This Week At The Ninth: The Antiquities Act And Anti-SLAPP

• Jurisdiction: United States,Federal,Oregon,California
• Law Firm: Morrison & Foerster LLP
• Subject Matter: Government, Public Sector, Litigation, Mediation & Arbitration, Constitutional & Administrative Law, Court Procedure, Sovereign Immunity: Public Sector Government
• Author: Mr James R. Sigel
• Published date: 12 May 2023

This week, the Court considers the President's authority under the Antiquities Act to preclude logging on federal lands that another federal statute contemplated would generally be used as timberlands, and it addresses how federal courts can consider extrinsic evidence when resolving motions to strike under California's anti-SLAPP statute.

MURPHY CO. v. BIDEN

The Court upholds the President's proclamation expanding the Cascade-Siskiyou National Monument and thereby reducing available timberland in Oregon.

The panel: Judges McKeown, Tallman, and Rakoff (S.D.N.Y), with Judge McKeown writing the majority opinion and Judge Tallman concurring in part and dissenting in part.

Key highlight: "[T]he statute directs the Department to determine which portions of the land should be set aside for logging and which should be reserved. The Department's duty to oversee the lands is obligatory ('shall be managed'), but treating every parcel as timberland is not."

Background: In 2017, President Obama issued a proclamation expanding the Cascade-Siskiyou National Monument in Oregon. He did so by invoking his authority under the Antiquities Act, which was enacted in 1906 and grants the President authority to create national monuments to protect certain federal lands. As a result, logging in this expanded area of the Cascade-Siskiyou National Monument was prohibited.

In response, Murphy Timber Company brought suit against the President, seeking declaratory and injunctive relief. Murphy claimed that the proclamation violated the Oregon and California Railroad and Coos Bay Wagon Road Grant Lands Act ("O&C Act"). Enacting in 1937, the O&C Act charged the Department of the Interior with managing the sale of timber in certain federal lands, some of which were covered by the proclamation. The district court concluded it had jurisdiction over the case, but granted the President's motion for summary judgment.

Result: The Ninth Circuit affirmed. First, the Court agreed that Murphy's suit was not barred by sovereign immunity. It relied on the exception to sovereign immunity applicable where executive branch officials have allegedly taken ultra vires actions extending beyond their statutory authority and implicating constitutional concerns. "Here," the Court reasoned "the core of Murphy's claim'that the President violated separation of powers by directing the Secretary to act in contravention of a duly enacted law' could be considered constitutional and therefore reviewable."

The...