F. DALE ROBERTSON, CHIEF, UNITED STATES FOREST SERVICE, THE UNITED STATES FOREST SERVICE, AND MANUEL LUJAN, JR., SECRETARY OF THE INTERIOR, PETITIONERS V. SEATTLE AUDUBON SOCIETY, ET AL. No. 90-1596 In The Supreme Court Of The United States October Term, 1990 The Solicitor General, On Behalf Of F. Dale Robertson, Chief, United States Forest Service, The United States Forest Service, Department Of Agriculture, And Manuel Lujan, Jr., Secretary Of The Interior, /1/ Respectfully Petitions For A Writ Of Certiorari To Review The Judgment Of The United States Court Of Appeals For The Ninth Circuit In This Case. Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Ninth Circuit PARTIES TO THE PROCEEDING In addition to the parties named in the caption, Pilchuck Audubon Society, Washington Environmental Council, Washington, Native Plants Society, Oregon Natural Resources Defense Council Inc., Portland Audubon Society, Lane County Audubon Society, and Siuslaw Task Force were plaintiffs in the district court (W.D. Wash.) and appellants in the court of appeals. Washington Contractor Loggers Association and William Pickell were also plaintiffs in the district court and appellees in the court of appeals. Portland Audubon Society, Headwaters, Lane County Audubon Society, Oregon Natural Resources Council, Siskiyou Audubon Society, Central Oregon Audubon Society, Kalmiopsis Audubon Society, Umpqua Valley Audubon Society, and Natural Resources Defense Council were plaintiffs in the district court (D. Ore.) and appellants in the court of appeals. Northwest Forest Resource Council, Huffman & Wright Logging Co., Freres Lumber Co., Inc., Lone Rock Timber Co., Inc., Scott Timber Co., Clear Lumber Manufacturing Corp., Yoncalla Timber Products, Inc., Cornett Lumber Company, Inc., Douglas County Forest Products Company, Medford Corporation, Rogge Forest Products, Inc., Association of O & C Counties, and Benton County were defendants/intervenors in the district court and appellees in the court of appeals. TABLE OF CONTENTS Question Presented Parties To The Proceeding Opinions below Jurisdiction Statutory provision involved Statement: A. Initial proceedings in the district courts and court of appeals 1. Seattle Audubon Society v. Robertson 2. Portland Audubon Society v. Lujan B. Section 318 of the Department of the Interior and Related Agencies Appropriations Act, 1990 C. District court proceedings in light of section 318 D. The court of appeals decision E. District court proceedings on remand from court of appeals' invalidation of section 318(b)(6)(A) 1. Seattle Audubon Society v. Robertson 2. Portland Audubon Society v. Lujan Reasons for granting the petition Conclusion OPINIONS BELOW The amended opinion of the court of appeals (App., infra, 1a-17a) is not yet reported. The initial opinion of the court of appeals is reported at 914 F.2d 1311. The opinion and order of the district court in Seattle Audubon Society v. Robertson, No. 89-160WD (W.D. Wash.) (App., infra, 20a-28a, 29a-34a) are unreported. The opinion of the district court in Portland Audubon Society v. Lujan, No. 87-1160-FR (D. Or.) (App., infra, 35a-42a) is unreported. JURISDICTION The judgment of the court of appeals was entered on September 18, 1990. Petitions for rehearing were denied on January 16, 1991. App., infra, 18a-19a. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). /2/ STATUTORY PROVISION INVOLVED Section 318(b)(6)(A) of the Department of the Interior and Related Agencies Appropriations Act, 1990, Pub. L. No. 101-121, Tit. III, Section 318(b)(6)(A), 103 Stat. 747 (1989), provides: Without passing on the legal and factual adequacy of the Final Supplement to the Environmental Impact Statement for an Amendment to the Pacific Northwest Regional Guide -- Spotted Owl Guidelines and the accompanying Record of Decision issued by the Forest Service on December 8, 1988 or the December 22, 1987 agreement between the Bureau of Land Management and the Oregon Department of Fish and Wildlife for management of the spotted owl, the Congress hereby determines and directs that management of areas according to subsections (b)(3) and (b)(5) of this section on the thirteen national forests in Oregon and Washington and Bureau of Land Management lands in western Oregon known to contain northern spotted owls is adequate consideration for the purpose of meeting the statutory requirements that are the basis for the consolidated cases captioned Seattle Audubon Society et al., v. F. Dale Robertson, Civil No. 89-160 and Washington Contract Loggers Assoc. et al., v. F. Dale Robertson, Civil No. 89-99 (order granting preliminary injunction) and the case Portland Audubon Society et al., v. Manuel Lujan, Jr., Civil No. 87-1160-FR. The guidelines adopted by subsections (b)(3) and (b)(5) of this section shall not be subject to judicial review by any court of the United States. Section 318 of the Department of the Interior and Related Agencies Appropriations Act, 1990, Pub. L. No. 101-121, Tit. III, 103 Stat. 745-750 (1989), is reproduced in its entirety at App., infra, 43a-55a. QUESTION PRESENTED Whether Section 318(b)(6)(A) of the Department of the Interior and Related Agencies Appropriations Act, 1990, Pub. L. No. 101-121, Tit. III, Section 318(b) (6)(A), 103 Stat. 747 (1989), which provides interim statutory standards not subject to judicial review for management of national forest timber sales that had been challenged in pending federal court actions, violates the constitutional principle of separation of powers. STATEMENT This case involves "the ongoing controversy over logging in old growth forests in Oregon and Washington and the impact of that logging on the northern spotted owl." App., infra, 5a. Old-growth forests provide natural habitat for the northern spotted owl -- a threatened species. /3/ In the late 1980's respondents, the Seattle Audubon Society, the Portland Audubon Society, and other environmental groups, filed actions in the Western District of Washington and the District of Oregon challenging the federal government's effort to continue logging old-growth timber in government-owned forests located in the Pacific Northwest. During the pendency of those federal court proceedings, Congress enacted Section 318 of the Department of the Interior and Related Agencies Appriations Act, 1990, Pub. L. No. 101-121, Tit. III, 103 Stat. 745-750 (1989), also known as the Northwest Timber Compromise. Section 318, as described by Congress, "sets terms and conditions applicable only for fiscal year 1990 for making timber sales on Federal lands in Oregon and Washington, for managing habitat for northern spotted owls, and for minimizing fragmentation of significant old-growth forest stands." H.R. Conf. Rep. No. 264, 101st Cong., 1st Sess. 87 (1989). In light of directives set forth in Section 318, the district courts concluded that the statute by its terms precluded respondents' claims for relief. The Ninth Circuit reversed, holding that Section 318(b)(6)(A) violates the constitutional principle of separation of powers set forth in United States v. Klein, 80 U.S. (13 Wall.) 128 (1871). The court of appeals determined that Section 318(b)(6)(A) "does not establish new law, but directs the court to reach a specific result and make certain factual findings under existing law in connection with two cases pending in federal court." App., infra, 14a. In the court's view, "(t)his is what Klein and subsequent cases agree is constitutionally proscribed." Ibid. Accordingly, the court of appeals remanded for consideration of the merits of respondents' challenges. A. Initial Proceedings in the District Courts and Court of Appeals 1. Seattle Audubon Society v. Robertson In February 1989, respondents filed an action against the Chief of the United States Forest Service, Department of Agriculture, in the United States District Court for the Western District of Washington. /4/ Respondents contended that the Forest Service's plan for managing northern spotted owl habitat in the national forests located in Washington and Oregon violated the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4321 et seq., the Migratory Bird Treaty Act (MBTA), 16 U.S.C. 703 et seq., and the National Forest Management Act of 1976 (NFMA), 16 U.S.C. 1600 et seq. /5/ Respondents sought declaratory and injunctive relief, barring the Forest Service from implementing its plans. App., infra, 6a, 30a-32a. In a series of rulings issued in the spring of 1989, the district court enjoined 163 planned timber sales in Washington and Oregon. Those sales involved sites containing 40 acres or more of old-growth timber. App., infra, 5a, 30a-33a. 2. Portland Audubon Society v. Lujan In October 1987, respondents had filed a similar action against the Secretary of the Interior in the United States District Court for the District of Oregon. Respondents principally contended that the Bureau of Land Management's decision to continue logging old-growth timber on BLM-managed lands in western Oregon, on the basis of timber management plans that had not adequately considered the detrimental effects to the northern spotted owl population, violated NEPA. /6/ Respondents sought declaratory and injunctive relief barring the Secretary from continuing to implement his plans for logging old-growth timber on BLM-managed lands in Oregon. App., infra, 5a, 36a-37a. In April 1988, the district court dismissed the action, holding that Section 314 of the Department of the Interior and Related Agencies Appropriations Act, 1988, Pub. L. No. 100-202, Tit. III, 101 Stat. 1329-254 (1987), precluded judicial review of respondents' claims. /7/ In January 1989, however, after granting respondents' request to enjoin temporarily certain timber sales pending appeal, the court of appeals reversed and remanded for further proceedings. Portland Audubon Society v. Hodel, 866 F.2d 302 (9th Cir.), cert. denied, 109 S. Ct. 3229 (1989). /8/ On remand in May 1989, the district court again dismissed respondents' action on the basis of the statutory bar contained in Section 314. Portland Audubon Society v. Lujan, 712 F. Supp. 1456 (D. Or. 1989). In September 1989, the court of appeals affirmed the district court's dismissal of respondents' NEPA claim, but reversed and remanded the court's dismissal of respondents' claims under OCLA, FLPMA, and MBTA. Portland Audubon Society v. Lujan, 884 F.2d 1233 (9th Cir. 1989), cert. denied, 110 S. Ct. 1470 (1990). /9/ B. Section 318 of the Department of the Interior and Related Agencies Appropriations Act, 1990 In the midst of the disruption caused by the federal court injunctions issued in the course of respondents' lawsuits, Congress enacted Section 318 of the Department of the Interior and Related Agencies Appropriations Act, 1990, Pub. L. No. 101-121, Tit. III, 103 Stat. 745-750 (1989), in order to "balance the goals of ensuring a predictable flow of public timber for fiscal year 1990 and protecting the northern spotted owl and significant old growth forest stands." H.R. Conf. Rep. No. 264, supra, at 87. Consequently, as effective October 23, 1989, Section 318 "sets terms and conditions applicable only for fiscal year 1990 for making timber sales on Federal lands in Oregon and Washington, for managing habitat for northern spotted owls, and for minimizing fragmentation of significant old-growth forest stands." Ibid. 1. Section 318 requires the United States Forest Service to sell a certain amount of timber in Washington and Oregon national forests, including timber in areas "known to contain northern spotted owls." Section 318(a)(1), 103 Stat. 745. The statute also establishes standards for governing the Forest Service's choice of particular sites for proposed sales. Section 318(b)(1) and (2), 103 Stat. 745-746. /10/ In order to protect the 1990 timber sale programs from litigation disruptions, Section 318(g) provides streamlined judicial review procedures. In particular the statute prohibits federal courts from issuing any restraining order or preliminary injunction * * * with respect to any decision * * * (regarding) timber sales in fiscal year 1990 from the thirteen national forests in Oregon and Washington and (BLM) lands in western Oregon known to contain northern spotted owls. Section 318(g)(1), 103 Stat. 749. On the other hand, the statute provides that courts shall have authority to enjoin permanently, order modification of, or void an individual sale if it has been determined by a trial on the merits that the decision to prepare, advertise, offer, award, or operate such sale is arbitrary, capricious, or otherwise not in accordance with law. Section 318(g)(1), 103 Stat. 749. /11/ 2. Section 318 also contains specific provisions regarding respondents' pending federal court actions. As an initial matter, Congress declined to "pass( ) on the legal and factual adequacy of (the Forest Service's formal administrative December 1988 decision and the December 1987 agreement between BLM and Oregon state authorities)," each of which formed part of the substantive standards provided in Section 318(b). Section 318(b)(6)(A), 103 Stat. 747. Congress next specifically determine(d) and direct(ed) that management of areas according to subsections (b)(3) and (b)(5) of this section on the thirteen national forests in Oregon and Washington and (BLM) lands in western Oregon known to contain northern spotted owls is adequate consideration for the purpose of meeting the statutory requirements that are the basis for (respondents' pending federal court actions). Section 318(b)(6)(A), 103 Stat. 747 (emphasis added). /12/ Congress further emphasized its goal of streamlining the pending actions, providing that "(t)he guidelines adopted by subsections (b)(3) and (b)(5) of this section shall not be subject to judicial review by any court of the United States." Section 318(b)(6)(A), 103 Stat. 747. C. District Court Proceedings In Light Of Section 318 1. Seattle Audubon Society v. Robertson As a result of the express provisions of Section 318, the government in October 1989 asked the district court to vacate the preliminary injunction it had previously entered barring the 163 planned timber sales in Washington and Oregon. Respondents countered that Section 318(b)(6)(A) is unconstitutional, contending that Congress impermissibly directed the result in pending actions and otherwise unlawfully barred judicial review of the one-year guidelines established by the statute. App., infra, 23a. In November 1989, the district court granted the government's motion, rejected respondents' constitutional challenge, and vacated the preliminary injunction. App., infra, 20a-28a, 29a-34a. The court concluded that Section 318(b)(6)(A) "does not require a particular decision on the issues of this case." Id. at 24a. On the contrary, the court determined, "Congress has adopted the Forest Service's proposed guidelines, challenged by (respondents), as statutory law for a period of one year." Ibid. Congress has "the power to do this," the court recognized, since "(j)ust as Congress may create a geographic exception to the environmental laws, it may also create a temporal exception." Ibid. The court also rejected respondents' contention that the statute's bar to judicial review is unconstitutional, noting that Congress may restrict federal court jurisdiction, and that Section 318(b)(6)(A) "means only that, as new statutory law, the guidelines (mandated in subsections (b)(3) and (b)(5)) cannot be tested in court for compliance with the National Forest Management Act, (NEPA), or other general environmental statutes." App., infra, 25a-26a. /13/ 2. Portland Audubon Society v. Lujan In the district court, the government similarly sought dismissal of respondents' pending claims in view of newly enacted Section 318. Respondents contended that Section 318(b)(6)(A), which in their view prescribed a rule of decision in the pending action, violates the constitutional principle of separation of powers. App., infra, 37a. In December 1989, the district court granted the government's motion and dismissed as moot for fiscal year 1990 respondents' statutory claims. App., infra, 35a-42a. The court rejected respondents' constitutional challenge, adopting the "reasoning and result" of the district court in the Seattle Audubon Society case. Id. at 37a. /14/ D. The Court Of Appeals Decision In September 1990, the court of appeals reversed, holding that Section 318(b)(6)(A) violates the constitutional principle of separation of powers. App., infra, 1a-17a. Relying principally on United States v. Klein, 80 U.S. (13 Wall.) 128 (1871), and United States v. Sioux Nation, 448 U.S. 371 (1980), the court stated that the critical distinction, for purposes of deciding the limits to Congress' authority to affect pending litigation through statute, is between the actual repeal or amendment of the law underlying the litigation, which is permissible, and the actual direction of a particular decision in a case, without repealing or amending the law underlying the litigation, which is not permissible. App., infra, 11a-12a. Turning to Section 318(b)(6)(A), the court determined that the statute "does not, by its plain language, repeal or amend the environmental laws underlying this litigation." App., infra, 13a. To the contrary, the court stated that "(t)he clear effect of subsection (b)(6)(A) is to direct (the court) that, if the government follows the plan incorporated in subsection (b)(3) and (b)(5), then the government will have done what is required under the environmental statutes involved in these cases." Ibid. Having construed the statute in this manner, the court concluded that "(i)n this way Congress, through Section 318, seeks to perform functions reserved to the courts by Article III of the Constitution." App., infra, 14a. In other words, Section 318(b)(6)(A) "does not establish new law, but directs the court to reach a specific result and make certain factual findings under existing law in connection with two cases pending in federal court." App., infra, 14a. In the court's view, "(t)his is what Klein and subsequent cases agree is constitutionally proscribed." Ibid. /15/ Finally, the court of appeals noted that "even if (it) could interpret section 318 as a temporary repeal of the environmental laws at issue in the underlying litigation, then section 318 would amount to an implied partial repeal of the environmental statutes." App., infra, 16a. Relying on TVA v. Hill, 437 U.S. 153 (1978), and circuit precedent, the court stated that Congress could not partially repeal substantive law in an "appropriations measure." Ibid. /16/ E. District Court Proceedings On Remand From Court Of Appeals' Invalidation Of Section 318(b)(6)(A) 1. Seattle Audubon Society v. Robertson Several days after the court of appeals issued its mandate, the district court rejected respondents' challenge to six 1990 timber sales on the ground that they were untimely under the 15-day limitations period set forth in Section 318(g)(1), 103 Stat. 749. Seattle Audubon Society v. Robertson, No. 89-160WD (W.D. Wash. Sept. 29, 1990). Respondents' appeal from that judgment is pending before the court of appeals. Seattle Audubon Society v. Robertson, No. 90-35774 (9th Cir.) (argued Feb. 11, 1991). In that appeal, respondents take the position that the limitations period is subject to equitable tolling. Respondents have thus suggested that if their position prevails, they will seek to challenge any number of 1990 timber sales. See, e.g., Resp. C.A. Reply Br. 9 n.7. /17/ Respondents also renewed their substantive claims regarding otherwise timely challenges under Section 318(g)(1) to twelve 1990 timber sales. In December 1990, the district court set aside those sales for violations of NEPA, NFMA, MBTA. Seattle Audubon Society v. Robertson, No. 89-160WD (W.D. Wash. Dec. 19, 1990), appeal filed (9th Cir. Feb. 15, 1991). /18/ 2. Portland Audubon Society v. Lujan In December 1990, the district court entered an order vacating its previous dismissal of respondents' action. Portland Audubon Society v. Lujan, No. 87-1160-FR (D. Or. Dec. 20, 1990). Respondents' action, which appears to challenge any number of 1990 and 1991 timber sales that contain spotted owl habitat, remains pending before the court. In connection with that ongoing litigation, respondents have recently sought from the BLM information regarding all fiscal year 1990 timber sales on which there remains uncut timber. Resps. Second Set of Interrogatories, Portland Audubon Society v. Lujan, No. 87-1160-FR (D. Or.) (filed Jan. 3, 1991). /19/ REASONS FOR GRANTING THE PETITION The court of appeals has held an Act of Congress unconstitutional. The court of appeals' holding -- that Section 318(b)(6)(A) prescribes a rule of decision in violation of the constitutional principle set forth in United States v. Klein, 80 U.S. (13 Wall.) 128 (1871) -- misapprehends the statutory terms, invokes a substantially overbroad interpretation of the Klein decision, and conflicts with other federal courts' applications of that nineteenth century precedent. Moreover, the court of appeals' decision has undermined Congress's interim solution for averting a devastating crisis to the timber industry and local economies of the Pacific Northwest. Given the confusion among the lower courts regarding the reach of Klein's constitutional proscription, and the looming threat to the stability of the timber industry and economies of the Pacific Northwest occasioned by the court of appeals' decision, review by this Court is warranted. /20/ 1. a. In its haste to strike down Section 318(b)(6)(A) as unconstitutionally prescribing a rule of decision, the court of appeals misapprehended the statutory terms. By its terms, Section 318(a) requires the Forest Service and BLM to sell during fiscal year 1990 a certain amount of timber in Washington and Oregon forests, including timber in areas "known to contain northern spotted owls." Section 318(a)(1), 103 Stat. 745. /21/ Section 318(b) then sets the applicable statutory guidelines for the federal government's choice of particular sites for proposed 1990 sales. In particular, Section 318(b)(1) directs the Forest Service to use its discretion in selecting sites to minimize "fragmentation" of oldgrowth timber, 103 Stat. 745-746, and Sections 318(b)(3) and (5) then carve out specific forest areas to be excepted from the available offering sites, 103 Stat. 746-747. /22/ Section 318(b) thus provides the governing plans for 1990 timber sales offered by the Forest Service and BLM in the forests at issue in respondents' pending lawsuits. And in the final sentence of Section 318(b)(6)(A), Congress expressly insulated those plans from judicial review. Section 318 -- by its terms -- therefore disabled the Forest Service and BLM during 1990 from implementing the particular timber management plans respondents were challenging in their pending federal court actions. Instead, the statute "provides that for fiscal year 1990 the new standards adopted by Congress in subsections (b)(3) and (b)(5) will apply, and will be adequate for that year." App., infra, 24a. Those new standards, which respondents could not challenge because the final provision of Section 318(b)(6)(A) insulates them from judicial review, amounted to nothing other than a "temporary modification of the environmental laws." App., infra, 25a. The court of appeals thus needlessly and erroneously created a constitutional question by construing Section 318 as "direct(ing) the court to reach a specific result and make certain factual findings under existing law in connection with two cases pending in federal court." Id. at 14a. b. The court of appeals avoided this straight-forward reading of Section 318 by invoking the "doctrine disfavoring repeals by implication," particularly where the "subsequent legislation is an appropriations measure." TVA v. Hill, 437 U.S. 153, 190 (1978); See App., infra, 16a. In Hill, the Court applied that doctrine in circumstances where the appropriations statute itself contained no language exempting the federal project at issue from the requirements of the Endangered Species Act; the only suggestions of intent to create such an exemption were in the appropriations statute's legislative history. 437 U.S. at 189-191, 195. Here, by contrast, the express terms of Section 318 displace, for fiscal year 1990, the requirements of environmental statutes otherwise applicable to timber sales in the Pacific Northwest. This Court has long recognized that "when Congress desires to suspend or repeal a statute in force, '(t)here can be no doubt that . . . it could accomplish its purpose by an amendment to an appropriation bill, or otherwise.'" United States v. Will, 449 U.S. 200, 222 (1980) (quoting United States v. Dickerson, 310 U.S. 554, 555 (1940)); see United States v. Mitchell, 109 U.S. 146, 150 (1883). The court of appeals therefore erred in relying on the canon of construction utilized in Hill, and in disregarding the express terms of Section 318 by virtue of that provision's pedigree. 2. The court of appeals compounded its erroneous construction of Section 318 by invoking a substantially overbroad interpretation of this Court's decision in United States v. Klein, 80 U.S. (13 Wall.) 128 (1871). The court's treatment of Klein, which cannot be squared with other circuits' reading of that decision, highlights the need for this Court to revisit what has become a confusing precedent. a. In the wake of the Civil War, Congress enacted legislation giving former owners of property seized by the government, on proof of loyalty, a right of action to recover proceeds from the federal government's sale of their property. This Court held that a presidential pardon was sufficient proof of loyalty entitling its recipient to recover. United States v. Padelford, 76 U.S. (9 Wall.) 531, 542-543 (1869). In 1865, Klein, the administrator of Wilson's estate, filed a petition to collect the proceeds from the sale of Wilson's cotton seized by the Union during the war. In 1868, the Court of Claims determined that although Wilson had been disloyal to the Union, a presidential pardon entitled the estate to recover the proceeds. Wilson v. United States, 4 Ct. Cl. 559 (1868). Pending the government's appeal from that judgment to this Court, Congress enacted a statute providing that no presidential pardon should be admissible as proof of loyalty, that acceptance without written protest or disclaimer of a pardon reciting that the claimant took part in or supported the rebellion in fact should be conclusive evidence of the claimant's disloyalty, and that the Court of Claims and this Court must dismiss for want of jurisdiction any pending claims based on a presidential pardon. Act of July 12, 1870, ch. 251, 16 Stat. 235; see Klein, 80 U.S. (13 Wall.) at 132-134, 143-144. In affirming the Court of Claims' judgment for Wilson's estate, this Court declared the 1870 statute unconstitutional. United States v. Klein, 80 U.S. (13 Wall.) 128 (1871). First, Congress had exceeded its constitutional power to limit the Court's appellate jurisdiction: It is evident * * * that the denial of jurisdiction to this court, as well as to the Court of Claims, is founded solely on the application of a rule of decision, in causes pending, prescribed by Congress. The court has jurisdiction of the cause to a given point; but when it ascertains that a certain state of things exists, its jurisdiction is to cease and it is required to dismiss the cause for want of jurisdiction. It seems to us that this is not an exercise of the acknowledged power of Congress to make exceptions and prescribe regulations to the appellate power. * * * * * Can (Congress) prescribe a rule in conformity with which the court must deny to itself the jurisdiction thus conferred, because and only because its decision, in accordance with settled law, must be adverse to the government and favorable to the suitor? The question seems to us to answer itself. Klein, 80 U.S. (13 Wall.) at 146-147. Second, the Court held that the rule of decision at issue -- which "impair(ed) the effect of a pardon" -- impermissibly "infring(ed) the constitutional power of the Executive." Id. at 147. b. The Klein decision "is not a model of clarity." P. Bator, P. Mishkin, D. Meltzer & D. Shapiro, Hart & Wechsler's The Federal Courts and The Federal System 369 (3d ed. 1988). Indeed, this Court has not interpreted Klein with one voice. First, the Court has treated the decision narrowly as holding that Congress may not "attempt to prescribe to the judiciary the effect to be given to a (presidential) pardon, in regard to a matter in which the pardon extended." Hart v. United States, 118 U.S. 62, 66 (1886); accord Carlisle v. United States, 83 U.S. (16 Wall.) 147, 152 (1872); see Public Citizen v. United States Dep't of Justice, 491 U.S. 440, 467 (1989) (Kennedy, J., concurring in the judgment). Second, Klein has been described broadly as holding that Congress may not "attempt to invade the judicial province by prescribing a rule of decision in a pending case." Glidden Co. v. Zdanok, 370 U.S. 530, 568 (1962) (plurality opinion). Finally, the Court has read Klein as resting on an amalgam of those rationales: Congress may not "prescribe( ) a rule of decision in a case pending before the courts, and (do) so in a manner that required the courts to decide a controversy in the Government's favor," and Congress may not "impair( ) the effect of a pardon, and thus infring(e) the constitutional power of the Executive." United States v. Sioux Nation, 448 U.S. 371, 404-405 (1980) (citation omitted); accord Austin v. United States, 155 U.S. 417, 424-425 (1894). c. The courts of appeals' disparate treatment of Klein reflects the mixed signals this Court has sent. The Third Circuit has read Klein as suggesting that Congress may not interfere with a court's ability to adjudicate a pending case. Temple University v. United States, 769 F.2d 126, 134 n.4 (3d Cir. 1985), cert. denied, 476 U.S. 1182 (1986). Other circuits have construed Klein as standing for the propositions that Congress may not enact a rule of decision for a particular case, see, e.g., Demartino v. Commissioner, 862 F.2d 400, 408 (2d Cir. 1988), and that Congress may not attack a final judgment with new legislation, see, e.g., Barcellos & Wolfsen v. Westlands Water Dist., 899 F.2d 814, 830 (9th Cir.), cert. denied, 111 S. Ct. 555 (1990). The D.C. Circuit has treated Klein as limiting Congress's authority to prescribe federal court jurisdiction. Bartlett v. Bowen, 816 F.2d 695 (D.C. Cir. 1987); but see National Juvenile Law Center, Inc. v. Regnery, 738 F.2d 455, 465 (D.C. Cir. 1984) (per curiam) (noting divergent views of Klein, but declining to "decide what the proper scope of the Klein holding is"). Other circuits have adopted further variations of Klein. Following a suggestion made by commentators, the Fourth Circuit has construed Klein as prohibiting Congress from enacting legislation that dictate(s) "how the Court should decide an issue of fact (under threat of loss of jurisdiction)" and purports to "bind the Court to decide a case in accordance with a rule of law independently unconstitutional on other grounds." United States v. Brainer, 691 F.2d 691, 695 (4th Cir. 1982) (quoting P. Bator, P. Mishkin, D. Meltzer & D. Shapiro, Hart & Wechsler's The Federal Courts and The Federal System 316 n.4 (2d ed. 1973)); see Memorial Hosp. v. Heckler, 706 F.2d 1130, 1137 (11th Cir. 1983). /23/ The Ninth Circuit, as the decision below exemplifies, treats Klein differently. In that court's view, Klein holds that Congress may not either "direct( ) the court to reach a specific result and make certain factual findings under existing law in connection with * * * cases pending in federal court," App., infra, 14a, or "require( ) (the court) to apply an unconstitutional law," Grimesy v. Huff, 876 F.2d 738, 744 (9th Cir. 1989) (citation omitted). See App., infra, 12a-13a; Stop H-3 Ass'n v. Dole, 870 F.2d 1419, 1437 n.26 (9th Cir. 1989); Konizeski v. Livermore Labs (In re Consolidated United States Atmospheric Testing Litigation), 820 F.2d 982, 992 (9th Cir. 1987), cert. denied, 485 U.S. 905 (1988); see also P. Bator, P. Mishkin, D. Meltzer & D. Shapiro, Hart & Wechsler's The Federal Courts and The Federal System 369 n.4 (3d ed. 1988). d. In this case, the Ninth Circuit has mistakenly construed Klein as prohibiting Congress from enacting changes in substantive law to function as rules of decision in pending federal court actions. As one court of appeals has aptly noted: Pending cases are often affected by the actions of coordinate branches of government. * * * (T)he general rule is that, if Congress changes the law while a case is pending, the courts are obligated to apply the law as they find it at the time of judgment (including appellate judgment). National Juvenile Law Center, Inc. v. Regnery, 738 F.2d at 465; see Bradley v. Richmond School Bd., 416 U.S. 696 (1974); United States v. The Schooner Peggy, 5 U.S. (1 Cranch) 102 (1801). And, wholly apart from any controversy concerning the continuing validity of the rule of Bradley and The Schooner Peggy, see Kaiser Aluminum & Chem. Corp. v. Bonjorno, 110 S. Ct. 1570, 1576-1578 (1990); id. at 1579-1585 (Scalia, J., concurring); id. at 1591-1594 (White, J., dissenting), it is well settled that Congress may constitutionally specify that its enactments changing substantive law are to be applied retroactively. See United States v. Sperry Corp., 110 S. Ct. 387, 396 (1989); Pension Benefit Guaranty Corp. v. R.A. Gray & Co., 467 U.S. 717, 728-731 (1984); Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 14-20 (1976). For that reason, it is apparent that "Klein could not possibly stand for the proposition that any attempt by (Congress) to affect pending cases is unconstitutional." National Juvenile Law Center, Inc. v. Regnery, 738 F.2d at 465. In this case, Congress has acted well within its authority in enacting legislation regarding the management and disposition of public property. U.S. Const. Art. IV, Section 3, Cl. 2; see California Coastal Comm'n v. Granite Rock Co., 480 U.S. 572, 580 (1987); Kleppe v. New Mexico, 426 U.S. 529, 539 (1976); United States v. San Francisco, 310 U.S. 16,29 (1940). The decision below, rather than finding any independent constitutional infirmity with Section 318(b)(6)(A), effectively determined that the statute amounted to a congressionally mandated conclusive presumption. But a statutorily prescribed conclusive presumption is merely a particular form of enactment of a substantive rule. If the rule itself is constitutionally permissible -- as is the case here -- then the form of its enactment as a conclusive presumption is not proscribed by the Constitution, Klein, or any other decision of this Court. See United States v. Locke, 471 U.S. 84, 98-100 (1985); Usery v. Turner Elkhorn Mining Co., 428 U.S. at 28; Tot v. United States, 319 U.S. 463, 467-468 (1943). 3. The substantial practical significance of the court of appeals' decision is not diminished by the statute's expiration at the close of fiscal year 1990. First, the court of appeals' striking down of Section 318(b)(6)(A) has enabled respondents to overturn twelve 1990 timber sales and paves the way for respondents' similar efforts regarding every other outstanding 1990 timber sales. See pp. 14-15, supra. Second, the statute -- despite its expiration -- continues to affect an enormous quantity of timber. Section 318(k), 103 Stat. 750, provides that "(t)imber sales offered to meet the requirements of subsection (a) of this section shall be subject to the terms and conditions of this section for the duration of those sales contracts." In the Seattle Audubon Society litigation, the Forest Service estimates that approximately four billion board feet of timber sold under the terms of Section 318 during 1990 remain uncut; in the Portland Audubon Society litigation, the BLM estimates that approximately 1.1 billion board feet of timber fall within that category. Finally, as the litigation unfolding on remand vividly shows, the Ninth Circuit has opened the door to the very dilemma Congress sought to avoid when it enacted Section 318 as a legislative compromise -- the prospect of a timber crisis in the Pacific Northwest, with attendant uncertainty, unemployment, and litigation-driven contractions to the timber supply. The real -- and potentially devastating -- consequences of the Ninth Circuit's ruling call for this Court's review now. As Senator Adams noted when Congress was considering passage of Section 318: Unfortunately, the severity of the crisis this year did not give us the luxury of time to slowly mull over this issue. Mills were shutting down. Jobs were threatened and gone. Our State was being torn apart, and tensions were rising with the very real potential of violence. 135 Cong. Rec. S12,961 (daily ed. Oct. 7, 1989). The same holds true today, since the Ninth Circuit has effectively turned back the clock. CONCLUSION The petition for a writ of certiorari should be granted. Respectfully submitted. KENNETH W. STARR Solicitor General RICHARD B. STEWART Assistant Attorney General LAWRENCE G. WALLACE Deputy Solicitor General MICHAEL R. LAZERWITZ Assistant to the Solicitor General PETER R. STEENLAND, JR. MARTIN W. MATZEN ANNE S. ALMY Attorneys APRIL 1991 /1/ The caption of the court of appeals' opinion erroneously omitted Manuel Lujan, Jr., Secretary of the Interior, as a defendant-appellee in the consolidated appeal from the judgment of the United States District Court for the District of Oregon, Portland Audubon Society v. Lujan, No. CV-87-1160-FR (D. Or. Dec. 21, 1989). /2/ Before the court of appeals denied the petitions for rehearing, the government applied for an extension of time within which to file a petition for a writ of certiorari. On December 10, 1990, Justice O'Connor granted that application, thereby extending the deadline to and including February 15, 1991. The court of appeals' order denying the timely petitions for rehearing on January 16, 1991, however, superseded the extended deadline for seeking certiorari under Rule 13.4 of the Rules of this Court. See also Missouri v. Jenkins, 110 S. Ct. 1651, 1660-1662 (1990); Fed. R. App. P. 40(a); 9th Cir. Local R. 35-3 Advisory Committee Note. /3/ In June 1990, during the pendency of respondents' lawsuits, the United States Fish and Wildlife Service listed the northern spotted owl as a threatened species under the Endangered Species Act, 16 U.S.C. 1531 et seq. See 55 Fed. Reg. 26,114 (1990). /4/ This action mirrored a previously filed action against the Secretary of the Interior that was pending in the District of Oregon. See pp. 6-7, infra. /5/ The Washington Contract Loggers Association filed a similar action against the Forest Service, "challenging the (Service's) guidelines as overly restricting timber harvesting." App., infra, 6a. The district court consolidated that action with respondents' lawsuit. Id. at 31a. /6/ Respondents also alleged claims under the Oregon and California Lands Act (OCLA), 43 U.S.C. 1181a et seq., the Federal Land Policy and Management Act of 1976 (FLPMA), 43 U.S.C. 1701 et seq., and the Migratory Bird Treaty Act (MBTA), 16 U.S.C. 703 et seq. App., infra, 5a, 36a-37a. /7/ In pertinent part, Section 314 provided that there shall be no challenges to any existing plan on the sole basis that the plan in its entirety is outdated, or in the case of the Bureau of Land Management, solely on the basis that the plan does not incorporate information available subsequent to the completion of the existing plan: Provided further, That any and all particular activities to be carried out under existing plans may nevertheless be challenged. 101 Stat. 1329-254. Congress later reenacted that express provision. See Department of the Interior and Related Agencies Appropriations Act, 1989, Pub. L. No. 100-446, Tit. III, Section 314, 102 Stat. 1825-1826; Department of the Interior and Related Agencies Appropriations Act, 1990, Pub. L. No. 101-121, Tit. III, Section 312, 103 Stat. 743. The validity and effect of that provision is not at issue here. /8/ The court of appeals also vacated the previously entered stay "without prejudice to any appropriate renewed efforts by (respondents) to obtain such temporary remedies, if any, as the district court may deem necessary and proper." 866 F.2d at 309-310. /9/ During the course of this expedited appeal, the court of appeals had stayed further timber sales on the BLM-managed lands at issue. 884 F.2d at 1234. The court vacated that stay when it issued its final decision. Id. at 1242. /10/ Section 318(b)(3) forbids timber sales in those spotted owl habitat areas located in Washington and Oregon identified by the Forest Service as a result of a formal administrative decision issued in December 1988. 103 Stat. 746. Section 318(b)(3) also forbids such sales in additional portions of national forests identified in the statute. 103 Stat. 746. Section 318(b)(5) forbids timber sales in those BLM-managed lands in Oregon that both the BLM and the Oregon Department of Fish and Wildlife agreed in December 1987 contained spotted owl habitat. 103 Stat. 746-747. /11/ The statute calls for expedited review of challenged timber sales. Section 318(g)(1), 103 Stat. 749-750. /12/ With respect to the Seattle Audubon Society litigation, Congress directed the parties to try to agree on a list of sales subject to the outstanding injunction that would provide at least 1.1 billion board feet of timber for fiscal year 1990. Section 318(f), 103 Stat. 748-749. The statute further provided that "(s)elected sales shall be prepared, advertised, offered, awarded and operated notwithstanding any provision of law that is (the) basis for any stay, injunction or order issued (in the Seattle Audubon Society action)." Section 318(f)(3), 103 Stat. 749. /13/ In January 1990, the district court certified respondents' constitutional challenge to Section 318(b)(6)(A) for interlocutory appeal under 28 U.S.C. 1292(b). App., infra, 8a. /14/ Respondents noted an appeal from the district court's final judgment dismissing their action. The court of appeals later consolidated the separate appeals noted from the Seattle and Portland actions. App., infra, 8a. /15/ The court made clear that its holding extended only to the "first sentence of subsection 318(b)(6)(A)." App., infra, 17a. The court "express(ed) no opinion on the validity of the second and final sentence of subsection (b)(6)(A)." Id. at 17a n.4. /16/ Before denying petitions for rehearing in January 1991, App., infra, 18a-19a, the panel issued an order amending its opinion, id. at 3a-4a. The opinion reprinted in the Appendix, id. at 4a-17a, incorporates these amendments. /17/ In connection with the ongoing litigation, respondents have recently sought from the Forest Service information regarding all fiscal year 1990 timber sales on which there remains uncut timber. Resps. Second Set of Interrogatories, Seattle Audubon Society v. Robertson, No. 89-160WD (W.D. Wash.) (filed Jan. 3, 1991). /18/ The district court recently rejected the government's motion to vacate the injunction regarding the twelve 1990 timber sales. Seattle Audubon Society v. Robertson, No. 89-160WD (W.D. Wash. Mar. 7, 1991). /19/ There is one other challenge to 1990 timber sales pending in the District of Oregon. See Citizens Interested in Bull Run v. Edington, No. 90-844-MA (D. Or.). The district court recently resolved another such challenge in the government's favor. See Oregon Natural Resources Defense Council v. United States Forest Service, No. 90-904-RE (D. Or. Apr. 2, 1991). /20/ Although Section 318 expired by its terms at the close of fiscal year 1990, this controversy remains live and justicable. Section 318(k), 103 Stat. 750, provides that "(t)imber sales offered to meet the requirements of subsection (a) of this section shall be subject to the terms and conditions of this section for the duration of those sales contracts." Moreover, respondents have successfully enjoined a number of 1990 timber sales as a result of the court of appeals' decision and are endeavoring to block or undermine additional 1990 sales. See pp. 14-15, supra; pp. 25-26, infra. /21/ The statute specifically mandates that a substantial portion of the specified sales level of more than 7 billion board feet of net merchantable timber (70% or 5.8 billion board feet) must be "offered from the thirteen national forests in Oregon and Washington known to contain northern spotted owls." Section 318(a)(1), 103 Stat. 745. /22/ In particular, Congress excepted those spotted owl habitat areas located in Washington and Oregon previously identified by the Forest Service in December 1988, and others listed in subsection (b)(3), Section 318(b)(3), 103 Stat. 746, and those BLM-managed lands in Oregon that both the BLM and state authorities previously agreed in December 1987 contained spotted owl habitat, Section 318(b)(5), 103 Stat. 746-747. /23/ The most recent edition of Hart & Wechsler's The Federal Courts and The Federal System retracts the earlier suggestion that Klein limits Congress's authority to govern the fact-finding process. P. Bator, P. Mishkin, D. Meltzer & D. Shapiro, Hart & Wechsler's The Federal Courts and The Federal System 369-370 n.5 (3d ed. 1988). The editors point out that Klein contained no such holding "since the parties had in effect stipulated that, absent the pardon, the decedent's conduct required a finding of disloyalty." Id. at 370 n.5 (citing Young, Congressional Regulation of Federal Courts' Jurisdiction and Processes: United States v. Klein Revisited, 1981 Wis. L. Rev. 1189, 1233-1238). APPENDIX