Resources Ltd., Inc., v. Robertson

• Decision Date: 05 July 1994
• Docket Number: No. 92-35047,92-35047
• Citation: 35 F.3d 1300
• Parties: RESOURCES LIMITED, INC.; Swan View Coalition, Inc.; Friends of the Wild Swan; and Five Valleys Audubon Society, Plaintiffs-Appellants, v. F. Dale ROBERTSON, John Mumma; Edgar G. Brannon, Jr., Defendants-Appellees, and Intermountain Forest Industry Association, Defendant-Intervenor-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1300

35 F.3d 1300

RESOURCES LIMITED, INC.; Swan View Coalition, Inc.;

Friends of the Wild Swan; and Five Valleys

Audubon Society, Plaintiffs-Appellants, v. F. Dale ROBERTSON, John Mumma; Edgar G. Brannon, Jr.,

Defendants-Appellees,

and

Intermountain Forest Industry Association,

Defendant-Intervenor-Appellee.

No. 92-35047.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Aug. 4, 1993.

Decided Nov. 3, 1993.

As Amended on Denial of Rehearing

July 5, 1994.

Daniel J. Rohlf, Portland, OR, for plaintiffs-appellants.

Martin W. Matzen, Gary B. Randall, Anthony P. Hoang, and Robert L. Klarquist, U.S. Dept. of Justice, Washington, DC, for defendants-appellees.

Thomas R. Lundquist and Steven P. Quarles, Crowell and Moring, Washington, DC, for defendant-intervenor-appellee.

Appeal from the United States District Court for the District of Montana.

Before WRIGHT, BEEZER, and HALL, Circuit Judges.

BEEZER, Circuit Judge:

Plaintiffs (hereafter "Resources Limited") challenge the Flathead National Forest Land and Resource Management Plan ("Plan") and the forest-wide Environmental Impact Statement ("EIS"). Resources Limited asserts the defendants ("Forest Service") violated the National Environmental Policy Act ("NEPA"), the National Forest Management Act, and the Endangered Species Act. Intervenor Intermountain Forest Industry Association submitted additional briefing on behalf of the Forest Service. We affirm in part and reverse in part the district court's grant of the Forest Service's motion for summary judgment.

I

Several threatened or endangered species, including the grizzly bear, the gray wolf, the bald eagle, and the peregrine falcon, live in the Flathead National Forest ("the Forest") in northern Montana. The Forest Service has been involved in developing the Plan and EIS for the Forest to accommodate these species, while allowing logging and other uses, since the early 1980s. The Forest Service issued the Plan and the EIS in 1985 and approved them in 1986.

Resources Limited criticized the EIS as inadequate and disputed the Forest Service's conclusion that implementation of the Plan would not jeopardize the survival of listed species. After exhausting its administrative appeals, Resources Limited brought suit in the district court. The district court determined Resources Limited had no standing and that the matter was not ripe for adjudication. The court also granted the Forest Service summary judgment on all claims. 789 F.Supp. 1529.

II

We review de novo the district court's holding that Resources Limited has no standing. Benally v. Hodel, 940 F.2d 1194, 1198 (9th Cir.1990).

Resources Limited must demonstrate that it satisfies three essential elements of standing:

First, the plaintiff must have suffered an "injury in fact"--an invasion of a legally-protected interest which is (a) concrete and particularized, and (b) "actual or imminent, not 'conjectural' or 'hypothetical.' " Second, there must be a causal connection between the injury and the conduct complained of--the injury has to be "fairly trace[able] to the challenged action of the defendant, and not ... th[e] result [of] the independent action of some third party not before the court." Third, it must be "likely" as opposed to merely "speculative," that the injury will be "redressed by a favorable decision." ¹

Lujan v. Defenders of Wildlife ("Defenders"), --- U.S. ----, ----, 112 S.Ct. 2130, 2136, 119 L.Ed.2d 351 (1992) (citations omitted) (all editing in original).

The district court determined its decision on standing was controlled by its decision in Idaho Conservation League v. Mumma, No. CV-88-197-M-CCL, 1990 WL 300860 (D.Mont. August 7, 1990), rev'd, 956 F.2d 1508 (9th Cir.1992). There, the district court held that the plaintiff had not shown that it was injured in fact. The injury was "too remote and [could not] be directly tied to the plan adopted by the Forest Service" since later, site-specific actions would also require the preparation of an EIS. As Resources Limited, too, was challenging a Plan "that merely allowed for the possibility of development in the future," the district court held that Resources Limited had failed to show that it was injured in fact.

We reversed the district court in Idaho Conservation League v. Mumma ("Mumma"), 956 F.2d 1508 (9th Cir.1992). We recognized that the initial plan, though not site-specific, is an "important decision[ ]." Id. at 1516 ("Indeed, short of assuming that Congress imposed useless procedural safeguards, ... we must conclude that the management plan plays some, if not a critical, part in subsequent decisions."). We also noted that, if plaintiffs did not have standing to challenge a non-site-specific EIS, the program as a whole could never be reviewed. "To the extent that the plan pre-determines the future, it represents a concrete injury that plaintiffs must, at some point, have standing to challenge." Id. at 1516.

The Forest Service suggests that two recent Supreme Court cases, Defenders and Lujan v. National Wildlife Federation, 497 U.S. 871, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990), call Mumma into question. ² National Wildlife was handed down before Mumma, and was in fact cited in Mumma. We have just decided two cases affirming the continuing validity of Mumma in light of the two Supreme Court cases. In Seattle Audubon Soc'y v. Espy, 998 F.2d 699 (9th Cir.1993), we addressed whether the Seattle Audubon Society had standing to "challenge[ ] the Forest Service's Final EIS and Record of Decision adopting the Interagency Scientific Committee's Report as the Forest Service's spotted owl management plan." Id. at 701. We rejected the Forest Service's view that the Supreme Court cases "materially alter the standing principles which previously applied" as "not well-founded." Id. at 702. In Portland Audubon Soc'y v. Babbitt, 998 F.2d 705 (9th Cir.1993), which concerned the Secretary of the Interior's decision not to supplement timber management plans with new information, we rejected the Forest Service's argument that the two Supreme Court cases "establish a new, stricter burden on plaintiffs to establish with specificity an injury-in-fact caused by a challenged government action." Id. at 707.

Though the plaintiffs "filed various affidavits from members of their associations and organizations which state that the particular member visits and uses the Flathead National Forest on a regular basis, and that their use and enjoyment of the Forest will be inhibited and affected by the adoption" of the Plan, the intervenor contends Resources Limited's inability to point to the precise area of the park where their injury will occur indicates Resources Limited has no standing. We have not imposed any such requirement of specificity. Espy, 998 F.2d at 702-03; Mumma, 956 F.2d at 1516-17. We have also rejected the argument that the injury is "conjectural or hypothetical" because there may be "as yet unknown intervening circumstances." Espy, 998 F.2d at 703; Mumma, 956 F.2d at 1515.

We reverse the district court's holding that Resources Limited does not have standing.

III

Relying on National Wildlife, 497 U.S. 871, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990), the district court held that this dispute was not ripe for review because no "concrete action implementing the plan" was imminent. In Mumma, after considering National Wildlife, we addressed and rejected this same argument. 956 F.2d at 1518-19. Our two most recent pronouncements on this subject are in accord with Mumma. In Espy, we rejected the argument that the Seattle Audubon Society's challenge to the Forest Service's management plan would not be ripe "until the Service authorizes a specific timber sale pursuant to the plan, because only a specific timber sale would harm either the plaintiffs or the owls." Espy, 998 F.2d at 703. The opinion states:

In Lane County Audubon Soc'y v. Jamison, 958 F.2d 290 (9th Cir.1992), we expressly recognized that individual timber sales are driven by an underlying owl-management plan, and in Idaho Conservation League, we held that plaintiffs need not wait to challenge a specific project when their grievance is with an overall plan. 956 F.2d at 1519.

Id. at 703. See also Babbitt, 998 F.2d at 708 ("the decision [not to supplement Timber Management Plans] is ripe for review now rather than when individual sales are announced because, to the extent these [plans] pre-determine the future, the Secretary's failure to comply with NEPA represents a concrete injury that would undermine any future challenges by plaintiffs"). This case is ripe for review.

IV

Under 5 U.S.C. Sec. 706(2)(A), the federal courts have the authority to "hold unlawful and set aside" agency actions which are "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." The district court must determine whether the Forest Service "considered the relevant factors and articulated a rational connection between the facts found and the choice made." Pyramid Lake Paiute Tribe v. U.S. Dept. of Navy, 898 F.2d 1410, 1414 (9th Cir.1990) (citations omitted). We review de novo the court's decision. Id.

The Forest Service must consult the Fish and Wildlife Service ("FWS") so the FWS can prepare a biological opinion assessing the likely impact of the proposed actions on any threatened or endangered species. 16 U.S.C. Sec. 1536. The Forest Service must provide the FWS "with the best scientific and commercial data available or which can be obtained during the consultation for an adequate review." 50 C.F.R. Sec. 402.14(d). The FWS concluded that the Plan was not likely to jeopardize the continued existence of any listed species. The Forest Service made the same conclusion.

Consulting with the FWS alone does not satisfy an agency's duty under the Endangered Species Act. Pyramid Lake, 898 F.2d at 1415. An agency cannot "abrogate its responsibility to ensure that its actions will not jeopardize a listed species; its...