Am. Forest Res. Council v. Hammond

422 F.Supp.3d 184

AMERICAN FOREST RESOURCE COUNCIL, et al., Plaintiffs,

v.Casey HAMMOND, et al., Defendants.

Association of O & C Counties, Plaintiff,

v.William Perry Pendley, et al., Defendants.

Association of O&C Counties, Plaintiff,

v.Donald J. Trump, et al., Defendants.

Soda Mountain Wilderness Council, et al., Defendant-Intervenors.

American Forest Resource Council, Plaintiff,

v.United States of America, et al., Defendants,Soda Mountain Wilderness Council, et al., Defendant-Intervenors.

Civil Case No. 16-1599 (RJL)

Civil Case No. 16-1602 (RJL)

Civil Case No. 17-280 (RJL)

Civil Case No. 17-441 (RJL)

United States District Court, District of Columbia.

Signed November 22, 2019

David O. Bechtold, Northwest Resource Law PLLC, Portland, OR, Diane M. Meyers, Northwest Resource Law PLLC, Seattle, WA, for Plaintiffs.

Coby Howell, U.S. Department of Justice, Portland, OR, Jacqueline Margaret Leonard, U.S. Department of Justice, Washington, DC, for Defendants.

Patti A. Goldman, Kristen L. Boyles, Pro Hac Vice, EarthJustice, Seattle, WA, Susan Jane M. Brown, Pro Hac Vice, Portland, OR, for Defendant-Intervenors.

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

The 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.¹

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).

In all 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, intervenors filed additional cross-motions for summary judgment in defense of the Proclamation.

In all 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 intervenors' cross-motions for summary judgment must be DENIED.

BACKGROUND²

The 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.³ 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).

The O&C land's productive capacity—also referred to as the allowable sale quantity ("ASQ") of timber⁴ —has reached as high as 1.1 billion board feet per year. See Administrative Record (Case No. 16-1599) ("AR") at JA-14, IND_0527316–17 [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 precipitously.

In 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. 1994).

Land 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, IND_0523007; JA-28, IND_0523235. 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, IND_0340678; JA-46, IND_0514462; JA46, IND_0514701.

BLM 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, IND_0514399-402. 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, IND_0514402. The other five categories, which include multiple types of ecological reserves, limit timber production. See id. at JA-2, IND_0513044. 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, IND_0512707-10; JA-1, IND_0512745; JA-2, IND_0513027-29; JA-2, IND_0513065. 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, IND_0512708 (ASQ for Coos Bay, Eugene, and Salem of 130 million board feet); JA-2, IND_0513027 (ASQ for Klamath Falls, Medford, and Roseburg of 75 million board feet); JA-14, IND_0527316–17 (historic ASQs).

A 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.

On 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.

Plaintiffs 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. § 2601.

The 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.

Plaintiffs, 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, the questions whether the 2016 RMPs and Proclamation 9564 violate the O&C Act are ripe for resolution.

ANALYSIS

I. The 2016 Resource Management Plans

Of this there can be no doubt: the 2016 RMPs violate the O&C Act. When a "statute's language is plain," courts must "enforce it according to its terms."⁵ Lamie v. U.S. Trustee , 540 U.S. 526, 534, 124 S.Ct. 1023, 157 L.Ed.2d 1024 (2004) (quoting Hartford Underwriters Ins. Co. v. Union Planters Bank, N. A. , 530 U.S. 1, 6, 120 S.Ct. 1942, 147 L.Ed.2d 1 (2000) ). The O&C Act plainly requires...