throbber

`CASCADIA WILDLANDS, KLAMATH-
`SISKIYOU WILDLANDS CENTER, AND
`OREGON WILD,
`
`
`Plaintiffs,
`
`
`
` vs.
`
`BUREAU OF LAND MANAGEMENT and
`UNITED STATES DEPARTMENT OF the
`INTERIOR,
`
`
`
`Civ. Case No.
`
`
`COMPLAINT FOR DECLARATORY
`AND INJUNCTIVE RELIEF
`
`Federal Land Policy and Management Act,
`42 U.S.C. § 1701 et seq.; Administrative
`Procedure Act, 5 U.S.C. § 551 et seq.
`
`Case 6:21-cv-01487-MC Document 1 Filed 10/12/21 Page 1 of 40
`
`SUSAN JANE M. BROWN (OSB #054607)
`WESTERN ENVIRONMENTAL LAW CENTER
`4107 NE Couch St.
`Portland, OR 97232
`(503) 914-1323
`brown@westernlaw.org
`
`Attorney for Plaintiffs
`
`
`UNITED STATES DISTRICT COURT
`DISTRICT OF OREGON
` EUGENE DIVISION
`
`
`
`
`Defendant.
`
`
`INTRODUCTION
`
`1.
`
`Plaintiffs Cascadia Wildlands, Klamath-Siskiyou Wildlands Center, and Oregon Wild
`
`(“Plaintiffs”) bring this action for declaratory and injunctive relief against federal Defendants
`
`Bureau of Land Management and United States Department of the Interior (“the BLM”) for
`
`promulgating a final rule that: (1) violates the administrative review requirement of 42 U.S.C. §
`
`1701(a)(5) of the Federal Land Policy and Management Act (“FLPMA”) and (2) violates 5
`
`U.S.C. § 706 and 5 U.S.C. § 553(c) of the Administrative Procedure Act (“APA”).
`
`2.
`
`This action stems from the BLM’s final rule, Forest Management Decision Protest
`
`
`COMPLAINT FOR DECLARATORY
`AND INJUNCTIVE RELIEF - 1 -
`
`
`
`
`Western Environmental Law Center
`4107 NE Couch St.
`Portland, OR 97232
`(503) 914-1323
`
`

`

`Case 6:21-cv-01487-MC Document 1 Filed 10/12/21 Page 2 of 40
`
`Process and Timber Sale Administration, 85 Fed. Reg. 82,359 (Dec. 18, 2020) (“Final
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`Administrative Protest Elimination Rule”), which Plaintiffs challenge on its face.
`
`3.
`
`Plaintiffs also incorporate an as-applied challenge to the Administrative Protest
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`Elimination Rule as relied on by the BLM to authorize the Mine your Manners Timber Sale
`
`Decision Record (“Mine your Manners Timber Sale”) without an administrative protest process.
`
`4.
`
`Should Plaintiffs prevail, Plaintiffs will seek an award of costs and attorneys’ fees
`
`pursuant to the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412.
`
`JURISDICTION AND VENUE
`
`5.
`
`This court has jurisdiction pursuant to 28 U.S.C. § 1331 (Federal Question) because this
`
`action arises under the laws of the United States: 43 U.S.C. § 1701 et seq. (FLPMA) and 5
`
`U.S.C. § 551 et seq. (APA).
`
`6.
`
`The relief sought is authorized by 28 U.S.C. § 2201 (Declaratory Judgment) and 28
`
`U.S.C. § 2202 (Injunctive Relief).
`
`7.
`
`Venue is proper pursuant to 28 U.S.C. § 1391(e)(1)(B) because Defendant is a federal
`
`agency of the United States government and a substantial part of BLM property that is affected
`
`by the challenged Administrative Protest Elimination Rule is situated within this judicial district.
`
`INTRADISTRICT ASSIGNMENT
`
`8.
`
`This case is properly assigned to the Eugene Division under Civil L.R. 3-2 because the
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`challenged timber sale, Mine your Manners, is located in Lane County. Other BLM-managed
`
`lands also affected by the Administrative Protest Elimination Rule, at issue in this dispute, are
`
`also located within the Eugene Division. The BLM’s violations of federal law have and will
`
`continue to affect lands located within the Eugene Division.
`
`Additionally, Plaintiffs Cascadia Wildlands and Oregon Wild both have offices within
`
`9.
`
`COMPLAINT FOR DECLARATORY
`AND INJUNCTIVE RELIEF - 2 -
`
`
`
`
`Western Environmental Law Center
`4107 NE Couch St.
`Portland, OR 97232
`(503) 914-1323
`
`

`

`Case 6:21-cv-01487-MC Document 1 Filed 10/12/21 Page 3 of 40
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`the Eugene Division, and many individual members of each of the Plaintiff organizations are
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`located within the Eugene Division.
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`PARTIES
`
`10.
`
`Plaintiff CASCADIA WILDLANDS is a non-profit corporation headquartered in
`
`Eugene, Oregon, with approximately 12,000 members and supporters throughout the United
`
`States. Cascadia Wildlands educates, agitates, and inspires a movement to protect and restore
`
`wild ecosystems in the Cascadia Bioregion, extending from Northern California up into Alaska.
`
`Cascadia Wildlands envisions vast old-growth forests, rivers full of salmon, wolves howling in
`
`the backcountry, and vibrant communities sustained by the unique landscapes of the Cascadia
`
`Bioregion. Cascadia Wildlands’ members and staff have used and will continue to use the Mine
`
`your Manners Timber Sale area for activities such as hiking, bird watching, camping, swimming,
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`fishing, foraging, photography, and other recreational and professional pursuits. The interests of
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`Cascadia Wildlands and its members will be irreparably harmed if the Mine your Manners
`
`Timber Sale is allowed to proceed without compliance with our federal environmental laws.
`
`11.
`
`Cascadia Wildlands has filed hundreds of administrative protests of federal timber sales
`
`and other projects over the past two decades of monitoring public lands’ management in the
`
`Pacific Northwest. The organization has filed these protests on behalf of members and supporters
`
`fearful that the actions of the BLM failed to take into account or mitigate negative impacts to
`
`their communities, recreation opportunities, habitats, public safety, fire, drinking water, and
`
`imperiled species. The BLM has withdrawn decisions in response to Cascadia Wildlands’
`
`protests, revised NEPA documents in response to Cascadia Wildlands’ protests, and
`
`substantively changed projects to address Cascadia Wildlands’ concerns in response to the
`
`organization’s protests.
`
`COMPLAINT FOR DECLARATORY
`AND INJUNCTIVE RELIEF - 3 -
`
`
`
`
`Western Environmental Law Center
`4107 NE Couch St.
`Portland, OR 97232
`(503) 914-1323
`
`

`

`Case 6:21-cv-01487-MC Document 1 Filed 10/12/21 Page 4 of 40
`
`12.
`
`Cascadia Wildlands engaged and commented during the BLM’s rulemaking to eliminate
`
`the administrative protest process. The elimination of the administrative protest takes away
`
`Cascadia Wildlands’ ability to advocate for its members and supporters through the
`
`administrative process. Frequently, issues are raised and addressed through these protests and
`
`ultimately resolved and/or further agency explanation in addressing and responding to
`
`administrative protests resolves many community concerns about impending projects. The
`
`elimination of the administrative protest moves administrative review from the BLM to federal
`
`district courts. The elimination of the administrative protest will and has increased the urgency
`
`with which these matters are brought before district courts, increasing the likelihood that
`
`temporary restraining orders and preliminary injunctions will need to be sought to prevent the
`
`logging of projects before their legality can be determined. The elimination of the administrative
`
`protest harms Cascadia Wildlands and its members and supporters by reducing their
`
`opportunities to improve federal land-management projects. The burden shift of this protest
`
`elimination further harms the organization by greatly increasing the expensive legal burden on
`
`Cascadia Wildlands and the communities it supports.
`
`13.
`
`Cascadia Wildlands provided timely comments on the Row River Timber Management
`
`Project Environmental Assessment (“Row River EA”), through which Mine your Manners was
`
`analyzed.
`
`14.
`
`Plaintiff KLAMATH-SISKIYOU WILDLANDS CENTER (“KS Wild”) is a domestic
`
`nonprofit corporation organized and existing under the laws of the State of Oregon. KS Wild’s
`
`primary office is in Ashland, Oregon. KS Wild has over 3,500 members and supporters in more
`
`than 10 states, with most members concentrated in southern Oregon and northern California. On
`
`behalf of its members, KS Wild advocates for the forests, wildlife, and waters of the Rogue and
`
`COMPLAINT FOR DECLARATORY
`AND INJUNCTIVE RELIEF - 4 -
`
`
`Western Environmental Law Center
`4107 NE Couch St.
`Portland, OR 97232
`(503) 914-1323
`
`
`
`

`

`Case 6:21-cv-01487-MC Document 1 Filed 10/12/21 Page 5 of 40
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`Klamath Basins and works to protect and restore the extraordinary biological diversity of the
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`Klamath- Siskiyou region of southwest Oregon and northwest California. KS Wild uses
`
`environmental law, science, education, and collaboration to help build healthy ecosystems and
`
`sustainable communities. Through its campaign work, KS Wild strives to protect the last wild
`
`areas and vital biological diversity of the Klamath-Siskiyou region. KS Wild is a leader in
`
`protecting Oregon’s public lands and forests, and routinely participates in monitoring and
`
`commenting on and challenging in court actions affecting public lands in Oregon. KS Wild is a
`
`membership organization and has members who would be irreparably injured by the BLM’s
`
`elimination of the timber sale administrative protest process.
`
`15.
`
`For several decades, KS Wild and its members have utilized the administrative timber
`
`sale protest process as a means of increasing the transparency and efficacy of BLM public lands
`
`management. In particular, the BLM’s timber sale protest process has afforded KS Wild and its
`
`members with a meaningful opportunity to voice legal concerns to the agency and to potential
`
`timber purchasers without needing to file litigation. This has been particularly important for
`
`proposed BLM timber sales that contain “regeneration harvesting” in which fire hazard in treated
`
`stands is increased for decades through the establishment of flammable, dense young timber
`
`plantations.
`
`16.
`
`By eliminating the timber sale administrative protest process the BLM, and the automatic
`
`stay of operations associated with a timber sale appeal the Interior Board of Land Use Appeals
`
`(IBLA), the BLM has created a perverse incentive in which the only opportunity for KS Wild to
`
`meaningfully object to illegal timber sale proposals that increase fire hazard is to file litigation in
`
`federal court immediately after a project Decision Record is signed. The BLM’s attempts to stifle
`
`meaningful administrative review of its timber sale program will adversely impact KS Wild, its
`
`COMPLAINT FOR DECLARATORY
`AND INJUNCTIVE RELIEF - 5 -
`
`
`Western Environmental Law Center
`4107 NE Couch St.
`Portland, OR 97232
`(503) 914-1323
`
`
`
`

`

`Case 6:21-cv-01487-MC Document 1 Filed 10/12/21 Page 6 of 40
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`members, and the public.
`
`17.
`
`Plaintiff OREGON WILD is a charitable, non-profit corporation headquartered in
`
`Portland, Oregon with approximately 20,000 members and supporters who share our mission to
`
`protect and restore Oregon's wildlands, wildlife, and waters as an enduring legacy. Oregon Wild
`
`seeks to protect the state's remaining old-growth forests and roadless areas, and restore fully-
`
`functioning ecosystems and watersheds with a full complement of native species. For more than
`
`four decades, Oregon Wild staff and members have regularly participated in the NEPA process
`
`and submitted comments on timber sales and other management activities on federal public lands
`
`managed by the USDI Bureau of Land Management. In recent decades, Oregon Wild has availed
`
`itself of the BLM protest authority and filed well over 100 formal protests of BLM timber sales.
`
`18.
`
`The protest process has proved to be a useful way to engage with BLM managers to find
`
`mutually agreeable ways of resolving disputes surrounding BLM timber sales so that litigation
`
`can be avoided. For example, in August 2010, Oregon Wild resolved its protest of Salem BLM's
`
`Gordon Creek Thinning Project after BLM agreed to modify logging in some riparian reserves.
`
`In January 2016, Oregon Wild agreed to withdraw our protest of Salem BLM's ThunderKat and
`
`Bent Beekman timber sales after BLM agreed to defer logging in one stand (Unit 2) and modify
`
`logging prescription in a few adjacent areas (Unit 3) from clearcutting to thinning. In May 2011,
`
`Oregon Wild agreed to withdraw its protest after Salem BLM agreed to modify sample-tree
`
`falling practices. In other cases, the protest process helps narrow the issues surrounding BLM
`
`timber sales so that potential litigation is more focused and efficient. The challenged rule renders
`
`impossible the possibility of administratively resolving disputes such as these.
`
`19.
`
`Oregon Wild provided timely comments on the Row River EA, through which Mine your
`
`Manners was analyzed.
`
`COMPLAINT FOR DECLARATORY
`AND INJUNCTIVE RELIEF - 6 -
`
`
`
`
`Western Environmental Law Center
`4107 NE Couch St.
`Portland, OR 97232
`(503) 914-1323
`
`

`

`Case 6:21-cv-01487-MC Document 1 Filed 10/12/21 Page 7 of 40
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`20.
`
`Defendant BUREAU OF LAND MANAGEMENT (“the BLM”) is a federal agency
`
`within the Department of the Interior. The BLM is responsible for administering federal public
`
`lands, including the Mine your Manners Timber Sale, Oregon & California Railroad Revested
`
`Lands, and other public lands in the West, in accordance with FLPMA, the APA, and other
`
`federal statutes.
`
`21.
`
`Defendant DEPARTMENT OF the INTERIOR is a cabinet-level federal agency that
`
`contains and is responsible for overseeing the activities of the BLM.
`
`BACKGROUND
`
`The Administrative Procedure Act
`
`22.
`
`The APA is a federal statute that was enacted “to improve the administration of justice by
`
`prescribing fair administrative procedure.” Administrative Procedure Act, Pub. L. No. 79-404,
`
`60 Stat. 237 (1946); 5 U.S.C. § 551 et seq.
`
`23.
`
`The APA requires that agencies “give interested persons an opportunity to participate in
`
`[] rule making through submission of written data, views, or arguments with or without
`
`opportunity for oral presentation. After consideration of the relevant matter presented,
`
`the agency shall incorporate in the rules adopted a concise general statement of their basis and
`
`purpose.” 5 U.S.C. § 553(c).
`
`24.
`
`As part of that consideration, agencies “must consider and respond
`
`to significant comments received during the period for public comment.” Perez v. Mortg.
`
`Bankers Ass'n, 575 U.S. 92, 96 (2015); see 5 U.S.C. § 553(c); see also Idaho Farm Bureau Fed'n
`
`v. Babbitt, 58 F.3d 1392, 1404 (9th Cir. 1995); American Mining Congress v. EPA, 965 F.2d
`
`759, 771 (9th Cir. 1992). Where an agency fails to respond to significant comments, the agency
`
`rulemaking violates the APA. See id.; see also United States v. Nova Scotia Food Prod. Corp.,
`
`COMPLAINT FOR DECLARATORY
`AND INJUNCTIVE RELIEF - 7 -
`
`
`Western Environmental Law Center
`4107 NE Couch St.
`Portland, OR 97232
`(503) 914-1323
`
`
`
`

`

`Case 6:21-cv-01487-MC Document 1 Filed 10/12/21 Page 8 of 40
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`568 F.2d 240 (2d Cir.1977); Portland Cement Ass’n v. Ruckelshaus, 486 F.2d 375, 393–94 (D.C.
`
`Cir. 1973), cert. denied 417 U.S. 921, 94 S. Ct. 2628 (1974); Nehemiah Corp. of Am. v. Jackson,
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`546 F. Supp. 2d 830, 842 (E.D. Cal. 2008).
`
`25.
`
`Additionally, the APA provides for judicial review of final agency action. 5 U.S.C. § 704.
`
`Regarding when an action is considered final, § 704 states that “agency action otherwise final is
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`final for the purposes of this section [regardless of any reconsideration], or, unless the agency
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`otherwise requires by rule and provides that the action meanwhile is inoperative, for an appeal to
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`superior agency authority.” Id.
`
`26.
`
`In Darby v. Cisneros, the Supreme Court held that “where the APA applies, an appeal to
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`superior agency authority is a prerequisite to judicial review only when expressly required by
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`statute or when an agency rule requires appeal before review and the administrative action is
`
`made inoperative pending that review.” 509 U.S. 137, 154 (1993). The Court stated that this
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`ensures that “agencies may avoid the finality of an initial decision” only “by providing that the
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`initial decision would be inoperative pending appeal. Otherwise, the initial decision becomes
`
`final and the aggrieved party is entitled to judicial review.” Id. at 152.
`
`27.
`
`The APA provides that courts must “hold unlawful and set aside agency action, findings,
`
`and conclusions found to be … arbitrary, capricious, an abuse of discretion, or otherwise not in
`
`accordance with law.” 5 U.S.C. § 706(2)(A).
`
`28.
`
`The Supreme Court has held that an agency action is arbitrary, capricious, and not in
`
`accordance with law “if [an] agency has relied on factors which Congress has not intended it to
`
`consider, entirely failed to consider an important aspect of the problem, offered an explanation
`
`for its decision that runs counter to the evidence before the agency, or is so implausible that it
`
`could not be ascribed to a difference in view or the product of agency expertise.” Motor Vehicles
`
`COMPLAINT FOR DECLARATORY
`AND INJUNCTIVE RELIEF - 8 -
`
`
`Western Environmental Law Center
`4107 NE Couch St.
`Portland, OR 97232
`(503) 914-1323
`
`
`
`

`

`Case 6:21-cv-01487-MC Document 1 Filed 10/12/21 Page 9 of 40
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`Mfrs v. State Farm, 463 U.S. 29, 43 (1983). The Court also stated that an agency “must examine
`
`the relevant data and articulate a satisfactory explanation for its action including a rational
`
`connection between the facts found and the choice made.” Id.
`
`29.
`
`Further, under the APA, when an agency is not acting in an area for the first time, but
`
`instead changing its position on a particular issue on which it has conducted rulemaking in the
`
`past, the agency is “obligated to supply a reasoned analysis for the change.” State Farm, 463
`
`U.S. at 42; see also Organized Vill. of Kake v. U.S. Dep’t of Agriculture, 795 F.3d 956, 968 (9th
`
`Cir. 2015) (“[E]ven when reversing a policy after an election, an agency may not simply discard
`
`prior factual findings without a reasoned explanation”).
`
`30.
`
`In FCC v. Fox Television Stations, Inc., the Supreme Court laid out four considerations
`
`that an agency must meet when it changes policy. 556 U.S. 502, 515-516 (2009). The agency
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`must demonstrate that it: “(1) displays ‘awareness that it is changing position,’ (2) shows that
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`‘the new policy is permissible under the statute,’ (3) ‘believes’ the new policy is better, and (4)
`
`provides ‘good reasons’ for the new policy, which, if the ‘new policy rests upon factual findings
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`that contradict those which underlay its prior policy,’ must include ‘a reasoned explanation ... for
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`disregarding facts and circumstances that underlay or were engendered by the prior policy’” or
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`“when its prior policy has engendered serious reliance interests that must be taken into account.”
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`Organized Vill. of Kake, 795 F.3d at 966 (quoting Fox Television Stations, Inc., 556 U.S. at 515-
`
`516).
`
`The BLM’s Land Management Authorities
`
`31.
`
`The BLM is responsible for managing 245 million acres of public lands, approximately
`
`12% of the landmass of the United States – more than any other government agency. What We
`
`Manage, BUREAU OF LAND MANAGEMENT, https://www.blm.gov/about/what-we-
`
`COMPLAINT FOR DECLARATORY
`AND INJUNCTIVE RELIEF - 9 -
`
`
`
`
`Western Environmental Law Center
`4107 NE Couch St.
`Portland, OR 97232
`(503) 914-1323
`
`

`

`Case 6:21-cv-01487-MC Document 1 Filed 10/12/21 Page 10 of 40
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`manage/national (last visited Apr. 29, 2021).
`
`32.
`
`The BLM primarily derives its authority from the Federal Land Policy and Management
`
`Act of 1976 (“FLPMA”), which directs the agency to manage public lands “on the basis of
`
`multiple use and sustained yield.” 43 U.S.C. § 1701(a)(7).
`
`33.
`
`FLPMA mandates that the BLM manage public lands “in a manner that will protect the
`
`quality of scientific, scenic, historical, ecological, environmental, air and atmospheric, water
`
`resource, and archeological values; that, where appropriate, will preserve and protect certain
`
`public lands in their natural condition; that will provide food and habitat for fish and wildlife and
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`domestic animals; and that will provide for outdoor recreation and human occupancy and use.”
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`43 U.S.C. § 1701(a)(8).
`
`34.
`
`FLPMA states that the BLM is “required to establish comprehensive rules and
`
`regulations after considering the views of the general public; and to structure adjudication
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`procedures to assure adequate third party participation, objective administrative review of initial
`
`decisions, and expeditious decisionmaking.” 43 U.S.C. 1701(a)(5); see Mountain State Legal
`
`Foundation v. Andrus 499 F. Supp. 383, 395 (10th Cir. 1980) (stating that “[t]he language of
`
`Congress is mandatory” regarding the third party engagement requirements of § 1705(a)(5)).
`
`35.
`
`FLPMA also emphasizes the importance of public participation elsewhere in the statute,
`
`stating that the BLM shall establish procedures “to give the public adequate notice and an
`
`opportunity…to participate in the preparation and execution of plans and programs for, and the
`
`management of, the public lands.” 43 U.S.C. § 1639(e).
`
`36.
`
`In 1971, the Interior Board of Land Appeals (“IBLA”) was created by regulation. 43
`
`C.F.R. § 4.1(b)(2). IBLA is an administrative appeals board of the Department of the Interior
`
`with administrative jurisdiction to render final decisions relating to public lands and their
`
`COMPLAINT FOR DECLARATORY
`AND INJUNCTIVE RELIEF - 10 -
`
`
`Western Environmental Law Center
`4107 NE Couch St.
`Portland, OR 97232
`(503) 914-1323
`
`
`
`

`

`Case 6:21-cv-01487-MC Document 1 Filed 10/12/21 Page 11 of 40
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`resources. Id. IBLA’s authority includes review of administrative appeals of decisions made by
`
`BLM officials.
`
`37.
`
`Included in the BLM’s management authority are the Oregon and California Railroad
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`Revested Lands (“O&C Lands”), placed under the agency’s administration by the Oregon and
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`California Revested Lands Sustained Yield Management Act of 1937. 43 U.S.C. § 2601 et seq.
`
`38.
`
`The O&C Lands are comprised of 2.4 million forested acres checkerboarded across
`
`western Oregon that contain a diversity of plant and animal species, recreation areas, grazing
`
`lands, cultural and historical resources, scenic areas, wild and scenic rivers, and wilderness.
`
`O&C Lands, BUREAU OF LAND MANAGEMENT, https://www.BLM.gov/programs/natural-
`
`resources/forests-and-woodlands/oc-lands (last visited Apr. 16, 2021). The O&C Lands are
`
`distinct in that they are one of the few forested lands managed by the BLM: federal forest
`
`management is more commonly carried out by the United States Forest Service on the national
`
`forests that encompass approximately 193 million acres of federal lands across the country.
`
`The National Environmental Policy Act
`
`39.
`
`The National Environmental Policy Act of 1970 (“NEPA”), 42 U.S.C. § 4331 et seq., was
`
`enacted by Congress to ensure that effects to human health and the environment were considered
`
`in all federal agency decisions. NEPA requires the preparation of an environmental impact
`
`statement (“EIS") for “major Federal actions significantly affecting the quality of the human
`
`environment.” 42 U.S.C. § 4332(C).
`
`40.
`
`The Council on Environmental Quality (“CEQ”) is charged with promulgating NEPA
`
`regulations, which guide federal agencies in designing their own NEPA procedures. 40 C.F.R. §
`
`1500 et seq. (2020).
`
`The BLM’s NEPA procedures are described in its NEPA Handbook. BUREAU OF LAND
`
`41.
`
`COMPLAINT FOR DECLARATORY
`AND INJUNCTIVE RELIEF - 11 -
`
`
`
`
`Western Environmental Law Center
`4107 NE Couch St.
`Portland, OR 97232
`(503) 914-1323
`
`

`

`Case 6:21-cv-01487-MC Document 1 Filed 10/12/21 Page 12 of 40
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`MANAGEMENT, NEPA HANDBOOK, H-1790-1 (2008).
`
`42.
`
`The CEQ’s NEPA regulations allow an agency to prepare an environmental assessment
`
`(EA) rather than an EIS “for a proposed action that is not likely to have significant effects or
`
`when the significance of the effects is unknown unless the agency finds that a categorical
`
`exclusion (§ 1501.4) is applicable or has decided to prepare an EIS.” 40 C.F.R. § 1501.5 (2020).
`
`43.
`
`The CEQ’s NEPA regulations only require an agency preparing an EA to “involve the
`
`public… to the extent practicable.” 40 C.F.R. § 1501.5(e) (2020).
`
`44.
`
`As noted in the BLM’s NEPA Handbook, this means that “[t]he CEQ regulations do not
`
`require agencies to make EAs available for public comment and review.” NEPA HANDBOOK at
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`76. The BLM NEPA Handbook goes on to state that it is at “the discretion [of the decision-
`
`maker] to determine how much and what kind of involvement works best for each individual
`
`EA.” Id.
`
`45.
`
`The CEQ’s NEPA regulations allow an agency to create (and use) “categories of actions
`
`that normally do not have a significant effect on the human environment, and therefore do not
`
`require preparation of an environmental assessment or environmental impact statement.” 40
`
`C.F.R. § 1501.4 (2020). Once created, such an exception to the requirement to prepare an EIS or
`
`EA is referred to as a categorical exclusion (“CX”).
`
`46.
`
`Neither the CEQ’s NEPA Regulations or the BLM’s NEPA Handbook require or suggest
`
`that the BLM provide for public comment or any other public involvement in the process of
`
`preparing a CX.
`
`47.
`
`In 2020, CEQ revised its NEPA regulations. Update to the Regulations Implementing the
`
`Procedural Provisions of the National Environmental Policy Act; Final Rule, 85 Fed. Reg.
`
`43,304 (July 16, 2020) (to be codified at 40 C.F.R. Part 1500). CEQ’s revised NEPA regulations
`
`COMPLAINT FOR DECLARATORY
`AND INJUNCTIVE RELIEF - 12 -
`
`
`Western Environmental Law Center
`4107 NE Couch St.
`Portland, OR 97232
`(503) 914-1323
`
`
`
`

`

`Case 6:21-cv-01487-MC Document 1 Filed 10/12/21 Page 13 of 40
`
`state that “An agency may apply the regulations in this subchapter to ongoing activities and
`
`environmental documents begun before September 14, 2020.” 40 C.F.R. § 1506.13. The Protest
`
`Rulemaking challenged in this action began before September 14, 2020. Forest Management
`
`Decision Protest Process and Timber Sale Administration, Proposed Rule, 85 Fed. Reg. 34,689
`
`(June 8, 2020).
`
`48.
`
`On his first day of office, President Biden issued Executive Order 13990 (EO 13990):
`
`Protecting Public Health and the Environment and Restoring Science to Tackle the Climate
`
`Crisis. EO 13990 states that the policy of the Biden Administration is to, inter alia, utilize the
`
`best available science, improve public health, and protect our environment in federal
`
`decisionmaking. EO 13990 directs the heads of all agencies to review all existing regulations,
`
`orders, guidance documents, policies, and any similar agency actions promulgated, issued, or
`
`adopted between January 20, 2017, and January 20, 2021 that are inconsistent with the policy
`
`statement.
`
`49.
`
`The Biden Administration provided a non-exclusive list of agency actions that the heads
`
`of relevant agencies will review in accordance with EO 13990. CEQ has already taken steps to
`
`review and revise the 2020 CEQ NEPA regulations.
`
`50.
`
`In response to EO 13990, the Secretary of Interior issued Secretarial Order (“SO”) No.
`
`3399: Department-Wide Approach to the Climate Crisis and Restoring Transparency and
`
`Integrity to the Decision-Making Process. SO 3399 states that “Bureaus/Offices will not apply
`
`the 2020 Rule in a manner that would change the application or level of NEPA that would have
`
`been applied to a proposed action before the 2020 Rule went into effect on September 14, 2020.”
`
`The Bureau of Land Management Timber Sale Process
`
`The BLM timber sale decision process starts with analysis conducted by the BLM as
`
`51.
`
`COMPLAINT FOR DECLARATORY
`AND INJUNCTIVE RELIEF - 13 -
`
`
`
`
`Western Environmental Law Center
`4107 NE Couch St.
`Portland, OR 97232
`(503) 914-1323
`
`

`

`Case 6:21-cv-01487-MC Document 1 Filed 10/12/21 Page 14 of 40
`
`required under NEPA, the Council on Environmental Quality’s NEPA implementing regulations,
`
`and the BLM’s NEPA Handbook. 42 U.S.C. § 4321 et seq.; 40 C.F.R. § 1500 et seq.
`
`52.
`
`53.
`
`Typically, the BLM uses either a CX or an EA to document timber sales.
`
`Neither the CEQ NEPA Regulations nor the BLM’s NEPA handbook require BLM to
`
`make a timber sale decision documented with an EA or a CX available for public comment prior
`
`to rendering a decision to authorize public timber for sale to private timber companies.
`
`54.
`
`If the BLM uses a CX or an EA with a Finding of No Significant Impact (“FONSI”) for
`
`the timber sale decision, it issues a Decision Rationale (“DR”) and subsequently publicly
`
`advertises the timber sale, usually through an announcement published in the local newspaper of
`
`record. Instruction Memorandum No. OR-2008-084, Attachment 1-1, UNITED STATES
`
`DEPARTMENT OF INTERIOR, BUREAU OF LAND MANAGEMENT (Aug. 25, 2008) [hereinafter IM No.
`
`OR-2008-084].
`
`55.
`
`In 1984, the BLM enacted a regulation after APA notice and comment rulemaking that
`
`provided for a 15-day administrative protest process for “forest management decisions, including
`
`advertised timber sales.” Forest Management Decisions; Administrative Remedies, 49 Fed. Reg.
`
`28,560 (July 13, 1984) (“1984 Administrative Protest Rule”); see also 43 C.F.R. § 5003.3
`
`(superseded 2020).
`
`56.
`
`The 1984 Administrative Protest Rule’s preamble states that the BLM undertook the
`
`rulemaking to “expedite implementation of decisions relating to forest management and provide
`
`the public with the opportunity to protest such decisions.” 49 Fed. Reg. at 28,560.
`
`57.
`
`Under the 1984 Administrative Protest Rule, the 15-day period during which interested
`
`parties could file an administrative protest began the day after the timber sale was first advertised
`
`through a notice of sale in the local newspaper of record. 43 C.F.R. § 5003.2(a) (superseded
`
`COMPLAINT FOR DECLARATORY
`AND INJUNCTIVE RELIEF - 14 -
`
`
`Western Environmental Law Center
`4107 NE Couch St.
`Portland, OR 97232
`(503) 914-1323
`
`
`
`

`

`Case 6:21-cv-01487-MC Document 1 Filed 10/12/21 Page 15 of 40
`
`2020).
`
`58.
`
`If an administrative protest was filed during the 15-day period, the regulations required
`
`the protestor to deliver a signed hardcopy of the protest to the BLM: the BLM did not accept
`
`protests by fax or email. IM No. OR-2008-084 at Attachment 1-2, 1-3; see 43 C.F.R. § 5003.3(b)
`
`(superseded 2020). BLM would then immediately forward a copy of the protest to the BLM
`
`Oregon/Washington State Office Forest Management Advisor. IM No. OR-2008-084 at 1-3.
`
`59.
`
`The BLM would next conduct a timber sale auction and disclose any administrative
`
`protests to potential timber sale bidders before the auction began. Id. The highest bidder would
`
`also be required to sign an acknowledgement of the existence of any administrative protests. Id.
`
`60.
`
`The BLM deciding officer would then consider the administrative protest and draft an
`
`administrative protest decision either denying or granting the protest. Id. at 1-3; see 43 CFR §§
`
`5003.3(d-e) (superseded 2020). If the BLM granted the administrative protest, the District could
`
`then revise the project, the EA, and/or the decision. IM No. OR-2008-084 at 1-4. If needed, the
`
`District would reconsider the project and its supporting analysis and re-issue NEPA analysis
`
`and/or the Decision Rational or FONSI as needed. Id.
`
`61.
`
`If the BLM denied the administrative protest, the denial triggered a 30-day administrative
`
`appeal period, during which the protest filer could file a notice of administrative appeal with the
`
`IBLA. 43 C.F.R. § 4.411(a). Administrative appellants could include a request for a stay of the
`
`timber sale decision with the notice of administrative appeal filed with the IBLA. 43 C.F.R. §
`
`4.21(b)(1).
`
`62. Meanwhile, if the BLM denied the administrative protest, an authorized BLM officer
`
`could then decide to immediately proceed with implementation of the project decision. 43 C.F.R.
`
`§ 5003.3(f) (superseded 2020). Prior to the Administrative Protest Elimination Rule challenged
`
`COMPLAINT FOR DECLARATORY
`AND INJUNCTIVE RELIEF - 15 -
`
`
`Western Environmental Law Center
`4107 NE Couch St.
`Portland, OR 97232
`(503) 914-1323
`
`
`
`

`

`Case 6:21-cv-01487-MC Document 1 Filed 10/12/21 Page 16 of 40
`
`in this litigation, when a decision to immediately proceed with implementation was made, this
`
`decision was referred to as a “full force and effect” decision. IM No. OR-2008-084 at Attachment
`
`1-5. Oregon/Washington BLM policy directed BLM Districts to wait to implement timber sale
`
`decisions until IBLA had reviewed both the request for stay and the BLM’s response to the
`
`request. Id.
`
`63.
`
`However, BLM Districts could request that the State Director waive the policy against
`
`issuing full force and effect determinations until IBLA

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