MEMORANDUM OPINION [DKT. ##29, 30, 41 (IN NO.
16-1599); 17, 18 (IN NO. 16-1602); 41, 44, 46 (IN NO.
17-280); 41, 44, 46 (IN NO. 17-441)]
Richard J. Leon United States District Judge.
Each of
the four above-captioned civil actions involve a challenge to
the management by the United States of America (the
"Government" or the "United States") of
certain land subject to the Oregon and California Railroad
and Coos Bay Wagon Road Grant Lands Act of 1937
("O&C Act"), 43 U.S.C. § 2601 et
seq., a statute that regulates timber harvest on certain
federal land in western Oregon ("O&C land"). In
2016, the Bureau of Land Management ("BLM") issued
two Resource Management Plans ("the 2016 RMPs")
that divided O&C land into six categories. The extent to
which timber harvest is permitted on O&C land under the
2016 RMPs depends on the category to which a given parcel of
land is assigned. On January 12, 2017, President Obama,
shortly before he left office, issued a proclamation
("Proclamation 9564") that enlarged the
Cascade-Siskiyou National Monument in southern Oregon.
See Proclamation 9564, 82 Fed. Reg. 6145 (Jan. 18,
2017). Nearly 40, 000 acres of the newly added land is
O&C land, and commercial timber harvest, as a result of
the monument designation, is effectively no longer possible
on this land that falls squarely within the monument's
boundaries. See Proclamation 7318, 65 Fed. Reg. 37,
249, 37, 250 (June 13, 2000).
Plaintiffs
in these cases[1] argue that the 2016 RMPs and Proclamation
9564 conflict with existing timber harvest mandates in the
O&C Act. They moved for summary judgment, asking that the
plans and proclamation be set aside. The Government
cross-moved, adopting a different reading of the O&C Act,
and seeking summary judgment that the 2016 RJVIPs and
Proclamation 9564 are lawful. Three groups intervened in Case
Numbers 17-280 and 17-441 to defend Proclamation 9564, and
they filed their own cross-motions for summary judgment,
which, like the others, turn on the scope of Congressional
directives in the O&C Act.
Upon
careful consideration of the parties' briefs, the
relevant law, and the entire record, I have determined that
the best course at this juncture is to DENY all pending
summary judgment motions without prejudice and to REMAND this
matter to BLM for an explanation of how, if at all, the
administration of O&C land changed after President Obama
issued Proclamation 9564 that removed approximately 16, 000
acres of land from the "harvest land base" category
of the O&C land, which was designated by BLM for
continual timber production.[2] The parties can then refile
summary judgment motions taking into account the completed
administrative and summary judgment records.
BACKGROUND
I.
The O&C Act
The
O&C Act governs BLM's management of approximately two
million acres of land in western Oregon that was granted to
the Oregon and California Railroad in 1866 but revested to
the United States after the railroad violated conditions
Congress had placed on the land grant. See Oregon &
C.R. Co. v. United States, 238 U.S. 393, 399-410 (1915)
(recounting the history of the land grant and revestment);
Clackamas Cty. v. McKay, 219 F.2d 479, 481-83 (D.C.
Cir. 1954) (same), vacated as moot, 349 U.S. 909
(1955). Beginning in the early 1900s, Congress enacted a
series of statutes prescribing how the revested land should
be managed. One such statute, the O&C Act, was passed in
1937 and regulates, among other things, timber harvest on
O&C land. See 43 U.S.C. § 2601.
Of
particular relevance here, the Act requires that
O&C timberland be "managed ... for permanent forest
production" and that O&C timber "be sold, cut,
and removed in conformity with the princip[le] of sustained
yield." 43 U.S.C. § 2601. To facilitate the harvest
and sale, BLM must declare an "annual productive
capacity," id., also known as an allowable
sales quantity ("ASQ"), [3] for O&C timberland. A
commensurate amount of timber must then be sold from O&C
land each year. See id.
The
O&C Act also guarantees that a portion of the proceeds
from the timber sales will be paid to the Oregon counties
that contain O&C land. See 43 U.S.C. §
2605(a). Timber proceeds are deposited into "the
'Oregon and California land-grant fund'" and
fifty percent of that fund is distributed annually to
"the counties in which the lands [subject to the Act]
are situated." Id. According to BLM, the
O&C Act resulted in over $1.4 billion being paid to
Oregon counties in the Act's first fifty years.
See U.S. Dep't of the Interior, BLM, O&C
Sustained Yield Act: the Land, the Law, the Legacy
(1937-1987) at 14-15, available at
https://www.blm.gov/or/files/OCHistory.pdf.
In
1990, the Act's fifty-third year, the U.S. Fish and
Wildlife Service classified the northern spotted owl as a
threatened species under the Endangered Species Act of 1973
("ESA"), 16U.S.C. § 1531 etseq. See
Determination of Threatened Status for the Northern Spotted
Owl, 55 Fed. Reg. 26, 114 (June 26, 1990). Two years later, a
federal district court in Oregon enjoined timber sales on
lands that are suitable habitat for the threatened owls.
See Portland Audubon Soc'y v. Lujan, 795 F.Supp.
1489, 1510-11 (D. Or. 1992), affdsub nom. Portland
Audubon Soc'y v. Babbitt, 998 F.2d 705 (9th
Cir.1993). Companies and Oregon counties that benefit from
O&C land timber sales intervened in that lawsuit, but the
court nevertheless extended the injunction to land governed
by the O&C Act. See Id. at 1505-07.
Much of
the period since the northern spotted owl's
classification has been consumed by a veritable tsunami of
legal actions over how to manage O&C land. See Am.
Forest Council v. Shea, 172 F.Supp.2d 24, 27 (D.D.C.
2001) (Jackson, J.). Parties have challenged land management
plans announced by BLM, then settled their claims, only to
later allege breaches of the settlement agreement. See
Douglas Timber Operators, Inc. v. Salazar, 774 F.Supp.2d
245, 247-51, 261 (D.D.C. 2011). And BLM has issued and
withdrawn land management plans, only to see courts reinstate
the plans, then order them vacated again. See Pacific
Rivers Council v. Shepard, No. 3:11-442, 2011 WL
7562961, at *l-3, *10 (D. Or. Sept. 29, 2011), report and
recommendation adopted as modified, 2012 WL 950032 (D.
Or. Mar. 20, 2012).
Against
this backdrop of highly contentious litigation, the
Government took two recent actions that affect management of
O&C land.
II.
The 2016 RMPs
In
2016, BLM revised the RMPs that detail how it manages O&C
land. The 2016 RMPs divide the land into six categories.
See Administrative Record (No. 16-1599)
("AR") at JA-46, IND0514399-402 [Dkt. # 37]. Of the
six, only one category-"harvest land base"-is
managed to "achieve continual timber production that can
be sustained through a balance of growth and harvest."
Id. at JA-46, IND0514402. Other categories of land
include riparian reserves, which are managed to
"[m]aintain and restore riparian areas," and
late-successional reserves, which are managed to, among other
things, promote nesting and roosting habitat for the northern
spotted owl and marbled murrelet. Id. In these
latter categories, timber harvest is permitted for certain
limited purposes. See Id. at JA-2, IND0513044. But
when BLM calculated the ASQ of O&C timberland for the
2016 RMPs, the agency looked only to timber grown in the 498,
...