                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA



DOUGLAS TIMBER OPERATORS, INC.,
et al.,

        Plaintiffs,
                v.                                        Civil Action No. 09-1704 (JDB)
KEN SALAZAR,
Secretary of Interior,
        Defendant,

        and

PACIFIC RIVERS COUNCIL,

        Defendant-Intervenor.



                                    MEMORANDUM OPINION

       Plaintiffs are timber companies and trade and workers’ associations that support

enhanced timber harvest. They challenged in this case the decision of the defendant, Secretary

of the Interior Ken Salazar, to withdraw revisions to the management plans for several federal

land districts in western Oregon. This Court previously found that the Department of the Interior

failed to follow required procedures when it withdrew the revisions, and therefore vacated and

remanded the withdrawal, reinstating the revisions. Defendant-Intervenor Pacific Rivers Council

("PRC") has since sued the Secretary to challenge the reinstated revisions in the U.S. District

Court for the District of Oregon.

       Plaintiffs now move for an order under the All Writs Act, arguing that Interior seeks to

frustrate this Court's order with filings in the Oregon case that rely on the vacated and remanded


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withdrawal. Plaintiffs ask this Court to order the Secretary to withdraw the filings in the Oregon

case and to enjoin the Secretary from making similar filings relying on the vacated and remanded

withdrawal.

       As explained below, plaintiffs' arguments are not persuasive. Interior has been

forthcoming in its filings in the Oregon case regarding this Court's decision. Furthermore,

although this case bears superficial similarity to cases in which agencies have improperly relied

on vacated agency decisions, the Department's litigation position does not constitute agency

action improperly relying on the vacated withdrawal. Hence, the Court will deny plaintiffs'

motion.

I. Background

       Plaintiffs' original claims inhabit a complex legal thicket governing the management of

federal lands in Oregon. This Court's opinion of March 31, 2011 explained that framework in

some detail. See Douglas Timber Operators, Inc. v. Salazar, 774 F. Supp. 2d 245, 248-250

(D.D.C. 2011). The Court will more concisely summarize only the relevant background here.

       The Federal Land Policy and Management Act ("FLPMA"), 43 U.S.C. §§ 1701-87,

governs the use of federal lands, including this land in Oregon, by the Bureau of Land

Management (“BLM”). The FLPMA provides that “[t]he Secretary shall . . . develop, maintain,

and, when appropriate, revise land use plans,” id. § 1712(a), and provides that "[t]he Secretary

shall allow an opportunity for public involvement and by regulation shall establish procedures,

including public hearings where appropriate, to give Federal, State, and local governments and

the public[] adequate notice and opportunity to comment upon and participate in the formulation

of plans and programs relating to the management of the public lands,” id. § 1712(f). See also

43 C.F.R. § 1610.5.



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       The northern spotted owl has been listed as a threatened species under the Endangered

Species Act ("ESA"), 16 U.S.C. §§ 1531-44. See 50 C.F.R. § 17.11(h). The owl resides, among

other places, on the lands at issue in this case. See Douglas Timber, 774 F. Supp. 2d at 248. The

ESA imposes procedural requirements on agencies to consult with the Fish and Wildlife Service

or the National Marine Fisheries’ Service whenever a federal action “may affect” a threatened

species. See 50 C.F.R. § 402.14(a).

       On December 30, 2008, the Department of Interior issued Records of Decision ("ROD")

adopting six revised resource management plans, collectively known as the Western Oregon Plan

Revisions ("WOPR"), for 2.5 million acres of BLM lands in western Oregon. Douglas Timber,

774 F. Supp. 2d at 249. The Final Environmental Impact Statement completed prior to adopting

the ROD determined that “[t]he revision of resource management plans to allocate lands to

various categories of use, with associated management direction for planning future activities on

those lands, would have no impact on listed species or critical habitat.” Id. Thus, because the

impact statement determined that there would be “no effect” on endangered or threatened

species, BLM did not initiate an ESA consultation on the WOPR.

       Subsequently, the Acting Assistant Secretary of Interior for Land and Minerals

Management reversed the WOPR. On July 16, 2009, the Acting Assistant Secretary issued a

memorandum to the Acting Director of BLM withdrawing the ROD “[b]ecause BLM’s ‘no

effect’ determination was legal error based on the record before me and applicable law." Id. at

249-50. The public was not previously notified of the withdrawal decision and no notice and

comment period was provided. Id. at 250.

II. This Court's Summary Judgment Decision




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        Plaintiffs challenged the July 16, 2009 withdrawal as, among other things, violating the

FLPMA's requirement to involve the public in the formulation of land use plans. See Douglas

Timber, 774 F. Supp. 2d at 251. They argued that the withdrawal was therefore inconsistent with

the Administrative Procedures Act, which requires that the Court "hold unlawful and set aside

agency action, findings, and conclusions" that are "arbitrary, capricious, an abuse of discretion,

or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). The Department did not

dispute that the Secretary did not follow the FLPMA's procedures when he withdrew the ROD.

See Douglas Timber, 774 F. Supp. 2d at 257. The Department argued, however, that it had

"inherent authority" to reconsider and withdraw the ROD since the ROD was based on "legal

error." Id.

        After considering the parties' cross-motions for summary judgment, the Court rejected

the Department's argument. The Court concluded that "the Secretary lacked inherent authority to

withdraw the 2008 ROD without following the procedures required under the FLPMA, and his

decision to do so violated the APA." Id. at 259. The Court therefore granted the plaintiffs'

motion for summary judgment with respect to the withdrawal of the ROD, vacating and

remanding the withdrawal back to the Department. 1

        In so holding, the Court stated that "the legal issue of whether the Secretary's failure to

consult under the ESA prior to approving the ROD in December 2008 'was erroneous' is not

properly before this Court." Id. at 258. Rather, the Court stated that the question before it was

"whether the Secretary's decision to withdraw the ROD without formal proceedings under the

FLPMA or the APA based on his conclusion of 'legal error' was arbitrary and capricious or in


1
  The Court also denied plaintiffs' motion for summary judgment and granted the Department's cross-motion for
summary judgment on a claim regarding a Settlement Agreement between four of the plaintiffs in this case and the
Department. See Douglas Timber, 774 F. Supp. 2d at 249, 261. This claim and the Court's treatment of it are not
relevant to the present motion.

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excess of statutory authority." Id. at 258 n.1. The Court also noted that "three challenges to the

BLM's alleged failure to consult under the ESA were filed in the U.S. District Court for the

District of Oregon shortly after the December 2008 approval of the ROD." Id. (citing Oregon

Wild v. Shepard, Civ. No. 3:09–00060 (D. Or. filed Jan. 15, 2009); Pacific Rivers Council v.

Shepard, Civ. No. 3:09–00058 (D. Or. filed Jan. 15, 2009); Forest Serv. Emp. for Env't Ethics v.

U.S. Fish and Wildlife Serv., Civ. No. 6:09–06019 (D. Or. filed Jan. 22, 2009)). Finally, the

Court noted that "because this Court is remanding the Secretary's withdrawal decision, the future

record may shed additional light on the reasoning of the Secretary regarding the Western Oregon

Plan Revisions ROD." Douglas Timber, 774 F. Supp. 2d at 261.

III. Present Motion

a. Oregon Case

       The Department did not appeal this Court's vacatur and remand of the withdrawal

decision. However, plaintiffs in Pacific Rivers Council v. Shepard, which obviously includes

PRC, thereafter renewed their challenge to the now reinstated ROD in the U.S. District Court for

the District of Oregon. See Pls.' Mem. in Supp. of Mot. for Partial Summ. J. at 2, Pacific Rivers

Council v. Shepard, Civ. No. 3:11-00442 (D. Or. filed Apr. 8, 2011) (filed as Ex. 2 to Def.'s

Opp'n to Pls.' All Writs Act Mot. [Docket Entry 63]).

       On June 3, 2011, PRC filed a motion for partial summary judgment in the Oregon case.

See id. PRC argued that "BLM failed to comply with section 7 of the Endangered Species Act

when it finalized new Resource Management Plans for millions of acres of public lands in

western Oregon" without "consult[ing] with the appropriate expert fish and wildlife agencies."

Id. at 1-2. In response, the Department and BLM described this Court's decision requiring

vacatur and remand of the withdrawal, stating that "[t]his decision had the legal effect of



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reinstating the WOPR RODs as operative decision documents for the lands over which they

cover." Federal Defs.' Resp. to Pls.' Mot. for Partial Summ. J. at 2, Pacific Rivers Council v.

Shepard, Civ. No. 3:11-00442 (D. Or. filed Apr. 8, 2011) (filed as Ex. 1 to Def.'s Notice of Filing

[Docket Entry 58]). Nonetheless, the Department and BLM then stated that they "do not contest

liability on Plaintiffs’ sole claim for relief" because "as articulated by the Acting Assistant

Secretary [in the withdrawal decision], BLM’s determination that these decision documents

would have 'no effect' on listed species under these specific circumstances was legal error." Id.

at 3. The Department filed notice of its filings in the Oregon case with this Court on July 1,

2011. See Notice of Filing [Docket Entry 58].

       The Department has more recently indicated that it intends to initiate a "new planning

process" for the districts. See Federal Defs.' Reply to Def.-Ints.' Resp. to Pls.' Mot. for Partial

Summ. J. at 9, Pacific Rivers Council v. Shepard, Civ. No. 3:11-00442 (D. Or. filed Apr. 8,

2011) (filed as Ex. 1 to Pls.' Reply in Supp. of Mot. for an Order under the All Writs Act and 28

U.S.C. § 2202 ("Pls.' Reply") [Docket Entry 64]). In the meantime, the Department indicates

that BLM "has been proposing projects that are in compliance with both [WOPR] and with the

prior land management plans (on which ESA consultation was completed)." Def.'s Surreply to

Pls.' All Writs Act Mot. ("Def.'s Surreply") [Docket Entry 66] at 3.

b. Plaintiffs' Motion

       On July 11, 2011, plaintiffs filed the present motion with this Court for an order under the

All Writs Act, 28 U.S.C. § 1651(a). The motion contends that the Department's filing in the

Oregon case "seeks nothing less than to circumvent and frustrate this Court's order vacating and

remanding the July 16, 2009 withdrawal of the WOPR." Pls.' Mot. for an Order under the All

Writs Act ("Pls.' All Writs Mot.") [Docket Entry 59] at 3. Plaintiffs contend that "Interior is



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trying to accomplish precisely the result that this Court rejected . . . simply by rephrasing the

Secretary's unlawful 'withdrawal' announcement . . . as a 'do not contest' response to PRC's claim

in Oregon." Id. Plaintiffs argue that the Department's "attempt to circumvent this Court's order

relies entirely" on the withdrawal decision, noting that the Department specifically cited the

withdrawal decision in its filings in the Oregon case. Id. They also contend that the

Department's confession of error in the Oregon case will frustrate this Court's statement that "the

future record may shed additional light on the reasoning of the Secretary" regarding the WOPR.

Pls.' Reply at 13-14.

        Plaintiffs assert that the Department "is continuing to operate under the 1995 resource

management plans that the WOPR replaced" since Secretary Salazar "believes ESA consultation

is necessary before he can implement the WOPR, [but] he refuses to initiate that consultation."

Id. at 3. Finally, plaintiffs argue that the Department's failure to produce the entire

administrative record in the Oregon case shows that the Department "seeks vacatur of the WOPR

based solely on his unilateral determination of legal error in the vacated Withdrawal Decision."

Id. at 11.

        Plaintiffs root their argument in WorldCom, Inc. v. FCC, 246 F.3d 690 (D.C. Cir. 2001).

In that case, the court vacated and remanded an FCC decision regarding the classification of

certain data-transmittal services because the decision relied on a previous FCC decision that had

been vacated for its "defective reasoning." Id. at 692-93, 96. The court noted that the agency

"does not seriously contest" that the more recent decision "relied not only on the [prior vacated

decision] but also on its defective reasoning." Id. at 696. Plaintiffs also cite a case in which an

agency continued to apply regulations that had been adopted on the basis of a biological opinion

that the court had vacated. See Ha. Longline Ass'n v. Nat'l Marine Fisheries Serv., 281 F. Supp.



                                                  7
2d 1, 19-20 (D.D.C. 2003). Since "the only articulated basis" for the regulations had been

"declared unlawful by the Court," the court ruled that the agency's continued reliance on the

regulations was also unlawful. Id. at 26. Finally, plaintiffs cite a D.C. Circuit case in which the

court vacated an improperly adopted agency decision that replaced an agency decision that had

also been previously vacated as improperly adopted. See Action on Smoking and Health v. Civil

Aeronatics Bd., 713 F.2d 795, 797-799, 802 (D.C. Cir. 1983).

IV. Analysis

a. All Writs Act

       The All Writs Act provides that "all courts established by Act of Congress may issue all

writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages

and principles of law." 28 U.S.C. § 1651(a). The Supreme Court "has repeatedly recognized the

power of a federal court to issue such commands under the All Writs Act as may be necessary or

appropriate to effectuate and prevent the frustration of orders it has previously issued in its

exercise of jurisdiction otherwise obtained." United States v. New York Tel. Co., 434 U.S. 159,

172 (1977). "[U]nless confined by Congress, a federal court may avail itself of all auxiliary

writs as aids in the performance of its duties, when the use of such historic aids is calculated in

its sound judgment to achieve the ends of justice entrusted to it." Id. at 172-73. The Act has

been applied "flexibly." Id. at 173.

b. Application of Law

       Contrary to plaintiffs' contention, the Department's filings in the Oregon case do not raise

the possibility of frustrating this Court's decision. The Department has been forthcoming in its

filings in the Oregon case about this Court's decision. Furthermore, the Department's filings in

the Oregon case do not reflect agency action that is improper in the way agency actions were in



                                                  8
the cases cited by plaintiffs. On the contrary, the Secretary indicates that the action BLM is

currently taking with respect to the management of land reflects the vacatur of the withdrawal —

that is, is in compliance with the ROD.

       To be sure, there is some superficial similarity between the Department's action here and

the agency conduct in the cases cited by plaintiffs. But the resemblance between this case and

those cases is slim. The agencies in WorldCom and Hawaii Longline "relied on" previous

decisions that had since been vacated. Here, Interior has cited the vacated withdrawal decision

in the Oregon case, therefore likewise arguably "relying on" the withdrawal decision.

Nonetheless, the Department's action does not share the objectionable characteristics of the

agency conduct in those cases.

       When an agency justifies its action on the basis of reasoning that has been judged

defective, as the FCC did in WorldCom, that justification is, of course, also improper. This

Court, by contrast, has never ruled on the Department's conclusion that the ROD constituted

"legal error;" indeed, the Court has never considered the propriety of the ROD in any fashion.

Rather, this Court merely held that the agency's withdrawal of the ROD was procedurally

improper. Since this Court never ruled on the Department's legal reasoning, the Department's

citation to the withdrawal decision as a way of explaining its legal position does not present the

same problem as in WorldCom, in which the agency relied on reasoning that had been

specifically rejected.

       In Hawaii Longline, the agency continued to apply regulations that were adopted on the

basis of a vacated biological opinion. It is improper for an agency to take action on the basis of a

vacated decision. But here the relevant agency action is BLM's management of land, not the

filings that the agency's counsel makes in court. With respect to the management of land, the



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Department recognizes that the 2008 ROD is the law of the land and states that BLM is only

taking action now that is in compliance with the ROD. 2 Court filings do not constitute agency

action in the same sense as decisions that the agency is charged by statute to make. That the

agency thinks that the ROD is improper and has told the court as much in the Oregon case, citing

the withdrawal as explanation, is not the same as making land management decisions on the

basis of the withdrawal decision. And nothing in this Court's prior decision precludes the

Department from adopting that legal position.

        The present situation is also not very similar to Action on Smoking, in which the agency

replaced one procedurally deficient decision with another procedurally deficient decision. The

Department need not conform to procedural requirements (such as including the public in its

decision-making) when filing a brief in court, as it must when taking action under the FLPMA.

Hence, the filings in the Oregon case are not procedurally improper as the withdrawal of the

ROD was.

        The Court would certainly be concerned if the Department were misleading the Oregon

court about the nature of this Court's ruling. But the Department accurately characterized this

Court's decision in its filings in the Oregon case. Indeed, a magistrate judge's findings and

recommendations in the Oregon case showed full awareness of this Court's decision. See

Findings & Recommendations on Pls.' Mot. for Partial Summ. J. and Def.-Intervenors' Mot. for

Stay at 5, Pacific Rivers Council v. Shepard, Civ. No. 3:11-00442 (D. Or. filed Apr. 8, 2011)

(filed as Ex. 1 to Notice of Filing [Docket Entry 67]). As for the production of the administrative



2
 Others have apparently filed suit alleging that BLM's land management decisions are not, in fact, in compliance
with the WOPR ROD. See Def.'s Surreply at 4 (citing Am. Forest Res. Council v. Salazar, Civ. No. 1:11-01174
(D.D.C. filed June 27, 2011)). The present motion, however, regards only the Department's filings in the Oregon
case, not BLM's management of land. The Court is not making any determination about BLM's ongoing land
management decisions.

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record in the Oregon case, the Oregon court is quite capable of seeking out any portions of the

record that it requires in making its decision.

        Plaintiffs are correct that the outcome of the Oregon case might prevent the creation of a

record that sheds additional light on the Secretary's reasoning for seeking to withdraw the ROD.

For example, the court in the Oregon case might strike down the ROD, making unnecessary

further elaboration of the Secretary's reasons for the withdrawal of the ROD. But the Oregon

court could strike down the ROD regardless of how the Department litigates the case, since the

ROD might be struck down on its own merits. In any case, this Court only stated that "the future

record may shed additional light on the reasoning of the Secretary." The Court's decision is not

frustrated if that possibility does not occur.

V. Conclusion

        The Department of the Interior has indicated that its actions with respect to the

management of land are in compliance with this Court's decision vacating the ROD's withdrawal.

The Department has also been forthcoming with the Oregon court regarding this Court's

decision. It is therefore not appropriate for this Court to involve itself in the Department's

litigation position in the Oregon case.

        Accordingly, for the reasons explained above, plaintiffs' motion for an order under the

All Writs Act will be denied. A separate order has been issued on this date.




                                                             /s/

                                                       JOHN D. BATES
                                                  United States District Judge


Dated: December 23, 2011


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