U.S. District Judge Richard Leon has ordered the Bureau of Land Management to offer for sale “the declared annual sustained yield capacity of timber for the Medford and Roseburg districts for each future year,” in compliance with the Oregon and California Lands Act of 1937 (Swanson Group Manufacturing v. Salazar, 10-1843 (RJL), D.D.C.). (Opinion here)
“[T]he court holds unlawful under the O&C Act defendant Salazar’s failure to sell or to offer for sale the annual sustained yield capacity of the Medford and Roseburg districts in several years since 2004. As such, the Court orders defendant Salazar and/or his successors to sell or offer for sale the declared annual sustained yield capacity of timber for the Medford and Roseburg districts for each future year, in accordance with the O&C Act.”
“By failing to sell or offer for sale the annual sustained yield capacities in several recent years, BLM has committed a series of ‘final’ agency actions warranting relief under § 706(2),” he wrote, concluding that BLM’s decision was, indeed, a discrete final agency action subject to judicial review.
Leon also said that an Owl Estimation Methodology issued by the Forest Service, BLM and the Fish and Wildlife Service in 2007 should have been available for public comment.
The government had tried to argue that the OEM was not a binding rule. But Leon found that “the agencies have used the OEM consistently in western Oregon timber sales consultations.
Since 2008, “FWS has used or cited the OEM in 42 of the 43 biological opinions, 24 of the 29 letters of concurrence, and 45 of the 47 biological assessments.”
“The exceptions,” he continued, “were typically less significant actions in which little or no owl habitat was affected or other data was available to estimate take.” In many of the BiOps issued on western Oregon timber sales, “FWS ordered BLM or USFS to comply with the OEM during logging projects as a condition of the opinion.”
Concluded Leon: “Such frequent use of the OEM across multiple years of western Oregon timber projects supports this court’s conclusion that the OEM is, in effect, a binding legislative rule. Universal application is not necessary to render a rule binding.”
Defendants mischaracterize both plaintiffs’ position and the law. Plaintiffs recognize that O&C Act permits flexibility as to the timber sale volume; they acknowledge that BLM need not sell the ASQ each year but rather must “at least offer for sale” the annual sustained yield capacity. Pis.’ Mem. at 27. Indeed, BLM has discretion as to establishing the ASQ, selecting the timberlands, pricing the sale (at “reasonable prices on a nonnal market”), scheduling the sale, and even rejecting bids.