No one has been suing over the northern spotted owl longer than has timber industry attorney Mark Rutzick. And no one has been on the losing side of those cases more often. So, it must come as no small relief, if not vindication, that Mark won an owl case yesterday. And a pretty big one, at that.
The case involves two distinct and separate claims. The first concerns the meaning of the venerable O&C Act of 1937. The O&C Act has long been viewed by BLM and Oregon counties wedded to its generous timber receipt sharing as a timber-first law. But the 1973 passage of the Endangered Species Act, followed by its application to O&C lands with the 1990 listing of the northern spotted owl, expanded the O&C lands mandate to include wildlife conservation. That change came at the expense of logging levels.
Rutzick sought to enforce a provision of the O&C Act that had never been litigated:
That timber from said lands in an amount not less than one-half billion feet board measure, or not less than the annual sustained yield capacity when the same has been determined and declared, shall be sold annually, or so much thereof as can be sold at reasonable prices on a normal market.
Judge Leon had little trouble concluding that: 1) BLM’s Roseburg and Medford districts had been falling short of selling their declared allowable sale quantities, and, 2) that “shall” means “shall.” My crystal ball (yes, it’s still working albeit seen through aging eyes) predicts that BLM will respond by setting less ambitious ASQs in its up-coming resource management plans.
The other claim may also yield unintended consequences for Mark’s clients. In an argument that made my eyes glaze over when I first read his briefs, Rutzick convinced the court that the Fish and Wildlife Service’s in-house computer-based methodology used to calculate the number of owls “taken” by logging is a federal rule that warrants a notice-and-comment rulemaking process. My favorite part of the judge’s strained ruling is this quote:
a document that does not purport to bind an agency – and even one that expressly purports to be non-binding – can be considered binding nonetheless if the agency applies the document in a way that indicates it is binding.
Got that, everyone?
Judge Leon set aside the methodology and prohibited its use by FWS unless and until formal rulemaking is completed.
So where does that leave the current shelf stock of FWS’s biological opinions that relied upon this method to issue incidental take permits for logging? On the cutting room floor, that’s where.
Maybe Mark just can’t win for losing.