United States District Court, District of Columbia
MEMORANDUM OPINION [DKT. ## 49, 50 (IN CASE NO.
16-1599); 37, 38 (IN CASE NO. 16-1602); 59, 60, 66 (IN CASE
NO. 17-280); 60, 61, 66 (IN CASE NO. 17-441)]
RICHARD J. LEON UNITED STATES DISTRICT JUDGE.
Oregon and California Railroad and Coos Bay Wagon Road Grant
Lands Act of 1937 ("O&C Act"), 43 U.S.C.
§2601 et seq., regulates timber harvest on
approximately two million acres of federal land in western
Oregon ("O&C land"). In these four cases,
plaintiffs challenge decisions made by the President of the
United States and by the Bureau of Land Management
("BLM")-the agency that administers the O&C
Act-that effectively reduce the amount of O&C land that
is available for commercial timber harvest. In two of the
cases, plaintiffs challenge Resource Management Plans, issued
by BLM in 2016 ("the 2016 RMPs"), that set aside
portions of O&C land as reserves on which commercial
timber harvest is limited. In the other two cases, plaintiffs
challenge a Presidential Proclamation ("Proclamation
9564"), by President Obama, that enlarged the
Cascade-Siskiyou National Monument in southern Oregon,
thereby limiting commercial timber harvest on the O&C
land that was added to the monument. See 82 Fed.
Reg. 6145 (Jan. 18, 2017).
four cases, plaintiffs contend that the Government's
actions violate the plain text of the O&C Act. They moved
for summary judgment, and the Government cross-moved,
defending the legality of the 2016 RMPs and Proclamation
9564. In the cases about Proclamation 9564, interveners filed
additional cross-motions for summary judgment in defense of
four cases, plaintiffs are correct. Both the 2016 RMPs and
Proclamation 9564 conflict with mandates imposed by the
O&C Act. For that reason, and for all those that follow,
plaintiffs' motions for summary judgment must be GRANTED,
and the Government's and interveners' cross-motions
for summary judgment must be DENIED.
O&C Act requires that timberland subject to the Act be
"managed... for permanent forest production" and
that timber grown on the land "be sold, cut, and removed
in conformity with the princip[le] of sustained yield."
43 U.S.C. § 2601. To implement these provisions, the
Secretary of the Interior must declare the "annual
productive capacity" of O&C timberland, and then
offer timber commensurate with that productive capacity for
sale each year. Id. A portion of the proceeds
from the timber sales is then paid to the Oregon counties
that contain O&C land. See Id. § 2605(a).
O&C land's productive capacity-also referred to as
the allowable sale quantity ("ASQ") of
timber-has reached as high as 1.1 billion board
feet per year. See Administrative Record (Case No.
16-1599) ("AR") at JA-14, IND0527316-17 [Dkt. ##
37, 40]. For much of the latter half of twentieth century, it
remained relatively close to that figure. See Id.
(showing an ASQ of 874 million board feet or higher every
year from 1959 until 1976). But in the 1990s, the ASQ dropped
1990, the U.S. Fish and Wildlife Service classified the
northern spotted owl as a threatened species under the
Endangered Species Act of 1973 ("ESA"), 16 U.S.C.
§ 1531 et seq. 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 land, including land subject
to the O&C Act, that is suitable habitat for the
threatened owls. See Portland Audubon Soc'y v.
Lujan, 795 F.Supp. 1489, 1510-11 (D. Or. 1992). The
injunction was not resolved until 1994, when BLM, in
conjunction with the United States Forest Service, adopted a
new "forest plan" to govern the management of
northern spotted owl habitat. See Seattle Audubon Soc. v.
Lyons, 871 F.Supp. 1291, 1300, 1302, 1304 (W.D. Wash.
subject to the 1994 forest plan was divided into
"reserve areas in which logging and other
ground-disturbing activities [we]re generally
prohibited" and "unreserved areas" where
"timber harvest [could] go forward."
Lyons, 871 F.Supp. at 1304-05. In 1995, with the
forest plan in place, BLM issued RMPs that adopted similar
measures for O&C land. See, e.g., AR at JA-27,
IND0523007; JA-28, IND0523235. After allocating certain
timberland to reserves, where sustained yield timber harvest
was not permitted, the 1995 RMPs set an ASQ of 203 million
board feet per year, about 20% of the one billion board feet
ASQs that had been declared in the past. See AR at
JA-41, IND0340678; JA-46, IND0514462; JA46, IND0514701.
revised the O&C land RMPs in 2016. Like their
predecessors, the 2016 RMPs divide O&C land into separate
management categories. See AR at JA-46,
IND0514399-402. Only one of the six categories-"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. The
other five categories, which include multiple types of
ecological reserves, limit timber production. See
Id. at JA-2, IND0513044. When BLM calculated the ASQ for
O&C timberland in the 2016 RMPs, the agency looked only
to timber grown in the 498, 597-acre harvest land base.
See Id. at JA-1, IND0512707-10; JA-1, IND0512745;
JA-2, IND0513027-29; JA-2, IND0513065. Timberland in every
other land category, including the 957, 872 acres of
late-successional reserves and the 520, 092 acres of riparian
reserves, was left aside. See Id. This calculation
yielded an ASQ of 205 million board feet per year-a slight
increase from the 1995 RMPs, but still only about 20% of the
historic maximum. See Id. at JA-1, IND0512708 (ASQ
for Coos Bay, Eugene, and Salem of 130 million board feet);
JA-2, IND0513027 (ASQ for Klamath Falls, Medford, and
Roseburg of 75 million board feet); JA-14, IND0527316-17
decade after the northern spotted owl was classified as a
threatened species, President Clinton introduced one more
variable to O&C land management by creating the
Cascade-Siskiyou National Monument. See Proclamation
7318, 65 Fed. Reg. 37, 249, 37, 250 (June 13, 2000). At its
inception, the monument included approximately 40, 156 acres
of O&C Act land within its boundaries. See Fed.
Defs.' Cross-Mot. Summ. J. (Case No. 17-280), Ex. 15 at
11 [Dkt. # 60-2]. And since its inception, "[t]he
commercial harvest of timber . . . [has been]
prohibited," within the monument, "except when part
of an authorized science-based ecological restoration
project." See Proclamation 7318, 65 Fed. Reg.
at 37, 250.
January 12, 2017, shortly before he left office, President
Obama issued Proclamation 9564, which added approximately 47,
660 more acres of O&C land to the Cascade-Siskiyou
National Monument. See Proclamation 9564, 82 Fed.
Reg. 6145 (Jan. 18, 2017); Declaration of Theresa M. Hanley
("Hanley Decl.") ¶8 (Case No. 17-280) [Dkt.
#57-1]. The addition effectively doubled the O&C land
that can no longer be used for timber harvest because it
falls within the monument's boundaries.
in these suits contend that both the 2016 RMPs and
Proclamation 9564 violate the O&C Act. In their view,
setting aside O&C land to limit timber harvest- whether
the set aside is called a reserve or a monument-contravenes
Congress's mandate that O&C land "shall be
managed ... for permanent forest production, and the timber
thereon shall be sold, cut, and removed in conformity with
the princip[le] of sustained yield." 43 U.S.C. §
Government disagrees, of course. It argues that the O&C
Act gives BLM discretion to set land aside in reserves and
that the 2016 RMPs reflect a reasonable balancing of the
agency's obligations under the O&C Act and the ESA.
The Government further argues that Proclamation 9564 is a
valid exercise of power that Congress delegated to the
President through the Antiquities Act, 54 U.S.C. §
320301. Intervenors in Case Numbers 17-280 and 17-441 support
the Government on the latter point.
the Government, and intervenors have all moved or cross-moved
for summary judgment. On March 31, 2019, I remanded these
cases to BLM to provide additional explanation of how BLM has
reconciled and, going forward, intends to reconcile the
varied land management obligations imposed by the O&C
Act, the 2016 RMPs, and Proclamation 9564. BLM has now filed
its explanation, and accordingly, ...