Citizens for Better Forestry v. Usda

• Decision Date: 30 June 2009
• Docket Number: No. C 08-1927 CW.,C 08-1927 CW.
• Citation: 632 F.Supp.2d 968
• Parties: CITIZENS FOR BETTER FORESTRY, et al., Plaintiffs, v. U.S. DEPARTMENT OF AGRICULTURE, et al., Defendants.
• Court: U.S. District Court — Northern District of California

632 F.Supp.2d 968

CITIZENS FOR BETTER FORESTRY, et al., Plaintiffs, v. U.S. DEPARTMENT OF AGRICULTURE, et al., Defendants.

No. C 08-1927 CW.

United States District Court, N.D. California.

June 30, 2009.

Peter M.K. Frost, Western Environmental Law Center, Eugene, OR, Marc D. Fink, Center for Biological Diversity, Duluth, MN, Lisa T. Belenky, Center for Biological Diversity, San Francisco, CA, for Plaintiffs Citizens for Better Forestry, et al.

Trent W. Orr, Gregory C. Loarie, Earthjustice, Oakland, CA, Timothy J. Preso, Earthjustice, Bozeman, MT, Sierra B. Weaver, Defenders of Wildlife, Washington, DC, for Plaintiffs Defenders of Wildlife, et al.

ORDER GRANTING PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANTS' CROSS-MOTION FOR SUMMARY JUDGMENT

CLAUDIA WILKEN, District Judge.

Plaintiffs Citizens for Better Forestry, et al. (collectively, Citizens) charge Defendants United States Department of Agriculture (USDA), et al. with failing to adhere to procedures required by the National Environmental Policy Act (NEPA) and the Endangered Species Act (ESA) when they promulgated regulations that govern the development of management plans for forests within the National Forest System. The parties now cross-move for summary judgment. The matter was heard on April 2, 2009. Having considered oral argument and all of the papers submitted by the parties, the Court grants Citizens' motion and denies the USDA's cross-motion.

BACKGROUND

The National Forest System includes approximately 193 million acres of land and is administered by the U.S. Forest Service, an agency within the USDA. In 1976, Congress enacted the National Forest Management Act (NFMA) to reform management of the National Forests. The Act established a three-tiered regulatory approach to forest management, with different tiers existing at the national, regional and local levels.

At the highest level, the NFMA requires the USDA to promulgate national uniform regulations that govern the development and revision of regional and local plans. 16 U.S.C. § 1604(g).

These regulations mandate the compliance of lower-level plans with the National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321-4370f ("NEPA"), specifically setting forth the circumstances that require preparation of an Environmental Impact Statement ("EIS"). 16 U.S.C. § 1604(g)(1). In addition, they set broad guidelines (to be followed when preparing regional and site-specific plans) regarding plant and animal species conservation, timber management, and water management. Id. § 1604(g)(3).

Citizens for Better Forestry v. U.S. Dep't of Agric. (Citizens I), 341 F.3d 961, 965 (9th Cir.2003). The USDA's 2008 revision of these regulations, which are also known as the "plan development rule," is at issue in the present lawsuit.

The second tier of National Forest regulation consists of land resource management plans (LRMPs), also known as forest plans, which apply to large "units" of the forest system. 16 U.S.C. § 1604(a).

These plans operate like zoning ordinances, defining broadly the uses allowed in various forest regions, setting goals and limits on various uses (from logging to road construction), but do not directly compel specific actions, such as cutting of trees in a particular area or construction of a specific road. The content and promulgation of these plans must comply with the plan development rule.

Citizens I, 341 F.3d at 966.

The third-tier of regulation consists of "site-specific" plans. These plans "are prepared to effect specific, on-the-ground actions" and "must be consistent with both sets of higher-level rules." Id. (citing 16 U.S.C. § 1604(i)).

The USDA promulgated the first plan development rule in 1979 and amended it in 1982. The 1982 Rule imposed a number of substantive requirements on LRMPs and site-specific plans:

This Rule required that "[f]ish and wildlife habitat shall be managed to maintain viable populations [thereof]," further defining a "viable" population as "one which has the estimated numbers and distribution of reproductive individuals to insure its continued existence is well distributed in the [relevant] area." See National Forest System Land and Resource Management Planning, 47 Fed. Reg. 43,026, 43,048 (Sept. 30, 1982) (amending 36 C.F.R. part 219). In addition, the 1982 Rule required the development of so-called "regional guides," which "provide[d] standards and guidelines for addressing major issues and management concerns which need to be considered at the regional level to facilitate forest planning." See id. at 43,042 (revising 36 C.F.R. § 219.8-.9). Furthermore, the Rule contained "minimum specific management requirements," setting forth mandatory directives which all regional LRMPs must follow, and specific, quantifiable baselines below which no LRMP or site-specific plan can fall. See id. at 43,050 (creating 36 C.F.R. § 219.27). These requirements included, inter alia, establishment of 100-foot buffers around bodies of water and specific limits on tree-cutting. See id.

Citizens I, 341 F.3d at 966 (alterations in original).

Under NEPA, federal agencies must issue an EIS in connection with all "major Federal actions significantly affecting the quality of the human environment." 42 U.S.C. § 4332(2)(C). "In certain circumstances, where it is not clear whether a full EIS is required, agencies prepare a more concise Environmental Assessment [(EA)] to evaluate preliminarily the need to prepare a full EIS." Citizens I, 341 F.3d at 966 n. 2 (citing 40 C.F.R. § 1501.4(b)-(c)).

In 2000, the USDA amended the 1982 Rule. The USDA did not prepare an EIS in connection with the 2000 Rule, but it did prepare an EA. The EA found that the amendment had no significant impact on the environment. Id. at 967.

The 2000 Rule modified its predecessor in a number of ways:

First, it relaxed the species "viability" requirement by providing that "[p]lan decisions affecting species diversity must provide for ecological conditions that . . . provide a high likelihood that those conditions are capable of supporting over time the viability of . . . species well distributed throughout their ranges within the plan area." National Forest System Land and Resource Management Planning, 65 Fed. Reg. 67,514, 67,575 (Nov. 9, 2000) (amending 36 C.F.R. § 219.20(b)(2)) (emphasis added). The 1982 Rule had more stringently required that the USDA "insure" continued species existence. 47 Fed. Reg. at 43,038. The 2000 Rule also eliminated the requirement of developing and issuing "regional guides" to maintain regional consistency in forest management. See 65 Fed. Reg. at 67, 527. It further eliminated many of the "minimum specific management requirements." For example, in comments submitted in response to the draft 2000 Rule, the Environmental Protection Agency ("EPA") observed that "while [the 1982 Rule] contain[s] specific limits on clear cutting [of trees], the proposed [2000 Rule] would require only that individual forest plans `provide standards and guidelines for timber harvest and regeneration methods,'" and asked "[h]ow will the proposed [2000 Rule] ensure requirements necessary for sustainability?"

Finally, the 2000 Plan Development Rule eliminated the post-decision appeal process of 36 C.F.R. pt. 217, and replaced it with a pre-decision "objection" process. 65 Fed. Reg. at 67,568 (removing 36 C.F.R. pt. 217); id. at 67,578 79 (creating 36 C.F.R. § 219.32). Under this new process, members of the public wishing to object to an amendment or revision of an LRMP have 30 days from the date an EIS is made available to do so. See id. Thus, this process can occur before the finalization of the planned amendment if the EIS is published more than 30 days before the amended LRMP becomes final.

Citizens I, 341 F.3d at 967-68 (alterations in original).

Citizens and other environmental groups sued the USDA, challenging the substance of the 2000 Rule as contrary to the provisions of the NFMA and alleging that, in promulgating the Rule, the agency failed to adhere to procedures mandated by NEPA and the ESA. After the lawsuit was filed, the USDA announced its intention to revise the new rule. The parties agreed to stay Citizens' substantive challenges, but proceeded with the procedural challenges. The district court granted summary judgment against Citizens on the procedural claims, finding that they were not justiciable for lack of standing and ripeness. The Ninth Circuit reversed the district court on appeal in Citizens I and remanded the case for further proceedings. Citizens I was dismissed pursuant to stipulation after remand.

In 2002, the USDA proposed amending the 2000 Rule. In its notice of proposed rulemaking, it found that, "[a]lthough the 2000 rule was intended to simplify and streamline the development and amendment of land and resource management plans, . . . the 2000 rule [was] neither straightforward nor easy to implement" and "did not clarify the programmatic nature of land and resource management planning." National Forest System Land and Resource Management Planning, 67 Fed. Reg. 72,770, 72,770 (Dec. 6, 2002). The proposed rule purported to retain "many of the basic concepts in the 2000 rule, namely sustainability, public involvement and collaboration, use of science, and monitoring and evaluation," but "attempted to substantially improve these aspects of the 2000 rule by eliminating unnecessary procedural detail, clarifying intended results, and streamlining procedural requirements consistent with agency staffing, funding, and skill levels." Id. at 72772.

The USDA did not publish the final version of the rule it proposed in 2002 until 2005. National Forest System Land Management Planning, 70 Fed. Reg. 1023 (Jan. 5, 2005). It did not conduct an EIS or an EA, asserting that the rule fell within a previously declared "categorical exclusion" to NEPA's requirements. A categorical exclusion is "a category of actions which do not individually or cumulatively have...