Swanson Group Mfg, LLC v. Bureau of Land Management

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
SWANSON GROUP MFG., LLC, )
et al., )
)
Plaintiffs, )
v. ) Civil Action No. 14-211 (RJL)
)
DIRECTOR, BUREAU OF LAND )
MANAGEMENT, ) F I L E D
) SEP 28 2015
Defendant.
(glam, US. District & Bankruptcy
M OPINION urts for the District of Columbla
MEMO DU
(September , 2015) [Dkts. ## 17, 19]
Before the Court are cross-motions for summary judgment by plaintiffs and
defendant. Pls.’ Mot. for Summ. J. [Dkt # 17] (“Pls.’ Mot”), Def.’s Mot. for Summ. J.
[Dkt. # l9] (“Def.’s. Mot”). In these motions, the parties dispute the lawfulness of
defendant’s failure to offer for sale the timber that it was required to offer for sale under
the Oregon and California Railroad and Coos Bay Wagon Road Grant Lands Act of 1937
(“0&C Act”), 43 U.S.C. §ll8la. Upon due consideration of the parties’ pleadings, the
relevant law, and the entire record herein, 1 find that plaintiffs lack standing to bring this
suit and, accordingly, plaintiffs’ Motion for Summary Judgment [Dkt. # 17] is DENIED,
defendant’s Motion for Summary Judgment [Dkt. # 19] is GRANTED, and the case is
DISMISSED.
BACKGROUND
Plaintiffs Swanson Group Mfg. LLC, American Forest Resource Council
(“AFRC”) and Douglas Timber Operators, Inc. (“DTO”), who are three of the plaintiffs
in Swanson I, along with three other forest product manufacturers (collectively,
“plaintiffs”), have filed this case (“Swanson II”). Plaintiffs have brought suit against the
Bureau of Land Management (“BLM”) making essentially the same allegations that were
at issue in Swanson I, i.e. , that defendant had failed to offer for sale the timber that it was
required to offer for sale under the O&C Act. Plaintiffs in Swanson II request that this
Court extend the reasoning of the now-vacated Swanson I summary judgment opinion to
other Oregon districts that were not specifically at issue in Swanson I. See Comp]. 1] 21,
No. 14-211 [Dkt. # 1] (“The interpretation of the O & C Act set forth in the
Memorandum Opinion and Order of June 26, 2013 in [Swanson 1] applies to the BLM’s
management of its Coos Bay, Eugene, Lakeview and Salem districts in exactly the same
manner as to the BLM’s Medford and Roseburg districts”).
This case is one of three separate actions currently before the Court, at the
summary judgment stage, involving challenges related to timber sales in the Pacific
Northwest and habitat for the northern spotted owl. See Carpenters Industrial Council, et
al. v. Jewell, et al., No. 13-361 (filed on March 21, 2013) (“CIC v. Jewell”);1 Swanson
Group Mfg, LLC, et al. v. Director, Bureau of Land Management, No. 14-211 (filed on
Feb. 13, 2014) (“Swanson v. BLM” or “Swanson II”); American Forest Resource Council,
et al. v. Jewell, No. 14-368 (filed on March 7, 2014) (“AFRC v. Jewell”).2 Prior to
‘ The complaint initially named Kenneth Salazar in his official capacity as the Secretary of the Interior as
defendant, who was succeeded by the current Secretary of the Interior, Sally Jewell.
2 Another case involving similar claims was dismissed voluntarily by plaintiffs. See American Forest
Resource Council, et al. v. Salazar, et al., No. 11-1174 [Dkt. # 44]. An additional case involving similar
claims and many of the same plaintiffs was filed recently with this Court. See Swanson et a]. v. Jewell et
al., No, 15-1419 (filed on August 31, 2015).
commencing these three actions, many of the same plaintiffs brought suit in Swanson
Group Mfg, LLC, et al. v. Salazar, et al., No. 10—1843 (filed on Oct. 29, 2010)
(“Swanson I”).3 In Swanson I, I granted summary judgment in favor of the plaintiffs and
found two federal agency actions to be unlawful: (l) the failure to offer for sale a
declared amount of timber from two western Oregon districts, and (2) the development
and use of an Owl Estimation Methodology. See Order and Mem. Op., No. 10-1843
[Dkts. ## 58, 59]. Defendants appealed that decision to our Circuit Court, which vacated
the summary judgment ruling on the grounds that the plaintiffs in that case lacked
standing, and, therefore, their challenges to agency actions must be dismissed. See
Swanson Grp. Mfg. LLC v. Jewell, 790 F.3d 235, 238 (DC. Cir. 2015).
In light of the standing decision in Swanson I and the significant overlap between
the plaintiffs in that case and the three above-referenced actions, I ordered the parties in
these three cases to show cause in writing why the cases should not also be dismissed for
lack of standing. See Order to Show Cause, CIC v. Jewell, No. 13-361 [Dkt. # 82];
Swanson II, No. 14—211 [Dkt. # 28]; AFRC v. Jewell, No. 14-368 [Dkt. # 30]. In
response to the show cause orders, plaintiffs in each of the three actions filed briefs
accompanied by ten new declarations. See CIC v. Jewell, No. 13-361 [Dkts. ## 84-1—84-
ll]4; Swanson II, No. 14-211 [Dkts. ## 30—1—30-11];AFRC v. Jewell, No. 14-368 [Dkt.
# 32-1-32-1 l]. Defendants then filed a response in each of the three cases. See CIC v.
3 American Forest Resource Council and Swanson Group Manufacturing LLC, both of which are
plaintiffs in all three of the current actions, were plaintiffs in Swanson I as well. Douglas Timber
Operation, lnc., another plaintiff in Swanson I, is a plaintiff in two of the three remaining actions.
4 Plaintiff-intervenors in CIC v. Jewell moved for permission to respond to the show cause order, which
the Court granted. See No. 13-361 [Dkt. # 84]; Minute Order, July 22, 2015.
3
Jewell, No. 13-361 [Dkts. ## 88, 90]; Swanson II, No. 14-211 [Dkt. # 31]; AFRC v.
Jewell, No. 14-368 [Dkt. # 33].
STANDARD OF REVIEW
Summary judgment is appropriate when the pleadings and the record demonstrate
that “there is no genuine issue as to any material fact and that the moving party is entitled
to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The moving party bears the initial
burden of demonstrating the absence of a genuine dispute of material fact. See Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986). In this case, Where cross-motions for
summary judgment are at issue, the Court draws all reasonable inferences regarding the
assertions made in a light favorable to the non—moving party. Union Neighbors United,
Inc. v. Jewell, 83 F. Supp. 3d 280, 285 (D.D.C. 2015). The Court will “grant summary
judgment only if one of the moving parties is entitled to judgment as a matter of law upon
material facts that are not genuinely disputed.” Select Specialty Hosp. —Bloomington, Inc.
v. Sebelius, 774 F. Supp. 2d 332, 338 (D.D.C. 2011).
ANALYSIS
“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
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those disputes which are appropriately resolved through the judicial process. Clinton v.
City ofNew York, 524 U.S. 417, 429—30 (1998) (quoting Whitmore v. Arkansas, 495 U.S.
149, 155 ( 1990)). Plaintiffs 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 . . .
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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, plaintiffs “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 US. 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 US. at 561, at summary judgment, a court will not “‘presume’ the missing
facts” necessary to establish an element of standing, Lujan v. National Wildlife
Federation, 497 US. at 889.
“[W]hen the plaintiff is not himself the object of the government action or
inaction he challenges, standing is not precluded, but it is ordinarily ‘substantially more
difficult’ to establish.” Lujan v. Defenders of Wildlife, 504 US. at 562 (quoting Allen v.
Wright, 468 US. 737, 758 (1984)). Indeed, “courts [only] occasionally find the elements
of standing to be satisfied in cases challenging government action on the basis of third-
party conduct.” Nat ’1 Wrestling Coaches Ass ’n v. Dep’t 0fEduc., 366 F.3d 930, 940
(DC. Cir. 2004).
Furthermore, because plaintiffs here seek injunctive relief, they must Show that
they suffer an ongoing injury or face imminent future injury. See Dearth v. Holder, 641
F.3d 499, 501 (DC. 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 (DC. Cir. 2011) (quoting United Transp. Union v.
ICC. 891 F.2d 908, 913 (DC. Cir. 1989)). That is, “to ‘shift[ ] injury from conjectural to
imminent,’ the [plaintiffs] must show that there is a ‘substantial . . . probability’ of
injury.” Id. (first alteration in original) (quoting Sherley v. Sebelius, 610 F.3d 69, 74
(DC. Cir. 2010) (internal quotation marks omitted)).
1. Consideration of Newly Submitted Declarations
In Sierra Club v. EPA, our Circuit Court held that a petitioner whose standing is
not self-evident “should establish its standing by the submission of its arguments and any
affidavits or other evidence appurtenant thereto at thefirst appropriate point in the
review proceeding.” 292 F .3d 895, 900 (DC. Cir. 2002) (emphasis added). Our Circuit
Court further explained that “[a]bsent good cause shown, however, a litigant should not
expect the court” to grant an “opportunity to submit post—argument affidavits further
demonstrating” standing. Id; see also Fed. R. Civ. P. 6(c)(2) (“Any affidavit supporting
a motion must be served with the motion”).
Here, plaintiffs have had ample opportunity to establish standing. Indeed, in
moving for summary judgment, plaintiffs put forward numerous declarations alleging
AWWMwst-Mxixp in s A, ..
facts and advancing arguments as to why they had standing.5 The order to show cause
that I entered in this case was an invitation for the parties to state reasons why the
existing declarations were sufficient and why the cases should not be dismissed pursuant
to our Circuit Court’s decision in Swanson I. The orders were not an invitation to re-
open the evidentiary record for new declarations and averments about the nature of
plaintiffs’ harm. See Sierra Club, 292 F.3d at 901 (“Requiring the petitioner to establish
its standing at the outset of its case is the most fair and orderly process by which to
determine whether the petitioner has standing to invoke the jurisdiction of the court”).
Unfortunately for plaintiffs, their response has not demonstrated the good cause
necessary to accept new declarations after the close of summary judgment briefing, and,
accordingly, I decline to consider them.
11. Standing Analysis
Much of the substance of the original standing declarations that plaintiffs filed
along with their motion for summary judgment concern the very same allegations of
economic harm that were rejected by our Circuit Court in Swanson 1. Compare Decl. of
Thomas L. Partin 1] 3, No. 10—1843 [Dkt. # 41-6] (“Many of AFRC’s members have been
unable to purchase timber sales, and have suffered economic loss, as a result of the
failure of the BLM in recent years to sell the allowable sale quantity of timber it has
determined and declared in its [resource management plans] for each of its western
Oregon districts under the [O & C Act].”), with Decl. of Thomas L. Partin 1i 5, No. 14-
5 See No. 14—21 1 [Dkts ## 17-1—17-6] (Declarations of Thomas L. Partin, Bob Ragon, Steven D.
Swanson, Robert T. Freres, Todd A. Payne, and Todd Nystrom).
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211 [Dkt. # 17-1] (“Every AFRC member who purchases or seeks to purchase BLM
timber sales has been injured financially by BLM’s failure to offer for sale 100 percent of
the allowable sale quantity of timber it has determined and declared in its [Resource
Management Plans].”).6 These are indistinguishable from the conclusory allegations of
economic harm that were insufficient in Swanson I. See Swanson Grp. Mfg. LLC, 790
F.3d at 242 (“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”).
Regarding these kinds of averments, our Circuit Court explained in Swanson I:
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 district timber sales in recent years. . . . 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. . . .
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 . . . .
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
" Even if I were to consider the newly filed declarations, many of their averments of economic harm post-
date the filing of this lawsuit. See, e.g., Decl. of Lee Sanders, No. 14-211 [Dkt. # 30-4]; Decl. of Rick
Svilich, No. 14-21 1 [Dkt. # 30-6]. Standing, however, is assessed by considering facts at the time the
complaint was first filed. See Wheaton Coll. v. Sebelius, 703 F .3d 551, 552 (DC. Cir. 2012) (citing
Chamber of Commerce v. EPA, 642 F.3d 192, 200 (DC. Cir. 201 1)); see also La Botz v. Fed. Election
Comm ’n, 61 F. Supp. 3d 21, 28 (BBC. 2014) (“[S]tanding in the present action is ascertained from the
facts as they existed when [the plaintiff] first filed his complaint in this Court . . . .”).
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failure to comply with the annual sales provision of the O & C Act, rather
than to an independent source, such as the recession.
Id. at 242—43 (citations and quotation marks omitted).
Plaintiffs have presented no new arguments as to why their general averments and
conclusory allegations of economic harm are now sufficient. Indeed, just as in
Swanson I, plaintiffs cannot show that any of their economic losses are traceable to the
failure to offer for sale timber under the O&C Act instead of to an “independent source,
such as the recession,” or that their prediction of future injury is “more certain than those
[the DC. Circuit] has concluded are ‘insufficient.’” Id.
Lastly, plaintiffs fail to demonstrate organizational standing based on the standing
of any member. See Hunt v. Wash. State Apple Adver. Comm ’n, 432 US. 333, 343
(1977). Just as in Swanson I, plaintiffs fail to present evidence identifying members that
have “suffered the requisite harm” from timber shortfalls on O & C lands. See Summers
v. Earth Island Inst, 555 US. 488, 499 (2009); Chamber ofCommerce v. EPA, 642 F.3d
at 199.
Therefore, in accordance with our Circuit Court’s decision in Swanson I, I find
that plaintiffs have not demonstrated economic injury sufficient to have Article III
standing to challenge the timber sales from the districts at issue in this case.
CONCLUSION
Thus, for all of the foregoing reasons, plaintiffs’ motion for summary judgment is
DENIED, defendant’s motion for summary judgment is GRANTED, and this case is
DISMISSED for lack of standing. An Order consistent with this decision accompanies
this Memorandum Opinion.
RICHARD
United States District Judge
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