United States District Court, District of Columbia
SWANSON GROUP MFG. LLC, et al, Plaintiffs,
DAVID L. BERNHARDT, Secretary of the Interior, Defendant. District (Sustained Yield Unit) Total (Acres) 1995 Matrix (Acres) 1995 ASQ (MMbf) 2016 Harvest Land Base (Acres) 2016 ASQ (MMbf)
Richard J. Leon United States District Judge.
Oregon and California Railroad and Coos Bay Wagon Road Grant
Lands Act of 1937, 43 U.S.C. §§ 2601-05 ("the
O&C Act"), Congress mandated that the Department of
the Interior must sell or offer for sale, every year, timber
from land subject to the Act in an amount "not less than
the annual sustained yield capacity [of the land] when the
same has been determined and declared." Id.
§ 2601. Plaintiffs Starfire Lumber Company and South
Coast Lumber Company (collectively, "plaintiffs")
allege that the Bureau of Land Management ("BLM"),
the agency within the Department of the Interior responsible
for administering O&C land, routinely violates this
timber sale mandate. They sued the Secretary of the
Interior ("defendant"), seeking to compel
his compliance with the O&C Act, and have now moved for
summary judgment. Defendant cross-moved for judgment in its
favor. Because I conclude that BLM has violated the O&C
Act, and for all of the reasons that follow, plaintiffs'
motion will be GRANTED IN PART, and defendant's
cross-motion will be DENIED.
O&C Act governs BLM's management of approximately two
million acres of land in western Oregon . . . ." Am.
Forest Res. Council v. Steed, No. 16-1599, 2019 WL
1440887, at *2 (D.D.C. Mar. 31, 2019). Timberland subject to
the Act must "be managed . . . for permanent forest
production." 43 U.S.C. § 2601. And every year,
timber that is grown on O&C land must be sold or offered
for sale. In the O&C Act, Congress provides that
"timber ... 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."
the federal agency responsible both for "determin[ing]
and declaring]" the O&C land's "annual
sustained yield capacity," 43 U.S.C. § 2601, and
for administering the required timber sales. See
U.S. Dep't of the Interior, BLM, O&C Sustained
Yield Act: the Land, the Law, the Legacy (1937-1987) at
13-15, 17, available at https://www.blm.gov/
or/files/OC_History.pdf. In 1995, BLM issued resource
management plans ("the 1995 RMPs") that divided
O&C land into five districts and one resource planning
area. See Administrative Record ("AR") at
¶ 2059; AR20528-529; AR20582; AR20687; AR20758; AR20947;
ARJ21041; AR21232; AR21250; AR21585; AR21663; AR21842;
AR21900 [Dkt. # 64]. The 1995 RMPs then declared a base
allowable sale quantity ("ASQ") for each district
or area. See AR20528; AR20758; AR21041; AR21250;
AR21663; AR21900. Defendant represents that BLM uses the term
"ASQ" synonymously with "annual sustained
yield capacity, '' the phrase that appears in the
O&C Act's timber sale mandate. See Fed.
Def.'s Cross-Mot. Summ. J. at 4 [Dkt. # 57]. But BLM also
cautions that the ASQs declared in the 1995 RMPs are merely
"estimate[s] of annual average timber sale volume likely
to be achieved from lands allocated to planned, sustainable
harvest." AR20528. The 1995 RMPs provide that
"[t]he actual sustainable timber sale level . . . may
deviate by as much as 20 percent from the identified
1995 RMPs remained in effect through 2015, when this suit was
filed. The next year, however, BLM adopted new resource
management plans ("the 2016 RMPs") with adjusted
base ASQs. See Northwestern & Coastal Oregon
Record of Decision ("NCO ROD") at 6 [Dkt. # 57-5];
Southwestern Oregon Record of Decision ("SWO ROD")
at 5 [Dkt. # 57-6]. The new RMPs increased the extent to
which BLM could deviate from the base ASQs in a given year,
permitting "as much as 40 percent variation on an annual
basis." NCO ROD at 6; see also SWO ROD at 6.
But they required BLM to maintain harvest levels within 20%
or 30% of the ASQs-depending on the district-over the course
of a decade. See NCO ROD at 6; SWO ROD at 6.
purchase timber grown on land subject to the O&C Act and
use the timber to produce forest products. BLM's annual
sustained yield capacity declarations, therefore, affect the
timber supply available to plaintiffs, and BLM's failure
to offer for sale a volume of timber commensurate with those
declarations harms plaintiffs' businesses. As a factual
matter, there is little dispute that such failures have
occurred. BLM has "acknowledged a shortfall in timber
volume offered" for sale as a "result of unforeseen
circumstances and shortcomings in the 1995 RMPs." Decl.
of Richard Hardt in Supp. of Fed. Def.'s Cross-Mot. Summ.
J. ("Hardt Decl.") ¶ 2 [Dkt. # 57-7]. In
Counts One and Four of the operative complaint,
plaintiffs allege that BLM violates the O&C Act and the
Administrative Procedure Act, 5 U.S.C. § 706 ("the
APA"), every year that annual timber offerings are less
than the declared annual sustained yield capacity.
See Corrected Compl. ¶¶ 97-101, 117-119.
not the first time plaintiffs have sued to challenge a
shortfall in O&C timber sales. By their "own
admission, this action seeks to restate plaintiffs'
claims from Swanson Group Mfg. LLC v. Jewell, No.
10cv1843 (filed on Oct. 29, 2010) ('Swanson I)
and related claims from Swanson Group Mfg. LLC v.
Director, No. 14-211, 2015 WL 5693429 (D.D.C. 2015)
('Swanson II) with new evidence regarding
standing." Swanson IV, 195 F.Supp.3d at 71.
this the first time I have been confronted with a motion for
summary judgment on these claims. "In Swanson
I, I granted summary judgment in favor of the
plaintiffs," after determining that BLM's
"failure to offer for sale a declared amount of timber
from two western Oregon districts" was unlawful.
Swanson IV, 195 F.Supp.3d at 71. In Swanson
II, plaintiffs sought to extend the holding from
Swanson I to timber sales in additional O&C
districts. See Id. But before Swanson II
could be resolved on the merits, our Circuit Court dismissed
the Swanson I complaint, reasoning that plaintiffs
lacked Article III standing. See Swanson Group Mfg. LLC
v. Jewell, 790 F.3d 235, 239-40 (D.C. Cir. 2015)
("Swanson III"). In accordance with the
Circuit Court's decision, I then dismissed Swanson
II on the same grounds. See Swanson II, 2015 WL
5693429, at *4. In response, plaintiffs reasserted their
claims in this suit with their "new evidence regarding
standing." Swanson IV, 195 F.Supp.3d at 71.
have now moved for summary judgment on the reasserted claims.
Defendant responded with a cross-motion for summary judgment
in its favor. Both motions are ripe for resolution.
judgment is appropriate when no genuine dispute exists as to
any material fact and the moving party is entitled to
judgment as a matter of law. See Fed. R. Civ. P.
56(a). In the context of agency review, "[s]ummary
judgment. . . serves as the mechanism for deciding, as a
matter of law, whether the agency action is supported by the
administrative record and otherwise consistent with the APA
standard of review." Sierra Club v. Mainella,
459 F.Supp.2d 76, 90 (D.D.C. 2006). Agency actions do not
satisfy the APA standard of review when they are
"arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law." 5 U.S.C. §
Swanson I, I determined that the timber sale mandate
in the O&C Act "conveys a clear requirement: once
BLM declares an annual sustained yield capacity, it
must sell that amount [of timber] or so much thereof
as can be sold at reasonable prices on a normal market"
every year. 951 F.Supp.2d 75, 81-82 (D.D.C. 2013). My
determination followed directly from the statutory language.
"Under the O & C Act, '[t]he annual productive
capacity for [O&C] 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. (quoting
43 U.S.C. § 1181a, now codified at 43 U.S.C. §2601
(second alteration added; emphasis in Swanson I)).
These are mandatory directives: Congress decreed that the
Department of the Interior "shall" declare a
sustained yield capacity and "shall" sell or offer
for sale annually an amount of timber that is not less than
that declared capacity. 43 U.S.C. § 2601; see
Swanson I, 951 F.Supp.2d at 81 (citing Allied Pilots
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