Salazar’s Withdrawal of the WOPR Vacated
U.S. District Court Judge John D. Bates ruled last week that Interior Secretary Ken Salazar acted illegally when he unilaterally and without due process withdrew the the U.S. Bureau of Land Management’s Western Oregon Plan Revision (WOPR) in July of 2009 [here].
The BLM Western Oregon Plan Revisions applied to only O&C lands, some 2 million acres in Western Oregon (less than 10% of federal forest lands in the state). The WOPR was created via a lengthy and public NEPA process and was consistent with the 2008 Spotted Owl Recovery Plan. The incoming Obama Administration withdrew the WOPR as one of Salazar’s first acts as Sec Int, however, claiming that Bush Administration officials somehow tainted the plan by failing to “follow established administrative procedure.”
Now the federal courts have ruled that Salazar “failed to follow established administrative procedure” when he nixed the WOPR without any public process at all.
Note: we and others predicted this ruling [here, here].
The lawsuit was brought by Douglas Timber Operators of Douglas County, Oregon. The Pacific River Council intervened on behalf of the Defendant, Ken Salazar.
Judge John D. Bates entire ruling is [here]. Some selected excerpts:
Plaintiffs, timber companies and trade and workers’ associations that support enhanced timber harvest in western Oregon, challenge the decision of defendant, Secretary of the Interior Ken Salazar, to withdraw the Records of Decision (”ROD”) approved on December 30, 2008, that had adopted the Western Oregon Plan Revisions for six Bureau of Land Management districts. The Secretary withdrew the ROD for the Western Oregon Plan Revisions on July 16, 2009, explaining that the December 2008 approval of the Western Oregon Plan Revisions ROD was “legal error” because the Bureau of Land Management had improperly concluded that it was not obligated to engage in inter-agency consultation under the Endangered Species Act.
Plaintiffs make five claims that the withdrawal decision was unlawful. First, they allege that defendant violated the Federal Land Policy and Management Act (”FLPMA”). Second, plaintiffs allege that defendant violated the rulemaking procedures under the Administrative Procedure Act (”APA”). Third, they claim that defendant violated the public notice provision of the FLPMA, 43 U.S.C. §1712(f). Fourth, they allege that defendant’s breach of the 2003 Settlement Agreement that established a December 31, 2008 deadline for revising the resource management plans for six western Oregon districts was arbitrary and capricious and an abuse of discretion under the APA. Fifth, and finally, plaintiffs allege that the defendant also violated the APA because the defendant’s “legal error” explanation was not rationally connected to the Secretary’s decision to completely withdraw the approved ROD. …
On December 30, 2008, the Department of Interior adopted six revised resource management plans, collectively known as the Western Oregon Plan Revisions, for 2.5 million acres of BLM lands in western Oregon. Compl. ¶ 9; Pls.’ Mot. for Summ. J. (”Pls.’ Mot.”) [Docket Entry 30] at 1. The ROD approving the six plans increased allowable annual timber harvest from the 208 million board feet provided under the Northwest Forest Plan to 502 million board feet. Compl. ¶¶ 9, 12. The Final Environmental Impact Statement (”FEIS”) completed prior to adopting the ROD determined that “[t]he revision of resource management plans to allocate lands to various categories of use, with associated management direction for planning future activities on those lands, would have no impact on listed species or critical habitat.” …
Subsequently, on July 16, 2009, the Acting Assistant Secretary of Interior for Land and Minerals Management issued a two-page memorandum to the Acting Director of the Bureau of Land Management that stated: “[b]ecause BLM’s ‘no effect’ determination was legal error based on the record before me and applicable law, I am hereby withdrawing the WOPR RODs effective immediately.” See Compl. ¶¶ 9, 13; Western Oregon Plan Revision Administrative Withdrawal Memorandum, July 16, 2009 (”Withdrawal Memo.”) at 2. The public was also notified of the withdrawal decision on July 16, 2009. Compl. ¶ 13. No formal notice and comment period was provided. …
The Secretary also contends that following the FLPMA planning procedures in light of the ROD’s [purported possible]“legal deficiencies” improperly “elevate[s] process over reason.” Def.’s Opp’n at 30. But courts often enforce procedural mandates even when an agency may reach the same decision after the required process is completed. See Util. Solid Waste Activities Grp. v. EPA, 236 F.3d 749, 752 (D.C. Cir. 2001) (rejecting “the proposition that agencies may correct their mistakes without complying with the APA’s procedural requirements” and requiring EPA to correct a word processing error in final regulations through notice and comment proceedings); Tribune Co., 133 F.3d at 68 (noting that “it is hornbook administrative law” that “an agency is bound by its substantive rules unless validly amended or rescinded”) (citations omitted). Hence, the Secretary lacked inherent authority to withdraw the 2008 ROD without following the procedures required under the FLPMA, and his decision to do so violated the APA. …
Plaintiffs have lodged a “credible” challenge, as well as a “colorable claim” that they would have presented specific comments in response to the decision to withdraw the ROD due to legal error, had they been afforded the opportunity to do so. See AFL-CIO, 496 F. Supp. 2d at 89. Nothing more is required to establish prejudice, and hence plaintiffs have met their burden here.
Hence, the Secretary lacked inherent authority to withdraw the December 2008 ROD, and the failure to comply with procedures under the FLPMA was arbitrary, capricious and an abuse of discretion under 5 U.S.C. § 706(2). …
Having found that the Secretary failed to follow the procedures required by the FLPMA (the Federal Land Policy and Management Act when he withdrew the 2008 Western Oregon Plan Revisions ROD, the Court need not reach plaintiffs’ remaining arguments — that the decision to withdraw the ROD is a “legislative rule” that cannot be repealed without notice and comment under the APA, and that the Secretary’s decision to withdraw the ROD because of alleged “legal error” was arbitrary, capricious, and an abuse of discretion under the APA. Compliance with the FLPMA public notice and participation requirements would largely suffice under an APA notice and comment challenge. …
For the foregoing reasons, the Court will grant in part and deny in part plaintiffs’ motion for summary judgment, grant in part and deny in part defendant’s motion for summary judgment, and vacate and remand the July 16, 2009 decision to withdraw the Western Oregon Plan Revisions ROD. …
Ken “Mr. Tamper” Salazar’s illegal withdrawal of the WOPR has been vacated. The political tampering by the Obama Administration of a valid public process is no longer in force. Salazar has yet to announce whether he will let the plan stand, go through a legal public process to withdraw it, or appeal the judge’s ruling.
The Bush Administration did not “tamper” with the WOPR. In fact, the politicos had little to do with it. Unlike the NW Forest Plan under Clinton that was driven almost entirely by “politicos” in the White House, the BLM’s revised plans were developed from the ground up by the resource specialists in the agency with considerable public input and collaboration with other agencies, particularly the wildlife regulatory agencies.
The position was supported by biologists in the agency and at the Department level, because the nature of “biological opinions” under 7(a)2) of the ESA, is that biological opinions require site specific knowledge of what changes to habitat would take place in a “project.” A land use plan does not provide such information. It is more in the nature of a decision on where you are NOT going to do projects, rather than where exactly the projects will occur. The ESA Handbook says that it was not appropriate to consult under 7(a)(2) on a BLM land management plan, but rather to use the 7(a)(1) type of consultation.
The USFWS and NMFS were certainly consulted extensively under 7(a)(1) of the ESA, and the biologists said that the planning decision would be a “no effect.” No biological opinion was sought because 1) a land use decision itself does not “affect” a species, the actual projects do, and 2) once the regulatory agency issued a biological opinion, the environmental groups would file a suit on it since they knew it was impossible to meet the site-specific information standards for a 7(a)(2) opinion on a land use plan decision.
One politician who tried “tampering” with the decision was OR Gov. Ted Kulongoski, who tried to misuse his authority under FLPMA to advise on the proposed plan’s consistency with state plans, in order to delay the decision past the end of Bush’s term in office by making false claims of inconsistency with state plans. However, Kulongoski failed to make a proper objection under FLPMA. The “inconsistency” he used was that the plan did not comply with the Endangered Species Act by not having a biological opinion under Sec 7(a)(2). This of course has nothing to do with any “state” plan and therefore was not a proper basis for raising an objection that would trigger a delay to “resolve” inconsistencies.
It remained for Salazar to void the WOPR without due process.