author: CHIEF Justice Rehnquist Justice Stevens,

text:
    BARNHILL v. JOHNSON, TRUSTEE
    No. 91-159.
    Argued January 14, 1992
    Decided March 25, 1992

      Rehnquist, C. J., delivered the opinion of the Court, in which White, O’Connor, Scalia, Kennedy, Souter, and Thomas, JJ., joined. Stevens, J., filed a dissenting opinion, in which Blackmun, J., joined, post, p. 403.

      William J. Arland III argued the cause for petitioner. With him on the briefs was Emily A. Franke.

      Nancy S. Cusack argued the cause for respondent. With her on the brief were William P. Johnson and Andrew J. Cloutier.

   CHIEF Justice Rehnquist

delivered the opinion of the Court.

Under the Bankruptcy Code’s preference avoidance section, 11 U. S. C. §547, the trustee is permitted to recover, with certain exceptions, transfers of property made by the debtor within 90 days before the date the bankruptcy petition was filed. We granted certiorari to decide whether, in determining if a transfer occurred within the 90-day preference period, a transfer made by check should be deemed to occur on the date the check is presented to the recipient or on the date the drawee bank honors it. We hold that the latter date is determinative.

The relevant facts in this case are not in dispute. The debtor made payment for a bona fide debt to petitioner Barnhill. The check was delivered to petitioner on November 18. The check was dated November 19, and the check was honored by the drawee bank on November 20. The debtor later filed a Chapter 11 bankruptcy petition. It is agreed by the parties that the 90th day before the bankruptcy filing was November 20.

Respondent Johnson was appointed trustee for the bankruptcy estate. He filed an adversary proceeding against petitioner, claiming that the check payment was recoverable by the estate pursuant to 11 U. S. C. § 547(b). That section generally permits the trustee to recover for benefit of the bankruptcy estate transfers of the debtor’s property made within 90 days of the bankruptcy filing. Respondent asserted that the transfer occurred on November 20, the date the check was honored by the drawee bank, and therefore was within the 90-day period. Petitioner defended by claiming that the transfer occurred on November 18, the date he received the check (the so-called “date of delivery” rule), and that it therefore fell outside the 90-day period established by § 547(b)(4)(A).

The Bankruptcy Court concluded that a date of delivery rule should govern and therefore denied the trustee recovery. The trustee appealed, and the District Court affirmed. The trustee then appealed to the Court of Appeals for the Tenth Circuit.

The Court of Appeals for the Tenth Circuit reversed, concluding that a date of honor rule should govern actions under § 547(b). In re Antweil, 931 F. 2d 689 (1991). It distinguished a prior decision, In re White River Corp., 799 F. 2d 631 (1986), in which it held that, for purposes of § 547(c), a date of delivery rule should govern when a transfer occurs. The Tenth Circuit concluded that §§ 547(b) and 547(c) have different purposes and functions, justifying different rules for each. It further concluded that a date of honor rule was appropriate because such a rule was consistent with provisions of the Uniform Commercial Code (U. C. C.), was capable of easier proof, and was less subject to manipulation. We granted certiorari to resolve a Circuit split. 502 U. S. 807 (1991).

In relevant part, § 547(b) provides:

“(b) Except as provided in subsection (c) of this section, the trustee may avoid any transfer of an interest of the debtor in property—
“(4) made—
“(A) on or within 90 days before the date of the filing of the petition . .. .”

Title 11 U. S. C. § 101(54) (1988 ed., Supp. II) defines “transfer” to mean

“every mode, direct or indirect, absolute or conditional, voluntary or involuntary, of disposing of or parting with property or with an interest in property, including retention of title as a security interest and foreclosure of the debtor’s equity of redemption.”

Section 547(e) provides further guidance on the meaning and dating of a transfer. For purposes of § 547, it provides

“[(e)(l)](B) a transfer of a fixture or property other than real property is perfected when a creditor on a simple contract cannot acquire a judicial lien that is superior to the interest of the transferee.
“[(e)](2) For the purposes of this section, except as provided in paragraph (3) of this subsection, a transfer is made—
“(A) at the time such transfer takes effect between the transferor and the transferee, if such transfer is perfected at, or within 10 days after, such time;
“(B) at the time such transfer is perfected, if such transfer is perfected after such 10 days . . . .”

Our task, then, is to determine whether, under the definition of transfer provided by §101(54), and supplemented by § 547(e), the transfer that the trustee seeks to avoid can be said to have occurred before November 20.

“What constitutes a transfer and when it is complete” is a matter of federal law. McKenzie v. Irving Trust Co., 323 U. S. 365, 369-370 (1945). This is unsurprising since, as noted above, the statute itself provides a definition of “transfer.” But that definition in turn includes references to parting with “property” and “interest[s] in property.” In the absence of any controlling federal law, “property” and “interests in property” are creatures of state law. Id., at 370; Butner v. United States, 440 U. S. 48, 54 (1979) (“Congress has generally left the determination of property rights in the assets of a bankrupt’s estate to state law”). Thus it is helpful to sketch briefly the rights and duties enjoyed under state law by each party to a check transaction.

A- person with an account at a bank enjoys a claim against the bank for funds in an amount equal to the account balance. Under the U. C. C., a check is simply an order to the drawee bank to pay the sum stated, signed by the maker and payable on demand. U. C. C. §§3-104(1), (2)(b), 2 U. L. A. 224 (1991). Receipt of a check does not, however, give the recipient a right against the bank. The recipient may present the check, but, if the drawee bank refuses to honor it, the recipient has no recourse against the drawee. §3-409(1), 2A U. L. A. 189 (1991).

That is not to say, however, that the recipient of a check is without any rights. Receipt of a check for an underlying obligation suspends the obligation “pro tanto until the in-strumentas] ... presentment^]... discharge of the underlying obligor on the instrument also discharges him on the obligation.” § 3-802(l)(b), 2A U. L. A. 514 (1991). But should the drawee bank refuse to honor a check, a cause of action against the drawer of the check accrues to the recipient of a check “upon demand following dishonor of the instrument.” §3-122(3), 2 U. L. A. 407 (1991); see also §3-413(2), 2A U. L. A. 208 (1991). And the recipient of a dishonored check, received in payment on an underlying obligation, may maintain an action on either the check or the obligation. §3-802(l)(b), 2A U. L. A. 514 (1991).

With this background we turn to the issue at hand. Petitioner argues that the Court of Appeals erred in ignoring the interest that passed from the debtor to the petitioner when the check was delivered on a date outside the 90-day preference period. We disagree. We begin by noting that there can be no assertion that an unconditional transfer of the debtor’s interest in property had occurred before November 20. This is because, as just noted above, receipt of a check gives the recipient no right in the funds held by the bank on the drawer’s account. Myriad events can intervene between delivery and presentment of the check that would result in the check being dishonored. The drawer could choose to close the account. A third party could obtain a lien against the account by garnishment or other proceedings. The bank might mistakenly refuse to honor the check.

The import of the preceding discussion for the instant case is that no transfer of any part of the debtor’s claim against the bank occurred until the bank honored the check on November 20. The drawee bank honored the check by paying it. U. C. C. § 1-201(21), 1 U. L. A. 65 (1989) (defining honor); § 4-215(a), 2B U. L. A. 45 (1991). At that time, the bank had a right to “charge” the debtor’s account, §4-401, 2B U. L. A. 307 (1991) — i. e., the debtor’s claim against the bank was reduced by the amount of the check — and petitioner no longer had a claim against the debtor. Honoring the check, in short, left the debtor in the position that it would have occupied if it had withdrawn cash from its account and handed it over to petitioner. We thus believe that when the debtor has directed the drawee bank to honor the check and the bank has done so, the debtor has implemented a “mode, direct or indirect ... of disposing ... of property or ... an interest in property.” 11 U. S. C. §101(54) (1988 ed., Supp. II) (emphasis added). For the purposes of payment by ordinary check, therefore, a “transfer” as defined by § 101(54) occurs on the date of honor, and not before. And since it is undisputed that honor occurred within the 90-day preference period, the trustee presumptively may avoid this transfer.

In the face of this argument, petitioner retreats to the definition of “transfer” contained in §101(54). Petitioner urges that rather than viewing the transaction as involving two distinct actions — delivery of the check, with no interest in property thereby being transferred, and honoring of the check, with an interest being transferred — that we instead should view delivery of the check as a “conditional” transfer. We acknowledge that § 101(54) adopts an expansive definition of transfer, one that includes “every mode . . . absolute or conditional ... of disposing of or parting with property or with an interest in property.” There is thus some force in petitioner’s claim that he did, in fact, gain something when he received the check. But at most, what petitioner gained was a chose in action against the debtor. Such a right, however, cannot fairly be characterized as a conditional right to “property ... or an interest in property,” § 101(54), where the property in this case is the account maintained with the drawee bank. For as noted above, until the moment of honor the debtor retains full control over disposition of the account and the account remains subject to a variety of actions by third parties. To treat petitioner’s nebulous right to bring suit as a “conditional transfer” of the property would accomplish a near-limitless expansion of the term “conditional.” In the absence of any right against the bank or the account, we think the fairer description is that petitioner had received no interest in debtor’s property, not that his interest was “conditional.”

Finally, we note that our conclusion that no transfer of property occurs until the time of honor is consistent with § 547(e)(2)(A). That section provides that a transfer occurs at the time the transfer “takes effect between the transferor and the transferee . . . .” For the reasons given above, and in particular because the debtor in this case retained the ability to stop payment on the check until the very last, we do not think that the transfer of funds in this case can be said to have “taken effect between the debtor and petitioner” until the moment of honor.

Recognizing, perhaps, the difficulties in his position, petitioner places his heaviest reliance not on the statutory language but on accompanying legislative history. Specifically, he points to identicál statements from Representative Edwards and Senator DeConcini that “payment of a debt by means of a check is equivalent to a cash payment, unless the check is dishonored. Payment is considered to be made when the check is delivered for purposes of sections 547(c)(1) and (2).” 124 Cong. Rec. 32400 (1978); id., at 34000. We think this appeal to legislative history unavailing.

To begin, we note that appeals to statutory history are well taken only to resolve “statutory ambiguity.” Toibb v. Radloff, 501 U. S. 157, 162 (1991). We do not think this is such a case. But even if it were, the statements on which petitioner relies, by their own terms, apply only to § 547(c), not to § 547(b). Section 547(c), in turn, establishes various exceptions to § 547(b)’s general rule permitting recovery of preferential transfers. Subsection (c)(1) provides an exception for transfers that are part of a contemporaneous exchange of new value between a debtor and creditor; subsection (c)(2) provides an exception for transfers made from debtor to creditor in the ordinary course of business. These sections are designed to encourage creditors to continue to deal with troubled debtors on normal business terms by obviating any worry that a subsequent bankruptcy filing might require the creditor to disgorge as a preference an earlier received payment. But given this specialized purpose, we see no basis for concluding that the legislative history, particularly legislative history explicitly confined by its own terms to § 547(c), should cause us to adopt a “date of delivery” rule for purposes of § 547(b).

For the foregoing reasons, the judgment of the Court of Appeals is

Affirmed.

Justice Stevens,

with whom Justice Blackmun joins, dissenting.

In my opinion, a “transfer” of property occurs on the date the check is delivered to the transferee, provided that the check is honored within 10 days. This conclusion is consistent with the traditional commercial practice of treating the date of delivery as the date of payment when a payment is made by a check that is subsequently honored by the drawee bank. It is also consistent with the treatment of checks in tax law. A taxpayer may deduct expenses paid by a check delivered on or before December 31 against that year’s income even though the drawee bank does not honor the check until the next calendar year. Insofar as possible, it is wise to interpret statutes regulating commercial behavior consistently with established practices in the business community. The custom that treats the delivery of a check as payment should not be rejected unless Congress has unequivocally commanded a contrary result. In the Bankruptcy Code, Congress has done no such thing. On the contrary, the Code is entirely consistent with the normal practice.

The definition of the term “transfer” in § 101(54) is plainly broad enough to encompass the conditional transfer of the right to funds in the debtor’s bank account that occurs when the debtor delivers a check to a creditor. Section 101(54) defines a “transfer” as “every mode, direct or indirect, absolute or conditional, voluntary or involuntary, of disposing of or parting with property or with an interest in property ....” 11 U. S. C. § 101(54) (1988 ed., Supp. II). A check is obviously a “mode” through which the debtor may “par[t] with property.”

Of course, the fact that delivery of a check effects a “transfer” within the meaning of the Code does not answer the question whether the trustee may avoid the transfer by check in this case because § 547(b) only authorizes the trustee to avoid transfers made “on or within 90 days before the date of the filing of the [bankruptcy] petition.” 11 U. S. C. § 547(b)(4)(A). That raises the question: When did the “transfer” occur? Section 547(e)(2) provides the answer. It states that for purposes of the preference avoidance section, § 547, a transfer is made:

“(A) at the time such transfer takes effect between the transferor and the transferee, if such transfer is perfected at, or within 10 days after, such time;
“(B) at the time such transfer is perfected, if such transfer is perfected after such 10 days ...§ 547(e)(2).

The Court interprets this section as supporting its conclusion that the transfer does not occur until the check is honored by the drawee bank because, it reasons, a transfer cannot take effect between the transferor and transferee as long as the transferor retains the ability to stop payment on the check. Ante, at 401. But that reasoning is foreclosed by § 101(54), which states that even a conditional transfer is a “transfer” for purposes of the Code. Because delivery of a check effects a conditional transfer from the transferor to the transferee, the “transfer” is made, for purposes of § 547, on the date of delivery, provided that the transfer is “perfected” within 10 days as required by § 547(e)(2).

As the Court of Appeals for the Seventh Circuit recognized, the use of the term “perfected” is “jarring” because the meaning of the word “perfected” is not immediately apparent in this context. Global Distribution Network, Inc. v. Star Expansion Co., 949 F. 2d 910, 913 (1991). “Debtors transfer assets; creditors perfect security interests.” Ibid. The answer lies in the fact that the term “perfected” has a broader meaning in § 547(e) than it does in the Uniform Commercial Code. Section 547(e)(1)(B) states that “a transfer of. . . property other than real property is perfected when a creditor on a simple contract cannot acquire a judicial lien that is superior to the interest of the transferee.” Under this definition, a transfer by check is “perfected” when the check is honored because after that time no one can acquire a judicial lien superior to the interest of the transferee.

Thus §§ 101(54) and 547, when read together, plainly indicate that a “transfer” by check occurs on the date the check is delivered to the transferee, provided that the drawee bank honors the check within 10 days. If, however, the check is not honored within 10 days, the “transfer” occurs on the date of honor.

An additional consideration reinforces this interpretation of the statutory text. The Courts of Appeals are unanimous in concluding that the date of delivery of a check is controlling for purposes of § 547(c), and the Court does not dispute that conclusion for the purposes of its decision today. Ante, at 402-403, n. 9. These Courts of Appeals decisions are consistent with the legislative history, which, though admittedly not conclusive, identifies the date of delivery of a check as the date of transfer for purposes of § 547(c). Normally, we assume that the same terms have the same meaning in different sections of the same statute. See, e. g., Sullivan v. Stroop, 496 U. S. 478, 484 (1990). That rule is not inexorable, but nothing in the structure or purpose of §§ 547(b) and 547(c) suggests a reason for interpreting these adjacent subsections differently.

I would therefore reverse the judgment of the Court of Appeals.

       The debtor in this case is actually a collection of debtors whose simultaneous and related bankruptcy filings have been consolidated in a single proceeding: Alan J. and Mary Frances Antweil, husband and wife, Morris Antweil (deceased), and Hobbs Pipe & Supply, a general partnership. Nothing in our decision turns on this fact, and we therefore refer to them collectively as “debtor.”

       Section 647(c) establishes certain transfers that are not recoverable as preferences, even if they fall within the 90-day preference period. See infra, at 402.

       Those selecting a date of honor rule include Nicholson v. First Investment Co., 706 F. 2d 410 (CA11 1983) (Bankruptcy Act), and In re New York City Shoes, Inc., 880 F. 2d 679 (CA3 1989) (dicta). Those selecting date of delivery include Global Distribution Network, Inc. v. Star Expansion Co., 949 F. 2d 910 (CA7 1991); In re Virginia Information Systems Corp., 932 F. 2d 338 (CA4 1991); In re Belknap, Inc., 909 F. 2d 879 (CA6 1990); and In re Kenitra, Inc., 797 F. 2d 790 (CA9 1986), cert. denied sub nom. Morrow, Inc. v. Agri-Beef Co., 479 U. S. 1064 (1987).

       The definition of transfer was codified in 1986 at 11 U. S. C. §101(50). In 1990, Congress added eight new definitions to § 101 in two separate Acts, Public Laws 101-311 and 101-647. The addition of the new definitions apparently has resulted in confusion in codifying those definitions, with the result that there are now in the United States Code, Chapter 11, two sections 101(54), one defining “stockbroker” and the second defining “transfer.” We will refer to “transfer” as being codified at § 101(54).

       We discuss these issues under the rubric of the U. C. C. and, in particular, U. C. C. Article 3. New Mexico, the State in which the instant transaction occurred, has adopted the U. C. C., see N. M. Stat. Ann. § 55-3-101 et seq. (1978 and Supp. 1991), as have all other 49 States, the District of Columbia, Guam, and the Virgin Islands. We are aware of no material differences between the version adopted by each of these other jurisdictions and the one we consider today, that of New Mexico.

       “A check or other draft does not of itself operate as an assignment of any funds in the hands of the drawee available for its payment, and the drawee is not liable on the instrument until he accepts it.”

       Admittedly, such behavior might create a cause of action for the debtor-drawer, see U. C. C. §4-402, 2B U. L. A. 59 (1991), but the recipient would not have any claim against the bank.

       Petitioner asserts that upon the date of delivery, he held a cause of action against the debtor. Brief for Petitioner 18. We think that petitioner may overstate matters a bit; it appears under the U. C. C. that receipt of the check provides a contingent cause of action, the contingency being a subsequent dishonoring of the check and a demand to the drawer for payment. See U. C. C. § 3-122(3), 2 U. L. A. 407 (1991), and Official Comment ¶ 1. It is unnecessary to resolve this question, however, for even on petitioner’s more expansive assertion his claim under the Bankruptcy Code fails.

       Those Courts of Appeals to have considered the issue are unanimous in concluding that a “date of delivery” rule should apply to check payments for purposes of § 547(c). Braniff Airways, Inc. v. Midwest Corp., 873 F. 2d 805 (CA5 1989); In re Continental Commodities, Inc., 841 F. 2d 527 (CA4 1988); In re Wolf & Vine, 825 F. 2d 197 (CA9 1987); In re Kenitra, Inc., 797 F. 2d 790 (CA9 1986); In re White River Corp., 799 F. 2d 631 (CA10 1986); and O’Neill v. Nestle Libbys P. R., Inc., 729 F. 2d 35 (CA1 1984). A few Bankruptcy Courts and District Courts have disagreed. See, e. g., In re Hartwig Poultry, Inc., 56 B. R. 332 (Bkrtcy. Ct. ND Ohio 1985). We, of course, express no views on that issue, which is not properly before us. We do note, however, that § 547(c)(2) has undergone significant change since the time of Representative Edwards’ and Senator DeConcini’s comments. Section 647(c)(2) previously had a requirement that, in order for a payment by the debtor to qualify as a payment in the ordinary course of business, the payment had to have been made within 45 days of when the underlying debt was first incurred. That requirement has since been eliminated. See Union Bank v. Wolas, 502 U. S. 151, 156-157 (1991). This in turn may mean that, in the context of a check payment, there is now less need to precisely date the time when a check transfer occurs for purposes of § 547(c)(2). That is, rather than inquiring whether a transfer occurred on the 45th day or the 46th, courts now need only focus on whether the transfer was made in the ordinary course of business. Id.,
        at 162. Thus, the relevance of the legislative history, even for purposes of interpreting § 547(c), appears to have been somewhat undermined; given this, it'would clearly be inappropriate to extrapolate from that history for purposes of interpreting the scope of §§ 547(b) and 101(54).

       See, e. g., Regents of University of New Mexico v. Lacey, 107 N. M. 742, 744, 764 P. 2d 873, 875 (1988) (“[I]f, when the check is delivered, the drawer has funds in the drawee bank to meet it, and the check is honored and paid upon presentment, the conditional nature of the payment becomes absolute and the date of payment will be deemed to have been made as of the date of the original delivery of the check”); 6 R. Anderson, Uniform Commercial Code §3-802:19, pp. 594-595 (3d ed. 1984) (“When a check is paid, the payment of the underlying debt becomes absolute and it is deemed paid as of the date of the giving of the check”).

       See, e. g., Clark v. Commissioner, 253 F. 2d 745, 748 (CA3 1958); see also Don E. Williams Co. v. Commissioner, 429 U. S. 569, 572, n. 2, 582-583 (1977). Treasury regulations similarly provide that a charitable contribution is made upon delivery of a check which subsequently clears in due course. Treas. Reg. § 1.170A-l(b), 26 CFR §1.170A-l(b) (1991).

       A check is an order, signed by the maker, to the drawee bank to pay the sum stated upon demand. See Uniform Commercial Code § 3-104, 2 U. L. A. 224 (1991).

       The fact that “[m]yriad events can intervene between delivery and presentment of the check that would result in the check being dishonored,” ante, at 399, does not alter this conclusion because § 101(64) expansively defines the term “transfer” to include even conditional modes of parting with property. In my opinion, the delivery of a check effects such a conditional transfer because upon delivery, the transferee receives a conditional right to funds in the bank account of the maker — the condition being acceptance by the drawee bank.

       Indeed, many of these decisions rely on the legislative history. See, e. g., In re Continental Commodities, Inc., 841 F. 2d 527, 530 (CA4 1988); In re White River Corp., 799 F. 2d 631, 633 (CA10 1986); O’Neill v. Nestle Libbys P. R., Inc., 729 F. 2d 35, 37 (CA1 1984).

       As the Court recognizes, ante, at 401, sponsors of the legislation in the House and Senate made identical statements to this effect.

       As the Court of Appeals for the Sixth Circuit cogently explained: “The policy of section 547(b) is to set aside transfers that potentially prefer selected creditors; section 547(c), in turn, defines groups of creditors who are excepted. To give the word ‘transfer’ a different meaning in these complementary subparts seems inconsistent, unworkable, and confusing.” In re Belknap, Inc., 909 F. 2d 879, 883 (1990).


source: Caselaw Access Project

author: Justice Kennedy Justice White,

license: Public Domain

text:
    NATIONAL RAILROAD PASSENGER CORPORATION et al. v. BOSTON & MAINE CORP. et al.
    No. 90-1419.
    Argued January 13, 1992
    Decided March 25, 1992

      Kennedy, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Stevens, O’Connoe, Scalia, and Souter, JJ., joined. White, J., filed a dissenting opinion, in which Blackmun and Thomas, JJ., joined, post, p. 424.

      Acting Solicitor General Roberts argued the cause for petitioners in both cases. With him on the briefs for petitioners in No. 90-1769 were Deputy Solicitor General Wallace, Michael R. Dreeben, Robert S. Burk, Henri F. Rush, and Charles A. Stark. Robert P. vom Eigen, Charles I. Appier, Theodore A. Howard, Richard F Riley, Jr., Louis R. Cohen, Stephen C. Rogers, and Frederick C. Ohly filed briefs for petitioners in No. 90-1419.

      Irwin Goldbloom argued the cause for respondents in both cases and filed a brief for respondent Boston & Maine Corporation. Jeffrey L. Amestoy, Attorney General of Vermont, John K. Dunleavy, Assistant Attorney General, Rex E. Lee, G. Paul Moates, Ronald S. Flagg, Robert J. Baum, and Michael F. McBride filed a brief for respondents State of Vermont et al.

      Together with No. 90-1769, Interstate Commerce Commission et al. v. Boston & Maine Corp. et al., also on certiorari to the same court.

        Laurence Z. Shiekman, Paul A Cunningham, Robert M. Jenkins III, and Bruce B. Wilson filed a brief for Concerned Railroads as amicus curiae urging affirmance.

   Justice Kennedy

delivered the opinion of the Court.

The Interstate Commerce Commission (ICC or Commission) issued an order, upon the request of petitioner National Railroad Passenger Corporation, requiring conveyance of 48.8 miles of railroad track from respondent Boston and Maine Corporation (B&M) to the Corporation. In these consolidated cases we must decide whether the ICC’s decision was based on a reasonable interpretation and application of § 402(d) of the Rail Passenger Service Act, 45 U. S. C. § 562(d), the statute the Corporation invoked in the proceeding. We hold the ICC’s decision is authorized by the statute, and so reverse the judgment of the Court of Appeals for the District of Columbia Circuit, which set aside the Commission’s action.

I

The National Railroad Passenger Corporation, or Amtrak, is a private, for-profit corporation created by Congress in the Rail Passenger Service Act of 1970 (RPSA), Pub. L. 91-518, 84 Stat. 1328, 45 U. S. C. § 501 et seq. The purpose of Amtrak is to provide modern and efficient intercity and commuter rail passenger service. §§501, 541. Amtrak is not an agency or instrumentality of the United States Government, §541, but it has been supported over the years by congressional appropriations. Most of Amtrak’s passenger trains run over existing track systems owned and used by freight railroads. In the RPSA Congress authorized Amtrak to enter into “trackage rights” agreements which would allow Amtrak to use those tracks. When Amtrak and a freight railroad are unable to agree on the terms of such an agreement, Amtrak may request the ICC to order the track to be provided on reasonable terms. § 562(a).

In 1973 Congress amended the RPSA to add subsection (d) of § 402, 45 U. S. C. § 562(d). Section 562(d) provides in pertinent part:

“(1) If the Corporation [Amtrak] and a railroad are unable to agree upon terms for the sale to the Corporation of property (including interests in property) owned by the railroad and required for intercity rail passenger service, the Corporation may apply to the Commission [ICC] for an order establishing the need of the Corporation for the property at issue and requiring the conveyance thereof from the railroad to the Corporation on reasonable terms and conditions, including just compensation. Unless the Commission finds that—
“(A) conveyance of the property to the Corporation would significantly impair the ability of the railroad to carry out its obligations as a common carrier; and
“(B) the obligations of the Corporation to provide modern, efficient, and economical rail passenger service can adequately be met by the acquisition of alternative property (including interests in property) which is available for sale on reasonable terms to the Corporation, or available to the Corporation by the exercise of its authority under section 545(d) of this title,
“the need of the Corporation for the property shall be deemed to be established and the Commission shall order the conveyance of the property to the Corporation on such reasonable terms and conditions as it may prescribe, including just compensation.”

Amtrak may condemn nonrail property under a somewhat similar provision, § 545(d), a statute not at issue here.

The Amtrak train the “Montrealer” began offering passenger service between Washington, D. C., and Montreal in 1972. In parts of Massachusetts, Vermont, and New Hampshire the train used the tracks of the Connecticut River Line (Conn River Line), portions of which are owned by B&M and other portions by the Central Vermont Railroad (CV). B&M and CV have operated freight trains on the Conn River Line under reciprocal “trackage rights” agreements dating back to 1930.

In 1977 Amtrak entered into a “trackage rights” agreement with B&M under which B&M agreed to maintain its portions of the Conn River Line. Those portions include a 48.8-mile segment of track on the Conn River Line between Brattle-boro and Windsor, Vermont. This is the segment of track at issue here. At first the arrangement to maintain the track proceeded well, but in the early 1980’s problems developed. Guilford Transportation Industries, Inc., purchased B&M out of bankruptcy, and purchased also a railroad operating a parallel line. Amtrak’s claim is that neglect of track maintenance resulting from this purchase caused delays in Mon-trealer service. Maintenance of the Brattleboro-Windsor track was so poor that at points the train was slowed to five miles an hour. Negotiations for better maintenance were unsuccessful. In April 1987 Amtrak was forced to discontinue its Montrealer service.

Congress responded to these events in July 1987 by appropriating $5 million to upgrade the Montrealer route. Act of July 11, 1987, Pub. L. 100-71, 101 Stat. 447-448. Amtrak decided not to spend the money to upgrade the Conn River Line while B&M continued to own it, because in Amtrak’s view B&M could not be relied upon to maintain the track once restored. Amtrak began negotiations with CV and, in early 1988, reached a preliminary agreement. Amtrak promised to use its statutory condemnation power to acquire the 48.8 miles of track in question, to at once reconvey the track to CV, and to provide up to $3.1 million to upgrade and rehabilitate the segment. In return, CV promised to provide the balance of the funds necessary to upgrade the track, to maintain the track for 20 years in a condition meeting Amtrak’s standards, to grant Amtrak trackage rights for 20 years, and to grant B&M trackage rights to serve its existing customers. As a prerequisite to invoking § 562(d), Amtrak made an offer to B&M to purchase the segment for $1 million, on a take-it-or-leave-it basis. B&M offered to negotiate the terms under which it would be willing to upgrade the segment and stated: “[I]t appears clear that there is no need to pursue the very complex ‘offer to purchase’ set forth in your letter.” App. 60. B&M’s refusal to accept the offer seems to have been anticipated by Amtrak and CV, as indicated by an internal CV Memorandum written in January 1988. App. 94.

Interpreting the B&M communication as a rejection of its offer, Amtrak instituted this proceeding before the ICC to compel conveyance of the. track. CV filed a simultaneous request for an exemption from ICC regulation for its acquisition of the segment upon reconveyance from Amtrak.

B&M assessed the transaction as a significant shift in its long competition with CV for freight traffic. CV already owned large parts of the Conn River Line and after the proposed transaction it would own most of it. Though B&M would have trackage rights, CV would gain not only ownership of the segment, but also the right to obtain new customers on its route. B&M alleged this gave a new advantage to CV’s corporate parent, the Canadian National Railway Company, for each railroad links up with competing companies in Canada. CV’s lines link to Canadian National, while B&M’s lines link to the Canadian Pacific, Ltd., Canadian National’s competitor. B&M challenged the transaction as simply a device to shift ownership among railroads, not to give ownership to Amtrak, which, B&M argued, was the sole purpose of the condemnation provision.

B&M filed initial objections to the § 562(d) proceeding on two grounds: that Amtrak had not shown that the parties were unable to agree on reasonable terms of sale, and that § 562(d) did not authorize condemnation of railroad lines. The ICC rejected B&M’s arguments and in a condemnation proceeding held that Amtrak had shown the inability of the parties to agree to terms. It ruled that § 562(d) covers railroad tracks because tracks are “rail property ‘required for intercity rail passenger service.’ ” App. to Pet. for Cert, in No. 90-1419, pp. 130a-133a. B&M next sought to convert the proceeding into a trackage rights proceeding under § 562(a), but the ICC again rejected B&M’s position, holding that Amtrak had an “election of remedies” under § 562 and so had no obligation to seek trackage rights under subsection (a) before invoking subsection (d). Id., at 115a-116a. Meanwhile, CV and the States of Vermont and Massachusetts, as well as numerous other parties, intervened in the ICC proceeding. (CV appears as a petitioner before this Court, and Vermont and Massachusetts support petitioners.)

This was the first decided case involving Amtrak’s condemnation powers under § 562(d). Id., at 39a. The ICC issued its final decision in 1988 and ordered conveyance of the segment with just compensation of $2,373,286. It reaffirmed earlier rulings and found that Amtrak “ha[d] met the statutory criteria for the institution of a proceeding” under § 562(d). Id., at 40a-42a, 81a.

The ICC concluded that the presumption of Amtrak’s need for the track contained in § 562(d)(1) was applicable. In its view both statutory criteria must be met to rebut the presumption, and B&M had established neither. As to alternative property (subsection (B)), the ICC found that no reasonable alternative route existed for the Montrealer service. And as to significant impairment of B&M’s ability to carry out its common carrier obligations (subsection (A)), the ICC found that because B&M had been awarded just compensation and could continue to serve its customers under the “trackage rights” agreement which was part of the transaction, its ability had not been impaired. Id., at 45a-46a. The bulk of the ICC’s final decision deals with the question of just compensation, which is not before this Court. See infra, at 424.

On petition for review, a divided panel of the Court of Appeals for the District of Columbia Circuit granted the petition and remanded the matter to the ICC for further proceedings. 286 U. S. App. D. C. 1, 911 F. 2d 743 (1990). The majority held that § 562(d) does not permit Amtrak to condemn railroad property which it intends to reconvey to another railroad. It acknowledged that the ICC had interpreted § 562 in a different way, and that in the usual course judicial deference would be given to its interpretation under the principles enunciated in Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984); but the court concluded that § 562(d) is unambiguous in light of its language and history, and so no deference was due. The panel majority reasoned that because Amtrak did not intend to retain the track to be condemned, it needed only its use, not its ownership. As Amtrak could obtain use of the property by obtaining either a “trackage rights” agreement under § 562(a), or by condemning an easement under § 562(d), the entire fee interest was not “ ‘required for intercity rail passenger service.’” 286 U. S. App. D. C., at 8, 911 F. 2d, at 750. The majority stated that its holding was confirmed by other considerations, including: (1) the potential constitutional problems, under the Takings Clause, raised by the ICC’s interpretation of § 562(d); (2) the structure of §562, which indicated an intent on the part of Congress to relegate Amtrak to trackage rights under § 562(a) when seeking only the use of track; and (3) Congress’ policy against cross-subsidization between sectors of the railroad industry, which the majority concluded would have been violated by this transaction. Judge Ruth B. Ginsburg concurred separately, rejecting the majority’s interpretation of the statute, but concluding that a remand to the ICC was necessary because the ICC had not made adequate findings to determine whether Amtrak in fact needed to shift ownership of the segment from B&M to CV to protect its interests. Id., at 11-13, 911 F. 2d, at 753-755. This factual question, whether Amtrak’s portrayal of a recalcitrant B&M is accurate, remains in dispute. Under our resolution of the case, however, the issue need not be reached.

Amtrak and the ICC filed petitions for rehearing, and while the petitions were pending Congress amended § 562(d). The amendment, adopted in specific response to the Court of Appeals’ decision in this case, added the following sentence to § 562(d)(1): “The Corporation may subsequently convey title or other interest in such property to a third party, if such reconveyance is found by the Commission to further the purposes of this Act.” Independent Safety Board Act Amendments of 1990 § 9(a), Pub. L. 101-641, 104 Stat. 4658. The amendment was made applicable to all pending cases, §9(b), and B&M does not dispute that it applied in this case even while it was before the Court of Appeals on rehearing. Brief for Respondent B&M 33-35. The Court of Appeals considered the 1990 amendment, but denied rehearing nonetheless. 288 U. S. App. D. C. 196, 925 F. 2d 427 (1991). The panel majority held that while § 9 made it clear Amtrak was authorized to reconvey condemned property “subsequent to a condemnation that is otherwise valid under [§ 562(d)],” it did not change the statutory limitation that the property be “ ‘required for intercity rail passenger service’ ” in the first place. Id., at 197, 925 F. 2d, at 428 (emphasis in original). The majority reasoned that since its original decision was based on Amtrak’s failure to satisfy that requirement, the amendment did not affect its holding. The majority also distinguished a case from the Second Circuit, National Railroad Passenger Corp. v. Two Parcels of Land, 822 F. 2d 1261, cert. denied, 484 U. S. 954 (1987), which had interpreted § 545(d)(1) (the provision authorizing Amtrak to condemn nonrail property) to permit reconveyance following condemnation. 288 U. S. App. D. C., at 196-197, 425 F. 2d, at 427-428. In a separate opinion, Judge Ginsburg wrote that the amendment confirmed her view that the ICC had not misinterpreted the statute, but that a remand remained necessary for further factual determinations.

Amtrak and CV, in No. 90-1419, and the ICC, in No. 90-1769, filed separate petitions seeking review of the Court of Appeals’ decision. We granted certiorari and consolidated the cases. 502 U. S. 807 (1991). We now reverse.

II

The primary question raised by these cases is a straightforward matter of statutory interpretation: whether § 562(d), as amended, authorizes the condemnation and transaction approved by the ICC but set aside by the Court of Appeals. The Court of Appeals disallowed the transaction based on its own interpretation of the language “required for intercity rail passenger service” in § 562(d)(1). In so holding it limited Amtrak’s condemnation authority to property that was necessary, in the sense of indispensable, to Amtrak’s operations. The ICC interpreted the relevant statutory language to give Amtrak more latitude, and it is our task to determine whether the Commission had authority for its statutory interpretation.

Judicial deference to reasonable interpretations by an agency of a statute that it administers is a dominant, well-settled principle of federal law. We relied upon it in Chevron U S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984), and have reaffirmed it often. See, e. g., K mart Corp. v. Cartier, Inc., 486 U. S. 281, 292-293 (1988); Pauley v. BethEnergy Mines, Inc., 501 U. S. 680, 696-697 (1991). These decisions mandate that when a court is reviewing an agency decision based on a statutory interpretation, “if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute.” Chevron U. S. A., supra, at 843. If the agency interpretation is not in conflict with the plain language of the statute, deference is due. K mart Corp., 486 U. S., at 292. In ascertaining whether the agency’s interpretation is a permissible construction of the language, a court must look to the structure and language of the statute as a whole. Id., at 291; Sullivan v. Everhart, 494 U. S. 83, 89 (1990). If the text is ambiguous and so open to interpretation in some respects, a degree of deference is granted to the agency, though a reviewing court need not accept an interpretation which is unreasonable.

Under these principles the ICC’s interpretation of § 562(d) was permissible, and the Court of Appeals’ decision was in error to disregard it. While the ICC’s opinion is not explicit in all of its details, the Commission’s decision is based on a reading of the statute quite different from the Court of Appeals’. The ICC agreed that property Amtrak seeks to condemn under § 562(d) must be “required for intercity rail passenger service.” It determined, however, that the word “required” need not mean, as the Court of Appeals’ opinion suggests, indispensable or necessary. Instead, the ICC gave effect to the statutory presumption of Amtrak’s need for the track, and in so doing implemented and interpreted the statute in a manner that comports with its words and structure. The analysis of the Court of Appeals is inconsistent with the Commission’s interpretation of the statutory presumption of need. The ICC’s position before the Court is that “required” can also mean “useful or appropriate,” Brief for Petitioners in No. 90-1769, p. 17, and that the order under review adopted that meaning. We agree that the manner in which the ICC has applied the statute in this case has that interpretation as its basic premise. App. to Pet. for Cert, in No. 90-1419, pp. 42a-46a.

In its brief the ICC cites a dictionary definition in support of its view. Brief for Petitioners in No. 90-1769, p. 17, citing Webster’s Third New International Dictionary 1929 (1986). The existence of alternative dictionary definitions of the word “required,” each making some sense under the statute, itself indicates that the statute is open to interpretation. See Sullivan v. Everhart, supra. Few phrases in a complex scheme of regulation are so clear as to be beyond the need for interpretation when applied in a real context. Further, the structure of the provision reinforces our conclusion that statutory interpretation is appropriate and that the Court of Appeals’ interpretation is itself open to serious question. The court defined the word “required” to establish a separate condition that the property sought to be condemned be necessary (indispensable) for Amtrak’s operations, a view which is not without support. See, e. g., American Heritage Dictionary of the English Language 1105 (2d ed. 1981). This interpretation, though, leaves little substance to the statutory presumption in favor of Amtrak’s need and so is in clear tension with that part of the statute.

We decide that § 562(d) is ambiguous in some respects and conclude that the ICC’s interpretation of the word “required” is a reasonable one. We defer to its interpretation. This is not to say that the issue is beyond dispute, but these alternative interpretations are as old as the jurisprudence of this Court. In McCulloch v. Maryland, 4 Wheat. 316, 413 (1819), Chief Justice Marshall, in a choice of interpretations with some parallels to this one, read the word “necessary” to mean “convenient, or useful,” rejecting a stricter reading of the term which would have limited congressional power under the Constitution to the “most direct and simple” means available. We think that as a matter of definition and interpretation in the context of this statute it is plausible, if not preferable, to say that Amtrak can find that an acquisition is required when it is a useful and appropriate way to accomplish its goals.

The Commission’s interpretation is consistent also with the 1990 statutory addition enacted by Congress. While the amendment does not modify the specific language of § 562(d) at issue here, it confirms the ICC’s view. The interpretation given to § 562(d) by the Court of Appeals and B&M, on the other hand, would make the amendment superfluous, because if the word “required” has the strict meaning they seek to attribute to it, condemnations by Amtrak would seem to be barred whenever Amtrak’s purpose is to reconvey the property.

Contrary to the position of the dissent, we are not “deferring to what we imagine an agency had in mind.” Post, at 428. Rather, we defer to an interpretation which was a necessary presupposition of the ICC’s decision. We recognize the well-established rule that an agency’s action may not be upheld on grounds other than those relied on by the agency. SEC v. Chenery Corp., 318 U. S. 80, 88 (1943). But the fact that the ICC did not in so many words articulate its interpretation of the word “required” does not mean that we may not defer to that interpretation, since the only reasonable reading of the Commission’s opinion, and the only plausible explanation of the issues that the Commission addressed after considering the factual submissions by all of the parties, is that the ICC’s decision was based on the proffered interpretation. Chenery does not require a remand under those circumstances. It is noteworthy in this regard that neither party contends the ICC’s decision was not informed and governed by this statutory interpretation. B&M’s primary argument to the Court is that the word required must mean necessary. Brief for Respondent B&M 16, 22, 44. But this, as we have said, is quite inconsistent with the statutory presumption of need to which the ICC gave effect.

There is no dispute on this record that Amtrak intends to use the condemned track for its Montrealer service. Under the ICC’s view that use is sufficient to satisfy the statutory command that the rail property be “required for intercity rail passenger service.” This is a reasonable interpretation and application of the RPSA. And it ends the judicial inquiry on this point.

What we have said also answers Judge Ginsburg’s concern that the ICC must make specific findings regarding Amtrak’s actual need for the condemnation. The contention that such a finding was necessary, to implement the statutory criterion that the property be “required for intercity rail passenger service,” was the basis for Judge Ginsburg’s concurrence in the Court of Appeals. 286 U. S. App. D. C., at 12, 911 F. 2d, at 754. That position, however, appears to be based on the same interpretation of the word “required” as that adopted by the Court of Appeals’ majority, and so is inconsistent with the ICC’s interpretation. The ICC contends that the factual finding is not mandated. It argues that the structure of the statute, combined with the presumption created by the statute of Amtrak’s need for the property sought, creates a strong inference that the statute authorizes Amtrak to make a reasonable business judgment that condemnation of the property is advisable. We agree. The ICC’s oversight responsibility, exercised by enforcing the “required for intercity rail passenger service” language as interpreted by the Commission, is limited to ensuring that the condemned property will be used in Amtrak’s rail operations. The further determination of need is delegated to Amtrak, unless the statutory presumption is rebutted; and it is not rebutted here. Indeed, as our discussion above indicates, supra, at 418-419, it seems to us that any other interpretation may be inconsistent with the statutory presumption of need. In all events, the ICC’s interpretation is a reasonable one, and we may not substitute a different view.

Arguing against the ICC’s interpretation, B&M cites to us cases such as United States v. Carmack, 329 U. S. 230, 243, n. 13 (1946), which suggest that delegations of eminent domain power to private entities are of a limited nature. We do not believe that argument has any relevance here because Amtrak does not exercise eminent domain power under § 562(d). Rather, the statute gives that power to the ICC, a Government agency. To be sure, the statute creates a presumption in favor of conveyance to Amtrak. But the ICC must assess the impact of any condemnation and make a determination as to just compensation. Since § 562(d) is a proper exercise of regulatory authority, and the ICC’s oversight of Amtrak is intended to ensure compliance with the statute, the eminent domain power here is not private.

Furthermore, this case turns on the need for deference to the ICC, not Amtrak. There is nothing in the cases B&M cites contradicting the rule of judicial deference to an agency’s statutory interpretation, even when the statute is one authorizing condemnation of private property. In short, the principle advanced by B&M does not prevail over Chevron’s rule of deference.

We also reject B&M’s constitutional objections. B&M claims that § 562(d) as interpreted by the Commission violates the “public use” requirement of the Fifth Amendment’s Takings Clause, because the transaction leaves unchanged the use made by Amtrak of the condemned track. B&M’s position cannot be reconciled with our precedents. We have held that the public use requirement of the Takings Clause is coterminous with the regulatory power, and that the Court will not strike down a condemnation on the basis that it lacks a public use so long as the taking “is rationally related to a conceivable public purpose.” Hawaii Housing Authority v. Midkiff, 467 U. S. 229, 240-241 (1984); see also Berman v. Parker, 348 U. S. 26, 32-34 (1954). In Midkiff we upheld land reform legislation which authorized condemnations for the specific purpose of transferring ownership to another private party, in order to eliminate a land oligopoly. In Berman we permitted land condemnations which contemplated reselling the land to redevelopers, as part of a plan to restore dilapidated sections of the District of Columbia. In both Midkiff and Berman, as in the present case, condemnation resulted in the transfer of ownership from one private party to another, with the basic use of the property by the government remaining unchanged. The Court held these exercises of the condemnation povier to be constitutional, as long as the condemning authorities were rational in their positions that some public purpose was served. Those holdings control here, for there can be no serious argument that the ICC was irrational in determining that the condemnation will, serve a public purpose by facilitating Amtrak’s rail service. That suffices to satisfy the Constitution, and we need not make a specific factual determination whether the condemnation will accomplish its objectives. Midkiff, supra, at 242-243.

As a last effort, B&M argues that this matter must be remanded to the ICC because the Commission did not make adequate and accurate findings regarding several different matters. B&M claims that Amtrak failed to prove the parties were “‘unable’ to agree” on terms of sale. In B&M’s view, § 562(d) demands that Amtrak engage in “good faith ... negotiations” before it may invoke its condemnation powers. Brief for Respondent B&M 42. The ICC construed the language of § 562(d) in a more narrow fashion, to mandate nothing more than a factual determination that the parties will not be able to reach agreement through further negotiations. App. to Pet. for Cert, in No. 90-1419, pp. 130a-131a (“Nothing in this record provides any indication that Amtrak and B&M will ever reach agreement on terms of sale”). This is a reasonable interpretation of the phrase “unable to agree upon terms for the sale,” and we do not substitute a different view. Thus the Commission did not err in concluding that this statutory prerequisite was satisfied.

B&M argues further that the ICC made inadequate factual findings in concluding: (1) that this conveyance will not significantly impair B&M’s ability to carry out its obligations as a common carrier, § 562(d)(1)(A); and (2) that Amtrak’s obligations cannot be met by the acquisition of alternative property, § 562(d)(1)(B). As to significant impairment, B&M’s argument, like the decision of the Court of Appeals on this point, 286 U. S. App. D. C., at 8-9, 911 F. 2d, at 750-751, relies on the notion that in assessing impairment the ICC may consider only the conveyance itself, not any mitigating measures adopted in response to the conveyance, such as the grant of trackage rights to B&M. We find no basis in the text or structure of § 562(d) for this position and cannot say that the statute must be interpreted to mandate such a restrictive inquiry. The ICC was not unreasonable in considering the effect of the “trackage rights” agreements and the just compensation award in assessing significant impairment; and the ICC’s conclusion, that B&M’s ability to carry out its common carrier obligations will not be impaired by the transaction in any significant way, is supported by substantial evidence. As to the availability of alternative property, the ICC interpreted that provision as referring only to whether Amtrak could provide service using an alternative route, not whether a lesser interest in property would suffice to meet Amtrak’s needs. Again, this was a reasonable reading to which we defer. Since B&M would have to prevail on both the significant impairment and alternative property issues to rebut Amtrak’s presumption of need, there can be no doubt that the ICC’s finding that Amtrak established its need for the property must be affirmed.

Ill

For the reasons we have stated, we hold that the ICC did not exceed its authority in ordering conveyance of the 48.8-mile segment of the Conn River Line from B&M to Amtrak. Because of its contrary holding on this point, the Court of Appeals did not address the parties’ challenges to the ICC’s just compensation finding as well as certain other issues. Id., at 11, 911 F. 2d, at 753. These questions should be resolved on remand. The judgment of the Court of Appeals is reversed, and the cases are remanded for further proceedings consistent with this opinion.

It is so ordered.

Justice White,

with whom Justice Blackmun and Justice Thomas join, dissenting.

The majority opinion proceeds from the well-established principle that courts should defer to permissible agency interpretations of ambiguous legislation. Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 843 (1984); Pauley v. BethEnergy Mines, Inc., 501 U. S. 680, 696-697 (1991). I have no quarrel with that general proposition. I do, however, object to its invocation to justify the majority’s deference, not to an agency interpretation of a statute, but to the post hoc rationalization of Government lawyers attempting to explain a gap in the reasoning and factfinding of the Interstate Commerce Commission (ICC or Commission). Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. Automobile Ins. Co., 463 U. S. 29, 50 (1983).

Section 402(d) of the RPSA, codified at 45 U. S. C. § 562(d), provides that Amtrak may apply to the ICC for an order directing the conveyance of another railroad’s property if Amtrak can meet two conditions: Amtrak and the other railroad must be unable to agree upon terms for sale of the property, and the property must be “required for intercity rail passenger service.” If these conditions are met, “the need of [Amtrak] for the property shall be deemed to be established,” and the other railroad will be able to retain its property only if it can rebut the strong presumption of Amtrak’s need. Ibid.

Because conferring upon Amtrak the presumption of need will determine the outcome of most disputes under this section, the two conditions that Amtrak must establish to receive the benefit of the presumption assume particular importance. However, in the present case, the ICC failed to address one of these factors. Although the Commission determined that the parties had been unable to come to terms for sale of the disputed property, see App. to Pet. for Cert, in No. 90-1419, pp. 130a-131a, it neither interpreted nor applied the second condition, that the property be “required for intercity rail passenger service.” Instead, after rejecting respondent Boston & Maine Corporation’s argument that Amtrak could restore Montrealer service by obtaining track-age rights or an easement, the ICC simply concluded that “Amtrak has demonstrated sufficient reason to justify acquisition of ownership of the line.” Id., at 43a.

The majority acknowledges that “the ICC’s opinion is not explicit in all of its details,” see ante, at 418, but nevertheless concludes that the Commission’s reading of the statute is entitled to deference because it “gave effect to the statutory presumption of Amtrak’s need for the track, and in so doing implemented and interpreted the statute in a manner that comports with its words and structure.” Ibid. But this begs the question of what showing Amtrak must make to establish that the track is “required” so that Amtrak may therefore obtain the benefit of the presumption of need.

The simple fact is that the ICC never addressed this point, and therefore failed to construe a key portion of the statute. The omission is particularly significant because this is the first action treating Amtrak’s condemnation powers under § 402(d) of the Act; it will guide future adjudications.

Rather than acknowledging the ICC’s omission and remanding for clarification and factfinding, the majority relies on the Government’s argument that the Commission must have interpreted the word “required” as meaning “useful or appropriate.” Ibid. But this interpretation was not developed by the ICC during its administrative proceedings. Indeed, the explanation was not even proposed in the Commission’s argument to the Court of Appeals. This ICC definition of “required” debuted in the Commission’s briefs before this Court. It is nothing more than a creation of appellate counsel, concocted to fill the gaps in the Commission’s analysis. “The short — and sufficient — answer to [this] submission is that the courts may not accept appellate counsel’s post hoc rationalizations for agency action. ... It is well established that an agency’s action must be upheld, if at all, on the basis articulated by the agency itself.” Motor Vehicle Mfrs. Assn., supra, at 50 (emphasis added), citing Burlington Truck Lines, Inc. v. United States, 371 U. S. 156, 168 (1962); SEC v. Chenery Corp., 332 U. S. 194, 196-197 (1947); American Textile Mfrs. Institute, Inc. v. Donovan, 452 U. S. 490, 539 (1981). Therefore, the majority is simply wrong in asserting that, even though “the ICC did not in so many words articulate its interpretation of the word ‘required,’ ” the Court may nevertheless defer to the Commission’s decision. See ante, at 420 (emphasis added).

Because of the gap in the ICC’s interpretation of the statute, “[t]here are no findings and no analysis here to justify the choice made, no indication of the basis on which the Commission exercised its expert discretion.” Burlington Truck Lines, Inc., supra, at 167. The majority concludes, again based on the agency’s presumed interpretation of the statute, that the Commission was not obligated to make specific findings as to whether the property was “ ‘required for intercity rail passenger service.’” See ante, at 420. This magnifies the ICC’s mistake; an administrative “agency must make findings that support its decision, and those findings must be supported by substantial evidence.” Burlington Truck Lines, Inc., 371 U. S., at 168.

Deferring to a federal agency’s construction of the legislation that it is charged with administering is one thing. But deferring to inferences derived from reading between the lines of an agency decision or excerpted from the brief of a Government lawyer is another matter entirely. “For the courts to substitute their or counsel’s discretion for that of the Commission is incompatible with the orderly functioning of the process of judicial review.” Id., at 169. Because the ICC has failed to provide a clear, authoritative construction of “required for intercity rail passenger service,” we should return this case to the Commission so that the agency can do its job properly. But we should not strain the Chevron principle by deferring to what we imagine an agency had in mind when it applied a statute. Therefore, I respectfully dissent.

       1 agree with the majority that the Court of Appeals erred in concluding that § 402(d) of the Rail Passenger Service Act (RPSA), 45 U. S. C. § 662(d), unambiguously prohibits transactions such as the sale and leaseback arrangement between Amtrak and the Central Vermont Railroad. Legislation passed while this case was pending before the Court of Appeals makes it clear that such transactions are permissible. Independent Safety Board Act Amendments of 1990 § 9(a), Pub. L. 101-641, 104 Stat. 4658.

       This is how the Commission framed its argument to the Court of Appeals:
      “Under Chevron [U S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984)], the Commission had broad discretion to interpret RPSA in this proceeding. This is certainly true with regard to the central issu[e] of determining .. . what must be shown to justify a taking under section 402(d) .... As to [this] issue, „the statute merely states that Amtrak’s need for the property will be presumed unless the transfer will significantly impair the ability of the carrier to carry out its common carrier obligations and Amtrak’s needs, can be met with alternative property.” Joint Brief for Respondents in No. 88-1631 (CADC), pp. 15 — 16.


author: Justice Thomas

text:
    ROBERTSON, CHIEF, UNITED STATES FOREST SERVICE, et al. v. SEATTLE AUDUBON SOCIETY et al.
    No. 90-1596.
    Argued December 2, 1991
    Decided March 25, 1992

      Thomas, J., delivered the opinion for a unanimous Court.

      Solicitor General Starr argued the cause for petitioners. With him on the briefs were Acting Assistant Attorney General Hartman, Deputy Solicitor General Wallace, Clifford M. Sloan, Peter R. Steenland, Jr., Martin W. Matzen, and Anne S. Almy.

      Todd T True argued the cause for respondents. With him on the brief for respondents Seattle Audubon Society et al. were John Bonine, Michael Axline, and Victor M. Sher. Phillip D. Chadsey filed a brief for respondents Association of 0 & C Counties et al. Mark C. Rutzick filed briefs for respondents Northwest Forest Resource Council et al.

      Briefs of amici curiae urging affirmance were filed for the State of Florida et al. by Robert A Butterworth, Attorney General of Florida, Jonathan Glogau, Assistant Attorney General, and by the Attorneys General for their respective States as follows: Grant Woods of Arizona, Winston Bryant of Arkansas, Richard Blumenthal of Connecticut, Michael E. Carpenter of Maine, Hubert H. Humphrey III of Minnesota, Mike Moore of Mississippi, Frankie Sue Del Papa of Nevada, Robert J. Del Tufo of New Jersey, Nicholas J. Spaeth of North Dakota, Lee Fisher of Ohio, and Dan Morales of Texas; and for Public Citizen by Patti A Goldman, Alan B. Morrison, and David C. Vladeck.

   Justice Thomas

delivered the opinion of the Court.

In this case we must determine the operation of §318 of the Department of the Interior and Related Agencies Appropriations Act, 1990.

I

This case arises out of two challenges to the Federal Government’s continuing efforts to allow the harvesting and sale of timber from old-growth forests in the Pacific Northwest. These forests are home to the northern spotted owl, a bird listed as threatened under the Endangered Species Act of 1973, 16 U. S. C. § 1531 et seq. (1988 ed. and Supp. II), since June 1990. See 55 Fed. Reg. 26114. Harvesting the forests, say environmentalists, would kill the owls. Restrictions on harvesting, respond local timber industries, would devastate the region’s economy.

Petitioner Robertson is Chief of the United States Forest Service, which manages 13 national forests in Oregon and Washington known to contain the northern spotted owl. In 1988, the Service amended its regional guide to prohibit timber harvesting on certain designated areas within those forests. Respondent Seattle Audubon Society (joined by various other environmental groups) and the Washington Contract Loggers Association (joined by various other industry groups) filed separate lawsuits in the District Court for the Western District of Washington, complaining respectively that the amendment afforded the owl either too little protection, or too much. Seattle Audubon alleged violations of three federal statutes: the Migratory Bird Treaty Act (MBTA), 40 Stat. 755, ch. 128, as amended, 16 U. S. C. §703 et seq. (1988 ed. and Supp. II); the National Environmental Policy Act of 1969 (NEPA), 83 Stat. 852, as amended, 42 U. S. C. §4321 et seq.; and the National Forest Management Act of 1976 (NFMA), 90 Stat. 2949, as amended, 16 U. S. C. §1600 et seq. The District Court consolidated the actions and preliminarily enjoined 163 proposed timber sales. Seattle Audubon Soc. v. Robertson, No. 89-160 (WD Wash., Mar. 24, 1989).

Petitioner Lujan is Secretary of the Department of the Interior. The Bureau of Land Management (BLM), an agency within the Department, manages several old-growth forests in western Oregon. Between 1979 and 1983, the BLM developed timber management plans that permitted harvesting on some areas within these forests and prohibited it on others. In 1987, the BLM and the Oregon Department of Fish and Wildlife executed an agreement that expanded the areas on which harvesting was prohibited. Also in 1987, respondent Portland Audubon Society (among others) filed suit in the District Court for the District of Oregon, challenging certain proposed harvesting under- four federal statutes: MBTA; NEPA; the Federal Land Policy and Management Act of 1976 (FLPMA), 90 Stat. 2744, as amended, 43 U. S. C. § 1701 et seq.; and the Oregon-California Railroad Land Grant Act (OCLA), 50 Stat. 874, 43 U.S.C. § 1181a. Twice, the District Court dismissed the action. Twice before reversing (on grounds not relevant here), the Court of Appeals for the Ninth Circuit enjoined some of the challenged harvesting pending appeal. See Portland Audubon Soc. v. Lujan, 884 F. 2d 1233, 1234 (1989), cert. denied, 494 U. S. 1026 (1990); Portland Audubon Soc. v. Hodel, 866 F. 2d 302, 304, cert. denied sub nom. Northwest Forest Resource Council v. Portland Audubon Soc., 492 U. S. 911 (1989).

In response to this ongoing litigation, Congress enacted § 318 of the Department of the Interior and Related Agencies Appropriations Act, 1990, 103 Stat. 745, popularly known as the Northwest Timber Compromise. The Compromise established a comprehensive set of rules to govern harvesting within a geographically and temporally limited domain. By its terms, it applied only to “the thirteen national forests in Oregon and Washington and [BLM] districts in western Oregon known to contain northern spotted owls.” §318(i). It expired automatically on September 30, 1990, the last day of fiscal year 1990, except that timber sales offered under § 318 were to remain subject to its terms for the duration of the applicable sales contracts. § 318(k).

The Compromise both required harvesting and expanded harvesting restrictions. Subsections (a)(1) and (a)(2) required the Forest Service and the BLM respectively to offer for sale specified quantities of timber from the affected lands before the end of fiscal year 1990. On the other hand, subsections (b)(3) and (b)(5) prohibited harvesting altogether from various designated areas within those lands, expanding the applicable administrative prohibitions and then codifying them for the remainder of the fiscal year. In addition, subsections (b)(1), (b)(2), and (b)(4) specified general environmental criteria to govern the selection of harvesting sites by the Forest Service. Subsection (g)(1) provided for limited, expedited judicial review of individual timber sales offered under § 318.

This controversy centers around the first sentence of subsection (b)(6)(A), which stated in part:

“[T]he Congress hereby determines and directs that management of areas according to subsections (b)(3) and (b)(5) of this section on the thirteen national forests in Oregon and Washington and Bureau of Land Management lands in western Oregon known to contain northern spotted owls is adequate consideration for the purpose of meeting the statutory requirements that are the basis for the consolidated cases captioned Seattle Audubon Society et al., v. F. Dale Robertson, Civil No. 89-160 and Washington Contract Loggers Assoc. et al., v. F. Dale Robertson, Civil No. 89-99 (order granting preliminary injunction) and the case Portland Audubon Society et al., v. Manuel Lujan, Jr., Civil No. 87-1160-FR.”

Subsection (b)(6)(A) also declined to pass upon “the legal and factual adequacy” of the administrative documents produced by the 1988 Forest Service amendment and the 1987 BLM agreement.

After §318 was enacted, both the Seattle Audubon and Portland Audubon defendants sought dismissal, arguing that the provision had temporarily superseded all statutes on which the plaintiffs’ challenges had been based. The plaintiffs resisted on the ground that the first sentence of subsection (b)(6)(A), because it purported to direct the results in two pending cases, violated Article III of the Constitution. In Seattle Audubon, the District Court held that subsection (b)(6)(A) “can and must be read as a temporary modification of the environmental laws.” Seattle Audubon Soc. v. Robertson, No. 89-160 (WD Wash., Nov. 14, 1989). Under that construction, the court upheld the provision as constitutional and therefore vacated its preliminary injunction. Nonetheless, the court retained jurisdiction to determine whether the challenged harvesting would violate § 318 (if done in fiscal year 1990) or other provisions (if done later). In Portland Audubon, the District Court likewise upheld subsection (b)(6)(A), but dismissed the action entirely (without prejudice to future challenges arising after fiscal year 1990). Portland Audubon Soc. v. Lujan, No. 87-1160 (Ore., Dec. 21, 1989).

The Ninth Circuit consolidated the ensuing appeals and reversed. 914 F. 2d 1311 (1990). The court held that the first sentence of § 318(b)(6)(A) “does not, by its plain language, repeal or amend the environmental laws underlying this litigation,” but rather “directs the court to reach a specific result and make certain factual findings under existing law in connection with two [pending] cases.” Id., at 1316. Given that interpretation, the court held the provision unconstitutional under United States v. Klein, 13 Wall. 128 (1872), which it construed as prohibiting Congress from “directing] ... a particular decision in a case, without repealing or amending the law underlying the litigation.” 914 F. 2d, at 1315. The Ninth Circuit distinguished this Court’s decision in Pennsylvania v. Wheeling & Belmont Bridge Co., 18 How. 421 (1856), which it construed as permitting Congress to “amend or repeal any law, even for the purpose of ending pending litigation.” 914 F. 2d, at 1315 (emphasis in original).

On remand, the plaintiffs renewed their original claims. In Seattle Audubon, the District Court enjoined under NFMA 16 timber sales offered by the Forest Service during fiscal year 1990 in order to meet its harvesting quota under § 318(a)(1). See Seattle Audubon Soc. v. Robertson, No. 89-160 (WD Wash., Dec. 18,1990, and May 24,1991). While the District Court proceedings were ongoing, the agencies jointly sought review of the Ninth Circuit’s judgment that the first sentence of subsection (b)(6)(A) was unconstitutional. We granted certiorari, 501 U. S. 1249 (1991), and now reverse.

II

The first sentence of subsection (b)(6)(A) provided that “management of areas according to subsections (b)(3) and (b)(5)... is adequate consideration for the purpose of meeting the statutory requirements that are the basis for [Seattle Audubon] and [Portland Audubon].” The Ninth Circuit held that this language did not “amend” any previously existing “laws,” but rather “directed]” certain “factual findings” and “specific result[s]” under those laws. 914 F. 2d, at 1316. Petitioners interpret the provision differently. They argue that subsection (b)(6)(A) replaced the legal standards underlying the two original challenges with those set forth in subsections (b)(3) and (b)(5), without directing particular applications under either the old or the new standards. We agree.

We describe the operation of subsection (b)(6)(A) by example. The plaintiffs in both cases alleged violations of MBTA § 2, 16 U. S. C. § 703, which makes it unlawful to “kill” or “take” any “migratory bird.” ■ Before the Compromise was 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. 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 for judicial determination of the lawfulness of those sales. Section 318 did not instruct the courts whether any particular timber sales would violate subsections (b)(3) and (b)(5), just as the MBTA, for example, does not instruct the courts whether particular sales would “kill” or “take” any northern spotted owl. Indeed, § 318 could not instruct that any particular BLM timber sales were lawful under the new standards, because subsection (b)(5) incorporated by reference the harvesting prohibitions imposed by a BLM agreement not yet in existence when the Compromise was enacted. See n. 1, supra.

Respondents cite three textual features of subsection (b)(6)(A) in support of their conclusion that the provision failed to supply new law, but directed results under old law. First, they emphasize the imperative tone of the provision, by which Congress “determine^] and directed]” that compliance with two new provisions would constitute compliance with five old ones. Respondents argue that “Congress was directing the subsection [only] at the courts.” Brief for Respondents Seattle Audubon Society et al. 34. Petitioners, for their part, construe the subsection as “a directive [only] to the Forest Service and BLM.” Brief for Petitioners 30. We think that neither characterization is entirely correct. A statutory directive binds both the executive officials who administer the statute and the judges who apply it in particular cases — even if (as is usually the case) Congress fails to preface its directive with an empty phrase like “Congress . . . directs that.” Here, we fail to see how inclusion of the “Congress . . . directs that” preface undermines our conclusion that what Congress directed — to agencies and courts alike — was a change in law, not specific results under old law.

Second, respondents argue that subsection (b)(6)(A) did not modify old requirements because it deemed compliance with new requirements to “mee[t]” the old requirements. We fail to appreciate the significance of this observation. Congress might have modified MBTA directly, for example, in order to impose a new obligation of complying either with the current §2 or with subsections (b)(3) and (b)(5). Instead, Congress enacted an entirely separate statute deeming compliance with subsections (b)(3) and (b)(5) to constitute compliance with § 2 — a “modification” of the MBTA, we conclude, through operation of the canon that specific provisions qualify general ones, see, e. g., Simpson v. United States, 435 U. S. 6, 15 (1978). As explained above, each formulation would have produced an identical task for a court adjudicating the MBTA claims — determining either that the challenged harvesting did not violate § 2 as currently written or that it did not violate subsections (b)(3) and (b)(5).

Finally, respondents emphasize that subsection (b)(6)(A) explicitly made reference to pending cases identified by name and caption number. The reference to Seattle Audubon and Portland Audubon, however, served only to identify the five “statutory requirements that are the basis for” those cases— namely, pertinent provisions of MBTA, NEPA, NFMA, FLPMA, and OCLA. Subsection (b)(6)(A) named two pending cases in order to identify five statutory provisions. To the extent that subsection (b)(6)(A) affected the adjudication of the cases, it did so by effectively modifiying the provisions at issue in those cases.

In the alternative, the Ninth Circuit held that subsection (b)(6)(A) “could not” effect an implied modification of substantive law because it was embedded in an appropriations measure. See 914 F. 2d, at 1317. This reasoning contains several errors. First, although repeals by implication are especially disfavored in the appropriations context, see, e. g., TVA v. Hill, 437 U. S. 153, 190 (1978), Congress nonetheless may amend substantive law in an appropriations statute, as long as it does so clearly. See, e. g., United States v. Will, 449 U. S. 200, 222 (1980). Second, because subsection (b)(6)(A) provided by its terms that compliance with certain new law constituted compliance with certain old law, the intent to modify was not only clear, but express. Third, having determined that subsection (b)(6)(A) would be unconstitutional unless it modified previously existing law, the court then became obliged to impose that “saving interpretation,” 914 F. 2d, at 1317, as long as it was a “possible” one. See NLRB v. Jones & Laughlin Steel Corp., 301 U. S. 1, 30 (1937) (“[A]s between two possible interpretations of a statute, by one of which it would be unconstitutional and by the other valid, our plain duty is to adopt that which will save the act”).

We have no occasion to address any broad question of Article III jurisprudence. The Court of Appeals held that subsection (b)(6)(A) was unconstitutional under Klein because it directed decisions in pending cases without amending any law. Because we conclude that subsection (b)(6)(A) did amend applicable law, we need not consider whether this reading of Klein is correct. The Court of Appeals stated additionally that a statute would be constitutional under Wheeling Bridge if it did amend law. Respondents’ amicus Public Citizen challenges this proposition. It contends that even a change in law, prospectively applied, would be unconstitutional if the change swept no more broadly, or little more broadly, than the range of applications at issue in the pending cases. This alternative theory was neither raised below nor squarely considered by the Court of Appeals; nor was it advanced by respondents in this Court. Accordingly, we decline to address it here. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

       Subsection (b)(3) provided:
      “No timber sales offered pursuant to this section from the thirteen national forests in Oregon and Washington known to contain northern spotted owls may occur within [spotted owl habitat areas (SOHA’s)'] identified pursuant to the Final Supplement to the Environmental Impact Statement for an Amendment to the Pacific Northwest Regional Guide — Spotted Owl and the accompanying Record of Decision issued by the Forest Service on December 8,1988 as adjusted by this subsection:
      “(A) For the Olympic Peninsula Province, which includes the Olympic National Forest, SOHA size is to be 3,200 acres;
      “(B) For the Washington Cascades Province, which includes the Mt. Baker-Snoqualmie, Okanogan, Wenatchee, and Gifford-Pinchot National Forests, SOHA size is to be 2,600 acres;
      “(C) For the Oregon Cascades Province, which includes the Mt. Hood, Willamette, Rogue River, Deschutes, Winema, and Umpqua National Forests, SOHA size is to be 1,875 acres;
      “(D) For the Oregon Coast Range Province, which includes the Siuslaw National Forest, SOHA size is to be 2,500 acres; and
      “(E) For the Klamath Mountain Province, which includes the Siskiyou National Forest, SOHA size is to be 1,250 acres.
      “(F) All other standards and guidelines contained in the Chief’s Record of Decision are adopted.”
      Subsection (b)(5) provided:
      “No timber sales offered pursuant to this section on Bureau of Land Mangagement lands in western Oregon known to contain northern spotted owls shall occur within the 110 areas identified in the December 22, 1987 agreement, except sales identified in said agreement, between the Bureau of Land Management and the Oregon Department of Fish and Wildlife. Not later than thirty days after enactment of this Act, the Bureau of Land Management, after consulting with the Oregon Department of Fish and Wildlife and the United States Fish and Wildlife Service to identify high priority spotted owl area sites, shall select an additional twelve spotted owl habitat areas. No timber sales may be offered in the areas identified pursuant to this subsection during fiscal year 1990.”

       In its entirety, subsection (b)(6)(A) provided:
      “Without passing on the legal and factual adequacy of the Pinal Supplement to the Environmental Impact Statement for an Amendment to the Pacific Northwest Regional Guide — Spotted Owl Guidelines and the accompanying Record of Decision issued by the Forest Service on December 8,1988 or the December 22,1987 agreement between the Bureau of Land Management and the Oregon Department of Fish and Wildlife for management of the Spotted Owl, the Congress hereby determines and directs that management of areas according to subsections (b)(3) and (b)(5) of this section on the thirteen national forests in Oregon and Washington and Bureau of Land Management lands in western Oregon known to contain northern spotted owls is adequate consideration for the purpose of meeting the statutory requirements that are the basis for the consolidated cases captioned Seattle Audubon Society et al., v. F. Dale Robertson, Civil No. 89-160 and Washington Contract Loggers Assoc. et al., v. F. Dale Robertson, Civil No. 89-99 (order granting preliminary injunction) and the case Portland Audubon Society et al., v. Manuel Lujan, Jr., Civil No. 87-1160-FR. The guidelines adopted by subsections (b)(3) and (b)(5) of this section shall not be subject to judicial review by any court of the United States.”

       Because no timber sales offered by the BLM during fiscal year 1990 were ever enjoined, the §318 controversy between Portland Audubon and the BLM appears moot. We decide the case, however, because there remains a live controversy between Seattle Audubon and the Forest Service over the 16 sales offered during fiscal year 1990 and still enjoined under the NFMA.

       The northern spotted owl is a “migratory bird” within the meaning of MBTA. See 50 CFR § 10.13 (1991).