Wildlands v. Bureau of Land Mgmt.

• Court: U.S. District Court — District of Oregon
• Writing for the Court: MCSHANE, Judge
• Citation: 664 F.Supp.3d 1180
• Docket Number: Case No. 6:21-cv-01487-MC
• Decision Date: 27 March 2023
• Parties: Cascadia WILDLANDS, Klamath-Siskiyou Wildlands Center, and Oregon Wild, Plaintiffs, v. BUREAU OF LAND MANAGEMENT and United States Department of the Interior, Defendants, and Douglas County, Oregon and American Forest Resource Council, Intervenor-Defendants.

664 F.Supp.3d 1180

Cascadia WILDLANDS, Klamath-Siskiyou Wildlands Center, and Oregon Wild, Plaintiffs, v. BUREAU OF LAND MANAGEMENT and United States Department of the Interior, Defendants,andDouglas County, Oregon and American Forest Resource Council, Intervenor-Defendants.

Case No. 6:21-cv-01487-MC

United States District Court, D. Oregon

Signed March 27, 2023

Marlee Goska, Western Environmental Law Center, Lostine, OR, Susan Jane McKibben Brown, Western Environmental Law Center, Portland, OR, for Plaintiffs.

Leilani Doktor, Michael Keith Robertson, DOJ-Enrd, Washington, DC, for Defendants.

Dominic M. Carollo, Carollo Law Group LLC, Roseburg, OR, Sara Ghafouri, Sarah Elizabeth Melton, Pro Hac Vice, American Forest Resource Council, Portland, OR, for Intervenor-Defendants.

OPINION & ORDER

MCSHANE, Judge:

Plaintiffs are Cascadia Wildlands, Klamath-Siskiyou Wildlands Center, and Oregon Wild. They bring this action for declaratory and injunctive relief against Defendants Bureau of Land Management and the U.S. Department of the Interior (collectively, "BLM"), alleging that BLM's Final Rule¹ violates both the Administrative Procedure Act ("APA") and the Federal Land Policy and Management Act ("FLPMA"). Compl., ECF No. 1. Plaintiffs further allege that, in relying on the Final Rule, BLM improperly authorized the Mine your Manners Timber Sale in violation of the APA and FLPMA.

Plaintiffs seek vacatur of the Final Rule, and enjoinment of the Mine your Manners Timber Sale. Plaintiffs, BLM, and Intervenor-Defendants (American Forest Resource Council ("AFRC") and Douglas County) filed Cross-Motions for Summary Judgment on the claims in this case. ECF Nos. 28, 33, 34. Because the Final Rule does not violate the APA or FLPMA, Plaintiffs' Motion for Summary Judgment (ECF No. 28) is DENIED and Defendants' Cross-Motions for Summary Judgment (ECF Nos. 33, 34) are GRANTED.

BACKGROUND

Congress enacted the FLPMA in 1976, giving BLM (through the Secretary of the Interior) authority to manage certain federal public lands. Federal Land Policy and Management Act of 1976, 43 U.S.C. §§ 1701-1787; Gardner v. U.S. BLM, 638 F.3d 1217, 1220 (9th Cir. 2011). Under the FLPMA, Congress declared it the policy of the United States that, among other things, public lands be managed "on the basis of multiple use and sustained yield," and in a manner that will protect the quality of scientific, ecological, and environmental values. 43 U.S.C. § 1701(a)(7)-(8). "[I]n administering public land statutes and exercising discretionary authority granted by them," BLM must "establish comprehensive rules and regulations" and "structure adjudication procedures to assure adequate third party participation, objective administrative review of initial decisions, and expeditious decisionmaking." Id. § 1701(a)(5).

In 1984, BLM enacted a regulation that provided a 15-day administrative protest process for forest management decisions, including advertised timber sales. Forest Management Decisions; Administrative Remedies, 49 Fed. Reg. 28,560 (July 13, 1984) (to be codified at 43 C.F.R. pt. 5000); 43 C.F.R. § 5003.3 (1984) ("1984 Rule"). The 1984 Rule was enacted to "expedite implementation of decisions relating to forest management," "provide the public with the opportunity to protest such decisions," and "increase the probability that private businesses dependent upon the [BLM's] timber management contracts would be able to accomplish their regularly scheduled activities." Administration of Forest Management Decisions; Proposed Rulemaking, 49 Fed. Reg. 3,884 (proposed Jan. 31, 1984) (to be codified at 43 C.F.R. pt. 5000); Forest Management Decisions; Administrative Remedies, 49 Fed. Reg. at 28,560. Under the 1984 Rule, interested members of the public could file an administrative protest within 15 days of the publication of a notice of timber sale decision. 43 C.F.R. § 5003.3(a) (1984). The authorized officer was then required to consider each individual protest and serve a conclusion in writing. Id. § 5003.3(d)-(e). The regulations do not establish a timeframe for rendering a decision on protests. See AR 000008.²

Denial of a protest triggered a 30-day administrative appeal period, allowing the protester to file a notice of appeal with the Interior's Board of Land Appeals ("IBLA"). 43 C.F.R. § 4.21. Along with the notice of appeal, the appellant could include a request for stay of the sale decision. Id. § 4.21(b). Generally, a sale decision would not become effective during the 30-day appeal period. Id. § 4.21(a)(1). However, the IBLA could provide that a decision "shall be in full force and effective immediately" when the public interest requires. Id.; see also 43 C.F.R. § 5003.3(f) (1984) ("Upon denial of a protest . . . the authorized officer may proceed with implementation of the decision.").

BLM enacted the Final Rule in 2020, which eliminated the 15-day protest process and clarified that an authorizing officer can implement forest management decisions immediately. Forest Management Decision Protest Process and Timber Sale Administration, 85 Fed. Reg. 82,359 (Dec. 18, 2020); AR 001009-25. BLM reasoned that the Final Rule will "facilitate expeditious development and implementation of forest management decisions while encouraging the BLM to consider relevant information earlier in its decision-making process." AR 001010. The public maintains the ability to appeal timber sale decisions to the IBLA, but a notice of appeal or request for stay does not automatically stay the decision. AR 001011.

Plaintiffs argue that BLM violated the APA by failing to provide a reasoned explanation for its change in policy and failing to respond to public comment. They further contend that the Final Rule violates the FLPMA because it does not provide for adequate public participation or objective administrative review of agency decisions. BLM responds that it complied with its obligations under the APA and the Final Rule satisfies the FLPMA's requirements.

LEGAL STANDARD

Judicial review of agency action is governed by the APA. 5 U.S.C. § 706. A reviewing court may set aside an agency's action if the action is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). "If an agency fails to consider an important aspect of a problem or offers an explanation for the decision that is contrary to the evidence, its action is arbitrary and capricious." Or. Nat. Res. Council Fund v. Goodman, 505 F.3d 884, 889 (9th Cir. 2007) (cleaned up). "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." ' " Friends of Wild Swan, Inc. v. U.S. Fish & Wildlife Serv., 12 F. Supp. 2d 1121, 1131 (D. Or. 1997) (quoting Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983)).

When reviewing an agency action under the arbitrary and capricious standard, the court must consider whether the agency's decision was "based on a consideration of the relevant factors and whether there has been a clear error of judgment." Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). While the court's "inquiry into the facts is to be searching and careful, the ultimate standard of review is a narrow one. The court is not empowered to substitute its judgment for that of the agency." Id. That said, the court may not simply "rubber-stamp the agency decision as correct." N. Spotted Owl (Strix Occidentalis Caurina) v. Hodel, 716 F. Supp. 479, 482 (W.D. Wash. 1988).

Because this Court's review under the APA is generally limited to the administrative record, no facts are in dispute.³ However, the parties have filed a Motion and Cross-Motions for Summary Judgment, which may be used as a vehicle for the Court to conduct its review of the record. Therefore, the Court's role is "to determine whether or not as a matter of law the evidence in the administrative record permitted the agency to make the decision it did." Occidental Eng'g Co. v. INS, 753 F.2d 766, 769 (9th Cir. 1985).

DISCUSSION

I. Administrative Procedure Act

Plaintiffs argue that BLM violated the APA by (1) failing to provide a reasoned analysis explaining its change in policy from the 1984 Rule to the Final Rule and (2) failing to adequately respond to public comments during the rulemaking process. Pls.' Mot. Summ. J. 15, 25, ECF No. 28.

A. BLM's Reasoned Analysis for the Final Rule

"Agencies are free to change their existing policies as long as they provide a reasoned explanation for the change." Encino Motorcars, LLC v. Navarro, 579 U.S. 211, 221, 136 S.Ct. 2117, 195 L.Ed.2d 382 (2016); see also State Farm, 463 U.S. at 42, 103 S.Ct. 2856. To meet the "reasoned analysis" requirement, an agency must show (1) an awareness of its change in position, (2) "that the new policy is permissible under the statute," (3) a belief that the new policy is better than the old, and (4) that there exist good reasons for the new policy. FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515, 129 S.Ct. 1800, 173 L.Ed.2d 738 (2009). "In explaining its changed position, an agency must also be cognizant that longstanding policies may have 'engendered serious reliance interests that must be taken into account.' " Encino, 579 U.S. at 221-22, 136 S.Ct. 2117 (quoting Fox, 556 U.S. at 515, 129 S.Ct. 1800). In such cases, a "reasoned explanation is needed for disregarding facts and circumstances that underlay or were engendered by the prior policy." Fox, 556 U.S. at 515-16, 129 S.Ct. 1800. Overall, a court should "uphold a decision of less than ideal clarity if the agency's path may reasonably be discerned." Fox, 556 U.S. at 513-14, 129 S.Ct. 1800 (quoting Bowman Transp., Inc. v. Ark.-Best Freight Sys., Inc., 419 U.S. 281, 286, 95 S.Ct. 438, 42 L.Ed.2d 447 (1974)).

1. Awareness of...