Swanson Group Mfg. LLC v. Salazar
951 F. Supp. 2d 75
D.D.C.2013Background
- Plaintiffs are timber manufacturers/trade associations that rely on timber sales from BLM lands in the Medford and Roseburg districts of western Oregon.
- Under the Oregon and California Lands Act (O&C Act) BLM must sell at least the declared annual sustained yield capacity (interpreted here as at least 80% of the RMP "allowable sale quantity" (ASQ)) each year "or so much thereof as can be sold at reasonable prices on a normal market."
- Since 2004 BLM failed to offer for sale at least 80% of the ASQ for the Medford and Roseburg districts in several years; plaintiffs sued under the APA alleging unlawful withholding/agency action.
- Separately, FWS/BLM/USFS developed an interagency Owl Estimation Methodology (OEM) in 2007–2008 to estimate northern spotted owl take; the OEM was issued and used in Western Oregon consultations without notice-and-comment rulemaking.
- The parties cross‑moved for summary judgment. The court found the failure to offer the sustained yield unlawful and held the OEM was a legislative‑type rule that should have undergone APA notice-and-comment; remedy: compel future offers/sales per the O&C duty and set aside/prohibit use of the OEM until promulgated properly.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether BLM must offer for sale the declared annual sustained yield capacity under the O&C Act | BLM has a mandatory duty ("shall") to sell or offer the declared annual sustained yield (at least 80% of ASQ) each year or so much as can be sold | The statute allows BLM discretion; "shall" is not an absolute mandate, and sales planning is discretionary | Court: "shall" imposes a mandatory obligation to offer/sell the declared capacity; BLM's multi-year failures unlawful; court orders future compliance |
| Whether the failure to offer/sell is a reviewable, discrete/final agency action under the APA | Failure to offer/sell is a definitive, final agency action with immediate effects on plaintiffs | Defendants: claim is non-discrete, lacks finality (citing SUWA-type precedents); Annual Work Plans not final | Court: failure to sell/offer is final/discrete and reviewable; relief available under APA §§706(1)/(2) |
| Whether the OEM is a legislative rule subject to APA notice-and-comment | OEM is binding in effect: mandatory language, applied consistently in Oregon consultations, and imposes obligations on contractors/decisionmakers | Defendants: OEM is a scientific tool/guidance, optional, and not intended to bind; not a final action | Court: OEM is a legislative‑type rule (binding in practice) and final; agencies violated APA by not using notice-and-comment; OEM set aside and its use prohibited until properly promulgated |
| Whether the court must address OEM arbitrary-and-capricious challenge | Plaintiffs challenge OEM as arbitrary/capricious as alternative relief | Defendants defend OEM on merits as reasonable scientific method | Court: because OEM is vacated for procedural APA defect, the arbitrary-and-capricious claim is moot and not decided |
Key Cases Cited
- Lamie v. U.S. Trustee, 540 U.S. 526 (statutory "shall" ordinarily mandatory)
- Monsanto Co. v. United States, 491 U.S. 600 (interpretation of mandatory statutory language)
- Bennett v. Spear, 520 U.S. 154 (final agency action test under APA)
- Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55 (limits on compelling agency action under §706(1))
- Portland Audubon Soc. v. Babbitt, 998 F.2d 705 (O&C Act permits some agency discretion—cited by parties)
- Appalachian Power Co. v. EPA, 208 F.3d 1015 (when guidance functions as binding rule)
- Gen. Elec. Co. v. EPA, 290 F.3d 377 (binding effect inquiry; practical bindingness suffices)
- U.S. Air Tour Ass'n v. FAA, 298 F.3d 997 (possibility of future revisions does not negate finality)