UNITED STAT ES DIS TRICT COURT F OR THE DIS TRICT OF COLUM BIA

DOUG LAS TI MBER OP ERATORS, INC., et al. P laintif fs,
v. Civil Action No. 09-1704 (JD B) KENN ETH S ALAZA R, in hi s off icial capacity as Secre tary of the De partm ent of the Interior, Defendan t, and P ACIF IC RIVER COUNC IL, Interve nor-De fend ant.

MEMORAN DUM OP INION Plaintiffs, tim ber c ompanies and tra de and w orker s’ associations that support enhance d timber harve st in western Or eg on, challeng e the de cision of def endant, Sec reta

ry of the Interior Ken Salazar , to withdraw the Rec ords of De cision (“ROD” ) appr oved on De cembe r 30, 2008, that had adopte d the Western Or eg on Plan Revisions for six Bur eau of L and Mana g ement districts. The Secr etar

y withdrew the ROD for the Western Ore g on Plan Revisions on J uly 16, 2009, explaining that the De cembe r 2008 appr oval of the Wester n Ore g on Plan Revisions R OD was “ leg al er

ror” beca use the B urea

u of L and Mana g ement had imprope rly conclude d that it was not obligate d to eng ag e in inter-a g ency consultation under the E ndang ere d Species Ac t. Plaintiffs make five c laims that the withdrawa l decision was unlaw ful. First, they alleg e that defe ndant violated the F eder al L and Policy and Mana g ement Ac t (“F L PMA”). Second, pla intiffs alleg e that def

endant violated the rulemakingproce dures unde r the Administrative Proce dure A ct(“A PA”). Third, the y claim that def

endant violated the public notice provision of the F L PMA, 43 U.S.C. §1712(f). F ourth, they alleg e that def

endant’ s brea ch of the 2003 Settlement Ag ree ment that established a D ece mber 31, 2008 de adline for revising the re source manag ement plans for six western Or eg on districts was ar bitrary and ca pricious and a

n abuse of

discretion under the APA. Fifth, a

nd finally , plaintiffs alleg e that the de fenda nt also violated the APA beca use the de fenda

nt’s “leg al er

ror” explanation was not rationally connec ted to the Secr etar y ’s decision to completely

withdraw the approve d ROD. Def endant r esponds to eac h of those cla ims and also c halleng es plaintiffs’ standing . For the following rea sons, the Court will gra nt in part and deny in part plaintiffs’ motion for summar y judgme nt and g rant in par t and deny

in part defe ndant’s cr oss-motion.
BACK GR OUND A complex lega l frame work re g ardingthe manag ement of f eder al lands in Ore g on provides the ba ckg round for plaintiffs’ cla ims. The Ore g on and California Railroad and Coos Ba y Wagon Roa d Gra

nt L ands Ac t of 1937 (“O & C Ac t”) provide s for fe dera l manag ement of the land and f

or the shar ing of

timber reve nues with the Ore g on counties. See 43 U .S.C. § 1181a. The Act dire cts an “ aver ag e annua l cut [t o] notexceed one -half billion fee t board

measure ,” an a

mount that “shall be sold annually , or so much ther eof a s can be sold at rea sonable price s on a normal mar

ket.” I d. Fur

thermore , the O & C Act direc ts that the lands will be manag ed “f

or the purpose of providinga per manent sourc e of timber supply” and “ contributing to the economic sta

bility of loca l communities and industries.” I d. The F eder al L and Policy

and Mana g ement Ac t (“F L PMA”), 43 U.S.C. §§ 1701-87,

-2-g overns the use of fe dera l lands by the B urea

u of L and Mana g ement (“ BL M”). The FL PMA mandates that the Bur eau sha ll manag e fe dera l lands based on “ multipl e use a nd sustained yield unless otherwise spe cified by law.” 43 U .S.C. § 1701(7). The F L PMA provides that “[t] he Secre tary shall . . . develop, maintain, a nd, when a

ppropriate , revise la

nd use plans,” § 1712( a), and “a llow an opportunity for public involvement a nd by regulation shall establish procedur es, including public he aring s where appropr iate, to g ive Fe dera l, State, and local g overnme nts and the public, ade quate notice and opportunity to comment upon and par ticipate in the for

mulation of plans and pr og rams re lating to the ma nag ement of the public lands,” § 1712(f ); see a lso 43 C.F.R. § 1610.5. On J une 26, 1990, the nor thern spotted owl wa s listed as a threa tened spe cies by

the United States Fish and Wildlife Service under the authority of the Enda

ng ere d Species Ac t (“ESA” ), 16 U.S.C. §§ 1531-44. See 55 F ed. Reg . 26,114-26,194. The nor thern spotted owl resides in late -succ essional and old-g rowth for ests in Washington, Ore g on and California , including in the six BL M districts at issue in this case . See id.; Fe d. Def .’s Mot. for Summ. J . & Opp. to Pls.’ Mot. for Summ . J . (“D ef.’ s Opp’n”) [Docket Entry 34] at 4. The ESA prohibits ag encie s from taking action that is likely to “jeopar dize the continued exist ence of any endang ere d specie s or threa tened spe cies.” 16 U.S.C. § 1536(a)(2) . The ESA also imposes proce dural re quirements on ag encie s to consult with the Fish and Wildl ife Servic e or the National Mar ine Fishe ries’ Ser vice whe never

a fe dera l action “may

aff ect” an enda

ng ere d or threatened spe cies. See 50 C.F.R. § 402.14(a)

. These a nd other statutes that prote ct the ofte n competing economic, a esthetic, a nd environmenta l interests in northwest for ests have be en a sour ce of intense litigation over the pa st -3-sever al dec ades. To a ddress “ litigation g ridlock” be tween timber companies, c onserva

tionist s, and the g overnme nt, BL M and the United States F orest Servic e cr afte d the Northwe st Fore st Pl an in an attempt to balanc e these competinginterests in fede ral for ests in a more c omprehe nsive

manner . See De f.’s Opp’ n at 4. I n eff ect, the N orthwest F orest Plan re duced log g ing in c erta in

are as to protec t environmental intere sts. The Nor thwest For est Plan was the subjec t of a number of lawsuits in the mid-1990s. Two ar e par

ticularly rele vant her e. The first, Seattle Audubon Soc’y v. Ly ons, 871 F. Supp. 1291, 1300 (W.D. Wash 1994), aff ’d, 80 F .3d 1401 (9 Cir. 1996), upheld the Nor thwest For est t h Plan ag ainst a cha lleng e by timber companie s that the C & O A ct did not permit manag ement of those lands for a

ny purpose other

than sustained timber produc tion. I n the sec ond case , Americ an F orest Resourc e Council v. Abbey , Civ. No. 94-1031 (D.D.C.), f our of the pla intiffs in this lawsuit, together

with other citizens, raised the sa me cha lleng es to the Northwe st Fore st Plan. On October

17, 2003, the par

ties’ joint moti on for voluntar y dismiss al was g rante d, pursuant to the ter

ms of a settlement a g ree ment. See Compl. [ Docke t Entry 1] ¶ 10; Def.’s Opp’n, Ex. 1 (“2003 Settlement Ag ree ment”). The 2003 Settlement Ag ree ment require d the Bur eau of L and Mana g ement to re vise the re source manag ement plans for the six wester

n Ore g on districts at issue here by Dec ember

31, 2008. Compl. ¶ 10; 2003 S ettlement Ag ree ment at 6. On Dec ember

30, 2008, the Depa

rtment of Interior a dopted six revised r esourc e manag ement plans, c ollectively known as the Wester

n Ore g on Plan Revisions, for 2.5 mill ion

acr es of B L M lands in western O reg on. Compl. ¶ 9; P ls.’ Mot. for Summ. J . (“Pls.’ Mot.”) [Docket Entry

30] at 1. The ROD approvingthe six plans incre ased a llowable annua l timber -4-harve st from the 208 million board fee t provided under the Northwe st Fore st Pl an to 502 million board f eet. Compl. ¶¶ 9, 12. The Final Environme ntal Impact Statement (“ FEI S”) complete d prior to adopting the ROD dete rmined that “[t] he re vision of resourc e mana g ement plans to allocate lands to various categ ories of use , with associated ma nag ement dire ction for planning future a ctivities on those lands, would have no impac t on list ed spec ies or cr itical habitat.” Administrative Record ( “AR”) 910 p. 94736.0951. The F EI S continued by explaining that “[t] he revision of re source manag ement plans for such purpose does not cre ate a ny leg al rig ht that would allow or a

uthorize gr ound-disturbing activities without further a g ency decision-making and complianc e with applica ble statutes, including the ESA and NEPA.” I d. Thus, beca use the FEI S determined that ther e would be “ no impact” on e ndang ere d or threa tened spe cies, B L M did not initi ate a

n ESA consultation on the Western Ore g on Plan Revisions. On Octobe r 30, 2008, af

ter the F EI S had been issued, timber company plaintiffs who had enter ed into the 2003 Settlement Ag ree ment filed a motion to enfor ce the ag ree ment in America n For est Resource Council v. Abbey , Civ. No. 94-1031 (D.D.C.), a rg uing “ that BL M’s failure to initiate ESA consultation reg ardingthe ef fec t of the propose d resour ce ma nag ement plans on threatened a

nd endang ere d specie s was a r epudiation of its implied obligation of g ood faith and fair de alingin the 2003 Settlement Ag ree ment.” De f.’s Opp’ n at 9; Def .’s Opp’n, Ex. 3, AFRC’s Motion to Enforce. T hey reque sted that the cour

t order B L M to complete all re quired ESA consultation. The cour

t denied plaintiffs’ motion. Amer ican F orest Resourc e Council v. Abbey , Civ. No. 94-1031, Orde r De ny ing Motion [Docket Entry 103] at 1. Subsequently , on J uly

16, 2009, the Acting Assistant Secreta ry of Interior f

or L and and Minerals Mana g ement issued a two- pag e memora ndum to the Acting Direc tor of the B urea u of -5-L and Mana g ement that stated: “ [b] eca use B L M’s ‘no ef

fec t’ deter

mination was leg al er

ror ba sed on the re cord be fore me and a pplicable law , Iam her eby withdrawingthe WOPRRODs eff ective immediately .” See Compl. ¶¶ 9, 13; Western O reg on Plan Revision Admini strative Withdrawal Memorandum, July

16, 2009 (“Withdrawa l Memo.”) at 2. The public wa s also notified of the withdrawa l decision on J uly 16, 2009. Compl. ¶ 13. No formal notice a nd comment per iod was provided. STANDARD OF REVIEW Summary judgme nt is appropriate under F ed. R. Civ. Pro. 56(a) whe n the pleading s and the evidenc e demonstrate that " there is no ge nuine dispute as to any materia l fac t and the movant is entitled to judgment as a matter of la

w." I n a ca se involving r eview of a fina l ag ency

action under the Administrative Procedur e Ac t, 5 U.S.C. § 706, however, the sta ndard se t forth in Rule 56(a) does not apply

beca use of the limited role of

a cour t in reviewingthe administrative re cord. See National Wi lderne ss I nst. v. United States Army Corps of Eng ' rs, 2005 WL 691775, *7 (D.D.C. 2005); F und for Animals v. B abbitt, 903 F. Supp. 96, 105 (D.D.C. 1995), a mended on other g rounds, 967 F. Supp. 2d 6 (D .D.C. 1997). Under the APA, it is the role of the a g ency to resolve f actua l issues to arrive at a dec ision that is s upported by the administrative re cord, wher eas " the func tion of the district court is to determine w hether or not as a matter of law

the evidenc e in the administrative r ecor d permitted the a g ency to make the de cision it did." Occ idental Eng ' g Co. v. I NS, 753 F.2d 766, 769-70 ( 9th Cir. 1985); see also Nor thwest Motorcy cle Ass' n v. United States Dep' t of Ag riculture, 18 F .3d 1468, 1472 (9th Cir. 1994) (" [T] his case involves r eview of a fina l ag ency

deter mination under the [APA] ; theref ore,

-6-resolution of th[e] matter doe s not require fac t finding on be half of this cour t. Rather, the c ourt' s revie w is limi ted to the administrative re cord." ). Summary judgme nt thus serves as the mecha nism for dec iding, a s a matter of law, whe ther the a g ency

action is supported by

the administrative re cord a

nd otherwise c onsistent with the APA standard of r eview. See Richard v. I NS, 554 F.2d 1173, 1177 & n.28 (D.C. Cir. 1977), cited in B loch v. Powell, 227 F. Supp. 2d 25, 31 (D.D.C. 2002), a ff' d, 348 F.3d 1060 ( D.C. Cir. 2003). Plaintiffs challeng e the July 16, 2009 withdrawa l of the Western Or eg on Plan Revision ROD under the APA as violating the re quirements of the Fe dera l L and Policy and Mana g ement Act. The APA require s that the Court "hold unlaw ful and set a side ag ency action, finding s, and conclusions" that are "a

rbitrar y , capr icious, an abuse of discre tion, or otherwise not in ac corda nce with law." 5 U.S.C. § 706(2)(A) . The " scope of revie w under

the ' arbitra

ry and ca pricious' standard is na

rrow a nd a cour t is not t o substitut e its judgme nt for that of the ag ency ." Motor Vehicle Mfrs. Assn. of U .S., I nc. v. State F arm Mut. Auto. I ns. Co., 463 U.S. 29, 43 (1983). The court must be satisfied that the ag ency has " ' examine[ d] t he re levant data and ar ticulate[d] a satisfac tory

explanation for its action including a ra tional connec tion between the fac ts found and the choice made.' " A lpharma, Inc. v. L eavitt, 460 F.3d 1, 6 ( D.C. Cir. 2006). The a g ency ’s decisions ar e entitled to a “ presumption of re g ularity ,” Citiz ens to Preser ve Ove rton Park, Inc. v. Volpe, 401 U.S. 402, 415 (1971), a nd althoug h “inquiry

into the fac ts is to be searc hing a nd

car eful, the ultimate standa rd of r eview is a

narr ow one,” id. at 416. The Court' s review is confine d to the administrative re cord, subjec t to lim ited exceptions not applicable he re. See Camp v. Pit ts, 411 U.S. 138, 142 (1973) (" [T] he foc al point for judicial re view should be the administrative re cord a lrea dy in exi stence , not some new re cord ma de initially in the revie wing -7-court." ). DISCUSSIO N

Plaintiffs assert five challeng es to defe ndant’s Jul y 16, 2009 withdrawa l of the Western Ore g on Plan Revision R OD. Plaintiffs alleg e that def endant violated the FL PMA, that defenda nt violated the rule making proce dures unde r the APA, that de fenda nt violated the public notice provision of the F L PMA, 43 U.S.C. §1712(f), that defe ndant’s bre ach of the 2003 Settlement Ag ree ment that established a D ece mber 31, 2008 de adline for revising the re source manag ement plans was a

rbitrar y and ca pricious, and that de fenda nt’s “leg al er

ror” explanation was not rationally connec ted to the Secr etar y ’s dec ision to completely withdraw the approve d RODs. As a thre shold matter, the Secr etar y argues that plaintiff lac ks standing to r aise these claims. This jurisdictional issue will be addre ssed first and, f inding standing , the Court will then addre ss plaintiffs’ cla ims. I. Stand ing Article I I I of the U.S. Constitut ion "limits the 'judicia l power' of the United States to the resolution of ' case s' and ' controve rsies,' " V alley For g e Christian Coll. v. Am. United for Separation of Church and State, Inc., 454 U.S. 464, 471 (1982), a nd the doctrine of standing

serve s to identify

those " ' Cases' and ' Controversies' that are of the justiciable sort r efe rre d to in Article I I I ," L

ujan v. Def

ender s of Wildl ife, 504 U.S. 555, 560 (1992) . "A s an aspe ct of justiciabilit y , the standing question is whether the plaintiff has ' alleg ed such a persona l stake in the outcome of

the controve rsy ' as to war rant invocation of fede ral-c ourt jurisdiction and to justify exercise of

the cour t's r emedial powe rs on his behalf." Warth v. Seldin, 422 U.S. 490,

-8-498-99 (1975) (quoting Ba ker v. Car r, 369 U.S. 186, 204 (1962)) ; see a lso Si err a Club v. Morton, 405 U.S. 727, 731-32 (1972). Standing doc trine enc ompasses " both constituti onal limitations on fede ral-c ourt jurisdiction and prudential limitations on it s exercise." Warth, 422 U.S. at 498. To establish the "ir reduc ible constitutional mi nimum of standing," a plaintiff must alleg e (1) an " injury in fac t," define d as " an invasion of a leg ally protec ted intere st which is (a) c oncre te and pa rticularized," and (b) "a ctual or imminent, not conjec tural or hy pothetical" ; (2) " a ca

usal conne ction betwee n the injury and the c onduct complained of "; a nd (3) a likelihood "that the injury will be redr essed by a fa vorable decision." L

ujan, 504 U.S. at 560-61 (inter nal quotation marks and c itations omitted). I n order

for a n injury to be " concr ete a

nd particula

rized," it must "a ffe ct the plaintiff in a per sonal and individual way ." I d. at 561 n.1. Consequently , a plaintiff doe s not state "a n Article I I Icase or controve rsy " if he does no more than ra ise a " g ener ally available g rieva

nce about g overnme nt - claiming only harm to his and eve ry

citizen's intere st in proper a pplication of the Constitut ion and laws." I d. at 573. The re quirement that the injury be " fairly trac eable " to the de fenda nt's c onduct is one of

causation. I n other wor ds, is the challeng ed ac tion of the defe ndant what c aused the injury alleg ed? See Shay s v. Fe d. Election Comm'n, 414 F .3d 76, 83 (D.C. Cir. 2005). The third a nd final showing , that of re dressa bility , require s a plaintiff to establish that a f avora ble dec ision on the merits of his claim will likely ameliorate the har

m alleg ed. I d. Although the se two conc epts often ove rlap to some deg ree , see D y nalantic Corp. v. De p' t of Def ense, 115 F .3d 1012, 1017 (D.C. Cir. 1997) (obse rving that "r edre ssability and tra cea

bility overla p as two sides of a

causation coin") , "it is important to keep the inquirie s separ ate [so that] the ' redr essability ' -9-component [can] focus on the r equeste d relief ." A llen v. Wright, 468 U.S. 737, 753 n.19 (1984). L ike the injury

require ment, these two e lements of the standinginquiry "a ssure that prope r par

ties have br oug ht their dispute to the proper branc h of the fe dera l gove rnment." Florida Audubon Soc' y v. Be ntsen, 94 F.3d 658, 663 ( D.C. Cir. 1996) (en ba nc). " Causation," the D.C. Circuit has explained, "f

ocus[es] on whether a pa

rticular pa

rty is appropriate; redr essability , on whether the forum is." I d. at 664. A. I njury

in Fac t The Sec reta

ry contends that plaintiffs have fa iled to establish the leg al re quirements for standing . Her e, plaintiffs a lleg e ec onomic injury due to potential lost tim ber sa les, environmenta l injury due to alleg ed incr ease d risks of wildfire, dise ase or insect infesta

tion, and proce dural injury beca use of a lost opportunity

to comment on the withdraw al dec ision. P ls.’ Opp. to Def .’s Cross-Mot. for Summ. J . & Re ply in Support of Pls .’ Mot. for Summ. J . (“Pls.’ Opp’n” ) at 6. Wit h respe ct to economic ha rm, plaintiffs alleg e, and suppor t with severa l affidavits, that “the additional volume of annua l timber sales will signific antly benef it all of the plaintiffs” a

nd the withdrawa l of the ROD that incr ease d the annua l allowable sa le quantity of timber “c aus[es]

curr ent and thre atene d injury to the plaintiffs.” Compl. ¶¶ 12, 14. Ec onomic harm is a “ca nonical example of injury in fac t sufficient to establish standing .” N. Car olina Fisher ies Ass’n v. Gutierr ez, 518 F. Supp. 2d 62, 82 (D.D.C. 2007); Mountain States L eg al Found. v. Glickman, 92 F .3d 1228, 1233 (D.C. Cir. 1996) (“ Gover nment acts c onstricting a

firm’s supply of its main raw material c lear ly inflict the constitutionally nece ssary

injury .”). The D.C. Circuit in Mountain St ates re

jected a ny require ment that a timber c ompany must have a r ight to a f

eder al timber contra ct, and c oncluded that a timber company

(in all respe cts similar to the timber -10-company

plaintiffs here ) suffe red a n economic injury

in fac t when its logg ing ope rations wer e curta iled by

a ROD that limited timber harve sting. That decision is instructive here , and the economic ha

rm alleg ed by

plaintiffs is also a suffic ient injury in fac t under Mountain States. Plaintiffs’ alleg ed envir onmental injuries also satisfy the injury -in-fa ct re quirement, a s the D.C. Circuit has allowed standingin environmental-ha rm ca ses base d on an alleg ed incr ease d risk of har

m, such as incr ease d risk of for est wildfires. See Natura l Res. Def. Council (“ NRDC”) v. EPA, 464 F.3d 1, 6 (D .C. Cir. 2006); Mountain S tates, 92 F .3d at 1234-35. “ [B]ecause environmenta l injuries are often proba bilist ic, the Circuit has ‘c autioned that this cate g ory of injury may be too expansive.’” Williams v. Dist. of Col umbia, 530 F.Supp. 2d 119, 126 (D.D .C. 2008) (quoting NRDC, 464 F.3d at 6) . “Were all purely speculative ‘incre ased r isks' de emed injurious, the entire re quirement of a ctual or imminent injury would be re ndere d moot, because all hy pothesized, nonimm inent ‘injuries' could be dr essed up a s ‘incre ased r isk of injury .’ We there fore g ener ally

require that petitioners demonstrate a ‘substantial proba bility ’ that they

will be injured.” NRDC, 464 F.3d at 6. Thus, the Circ uit allows standing ba sed on environme ntal harm “ when ther e wa s at least both (i) a substantial ly incre ased r isk of harm a

nd (ii) a substantial probability

of har m with that increa se take n into account.” Public Ci tiz en, Inc. v. Na t'l Hig hway Traf fic Safe ty Admin., 489 F.3d 1279, 1295 (D .C. Cir. 2007) (citingMountain States, 92 F.3d at 1234-35) ( emphasis in orig inal). The Court’s a

naly sis in Mount ain States is ag ain instructive her e. The re, the plaintiffs broug ht suit t o preve nt the For est Service from implementing a dec ision to l imit t imber harve sting in a national forest. 92 F .3d at 1231. The Mountain States plaintiffs c ontended that the For est Service ’s dec ision to select an alter native that allowe d less logg ing “ cre ate[d] an -11-incre ased r isk of cata strophic wildfire c ompare d to other alter natives,” suppor

ting this claim by aff idavits and the environme ntal impact statement. I d. at 1234. The e nvironmental impact statement included “ a table c omparing the re spective e ffe cts of ea ch propose d alternative’s perc ent re duction in ‘fuel loading ’ – i.e. tre es, dea d and alive – a s the g aug e of its impact on wildfire r isk.” I d. The table projec ted that the F orest Servic e’s c hoice would r educe high r isk fuels by 5.4%, and that the timber companie s’ desire d choice projec ted a 14.2% reduc tion. I d. The c ourt conc luded that “the pote ntial destruction of fir e is so sever e that re latively modest incre ments in risk should qualify for standing .” I d. at 1235. Thus, the D.C. Circuit found standing wher e the plaintiffs showe d both a substantial incre ased r isk of injury and a substantial probability

of har m. Her e, plaintiffs lac k the pre cise statistics reg ardingwildfire r isk, but nonetheless alleg e that the withdraw al dec ision, which curtails log g ing in the sa me way as the c halleng ed dec ision in Mountain St ates, incr ease s a similar risk of wildfire . They also demonstrate that they would be injured by

any wildfires be cause they

live, work, a

nd own land adja cent to the “ [areas] g overne d by

the log g ing de cisions under re view.” See id. at 1234; acc ord Public Citi zen, 489 F.3d at 1296 (noting the importance that the injury of incre ased r isk arise “ in the context of environmenta l harm to individuals in a specific g eog raphic are a”) . Henc e, the a sserted environmenta l harm her e is a suff icient injury -in-fa ct under Mountain States. B. Causation Plaintiffs’ injury

also must be "f

airly trac eable " to the de fenda nt's c onduct. Causation demands “ a ca

usal conne ction betwee n the injury and the c onduct complained of ” or, in other

-12-words, “the injury has to be fa irly

trac eable to the challeng ed ac tion of the defe ndant, and not the result of the inde pendent a ction of some third par ty not before the cour

t.” Shay s v. Fe d. Election Comm'n, 414 F .3d 76, 83 (D.C. Cir. 2005). Plaintiffs alleg e that the ha rm is cause d by

the Secre tary ’s dec ision to wit hdrawthe ROD and thus that plaintiffs’ injurie s are trac eable to defe ndant’s ac tions. S ee N . Carolina F isheries, 518 F . Supp. 2d at 82. This satisfies the second require ment for standing

. C. Redressibility Def endant’ s most persuasive a rg ument that plaintiffs lack standing is that reinstating the ROD at issue her e would not re dress plaintiffs’ injuries. The Sec reta ry asser ts that BL M

resour ce ma

nag ement plans a

re br oad and pr og rammatic, a nd do “not g uara

ntee a ny specific level of timber ha

rvest or a ny other site-spe cific ma

nag ement ac tivity .” De f.’s Opp. at 20; Def’s Reply [Docket Entry

43] at 16-17. Hence , defe ndant ar g ues, re source manag ement “pla ns themselves ar e g ener ally

unrevie wable; it is only

specific actions implementingthe plans that ar e subject to judicial scrutiny .” See F und for Animals v. B urea u of L and Mg mt, 460 F.3d 13, 21 (D.C. Cir. 2006)). Ultimately , defe ndant maintains that the re medy plaintiffs reque st would not redr ess their a lleg ed injuries bec ause “ the link betwee n the re instatement of the [ROD] and actual incre ased timber ha

rvests [is] too attenuated.” Def .’s Reply at 10. Even if the ROD was reinstated, the Secre tary

asser ts, “many other fa ctors” - - such a s compliance with the ESA, prepa ring appropr iate timber sale are as, and a dvertising for bids -- “will impact whethe r, whe n, and how much timber

harve st actually

occur s on BL M timber lands.” De f.’s Reply at 9. The Sec reta

ry relies on Nor

ton v. Southern Utah Wilderness Alliance (“SUWA”), 542

-13-U.S. 55, 69-70 (2004), w hich conc luded that B L M’s land use plans a re “ a pre liminary

step in the

overa ll process of ma

nag ing public la

nds” and that a plan “is not a f inal implementation decision on actions which r equire further specific plans, proce ss steps, or dec isions under specif ic provisions of law and r eg ulations.” SUWA, 542 U.S. at 69-70; see also 43 C.F.R. § 1601.0-5( k). L and use pla

ns descr ibe “f

or a pa rticular a rea , allowable use s, g oals for f uture c ondition of the land, and spe cific ne x t steps.” W. Org . Of Res. Councils v. Bur eau of L and. Mg mt, 591 F. Supp. 2d 1206, 1241 (D. Wy o. 2008) (c iting 43 U.S.C. § 1732(a) . The ROD he re, the Secre tary contends, “ did not approve a ny specific timber sale,” there is “no g uara ntee” that the g overnme nt will offer the incre ased a llowed sale qua ntity , and the r einstatement of the ROD “would not

ensure that plaintiffs would have incre ased timber volume or incre ased oppor

tunity to bid on timber contra cts.” De f.’s Opp’ n at 21. Some courts have been pe rsuade d by defe ndant’s re dressibility argument in fac tually simil ar situations. I n California F orestry Ass’n v. Thomas, 936 F . Supp. 13 (D.D.C. 1996), the district court found that plaintiff timber companies la cked sta

nding to c halleng e the imposition of interim g uidelines that limit ed log g ing in spe cific pr otected a rea s of owl habitat. See 936 F

. Supp. at 16. The cour

t rea soned that it was “mor e spec ulative than likely ” that “the ir injuries would be re dresse d by

a fa vorable decision” be cause the “F orest Servic e could still, independe ntly , prec lude the Plaintiffs from c utting down a ny tree s around the ow l habitat.” I d.. at 18. Other

case s outside this C ircuit have ruled that timber c ompanies lac ked standing to challeng e F orest Servic e rule s beca use their ha

rm was not re dressa

ble. See Wy oming Sawmills, I nc. v. U.S. For est Service , 179 F. Supp. 2d 1279, 1299-1300 (D . Wy o. 2001), af f’d, 383 F .3d 1241 (10th Cir. 2004) (rulingthat timber company plaintiffs’ har

m was not redr essable a

nd that -14-they

lacke d standing beca

use “[e]ven if the incr ease d possibili ty of for est fire was a

n injury in fac t, striking down the [historic prese rvation plan] would not decre ase that risk [ of fire ] because it would not guar antee that the NF S would gr ant log g ing c ontrac ts”); Reg ion 8 Fore st Serv. Timber Purcha sers v. Alc ock, 993 F .2d 800, 808 (11th Cir.1993) (standingdenied be cause relief reque sted by

timber g roups -- se tting aside temporar y , environmenta lly -protec tive measure s and returningto previous policy -- wa s too speculative)

. But in Mountain States, the D.C. Circuit reve rsed the district c ourt’s ruling that timber companies la cked sta

nding be cause their ec onomic and envir onmental injuries wer e not redr essable. 91 F .3d at 1233. Ther e, plaintiffs ha d asked the court to orde r the F orest Servic e to selec t a proposed a lternative pla n that would permit incre ased log g ing. See id. The district court had rule d that the plaintiff’s injuries would not be r edre ssed bec ause the alternative plan considere d by

the For est Service “would run a foul of the Enda ng ere d Species Ac t” and would not nece ssarily

preve nt wildfires. I d. The D.C. Circuit clar ified that it was improper to “allow [a] merits defe ct in plaintiffs’ cla im to defeat their standing ,” whe n the prope r “r edre ssability inquiry was simply

whether , if plaintiffs sec ured the relief they soug ht, it would redress their injury .” I d. “[T] he alleg ed impairment to re dress stem[med] not from a de fec t in the court’s institutional power to order a

specific reme dy

-- [issuing an or der that reduc ed log g ing c utbacks] -- but mere ly from the inter

play of var ious statutes bearing on the substantive validity of the F orest Servic e decision.” I d. at 1234. Her e, as in Mountain States, the Sec reta ry cannot point to a “de fec t in the court’s instit utional power to orde r a spe cific r emedy ,” id., and instea d identifies a number of steps require d betwee n the re instatement of the ROD a nd approva l of a spec ific timber har vest. -15-Ultimately , plaintiffs may never obtain the amount of timber of fer ings state d in the Dec ember 2008 ROD bec ause, a fter E SA consultation, the timber harve st may not happen, or

someone e lse could win the bid. B ut “[w] hat re lief (if a ny ) plaintiffs’ de serve is a question that is bound up with the merits and that lies beyond the scope of the standinginquiry .” N. Car olina Fisher ies, 518 F. Supp. 2d at 84. “[E]ven if the re lief that plaintiffs ultimately obtain constitutes a ‘Py

rrhic’ victory , the Court could awa rd them re lief that would re move the sourc e of the ir injury .” I d. (interna l citiations omi tted); see a lso Mountain St ates, 92 F .3d at 1234 (“ [T] he substantive impact of the ESA is not a re medial g ap at a ll; to t rea t it as an impairment of re dressibility would seeming ly

allow any

merits defe ct in plaintiffs’ cla im to defeat their standing .”). H ence , beca use the Court can order

the re instatement of the De cembe r 2008 ROD, the withdra wal of w hich is the alleg ed sourc e of the ir injury , the Court possesses the a uthority to redre ss plaintiffs’ injury

. Plaintiffs also assert a

proce dural injury , and the r edre ssibili ty require ment for pr ocedur al injuries, when c ompare d to constituti onal injuries, is relaxed. See L ujan, 504 U.S. at 572 n.7 (“The person who ha s been a ccor ded a pr ocedur al rig ht to protect his concr ete inter ests can a ssert that rig ht without meeting a ll the normal standar ds for re dressa bility and immediacy .”). Rece ntly , howeve r, the Supreme Court limi ted Article I I Istandingfor those a sserting a proce dural injury , explaining that the “de privation of a pr ocedur al rig ht without som e conc rete interest that is aff

ecte d by the depr ivation -- a pr ocedur al rig ht in vacuo -- is insufficie nt to create Article I I Istanding .” Summers v. Ear th I sland I nstitut e, 129 S. Ct. 1142, 1151 (2009). But this limit ation does not apply

to plaintiffs here , as they have a sserted c oncre te intere sts (economic and envir onmental har

ms) and alleg e only

in addition that they

wer e denie d an opportunity to comment on the withdra

wal dec ision. P laintiffs nee d not “establish with any cer tainty ” that if the
-16-proce dural de fec t is remedied, they will obtain the timber offe ring s they seek, se e L

ujan, 504 U.S. at 572 n.7, beca

use as the D .C. Circuit commented in Mountain States, “eve n forc ing the For est Service to rethink the issue would have some cha nce of aff ectingthe cutbac ks,” 92 F .3d at 1233. Plaintiffs establish standing be cause they have suf ficiently supported their c laims that “the relief soug ht could, if g rante d, reduc e the pr obability ” of injury -- he re, e ither ec onomic loss due to enhanc ed timber sale s or the envir onmental har m of wildfires. Mountain States, 92 F .3d at 1234. D. Prudential Standing Finally , Plaintiffs must establish prudential as well as c onstitut ional standing . The “question of standing‘involves both constitutional li mitations on federa l-court jurisdiction and prudential limitations on it s exercise.’” Nat’l Ass’n of Home B uilders v. U.S. Army Corps of Eng ineer s, 417 F.3d 1272, 1287 (D .C. Cir. 2005) (quoting B ennett, 520 U.S. at 162)) . Prudential standing require s “that a pla intiff’s g rieva nce must ar g uably

fall within the zone of intere sts protec ted or re g ulated by

the statutory

provisions.” Be nnett, 520 U.S. at 162; Nuclea r Ener g y I nst. v. EPA, 373 F.3d 1251, 1266 (D.C. Cir. 2004). Plaintiffs “must there fore show also that the interest they

seek to prote ct fa lls ‘arguably within the zone of interests to be prote cted or regulated by ’” the FL MPA. Clarke v. Secur ities I ndus. Ass’n, 479 U.S. 388, 396 (1987). And “on any g iven claim the injury

that supplies constituti onal standing must be the same a s the injury within the requisite ‘zone of inter ests’ for purposes of pr

udential standing .” Mountain States, 92 F.3d at 1232. “The zone of inter est test, howeve r, is intended to ‘e x clude only those whose intere sts are so mar g inally rela ted to or inconsistent with the purposes implicit in the statute that it cannot re asonably be assumed that Congre ss intended to permit the suit.’” Nat’l

-17-Ass’n of Home Builder s, 417 F.3d at 1287.

The for est manag ement statutes “make cle ar a cong ressional intention that the national fore sts should pl ay

a sig nificant role in supply ing timber , an intere st that firms eng ag ed in logg ing a nd rely ing on the national fore st as their primar y source seem we ll suit ed to adva nce.” Mountain States, 92 F.3d at 1236. Thus, plaintiffs a re w ithin the z one of inter ests for pur poses of prudential standing , they

have e stablished standing , and henc e they are entitled to judicial review of their c laims.

II. F ederal Land Policy and Managem ent Ac t Plaintiffs contend that the F L PMA does not gr ant the g overnme nt substantive or proce dural a

uthority to “withdraw

a duly adopted r esourc e mana g ement plan,” Pls. Mot . at 21, and that the Sec reta

ry ’s ac tion was there fore arbitra ry , capr icious, and in excess of statutory authority , see 5 U .S.C. § 706. The FL PMA gove rns the deve lopment of BL M resourc e manag ement plans. 43 U.S.C. § 1712. I t states that the “Sec reta ry shall, with public involvement and consistent with the ter ms and conditions of this Act, develop, maintain, a nd when a ppropriate , revise la

nd use plans.” § 1712( a). O f par ticular importanc e her e, the F L PMA provides that the “ Secre tary shall allow an opportunity for public involvement a nd by regulation shall establish proce dures, including public hear ings w here appropr iate, to g ive Fe dera l, State, and loca l gove rnments and the public, a dequate notice and oppor tunity to comment upon and participate in the formulation of pla ns and prog rams re lating to the ma nag ement of the public lands.” § 1712(f

). Pursuant to these re quirements, the De partment of the I nterior ha s promulga ted public

-18-participation reg ulations that pertain spec ifically to the development of

resour ce ma

nag ement plans. 43 C.F.R. §§ 1610.1-8. The se re g ulations establish a public participation process that includes publishing a

notice in the F eder al Reg ister and loca l media “[w]hen BL M starts to prepa re, a mend, or re vise resour ce ma nag ement plans” and “pr oviding oppor tunity for participation in the resourc e mana g ement plan pr epar ation.” I d. The re g ulations “clea rly require [] a for

mal plan amendme nt any time a proposed a ction chang es a ‘ term, condition, or decision’ of

a re source manag ement plan.” Klamath Siskiy ou Wil dlands Center v. B oody , 468 F.3d 549, 556- 57 (9th Cir. 2006) (quoting 43 C.F.R. § 1610.5); see a lso Seattle Audubon Society v. Robertson, 1991 WL180099, at *9 (W.D. Wash. 1991) (re jectingFor est Service ’s adoption of a ne w manag ement plan f or for ests in the rang e of the northern spotted ow l throug h a Fe dera l Reg ister Notice w ithout compliance with the public par ticipation require ments under the National F orest Mana g ement Ac t). I n Klamath Siskiy ou, BL M argued that policy chang e that re classified the status of a re d tree vole was pla

n “maintena

nce” that did not require f ormal proc edure s to amend the ROD. I d. at 556. The c ourt disag ree d, noting that the r ecla ssification was ba sed on “ne w data” and “re vised policy ” and c ould not “rea sonably be def ined as a ny thing other

than a c hang e in a ‘ term or condition’ in the re source manag ement plan.” I d. at 560. Ther efor e, bec ause B L M had fa iled to comply with the FL PMA procedur es to amend the manag ement plan, the de cisions permitting timber sales that c ould affe ct the re d tree vole wer e set a side. I d. at 556. Her e, the pa rties also do not dispute that the Secre tary did not follow the FL PMA procedur es whe n he withdre w the ROD on J uly

19, 2009. The g overnme nt maintains, however , that it had “inher ent authority ” to

rec onsider and w ithdraw the ROD due to “leg al er ror.” Def .’s Reply at 19. The Sec reta

ry ’s
-19-argument is not persuasive.

A. I nhere nt Authority A fe dera l ag ency

“litera lly has no powe r to ac t . . . unless and until Congre ss confe rs power upon it.” Am. L ibrary

Ass’n v. F CC, 406 F.3d 689-98 (D.C. Cir. 2005) ( quoting L ouisiana Pub. Serv. Comm’n v. FCC, 476 U.S. 355, 374 (1986)). Unde r the F L PMA, the Secre tary can “ develop, maintain [and] . . . revise” la nd use plans. § 1712(a ). The D epar tment of the I nterior ha s further

established by

regulation proce dures to re vise and amend such plans, se e 43 C.F.R. § 1610.5, but those regulations do not specifica lly discuss an ag ency ’s authority to “withdra w” a plan. Other

courts have considere d a plan “ withdrawa l” to be equiva lent to a plan modification that must procee d throug h traditional regulatory proce dures. See Ba

ker v. U .S. Dep’ t of Ag riculture, 928 F . Supp. 1513, 524 (D. I daho 1996) ( ruling that ag ency ’s authority to modify a plan of operation – by

withdrawing

its prior approva l – was spec ifically addre ssed and circ umscribed by

regulation). The Sec reta

ry first argues that, bec ause the FL PMA lacked “ regulations on the prec ise point presented by

the def iciently approve d [R OD], the Secre tary had inher ent authority

to
corr ect the le g al er

ror a nd reinstate the pree x isting [Resource Ma nag ement Plan].” Def.’ s Reply at 20. He points to a number of ca ses wher e cour

ts have found a

n ag ency to possess authority

to take a ction reve rsing a prior de cision. See, e.g ., Boe sche v. U dall, 373 U.S. 472, 476-77 (1963); Be lville Mini ng Co. v. United States, 999 F.2d 989 (6th Cir. 1993); Prieto v. United States, 655 F. Supp. 1187, 1191 (D.D .C. 1987) (discussing inhere nt authority in the administrative adjudication conte x t, but finding that it was “ completely clea r that the Sec reta

ry exceede d his

-20-authority

in rec onsidering and in re voking the trust status of plaintiff' s land”). U ltimately , howeve r, these c ases do not support the Sec reta ry ’s “inher ent authority” to withdrawthe Western Ore g on Plan Revisions R OD abse nt compliance w ith the FL PMA’s formal notice and comment proce eding s. I n Boe sche v. U dall, the Supreme Court rule d that the Secr etar y “under his ge nera l power s of manag ement over the public lands” ha d authority to administratively

canc el a miner al lease that was de termined to be inva lid at its i nception. 373 U.S. at 476-77. B ut in finding this g ener al authority , the Court considere d how the judicial proc ess was the exclusive method to

corr ect a n administrative er

ror unde r the Miner al L easingAct. I d. at 484. The Court’s r uling wa s expressly limit ed to “the e x ige ncies of the g ener al situation and the circ umstances of this particula r ca se” a nd noted that judicial safe g uards we re in plac e to “not open the door to administrative abuse s.” I d. at 485. Her e, unlike in B oesche , specific administrative proc edure s exis t under the F L PMA to amend a re source manag ement plan, so the a g ency need not r esort to judicial proce eding s to amend a mistake. I nstead, Interior ha s specific regulatory authority to amend its own dec isions by followingproce dures that r equire public participation. I n Be lville Mini ng , the Six th Circuit “conclude [d] that the Depa rtment of the Interior possessed author ity

to rec onsider an a dminist rative de termination wher ein the ag ency had

err oneously

rec og nized the exi stence of private strip mining rig hts.” 999 F.2d at 991. There , howeve r, the c ourt ruled that the Surf ace Mining Control and Rec lamation Act and its implementing r eg ulations “expressly authorized” the Sec reta

ry of the Interior to “r econside r and

reve rse . . . [his] deter

minations to t he extent that they wer e er roneous.” I d. at 997-98. The Be lville Mini ng court a lso found that the initial determination “wa s err oneous.” I d. at 999. B ut
-21-the Six th Circuit went on to observe that “[e]ven if an ag ency lacks e x press statutory

authority to
rec onsider an e arlier

decision, an a g ency

possesses inhere nt authority to rec onsider administrative dec isions, subj ect to ce rtain limitations.” Belville Mining, 999 F .2d at 998. Her e, on the other ha

nd, the Secr etar

y relies e x clusively

on “inher ent authority ” for its withdrawal decision althoug h FL PMA administrative proce dures a re in plac e to re vise (but not to withdraw) BL M resourc e mana g ement plans. And the leg al issue of whe ther the Sec reta ry ’s fa ilure to consult under the E SA prior to approvingthe ROD in Dec ember 2008 “wa s err oneous” is not proper ly befor e this Court. 1 To be sure , the Secr etar

y asser ts that the issue of “leg al er ror” in the development of the Western Ore g on Plan Revisions R OD re quires spec ial consideration by the cour t. Def.’ s Opp’n at 30. I n support of this argument, defe ndant-interve nor Pacific Rivers Council contends that FL PMA procedur es ar e not re quired in this instance be cause the Secr etar y ’s fa ilure to eng ag e in ESA consultation rende red the ROD “unlaw ful.” See Tribune Co. v. F CC, 133 F.3d 61, 68 (D.C. Cir. 1998). I n Tribune Co., the D.C. Circuit stated that it had pre viously “sug g ested (in dicta )

Be fore the Court is the question whether the Secr etar

y ’s dec ision to wit hdraw

the ROD 1 without formal proc eeding s under the F L PMA or the APA base d on his conclusion of “le g al err or” w as ar

bitrary and ca pricious or in excess of statutory authority . I ndeed, thr ee c halleng es to the B L M’s alleg ed fa ilure to consult under the ESA were filed in the U.S. District Court for the District of Ore g on shortly afte r the De cembe r 2008 appr oval of the ROD. See Ore g on Wil d v. Shepard, Civ. No. 3:09-00060 (f iled J an. 15, 2009); Pac ific Rivers Council v. Shepard, Civ. No. 3:09-00058 (filed Jan. 15, 2009); For est Serv. Emp. for Env’t Ethics v. U.S. Fish and Wildlife Serv., Civ. No. 6:09-06019 (filed Jan. 22, 2009). And seve ral plaintiffs in this case , who wer e also parties in Am. F orest Res. Council v. Abbey , Civ. No. 94-1031, that produce d the 2003 Settlement Ag ree ment, filed a motion on Octobe r 30, 2008 under the theory

of anticipatory brea ch in light of

BL M’s failure to consult under the ESA. See Civ. No. 94-1031 [Docket Entry 83] at 1-2. I n that case , the cour t ruled that the B L M’s “no e ffe ct” de termination was “ not fac ially invalid” and r efr ained f

rom an “ in-depth ana ly sis” that was prope rly befor e the c ourts of the Ninth Circuit in the above mentioned c ases. See id. [ Docke t Entry 102] at 2. -22-that wher e an a g ency is confronte d with an undisputable indication that the rule is ill eg al, either beca use of the r easoningof a Supre me Court decision or inter vening leg islation, it may be entitled, indeed oblig ated, to dec line to apply it.” I d. But Tr ibune Co. does not aid the Secr etar y here . I ndeed, the D.C. Circuit went on to expl ain that “a possibili ty [t hat a r ule is unlawful] is simply not in the same ballpar

k as a c lear

manifestation that the r

ule, without any

further inquiry , is ill eg al.” I d. Her e, the possibility that BL M’s failure to consult under the ESA wa s unlawful does not rende r the ROD “ unlawful” nor excuse the Sec reta ry ’s fa ilure to follow the F L PMA planning proce dures. The Sec reta

ry also contends that f

ollowing the F L PMA planning pr ocedur es in light of the ROD’s “ leg al def

iciencie s” improper ly

“ele vate[s] proce ss over re ason.” D ef.’ s Opp’n at 30. But c ourts often e nforc e proc edura l mandates e ven whe n an ag ency may rea ch the same dec ision afte r the re quired proc ess is completed. See Util. Sol id Waste Activities Grp. v. EPA, 236 F.3d 749, 752 (D.C. Cir. 2001) (r ejec ting “ the proposition that ag encie s may corr ect their

mistakes without comply ing w ith the APA’s proce dural re quirements” a nd requiringEPA to corre ct a word proc essingerr or in final re g ulations through notice and comment pr ocee dings) ; Tribune Co., 133 F.3d at 68 (notingthat “it is hornbook administrative law” that “an a g ency is bound by its subst antive rule s unless validly amende d or re scinded” ) (c itations omi tted). He nce, the Secre tary lacke d inhere nt authority to withdraw the 2008 ROD w ithout following the proc edure s require d under the FL PMA, and his decision to do so violated the APA.
B. Har

mless Error Finally , the Secr etar

y argues that eve n if he lac ked inher ent authority , plaintiffs wer e not

-23-prejudice d by the fa ilure to participate in FL PMA procedur es. T h e A P A 's j u d i c i a l

- r e v i e w p r o v i s i o n i n s t r u c t s c o u r t s t o t a k e " d u e a c c o u n t
. . . o f t h e r u l e o f p r e j u d i c i a l e r r o r . " 5 U
. S

. C

. § 7 0 6

. But the D .C. Circuit has a hig h standard f or “ha rmless err or” w hen ag encie s fail to comply with proce dural manda

tes. S e e C h a m b e r o f C o m m e r c e v . S

. E
. C , 4 4 3 F
. 3 d 8 9 0 , 9 0 4 ( D
. C

. C i r . 2 0 0 6 ) ( " T h [ i s ] c o u r t h a s n o t r e q u i r e d a p a r t i c u l a r l y r o b u s t s h o w i n g o f p r e j u d i c e i n

n o t i c e - a n d

- c o m m e n t c a s e s [

. ] " )

. “ N e i t h e r a s h o w i n g o f a c t u a l p r e j u d i c e n o r p r o o f t h a t t h e a g e n c y 2

w o u l d h a v e r e a c h e d a d i f f e r e n t r e s u l t i s r e q u i r e d t o e s t a b l i s h p r e j u d i c i a l e r r o r . ” A F L

- C IO v . C h a o , 4 9 6 F
. S u p p . 2 d 7 6 , 8 9 ( D
. D
. C

. 2 0 0 6 ) ; s e e a l s o S p r i n t C o r p . v . F C C , 3 1 5 F
. 3 d 3 6 9 , 3 7 7 ( D
. C

. C i r . 2 0 0 3 ) ; M c L o u t h S t e e l P r o d s . C o r p . v . T h o m a s , 8 3 8 F
. 2 d 1 3 1 7 , 1 3 2 4 ( D
. C

. C i r . 1 9 8 8 ) ( p r o c e d u r a l e r r o r c a n b e p r e j u d i c i a l " [ e ] v e n i f t h e c h a l l e n g e r p r e s e n t s n o b a s e s f o r i n v a l i d a t i n g t h e r u l e o n s u b s t a n t i v e g r o u n d s " )

. R a t h e r , t h e c h a l l e n g i n g p a r t y o n l y " m u s t 'i n d i c a t e w i t h

r e a s o n a b l e s p e c i f

i c i t y ' w h a t p o r t i o n s o f t h e [ r u l e ] i t o b j e c t s t o a n d h o w i t m i g h t h a v e r e s p o n d e d i f g i v e n t h e o p p o r t u n i t y . " G e r b e r v . N o r t o n , 2 9 4 F
. 3 d 1 7 3 , 1 8 2 ( D
. C

. C i r . 2 0 0 2 ) ( c i t a t i o n o m i t t e d )

.

" [ A ] l l t h a t i s r e q u i r e d t o d e f e a t [ t h e a g e n c y 's ] c l a i m o f h a r m l e s s e r r o r " i s a s h o w i n g t h a t t h e p a r t y
c o u l d " 'm o u n t a c r e d i b l e c h a l l e n g e '" t o t h e r u l e o n r e m a n d

. Id

. a t 1 8 4 ( q u o t i n g U t i l

. S o l i d W a s t e A c t i v i t i e s G r p . , 2 3 6 F
. 3 d a t 7 5 5 ) ; s e e a l s o S p r i n t C o r p . , 3 1 5 F
. 3 d a t 3 7 7 ( c h a l l e n g e r " m a d e a

c o l o r a b l e c l a i m t h a t i t w o u l d h a v e m o r e t h o r o u g h l y p r e s e n t e d i t s a r g u m e n t s h a d i t k n o w n t h a t t h e [ a g e n c y ] w a s c o n t e m p l a t i n g a r u l e m a k i n g " ) ; S u g a r C a n e G r o w e r s C o - o p o f F l o r i d a v . V e n e m a n , 2 8 9 F
. 3 d 8 9 , 9 7 ( D
. C

. C i r . 2 0 0 2 ) ( c h a l l e n g i n g p a r t y w o u l d h a v e r a i s e d " a d d i t i o n a l c o n s i d e r a t i o n s

. . . i n a c o m m e n t p r o c e d u r e " )

.

The Court see s no rea son that the standar d under the APA, and the c ase la w interpre ting 2 and apply ing it, should not g overn w ith respec t to the FL PMA procedur es at issue he re. -24-U n d e r t h e s e p r i n c i p l e s , p l a i n t i f f s h a v e d e m o n s t r a t e d t h a t t h e l a c k o f a p u b l i c p a r t i c i p a t i o n p e r i o d p r i o r t o t h e S e c r e t a r y ’ s w i t h d r a w a l d e c i s i o n c o n s t i t u t e d p r e j u d i c i a l e r r o r . S e e A F L

- C IO , 4 9 6 F
. S u p p . 2 d a t 8 9

. I ndeed, pla intiffs were awa re of a potential ESA def

ect, illustrated by

how the par ties to this case par

ticipated in a pr ior lawsuit to compel the B L M to eng ag e in consultation under the E SA before the final De cembe r 2008 appr oval of the ROD. See Am. For est Res. Council v. Abbey , Civ. No. 94-1031 [Docket Entry 83] at 1-2. Furthe rmore, the Secre tary asser ts, maintaining the N orthwest F orest Plan had be en conside red a s an option during the plan deve lopment that led to the adoption of the Western O reg on Plan Revisions R OD. D e f

. ’ s O p p ’ n a t 2 6

- 2 7 ; D e f’ s R e p l y a t 2 0

. B u t p l a i n t i f f s h a v e i n d i c a t e d w i t h “ r e a s o n a b l e

s p e c i f i c i t y ” t h e c o m m e n t s t h a t t h e y w o u l d m a k e t o c h a l l e n g e t h e w i t h d r a w a l o f t h e R O D o n t h e b a s i s o f l e g a l e r r o r . S e e P l s . ’ R e p l y a t 2 5 , 3 3

- 4 0

. A s e x p l a i n e d a b o v e , a l l t h a t a c h a l l e n g e r m u s t

s h o w i s t h a t i t c o u l d " m o u n t a c r e d i b l e c h a l l e n g e " t o t h e r u l e - - o r m a k e a " c o l o r a b l e c l a i m t h a t i t

w o u l d h a v e m o r e t h o r o u g h l y p r e s e n t e d i t s a r g u m e n t s "

- - o n r e m a n d

. S e e S p r i n t , 3 1 5 F
. 3 d a t 3 7 7 ;

s e e a l s o G e r b e r , 2 9 4 F
. 3 d a t 1 8 4

. P l a i n t i f f s h a v e l o d g e d a " c r e d i b l e " c h a l l e n g e , a s w e l l a s a

" c o l o r a b l e c l a i m " t h a t t h e y w o u l d h a v e p r e s e n t e d s p e c i f i c c o m m e n t s i n r e s p o n s e t o t h e d e c i s i o n t o w i t h d r a w t h e R O D d u e t o l e g a l e r r o r , h a d t h e y b e e n a f f o r d e d t h e o p p o r t u n i t y t o d o s o . S e e A F L

- C IO , 4 9 6 F
. S u p p . 2 d a t 8 9

. Nothing mor e is requir ed to establish pre judice, and he nce plaintiffs have met their burde n here

. Henc e, the Sec reta

ry lacke d inhere nt authority to withdraw the D ece mber 2008 ROD, a nd the fa ilure to comply

with proce dures unde r the F L PMA was ar bitrary , capr icious and an a buse of discre tion under 5 U.S.C. § 706(2). Althoug h “the a bsence of notice a

nd comment is not a substantive infirmity

that mandates vacatur, it nonetheless constitutes a proc edura l error of

-25-sufficie nt gr avity for the c ourt of appe als to have opte d for va catur rec ently and with some regularity .” AF L -CI O, 496 F. Supp. 2d at 89; see Envtl. I nteg rity Project v. EPA, 425 F.3d 992, 998 (D.C.Cir.2005) (va catingrule for lack of notice and c omment); I nt'l Union, United Mine Workers of Am. v. Mine Saf ety & H ealth Admin., 407 F.3d 1250, 1261 ( D.C. Cir. 2005) (same) ; Util. Sol id Waste Activities Grp., 236 F.3d at 755 (setting a side rule on this g round). This Court, consistent with other re cent c ases that a lso involved the Depa rtment of the Interior’ s repe al of ag ency rules without following mandated pr ocedur es, will vacate and r emand the Sec reta ry ’s decision to withdraw the Western Ore g on Plan Revisions R OD. See, e .g ., Nat’l Parks Conservation Ass’n v. Salazar , 660 F. Supp. 2d 3, 5 (D.D .C. 2009) (deny ing the Secre tary ’s reque st to vacate and re mand an a mendment to stream buf

fer zones reg ulations, which the g overnme nt alleg ed wa s leg ally defic ient, beca

use it would allow an e nd run ar ound APA proce dures) ; Carpenter s I ndus. Counsel v. Salazar, 734 F. Supp. 2d 126, 135-36 (D .D.C. 2010) (deny ing g overnme nt’s reque st to vacate the 2008 Critical Habitat De signation of the spotted owl while plan wa s under r eview be cause it “would allow the F eder al def endants to do what they cannot do unde r the APA, re peal a rule without public notice a nd comment, without judicial consideration of the merits”). III. Breac h of

2003 Settlem ent Agr eem ent Plaintiffs’ fourth cla im -- that the Secr etar y brea ched its 2003 Settlement Ag ree ment with plaintiffs, and that the br eac h was a rbitrar y and ca pricious and a

n abuse of

discretion -- is not proper ly befor e this Court. The APA waive s sovere ign immunity for most suits ag ainst the United States for nonmone tary relief , see 5 U .S.C. § 702, but the Tucke r Ac t forbids fede ral courts fr om gr anting decla ratory or injunctive re lief for

brea ch of c ontrac t, see 28 U.S.C. § 1491;
-26-Robbins v. Burea u of L and Mg mt., 438 F.3d 1074, 1082 (10th Cir. 2006) (“ [T] he APA does not waive sove reig n immunit y for c laims that arise out of a contra ct and that se ek spec ific perf ormanc e of the contra ct as re lief.”) ; Meg apulse, Inc. v. L ewis, 672 F .2d 959, 967 (D.C. Cir. 1982) (“ [A] n action ag ainst the United States which is at its essenc e a c ontrac t claim lies within the Tucke r Ac t and [] a district cour t has no power

to gr ant injunctive re lief.”) The APA’s w aiver of sover eig n immunit y

may not be used “ to circumve nt the jurisdictional and re medial limitations of the Tuc ker A ct.” Spec trum L easingCorp. v. United States, 764 F.2d 891, 893 ( D.C. Cir. 1985). I n Meg apulse, the D .C. Circuit ex plained that whe ther a claim is “founde d upon” a contra ct for pur

poses of the Tuc ker A ct “de pends both on the sourc e of the rig hts upon which the plaintiff base s its claim, and upon the ty pe of r elief soug ht (or appr opriate) .” Meg apulse, 672 F.2d at 968; see also Tra

nsohio Sav. Bank v. D ir., Off ice of Thrift Supervision, 967 F.2d 598, 601 (D.C. Cir. 1992) (r

uling that the district c ourt “did not have jurisdiction over [the plaintiff’s] pure c ontrac t claims” but proper ly considere d the merits of the pla intiff’s statutory and due proce ss claims ag ainst the United States). He re, pla intiffs contend that the Sec reta ry ’s withdrawa l of the ROD “put the D epar tment of I nterior in bre ach of the [2003 S ettlement] Ag ree ment,” and se ek injunctive re lief -- that the J uly 16, 2009 withdrawa l decision be va cate d. See Compl. ¶¶ 36-39. He nce, pla intiffs’ claim is based on the ir rig hts under a c ontrac t -- the 2003 Settlement Ag ree ment -- a nd is theref

ore not within the subject matter jurisdiction of this Court and must be dismissed. IV. Conclusion Havingfound that the Sec reta ry failed to follow the pr ocedur es re quired by the FL PMA
-27-when he withdrew the 2008 Western Ore g on Plan Revisions R OD, the Court nee d not rea ch

plaintiffs’ re maining a

rg uments -- that the de cision to withdraw the ROD is a “ leg islative rule” that cannot be repe aled without notice a nd comment under

the APA, and that the Sec reta ry ’s decision to withdraw the ROD bec ause of alleg ed “le g al er

ror” was a

rbitrar y , capr icious, and an abuse of discretion under

the APA. Compliance with the F L PMA public notice and pa rticipation require ments would larg ely suffice under a

n APA notice and c omment challeng e. Additionally , beca use this Court is remanding the Secr etar y ’s withdraw al dec ision, the future re cord ma y shed additional light on the r easoningof the Sec reta ry reg ardingthe Western Or eg on Plan Revisions ROD. For

the fore g oing r easons, the Court will g rant in par t and deny

in part plaintiffs’ motion for summary

judgme nt, gr ant in part a nd deny in part def

endant’ s motion for summary judgme nt, and vac ate a

nd rema nd the J uly

16, 2009 decision to withdraw the Western Ore g on Plan Revisions ROD. A separa te Orde r has be en posted on this date.

/s/ J ohn D. B ates J OHN D. B ATES United States District J udg e Date: Marc h 31, 2011

-28-