Cent. Sierra Envtl. Res. Ctr. v. Stanislaus Nat'l Forest

• Decision Date: 06 February 2018
• Docket Number: 1:17–cv–00441–LJO–SAB
• Parties: CENTRAL SIERRA ENVIRONMENTAL RESOURCE CENTER, et al., Plaintiffs, v. STANISLAUS NATIONAL FOREST, et al., Defendants.
• Court: U.S. District Court — Eastern District of California

304 F.Supp.3d 916

CENTRAL SIERRA ENVIRONMENTAL RESOURCE CENTER, et al., Plaintiffs,

v.STANISLAUS NATIONAL FOREST, et al., Defendants.

1:17–cv–00441–LJO–SAB

United States District Court, E.D. California.

Signed February 6, 2018

Filed February 7, 2018

Peter M.K. Frost, Western Environmental Law Center, Eugene, OR, Michael Ward Graf, Law Offices of Michael Ward Graf, El Cerrito, CA, for Plaintiffs.

John Tustin, Govt., Lauren Adkins, U.S. Department of Justice Environment and Natural Resources Division Natural Resources Section, Michael Ceja Martinez, Travis James Annatoyn, U.S. Department of Justice, Washington, DC, for Defendants.

MEMORANDUM DECISION AND ORDER RE DEFENDANTS' MOTIONS TO DISMISS (ECF Nos. 40 and 41)

Lawrence J. O'Neill, UNITED STATES CHIEF DISTRICT JUDGE

I. INTRODUCTION

Plaintiffs Central Sierra Environmental Resource Center ("CSERC") and Sierra Forest Legacy (together, "Plaintiffs") bring this suit against Defendants Jeanne M. Higgins (now former Forest Supervisor for the Stanislaus National Forest), Stanislaus National Forest, and the U.S. Forest Service ("Forest Service") (together, "Federal Defendants"), challenging the cattle grazing program in three livestock allotments in Stanislaus National Forest. Federal Defendants moved to dismiss on the grounds both that the Plaintiffs fail to state a claim upon which relief can be granted and that the Court lacks jurisdiction to hear the claims. ECF No. 41–1 ("Mot."). Defendant–Intervenors, various permittees and the permittees' trade association, also moved to dismiss under Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6). ECF No. 40–1 ("Intervenor Mot."). Plaintiffs opposed both motions in a single opposition. ECF No. 46 ("Opp."). Federal Defendants, ECF No. 52 ("Reply"), and Defendant– Intervenors, ECF No. 51 ("Intervenor Reply"), both filed replies. This matter is now ripe for review and is suitable for disposition without oral argument. See Local Rule 230(g).

II. STATUTORY BACKGROUND

A. Clean Water Act

The purpose of the Clean Water Act ("CWA") is "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. § 1251. Accordingly, the CWA prohibits "the discharge of any pollutant by any person" into waters of the United States except when discharged in compliance with a National Pollution Discharge Elimination System ("NPDES") permit. 33 U.S.C. §§ 1311(a), 1342. The CWA "drew a distinct line between point and nonpoint pollution sources." Oregon Nat. Res. Council v. U.S. Forest Serv. , 834 F.2d 842, 849 (9th Cir. 1987). The CWA defines point sources as "discernible, confined and discrete conveyances," including pipes and ditches. 33 U.S.C. § 1362(14).¹ The CWA does not define nonpoint sources, but they consist of other sources of pollution that do "not result from the ‘discharge’ or ‘addition’ of pollutants from a point source."² Oregon Nat. Res. Council , 834 F.2d at 849 n.9. Nonpoint sources of pollution include runoff from animal grazing and irrigated agriculture. Oregon Nat. Desert Ass'n v. Dombeck , 172 F.3d 1092, 1095 (9th Cir. 1998) (" O.N.D.A. v. Dombeck "). The parties do not dispute that "something as inherently mobile as a cow" represents a nonpoint pollution source. Id. at 1099.

The CWA directly regulates pollution from point sources through the issuance of NPDES permits but "provides no direct mechanism to control nonpoint source pollution." O.N.D.A. v. Dombeck , 172 F.3d at 1097. Instead, the CWA "uses the ‘threat and promise’ of federal grants to the states to accomplish this task" through federal grants for state wastewater treatment plans, 33 U.S.C. § 1288(b)(2), and a requirement that states prepare nonpoint source management programs, 33 U.S.C. § 1329. The latter provision, CWA § 319, "does not require states to penalize nonpoint source polluters who fail to adopt best management practices; rather it provides for grants to encourage the adoption of such practices." Nat. Res. Def. Council v.E.P.A. , 915 F.2d 1314, 1318 (9th Cir. 1990). California's Porter–Cologne Water Quality Control Act ("Porter–Cologne Act") established California's framework for water quality regulation in the state. Cal. Water Code ("CWC") §§ 13000 et seq . The Porter–Cologne Act vested California's State Water Resources Control Board ("State Water Board"), CWC § 13100, and nine regional water boards, CWC § 13200, with power to set standards and procedures to protect water quality, such as the creation and adoption of water quality control plans, CWC § 13240, and control over the information that waste dischargers must file with the regional board, CWC § 13260.

Though the CWA does not itself regulate nonpoint pollution sources, it provides that federal agencies are required to comply with state and local water quality requirements to the same extent as nongovernmental actors. CWA § 313, 33 U.S.C. § 1323. This requirement applies both to point and nonpoint sources. O.N.D.A. v. Dombeck , 172 F.3d at 1098 (" Section 1323 plainly applies to nonpoint sources of pollution on federal land.").

B. National Forest Management Act

The Forest Service manages the National Forests pursuant to the National Forest Management Act of 1976 ("NFMA"). See 16 U.S.C. §§ 1600 – 1614. The NFMA and its implementing regulations provide for forest planning and management at the forest level and at the individual project level. See id. ; see also Inland Empire Pub. Lands Council v. U.S. Forest Serv. , 88 F.3d 754, 757 (9th Cir. 1996). At the forest level, the Forest Service is required to develop a Land and Resource Management Plan ("LRMP" or "Forest Plan"), which sets forth a long-term planning document for an entire National Forest that considers a range of economic and environmental factors. See 16 U.S.C. § 1604(g)(1)–(3). At the individual project level, site-specific actions, such as resource plans, contracts, and grazing permits, are approved or denied by the Forest Service consistent with the governing LRMP. See Inland Empire Pub. Lands Council , 88 F.3d at 757.

"It is well-settled that the Forest Service's failure to comply with the provisions of a Forest Plan is a violation of NFMA." Native Ecosystems Council v. U.S. Forest Serv. , 418 F.3d 953, 961 (9th Cir. 2005). NFMA is clear that "[r]esource plans and permits, contracts, and other instruments for the use and occupancy of National Forest System lands shall be consistent with the land management plans." 16 U.S.C. § 1604(i) ; see also Neighbors of Cuddy Mountain v. Alexander , 303 F.3d 1059, 1062 (9th Cir. 2002) ("Specific projects, such as the Grade/Dukes timber sale, must be analyzed by the Forest Service and the analysis must show that each project is consistent with the plan."); Idaho Sporting Cong., Inc. v. Rittenhouse , 305 F.3d 957, 962 (9th Cir. 2002) ("[A]ll management activities undertaken by the Forest Service must comply with the forest plan, which in turn must comply with the Forest Act."); Neighbors of Cuddy Mountain v. U.S. Forest Serv ., 137 F.3d 1372, 1377–78 (9th Cir. 1998) (holding that the Forest Service was not in compliance with NFMA where its site-specific project was inconsistent with the forest plan of the entire forest); Friends of Southeast's Future v. Morrison , 153 F.3d 1059, 1068 n.4 (9th Cir. 1998) (" 16 U.S.C. § 1604(i) plainly imposes a legal obligation on the Forest Service to ensure that timber sales are consistent with the relevant Forest Plan.").

The Forest Service authorizes grazing on allotments through three types of site-specific actions, each of which must be consistent with the applicable Forest Plan. Buckingham v. Sec'y of U.S. Dep't of Agr. , 603 F.3d 1073, 1077 (9th Cir. 2010). The first type of action is grazing permits, which are "document[s] authorizing livestock to use National Forest System or other lands under Forest Service control for the purpose of livestock production." 36 C.F.R. § 222.1(b)(5) ; see also 43 U.S.C. §§ 1702(p), 1752(a). Grazing permits ordinarily specify "(1) the number, (2) kind, (3) and class of livestock, (4) the allotment to be grazed, and (5) the period of use." Buckingham , 603 F.3d at 1077 (quoting Oregon Nat. Desert Ass'n v. U.S. Forest Serv. , 465 F.3d 977, 980 (9th Cir. 2006) (" O.N.D.A. v. U.S. Forest Serv. ") ). The standard term for grazing permits is ten years. Id. (citing 43 U.S.C. § 1752(b) ; 36 C.F.R. § 222.3(c)(1) ). The Forest Service " ‘is authorized to cancel, modify, or suspend grazing and livestock use permits in whole or in part’ if the permittee fails to comply with the requirements of his or her permit, or with governing regulations." Id. (quoting 36 C.F.R. § 222.4(a)(4) ).

The second type of site-specific action is an "allotment management plant" ("AMP"), which is "a document that specifies the program of action designated to reach a given set of objectives" as to a specific allotment, including "the manner in and extent to which livestock operations will be conducted in order to meet the multiple-use, sustained yield, economic, and other needs and objectives as determined for the lands, involved." Id. (citing 36 C.F.R. § 222.1(b)(2) ). If no AMP has been completed or if the Forest Service determines that none is necessary, then the grazing permits and leases include "such terms and conditions as [the Forest Service] deems appropriate for management of the permitted or leased lands." 43 U.S.C. § 1752(e).

Finally, the third type of site-specific action is the development of annual operating plans ("AOPs") or instructions ("AOIs"). "Whereas the AMP relates the directives of the applicable [F]orest [P]lan to the individual grazing allotment...the AOI annually conveys these more long-term directives into instructions to the permittee for annual operations." O.N.D.A. v. U.S. Forest Serv. , 465 F.3d at 980. "Because an AOI is issued annually, it is responsive to conditions that the Forest Service could not or may not have anticipated and planned for in the AMP or grazing permit...." Id. at...