Mountain States Legal Foundation v. Bush

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 3, 2002 Decided October 18, 2002

No. 01-5421

Mountain States Legal Foundation and
the Blue Ribbon Coalition, Inc.,
Appellants

v.

George W. Bush, in his official capacity as
President of the United States of America, et al.,
Appellees

Appeal from the United States District Court
for the District of Columbia
(No. 00cv02072)

S. Amanda Koehler argued the cause for appellants. With
her on the briefs was William Perry Pendley.

Susan Pacholski, Attorney, U.S. Department of Justice,
argued the cause for appellee George W. Bush. With her on

the brief were Ellen Durkee, Michael Gheleta and Ann D.
Navaro, Attorneys.

James S. Angell argued the cause for appellees Wilderness
Society, et al. With him on the brief was Johanna Wald.

Before: Edwards and Rogers, Circuit Judges, and
Williams, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge Rogers.

Rogers, Circuit Judge: Mountain States Legal Foundation
and the Blue Ribbon Coalition (hereafter "Mountain States")
appeal the dismissal of their complaint challenging six Presi-
dential Proclamations as unconstitutional and ultra vires ac-
tions 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).
Mountain States contends that the district court erred by
limiting its review to the face of the Proclamations rather
than conducting factfinding to determine whether the Presi-
dent had complied with the limitations, structure, and pur-
poses of the Antiquities Act ("the Act"), 16 U.S.C. s 431
(2000). Absent such judicial review, it contends, the Act
constitutes an unconstitutional delegation of congressional
authority. Mountain States maintains that its complaint stat-
ed a claim because the Proclamations reach far beyond the
purpose, scope, and size of any national monuments contem-
plated by Congress under the Act and are contrary to various
statutes relating to the protection of environmental values on
federal land. We have no occasion to decide the availability
or scope of judicial review of a Presidential Proclamation
designating federal lands as a national monument under the
Antiquities Act, for Mountain States has failed to present any
factual allegation sufficient to warrant review of its ultra
vires claim. Accordingly, we affirm the dismissal of the
complaint.

I.

Near the end of his second term in office, President Clinton
exercised his authority under the Antiquities Act to issue a

series of Presidential Proclamations designating a handful of
national monuments in the western United States. Among
these designations are the six Proclamations that Mountain
States challenged in its complaint: (1) the Grand Canyon-
Parashant National Monument, a "geological treasure" that
encompasses an important watershed for the Colorado River
and the Grand Canyon in northwest Arizona, Proclamation
No. 7265, 65 Fed. Reg. 2825, 2825-26 (Jan. 18, 2000); (2) the
Canyons of the Ancients National Monument in southwest
Colorado, a "rugged landscape" containing "the highest
known density of archaeological sites in the Nation," Procla-
mation No. 7317, 65 Fed. Reg. 37,243 (June 13, 2000); (3) the
Cascade-Siskiyou National Monument, a "biological cross-
roads" in southwestern Oregon where the Cascade Range
intersects with adjacent ecoregions, Proclamation No. 7318,
65 Fed. Reg. 37,249 (June 13, 2000); (4) the Hanford Reach
National Monument, a habitat in southern Washington that is
the largest remnant of the shrub-steppe ecosystem that once
dominated the Columbia River basin, Proclamation No. 7319,
65 Fed. Reg. 37,253 (June 13, 2000); (5) the Ironwood Forest
National Monument, an arid terrain in southern Arizona
marked by rock art sites and other archaeological objects of
scientific interest, Proclamation No. 7320, 65 Fed. Reg. 37,259
(June 13, 2000); and (6) the Sonoran Desert National Monu-
ment, a desert ecosystem containing an array of biological,
scientific, and historic resources, Proclamation No. 7397, 66
Fed. Reg. 7354 (Jan. 22, 2001).

Mountain States alleged in its complaint that the President
acted unconstitutionally and ultra vires under the Property
Clause, U.S. Const., art. IV, s 2, cl. 2, in issuing these
Proclamations. In the district court Mountain States argued
that the President lacked the authority to designate the
monuments because the Property Clause confers on Congress
all powers relating to federal land. The focus of its argument
shifted, however, when the government invoked the Antiqui-
ties Act in its motion to dismiss the complaint under Rule
12(b)(2) and (b)(6). The government argued that because the
President had issued the Proclamations under the Antiquities
Act, judicial review was limited to whether the President

exercised his discretion in accordance with the standards in
the Act, and that review of the face of the Proclamations
sufficed to dispose of Mountain States' arguments. Mountain
States responded that factfinding was required to ensure that
the President had acted within the scope of his statutory
authority, and in particular that the court should review, in
light of the statutory standards, the basis on which the
President acted. According to Mountain States, Congress
intended only to preserve ruins, artifacts, and other man-
made objects situated on public lands--not the land itself--by
the smallest possible reservation of public land necessary for
protection of the monument.

The district court dismissed the complaint, ruling that the
Property Clause was not at issue and that under the Antiqui-
ties Act only facial review of Mountain States' arguments was
appropriate. Upon facial review, the court concluded that the
President had referenced the relevant statutory standards
and had not acted ultra vires.

II.

On appeal, Mountain States contends that, in light of the
presumption of judicial reviewability of executive action, sub-
stantive review was required to ensure that substantial evi-
dence existed to support the President's issuance of the
Proclamations. Arguing that the Proclamations' nature, size,
and scope facially contravene Congress's limited purpose,
which was to preserve rare and discrete man-made objects,
such as prehistoric ruins and ancient artifacts, Mountain
States further contends that the Presidential actions violate
other statutes governing the withdrawal of land from public
use and the protection of environmental values on federal
land. Hence, Mountain States maintains, the district court
erred in dismissing its complaint based only on facial review
of the Proclamations.

Our review of the grant of a motion to dismiss is de novo.
Wilson v. Pena, 79 F.3d 154, 160 n.1 (D.C. Cir. 1996). In
ruling on a motion to dismiss a complaint the district court
must draw all reasonable inferences in favor of the plaintiff,

Maljack Prods., Inc. v. Motion Picture Ass'n of Am., Inc., 52
F.3d 373, 374 (D.C. Cir. 1995), and must not dismiss the
complaint unless it appears beyond doubt that the plaintiff
can prove no set of facts in support of its claim that would
entitle it to relief. Conley v. Gibson, 355 U.S. 41, 45-46
(1957). Despite Federal Rule of Civil Procedure 8's simpli-
fied notice pleading standard, "the court need not accept
inferences drawn by plaintiffs if such inferences are unsup-
ported by the facts set out in the complaint. Nor must the
court accept legal conclusions cast in the form of factual
allegations." Kowal v. MCI Communications Corp., 16 F.3d
1271, 1276 (D.C. Cir. 1994). With this standard in mind, we
turn to Mountain States' contentions.

A.

The Antiquities Act provides, in relevant part:

The President of the United States is authorized, in his
discretion, to declare by public proclamation historic
landmarks, historic and prehistoric structures, and other
objects of historic or scientific interest that are situated
upon lands owned or controlled by the Government of the
United States to be national monuments, and may re-
serve as a part thereof parcels of land, the limits of which
in all cases shall be confined to the smallest area compat-
ible with the proper care and management of the objects
to be protected....

16 U.S.C. s 431. Presidential Proclamations designating na-
tional monuments have been challenged in only a handful of
cases; in each the court has upheld the President's action.1

__________
1 See Anaconda Copper Co. v. Andrus, 14 Env't Rep. Cas.
(BNA) 1853, 1855 (D. Alaska July 1, 1980) (President Carter's
creation of monuments in Alaska); Wyoming v. Franke, 58 F. Supp.
890, 896 (D. Wyo. 1945) (President Franklin Delano Roosevelt's
designation of the Jackson Hole National Monument); cf. Alaska v.
Carter, 462 F. Supp. 1155, 1159-60 (D. Alaska 1978) (holding that
President is not subject to environmental impact statement require-
ments when proclaiming monuments under the Antiquities Act).
See also Tulare County v. Bush, slip op. at 1, ___ F.3d at ____
(D.C. Cir. Oct. 18, 2002), also decided today.

The Supreme Court has considered the Antiquities Act in
three cases, each time confirming the broad power delegated
to the President under the Act. United States v. California,
436 U.S. 32 (1978); Cappaert v. United States, 426 U.S. 128,
141-42 (1976); Cameron v. United States, 252 U.S. 450
(1920).

Although the Supreme Court has never expressly discussed
the scope of judicial review under the Antiquities Act, the
Court has directly addressed the nature of review of discre-
tionary Presidential decisionmaking under other statutes.
The Court has highlighted the separation of powers concerns
that inhere in such circumstances and has cautioned that
these concerns bar review for abuse of discretion altogether.
United States v. George S. Bush & Co., for example, involved
s 336(c) of the Tariff Act of 1930, which provided that the
President:

shall by proclamation approve rates of duties and
changes in classification and in basis of value specified in
any report of the [Tariff] [C]ommission ... if in his
judgment such rates of duty and changes are shown by
such investigation of the commission to be necessary to
equalize such differences in costs of production.

310 U.S. 371, 376-77 (1940) (quoting 19 U.S.C. s 1336(a))
(emphasis added). The statute provided for judicial review
only of legal questions. The Court held that "[t]he Presi-
dent's method of solving the problem [of foreign exchange
value] was open to scrutiny neither by the Court of Customs
and Patent Appeals nor by us." Id. at 379. Similarly, in
Dalton v. Specter, the Court considered a statute--the De-
fense Base Closure and Realignment Act of 1990--that did
"not at all limit the President's discretion...." 511 U.S. 462,
476 (1994). Judicial review was unavailable under the Admin-
istrative Procedures Act ("APA") because the President is not
an "agency" within the meaning of that statute. Id. at 469-70
(citing Franklin v. Massachusetts, 505 U.S. 788, 800-01
(1992)). The Court then "assume[d] for the sake of argument
that some claims that the President has violated a statutory
mandate are judicially reviewable outside the framework of

the APA," id. at 474 (citation omitted), but it reiterated that
"such review is not available when the statute commits the
decision to the discretion of the President." Id. The Court
held, "[h]ow the President chooses to exercise the discretion
Congress has granted him is not a matter for our review."
Id. at 476.

A somewhat different case is presented, however, where
the authorizing statute or another statute places discernible
limits on the President's discretion. Judicial review in such
instances does not implicate separation of powers concerns to
the same degree as where the statute did "not at all limit" the
discretion of the President. Id. at 476; cf. California, 436
U.S. at 33. As this court observed in Chamber of Commerce
v. Reich, "Dalton's holding merely stands for the proposition
that when a statute entrusts a discrete specific decision to the
President and contains no limitations on the President's exer-
cise of that authority, judicial review of an abuse of discretion
claim is not available." 74 F.3d 1322, 1331 (D.C. Cir. 1996)
(footnote omitted). "Dalton is inapposite," the court ex-
plained, "where the claim instead is that the presidential
action ... independently violates" another statute. Id. at
1332. The court rejected the government's position "that the
Procurement Act grants the President such broad discretion
... that the case reduces only to a claim that the President
abused his discretion--a claim that [the court is] not autho-
rized to entertain." Id. at 1326. It would be "untenable," the
court stated, "to conclude that there are no judicially enforce-
able limitations on presidential actions, besides actions that
run afoul of the Constitution or which contravene direct
statutory prohibitions, so long as the President claims that he
is acting pursuant to" a statutory directive. Id. at 1332.
Rather, the court emphasized that " '[t]he responsibility of
determining the limits of statutory grants of authority ... is
a judicial function entrusted to the courts by Congress....' "
Id. at 1327 (quoting Stark v. Wickard, 321 U.S. 288, 310
(1944)). The court then held that the President had exceeded
his authority under the Procurement Act in issuing an Execu-
tive Order barring federal contractors from hiring replace-
ment workers during an economic strike because the Order

was preempted by an independent statute, the National La-
bor Relations Act. Id. at 1339.

Although the limits on Presidential authority at issue de-
rive from the Antiquities Act itself rather than an indepen-
dent statute, Reich is instructive, for the same policy consid-
erations apply. Courts remain obligated to determine
whether statutory restrictions have been violated. In re-
viewing challenges under the Antiquities Act, the Supreme
Court has indicated generally that review is available to
ensure that the Proclamations are consistent with constitu-
tional principles and that the President has not exceeded his
statutory authority. United States v. California, 436 U.S. at
35-36; Cappaert, 426 U.S. at 141-42; Cameron, 252 U.S. at
455-56.

The instant case, however, presents no occasion for the
court to engage in ultra vires review of the Proclamations
because Mountain States fails to allege any facts sufficient to
support its ultra vires claim. Mountain States alleges in its
complaint merely that the six Proclamations at issue exceed
the President's authority under the Property Clause and are
therefore "unconstitutional and ultra vires." Compl. p p 84-
104. No constitutional Property Clause claim is before us, as
the President exercised his delegated powers under the An-
tiquities Act, and that statute includes intelligible principles
to guide the President's actions. See Whitman v. Am. Truck-
ing Ass'ns, Inc., 531 U.S. 457, 474 (2000); Dalton, 511 U.S. at
473-74 & n.6. In responding to the government's reliance on
the Antiquities Act, Mountain States argued in the district
court that the President had included ineligible items within
the designation--namely land--whereas the legislative history
of the Act indicated, Mountain States asserted, that Congress
intended only that rare and discrete man-made objects, such
as prehistoric ruins and ancient artifacts, were to be designat-
ed. That argument fails as a matter of law in light of
Supreme Court precedent interpreting the Act to authorize
the President to designate the Grand Canyon and similar
sites as national monuments. See, e.g., Cameron, 252 U.S.
450. And to the extent that Mountain States seeks ultra
vires review under the Act, its complaint and statutory argu-

ments present no more than legal conclusions. At no point
has Mountain States presented factual allegations that would
occasion further review of the President's actions. Rather,
Mountain States' arguments contain only the bald assertion
that the President acted outside the bounds of his constitu-
tional and statutory authority. Although in reviewing the
dismissal of a complaint the court, as it must, takes "all the
factual allegations in the complaint as true," the court is "not
bound to accept as true a legal conclusion couched as a factual
allegation." Papasan v. Allain, 478 U.S. 265, 286 (1986)
(citation omitted). Moreover, the court is necessarily sensi-
tive 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. Dalton, 511 U.S. at 474-76;
Bush, 310 U.S. at 380.

Nothing in the record before us indicates any infirmity in
the challenged Proclamations. Each Proclamation identifies
particular objects or sites of historic or scientific interest and
recites grounds for the designation that comport with the
Act's policies and requirements. For example, Proclamation
7320, 65 Fed. Reg. at 37,259, states that the Ironwood Forest
National Monument "holds abundant rock art sites and other
archeological objects of scientific interest." And Proclama-
tion 7317, 65 Fed. Reg. at 37,244, states that the 164,000 acres
that comprise the Canyons of the Ancients National Monu-
ment "is the smallest area compatible with the proper care
and management of the objects to be protected."

To warrant further review of the President's actions, Moun-
tain States would have to allege facts to support the claim
that the President acted beyond his authority under the
Antiquities Act. See Fed. R. Civ. P. 8(a); Papasan, 478 U.S.
at 286; Browning v. Clinton, 292 F.3d 235 (D.C. Cir. 2002).
Having failed to do this, Mountain States presents the court
with no occasion to decide the ultimate question of the
availability or scope of review for exceeding statutory authori-
ty. The inadequacy of Mountain States' assertions thus
precludes it from showing that the district court erred in
declining to engage in a factual inquiry to ensure that the

President has complied with the statutory standards. Even
assuming the correctness of Mountain States' contention that
AFL-CIO v. Kahn, 618 F.2d 784 (D.C. Cir. 1979), and
Franke, 58 F. Supp. 890, require a detailed factual review in
some circumstances, those cases are not relevant in view of
the inadequacy of Mountain States' allegations.

B.

Mountain States further contends, much as did appellants
in Reich, that the Proclamations facially defy congressional
intent regarding the scope and purpose of "a host" of other
statutes enacted to protect various archeological and environ-
mental values. Appellants' Br. at 5. This contention, howev-
er, misconceives federal laws as not providing overlapping
sources of protection. Essentially, this contention parallels
Mountain States' view of the limited scope of power delegated
to the President under the Antiquities Act, specifically as not
embracing environmental values.

According to Mountain States, the Endangered Species
Act, 16 U.S.C. ss 1532-44 (2000), is the "sole means" for
protecting species and their habitat, and s 1133 of the Wil-
derness Act, 16 U.S.C. ss 1131-36 (2000), is the "sole means"
by which the federal government may withdraw land from
public use to protect scenic beauty, natural wonders, or
wilderness values. Appellant's Br. at 36, 37. Yet the Park
Service Organic Act, 16 U.S.C. 1-4 (2000), provides just one
example of a statute that serves both purposes. United
States v. Brown, 552 F.2d 817, 822 (8th Cir. 1977). So, too,
the Migratory Bird Treaty Act, 16 U.S.C. ss 703-12 (2000),
the National Wildlife Refuge System Act, 16 U.S.C. s 668dd
(2000), the National Forest Management Act of 1976, Pub. L.
No. 94-588, 90 Stat. 2949 (codified as amended in scattered
sections of 16 U.S.C.) (2000), and the Bald and Golden Eagle
Protection Act, 16 U.S.C. s 668 (2000), all guard endangered
species and their habitat. The Federal Land Policy and
Management Act ("FLPMA"), 43 U.S.C. s 1701, the National
Forest Management Act, and the Multiple Use Sustained
Yield Act, 16 U.S.C. ss 528-29, 531 (2000), also protect scenic

and wilderness values. Consequently, Mountain States' con-
tention that the Antiquities Act must be narrowly construed
in accord with Mountain States' view of Congress's original
intent because Congress asserted its Property Clause author-
ity in enacting the FLPMA again misses the mark.

Accordingly, we affirm the dismissal of the complaint.