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

December 23, 2011

DOUGLAS TIMBER OPERATORS, INC., ET AL.,
PLAINTIFFS,
v.
KEN SALAZAR, SECRETARY OF INTERIOR, DEFENDANT, AND PACIFIC RIVERS COUNCIL, DEFENDANT-INTERVENOR.



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

MEMORANDUM OPINION

Plaintiffs are timber companies and trade and workers' associations that support enhanced timber harvest. They challenged in this case the decision of the defendant, Secretary of the Interior Ken Salazar, to withdraw revisions to the management plans for several federal land districts in western Oregon. This Court previously found that the Department of the Interior failed to follow required procedures when it withdrew the revisions, and therefore vacated and remanded the withdrawal, reinstating the revisions. Defendant-Intervenor Pacific Rivers Council ("PRC") has since sued the Secretary to challenge the reinstated revisions in the U.S. District Court for the District of Oregon.

Plaintiffs now move for an order under the All Writs Act, arguing that Interior seeks to frustrate this Court's order with filings in the Oregon case that rely on the vacated and remanded withdrawal. Plaintiffs ask this Court to order the Secretary to withdraw the filings in the Oregon case and to enjoin the Secretary from making similar filings relying on the vacated and remanded withdrawal.

As explained below, plaintiffs' arguments are not persuasive. Interior has been forthcoming in its filings in the Oregon case regarding this Court's decision. Furthermore, although this case bears superficial similarity to cases in which agencies have improperly relied on vacated agency decisions, the Department's litigation position does not constitute agency action improperly relying on the vacated withdrawal. Hence, the Court will deny plaintiffs' motion.

I. Background

Plaintiffs' original claims inhabit a complex legal thicket governing the management of federal lands in Oregon. This Court's opinion of March 31, 2011 explained that framework in some detail. See Douglas Timber Operators, Inc. v. Salazar, 774 F. Supp. 2d 245, 248-250 (D.D.C. 2011). The Court will more concisely summarize only the relevant background here.

The Federal Land Policy and Management Act ("FLPMA"), 43 U.S.C. §§ 1701-87, governs the use of federal lands, including this land in Oregon, by the Bureau of Land Management ("BLM"). The FLPMA provides that "[t]he Secretary shall . . . develop, maintain, and, when appropriate, revise land use plans," id. § 1712(a), and provides that "[t]he Secretary shall 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," id. § 1712(f). See also 43 C.F.R. § 1610.5.

The northern spotted owl has been listed as a threatened species under the Endangered Species Act ("ESA"), 16 U.S.C. §§ 1531-44. See 50 C.F.R. § 17.11(h). The owl resides, among other places, on the lands at issue in this case. See Douglas Timber, 774 F. Supp. 2d at 248. The ESA 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" a threatened species. See 50 C.F.R. § 402.14(a).

On December 30, 2008, the Department of Interior issued Records of Decision ("ROD") adopting six revised resource management plans, collectively known as the Western Oregon Plan Revisions ("WOPR"), for 2.5 million acres of BLM lands in western Oregon. Douglas Timber, 774 F. Supp. 2d at 249. The Final Environmental Impact Statement 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." Id. Thus, because the impact statement determined that there would be "no effect" on endangered or threatened species, BLM did not initiate an ESA consultation on the WOPR.

Subsequently, the Acting Assistant Secretary of Interior for Land and Minerals Management reversed the WOPR. On July 16, 2009, the Acting Assistant Secretary issued a memorandum to the Acting Director of BLM withdrawing the ROD "[b]ecause BLM's 'no effect' determination was legal error based on the record before me and applicable law." Id. at 249-50. The public was not previously notified of the withdrawal decision and no notice and comment period was provided. Id. at 250.

II. This Court's Summary Judgment Decision

Plaintiffs challenged the July 16, 2009 withdrawal as, among other things, violating the FLPMA's requirement to involve the public in the formulation of land use plans. See Douglas Timber, 774 F. Supp. 2d at 251. They argued that the withdrawal was therefore inconsistent with the Administrative Procedures Act, which 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 Department did not dispute that the Secretary did not follow the FLPMA's procedures when he withdrew the ROD. See Douglas Timber, 774 F. Supp. 2d at 257. The Department argued, however, that it had "inherent authority" to reconsider and withdraw the ROD since the ROD was based on "legal error." Id.

After considering the parties' cross-motions for summary judgment, the Court rejected the Department's argument. The Court concluded that "the Secretary lacked inherent authority to withdraw the 2008 ROD without following the procedures required under the FLPMA, and his decision to do so violated the APA." Id. at 259. The Court therefore granted the plaintiffs' motion for summary judgment with respect to the withdrawal of the ROD, vacating and remanding the withdrawal back to the Department.*fn1

In so holding, the Court stated that "the legal issue of whether the Secretary's failure to consult under the ESA prior to approving the ROD in December 2008 'was erroneous' is not properly before this Court." Id. at 258. Rather, the Court stated that the question before it was "whether the Secretary's decision to withdraw the ROD without formal proceedings under the FLPMA or the APA based on his conclusion of 'legal error' was arbitrary and capricious or in excess of statutory authority." Id. at 258 n.1. The Court also noted that "three challenges to the BLM's alleged failure to consult under the ESA were filed in the U.S. District Court for the District of Oregon shortly after the December 2008 approval of the ROD." Id. (citing Oregon Wild v. Shepard, Civ. No. 3:09--00060 (D. Or. filed Jan. 15, 2009); Pacific Rivers Council v. Shepard, Civ. No. 3:09--00058 (D. Or. filed Jan. 15, 2009); Forest Serv. Emp. for Env't Ethics v. U.S. Fish and Wildlife Serv., Civ. No. 6:09--06019 (D. Or. filed Jan. 22, 2009)). Finally, ...


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