[00:00:01] Speaker 00: Case number 13-5268 at L. Swanson Group Manufacturing LLC at L. Versus Sally Jewell, Secretary of the Interior at L. Claimant Siskiyou Wildlands Center at L. Appellants. [00:00:14] Speaker 00: Mr. Toth for the Appellants. [00:00:15] Speaker 00: Mr. Rutzak for the Appellees. [00:00:22] Speaker 06: Good morning, Your Honors. [00:00:24] Speaker 06: Brian Toe from the Department of Justice, representing the Secretaries of the Interior and the Secretary of Agriculture, with me at Council table is Kristen Boyles, representing the Intervener of felons. [00:00:34] Speaker 06: I'm going to attempt to reserve a few minutes of my time for rebuttal. [00:00:37] Speaker 06: For the past 20 years, the Oregon-California Lands Act has been at the heart of challenges brought by timber industry organizations. [00:00:46] Speaker 06: The Secretary of the Interior's management of lands within the range of the Northern Sparrow and Pacific Northwest. [00:00:54] Speaker 06: But until this case, no district court has taken the extraordinary step of branding the equivalent of a writ of mandamus, compelling the Secretary to sell a set quantity of timber each year without exception in perpetuity. [00:01:08] Speaker 06: In taking that extraordinary step, the District Court also enjoined and set aside the very methodology that the Secretary uses in consulting with the Fish and Wildlife Service on effects to the northern spotted owl, and that is a process that is necessary to sell the timber that the Secretary was compelled by the Court's order to sell. [00:01:30] Speaker 06: And that neatly illustrates the dilemma that the Secretary faces in managing these lands, both for timber production and for her responsibilities to comply with environmental statutes like the National Environmental Policy Act and the Endangered Species Act. [00:01:46] Speaker 06: At the outset, there are some problems of justiciability in this case. [00:01:50] Speaker 06: The plaintiffs have not adequately demonstrated their standing with specific facts to satisfy Article 3 of the summer judgment stage, nor are there challenges to the OWL claims right for judicial review under the principles of Abbott Labs. [00:02:05] Speaker 06: We rest on the arguments in our brief on those topics. [00:02:08] Speaker 06: And although I'm happy to answer any questions about those topics, I'd like to focus the presentation this morning on two other fundamental errors in the district court's order. [00:02:19] Speaker 06: First, the claim seeking the equivalent of mandamus to compel the sale of timber does not satisfy the two essential requirements that the Supreme Court articulated in the Southern Utah case. [00:02:33] Speaker 06: And second, as to the OWL methodology, it has no direct legal consequences for any regulated entity, including timber sale purchasers, nor does it alter the legal regime to which the agencies are subject, and is therefore neither final agency action nor a legislative rule, requiring notice of comment. [00:02:53] Speaker 06: Starting with the 7061 claim, under the principles of Southern Utah, in order to make a 7061 claim viable, the statute has to support both a duty that is a specific unequivocal command, and it also has to result in a compelled relief that is discreet rather than programmatic. [00:03:16] Speaker 06: The Lands Act's volume provision here satisfies neither of those two requirements. [00:03:21] Speaker 06: Starting with the first requirement, that there must be a specific unequivocal command on the face of the statute. [00:03:27] Speaker 06: This goes back to what the Supreme Court said is the codification of traditional mandamus practice, which held that only nondiscretionary duties, ministerial duties, if you will, were forcible through its mandamus. [00:03:41] Speaker 06: Although the Lands Act contains the mandatory shell language, the clause that follows, the comma in that provision, only requires the Secretary of the Interior to sell as much timber as can be sold at reasonable prices on a normal market. [00:03:59] Speaker 06: And everything in that clause provides a capaciousness that defeats any claim that there's a specific and unequivocal duty. [00:04:10] Speaker 06: Equivocal is, after all, the synonym for ambiguous. [00:04:13] Speaker 06: And if there's any room and ambiguity in the phrasing, particularly for the Secretary of the Interior to interpret that phrasing, then that necessarily defeats a claim for the equivalent of mandamus. [00:04:27] Speaker 05: So as I understand it, you're not arguing that the Secretary has no duty under the statute, but simply that the way the Secretary carries out her duty is not subject to mandamus. [00:04:48] Speaker 05: And I understood the plaintiffs to be arguing that that may well be so. [00:04:56] Speaker 05: But at the point the Secretary has taken all of these steps and come up with a number, then there is a mandatory duty to make that amount of timber available for sale. [00:05:16] Speaker 05: So at that point, the mandatory duty kicks in, as I understand at least part of the plaintiff's argument. [00:05:23] Speaker 06: That may be their argument. [00:05:25] Speaker 06: That's not how the statute ought to work. [00:05:28] Speaker 05: But what do you think this statute is all about? [00:05:31] Speaker 06: So it does provide a responsibility for the Secretary of the Interior to declare a sustained yield figure, which should the Secretary has done. [00:05:42] Speaker 06: then the Secretary is to sell as much of that figure as can be sold at reasonable prices on a normal market. [00:05:55] Speaker 01: done something called sustained yield capacity? [00:05:58] Speaker 06: This gets confusing because there are different terms that the Secretary interprets as referring to the same quantity, which, yes. [00:06:06] Speaker 06: I mean, the statute, too, refers to both productive capacity and sustained yield capacity. [00:06:11] Speaker 06: For our purposes, we take those two to be the same. [00:06:15] Speaker 06: The additional confusion is that in the land use plans, the term allowable sale quantity is used. [00:06:22] Speaker 06: That is meant to capture the sustained yield figure. [00:06:25] Speaker 06: It hasn't always been called that. [00:06:27] Speaker 06: It used to be called the allowable cut. [00:06:29] Speaker 06: But the terminology since the Northwest Forest Plan has been allowable sale quantity. [00:06:33] Speaker 03: Is the reason why the amount specified in the finding was not sold? [00:06:44] Speaker 06: Throughout the record, there is support for the conclusion that court orders injunctions against timber sales, where the Secretary has attempted to offer timber for sale or has developed an environmental document and a decision to award timber, but has been sued primarily by environmental groups and enjoined. [00:07:04] Speaker 03: the secretary's been unable to offer that volume, sometimes offer that volume at offer sale, and sometimes it's been offered and accepted by a purchaser, but then the sale isn't joined. [00:07:26] Speaker 03: I can't say that for sure. [00:07:40] Speaker 06: In addition, there's an overlay of environmental statutes and procedures apart from the court orders. [00:07:46] Speaker 06: The court orders are enforcing requirements of these environmental laws like the Endangered Species Act [00:07:50] Speaker 06: National Environmental Policy Act that were enacted after the Lands Act but still impose a layer of procedural and substantive requirements in some cases that the Secretary has to comply with. [00:08:00] Speaker 03: Take the Endangered Species Act. [00:08:02] Speaker 03: I thought that when you came up with that number, say 45 million [00:08:07] Speaker 03: board fee to the Roseburg district, that that number takes into account the protection of the spot event. [00:08:15] Speaker 03: Is that correct? [00:08:16] Speaker 06: It did in 1995. [00:08:18] Speaker 06: Since that time there has been new information. [00:08:21] Speaker 06: There has been [00:08:23] Speaker 06: Well, that figure anticipated that timber would be awarded at a certain level and it's just never happened. [00:08:31] Speaker 06: I don't think there's any dispute that it's never happened and largely that's as a result of environmental litigation. [00:08:39] Speaker 06: It's also a result, for example, some of the plan requirements have been interpreted to require the agency to go out and survey timber sale sites for certain non-endangered, non-threatened species before they conduct timber sales to make sure those species are not present in the sale. [00:08:58] Speaker 06: That's very time consuming, very resource intensive. [00:09:03] Speaker 06: That is something that occasionally gets litigated, and the agency has tried to remedy it over time, but those attempts to amend the plan to remove those requirements have also been challenged and set aside. [00:09:14] Speaker 03: That number, the 45 million board feet, 57 million board feet, seems very large, but in fact it's just a tiny, tiny fraction of all the timber that's harvested in Oregon alone, isn't it? [00:09:31] Speaker 06: It's lower than the historic figure that has been declared before the listing of the northern spotted owl. [00:09:37] Speaker 03: I'm talking about across the entire state of Florida. [00:09:40] Speaker 06: He's not just talking about forest service. [00:09:42] Speaker 06: That I do not know, Your Honor. [00:09:45] Speaker 03: I've read a figure that says that the total harvest per year in Oregon is something in the neighborhood of [00:09:52] Speaker 03: two to four billion board feet. [00:09:57] Speaker 03: And if that's true, this number is just, I don't know what the percentage is, but it's probably less than 1%. [00:10:05] Speaker 06: Well, I don't think anybody anticipated when these land use plans were adopted 20 years ago now, that the level of timber that they had set in that declared quantity would not be able to be met in the way that it hasn't been met since that time. [00:10:20] Speaker 06: There have been attempts, I mean, one of the features of the plan that I mentioned, the survey requirements, the Secretary has attempted to remove because they pose a workability problem in getting timber sales planned and approved. [00:10:36] Speaker 06: And again, these administrative decisions to attempt to address this issue have been stopped by courts, decisions set aside, and there has been no administrative fix to this. [00:10:52] Speaker 06: Congress, of course, has been aware of this for 20 years, that the timber sale levels have been dramatically lower than were anticipated in the plan. [00:11:01] Speaker 06: And there's been no action from Congress apart from authorizing what was the secure rural schools funding as an alternative to the money that was supposed to be generated as a result of timber receipts. [00:11:13] Speaker 01: So isn't that statute an indication of Congress's understanding that the ONC Act does not actually compel the cutting of the amount of sustainable yield? [00:11:24] Speaker 06: Yeah, I believe that's right. [00:11:26] Speaker 01: I wonder why you didn't make that argument. [00:11:29] Speaker 06: Well, I mean, the Secure Rural Schools bill is mentioned in throughout the record. [00:11:34] Speaker 06: But yeah, it would be an argument that by congressional non-action that that indicated congressional intent. [00:11:41] Speaker 01: Well, it's not just a non-action. [00:11:44] Speaker 01: The purpose of that act was to recognize the fact that the environmental [00:11:48] Speaker 01: lawsuits were limiting the ability to sell, and there had to be an additional subsidy to make up for that. [00:11:55] Speaker 06: Right. [00:11:55] Speaker 06: No, that's accurate. [00:11:58] Speaker 06: And that just further demonstrates that Congress has understood that this law, as it interacts with the Endangered Species Act and the National Environmental Policy Act, has to provide some discretion for the Secretary to plan timber sales in accordance with all those other laws in attempting to meet this volume figure. [00:12:16] Speaker 01: I don't see how... I understand that argument. [00:12:18] Speaker 01: I think it's a better argument than your argument based on Southern Utah. [00:12:22] Speaker 01: I really don't see how you think this case is anywhere close to the statute and land use planning that they were talking about in Southern Utah. [00:12:30] Speaker 01: That was a statute that said, continue to manage in a manner so as not to impair the suitability of such areas for preservation as wilderness. [00:12:41] Speaker 01: That is not quite the same as saying you shall sell X amount of board feet at reasonable prices on a normal market. [00:12:50] Speaker 01: And that seems like an enormous stretch of the Supreme Court's opinion. [00:12:53] Speaker 06: Well, I think our arguments are based on the same first principles in that case, namely that there has to be a specific, unequivocal command. [00:13:01] Speaker 01: In that case, the problem was an extremely broad and vague set of commands. [00:13:06] Speaker 01: You don't actually think that this case is on force with the Supreme Court's opinion in that case, do you? [00:13:11] Speaker 06: It's not exactly. [00:13:12] Speaker 06: It's not the same statute. [00:13:13] Speaker 06: I agree that this is a different statute. [00:13:14] Speaker 06: And it makes it in a lot of ways a harder case to apply the principles of Southern Utah. [00:13:19] Speaker 06: But I think the principal is still counsel in favor of denying their 7061 claim here. [00:13:25] Speaker 06: The other aspect of Southern Utah is the programmatic nature of the relief that's compelled. [00:13:31] Speaker 06: Here, it's a volume that's at the sum of the agency's entire program. [00:13:37] Speaker 01: But it's not really. [00:13:38] Speaker 01: In that case, they were asking for programmatic relief in the classic sense. [00:13:43] Speaker 01: In this case, they're just selling, sell X amount of board fee, period. [00:13:47] Speaker 01: In other words, the judge is saying, I don't care how you do it, just sell it. [00:13:52] Speaker 01: That's pretty discreet. [00:13:53] Speaker 01: It may be wrong. [00:13:54] Speaker 01: I take your argument that that is your argument, but it's not programmatic. [00:14:00] Speaker 01: It's not saying get into the details of off-road, get into the details of all the other things that were at issue in that case. [00:14:08] Speaker 01: Here it's just one flat order by a district judge. [00:14:11] Speaker 06: It's programmatic in the sense that it compels a result that is the course of the agency's administration of the whole timber program on these lands in an entire year. [00:14:20] Speaker 06: And to play this out, I mean the problem comes in judicial management of compliance with this [00:14:27] Speaker 01: With this type of the judge doesn't have to in the judge's view He doesn't have to manage anything you do whatever you want if you don't sell this amount of amount You'll go to jail for contempt. [00:14:37] Speaker 01: Well, that's the whole thing personally No, but there are problems of impossibility secretary both secretaries. [00:14:42] Speaker 01: I assume [00:14:43] Speaker 06: There are problems in that sense of impossibility of performance and of substantial compliance that the district court would have to look at. [00:14:52] Speaker 01: Not under his view. [00:14:53] Speaker 01: He's just ordered you to do it, period. [00:14:55] Speaker 01: In his view, the statute requires you to sell this amount. [00:14:59] Speaker 01: There's no ifs, ands, or buts. [00:15:01] Speaker 01: There's no exceptions in his order. [00:15:03] Speaker 01: That's it. [00:15:04] Speaker 01: Now, there may be something wrong with that kind of order, but the problem with that order is not that it gets into the program quite the opposite. [00:15:11] Speaker 01: His whole point is to avoid any involvement in the internal affairs, sell this amount or you go to jail. [00:15:21] Speaker 06: It doesn't get into the details of managing the discretion of individual timber sales. [00:15:25] Speaker 06: That's true. [00:15:26] Speaker 06: But the Supreme Court rejected that type of approach in Southern Utah. [00:15:32] Speaker 06: The argument was made that you can just simply compel a [00:15:36] Speaker 06: discrete result and leave it to the agency to manage the discretion to get to that result. [00:15:41] Speaker 06: And the Supreme Court said that only refers to a discrete, at the end of the day, a discrete action. [00:15:48] Speaker 06: And here, where you're talking about managing compliance [00:15:52] Speaker 06: in the way of examining the sum of the agency's entire program administered throughout the year, I just think that's completely unmanageable, right? [00:16:00] Speaker 03: Let me say a few words about the AL methodology, your argument there. [00:16:04] Speaker 03: I'm not sure I follow your argument. [00:16:07] Speaker 06: So, yes. [00:16:08] Speaker 06: So the methodology is a scientific tool that the Secretary of the Interior uses. [00:16:15] Speaker 06: And when I say the Secretary, this is a staff-level paper that was developed by [00:16:18] Speaker 06: biologists from three different agencies, Fish and Wildlife Service, Forest Service, and Bureau of Land Management, to arrive at a solution to a court's decision, the Ninth Circuit's decision on quantifying incidental take as a result of these types of timber sale projects. [00:16:38] Speaker 06: And the methodology provides a way to numerically estimate the incidental take that might occur from various timber sales. [00:16:47] Speaker 06: Methodology by itself, however, doesn't impose any requirements on timber sale purchases. [00:16:53] Speaker 06: in the abstract. [00:16:54] Speaker 06: It is only through application in a particular case, in a biological opinion, for example, that it would impose any obligations whatsoever. [00:17:04] Speaker 06: And what it does there is it enables the Fish and Wildlife Service to estimate numerical take of owls. [00:17:10] Speaker 06: And that allows the timber sale to go forward without the risk of incurring liability for a prohibited take of endangered species. [00:17:19] Speaker 03: The dots where the computer model [00:17:23] Speaker 03: generates as possible owl habitat and then in the area around them they can't harvest timber from in those spots? [00:17:34] Speaker 03: Is that what happened? [00:17:35] Speaker 06: It's not necessarily the case. [00:17:37] Speaker 06: I mean that's, so the Endangered Species Act requires the use of the best available science. [00:17:42] Speaker 06: That's the statutory standard. [00:17:44] Speaker 06: And this was a tool that they developed to say, where there are no surveys, where you haven't actually gone out, check the landscape to see whether there are owls present. [00:17:53] Speaker 06: And this may be the best available information. [00:17:57] Speaker 06: And it's a model that's created from a lot of assumptions about what habitat the owl likes, what the nearest distance to the next nearest nest that you know about would be. [00:18:07] Speaker 06: And then within that, they can randomly generate locations for the LMIPE. [00:18:13] Speaker 03: Here's the question I have. [00:18:15] Speaker 03: It looks to me, if I look at it, and then I look at the definition in the APA, it looks like a rule. [00:18:21] Speaker 03: And it also appears to be final. [00:18:23] Speaker 03: The fact that it may change doesn't make it any less final. [00:18:27] Speaker 03: All rules can be changed. [00:18:30] Speaker 03: The question then becomes, is it exempt from rulemaking as an interpretive rule or an agency policy or an agency procedure which are exempt from rulemaking? [00:18:41] Speaker 03: And I'm not really finding in your brief a clear answer to what it is. [00:18:45] Speaker 03: Is it an interpretive rule? [00:18:47] Speaker 03: Is it an agency policy? [00:18:49] Speaker 03: Or is it an agency procedure? [00:18:52] Speaker 06: It's most like a statement of policy, in that it's not intended to have the force and effect of law like a legislative rule would. [00:19:02] Speaker 06: If you've already reached the conclusion that it's a rule, I think I may have... The definition of rule in the APA is just enormously broad. [00:19:11] Speaker 06: Right. [00:19:12] Speaker 06: I mean, this Court's case law, it seems like it has struggled with trying to identify the factors necessary to conclude whether something's a legislative rule or not. [00:19:23] Speaker 06: And I think there are two opinions that I think are very useful. [00:19:27] Speaker 06: One is from last summer, the National Mining Association case that Judge Kavanaugh wrote. [00:19:32] Speaker 06: And he identified the overriding concern about the final agency action inquiry and the legislative rule inquiry is whether the challenge document has effects on regulated entities. [00:19:45] Speaker 06: Legal effects, not practical effects. [00:19:48] Speaker 06: This methodology may, as a practical matter, affect future planning of timber sales, but that has to be left to a site-specific challenge in a future case. [00:19:57] Speaker 06: It's a practical effect. [00:19:58] Speaker 03: As I understand it, I mean, I asked you a while ago [00:20:00] Speaker 03: that they used this methodology to come to a hard number on the sustained yield sale, right? [00:20:12] Speaker 06: No. [00:20:15] Speaker 06: If I said that, I was incorrect. [00:20:16] Speaker 06: The sustained yield number was declared in 1995 and then adjusted in 99. [00:20:22] Speaker 06: The methodology wasn't developed until 2007. [00:20:24] Speaker 06: What are you using it for now? [00:20:27] Speaker 06: So our methodology is not used to calculate the sustained yield figure. [00:20:32] Speaker 06: It was not in existence then. [00:20:34] Speaker 06: There's another planning revision process that's underway, and it's yet to be seen how they will arrive at the figure that they propose there. [00:20:44] Speaker 03: So the figure, the 45 million, the 57 million figure is what? [00:20:52] Speaker 03: No longer valid? [00:20:54] Speaker 06: It hasn't, the agencies have not been able to meet that figure for some time now. [00:21:00] Speaker 06: And as the record demonstrates, it's largely as a result of court injunctions. [00:21:06] Speaker 01: Can I ask, maybe I've got the procedure wrong here too, but as I understood it, in 1995 or thereabouts, [00:21:13] Speaker 01: You made predictions into the future about what the average annual sustainable yield sales would be, right? [00:21:21] Speaker 01: Now in any given year, you have to make a decision about which trees you're going to cut, right? [00:21:26] Speaker 01: Yeah. [00:21:27] Speaker 01: In order to meet that or for any other reason, right? [00:21:30] Speaker 01: And every time you do that, that is a major federal action, correct? [00:21:35] Speaker 06: the individual timber sale. [00:21:37] Speaker 01: Yeah, right. [00:21:37] Speaker 01: And whenever you do that, you have to do a NEPA evaluation and you have to evaluate under the Endangered Species Act. [00:21:44] Speaker 01: Correct. [00:21:45] Speaker 01: Okay. [00:21:45] Speaker 01: And the Endangered Species Act says that each federal agency shall ensure that any authorized funded action is not likely to jeopardize the continued existence of any endangered or threatened species. [00:22:04] Speaker 01: And in fulfilling this requirement, each agency shall use the best scientific and commercial data available, correct? [00:22:10] Speaker 01: That's correct. [00:22:10] Speaker 01: And the OWL methodology is a bunch of staff scientists' view of what the best scientific and commercial data available is. [00:22:18] Speaker 06: Will likely be in any given case. [00:22:20] Speaker 01: That's right. [00:22:20] Speaker 01: Yeah. [00:22:21] Speaker 01: So in 1995, they make a bunch of predictions about what you can do. [00:22:26] Speaker 01: But when it actually comes time to cut stuff, you have to evaluate it under ESA and NEPA. [00:22:31] Speaker 01: And the way in which some staff biologists are recommending that people do it is to use the OWL methodology. [00:22:38] Speaker 06: Is that right? [00:22:38] Speaker 06: That is correct. [00:22:39] Speaker 06: That is absolutely correct. [00:22:42] Speaker 01: Are there questions from the bench? [00:22:44] Speaker 06: Thank you. [00:22:50] Speaker 02: Thank you. [00:22:51] Speaker 02: Well, first let me, I'm Mark Rutzig representing the attorneys. [00:22:54] Speaker 02: First let me try to answer some of the questions that the panel previously asked. [00:22:58] Speaker 01: Mark, Mr. Rutzig, can I ask you, here's the thing that fundamentally is an issue for me. [00:23:05] Speaker 01: The court orders, I'm reading from the court's order, defendants Salazar and his successors to sell or offer for sale the declared annual yield capacity in Medford and Roseburg districts for each year period. [00:23:19] Speaker 01: That's what he ordered, right? [00:23:20] Speaker 01: Now, he orders that and there's no provision made for whether that violates the Endangered Species Act or whether it violates NEPA to do that, right? [00:23:32] Speaker 01: He makes no provision for that. [00:23:35] Speaker 01: So is that an order to the secretary that they cannot fulfill their responsibilities under NEPA or ESA? [00:23:44] Speaker 01: They have to sell that amount in a particular year. [00:23:47] Speaker 02: It is an interpretation that the ONC Act mandates the selling of the declared annual sustained yield level. [00:23:57] Speaker 02: Regardless of the ESA or NEPA? [00:24:00] Speaker 02: That is a question that is unanswered and pretty much unasked up to this point. [00:24:07] Speaker 02: Whether there is an unalterable conflict [00:24:10] Speaker 02: between the O&C Act and other environmental statutes. [00:24:13] Speaker 01: Well, those statutes come later, right? [00:24:16] Speaker 01: The O&C Act is earlier. [00:24:17] Speaker 01: It can't be that the Secretary, that an earlier statute can order the Secretary to violate a later statute. [00:24:25] Speaker 01: Isn't that right? [00:24:26] Speaker 02: No, but it can be, this is kind of off the point, but it can be that a later general statute does not [00:24:34] Speaker 02: amend or repeal an earlier specific statute. [00:24:37] Speaker 01: Well, this is a pretty specific statute. [00:24:39] Speaker 01: The ESA says that anybody who takes an endangered species goes to jail, right? [00:24:45] Speaker 01: It's a crime, right? [00:24:47] Speaker 01: Unless there are very exceptions, including an incidental take, permit, etc. [00:24:52] Speaker 01: And if the Forest Service doesn't offer one, [00:24:57] Speaker 01: Anybody who cuts down those trees goes to jail. [00:24:59] Speaker 01: Now that seems like a very specific requirement. [00:25:03] Speaker 01: Likewise, NEPA says you can't undergo a major federal action without going into a detailed evaluation of the environmental impact, correct? [00:25:16] Speaker 02: Well, not exactly because that's true for major federal actions, but in general the federal agencies do not consider individual timber sales to be [00:25:24] Speaker 02: a major federal action, so they do an environmental assessment rather than an environmental assessment. [00:25:31] Speaker 01: I'll leave out the specifics of this, but that's right, they have to do an environmental assessment. [00:25:36] Speaker 01: That's very specific also. [00:25:38] Speaker 01: So you have a series of subsequent rules of statutes that seem to be completely inconsistent with the district court's [00:25:47] Speaker 01: And after all, what you are asking for is an order to compel agency action unlawfully withheld, right? [00:25:55] Speaker 01: And can it be unlawful to withhold action where if you take the action that itself would be unlawful? [00:26:05] Speaker 01: It's not really what the court's ordering here, that the agencies take an unlawful action. [00:26:11] Speaker 01: That is, they enforce one statute in violation of two subsequent statutes. [00:26:16] Speaker 02: The answer, unequivocally, is no. [00:26:18] Speaker 01: Tell me why. [00:26:19] Speaker 02: That's what's bothering me. [00:26:19] Speaker 02: The reason is that the Bureau of Land Management has never claimed and cannot claim [00:26:26] Speaker 02: that they are incapable of finding enough acres of trees to offer up 57.1 million board feet on the Medford District and 45 million board feet on the Roseburg District. [00:26:39] Speaker 02: They don't try. [00:26:40] Speaker 01: Well, that's the truth. [00:26:41] Speaker 01: There's no evidence that we have in a record one way or the other about that. [00:26:45] Speaker 01: Yes, there is. [00:26:46] Speaker 01: That they don't try? [00:26:47] Speaker 02: Well, yes, there is. [00:26:48] Speaker 02: Because what the record shows is that the Bureau of Land Management sets a non-binding target, but nonetheless a target. [00:26:57] Speaker 02: And every year over the period that we have looked at from 2004 to 2013, every year without exception, the target has been well below [00:27:09] Speaker 02: the annual sustained yield level. [00:27:12] Speaker 02: They haven't tried. [00:27:13] Speaker 01: Right, but they allege in declarations and in the various of their papers that there have been 10 years worth of injunctions by district courts and they allege that they need to do these environmental assessments and whether they use all methodology or something else, they have to do a study. [00:27:38] Speaker 01: They allege all those things. [00:27:40] Speaker 02: All right. [00:27:41] Speaker 02: Well, first of all, there are no declarations submitted from the government. [00:27:46] Speaker 01: Well, there's Mr. Perez's declaration. [00:27:48] Speaker 02: Mr. Perez's declaration after the fact. [00:27:50] Speaker 02: Right. [00:27:51] Speaker 02: But here's what they didn't say. [00:27:54] Speaker 02: And this responds to Judge Randolph's question. [00:27:57] Speaker 02: The injunctions are actually irrelevant to the issue here because when the BLM sells a timber sale, they count it even if it gets enjoined. [00:28:12] Speaker 02: And if they simply offer a sale and it gets enjoined, they count it as offered. [00:28:20] Speaker 02: So injunctions have nothing to do [00:28:23] Speaker 02: with meeting the level set in the ONC. [00:28:27] Speaker 01: I didn't see that. [00:28:28] Speaker 01: I must have missed that. [00:28:29] Speaker 01: Where is that point made? [00:28:34] Speaker 01: Well, it's in the record. [00:28:36] Speaker 01: I could find it in the record. [00:28:37] Speaker 01: Yeah, if you would. [00:28:38] Speaker 01: I appreciate it. [00:28:39] Speaker 01: But before they can offer, even before they can offer, they have to do an environmental assessment. [00:28:44] Speaker 01: And they have to make sure they're not violating the indignant species. [00:28:47] Speaker 02: Absolutely. [00:28:48] Speaker 02: And that's one of the flaws of the owl methodology, that the reason we challenged it in the first place is that they're not. [00:28:56] Speaker 02: It's one thing to say you protect owls. [00:28:58] Speaker 02: That's fine. [00:28:59] Speaker 02: We're fine with that. [00:29:01] Speaker 02: They're protecting random sites on the landscape that don't have holes. [00:29:05] Speaker 01: That's a secondary question. [00:29:06] Speaker 01: My first question is they still have to do an assessment, right? [00:29:09] Speaker 02: Well, we're not challenging that they have to do an assessment. [00:29:13] Speaker 02: Well, then how long does that take? [00:29:16] Speaker 02: You know, a consultation is supposed to take 135 days. [00:29:22] Speaker 01: So the district court's ordered this to be done in every year, and if in one sale you have to spend 135 days doing a consultation, it seems hard to imagine that [00:29:34] Speaker 01: his injunction is going to be able to be complied with without violating at least that responsibility, let alone what the responsibility would be if they found something at the end of the assessment. [00:29:46] Speaker 02: The BLM has never said that they are unable to meet the sale level if they try. [00:29:57] Speaker 02: What they've said is they don't try. [00:30:02] Speaker 01: They haven't said they don't try, and Perez's declaration says they have, that this is the problem and the briefs are littered with this argument. [00:30:11] Speaker 01: Now maybe there's fact finding to be made as to what the real reason is that they haven't done it, but it seems to me we have a big problem here. [00:30:19] Speaker 01: You have an order from a district judge which provides no exceptions. [00:30:26] Speaker 01: and which seems like on its face it requires the agency to plow forward regardless of other legal requirements. [00:30:36] Speaker 01: I'm not really following why that isn't the case. [00:30:41] Speaker 02: Well, that would have been an interesting point if they had raised it in the district court, but they never raised it in the district court. [00:30:49] Speaker 02: They never said, we can't do this. [00:30:52] Speaker 02: Your order is so strict that we can't comply with it. [00:30:55] Speaker 02: They never said that. [00:30:56] Speaker 02: And Mr. Perez definitely did not say that. [00:30:59] Speaker 02: He said the same stuff about injunctions. [00:31:02] Speaker 02: And I have explained that injunctions have nothing to do with this because the BLM counts in joint sales and consultation. [00:31:10] Speaker 02: Yes, they have to do consultation. [00:31:12] Speaker 02: So maybe they have to do more consultations. [00:31:15] Speaker 02: That's exactly what they ought to be doing. [00:31:17] Speaker 02: They ought to be doing enough consultation so that they can reach the mandated sale level. [00:31:22] Speaker 02: And they've never said that there aren't enough trees available. [00:31:25] Speaker 02: Or that the ESA makes it impossible. [00:31:30] Speaker 02: They have never said that. [00:31:31] Speaker 02: Or the NEPA. [00:31:32] Speaker 02: NEPA doesn't make anything impossible because it's a disclosure statute. [00:31:36] Speaker 01: But they've never said that it's impossible. [00:31:38] Speaker 01: The argument about the NEPA is the length of time it takes to do it. [00:31:42] Speaker 01: So regardless of what happened in the past, this is a prospective injunction, right? [00:31:46] Speaker 01: He didn't give you the shortfall. [00:31:48] Speaker 01: Yes, it is. [00:31:48] Speaker 01: That's correct. [00:31:48] Speaker 01: So that means within the next year, they have to sell a certain amount. [00:31:55] Speaker 01: Perez says, for example, that the Spotted Owls survey that's going to be necessary now could take two years. [00:32:01] Speaker 01: So how are they going to sell within one year the amount the judges ordered them to do if the survey takes two years? [00:32:08] Speaker 02: Well, there's no, sorry, but there's no Spotted Owls survey. [00:32:12] Speaker 02: They don't do surveys for Spotted Owls. [00:32:14] Speaker 01: It says, without reliance on the OEM, the time required to finalize biological assessments may take even longer if the BLAM determines it's necessary and appropriate to complete two-year northern spotted owl surveys for new chimbers. [00:32:28] Speaker 02: Well, yeah, but they've not done that. [00:32:30] Speaker 02: We've had two years of no OEM. [00:32:34] Speaker 02: They don't do surveys. [00:32:35] Speaker 02: That's just not what they do. [00:32:37] Speaker 02: The statement was a correct if, but they don't do that. [00:32:43] Speaker 01: Well, he says the process to design and propose a force management action and then conduct appropriate NEEP analysis for the action and ultimately issue a decision for implementation can take several years. [00:32:56] Speaker 02: I've heard them say that. [00:32:58] Speaker 02: And if they wanted to come back into court and say, we need two years to get our system up and running so that we are working ahead so that we can meet the level, if they came in and said that, [00:33:12] Speaker 02: We would say fun. [00:33:14] Speaker 01: But they haven't. [00:33:15] Speaker 01: That's for any individual set of sales, not for [00:33:20] Speaker 01: in perpetuity. [00:33:21] Speaker 01: The judge has ordered this in perpetuity. [00:33:23] Speaker 02: Yes, that's right, because the statute requires it in perpetuity. [00:33:26] Speaker 02: And perpetuity is what sustained yield management is all about. [00:33:30] Speaker 02: If you get the same level year after year after year. [00:33:33] Speaker 01: So what if it were the case that you needed to do this every year? [00:33:40] Speaker 01: For every year, it's going to take longer than one year to get this done. [00:33:45] Speaker 01: Yes. [00:33:46] Speaker 01: Then what would be the situation then? [00:33:49] Speaker 01: Go back to the district judge. [00:33:51] Speaker 02: They have to start before the beginning of the fiscal year, which is what they used to do. [00:33:56] Speaker 02: back in the 1980s when the BLM sold 1.1 billion bore feet of timber sales. [00:34:02] Speaker 02: They had a pipeline of sales that were in preparation, and each year they finished enough of them to sell 1.1 billion. [00:34:12] Speaker 02: Today their target statewide is 200 million, one-fifth of what it used to be. [00:34:19] Speaker 02: They don't have a pipeline. [00:34:20] Speaker 02: You'd have to ask them why they don't have a pipeline. [00:34:23] Speaker 02: There is no legal impediment to their having a pipeline so that they have the sales ready to go at the beginning of the fiscal year. [00:34:31] Speaker 01: Whether they should have had a pipeline or not, apparently they don't have a pipeline. [00:34:34] Speaker 01: The order applies within, was it 70 days of his order or something like that? [00:34:38] Speaker 01: Yes. [00:34:39] Speaker 01: Without any pipeline. [00:34:41] Speaker 01: Under what you just told me, there's no pipeline. [00:34:43] Speaker 01: So the order takes a place within 70 days and that's it, pipeline or not. [00:34:49] Speaker 02: Well, if they had a problem with that, they could have gone back to the district judge. [00:34:54] Speaker 02: They didn't have a problem with that. [00:34:57] Speaker 01: Well, I'll ask them whether they have a problem with that. [00:35:00] Speaker 01: What happens in the place of the OEM? [00:35:03] Speaker 01: He vacated the OEM, right? [00:35:06] Speaker 01: Right. [00:35:06] Speaker 01: The OEM is vacated. [00:35:07] Speaker 02: What comes in place? [00:35:09] Speaker 02: They do individual reviews based on information they have on actual owls. [00:35:14] Speaker 02: They don't have constraints on unoccupied owl territories. [00:35:19] Speaker 02: Territories, areas that are not OWL territories. [00:35:23] Speaker 01: Can they do a survey instead? [00:35:24] Speaker 01: Can they substitute actual surveys rather than? [00:35:27] Speaker 01: No one does surveys. [00:35:29] Speaker 02: There are no spotted OWL surveys done by any federal agency. [00:35:34] Speaker 01: Was there anything that stops them from doing it? [00:35:36] Speaker 01: In other words, if they can't use a computer model, is there any reason why instead they couldn't do a survey? [00:35:44] Speaker 01: The reason is they think it's too expensive. [00:35:47] Speaker 01: And that's why they chose the model instead. [00:35:49] Speaker 01: But you've eliminated the opportunity, not you, but the judge has eliminated the opportunity to have that modeling. [00:35:56] Speaker 02: No, the model is not a model of actual owls. [00:36:00] Speaker 02: They don't know where the owls are. [00:36:02] Speaker 02: These are random spots. [00:36:05] Speaker 02: It makes no sense. [00:36:06] Speaker 02: These are random spots on the landscape where they put a dot and then they draw a circle around the dot and they say you can't cut in there. [00:36:14] Speaker 01: How do they choose where to put the dot? [00:36:16] Speaker 02: The computer does it randomly. [00:36:18] Speaker 01: No one knows. [00:36:20] Speaker 01: Based on what? [00:36:21] Speaker 02: Based on the kind of trees that are out in the landscape. [00:36:24] Speaker 02: But there are millions of acres of trees that are actual or potential habitat for northern spotted owls. [00:36:31] Speaker 02: There's nine million acres of critical habitat and more than that around so there's lots of acres of trees and they just pick the computer and it's not even it's worse than that because every time they do it every time they do they have a new project they run the OEM map and they come up with a new set of points [00:36:51] Speaker 02: that are different from the last set of points. [00:36:54] Speaker 02: So in project one they have the dots here, I'm gesturing to my left, and in project two they have the dots here, I'm gesturing to my right, and they're not the same dots because they're all random spots that the computer picks and they run the computer every time and get a different answer. [00:37:14] Speaker 03: I want to switch gears here a little bit. [00:37:16] Speaker 03: How do we know that anything you just talked about has any adverse effect on your clients? [00:37:23] Speaker 03: And take Swanson, for instance. [00:37:26] Speaker 03: Yes. [00:37:28] Speaker 03: It was operating at three quarters capacity due to market conditions, et cetera, et cetera. [00:37:34] Speaker 03: But how do we know that any of this has any effect on Swanson? [00:37:39] Speaker 02: The declaration from Mr. Swanson details three forms of injury that they are threatened with and have experienced. [00:37:50] Speaker 02: One of them he was very specific about, and that is the shortfall of BLM timber sales in Western Oregon has caused log prices in Western Oregon to be higher [00:38:02] Speaker 02: than in other areas where their competitors are located, which shrinks their profit margin. [00:38:08] Speaker 01: That's the post-judgment declaration, right? [00:38:10] Speaker 01: That, uh, from Mr. Swanson. [00:38:14] Speaker 01: The one you're reading, uh... Yes, I believe it is. [00:38:18] Speaker 03: But the declaration on 168, 167, 168 doesn't say... And it also says that Swanson's operation gets timber from BLM land. [00:38:31] Speaker 03: from forest service land, from private land, from local landowners, and from the state. [00:38:38] Speaker 03: So my question is, if there's a shortfall, [00:38:42] Speaker 03: and they're not operating at capacity, how do we know that the cause of that shortfall and the reason they're not operating at capacity is attributable to BLM as opposed to, and if it were, why couldn't they make it up with forest service land with timber supplied by other state, local, and private timberlanding? [00:39:05] Speaker 02: Well, the real answer is they buy everything that's available and there's still not enough. [00:39:10] Speaker 03: Do you know how many board feet are harvested each year in Oregon? [00:39:18] Speaker 02: Yeah, your figure was correct. [00:39:19] Speaker 02: It's about 3 billion board feet a year. [00:39:23] Speaker 03: And that's not enough to satisfy a company that's operating with 160 million? [00:39:30] Speaker 02: No, sir. [00:39:31] Speaker 02: Because Swanson is a company that does not own any timberland, and they are dependent on sellers. [00:39:37] Speaker 02: And the companies that own timberland keep it for themselves, or else they choose to export it, which some companies do. [00:39:46] Speaker 02: And there is not an excess of timber. [00:39:48] Speaker 02: I wouldn't be here if there were. [00:39:50] Speaker 03: The entire state of Oregon was in a timber depression. [00:39:54] Speaker 03: Isn't that correct? [00:39:55] Speaker 03: For a period from 2004 to 2010, [00:40:02] Speaker 02: No, not from 2004. [00:40:03] Speaker 02: Starting in 2008, when the housing market crashed, the demand... Definitely the demand dropped because housing starts dropping. [00:40:13] Speaker 03: And now they're selling to China? [00:40:16] Speaker 02: They're not selling. [00:40:17] Speaker 02: Well, there's a little bit, but mostly they're selling to American home builders. [00:40:20] Speaker 02: The lumber market has recovered substantially and they're selling more lumber at higher prices. [00:40:27] Speaker 03: I come back to my question. [00:40:29] Speaker 03: You're persuasive, but I don't find any of that in Mr. Swanson's declaration. [00:40:34] Speaker 03: I don't find him saying that the BLM is the reason for the shortfall in his operation. [00:40:43] Speaker 02: Where is that? [00:40:44] Speaker 02: We know that there is a shortfall of BLM timber sales. [00:40:49] Speaker 02: I mean, that much, at least if you accept the merits of our position, that's the case. [00:40:55] Speaker 05: I mean, that's taking the allegations as true. [00:40:59] Speaker 02: That's just for standing purposes, that's assuming that we win on the merits. [00:41:04] Speaker 02: That's all. [00:41:05] Speaker 05: No, this is a summary judgment, right? [00:41:07] Speaker 02: Yeah, right. [00:41:07] Speaker 02: And these are declarations, and these are unchallenged declarations. [00:41:11] Speaker 02: There's nothing in the record to contest, though. [00:41:14] Speaker 05: In this Court, yeah. [00:41:16] Speaker 05: Are they sufficient, is the question. [00:41:18] Speaker 02: Pardon me? [00:41:18] Speaker 05: Are they sufficient, is the question. [00:41:20] Speaker 02: Right. [00:41:21] Speaker 02: I understand that's the question. [00:41:22] Speaker 02: And so, Mr., the other evidence we had when we talked about threat of mill closure [00:41:29] Speaker 02: is that one of the plaintiffs in this case, the Rough and Ready Lumber Company, did in fact have to close its doors and stop operations for over a year while this case was pending. [00:41:40] Speaker 05: So turn to that declaration. [00:41:43] Speaker 02: OK. [00:41:43] Speaker 05: All right. [00:41:44] Speaker 05: And what the government says is the paragraph three assertion about the choo-choo sale. [00:41:54] Speaker 02: Yes. [00:41:55] Speaker 05: That since in the district court, [00:41:59] Speaker 05: You didn't rely on that. [00:42:00] Speaker 05: You can't rely on it now. [00:42:03] Speaker 05: Well, isn't that the rough and ready strongest point that they [00:42:09] Speaker 02: that the BLM took away the chew-chew timber sale. [00:42:13] Speaker 02: That's correct. [00:42:13] Speaker 02: We did not rely on it. [00:42:15] Speaker 02: They took it away. [00:42:16] Speaker 02: And the company decided they were not going to file a court challenge to challenge the decision to take it away. [00:42:24] Speaker 02: But the BLM took it away. [00:42:25] Speaker 02: And it was 15 million board feed, which is half a year supply for the Ruffin Ready Lumber Company. [00:42:32] Speaker 02: And it went out of business for over a year. [00:42:34] Speaker 05: What does it say that? [00:42:35] Speaker 02: Well, that is in Mr. Parton's declaration. [00:42:38] Speaker 05: I know, but it's not in the declarations that we're considering. [00:42:42] Speaker 02: Well, no. [00:42:43] Speaker 02: That is one of the declarations. [00:42:44] Speaker 05: That was put in after. [00:42:46] Speaker 02: Well, it was put in in the context of the relief that we requested. [00:42:52] Speaker 05: The additional relief. [00:42:53] Speaker 02: Yes, that's correct. [00:42:54] Speaker 02: But it's in the record. [00:42:56] Speaker 02: And, I mean, it didn't happen until June, April of 2013. [00:43:03] Speaker 02: So it couldn't be in the record until it happened. [00:43:06] Speaker 02: It happened. [00:43:06] Speaker 05: What didn't happen? [00:43:07] Speaker 02: The closure of Rough and Rent. [00:43:09] Speaker 02: So then I couldn't establish standing because that has to be at the time of the complaint. [00:43:13] Speaker 02: Well, the point is not that this establishes standing. [00:43:17] Speaker 02: The point is that it shows that the threat of mill closure is an actual and imminent threat that is a sufficient actual and imminent injury to support Article III standing. [00:43:33] Speaker 02: That's the relevance of the rough and ready story. [00:43:37] Speaker 03: When did they close the mill? [00:43:38] Speaker 02: What year was that? [00:43:40] Speaker 02: They closed the mill in 2013, April of 2013, they announced the closure. [00:43:45] Speaker 02: And I can just tell you that they were able to reopen the mill at a smaller, lower level in July of 2014. [00:43:52] Speaker 03: It's a pretty small mill to begin with. [00:43:54] Speaker 02: It's a very small mill to begin with. [00:43:56] Speaker 02: And they're about half of where they were. [00:43:58] Speaker 02: And that's all they can do. [00:44:02] Speaker 02: And they're hoping they can get enough timber. [00:44:04] Speaker 05: All I'm getting at is that normally in this circuit, we are fiercely strict about declarations, unlike in some of our sister circuits. [00:44:17] Speaker 05: And consequently, these very general statements [00:44:24] Speaker 05: may not be sufficient. [00:44:25] Speaker 05: That's the government's argument. [00:44:26] Speaker 02: Well, that's the government's argument. [00:44:28] Speaker 02: And I come back to this court's decision in Mountain State's legal foundation, where they found standing in identical circumstances, absolutely identical circumstances, [00:44:40] Speaker 02: lumber companies dependent on federal timber. [00:44:43] Speaker 02: They didn't prove which sales they didn't get to buy. [00:44:46] Speaker 02: They said they were threatened with closure, they lost profits, etc. [00:44:51] Speaker 02: And the court said that is fine for Article III standing and the environmental injury. [00:44:56] Speaker 05: But here's what Ruffin Ready says in the affidavit that's relevant. [00:45:00] Speaker 05: It says, without an adequate supply of BLM timber and Forest Service timber, [00:45:08] Speaker 05: rough and ready may not be able to continue to operate its facility. [00:45:12] Speaker 05: But Judge Randolph's question raises the point about other sources. [00:45:18] Speaker 02: Well, I mean, look, the reality is that the Forest Service sells timber and the BLM sells timber. [00:45:24] Speaker 02: If this all adds up to we can't sue either of them because the other might in theory supply timber when in fact they don't. [00:45:32] Speaker 02: No, there's no theory here. [00:45:34] Speaker 02: It's a no-win situation. [00:45:35] Speaker 05: No, I understand that, but it's not theoretical. [00:45:38] Speaker 02: Well, it is theoretical because the government does not claim that the Forest Service is able to make up the difference. [00:45:44] Speaker 05: No, no. [00:45:45] Speaker 05: I'm talking about private sources, et cetera. [00:45:47] Speaker 02: And the government does not claim that private sources are in fact available. [00:45:53] Speaker 02: There's no proof. [00:45:53] Speaker 05: No, but it's your burden. [00:45:54] Speaker 03: Well, there is proof on behalf of David Sesley. [00:45:58] Speaker 03: The affidavit that Judge Rogers is talking about says that the company may also purchase logs from private sellers on the open market. [00:46:05] Speaker 02: Well, when they can, but not enough to meet their needs. [00:46:10] Speaker 05: That's the problem. [00:46:13] Speaker 05: What I'm getting at is, I'm not questioning whether this is true or not. [00:46:20] Speaker 05: It's just a question of whether the declaration provides us with that information. [00:46:26] Speaker 02: Well, I have to go back to Mountain State's legal foundation. [00:46:29] Speaker 02: I cannot see any distinction between the allegations and the facts in this case and those that were described by the court. [00:46:38] Speaker 05: Well, I guess I'd have to go back and look at the declarations in that case to see what the court was relying on. [00:46:43] Speaker 02: I can get them for you and submit them, if that would be helpful. [00:46:46] Speaker 03: Are you happy to? [00:46:49] Speaker 03: Do you agree that, well, the declaration says that they've been using about 25 million horde feet of timber per year. [00:46:57] Speaker 02: This is rough and ready? [00:46:59] Speaker 03: Rough and ready, right. [00:47:03] Speaker 03: And they rely on BLM timber, they say that. [00:47:06] Speaker 03: But what percentage of that 25 million it has traditionally for rough and ready have been BLM timber? [00:47:15] Speaker 02: Well, given that the declaration doesn't say it, I can tell you what the answer is. [00:47:20] Speaker 03: The declaration doesn't tell it. [00:47:22] Speaker 03: For all I know, reading this declaration, the BLM timber represents 1% of their operation. [00:47:30] Speaker 02: We know that's not true, because the Chu Chu timber sale, which the BLM took away, was 15 million board feed. [00:47:36] Speaker 02: That is over 50% of one year's supply for rough and ready. [00:47:41] Speaker 02: So we know that it's not anything like 1%. [00:47:45] Speaker 05: So in Mountain States, the court says, citing the declaration of the owner of the company, that the company mill was temporarily closed and 25 workers were laid off as a result. [00:48:02] Speaker 05: So I mean, that's very specific information. [00:48:04] Speaker 05: We don't have that here. [00:48:05] Speaker 05: That's all I'm getting. [00:48:06] Speaker 02: Well, we have the threat of that. [00:48:08] Speaker 02: We have the actual and imminent threat of that. [00:48:11] Speaker 05: But it's only a threat if they couldn't get [00:48:14] Speaker 05: the lumber from other sources? [00:48:18] Speaker 02: Well, yeah, that's by definition true. [00:48:20] Speaker 01: Was there a reason why they couldn't get the lumber from another source? [00:48:24] Speaker 02: Yes, because it's not available. [00:48:26] Speaker 01: Why not? [00:48:26] Speaker 02: Because the demand for timber is far greater than the supply of timber. [00:48:33] Speaker 02: And that's why you see that on BLM timber sales, the price that they sell for is sometimes three or four times what the market price is that the BLM says the sale is worth. [00:48:43] Speaker 05: See, that's what I'm getting at is that all may be true, but it's just not in the affidavit. [00:48:51] Speaker 02: Well, the affidavits do not contain that specific information. [00:48:55] Speaker 03: I agree with that. [00:48:57] Speaker 03: The fact that BLM timber goes for a higher price than timber from private landowners may be attributable to the fact that the BLM timber is old growth. [00:49:06] Speaker 03: And it's much more economical and efficient to deal with old growth timber than it is from younger growth. [00:49:15] Speaker 02: Well, in theory, that definitely is one explanation for difference in price. [00:49:21] Speaker 03: Your response to my question, this Choo-Choo thing, which would have represented 50% of Rough and Ready's supply, [00:49:32] Speaker 03: And it fell through. [00:49:33] Speaker 03: I don't understand how that tells me what percentage or even gives me any idea what percentage traditionally over the years Rough and Ready has or uses BLM. [00:49:47] Speaker 03: One year they bid on it and they were the high bidder and that would have taken 50% of their capacity, but that doesn't tell me anything about any other year. [00:49:58] Speaker 02: Well, that one year is sufficient for Article 3 injury. [00:50:03] Speaker 02: They bid on the sale, they were the high bidder on the 2-2 sale in 2006. [00:50:08] Speaker 03: You're not challenging them. [00:50:09] Speaker 02: No, that's right. [00:50:10] Speaker 02: But we're challenging the general shortfall of BLM timber sales. [00:50:15] Speaker 02: the lack of the Choo Choo sale, which, by the way, they counted as part of their successful program in 2006, even though they took it away from the company in 2012. [00:50:28] Speaker 02: But the Rough and Ready was waiting six years for that sale, and then the VOM took it away from them. [00:50:37] Speaker 01: What was the reason they took it away? [00:50:40] Speaker 02: Because they found some red tree bulls [00:50:45] Speaker 02: And there is a protocol for protecting red tree voles. [00:50:51] Speaker 01: So is the cause of the injury the requirement to protect red tree voles rather than a failure otherwise to follow the ONC Act? [00:51:04] Speaker 02: No, the failure is beyond failure to offer the full level of sales every year. [00:51:09] Speaker 02: This particular sale, I mean, the facts of this sale, and the red tree bull, by the way, is not a threatened or endangered species. [00:51:18] Speaker 02: It's just they have a protocol that they have to do something for red tree bulls. [00:51:23] Speaker 02: And they went back and they looked and said, oh, we got a lot of red tree bulls, so we're going to take the sale away from you. [00:51:31] Speaker 01: Okay. [00:51:32] Speaker 01: Further question? [00:51:34] Speaker 03: One question, really, just by way of background. [00:51:38] Speaker 03: If the BLM cells and loggers go into areas where they're permitted to harvest the trees, and they see whatever it is, a spruce or something, on top of that tree is a spotted owl nest. [00:52:00] Speaker 03: Can they cut it down? [00:52:01] Speaker 02: No. [00:52:02] Speaker 02: No, they flee as rapidly as possible. [00:52:05] Speaker 02: They report it to the BLM, and no one goes anywhere near a spot at all. [00:52:12] Speaker 02: There's no evidence that a spot at all has ever been killed by a logger. [00:52:19] Speaker 03: OK. [00:52:21] Speaker 02: They don't have permission to just clear cut. [00:52:24] Speaker 02: No, absolutely not. [00:52:26] Speaker 02: Thank you. [00:52:31] Speaker 01: Any time left? [00:52:32] Speaker 01: We'll give you two more minutes. [00:52:39] Speaker 06: Regarding standing, it's not our contention that the plaintiffs couldn't ever prove standing. [00:52:44] Speaker 06: It's simply that the affidavits they submitted prior to the court summary judgment order were insufficient proof under the standards in Lujan against defenders of wildlife because they lacked the specificity. [00:52:57] Speaker 06: had they brought a different suit. [00:52:59] Speaker 03: And the affidavits filed after judgment were too late? [00:53:05] Speaker 03: Correct. [00:53:06] Speaker 03: After summer is the period. [00:53:08] Speaker 03: We have a doctrine in this court that if there's doubt of outstanding, you can file affidavits in the Court of Appeals. [00:53:14] Speaker 03: And if you can do that, why can't they file them after judgment? [00:53:19] Speaker 03: Every one of them is after judgment, judgment of agencies. [00:53:23] Speaker 06: I believe, Your Honor, after Summers, that that's no longer allowed in the normal cases that come up through the district courts to the courts of appeals. [00:53:29] Speaker 03: The distinction is between direct review and review on appeal. [00:53:34] Speaker 03: Exactly. [00:53:34] Speaker 01: Because the agency doesn't have a article-free requirement, so there's no reason to have it in the agency. [00:53:40] Speaker 01: Precisely. [00:53:40] Speaker 01: While the district court does. [00:53:42] Speaker 06: That's correct. [00:53:43] Speaker 06: Lujan wasn't direct review, was it? [00:53:45] Speaker 06: Or was it? [00:53:46] Speaker 06: I do not believe it was. [00:53:48] Speaker 06: No, I believe it was an APA. [00:53:50] Speaker 06: It was an Endangered Species Act. [00:53:51] Speaker 06: Right, I know that. [00:53:52] Speaker 06: Okay, so it was brought in a district court. [00:53:53] Speaker 06: There wasn't a petition for review in the Court of Appeal. [00:53:56] Speaker 06: And neither was Summers, which establishes that the declaration. [00:53:59] Speaker 06: No, I know Summers. [00:54:00] Speaker 05: Is it? [00:54:00] Speaker 05: Can I ask one question? [00:54:03] Speaker 05: Council for Appellees was talking about the department counts trees [00:54:16] Speaker 05: that were offered in the past and then still had to undergo these environmental reviews. [00:54:27] Speaker 05: Now, is part of why the situation [00:54:34] Speaker 05: either is or is not true because of the government's position about what is a normal market and what that means? [00:54:42] Speaker 06: It's part of it. [00:54:43] Speaker 06: I mean, I think to try and clear up some of the confusion, they do when they award the sale, they count it toward the annual [00:54:51] Speaker 06: Right. [00:54:52] Speaker 06: If it's enjoined subsequently, they don't then take it away. [00:54:55] Speaker 06: It was awarded, considered sold during that year. [00:54:58] Speaker 04: Right. [00:54:59] Speaker 06: The problem comes when injunctions and remand orders require the agency to spend its time and resources redoing sales it already prepared. [00:55:07] Speaker 06: And the evidence in the record is that it takes three to five years typically to prepare a sale, to get it in the pipeline if you will, as my friend put it. [00:55:14] Speaker 06: So the time that's spent, and some of these judicial opinions from the Ninth Circuit invalidate programmatic documents that affect dozens and dozens of timber sales, not just the ones that are directly challenged in the case. [00:55:27] Speaker 06: So then the agency has to take time and go back and look at other sales that are not in litigation then to see whether they are compliant with the new intervening law. [00:55:36] Speaker 06: That additional time prevents the agency from preparing new timber sales to get in the pipeline. [00:55:44] Speaker 05: And so one of the arguments that the agency had made was this owl methodology was a way to try to get these trees on the market faster, since the agency didn't have the manpower to do the surveys. [00:56:03] Speaker 05: That's right. [00:56:05] Speaker 06: I mean, it was in response to a court order that halted dozens of timber sales, and it was a way to fix that administratively by providing a rational method for calculating estimated incidental take. [00:56:19] Speaker 01: This is the Oregon Natural Resources case? [00:56:21] Speaker 06: Yes. [00:56:22] Speaker 01: So this is another thing that's puzzled me. [00:56:24] Speaker 01: If all methodology is vacated, [00:56:28] Speaker 01: I thought the point about Oregon Natural Resources was an instruction that you can't go forward unless you come up with a numerical method of counting. [00:56:38] Speaker 01: And so in the absence of the all methodology, doesn't the Ninth Circuit's opinion stand? [00:56:46] Speaker 01: And you can't do anything. [00:56:47] Speaker 01: You can't issue incidental take permits anymore. [00:56:50] Speaker 06: So I don't think it's that categorical, but yes, the decision still stands and the agency still has to figure out a way to estimate numeric take or alternatively explain why that's not possible to do in a given situation. [00:57:02] Speaker 06: So even with the methodology enjoined, [00:57:05] Speaker 06: The agency still has to use the best available science, some of which is cited in the methodology paper. [00:57:12] Speaker 06: It refers to other scientific papers. [00:57:14] Speaker 06: The principles in those scientific papers can still be used by local biologists to estimate effects to the owls. [00:57:20] Speaker 01: So if you could just clear up for me. [00:57:24] Speaker 01: Opposing counsel said that you didn't make below the argument that you were sort of between a rock and a hard place here. [00:57:32] Speaker 01: There were injunctions from the Ninth Circuit, and I take it from district judges in the Ninth Circuit, that there was the requirements of the ESA, that there were requirements of NEPA, all of which had to do with the timing, among other things, but also substantive requirements under the ESA, and obviously obligatory requirements under injunctions, and that those were responsible [00:57:54] Speaker 01: at least in some significant material part for the reason that the agency can't do the annual sustainable yield. [00:58:03] Speaker 01: Am I misunderstanding? [00:58:06] Speaker 06: No, I mean, we made that argument. [00:58:10] Speaker 06: On our yellow brief, pages 21 to 22, we have the joint appendix sites to the briefs below where we made those arguments and preserved them. [00:58:18] Speaker 06: The argument we didn't make, and it's really, I mean, the position we didn't take was that somehow it's impossible as a factual matter to comply with the Lands Act and Endangered Species Act. [00:58:31] Speaker 01: I thought that you had after, in your summary judgment opposition, you said that if the court grants summary judgment, you want an opportunity to explain the problems of the ESA with respect to the remedy. [00:58:44] Speaker 06: With respect to the remedy. [00:58:46] Speaker 01: Well, the remedy being an injunction that orders you to do something without exception, and the district court did not permit that. [00:58:54] Speaker 06: That's correct. [00:58:56] Speaker 06: So we made that argument as a matter of remedy and as an equitable matter. [00:59:02] Speaker 06: And we would have shown that it wouldn't be appropriate for the court to issue a broad sweeping mandamus-type order in this situation because of the uncertainty of litigation and whether sales that they prepare will actually go forward and be able to be awarded. [00:59:18] Speaker 06: And if not, whether the efforts to redo those sales would consume so many resources that [00:59:24] Speaker 06: they wouldn't be able to prepare other sales. [00:59:27] Speaker 06: So that information is largely in the record, and we do refer to it in making our merits argument here on appeal as well. [00:59:34] Speaker 01: What are the things that prevented you, the agency, from being able to sell or offer to sale each year Daniel sustained the yield? [00:59:48] Speaker 06: So one of the main things has been something called the survey and manage measures, which are part of the forest planning regime in this area and part of the land use plans. [00:59:59] Speaker 06: And they require the... Could you repeat that? [01:00:01] Speaker 03: The survey what? [01:00:02] Speaker 06: Survey and manage. [01:00:04] Speaker 06: It was part of the land use plans and there was an administrative attempt to remove it. [01:00:10] Speaker 06: Because it was consuming a lot of time and agency resources for each sale, the foresters had to go out and survey timber sale sites to see if critters like the red tree vole were actually present or nest trees for these animals were actually present in the timber sale units. [01:00:27] Speaker 06: That was a result of some interpretations by the courts. [01:00:31] Speaker 06: They couldn't just survey for the habitat. [01:00:32] Speaker 06: They had to actually go out and be on the ground and looking for this. [01:00:36] Speaker 06: That took a lot of time and a lot of money and prevented a lot of sales from going forward in the areas where there would be larger volume. [01:00:43] Speaker 06: It's called these regeneration sales, where it's five acres, say, of a cut that's more than just thinning, leaving some trees per acre but not many. [01:00:55] Speaker 06: Those generate larger volume, but they also generate more public controversy and more lawsuits. [01:01:01] Speaker 06: Some of those areas where that type of harvest could be conducted, people were finding retrievals all over the place. [01:01:09] Speaker 06: And so that was adding additional time and resources and costs to preparing those sales. [01:01:16] Speaker 06: That's a big factor. [01:01:18] Speaker 06: And the attempts to remove that measure in the Northwest Forests Alliance against Ray case from Western District of Washington, we cite in our briefs. [01:01:28] Speaker 06: We attempted, the Interior Department attempted to remove that administratively, and the decision was set aside as arbitrary. [01:01:36] Speaker 01: By the district court? [01:01:37] Speaker 06: Correct. [01:01:39] Speaker 01: Correct. [01:01:42] Speaker 01: Thank you both for excellent arguments. [01:01:43] Speaker 01: We appreciate it. [01:01:44] Speaker 01: We'll take the matter under submission.