417 F.Supp.3d 22
D.D.C.2019Background
- The Oregon & California (O&C) Act (43 U.S.C. § 2601) requires the Interior Department to determine and declare an annual sustained yield capacity (ASQ) for O&C timberland and to sell or offer for sale each year timber "not less than" that declared capacity (or not less than one-half billion feet if applicable).
- BLM implemented the statutory declarations through resource management plans (RMPs). The 1995 RMPs set district ASQs with an incorporated annual variance of ±20%; the 2016 RMPs adjusted ASQs and allowed up to ±40% annual variation while requiring multi-year averages within narrower bands.
- Plaintiffs (Starfire Lumber Co. and South Coast Lumber Co.), purchasers of O&C timber, allege BLM repeatedly failed to offer the statutory amount, causing business harm; BLM acknowledged a long-term shortfall and conceded a statewide 571.1 mmbf (35%) shortfall from 2009–2016.
- Procedural history includes prior litigation (Swanson I: D.D.C. found BLM violated the Act; Swanson III: D.C. Cir. dismissed on standing). Two plaintiffs were reinstated in this action and moved for summary judgment; the Secretary cross-moved.
- The court held that the O&C Act imposes a mandatory duty on BLM to sell or offer at least the declared annual sustained yield capacity, found BLM violated that duty (shortfalls exceed permitted variance), granted plaintiffs summary judgment in part, denied the Secretary’s cross‑motion, and ordered supplemental briefing on remedy.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the O&C Act imposes a non‑discretionary duty to sell/offfer declared ASQ | "Shall" is mandatory; BLM must sell/offfer not less than the declared annual capacity each year | The statute imposes no non‑discretionary, judicially enforceable duty | Court: The statute is mandatory; BLM must sell/offer at least the declared capacity (follows Swanson I) |
| Whether courts may review/enforce alleged violations of the timber‑sale mandate | The mandate is discrete and judicially manageable; courts can compel compliance under APA § 706 | The matter is committed to agency discretion / not judicially reviewable | Court: Reviewable and enforceable; relief under § 706 is available (adopts Swanson I reasoning) |
| Whether the 2016 RMPs moot claims arising under the 1995 RMPs or earlier shortfalls | RMP replacement does not moot a statutory‑duty claim; new plans are materially similar and harm persists | Superseding RMPs moot prior‑plan challenges | Court: Not moot; statutory duty continues and replacement plans are materially similar so claims survive |
| Whether an RMP’s declared ASQ range (with permitted variance) means BLM need only meet the low end (e.g., 80%) each year | Plaintiffs: BLM must offer the declared annual capacity each year (not just a lower percent) | Defendant: The RMPs declare ASQ as a range; the declared range defines the required annual volume | Court: The agency declarations (including permitted variance ranges) define the annual sustained yield capacity for purposes of compliance; but BLM still violated the Act because shortfalls exceeded the declared variance |
| Remedy procedure | Plaintiffs seek an order compelling compliance | Defendant requested opportunity to brief remedy scope | Court: Ordered supplemental briefing on remedy (page limits and schedule provided) |
Key Cases Cited
- Swanson Group Mfg. LLC v. Jewell, 951 F. Supp. 2d 75 (D.D.C. 2013) (district court holding O&C Act compels BLM to offer declared sustained yield capacity)
- Swanson Group Mfg. LLC v. Jewell, 790 F.3d 235 (D.C. Cir. 2015) (appellate decision addressing standing; vacated district judgment on that ground)
- Northeastern Fla. Chapter v. City of Jacksonville, 508 U.S. 656 (1993) (agency repeal/replace does not moot a case when replacement is materially similar)
- Akiachak Native Cmty. v. United States Dep't of Interior, 827 F.3d 100 (D.C. Cir. 2016) (general rule that rescinding/replacing a regulation may moot litigation challenging the original rule)
- Allied Pilots Ass'n v. Pension Benefit Guar. Corp., 334 F.3d 93 (D.C. Cir. 2003) (interpretive principle that "shall" ordinarily imposes mandatory duty)
- Klamath‑Siskiyou Wildlands Ctr. v. Bureau of Land Mgmt., 387 F.3d 989 (9th Cir. 2004) (federal courts review agency NEPA/timber sale related decisions)
- Habitat Educ. Ctr. v. U.S. Forest Serv., 609 F.3d 897 (7th Cir. 2010) (review of agency environmental documents in connection with timber sales)