438
Opinion of the Court
enacted, the courts adjudicating these MBTA claims were obliged to determine whether the challenged harvesting would "kill" or "take" any northern spotted owl, within the meaning of § 2.4 Subsection (b)(6)(A), however, raised the question whether the harvesting would violate different prohibitions—those described in subsections (b)(3) and (b)(5). If not, then the harvesting would constitute "management . . . according to" subsections (b)(3) and (b)(5), and would therefore be deemed to "mee[t]" MBTA § 2 regardless of whether or not it would cause an otherwise prohibited killing or taking. Thus under subsection (b)(6)(A), the agencies could satisfy their MBTA obligations in either of two ways: by managing their lands so as neither to "kill" nor "take" any northern spotted owl within the meaning of § 2, or by managing their lands so as not to violate the prohibitions of subsections (b)(3) and (b)(5). Subsection (b)(6)(A) operated identically as well upon all provisions of NEPA, NFMA, FLPMA, and OCLA that formed "the basis for" the original lawsuits.
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. Moreover, we find nothing in subsection (b)(6)(A) that purported to direct any particular findings of fact or applications of law, old or new, to fact. For challenges to sales offered before or after fiscal year 1990, subsection (b)(6)(A) expressly reserved judgment upon "the legal and factual adequacy" of the administrative documents authorizing the sales. For challenges to sales offered during fiscal year 1990, subsection (g)(1) expressly provided
4 The northern spotted owl is a "migratory bird" within the meaning of MBTA. See 50 CFR § 10.13 (1991).
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