Wildlands v. Kitzhaber

• Decision Date: 19 November 2012
• Docket Number: Case No. 3:12–cv–00961–AA.
• Citation: 911 F.Supp.2d 1075
• Parties: CASCADIA WILDLANDS, Center for Biological Diversity, and Audubon Society of Portland, Plaintiffs, v. John KITZHABER, in his official capacity as Governor of Oregon and Chair of the State Land Board; Ted Wheeler and Kate Brown, in their official capacity as members of the State Land Board; Doug Decker, in his official capacity as Oregon State Forester with the Oregon Department of Forestry; Louise Solliday, in her official capacity as Director of the Department of State Lands; John Blackwell, in his official capacity as Chair of the Oregon Board of Forestry; Sybil Ackerman, Cindy Deacon Williams, Nils Christoffersen, Tom Insko, Gary Springer, and Steve Wilson, in their official capacity as Board Members of the Oregon Board of Forestry; Tom Savage, in his official capacity as District Forester for the Astoria District; Jim Young, in his official capacity as the District Forester for the Coos District; Andy White, in his official capacity as the District Forester for the Forest Grove District and Dan Goody, in his official capacity as the District Forester for the Tillamook District, Defendants, v. Oregon Forest Industries Council, a non-profit corporation, Douglas Timber Operations, a non-profit corporation, Hampton Tree Farms Inc., an Oregon Corporation, Seneca Sawmill Company, an Oregon Corporation, and Scott Timber Co., an Oregon Corporation, Defendant–Intervenors, v. Association of Oregon Counties, Defendant–Intervenor.
• Court: U.S. District Court — District of Oregon

911 F.Supp.2d 1075

CASCADIA WILDLANDS, Center for Biological Diversity, and Audubon Society of Portland, Plaintiffs,

v.John KITZHABER, in his official capacity as Governor of Oregon and Chair of the State Land Board; Ted Wheeler and Kate Brown, in their official capacity as members of the State Land Board; Doug Decker, in his official capacity as Oregon State Forester with the Oregon Department of Forestry; Louise Solliday, in her official capacity as Director of the Department of State Lands; John Blackwell, in his official capacity as Chair of the Oregon Board of Forestry; Sybil Ackerman, Cindy Deacon Williams, Nils Christoffersen, Tom Insko, Gary Springer, and Steve Wilson, in their official capacity as Board Members of the Oregon Board of Forestry; Tom Savage, in his official capacity as District Forester for the Astoria District; Jim Young, in his official capacity as the District Forester for the Coos District; Andy White, in his official capacity as the District Forester for the Forest Grove District and Dan Goody, in his official capacity as the District Forester for the Tillamook District, Defendants,

v.Oregon Forest Industries Council, a non-profit corporation, Douglas Timber Operations, a non-profit corporation, Hampton Tree Farms Inc., an Oregon Corporation, Seneca Sawmill Company, an Oregon Corporation, and Scott Timber Co., an Oregon Corporation, Defendant–Intervenors,

v.Association of Oregon Counties, Defendant–Intervenor.

Case No. 3:12–cv–00961–AA.

United States District Court, D. Oregon.

Nov. 19, 2012.

Christopher G. Winter, Tanya M. Sanerib, Crag Law Center, R. Scott Jerger, Field & Jerger, LLP, Susan Jane M. Brown, Western Environmental Law Center, Portland, OR, Daniel Kruse, Attorney at Law, Nicholas Stanton Cady, Cascadia Wildlands, Eugene, OR, Attorneys for plaintiffs.

Christina L. Beatty–Walters, Darsee Staley, Oregon Department of Justice, Portland, OR, Attorneys for defendants.

Dominic M. Carollo, Ronald S. Yockim, Law Offices of Ronald S. Yockim, Roseburg, OR, Scott W. Horngren, American Forest Resource Council, Julie A. Weis, Haglund Kelley Jones & Wilder LLP, Portland, OR, Attorneys for defendant-intervenors.

OPINION AND ORDER

AIKEN, Chief Judge:

This matter comes before the Court on motions for dismissal brought by State of Oregon defendants Kitzhaber et al (State defendants) and defendant-intervenors Oregon Forest Industries et al (defendant-intervenors). SeeFed.R.Civ.P. 12(b)(6). Plaintiffs Cascadia Wildlands et al (plaintiffs) oppose the motions. Having reviewed the parties' briefs, the Court GRANTS in part and DENIES in part the motions for dismissal.

BACKGROUND

Plaintiffs' Complaint alleges that State defendants are violating Section 9 of the Endangered Species Act (ESA), 16 U.S.C. § 1540(g), by (1) authorizing timber sales on specific tracts of forestland in Tillamook, Clatsop and Elliot State Forests; (2) approving forest management plans (FMP's), implementation plans (IP's), and annual operation plans (AOP's) which result in logging that causes the unpermitted “take” of marbled murrelets; and (3) approving, adopting and implementing a “take avoidance” policy that causes unpermitted “take” of marbled murrelets. State defendants and defendant-intervenors move for the dismissal of the second portion of plaintiffs' Complaint. All defendants (defendants) also seek dismissal of plaintiffs' claim as to each of the individually-named Oregon Board of Forestry members on grounds of absolute legislative immunity, and as to each of the named members of the State Land Board and Louise Solliday on grounds of failure to allege actionable conduct. Defendant-intervenors additionally move for dismissal of the portion of plaintiffs' claim challenging the State's “take avoidance” policies.

STANDARD

Where plaintiff “fails to state a claim upon which relief can be granted,” the court must dismiss the action. Fed.R.Civ.P. 12(b)(6). To survive a motion to dismiss, the complaint must allege “enough facts to state a claim for relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). For the purposes of a motion to dismiss, the complaint is liberally construed in favor of plaintiff and its allegations are taken as true. Rosen v. Walters, 719 F.2d 1422, 1424 (9th Cir.1983). Bare assertions, however, that amount to nothing more than a “formulaic recitation of the elements” of a claim “are conclusory and not entitled to be assumed true.” Ashcroft v. Iqbal, 556 U.S. 662, 680–81, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). Rather, to state a plausible claim for relief, the complaint “must contain sufficient allegations of underlying facts” to support its legal conclusions. Starr v. Baca, 652 F.3d 1202, 1216,reh'g en banc denied,659 F.3d 850 (9th Cir.2011).

DISCUSSION

Plaintiffs allege that, based on the forest management structure, State defendants are causing the take of marbled murrelets. While plaintiffs argue that they have only alleged a single all-encompassing claim in their Complaint, the Court is inclined to agree with defendants that plaintiffs have in fact alleged at least three separate but related claims. First, plaintiffs allege that some defendants are causing the take of marbled murrelets by auctioning specific timber sales. See, e.g., Compl. ¶¶ 3, 172, 179. Second, plaintiffs allege that some State defendants are causing a take by their “approval, adoption, and implementation” of forest management plans and policies which call for increased logging in the state forests at issue. See, e.g., Compl. ¶¶ 3, 5, 137. Third, plaintiffs allege that the “take avoidance” policy itself causes take. See, e.g., id. at ¶¶ 4, 6, 190. Plaintiffs have also requested leave to file an amended complaint “if the Court finds any merit in [d]efendants' motions.” Pls.' Resp. to Mot. Dismiss at 42. For the most part, plaintiffs have declined to specify which particular defendants are allegedly responsible for the above listed violation of the ESA. Accordingly, the Court is left to determine whether plaintiffs have sufficiently pled facially plausible claims with regard to each State defendant.

I. Forest Management Policy and Planning Structure

Oregon's state forests are governed by a three-tiered management structure. Compl. ¶ 81. At the highest level are the FMP's, which are intended to guide forest management policy for 40 or more years. Id. The two FMP's at issue in this case are the Northwest FMP and the Elliot State FMP. Id. at ¶¶ 136, 146. FMP's are reviewed and adopted by the Oregon Board of Forestry through administrative rule-making. Id. at ¶ 37; OAR 629–035–0105(2)(a), (c). The next level is the district-wide IP's, which set out ten-year management plans. Compl. ¶ 81. The Northwest FMP governs the districts of Tillamook, Forest Grove, and Astoria (and includes the Tillamook and Clatsop State Forests); the Elliot State FMP governs the Coos District (and includes the Elliot State Forest). Id. at ¶¶ 41, 81, 136. At the lowest level, the districts develop AOP's each year which are used to “describe smaller-scale, more specific management activities within the planning area.” Id. at ¶ 81; OAR 629–035–0030(1).

The Oregon Department of Forestry and the Oregon Board of Forestry have

primary authority over the majority of the Tillamook and Clatsop forests. Compl. ¶ 82. Two percent, however, of the Clatsop forest is Common School Fund lands, which is managed by the Oregon State Land Board and Oregon Department of Lands. Id. The State Land Board and Department of Lands own the majority of Elliott State Forest, which are also Common School Fund lands. Id. at ¶ 83. The State Land Board and Department of State Lands have, by contract, delegated management of the Elliott State Forest to the Oregon Department of Forestry and Board of Forestry, including planning and authorizing logging activities, as well as creating and approving AOP's. Id. Defendant Doug Decker, in his capacity as Oregon Department of Forestry State Forester, is responsible for managing state-owned forest lands, including selling forest products from those lands. Id. at ¶ 38. He also develops FMP's, IP's and AOP's, has the authority to designate land for fish and wildlife conservation, and is authorized to modify timber sale contracts. Id. Defendants Tom Savage, Jim Young, Andy White, and Dan Goody, in their capacity as District Foresters, are responsible for overseeing the management of State Forests in their respective districts and approving IP's and AOP's. Id. at ¶ 41. They are also responsible for ensuring ESA compliance and approving the design of reserves set aside for marbled murrelets under the State's “take avoidance” policy which are called Marbled Murrelet Management Areas (MMMA's). Id.

II. ESA STATUTORY SCHEME

The ESA is “the most comprehensive legislation for the preservation of endangered species ever enacted by any nation.” TVA v. Hill, 437 U.S. 153, 180, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978). The ESA provides protections for the conservation of threatened and endangered species. 16 U.S.C. §§ 1531–44. Section 9 of the ESA, and regulations promulgated by the United States Fish and Wildlife Service, makes it unlawful for “any person” to “take” any threatened or endangered species of fish or wildlife, or for any person “to attempt to commit, solicit another person to commit, or cause to be committed” any such “take.” 16 U.S.C. § 1538(a)(1)(B); 50 C.F.R. §§ 17.21, 17.31.

“Take” means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or attempt to engage in any such conduct. 16 U.S.C. § 1532(19). “Harm” means an act which actually kills or injures wildlife, including significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding or sheltering. 50 C.F.R. § 17.3. “Harass” means an intentional or negligent act or omission...