F I L E D

United States Court of Appeals

Tenth Circuit

FEB 4 2004

PATRICK FISHER

Clerk

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

BIODIVERSITY ASSOCIATES and

BRIAN BRADEMEYER,

Plaintiffs-Appellants,

SIERRA CLUB and THE

WILDERNESS SOCIETY,

Plaintiffs,

v. No. 03-1002

RICK D. CABLES, in his official

capacity as Regional Forester of the

Rocky Mountain Region of the U.S.

Forest Service; DALE N.

BOSWORTH, in his official capacity

as Chief of the U.S. Forest Service;

JOHN C. TWISS, in his official

capacity as Supervisor of the Black

Hills National Forest; U.S. FOREST

SERVICE,

Defendants-Appellees,
*Mr. Cables, Mr. Bosworth and Mr. Gabriel, who are the successors in 

office of Lyle K. Laverty, Michael Dombeck and Darrell Cruea, respectively,

have been substituted as parties pursuant to Fed. R. App. 34(c)(2).

-2-

LARRY GABRIEL, in his official

capacity as Secretary of the South

Dakota Department of Agriculture;

BLACK HILLS REGIONAL

MULTIPLE USE COALITION;

BLACK HILLS FOREST RESOURCE

ASSOCIATION; MEADE COUNTY,

LAWRENCE COUNTY, and

PENNINGTON COUNTY, all political

subdivisions the State of South

Dakota, *

 Defendants-Intervenors-Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

(D.C. No. 99-N-2173)

Ray Vaughn of WildLaw, Montgomery, Alabama (Steve Novak of WildLaw,

Asheville, North Carolina, with him on the briefs), for Plaintiffs-Appellants.

Kevin Traskos, Assistant United States Attorney (John W. Suthers, United States

Attorney, with him on the brief), Denver, Colorado, for Defendants-Appellees.

Diane Best, Assistant Attorney General (Lawrence E. Long, Attorney General;

Charles D. McGuigan, Assistant Attorney General, with her on the brief), State of

South Dakota, Pierre, South Dakota, for Defendants-Intervenors-Appellees.

Before MURPHY , Circuit Judge, BRORBY , Senior Circuit Judge, and

McCONNELL , Circuit Judge.
-3-

McCONNELL , Circuit Judge.

For many years, Congress has been unable to come to agreement on

nationwide legislation to address the dangers of insect infestation and fire in the

national forests. In 2002, however, in a rider to a supplemental appropriations act

for the war on terrorism, Congress passed legislation applicable to selected

sections of the Black Hills National Forest in South Dakota and nowhere else,

permitting logging and other clearance measures as a means of averting forest

fires. The legislation specifies forest management techniques for these lands in

minute detail, overrides otherwise applicable environmental laws and attendant

administrative review procedures, and explicitly supersedes a settlement

agreement between the Forest Service and various environmental groups

regarding management of these lands. 

The question presented is whether the extraordinary specificity of this

legislation, coupled with its displacement of a settlement agreement, amounts to

congressional violation of the Constitution’s separation of powers, by invading

the province of the executive branch, the judicial branch, or both. We hold that it

does not. Article IV, § 3, cl. 2 expressly grants Congress “Power to dispose of

and make all needful Rules and Regulations respecting the Territory or other

Property belonging to the United States.” With respect to this power – like most
1

See Robert B. Keiter, Keeping Faith with Nature: Ecosystems,

Democracy, and America’s Public Lands 136, 140-41, 155 (2003); Marlin A.

Johnson, Changed Southwestern Forests: Resource Effects and Management

Remedies, at <http://www.cpluhna.nau.edu/Research/changed_southwestern_

forests.htm> (last visited Dec. 23, 2003); W. Wallace Covington et al., Restoring

Ecosystem Health in Ponderosa Pine Forests of the Southwest, 95 Journal of

Forestry, April 1997, 23, 23, 27 tbl.1, corrected adaptation available at

<http://www.cpluhna.nau.edu/Research/pinerestoration.htm> (last visited Dec. 23,

2003); see generally Robert E. Keane et al., Cascading Effects of Fire Exclusion

in Rocky Mountain Ecosystems: A Literature Review (U.S. Forest Serv. Gen.

Technical Report RMRS-91, 2002).

2Researchers have found that pre-European human inhabitants of North

America used fire and other techniques to alter the “natural” character of the

(continued...)

-4-

of its enumerated powers – Congress is permitted to be as specific as it deems

appropriate. Moreover, settlement agreements between private litigants and the

executive branch cannot divest Congress of its constitutionally vested authority to

legislate.

BACKGROUND

The first law involved in this case is the law of unintended consequences. 

Fire suppression efforts conducted over more than a century in large parts of the

West have had the unintended effect of transforming forests from savannah-like

grasslands studded with well-spaced large, old, fire-resistant trees, into thicker,

denser forests. 1

 Prior to the arrival of Europeans, these forests experienced

frequent, but relatively mild, forest fires caused primarily by lightning and Native

American activity. 2 These fires would clear the forest floor of undergrowth and
2

(...continued)

forests. See Keiter, supra note 1, at 136 & 376-77 n.15; Stephen J. Pyne, A

Cultural History of Wildland and Rural Fire 46-50, 66-83 (1982); Homer

Aschmann, Aboriginal Use of Fire, in Proceedings of the Symposium on the

Environmental Consequences of Fire and Fuel Management in Mediterranean

Ecosystems 132, 133, 135, 137-38 (Harold A. Mooney & C. Eugene Conrad

technical coordinators, U.S. Forest Serv. Gen. Technical Report WO-3, 1977);

George E. Gruell, Indian Fires in the Interior West: A Widespread Influence, in

Proceedings of the Symposium and Workshop on Wilderness Fire 68 (James E.

Lotan et al. technical coordinators, U.S. Forest Serv. Gen. Technical Report INT182, 1985); Henry T. Lewis, Why Indians Burned: Specifics Versus General

Reasons, in id. 75.

Some speculate that before the arrival of the ancestors of Native Americans

on this continent, forests were denser, and that it was the Native Americans’

deployment of fire that created the savannah-like forests that European explorers

encountered and that are now deemed “natural.” See, e.g., Pyne, supra, at 79

(“[T]he general consequence of the Indian occupation of the New World was to

replace forested land with grassland or savannah, or, where the forest persisted, to

open it up and free it from underbrush.”); Nancy Langston, Forest Dreams, Forest

Nightmares: The Paradox of Old Growth in the Inland West 46-48 (1995)

(agreeing that Native American fires helped to open up the forest, but denying

that they were primarily responsible for creating the grasslands). But see, e.g.,

Thomas W. Swetnam & Christopher H. Baisan, Historical Fire Regime Patterns

in the Southwestern United States since AD 1700, in Proceedings of the Second

La Mesa Fire Symposium 11, 29 (C.D. Allen ed., U.S. Forest Serv. Gen.

Technical Report RM-286, 1996) (arguing that because fuels and climatic

conditions controlled the extent of forest fires more than ignition sources did,

Native American activity in the Southwest did not significantly alter preexisting

fire patterns).

3

See Keane et al., supra note 1, at 14-15; Keiter, supra note 1, at 141;

(continued...)

-5-

saplings while leaving the larger trees unscathed. The denser forests produced by

fire suppression accumulate more combustible fuel and are more vulnerable to

infestations, such as mountain pine beetles, and to fires far more intense and

devastating than those of the pre-settlement era. 3 Forestry experts are divided as
3

(...continued)

Langston, supra note 2, at 296-97.

4Keiter, supra note 1, at 141 & 378 n.27. Compare Michael Axline, Forest

Health and the Politics of Expediency, 26 Envtl. L. 613, 626-39 (1996) (arguing

that there is no forest health emergency because fire and insect infestation are

natural parts of forest ecology, and dismissing tree-thinning measures as

motivated by logging interests), with James K. Agee, Alternatives for

Implementing Fire Policy, in Proceedings: Symposium on Fire in Wilderness and

Park Mangement 107, 108-111 (James K. Brown et al. technical coordinators,

U.S. Forest Serv. Gen. Technical Report INT-320, 1995) (warning that given the

current unnatural forest densities, it would be foolish to rely on natural fires

without prescribed burns to reproduce natural forest ecosystems), and with

Covington et al., supra note 1, at 24-25 (noting that because prescribed burns are

difficult to control and unpredictable in their results, they must be supplemented

by tree thinning and deadwood removal); Johnson, supra note 1 (recommending a

mixed strategy using natural fires, prescribed burns, and tree thinning). See also

Langston, supra note 2, at 260-63 (expressing doubt about the possibility of

successfully engineering a return to the old forests by any method).

-6-

to the response to these conditions. Some advocate a hands-off approach,

allowing fire (outside areas of human habitation) to reconstitute the forests in

their natural state; some advocate controlled burns; and some advocate thinning

and fuel removal. 4

 The role of commercial logging as part of the last approach

has been particularly controversial.

From 1983 to 1997, the Beaver Park Roadless Area, a relatively pristine

portion of the Black Hills National Forest, was free of logging activity, apparently

because the land management plan then in place did not allow it. In 1997,

however, the Forest Service approved a new Black Hills National Forest plan

revision (the “1997 Revised Plan”), which allowed logging in a significant
5At the time of these events, BCA was known as Biodiversity Associates. 

For the sake of simplicity, we use its current name.

6The Wilderness Act requires that a wilderness area have “at least five

thousand acres of land or . . . sufficient size as to make practicable its

preservation and use in an unimpaired condition.” 16 U.S.C. § 1131(c)(3). Since

recently logged areas are not eligible for wilderness protection, the proposed

logging would decrease the eligible acreage of the Beaver Park Roadless Area

below the 5,000-acre threshold, potentially compromising its eligibility for

(continued...)

-7-

portion of Beaver Park’s 5,109 acres. It subsequently began preparations for a

timber sale in an area called the “Veteran/Boulder Project Area,” which included

most of the Beaver Park land newly authorized for logging. Especially in a part

of the area known as Forbes Gulch, a major purpose of the logging was to counter

an infestation of mountain pine beetles. The Forest Service proceeded to clear

various administrative hurdles in preparation for the Veteran/Boulder timber sale,

issuing a final environmental impact statement on the proposed sale and records

of decision approving timber harvest both inside and outside the Beaver Park

Roadless Area.

Several environmental groups, including the Sierra Club, the Wilderness

Society, and Appellant Biodiversity Conservation Alliance (BCA), 5

 objected

strenuously to the timber sale. The Beaver Park Roadless Area was one of the

last areas in the Black Hills National Forest still eligible for designation as a

wilderness, and logging activity would likely disqualify it from being designated

as such. 6 The environmental groups were also concerned about the effects that
6

(...continued)

wilderness designation for the indefinite future.

-8-

the Veteran/Boulder timber sale would have on the viability of the northern

goshawk population in the Forest. Accordingly, they brought administrative

challenges to both the particular project and the recently revised plan under which

it was approved.

The groups met with mixed success in their administrative challenges. 

Their challenge to the Veteran/Boulder sale was initially denied in its entirety,

though the sale was stayed pending review of the Revised Plan itself. Then, on

October 12, 1999, the Chief of the Forest Service upheld the 1997 Revised Plan in

most respects, but found that there was inadequate support in the record for the

conclusion that the Revised Plan’s proposed changes would not threaten the

viability of several species, including the northern goshawk. He therefore ordered

further research into that question. In the meanwhile, the Forest Service did not

stop all pending projects, but instead provided interim directions that would apply

until the identified defects in the Revised Plan were remedied. As a result, when

the stay on the sale expired, the Forest Service went forward and put the timber

out for bid.

The Sierra Club, the Wilderness Society, and BCA brought suit challenging

the sale in federal district court, claiming that the Forest Service could not rely on
-9-

an “illegal” plan to justify project-level decisions under that plan. Specifically,

they argued that the final environmental impact statement’s conclusion that the

Veteran/Boulder sale would not affect the viability of the northern goshawk was

based on the very findings in the 1997 Revised Plan that had been disapproved.

In the waning days of the Clinton Administration, in September of 2000,

the Forest Service signed a settlement agreement with the plaintiff groups, under

which it agreed not to allow any tree cutting in the Beaver Park Roadless Area, at

least until the Service approved a new land and resource management plan

remedying the defects of the 1997 plan. The settlement was approved by the

United States District Court for the District of Colorado, which had jurisdiction

over the lawsuit because the relevant Forest Service offices were in Colorado.

The process of approving a new plan took much longer than anticipated. 

The record does not reveal whether the mountain pine beetles of western South

Dakota were aware of the settlement agreement or participated in the plan

revision process, but it is clear that they did not wait for authorization from

Washington before undertaking an expanded program of forest resource

exploitation. Just two years after the initial Veteran/Boulder environmental

impact statement, the mountain pine beetle infestation in this section of the Black

Hills had reached epidemic proportions. According to Forest Service estimates,

the pine beetles killed 114,000 trees in 2002, as compared to only 15,000 in 1999. 
7Mr. Brademeyer had represented the Sierra Club in the settlement

modification negotiations, but resigned after higher-ups in the Sierra Club agreed

with the Forest Service to allow certain tree-cutting activities in the Black Hills

National Forest, which he considered to be a “suspension of law.” Brademeyer

Decl. ¶ 13, App. 299-300.

-10-

This convinced forest managers that immediate harvesting of deadwood and

infested trees, which the settlement agreement prohibited, was necessary to guard

against further spread of the infestation and potentially disastrous forest fires.

Given that approval of a corrected resource management plan was still a

long way off, the Forest Service and the local South Dakota interests that shared

its concerns had a choice: they could either attempt to obtain consent to the tree

cutting from the original parties to the agreement, or with the help of South

Dakota’s congressional delegation, they could attempt to overturn the settlement

agreement’s prohibition by legislation. The Forest Service began by trying the

consensual approach. Perhaps spurred by the threat of intervention from

Congress, the signatories to the settlement met with the Forest Service to discuss

changing the agreement in light of the mountain pine beetle problem. The Forest

Service reached agreement with the Sierra Club and the Wilderness Society, but

BCA and Brian Brademeyer, then chair of the Black Hills Sierra Club, refused to

agree to proposed modifications in the settlement. 7 Stymied, South Dakota

interests turned to Congress for a legislative solution. 
-11-

For some years, Congress had been considering national legislation that

would streamline the process of obtaining environmental approval of logging and

other clearance projects in fire- and disease-threatened national forests; but these

efforts were caught up in the debate over the role of commercial logging in forest

restoration. By limiting legislative action to a narrow geographical area,

however, and with the acquiescence of some influential environmental groups and

the active support of the state’s congressional delegation, Congress was able to

reach agreement on a bill that would permit logging and other measures in the

Beaver Park Roadless Area. In a rider to an unrelated appropriations bill,

Congress enacted into law essentially the terms of the modified agreement

negotiated between the Forest Service and the Sierra Club and the Wilderness

Society. See Supplemental Appropriations Act for Further Recovery From and

Response to Terrorist Acts on the United States, Pub. L. No. 107-206, § 706, 116

Stat. 820, 864 (2002) (the “706 Rider” or “Rider”). The Rider, which was signed

into law on August 2, 2002, required the Forest Service to take a variety of

actions that violated the settlement agreement, see, e.g. , id. § 706(d)(5), 116 Stat.

at 867, and prohibited judicial review of those actions, id. § 706(j), 116 Stat. at

868. It also specifically referred to the settlement agreement, and stated that the

agreement should continue in effect to the extent it was not preempted by the

Rider. See id. , 116 Stat. at 869.
-12-

After the Rider was passed, BCA and Mr. Brademeyer (hereinafter referred

to, jointly, as “BCA”) went to the federal district court in Colorado to obtain an

order requiring continued enforcement of the settlement agreement, claiming that

the 706 Rider unconstitutionally trenched on both the executive and judicial

branches. The district court denied the motion, and BCA appealed.

DISCUSSION

I

As a preliminary matter, we must determine the scope of this Court’s

jurisdiction over this case. Although we would normally have jurisdiction under

28 U.S.C. § 1291, the 706 Rider limits that jurisdiction:

Due to the extraordinary circumstances present here,

actions authorized by this section shall proceed

immediately and to completion notwithstanding any

other provision of law including, but not limited to,

NEPA and the National Forest Management Act (16

U.S.C. 1601 et seq.). Such actions shall not be subject

to the notice, comment, and appeal requirements of the

Appeals Reform Act, (16 U.S.C. 1612 (note), Pub. Law

No. 102-381 sec. 322). Any action authorized by this

section shall not be subject to judicial review by any

court of the United States.

Rider § 706(j), 116 Stat. at 868 (emphasis added). At oral argument, BCA

contended that the italicized language does not preclude us from considering the

constitutionality of the Rider itself. The government disagrees, arguing that we
-13-

have jurisdiction at most to determine whether the denial of jurisdiction, not the

entire Rider, is constitutional.

In determining the extent of our jurisdiction, we must start with the precise

language of the Rider, keeping in mind that such limitations of jurisdiction are to

be construed narrowly to avoid constitutional problems. See Johnson v. Robison ,

415 U.S. 361, 366-67 (1974). What is prohibited here is judicial review of “[a]ny

action authorized by” the Rider. Rider § 706(j), 116 Stat. at 868. BCA, however,

does not seem to be seeking judicial review of any specific actions already taken

or soon to be taken by the Forest Service. Rather, it has moved for enforcement

of the settlement agreement in the face of the new Congressional legislation. 

Admittedly, the basis for the lawsuit, and the alleged injury that gives BCA

standing, is the prospect of Forest Service action pursuant to the Rider and in

violation of the settlement agreement. Yet at this point, no past or prospective

actions of the Forest Service are directly at issue. The question before us is

simply whether the settlement agreement has continuing validity in the face of

Congress’s intervening act. 

The situation here is thus different from one in which the court is asked to

hold a party who has violated an injunction in contempt. In such a case, the

“actions” taken by a party to the injunction are directly at issue. BCA’s motion is

more analogous to a suit for declaratory judgment holding the Rider itself to be
-14-

unconstitutional. Because BCA seeks judicial review of the congressional act

mandating that the settlement agreement be violated, rather than judicial review

of the Forest Service’s acts authorized by the Rider, the jurisdictional bar does

not apply. See Nat’l Coalition to Save Our Mall v. Norton , 269 F.3d 1092, 1095

(D.C. Cir. 2001). We therefore must reach the question of whether the Rider is

constitutional. Because this question is purely legal, our review is de novo. See

United States v. Pompey , 264 F.3d 1176, 1179 (10th Cir. 2001).

II

BCA’s chief argument is that the Rider trenches on the Executive by giving

the Forest Service marching orders so detailed that they go beyond merely

“passing new legislation” to interpreting the law, which is “the very essence of

‘execution’ of the law.” Bowsher v. Synar , 478 U.S. 714, 733 (1986). However,

they never clearly explain what, in their view, separates permissible legislation

from impermissible interpretation. The main flaw they find in the Rider is its

extreme particularity, making it seem as if their theory is that extreme

particularity by itself infringes the Executive’s power to enforce and execute the

law. At times, though, they make a more limited claim: that while specificity is

not per se unconstitutional, at least in this case it is “indicative” of the fact that

Congress has unconstitutionally “direct[ed] how law is to be implemented,” rather

than (constitutionally) changing the applicable law. Appellants’ Reply Br. 5. 
-15-

This more limited claim suggests that it is particularity in combination with some

other feature that raises the constitutional problem. We consider each theory in

turn.

A

BCA bases its argument on a handful of cases in which the Supreme Court

has held that the legislative branch cannot play a role in the interpretation and

execution of the law. See, e.g. , Metro. Washington Airports Auth. v. Citizens for

the Abatement of Aircraft Noise, Inc. , 501 U.S. 252, 271-72 (1991); Bowsher , 478

U.S. at 725-26; INS v. Chadha , 462 U.S. 917, 951-52 (1983); Springer v.

Philippine Islands , 277 U.S. 189, 201-02 (1928). There is no basis, however, for

BCA’s assertion that the sheer specificity of the 706 Rider takes it beyond the

realm of Congress’s legislative powers. Certainly the cases cited above do not

support this position. In each of those cases, Congress sought a role for itself in

the execution of the laws, beyond enactment of legislation, through mechanisms

such as a one-house legislative veto or the vesting of law-executing powers in

officers appointed by, or accountable to, Congress. In Bowsher , the Court held

that the Comptroller General, who serves at the pleasure of Congress, could not

be the officer who determined what spending cuts would be made in order to

reduce the deficit under the Gramm-Rudman-Hollings Act of 1985. 478 U.S. at

717-18, 736. Springer held that it violated separation of powers for members of
-16-

the legislative branch to be directors of government-owned businesses. 277 U.S.

at 202-03. Similarly, Metropolitan Washington Airports struck down an

arrangement whereby a board of review composed of members of Congress had

authority to veto key acts of the Metropolitan Washington Airport Authority. 501

U.S. at 275-77. Chadha struck down a law that delegated authority to the

Attorney General to suspend certain deportations, but allowed either house of

Congress acting alone to veto the Attorney General’s decisions. 462 U.S. at 923,

944-59. None of these cases, or any others of which we are aware, suggest that

Congress is required to speak with some minimum degree of generality, so as to

leave play for the Executive to exercise discretion in interpreting the law. Rather,

the Constitution expressly leaves it up to Congress to determine how specific it

may deem it “necessary and proper” for the laws to be. U.S. Const. art. I, § 8, cl.

18. The cases cited above have simply forbidden Congress, or its members or

servants, from exerting legal authority without observing the formalities for the

passage of legislation under the Constitution: “bicameral passage followed by

presentment to the President.” Bowsher , 478 U.S. at 726 (quoting Chadha , 462

U.S. at 954-55). This is a structural and institutional means of guaranteeing that

Congress stays within the bounds of legislating, and is far superior to asking

courts to police the shades of gray between the poles of general and specific. 
-17-

To be sure, the Constitution imposes certain specific constraints on the

power of Congress to legislate with overmuch particularity. The Bill of Attainder

Clause, U.S. Const. art. I, § 9, cl. 3, and the “uniform Duties, Imposts, and

Excises” Clause, id., § 8, cl. 1, are examples. See Nixon v. Adm’r of Gen. Servs. ,

433 U.S. 425, 468-73 (1977); United States v. Ptasynski , 462 U.S. 74, 80-85

(1983). Due process and equal protection principles similarly prevent Congress

from acting with respect to specific persons or groups in some contexts, and

specificity may be relevant to determining whether Congress has trenched on the

Executive’s ability to carry out its specifically enumerated executive powers. 

Nixon , 433 U.S. at 443. But when Congress is exercising its own powers with

respect to matters of public right, the executive role of “tak[ing] Care that the

Laws be faithfully executed,” U.S. Const. art. II, § 3, is entirely derivative of the

laws passed by Congress, and Congress may be as specific in its instructions to

the Executive as it wishes. Indeed, as the Supreme Court has noted, Congress

may even pass legislation governing “a legitimate class of one.” Nixon , 433 U.S.

at 472.

In the instant case, none of the Constitution’s explicit restrictions on

specificity apply. The Property Clause states that “Congress shall have Power to

dispose of and make all needful Rules and Regulations respecting the Territory or

other Property belonging to the United States.” U.S. Const. art. IV, § 3, cl. 2. 
-18-

The Supreme Court has “repeatedly observed that the power over the public land

thus entrusted to Congress is without limitations.” Kleppe v. New Mexico , 426

U.S. 529, 539 (1976) (internal brackets and quotation marks omitted); see also

Wyoming v. United States , 279 F.3d 1214, 1227 (10th Cir. 2002). It would be

difficult if not impossible to control the use of federal lands without reference to

specific actions affecting specific tracts of land, and we see no reason why

Congress should be forced to avoid such directives. See Save Our Mall , 269 F.3d

at 1097 (noting that particularity is especially unproblematic when addressing

unique public amenities). The Supreme Court’s remark in Metropolitan

Washington Airports seems relevant here:

Because National and Dulles are the property of the

Federal Government and their operations directly affect

interstate commerce, there is no doubt concerning the

ultimate power of Congress to enact legislation defining

the policies that govern those operations. Congress

itself can formulate the details , or it can enact general

standards and assign to the Executive Branch the

responsibility for making necessary managerial decisions

in conformance with those standards.

501 U.S. at 271-72 (emphasis added).

Thus, BCA is mistaken when it argues that Congress has arrogated power to

itself at the expense of the executive branch because it “specifically ordered the

Executive Branch to carry out a duty which had been expressly delegated to the

Department of Agriculture, the management of the Black Hills National Forest.” 
-19-

Appellants’ Br. 23. To give specific orders by duly enacted legislation in an area

where Congress has previously delegated managerial authority is not an

unconstitutional encroachment on the prerogatives of the Executive; it is merely

to reclaim the formerly delegated authority. Such delegations, which are

accomplished by statute, are always revocable in like manner; they cannot extend

the domain reserved by the Constitution to the Executive alone. See Stop H-3

Ass’n v. Dole , 870 F.2d 1419, 1435 n.24 (9th Cir. 1989).

B

We now turn to consider the view that although the 706 Rider’s specificity

is unobjectionable in the abstract, it is still unconstitutional because it attempts to

mandate specific results without changing the underlying environmental laws. 

BCA relies for this view chiefly on Robertson v. Seattle Audubon Society , where

the Supreme Court upheld a similar provision because it “compelled changes in

law, not findings or results under old law.” 503 U.S. 429, 438 (1992); see also

Apache Survival Coalition v. United States , 21 F.3d 895, 904 (9th Cir. 1994);

Stop H-3 Ass’n , 870 F.2d at 1434 (upholding a statute authorizing construction of

a highway despite an environmental regulation because it “does not interpret [the

relevant regulation’s] requirements but rather exempts H-3 from them”);

Armuchee Alliance v. King , 922 F. Supp. 1541, 1550 (N.D. Ga. 1996).
-20-

Far from supporting BCA’s position, however, Seattle Audubon rejects an

argument very much like its own. The case concerned logging litigation to which

Congress responded by passing the Northwest Timber Compromise of 1990,

applicable only to timber sales entered before September 30, 1990, in thirteen

national forests in the Pacific Northwest. The key section of that legislation

stated that “Congress determines and directs that management of areas according

to [new rules set forth in the Northwest Timber Compromise] . . . meet[s] the

statutory requirements that are the basis for [the litigation].” 503 U.S. at 434-35. 

The Ninth Circuit, below, had held that this did not “establish new law, but

direct[ed] the court to reach a specific result and make certain factual findings

under existing law in connection with two cases pending in federal court,” thus

encroaching on the judicial branch under United States v. Klein , 80 U.S. (13

Wall .) 128 (1872). Seattle Audubon Soc’y v. Robertson , 914 F.2d 1311, 1316 (9th

Cir. 1990) ( Seattle Audubon I ). In reversing, the Supreme Court criticized the

Ninth Circuit’s focus on the form of the enactment; instead, it looked to the legal

effect of the Seattle Audubon provision:

We conclude that subsection (b)(6)(A) compelled

changes in law, not findings or results under old law. 

Before subsection (b)(6)(A) was enacted, the original

claims would fail only if the challenged harvesting

violated none of five old provisions. Under subsection

(b)(6)(A), by contrast, those same claims would fail if

the harvesting violated neither of two new provisions. 

Its operation, we think, modified the old provisions.
-21-

Seattle Audubon , 503 U.S. at 438. 

This case follows a fortiori from Seattle Audubon . Just as in Seattle

Audubon , the 706 Rider has the practical effect of changing the scope of the

government’s legal duties. Before the Rider, the Forest Service was prohibited by

law from cutting trees without meeting various requirements of various

environmental laws; after the Rider, it is required to cut trees in the Black Hills

“notwithstanding” those laws. Rider § 706(j), 116 Stat. at 868. But the 706 Rider

lacks the problematic language – “the Congress determines and directs that

management of areas according to [new rules set forth in the Northwest Timber

Compromise] . . . meet[s] the statutory requirements that are the basis for [the

litigation]” – which the Ninth Circuit construed as interpreting rather than

amending the law. Seattle Audubon I, 914 F.2d at 1316. By contrast, the 706

Rider orders that certain actions be taken “notwithstanding” the requirements of

certain prior-enacted laws, thus effectively replacing the old standards, in this one

case, with new ones. Similar statutes have been upheld as constitutionally valid

amendments of the underlying law. See Save Our Mall , 269 F.3d at 1097; Apache

Survival Coalition , 21 F.3d at 904; Stop H-3 Ass’n , 870 F.2d at 1434. Thus, we

need not decide whether directing specific actions without changing the law

would be an unconstitutional attempt by Congress to usurp the Executive’s role in
8We underscore that by relying on the fact that the 706 Rider changed

applicable law, we do not mean to suggest, any more than did Seattle Audubon,

that if the Rider had not changed the law it would necessarily have run afoul of

United States v. Klein. By interpreting the provision at issue in Seattle Audubon

as a change in the law, the Supreme Court expressly avoided addressing any such

constitutional question. 503 U.S. at 441. Thus, if a provision cannot be read as a

change in the law, the most that follows from this case or Seattle Audubon is that

the constitutional question of whether there is a Klein violation must be faced –

not that it must be answered in the affirmative.

-22-

interpreting the law. 8

 In accordance with the counsel in Bowsher , Congress has

influenced the execution of the law here only “indirectly – by passing new

legislation.” 478 U.S. at 734 (citing Chadha , 462 U.S. at 958).

III

Next, BCA claims that the 706 Rider encroaches on the Judiciary, in three

ways: (1) by disturbing final dispositions of cases in violation of Plaut v.

Spendthrift Farms, Inc. , 514 U.S. 211 (1995); (2) by prescribing rules of decision

to the Judiciary in pending cases, in violation of United States v. Klein , 80 U.S.

(13 Wall.) 128 (1871); and (3) by vesting review of judicial decisions in the

executive branch, in violation of the rule in Hayburn’s Case , 2 U.S. (2 Dall.) 408

(1792). We reject all three claims.

A

BCA’s first contention, that the 706 Rider impermissibly sets aside a final

judicial disposition, depends on a crucial but questionable premise: that the

settlement agreement is actually a judicial disposition rather than a mere private
-23-

agreement between the parties. Although the district court did incorporate the

settlement agreement by reference in its order dismissing the suit, it nevertheless

preferred the latter characterization in addressing BCA’s current request for

injunctive relief:

This case doesn’t even rise to the level where the Court

executed a consent decree. This is a case where the

parties sat down among themselves and settled the case. 

The more proper analogy here is to an executory

settlement contract. It is true that the Court approved

the settlement agreement, but that is different from a

consent decree.

. . . . 

. . . [A]s far as I’m concerned, the Court’s

approval of the settlement agreement is entitled to very,

very little weight, because it was negotiated among the

parties.

Tr. of Mot. Hr’g dated Dec. 26, 2002, at 12, App. 405. Nevertheless, because the

settlement agreement was a judicial disposition in form if not in substance, we

assume for purposes of this appeal that it is entitled to the same constitutional

protection that it would have if the court had decided its terms.

1

Within the scope of its enumerated powers, Congress has authority to enact

laws to govern matters of public right, such as the management of the public

lands, and authority to change those laws. Even when the Judiciary has issued a

legal judgment enforcing a congressional act – for example, by a writ of

injunction – it is no violation of the judicial power for Congress to change the
-24-

terms of the underlying substantive law. The purpose of an injunction is to define

and enforce legal obligations, not to freeze them into place. Thus, when Congress

changes the laws, it is those amended laws – not the terms of past injunctions –

that must be given prospective legal effect. See, e.g. , Miller v. French , 530 U.S.

327, 347-50 (2000); Hall v. Beals , 396 U.S. 45, 48 (1969); System Fed’n No. 91 v.

Wright , 364 U.S. 642, 648-650 (1961); Am. Steel Foundries v. Tri-City Cent.

Trades Council , 257 U.S. 184, 201-07 (1921).

The Supreme Court applied this principle to dispose of a contention very

similar to BCA’s as long ago as 1855, in the venerable case of Pennsylvania v.

Wheeling & Belmont Bridge Co. , 59 U.S. (18 How.) 421 (1855). In that case,

Pennsylvania had previously brought suit to enjoin the construction of a bridge

over the Ohio River, which would obstruct access to Pennsylvania’s ports. The

Supreme Court eventually granted an injunction requiring the bridge to be

removed or raised. It reasoned that because Congress had “regulated the

navigation of the Ohio River, and had thereby secured to the public, by virtue of

its authority, the free and unobstructed use of the same,” the Virginia-authorized

bridge impeding travel on the Ohio River was “in conflict with the acts of

congress, which were the paramount law.” 59 U.S. (18 How.) at 430

(summarizing the earlier opinion). 
-25-

Thereafter, Congress passed a new law authorizing the construction of the

bridge and stating that the bridge and one other were “lawful structures in their

present positions and elevations.” Wheeling Bridge , 59 U.S. (18 How.) at 429. 

Pennsylvania sued again, claiming that the intervening enactment was an

unconstitutional attempt to overturn a final decision of the Judiciary. The

Supreme Court disagreed:

[I]f the remedy in this case had been an action at law,

and a judgment rendered in favor of the plaintiff for

damages, the right to these would have passed beyond

the reach of the power of congress. It would have

depended, not upon the public right of the free

navigation of the river, but upon the judgment of the

court. . . . But that part of the decree, directing the

abatement of the obstruction, is executory, a continuing

decree, which requires not only the removal of the

bridge, but enjoins the defendants against any

reconstruction or continuance. Now, whether it is a

future existing or continuing obstruction depends upon

the question whether or not it interferes with the right of

navigation. If, in the mean time, since the decree, this

right has been modified by the competent authority, so

that the bridge is no longer an unlawful obstruction, it is

quite plain the decree of the court cannot be enforced. 

There is no longer any interference with the enjoyment

of the public right inconsistent with the law, no more

than there would be where the plaintiff himself had

consented to it, after the rendition of the decree.

Id. at 431-32. Central to the Court’s analysis was the fact that the right to

unobstructed waterways was a “public right . . . under the regulation of congress.” 

Id. at 431. In other words, the plaintiff had no vested property right in an
-26-

unobstructed waterway. The core violation was against Congress’s right to

control the waterways, and Pennsylvania’s right to an unobstructed waterway was

only the derivative right to enjoy whatever degree of navigation Congress saw fit

to allow. So long as the will of Congress was to leave the river unimpeded, any

impediment was a violation of the public right thus defined. But once Congress

changed its mind, the contours of that right changed, and there was no more

ground for injunctive relief. If a landowner grants her neighbor a revocable

license to use a private road across her property, the neighbor could conceivably

obtain an injunction against any third party who prevents him from using that

road. However, that does not affect the right of the landowner to revoke the

license at any time. Should the license be revoked, the neighbor’s right to use the

private road ceases, and enforcing the injunction is no longer appropriate.

2

Wheeling Bridge has remained a fixed star in the Supreme Court’s

separation-of-powers jurisprudence, and numerous subsequent cases have relied

on it. See, e.g. , The Clinton Bridge , 77 U.S. 454, 463 (1870) (concluding, on the

basis of Wheeling Bridge , that in public rights cases, Congress could not only

modify injunctive relief already granted, but also could “g[i]ve the rule of

decision” in pending cases); Hodges v. Snyder , 261 U.S. 600, 603 (1923) (noting

that the normal rule against disturbing final judgments “does not apply to a suit
-27-

brought for the enforcement of a public right, which, even after it has been

established by the judgment of the court, may be annulled by subsequent

legislation and should not be thereafter enforced”); Sys. Fed’n No. 91 , 364 U.S. at

648-650 (holding that it is an abuse of discretion for a district court not to modify

an injunction to reflect changes in underlying law); Miller v. French , 530 U.S. at

347-48.

Even Plaut v. Spendthrift Farms, Inc. , the principal case on which BCA

relies, is careful not to disturb the holding of Wheeling Bridge . There the

Supreme Court had previously imputed a uniform nationwide statute of

limitations on actions brought under § 10(b) of the Securities Echange Act of

1934, Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbertson , 501 U.S. 350

(1991), and held that the newly established statute of limitations applied to all

pending cases in the federal courts. James B. Beam Distilling Co. v. Georgia , 501

U.S. 529 (1991). Six months later, Congress passed a law changing the statute of

limitations for those cases commenced before Lampf to what it would have been

had the Supreme Court not imposed a uniform nationwide limitations period, and

reinstating all actions dismissed as time-barred if they would have been timely

under the limitations period of their local jurisdiction. See Federal Deposit

Insurance Corporation Act of 1991, Pub. L. No. 102-242, sec. 476, § 27A, 105

Stat. 2236 (codified at 15 U.S.C. § 78aa-1 (1988 Supp. V)). The Supreme Court
-28-

held that this action violated the separation of powers by requiring federal courts

to reopen final judgments. Plaut , 514 U.S. at 240. It reasoned that once the

judicial branch has given its final word on a case, to allow Congress to reopen the

case by legislation would destroy the power of the Judiciary to render final

judgments. Id. at 219. Instead, Congress would be in effect a court of last resort

to which one could appeal any “final” decision of the Judiciary.

In rejecting such an outcome, the Court in Plaut did no more than follow

the dicta of Wheeling Bridge itself: 

But it is urged, that the act of congress cannot

have the effect and operation to annul the judgment of

the court already rendered, or the rights determined

thereby in favor of the plaintiff. This, as a general

proposition, is certainly not to be denied, especially as it

respects adjudication upon the private rights of the

parties . When they have passed into judgment the right

becomes absolute, and it is the duty of the court to

enforce it.

. . . .

Now, we agree, if the remedy in this case had

been an action at law, and a judgment rendered in favor

of the Plaintiff for damages , the right to these would

have passed beyond the reach of the power of congress.

Wheeling Bridge , 59 U.S. (18 How.) at 431 (emphasis added), quoted in Plaut ,

514 U.S. at 226. As Plaut itself insists, it does not call the holding of Wheeling

Bridge into question at all. 514 U.S. at 232. The disturbed court decision in

Plaut definitively resolved a private claim to a certain amount of money, leaving

the defendants with an unconditional right to the sum in question; the judgments
-29-

in this case and in Wheeling Bridge merely prohibited future interference with the

enjoyment of a public right that remained revocable at Congress’s pleasure. 

The Supreme Court has since reaffirmed the continued vitality of Wheeling

Bridge in Miller v. French . In that case, the Prison Litigation Reform Act had set

new limits on the power of courts to give injunctive relief to prisoners, requiring

(among other things) that any injunctive relief granted be both narrowly drawn to

correct the violation of federal rights and also the least intrusive means of

correcting the violation. 18 U.S.C. § 3626(a)(1)(A). The provision at issue in

Miller directed that an action to modify or terminate injunctive relief pursuant to

the PLRA would act as an automatic stay of any existing injunctive relief if a

court did not find that the injunctive relief remained appropriate under the new

standards within 30 days. Id. § 3626(b)(2).

In upholding the PLRA’s automatic stay, the Supreme Court found

Wheeling Bridge controlling, distinguishing Plaut because in that case Congress

had disturbed final judgments in actions for money damages. Miller , 530 U.S. at

344-45. The Court held that when courts grant prospective injunctive relief, they

remain obligated to modify that relief to the extent that “subsequent changes in

the law” render it illegal. Id. at 347. 

3
-30-

This case falls squarely within the principle of Wheeling Bridge . BCA’s

members’ rights with respect to the national forests is a “public right . . . under

the regulation of congress,” Wheeling Bridge , 59 U.S. (18 How.) at 431, in

exactly the same way that the right to unimpeded navigation of the Ohio River

was. Both rights are entirely contingent on Congress’s continuing will that the

federal lands or interstate waterways be managed in a particular way. The

settlement agreement in the Veteran/Boulder matter in no way touched on vested

private rights. To be sure, the private interests of BCA’s members are

sufficiently affected to give rise to standing, but the interest they represented in

their lawsuit was nothing other than the interest of the public in seeing that

Congress’s environmental directives are observed by the Forest Service.

BCA’s attempts to distinguish Miller and Wheeling Bridge are unavailing. 

It argues, first, that in those cases, Congress simply changed the law, leaving it

for the courts to decide whether to modify their injunctions, whereas here

Congress is directly requiring the courts to modify the settlement agreement. We

see no such distinction. In those cases, as here, Congress enacted rules in direct

conflict with existing legal obligations. In those cases, as here, courts later had to

decide whether those previous legal obligations remained enforceable in light of

Congress’s act.
-31-

Second, BCA argues that the 706 Rider specifically refers to a particular

settlement agreement it means to supercede, whereas the PLRA provision in

Miller “did not speak directly to any pre-existing judicial ruling or issuance of

relief.” Appellants’ Br. 27. The same was true in Wheeling Bridge. There,

legislation was targeted at two named bridges, one of which was the subject of the

injunction in the case. See 59 U.S. (18 How.) at 429. It is true that in Seattle

Audubon , the Court declined to address the question of whether such targeting

raised a constitutional problem. 503 U.S. at 441. However, its silence ended four

years later in Plaut . There, a concurrence found a constitutional violation

precisely because the reopening of dismissed cases “applie[d] only to a few

individual instances.” 514 U.S. at 243 (Breyer, J., concurring). A majority of the

Court rejected that position, describing it as “wrong in law.” Id. at 238. The

majority concluded that the infringement of the judicial power consisted “ not of

the Legislature’s acting in a particularized and thus (according to the

concurrence) nonlegislative fashion; but rather of the Legislature’s nullifying

prior, authoritative judicial action. It makes no difference whatever to that

separation-of-powers violation that it is in gross rather than particularized.” Id. at

239 (emphasis in original; footnote omitted); see also id. at 239 n.9 (“While

legislatures usually act through laws of general applicability, that is by no means

their only legitimate mode of operation.”). 
-32-

To avoid constant interbranch friction, the lines separating the branches

should be clear. As the Supreme Court noted in Plaut , and as BCA’s arguments

illustrate, it only “prolongs doubt and multiplies confrontation” to make the

constitutional analysis hinge on the murky distinction between generalized

lawmaking and particularized application of the law. 514 U.S. at 240.

4

It is true that the injunction BCA seeks to enforce differs from the one in

Wheeling Bridge in that it is the product of a settlement agreement rather than a

product of a judicial declaration of right. Thus, Appellants’ claimed right to keep

Beaver Park unmolested might be said to rest directly on the terms of their

contractual agreement, and only indirectly on public rights provided by the

environmental laws. We must therefore consider whether the settlement

agreement has interposed a new set of contractual rights that adequately support

keeping the injunction in place, making changes to the scope of the underlying

public right irrelevant. 

A negative answer to that question has been clear since at least 1961, when

the Supreme Court decided System Federation No. 91 v. Wright , 364 U.S. 642,

648-650 (1961). In that case, several nonunion railway employees brought a class

action against the railroad and various unions for discrimination against them and

other nonunion workers. The district court eventually entered a consent decree
-33-

enjoining the defendants “from discriminating against the plaintiffs and the

classes represented by them in this action by reason of or on account of the

refusal of said employees to join or retain their membership in any of defendant

labor organizations, or any labor organization.” Sys. Fed’n , 364 U.S. at 644. At

the time, labor law did not allow collective bargaining agreements to require

union shops. Id. at 645-46. 

Later, when the applicable law had changed to allow such contracts, the

unions sought modification of the decree to make it clear that it would not prevent

them from bargaining for a union shop. Id. The district court refused to modify

the injunction; since nothing in the amended law made it illegal for parties to

agree not to have a union shop, the court concluded that the parties were stuck

with their agreement. Id. 

The Sixth Circuit affirmed, but the Supreme Court reversed, holding that

the district court’s refusal to modify the decree was an abuse of discretion. Id. at

646, 650-53. The Court reasoned that, under Wheeling Bridge , the district court

would have had to modify the decree if it had been the result of litigation instead

of consent. Id. at 650-51. It then concluded that the same principles applied to

consent decrees: 

The result is all one whether the decree has been entered

after litigation or by consent . . . . In either event, a

court does not abdicate its power to revoke or modify its

mandate, if satisfied that what it has been doing has
-34-

been turned through changing circumstances into an

instrument of wrong. We reject the argument . . . that a

decree entered upon consent is to be treated as a contract

and not as a judicial act . . . . 

Id. at 650-51 (quoting United States v. Swift & Co. , 286 U.S. 106, 114-15 (1932)

(Cardozo, J.)) (some ellipses in original). The Court’s reasons are also applicable

here:

The parties cannot, by giving each other consideration,

purchase from a court of equity a continuing injunction.

In a case like this the District Court’s authority to adopt

a consent decree comes only from the statute which the

decree is intended to enforce. Frequently of course the

terms arrived at by the parties are accepted without

change by the adopting court. But just as the adopting

court is free to reject agreed-upon terms as not in

furtherance of statutory objectives, so must it be free to

modify the terms of a consent decree when a change in

law brings those terms in conflict with statutory

objectives. In short, it was the Railway Labor Act, and

only incidentally the parties, that the District Court

served in entering the consent decree now before us. The

court must be free to continue to further the objectives

of that Act when its provisions are amended. The parties

have no power to require of the court continuing

enforcement of rights the statute no longer gives.

Id. at 651. Put briefly, a settlement agreement or consent decree designed to

enforce statutory directives is not merely a private contract. It implicates the

courts, and it is the statute – and “only incidentally the parties” – to which the

courts owe their allegiance. The primary function of a settlement agreement or

consent decree, like that of a litigated judgment, is to enforce the congressional
-35-

will as reflected in the statute. The court should modify or refuse to enforce a

settlement agreement or proposed decree unless it is “in furtherance of statutory

objectives.” The agreement or consent decree is contractual only to the extent

that it represents an agreement by the parties regarding the most efficient means

of effectuating their rights under the statute. It does not freeze the provisions of

the statute into place. If the statute changes, the parties’ rights change, and

enforcement of their agreement must also change. Any other conclusion would

allow the parties, by exchange of consideration, to bind not only themselves but

Congress and the courts as well.

This principle applies even more clearly here than it did in System

Federation itself. There, the original injunction was not inconsistent with the

new law; it merely ruled out an option that Congress had since made permissible

but not mandatory. If that injunction had to change, then a fortiori the injunction

at issue here, which is inconsistent with the 706 Rider, must give way. 

B

Having disposed of the claim that the 706 Rider disturbs the district court’s

final judgment in violation of Plaut , we turn to BCA’s somewhat inconsistent

claim that the Rider violates United States v. Klein because it dictates “rules of

decision” to the district court in a pending case. 
-36-

Klein involved one episode in a series of conflicts between the

Reconstruction Congress and the balking President Andrew Johnson. Various

presidential proclamations had offered a “full pardon, with restoration of all

rights of property,” to certain broad classes, conditioned on taking an oath of

loyalty. Klein , 80 U.S. (13 Wall.) at 139-40. In the Abandoned and Captured

Property Act, 12 Stat. 820 (Mar. 12, 1863), however, Congress provided that the

owner of seized property could sue in the Court of Claims to recover its proceeds

only on proof that the owner “had never given aid or comfort to the rebellion.” 

Id. at 138-39. In United States v. Padelford , 76 U.S. (9 Wall.) 531, 542-43

(1869) (mem.), the Supreme Court held that a presidential pardon renders the

pardoned “as innocent as if he had never committed the offense,” and concluded

that proof of pardon was equivalent to proof that the claimant had not aided the

rebellion. Congress responded to Padelford by passing an appropriations proviso

directing the Court of Claims to take the fact of a pardon, with some narrow

exceptions, as conclusive proof that the claimant had “given aid or comfort to the

rebellion,” and as grounds for dismissing the claimant’s suit. Klein , 80 U.S. (13

Wall.) at 142-43. The proviso also removed the Supreme Court’s authority to

hear appeals of such suits. Id. at 144-45. In Klein , the administrator of the estate

of V.F. Wilson, who had taken the oath and qualified for the pardon, sued to

recover the proceeds of Wilson’s seized property. Id. at 136, 143. The Supreme
-37-

Court found the proviso to be unconstitutional, both because it attempted to

impair the effect of a presidential pardon and because it “prescribe[d] rules of

decision to the Judicial Department of the government in cases pending before it.” 

Id. at 146.

Klein is a notoriously difficult decision to interpret. Read broadly, the

“rules of decision” language of Klein would seem to contradict the wellestablished principle that courts must decide cases according to statutes enacted

by Congress. See United States v. Schooner Peggy , 5 U.S. (1 Cranch) 103, 109

(1801); Miller , 530 U.S. at 344, 346-47. 

In any event, the 706 Rider is very different from the unusual legislation

found unconstitutional in Klein. Central to the Court’s analysis in Klein was its

conclusion that the government’s seizure of the private property at issue did not

divest its owner of his property rights. See Klein, 80 U.S. (13 Wall.) at 136-39. 

Thus, the basis of the Klein suit (at least in the eyes of the Klein court) was a

private right to property vindicated by a presidential pardon, which Congress was

therefore powerless to extinguish. See id. at 148. Since Congress could not

manipulate these private rights, Klein merely refused to allow Congress to

accomplish indirectly (by manipulating the judiciary’s interpretation of those

private rights) what it could not accomplish directly. 
-38-

Thus understood, Klein is precisely in accord with Wheeling Bridge, as

Klein itself observes. See 80 U.S. (13 Wall.) at 146-47. When Congress does not

control the substance of a right, there are limits to its ability to influence the

judiciary’s determination of that right, either by directing the judiciary to decide a

particular way, or by setting aside judicial determinations after the fact. But

when rights are the creatures of Congress, as they were in Wheeling Bridge,

Congress is free to modify them at will, even though its action may dictate results

in pending cases and terminate prospective relief in concluded ones. Thus,

Klein’s prohibition on prescribing rules of decision in pending cases has no

application to public rights cases like this one.

The Supreme Court explicitly made this point in The Clinton Bridge, a case

decided only one year before Klein. That case addressed facts almost identical to

those in Wheeling Bridge. The only difference was that Congress passed

legislation authorizing the bridge in question while the suit over its legality was

still pending, not after the injunction issued. See 77 U.S. (10 Wall.) at 462-63. 

The Court noted that, in so doing, Congress “gave the rule of decision for the

court” in the pending case. Id. at 463. While it found that to be unobjectionable

under Wheeling Bridge, it warned that “very different considerations would have

arisen” if Congress had attempted to dictate the rule of decision in a case
9The same analysis disposes of BCA’s contention that the 706 Rider

disturbed the result in another then-pending case, Sierra Club-Black Hills Group

v. United States Forest Serv., No. 94-D-2273 (D. Colo. Feb. 20, 2003). 

Subsections (h) and (i) of the Rider directed the Forest Service to take specific

actions in the Norbeck Wildlife Preserve, the area under dispute in the Sierra

Club litigation.

-39-

concerning a “private right of action.” Id. Klein must be read as the fulfillment

of that narrow warning, not the enunciation of any broader principle.9

Furthermore, the Supreme Court has made it clear that Klein does not apply

to cases like this one: “Whatever the precise scope of Klein , . . . its prohibition

does not take hold when Congress amends applicable law.” Plaut , 514 U.S. at

218, quoted in Miller , 530 U.S. at 349 (internal quotation marks and brackets

omitted). Because, as we explained in Part II of this opinion, the 706 Rider did

“amend[] applicable law,” the Klein principle does not apply here.

C

Last, BCA claims that the 706 Rider violates the rule in Hayburn’s Case .

Hayburn’s Case has come to stand “for the principle that Congress cannot vest

review of the decisions of Article III courts in officials of the Executive Branch.” 

Plaut , 514 U.S. at 218. BCA admits that the 706 Rider does not literally

authorize Forest Service officials to review judicial determinations. Nevertheless,

it maintains that the 706 Rider orders the Executive to ignore and violate judicial

orders, and that this is close enough to make out a claim under Hayburn’s Case . 
-40-

We disagree. As discussed above, it is well-established that new law can modify

old injunctive decrees. Whenever that happens, the new law at least implicitly

orders the Executive to ignore the old decrees. 

BCA maintains that in such circumstances, Congress’s act cannot

constitutionally modify an injunction directly. Instead, it claims, any

modification must be the made by the court itself (though the court may be

obliged to do it), and until the court does so, the injunction remains in force. 

Thus, because the 706 Rider directs the Forest Service to proceed with its treecutting activities regardless of whether the court modifies the settlement

agreement, it unconstitutionally directs the Executive to ignore an injunction in

force. But this is not the lesson of our cases. Wheeling Bridge held, not merely

that Congress’s legislation made modification of the injunction necessary, but that

it rendered the injunction unenforceable. 59 U.S. (18 How.) at 432; Miller , 530

U.S. at 346. Similarly, the provision upheld in Miller v. French went beyond

ordering judges to stay prospective relief after 30 days; instead, it stated that a

motion to terminate injunctive relief “shall operate as a stay” of that relief

beginning 30 days after the motion – thus staying the injunctive relief without any

action by the court. Miller , 530 U.S. at 331. When Congress is acting within the

boundaries set by Wheeling Bridge and Miller , the parties to a modified injunction
-41-

need not wait upon the court to ratify the congressional change. Thus, we see no

violation of Hayburn’s Case or any other constitutional principle here.

IV

Viewed realistically, the 706 Rider intrudes on neither executive nor

judicial authority. The Rider comports with the current view of executive branch

officials regarding management of the national forest. And while the Rider

overrides a settlement agreement entered by the district court, that agreement was

in fact a private agreement between the parties, in which the Judiciary had little or

no independent involvement. To overturn the Rider would thus serve not to

vindicate the constitutionally entrusted prerogatives of those two branches, but

rather to keep in place a private group’s own preferences about forest

preservation policy in the face of contrary judgments by the Executive and

Congress. True principles of separation of powers prevent settlement agreements

negotiated by private parties and officials of the executive branch from

encroaching either on the constitutionally vested authority of Congress or on the

statutorily vested authority of those officials’ successors in office. BCA’s claim

amounts to the argument that an agreement forged by a private group with a

former administration, without serious judicial involvement, can strip both

Congress and the Executive of their discretionary powers. The Constitution

neither compels nor permits such a result. 
10Even when the Government unmistakably contracts not to exercise its

sovereign powers in otherwise permissible ways, that promise cannot be enforced

by injunction, as BCA seeks to do here. At most, such a contract may give rise in

certain circumstances to a suit for damages. See United States v. Winstar Corp.,

518 U.S. 839, 910 (1996) (plurality opinion); id. at 923 (Scalia, J., concurring);

Perry v. United States, 294 U.S. 330, 351-53 (1935); Lynch v. United States, 292

U.S. 571, 580 (1934); The Sinking Fund Cases, 99 U.S. 700, 718-19 (1878). As

the plurality stated in Winstar,“[t]he Government cannot make a binding contract

that it will not exercise a sovereign power, but it can agree in a contract that if it

does so, it will pay the other contracting party the amount by which its costs are

increased by the Government’s sovereign act.” 518 U.S. at 881-82 (quoting

Amino Bros. v. United States, 372 F.2d 485, 491 (Ct. Cl. 1967)). Appellants have

made no claim for damages in this case, nor could they. 

-42-

The executive branch does not have authority to contract away the

enumerated constitutional powers of Congress or its own successors, and certainly

neither does a private group. 10 Accordingly, the governance of the Black Hills

National Forest must be conducted according to the new rules set by Congress, as

Article IV of the Constitution provides.

For the foregoing reasons, the district court’s denial of BCA’s motion is

AFFIRMED.