                        UNITED STATES DISTRICT COURT
                        FOR THE DISTRICT OF COLUMBIA

SWANSON GROUP MFG. LLC, et al.,                       )
                                                      )
              Plaintiffs,                             )
                                                      )
             v.                                       ) Civil Case No. 10-1843 (RJL)
                                                      )
KEN SALAZAR, et al.,                                  )
                                                      )
                                                      )
              Defendants.                             )
                                   ~·
                              MEMORANDUM OPINION
                              June  1/L,
                                   2013 [## 41, 44, 45]

       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




                                              1
AND DENIES IN PART plaintiffs 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], ,-r,-r 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."), ,-r 2; Decl. ofLink Phillippi, Jan. 27, 2012 [Dkt. #

41-4] ("Phillippi Decl."), ,-r 2; Decl. ofThomas Partin, Mar. 29, 2012 [Dkt. 41-6] ("Partin

Decl."), ,-r 3; Decl. of Bob Ragon, Jan. 24, 2012 [Dkt. # 41-7] ("Ragon Decl."), ,-r,-r 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. ,-r,-r 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. !d. ,-r,-r 65-79. The OEM was designed for use by BLM, the Fish and

Wildlife Service ("FWS") of the Department oflnterior, and the United States Forest


1 Defendant-intervenors address only the first count of the amended complaint in their
motion, Intervenors' Mot. at 1, while defendants address all five counts of the amended
complaint in their motion, Defs.' Mot. at 1-2.

                                               2
Service ("USFS") of the Department of Agriculture. !d. ~~ 66. These two agency actions

are discussed further below. 2

       A.     Count One: Failure to Offer for Sale Annual Sustained Yield Capacity

       Under Claim One, plaintiff alleges that BLM violated two federal statutes. The

first statute is the Oregon and California Lands Act of 1937 ("O&C Act"), 43 U.S.C. §

1181 a. The O&C Act was enacted in 193 7 to regulate timber production on federal lands

in western Oregon, including the Medford and Roseburg districts. 3 Under the statute,

this federal land "shall be managed ... for permanent forest production, and the timber

thereon shall be sold, cut, and removed in conformity with the principal [sic] of sustained

yield for the purpose of providing a permanent source of timber supply, protecting

watersheds, regulating stream flow, and contributing to the economic stability of local

communities and industries, and providing recreational facilties [sic]." !d. The most

relevant portion appears later in this section: "The 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." !d.


2 Because plaintiffs have decided not to pursue Claims Four and Five of the Amended
Complaint, those claims are dismissed as conceded. See Defs.' Mot. at 1-2; Pls.'
Statement ofP. & A. in Supp. of Mot. for Summ. J., Apr. 3, 2012 [Dkt. # 41-1] ("Pis.'
Mem.") at 2 n.2. These dismissed claims include all alleged violations of the Endangered
Species Act. See Defs.' Mot. at 15 n.9.
3 The Medford District contains 749,500 acres ofland covered by the O&C Act, and the

Roseburg District contains 405,502 acres of O&C land. Pis.' Mem. at 5-6.

                                             3
       The second statute at issue is the Federal Land Policy and Management Act of

1976 ("FLPMA"), 43 U.S.C. §§ 1701-1782. In pertinent part, the statute directs that

"[t]he Secretary shall manage the public lands under principles of multiple use and

sustained yield, in accordance with the land use plans developed by him under section

1712 of this title when they are available .... " 43 U.S.C. § 1732(a). The BLM's

FLPMA regulations state that "[a]ll future resource management authorizations and

actions, as well as budget or other action proposals to higher levels in the Bureau of Land

Management and Department, and subsequent more detailed or specific planning, shall

conform to the approved plan." 43 C.P.R.§ 1610.5-3(a).

       Pursuant to the FMPLA, 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 BIFAR 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


4Defendants have submitted the administrative record in this case in two parts, each
beginning with page 000001. See Admin. R., Dec. 20, 2011 [Dkt. # 34]. For
convenience, the Court adopts the plaintiffs' citation form: the record part submitted by
BLM and USFS is cited as "B/F AR," and the record part submitted by FWS is cited as
"FWSAR." See Pis.' Mem. at 5 n.5.

                                             4
district. B/F AR 6885 (Roseburg), 123 7 5 (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/F AR 6886, 123 7 5. 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 BIF AR 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 5 U.S.C. § 706(1) and is "arbitrary,

capricious, an abuse of discretion, or otherwise not in accordance with law" and "in

excess of statutory ... authority" under 5 U.S.C. § 706(2). See Am. Compl.         ~   64.


5 After a legal challenge to the NWFP, the BLM began a new planning effort known as
the Western Oregon Plan Revision ("WOPR") to revise the 1995 RMPs. See Pis.' Mem.
at 9-10. The WOPR was approved on December 30, 2008, see 74 Fed. Reg. 829 (Jan. 8,
2009), but was purportedly withdrawn on July 16, 2009 by the Department of Interior.
See Douglas Timber Operators v. Salazar, 774 F. Supp. 2d 245, 247 (D.D.C. 2011). On
March 31,2011, Judge Bates ofthis Court vacated and remanded the purported
withdrawal, which reinstated the WOPR. !d. at 261-62. However, the WOPR itself was
vacated shortly thereafter in Pacific Rivers Council v. Shepard, No. 3: 11-cv-442-HU (D.
Or. May 16, 2012), thereby reinstating the 1995 RMPs. An appeal ofthat decision was
dismissed. Pacific Rivers Council v. Shepard, No. 12-35570 (9th Cir. Mar. 1, 2013). As
such, the WOPR was never in effect for the purposes of this Court's legal analysis.

                                                  5
       B.      Counts Two and Three: Owl Estimation Methodology

       Claims Two and Three challenge federal agencies' use of the Owl Estimation

Methodology to comply with its consultation responsibilities under the Endangered

Species Act of 1973 ("ESA"), 16 U.S.C. §§ 1531 et seq. Am. Compl. ,, 65-79. Under

the ESA, an agency must engage in formal consultation with FWS if a proposed agency

action may adversely affect a protected species or its critical habitat. 16 U.S.C. §

1536(a); 50 C.F.R. § 402.14(a). 6 At the end of a formal consultation, FWS issues a

biological opinion. 16 U.S.C. § 1536(b)(3)(a); see also Bennett v. Spear, 520 U.S. 154,

154 ( 1997). If the agency action is allowed to proceed, the biological opinion will

include an incidental take statement, which authorizes the agency to "take" the species as

long as it respects certain limitations. 16 U.S.C. § 1536(b)(4); see also Bennett, 520 U.S.

at 169-70. 7

       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., Pis.' Mem. at 11-



6 An agency can avoid formal consultation-in favor of "informal consultation"-if both
the agency and FWS agree that the proposed action is not likely to adversely affect listed
species or critical habitat. 50 C.F.R. §§ 402.13(a), 402.14(b)(l). In this case, the agency
need not undergo further consultation or prepare an incidental take statement. 50 C.F .R.
§ 402.13(a). The end product of informal consultation is typically a letter of"written
concurrence" from the FWS that the action is unlikely to have an adverse effect. !d.
7 To "take" a species is defined as "to harass, harm, pursue, hunt, shoot, wound, kill, trap,

capture, or collect, or to attempt to engage in any such conduct." 16 U.S.C. § 1532(19).

                                              6
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. !d. 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/F AR

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. !d. 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 Administrative Procedure Act ("APA"), 5 U.S.C. § 553. Decl. of

Theresa Rabot, Mar. 14, 2013 [Dkt. # 56-1], ~ 2. The agencies revised the OEM on

December 20, 2007 and on September 15, 2008, again without notice or comment.

FWSAR 2100,2398. The September 2008 version remains in effect today.

       The OEM instructs agencies on a new method for estimating owl take when survey

data and other tools are not available. !d. at 2399, 2405. This method involves the

development of a Northern Spotted Owl Occupancy Map ("NSOOM"), which estimates


                                             7
the presence of owls by combining known owl locations with "projected locations." /d. at

2400. To develop projected locations, the agencies rely upon "the amount and

distribution of suitable owl habitat and best available information on known owl locations

and spacing patterns for that area." /d. at 2399. Using this data and a random point

generator, computers generate sites where owls likely would nest. /d. at 2422.

       The agencies acknowledge that these owl sites "are based on a simulation that may

not reflect actual spotted owl locations on the landscape." /d. 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. /d. 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." /d. 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. /d. at 2413-14. Using

the OEM, the Medford District was assigned 172 computer-generated owl sites, B/F AR

26011, and the Roseburg district was assigned 69 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 oflaw. Fed. R. Civ. P. 56(a). The moving party bears the burden of proof, and the

Court will draw "all justifiable inferences" in favor of the non-moving party. Anderson v.

Liberty Lobby, Inc., 4 77 U.S. 242, 255-56 (1986) (citation omitted). Nevertheless, the


                                               8
non-moving party "may not rest upon the mere allegations or denials of his pleading, but

must set forth specific facts showing that there is a genuine issue for trial." !d. at 256.

"Thus, if the evidence presented by the opposing party is 'merely colorable' or 'not

significantly probative,' summary judgment may be granted." Burke v. Gould, 286 F.3d

513, 520 (D.C. Cir. 2002) (quoting Anderson, 477 U.S. at 249-50); see also Montgomery

v. Chao, 546 F.3d 703, 708 (D.C. Cir. 2008) ("The possibility that a jury might speculate

in the plaintiffs favor ... is simply insufficient to defeat summary judgment.") (citations

omitted). Factual assertions in the moving party's affidavits may be accepted as true

unless the opposing party submits its own affidavits, declarations, or documentary

evidence to the contrary. Neal v. Kelly, 963 F.2d 453,456 (D.C. Cir. 1992). Supporting

or opposing affidavits must be made on the basis of personal knowledge and must set out

facts that would be admissible in evidence. Fed. R. Civ. P. 56(c)(4).

                                         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 oflaw.

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


                                              9
sustained yield capacity of the Medford and Roseburg districts. Further, the Court holds

that defendants improperly failed to submit the OEM to the rulemaking procedures of the

AP A. The Court, therefore, will grant summary judgment in favor of plaintiffs on Counts

One and Two of the Amended Complaint. 8

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?




8 On August 25, 2011, the Court rejected defendants' Motion to Dismiss the Amended
Complaint Min. Order, Aug. 25, 2011. In that Motion to Dismiss, defendants argued
that plaintiffs lacked standing on Claims 1, 2, and 3 because they had not suffered a
concrete, particularized injury. Fed. Defs.' Mot. to Dismiss the Am. Compl. and Mem. in
Supp. Thereof, Mar. 25, 2011 [Dkt. # 20] ("Mot. to Dismiss"), at 22-26. Defendants
repeat this argument in their Motion for Summary Judgment, Defs.' Mot. at 27-29, and it
is again rejected. Defendants also repeat several arguments that they frame as "standing"
arguments but are more akin to merits arguments. See Mot. to Dismiss at 15-27 (arguing
that the O&C Act does not impose a mandatory timber sale requirement and that the
agency actions were not final, discrete actions subject to judicial review); see also, e.g.,
Trudeau v. Fed. Trade Comm 'n, 456 F.3d 178, 183-84 (D.C. Cir. 2006) (determination of
whether agency action is "final" action subject to judicial review under the AP A is not
jurisdictional). These arguments will be addressed later in this Opinion.

                                             10
       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. US. Tr., 540

U.S. 526, 534 (2004) (citations and internal quotation marks omitted). 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." 43 U.S.C. § 1181a (emphasis added). The use of

"shall" creates a mandatory obligation on the actor-in this case, BLM-to perform the

specified action. See Allied Pilots Ass 'n v. Pension Benefit Guar. Corp., 334 F.3d 93, 98

(D.C. Cir. 2003) (noting "the well-recognized principle that the word 'shall' is ordinarily

the language of command") (citation and internal quotation marks omitted); United States

v. Ins. Co. ofN. Am., 83 F.3d 1507, 1510 n.5 (D.C. Cir. 1996) ("Cases are legion

affirming the mandatory character of' shall."') (citing United States v. Monsanto, 491

U.S. 600, 607 (1989); Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 61

(1982) (per curiam); Anderson v. Yungkau, 329 U.S. 482, 485 (1947); Ass 'n ofCivilian

Technicians v. FLRA, 22 F.3d 1150, 1153 (D.C. Cir. 1994)). Thus, the language ofthis

statute conveys a clear requirement: once BLM declares an annual sustained yield


                                             11
capacity, it must sell that amount 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, our Circuit held that a statute stating

that the "Administrator shall ... [act] as necessary" allowed discretion as to whether to

act. 648 F.3d 848, 851, 856 (D.C. Cir. 2011). 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.

Employees 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, 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." 998 F.2d 705, 709 (9th Cir.


                                             12
1993) (cited in Defs.' Mot. at 20). 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 43 U.S.C.

§ 1181 a ("[T]he Secretary is authorized, in his discretion, to reject any bids which may

interfere with the sustained-yield management plan of any unit."). The O&C Act does not

prevent BLM from considering a variety of factors in its management of timber sales.

See Seattle Audubon Soc 'y v. Lyons, 871 F. Supp. 1291, 1314 (W.D. Wash. 1994)

("Management under [the O&C Act] must look not only to annual timber production but

also to protecting watersheds, contributing to economic stability, and providing

recreational facilities.") (citation omitted); Intervenors' Mot. at 1 (the O&C Act "contains

more than a 'timber first' mandate: it embodies a multiple-use, sustained yield, protective

standard for management of these federal public forest lands."). But the key point

remains the same: despite its discretion with respect to many aspects of the timber sales,

BLM is nevertheless required to sell or offer for sale at reasonable prices the annual

sustained yield capacity, and it has failed to do so.


                                              13
       C.     Discrete and Final Agency Action

       Defendants next suggest that this Court does not have authority to grant relief for

the BLM's failure to act under 5 U.S.C. § 706(1) because the claim does not target a

"discrete" agency action. Defs.' Mot. at 17-19. Please! Under the APA, an "agency

action" is an "agency rule, order, license, sanction, relief, or the equivalent or denial

thereof, or failure to act." 5 U.S.C. § 551(13) (emphasis added). In arguing that this

failure to act was not "discrete," defendants rely heavily upon Norton v. Southern Utah

Wilderness Alliance, 542 U.S. 55 (2004) ("SUWA"). See Defs.' Mot. at 17-18. In SUWA,

the Supreme Court held that the relevant statutory mandate-to "continue to manage

[wilderness land] in a manner so as not to impair the suitability of such areas for

preservation as wilderness"-lacked the "clarity" necessary to compel BLM to exclude

off-road vehicles under 5 U.S.C. § 706(1). !d. at 65-66. This vague and subjective

"manage[ment]" mandate is certainly not analogous to the O&C Act's clear, time-bound

timber sale mandate. 9 Indeed, SUWA supports the enforcement of the O&C Act's

mandate: "when an agency is compelled by law to act within a certain time period, but the

manner of its action is left to the agency's discretion, a court can compel the agency to



9Nor is this vague "manage[ment]" mandate analogous to the other mandates that the
SUWA court hypothesized would be unreviewable: "to manage wild free-roaming horses
and burros in a manner that is designed to achieve and maintain a thriving natural
ecological balance, or to manage the New Orleans Jazz Historical Park in such a manner
as will preserve and perpetuate knowledge and understanding of the history of jazz, or to
manage the Steens Mountain Cooperative Management and Protection Area for the
benefit of present and future generations." !d. at 67 (citations and internal quotation
marks omitted).

                                              14
act, but has no power to specify what the action must be." !d. at 65. Because the O&C

Act clearly compels BLM to offer for sale the annual sustained yield capacity, this

mandate is sufficiently discrete to warrant judicial review and enforcement.

       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'! Wildlife Fed'n, 497

U.S. 871, 894 (1990) (courts may "intervene in the administration ofthe laws only when,

and to the extent that, a specific 'final agency action' has an actual or immediately

threatened effect.") (citation omitted). The parties seem to dispute whether the BLM' s

timber sales targets, laid out in "Annual Work Plans," are "final" actions. Pis.' Mem. at

28; Defs.' Mot. at 24-25; Pis.' 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]

("Pis.' 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 ofAm. 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)

(internal quotation marks omitted)); see also Bennett, 520 U.S. at 178 (an agency action is


                                              15
final if it "mark[s] the consummation of the agency's decisionmaking process" and is

"one by which rights or obligations have been determined, or from which legal

consequences will flow.") (citations and internal quotation marks omitted). Thus, the

agency's failure to meet its timber mandate directly and immediately affects plaintiffs,

who rely upon these timber sales for their survival. See, e.g., Swanson Dec I. ~ 3; Phillippi

Decl.   ~   2. By failing to sell or offer for sale the annual sustained yield capacities in

several recent years, BLM has committed a series of "final" agency actions warranting

reliefunder § 706(2).

        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 5 U.S.C. § 706. Under this authority, the Court holds

unlawful under the O&C Act defendant Salazar's failure to sell or to offer for sale the

annual sustained yield capacity of the Medford and Roseburg districts in several years

since 2004. As such, the Court orders defendant Salazar and/or his successors to sell or

offer for sale the declared annual sustained yield capacity of timber for the Medford and

Roseburg districts for each future year, in accordance with the O&C Act. 10

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,

10In order to award plaintiffs the relief requested under Count One, the Court need not-
and therefore does not-find a violation of the FLPMA.

                                                  16
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 AP A requires that agencies provide notice and an opportunity to comment

prior to issuing a "rule." 5 U.S.C. § 553. A "rule" is defined as "the whole or a part of an

agency statement of general or particular applicability and future effect designed to

implement, interpret, or prescribe law or policy or describing the organization, procedure,

or practice requirements of an agency .... " Jd. § 551(4). However, the APA expressly

exempts from the notice and comment requirement "interpretative rules, general

statements of policy, or rules of agency organization, procedure, or practice." !d. §

553(b)(A).

       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 determine whether an

11The government does not attempt to characterize the OEM as one or more of the
specific exemptions to the notice and comment requirement. It simply calls it a
"scientific methodology" or "scientific tool" that does not possess the "force of law."
Defs.' Mot. at 35.

                                             17
agency action constitutes a binding legislative rule, our Circuit has been "guided by two

lines of inquiry." See Wilderness Soc 'y v. Norton, 434 F .3d 584, 595 (D.C. Cir. 2006);

Cmty. Nutrition !nsf. v. Young, 818 F.2d 943,946 (D.C. Cir. 1987) (per curiam). One line

of inquiry has examined the effects of the agency's action; it explores whether the agency

has "(1) impose[ d] any rights and obligations, or (2) genuinely [left] the agency and its

decisionmakers free to exercise discretion." CropLife Am. v. EPA, 329 F.3d 876, 883

(D.C. Cir. 2003) (citation and internal quotation marks omitted). The language used by

an agency is an important consideration in such determinations. See Cmty. Nutrition Inst.,

818 F .2d at 946. The second line of inquiry focuses on the agency's expressed

intentions and considers three factors: "(1) the [a]gency's own characterization of the

action; (2) whether the action was published in the Federal Register or the Code of

Federal Regulations; and (3) whether the action has binding effects on private parties or

on the agency." Molycorp, Inc. v. EPA, 197 F.3d 543,545 (D.C. Cir. 1999) (citing Fla.

Power & Light Co. v. EPA, 145 F.3d 1414, 1418 (D.C. Cir. 1998)); see also CropLife

Am., 329 F.3d at 883. 12

       However, in General Electric Co. v. EPA, 290 F.3d 377 (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." !d. at 382. The court held that "binding obligations upon applicants" that appeared


12An agency pronouncement can be binding even if it has not been published in the
Federal Register or Code of Federal Regulations. See Appalachian Power Co. v. EPA,
208 F.3d 1015, 1020-21 (D.C. Cir. 2000).

                                              18
"on [the] face" of the agency documents were "sufficient" to render them a legislative

rule requiring notice and comment. !d. 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." !d. 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 (citation omitted). 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 (citations omitted).

       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 ...


                                               19
orders ... dictates" is indicative of an intent to bind); see also McLouth Steel Prods.

Corp. v. Thomas, 838 F.2d 1317, 1320-21 (D.C. Cir. 1988) ("The use ofthe word 'will'

suggests the rigor of a rule, not the pliancy of a policy") (citations omitted); Chiang v.

Kempthorne, 503 F. Supp. 2d 343, 350 (D.D.C. 2007) ("the mandatory language of a

document alone can be sufficient to render it binding.") (quoting Gen. Elec. Co., 290 F.3d

at 383). While the OEM encourages the agencies to use survey data where available, it

asserts that "[i]nformation derived from the methodology described herein should be

included in the Biological Assessment and will assist the FWS in evaluating the potential

for incidental take of spotted owls to be included in a Biological Opinion, as appropriate."

FWSAR 2399 (emphases added).

       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), a.ff'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



13 In Amoco Production Co., our Circuit quoted Independent Petroleum Ass 'n ofAmerica
v. Babbitt in holding that an agency letter "is not an agency rule at all, legislative or
otherwise, because it does not purport to, nor is it capable of, binding the agency."
Amoco Prod. Co., 410 F.3d at 732 (quoting Indep. Petroleum Ass 'n ofAm., 92 F.3d at
1257). In both cases, the Circuit relied heavily upon the fact that the letter's author
lacked the authority to announce binding agency rules, as opposed to the fact that the
language of the letter was not binding in nature. See Amoco Prod. Co., 410 F .3d at 732;
Indep. Petroleum Ass 'n ofAm., 92 F.3d at 1256.

                                              20
assessing effects." FWSAR 2399. But, as discussed above, a document that does not

purport to bind an agency-and even one that expressly purports to be non-binding-can

be considered binding nonetheless if the agency applies the document in a way that

indicates it is binding.

       Next, defendants note that the OEM recognizes the use ofnon-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 ofnon-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. Pis.' Reply

at 26. 14 However, the OEM expressly identified Oregon as the preliminary focus of its


14 Indeed, of the eight FWS offices within the range of the northern spotted owl, five
have never used the OEM. See Defs.' Mot. at 39 (identifying three California offices, one
Washington office, and one Oregon office that have never used the OEM).

                                           21
analysis, FWSAR 2419, and accordingly, the agencies have used the OEM consistently in

western Oregon timber sales consultations. In these consultations since 2008, FWS has

used or cited the OEM in 42 of the 43 biological opinions, 24 of the 29 letters of

concurrence, and 45 of the 4 7 biological assessments. See Pis.' Mem. at 34-3 5; Pis.'

Reply at 26-29. The exceptions were typically less significant actions in which little or no

owl habitat was affected or other data was available to estimate take. See, e.g., FWSAR

10410 (relied upon surveys and concluded no effect), 12677 (minor consultation with no

take expected), 12723, 13089, 13136, 13171; B/FAR 24155 (owl habitat maintained),

31253 (surveys available). In many of the biological opinions for western Oregon timber

sales consultations, FWS ordered BLM or USFS to comply with the OEM during logging

projects as a condition ofthe opinion. See, e.g., FWSAR 10577 ("Monitoring for spotted

owls will comply with the [OEM]."). Such frequent use of the OEM across multiple

years of western Oregon timber projects supports this Court's conclusion that the OEM is,

in effect, a binding legislative rule. Universal application is not necessary to render a rule

binding. See Appalachian Power Co., 208 F.3d at 1023 (EPA guidance considered

binding even though two states may have failed to follow it); Chiang, 503 F. Supp. 2d at

350 (single example of binding use sufficient).

       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


                                             22
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

(citations and internal quotation marks omitted). 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,' 5 U.S.C. § 704, or (2) constitute a de facto rule or binding norm that could

not properly be promulgated absent the notice-and-comment rulemaking required by §

553 of the APA. These two inquiries are alternative ways ofviewing the question before

the court. Although, if appellants could demonstrate the latter proposition they would

implicitly prove the former, because the agency's adoption of a binding norm obviously

would reflect final agency action."). But see Appalachian Power Co., 208 F.3d at 1022

("an agency's action is not necessarily final merely because it is binding").

       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 'lAss 'n. of

Homebuilders 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


                                             23
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 2433), the possibility of ongoing

updates does not negate the OEM's finality. See US. Air Tour Assoc. v. FAA, 298 F.3d

997, 1013 (D.C. Cir. 2002) ("ifthe possibility ... of future revision in fact could make

agency action non-final as a matter of law, then it would be hard to imagine when any

agency rule ... would ever be final as a matter of law.") (citations and internal quotation

marks omitted); Gen. Elec. Co., 290 F.3d at 380 ("'The fact that a law may be altered in

the future has nothing to do with whether it is subject to judicial review at the moment.'")

(quoting Appalachian Power Co., 208 F .3d at 1022).

       Defendants rely heavily upon National Association of Homebuilders, a case from

this Court holding that a survey protocol for endangered butterflies did not constitute

"final" agency action. See 298 F. Supp. 2d 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.

!d. at 72-73. Due to its non-binding, voluntary nature, the Court found that the protocol

did not "determine rights or obligations of landowners." !d. 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.




                                             24
      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

5 U.S.C. § 706(2) (Court may hold unlawful and set aside agency action not in

accordance with law or without observance of procedure required by law); see also

Appalachian Power Co., 208 F .3d at 1028 (setting aside agency guidance document not

properly submitted to rulemaking procedures).

                                    CONCLUSION

      For the foregoing reasons, the Court GRANTS IN PART AND DENIES IN PART

plaintiffs 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.




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