Nevada Land Action Ass'n v. U.S. Forest Service

• Decision Date: 02 November 1993
• Docket Number: No. 92-15814,92-15814
• Citation: 8 F.3d 713
• Parties: , 24 Envtl. L. Rep. 20,100 NEVADA LAND ACTION ASSOCIATION, et al., Plaintiff-Appellant, and National Wildlife Federation, Intervenor, v. UNITED STATES FOREST SERVICE, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 713

8 F.3d 713

37 ERC 2131, 24 Envtl. L. Rep. 20,100

NEVADA LAND ACTION ASSOCIATION, et al., Plaintiff-Appellant, and National Wildlife Federation, Intervenor, v. UNITED STATES FOREST SERVICE, Defendant-Appellee.

No. 92-15814.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Sept. 1, 1993.

Decided Nov. 2, 1993.

W. Hugh O'Riordan, Davis Wright Tremaine, Boise, ID, John E. Marvel, Marvel & Hansen, Elko, NV, for plaintiff-appellant.

David B. Edelson, Natural Resources Defense Counsel, San Francisco, CA, for intervenors.

Robert L. Klarquist, U.S. Dept. of Justice, Washington, DC, for defendant-appellee.

Before: CHOY, D.W. NELSON, and NORRIS, Circuit Judges.

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

CHOY, Circuit Judge:

In 1986 the U.S. Forest Service ("Service") adopted a Land and Resource Management Plan ("LRMP") for the Toiyabe National Forest. The appellant Nevada Land Action Association ("NLAA") is a citizens' organization comprised of ranchers who have permits to use the forest for livestock grazing. NLAA challenges the LRMP on the grounds that the Service violated the National Environmental Policy Act, 42 U.S.C. § 4321 et seq. ("NEPA"), the National Forest Management Act, 16 U.S.C. § 1600 et seq. ("NFMA"), and the Service's regulations promulgated under NFMA. NLAA also argues that the adoption of the LRMP was arbitrary and capricious, and that the Service failed to provide for meaningful public participation in the planning process.

We conclude that NLAA lacks standing to challenge the LRMP under NEPA, and that summary judgment was properly granted to the Service on NLAA's other claims. We have jurisdiction under 28 U.S.C. § 1291, and we affirm in part and dismiss in part.

BACKGROUND

In preparing an LRMP, the Service must follow the procedural requirements of NFMA, and must also prepare an Environmental Impact Statement ("EIS") in accordance with NEPA. The Service began the extensive process of preparing the LRMP in 1979. In 1985 the Service completed a proposed plan and a draft EIS. The proposal was made available to the public, and a notice of availability was published in the Federal Register. The Service also mailed notices to interested parties and published invitations to participate in local newspapers.

The proposed plan set forth two potentially conflicting goals: maintenance of current grazing levels and improvement of rangeland condition. As required by NFMA, the proposed plan included range management standards and guidelines which if adopted would control future management of the forest. The draft EIS analyzed nine different alternatives, and projected grazing output levels for the alternatives, including a "preferred alternative." For the preferred alternative, the draft EIS projected a slight decrease in grazing levels. The draft EIS also noted that preferential consideration would be given to riparian area resources in the event of conflict with other resources. Although the Service actively solicited public input, neither the NLAA nor any of its members commented on the proposed plan. In 1986, the Service adopted the final LRMP, which contains substantially the same standards and guidelines for grazing as the proposed plan.

The NLAA members are now dissatisfied with the LRMP because they believe that its implementation will result in a drastic decrease in grazing levels in the Toiyabe Forest. After exhausting its administrative appeals, NLAA filed suit in district court. The district court ordered a limited remand to the Service, and then granted the Service's motion for summary judgment. NLAA appeals from this order. The National Wildlife Federation and several other environmental organizations have intervened in support of the Service.

DISCUSSION

I. Standing under NEPA

A. Standard of Review

We review the issue of standing de novo. Ellis v. City of La Mesa, 990 F.2d 1518, 1523 (9th Cir.1993).

B. Discussion

The Administrative Procedure Act ("APA"), 5 U.S.C. §§ 551 et seq., provides that a plaintiff seeking to challenge an agency action must be "adversely affected or aggrieved by agency action within the meaning of a relevant statute." 5 U.S.C. § 702 (1988). ¹ Thus, in addition to constitutional standing requirements, under the APA a plaintiff must assert an interest "arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question." Association of Data Processing Serv. Org., Inc. v. Camp, 397 U.S. 150, 153, 90 S.Ct. 827, 830, 25 L.Ed.2d 184 (1970). The purpose of the "zone of interests" test is "to exclude those plaintiffs whose suits are more likely to frustrate than to further statutory objectives." Clarke v. Securities Indus. Ass'n, 479 U.S. 388, 397 n. 12, 107 S.Ct. 750, 756 n. 12, 93 L.Ed.2d 757 (1987).

Accordingly, in order to challenge the LRMP under NEPA, NLAA must allege that its injury is within the zone of interests protected by NEPA. NEPA was enacted in order "to promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man." 42 U.S.C. § 4321 (1988). The purpose of NEPA is to protect the environment, not the economic interests of those adversely affected by agency decisions. Portland Audubon Soc'y v. Hodel, 866 F.2d 302, 309 (9th Cir.), cert. denied, 492 U.S. 911, 109 S.Ct. 3229, 106 L.Ed.2d 577 (1989). Therefore a plaintiff who asserts purely economic injuries does not have standing to challenge an agency action under NEPA. See Port of Astoria v. Hodel, 595 F.2d 467, 475 (9th Cir.1979); accord Competitive Enter. Inst. v. National Highway Traffic Safety Admin., 901 F.2d 107, 123-24 (D.C.Cir.1990); Churchill Truck Lines, Inc. v. United States, 533 F.2d 411, 416 (8th Cir.1976); Clinton Community Hosp. Corp. v. Southern Maryland Medical Ctr., 510 F.2d 1037, 1038 (4th Cir.), cert. denied, 422 U.S. 1048, 95 S.Ct. 2666, 45 L.Ed.2d 700 (1975).

NLAA admits that the primary injury suffered by its members is economic, but contends that the LRMP also affects the "human environment" of the NLAA members and has therefore caused "lifestyle loss" as well as economic loss. NLAA further argues that its members have an economic interest in maintaining the forest resources and therefore in protecting the environment. However, NLAA does not allege that the increased grazing levels it seeks would benefit the natural environment, and there seems to be substantial evidence to the contrary. NLAA cannot invoke NEPA to prevent "lifestyle loss" when the lifestyle in question is damaging to the environment. Since NLAA's suit is "more likely to frustrate than to further" the objectives of NEPA, Clarke, 479 U.S. at 397 n. 12, 107 S.Ct. at 756 n. 12, NLAA lacks standing to challenge the LRMP under NEPA. ²

II. Review of Summary Judgment

A. Standard of Review

We review the district court's grant of summary judgment de novo to determine whether there are any genuine issues of material fact. Norfolk Energy, Inc. v. Hodel, 898 F.2d 1435, 1439 (9th Cir.1990). In making this determination, we view the record in the light most favorable to the non-moving party. Id. In the context of reviewing a decision of an administrative agency, de novo review means that we "view the case from the same position as the district court." Marathon Oil Co. v. United States, 807 F.2d 759, 765 (9th Cir.1986), cert. denied, 480 U.S. 940, 107 S.Ct. 1593, 94 L.Ed.2d 782 (1987).

A decision of an administrative agency "must be set aside if the action was 'arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law' or if the action failed to meet statutory, procedural, or constitutional requirements." Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 414, 91 S.Ct. 814, 822, 28 L.Ed.2d 136 (1971) (quoting 5 U.S.C. § 706(2)). In determining whether an action is arbitrary or capricious, we consider "whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment." Id. at 416, 91 S.Ct. at 823-24. An agency's interpretation of its own regulations controls unless it is " 'plainly erroneous or inconsistent with the regulation[s].' " Marathon Oil, 807 F.2d at 765 (quoting Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414, 65 S.Ct. 1215, 1217, 89 L.Ed. 1700 (1945)). ³

B. Compliance with NFMA

1. Range of Alternatives

The Service regulations promulgated under NFMA require that in preparing an LRMP, the Service must consider "a broad range of reasonable alternatives" in order to comply with NEPA and "to provide an adequate basis for identifying the alternative that comes nearest to maximizing net public benefits." 36 C.F.R. § 219.12(f) (1992). NLAA argues that the Service did not comply with this requirement because grazing levels under the various alternatives considered did not encompass a sufficiently broad range. The district court rejected this contention because the alternatives covered "a broad spectrum from primarily commercially-oriented uses to primarily wilderness uses."

We agree with the district court. The Service considered nine different alternatives and projected the grazing outputs likely to result from these alternative plans. The projected grazing levels ranged from 100,000 AUMs to 91,800 AUMs for the period of 1991-2000. ⁴ One of the alternatives involved maintaining the then current grazing level of 98,400 AUMs. The alternative eventually adopted had a forecasted grazing output in the middle of the range of alternatives, at 98,100 AUMs for the 1991-2000 period. Since the maximum level of grazing possible without impairing range productivity was considered to be 101,600 AUMs, the range of alternatives included grazing outputs as close to 100% capacity. The Service was not required to scrutinize alternatives that could not reasonably be considered feasible options. Cf. Idaho Conservation League v. Mumma, 956 F.2d 1508,...