United States District Court, District of Columbia
MEMORANDUM OPINION (SEPTEMBER 28, 2015) [DKTS. ## 17, 19]
RICHARD J. LEON UNITED STATES DISTRICT JUDGE
Before the Court are cross-motions for summary judgment by plaintiffs and defendant. Pis.' Mot. for Summ. J. [Dkt # 17] ("Pis.' Mot."), Def.'s Mot. for Summ. J. [Dkt. # 19] ("Def.'s. Mot."). In these motions, the parties dispute the lawfulness of defendant's failure to offer for sale the timber that it was required to offer for sale under the Oregon and California Railroad and Coos Bay Wagon Road Grant Lands Act of 1937 ("O&C Act"), 43 U.S.C. §1181a. Upon due consideration of the parties' pleadings, the relevant law, and the entire record herein, I find that plaintiffs lack standing to bring this suit and, accordingly, plaintiffs' Motion for Summary Judgment [Dkt. # 17] is DENIED, defendant's Motion for Summary Judgment [Dkt. # 19] is GRANTED, and the case is DISMISSED.
Plaintiffs Swanson Group Mfg. LLC, American Forest Resource Council ("AFRC") and Douglas Timber Operators, Inc. ("DTO"), who are three of the plaintiffs in Swanson I, along with three other forest product manufacturers (collectively, "plaintiffs"), have filed this case (''Swanson IF). Plaintiffs have brought suit against the Bureau of Land Management ("BLM") making essentially the same allegations that were at issue in Swanson I, i.e., that defendant had failed to offer for sale the timber that it was required to offer for sale under the O&C Act. Plaintiffs in Swanson II request that this Court extend the reasoning of the now-vacated Swanson I summary judgment opinion to other Oregon districts that were not specifically at issue in Swanson I. See Compl. ¶ 21, No. 14-211 [Dkt. # 1] ("The interpretation of the O & C Act set forth in the Memorandum Opinion and Order of June 26, 2013 in [Swanson I\ applies to the BLM's management of its Coos Bay, Eugene, Lakeview and Salem districts in exactly the same manner as to the BLM's Medford and Roseburg districts.").
This case is one of three separate actions currently before the Court, at the summary judgment stage, involving challenges related to timber sales in the Pacific Northwest and habitat for the northern spotted owl. See Carpenters Industrial Council, et al. v. Jewell, et al, No. 13-361 (filed on March 21, 2013) ("CYC v. JewelF) Swanson Group Mfg., LLC, et al. v. Director, Bureau of Land Management, No. 14-211 (filed on Feb. 13, 2014) ("Swanson v. BLM' or "Swanson //"); American Forest Resource Council, et al. v. Jewell, No. 14-368 (filed on March 7, 2014) ("AFRC v. Jewell"). Prior to commencing these three actions, many of the same plaintiffs brought suit in Swanson Group Mfg., LLC, et al. v. Salazar, et al, No. 10-1843 (filed on Oct. 29, 2010) ("Swanson F)In Swanson I, I granted summary judgment in favor of the plaintiffs and found two federal agency actions to be unlawful: (1) the failure to offer for sale a declared amount of timber from two western Oregon districts, and (2) the development and use of an Owl Estimation Methodology. See Order and Mem. Op., No. 10-1843 [Dkts. ## 58, 59]. Defendants appealed that decision to our Circuit Court, which vacated the summary judgment ruling on the grounds that the plaintiffs in that case lacked standing, and, therefore, their challenges to agency actions must be dismissed. See Swanson Grp. Mfg. LLC v. Jewell, 790 F.3d 235, 238 (D.C. Cir. 2015).
In light of the standing decision in Swanson I and the significant overlap between the plaintiffs in that case and the three above-referenced actions, I ordered the parties in these three cases to show cause in writing why the cases should not also be dismissed for lack of standing. See Order to Show Cause, CIC v. Jewell, No. 13-361 [Dkt. # 82]; Swanson II, No. 14-211 [Dkt. # 28]; AFRC v. Jewell, No. 14-368 [Dkt. # 30]. In response to the show cause orders, plaintiffs in each of the three actions filed briefs accompanied by ten new declarations. See CIC v. Jewell, No. 13-361 [Dkts. ## 84-1-84-11]; Swanson II, No. 14-211 [Dkts. ## 30-1-30-11]; AFRC v. Jewell, No. 14-368 [Dkt. # 32-1-32-11]. Defendants then filed a response in each of the three cases. See CIC v. Jewell, No. 13-361 [Dkts. ## 88, 90]; Swanson II, No. 14-211 [Dkt. # 31]; AFRC v. Jewell, No. 14-368 [Dkt. # 33].
STANDARD OF REVIEW
Summary judgment is appropriate when the pleadings and the record demonstrate that "there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). The moving party bears the initial burden of demonstrating the absence of a genuine dispute of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In this case, where cross-motions for summary judgment are at issue, the Court draws all reasonable inferences regarding the assertions made in a light favorable to the non-moving party. Union Neighbors United, Inc. v. Jewell, 83 F.Supp.3d 280, 285 (D.D.C. 2015). The Court will "grant summary judgment only if one of the moving parties is entitled to judgment as a matter of law upon material facts that are not genuinely disputed." Select Specialty Hosp.-Bloomington, Inc. v. Sebelius, 774 F.Supp.2d 332, 338 (D.D.C. 2011).
"Article III of the Constitution confines the jurisdiction of the federal courts to actual 'Cases' and 'Controversies, ' and . . . 'the doctrine of standing serves to identify those disputes which are appropriately resolved through the judicial process."' Clinton v. City of New York, 524 U.S. 417, 429-30 (1998) (quoting Whitmore v. Arkansas, 495 U.S. 149, 155 (1990)). Plaintiffs bear the burden of demonstrating they have standing to pursue their claims. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). "[T]he irreducible constitutional minimum of standing" requires " an injury in fact. . .which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical, ...  a causal connection between the injury and the conduct complained of. . ., [and]  it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision." Id. at 560-61 (footnote, citations, and internal quotation marks omitted).
At the summary judgment stage, plaintiffs "can no longer rest on . . . 'mere allegations, ' but must 'set forth' by affidavit or other evidence 'specific facts, ' which for purposes of the summary judgment motion will be taken to be true." Id. at 561 (citations omitted). Statements of fact must be sufficiently specific to rise above the level of "conclusory allegations." Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888 (1990). Although "general factual allegations of injury resulting from the defendant's conduct may suffice" to show standing at the motion to dismiss stage, Lujan v. Defenders of Wildlife, 504 U.S. at 561, at summary judgment, a court will not "'presume' the missing facts" necessary to establish an element of standing, Lujan v. National Wildlife Federation, 497 U.S. at 889.
"[W]hen the plaintiff is not himself the object of the government action or inaction he challenges, standing is not precluded, but it is ordinarily 'substantially more difficult' to establish." Lujan v. Defenders of Wildlife, 504 U.S. at 562 (quoting Allen v. Wright, 468 U.S. 737, 758 (1984)). Indeed, "courts [only] occasionally find the elements of standing to be satisfied in cases challenging government action on the basis of third-party conduct." Nat'l Wrestling Coaches Ass 'n v. Dep't of Educ, 366 F.3d 930, 940 (D.C. Cir. 2004).
Furthermore, because plaintiffs here seek injunctive relief, they must show that they suffer an ongoing injury or face imminent future injury. See Dearth v.Holder, 641 F.3d 499, 501 (D.C. Cir. 2011). This creates '"a significantly more rigorous burden to establish standing'" than that on parties seeking redress for past injuries. Chamber of Commerce v. EPA, 642 F.3d 192, 200 (D.C. Cir. 2011) (quoting United Transp. Union v. ICC, 891 F.2d 908, 913 (D.C. Cir. 1989)). That is, "to 'shift[ ] injury from conjectural to imminent, ' the [plaintiffs] must show that there is a 'substantial. . . ...