Swanson Group Mfg. LLC v. Sally Jewell ( 2015 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 13, 2015 Decided June 12, 2015
No. 13-5268
SWANSON GROUP MFG. LLC, ET AL.,
APPELLEES
v.
SALLY JEWELL, SECRETARY OF INTERIOR AND THOMAS J.
VILSACK, SECRETARY OF AGRICULTURE,
APPELLEES
KLAMATH-SISKIYOU WILDLANDS CENTER, ET AL.,
APPELLANTS
Consolidated with 14-5003, 14-5114
Appeals from the United States District Court
for the District of Columbia
(No. 1:10-cv-01843)
Brian C. Toth, Attorney, U.S. Department of Justice, argued
the cause for appellants/cross-appellees Secretary of the Interior,
et al. With him on the briefs were Sam Hirsch, Acting Assistant
Attorney General, David C. Shilton, Attorney, and Charles
Spicknall, Counsel, U.S. Department of Agriculture.
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Kristen L. Boyles and Susan Jane M. Brown were on the
briefs for appellants/cross-appellees Klamath-Siskiyou
Wildlands Center, et al. Patti A. Goldman entered an
appearance.
Mark C. Rutzick argued the cause and filed the brief for
appellees/cross-appellants Swanson Group Mfg. LLC, et al.
Before: GARLAND, Chief Judge, ROGERS, Circuit Judge,
and RANDOLPH, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge ROGERS.
ROGERS, Circuit Judge: The Secretaries of the Interior and
Agriculture appeal the grant of summary judgment and issuance
of a mandatory injunction to sell a certain amount of timber
annually from federal land managed under the Oregon and
California Railroad and Coos Bay Wagon Road Grant Lands Act
of 1937, 43 U.S.C. §§ 1181a et seq. (“O & C Act”). We must
vacate the judgment and remand the case with instructions to
dismiss the complaint because the plaintiffs lack standing under
Article III of the U.S. Constitution. The question before this
court is not whether parties such as these plaintiffs could have
standing to bring the claims at issue but whether the evidence
the plaintiffs presented in support of their standing is sufficient.
For the following reasons we conclude that none of the plaintiff
timber companies or timber organizations have demonstrated
Article III standing.
I.
The Bureau of Land Management (“BLM”) in the
Department of the Interior manages 2.4 million acres of public
land in western Oregon, most of which is governed by the
O & C Act. In 1916, Congress instructed the Secretary of the
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Interior to sell the timber from this land “as rapidly as
reasonable prices can be secured therefor in a normal market.”
Act of June 9, 1916, Pub. L. No. 64–86, § 4, 39 Stat. 218, 220;
see also Act of Feb. 26, 1919, Pub. L. No. 65–280, § 3, 40 Stat.
1179, 1180. In 1937, Congress changed course, providing that
O & C timberland
shall be managed . . . for permanent forest production,
and the timber thereon shall be sold, cut, and removed
in conformity with the principal [sic] of sustained yield
for the purpose of providing a permanent source of
timber supply, protecting watersheds, regulating stream
flow, and contributing to the economic stability of
local communities and industries, and providing
recreational facilties [sic].
43 U.S.C. § 1181a. The O & C Act requires that “[t]he annual
productive capacity for such lands shall be determined and
declared as promptly as possible.” Id. It also instructs the
Secretary of the Interior that “timber from said lands in an
amount not less than . . . the annual sustained yield capacity . . .
shall be sold annually, or so much thereof as can be sold at
reasonable prices on a normal market.” Id.
At issue are timber sales from O & C Act lands in the
Roseburg and Medford districts of western Oregon from fiscal
years 2004 to 2010. BLM’s 1995 resource management plans
establish “allowable sale quantities” of timber, which BLM
treats as synonymous with the statutory term “annual productive
capacity,” see IV BLM, Final Environmental Impact Statement
for the Revision of the Resource Management Plans of the
Western Oregon Bureau of Land Management app. R, at 712
(2008). The allowable sale quantity for Roseburg is 45 million
board feet; for Medford, 57.1 million board feet. The Roseburg
and Medford plans provide that “[t]he actual sustainable timber
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sale level . . . may deviate by as much as 20 percent from the
identified allowable sale quantity.” BLM, Roseburg District:
Record of Decision and Resource Management Plan 61 (1995);
accord BLM, Record of Decision for the Medford District
Resource Management Plan 72 (1995). Between fiscal years
2004 and 2010, the timber sold from the Roseburg district was
only 43% of the allowable sale quantity, averaging 19 million
board feet per year; the timber sold from the Medford district
was only 56% of the allowable sale quantity, averaging 32
million board feet per year. The amount of Roseburg timber
sold was less than 80% of the allowable sale quantity every
year; the amount of Medford timber sold reached 80% of the
allowable sale quantity in only fiscal years 2005 and 2006.
In 2010, two timber companies and three timber
organizations (together, “the companies”) sued for declaratory
and injunctive relief to remedy alleged statutory violations by
the Secretaries of the Interior and Agriculture in connection with
timber sales in Oregon and Washington. The companies alleged
that from fiscal years 2004 to 2010, the Secretary of the Interior
failed to sell the amount of timber required by the O & C Act in
Roseburg and Medford. As relevant, they sought a declaration
under the Declaratory Judgment Act, 28 U.S.C. §§ 2201–2202,
and the Administrative Procedure Act (“APA”), 5 U.S.C.
§§ 706(1)–(2), that BLM’s failure annually to offer for sale 80%
of the allowable sale quantity of timber from Roseburg and
Medford violated the O & C Act, and an order compelling BLM
annually to offer for sale 80% of the allowable sale quantity of
timber and additional timber in fiscal years 2011 and 2012 to
make up for past shortfalls. In addition, the companies alleged
that the Owl Estimation Methodology, used in planning federal
timber sales to ensure compliance with the Endangered Species
Act (“ESA”), 16 U.S.C. §§ 1531 et seq., see Methodology for
Estimating the Number of Northern Spotted Owls Affected by
Proposed Federal Actions 2 (2008) (“OEM”), was invalid for
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lack of notice and opportunity for comment under the APA.
The parties filed cross motions for summary judgment. On
June 26, 2013, the district court granted summary judgment to
the companies on their O & C Act claim and permanently
enjoined BLM “to sell or offer for sale the declared annual
sustained yield capacity of timber for the Medford and Roseburg
districts for each future year, in accordance with the O & C
Act.” Swanson Grp. Mfg. LLC v. Salazar, 951 F. Supp. 2d 75,
84 (D.D.C. 2013). The court also vacated the OEM for lack of
notice and comment, id. at 88, and dismissed the companies’
remaining claims, id. at 76. On July 25, 2013, the district court
granted the companies’ unopposed emergency motion to make
the OEM vacatur prospective only. By order of November 5,
2013, the district court denied the Secretaries’ request for
clarification regarding the legality of continued reliance on
OEM source documents. By minute orders of December 20,
2013, the court denied the companies’ post-judgment requests
for further relief compelling BLM to offer additional timber
sales in fiscal years 2014 and 2015 equal to the volume BLM
fell short in fiscal years 2004 through 2013; on April 25, 2014,
the court denied reconsideration of the denial of further relief.
The Secretaries appeal the grant of summary judgment and the
denial of clarification; the companies cross appeal the denials of
further relief and reconsideration. Our review of the grant of
summary judgment is de novo. Defenders of Wildlife v.
Gutierrez, 532 F.3d 913, 918 (D.C. Cir. 2008).
II.
Our analysis begins and ends with consideration of our
jurisdiction. The Secretaries challenged the companies’
standing under Article III of the Constitution to bring both the
O & C Act and APA claims in the district court. In granting
summary judgment, the district court ruled, without explanation,
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that the companies have standing. Swanson Grp. Mfg., 951 F.
Supp. 2d at 81 n.8. The Secretaries renew their standing
objection on appeal.
“Article III of the Constitution confines the jurisdiction of
the federal courts to actual ‘Cases’ and ‘Controversies,’ and . . .
‘the doctrine of standing serves to identify those disputes which
are appropriately resolved through the judicial process.’”
Clinton v. City of New York, 524 U.S. 417, 429 (1998) (quoting
Whitmore v. Arkansas, 495 U.S. 149, 155 (1990)). As plaintiffs,
the companies bear the burden of demonstrating they have
standing to pursue their claims. See Lujan v. Defenders of
Wildlife, 504 U.S. 555, 561 (1992). “[T]he irreducible
constitutional minimum of standing” requires “[1] an injury in
fact . . . which is (a) concrete and particularized, and (b) actual
or imminent, not conjectural or hypothetical, . . . [2] a causal
connection between the injury and the conduct complained of
. . . , [and] [3] it must be likely, as opposed to merely
speculative, that the injury will be redressed by a favorable
decision.” Id. at 560–61 (footnote, citations, and internal
quotation marks omitted). At the summary judgment stage of
the proceedings, the companies “can no longer rest on . . . ‘mere
allegations,’ but must ‘set forth’ by affidavit or other evidence
‘specific facts,’ which for purposes of the summary judgment
motion will be taken to be true.” Id. at 561 (citations omitted).
Statements of fact must be sufficiently specific to rise above the
level of “conclusory allegations.” Lujan v. Nat’l Wildlife Fed’n,
497 U.S. 871, 888 (1990). Although “general factual allegations
of injury resulting from the defendant’s conduct may suffice” to
show standing at the motion to dismiss stage, Lujan v. Defenders
of Wildlife, 504 U.S. at 561, at summary judgment a court will
not “‘presume’ the missing facts” necessary to establish an
element of standing, Nat’l Wildlife Fed’n, 497 U.S. at 889.
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Furthermore, because the companies seek injunctive relief,
they must show an imminent future injury. See Dearth v.
Holder, 641 F.3d 499, 501 (D.C. Cir. 2011). This creates “‘a
significantly more rigorous burden to establish standing’” than
that on parties seeking redress for past injuries. Chamber of
Commerce v. EPA, 642 F.3d 192, 200 (D.C. Cir. 2011) (quoting
United Transp. Union v. ICC, 891 F.2d 908, 913 (D.C. Cir.
1989)). That is, “to ‘shift[ ] injury from conjectural to
imminent,’ the [companies] must show that there is a
‘substantial . . . probability’ of injury.” Id. (first alteration in
original) (quoting Sherley v. Sebelius, 610 F.3d 69, 74 (D.C. Cir.
2010)) (internal quotation marks omitted).
A.
The companies maintain they have shown “five forms of
injury” resulting from BLM’s failure to sell 80% of the
allowable sale quantity of timber from Roseburg and Medford:
“threat of mill closure; lost profit; lost opportunity to earn
additional profit; reduced profit due to higher log prices; and
environmental injury to landowners.” Appellees’ Opp’n Br. &
Principal Br. Supp. Cross-Appeal 15 (“Appellees’ Br.”). They
rely both on declarations submitted in support of their motion
for summary judgment and on two declarations filed after the
district court granted summary judgment on June 26, 2013.
There are two problems with their position.
1. In determining whether the companies have standing, the
court may not consider on appeal supplemental declarations
filed after entry of the judgment appealed. In Summers v. Earth
Island Institute, 555 U.S. 488, 495 n.* (2009), the Supreme
Court stated that “[i]f respondents had not met the challenge to
their standing at the time of judgment, they could not remedy the
defect retroactively.” This court and our sister circuits generally
have held that declarations that were not part of the record
before the district court at the time of a judgment or order are
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not part of the record on appeal of that judgment or order. See
United States v. West, 392 F.3d 450, 455 n.2 (D.C. Cir. 2004)
(citing FED. R. APP. P. 10(a) and Kirshner v. Uniden Corp. of
Am., 842 F.2d 1074, 1077 (9th Cir. 1988)); Barry v. Barry, 78
F.3d 375, 379 (8th Cir. 1996); Frito-Lay, Inc. v. Willoughby, 863
F.2d 1029, 1035–36 (D.C. Cir. 1988); Paramount Film Distrib.
Corp. v. Civic Ctr. Theatre, Inc., 333 F.2d 358, 360 (10th Cir.
1964); 16A CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE
AND PROCEDURE § 3956.1, at 629 (4th ed. 2008). Although this
court allows parties to introduce new evidence of their standing
in administrative appeals that begin in the circuit, that practice
rests on the fact that there is no need for petitioners to establish
Article III standing before agencies. See Am. Library Ass’n v.
FCC, 401 F.3d 489, 493–94 (D.C. Cir. 2005); Sierra Club v.
EPA, 292 F.3d 895, 899–900 (D.C. Cir. 2002). Here, by
contrast, the Secretaries challenged the companies’ Article III
standing in moving to dismiss the complaint and for summary
judgment. The companies neither suggest they did not have a
full opportunity to make a record of their standing in the district
court nor that the district court’s denial of dismissal based on the
allegations in the complaint deprived them of notice that
additional evidence was necessary to support summary
judgment, see Nat’l Wildlife Fed’n, 497 U.S. at 888–89; Lujan
v. Defenders of Wildlife, 504 U.S. at 561.
After the district court granted them summary judgment, the
companies filed several post-judgment motions. First, they
moved that the OEM vacatur be prospective only, attaching a
new declaration from Thomas L. Partin, the president of plaintiff
American Forest Resource Council; the district court granted the
unopposed motion. Second, the companies moved for additional
relief on their O & C Act claim and for leave to file a second
amended and supplemental complaint, attaching a new
declaration from Steven D. Swanson, the president of Swanson
Group, Inc., the managing member of plaintiff Swanson Group
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Mfg. LLC (“Swanson”); the companies later requested this
motion be withdrawn. In a subsequent motion for additional
relief, the companies relied on these new declarations. The
district court denied both motions for additional relief by minute
orders, and the companies have cross appealed the denial of the
later motion. Although Partin’s new declaration was before the
district court when it revised the grant of summary judgment
relief as to the OEM vacatur, that declaration does not cure the
inadequacies in the companies’ showing of standing, as we
discuss below. Steven Swanson’s new declaration, which was
filed after the court revised the OEM vacatur, was relied on in
a motion seeking further injunctive relief that expressly
disclaimed an intent to seek reconsideration, and the court in
fact did not reconsider summary judgment, so his new
declaration is not part of the record on appeal of the grant of
summary judgment. See Summers, 555 U.S. at 495 n.*.
The companies read Summers only to prevent the
submission of additional evidence in support of standing after a
notice of appeal has been filed. Although the Court referenced
that a notice of appeal had been filed, 555 U.S. at 495 n.*, 500,
the companies’ reading of Summers is not reconcilable with
either with the Supreme Court’s instruction that parties must
establish standing “at the time of judgment,” id. at 495 n.*
(emphasis added), or this court’s conclusion in Frito-Lay, 863
F.2d at 1035–36, that “the obligation of this Court is to look at
the record before the District Court at the time it granted the
motion [for summary judgment], not at some later point.” See
also West, 392 F.3d at 455 n.2. The filing of a notice of appeal
has little bearing on the purpose to allow “the trial forum vested
with authority to determine questions of fact” the opportunity to
evaluate “all the evidence [the parties] believe relevant to the
issues,” Prime Time Int’l Co. v. Vilsack, 599 F.3d 678, 686
(D.C. Cir. 2010) (quoting Hormel v. Helvering, 312 U.S. 552,
556 (1941)); see United States v. Bonds, 12 F.3d 540, 552–53
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(6th Cir. 1993); 16A WRIGHT ET AL. § 3956.1, at 632.
2. The declarations that the companies submitted before
judgment fail to establish Article III standing for any plaintiff.
None of the organizational plaintiffs identify individual injured
members. The declarations are speculative with respect to the
claimed threat to the plaintiffs’ interests and conclusory or silent
with respect to their claims of causation and redressibility. By
contrast, in Mountain States Legal Foundation v. Glickman, 92
F.3d 1228, 1232–33 (D.C. Cir. 1996), on which the companies
heavily rely, the court concluded there was standing based on a
declaration that identified a company’s specific injuries (a mill
closure and employee layoffs) resulting from federal logging
cutbacks.
Rough & Ready Lumber LLC, a forest products
manufacturing facility in western Oregon, comes closest to
showing Article III standing. According to its president, Link
Phillippi, Rough & Ready “relies on timber competitively
purchased from the BLM’s Medford [d]istrict and the
Rogue-Siskiyou National Forest” and from private sellers. Link
Phillippi Decl. ¶ 2 (Jan. 27, 2012). Phillippi avers that
“[w]ithout an adequate supply of BLM timber and [U.S. Forest
Service] timber, Rough & Ready may not be able to continue to
operate its facility and keep its current work force employed.”
Id. ¶ 2 (emphasis added). This is, however, the kind of uncertain
and unspecific prediction of future harm that is inadequate to
establish Article III standing. For example, in Chamber of
Commerce, the court concluded in light of its precedent that,
where injury to the petitioners’ members hinged on the actions
of third parties, declarations that a challenged policy “could” or
“may” cause injury were “insufficient to establish standing.”
642 F.3d at 201–02. See Grocery Mfrs. Ass’n v. EPA, 693 F.3d
169, 175 (D.C. Cir. 2012); Ctr. for Biological Diversity v. U.S.
Dep’t of the Interior, 563 F.3d 466, 478 (D.C. Cir. 2009); see
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also Ass’n of Flight Attendants-CWA, AFL-CIO v. U.S. Dep’t of
Transp., 564 F.3d 462, 466 n.1 (D.C. Cir. 2009); La. Envtl.
Action Network v. Browner, 87 F.3d 1379, 1384 (D.C. Cir.
1996). Even were Rough & Ready analogous to a directly
regulated party, that would not “diminish [its] burden to produce
evidence of the imminent nature of a specific harm.” See Am.
Chemistry Council v. Dep’t of Transp., 468 F.3d 810, 820 (D.C.
Cir. 2006) (emphasis added). Phillippi’s declaration supplies no
details that would render his prediction of future injury — that
Rough & Ready “may not be able to continue to operate its
facility” as a result of BLM’s actions, Phillippi Decl. ¶ 2 —
more certain than those this court has concluded are
“insufficient.”
The only record evidence that Rough & Ready will be
harmed by future shortfalls in Medford timber sales is
Phillippi’s averment that the company “has suffered economic
loss and hardship as a result of the sharp decrease in BLM
Medford [d]istrict timber sales in recent years.” Id. ¶ 5. “Of
course, past wrongs are evidence bearing on whether there is a
real and immediate threat of repeated injury.” O’Shea v.
Littleton, 414 U.S. 488, 496 (1974). The court, however, is told
nothing about the nature of Rough & Ready’s past injury.
Phillippi’s averments that harm to his company was caused by
BLM’s failure to sell enough timber in Medford and may recur
as a result of the same are “‘general averments’ and ‘conclusory
allegations’” that are “inadequate” to demonstrate standing,
Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc.,
528 U.S. 167, 184 (2000) (quoting Nat’l Wildlife Fed’n, 497
U.S. at 888). By contrast, in Mountain States, the owner of
plaintiff Owens & Hurst Lumber Company averred that his mill
had suffered a “temporary closing” and the “permanent lay off
of over 25 workers” when past timber sales on the land failed to
move forward and was then operating at reduced capacity,
employing 105 rather than 130 employees, “because of the
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unavailability of timber.” Declaration of James L. Hurst ¶¶ 3–4,
Mountain States, 92 F.3d 1228. Rough & Ready leaves the
court to speculate as to whether BLM’s actions will cause future
injury on the basis of an undefined past injury rather than
averring concrete past or ongoing harm connected with timber
shortages from Medford.
Contrary to the companies’ view, the fact that BLM
cancelled a sale in Medford for which Rough & Ready was the
high bidder does not demonstrate a “[t]hreat of mill closure”
caused by BLM. Appellees’ Br. 20–21. Phillippi avers that the
cancelled sale offered approximately 50% of the timber the
company would need for a year and that BLM has not offered
any volume to replace it. Phillippi Decl. ¶¶ 3–4. But the
companies do not challenge BLM’s cancellation of that timber
sale, and Phillippi never states that Rough & Ready suffered any
harm, much less had to lay off employees or close its mill, as a
result of the sale’s cancellation. He has not averred that Rough
& Ready lost the opportunity to compete for additional timber.
See Teton Historic Aviation Found. v. U.S. Dep’t of Def., ---
F.3d ---, No. 13-5039, 2015 WL 2145859, at *4 (D.C. Cir. May
8, 2015); CC Distribs., Inc. v. United States, 883 F.2d 146, 150
(D.C. Cir. 1989).
Neither is it self evident that the harm to Rough & Ready
was caused by reduced timber sales in Medford. Phillippi does
not indicate the extent of Rough & Ready’s reliance on timber
purchased from Medford; he avers only that his company relies
on timber purchased from Medford in addition to other sources,
i.e., the Rogue-Siskiyou National Forest and private sellers.
Moreover, the record shows that the 2008 economic decline
affected the timber market as demand for housing construction
declined. Without information about Rough & Ready’s past
injury, Phillippi’s declaration does not show Rough & Ready’s
economic losses “fairly can be traced” to BLM’s failure to
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comply with the annual sales provision of the O & C Act, see
Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 41 (1976),
rather than to an independent source, such as the recession. See
Delta Constr. Co. v. EPA, 783 F.3d 1291, 1296–97 (D.C. Cir.
2015); cf. T & S Products, Inc. v. U.S. Postal Serv., 68 F.3d 510,
513–14 (D.C. Cir. 1995). The Partin declaration supporting a
prospective OEM vacatur is no further help; although Partin
states that Rough & Ready went out of business in April 2013,
he says nothing about the cause. The companies’ objection that
the Secretaries “submitted no evidence showing all economic
losses to manufacturers since 2004 are due to poor market
conditions rather than inadequate BLM timber sales,”
Appellees’ Br. 29, misses the point; it is the companies’ burden
as plaintiffs to show an injury in fact fairly traceable to the
challenged conduct and redressible by the court. Lujan v.
Defenders of Wildlife, 504 U.S. at 561.
Additionally, Phillippi’s acknowledgment that timber in
Medford sold under the O & C Act is not the company’s sole
source of supply and the evidence of generally declining timber
sales and demand for timber products in western Oregon
underscore that Phillippi’s conclusory statements fail to show
that an order compelling BLM to sell 80% of the allowable sale
quantity of timber from Medford would redress Rough &
Ready’s injury. Even with increased timber sales in Medford,
Rough & Ready still may not be able to purchase enough timber
or sell enough of its product to operate. See Delta Constr. Co.,
783 F.3d at 1296–97; T & S Products, 68 F.3d at 514.
None of the other companies have proffered evidence of
injury resulting from the failure of the Secretary of the Interior
to sell 80% of the allowable sale quantity of timber from
Roseburg and Medford. Steven Swanson’s first declaration, in
support of summary judgment, points to no injury fairly
traceable to BLM’s conduct. Although averring that Swanson
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has been operating at reduced capacity, his declaration is
ambiguous as to whether this injury has been caused by timber
shortfalls or other “market conditions,” such as reduced demand
for timber products during the recent economic recession.
Swanson Decl. ¶ 2 (Jan. 30, 2012). He never avers that
Swanson’s past, present, or anticipated future supply of timber
was, is, or will be inadequate. Nor does he aver Swanson is
dependent on timber from Roseburg and Medford; rather, he
identifies a number of other sources of timber supply and does
not aver that these sources have not or will not meet the
company’s needs.
The other plaintiffs — the Washington Contract Loggers
Association, Inc., the American Forest Resource Council, and
Douglas Timber Operators, Inc. — fail to demonstrate
organizational standing based on the standing of any member.
See Hunt v. Wash. State Apple Adver. Comm’n, 432 U.S. 333,
343 (1977). Although the Council and Douglas Timber identify
member companies, they fail to aver that these members have
been injured by BLM’s actions. Instead, the declaration on
behalf of Douglas Timber states only that “[t]he combined
shortfall from Roseburg and Medford could have supplied” three
of its named members “for more than three years.” Bob Ragon
Decl. ¶ 6 (Jan. 24, 2012). This is not the same as evidence
identifying members that have “suffered the requisite harm”
from the timber shortfalls on O & C Act land. See Summers,
555 U.S. at 499; Chamber of Commerce, 642 F.3d at 199. The
declaration does not even state that these member companies fell
short of supply or suffered any other concrete injury. Under the
companies’ view, standing is established because the timber
organizations’ members are the primary purchasers of timber
from O & C Act land, and the industry is dependent on that
timber. That is tantamount to suggesting that the organizations’
standing is self evident. See Sierra Club, 292 F.3d at 899–900.
But a statistical probability of injury to an unnamed member is
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insufficient to confer standing on the organizations. See
Summers, 555 U.S. at 498–99; Am. Chemistry Council, 468 F.3d
at 821.
Absent a showing that any plaintiff has Article III standing
to challenge BLM’s failure to sell 80% of the allowable sale
quantity of timber from Roseburg and Medford in fiscal years
2004 through 2010, the court lacks jurisdiction to consider the
companies’ O & C Act claim.
B.
The same defects in the companies’ showing of Article III
standing to bring their O & C Act challenge carry over to their
procedural challenge to the OEM. Although a party alleging a
procedural injury is not required to “meet[] all the normal
standards for redressability and immediacy,” Lujan v. Defenders
of Wildlife, 504 U.S. at 572 n.7, at least one of the companies
“must still demonstrate a causal connection between the [OEM]
and the alleged injury” to itself or one of its members, see City
of Dania Beach, Fla. v. FAA, 485 F.3d 1181, 1186 (D.C. Cir.
2007); see also Summers, 555 U.S. at 496; WildEarth Guardians
v. Jewell, 738 F.3d 298, 306 (D.C. Cir. 2013).
The declarations from Rough & Ready and Swanson state
that BLM is using the OEM to exclude O & C Act lands from
federal timber sales. The declarations from the timber
organizations aver that their members have been similarly
injured with respect to other federal timberland. Neither Rough
& Ready nor Swanson has demonstrated an ongoing or
substantially likely future injury resulting from shortfalls in
timber sales from O & C Act lands, and the organizations fail to
identify any member injured by those or other federal timber
shortfalls. Even if the companies had proffered sufficient
evidence of past injury, they have not shown the OEM will
cause such injury to them to recur.
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The OEM is used by BLM, the Fish and Wildlife Service
(“FWS”), and the Forest Service in planning timber sales on
federal land in order to ensure compliance with the ESA. Under
the ESA, a federal agency must avoid unlawful “takings” of
endangered species by conducting a Biological Assessment and
consulting with FWS before acting in an area where an
endangered species is present. 16 U.S.C. §§ 1536(a)(2), (c)(1).
Where agency action approved by FWS is likely to result in
“takings,” FWS issues an Incidental Take Statement, along with
a Biological Opinion, that “specifies the impact” of the
incidental take on the species and sets out the “reasonable and
prudent measures” the Secretary of the Interior deems
“necessary or appropriate” to minimize that impact as well as
“terms and conditions” for the proposed action to proceed. Id.
§ 1536(b)(4); accord 50 C.F.R. § 402.14(i)(1). In 1990, FWS
listed the northern spotted owl as a threatened species pursuant
to the ESA. 50 C.F.R. § 17.11(h). The OEM quantifies the
incidental take of the northern spotted owl for purposes of
conducting Biological Assessments and developing and
implementing Incidental Take Statements.
The companies maintain that BLM has excluded land from
ESA consultation when the OEM indicates that a timber sale
may result in “take” of northern spotted owls. According to
Rough & Ready’s president, the OEM thereby prevents BLM
from planning timber sales on “thousands of acres of land.”
Phillippi Decl. ¶ 6. Specifically, Phillippi states that
“consultation filters” imposed on BLM by FWS in 2009
“effectively prohibit the BLM from initiating consultation on
any timber sale project that results in a ‘take’ of a northern
spotted owl under the OEM.” Id. BLM planning documents of
May 6, 2011, indicate that use of the OEM to predict impacts on
the northern spotted owl, in conjunction with the guidance from
FWS, see FWS Guidance to the BLM: Interim Review
Standards for Habitat Modification Projects That Would Affect
17
the Northern Spotted Owl or It’s Critical Habitat (Aug. 6, 2009),
would result in the withdrawal of a considerable portion of land
in Medford from timber sale planning. FWS issued its guidance
as an interim measure while it was revising its recovery plan for
the northern spotted owl. The revised recovery plan was
published on July 1, 2011. See 76 Fed. Reg. 38,575 (July 1,
2011). Nothing in the record indicates that BLM continues to
follow the interim guidance to exclude land from timber sale
planning whenever the OEM indicates a “take” will occur. That
the companies may have suffered a past injury caused by the
OEM does not confer standing for the forward-looking relief
they now seek. See Dearth, 641 F.3d at 501.
The companies’ declarations do not state that the OEM
otherwise has been used to reduce timber offered for sale that
the companies would purchase. They neither challenge nor
reference the impact of the OEM on any particular Biological
Assessment, Biological Opinion, or Incidental Take Statement
relating to timber sales, despite including dozens of such
documents using the OEM in the record. Absent evidence that
the only injury allegedly caused by the OEM will continue in the
future, the companies lack standing to pursue their procedural
claim.
Accordingly, because the companies fail to demonstrate
Article III standing to pursue their O & C Act and OEM claims,
the court lacks jurisdiction, and we dismiss the appeals and
vacate the judgment of the district court and remand with
instructions to the district court to dismiss the complaint.