 08: There would be that you would then go through the process of. [00:45:53] Speaker 02: Yes, I understand the process. [00:45:55] Speaker 02: Yeah. [00:45:55] Speaker 02: My question is, and what if that all shakes out and it says it's incompatible, you cannot manage this land. [00:46:02] Speaker 02: for timber production consistent with the Endangered Species Act. [00:46:05] Speaker 08: What happens? [00:46:06] Speaker 08: We would be in a very different position then. [00:46:08] Speaker 08: And that didn't happen here. [00:46:09] Speaker 08: What happened here was that the lands were set aside in advance. [00:46:13] Speaker 08: 80% of the lands were set aside before the fact, and the consultation only took place afterwards. [00:46:18] Speaker 00: And I see I'm out of time. [00:46:20] Speaker 00: I want to ask you one more question. [00:46:21] Speaker 00: Do you have any authority supporting your proposition that the notion of sustained yield does not include [00:46:30] Speaker 00: protecting watersheds, regulating steam flow, contributing to economic stability, providing recreational facilities. [00:46:40] Speaker 00: Is there some authority that says that? [00:46:42] Speaker 00: See, you're talking about sustained yield in a way that says, I win. [00:46:49] Speaker 00: That's your definition of sustained yield. [00:46:53] Speaker 00: I'm looking at statutory language, which says, I don't understand his argument. [00:46:58] Speaker 00: Do you have something to support your argument that these other purposes are not within the compass of sustain you? [00:47:05] Speaker 00: Because I didn't see it. [00:47:06] Speaker 00: If it's there, I'm really happy to look at it. [00:47:08] Speaker 08: Where is it? [00:47:09] Speaker 08: It may be that, as I listen to your question, maybe that we're just missing each other a little bit on this point. [00:47:16] Speaker 00: A lot. [00:47:17] Speaker 00: OK. [00:47:17] Speaker 00: And all I want is for you to point me to an authority. [00:47:22] Speaker 00: that defines sustained yield. [00:47:26] Speaker 00: I want to narrow it as tightly as I can in the clipped way in which you're doing it. [00:47:32] Speaker 00: That's all I want. [00:47:34] Speaker 00: Please don't go beyond that. [00:47:36] Speaker 00: Just go with my limited mind. [00:47:38] Speaker 00: Give me an answer that I can digest easily. [00:47:42] Speaker 00: Because you have to understand what you're doing. [00:47:44] Speaker 00: You stood for your 15 minutes and said, sustained yield means I win. [00:47:49] Speaker 00: And I win because none of these other factors are part of sustained yield. [00:47:54] Speaker 00: What authority says that? [00:47:55] Speaker 08: Well, the term is not defined in the statute. [00:47:58] Speaker 08: It was discussed extensively in the legislature's history. [00:48:00] Speaker 08: Former chief of the forest service described it as cutting as much timber as you can based on the annual growth while preserving the underlying principle. [00:48:09] Speaker 00: Or preserving what? [00:48:12] Speaker 08: While preserving as much as you can of the principle. [00:48:15] Speaker 08: That's a 2479 and 2497. [00:48:18] Speaker 00: Any source, any case, any regulation, any statute that defines it to ignore the provisions in the statute that I'm looking at? [00:48:30] Speaker 08: Well, the case that I would actually refer you to is the Ninth Circuit case in Headwaters. [00:48:36] Speaker 08: And in that case, the Ninth Circuit explained that the ONC Act envisions timber production as a dominant use [00:48:44] Speaker 08: It also went on to explain that, quote, exempting certain timber resources from harvesting to serve as wildlife habitat is inconsistent with the principle of sustained yield. [00:48:55] Speaker 08: That's at page 1183 to 1184 of the opinion. [00:48:58] Speaker 08: It also went on to say that doing so would be inconsistent with the purpose of the ONC Act, which the federal orders court found to be, quote, to provide the counties in which the ONC Act land was located with a stream of revenue, which has been promised [00:49:14] Speaker 08: not delivered by the Chamber of Commerce for Vestman Act. [00:49:16] Speaker 08: So those would be authorities that I would point to. [00:49:18] Speaker 08: Thank you. [00:49:20] Speaker 08: Thank you. [00:49:22] Speaker 08: I'll pass it on to you, Ms. [00:49:23] Speaker 08: Weiss. [00:49:24] Speaker 04: All right. [00:49:28] Speaker 04: Mr. Toth, why don't you? [00:49:29] Speaker 04: Oh, I'm sorry. [00:49:30] Speaker 04: Ms. [00:49:30] Speaker 04: Weiss. [00:49:44] Speaker 06: May it please the court? [00:49:45] Speaker 06: My name is Julie Wise and I represent the appellees in Swanson. [00:49:49] Speaker 06: Were the district court properly held that BLM failed to comply with the ONC Act in violation of the APA? [00:49:56] Speaker 06: Just as the court should affirm the district court's decision in the monument plan that cases, the court also should affirm Swanson both as to the merits and as to remedy. [00:50:07] Speaker 06: Judge Edwards, before [00:50:08] Speaker 06: I begin my principal argument. [00:50:10] Speaker 06: I would like to refer you to one thing that addresses the question about authority that might have talked about the secondary benefits as we view them from the ONC Act. [00:50:20] Speaker 06: And that is in 1938, when the federal government promulgated the first regulations for timber harvest under the ONC Act, it actually referred to sustained yield timber harvest would generate, quote, secondary benefits, end quote. [00:50:36] Speaker 06: That's founded. [00:50:37] Speaker 06: 3 February 1796. [00:50:39] Speaker 06: The what? [00:50:40] Speaker 06: Say that again. [00:50:42] Speaker 00: Your sentence, I didn't hear you. [00:50:44] Speaker 06: It was the 3 Federal Register 1796. [00:50:46] Speaker 00: No, what did you say? [00:50:49] Speaker 06: It was in 1938, so contemporaneous with the passage of the Act. [00:50:53] Speaker 06: And what the government did was promulgate regulations for harvest under the ONC Act. [00:50:58] Speaker 06: And it said by managing sustainably, there would be, quote, secondary benefits. [00:51:03] Speaker 06: And it was referring to the secondary benefits [00:51:06] Speaker 06: protecting stream flow and things of that nature. [00:51:09] Speaker 06: But I just wanted to give you that citation. [00:51:12] Speaker 06: My job here is to talk about a different creature, which is a failure to act creature. [00:51:18] Speaker 06: And what I'm going to do, the district court found all the requisite requirements for actionable agency non-action. [00:51:24] Speaker 06: What I'm going to do is jump right to two Supreme Court cases that help us understand why this case should be approved. [00:51:31] Speaker 06: In Lujan, first of all, Your Honors, 497 U.S. [00:51:34] Speaker 06: 871, that case was a non-actionable programmatic challenge where the litigants said, we're challenging a land withdrawal review program. [00:51:46] Speaker 06: That was a name that they had created. [00:51:47] Speaker 06: There was no such thing, and they wanted it set aside. [00:51:52] Speaker 06: In reality, what there was was well over an amalgam of more than a thousand different [00:51:57] Speaker 06: land review classifications, and land withdrawal revocations. [00:52:02] Speaker 06: And that was what the court said, that's programmatic. [00:52:05] Speaker 06: We're not going to interject ourselves into the day-to-day operations of BLM. [00:52:10] Speaker 06: Here, the final agency action was BLM's failure to sell or offer for sale the declared annual sustained bill capacity. [00:52:18] Speaker 06: So this is not Luhans. [00:52:21] Speaker 06: This is not SUA either. [00:52:23] Speaker 02: Can I ask you about Luhan? [00:52:24] Speaker 02: Cause Luhan did talk about the continuing and thus constantly changing operations, the BLM. [00:52:30] Speaker 02: And I think your issue kind of turns on whether this was a discrete act or not, right? [00:52:36] Speaker 02: Because the relevant provision within the APA requires under SUHA that the agency failed to take a discrete agency action that is required to take. [00:52:49] Speaker 02: I think, [00:52:50] Speaker 02: We're looking at whether this is discrete or not. [00:52:53] Speaker 02: And here we're talking about something the secretary has to do every year annually. [00:52:57] Speaker 02: And to me, that seems to indicate that's not discrete. [00:53:03] Speaker 02: and looking at other cases that applied this discrete standard, I was not able to find any case that applied to a continuing ongoing every year obligation, which also involves looking at reasonable prices in a normal market, which sounds kind of discretionary to me. [00:53:19] Speaker 02: So to me, there are two aspects of this that indicate this is probably not a discrete action and therefore not subject to the judgment that was rendered. [00:53:30] Speaker 06: This does involve a discrete action, and I'll address both of your points. [00:53:36] Speaker 06: First of all, it is discrete because even though BLM has to make a number of determinations before it declares that allowable sale quantity, once it declares that number and it chooses to declare it in plans, that number has to be met on an annual basis. [00:53:55] Speaker 06: The discrete action is the equivalent of a rule. [00:53:59] Speaker 06: We have to find something that is the equivalent of something in the APA, a rule and order. [00:54:04] Speaker 06: It is the equivalent of a rule, an agency statement of general or particular applicability and future effects. [00:54:10] Speaker 02: But the action is the sale. [00:54:11] Speaker 02: That's what you're trying to compel. [00:54:13] Speaker 02: The sale doesn't happen until it can determine whether there's a reasonable price in a normal market. [00:54:18] Speaker 02: And the agency has to do it every year. [00:54:21] Speaker 06: The action that we're trying to compel is compliance with the declared allowable sale one. [00:54:27] Speaker 06: It is affected through timber sales, but the challenge here is not to a timber sale program or to individual timber sales or the lack thereof. [00:54:34] Speaker 06: The challenge is to a failure to meet a declared ASQ. [00:54:39] Speaker 06: So this case did not involve a challenge to a plan. [00:54:41] Speaker 06: It involved a challenge to a failure to comply with [00:54:45] Speaker 06: an obligation under the ONC Act, and BLM declares the allowable sale quantity, but it was not actually putting that into effect. [00:54:54] Speaker 02: Right, you're trying to compel this sale. [00:54:56] Speaker 02: The ASQ was declared. [00:54:58] Speaker 02: Now you're saying just sell that, right? [00:55:01] Speaker 06: We're saying comply with the ASQ, comply with the ONC Act, because you have said this is the amount we're going to sell, and you haven't done that. [00:55:08] Speaker 06: You need to do that on an annual basis. [00:55:10] Speaker 02: I understand, but I think the issue is whether [00:55:13] Speaker 02: Selling it is a discreet act. [00:55:16] Speaker 02: And in the context of something you have to do every year and every year you have to, or the secretary has to determine what are the reasonable prices on a normal market does not sound discreet. [00:55:26] Speaker 00: I think justice Scalia would be shocked to hear your interpretation of his opinion in what 7061 means. [00:55:32] Speaker 00: I mean, he, what he was trying to, if I remember that correctly, it was trying to say was, [00:55:37] Speaker 00: When you come in and say, we want to compel the agency to do what it is we're saying, he said, you better be able to show me something that is absolutely clear. [00:55:49] Speaker 00: There's no dispute whatsoever. [00:55:51] Speaker 00: There's no discretion, nothing loose. [00:55:54] Speaker 00: One is one, and they haven't done one. [00:55:57] Speaker 00: That's not the case you're presenting. [00:56:00] Speaker 06: Governor, I disagree. [00:56:01] Speaker 00: What, with my interpretation of Justice Scalia's opinion or my interpretation of you? [00:56:08] Speaker 06: Your interpretation of me, Your Honor. [00:56:10] Speaker 06: And I will refer you to SUA, because I think SUA offered an interesting example, and it was a hypothetical example. [00:56:16] Speaker 06: There, the court said, let's look at the Telecommunications Act, where the FCC was required to promulgate regulations within six months. [00:56:25] Speaker 06: This was a hypothetical. [00:56:26] Speaker 06: And it said, if they didn't do that, that would be actionable. [00:56:29] Speaker 06: And it was actionable because there would be a specific statutory command [00:56:34] Speaker 06: requiring an agency to act by a certain deadline. [00:56:37] Speaker 06: And here we have that command. [00:56:39] Speaker 06: We declare that ASQ, now go comply with that ASQ. [00:56:43] Speaker 06: And it has to happen by a certain deadline. [00:56:45] Speaker 06: It has to happen annually. [00:56:47] Speaker 06: So I think that example in SUA is actually very helpful. [00:56:50] Speaker 06: I'm almost out of time. [00:56:51] Speaker 06: Can I briefly address your reasonable pricing question? [00:56:54] Speaker 06: Yes. [00:56:56] Speaker 06: So the reasonable pricing question, that really just talks about market pricing, market forces you're on. [00:57:03] Speaker 06: And if we look at the legislative history, I'm going to refer you to JA 4994 through 95, and I'm going to read to you. [00:57:12] Speaker 06: The legislative history showed that the parties were familiar with that, because something very similar had been used in the Chamberlain-Ferris Act of 1916. [00:57:22] Speaker 06: And what they said was, we understand it to be timber operators reach a section of ONC timber, which they may cut in their judgment at a profit [00:57:33] Speaker 06: They make application for that particular track to be put up for competitive bidding. [00:57:38] Speaker 06: They make their good for it. [00:57:39] Speaker 06: And it is then put on the market with the resulting sale. [00:57:43] Speaker 06: It's not difficult. [00:57:45] Speaker 06: It's simple. [00:57:45] Speaker 06: It's common sense. [00:57:46] Speaker 06: It's market forces. [00:57:48] Speaker 06: It's simply selling or offering timber to comply with that declared annual sustained yield quantity. [00:57:56] Speaker 06: And I am out of time. [00:57:58] Speaker 06: If the court has any further questions, I'm happy to answer them. [00:58:02] Speaker 06: But I would just ask your honors to remember that in 1937, Congress set these lands aside for the dominant use of sustained yield timber production. [00:58:10] Speaker 06: Dominant use means that conflicting uses are disavowed. [00:58:15] Speaker 06: And the president and BLM should not be allowed to flat Congress's express intent for these lands. [00:58:21] Speaker 06: So we would ask you to affirm the district court in all respects, monument and plan, and certainly in Swanson. [00:58:29] Speaker 02: Are you aware of any precedent that finds an action discreet when it's an ongoing every year kind of obligation? [00:58:41] Speaker 06: Your honor, I think an annual obligation, I can't give you an example. [00:58:44] Speaker 06: I think an annual obligation probably is not infrequent and it is discreet. [00:58:51] Speaker 00: Okay, thank you. [00:58:52] Speaker 00: Any recent examples of a district court [00:58:55] Speaker 00: permissibly taking control of the agency's operation to its satisfaction to see whether or not they follow the rules in an ongoing way. [00:59:04] Speaker 00: Is there some authority for that? [00:59:06] Speaker 00: I mean, I know it happens in some context. [00:59:08] Speaker 00: That's a strange, strange order. [00:59:11] Speaker 06: Well, Your Honor, there are certainly cases where courts retain jurisdiction. [00:59:14] Speaker 00: Anything that's comparable here, where a district court, this is a regulatory authority, Interior does its work each year. [00:59:23] Speaker 00: And the district court judge says, [00:59:26] Speaker 00: Bring it to me each year, and I'm going to look it over and see whether I agree. [00:59:29] Speaker 06: Well, Your Honor, in your track decision, which you authored, the court retained jurisdiction, required periodic reporting. [00:59:37] Speaker 06: And you actually said in that opinion that if the parties felt like something was needed to be brought to the court's attention, the parties were welcome to come and petition the court for additional assistance. [00:59:48] Speaker 06: I don't think it's uncommon to retain jurisdiction and to require periodic status reporting. [00:59:53] Speaker 06: And in Swanson, [00:59:54] Speaker 06: The only thing the government really objects to is the fact that the appellees get to comment on those status reports. [01:00:00] Speaker 06: So the court is not inserting itself into the day-to-day operations. [01:00:04] Speaker 06: It simply compelled compliance with the statute, and then it stepped back and went no further. [01:00:11] Speaker 06: Thank you, Your Honor. [01:00:12] Speaker 04: All right. [01:00:13] Speaker 04: Thank you. [01:00:15] Speaker 04: Mr. Todd, why don't you take two minutes? [01:00:21] Speaker 04: And can I ask you, I know one of you all would have told us, but there's been no resolution of the Murphy case out of the Ninth Circuit. [01:00:30] Speaker 04: Is that correct? [01:00:31] Speaker 07: That's correct. [01:00:31] Speaker 07: It was argued on August 30th, I believe, by the League of Miners in the gallery today. [01:00:36] Speaker 07: We're still submitted. [01:00:37] Speaker 07: We're waiting for a decision. [01:00:40] Speaker 07: And I'd like to start with your question to my colleague, Ms. [01:00:44] Speaker 07: Boyle, during her presentation, where you asked whether the record showed that from 1937 on, [01:00:49] Speaker 07: The secretary had applied the ONC Act for these other purposes, including protecting watersheds. [01:00:55] Speaker 07: I'd point the court to the 1938 regulation that we discussed in our blue brief, 46 and 47. [01:01:03] Speaker 07: It said that scenic strips of mercantile timber could be reserved in certain locations, including the side lakes, streams, roads, and trails for those other non-timber purposes. [01:01:15] Speaker 07: That was part of the exercise of sustained yield very early on [01:01:19] Speaker 07: first regulation after the 37th was enacted. [01:01:24] Speaker 00: What's your response on sustained yield? [01:01:26] Speaker 00: The question I raised and council on the other side points to headwaters for a narrow definition of it. [01:01:36] Speaker 07: So that misses the later case from the ninth circuit that like Seattle Audubon society that [01:01:44] Speaker 07: grappled with the Northwest Forest Plan and the reserve requirements. [01:01:48] Speaker 07: And although the ONC Act wasn't an issue on appeal, it was a claim made by timber industry litigants in the district court in the Lions case. [01:01:56] Speaker 07: And they just abandoned that argument on appeal. [01:01:57] Speaker 07: The government won. [01:01:59] Speaker 07: And that was different from Headwaters because it actually grappled with reconciling the Endangered Species Act with the ONC Act. [01:02:06] Speaker 07: So that's more on point than [01:02:07] Speaker 00: Do you have any answer to the question that I raised? [01:02:10] Speaker 00: Is there something that tells me what sustained yield means beyond what? [01:02:15] Speaker 00: intuitively it appears to mean from the words of the statute is there something that amplifies that somewhere we haven't done a uh we haven't presented in our brief a deep historical dive into you know forestry i don't want it to be deeper historical i just want something authoritative is there anything we haven't presented anything or i know but that's that's so strange that you all of you have done this i mean that's a crucial concept here right that's really not terribly well [01:02:44] Speaker 00: No, I understand. [01:02:45] Speaker 07: And like I said, we didn't do a deep historical dive. [01:02:48] Speaker 07: But it is a concept from forestry. [01:02:51] Speaker 07: At the time, it was a conservation concept of foresters like Gifford and Sho who saw the federal agencies as stewards of the land management. [01:03:01] Speaker 07: And so they were protecting the resources in the long term, not just for extraction, but also for preservation. [01:03:08] Speaker 07: And so you could have that resource intact over the long [01:03:11] Speaker 07: Regarding, briefly regarding the monument, my friend Mr. Bechtold made a comment about arbitrary and capricious review of rational basis review. [01:03:21] Speaker 07: You know, this just highlights, this is a review of a presidential action. [01:03:25] Speaker 07: You have to look to the face of the proclamation. [01:03:27] Speaker 07: And Judge Edwards, to address your point, the proclamation makes a heavy of findings about the importance of the region that was declared as a monument. [01:03:39] Speaker 07: They had to challenge the monument [01:03:41] Speaker 07: as violating the terms of the Antiquities Act, it's valid under that statute. [01:03:46] Speaker 07: And that's the end of the inquiry in our view. [01:03:49] Speaker 07: There is no rational basis inquiry, arbitrary and capricious inquiry into the mind of the president. [01:03:56] Speaker 07: Briefly on that, I think I touched on the plans. [01:04:00] Speaker 07: So I'll move on to Ms. [01:04:02] Speaker 07: Weiss's presentation about the Swanson. [01:04:05] Speaker 07: Judge, and I think you have it right, this is an ongoing obligation of the agency to administer the program every year. [01:04:10] Speaker 07: in the same way that you cannot challenge that ongoing program under Luhan, you cannot compel the program to be administered in a particular way under SUA either. [01:04:20] Speaker 07: So I think for all these reasons, we would ask for a reverse the district court's judgment in there. [01:04:30] Speaker 04: Thank you.