United States District Court, District of Columbia
SWANSON GROUP MFG. LLC, et al, Plaintiffs
S.M.R. JEWELL, Secretary of Interior, et al, Defendants.
RICHARD LEON United State District Judge
the most recent iteration of cases before this Court
involving timber sales in the Pacific Northwest and habitat
for the northern spotted owl. Plaintiffs here seek
declaratory and injunctive relief from injuries resulting
from alleged violations of the Oregon and California Railroad
and Coos Way Wagon Road Grant Lands Act of 1937
("O&C Act"), 43 U.S.C § 1181a, and the
Administrative Procedure Act, 5 U.S.C. §§551-706,
by the Bureau of Land Management ("BLM"), the U.S.
Fish and Wildlife Services ("FWS"), and the U.S.
Forest Service concerning resource management and wildlife
conservation. Corrected Compl. ("Corr. Compl.")
¶¶ 1, 97-119 [Dkt. #5]. On September 22, 2015,
plaintiffs filed a Motion for Preliminary Injunction "to
maintain the status quo that has existed since entry of the
judgment in Swanson I, on June 26, 2013." Mot.
for Prelim. Inj. 1 [Dkt. #11]. Defendants subsequently filed
a Motion to Dismiss, asserting the case should be dismissed
because it is barred by issue preclusion and, in the
alternative, because plaintiffs lack standing. See
generally Mot. to Dismiss Corr. Compl. ("Mot. to
Dismiss") [Dkt. #16]. Upon due consideration of the
parties' pleadings, the relevant law, and the entire
record herein, I find that (1) plaintiffs American Forest
Resource Council, Douglas Timber Operations, Swanson Group
Manufacturing, Hull-Oaks Lumber Company, Seneca Jones Timber
Company, Seneca Sawmill Company, and Freres Lumber Company
are precluded from relitigating their standing in the instant
case; (2) plaintiffs C&D Lumber Company, Starfire Lumber
Company, Boise Cascade Wood Products, South Coast Lumber,
Robert Ragon, Robert Freres, and Scott Keep fail to
sufficiently allege standing; and (3) Rough & Ready is
not barred by issue preclusion and sufficiently establishes
standing for purposes of the motion to dismiss,
does not meet the high burden required for a preliminary
injunction. Accordingly, defendants' Motion to Dismiss is
GRANTED in part and DENIED in part, and plaintiffs'
Motion for Preliminary Injunction is DENIED.
slate upon which I write is far from clean. By
plaintiffs' own admission, this action seeks to restate
plaintiffs' claims from Swanson Group Mfg. LLC v.
Jewell, No. 10cvl843 (filed on Oct. 29, 2010)
("Swanson F) and related claims from
Swanson Group Mfg. LLC v. Director, No. 14-211
("Swanson IF) with new evidence regarding
standing "to fill the gaps" identified by our
Circuit Court in Swanson I. Mot. for Prelim. Inj. 1.
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]. That decision was appealed to our Circuit Court, which
vacated the grant of summary judgment on the grounds that the
plaintiffs in that case lacked Article III standing. See
Swanson Group Mfg. LLC, et al. v. Jewell, et al, No.
13-5268, 790 F.3d 235, 2015 WL 3634645, at *3 (D.C. Cir. June
12, 2015). Plaintiffs in Swanson II, No. 14-211,
brought suit against the BLM making essentially the same
allegations 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. The
Swanson //plaintiffs requested that this Court
extend the reasoning of the vacated Swanson /summary
judgment opinion to other Oregon districts that were not at
issue in Swanson I. See Compl. ¶ 21,
No. 14-211 [Dkt. #1]. On September 28, 2015, 1 dismissed
Swanson II-along with two other related actions
involving many of the same plaintiffs-for lack of standing, in
accord at ¶ance with our Circuit Court's opinion in
before the Court are plaintiffs' Motion for Preliminary
Injunction, and defendants' Motion to Dismiss, in which
defendants argue that issue preclusion bars plaintiffs from
relitigating standing and, regardless, plaintiffs lack
standing. Given the overlapping and potentially dispositive
issues, I address both motions herein.
Court may dismiss a complaint for failure to state a claim
upon which relief may be granted. See Fed. R. Civ.
P. 12(b)(6). In considering a motion to dismiss under Rule
12(b)(6), the court must "liberally" construe the
complaint "in favor of the plaintiff, who must be
granted the benefit of all inferences that can be derived
from the facts alleged." Schuler v. United
States, 617 F.2d 605, 608 (D.C. Cir. 1979) (internal
citation and quotation marks omitted). However, in
considering the pleadings, the Court is not required to
"accept legal conclusions cast in the form of factual
allegations, " or to rely on inferences
"unsupported by the facts set out in the
complaint." Kowal v. MCI Commc 'ns Corp.,
16 F.3d 1271, 1276 (D.C. Cir. 1994). Thus, to withstand
dismissal, the allegations, when read in a light most
favorable to the plaintiff, must "raise a right to
relief above the speculative level." BellAtl. Corp.
v. Twombly, 550 U.S. 544, 555 (2007).
plaintiffs who were parties in both Swanson I and
Swanson II,  along with seven other forest product
manufacturers, a forest landowner, and three individuals,
filed this case to restate their prior claims, this time with
new allegations and declarations in an attempt to overcome
the standing hurdle. Before reaching standing, however, I
must address defendants' threshold argument that
litigation of standing is barred by issue preclusion.
Issue Preclusion Bars Seven of the Eight Plaintiffs from
Swanson I and Swanson II from Relitigating
preclusion, or collateral estoppel, bars "successive
litigation of an issue of fact or law  actually litigated
and  resolved in a valid court determination  essential
to the prior judgment." New Hampshire v. Maine,
532 U.S. 742, 748-49 (2001); see also Taylor v.
Sturgell, 553 U.S. 880, 892 & n.5 (2008). The
doctrine of issue preclusion serves to "protect against
the expense and vexation attending multiple lawsuits,
conserv[e] judicial resources, and foste[r] reliance on
judicial action by minimizing the possibility of inconsistent
decisions." Taylor, 553 U.S. at 892
(alterations in original and internal quotation marks
omitted). Our Circuit Court has found that issue preclusion
applies to jurisdictional issues such as Article III
standing. See, e.g., Nat'l Ass 'n of Home
Builders v. EPA, 786 F.3d 34, 41 (D.C. Cir. 2015).
"Because a jurisdictional dismissal does not involve an
adjudication on the merits, it will not bar relitigation of
the cause of action originally asserted, but it may preclude
relitigation of the precise issues of jurisdiction
adjudicated." Id. (internal quotation marks and
litigant can overcome issue preclusion under the curable
defect exception. This narrow exception "allows
relitigation of jurisdictional dismissals when 'a
precondition requisite to the court's proceeding with the
original suit was not alleged or proven, and is supplied in
the second suit.'" Id. (quoting Dozier
v. Ford Motor Co., 702 F.2d 1189, 1192 (D.C. Cir.
1983)). In other words, jurisdiction can be relitigated
""only if a material change following dismissal
cured the original jurisdictional deficiency."
Nat 7 Ass 'n of Home Builders,
786F.3d at 41.
plaintiffs-American Forest Resource Council, Douglas Timber
Operations, Swanson Group Manufacturing, Hull-Oaks Lumber
Company, Seneca Jones Timber Company, Seneca Sawmill Company,
Freres Lumber Company, and Rough & Ready- were parties to
either or both of the previously dismissed Swanson I
and Swanson II cases, and cannot relitigate their
standing here. In National Association of Home
Builders, our Circuit Court set forth a two-step
framework to determine whether a prior dismissal for lack of
standing precludes relitigation of the same jurisdictional
issue in a subsequent case. 786 F.3d at 41. First, the
defendant has the burden to establish the elements of issue
preclusion. Id. Second, the burden shifts to
plaintiff to satisfy the curable defect exception.
Id. If the defendant carries its burden and the
plaintiff does not, the plaintiff is precluded from
establishing standing and the plaintiffs case must be
dismissed. Id. at 43.
defendants have clearly established the elements of issue
preclusion as to these eight plaintiffs. To begin, this case
involves the same standing issue these companies previously
litigated: whether plaintiffs have demonstrated an actual or
imminent concrete economic injury as a result of the
BLM's level of timber sales. See Swanson II,
2015 WL 5693429, at *4 (dismissing the case because,
"just as in Swanson I, plaintiffs cannot show
that any of their economic losses are traceable to the
failure to offer for sale timber under the O&C Act
instead of to an independent source, such as the recession,
or that their prediction of future injury is more certain
than those [the D.C. Circuit] has concluded are
insufficient") (internal quotation marks omitted). This
issue was actually litigated and essential to the
standing-based dismissals of the previous Swanson
cases. Plaintiffs miss the mark in arguing the
standing issue here differs materially from that already
litigated given the later time period. See Pis.'
Mem. in Opp'n to Mot. to Dismiss Corr. Compl.
("Pis.' Opp'n") 14-17 [Dkt. #21]. Issue
preclusion bars relitigation "even if the issue recurs
in the context of a different claim." Taylor,
553 U.S. at 892. Here, plaintiffs' claims that they will
suffer imminent future injury rest on the same allegations of
past economic injury that failed to establish Article III
standing previously. Defs.' Reply in Supp. of Mot. to
Dismiss Corrected Complaint ("Defs.' Reply") at
5 [Dkt. #22].
for seven of the eight returning plaintiffs, they do not
evade dismissal under the curable defect exception. This
narrow exception allows relitigation of jurisdiction
"only if a material change following dismissal cured the
original jurisdictional deficiency." Nat 7
Ass 'n of Home Builders, 786 F.3d at 41. With
the exception of Rough & Ready, the returning plaintiffs
fail to allege any material change that would establish
standing. Plaintiffs argue that an injury that continues to
occur after the entry of judgment constitutes a new injury
post-dating such judgment, citing the current operating
capacities and supply of timber as the new injuries here.
Pis.' Opp'n 11-13. As defendants note, however, these
"current" situations are not new injuries
postdating the Swanson dismissal, but rather are
ongoing, pre-existing injuries. See Defs.' Reply
10. Because these injuries are the continuing result of the
alleged timber shortage, American Forest ...