Wyoming v. U.S. Dept. of Agriculture

• Decision Date: 09 May 2002
• Docket Number: No. 01-CV-0086-B.,01-CV-0086-B.
• Citation: 201 F.Supp.2d 1151
• Parties: State of WYOMING, Plaintiff, v. UNITED STATES DEPARTMENT OF AGRICULTURE, et al., Defendant, and Wyoming Outdoor Council et al., Defendant-Intervenors,
• Court: U.S. District Court — District of Wyoming

201 F.Supp.2d 1151

State of WYOMING, Plaintiff, v. UNITED STATES DEPARTMENT OF AGRICULTURE, et al., Defendant and Wyoming Outdoor Council et al., Defendant-Intervenors,

No. 01-CV-0086-B.

United States District Court, D. Wyoming.

May 9, 2002.

Thomas John Davidson, Magdalene M. Allely, Wyoming Attorney General, Cheyenne, WY, Harriet M. Hageman, Kara Brighton, Hageman & Brighton, Cheyenne, WY, for Plaintiff.

Carol A. Statkus, Assistant United States Attorney, U.S. Attorney's Office, Cheyenne, WY, Andrea L. Berlowe, Department of Justice, Environment & Natural Resources Division, Washington, DC, for Defendant.

James S. Angell, Earthjustice Legal Defense Fund, Denver, CO, for Intervenors.

ORDER DENYING DEFENDANTS' AND DEFENDANT-INTERVENORS' MOTIONS FOR PARTIAL JUDGMENT ON THE PLEADINGS

BRIMMER, District Judge.

This lawsuit arises from the various "roadless initiatives" passed during the final year of President Clinton's second term of office. The matter is currently before the Court on Defendants' (United States Department of Agriculture, et al.) Motion for Partial Judgment on the Pleadings and Defendant-Intervenors' Motion for Partial Judgment on the Pleadings. As both Defendants' and Defendant-Intervenors' Motions for Partial Judgment on the Pleadings are virtually identical in seeking to dismiss Count VI of Plaintiff's Complaint, which alleges a violation of the Federal Advisory Committee Act ("FACA"), the Court will consider the motions together. Upon reading the briefs, hearing oral argument, being fully advised of the premises, and in accordance with the Court's oral findings and ruling from the bench at the April 16, 2002 motion hearing, the Court FINDS and ORDERS as follows:

Statement of Parties and Jurisdiction

The Plaintiff, State of Wyoming, is a sovereign state of the United States. There are approximately 9,238,000 acres of National Forest System land in the State of Wyoming. National Forests comprise approximately 8,688,991 acres of that land, and the Thunder Basin National Grassland makes up about 549,009 acres. Significant portions of the Medicine Bow, Bridger-Teton, Bighorn, and Shoshone National Forests are located within the boundaries of Wyoming. Minor portions of the Black Hills, Wasatch-Cache, Ashley, Targhee, and Caribou National Forests are located in Wyoming.

Defendant United States Department of Agriculture ("USDA") is a department of the Executive branch of the United States Government and is responsible for overseeing the activities of the United States Forest Service ("USFS"). Defendant USFS is an administrative agency of the USDA, and is charged with the administration of the National Forests, including all of those located within the State of Wyoming. Defendant Ann M. Veneman is the Secretary of Agriculture and is sued in her official capacity for the actions of her predecessor, former Secretary of Agriculture Daniel R. Glickman, who signed the challenged roadless area rules and planning rules at issue in this case. Defendant Dale N. Bosworth is Chief of the USFS and is sued in his official capacity for the actions of his predecessor, former Chief Michael Dombeck, who signed the challenged roadless rules and planning rules at issue in this case.

Defendant-Intervenors, the Wyoming Outdoor Council, the Wilderness Society, Sierra Club, Biodiversity Associates, Pacific Rivers Council, Natural Resources Defense Council, National Audubon Society, and Defenders of Wildlife ("WOC Group"), are a collection of environmental organizations that have advocated for the protection of roadless areas before state and federal legislators as well as the Forest Service for a number of years. The WOC Group Intervenors were also active participants in the Forest Service's rule-making process leading up to the Roadless Rule and other Regulations challenged by the State of Wyoming.

The Court exercises jurisdiction pursuant to 28 U.S.C. § 1331. Venue is proper with this Court pursuant to 28 U.S.C. §§ 1391(b), (e).

Background

During the final year of President Clinton's second term of office, the USFS through its Chief, Michael Dombeck, announced the National Forest System Land and Management Planning Rule ("Planning Rule"), the Roadless Area Conservation Rule ("Roadless Rule"), the final rule regarding administration of the Forest Development Transportation System ("Transportation Rule"), and the Forest Transportation System Policy ("Transportation Policy").

Plaintiff, State of Wyoming, filed its Complaint for Declaratory Judgment and Injunctive Relief on May 18, 2001. The Plaintiff lists the following claims for relief: Count One-National Environmental Policy Act ("NEPA"); Count II-National Forest Management Act ("NFMA"); Count III-Wilderness Act and the Wyoming Wilderness Act; Count IV-Multiple Use Sustained Yield Act ("MUSYA"); Count V-National Historic Preservation Act ("NHPA"); Count VI-Federal Advisory Committee Act ("FACA"); Count VII-Regulatory Flexibility Act; and Count VIII-Administrative Procedures Act ("APA"). On January 18, 2002 this Court denied Defendants' Motion to Stay Proceedings pending resolution of a similar matter before the Ninth Circuit Court of Appeals.

For purposes of the present motions, Count VI of Plaintiff's Complaint, alleging a violation of FACA, specifically alleges that Defendants established an advisory committee representing only the national environmental organizations (including the Heritage Forest Campaign, the Wilderness Society, the Natural Resource Defense Council, USPIRG, Earth Justice Legal Defense Fund, Audubon Society, and the Sierra Club) to assist Defendants in formulating the challenged actions. Plaintiff further argues that Defendants held a number of meetings with these organizations and that Defendants were provided with a number of legal memoranda, survey research data, and recommendations by these organizations regarding the roadless actions at issue. Finally, Plaintiff claims that other groups and interested parties were not included in these meetings or transactions. Therefore, Plaintiff claims that the use of these groups constituted a de facto advisory committee in violation of FACA.

ANALYSIS

12(c) Motion For Partial Judgment on the Pleadings

Pursuant to F.R.Civ.P. 12(c), Defendants and Defendant-Intervenors seek to dismiss Count VI of Plaintiff's Complaint, which alleges a violation of FACA. Rule 12(c) states:

Motion for Judgment on the Pleadings. After the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings. If, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.

F.R.Civ.P. 12(c) (emphasis added).

In response to Defendants' and Defendant-Intervenors' motions Plaintiff filed additional outside pleadings with the Court as Exhibits C and D, which have been summarized by the Plaintiff in each of its separate responses. However, in analyzing Defendants' and Defendant-Intervenors' Motions for Partial Judgment on the Pleadings, the Court HEREBY EXCLUDES from consideration all material presented outside the pleadings. F.R.Civ.P. 12(c). Therefore, the present motions are not converted to Rule 56 motions for summary judgment, and the Court will review the current motions for partial judgment on the pleadings, pursuant to standards of Rule 12(c).

A Rule 12(c) motion for judgment on the pleadings is reviewed under the standard applicable to a Rule 12(b)(6) motion to dismiss. Villescas v. Richardson, 124 F.Supp.2d 647, 650 (D.Colo.2000) (citing McHenry v. Utah Valley Hosp., 927 F.2d 1125, 1126 (10th Cir.1991)). Thus, dismissal is appropriate only if it appears that a non-moving party can prove no set of facts under which he would be entitled to relief. Villescas, 124 F.Supp.2d at 650 (citing Coosewoon v. Meridian Oil Co., 25 F.3d 920, 924 (10th Cir.1994)).

A Rule 12(b)(6) motion to dismiss for failure to state a claim on which relief may be granted is appropriate where "it appears beyond doubt that the plaintiff can prove no set of facts in support of [its] claim which would entitle [it] to relief." Jefferson County School Dist. No. R-1 v. Moody's Investor's Services, Inc., 175 F.3d 848, 855 (10th Cir.1999). The court must accept plaintiff's allegations as true and construe them in the light most favorable to the plaintiff. Grossman v. Novell, Inc., 120 F.3d 1112, 1118 (10th Cir.1997). "The court's function on a Rule 12(b)(6) motion is not to weigh potential evidence that the parties might present at trial, but to assess whether the plaintiff's complaint alone is legally sufficient to state a claim for which relief may be granted." Sutton v. Utah State School for the Deaf and Blind, 173 F.3d 1226, 1236 (10th Cir.1999)(quoting Miller v. Glanz, 948 F.2d 1562, 1565 (10th Cir.1991)).

FACA

The Federal Advisory Committee Act ("FACA"), 5 U.S.C. APP. 2 § 1, was enacted by Congress in 1972 based upon "a desire to assess" the need for the "numerous committees, boards, commissions, councils, and similar groups which have been established to advise officers and agencies in the executive branch of the Federal Government." Public Citizen v. United States Dep't of Justice, 491 U.S. 440, 445-46, 109 S.Ct. 2558, 105 L.Ed.2d 377 (1989) (citing 5 U.S.C. § 2(a)). The purpose of FACA is "to ensure that new advisory committees be established only when essential and that their number be minimized; that they be terminated when they have outlived their usefulness; that their creation, operation, and duration be subject to uniform standards and procedures; that Congress and the public remain apprised of their existence, activities, and cost; and that their work be exclusively advisory in nature." Public...