Biodiversity Associates v. U.S. Forest Service

• Decision Date: 01 October 2002
• Docket Number: No. 01-CV-0078-B.,01-CV-0078-B.
• Parties: BIODIVERSITY ASSOCIATES, a Wyoming non-profit corporation, Friends of the Bow, an unincorporated Wyoming organization, and Leila Bruno, an individual, Plaintiffs, v. UNITED STATES FOREST SERVICE DEPARTMENT OF AGRICULTURE, a Federal agency, United States Forest Service Rocky Mountain Regional Forester, in his official capacity, United States Forest Service Medicine Bow National Forest Supervisor, in her official capacity, Defendants, and INTERMOUNTAIN FOREST ASSOCIATION, an Idaho non-profit corporation, Bighorn Lumber Co., a Wyoming corporation, and Louisiana Pacific Corporation, a Delaware corporation, Intervenor Defendants.
• Court: U.S. District Court — District of Wyoming

226 F.Supp.2d 1270

BIODIVERSITY ASSOCIATES, a Wyoming non-profit corporation, Friends of the Bow, an unincorporated Wyoming organization, and Leila Bruno, an individual, Plaintiffs, v. UNITED STATES FOREST SERVICE DEPARTMENT OF AGRICULTURE, a Federal agency, United States Forest Service Rocky Mountain Regional Forester, in his official capacity, United States Forest Service Medicine Bow National Forest Supervisor, in her official capacity, Defendants, and INTERMOUNTAIN FOREST ASSOCIATION, an Idaho non-profit corporation, Bighorn Lumber Co., a Wyoming corporation, and Louisiana Pacific Corporation, a Delaware corporation, Intervenor Defendants.

No. 01-CV-0078-B.

United States District Court, D. Wyoming.

October 1, 2002.

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Edward B Zukoski, Land and Water Fund of the Rockies Inc, Boulder, CO, Steve Jones, Jackson, WY, for Plaintiff.

Carol A Statkus, Asst U.S. Atty, U.S. Attorney's Office, Cheyenne, WY, Donna S Fitzgerald, Wells D Burgess, Department of Justice, Environment & Natural Resources Division, Washington, DC, Scott W Horngren, Haglund, Kirtley, Kelly & Horngren, Portland, OR, Harriet M Hageman, Hageman & Brighton, Cheyenne, WY, for Defendants.

MEMORANDUM OF ORDER AND JUDGMENT

BRIMMER, District Judge.

Plaintiffs Biodiversity Associates, Friends of the Bow and Leila Bruno bring this suit against the Forest Service, the Regional Forester, and the Forest Supervisor challenging various timber sales on the Medicine Bow National Forest. Intermountain Forest Association, Bighorn Lumber Company, and Louisiana Pacific Corporation were allowed to intervene as defendants on September 14, 2001.

Plaintiffs' suit arises from their claims that Defendants have violated the National Forest Management Act, 16 U.S.C. § 1601 et seq., by failing to revise the Medicine Bow National Forest Plan and by utilizing a timber sale schedule not contemplated by the Plan; that Defendants have violated the National Environmental Policy Act 42 U.S.C. § 4321 et seq., by failing to supplement the programmatic Environmental Impact Statement to account for new information and changed circumstances; that Defendants have violated Section 327 of the Department of the Interior and Related Agencies Appropriations Act for Fiscal Year 2002 by failing to act expeditiously and in good faith, within the funding available, to revise the Medicine Bow National Forest Plan; and that pursuant to the Administrative Procedure Act, 5 U.S.C. § 706(2)(A), the Court may set aside Defendants' actions which have been arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.

Defendants and Intervenor Defendants contend that Section 327 forecloses challenges based on the staleness of the Medicine Bow National Forest Plan documents during fiscal year 2002; that the Environmental Assessments for the challenged timber sale projects adequately address new information and changed circumstances pending the revision of the Medicine Bow National Forest Plan; that the United States Forest Service is meeting the Section 327 standards in its efforts to revise the Medicine Bow National Forest Plan; and that Plaintiffs have failed to demonstrate entitlement to injunctive relief against the Jack Creek # 3 sale, on a balance of the equities.

On July 17, 18, 19, 24 and 25, 2002, this Court conducted a hearing initially on Plaintiff's Motion for Preliminary Injunction. At the close of proceedings on July 19, 2002, the parties stipulated and the Court so ordered that the matter before the Court should be merged with a trial on the merits. Fed.R.Civ.P. 65(a)(2). Therefore, the Court now issues its findings of fact and conclusions of law and enters judgment. Fed.R.Civ.P. 52(a), 58. After hearing the issues presented at the hearing, considering the evidence, and being fully advised of the premises, the Court FINDS and ORDERS as follows:

Statement of Parties and Jurisdiction

Plaintiff Biodiversity Associates is an incorporated non-profit organization based in Laramie, Wyoming, founded to garner increased protection for wildlands and native wildlife and their habitats in the Medicine Bow National Forest ("MBNF") and the Rocky Mountain Region. Plaintiff Friends of the Bow is an unincorporated, non-profit organization based in Laramie, Wyoming, dedicated to the protection and restoration of the MBNF. Plaintiff Leila Bruno is a citizen of Wyoming and co-founder of Biodiversity Associates and a member of Friends of the Bow, who engages in numerous outdoor activities in the MBNF.

Defendant United States Forest Service ("USFS") is a federal agency within the United States Department of Agriculture. The Secretary of Agriculture has delegated to the USFS the responsibilities of protecting resources and properly managing uses and activities on National Forest System lands, including lands in the MBNF. The national headquarters of the USFS is located in Washington, DC. The headquarters for the Rocky Mountain Region of the USFS is located in Golden, Colorado. The USFS headquarters for the MBNF is located in Laramie, Wyoming.

Defendant United States Forest Service Rocky Mountain Regional Forester is a USFS official who is charged with overseeing USFS activities in the Rocky Mountain Region of the National Forest System, including the MBNF. The Regional Forester is responsible for supervising the revision of the MBNF's 1985 Forest Plan (the "Plan") and programmatic Environmental Impact Statement ("EIS"), as well as for issuing a timely revision of the Plan and EIS, among other duties. The current Regional Forester is Rick Cables and his office is located in Golden, Colorado.

Defendant United States Forest Service Medicine Bow National Forest Supervisor is an official of the USFS. The Forest Supervisor's responsibilities include supervising activities on the MBNF to ensure the protection of National Forest resources and comply with all applicable laws, regulations and Forest Service policies, among other duties. The current MBNF Forest Supervisor is Mary Peterson and her office is located in Laramie, Wyoming.

Intervenor Defendant Intermountain Forest Association ("IFA") is an Idaho non-profit corporation whose members are sawmills, loggers and related independent businesses that rely on national forest timber sales in the intermountain west for their livelihood. Intervenor Defendant Bighorn Lumber Company ("Bighorn") is a Wyoming corporation that operates a sawmill in Laramie, Wyoming. Historically, more than half of Bighorn's federal timber supply has come from the MBNF. Bighorn also owns forest land adjacent to the MBNF that it claims is threatened by infestation of insects and disease and the spread of fire if these dangers are not controlled on the MBNF. Intervenor Defendant Louisiana Pacific Corporation is a Delaware corporation that operates a saw-mill in Saratoga, Wyoming. The USFS awarded Louisiana Pacific the Joe's Park timber sale, which was initially implicated in this suit. Both Bighorn and Louisiana Pacific are members of IFA.

The Court has jurisdiction over this controversy pursuant to the Administrative Procedure Act, 5 U.S.C. § 702 (right of review); 28 U.S.C. § 1331 (federal question); 28 U.S.C. § 2201 (declaratory relief); 28 U.S.C. § 2202 (injunctive relief); and 28 U.S.C. § 1361 (mandamus). Venue is proper pursuant to 28 U.S.C. § 1391(e).

Statutory Background

1. The National Forest Management Act

Pursuant to congressional mandate, national forests are administered under the National Forestry Management Act ("NFMA"), 16 U.S.C. § 1601 et seq. "NFMA requires the Secretary of Agriculture to develop, maintain, and, as appropriate, revise land and resource management plans for units of the National Forest System." Ohio Forestry Association, Inc. v. Sierra Club, 523 U.S. 726, 728, 118 S.Ct. 1665, 140 L.Ed.2d 921 (1998).

NFMA controls national forest management at two levels. First, it requires the implementation of a forest plan, a broad, comprehensive document addressing forest policy and stewardship concerns. See 16 U.S.C. § 1604(d); 36 C.F.R. § 219.10(b). Forest plans are intended to "guide all natural resource management activities, including use of the land for outdoor recreation, range, timber, watershed, wildlife and fish, and wilderness. In developing the plans, the Service must take both environmental and commercial goals into account." Ohio Forestry, 523 U.S. at 729, 118 S.Ct. 1665 (citations omitted). Second, after a forest plan is created, it is implemented through the consideration and adoption of individual forest projects. See 16 U.S.C. § 1604(i); 36 C.F.R. § 219.10(e). These projects must be consistent with the forest plan. Id.

At issue in this case is NFMA's mandate that a forest plan "shall be revised ... from time to time when the Secretary finds conditions in a unit have significantly changed, but at least every fifteen years." 16 U.S.C. § 1604(f)(5). It is undisputed that the current MBNF Plan is more than fifteen years old. The statute is silent on the consequences of a failure to revise a plan within the fifteen year period.

2. The National Environmental Policy Act

Both the forest plan and the implementing projects are subject to the requirements of the National Environmental Policy Act ("NEPA"). 42 U.S.C. §§ 4321 et seq. Under NEPA, federal agencies such as the USFS are required to analyze any "major federal action significantly affecting the quality of the human environment." 42 U.S.C. § 4332. NEPA does not mandate a particular outcome in agency decisionmaking; it merely requires agencies to observe procedures designed to ensure citizens and officials are informed and allowed to comment on agency action before decisions are made. See Environmental Defense Fund, Inc. v. Andrus, 619 F.2d 1368, 1374-78 (10th Cir.1980). "Congress intended these `action-forcing procedures' [in...