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Douglas Timber Operators, Inc., et al. v. Kenneth Salazar

March 31, 2011

DOUGLAS TIMBER OPERATORS, INC., ET AL. PLAINTIFFS,
v.
KENNETH SALAZAR, IN HIS OFFICIAL CAPACITY AS SECRETARY OF THE DEPARTMENT OF THE INTERIOR, DEFENDANT, AND PACIFIC RIVER COUNCIL, INTERVENOR-DEFENDANT.



The opinion of the court was delivered by: John D. Bates United States District Judge

MEMORANDUM OPINION

Plaintiffs, timber companies and trade and workers' associations that support enhanced timber harvest in western Oregon, challenge the decision of defendant, Secretary of the Interior Ken Salazar, to withdraw the Records of Decision ("ROD") approved on December 30, 2008, that had adopted the Western Oregon Plan Revisions for six Bureau of Land Management districts. The Secretary withdrew the ROD for the Western Oregon Plan Revisions on July 16, 2009, explaining that the December 2008 approval of the Western Oregon Plan Revisions ROD was "legal error" because the Bureau of Land Management had improperly concluded that it was not obligated to engage in inter-agency consultation under the Endangered Species Act. Plaintiffs make five claims that the withdrawal decision was unlawful. First, they allege that defendant violated the Federal Land Policy and Management Act ("FLPMA"). Second, plaintiffs allege that defendant violated the rulemaking procedures under the Administrative Procedure Act ("APA"). Third, they claim that defendant violated the public notice provision of the FLPMA, 43 U.S.C. §1712(f). Fourth, they allege that defendant's breach of the 2003 Settlement Agreement that established a December 31, 2008 deadline for revising the resource management plans for six western Oregon districts was arbitrary and capricious and an abuse of discretion under the APA. Fifth, and finally, plaintiffs allege that the defendant also violated the APA because the defendant's "legal error" explanation was not rationally connected to the Secretary's decision to completely withdraw the approved ROD. Defendant responds to each of those claims and also challenges plaintiffs' standing. For the following reasons, the Court will grant in part and deny in part plaintiffs' motion for summary judgment and grant in part and deny in part defendant's cross-motion.

BACKGROUND

A complex legal framework regarding the management of federal lands in Oregon provides the background for plaintiffs' claims. The Oregon and California Railroad and Coos Bay Wagon Road Grant Lands Act of 1937 ("O & C Act") provides for federal management of the land and for the sharing of timber revenues with the Oregon counties. See 43 U.S.C. § 1181a. The Act directs an "average annual cut [to] not exceed one-half billion feet board measure," an amount that "shall be sold annually, or so much thereof as can be sold at reasonable prices on a normal market." Id. Furthermore, the O & C Act directs that the lands will be managed "for the purpose of providing a permanent source of timber supply" and "contributing to the economic stability of local communities and industries." Id.

The Federal Land Policy and Management Act ("FLPMA"), 43 U.S.C. §§ 1701-87,governs the use of federal lands by the Bureau of Land Management ("BLM"). The FLPMA mandates that the Bureau shall manage federal lands based on "multiple use and sustained yield unless otherwise specified by law." 43 U.S.C. § 1701(7). The FLPMA provides that "[t]he Secretary shall . . . develop, maintain, and, when appropriate, revise land use plans," § 1712(a), and "allow an opportunity for public involvement and by regulation shall establish procedures, including public hearings where appropriate, to give Federal, State, and local governments and the public, adequate notice and opportunity to comment upon and participate in the formulation of plans and programs relating to the management of the public lands," § 1712(f); see also 43 C.F.R. § 1610.5.

On June 26, 1990, the northern spotted owl was listed as a threatened species by the United States Fish and Wildlife Service under the authority of the Endangered Species Act ("ESA"), 16 U.S.C. §§ 1531-44. See 55 Fed. Reg. 26,114-26,194. The northern spotted owl resides in late-successional and old-growth forests in Washington, Oregon and California, including in the six BLM districts at issue in this case. See id.; Fed. Def.'s Mot. for Summ. J. & Opp. to Pls.' Mot. for Summ. J. ("Def.'s Opp'n") [Docket Entry 34] at 4. The ESA prohibits agencies from taking action that is likely to "jeopardize the continued existence of any endangered species or threatened species." 16 U.S.C. § 1536(a)(2). The ESA also imposes procedural requirements on agencies to consult with the Fish and Wildlife Service or the National Marine Fisheries' Service whenever a federal action "may affect" an endangered or threatened species. See 50 C.F.R. §402.14(a).

These and other statutes that protect the often competing economic, aesthetic, and environmental interests in northwest forests have been a source of intense litigation over the past several decades. To address "litigation gridlock" between timber companies, conservationists, and the government, BLM and the United States Forest Service crafted the Northwest Forest Plan in an attempt to balance these competing interests in federal forests in a more comprehensive manner. See Def.'s Opp'n at 4. In effect, the Northwest Forest Plan reduced logging in certain areas to protect environmental interests.

The Northwest Forest Plan was the subject of a number of lawsuits in the mid-1990s. Two are particularly relevant here. The first, Seattle Audubon Soc'y v. Lyons, 871 F. Supp. 1291, 1300 (W.D. Wash 1994), aff'd, 80 F.3d 1401 (9th Cir. 1996), upheld the Northwest Forest Plan against a challenge by timber companies that the C & O Act did not permit management of those lands for any purpose other than sustained timber production. In the second case, American Forest Resource Council v. Abbey, Civ. No. 94-1031 (D.D.C.), four of the plaintiffs in this lawsuit, together with other citizens, raised the same challenges to the Northwest Forest Plan. On October 17, 2003, the parties' joint motion for voluntary dismissal was granted, pursuant to the terms of a settlement agreement. See Compl. [Docket Entry 1] ¶ 10; Def.'s Opp'n, Ex. 1 ("2003 Settlement Agreement"). The 2003 Settlement Agreement required the Bureau of Land Management to revise the resource management plans for the six western Oregon districts at issue here by December 31, 2008. Compl. ¶ 10; 2003 Settlement Agreement at 6.

On December 30, 2008, the Department of Interior adopted six revised resource management plans, collectively known as the Western Oregon Plan Revisions, for 2.5 million acres of BLM lands in western Oregon. Compl. ¶ 9; Pls.' Mot. for Summ. J. ("Pls.' Mot.") [Docket Entry 30] at 1. The ROD approving the six plans increased allowable annual timber harvest from the 208 million board feet provided under the Northwest Forest Plan to 502 million board feet. Compl. ¶¶ 9, 12. The Final Environmental Impact Statement ("FEIS") completed prior to adopting the ROD determined that "[t]he revision of resource management plans to allocate lands to various categories of use, with associated management direction for planning future activities on those lands, would have no impact on listed species or critical habitat." Administrative Record ("AR") 910 p. 94736.0951. The FEIS continued by explaining that "[t]he revision of resource management plans for such purpose does not create any legal right that would allow or authorize ground-disturbing activities without further agency decision-making and compliance with applicable statutes, including the ESA and NEPA." Id. Thus, because the FEIS determined that there would be "no impact" on endangered or threatened species, BLM did not initiate an ESA consultation on the Western Oregon Plan Revisions.

On October 30, 2008, after the FEIS had been issued, timber company plaintiffs who had entered into the 2003 Settlement Agreement filed a motion to enforce the agreement in American Forest Resource Council v. Abbey, Civ. No. 94-1031 (D.D.C.), arguing "that BLM's failure to initiate ESA consultation regarding the effect of the proposed resource management plans on threatened and endangered species was a repudiation of its implied obligation of good faith and fair dealing in the 2003 Settlement Agreement." Def.'s Opp'n at 9; Def.'s Opp'n, Ex. 3, AFRC's Motion to Enforce. They requested that the court order BLM to complete all required ESA consultation. The court denied plaintiffs' motion. American Forest Resource Council v. Abbey, Civ. No. 94-1031, Order Denying Motion [Docket Entry 103] at 1.

Subsequently, on July 16, 2009, the Acting Assistant Secretary of Interior for Land and Minerals Management issued a two-page memorandum to the Acting Director of the Bureau of Land Management that stated: "[b]ecause BLM's 'no effect' determination was legal error based on the record before me and applicable law, I am hereby withdrawing the WOPR RODs effective immediately." See Compl. ¶¶ 9, 13; Western Oregon Plan Revision Administrative Withdrawal Memorandum, July 16, 2009 ("Withdrawal Memo.") at 2. The public was also notified of the withdrawal decision on July 16, 2009. Compl. ¶ 13. No formal notice and comment period was provided.

STANDARD OF REVIEW

Summary judgment is appropriate under Fed. R. Civ. Pro. 56(a) when the pleadings and the evidence demonstrate that "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." In a case involving review of a final agency action under the Administrative Procedure Act, 5 U.S.C. § 706, however, the standard set forth in Rule 56(a) does not apply because of the limited role of a court in reviewing the administrative record. See National Wilderness Inst. v. United States Army Corps of Eng'rs, 2005 WL 691775, *7 (D.D.C. 2005); Fund for Animals v. Babbitt, 903 F. Supp. 96, 105 (D.D.C. 1995), amended on other grounds, 967 F. Supp. 2d 6 (D.D.C. 1997). Under the APA, it is the role of the agency to resolve factual issues to arrive at a decision that is supported by the administrative record, whereas "the function of the district court is to determine whether or not as a matter of law the evidence in the administrative record permitted the agency to make the decision it did." Occidental Eng'g Co. v. INS, 753 F.2d 766, 769-70 (9th Cir. 1985); see also Northwest Motorcycle Ass'n v. United States Dep't of Agriculture, 18 F.3d 1468, 1472 (9th Cir. 1994) ("[T]his case involves review of a final agency determination under the [APA]; therefore, resolution of th[e] matter does not require fact finding on behalf of this court. Rather, the court's review is limited to the administrative record."). Summary judgment thus serves as the mechanism for deciding, as a matter of law, whether the agency action is supported by the administrative record and otherwise consistent with the APA standard of review. See Richard v. INS, 554 F.2d 1173, 1177 & n.28 (D.C. Cir. 1977), cited in Bloch v. Powell, 227 F. Supp. 2d 25, 31 (D.D.C. 2002), aff'd, 348 F.3d 1060 (D.C. Cir.2003).

Plaintiffs challenge the July 16, 2009 withdrawal of the Western Oregon Plan Revision ROD under the APA as violating the requirements of the Federal Land Policy and Management Act. The APA requires that the Court "hold unlawful and set aside agency action, findings, and conclusions" that are "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). The "scope of review under the 'arbitrary and capricious' standard is narrow and a court is not to substitute its judgment for that of the agency." Motor Vehicle Mfrs. Assn. of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). The court must be satisfied that the agency has "'examine[d] the relevant data and articulate[d] a satisfactory explanation for its action including a rational connection between the facts found and the choice made.'" Alpharma, Inc. v. Leavitt, 460 F.3d 1, 6 (D.C. Cir. 2006). The agency's decisions are entitled to a "presumption of regularity," Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415 (1971), and although "inquiry into the facts is to be searching and careful, the ultimate standard of review is a narrow one," id. at 416. The Court's review is confined to the administrative record, subject to limited exceptions not applicable here. See Camp v. Pitts, 411 U.S. 138, 142 (1973) ("[T]he focal point for judicial review should be the administrative record already in existence, not some new record made initially in the reviewing court.").

DISCUSSION

Plaintiffs assert five challenges to defendant's July 16, 2009 withdrawal of the Western Oregon Plan Revision ROD. Plaintiffs allege that defendant violated the FLPMA, that defendant violated the rulemaking procedures under the APA, that defendant violated the public notice provision of the FLPMA, 43 U.S.C. §1712(f), that defendant's breach of the 2003 Settlement Agreement that established a December 31, 2008 deadline for revising the resource management plans was arbitrary and capricious, and that defendant's "legal error" explanation was not rationally connected to the Secretary's decision to completely withdraw the approved RODs. As a threshold matter, the Secretary argues that plaintiff lacks standing to raise these claims. This jurisdictional issue will be addressed first and, finding standing, the Court will then address plaintiffs' claims.

I. Standing

Article III of the U.S. Constitution "limits the 'judicial power' of the United States to the resolution of 'cases' and 'controversies,'" Valley Forge Christian Coll. v. Am. United for Separation of Church and State, Inc., 454 U.S. 464, 471 (1982), and the doctrine of standing serves to identify those "'Cases' and 'Controversies' that are of the justiciable sort referred to in Article III," Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). "As an aspect of justiciability, the standing question is whether the plaintiff has 'alleged such a personal stake in the outcome of the controversy' as to warrant invocation of federal-court jurisdiction and to justify exercise of the court's remedial ...


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