Keeping Tabs on the Ninth Circuit
April 28, 2023 - This Week at the Ninth

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

Green Forest

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.


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 majority then rejected Murphy’s arguments on the merits. The majority began by explaining that the O&C Act had neither explicitly nor implicitly repealed the Antiquities Act: the two statutes could be read in a manner fully consistent with one another, and nothing in the O&C Act purported to limit the president’s authority under the Antiquities Act.  The O&C Act, the majority explained, granted substantial discretion to the Departmet of the Interior, and it contemplated that not all federal land covered necessarily need be operated as timberland. In particular, the majority emphasized, the statute spoke of lands “which have heretofore or may hereafter be classified as timberlands, and power-site lands valuable for timber,” specifying that an apparent subset of lands “shall be managed . . . for permanent forest production.” While timber production might have been contemplated as the dominant use of these lands, nothing in the statute compelled the conclusion that it was to be the exclusive use, as the legislative history confirmed. Responding to the dissent, the majority explained that “President Obama, through his expansion of the Cascade-Siskiyou National Monument, did no more and no less than take a small portion of the O&C Lands and direct the Secretary to manage the area for a new use”—something the Antiquities Act empowered him to do. The majority emphasized that nothing in its holding allowed the President to nullify a statute imposing a specific land-management scheme. 

In dissent, Judge Tallman agreed that sovereign immunity did not bar Murphy’s suit. But emphasizing the O&C Act’s mandate that covered lands “shall be managed . . . for permanent forest production,” the statutory provision expressly repealing any prior statutes “in conflict,” and the fact that the O&C Act’s requirements were more specific than those of the Antiquities Act, Judge Tallman would have held that the President’s proclamation violated the O&C Act. As he reasoned, “[a]lthough the Antiquities Act does grant the President broad authority to establish national monuments, nowhere does it remotely purport to grant him authority to suspend the operation of another act of Congress.”


The Court holds that, when a defendant lodges a factual challenge to a complaint under California’s Strategic Lawsuit Against Public Participant (“anti-SLAPP”) statute, district courts may consider extrinsic evidence when evaluating the defendant’s prima facie showing of protected activity.

The panel: Judges Rawlinson, Bennett, and Cogan (E.D.N.Y.), with Judge Cogan writing the opinion.

Key highlight: “[A] district court cannot consider a defendant’s evidence of factual sufficiency at the first step of an anti-SLAPP motion without essentially converting the motion into one for summary judgment because in such cases, the first step of anti-SLAPP, a prima facie showing of protected activity, significantly overlaps with challenges to the factual sufficiency of a claim.” (Quotation marks omitted.)

Background: Plaintiff Lezlie Gunn had been involved in a romantic and professional relationship with Dr. Hans Peter Wild. After thirty years, the two ended their relationship and entered a Release and Settlement Agreement (“RSA”) to govern the exchange of property between them. Shortly after its execution, both parties accused the other of breaching the RSA and threatened legal action. Wild sought legal advice from Defendant Christine Drage, while also beginning a romantic relationship with her. Gunn then sued Drage for intentional interference with a contract and civil conspiracy. She alleged that Drage had induced Wild to breach the RSA. 

Drage moved to strike the complaint under California’s anti-SLAPP statute. That statute allows defendants to file a special motion to dismiss or strike a complaint in certain cases implicating speech. First, the defendant must make a “prima facie showing that the plaintiff’s suit arises from an act in furtherance of the defendant’s constitutional right to free speech.” Makaeff v. Trump Univ., LLC, 715 F.3d 254, 261 (9th Cir. 2013). If the defendant does so, the burden shifts to the plaintiff “to demonstrate that each challenged claim based on protected activity is legally sufficient and factually substantiated.” Id.

Here, Drage’s motion challenged the factual sufficiency of Gunn’s complaint, and Drage submitted extrinsic evidence of her legal representation of Wild in support of that challenge. The district court treated the motion as one for summary judgment and considered Drage’s extrinsic evidence at both steps of the analysis. At the first step, the court concluded that Drage had made a prima facie showing that Gunn’s complaint arose from protected speech because it sought to impose liability for Drage’s provision of legal advice to Wild. At the second step, the court ruled for Drage and struck the complaint. On appeal, Gunn challenged only the district court’s ruling at the first step.

Result: The Ninth Circuit affirmed. First, the Ninth Circuit held that the district court properly considered Drage’s extrinsic evidence in determining whether she had met her prima facie burden of demonstrating protected activity. The Court observed that California courts are permitted to consider extrinsic evidence under the first step of the anti-SLAPP analysis. But under Erie, state procedural rules did not necessarily dictate the rules in federal court. The Ninth Circuit had previously held that if a defendant moves to strike “on purely legal arguments,” the court must follow the rules governing dismissal on the pleadings, but if a defendant asserts “a factual challenge,” the court must follow the rules governing summary judgment. Here, the Ninth Circuit made clear that this framework applies at both steps of the anti-SLAPP analysis. Therefore, the Court concluded that the district court in this case correctly Drage’s extrinsic evidence and treated her motion as a motion for summary judgment.

Second, the Ninth Circuit held that Drage’s conduct was entitled to protection under the anti-SLAPP statute. Although it was unclear whether Drage and Wild had actually entered into an attorney-client relationship, that question was immaterial. Even if Drage had only advised Wild as a potential client, she had still provided him legal advice in her capacity as an attorney, and that was enough to qualify as protected activity under the anti-SLAPP statute.