UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

AMERICAN FOREST RESOURCE
COUNCIL, et al.,

Plaintiffs,
v.
BRIAN STEED, et al.,

Defendants.

 

ASSOCIATION OF O & C COUNTIES,
Plaintiff,
v.
BRIAN STEED, et al.,

Defendants.

 

ASSOCIATION OF O&C COUNTIES,
Plaintiff,
v.
DONALD J. TRUMP, et al.,

Defendants,

Civil Case No. 16-1599 (RJL)

Civil Case No. 16-1602 (RJL)

Civil Case No. 17-280 (RJL)

soDA MoUNTAIN WILDERNESS
CoUNClL, ex al.,

\./\_/V\/

Defendant-Intervenors.

 

AMERICAN FOREST RES()URCE
COUNCIL,
Plaintiff,
v. Civil Case No. 17-441 (RJL)
UNITED STATES OF AMERICA, et al.,
Defendants,

soDA MoUNTAIN WILDERNESS
CoUNCIL, er al.,

\./\/\_/\_/\/\./\/\/\_/\_/VV\JVV

Defendant-Intervenors.

54"
MEMoRANDUM oPINIoN
(March 2, 2019)

[Dkt. ## 29, 30, 4l (in Case No. 16-1599); l7, 18 (in Case No. l6-1602); 41, 44, 46 (in
Case No. l7-280); 4l, 44, 46 (in'Case No. l7-44l)]

Each of the four above-captioned civil actions involve a challenge to the
management by the United States of America (the “Governrnent” or the “United States”)
of certain land subject to 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., a statute that regulates

timber harvest on certain federal land in western Oregon (“O&C land”). In 2016, the
Bureau of Land l\/lanagement (“BLM”) issued two Resource l\/lanagement Plans (“the 2016
Rl\/[Ps”) that divided O&C land into six categories The extent to which timber harvest is
permitted on G&C land under the 2016 RMPs depends on the category to which a given
parcel of land is assigned On January 12, 2017, President Obama, shortly before he left
office, issued a proclamation (“Proclamation 9564”) that enlarged the Cascade-Siskiyou
National Monument in southern Oregon. See Proclarnation 9564, 82 Fed. Reg. 6145 (Jan.
18, 2017). Nearly 40,000 acres of the newly added land is O&C land, and commercial
timber harvest, as a result of the monument designation, is effectively no longer possible
on this land that falls squarely within the monument’s boundaries See Proclamation 7318,
65 Fed. Reg. 37,249, 37,250 (June 13, 2000).

Plaintiffs in these casesl argue that they 2016 RMPS and Proclamation 9564 conflict

 

l ln Case Nurnber 16-1599, the American Forest Resource Council (a forest products trade association
representing lumber and plywood manufacturing companies) as well as the Carpenters Industrial Council,
Douglas Timber Operators, Inc., C & D Lurnber Co., Freres Lumber Co. lnc., Seneca Sawmill Company,
Starfire Lumber Co., lnc., and Swanson Group Mfg. LLC (all entities engaged in business related to the
timber industry) sued Brian Steed, BLM’s director, and Ryan Zinl<e, the Secretary of the Interior, alleging
that the 2016 Rl\/IPS are arbitrary, capricious, and unlawful. ln Case Number 16-1602, the Association of
O&C Counties, which represents seventeen counties in western Oregon that contain O&C land, sued the
same defendants on the same allegations ln Case Number 17-280, the Association of O&C Counties sued
President Donald J. Trump; the United States of America; Ryan Zinke, the Secretary of the lnterior; and
BLM, alleging that Proclamation 9564 is ultra vires. In Case Number 17-441, the American Forest
Resource Council sued the same defendants on the same allegations about Proclamation 9564. The Soda
l\/lountain Wilderness Council, the Klarnath-Siskiyou Wildlands Center, and Oregon Wild (public interest
groups focused on protecting the environment in and around the Cascade-Siskiyou National Monument)
intervened in Case Nurnbers 17-280 and 17~441 to defend Proclamation 9564. Throughout this
consolidated Memorandum Opinion, “plaintiffs” will refer to the collective plaintiffs in all four cases.
“Defendants,” “the Government,” or the “United States” will refer to the collective named defendants in all
four cases. And “intervenors” or “defendant-intervenors°’ will refer to the Soda l\/lountain Wilderness
Council, the Klamath-Siskiyou Wildlands Center, and Oregon Wild, collectively

3

with existing timber harvest mandates in the O&C Act. They moved for summary
judgment, asking that the plans and proclamation be set aside. The Government cross-
moved, adopting a different reading of the O&C Act, and seeking summary judgment that
the 2016 RMPS and Proclamation 9564 are lawful. Three groups intervened in Case
Numbers 17-280 and 17-441 to defend Proclamation 9564, and they filed their own cross-
motions for summary judgment, which, like the others, turn on the scope of Congressional
directives in the O&C Act.

Upon careful consideration of the parties’ briefs, the relevant law, and the entire
record, 1 have determined that the best course at this juncture is to DENY all pending
summary judgment motions without prejudice and to REMAND this matter to BLl\/I for an
explanation of how, if at all, the administration of O&C land changed after President
Obama issued Proclamation 9564 that removed approximately 16,000 acres of land from
the “harvest land base” category of the O&C land, which was designated by BLl\/l for
continual timber production2 The parties can then refile summary judgment motions

taking into account the completed administrative and summary judgment records.

 

2 To be clear, the two Adrninistrative Procedure Act challenges to BLM’s agency actions, Case Numbers
16-1599 and 16-1602, are being remanded to the Director of BLl\/l for a “more complete explanation’7 of
its actions. Checkosky v. SEC, 23 F.3d 452, 463 (D.C. Cir. 1994). For the reasons set forth in this
l\/Iemoranduin Opinion, BLl\/I shall supplement the summary judgment record in the challenges to
Proclamation 9564, Case Numbers 17-280 and 17-441, with the same explanation See Bark v. United
States Forest Serv., No. 12-1505, 2014 WL 12775216, at *4 (D.DiC. Oct. 22, 2014) (ordering federal
agency to supplement the record); Ramsey v. Monz'z, 75 F. Supp. 3d 29, 47 (D.D.C. 2014) (noting that the
parties were ordered to supplement the summary judgment record before a summary judgment motion was
decided).

BACKGROUND
I. The O&C Act

The ()&C Act governs BLl\/l’s management of approximately two million acres of
land in western Oregon that was granted to the Oregon and California Railroad in 1866 but
revested to the United States after the railroad violated conditions Congress had placed on
the land grant. See Oregon & C.R. Co. v. United States, 238 U.S. 393, 399-410 (1915)
(recounting the history of the land grant and revestment); Clackamas Cly. v. McKay, 219
F.2d 479, 481-83 (D.C. Cir. 1954) (same), vacated as moot, 349 U.S. 909 (1955).
Beginning in the early 19005, Congress enacted a series of statutes prescribing how the
revested land should be managed One such statute, the O&C Act, was passed in 1937 and
regulates, among other things, timber harvest on O&C land. See 43 U.S.C. § 2601.

Of particular relevance here, the Act requires that O&C timberland be
“managed . . . for permanent forest production” and that O&C timber “be sold, cut, and
removed in conformity with the princip[le] of sustained yield.” 43 U.S.C. § 2601. To
facilitate the harvest and sale, BLl\/l must declare an “annual productive capacity,” id., also
known as an allowable sales quantity (“ASQ”),3 for O&C timberland. A commensurate
amount of timber must then be sold from O&C land each year. See z`a’.

The O&C Act also guarantees that a portion of the proceeds from the timber sales

will be paid to the Oregon counties that contain O&C land. See 43 U.S.C. § 2605(a).

 

77 L‘

3 BLM uses “annual productive capacity, allowable sale quantity,” and “annual sustained yield capacity”
synonymously. See Fed. Defs.’ Cross-Mot. Summ. J. (Case No. 16-1599) at 7 & n.3 [Dkt. # 30].

5

Timber proceeds are deposited into “the ‘Oregon and California land- grant fund”’ and fifty
percent of that fund is distributed annually to “the counties in which the lands [subj ect to
the Act] are situated.” Icl. According to BLl\/l, the O&C Act resulted in over $1.4 billion
being paid to Oregon counties in the Act"s first fifty years. See U.S. Dep’t of the Interior,
BLl\/l, O&C Susz‘az`necl Yz`elal Act.' the Lancl, the Law, the Legacy (1937-]987) at 14-15,
available at https://www.blm.gov/or/files/OC_History.pdf.

In 1990, the Act’s fifty-third year, 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 lands that are suitable habitat for the threatened owls.
See Portland/ludubon Soc ’y v. Lujan, 795 F.Supp. 1489, 1510-11 (D. Or. 1992), a]j”’a’ Sal)
nom Portlana’ Aua’ubon Soc’y v. Bal)bitz‘, 998 F.2d 705 (9th Cir.1993). Cornpanies and
Oregon counties that benefit from O&C land timber sales intervened in that lawsuit, but
the court nevertheless extended the injunction to land governed by the O&C Act. See ia’.
at 1505-07. 4

l\/luch of the period since the northern spotted owl’s classification has been
consumed by a veritable tsunami of legal actions over how to manage O&C land. See Am.
Foresz‘ Counez'l v. Slzea, 172 F. Supp. 2d 24, 27 (D.D.C. 2001) (Jackson, J.). Parties have
challenged land management plans announced by BLM, then settled their claims, only to

later allege breaches of the settlement agreement See Douglas Tz`mber Operators, ]nc. v.

Salazar, 774 F. Supp. 2d 245, 247-51, 261 (D.D.C. 2011). And BLl\/l has issued and
withdrawn land management plans, only to see courts reinstate the plans then order them
vacated again. See Pacifzc Rivers Coarzcil v. Shepara’, No. 311 1-442, 2011 WL 7562961,
at *1-3, *10 (D. Or. Sept. 29, 2011), report arza’ recommendation adopted as modified,
2012 WL 950032(1). Or.l\/Iar.20,2012). n

Against this backdrop of highly contentious litigation, the Government took two
recent actions that affect management of O&C land;

II. The 2016 RMPS

ln 2016, BLl\/I revised the Rl\/lPs that detail how it manages O&C land. The 2016
RMPs divide the land into six categories See Administrative Record (Case No. 16-1599)
(“AR”) at JA-46, lND_05 14399-402 [Dkt. # 37]. Of the six, only one category-~“harvest
land base”_is managed to “achieve continual timber production that can be sustained
through a balance of growth and harvest.” ]d. at JA-46, IND_0514402. Other categories
of land include riparian reserves, which are managed to “[m]aintain and restore riparian
areas,” and late-successional reserves which are managed to, among other things promote
nesting and roosting habitat for the northern spotted owl and inarbled murrelet. Ia’. ln
these latter categories timber harvest is permitted for certain limited purposes See ia’. at
JA-2, IND_0513044. But when BLl\/I calculated the ASQ of O&C timberland for the 2016
Rl\/IPS, the agency looked only to timber grown in the 498,597-acre “harvest land base,”
which is approximately twenty percent of the land governed by the 2016 RMPS. See ia’. at

JA-l, 1ND_0512707-10; JA-l, lND_0512745; JA-2, IND_0513027-29; JA-2,

IND_0513065.

Based on the harvest land base, BLl\/l declared an ASQ of 205 million board feet in
the 2016 RMPS. See AR at IA-l, INDW0512708 (ASQ for Coos Bay, Eugene, and Salem
of 130 million board feet); JA-2, IND_0513027 (ASQ for Klamath Falls, l\/ledford, and
Roseburg of 75 million board feet). This ASQ is slightly larger than the ASQ set in the
1995 Rl\/[Ps BLM was revising. See ia’. at JA-l, 1_ND_0512723-24. But it remains far
smaller than many ASQs BLl\/l has declared in the past. In the 19605 and 1970s before
O&C land was deemed habitat for any threatened species, BLl\/l routinely declared ASQs
of around 1.1 billion board feet. See id. at JA-14, IND~0527316-17.

Plaintiffs argue that BLl\/l’s ASQ determination in the 2016 RMPS is contrary to the
O&C Act. According to plaintiffs the O&C Act requires that the ASQ calculation be based
on all O&C land, so declaring one based only on the harvest land base violates Congress’s
mandate. BLM responds that the O&C Act grants it discretion to determine how best to
harvest O&C timber in conformity with the principle of sustained yield and the 2016 ASQ
calculation is entirely consistent with that principle BLM further contends that, because
O&C land is habitat for certain protected species it must “harmonize [its] obligations under
the O&C Act with the ESA (and other later-enacted environmental legislation),” and the
land allocation system used in the - 2016 Rl\/IPS is necessary to avoid violating
Congressional directives in that legislation Fed. Defs.’ Cross-l\/Iot. Summ. J. (Case No.

16-1599) at 20.

III. Proclamation 9564

Plaintiffs also challenge President Obama’s January 12, 2017 proclamation adding
approximately 40,000 acres of O&C land to the Cascade-Siskiyou National l\/lonument.
See Proclamation 9564, 82 Fed. Reg. 6145 (Jan. 18, 2017). Within the boundaries of the
monument, “[t]he commercial harvest of timber . . .l is prohibited, except when part of an
authorized science-based ecological restoration project.” See Proclamation 7318, 65 Fed.
Reg. 37,249, 37,250 (June 13, 2000).

Again, plaintiffs argue that limiting timber harvest in this way violates the O&C
Act. As they read it, the Act precludes O&C timberland from being set aside for any
purpose other than commercial timber productions so Proclamation 9564 irreconcilably
conflicts with a Congressional mandate. BLl\/l, not surprisingly, disagrees and argues that
the O&C Act does not require that O&C land be harvested to the maximum extent possible.
According to BLl\/l, therefore, there is no conflict between President Obama’s expansion
of the national monument and Congress’s directives that O&C timberland be managed for
forest production and O&C forests be harvested in conformity with the principle of
sustained yield. lntervenors, predictably, support the Government on these points

The disputed issues in all these cases thus turn on the extent to which the BLl\/l, the
President, or both can impose these limitations on O&C timber harvest without violating
the O&C Act.

ANALYSIS

The question whether the 2016 Rl\/lPs violate the O&C Act begins, but does not end,

with a determination of whether the O&C Act imparts discretion on BLl\/l with respect to
timber harvest decisions BLl\/l argues that it has been delegated such discretion, so it can
impose limitations on O&C timber harvest without violating any mandate in the O&C Act.
And to be sure, several courts-including this very Court in a previous case_have
recognized that BLl\/l has discretion when declaring an ASQ. See Pordand Audubon Soc.
v. Babl)iz‘t, 998 F.2d 705, 709 (9th Cir. 1993) (“We find that the plain language of the
[O&C] Act supports the district court’s conclusion that the Act has not deprived the BLl\/l
of all discretion with regard to either the volume requirements of the Act or the
management of the lands entrusted to its care.”); Swanson Grp. Mfg. LLC v. Salazar, 951
F. Supp. 2d 75, 82 (D.D.C. 2013) (Leon, J.) (“BLl\d 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”), vacated on other grounds sub
nom Swanson Grp. Mfg. LLC v. Jewell, 790 F.3d 235 (D.C. Cir. 2015); Seaz‘ile Audubon
Soc. v. Lyons, 871 F. Supp. 1291, 1314 (W.D. Wash. 1994) (“The management decision
made here in regard to the O & C[] lands was la lawful exercise of the Secretary’s
discretion.”), ajj”’dsub nom Seaz‘ile Audul)on Soc. v. Moseley, 80 F.3d 1401 (9th Cir. 1996).

But this of course, means only that BLl\/l’s ASQ declaration in the 2016 Rl\/IPS does
not necessarily violate the O&C Act. After all, BLM’s discretion has limits lt must, for
example, manage O&C land “for permanent forest production” and harvest timber “in
conformity with the princip[le] of sustained yield.” 43 U.S.C. § 2601. lt must declare an

ASQ within those parameters See id. (“The annual productive capacity for such lands

10

shall be determined and declared as promptly as possible after August 28, 1937 . . . .”).
And it “must sell [the declared ASQ] or so much thereof as can be sold at reasonable prices
on a normal inarket” each year. Swanson Grp., 951 F. Supp. 2d at 81-82 (emphasis
omitted). Even when acting within the bounds of these constraints moreover, BLl\/l may

3

not take actions that are “arbitrary, capricious,’ or “an abuse of discretion.” 5 U.S.C.
§ 706(2)(A).

Because of these constraints on BLl\/I’s discretion, some limitations on O&C timber
harvest do violate the O&C Act. BLl\/l itself concedes that reducing O&C timber harvest
to a de minimis total or for reasons unrelated to an applicable statutory directive would
likely be unlawful. See Fed. Defs’ Cross-Mot. Summ. J. (Case No. 16-1599) at 21
(“Plaintiffs assert that any interpretation of the O&C Act that vests BLl\/l with discretion
to determine how best to manage the lands could result in BLl\/l reducing sustained yield
timber production to only a single board foot per year. This argument ignores the
constraints that the O&C Act imposes on management of the G&C lands. . . . A reduction
of the sustained-yield harvest of timber in a manner that fails to meet the purposes of the
O&C Act and is not required to comply with another statute could potentially be considered
arbitrary or capricious.” (citations omitted)). And this means that, when BLl\/l decides to
reduce the ASQ or divide O&C land into areas that can be harvested and areas that cannot
be harvested, details matter. While some such plans have been deemed “a lawful exercise

of . . . discretion,” Lyo'ns, 871 F. Supp. at 1314, a plan that is similar in form but that reflects

an arbitrary or capricious decision, or exceeds the statutory bounds of BLl\/l’s discretion,

11

will not pass muster.

Here, the details of O&C land management have apparently changed since BLl\/l
issued its 2016 Rl\/lPs ln those RMPs BLl\/l allocated 498,597 acres to the harvest land
base and declared an ASQ of 205 million board feet. See AR at JA-l, lND_0512707-10;
JA-l, lND_0512745; JA-2, lND_0513027-29; JA-2,1ND_0513065. As of2017, however,
President Obama’s Proclamation 9564 prevents BLl\/l from “rely[ing] []on . . .
approximately 16,448 [of those] acres [in that harvest land base] as a source for
contributing to its ASQ of timber,” according to the agency. Fed. Defs.’ Cross-l\/lot.
Summ. J. (Case No. 17-280) at 10 [Dkt. # 46]. The already limited area of G&C land that
BLl\/l allocated to timber harvest has thus been shrunk further.

BLl\/I’s response to these changes could very well affect the disposition of these
cases lf, for example, BLl\/l amended its land allocation to replace the 16,448 acres that
Proclaination 95 64 removed from the harvest land base, the rationale for the 2016 Rl\/lPs
provided in the current administrative record may be the appropriate record on which to
judge BLl\/l’s compliance with its statutory obligations lf, on the other hand, Proclamation
9564 has resulted in a permanent decrease of the harvest land base and the operative ASQ,
BLl\/l’s reasons for adopting the 2016 Rl\/lPs may no longer be applicable Changes to the
2016 Rl\/lPs following the issuance of Proclamation 9564, if there were any, could also
raise mootness issues See San Juan Ciiizens Allianee v. United States Bureau ofLand
Mgmt., 326 F. Supp. 3d.,1227, 1256 (D.N.l\/l. 2018) (“[T]he Court deems it unnecessary

and unwise to address . . . arguments which may become moot based on BLl\/l’s revised

12

analysis or based on changes in circumstances . . . .”). Unfortunately, BLl\/I’s response, if
any, to Proclamation 9564. cannot be determined from the administrative record excerpts
filed in Case Numbers 16-1599 and 16-1602. Those record excerpts do not contain
documents that postdate President Obama’s proclamation See AR, Index of Documents
for Joint Appendix.

BLl\/l’s response to Proclamation 9564 will also inform plaintiffs’ challenge to the
proclamation itself. Plaintiffs argue that Proclamation 9564 exceeded the President’s
authority because it conflicts with the O&C Act-that “Congress’s express mandate in the
O&C Act necessarily controls over the [President’-s] discretionary authority” to declare
national monuments Pl.’s l\/lot. Summ. J. (Case No. 17-280) at 19 [Dkt. #41]. As
discussed, the O&C Act permits some discretion in managing O&C lands but that
discretion is limited by the Act’s mandates So the question whether Proclamation 9564
conflicts with the O&C Act’s mandates implicates the question whether it is possible for
BLM to manage the O&C land added to the Cascade-Siskiyou National l\/lonument as
monument land without transgressing the limits Congress imposed on BLl\/l’s discretion
See Howard v. Pritzker, 775 F.3d 430, 437 (D.C. Cir. 2015) (“Statutes are to be considered
irreconcilably conflicting where . .. they cannot mutually coexist.” (quotation marks
omitted)). BLl\/l’s ability, or lack thereof, to reconcile the land use restrictions effectively
imposed by Proclaination 9564 with the timber harvest obligations imposed by the O&C
Act will evidence--one way or the other--whether that reconciliation is possible. But

again, BLl\/l’s response to Proclamation 9564 is not reflected in the summary judgment

13

records filed in Case Numbers 17-280 and 17-441. 4

ln the final analysis the Court believes it is essential to know and understand BLl\/l’s
response to these events if any. And, if none, its rationale for inaction Accordingly, a
remand to BLl\/l for the purpose of developing a more complete record would seem to be
the most prudent course in these cases “[C]ourts cannot exercise their duty of review
unless they are advised of the considerations underlying the action under review, [so]
reviewing courts will often and quite properly pause before exercising full judicial review
and remand to the agency for a more complete explanation of a troubling aspect of the
agency’s decision.” Checlcosky v. SEC, 23 F.3d 452,-463 (D.C. Cir. 1994) (quotation marks
and citations omitted). Here, 1 am not only being asked to determine whether two actions
conflict with a land management statute, but also whether the actions themselves impose
conflicting management directives on the 16,448 acres of land that President Obama
effectively removed from the statute’s jurisdiction As such, further judicial review will
undoubtedly benefit from a complete explanation of how BLl\/l has reconciled the 2016
RMPs with Proclamation 95 64.

CONCLUSION

For the foregoing reasons the federal defendants in these cases shall file, on or
before June 3, 2019, BLl\/I’s explanation of how O&C land_both within and outside the
Cascade-Siskiyou National l\/lonument’s boundaries_is currently being managed,
including any explanation for the changes or the lack of changes to the land’s management

plan following the issuance of Proclamation 95 64, and including any supporting materials

14

The parties will have the opportunity to amend their cases for summary judgment based on
this amended record. Accordingly, l will DENY the pending summary judgment motions
and cross-summary judgment motions without prejudice Within fourteen days of the
federal defendants’ filing of the supplemental records the parties shall confer and file a

joint proposed briefing schedule for their renewed motions

 

15

