Wyoming v. U.S. Dept. of Agr.
| Citation | 239 F.Supp.2d 1219 |
| Decision Date | 17 October 2002 |
| Docket Number | No. 01-CV-0086-B.,01-CV-0086-B. |
| Parties | State of WYOMING Plaintiff, v. UNITED STATES DEPARTMENT OF AGRICULTURE; et. al., Defendant, Wyoming Outdoor Council, et. al., Defendant-Intervenors. |
| Court | U.S. District Court — District of Wyoming |
Thomas John Davidson, Magdaline M. Allely, Wyoming Atty. Gen., Cheyenne, WY, Harriet M. Hageman, Kara Brighton, Hageman & Brighton, Cheyenne, WY, for Plaintiff.
Carol A. Statkus, Asst. U.S. Atty., U.S. Attorney's Office, Cheyenne, WY, Andrea L. Berlowe, Barclay T. Samford, Dept. of Justice, Environment and Natural Resources Div., Washington, DC, Douglas L. Honnold, Timothy J. Preso, Earthjustice Legal Defense Fund, Bozeman, MT, James S. Angell, Earthjustice Legal Devense Fund, Denver, CO, Steve Jones, Jackson, WY, for Defendants.
This case arises from the United State Forest Service's promulgation of several "roadless" rules. The matter is currently before the Court on: (1) Plaintiff State of Wyoming's Motion to Supplement the Administrative Record; (2) Plaintiff State of Wyoming's Motion to Compel Production of Documents Withheld on an Improper Claim of Privilege;1 and (3) Defendant Intervenors' Fed.R.Civ.P. 72(a) Objections to the Magistrate's Order Ruling on Defendant-Intervenors' Motion for Protective Order ("Motion to Reconsider"). Upon reading the briefs, hearing oral argument, conducting in camera inspection of all documents asserted as privileged, being fully advised of the premises, and in accordance with the Court's oral findings and ruling from the bench at the hearing in this matter, the Court FINDS and ORDERS as follows:
Statement of the Parties and Jurisdiction
Plaintiff State of Wyoming is a sovereign State of the United States and has brought this suit in its own right and on behalf of its citizens parens patriae.
Defendant United States Department of Agriculture ("USDA") is a department of the Executive Branch of the United States government. The USDA is responsible for overseeing the activities of the United States Forest Service ("USFS"). The USFS is an agency of the USDA and is charged with the administration of the National Forests, including several National Forests within the State of Wyoming. Defendant Ann M. Veneman is the Secretary of Agriculture and has been sued in her official capacity for the actions of her predecessor, former Secretary of Agriculture Daniel R. Glickman, who signed the challenged roadless area and planning rules at issue. The USFS is subject to the direction of Secretary Veneman in her official capacity. Defendant Dale N. Bosworth is Chief of the USFS and has been sued in his official capacity for the actions of his predecessor, former Chief Michael Dombeck, who signed the challenged roadless policy and rules. Chief Bosworth is responsible for the operations and activities of the USFS on National Forest System lands. These Defendants will be collectively referred to as the "Federal Defendants."
The intervenors are environmental organizations that have advocated for the protection of roadless areas before Congress, state legislatures, and the Forest Service for a number of years. Parties that have intervened in this action are the Wyoming Outdoor Council, Wilderness Society, Sierra Club, Biodiversity Associates, Pacific Rivers Council, Natural Resources Defense Council, Defenders of Wildlife, and National Audubon Society (collectively "Defendant-Intervenors"). The Defendant-Intervenors were active participants in the rulemaking process leading to the promulgation of the rules and 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).
Originally, this action came before the Court on the Plaintiffs claims for (1) declaratory and injunctive relief, and (2) for judicial review of agency actions. Plaintiffs Complaint asserts that the Defendants have embarked on an illegal scheme to permanently prevent road and trail construction and reconstruction in the national forests thereby restricting access to those forests. Plaintiff further asserts that various final agency actions limiting the construction of roads and trails in national forests located in Wyoming impact the State negatively and violate federal law. Plaintiff seeks judicial review of the agency actions limiting road construction in the State. Plaintiffs Complaint alleges that the Defendants have violated the: (1) National Environmental Policy Act ("NEPA") (Count I); (2) National Forest Management Act ("NFMA") (Count II); (3) Wilderness Act and the Wyoming Wilderness Act (Count III); (4) Multiple Use Sustained Yield Act ("MUSYA") (Count IV) (5) National Historic Preservation Act ("NHPA") (Count V); (6) Federal Advisory Committee Act ("FACA") (Count VI); (7) Regulatory Flexibility Act (Count VII); and (8) Administrative Procedure Act CAP A") (Count VIII).
During the final year of President Clinton's second term of office, USFS Chief Michael Dombeck announced: (1) the Roadless Area Conservation Rule, 36 C.F.R. § 294.1 et seq. ("Roadless Rule"); (2) the National Forest System Land and Management Planning Rule, 36 C.F.R. § 219.1 et seq. ("Planning Rule"); (3) revisions to the Forest Transportation System Policy ("Transportation Policy"); and (4) revisions to the National Forest System Road Management Rule, 36 C.F.R. § 212.1 et seq. ("Road Management Rule"). The Plaintiffs Complaint centers around these three rules and the transportation policy, therefore, a brief overview of each will be provided.
The Roadless Rule includes approximately 3.25 million acres of National Forest lands within Wyoming, which accounts for 37 percent of Wyoming's National Forest lands.2 The final Roadless Rule covered 58.5 million acres of inventoried roadless lands on National Forests and prevented road construction (or reconstruction) and commercial timber harvest. 66 Fed.Reg. 3,244.
On October 13, 1999 President Clinton directed the Forest Service to develop and prepare, for public comment, regulations to end road construction and protect inventoried and un-inventoried roadless areas across the entire National Forest System. On October 19, 1999, in response to the President's directives, the Forest Service issued a Notice of Intent ("NOI") to prepare an Environmental Impact Statement ("EIS"). The NOI public comment period occurred during the next sixty days. Notwithstanding a number of requests to extend the comment period by interested parties, including the governors of affected states, the comment period was not modified.
During this public comment period, the Forest Service conducted over 180 public meetings across the nation regarding the Roadless Rule. In Wyoming, public scoping meetings were held in (1) Casper and Cody on December 13, 1999; (2) Riverton and Sheridan on December 14, 1999; and (3) Jackson and Laramie on December 15, 1999. During this time, the Governor of Wyoming requested that the USDA grant Wyoming cooperative agency status. This request was never acted upon.
On May 9, 2000, the USFS released: (1) its Draft Environmental Impact Statement ("DEIS") for the Roadless Rule; and (2) the Proposed Roadless Rule, which appeared in the Federal Register on May 10, 2000. See 65 Fed.Reg. 30276 (2000). The public comment period for the proposed rule and DEIS was sixty days. After rejecting the requests to extend the public comment period,3 the Forest Service published a Notice of Availability for the Final EIS ("FEIS") on November 17, 2000. The Roadless Rule was signed on January 5, 2001 and the Roadless Rule was to become effective on March 13, 2001. However, President Bush's administration postponed implementation of the Roadless Rule until May 12, 2001.
In 1989, prior to initiating revisions to each National Forest Plan pursuant to the NFMA, the Forest Service conducted a comprehensive overview of its land management planning process. In 1997, the Secretary of Agriculture appointed a new "Committee of Scientists" to review the Forest Service Planning process and offer suggestions. The Forest Service published the proposed rule relating to the land management process on October 5, 1999, followed by a ninety day public comment period. That period was extended twice and closed on February 10, 2000. The Forest Services's final Planning Rule was issued on November 9, 2000. Plaintiff claims the Planning Rule subordinates all uses of the National Forests to the principle of ecological sustainability and fundamentally changes the mission of the USFS.
On January 28, 1998, the USFS published an advanced Notice of Proposed Rulemaking on management of the forest transportation system. The Transportation Policy placed an eighteen month moratorium on construction and reconstruction of roads in "roadless areas," which had been re-defined from areas with 5,000 acres or more to include areas with 1,000 acres or more. On February 12, 1999, the Forest Service published the Interim Rules regarding suspension of construction and reconstruction in roadless areas.4
On December 14, 2001, two new Interim Directives were issued by the USFS Chief regarding the Transportation Policy of January 2001. The Directives (1) remove the interim requirements of the Transportation Policy for entering inventoried roadless areas, (2) grant local decisionmakers discretion for road analysis, (3) re-dele-gates authority to approve exceptions to a forest-scale roads analysis from the Chief to various Regional Foresters, and (4) includes a summary of the various Interim Directives related to the Transportation Policy or the Roadless Area Conservation rules since their issuance in January of 2001.
On March 3, 2000, the Forest Service published a proposed rule regarding...
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