Robertson v. Seattle Audubon Society – Oral Argument – December 02, 1991

Media for Robertson v. Seattle Audubon Society

Audio Transcription for Opinion Announcement – March 25, 1992 in Robertson v. Seattle Audubon Society

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William H. Rehnquist:

We’ll hear argument next in 90-1596, Robertson v. Seattle Audubon Society.

Spectators are admonished not to talk.

The Court remains in session.

General Starr, you may proceed.

Kenneth W. Starr:

Mr. Chief Justice, and may it please the Court:

This case brings before the Court a decision by the Spotted Owl Panel of the United States Court of Appeals for the Ninth Circuit declaring unconstitutional a statute passed by Congress.

That act embodied what is known popularly as the Northwest Timber Compromise.

That compromise was designed to resolve ongoing controversy over logging activities in various areas that serve as a habitat for the northern spotted owl.

Specifically, section 318 of the Department of Interior Appropriations Act set forth in quite elaborate detail the terms of a compromise that was hard-fought over logging activity in the Pacific Northwest.

It had divided not only industry and industrial groups; it had divided communities.

There was a great sense of distress and a sense of urgency.

Congress’ response was section 318.

In the Ninth Circuit’s view, however, one critical part of that compromise… subsection (b)(6)(A)… was unconstitutional.

In the Ninth Circuit’s view, that subsection stepped across the permissible constitutional line between the Congress repealing or amending a statute and going beyond and into the province of article III by directing the Federal courts how to decide, in this instance, two pending cases.

In our view, the court of appeals erred, and in so doing violated one of the cardinal principles of constitutional adjudication by interpreting a statute needlessly so as to raise article III questions when there is an entirely plausible reading of the statute that avoids the article III controversy entirely.

John Paul Stevens:

Mr. Solicitor General, I can’t resist asking you this question as kind of a predicate to the whole argument.

Do you think this is a plain language case or a Holy Trinity case?

[Laughter]

Kenneth W. Starr:

I think it’s somewhere in between.

Somewhere in between.

Kenneth W. Starr:

I do think there is… there’s not a lot of language here that’s plain, and there certainly is a spirit to the compromise, but my argument is going to be grounded on the structure of this statute and putting (b)(6)(A) into context, not some broad, vague, spiritual context, but–

John Paul Stevens:

And also not limited to the plain language.

Kenneth W. Starr:

–Well, at least not limited only to the terms “determines” and “directs”.

Now, Justice Stevens’ question brings me to the statute itself.

It took us 13 pages to set this out in the appendix to our brief, 12-1/2, to be precise.

It is complicated, but there are three basic aspects to this statute.

First, it directs the Forest Service and the BLM to offer timber sales at specified levels at… during fiscal year 1990, and it says this shall be done.

It’s quite clear.

Second, the statute sets forth a standard that is to guide the Federal agencies in the timber sales process.

It does something quite important from the environmentalists’ standpoint.

Kenneth W. Starr:

It expands significantly the protected areas of habitat for the spotted owls.

It establishes a streamlined administrative process and provides, as the original version on which our colleagues on the other side seek to use, something that the earlier version did not.

It provides for judicial review of specific sales.

Third, and then critically for purposes of this case, we come to (b)(6)(A).

That does two things.

I want to call the Court’s attention first, lest I overlook it, to the second sentence.

I think that’s critical.

The Congress says in the second sentence of (b)(6)(A) that the standards that the guidelines adopted by law, by subsections (b)(3) and (b)(5), shall not be subject to judicial review.

The first sentence… and of course, it was the first sentence that was held unconstitutional, and it says, in short, without–

Antonin Scalia:

Before you leave that, what does that mean?

What does that mean?

That’s very strange.

Kenneth W. Starr:

–I don’t think it’s strange–

Antonin Scalia:

Are they overruling… is Congress repealing Marbury v. Madison?

[Laughter]

Kenneth W. Starr:

–No, not at all.

That they are clearly not doing.

What they are saying is that in this compromise which embodies a comprehensive solution for a single fiscal year on the public lands of the United States, we, the Congress of the United States, exercising our plenary power, do ordain and enact (b)(3) and (b)(5) as the substantive law to govern.

Now, what does (b)(3) and (b)(5) do?

Primarily, what those two subsections do, which are insulated from judicial review, is to expand the areas of protected habit, the so-called SOHA’s.

That’s what this fight is all about.

Are we going to protect trees and timber areas, or are we not?

Our colleagues on the other side believe we should have none of this activity.

Congress is saying, it is our business to step in and to resolve divisive controversies that raise important questions of public policy, and those questions were very emphatically discussed and debated on the floor.

In our petition for certiorari we set forth the quotation that we also allude to in our opening brief by Senator Adams of Washington, who said, we no longer have time to work this out at a leisurely pace.

The litigation has been enormously divisive and disruptive.

We need a solution, and here is our comprehensive solution for 1 year and 1 year alone.

After 1990, after fiscal year 1990, there will be no impediment to the continuation of this litigation, but more than that–

Antonin Scalia:

But why do they need this last sentence?

Why do they need this second sentence of subpart (A) in order to achieve that?

Antonin Scalia:

I mean, they say there shall be no review of these sections… judicial review of these sections.

Is it the Government’s position that that means judicial review of… what, the Secretary’s implementation of those sections?

Kenneth W. Starr:

–Yes.

I think fairly read, given Congress’ intent, it means BLM’s and the Forest Service’s administration and management of these lands consistent with these guidelines.

Sandra Day O’Connor:

Well, Mr. Starr, isn’t it entirely possible that it could be read as having Congress distinguish between designation of lands for lumbering or conservation and the implementation of timber sales or conservation programs?

Kenneth W. Starr:

Well–

Sandra Day O’Connor:

In other words–

Kenneth W. Starr:

–Yes.

Sandra Day O’Connor:

–It could be read, it seems to me, as saying that the Congress has designated certain lands for this 1 year as being available or not available for timbering.

Kenneth W. Starr:

That is correct.

In–

Sandra Day O’Connor:

But leaving the discretionary administrative decisions to implement the laws in place.

Is that not possible… I don’t think that’s the reading you’ve given it–

Kenneth W. Starr:

–I think that is a possible reading.

Sandra Day O’Connor:

–But I think that is a plausible, possible reading.

Kenneth W. Starr:

I have to concede that it is a plausible reading, Justice O’Connor.

What we think, however, is critical for purposes of getting at Congress’ intent is that Congress wanted to permit only specific challenges, and there have been those, to specific sales, but it wanted to put an end to the overall controversy as to whether the Forest Service and the BLM had faithfully and adequately taken environmental and specifically spotted owl considerations into account, and it answered that.

It does what Congress seeks to do.

It laid down a line.

It laid down a legislative action, and that seems to us quite far removed from what has vexed this Court in United States v. Klein and its more recent progeny, including Justice Blackmun’s decision for this Court in Sioux Nation.

Here, what is Congress doing?

Congress is saying, here is the way we want the public lands to be administered during this particular year.

Because this has been so remarkably divisive, we do not want to intrude into the arena of the courts.

The opening words… and our colleagues on the other side don’t have a very good response to the opening words of (b)(6)(A).

What Congress seems to be saying is, we’re not in the business of deciding issues of law.

It uses the terms… and this, Justice Stevens, is the plain language… without passing on the legal and factual adequacy of what?

The two critical administrative documents that are under challenge in the litigation in Oregon and Washington.

John Paul Stevens:

And then it goes on and says, the Congress hereby determines and directs.

Kenneth W. Starr:

Yes, it does, and Congress, curiously enough, does that a lot.

It shall be deemed adequate.

Kenneth W. Starr:

Shall be deemed adequate.

As we set forth in footnotes 18 and 19 of our brief, Congress when it’s exercising its plenary powers with respect to the public lands does that all the time.

We have identified in footnote 18 of our brief in the second paragraph 29 instances where Congress has done precisely that, Justice Stevens.

Indeed, it does it every time it does that which ultimately the respondents here are seeking to achieve.

What they want, in effect, is for these public lands in Oregon and the national forests in Washington to be declared wilderness areas, untouchable by the human hand.

And Congress does that.

It does it on a case-by-case basis and says, this area is now wilderness; we will have no commercial economic activity.

Anthony M. Kennedy:

Is there any difference in Congress passing a statute in the first case which says X shall be Y… Franklin County, Missouri, shall be some other county in Missouri.

Kenneth W. Starr:

It has… sorry.

Anthony M. Kennedy:

And a second instance in which it says, the courts shall say that X is Y–

Kenneth W. Starr:

I believe so.

Anthony M. Kennedy:

–And it seems to me that we have the latter case.

Kenneth W. Starr:

I’m sorry?

Anthony M. Kennedy:

That we have the latter case.

Kenneth W. Starr:

I respectfully disagree with that.

I do agree, Justice Kennedy, there is a distinction.

I think if Congress had been trying to direct the courts to enter a judgment, and they didn’t.

And now–

Go back and look at Klein.

That’s a two-paragraph statute in Klein that this Court struck down as unconstitutional.

There’s all sorts of language in that statute saying, and the court shall do this, and the court shall do that, and it shall dismiss, and the like.

It is chock-full of directions to a court on what to do with a particular case.

But what Congress can do… and that’s what it has done here.

It does it all the time.

It’s the nature of legislation… is to lay down a rule of decision, and Justice… I’m sorry.

William H. Rehnquist:

General Starr, what do you think the Klein case stands for as perhaps an irreducible minimum?

Kenneth W. Starr:

I think as an irreducible minimum, Mr. Chief Justice, it stands for the proposition that Congress cannot act in a way that clearly invades a textually committed constitutional power, namely that of the pardon power of the President, and direct the courts to become parties and privy to that invasion, and that’s precisely what was at work in Klein.

Lincoln’s proclamation in 1863 had said once you come forward and you renounce your prior fealty to the confederacy, you will in fact be forgiven, and your property rights will be restored.

That was a part of the pardon which, before his death, Wilson accepted, and in Kline his administrator said to this Court, look at what the Reconstruction Congress is seeking to do.

It is trying to tear asunder Lincoln’s exercise of his Presidential power.

Kenneth W. Starr:

Now, what this Court also said in Justice Blackmun’s opinion for this Court in Sioux Nation is that what Kline was getting at was directing the entry of a decision in favor of the Government, and that’s, again, not… that more modern reading of Kline is not at issue here, I don’t think fairly read.

Again, I think the Court has a choice.

It can give this statute an immensely hard reading, which is what the Spotted Owl Panel chose to do… aha, we’re being directed, Congress is directing us.

And yet Congress said, we’re not passing on the factual and legal adequacy of the two administrative documents that are under challenge in the litigation.

Sandra Day O’Connor:

Mr. Starr, let me ask it this way.

Does anything in subsection (b)(3) or (b)(5) conflict with the statutes under which respondents in this case brought suit?

Kenneth W. Starr:

It is, I think from their standpoints… I’m going to now give you what I think would be the least favorable answer to me, and that is in (F), all of (b)(3)(F).

What Congress says, all other standards and guidelines contained in the Chief’s record of decision are adopted.

I think what they will say, Justice O’Connor, is that’s bad.

They can’t be doing that.

They can’t ordain and say we like that agency decision.

We believe they can, that Congress can in fact say, here’s the way the public lands are going to be administered because… and here’s the point, Justice O’Connor.

Remember what had happened.

We’ve had years of litigation in the Pacific Northwest.

It has been one of the most divisive controversies in that part of the country, and Congress is saying… and if I may again call the Court’s attention to the statement by Senator Adams, the severity of the crisis… 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 a real potential of violence.

Congress said, we don’t want to get into the adjudication business, but we do want to get into the policy-making business, and here is the policy for fiscal year 1990.

It has the power to do that.

Antonin Scalia:

General Starr, the brief of Northwest Forest Resource Council suggests that we really don’t have to get to this very difficult question of 6(A), that these cases are mooted by (b)(3) and (5) alone, and we can just look at that and then… it makes the case a lot less interesting, but we’re… you know, it would help us to get rid of it faster.

[Laughter]

Is that–

Kenneth W. Starr:

What we are most anxious for–

Antonin Scalia:

–Do you agree with that?

Kenneth W. Starr:

–No, I don’t agree with that.

I think this issue is, in fact, not moot.

There are 16 sales that have been affected pursuant to applicability of this statute, and I don’t think the other side is in disagreement that this case lives on.

It in fact… there is, in effect, as we look at the statute again… returning to the structure… looking at (G), (G) provides for a challenge to specific sales, specific timber sales, and that has been going on and in fact 16, as I say, sales have been enjoined.

And more than that, in light of the court of appeals’ decision, there is ongoing litigation with respect to the correctness of the decisions of the administrative agencies under the law, because… let’s step back.

What is the result of the Ninth Circuit’s decision?

The result of the Ninth Circuit decision is the respondents get the benefit of (b)(3) and (b)(5) and the litigation goes on with respect to whether this activity complies with the other statutes, the five statutes that were invoked in the original litigation.

Kenneth W. Starr:

This is very much alive.

Byron R. White:

But if you… or I would say, if we decide for you that probably the case is moot, but we have to decide for you before it becomes moot.

Kenneth W. Starr:

Yes, exactly.

If we win, then yes, those timber sales should in fact go forward and completed and bring to a conclusion that which was contemplated by Congress in the opening subsection of 318(a).

Byron R. White:

To decide for you, we have to say that this… that the ordinary law was changed for 1 year.

Kenneth W. Starr:

That is correct, that Congress was, Justice White, saying we understand there are a lot of issues.

There are about 32 statutes… I’ve counted them… 31 statutes that are potentially applicable to the administration of the public lands and the Forest Service as to environmental consideration.

That is a vast panoply of statutes.

Byron R. White:

So you’re saying that the… without passing on means we’re not passing on the adequacy of the administrative review under existing law.

Kenneth W. Starr:

Exactly.

Byron R. White:

But under… but here is… here’s some new law.

Kenneth W. Starr:

Exactly.

Byron R. White:

Is that it?

Kenneth W. Starr:

That is exactly our case, Justice White.

Here is the new law, (b)(3) and (b)(5).

John Paul Stevens:

Isn’t it even more limited than that?

New law for a particular territory.

Kenneth W. Starr:

Exactly, for a specific territory, and Justice Scalia raised amicus submissions.

There’s been an amicus submission that sets forth a quite dangerous proposition that Congress must always legislate with respect to rules of general applicability.

In our reply brief, we have said that is simply not the way Congress has done business, but more than that, at the theoretical level, it’s not the constitutionally mandated way.

Congress is ultimately in charge.

We, the people on these lands, and Congress has the power to administer these lands and to delegate that power to agencies of the United States to assist it, pursuant to standards that it lays down.

It not infrequently, not surprisingly, will legislate one rule that will be applicable in the State of Arizona or New Hampshire and another for Illinois.

By the very nature of it, different kinds of lands are going to raise different kinds of questions and the like.

But yes, Justice Stevens, the point is very well taken.

Congress is rifle-shotting in on these specific lands, which it has not designated as wilderness acts.

It has said, we’re sorry, respondents, we have heard you, but there is going to be timbering here.

It’s very important that there be timbering here, because people’s jobs are at stake.

Looking ever so briefly at the legislative history, one gets a flavor of what it is Congress was concerned about and what Senator Adams was speaking so forcefully about on the floor.

Schoolchildren were seeing schools closed.

Kenneth W. Starr:

There are counties in Oregon that depend upon these funds that are derived from timber sales to keep their communities going.

This has been a source of profound economic distress, and so Congress was not seeking, as was the Reconstruction Congress to order–

John Paul Stevens:

Would you agree we can appropriately examine those materials in solving this problem?

Kenneth W. Starr:

–I think, Justice Stevens, that it is certainly appropriate, as this Court has held time and again to repair to–

John Paul Stevens:

And you agree with that position.

Kenneth W. Starr:

–And I have no quarrel with that position.

That is the law of this Court, and I do not quarrel with it, that we can repair to those materials and to see what it was that was animating Congress.

And what so clearly was of concern to Congress was this–

Byron R. White:

Well, Solicitor General–

Kenneth W. Starr:

–Yes.

Byron R. White:

–The statute says is adequate consideration for the purpose of meeting the statutory requirements that are the basis for these consolidated cases.

It sounds to me like they are saying… it doesn’t sound like they’re amending the statute–

Kenneth W. Starr:

You can read it–

Byron R. White:

–even for a year.

As a matter of fact, they are meeting the statutory requirements that are involved in the suit.

Kenneth W. Starr:

–You can read it that way, as–

Byron R. White:

How else can you read it?

Kenneth W. Starr:

–I read it this way.

I think, frankly, the more natural reading in light of the “without passing”–

Byron R. White:

Yes.

Kenneth W. Starr:

–language on the legal and factual adequacy, it is saying to the Bureau of Land Management and the Forest Service, stop all of the pussy-footing around and get with the program.

It is time to sell this.

It is no longer time to bring the biologists out and the forest rangers to put on their hats and to say, here’s what we think should be done for purposes of FLPMA and MBTA and these whole panoply of statutes.

Congress is saying, enough.

Here is what we want you to do.

And so adequate consideration, Justice White, yes, it can lend itself to more than one meaning.

I think that a natural meaning–

Byron R. White:

–Yes, but adequate consideration under these statutes, under the statutory provisions that are involved in these lawsuits.

Kenneth W. Starr:

–It is odd, but it is not… Justice White, it is not unique.

I refer you again to the Wilderness Act experience–

Byron R. White:

It isn’t odd enough to be Holy Trinity, eh?

[Laughter]

Kenneth W. Starr:

–No, I’m not reduced to arguing Holy Trinity.

My argument is textual and structural and getting at Congress’ intent.

I think we know, when we look at all these materials, what Congress’ intent was.

But the purpose of my point was this: when we look, for example, at the Colorado Wilderness Release Act, Justice White, 94 statutes, 3270… this is all part of the materials… it provides that with respect to public lands in Colorado that are being designated as a Wilderness Act, a particular review shall be deemed for the purposes of National Forest Management Act planning, quote,

“to be adequate consideration of the suitability of such lands for other purposes. “

Congress has gotten into the habit of doing this, and I don’t think it means offense to the courts in doing that.

Byron R. White:

So you think this is… we ought to look at this sort of like a term of art; it’s so usual.

Kenneth W. Starr:

It is not so usual, but it is in fact a term of art.

I don’t want to overargue my point.

My point is the limited one, Justice White, that this is not unprecedented.

In fact, Congress is accustomed to doing it.

But I’m not just relying on bad habits.

What I’m saying is, those habits are in fact rooted in its powers under the Constitution.

What is it that we’re worried about in article III versus article I?

We’re worried about whether Congress is trenching on the adjudicatory function, and Congress really didn’t think it was doing that.

Byron R. White:

Well, certainly, if we decide for you, why these cases are certainly over, aren’t they?

Kenneth W. Starr:

Oh, the cases… no, Justice White, to the contrary.

The cases go on with respect to–

To what?

Kenneth W. Starr:

–any post-1990 sales activity.

Byron R. White:

Yes, but for a year they’re over.

Kenneth W. Starr:

For a year, for all practical purposes, yes.

Byron R. White:

By that time, all the timber… the timber will all be cut.

Kenneth W. Starr:

Not all the timber.

Byron R. White:

Well–

Kenneth W. Starr:

At least, I’m not aware that all the timber–

Byron R. White:

–A lot of it.

Kenneth W. Starr:

–Yes.

Kenneth W. Starr:

That I concede, because Congress wanted, Justice White, a lot of timber to be cut.

Sandra Day O’Connor:

Well, I suppose if what I suggested to you is the meaning, the cases are not over either, even for the year.

Kenneth W. Starr:

I have to concede that, yes.

Antonin Scalia:

Right.

General Starr, what if the plaintiffs in the case amend their complaints to name a couple more statutes?

Does the… does this legislative language pick up after included statutes, or do we have to look to the date of the enactment, or perhaps the date of the legislative history of the enactment–

–OSHA–

–to see what particular statutes mentioned in the complaints are covered?

Kenneth W. Starr:

I think that they are out of time by virtue… not so much out of time in a temporal sense, but that Congress has stepped in and has insulated the rule of law (b)(3) and (b)(5) from judicial review, so I think that Congress has said we do not want to hear whether the Endangered Species Act applies to (b)(3) and (b)(5), although you will see they do have a provision with respect to the Endangered Species Act.

Antonin Scalia:

Even if they amend their complaints, any statutory requirement that’s mentioned by these particular plaintiffs in these particular cases gets zapped by this provision.

Kenneth W. Starr:

As long as they are challenging (b)(3) and (b)(5) administration of the public lands.

I thank the Court and would like to reserve the remainder of my time.

William H. Rehnquist:

Thank you, General Starr.

Mr. True, we’ll hear from you.

Todd D. True:

Mr. Chief Justice, and may it please the Court:

The separation of powers between Congress and the judiciary does not allow Congress to enact a statute that tells the courts to decide a specific, pending case for one party or for another party.

On that point, we and the Solicitor agree.

Section 318, however, steps across that line, because what it does is tell the courts how to decide these cases and only these cases for the Government, for a year.

William H. Rehnquist:

Mr. True, you would agree, would you not, that if there is a choice of possible interpretations of this statute and one of them would make it constitutional and one not, we should choose the one which would make it constitutional?

Todd D. True:

Yes, Your Honor, if that choice is available, but our point is that in this statute, this statute that Congress enacted, all of the indicia in the statute itself, in its history, all fit together and point to the conclusion that Congress was deciding these cases for a year in enacting this statute.

William H. Rehnquist:

So there is only one way to construe the statute, in your opinion.

Todd D. True:

That is correct, Your Honor.

Sandra Day O’Connor:

You don’t think that it could be constructed in the way I suggested to General Starr that it just deals with the congressional designation of certain lands within which timbering could be held or which… in which it could not be used for timbering for 1990.

Todd D. True:

Yes, Your Honor–

Sandra Day O’Connor:

But leaving in place all the management and administration.

Is that possible?

Todd D. True:

–Yes.

I agree with your construction of the second sentence of subsection (b)(6)(A), that what it is in effect doing is saying these areas of the forest, these particular areas of the forest, are off-limits to logging, and much like a designation of an area as a wilderness or as a national park, there’s no judicial review of that.

The Congress to make that–

Sandra Day O’Connor:

Is that designation at issue in the suits that are pending?

Todd D. True:

–No, it is not.

We are not asking about what happened, or we’re not challenging anything that happened within those areas.

The issue in this case is the legal standards that guide the selection of individual timber sales outside of those areas during 1990.

There is nothing in section 318 that tells the agencies which particular tracts of timber to select during 1990.

The standards for that are in the existing environmental laws.

That’s where the agencies looked to decide which timber sales to pick, and nothing in section 318 set aside or repealed or amended those laws.

The only thing in section 318 that tried to draw a link between section 318 and the existing laws is the phrase in (b)(6)(A) that says, Congress determines and directs that these actions… that is, staying outside of (b)(3) and (b)(5)… will meet the requirements of those laws.

Now, that is a key indicator that Congress was deciding these cases.

It is language that courts might use in deciding a case.

It says what complies with the law.

It doesn’t change or amend the law.

Now–

Sandra Day O’Connor:

Well, maybe it was just an inartful means of identifying a list of statutes that it wanted affected.

Todd D. True:

–Your Honor, I don’t believe it was an inartful means of identifying–

Sandra Day O’Connor:

Was this provision enacted sort of in the middle of the night at the last minute, or what?

Todd D. True:

–It is certainly an amendment to an appropriations act–

Sandra Day O’Connor:

Yes.

Todd D. True:

–which itself indicates that this shouldn’t automatically be read as an amendment to the substantive law.

But the more fundamental point is that we can’t just excuse this as inartful drafting because all of the other indicators in the statute and its history point to the conclusion that this was intentional, this was purposeful to decide these cases.

If you go through those indicators, the statute names the cases, and it names the docket numbers, and in fact it names a particular order in one of the cases, the order granting a preliminary injunction.

Byron R. White:

Well, what if 318 had just expressly said, we hereby are amending the… and they list… they identify the statute, we’re amending them so that they will not be violated if these… if… as long as there’s compliance with (b)(3) and (b)(5)?

What if they’d just been expressly… had changed the law?

Todd D. True:

First, Your Honor, of course you would have a different statute than the one before you, but again, you would use the same approach.

You would look at all of the indicators in the statute.

If everything else in the statute, the commentary and the legislative history, the parts of the statute, indicated that what Congress was doing was deciding these cases, then it would be a very close case.

But you might even conclude that language like “notwithstanding”, because it was zeroed in only these cases, you might conclude that Congress was still deciding these cases by acting that particular law.

Byron R. White:

Well, of course you would.

I suppose the court would have to… in your cases they would have to say, well, they’ve now amended the statute and there’s no violation right now.

Todd D. True:

What you would have there is a strong indicator that Congress is changing the law, and of course that’s what this is all about.

Was Congress changing the law, or was it telling the courts how to apply that law in these cases?

Todd D. True:

So in your hypothetical, you would have one strong indicator going the other way.

You don’t have that indicator here.

You don’t have any indicator going in the direction of changing the law here.

Byron R. White:

Well, you’ve got a rule of construction.

Todd D. True:

That I agree, Your Honor.

You have a rule of construction, but that rule doesn’t overcome the clear indications of the statutes.

Let me turn to the legislative history and add some more indicators of what Congress–

John Paul Stevens:

Let me just interrupt, if I may.

Would you not agree that if your theory of the law as expressed in the underlying litigation was correct, that this statute has the effect of changing… assuming… has the effect of changing the law applicable to the part of the controversy that you are involved in, geographically and temporally?

Todd D. True:

–It places… it adds the additional requirement of placing certain areas of the forest off limits to logging for a year.

It doesn’t–

John Paul Stevens:

And doesn’t that constitute a change in the law?

Todd D. True:

–That is an additional… yes, Your Honor.

That is a change in the law, but it is not a change in the law that affects the application of the laws that we had based our claims on in these cases.

In other words, the agencies can stay out of those areas, but that’s maybe 20 percent of the forest.

In the other 80 percent of the forest, they still have to decide–

Byron R. White:

Yes, but it says if you live… if you stay out of these areas, then the area that should be… that is going to be logged will not be subject to any challenge.

Isn’t that what that means?

Todd D. True:

–The second sentence that speaks of judicial review says that there will be no judicial review of the statutory standards in (b)(3) and (b)(5).

It’s much like saying that this is our decision to make, that these areas are going to be off limits.

Now, if you go back, though, to… (b)(3) changes the law for these particular areas, but then what it does, what section (b)(6)(A) does is draw a link between that change and the existing law, and it says, if you stay out of these areas your actions everywhere else will meet the requirements of the existing laws.

And that isn’t a change.

That language doesn’t change the requirements of the existing law.

And that’s what these cases were about, was enforcing the existing environmental laws against the Forest Service and the Bureau of Land Management.

Now–

Antonin Scalia:

But Congress frequently speaks that way.

It says… instead of amending the law, it says this shall be deemed to satisfy that requirement, and it can do that, can’t it?

I mean, its laws mean what they want it to mean.

It can say, you know, green shall be deemed to yellow.

We’ll listen to that, won’t we?

Todd D. True:

–Yes, Your Honor, that is something that Congress can do, but it depends on the particular circumstances of the statute as to whether saying something like that is simply something that Congress has the power to do, or whether it’s deciding a case.

In the… in this–

Antonin Scalia:

Wait.

Deciding the case.

Suppose that there’s a prosecution of a particular individual under a Federal statute, and Congress sees that prosecution and says, oh, gee, we didn’t mean the statute to apply to something like that.

With that case prominently in mind, it passes a statute repealing that criminal prohibition, whereupon, of course, the prosecution would have to be dismissed, right?

Todd D. True:

–That is correct.

Now–

Antonin Scalia:

Now, is that what you mean by deciding a particular case?

Todd D. True:

–That has the effect of deciding a particular case, but it also–

Byron R. White:

I know, but it was also the purpose.

Todd D. True:

–Well, it isn’t just the purpose of that statute to decide the particular case.

In other words, if you go–

Antonin Scalia:

Well, wait.

It isn’t the purpose of this one just to decide this particular case, either, or the effect of it.

I mean, I assume that if another suit were filed… identical to the suit referred to in the legislation, that suit would, under the language here, not be permissible either, would it?

Todd D. True:

–If it were exactly identical to this case, it had the same claims under the same laws against the same agency actions, then you would again have Congress determining that those actions meet the requirements of the law.

Antonin Scalia:

Just as if you had another prosecution in my hypothetical under the same law for the same offense.

Todd D. True:

But I think that–

Antonin Scalia:

All those cases are being decided by Congress’ amending the law.

Todd D. True:

–The difference, I think, Your Honor, is that in your hypothetical, what you have is Congress saying we… you have indicators.

Congress is saying, we didn’t mean that particular criminal statute to have such-and-such an effect.

Here, it’s not saying… there’s no discussion in the legislative history or anywhere else that we don’t mean the National Environmental Policy Act to do what it does, or the National Forest Management Act, or any of the other laws, we just don’t like the result that the court has reached in these particular cases and so we’re going to tell the court what actions meet the requirements of those laws.

Sandra Day O’Connor:

Well, I’m not sure that’s a fair description.

If you read the conference report, it says in reference to this that it intended for the fiscal year ’90 to protect more habitat than had currently been provided under the plans, and the conference report went on to say this section in no way alters application of the Endangered Species Act or other environmental laws to Forest Service and BLM management activities.

Todd D. True:

Yes, Your Honor, that’s–

Sandra Day O’Connor:

So if all that they were doing is making a congressional designation of more habitat area, then I suppose there’s nothing the matter with their shorthand description in this statute.

Todd D. True:

–Well, they did make the designation, and they did preclude judicial review of that, but the areas that they designated are only a small part of the forest, and they haven’t changed or specified what’s to happen in the rest of the forest.

Sandra Day O’Connor:

I’m saying perhaps Congress didn’t go on and say what was to happen in the rest.

Perhaps all it did here was designate habitat and preclude review of that.

Todd D. True:

If it didn’t designate what is to happen in the rest of the forest, then it’s the existing laws at issue in our cases that determine whether the actions the agency takes on those areas of the forest meet or don’t meet the requirements of the law, and the only thing that tells us whether this statute in (b)(6)(A), where it says these actions meet the requirements of the law, attempt to tell the courts what actions outside the areas off limits meet the requirements of the law.

That’s the ruling that the court was about to make in these cases.

Antonin Scalia:

Mr. True, would you be making the same argument if 6(a), instead of referring at the end of that first sentence to, is adequate consideration for the purpose of meeting the statutory requirements that are the basis for the consolidated cases captioned, blah, blah, blah… instead of saying that… and I must say, I don’t know why they said that… what if they had just copied the citations of the statutes, you know, gone to the briefs in the cases and just copied those same statutes?

Would you be contending that that’s unconstitutional?

Todd D. True:

If nothing else about the history or the structure or any other aspect of the statute is changed except that you have a listing–

Right.

Todd D. True:

–of the statutes… now, it has to be very precise, and it has to specify a number of other things that get you to these cases… it applies only to spotted owls, it applies only to logging, and so on… then I think I would be making the same argument.

Byron R. White:

No, no… that’s what you said awhile ago.

Todd D. True:

Yes, Your Honor.

Antonin Scalia:

No, wait, it doesn’t have to say spotted owls.

It says “the statutes”.

It says, is adequate for purposes of meeting the statutory requirements that are the basis.

All it does is refer to the statutes.

It doesn’t limit it to spotted owls, it doesn’t limit it to these particular locations.

All it does is, instead of incorporating by reference the statutory requirements that are included in the lawsuits, it names the statutory requirements.

Todd D. True:

In fact, this statute did more than that.

It did focus on spotted owls and loggings and these cases.

For example, there were cases that went forward.

Antonin Scalia:

The cases may have, but the statutory requirements are requirements that apply to many other things besides… besides spotted owls, isn’t that right?

Todd D. True:

Yes, Your Honor, and cases that raised challenges under these same statutes to other activities.

Antonin Scalia:

But let me put my question the way I want to put it.

What this hypothetical statute says is exactly what this (6)(A) now says, except at the very end there it cites the statutory sections that were at issue in these cases, nothing more.

It just cites them, for purposes of meeting the following statutory requirements, colon… and then it names them.

Is there any doubt whether that would be constitutional?

Todd D. True:

Your Honor, I believe… yes, Your Honor.

I believe there is if what you have in the legislative history, as you have here, is a focus on wanting to change the result of two particular–

Antonin Scalia:

It’s invalidated by the legislative history.

Todd D. True:

–Excuse me, Your Honor?

Antonin Scalia:

It’s invalidated by its legislative history.

Todd D. True:

No, it is not invalidated by the legislative history, but all of the factors here, both the statute and the legislative history, point to deciding these cases, and that’s crucial, because in your example, if you change one of those… so that Congress is talking about changing the law in the legislative history, for example… you have a different case.

Todd D. True:

You have a different statute, and you’re not just focused on the particular result in these cases for a year.

Antonin Scalia:

Suppose I don’t believe that.

Suppose I don’t even look at the legislative history, and I think that if they named this statute this would be a perfectly valid amendment of the law, does it make any difference if, instead of naming the statutes, they incorporate them by reference?

Suppose the statutes were mentioned specifically somewhere else… in Webster’s Dictionary, and they referred to the statutes referred to in Webster’s Dictionary, that would be all right, right?

But the vice here is that they referred to these cases that mentioned the statute.

Todd D. True:

It does make some difference that they named the cases and the orders here, because that makes it even clearer what the focus of the statute is.

It’s on these cases.

If they list the laws, it is a little less clear that they’re focused on these cases in enacting the statute, but even if they list the laws, and direct what actions meet those laws, and in fact they indicate that that was in order to decide a particular case, I still think you’re going to be at least very, very close to the separation of powers line.

Antonin Scalia:

That’s… you have the intention.

That’s what really does it for you.

It’s that they intend to get a different result in these cases.

Todd D. True:

No, Your Honor, it’s not subjective.

It’s the objective indications in the statute and in the legislative history of Congress’ intent to change the outcome of these cases for a year.

It’s the objective indicators of that.

Anthony M. Kennedy:

Suppose a statute were enacted the day before the suit was filed.

Todd D. True:

Again, you would have a different case than the case before you.

Anthony M. Kennedy:

Well, what would your answer be?

Todd D. True:

But… okay.

The answer would be that if you had the same statute, the same history, and Congress knew that the case was going to be filed the next day and it wanted to head that off, you might well have a separation of powers violation between Congress and–

Anthony M. Kennedy:

But why?

The Congress is saying what the law shall be in a future case.

Todd D. True:

–Let me back up, because what I was about to say is, the more likely separation of powers violation you have at that point is Congress telling the executive department how to implement the laws.

William H. Rehnquist:

Congress does that all the time, doesn’t it?

Todd D. True:

In a specific, focused situation.

In other words, for example, in this statute if what Congress had done is passed a law that said, the actions of the Forest Service are inadequate to meet the National Forest Management Act, or the environmental documents at issue here are inadequate to meet the requirements of the National Environmental Policy Act, I think there you would again have no change in the law but just a direction to the executive department to go back and try again.

William H. Rehnquist:

Is there anything forbidden to Congress for doing that?

Todd D. True:

Congress doesn’t implement the laws.

It sets the standards, and then the executive branch implements the laws.

If–

William H. Rehnquist:

So you don’t think Congress could say that they… to the people in the Bureau of Land Management or the Forest Service that with respect to particular determinations you’ve made under the… for NEPA, they are inadequate.

Todd D. True:

–If its focus is… if it has no focus, no attention to changing the laws, it just wants to change what the executive branch is doing to implement those laws in a particular, specific situation… in other words, it’s overruling the executive branch’s exercise of its authority to implement the laws… then I do think that you have a different separation of–

William H. Rehnquist:

So Klein applies not simply where Congress tries to tell the judiciary what to do, but where it tries to tell the executive what to do?

Todd D. True:

–Your Honor, the principle that Congress can’t decide cases and that it can’t implement the laws does apply, because if Congress can control specifically how individual laws are implemented in individual situations, then it basically has complete control of the executive.

Anthony M. Kennedy:

I suppose INS v. Chadha would help you on that point.

Todd D. True:

Well, that… that case is certainly an important case here, and particularly the concurring opinion of Justice Powell on the separation of powers point, because this is very like what happened there.

Sandra Day O’Connor:

But do you take the position that Congress lacks power to designate certain areas of Federal forest land within which it will allow or not allow timbering by specific designation, even though that designation may conflict with what the BLM or the Forest Service was going to designate, or had designated?

You think Congress lacks the power to say no, we don’t like that, and we’re going to designate sections so-and-so and so-and-so and so-and-so as habitat.

Todd D. True:

No, Your Honor, that is not–

Sandra Day O’Connor:

Well, your argument sounds very much like you say that would not be permitted constitutionally.

Did you mean to say that?

Todd D. True:

–No.

The Congress can certainly go and designate wilderness, national parks.

It can pass a new law that says there shall be no logging on BLM lands.

Sandra Day O’Connor:

Even though it conflicts entirely with what its administrative agencies might have chosen to designate.

Todd D. True:

That is correct, Your Honor.

William H. Rehnquist:

And Congress can also say what used to be a wilderness area is no longer a wilderness area.

Todd D. True:

That is correct, too, Your Honor.

Antonin Scalia:

So long as it acts the way Congress is supposed to act by resolution of both Houses submitted to the President.

Todd D. True:

That is correct, Your Honor.

Antonin Scalia:

So Chadha has nothing to do with this.

Todd D. True:

That is… that is true in this–

Antonin Scalia:

I mean, that was the problem with Chadha, wasn’t it?

Congress was not acting–

Todd D. True:

–That’s correct.

That was the basis that the Court decided that case on.

Byron R. White:

–Mr. True, I take it you would be arguing the same if, as Justice Scalia suggested, if there was a specific listing of the statutes that were involved and then Congress said those statutes are repealed for a year in these areas as long as (b)(3) and (b)(5) are satisfied.

Todd D. True:

Your Honor–

Byron R. White:

They’re just repealed.

Todd D. True:

–I might not be making the same argument because there I have something that indicates that Congress wanted to set aside the laws, repeal the laws, instead of tell the courts what actions meet those laws, but it would be a very close case–

Byron R. White:

So you don’t think this language is readable as indicating clearly that Congress does not want these other laws to be applied for a year.

Byron R. White:

They just don’t want them to apply for a year.

Todd D. True:

–I don’t think the language is readable that way when you look at the other–

Byron R. White:

Well, what else did it want?

Todd D. True:

–It wanted to change the rulings in these cases so there weren’t any injunctions in place.

Byron R. White:

Well, I know they wanted to change the results in these cases, but they did it in a way that I would think they had the power to do, namely they repealed the laws on these cases, say that the administrators aren’t complying with these statutes, and the Congress says look, these statutes are repealed for a year.

Todd D. True:

Your Honor, if that’s what it had said, we would have a different case.

It didn’t say that.

Byron R. White:

Well, I know, but I can’t… what else did Congress want to attain by these words in this statute except to not have those statutes apply for a year, even if it meant doing away with the cases?

Todd D. True:

It did, in fact, leave those statutes in place, and the agencies during the year did comply with them.

In fact, if you look at decisions to sell timber during 1990 outside these areas that were put off limits, what you find is that those decisions say… they go through and say this decision to sell, this timber sale, complies with section 318, and it complies with the requirement of the National Forest Management Act to protect the viability of these species, and so on.

But we don’t… but they didn’t have to worry about these cases because Congress had decided those.

So they could continue to follow the existing law, because it hadn’t been changed.

Byron R. White:

I don’t know, I… have you run across any other effort where a statute is repealed just in a certain area for a year?

Todd D. True:

There may be those, Your Honor.

I’m not aware of any, but I’m certainly not aware of any, and there are none that the Solicitor cites, where you had a statute where Congress had a pending case and it focused on that case, and it said certain actions are going to be adequate to meet the requirements of that law.

All of the deeming statutes that the Solicitor talks about, there isn’t a pending case out there saying these actions don’t meet the law.

David H. Souter:

Should it make any difference whether the determination in question in the case is a determination about vested rights based on past conduct or rights simply to… in effect to prospective relief ordering certain future behavior?

Is that a crucial distinction?

Todd D. True:

No, I don’t believe it is, Your Honor.

Let me see if I understand the question.

First, there were no vested rights, say, for example, by any timber companies to log in any of these areas that were put off limits.

There are no vested rights to log on the public lands at all.

Byron R. White:

And no vested rights not to log.

Todd D. True:

That is correct, Your Honor.

There are laws that say how logging, if it’s going to happen, is to proceed, but this law is not about prospective conduct, except for conduct that the court was judging in this case.

David H. Souter:

Then why would it make any difference if Congress had simply repealed the law entirely?

It wouldn’t make any difference, would it–

Todd D. True:

My point–

Byron R. White:

–under your theory?

Todd D. True:

–My point is that it might not make a difference if Congress happened to use the words “notwithstanding”, or “hereby repealed” for these particular activities in these particular States or this particular year under these particular circumstances, because then… and you have legislative history that says we’re doing this “repeal”, quote, as you do here, because we want to change the injunctions in two pending cases.

Todd D. True:

So it might not make a difference if that language of repeal gets used.

It’s… in every… as this Court has said every time it has looked at a statute under the separation of powers, each statute has to be addressed individually and on its own.

There aren’t bright lines and automatic rules here.

You have to look at the indicia in each statute of what the statute is doing.

And if you go through those here, what you find is that this statute is deciding these cases.

William H. Rehnquist:

Thank you, Mr. True.

Mr…. General Starr, you have 3 minutes remaining.

Kenneth W. Starr:

Very briefly, Mr. Chief Justice, the first point is, in our reply brief at page 12 we enumerate a number of statutes passed by Congress that specifically refer to pending litigation and deems the settlement that is approved by the Congress of the United States to have been made in accordance with the Constitution and all laws.

Secondly–

Antonin Scalia:

Are any of those deeming statutes appropriations measures?

That was part of the ground for the decision below, that they didn’t think this change could be made in an appropriations measure.

The Government has no problem with that.

Kenneth W. Starr:

–These are claims against the United States as well as against States.

But the answer is, with respect to appropriations act, I think the law is clear that Congress is at liberty to lay down a substantive rule of law in an appropriations act.

We may not admire that as an orderly way of proceeding legislatively, but there’s nothing that requires, in the Constitution at least, for Congress to be orderly and careful about the way it does its work.

Secondly, the theory that we have just heard essentially amounts to a freezing theory, that the pendency of a lawsuit does, in fact, have an injunctive effect, as it were, against the Congress of the United States.

It no longer enjoys liberty to regulate the public lands.

And thirdly and finally… I think this is very important… what the Ninth Circuit concluded, and what we’ve heard today, is that Congress violated the separation of powers.

It directed courts how to decide a lawsuit.

Fair reading of this, including the language that hurts me the most, “determines and directs”, isn’t language that Congress uses in addresses the courts.

It uses the word “directs” throughout this statute when it’s talking to those of us who have to listen… the Forest Service and the Bureau of Land Management.

It wasn’t directing a decision.

John Paul Stevens:

Mr. Starr, can I ask you one point of information.

In the… you’ve emphasized subparagraph (F) in (b)(3) as the… is there a counterpart to subparagraph (F) in (b)(5)?

Kenneth W. Starr:

No, there is not.

There’s not, okay.

Kenneth W. Starr:

One of the incongruities of the statute.

Antonin Scalia:

I thought we had to listen, General Starr.

I’m not sure that–

Kenneth W. Starr:

I’m sorry.

Antonin Scalia:

–if Congress wanted to that indelicate they couldn’t address us that way.

Kenneth W. Starr:

Yes.

Antonin Scalia:

It’s their statute, and we have to do what their statutes say, don’t we?

Kenneth W. Starr:

Yes.

They certainly… since the days of Schooner Peggy, even the jurisprudence of this Court has been, certainly, if it speaks clearly, it has the ability to lay down a rule to guide decisions.

But this Court has been troubled if there is an effort by Congress to actually step in and to direct: John Smith shall win this particular adjudication.

That is not this case.

William H. Rehnquist:

Thank you, General Starr.

The case is submitted.