Swanson Group Mfg. LLC v. Sally Jewell

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.