Environmental Laws, Litigation Presented As Obstacles or Excuses in Timber-Owl Case

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By Alan Kovski

March 26 — Oral arguments in an appeals court case over logging recently aired the long-running question of whether environmental laws are preventing federal land managers from fulfilling duties on timber sales.

The Bureau of Land Management, responsible for protecting and managing forests in western Oregon under the Oregon and California Lands Act, has failed for two decades to sell as much timber as required under the O&C Lands Act. That law imposes timber sales obligations that are unlike the multiple-use mandates of national forests managed by the U.S. Forest Service.

The U.S. District Court for the District of Columbia issued an opinion in 2013 agreeing with Swanson Group Manufacturing LLC, the American Forest Resource Council and allies that the BLM was violating the O&C Lands Act. The court ordered the Interior Department to meet its mandated sale obligations (Swanson Grp. Mfg. LLC v. Salazar, D.D.C., 1:10-cv-01843, 6/26/13).

The government is appealing to the U.S. Court of Appeals for the District of Columbia Circuit primarily on the procedural ground that the plaintiffs did not have standing to sue.

But during oral arguments March 13, the substantive issues were explored extensively, and Justice Department attorney Brian Toth made it clear that the administration saw environmental laws and litigation as the underlying reasons for the BLM's failure to sell as much timber as it might be allowed to sell under the act.

Attorney Mark Rutzick, arguing for the Swanson Group, said the environmental laws and court injunctions were being used as an excuse, not a valid reason—and not a reason specified in court briefs as preventing adequate sales.

Circuit court judges Merrick Garland, Judith Rogers and Raymond Randolph presided over the case, in which the named leading defendant was Interior Secretary Sally Jewell, whose department includes the BLM.

Interior's Dilemma Described 

“For the past 20 years, the Oregon and California Lands Act has been at the heart of challenges brought by timber industry organizations to the Secretary of the Interior's management of lands within the range of the northern spotted owl in the Pacific Northwest,” Toth said.

“But until this case, no district court has taken the extraordinary step of granting the equivalent of a writ of mandamus compelling the secretary to sell a set quantity of timber each year without exception in perpetuity,” Toth said. A writ of mandamus is a court order compelling the performance of a duty.

The case “neatly illustrates the dilemma that the secretary faces in managing these lands both for timber production and for her responsibilities to comply with environmental statutes like the National Environmental Policy Act and the Endangered Species Act,” Toth said.

The northern spotted owl, listed as threatened under the Endangered Species Act, is found in many forested tracts of Oregon, Washington and northern California.

The district court also enjoined the unusual methodology devised by the Interior Department to estimate where habitat might be suited to spotted owls, even if no owl are found in those locations. That methodology had not been subjected to public notice and comment, because in the view of Interior it was a tool, not a rulemaking.

Blame Put on Litigation, Laws 

The O&C Lands Act requires sales of timber at annual volumes estimated by Interior to be right for “sustained yield.” Interior estimated the sustained yield numbers in 1995 and adjusted them in 1999. For the Roseburg and Medford districts in southwestern Oregon, the numbers were 45 million board feet annually for Roseburg and 57 million board feet for Medford.

Judge Randolph asked Toth why the specified amounts were not sold.

Toth responded that throughout the record there is support for the conclusion that court injunctions against timber sales, primarily in response to lawsuits by environmental advocacy groups, have left the Interior secretary “unable to offer that volume.”

“It's only the injunctions that prevented the secretary from selling that amount?” Randolph asked.

“I can't say that for sure,” Toth said. “In addition, there is an overlay of environmental statutes and procedures, apart from the court orders,” he said.

“It's just never happened,” the Justice Department attorney said of timber sales at the sustainable yield level. “I don't think there's any dispute that it's never happened. And largely that's a result of environmental litigation.”

‘They Don't Try.'

Judge Garland questioned whether the district court, in ordering the BLM to meet its timber sale obligations, was ordering the government to take an action that would violate the Endangered Species Act or the National Environmental Policy Act.

“Isn't that really what the court's ordering here?” Garland asked. “That the agencies take an unlawful action, that is, they enforce one statute in violation of two subsequent statutes?”

“The answer unequivocally is no,” Rutzick said as he made the case for upholding the district court's decision. “The Bureau of Land Management has never claimed and cannot claim that they are incapable of finding enough acres of trees to offer up 57.1 million board feet on the Medford District and 45 million board feet on the Roseburg District. They don't try.”

“Well, there's no evidence that we have in the record one way or the other about that,” Garland said.

“Yes there is,” Rutzick said. “What the record shows is that the Bureau of Land Management sets a nonbinding target, but nonetheless a target, and every year over the period that we have looked at from 2004 to 2013, every year without exception, the target has been well below the annual sustained yield level. They haven't tried.”

BLM Never Said ‘We Can't.'

Garland kept pressing on the idea of NEPA or Endangered Species Act violations. “You have an order from a district judge which provides no exceptions, and which seems like on its face requires the agency to plow forward regardless of other legal requirements,” the judge said.

“That would have been an interesting point if they had raised it in the district court, but they never raised it in the district court,” Rutzick responded. “They never said, ‘We can't do this. Your order is so strict we can't comply with it.' ”

Because Garland also had asked about the time-consuming burdens of environmental analyses, Rutzick referred to consultations with the U.S. Fish and Wildlife Service on possible impacts on endangered or threatened species.

“It may be they have to do more consultations,” Rutzick said. “That's exactly what they ought to be doing. They ought to be doing enough consultations so that they can reach the mandated sale level. And they've never said that there aren't enough trees available, or that the ESA makes it impossible. They've never said that. Or NEPA. NEPA doesn't make anything impossible, because it's a disclosure statute.”

Rutzick added that if the BLM wanted to request more time for environmental analyses, that would be something the parties could consider, but the agency has never requested that.

Time Burdens Debated 

Garland continued to question whether there would be time for the analyses and consulting, given that the district court's order was for sales “in perpetuity.”

“Yes, that's right, because the statute requires it in perpetuity,” Rutzick said. “Perpetuity is what sustained yield management is all about, that you get the same level year after year after year.”

Garland asked what the solution would be if the analyses and consulting each year took more than a year, his implication being that the district court's order might fail to allow for NEPA compliance.

“They have to start before the beginning of the fiscal year, which is what they used to do,” Rutzick said. Back in the 1980s, when five times as much timber was being sold, the government had a pipeline of sales in preparation, he explained.

To contact the reporter on this story: Alan Kovski in Washington at akovski@bna.com

To contact the editor responsible for this story: Larry Pearl at lpearl@bna.com

An audio recording of the D.C. Circuit oral arguments in Swanson Grp. Mfg. LLC v. Jewell is available at http://1.usa.gov/1Br2xTg.

The district court decision being appealed is available at http://www.bloomberglaw.com/public/document/SWANSON_GROUP_MFGLLC_et_al_v_SALAZAR_et_al_Docket_No_110cv01843_D.