United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 5, 2002 Decided October 18, 2002
No. 01-5376
Tulare County, et al.,
Appellants
v.
George W. Bush, in his official capacity as
President of the United States of America, et al.,
Appellees
Natural Resources Defense Council, et al.,
Intervenors
Appeal from the United States District Court
for the District of Columbia
(No. 00cv02560)
Gary G. Stevens argued the cause and filed the briefs for
appellants.
Susan Pacholski, Attorney, U.S. Department of Justice,
argued the cause for appellees. With her on the brief were
Ellen J. Durkee, Michael Gheleta and Ann Navaro, Attor-
neys, U.S. Department of Justice.
Andrew E. Wetzler argued the cause for intervenors Natu-
ral Resources Defense Council, et al. With him on the brief
were Nathaniel S.W. Lawrence, Michael R. Sherwood, Anne
Harper and James S. Pew.
Raissa S. Lerner, Deputy Attorney General, Attorney Gen-
eral's Office of the State of California, argued the cause for
intervenor People of the State of California. With her on the
brief were Bill Lockyer, Attorney General, Richard M.
Frank, Chief Assistant Attorney General and Theodora Ber-
ger, Senior Assistant Attorney General.
Before: Edwards and Rogers, Circuit Judges, and
Williams, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge Rogers.
Rogers, Circuit Judge: This is the second case we decide
today involving a challenge to Presidential authority under
the Antiquities Act of 1906 ("Act"), 16 U.S.C. s 431 (2000).
In Mountain States v. Bush, slip op. at 1, ___ F.3d ____ (D.C.
Cir. Oct. 18, 2002), the court, upon de novo review, affirmed
the dismissal of the complaint, holding that the complaint,
which challenged a series of monument designations under
the Act, contained insufficient factual allegations under Fed-
eral Rule of Civil Procedure 8(a) to trigger ultra vires review
of the President's Proclamations. Id. at 8-10. The court also
held that the complaint failed as a matter of law insofar as it
alleged that the Proclamations violated the plain terms of the
Antiquities Act and other federal statutes. Id. at 8, 10-11.
We likewise hold, upon de novo review, that the complaint in
the instant case fails for the same reasons. Accordingly, we
affirm the dismissal of the complaint for lack of subject
matter jurisdiction and for failure to state a claim upon which
relief may be granted pursuant to Federal Rules of Civil
Procedure 12(b)(1) and 12(b)(6).
I.
In April 2000 President Clinton established by proclama-
tion the Giant Sequoia National Monument pursuant to his
authority under the Antiquities Act. Proclamation 7295, 65
Fed. Reg. 24,095 (Apr. 15, 2000). The Monument, which
encompasses 327,769 acres of land in the Sequoia National
Forest in south-central California, contains groves of giant
sequoias, the world's largest trees, and their surrounding
ecosystem. Id. at 24,095-97, 24,100.
Tulare County, which contains land near and within the
Grand Sequoia National Monument ("Monument"), along with
a number of other public and private entities that use the
Monument area for business or recreational purposes (herein-
after "Tulare County"), filed a complaint seeking declaratory
and injunctive relief. Tulare County alleged that the Procla-
mation violated various provisions of the Antiquities Act and
the Property Clause of the Constitution, as well as the
National Forest Management Act, the National Environmen-
tal Policy Act, and the parties' existing rights under a prior
mediated settlement agreement. The district court, conclud-
ing that only facial review was appropriate, dismissed the
complaint. Tulare County v. Bush, 185 F. Supp. 2d 18
(D.D.C. 2001).
II.
On appeal, Tulare County contends that in dismissing its
complaint prior to discovery, the district court erred in failing
to accept as true the facts alleged in the complaint and in
limiting its review to the face of the Proclamation rather than
reviewing the President's discretionary factual determina-
tions. Tulare County does not contend that the President
lacks authority under the Antiquities Act to proclaim national
monuments like Giant Sequoia, as the Supreme Court has
long upheld such authority. Cappaert v. United States, 426
U.S. 128, 142 (1976); Cameron v. United States, 252 U.S. 450,
455 (1920). Rather, in Counts 1-4 of the complaint, Tulare
County alleged that the Proclamation violated the Antiquities
Act because it: (1) failed to identify the objects of historic or
scientific interest with reasonable specificity; (2) designated
as the basis for the Monument objects that do not qualify
under the Act; (3) did not confine the size of the Monument
"to the smallest area compatible with proper care and man-
agement of the objects to be protected," 16 U.S.C. s 431; and
(4) increased the likelihood of harm by fires to any objects of
alleged historic or scientific interest within the Monument
rather than protecting those objects. In Count 5, Tulare
County argued that, absent judicial review of the President's
action under the Antiquities Act, the statute constitutes an
unconstitutional delegation of congressional authority. The
remaining counts alleged that other federal statutes barred
the Proclamation and that the Proclamation violated extant
legal rights arising from a mediated settlement agreement
with the National Forest Service prior to the Proclamation.
The Antiquities Act provides, in relevant part, that the
President, "in his discretion" may declare "historic landmarks
... and other objects of historic or scientific interest ...
situated upon [federal] lands ... to be national monuments,
and may reserve ... parcels of land ... confined to the
smallest area compatible with the proper care and manage-
ment of the objects to be protected...." 16 U.S.C. s 431.
The court pointed out in Mountain States, after reviewing
Supreme Court authority discussing the scope of judicial
review of discretionary Presidential decisionmaking, that the
court "is necessarily sensitive to pleading requirements
where, as here, it is asked to review the President's actions
under a statute that confers very broad discretion on the
President and separation of powers concerns are presented."
Mountain States, slip op. at 9, ___ F.3d at ____. Acknowl-
edging that Congress has entrusted the courts with responsi-
bility for determining the limits of statutory grants of author-
ity, id. at 8, the court nonetheless declined to engage in ultra
vires review in light of the absence of allegations or argu-
ments in the record to indicate any infirmity in the challenged
Proclamations. Id. at 9. Consequently, we review Tulare
County's complaint to determine whether it contains factual
allegations to support an ultra vires claim that would demon-
strate the district court erred in declining to engage in a
factual inquiry to ensure that the President complied with the
statutory requirements.
Count 1 of Tulare County's complaint is premised on the
assumption that the Antiquities Act requires the President to
include a certain level of detail in the Proclamation. No such
requirement exists. The Act authorizes the President, "in his
discretion, to declare by public proclamation historic land-
marks, historic and prehistoric structures, and other objects
of historic or scientific interest." 16 U.S.C. s 431. The
Presidential declaration at issue complies with that standard.
The Proclamation lyrically describes "magnificent groves of
towering giant sequoias," "bold granitic domes, spires, and
plunging gorges," "an enormous number of habitats," "lime-
stone caverns and ... unique paleontological resources docu-
menting tens of thousands of years of ecosystem change," as
well as "many archaeological sites recording Native American
occupation ... and historic remnants of early Euroamerican
settlement." Proclamation at 24,095. By identifying historic
sites and objects of scientific interest located within the
designated lands, the Proclamation adverts to the statutory
standard. Hence, Count I fails as a matter of law.
Count 2 alleges that the President has designated nonquali-
fying objects for protection. The Antiquities Act provides
that, in addition to historic landmarks and structures, "other
objects of historic or scientific interest" may qualify, at the
President's discretion, for protection as monuments. 16
U.S.C. s 431. Inclusion of such items as ecosystems and
scenic vistas in the Proclamation did not contravene the
terms of the statute by relying on nonqualifying features. In
Cappaert, 426 U.S. at 141-42, the Supreme Court rejected a
similar argument, holding that the President's Antiquities Act
authority is not limited to protecting only archeological sites.
As relevant to Count 3 of the complaint, the Proclamation
states that the Monument's 327,769-acre size "is the smallest
area compatible with the proper care and management of the
objects to be protected." Proclamation at 24,097. It also
states that the sequoia groves are not contiguous but instead
comprise part of a spectrum of interconnected ecosystems.
Id. Tulare County alleges that no one in the Clinton Admin-
istration "made any meaningful investigation or determina-
tion of the smallest area necessary to protect any specifically
identified objects of genuine historic or scientific interest."
Compl. p 149. Instead, it alleges, President Clinton "bowed
to political pressure ... in designating a grossly oversized
Monument unnecessary for the protection of any objects of
genuine historic or scientific interest." Compl. p 150. This
allegation is a legal conclusion couched as a factual allegation.
"Although in reviewing the dismissal of a complaint the court
must take 'all factual allegations in the complaint as true,' the
court is 'not bound to accept as true a legal conclusion
couched as a factual allegation.' " Mountain States, slip op.
at 9, ___ F.3d at ____ (quoting Papasan v. Allain, 478 U.S.
265, 286 (1986)).
Contrary to the assumption underlying Count 3, the Antiq-
uities Act does not impose upon the President an obligation to
make any particular investigation. And to the extent that
Tulare County alleges that the Proclamation designates land
that should not be included within the Monument, the com-
plaint fails to identify the improperly designated lands with
sufficient particularity to state a claim. Id. Insofar as
Tulare County alleges that the Monument includes too much
land, i.e., that the President abused his discretion by desig-
nating more land than is necessary to protect the specific
objects of interest, Tulare County does not make the factual
allegations sufficient to support its claims. This is particular-
ly so as its claim that the Proclamation covered too much land
is dependent on the proposition that parts of the Monument
lack scientific or historical value, an issue on which Tulare
County made no factual allegations. Cf. Dalton v. Specter,
511 U.S. 462, 473-74 (1994); United States v. George S. Bush
& Co., 310 U.S. 371, 379 (1940).
Count 4 of the complaint alleges that the Monument desig-
nation actually increases the risk of harm from fires to many
of the objects that the Proclamation aims to protect. Howev-
er, the Proclamation expressly addresses the threat of wild-
fires and the need for forest restoration and protection. The
Proclamation observes that forest renewal is needed because
environmental change "has led to an unprecedented failure in
sequoia reproduction," and that "a century of fire suppression
and logging" has created "an increased hazard of wildfires of
a severity that was rarely encountered in pre-Euroamerican
times." Proclamation at 24,095. Count 4 contains no factual
allegations, only conclusions, see, e.g., Compl. p 160, and it
refers to current management rather than the designation
under the Proclamation as the cause for likely increases in
catastrophic fires, Compl. p 159.
Count 5, alleging that if judicial review is not available
under the Antiquities Act then the Act violates the Property
Clause of the Constitution as an improper delegation of
congressional authority to the President, fares no better. As
the court held in Mountain States, "[n]o Constitutional Prop-
erty Clause claim is before us, as the President exercised his
delegated powers under the Antiquities Act, and that statute
includes intelligible principles to guide the President's ac-
tion." Slip op. at 8, ___ F.3d at ____ (citing Whitman v. Am.
Trucking Ass'ns, Inc., 531 U.S. 457, 474 (2000); Dalton, 511
U.S. at 473-74 & n.6).
Tulare County's remaining contentions, involving other fed-
eral statutes and contractual rights, fail as a matter of law.
Contrary to Count 6 of the complaint, the Proclamation does
not violate the National Forest Management Act of 1976
("NFMA"), Pub. L. No. 94-588, 90 Stat. 2949 (codified as
amended in scattered sections of 16 U.S.C.) (2000), by unlaw-
fully withdrawing land from the national forest system. The
NFMA provides that no national forest land "shall be re-
turned to the public domain except by an act of Congress."
16 U.S.C. s 1609(a). The Proclamation states that "[a]ll
federal lands and interests in lands within the boundaries of
this monument are hereby appropriated and withdrawn from
entry, location, selection, sale, leasing, or other disposition
under the public land laws...." Proclamation at 24,097.
The Proclamation also states that "[n]othing in this proclama-
tion shall be deemed to revoke any existing withdrawal,
reservation, or appropriation; however, the national monu-
ment shall be the dominant reservation." Id. at 24,098. The
Proclamation thus conceives of the designated land as having
a dual status as part of both the Monument and the Sequoia
National Forest. Cameron, 252 U.S. at 455; Tulare County,
185 F. Supp. at 27. Compare United States v. California, 436
U.S. 32, 40 (1978). The Proclamation is therefore wholly
consistent with NFMA.
Tulare County alleges alternatively, in Counts 7 and 8, that
if the Proclamation did not remove land from the national
forest system, then the current management of the Monu-
ment by the National Forest Service violates the NFMA and
the National Environmental Policy Act of 1969 ("NEPA"), 42
U.S.C. s 4332 (2000). Neither NFMA nor NEPA provides a
cause of action, so the claims must be brought under the
Administrative Procedure Act ("APA"), 5 U.S.C. s 702 (2000).
Because Presidential actions, of course, are not subject to
APA review, Franklin v. Massachusetts, 505 U.S. 788, 800-01
(1992), Tulare County attempts to overcome this bar by
challenging the non-presidential actions of the Forest Service,
referring to two Forest Service documents--an internal For-
est Service memorandum interpreting the Proclamation and
an interim plan that directs the day-to-day management of
the Monument--allegedly showing that the Service is not
acting consistently with the Proclamation. Although Tulare
County refers to the existence of foresters on the ground, the
complaint does not identify these foresters' acts with suffi-
cient specificity to state a claim.
Finally, regarding Count 9, the Proclamation explicitly
states that "the establishment of the monument is subject to
valid existing rights." Proclamation at 24,097. Tulare Coun-
ty alleges that the Proclamation violates existing rights that
were established by the Mediated Settlement Agreement in
1990, which provided that commercial logging would continue
to be available in the Converse Basin area of the Monument.
Tulare County ignores the fact that the settlement agreement
did not create in any of the parties a right to actual timber
harvest, cf. Ohio Forestry Ass'n v. Sierra Club, 523 U.S. 726,
733 (1998), and it failed to allege that any of the appellants
possess a contract for timber harvest. The allegation that
the Proclamation violates the Sequoia National Forest Trail
Plan likewise fails for lack of sufficient particularity.
Accordingly, because "[a]t no point has [Tulare County]
presented factual allegations that would occasion ... ultra
vires review of the Proclamation[ ]" Mountain States, slip op.
at 8-9, ___ F.3d at ____ - ____, we affirm the dismissal of the
complaint.