SWANSON GROUP MFG. LLC, et al., Plaintiffs, v. Ken SALAZAR, et al., Defendants.
Civil Case No. 10-1843 (RJL).
United States District Court, District of Columbia.
June 26, 2013.
951 F. Supp. 2d 75
RICHARD J. LEON, District Judge.
John B. Grosko, Paul David Barker, Jr., U.S. Department of Justice, Environment and Natural Resources Division, Washington, DC, for Defendants.
MEMORANDUM OPINION
RICHARD J. LEON, District Judge.
Before the Court are three cross-motions for summary judgment by plaintiffs, defendants, and defendant-intervenors. Pls.’ Mot. for Summ. J., Apr. 3, 2012 [Dkt. # 41] (“Pls.’ Mot.“); Fed. Defs.’ Cross Mot. for Summ. J., Mem. in Supp. Thereof, and Opp‘n to Pls.’ Mot. for Summ. J., May 25, 2012 [Dkt. # 45] (“Defs.’ Mot.“); Def. Intervenors’ Cross-Mot. for Summ. J., May 25, 2012 [Dkt. # 44] (“Intervenors’ Mot.“). In these motions, the parties dispute the lawfulness of two federal agency actions: first, the failure to offer for sale a declared amount of timber from two western Oregon districts, and second, the development and use of an Owl Estimation Methodology. The Court holds that both agency actions were unlawful and, therefore, enters judgment in favor of plaintiffs on two of the five counts of the amended complaint. The remaining three counts are dismissed as conceded or moot. In so doing, the Court GRANTS IN PART AND DENIES IN PART plaintiff‘s motion, GRANTS IN PART AND DENIES IN PART defendant‘s cross-motion, and DENIES defendant-intervenors’ cross-motion.1
BACKGROUND
Plaintiffs are timber manufacturing companies and trade associations based in the Pacific Northwest. Am. Compl., Feb. 18, 2011 [Dkt. # 16], ¶¶ 3-7. Plaintiffs and plaintiffs’ membership rely upon the timber sales from federally-administered land in the Medford and Roseburg districts of western Oregon. Decl. of Steven D. Swanson, Jan. 30, 2012 [Dkt. # 41-3] (“Swanson Decl.“), ¶ 2; Decl. of Link Phillippi, Jan. 27, 2012 [Dkt. # 41-4] (“Phillippi Decl.“), ¶ 2; Decl. of Thomas Partin, Mar. 29, 2012 [Dkt. 41-6] (“Partin Decl.“), ¶ 3; Decl. of Bob Ragon, Jan. 24, 2012 [Dkt. # 41-7] (“Ragon Decl.“), ¶¶ 2, 6.
Plaintiffs’ claims address two actions by agencies under the management of defendants, Secretary of Interior Ken Salazar and Secretary of Agriculture Tom Vilsack. First, plaintiffs’ Claim One alleges that the Bureau of Land Management (“BLM“), an agency within the Department of Interior, failed to offer for sale the statutorily-mandated amount of timber from the Medford and Roseburg districts. Am. Compl. ¶¶ 57-64. Second, plaintiffs’ Claims Two and Three challenge the Owl Estimation Methodology (“OEM“), a set of procedures for assessing the impact of federal actions on the northern spotted owl. Id. ¶¶ 65-79. The OEM was designed for use by BLM, the Fish and Wildlife Service (“FWS“) of the Department of Interior, and the United States Forest Service (“USFS“) of the Department of Agriculture. Id. ¶ 66. These two agency actions are discussed further below.2
Under Claim One, plaintiff alleges that BLM violated two federal statutes. The first statute is the
The second statute at issue is the
Pursuant to the FLPMA, the Secretaries of Interior and Agriculture developed a land use plan for Pacific northwest lands known as the Northwest Forest Plan (“NWFP“) in 1994. B/FAR 8878.4 Under the NWFP, much of the western Oregon lands were designated as a reserve for the northern spotted owl and other species. See Pls.’ Mem. at 9 (citing FWSAR 4298). In 1995, BLM adopted new resource management plans (“RMPs“) for the six western Oregon districts, dramatically reducing the districts’ annual sustained yield timber capacity. See B/FAR 6816 (Roseburg RMP); 12304 (Medford RMP). Specifically, the 1995 RMPs declared an “allowable sale quantity” (“ASQ“) of 57.1 mmbf for lands in the Medford district and 45 mmbf for lands in the Roseburg district. B/FAR 6885 (Roseburg), 12375 (Medford). Both 1995 RMPs state that “[t]he actual sustainable timber sale level attributable to the land use allocations and management direction of the resource management plan may deviate by as much as 20 percent from the identified allowable sale quantity.” B/FAR 6886, 12375. In other words, the annual sustained yield capacity is at least 80 percent of each district‘s ASQ. The 1995 RMPs have remained in effect since their inception, despite many legal hiccups along the way.5
Since 2004, the Medford district has not offered for sale 80 percent of its ASQ in any year except 2005. See B/FAR 88-92; Answer to Am. Compl., Sept. 8, 2011 [Dkt. # 25], ¶ 21. Similarly, the Roseburg district did not offer for sale 80 percent of its ASQ in 2004, 2005, 2007, and 2009. See id. Plaintiffs allege that this failure to offer the annual sustained yield capacity of timber (i.e., 80 percent of the ASQ) constitutes “agency action unlawfully withheld or unreasonably delayed” under
B. Counts Two and Three: Owl Estimation Methodology
Claims Two and Three challenge federal agencies’ use of the Owl Estimation Methodology
FWS listed the northern spotted owl as a threatened species in 1990. 55 Fed. Reg. 26114 (June 26, 1990). Since that listing, the northern spotted owl has triggered prolonged, repeated, and contentious litigation between environmental groups, timber groups, and the federal government in multiple jurisdictions. See, e.g., Pls.’ Mem. at 11-14 (citing multiple cases). For this Court‘s purpose, the most relevant litigation ended in February 2007 with Oregon Natural Resources Council v. Allen, 476 F.3d 1031 (9th Cir. 2007) (“ONRC“). In ONRC, the Ninth Circuit rejected an incidental take statement for several Pacific northwest timber sales impacting the northern spotted owl. Id. at 1032-33.
Shortly after the Ninth Circuit‘s decision, FWS, BLM, and USFS created an interagency team to develop a new protocol that the agencies would use to authorize incidental take of northern spotted owls in future timber sale consultations. B/FAR 34624-25; FWSAR 2002. On September 14, 2007, the agencies issued the “Methodology for Estimating the Number of Northern Spotted Owls Affected by Proposed Federal Actions,” also known as the OEM. FWSAR 2001. While the OEM could be used in any area with a northern spotted owl population, it was designed with Oregon as its initial focus. Id. at 2017, 2419. The agencies did not give the public notice of the OEM‘s issuance or an opportunity to comment on the OEM. They also did not consult the Department of Interior‘s Solicitor‘s Office about whether the OEM required notice and comment under the
The OEM instructs agencies on a new method for estimating owl take when survey data and other tools are not available. Id. at 2399, 2405. This method involves the development of a Northern Spotted Owl Occupancy Map (“NSOOM“), which estimates the presence of owls by combining known owl locations with “projected locations.” Id. at 2400. To develop pro-
The agencies acknowledge that these owl sites “are based on a simulation that may not reflect actual spotted owl locations on the landscape.” Id. at 2405. Despite its data-driven process, the computer may generate sites that do not coincide with suitable owl habitat; in this case, a site can be relocated manually to suitable habitat. Id. at 2407. Once the sites are generated, the OEM instructs the agencies to draw three concentric circles around the sites: a “nest patch,” a “core area,” and a “home range.” Id. at 2409-13. The agencies then examine the percentage of each of these areas that a proposed action will affect in order to determine whether “take” is likely to occur. Id. at 2413-14. Using the OEM, the Medford District was assigned 172 computer-generated owl sites, B/FAR 26011, and the Roseburg district was assigned 63 such sites, FWSAR 13200.
STANDARD OF REVIEW
Summary judgment is appropriate when the movant demonstrates that no genuine dispute as to any material fact and that the moving party is entitled to judgment as a matter of law.
ANALYSIS
The key facts of this case are undisputed. Regarding Count One, defendants have failed to offer for sale the annual sustained yield capacity of the Medford and Roseburg districts in several years since 2004. Regarding the OEM, federal agencies developed and used the OEM without submitting the OEM to the notice and comment procedures of the APA. With these facts not in dispute, the only questions that remain are questions of law. As such, summary judgment is appropriate.
Upon a review of the statutory language, legislative history, and related case law, the Court concludes that the BLM violated its mandated duty to offer for sale the annual sustained yield capacity of the Medford and Roseburg districts. Further, the Court holds that defendants improperly failed to submit the OEM to the rule-
I. Count One: Failure to Offer for Sale Annual Sustained Yield Capacity
Plaintiffs allege that defendants violated the O & C Act by failing to offer the annual sustained yield capacity of timber (i.e., 80 percent of the ASQ) of the Medford and Roseburg districts. See Am. Compl. ¶ 64. Defendants respond that they have not violated the O & C Act because the Act does not impose a mandatory timber sale amount, Defs.’ Mot. at 19-24, and BLM has exercised its discretion properly in enforcing the Act, id. at 29-34. Unfortunately, for defendants, they have not demonstrated that their timber sales have complied with the O & C Act. How so?
A. The Timber Sale Mandate
Because this issue requires the Court to interpret language in a statute, the Court must follow the well-established canons of statutory interpretation. “[W]hen the statute‘s language is plain, the sole function of the courts—at least where the disposition required by the text is not absurd—is to enforce it according to its terms.” Lamie v. U.S. Tr., 540 U.S. 526, 534 (2004). Under the O & C Act, “[t]he annual productive capacity for such 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.”
Defendants respond by pointing to cases in which “shall” language was not considered mandatory in light of surrounding statutory language indicating that the acting party need not always act. See Defs.’ Mot. at 22. The cases defendants cite, however, are clearly distinguishable. In Sierra Club v. Jackson, 648 F.3d 848, 851, 856 (D.C. Cir. 2011), our Circuit held that a statute stating that the “Administrator shall ... [act] as necessary” allowed discretion as to whether to act. No such “as necessary” language exists in the O & C Act. Plaintiffs’ other cases address a unique exception with respect to statutory deadlines, which is not relevant here. See Defs.’ Mot. at 22 (citing Brotherhood of Ry. Carmen v. Pena, 64 F.3d 702, 704 (D.C. Cir. 1995); Teamsters Local Union 1714 v. Pub. Employee Relations Bd., 579 A.2d 706, 710 (D.C. 1990); Thomas v. Barry, 729 F.2d 1469, 1470 n. 5 (D.C. Cir. 1984)). In short, none of defendants’ small sample of cases can justify an exception to the predominant rule: “shall” means “shall.”
B. Extent of BLM‘s Discretion Regarding Timber Sales
Defendants next argue that, even assuming “shall” means “shall,” the O & C Act permits BLM to exercise discretion as to the volume of timber sales. They point to Portland Audubon Society v. Babbitt, 998 F.2d 705, 709 (9th Cir. 1993), in which the Ninth Circuit found that “the plain language of the [O & C] Act supports the district court‘s conclusion that the Act has not deprived the BLM of all discretion with regard to either the volume requirements of the Act or the management of the lands entrusted to its care.” They characterize plaintiffs’ position as arguing that “the O & C Act imposed a mandatory duty upon BLM to sell the ASQ identified in its RMPs each year without fail ....” Defs.’ Mot. at 19. I disagree.
Defendants mischaracterize both plaintiffs’ position and the law. Plaintiffs recognize that O & C Act permits flexibility as to the timber sale volume; they acknowledge that BLM need not sell the ASQ each year but rather must “at least offer for sale” the annual sustained yield capacity. Pls.’ Mem. at 27. Indeed, BLM has discretion as to establishing the ASQ, selecting the timberlands, pricing the sale (at “reasonable prices on a normal market“), scheduling the sale, and even rejecting bids. See
C. Discrete and Final Agency Action
Defendants next suggest that this Court does not have authority to grant
In addition to challenging whether relief is available under § 706(1), defendants argue that relief is unavailable under § 706(2) because plaintiffs have not challenged a “final” agency action. Defs.’ Mot. at 24-25; see also Lujan v. Nat‘l Wildlife Fed‘n, 497 U.S. 871, 894 (1990) (courts may “intervene in the administration of the laws only when, and to the extent that, a specific ‘final agency action’ has an actual or immediately threatened effect.“). The parties seem to dispute whether the BLM‘s timber sales targets, laid out in “Annual Work Plans,” are “final” actions. Pls.’ Mem. at 28; Defs.’ Mot. at 24-25; Pls.’ Reply Brief in Supp. of their Mot. for Summ. J. and Opp‘n to Defs.’ and Def.-Intervenors’ Cross-Mots. for Summ. J., June 25, 2012 [Dkt. # 49] (“Pls.’ Reply“) at 17-18; Fed. Defs.’ Reply Mem. in Supp. of their Cross-Mot. for Summ. J., July 17, 2012 [Dkt. # 52] (“Defs.’ Reply“) at 6-7. However, it is not the timber sales targets or Annual Work Plans that are the “action” at issue; rather, the relevant “action” is the failure to sell or offer to sale the annual sustained yield capacity. See Am. Compl. ¶ 64. The failure to sell or offer to sell the requisite timber each year constitutes a “definitive” position that “has a direct and immediate ... effect on the day-to-day-business of the parties.” Indep. Petroleum Ass‘n of Am. v. Babbitt, 235 F.3d 588, 594 (D.C. Cir. 2001) (quoting Ciba-Geigy Corp. v. EPA, 801 F.2d 430, 436 (D.C. Cir. 1986)); see also Bennett, 520 U.S. at 178 (an agency action is final if it “mark[s] the consumma-
D. Remedy
Because defendant Salazar has failed to ensure BLM‘s compliance with the provisions of the O & C Act, the Court may declare the agency‘s failure to act as unlawful and compel the agency to act. See
II. Counts Two and Three: Owl Estimation Methodology
Next, plaintiffs ask the Court to vacate the OEM on two grounds: that the OEM was not submitted for notice and comment, and that its adoption was arbitrary, capricious, an abuse of discretion, and not in accordance with law. Am. Compl. ¶¶ 65-79. The Court agrees with plaintiffs that the OEM was a final, legislative-type rule that should have been subjected to notice and comment. As such, summary judgment is granted in favor of plaintiffs on Count Two. Because the Court need not inquire as to whether the OEM was arbitrary or capricious, Count Three is dismissed as moot.
A. Notice and Comment Requirement
The APA requires that agencies provide notice and an opportunity to comment prior to issuing a “rule.”
Many cases before this one have attempted to distinguish a binding “legislative rule” requiring notice and comment from an interpretive rule, statement of policy, rule of procedure or practice, or other action that need not undergo notice and comment. See Chrysler Corp. v. Brown, 441 U.S. 281, 301-02 (1979) (only “substantive” or “legislative-type rules” have the force and effect of law).11 To deter-
However, in General Electric Co. v. EPA, 290 F.3d 377, 382 (D.C. Cir. 2002), our Circuit noted that the two lines of inquiry overlap in their final steps: both focus on whether the agency action binds private parties or the agency itself with the “force of law.” Id. at 382. The court held that “binding obligations upon applicants” that appeared “on [the] face” of the agency documents were “sufficient” to render them a legislative rule requiring notice and comment. Id. at 385. A document may be binding even if not binding on its face: “[a]n agency pronouncement will be considered binding as a practical matter if it either appears on its face to be binding ... or is applied by the agency in a way that indicates it is binding.” Id. at 382 (citations omitted).
Our Circuit has elaborated in other cases. “If an agency acts as if a document is controlling in the field, if it treats the document in the same manner as it treats a legislative rule, if it bases enforcement actions on the policies or interpretations formulated in the document, if it leads private parties or State permitting authorities to believe that it will declare permits invalid unless they comply with the terms of the document, then the agency‘s document is for all practical purposes ‘binding.‘” Appalachian Power Co., 208 F.3d at 1021. Notably, “the agency‘s characterization of its own action is not controlling if it self-servingly disclaims any intention to create a rule with the ‘force of law,’ but the record indicates otherwise.” CropLife, 329 F.3d at 883.
While not expressly binding, the language of the OEM suggests that the agencies are expected to use the OEM. The body of the OEM uses commanding verbs: “This information will be used,” FWSAR 2400 (emphasis added); “All ... acres of suitable habitat ... will be used,” id. at 2402 (emphasis added); “The [biological assessment] will identify,” id. (emphasis added); “the agency action will provide” id. (emphasis added). See Appalachian Power Co., 208 F.3d at 1023 (language that “commands ... requires ... orders ...
Defendants advance several arguments for why the OEM does not evince an intent to bind. First, defendants emphasize that the OEM does not expressly purport to bind the agency. See Defs.’ Mot. at 35-36 (citing, inter alia, Amoco Prod. Co. v. Watson, 410 F.3d 722 (D.C. Cir. 2005), aff‘d on other grounds sub nom. BP Am. Prod. Co. v. Burton, 549 U.S. 84 (2006)).13 To be sure, the OEM includes a standard sentence to indicate that it may be optional: “BLM and FS [staff] are encouraged to follow this methodology when assessing effects.” FWSAR 2399. But, as discussed above, a document that does not purport to bind an agency—and even one that expressly pur-
Next, defendants note that the OEM recognizes the use of non-NSOOM tools, including survey data and “predictive owl occupancy models,” to predict owl population. See Defs.’ Mot. at 36 (citing FWSAR 2438). Defendants improperly conclude that, because the agencies recognize non-NSOOM tools as viable alternatives to the NSOOM, the agencies do not intend the OEM to be binding. To the contrary: because the OEM condones the use of non-NSOOM tools to estimate owl populations in certain circumstances, the agency adheres to the OEM by using both the NSOOM and other tools to estimate owl population. Cf. McLouth Steel Prods. Corp., 838 F.2d at 1321 (legislative rule existed where agency reserved discretion to use multiple approaches to determine the impact of unregulated waste disposal).
Not only is the OEM‘s language suggestive of an intent to bind, but the agencies also have applied the OEM as if it were binding with respect to western Oregon timber sales. Plaintiffs acknowledge that the OEM has not yet been treated as binding in Washington and California, two states with northern spotted owl populations. Pls.’ Reply at 26.14 However, the OEM expressly identified Oregon as the preliminary focus of its analysis, FWSAR
B. Final Agency Action
As with Claim One, defendants again contest that Claims Two and Three must fail because the OEM is not a final agency action subject to judicial review. Defs.’ Mot. at 25-26. As discussed above, a “final” agency action is “the consummation of the agency‘s decisionmaking process” and “one by which rights or obligations have been determined, or from which legal consequences will flow.” Bennett, 520 U.S. at 177-78. Our Circuit has suggested that, once an agency action qualifies as a “binding” rule requiring notice and comment, it must also necessarily qualify as a “final” agency action. Ctr. for Auto Safety v. Nat‘l Highway Traffic Safety Admin., 452 F.3d 798, 806 (D.C. Cir. 2006) (“In order to sustain their position, appellants must show that the 1998 policy guidelines either (1) reflect ‘final agency action,’
Regardless of whether the “binding rule” inquiry is dispositive of finality, it is clear that OEM constitutes “final” agency action. The OEM represents the consummation of an interagency team‘s process to develop a methodology for measuring spotted owl incidental take in response to the ONRC case. FWSAR 2399; see also Nat‘l Ass‘n. of Home Builders v. Norton, 298 F. Supp. 2d 68, 77 (D.D.C. 2003) (“all that the consummation condition requires is that a decision-making process was brought to completion“). And, as demonstrated above, the OEM has clear legal consequences for federal timber contractors working in areas with northern spotted owl incidental take statements. While the agencies “anticipate updating the [OEM] as new information becomes available,” Defs.’ Mot. at 43 (citing FWSAR
Defendants rely heavily upon National Association of Home Builders v. Norton, 298 F. Supp. 2d 68 (D.D.C. 2003), a case from this Court holding that a survey protocol for endangered butterflies did not constitute “final” agency action. See Id. at 79. While FWS issued the protocol, the protocol was designed for use by landowners—not by FWS—as a way for landowners to voluntarily assess whether their activities threatened to “take” the endangered butterflies. Id. at 72-73. Due to its non-binding, voluntary nature, the Court found that the protocol did not “determine rights or obligations of landowners.” Id. at 79. Unlike this protocol designed for public use, the OEM was designed for agency use. And the OEM was not simply a voluntary public-use protocol but rather an agency direction that possessed the “force of law.” As such, it qualifies as “final” agency action under the Bennett test.
C. Remedy
Because the OEM constitutes a legislative rule and should have been submitted to the APA‘s rulemaking procedures, the Court sets aside the OEM and prohibits its use by defendants unless and until the methodology is submitted to rulemaking procedures. See
CONCLUSION
For the foregoing reasons, the Court GRANTS IN PART AND DENIES IN PART plaintiff‘s motion for summary judgment, GRANTS IN PART AND DENIES IN PART defendants’ cross-motion for summary judgment, and DENIES defendant-intervenors’ cross-motion for summary judgment. An Order consistent with this decision accompanies this Memorandum Opinion.
RICHARD J. LEON
United States District Judge