8 F.3d 713 (9th Cir. 1993), 92-15814, Nevada Land Action Ass'n v. United States Forest Service

Docket Nº:92-15814.
Citation:8 F.3d 713
Party Name:NEVADA LAND ACTION ASSOCIATION, et al., Plaintiff-Appellant, and National Wildlife Federation, Intervenor, v. UNITED STATES FOREST SERVICE, Defendant-Appellee.
Case Date:November 02, 1993
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
FREE EXCERPT

Page 713

8 F.3d 713 (9th Cir. 1993)

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

November 2, 1993

Argued and Submitted Sept. 1, 1993.

Page 714

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.

Page 715

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

  1. 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).

  2. 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

    Page 716

    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...

To continue reading

FREE SIGN UP