UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
AMERICAN FOREST RESOURCE :
COUNCIL, et al., :
:
Plaintiffs, :
:
v. : Civil Action No. 94-1031 (JR)
:
JAMES CASWELL, Director, Bureau :
of Land Management, et al., :
:
Defendants. :
MEMORANDUM
Fifteen years ago, the American Forest Resource
Council, a timber industry group, sued to challenge a Bureau of
Land Management plan to manage a million acres of federal forests
in the northwestern United States. AFRC’s position was that the
plan unlawfully limited the harvesting of timber contemplated by
the Oregon California Railroad and Coos Bay Wagon Road Grant
Lands Act, 43 U.S.C. § 1181a, enacted in 1937. After years of
litigation, the parties signed a settlement agreement, one
provision of which obligated the BLM to “revise the Resource
Management Plans for its Coos Bay, Eugene, Lakeview, Medford,
Roseburg and Salem Districts by December 31, 2008.” Dkt. #82 ex.
A § 3.5. The case was dismissed without prejudice, but, under
the terms of the settlement, this court retained jurisdiction to
consider any motion to enforce the agreement. Id. § 4.3.
In October 2008 AFRC filed a motion to enforce,
asserting in relevant part that the BLM has breached the
Agreement's implied covenant of good faith by promulgating the
contemplated revised plan without initiating consultation with
the U.S. Fish and Wildlife Service or the National Oceanic and
Atmospheric Administration about the plan’s impact on endangered
or threatened species and their critical habitat. See, Section
7(a)(2) of the Endangered Species Act (ESA), 16 U.S.C. § 1536
(a)(2). Plaintiffs' theory is that this failure to consult will
cause a federal court in the Ninth Circuit to enjoin the plan
from taking effect, thereby depriving plaintiffs of the benefit
of their bargain. The parties agree that Ninth Circuit
litigation regarding the alleged failure to consult is inevitable
and imminent: three challenges to the BLM plan had already been
filed when the instant motion was argued.1
Because there is no evidence of subjective bad faith,
because the Agency’s “no effect” determination is not facially
invalid, and because any consulting duty may have been satisfied,
plaintiff's theory of breach is too tenuous to support an
enforcement order, especially when neither a direct challenge to
the plan's validity nor the administrative record is before this
court. Plaintiffs’ motion must therefore be denied.
1
Oregon Wild et al. v. Shepard, et al., Civil No. 3:09-
00060-PK, (filed January 15, 2009); Pacific Rivers Council et
al. v. Shepard, et al., Civil No. 3:09- 00058-ST (filed
January 15, 2009); Forest Service Employees for Environmental
Ethics v. U.S. Fish and Wildlife Service, et al., Civil No. 6:09-
06019-AA (filed January 22, 2009).
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Analysis
Plaintiffs do not attempt to show that any of the
recognized indicia of bad faith are present –- such as sharp
dealings, a lack of diligence or slacking off, a desire to evade
the spirit of the bargain, abuse of the power to specify terms,
or acting in a way targeted to frustrate the other party's
benefit or performance. See, North Star Alaska Housing Corp. v.
U.S., 76 Fed.Cl. 158, 187-188 (Fed. Cl. 2007) (collecting cases);
See generally, Restatement (Second) of Contracts § 205 (1981).
Plaintiffs indeed concede that the defendants believe the revised
plan will take effect and desire that it do so. Instead,
plaintiffs argue, it is so likely that the plan will be enjoined
by a court in the Ninth Circuit that their “reasonable
expectations . . . regarding the fruits of the contract” have
been destroyed. Centex Corp. v. U.S., 395 F.3d 1283, 1305 (C.A.
Fed. 2005). The analogy offered at oral argument involved the
construction of a house: the contract contains no provision
obligating the contractor to obtain a building permit, and he
does not, with the result that the owner cannot move into the
house. The contractor (plaintiffs argue) has breached the
covenant of good faith.
Even if those facts make out a breach of the covenant
of good faith, the analogy is unconvincing. The contractor’s
omission was certain to prevent the house from being used.
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Nothing is so certain here: the defendants have determined that
the plan will have “no effect” on endangered or threatened
species, Opp. at 13, and there is substantial Ninth Circuit
authority that a “no effect” determination obviates the ESA's
consultation requirement unless it is found to be an abuse of
discretion. See, Defenders of Wildlife v. Flowers, 414 F.3d
1066, 1070-1071 (9th Cir. 2005); Southwest Center for Biological
Diversity v. U.S. Forest Service, 100 F.3d 1443, 1447 (9th Cir.
1996); 51 Fed.Reg. 19926, 19949 (June 3, 1986) (“The Federal
agency makes the final decision on whether consultation is
required, and it likewise bears the risk of an erroneous
decision.”); 73 Fed. Reg. 76,272, 76,280-81 (Dec. 16, 2008) (to
be codified at 50 C.F.R. § 402).
“[C[lear and convincing evidence” is necessary to show
that the government did not act in good faith. Am-Pro Protective
Agency, Inc. v. United States, 281 F.3d 1234, 1239-40 (Fed. Cir.
2002). Plaintiffs have not made such a showing. Defendants have
adopted a course of performance that is not facially defective.
A thorough analysis of that performance may establish that there
was no duty to consult, or that any duty to consult has been
satisfied,2 or that defendants have failed in their duty. That
2
Even if ESA consultation duties were triggered, defendants
may have satisfied them “informally” via ongoing communications
with Fish and Wildlife and NOAA. See, 50 C.F.R. § 402.13.
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analysis, however, is for the federal courts in the Ninth
Circuit, and not for this court.3
* * *
An appropriate order accompanies this memorandum.
JAMES ROBERTSON
United States District Judge
3
Intervenor Association of Oregon & California Land Grant
Counties cites to a recent case in which a panel of this Circuit
found a challenge to an agency’s declination to consult with the
ESA not ripe because “[g]iven the multi-stage nature of” the
challenged plan, the panel had to “consider any environmental
effects of a leasing program on a stage-by-stage basis, and
correspondingly evaluate ESA's obligations with respect to each
particular stage of the program.” Center for Biological
Diversity v. Department of Interior, 563 F.3d 466, 483 (D.C. Cir.
2009). The law in the Ninth Circuit may point in a different
direction. See, Pacific Rivers Council v. Thomas, 30 F.3d 1050
(9th Cir. 1994) (Land resource management plans “may affect”
protected salmon listed after the plans’ adoption “because the
plans set forth criteria for harvesting resources within the
salmon's habitat . . . .”). Regardless, sorting through the
record to decide whether BLM’s “no effect” determination was
essentially a ripeness argument or was based more substantive
analysis of the plan’s impact, and/or whether the plan is
specific enough to trigger consultation duties (as well as other
similar questions) is exactly the kind of in-depth analysis that,
as a matter of comity, should be left to the courts of the Ninth
circuit.
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