Be Careful What You Wish For


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.

4 thoughts on “Be Careful What You Wish For”

  1. Andy
    Now we can predict court cases about properly calculating ASQ’s.. fun and remunerating for some.. waste of time and resources for others. If agencies use any models, then they have to be subject to rulemaking? Heuristic models? Expert opinion? All very confusing to the non-legal mind.

  2. It’s no accident that the timber industry focused on two BLM districts in SW Oregon. What they did not tell the judge is that BLM has shuffled the timber targets among the various districts in western Oregon. It’s true that Medford BLM and Roseburg BLM are selling less than their allowable sale quantity (ASQ), mostly because those two districts have fewer plantations to thin and more spotted owl habitat to protect. Meanwhile ALL the other districts in western Oregon (Salem, Eugene, and Coos Bay) are selling much more timber than their ASQ, so the net effect across western Oregon is that BLM is meeting timber targets. It seems likely that an appeal court will have no trouble reversing this flawed decision. It will probably be overturned before the timber industry’s champagne headache wears off.

  3. I guess the timber industry needs to spend their legal budget on something, but it has seemed to me like every time they sue they end up shooting off another foot. They usually have to come up with some far-fetched arguments, and this win (if that’s what it is) may be short-lived (in the D.C. Circuit).

    It is difficult to characterize the annual timber offering as a ‘discrete action’ subject to the APA. This court holds that the ‘mandate’ is discrete because it is not vague, but that is not what the APA means by ‘discrete.’ There is no larger ‘action’ to challenge here that is separate from the individual sales. (If an annual timber program is an agency action under the APA, then don’t we also have to ask the questions about whether such a program has environmental effects subject to NEPA and ESA?)

    The owl methodology doesn’t quack like a rule subject to the APA. The APA process is required when an agency is affecting the rights of the public. The FWS has no authority to ‘require’ the FS to use a particular methodology. Other courts (for areas outside of O&C lands) have found that there are no ‘clear legal consequences for timber operators’ until there is a timber sale contract that confers some rights to a contractor. The use of a particular methodology is subject to public and judicial review for that individual project. (In this part of the case, this judge not only says that ‘shall’ means ‘shall,’ but ‘will’ means ‘shall’ and ‘should’ means ‘shall.’ I think that’s probably reversible error, too.)

    As decided (and if it could be extended beyond O&C lands), this case could have extreme implications for the Forest Service and other agencies. What national forest unit (or region) does not have a ‘methodology’ that they regularly use for estimating effects of land management? Think grizzly bear management units or lynx habitat instead of owl sites. As a matter of planning policy, the FS has tried to keep ‘methodologies’ out of forest plans, but if there has to be public review and comment, the forest planning process is probably the place to do it. (The timber industry once challenged forest plans as being administrative rules subject to the APA notice and comment process; they lost.)

    It does seem like making incidental take statements harder to get would make it harder for the timber industry to get to that ASQ.


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