Douglas Timber Operators, Inc. v. Salazar
774 F. Supp. 2d 245
D.D.C.2011Background
- Plaintiffs challenge Secretary Salazar's July 16, 2009 withdrawal of the December 30, 2008 Western Oregon Plan Revisions ROD for six BLM districts.
- The 2008 ROD increased allowable timber harvest from NWFP baseline of 208 MMBF to 502 MMBF, as reflected in the ROD and FEIS.
- FEIS concluded no impact on listed species, leading BLM to forego ESA consultation prior to the ROD approval.
- The 2003 Settlement Agreement required revision of six western Oregon district plans by December 31, 2008; Abbey court declined enforcement in 2008 proceedings.
- The Withdrawal Memo cited legal error and ESA considerations but did not provide formal FLPMA notice-and-comment procedures.
- Court grants in part and denies in part plaintiff’s motion, and vacates/remands the withdrawal decision for FLPMA procedural deficiencies.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing to challenge withdrawal | Plaintiffs allege injury in fact from economic and environmental harms and procedural injury from lack of comment. | Withdrawal did not cause redressable injury or plaintiffs lacked redressability. | Plaintiffs have standing (economic and environmental injuries; redressable by remand). |
| FLPMA procedures and authority to withdraw | Secretary lacked authority to withdraw the ROD without FLPMA notice and comment procedures. | Secretary had inherent authority to reconsider and withdraw due to legal error. | Secretary lacked inherent authority; FLPMA procedures required; withdrawal arbitrary and capricious. |
| Public notice and participation under FLPMA | Withdrawal without notice/comment violated FLPMA §1712(f) procedures. | Public participation requirements could be overridden by perceived legal error. | FLPMA procedural violations warrant vacatur and remand. |
| Breach of 2003 Settlement Agreement | Withdrawal breached the 2003 Settlement Agreement. | Breach claims fall outside Tucker Act jurisdiction; APA does not waive to permit this relief. | Dismissed; court lacks jurisdiction to compel breach remedies under Tucker Act. |
Key Cases Cited
- Mountain States Legal Found. v. Glickman, 92 F.3d 1228 (D.C. Cir. 1996) (standing for timber-firm injuries from reduced logging is viable)
- NRDC v. EPA, 464 F.3d 1 (D.C. Cir. 2006) (environmental injury standing when increased risk is substantial)
- Summers v. Earth Island Inst., 555 U.S. 488 (S. Ct. 2009) (procedural injury standing requires concrete interests; vacuity avoided)
- Norton v. SUWA, 542 U.S. 55 (S. Ct. 2004) (land-use plans are preliminary steps requiring further action)
- AFL-CIO v. Chao, 496 F. Supp. 2d 76 (D.D.C. 2007) (harmless error standard in notice-and-comment cases)