SWANSON GROUP MFG. LLC, et al., Plaintiffs,
KEN SALAZAR, et al., Defendants.
MEMORANDUM OPINION [## 41, 44, 45]
RICHARD J. LEON, District Judge.
Before the Court are three cross-motions for summary judgment by plaintiffs, defendants, and defendant-intervenors. Pls.' Mot. for Summ. J., Apr. 3, 2012 [Dkt. # 41] ("Pls.' Mot."); Fed. Defs.' Cross Mot. for Summ. J., Mem. in Supp. Thereof, and Opp'n to Pls.' Mot. for Summ. J., May 25, 2012 [Dkt. #45] ("Defs.' Mot."); Def.-Intervenors' Cross-Mot. for Summ. J., May 25, 2012 [Dkt. #44] ("Intervenors' Mot."). In these motions, the parties dispute the lawfulness of two federal agency actions: first, the failure to offer for sale a declared amount of timber from two western Oregon districts, and second, the development and use of an Owl Estimation Methodology. The Court holds that both agency actions were unlawful and, therefore, enters judgment in favor of plaintiffs on two of the five counts of the amended complaint. The remaining three counts are dismissed as conceded or moot. In so doing, the Court GRANTS IN PART AND DENIES IN PART plaintiff's motion, GRANTS IN PART AND DENIES IN PART defendant's cross-motion, and DENIES defendant-intervenors' cross-motion.
Plaintiffs are timber manufacturing companies and trade associations based in the Pacific Northwest. Am. Compl., Feb. 18, 2011 [Dkt. # 16], ¶¶ 3-7. Plaintiffs and plaintiffs' membership rely upon the timber sales from federally-administered land in the Medford and Roseburg districts of western Oregon. Decl. of Steven D. Swanson, Jan. 30, 2012 [Dkt. #41-3] ("Swanson Decl."), ¶ 2; Decl. of Link Phillippi, Jan. 27, 2012 [Dkt. #41-4] ("Phillippi Decl."), ¶ 2; Decl. of Thomas Partin, Mar. 29, 2012 [Dkt. 41-6] ("Partin Decl."), ¶ 3; Decl. of Bob Ragon, Jan. 24, 2012 [Dkt. #41-7] ("Ragon Decl."), ¶¶ 2, 6.
Plaintiffs' claims address two actions by agencies under the management of defendants, Secretary of Interior Ken Salazar and Secretary of Agriculture Tom Vilsack. First, plaintiffs' Claim One alleges that the Bureau of Land Management ("BLM"), an agency within the Department of Interior, failed to offer for sale the statutorily-mandated amount of timber from the Medford and Roseburg districts. Am. Compl. ¶¶ 57-64. Second, plaintiffs' Claims Two and Three challenge the Owl Estimation Methodology ("OEM"), a set of procedures for assessing the impact of federal actions on the northern spotted owl. Id. ¶¶ 65-79. The OEM was designed for use by BLM, the Fish and Wildlife Service ("FWS") of the Department oflnterior, and the United States Forest Service ("USFS") of the Department of Agriculture. Id. ¶¶ 66. These two agency actions are discussed further below.
A. Count One: Failure to Offer for Sale Annual Sustained Yield Capacity
Under Claim One, plaintiff alleges that BLM violated two federal statutes. The first statute is the Oregon and California Lands Act of 1937 ("O&C Act"), 43 U.S.C. § 1181 a. The O&C Act was enacted in 1937 to regulate timber production on federal lands in western Oregon, including the Medford and Roseburg districts. Under the statute, this federal land "shall be managed... for permanent forest production, and the timber thereon shall be sold, cut, and removed in conformity with the principal [sic] of sustained yield for the purpose of providing a permanent source of timber supply, protecting watersheds, regulating stream flow, and contributing to the economic stability of local communities and industries, and providing recreational facilties [sic]." Id. The most relevant portion appears later in this section: "The annual productive capacity for such lands shall be determined and declared... [and] timber from said lands in an amount not less than one-half billion feet board measure, or not less than the annual sustained yield capacity when the same has been determined and declared, shall be sold annually, or so much thereof as can be sold at reasonable prices on a normal market." Id.
The second statute at issue is the Federal Land Policy and Management Act of 1976 ("FLPMA"), 43 U.S.C. §§ 1701-1782. In pertinent part, the statute directs that "[t]he Secretary shall manage the public lands under principles of multiple use and sustained yield, in accordance with the land use plans developed by him under section 1712 of this title when they are available...." 43 U.S.C. § 1732(a). The BLM's FLPMA regulations state that "[a]ll future resource management authorizations and actions, as well as budget or other action proposals to higher levels in the Bureau of Land Management and Department, and subsequent more detailed or specific planning, shall conform to the approved plan." 43 C.P.R.§ 1610.5-3(a).
Pursuant to the FMPLA, the Secretaries of Interior and Agriculture developed a land use plan for Pacific northwest lands known as the Northwest Forest Plan ("NWFP") in 1994. B/FAR 8878. Under the NWFP, much of the western Oregon lands were designated as a reserve for the northern spotted owl and other species. See Pls.' Mem. at 9 (citing FWSAR 4298). In 1995, BLM adopted new resource management plans ("RMPs") for the six western Oregon districts, dramatically reducing the districts' annual sustained yield timber capacity. See BIFAR 6816 (Roseburg RMP), 12304 (Medford RMP). Specifically, the 1995 RMPs declared an "allowable sale quantity" ("ASQ") of 57.1 mmbf for lands in the Medford district and 45 mmbf for lands in the Roseburg district. B/FAR 6885 (Roseburg), 12375 (Medford). Both 1995 RMPs state that "[t]he actual sustainable timber sale level attributable to the land use allocations and management direction of the resource management plan may deviate by as much as 20 percent from the identified allowable sale quantity." B/FAR 6886, 12375. In other words, the annual sustained yield capacity is at least 80 percent of each district's ASQ. The 1995 RMPs have remained in effect since their inception, despite many legal hiccups along the way.
Since 2004, the Medford district has not offered for sale 80 percent of its ASQ in any year except 2005. See BIF AR 88-92; Answer to Am. Compl., Sept. 8, 2011 [Dkt. # 25], ¶ 21. Similarly, the Roseburg district did not offer for sale 80 percent of its ASQ in 2004, 2005, 2007, and 2009. See id. Plaintiffs allege that this failure to offer the annual sustained yield capacity of timber (i.e., 80 percent of the ASQ) constitutes "agency action unlawfully withheld or unreasonably delayed" under 5 U.S.C. § 706(1) and is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law" and "in excess of statutory... authority" under 5 U.S.C. § 706(2). See Am. Compl. ¶ 64.
B. Counts Two and Three: Owl Estimation Methodology
Claims Two and Three challenge federal agencies' use of the Owl Estimation Methodology to comply with its consultation responsibilities under the Endangered Species Act of 1973 ("ESA"), 16 U.S.C. §§ 1531 et seq. Am. Compl. ¶¶ 65-79. Under the ESA, an agency must engage in formal consultation with FWS if a proposed agency action may adversely affect a protected species or its critical habitat. 16 U.S.C. § 1536(a); 50 C.F.R. § 402.14(a). At the end of a formal consultation, FWS issues a biological opinion. 16 U.S.C. § 1536(b)(3)(a); see also Bennett v. Spear, 520 U.S. 154, 154 (1997). If the agency action is allowed to proceed, the biological opinion will include an incidental take statement, which authorizes the agency to "take" the species as long as it respects certain limitations. 16 U.S.C. § 1536(b)(4); see also Bennett, 520 U.S. at 169-70.
FWS listed the northern spotted owl as a threatened species in 1990. 55 Fed. Reg. 26114 (June 26, 1990). Since that listing, the northern spotted owl has triggered prolonged, repeated, and contentious litigation between environmental groups, timber groups, and the federal government in multiple jurisdictions. See, e.g., Pls.' Mem. at 11-14 (citing multiple cases). For this Court's purpose, the most relevant litigation ended in February 2007 with Oregon Natural Resources Council v. Allen, 476 F.3d 1031 (9th Cir. 2007) ("ONRC'). In ONRC, the Ninth Circuit rejected an incidental take statement for several Pacific northwest timber sales impacting the northern spotted owl. Id. at 1032-33.
Shortly after the Ninth Circuit's decision, FWS, BLM, and USFS created an interagency team to develop a new protocol that the agencies would use to authorize incidental take of northern spotted owls in future timber sale consultations. B/FAR 34624-25; FWSAR 2002. On September 14, 2007, the agencies issued the "Methodology for Estimating the Number of Northern Spotted Owls Affected by Proposed Federal Actions, " also known as the OEM. FWSAR 2001. While the OEM could be used in any area with a northern spotted owl population, it was designed with Oregon as its initial focus. Id. at 2017, 2419. The agencies did not give the public notice of the OEM's issuance or an opportunity to comment on the OEM. They also did not consult the Department of Interior's Solicitor's Office about whether the OEM required notice and comment under the Administrative Procedure Act ("APA"), 5 U.S.C. § 553. Decl. of Theresa Rabot, Mar. 14, 2013 [Dkt. # 56-1], ¶ 2. The agencies revised the OEM on December 20, 2007 and on September 15, 2008, again without notice or comment. FWSAR 2100, 2398. The September 2008 version remains in effect today.
The OEM instructs agencies on a new method for estimating owl take when survey data and other tools are not available. Id. at 2399, 2405. This method involves the development of a Northern Spotted Owl Occupancy Map ("NSOOM"), which estimates the presence of owls by combining known owl locations with "projected locations." Id. at 2400. To develop projected locations, the agencies rely upon "the amount and distribution of suitable owl habitat and best available information on known owl locations and spacing patterns for that ...