                   UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF COLUMBIA


AMERICAN FOREST RESOURCE          :
COUNCIL, et al.,                  :
                                  :
           Plaintiffs,            :
                                  :
     v.                           : Civil Action No. 94-1031 (JR)
                                  :
JAMES CASWELL, Director, Bureau   :
of Land Management, et al.,       :
                                  :
           Defendants.            :

                            MEMORANDUM

           Fifteen years ago, the American Forest Resource

Council, a timber industry group, sued to challenge a Bureau of

Land Management plan to manage a million acres of federal forests

in the northwestern United States.   AFRC’s position was that the

plan unlawfully limited the harvesting of timber contemplated by

the Oregon California Railroad and Coos Bay Wagon Road Grant

Lands Act, 43 U.S.C. § 1181a, enacted in 1937.    After years of

litigation, the parties signed a settlement agreement, one

provision of which obligated the BLM to “revise the Resource

Management Plans for its Coos Bay, Eugene, Lakeview, Medford,

Roseburg and Salem Districts by December 31, 2008.”    Dkt. #82 ex.

A § 3.5.   The case was dismissed without prejudice, but, under

the terms of the settlement, this court retained jurisdiction to

consider any motion to enforce the agreement.     Id. § 4.3.

           In October 2008 AFRC filed a motion to enforce,

asserting in relevant part that the BLM has breached the
Agreement's implied covenant of good faith by promulgating the

contemplated revised plan without initiating consultation with

the U.S. Fish and Wildlife Service or the National Oceanic and

Atmospheric Administration about the plan’s impact on endangered

or threatened species and their critical habitat.    See, Section

7(a)(2) of the Endangered Species Act (ESA), 16 U.S.C. § 1536

(a)(2).    Plaintiffs' theory is that this failure to consult will

cause a federal court in the Ninth Circuit to enjoin the plan

from taking effect, thereby depriving plaintiffs of the benefit

of their bargain.    The parties agree that Ninth Circuit

litigation regarding the alleged failure to consult is inevitable

and imminent: three challenges to the BLM plan had already been

filed when the instant motion was argued.1

            Because there is no evidence of subjective bad faith,

because the Agency’s “no effect” determination is not facially

invalid, and because any consulting duty may have been satisfied,

plaintiff's theory of breach is too tenuous to support an

enforcement order, especially when neither a direct challenge to

the plan's validity nor the administrative record is before this

court.    Plaintiffs’ motion must therefore be denied.



     1
      Oregon Wild et al. v. Shepard, et al., Civil No. 3:09-
00060-PK, (filed January 15, 2009); Pacific Rivers Council et
al. v. Shepard, et al., Civil No. 3:09- 00058-ST (filed
January 15, 2009); Forest Service Employees for Environmental
Ethics v. U.S. Fish and Wildlife Service, et al., Civil No. 6:09-
06019-AA (filed January 22, 2009).

                                - 2 -
                             Analysis

           Plaintiffs do not attempt to show that any of the

recognized indicia of bad faith are present –- such as sharp

dealings, a lack of diligence or slacking off, a desire to evade

the spirit of the bargain, abuse of the power to specify terms,

or acting in a way targeted to frustrate the other party's

benefit or performance.   See, North Star Alaska Housing Corp. v.

U.S., 76 Fed.Cl. 158, 187-188 (Fed. Cl. 2007) (collecting cases);

See generally, Restatement (Second) of Contracts § 205 (1981).

Plaintiffs indeed concede that the defendants believe the revised

plan will take effect and desire that it do so.   Instead,

plaintiffs argue, it is so likely that the plan will be enjoined

by a court in the Ninth Circuit that their “reasonable

expectations . . . regarding the fruits of the contract” have

been destroyed.   Centex Corp. v. U.S., 395 F.3d 1283, 1305 (C.A.

Fed. 2005).   The analogy offered at oral argument involved the

construction of a house: the contract contains no provision

obligating the contractor to obtain a building permit, and he

does not, with the result that the owner cannot move into the

house.   The contractor (plaintiffs argue) has breached the

covenant of good faith.

           Even if those facts make out a breach of the covenant

of good faith, the analogy is unconvincing.   The contractor’s

omission was certain to prevent the house from being used.


                               - 3 -
Nothing is so certain here: the defendants have determined that

the plan will have “no effect” on endangered or threatened

species, Opp. at 13, and there is substantial Ninth Circuit

authority that a “no effect” determination obviates the ESA's

consultation requirement unless it is found to be an abuse of

discretion.   See, Defenders of Wildlife v. Flowers, 414 F.3d

1066, 1070-1071 (9th Cir. 2005); Southwest Center for Biological

Diversity v. U.S. Forest Service, 100 F.3d 1443, 1447 (9th Cir.

1996); 51 Fed.Reg. 19926, 19949 (June 3, 1986) (“The Federal

agency makes the final decision on whether consultation is

required, and it likewise bears the risk of an erroneous

decision.”); 73 Fed. Reg. 76,272, 76,280-81 (Dec. 16, 2008) (to

be codified at 50 C.F.R. § 402).

           “[C[lear and convincing evidence” is necessary to show

that the government did not act in good faith.      Am-Pro Protective

Agency, Inc. v. United States, 281 F.3d 1234, 1239-40 (Fed. Cir.

2002).   Plaintiffs have not made such a showing.    Defendants have

adopted a course of performance that is not facially defective.

A thorough analysis of that performance may establish that there

was no duty to consult, or that any duty to consult has been

satisfied,2 or that defendants have failed in their duty.     That




     2
      Even if ESA consultation duties were triggered, defendants
may have satisfied them “informally” via ongoing communications
with Fish and Wildlife and NOAA. See, 50 C.F.R. § 402.13.

                               - 4 -
analysis, however, is for the federal courts in the Ninth

Circuit, and not for this court.3

                           *    *      *

          An appropriate order accompanies this memorandum.




                                     JAMES ROBERTSON
                               United States District Judge




     3
      Intervenor Association of Oregon & California Land Grant
Counties cites to a recent case in which a panel of this Circuit
found a challenge to an agency’s declination to consult with the
ESA not ripe because “[g]iven the multi-stage nature of” the
challenged plan, the panel had to “consider any environmental
effects of a leasing program on a stage-by-stage basis, and
correspondingly evaluate ESA's obligations with respect to each
particular stage of the program.” Center for Biological
Diversity v. Department of Interior, 563 F.3d 466, 483 (D.C. Cir.
2009). The law in the Ninth Circuit may point in a different
direction. See, Pacific Rivers Council v. Thomas, 30 F.3d 1050
(9th Cir. 1994) (Land resource management plans “may affect”
protected salmon listed after the plans’ adoption “because the
plans set forth criteria for harvesting resources within the
salmon's habitat . . . .”). Regardless, sorting through the
record to decide whether BLM’s “no effect” determination was
essentially a ripeness argument or was based more substantive
analysis of the plan’s impact, and/or whether the plan is
specific enough to trigger consultation duties (as well as other
similar questions) is exactly the kind of in-depth analysis that,
as a matter of comity, should be left to the courts of the Ninth
circuit.

                               - 5 -
