American Forest Resource Council v. U.S.

USCA Case #20-5008 Document #1961504 Filed: 08/30/2022 Page 1 of 40
ORAL ARGUMENT NOT YET SCHEDULED

No. 20-5008 (consolidated with Nos. 20-5009,
20-5010, 20-5011, 22-5019, 22-5020, 22-5021)
________________________
IN THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT
________________________
AMERICAN FOREST RESOURCE COUNCIL,
Plaintiff/Appellee,
v.
UNITED STATES OF AMERICA, et al.,
Defendants/Appellants,
and
SODA MOUNTAIN WILDERNESS COUNCIL, et al.,
Intervenor-Defendants/Appellants.
_______________________________
Appeals from the United States District Court
for the District of Columbia, Nos. 1:17-cv-00280-RJL, 1:17-cv-00441-
RJL, 1:15-cv-01419-RJL, 1:16-cv-01599-RJL, 1:16-cv-01602-RJL
Honorable Richard J. Leon, District Judge
_______________________________
PACIFIC LEGAL FOUNDATION AND
CATO INSTITUTE’S AMICUS BRIEF IN SUPPORT
OF PLAINTIFFS-APPELLEES FOR AFFIRMANCE
_______________________________
Frank D. Garrison Clark M. Neily III
PACIFIC LEGAL FOUNDATION William M. Yeatman*
3100 Clarendon Blvd., Suite 610 CATO INSTITUTE
Arlington, Virginia 22201 1000 Mass. Ave., NW
Telephone: (202) 888-6881 Washington, DC 20001
[email protected] Telephone: (202) 842-0200
*Admitted to the D.C. Bar under D.C. App. R. 46-A. Supervised by a D.C.
Bar member.
Attorneys for Amici Curiae Pacific Legal Foundation and Cato Institute
[List of attorneys continued on next page.]
Damien M. Schiff
PACIFIC LEGAL FOUNDATION
555 Capitol Mall, Suite 1290
Sacramento, California 95814
Telephone: (916) 419-7111
[email protected]
CERTIFICATE AS TO PARTIES,
RULINGS, AND RELATED CASES
A. Parties and Amici
Except as stated below, all parties, intervenors, and amici appearing
in this Court are listed in Plaintiffs-Appellees’ Principal Brief. That brief
lists neither the Natural Resources Defense Council, Inc., granted leave
to file a brief as amicus curiae, nor Amici Pacific Legal Foundation or the
Cato Institute, which have moved for leave to appear as amici curiae.
Under Federal Rule of Appellate Procedure 26.1 and D.C. Circuit Rule
26.1, Pacific Legal Foundation, a nonprofit corporation organized under
the laws of California, certifies that it has no parent companies,
subsidiaries, or affiliates that have issued shares to the public. Pacific
Legal Foundation is a legal nonprofit dedicated to defending people’s
liberties when threatened by government overreach and abuse.
The Cato Institute is a nonprofit entity under § 501(c)(3) of the
Internal Revenue Code. Cato is not a subsidiary or affiliate of any
publicly owned corporation and does not issue shares of stock. No publicly
held corporation has a direct financial interest in the outcome of this
litigation due to Cato’s participation.
i
B. Rulings Under Review
References to the rulings under review appear in Plaintiffs-Appellees’
Principal Brief.
C. Related Cases
References to related cases appear in Plaintiffs-Appellees’ Principal
Brief.
DATED: August 30, 2022.
Respectfully submitted,
s/ Frank D. Garrison
Damien M. Schiff
Telephone: (916) 419-7111
[email protected]
*Admitted to the D.C. Bar under D.C. App. R. 46-A. Supervised by a D.C.
Bar member.
ii
TABLE OF CONTENTS
CERTIFICATE AS TO PARTIES,
RULINGS, AND RELATED CASES ..................................................... i
TABLE OF AUTHORITIES ..................................................................... ix
GLOSSARY ............................................................................................ viii
AMICI CURIAE’S IDENTITY AND INTEREST ..................................... 1
INTRODUCTION ...................................................................................... 3
SUMMARY OF ARGUMENT ................................................................... 5
ARGUMENT ............................................................................................. 8
I. Proclamation 9564 is Ultra Vires and
Violates the Separation of Powers ................................................... 8
A. The Constitution’s Separation of Powers requires
the President to stay within congressional delegations .............. 8
B. Proclamation 9564 conflicts with the
O&C Act’s clear directives .......................................................... 10
C. If Proclamation 9564 is lawful, there is no
limiting principle on the President’s power
under the Antiquities Act ........................................................... 15
II. This Court Has Jurisdiction to Determine Whether
the President Has Acted Outside of His Delegated Powers .......... 18
A. Article III courts have a judicial duty to
determine when the President has exceeded
his power under Federal Law and the Constitution .................. 18
B. This Court must continue to review the President’s
authority under the Antiquities Act ........................................... 20
CONCLUSION ........................................................................................ 27
CERTIFICATE OF COMPLIANCE ........................................................ 28
CERTIFICATE OF SERVICE................................................................. 29
iii
TABLE OF AUTHORITIES
Cases
*A.L.A. Schechter Poultry Corp. v. United States,
295 U.S. 495 (1935) ....................................................................... 17–18
Chamber of Com. of U.S. v. Reich,
74 F.3d 1322 (D.C. Cir. 1996) ....................................................... 11, 20
Davis v. Mich. Dep’t of Treasury,
489 U.S. 803 (1989) ............................................................................. 10
Dep’t of Transp. v. Ass’n of Am. Railroads,
575 U.S. 43 (2015) ............................................................................. 8–9
FDA v. Brown & Williamson Tobacco Corp.,
529 U.S. 120 (2000) ............................................................................. 16
Gundy v. United States,
139 S. Ct. 2116 (2019) ................................................................. 1, 9, 17
Hayburn's Case,
2 U.S. (2 Dall.) 408 (1792) .................................................................... 4
Headwaters, Inc. v. Bureau of Land Mgmt., Medford Dist.,
914 F.2d 1174 (9th Cir. 1990) ....................................................... 11–12
*Marbury v. Madison,
5 U.S. (1 Cranch) 137 (1803) ................................................................ 7
Mass. Lobstermen’s Ass’n v. Raimondo,
141 S. Ct. 979 (2021) ........................................................................... 26
Mass. Lobstermen’s Ass’n v. Ross,
945 F.3d 535 (D.C. Cir. 2019) ................................................... 1, 20, 24
Mistretta v. United States,
488 U.S. 361 (1989) ....................................................................... 16–17
Mountain States Legal Found. v. Bush,
306 F.3d 1132 (D.C. Cir. 2002) ................................................. 7, 11, 20
* Authorities chiefly relied on are marked with an asterisk.
iv
Myers v. United States,

272 U.S. 52 (1926) ................................................................................. 5
NFIB v. DOL,
142 S. Ct. 661 (2022) ............................................................................. 3
NLRB v. Noel Canning,
573 U.S. 513 (2014) ............................................................................. 19
O’Neal v. United States,
814 F.2d 1285 (9th Cir. 1987) ............................................................. 12
Panama Refin. Co. v. Ryan,
293 U.S. 388 (1935) ............................................................................... 9
Perez v. Mortg. Bankers Ass’n,
575 U.S. 92 (2015) ......................................................................... 19–20
RadLAX Gateway Hotel, LLC v. Amalgamated Bank,
566 U.S. 639 (2012) ............................................................................. 10
Rapanos v. United States,
547 U.S. 715 (2006) ............................................................................... 1
Roberts v. Sea-Land Servs., Inc.,
566 U.S. 93 (2012) ............................................................................... 10
Sackett v. EPA,
566 U.S. 120 (2012) ............................................................................... 1
Skoko v. Andrus,
638 F.2d 1154 (9th Cir. 1979) ............................................................. 12
*Swanson Grp. Mfg. LLC v. Jewell,
790 F.3d 235 (D.C. Cir. 2015) ............................................................. 12
Tulare Cnty. v. Bush,
306 F.3d 1138 (D.C. Cir. 2002) ..................................................... 20, 22
U.S. Army Corps of Eng’rs v. Hawkes Co., Inc.,
578 U.S. 590 (2016) ............................................................................... 1
United States v. California,
436 U.S. 32 (1978) ............................................................................... 23
United States v. Weyerhaeuser Co.,
538 F.2d 1363 (9th Cir. 1976) ............................................................. 11
v
Util. Air Regulatory Grp. v. EPA,

573 U.S. 302 (2014) ....................................................................... 16, 20
Varity Corp. v. Howe,
516 U.S. 489 (1996) ............................................................................. 10
*West Virginia v. EPA,
142 S. Ct. 2587 (2022) ......................................................................... 15
Weyerhaeuser Co. v. U.S. Fish and Wildlife Serv.,
139 S. Ct. 361 (2018) ............................................................................. 1
Yakus v. United States,
321 U.S. 414 (1944) ....................................................................... 16–17
*Youngstown Sheet & Tube Co. v. Sawyer,
343 U.S. 579 (1952) ............................................................................... 9
Zivotofsky ex rel. Zivotofsky v. Clinton,
566 U.S. 189 (2012) ............................................................................... 7
U.S. Constitution
U.S. Const. art. I.................................................................................... 4, 8
U.S. Const. art. II ...................................................................................... 4
U.S. Const. art. II, § 3 ............................................................................... 5
U.S. Const. art. III..................................................................................... 4
U.S. Const. art. IV, § 3, cl. 2 ...................................................... 4, 8, 16, 18
Statutes
43 U.S.C. § 1181a .................................................................................... 12
43 U.S.C. § 2601 .................................................................................. 6, 11
43 U.S.C. § 2601, et seq. ............................................................................ 2
43 U.S.C. § 2605 ........................................................................................ 6
54 U.S.C. § 320301 ...................................................................... 11, 21, 23
54 U.S.C. §§ 320301–320303 ................................................................... 16
54 U.S.C. § 320301(b) .............................................................................. 25
54 U.S.C. § 320301, et seq. ........................................................................ 1
vi
Other Authorities
Babbitt, Bruce, Secretary, Department of Interior, Address
at the Sturm College of Law of the University of Denver,
Monumental Future for the BLM,
3 U. Denv. Water L. Rev. 223 (2000),
https://core.tdar.org/document/374192/from-grand-
staircase-to-grand-canyon-parashant-is-there-a-
monumental-future-for-the-blm ......................................................... 22
DOI Solicitor’s Opinion M. 30506 (Mar. 9, 1940) ................................... 14
The Federalist No. 47 (James Madison) (J. Cooke ed. 1961) ................... 5
The Federalist No. 78 (Alexander Hamilton)
(J. Cooke ed. 1961) .............................................................................. 19
Fite, Lawson, The Missing Piece: Presidential Action on
Monuments Highlights Congressional Abdication of
Responsibility, 49 No. 4 ABA Trends 4 (2018) ............................. 14–15
National Geograhic, Ecosystem,
Resource Library: Encyclopedia,
https://www.nationalgeographic.org/encyclopedia/ecosyste
m/print/#:~:text=The%20whole%20surface%20of%20Eart
h,types%20of%20biomes%2C%20for%20example ............................. 25
National Monuments and the Antiquities Act, Congressional
Research Service R41330 (updated July 11, 2022),
https://sgp.fas.org/crs/misc/R41330.pdf .............................................. 24
National Monuments and the Antiquities Act:
President Clinton’s Designations and Related Issues,
Congressional Research Service (June 28, 2001)
https://www.everycrsreport.com/files/20010628_RL30528_
51e7ee36b7368d6934398c5f4f14f92bb11a201a.pdf ........................... 22
Prakash, Saikrishna Bangalore,
The Living Presidency: An Originalist Argument
Against Its Ever-Expanding Powers (2020)............................ 20–21, 25
Proclamation No. 5030, 48 Fed. Reg. 10,605 (Mar. 10, 1983),
https://archives.federalregister.gov/issue_slice/1983/3/14/1
0605-10606.pdf#page=1 ................................................................ 23–24
vii
Proclamation No. 7318, Establishment of

the Cascade-Siskiyou National Monument,
65 Fed. Reg. 37,249 (June 9, 2000)..................................................... 13
Proclamation No. 8031, 71 Fed. Reg. 36,443 (June 15, 2006),
https://www.federalregister.gov/documents/2006/06/26/06-
5725/establishment-of-the-northwestern-hawaiian-
islands-marine-national-monument................................................... 23
Proclamation No. 9564, 82 Fed. Reg. 6145 (Jan. 12, 2017) ...................... 2
Seamon, Richard H., Dismantling Monuments,
70 Fla. L. Rev. 553 (2018) ................................................................... 21
Wilson, James, State House Yard Speech (Oct. 6, 1787),
reprinted in 1 Collected Words of James Wilson 171
(Kermit L. Hall & Mark David Hall eds.,
Liberty Fund 2011) ........................................................................... 2–3
viii
GLOSSARY
AFRC Br. – Principal Brief for Defendants/Appellants
O&C Act – Oregon and California Railroad and Coos Bay Wagon Road
Grant Lands Act of 1937, 43 U.S.C. § 2601, et seq.
PLF – Pacific Legal Foundation
ix
AMICI CURIAE’S IDENTITY AND INTEREST1
Founded in 1973, Pacific Legal Foundation is a nonprofit, tax-exempt
California corporation established to litigate matters affecting the public
interest. PLF defends Americans’ liberties when threatened by
government overreach and is the most experienced public-interest legal
nonprofit, both as lead counsel and amicus curiae, in cases involving the
role of the Judicial Branch as an independent check on the Executive and
Legislative Branches under the Constitution’s Separation of Powers. See,
e.g., Gundy v. United States, 139 S. Ct. 2116 (2019); Weyerhaeuser Co. v.
U.S. Fish and Wildlife Serv., 139 S. Ct. 361 (2018); U.S. Army Corps of
Eng’rs v. Hawkes Co., Inc., 578 U.S. 590 (2016); Sackett v. EPA, 566 U.S.
120 (2012); Rapanos v. United States, 547 U.S. 715 (2006).
PLF also represents clients in cases involving the Antiquities Act of
1906, 54 U.S.C. § 320301, et seq., the partial subject matter of these
consolidated appeals. See, e.g., Mass. Lobstermen’s Ass’n v. Ross, 945 F.3d
535 (D.C. Cir. 2019).
1This brief was not authored in whole or in part by counsel for any party.
No party or counsel for a party, and no person other than Amici or their
counsel, contributed money intended to fund this brief’s preparation or
submission.
1
The Cato Institute is a nonpartisan public-policy research foundation
established in 1977 and dedicated to advancing the principles of
individual liberty, free markets, and limited government. Cato’s
Robert A. Levy Center for Constitutional Studies was established in 1989
to help restore the principles of limited constitutional government that
are the foundation of liberty. Toward those ends, Cato publishes books
and studies, conducts conferences, and produces the annual Cato
Supreme Court Review.
These consolidated cases address the President’s authority to
unilaterally expand the Cascade-Siskiyou National Monument, through
the Antiquities Act, into lands governed by the Oregon and California
Railroad and Coos Bay Wagon Road Grant Lands Act of 1937 (O&C Act).
43 U.S.C. § 2601, et seq. Amici submit this brief because Presidential
Proclamation 9564, 82 Fed. Reg. 6145 (Jan. 12, 2017), expanding the
Monument onto O&C land, and the availability of judicial review of that
Proclamation raise core separation of powers issues related to the proper
sphere of each co-equal branch’s power under the Constitution.
2
INTRODUCTION
This amicus brief addresses two issues within these consolidated
appeals: (1) Whether the President exceeded his delegated authority
under the Antiquities Act by reserving land governed by the O&C Act
from sustained-yield timber production, see AFRC Br. 3; and (2) Whether
the district court had jurisdiction to decide that issue. See id. at 54.
These issues raise a fundamental and reoccurring question under the
Constitution: “Who decides?” NFIB v. DOL, 142 S. Ct. 661, 667 (2022)
(Gorsuch, J., concurring). Under the Constitution’s Separation of Powers,
does the President have the power to override a congressionally
prescribed law with the flick of a pen? And under the Constitution’s
Separation of Powers, does the President have the power—unreviewable
by the judiciary—to issue presidential orders that go beyond his
delegated authority and alter rather than enforce the law?
When the American people ratified the Constitution, they answered
no to both questions. They delegated some of their power—as described
and delimited in the Constitution’s text—to each federal branch,
respectively. See James Wilson, State House Yard Speech (Oct. 6, 1787),
reprinted in 1 Collected Works of James Wilson 171, 172 (Kermit L. Hall
3
& Mark David Hall eds., Liberty Fund 2011) (The federal government’s
power is “collected, not from tacit implication, but from the positive grant
expressed in the instrument of union.”). In other words, “the legislative,
executive and judicial departments are each formed in a separate and
independent manner; and [] the ultimate basis of each is the constitution
only, within which the limits of which each department can alone justify
any act of authority.” Hayburn’s Case, 2 U.S. (2 Dall.) 408, 410 n.* (1792).
As relevant here, the people vested Congress—and Congress alone—
with the power to make all rules and regulations regarding public lands.
U.S. Const. art. IV, § 3, cl. 2. Those rules and regulations must go through
the democratic process outlined by Article I of the Constitution before
becoming law. See generally U.S. Const. art. I. By contrast, Article II
vests the Executive Branch with the power to enforce those laws if
properly enacted. See generally U.S. Const. art. II. And the people vested
the judiciary with the judicial power to declare when the other two
branches venture outside their constitutional lanes. See generally U.S.
Const. art. III.
4
The Constitution divided the government’s powers this way not
merely—or even primarily—to resolve inter-branch conflicts or to ensure
efficient government. It was to preserve people’s freedom to determine
how they would exercise their rights and liberties without arbitrary
government interference. Indeed, the “doctrine of the separation of
powers was adopted by the convention of 1787 not to promote efficiency
but to preclude the exercise of arbitrary power.” Myers v. United States,
272 U.S. 52, 293 (1926) (Brandeis, J., dissenting). Above all, to preserve
life, liberty, and the pursuit of happiness—to protect individual
freedom—it was necessary to divide governmental powers because, the
Framers knew, the “accumulation of all powers, legislative, executive,
and judiciary, in the same hands, whether of one, a few, or many,” would
lead to “tyranny.” The Federalist No. 47, at 324 (James Madison) (J.
Cooke ed. 1961).
SUMMARY OF ARGUMENT
1. Under these first principles, Proclamation 9564 is ultra vires and
violates the Separation of Powers. The President is not a king. He
oversees the Executive Branch and “take[s] care that the Laws be
faithfully executed.” U.S. Const. art. II, § 3. But he does not have the
5
unfettered power to use old laws to work around clear congressional
directives in later enacted statutes to instill his preferred policies—
policies that have not gone through the democratic gauntlet outlined in
the Constitution.
Yet the President has done just that by issuing Proclamation 9564
under the Antiquities Act. The Proclamation expands the Cascade-
Siskiyou National Monument by nearly 40,000 acres into lands Congress
has expressly set aside for specific uses under the O&C Act, which was
passed decades after the Antiquities Act. The O&C Act designated
2.4 million acres of forest in Western Oregon as “timberlands[] and
power-site lands valuable for timber,” allowing the sale, cutting, and
removal of the timber on the lands to create a permanent source of
timber, regulate stream flow, protect watersheds, contribute to economic
stability, and provide recreational facilities. See 43 U.S.C. § 2601.
Congress also mandated in the Act that fifty percent of the revenue
generated from timber harvesting on O&C lands go to local counties to
fund public services such as schools. See id. § 2605.
The President directly contradicted Congress’s clear directives by
withdrawing these lands through the Antiquities Act. In doing so, he has
6
gone beyond his delegated authority and altered the law outside the
procedures outlined in the Constitution.
2. The district court correctly found this case is justiciable when it
declared Proclamation 9564 exceeded the President’s authority under the
Antiquities Act. AFRC Br. 54. Under Article III of the Constitution, it is
the federal judiciary’s duty to confront questions involving the
Constitution's government-structuring provisions. Put another way, it is
the solemn responsibility of the Judicial Branch “to say what the law is”
under the Constitution’s Separation of Powers. See Zivotofsky ex rel.
Zivotofsky v. Clinton, 566 U.S. 189, 196 (2012) (quoting Marbury v.
Madison, 5 U.S. (1 Cranch) 137, 177 (1803)); see also Mountain States
Legal Found. v. Bush, 306 F.3d 1132, 1136 (D.C. Cir. 2002) (finding
courts must ensure that presidential proclamations comply with
constitutional principles and do not exceed the President’s statutory
authority under the Antiquities Act).
This Court must affirm the district court and exercise its duty to
provide a check on the President’s executive lawmaking under the
Antiquities Act. In recent years, the President has declared vast areas of
land and ocean as “antiquities” to instill his preferred policies—policies
7
not passed through the Constitution’s prescribed procedures.
Proclamation 9564 is another expansion of the President’s power grab
under the Act and must be checked.
* * * * *
The district court preserved these bedrock first principles by granting
Plaintiffs-Appellees’ motions for summary judgment and denying the
Defendants-Appellants’ motions for summary judgment. This Court
should affirm.
ARGUMENT
I. Proclamation 9564 is Ultra Vires and Violates the Separation

of Powers.
A. The Constitution’s Separation of Powers requires the

President to stay within congressional delegations.
Under the Constitution’s Property Clause, Congress, not the
Executive Branch, is vested with the power to make laws regulating
federal lands. See U.S. Const. art. IV, § 3, cl 2. Like any other law, laws
passed under the Property Clause must go through the Constitution’s
procedures outlined in Article I. See Dep’t of Transp. v. Ass’n of Am.
Railroads, 575 U.S. 43, 68 (2015) (Thomas, J., concurring) (“Article I
requires . . . every Bill which shall have passed the House of
Representatives and the Senate, shall, before it become a Law, be
8
presented to the President of the United States; If he approve he shall
sign it, but if not he shall return it . . . .”) (cleaned up).
The reason is simple and fundamental: The Framers “believed the new
federal government’s most dangerous power was the power to enact laws
restricting the people’s liberty.” Gundy v. United States, 139 S. Ct. 2116,
2134 (2019) (Gorsuch, J., dissenting). Excessive lawmaking was “one of
the diseases to which our governments are most liable. To address that
tendency, the framers went to great lengths to make lawmaking
difficult.” Id. (cleaned up). And if Congress could delegate its lawmaking
power to the Executive Branch, the “vesting clauses” and the “entire
structure of the Constitution would make no sense.” Id. at 2134–35
(cleaned up).
Executive Branch officials—including the President—thus can only
act through a valid delegation from Congress prescribing the law’s
execution. See Panama Refin. Co. v. Ryan, 293 U.S. 388, 420–21 (1935).
And actions by the Executive Branch—including the President—
exceeding congressional delegations are lawmaking, are ultra vires, and
violate the Constitution’s Separation of Powers. See Youngstown Sheet &
Tube Co. v. Sawyer, 343 U.S. 579, 637 (1952) (Jackson, J., concurring).
9
B. Proclamation 9564 conflicts with the O&C Act’s clear

directives.
The expansion of the Cascade-Siskiyou National Monument violates
the separation of powers because Congress did not delegate the President
the power to override later-enacted laws under the Antiquities Act. Yet
Proclamation 9564 does just that by overriding a clear direction from
Congress as expressed in the O&C Act.
When assessing whether Congress intended to delegate power to the
Executive, statutes “cannot be construed in a vacuum.” Roberts v. Sea-
Land Servs., Inc., 566 U.S. 93, 101 (2012) (quoting Davis v. Mich. Dep’t
of Treasury, 489 U.S. 803, 809 (1989)). Courts must instead read those
laws in context with other statutes. For example, when “Congress has
enacted a comprehensive scheme and has deliberately targeted specific
problems with specific solutions[,]” courts must give that scheme effect.
See RadLAX Gateway Hotel, LLC v. Amalgamated Bank, 566 U.S. 639,
645 (2012) (quoting Varity Corp. v. Howe, 516 U.S. 489, 519 (1996)
(Thomas, J., dissenting)). It is a “well established canon of statutory
interpretation” that specific provisions govern more general provisions.
Id. at 645.
10
The Antiquities Act allows the President to “declare by public
proclamation historic landmarks, historic and prehistoric structures, and
other objects of historic or scientific interest that are situated on land
owned or controlled by the Federal Government to be national
monuments.” 54 U.S.C. § 320301. Although the Antiquities Act gives the
President significant authority to execute laws over federal lands, other
statutes ultimately limit this authority. See Mountain States Legal
Found., 306 F.3d at 1136 (citing Chamber of Com. of U.S. v. Reich, 74
F.3d 1322, 1331 (D.C. Cir. 1996)).
Congress provided a limitation in the O&C Act by mandating that
O&C land “shall be managed . . . for the purpose of providing a permanent
source of timber supply.” 43 U.S.C. § 2601. And courts have consistently
agreed with the text that using land for timber harvesting is an
unambiguous requirement. The Ninth Circuit, for example, has observed
that the lands subject to the O&C Act “were to be managed as part of a
‘sustained yield timber program’ for the benefit of dependent
communities.” United States v. Weyerhaeuser Co., 538 F.2d 1363, 1364
(9th Cir. 1976). The paramount importance of timber harvesting is also
reflected in the Ninth Circuit’s holding that: “Nowhere does the
11
legislative history suggest that wildlife habitat conservation or
conservation of old growth forest is a goal on a par with timber
production, or indeed that it is a goal of the O & C Act at all.” Headwaters,
Inc. v. Bureau of Land Mgmt., Medford Dist., 914 F.2d 1174, 1184 (9th
Cir. 1990).
This Court has also emphasized the O&C Act’s focus on timber
harvesting. In Swanson Grp. Mfg. LLC v. Jewell, in which timber sales
from O&C Act lands were at issue, this Court held “[t]he O & C Act
requires that . . . [‘]the annual sustained yield capacity . . . shall be sold
annually, or so much thereof as can be sold at reasonable prices on the
normal market.’” 790 F.3d 235, 239 (D.C. Cir. 2015) (quoting 43 U.S.C.
§ 1181a). To be sure, Swanson did not address a proposed alteration of
the O&C Act by the President, but it shows the fixed meaning of the
statute and the importance of timber production to its statutory scheme.
See id.
The O&C Act’s purpose supports the text’s clear command that the Act
provides a sustained timber yield, with all other uses secondary. See
O’Neal v. United States, 814 F.2d 1285, 1287 (9th Cir. 1987); Skoko v.
Andrus, 638 F.2d 1154, 1156 (9th Cir. 1979). The purposes of the
12
Cascade-Siskiyou National Monument and the O&C lands are also
mutually exclusive. Proclamation 7318, which first established the
Monument, directly addressed timber harvesting by prohibiting it. “No
portion of the monument shall be considered to be suited for timber
production, and no part of the monument shall be used in a calculation
or provision of a sustained yield of timber[.]” Proclamation 7318,
Establishment of the Cascade-Siskiyou National Monument, 65 Fed.
Reg. 37,249, 37,250 (June 9, 2000). The Proclamation also mandated tree
removal “from within the monument area may take place only if clearly
needed for ecological restoration and maintenance or public safety.” Id.
In this way, the Cascade-Siskiyou National Monument’s dominant
purpose is conservation, so it made trees only removable for certain
limited purposes. See id. Yet Proclamation 9564 expands the Monument
onto O&C lands—which Congress had explicitly set aside for timber
harvesting.
The President’s Cascade-Siskiyou National Monument expansion
through Proclamation 9564 is thus incompatible with Congress’s will,
expressed through the O&C Act. As the district court observed, “[p]ut
simply, there is no way to manage land for sustained yield timber
13
production, while simultaneously deeming the land unsuited for timber
production and exempt from any calculation of the land’s sustained yield
of timber.” AFRC Br. 21.2
In short, the O&C Act’s specific requirements cannot bend to the
President’s unconstitutional usurpation of power to instill his preferred
policy under the Antiquities Act. The President may not amend a
congressionally prescribed law by exceeding his delegated authority. If
the O&C Act is to yield to the President’s preferred policy, it is Congress’s
job to change the law through the Constitution’s required procedures.
Any other interpretation of the Antiquities Act untethers the President
from his executive function under the Constitution.
2 This is how the Antiquities and O&C Acts have been interpreted
throughout history. See DOI Solicitor’s Opinion M. 30506 (Mar. 9, 1940)
(“It is well settled that where Congress has set aside lands for a specific
purpose the President is without authority to reserve the lands for
another purpose inconsistent with that specified by Congress.”); see also
Lawson Fite, The Missing Piece: Presidential Action on Monuments
Highlights Congressional Abdication of Responsibility, 49 No. 4 ABA
Trends 4, 7 (2018).
14
C. If Proclamation 9564 is lawful, there is no limiting

principle on the President’s power under the Antiquities
Act.
No precedent in this Circuit directly addresses the interaction between
the Antiquities Act and the O&C Act. The district court’s narrow holding
that the President exceeded his statutory delegation thus allows the
Court to uphold the O&C Act’s clear directives and appropriately limit
the President’s authority under the Antiquities Act. It can do so by
“employing a narrowing construction to avoid separation of powers
concerns and fulfill the purpose of the Property Clause.” The Missing
Piece, 49 No. 4 ABA Trends at 7.
The Supreme Court has recently held that “both separation of powers
principles and a practical understanding of legislative intent” should
make courts “reluctant to read into ambiguous statutory text the
delegation claimed to be lurking there.” West Virginia v. EPA, 142 S. Ct.
2587, 2609 (2022) (cleaned up). There must be “something more than a
merely plausible textual basis”—there must be a “clear congressional
authorization” before courts presume a broad congressional delegation.
Id.
15
And courts should be skeptical when the Executive Branch attempts
to “bring about an enormous and transformative expansion in [its]
regulatory authority without clear congressional authorization.” Util. Air
Regulatory Grp. v. EPA, 573 U.S. 302, 324 (2014); see also FDA v. Brown
& Williamson Tobacco Corp., 529 U.S. 120, 159 (2000) (rejecting an
executive agency’s claim of “jurisdiction to regulate an industry
constituting a significant portion of the American economy” absent
explicit congressional authorization).
This principle applies here. The Constitution gives Congress the power
to manage federal lands under the Property Clause. See U.S. Const.
art. IV, § 3, cl 2. Congress delegated some authority to the President to
establish national monuments through the Antiquities Act. See 54 U.S.C.
§§ 320301–320303. And while Congress’s delegation of authority under
the Antiquities Act is broad, ambiguously so, there must be a clear limit
to the power delegated to the President. Indeed, congressional
delegations of power to the President must have some “boundaries” to
prevent him from seizing the powers reserved for Congress. See, e.g.,
Yakus v. United States, 321 U.S. 414, 426 (1944); see also Mistretta v.
16
United States, 488 U.S. 361, 379 (1989); Gundy, 139 S. Ct. at 2136
(Gorsuch, J., dissenting).
If this Court allows the President’s unilateral expansion of the
Cascade-Siskiyou National Monument, it will set a precedent giving the
President boundless power under the Antiquities Act. It will provide no
limiting principle on future expansions of national monuments onto land
reserved for other purposes by Congress. And it will effectively give the
President unlimited authority to regulate federal land how he sees fit,
regardless of any uses already designated for the land by statute.
The limitation adopted by the district court—that the President
cannot unilaterally expand a national monument onto lands reserved for
another purpose by Congress—avoids the constitutional problem that
will arise if the President has the unlimited authority to alter later
enacted laws. But if the Court interprets the Antiquities Act to create
such a sweeping delegation of power to the President to manage federal
land under the Property Clause, it will represent an improper delegation
of power. See, e.g., Yakus, 321 U.S. at 426. Indeed, if lawful, Congress will
effectively have delegated its power to legislate federal land use under
the Property Clause to the President—creating a “delegation running
17
riot.” See A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495,
552–53 (1935) (Cardozo, J., concurring).
In sum, courts should not interpret the Antiquities Act to allow the
President to wield Congress’s Property Clause power whenever he
pleases. Instead, it should be read with a clear limiting principle—the
President acts ultra vires when he seeks to expand a national monument
onto lands already reserved for another purpose by Congress. Under the
Constitution, the people delegated Congress the power to manage federal
lands. U.S. Const. art. IV, § 3, cl 2. No interpretation of the Antiquities
Act should allow a congressional delegation of legislative authority to the
President obliterating that constitutional mandate.
II. This Court Has Jurisdiction to Determine Whether the

President Has Acted Outside of His Delegated Powers.
A. Article III courts have a judicial duty to determine when

the President has exceeded his power under Federal Law
and the Constitution.
The district court correctly found that the federal courts have
jurisdiction to determine when the President has exceeded his statutory
and constitutional authority under the Antiquities Act. AFRC Br. 54–57.
That ruling is not extraordinary—it is required by the Constitution’s
18
mandate that the federal courts provide a vital check on the political
branches’ excesses of power.
The Framers envisioned that the judiciary—not the Executive
Branch—would determine laws’ meaning. Perez v. Mortg. Bankers Ass’n,
575 U.S. 92, 125 (2015) (“The Framers expected Article III judges to
engage . . . by applying the law as a ‘check’ on the excesses of both the
Legislative and Executive Branches.”) (Thomas, J., concurring). Federal
judges are thus constitutionally charged with the duty to exercise
independent judgment under Article III of the Constitution. See The
Federalist No. 78 (Alexander Hamilton) (The judicial duty entails the
“interpretation of the laws,” which is the “proper and peculiar province of
the courts.”).
This constitutional principle mandates that courts not “defer to the
other branches’ resolution” of separation of powers issues. See NLRB v.
Noel Canning, 573 U.S. 513, 571–72 (2014) (Scalia, J., concurring). And
the judiciary’s “role is in no way lessened because it might be said that
the two political branches are adjusting their own powers between
themselves.” Id. (cleaned up). In the context of executive overreach, the
federal courts must look to “the compatibility of [executive] actions with
19
enabling statutes.” Perez, 575 U.S. at 1221 (Thomas, J., concurring)
(citing Util. Air Regulatory Grp., 573 U.S. at 313–16).
This Court has applied this foundational constitutional principle and
reviewed the President’s actions in several cases directly dealing with the
Antiquities Act and other statutes besides. See Mass. Lobstermen’s Ass’n
v. Ross, 945 F.3d at 540 (D.C. Cir. 2019); Mountain States, 306 F.3d 1132;
Tulare Cnty. v. Bush, 306 F.3d 1138 (D.C. Cir. 2002); Reich, 74 F.3d 1322.
B. This Court must continue to review the President’s

authority under the Antiquities Act.
There is no reason to depart from the Constitution and this Court’s
precedents. In fact, it is vital that this Court continues to exercise
jurisdiction over the President’s actions and provide a limiting principle,
as outlined in the district court’s holding, to cabin the President’s
authority under the Antiquities Act.
Presidents rarely gain power through grand usurpations. Presidents
usually engage in “creative destruction”—unchecked violations of the law
that expand their power over time. See Saikrishna Bangalore Prakash,
The Living Presidency: An Originalist Argument Against Its Ever-
Expanding Powers 8 (2020). This is essentially a “practice-makes-perfect”
form of executive lawmaking in which Presidents “claim to have the
20
authority to change federal law via repeated violations.” Id. at 9. Through
this creative destruction, modern Presidents are thus “Brahma, Vishnu,
and Shiva” rolled into one: “creators, preservers, and destroyers” all at
once, “switch[ing] between these roles to suit their personal and policy
interests.” Id. at 146. This is partly enabled by “a judicial system that
acts as only a partial, fitful check on the executive, and the weakness of
the check has consequences for the actions the executive is willing to
take.” Id. at 73.
The Antiquities Act and judicial review of the President’s actions
provide a perfect example. Under the Antiquities Act, presidents may
designate “National Monuments” on certain public lands. 54 U.S.C.
§ 320301. Congress intended the Act to be a quick way to protect
archaeological artifacts from vandalism and looting. See Richard H.
Seamon, Dismantling Monuments, 70 Fla. L. Rev. 553, 561–67 (2018)
(discussing the Antiquities Act’s legislative purpose). But since at least
the 1990s, presidents have slowly swallowed more and more power
through the Antiquities Act’s implementation with little to no judicial
check on their power.
21
During President Clinton’s tenure, for example, the statute’s scope
broadened from protecting specific “objects” to regulating nebulous
“ecosystems.” 3 According to the Clinton administration, these unnamed
ecosystems were themselves “objects” the President could designate as a
“monument.” See Tulare Cnty., 306 F.3d at 1142 (explaining the
president’s reasoning). All told, President Clinton established 19
monuments and expanded three others, totaling 5.9 million acres. 4
And the expansion of the President’s power under the Antiquities Act
is not a partisan affair. President George W. Bush expanded on his
predecessor’s innovation in executive authority by taking ecosystem
monuments to new domains. The President’s regulatory reach is
3Bruce Babbitt, Secretary, Department of Interior, Address at the Sturm

College of Law of the University of Denver, From Grand Staircase to
Grand Canyon Parashant: Is There a Monumental Future for the BLM, 3
U. Denv. Water L. Rev. 223, 229 (2000) (describing the evolution of
presidential regulation under the Antiquities Act, starting with the
designation of “curiosit[ies]” and, during the Clinton administration,
expanding to the protection of entire ecosystem).
https://core.tdar.org/document/374192/from-grand-staircase-to-grand-
canyon-parashant-is-there-a-monumental-future-for-the-blm.
4 National Monuments and the Antiquities Act: President Clinton’s
Designations and Related Issues, Congressional Research Service 4
(June 28, 2001)
https://www.everycrsreport.com/files/20010628_RL30528_51e7ee36b736
8d6934398c5f4f14f92bb11a201a.pdf.
22
textually limited to property on “land” “owned or controlled” by the
federal government. 54 U.S.C. § 320301. During the law’s first 100 years,
courts understood that limitation to mean only those land areas subject
to U.S. sovereignty, such as public lands or the land within the territorial
seas. See United States v. California, 436 U.S. 32, 35–36 (1978)
(recognizing that Presidents only designated monuments in areas where
the federal government exercised “full dominion and power”). But in
2006, President Bush adopted a broader reading and established the 89-
million-acre Northwestern Hawaiian Islands Marine National
Monument in the Pacific Ocean.5 Under President Bush’s interpretation
of “land” that is “owned or controlled” by the federal government, the
President’s authority extends to the Oceans’ seabed in the “exclusive
economic zone”—an area between the territorial sea and 200 miles from
the Nation’s coast, over which nations exercise concurrent authority that
falls far short of sovereign dominion. 6
5 Proclamation No. 8031, 71 Fed. Reg. 36,443 (June 15,

2006), https://www.federalregister.gov/documents/2006/06/26/06-
5725/establishment-of-the-northwestern-hawaiian-islands-marine-
national-monument.
6 See Proclamation No. 5030, 48 Fed. Reg. 10,605
(Mar. 10, 1983) (establishing the EEZ),
23
Not to be outdone, President Obama expanded three of President
Bush’s marine monuments and created the Northeast Canyons and
Seamounts National Monument—which designated millions of acres of
the Atlantic Ocean as a national monument and banned commercial
fishing within its boundaries. See Mass. Lobstermen’s Ass’n, 945 F.3d at
538–39.7
These two Presidents’ Ocean monuments now encompass almost 750
million acres of Ocean seabed. That is nearly ten times the area as the
total acreage regulated during the first 100 years of the Antiquities Act.8
And these monuments have severely limited the people’s ability to ply
their trade and earn a living within the designations.
Of course, the inherent problem with ecosystem monuments is that
there’s no limiting principle. This is so because every square inch of the
earth contains or is part of an ecosystem—all public “lands” or Oceans’
https://archives.federalregister.gov/issue_slice/1983/3/14/10605-
10606.pdf#page=1.
7President Obama expanded the Pacific Remote Islands Marine National
Monument by 261.3 million acres and the Papahanaumokuakea Marine
National Monument by 283.4 million acres.
8National Monuments and the Antiquities Act, Congressional Research
Service R41330 Appendix B (updated July 11, 2022),
https://sgp.fas.org/crs/misc/R41330.pdf.
24
seabed are designable “monuments” under the President’s reading of the
law. 9 In this way, ecosystem monuments obviate the Antiquity Act’s
primary constraint on executive authority—that a designation must be
limited to the “smallest area compatible” with a monument’s
preservation. 54 U.S.C. § 320301(b). Yet this limitation becomes
meaningless when courts permit the President to merely draw shapes on
a map and designate an entire ecosystem as a “national monument.”
In essence, these continual transgressions of power through several
presidential proclamations—with little to no judicial scrutiny of the
President’s authority when they happen—have allowed the President to
become a constitutional “pickpocket” of Congress’s power under the
Property Clause. See Prakash, The Living Presidency 9. It should thus be
no surprise that the President is now seeking to expand his power even
further by claiming the authority to override clear statutory mandates.
9 See National Geographic, Ecosystem, Resource Library: Encyclopedia

(“The whole surface of Earth is a series of connected ecosystems.”),
https://www.nationalgeographic.org/encyclopedia/ecosystem/print/#:~:te
xt=The%20whole%20surface%20of%20Earth,types%20of%20biomes%2
C%20for%20example.
25
Even so, this expansion of power has started to be noticed. As the Chief
Justice observed, the Antiquities Act’s limited delegation has not yet
been meaningfully delineated by courts, resulting in increasingly absurd
interpretations of the Act. Mass. Lobstermen’s Ass’n v. Raimondo, 141 S.
Ct. 979, 980–81 (2021) (Mem) (noting that past presidents’
interpretations of the Antiquities Act strain the bounds of “ordinary
English”). As the Chief Justice tacitly acknowledged, the Antiquities Act
has morphed into limitless power never envisioned by Congress when it
passed the statute over 100 years ago. See id. at 981.
This Court should heed these observations, continue to exercise
jurisdiction over the President’s unlawful exercise of authority under the
Antiquities Act, and provide the judicial check the Constitution requires
to limit his authority to that delegated by Congress. The Court can do so
by affirming the district court’s holding that the President cannot
override Congress’s clear statutory mandates. The Antiquities Act is not,
and constitutionally cannot be, a delegation that allows the President to
ignore Congress’s clear legal directives.
26
CONCLUSION
For all these reasons, this Court should affirm the district court’s
judgment granting Plaintiffs-Appellees’ motions for summary judgment
and denying the Defendants-Appellants’ motions for summary judgment.
DATED: August 30, 2022.
Respectfully submitted,
Damien M. Schiff
Telephone: (916) 419-7111
[email protected]
*Admitted to the D.C. Bar under D.C. App. R. 46-A. Supervised by a

D.C. Bar member.
27
CERTIFICATE OF COMPLIANCE
I certify that this brief complies with the type-volume limitation of
Federal Rule of Appellate Procedure 29(a)(5) because this brief contains
4,936 words, excluding the parts of the brief exempted by Federal Rule of
Appellate Procedure 32(f). This statement is based on the word count
function of Microsoft Office Word.
I further certify that this brief complies with the typeface and type-
style requirements of Federal Rule of Appellate Procedure 32(a)(5) and
(6) because it has been prepared in a 14-point Century Schoolbook, a
proportionally spaced font.
FRANK D. GARRISON
28
CERTIFICATE OF SERVICE
I certify that on August 30, 2022, I electronically filed this amicus brief
with the Clerk of the Court for the United States Court of Appeals for the
District of Columbia Circuit by using the appellate CM/ECF system.
I certify that all participants in the case are registered CM/ECF users,
and that service will be accomplished by the appellate CM/ECF system.
FRANK D. GARRISON
29

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USCA Case #20-5008 Document #1961504 Filed: 08/30/2022 Page 1 of 40

ORAL ARGUMENT NOT YET SCHEDULED

IN THE UNITED STATES COURT OF APPEALS

A. Parties and Amici

Except as stated below, all parties, intervenors, and amici appearing

in this Court are listed in Plaintiffs-Appellees’ Principal Brief. That brief

26.1, Pacific Legal Foundation, a nonprofit corporation organized under

the laws of California, certifies that it has no parent companies,

subsidiaries, or affiliates that have issued shares to the public. Pacific

Legal Foundation is a legal nonprofit dedicated to defending people’s

liberties when threatened by government overreach and abuse.

The Cato Institute is a nonprofit entity under § 501(c)(3) of the

Internal Revenue Code. Cato is not a subsidiary or affiliate of any

held corporation has a direct financial interest in the outcome of this

litigation due to Cato’s participation.

B. Rulings Under Review

References to the rulings under review appear in Plaintiffs-Appellees’

References to related cases appear in Plaintiffs-Appellees’ Principal

DATED: August 30, 2022.

* Authorities chiefly relied on are marked with an asterisk.

Myers v. United States,

Util. Air Regulatory Grp. v. EPA,

Proclamation No. 7318, Establishment of

AFRC Br. – Principal Brief for Defendants/Appellants

PLF – Pacific Legal Foundation

AMICI CURIAE’S IDENTITY AND INTEREST1

Founded in 1973, Pacific Legal Foundation is a nonprofit, tax-exempt

California corporation established to litigate matters affecting the public

interest. PLF defends Americans’ liberties when threatened by

government overreach and is the most experienced public-interest legal

role of the Judicial Branch as an independent check on the Executive and

Legislative Branches under the Constitution’s Separation of Powers. See,

120 (2012); Rapanos v. United States, 547 U.S. 715 (2006).

PLF also represents clients in cases involving the Antiquities Act of

1906, 54 U.S.C. § 320301, et seq., the partial subject matter of these

535 (D.C. Cir. 2019).

The Cato Institute is a nonpartisan public-policy research foundation

established in 1977 and dedicated to advancing the principles of

individual liberty, free markets, and limited government. Cato’s

Robert A. Levy Center for Constitutional Studies was established in 1989

to help restore the principles of limited constitutional government that

and studies, conducts conferences, and produces the annual Cato

Supreme Court Review.

These consolidated cases address the President’s authority to

unilaterally expand the Cascade-Siskiyou National Monument, through

43 U.S.C. § 2601, et seq. Amici submit this brief because Presidential

Proclamation raise core separation of powers issues related to the proper

sphere of each co-equal branch’s power under the Constitution.

This amicus brief addresses two issues within these consolidated

appeals: (1) Whether the President exceeded his delegated authority

These issues raise a fundamental and reoccurring question under the

(Gorsuch, J., concurring). Under the Constitution’s Separation of Powers,

does the President have the power to override a congressionally

Separation of Powers, does the President have the power—unreviewable

by the judiciary—to issue presidential orders that go beyond his

delegated authority and alter rather than enforce the law?

When the American people ratified the Constitution, they answered

no to both questions. They delegated some of their power—as described

and delimited in the Constitution’s text—to each federal branch,

reprinted in 1 Collected Works of James Wilson 171, 172 (Kermit L. Hall