Klamath-Siskiyou Wildlands Ctr. v. United States Bureau of Land Mgmt.

• Decision Date: 16 November 2021
• Docket Number: Civ. 1:19-cv-01810-CL
• Parties: KLAMATH-SISKIYOU WILDLANDS CENTER, et al. Plaintiffs, v. UNITED STATES BUREAU OF LAND MANAGEMENTS, et al. Federal Defendants, and MURPHY COMPANY Intervenor-Defendant.
• Court: U.S. District Court — District of Oregon

KLAMATH-SISKIYOU WILDLANDS CENTER, et al. Plaintiffs,
v.
UNITED STATES BUREAU OF LAND MANAGEMENTS, et al. Federal Defendants,

and MURPHY COMPANY Intervenor-Defendant.

Civ. No. 1:19-cv-01810-CL

United States District Court, D. Oregon, Medford Division

November 16, 2021

FINDINGS AND RECOMMENDATION

MARK D. CLARKE, MAGISTRATE JUDGE

Plaintiffs Klamath-Siskiyou Wildlands Center, Oregon Wild, Cascadia Wildlands, and Soda Mountain Wilderness Council (collectively, "Plaintiffs") move for summary Judgment

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against defendant Bureau of Land Management ("BLM") for violations of the Endangered Species Act ("ESA") and the National Environmental Policy Act ("NEPA"). Defendant BLM and defendant-intervenor Murphy Company ("Murphy") filed cross-motions for summary judgment. Oral argument was heard on April 14, 2021. For the reasons discussed below, Plaintiffs' Motion for Summary Judgment (Dkt. #36) should be DENIED. Defendant's Cross Motion for Summary Judgment (#38) should be GRANTED. Intervenor-Defendant's Cross Motion for Summary Judgment (#37) should be GRANTED to the extent that it aligns with BLM's motion.

BACKGROUND .

Plaintiffs challenge the North Landscape Project ("North Project"), a site-specific management approach for conducting annual timber sales in the Klamath Falls Resource Area in accordance with the 2016 Southwestern Oregon Resource Management Plan ("2016 RMP"). Plaintiffs challenge the North Project over its potential impacts to the Northern Spotted Owl ("NSO"), a threatened species that has been the subject of environmental litigation for years.

The Oregon & California Revested Lands Act ("O&C Act") covers roughly 2.1 million acres of land across Oregon and California and requires the BLM to determine and declare the "annual productive capacity" of these lands. 43 U.S.C. § 2601. The O&C Act states that designated O&C land "shall be managed ... for permanent forest production, and the timber thereon shall be sold, cut, and removed in conformity with the [principle] of sustained yield for the purpose of providing a permanent source of timber supply ...." Id.

The Federal Land and Policy Management Act ("FLPMA") establishes standards for public land use planning and obligates the BLM to manage its lands under principles of multiple use and sustained yield. 43 U.S.C. § 1732(a); Public Lands Council v. Babbit, 167 F.3d 1287, 1301 (10th Cir.1999), affd 529 U.S. 728 (2000).

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FLPMA requires the Secretary of the Interior to "develop, maintain, and, when appropriate, revise land use plans which provide by tracts or areas for the use of the public lands." 43 U.S.C. § 1712(a). FLPMA requires BLM to develop land use plans called "resource management plans" ("RMPs") that govern the use of BLM land. Id. § 1712. BLM must then manage its lands in conformity with the applicable RMP. Id. § 1732(a); 43 C.F.R. § 1610.5-3(a).

BLM worked with the Forest Service to adopt resource management plans for Western Oregon as part of the 1995 Northwest Forest Plan ("NWFP"). AR 014408. The NWFP gave effect to both the ESA and the O&C Act by restricting timber harvest on portions of the O&C lands to conserve NSO habitat, while permitting timber harvest on other portions of those lands. See Pac. Rivers v. U.S. Bureau of Land Mgmt, No. 6:16-cv-01598-JR, 2018 WL 6735090 (D. Or. Oct. 12, 2018), adopted, 2019 WL 1232835 (D. Or. March 15, 2019).

BLM revised the NWFP-based RMPs, which resulted in the creation of the 2016 RMP. AR 014768-70. The 2016 RMP reflected the input of dozens of formal cooperators including federal and state agencies, tribes, and local governments, and were supported by a Final Environmental Impact Statement spanning four volumes and over 2, 000 pages. AR 014726-016827. BLM also formally consulted with the Fish and Wildlife Service ("FWS") and the National Marine Fisheries Service. The FWS authored a final BiOp for the 2016 RMP, in which the agency formally issued "no jeopardy" and "no adverse-modification" findings for several listed species, including the NSO. AR 018033-38.

The 2016 RMP allocates varying amounts of land to six different land use categories. AR 014449. BLM committed approximately eighty percent of the entire RMP planning area to reserves, including Late-Successional Reserves that are managed to develop, maintain, and

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promote NSO nesting/roosting and foraging habitat. AR 014844-47; 006762-63. BLM allocated the remaining twenty percent of land to the "Harvest Land Base," which is managed primarily to "achieve continual timber production that can be sustained through a balance of growth and harvest," and to offer the allowable quantity of timber volume for sale as required under the O&C Act. AR 014844-47. In January 2017, the Cascade-Siskiyou National Monument in Klamath County was expanded by presidential proclamation. The monument expanded into the "Harvest Land Base," causing even less acres to be available for timber harvest. AR 000056.

BLM developed the North Project in 2018 to comply with its timber harvest obligations under the O&C Act and the 2016 RMP. AR 000057. The North Project consists of 11, 879 acres of land in the Klamath Falls Resource Area, and 9, 073 of those acres are analyzed for harvest. AR 000060, 000099. BLM states that annual timber sales under the North Project will likely average around 500 acres per year. AR 000001; 000041.

BLM initiated formal ESA Section 7 consultation with FWS regarding the North Project. FWS issued the Biological Opinion ("BiOp") for the North Project in July 2018. AR 000298-443. The BiOp states that the North Project will not jeopardize the NSO as a species, nor adversely modify the species' critical habitat. Id.

BLM also conducted an Environmental Assessment ("EA") for the North Project, in which the BLM analyzed the effects of annual timber harvest within the project area. AR 000076. The EA analyzes a management approach under which BLM can offer six million board feet (MMbf) of timber (plus or minus forty percent variance) per year through annual timber sales, each accompanied by its own sale-specific decision record. Id. Annual timber sales must comply with the 2016 RMP's direction to avoid incidental take of NSOs. To accomplish this, the North Project pairs NSO survey protocols with a pool of potential harvest

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acres to allow BLM the ability to modify timber sales to alternative timber units if NSO occupancy is detected. AR 000057, 000077; 000550, 000558-62, 000575-79.

BLM has issued four timber sale decision records under the North Project. BLM awarded the contract for the Sweet Vidalia Sale in 2018, and harvest of 4.5 MMbf was completed in October 2019. AR 000240. BLM offered the Stag Sale for 5.8 MMbf in 2019, but modified the sale to 4.5 MMbf following a determination of NSO occupancy in one of its proposed harvest units. AR 000190; 000042. In 2020, BLM offered the Terminus Sale for 2.8 MMbf. AR 000010.

LEGAL STANDARD

Plaintiffs move for summary judgment on their two Administrative Procedures Act ("APA") claims for violations of the ESA and NEPA. The APA allows the reviewing court to set aside a final agency action only if it is "arbitrary, capricious, an abuse of discretion, or not otherwise in accordance with the law." 5 U.S.C. § 706(2)(A). "A decision is arbitrary and capricious if the agency 'has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.'" O'Keeffe's, Inc. v. U.S. Consumer Product Safety Comm'n, 92 F.3d 940, 942 (9th Cir. 1996) (quoting Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)). An agency action is also arbitrary and capricious if the agency fails to "articulate a satisfactory explanation for its action including a 'rational connection between the facts found and the choice made.'" Motor Vehicle Mfrs. Ass'n, 463 U.S. at 43 (quoting Burlington Truck Lines v. United States, 371 U.S. 156, 168 (1962)).

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Review under the APA is "searching and careful." Ocean Advocates v. United States Army Corps of Eng'rs, 402 F.3d 846, 858 (9th Cir. 2004). The court must ensure that the agency took a "hard look" at the environmental consequences of its proposed action. Oregon Natural Res. Council v. Lowe, 109 F.3d 521, 526 (9th Cir. 1997). However, the court may not substitute its own judgment for that of the agency. Ocean Advocates, 402 F.3d at 858. It must presume the agency acted properly and affirm the agency when "a reasonable basis exists for its decision." Indep. Acceptance Co. v. California, 204 F.3d 1247, 1251 (9th Cir. 2000).

DISCUSSION

I. Plaintiffs' site-specific challenges are not precluded.

Before addressing the merits of Plaintiffs' challenges, BLM argues that Plaintiffs' claims are barred because they are really an attack on the underlying 2016 RMP, which has been upheld by this Court. "Res judicata, also known as claim preclusion, bars litigation in a subsequent action of any claims that were raised or could have been...