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Wildlands v. Bureau of Land Management

United States District Court, Ninth Circuit

October 18, 2013

CASCADIA WILDLANDS, an Oregon non-profit corporation; THE CENTER FOR BIOLOGICAL DIVERSITY, an Arizona non-profit corporation; and BENTON FOREST COALITION, an Oregon corporation, Plaintiffs,
v.
BUREAU OF LAND MANAGEMENT, AN administrative agency of the United States Department of Interior, Defendant,
v.
SENECA SAWMILL CO., an Oregon corporation, Defendant-Intervenor.

Nicholas S. Cady, Cascadia Wildlands, Eugene, Oregon.

Daniel C. Snyder, Charles M. Tebbutt, Law Offices of Charles M. Tebbutt, P.C., Eugene, Oregon, Attorneys for plaintiffs.

Robert G. Dreher, Acting Assistant Attorney General, Jared S. Pettinato, Trial Attorney United States Department of Justice Environmental and Natural Resources Division, Washington, District of Columbia.

S. Amanda Marshall, United States Attorney, Sean E. Martin, Assistant United States Attorney, Portland, Oregon, Attorneys for defendant.

Scott W. Horngren, American Forest Resource Council, Portland, Oregon, Attorney for defendant-intervenor.

OPINION AND ORDER

ANN AIKEN, District Judge.

Plaintiffs Cascadia Wildlands, the Center for Biological Diversity, and the Benton Forest Coalition move for summary judgment pursuant to Fed.R.Civ.P. 56. Defendant the Bureau of Land Management ("BLM") and defendant-intervenor Seneca Sawmill Co. ("Seneca") each filed cross-motions for summary judgment. For the reasons set forth below, the plaintiffs' motion is denied and the BLM's and Seneca's motions are granted. This case is dismissed.

BACKGROUND

This case involves a challenge to the BLM's authorization of the Rickard Creek timber sale ("Project"). The Project site is located within the Marys River Watershed, which spans approximately 193, 962 acres. Administrative Record ("AR") 648, 675, 677. The Project area encompasses 111 acres, 92 of which are slated for regeneration harvest, in the Matrix and Riparian Reserves land use allocations as defined under the 1995 Salem District Resource Management Plan ("Salem RMP"); the Project was designed to ensure that the landscape contained forest habitat in the early stages of development to "support [a] high diversity of wildlife species, " as the existing stand was overly dense with "slowing growth and declining health and vigor." AR 328-29; see also AR 647, 675, 16752-53. The regeneration harvest would leave between nine and eleven live trees per acre, for approximately 900 total leave trees. AR 675, 1595-1604 (inventorying the leave trees).

In 2004, the BLM initiated planning for the Rickard Creek timber sale. In order to analyze the potential environmental impacts of the Project, the BLM conducted an environmental assessment ("EA"), which was released for public comment in 2008; the first Decision Rationale was published in May 2009. AR 1163 (2009 Decision Rationale), 1441 (2008 EA). The BLM released a revised EA in 2009 to address issues raised in protest to the 2009 Decision Record. See AR 675, 1000 (2009 EA).

In October 2011, the Fish and Wildlife Service ("FWS") issued a "12-Month finding on a Petition to List a Distinct Population Segment of the Red Tree Vole as Endangered or Threatened." AR 7757-99; see also 76 Fed. Reg. 63720 (Oct. 13, 2011). The study's conclusions primarily relate to a Distinct Population Segment ("DPS") of red tree vole that inhabits area in the Northern Coast range, the majority of which is concentrated north of Highway 20. AR 7767 (map of the North Oregon Coast DPS). Within the DPS, however, the FWS identified two clusters of Federal land that constituted "most of the remaining high-quality "habitat for red tree voles, " the majority of which lies "south of U.S. Highway 20, " which includes the Marys River and Upper Alsea Watersheds, and the other "lying north of Highway 20, mainly between Lincoln City and Tillamook." AR 7786; see also AR 7767. The study found that "[a]ll sites on Federal land within the DPS are considered high-priorty sites with the exception of the 198, 000 ac (80.130 ha) of the southernmost portion of the DPS." AR 7783; see also AR 7786 ("every site is critical for persistence for the red tree vole in Oregon's North Coast Range north of Highway 20"). The FWS concluded that listing the North Oregon Coast DPS under the Endangered Species Act ("ESA") was warranted but precluded by higher priority actions. AR 7790-99. As a result, the red tree vole was added to the FWS' Candidate Species List. Id.

In February 2012, the BLM released another revised EA; the BLM also issued a separate analysis document, the "Proposal for Non-High Priority Site Status for Red Tree Voles in the Rickard Creek Project Area (the Red Tree Vole Analysis), " which designates the Marys River Watershed as a non-high priority site under the Northwest Forest Plan ("NFP"). AR 319 (2012 EA), 561-72, 675-84 (most recent Red Tree Vole Analysis), 14695. The 2012 EA, which includes and expands upon information from the prior EAs and incorporates by reference the Red Tree Vole Analysis, approved the Rickard Creek timber sale and confirmed that it complied with the applicable land-use plans. AR 319-434. Pursuant to that decision, the BLM acknowledged that the proposed action authorized removal of trees occupied by red tree voles, [1] but nonetheless found that the Project could proceed because it was not a high-priority site for the vole and, further, would not contribute to the need to list that species under ESA. Id.

The Forest Service and the FWS concurred with the BLM's non-high priority site designation. AR 2172, 2169. In so concurring, the FWS clarified that the language "used in the 12-month finding is in no way meant to change or override the FS and BLMs process for identifying [non-high priority] sites within the DPS." AR 2020-21, 2056. The FWS explained further that, within the DPS but south of Highway 20, "voles are more common and more widely distributed and habitat is more available than further north." AR 2169.

Thereafter, plaintiffs challenged the Project via administrative protest; the BLM responded to plaintiffs' protests and affirmed its decision to proceed with the proposed action. On September 26, 2012, plaintiffs filed a complaint in this Court, alleging that the BLM violated the Federal Land Policy and Management Act ("FLPMA") by: (1) improperly classifying the Project area as non-high priority site; and (2) contributing toward the need to list the red tree vole under the ESA. In light of these alleged violations, plaintiffs request that the BLM be enjoined from proceeding with the Rickard Creek timber sale.

On May 4, 2013, this Court denied plaintiffs' motion to supplement the administrative record. On May 17, 2013, plaintiffs moved for summary judgment. On June 14, 2013, the BLM filed a cross-motion for summary judgment. On June 21, 2013, plaintiffs moved to strike one of the BLM's exhibits in support of its cross-motion. On June 24, 2013, Seneca filed a cross-motion for summary judgment.

STANDARD

A federal agency's compliance with the FLMPA is reviewed under the Administrative Procedure Act ("APA"). 5 U.S.C. § 706. In an APA case, summary judgment is awarded in favor of the plaintiff if, after reviewing the administrative record, the court determines that the agency's action was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." Natural Res. Def. Council v. Nat'l Marine Fisheries Serv. , 421 F.3d 872, 877 (9th Cir. 2005) (quoting 5 U.S.C. § 706(2)(A)). A decision is not arbitrary or capricious if the federal agency articulated a rational connection between the facts found and the choice made. Nat'l Wildlife Fed'n v. U.S. Army Corps of Eng'rs , 384 F.3d 1163, 1170 (9th Cir. 2004); Lands Council v. McNair , 537 F.3d 981, 987 (9th Cir. 2008) (en banc), overruled on other grounds by Am. Trucking Ass'ns Inc. v. City of L.A. , 559 F.3d 1046 (9th Cir. 2009) (the court "will reverse a decision as arbitrary and capricious only if the agency relied on factors Congress did not intend it to consider, entirely failed to consider an important aspect of the problem, or offered an explanation 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").

Review under this standard is narrow and the court may not substitute its judgment for that of the agency. Lands Council , 537 F.3d at 987. Nevertheless, while this standard is deferential, the court must "engage in a substantial inquiry, . a thorough, probing, in-depth review." Native Ecosys. Council v. U.S. Forest Serv. , 418 F.3d 953, 960 (9th Cir. 2005) (citation and internal quotations omitted).

DISCUSSION

Plaintiffs assert that designation of the Rickard Creek Project as non-high priority vole habitat was arbitrary and capricious because that site does not meet any of the requisite four criteria outlined in the NFP.[2] In addition, plaintiffs assert that the proposed action is wrongful because it contributes to the need to list the red tree vole as endangered pursuant to the ESA.

The BLM contends, to the contrary, that its decision to authorize the Project due to its non-high priority site status was rationale and supported by the record. Moreover, while the BLM acknowledges that the Project will have some impact on individual voles, it argues that the proposed action does not threaten the species as a whole. Seneca joins the BLM's arguments regarding the FLMPA and further asserts that plaintiffs' claim fails because they lack standing and the Oregon and California Railroad and Coos Bay Wagon Road Grant Lands Act ("O&C Act") precludes application of the NFP and/or FLMPA in this context.[3]

I. Standing

Before reaching the merits of the parties' cross-motions for summary judgment, the Court must address whether plaintiffs have standing to bring this challenge under the FLPMA. Steel Co. v. Citizens for a Better Env't , 523 U.S. 83, 102 (1998) (standing is a threshold jurisdictional question). Article III of the Constitution grants federal courts authority to adjudicate legal disputes only where an actual case or controversy exists. Elk Grove Unified Sch. Dist. v. Newdow , 542 U.S. 1, 11 (2004). To enforce this limitation, litigants must demonstrate "a personal stake in the outcome of the controversy." Summers v. Earth Island Inst. , 555 U.S. 488, 493 (2009) (citation and internal quotation marks omitted). Thus, the "irreducible constitutional minimum of standing" requires the party invoking the court's jurisdiction to demonstrate that: (1) he or she suffered an "injury in fact"; (2) the injury is "fairly traceable to the challenged action of the defendant"; and 3) "it must be likely... that the injury will be redressed by a favorable decision." Lujan v. Defenders of Wildlife , 504 U.S. 555, 560-61 (1992) (citations and internal quotations omitted).

Seneca argues that plaintiffs lack standing because "they have no legal right to access the Rickard Creek Project area, which the BLM must access using a limited right-of-way agreement that only allows access to remove timber and other forest products on a road crossing Starker Forests private land." Def.-Intervenor's Mem. in Supp. of Cross-Mot. Summ. J. 2. Seneca contends further that any other method used to access the Project area, including hiking, would entail illegal trespass: "[t]he section containing the project area is completely enclosed by private timberland [owned by Starker Forests Inc., Starker Properties L.L.C., or Hull Oakes Lumber Company] Those companies do not allow the public to cross their land onto public lands." Def.-Intervenor's Reply to Cross-Mot. Summ. J. 5 (citing Vomicil Decl. ¶ 8; Nystrom Decl. ¶ 4).

Conversely, plaintiffs' assert that, under Cal-Neva Land & Timber Inc. v. United States , 70 F.Supp.2d 1151 (D. Or. 1999), they have standing because their "members are properly construed as licensees of the United States, as the easement does not define that term and conveys free use' of the road to the government [such that it] provides an inherent right of access to the public." Pls.' Reply to Mot. Summ. J. 2. Additionally, while plaintiffs note briefly that the Project site is accessible by "lawfully hiking through public lands, " they do not address Seneca's arguments. Id. at 3. As such, this case initially hinges on terms of the the right-of-way between Starker Forests and the United States.

"The interpretation of an express easement, like that of contracts and other written instruments, is a question of law for the court." Tri-Cnty. Metro. Transp. Dist. of Or. v. MCI Commc'ns Servs., Inc., 2010 WL 1335010, *4 (D. Or. Mar. 31, 2010) (citations and internal quotations omitted); see also Tipperman v. Tsiatsos , 327 Or. 539, 544-45, 964 P.2d 1015 (1998). "In construing an easement, [the court's] fundamental task is to discern the nature and scope of the easement's purpose and to give effect to that purpose in a practical manner." Tri-Cnty. Metro., 2010 WL 1335010 at *4 (citations and internal quotations omitted). To ordain an easement's purpose, the court "look[s] first to the words of the easement, viewing them in the context of the entire document, " and endows them with "their plain, ordinary meaning." Id . (citations and internal quotations omitted). If the plain language of the easement "clearly express[es] [its] purpose, the analysis ends." Id . (citations and internal quotations omitted). "Ordinarily, an easement passes no rights to the grantee except those rights that are necessary for the easement's reasonable and proper enjoyment" and the grantor retains "full dominion and use of the land [subject to an easement], except so far as a limitation of the grantor's right is essential to the fair enjoyment of the easement that was granted." Id . (citations and internal quotations omitted).

Here, easement between Starker and the BLM states, in relevant part:

For the consideration of the granting of the right-of-way applied for on the above-mentioned date, the ...

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