Center for Biological Diversity v. Lueckel

• Decision Date: 06 December 2002
• Docket Number: No. 2:01-CV-194.,2:01-CV-194.
• Citation: 248 F.Supp.2d 660
• Parties: CENTER FOR BIOLOGICAL DIVERSITY, et al., Plaintiffs, v. Robert LUECKEL, Ottawa National Forest Supervisor, et al., Defendants.
• Court: U.S. District Court — Western District of Michigan

248 F.Supp.2d 660

CENTER FOR BIOLOGICAL DIVERSITY, et al., Plaintiffs, v. Robert LUECKEL, Ottawa National Forest Supervisor, et al., Defendants.

No. 2:01-CV-194.

United States District Court, W.D. Michigan, Northern Division.

December 6, 2002.

Terrence Dean, U.S. Attorney's Office, Marquette, MI, for Ann M. Veneman, Dale Bosworth, Robert Lueckel and Thomas A. Schmidt.

Robert I. Dodge, United States Attorney's Office, Grand Rapids, MI, for Ann M. Veneman.

Brent R. Plater, Center for Biological Diversity, Oakland, CA, for Center for Biological Diversity, Northwoods Wilderness Recovery and Superior Wilderness Action Network.

OPINION

QUIST, District Judge.

Plaintiffs, Center for Biological Diversity, Northwoods Wilderness Recovery, and Superior Wilderness Action Network, have sued Defendants, Robert Lueckel, Ottawa National Forest Supervisor, Thomas A. Schmidt, Hiawatha National Forest Supervisor, and Ann M. Venneman, United States Secretary of Agriculture, pursuant to the Administrative Procedures Act ("APA"), 5 U.S.C. §§ 701 to 706. Plaintiffs allege that the United States Forest Service ("Forest Service") failed to comply with: (1) the Wild and Scenic Rivers Act ("WSRA"), 16 U.S.C. §§ 1271 to 1287, by preparing Comprehensive Management Plans ("CMPs") or establishing detailed boundaries for congressionally Designated Wild and Scenic Rivers ("DWSR") in Ottawa National Forest ("ONF") and Hiawatha National Forest ("HNF"); (2) the National Forest Management Act ("NFMA"), 16 U.S.C. § 1600 to 1614, by amending or revising its forest plans, after providing public notice, to adopt and/or implement CMPs for DWSRs within ONF and HNF; and (3) the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321 to 4361, by preparing Environmental Impact Statements ("EIS"), Environmental Assessments ("EA"), or Categorical Exclusions ("CE") for both creating CMPs and establishing detailed river corridor boundaries. Plaintiffs seek a declaration that Defendants did not comply with the WSRA and an injunction ordering Defendants to comply with the WSRA and halt all timber harvesting and road construction until they have fully complied. Now before the Court are the parties' cross-motions for summary judgment. Defendants have moved for summary judgment on all claims, while Plaintiffs have moved for summary judgment only on their WSRA claims. For the reasons stated below, the Court will dismiss the case for lack of standing.

I. Statutory and Procedural Overview

ONF consists of almost one million acres of federally-owned land located in the western portion of Michigan's Upper Peninsula. HNF consists of approximately 880,000 acres of federally-owned land located in the central and eastern portion of Michigan's Upper Peninsula. Both are managed by the Forest Service. Plaintiffs allege that the Forest Service's management of ONF and HNF violates: (1) the WSRA; (2) the NFMA; and (3) the NEPA.

A. The Wild and Scenic Rivers Act

Congress has the authority to designate Wild and Scenic Rivers under the WSRA. 16 U.S.C. §§ 1271 to 1287. The WSRA classifies rivers into three categories: "wild;" "scenic;" and "recreational." 16 U.S.C. § 1273(b).¹ "Wild" river areas "represent vestiges of primitive America" and are "free of impoundments and generally inaccessible except by trail, with watersheds or shorelines essentially primitive and waters unpolluted." 16 U.S.C. § 1273(b)(1). "Scenic" river areas are "free of impoundments, with shorelines or watersheds still largely primitive and shorelines largely undeveloped, but accessible in places by roads." 16 U.S.C. § 1273(b)(2). Finally, "recreational" river areas are those "that are readily accessible by road or railroad, that may have some development along their shorelines, and that have undergone some impoundment or diversion in the past." 16 U.S.C. § 1273(b)(3).

Once Congress designates a river, the WSRA mandates that the Forest Service manage the DWSR "in such manner as to protect and enhance the values which caused it to be included in said system without, insofar as is consistent therewith, limiting other uses that do not substantially interfere with public use and enjoyment of these values." 16 U.S.C. § 1281(a). Thus, while the WSRA does not ban activities such as timber harvesting and road construction, the WSRA does require that the Forest Service conduct them in such a manner as to protect and enhance river values based on designation level. The Forest Service is given the discretion to strike this balance. Id.

The WSRA also imposes two procedural obligations on the Forest Service after a river segment is designated. First, the Forest Service must "establish detailed boundaries" for each DWSR within one year of the date of designation. 16 U.S.C. § 1274(b). Until publication of the detailed boundaries, the WSRA establishes one-quarter mile boundaries measured from the ordinary high water mark on either side of the river.² Id. Second, the Forest Service must prepare a "comprehensive management plan" for each designated river segment that will "provide for the protection of river values" within three fiscal years of the date of designation. 16 U.S.C. § 1274(d)(1).

1. Defendants' Compliance with the WSRA

Located within ONF and HNF are numerous river segments that Congress named DWSRs on March 3, 1992. Michigan Scenic Rivers Act of 1991, Pub.L. No. 102-249 § 3, 106 Stat. 45 (codified at 16 U.S.C. § 1274(a)). Plaintiffs allege, and Defendants do not contest, that the Forest Service has not complied with WSRA requirements to prepare CMPs or establish detailed boundaries for the following DWSRs in ONF: the Black River, id. at § 1274(a)(120); the East Branch of the Ontonagon River, id. at § 1274(a)(124)(A); the Middle Branch of the Ontonagon River, id. at § 1274(a)(124)(B); the Cisco Branch of the Ontonagon River, id. at § 1274(a)(124)(C); the West Branch of the Ontonagon River, id. at § 1274(a)(124)(D); the Main Stem of the Paint River, id. at § 1274(a)(125)(A); the North Branch of the Paint River, id. at § 1274(a)(125)(B); the South Branch of the Paint River, id. at § 1274(a)(125)(C); the Main Stem of the Presque Isle River, id. at § 1274(a)(127)(A); the East Branch of the Presque Isle River, id. at § 1274(a)(127)(B); the Yellow Dog River, id. at § 1274(a)(132); and the Sturgeon River (ONF),³ id. at § 1274(a)(129)(A)-(B) (collectively "the ONF Rivers"). Plaintiffs also allege, and Defendants do not contest, that the Forest Service has not complied with WSRA requirements to prepare CMPs or establish detailed boundaries for the following DWSRs in HNF: the Carp River, id. at § 1274(a)(121)(A)-(F); the Sturgeon River (HNF), id. at § 1274(a)(128)(A)-(B); the East Branch of the Tahquamenon River, id. at § 1274(a)(130)(A)-(B); and the Whitefish River, id. at § 1274(a)(131)(A)-(C), (collectively "the HNF Rivers").

2. The Forest Service's Management of the DWSRs in ONF and HNF

Defendants are currently relying on separate comprehensive management plans for ONF and HNF, and they have maintained the initial one-quarter mile boundaries on either side of the DWSRs. Both plans divide the respective forests into distinct Management Areas, each of which has its own environmental characteristics and management prescription. River segments merits that have been named DWSRs in ONF are within ONF's Management Area 8.1, while the DWSRs in HNF are within HNF's Management Area 8.4. The Management Prescriptions for these Management Areas specify the level of timber cutting and road construction permissible based on whether the DWSR has been classified as wild, scenic, or recreational.

Defendants admit that these comprehensive management plans do not comply with the CMP requirement of the WSRA, and that they have not finalized CMPs for the DWSRs at issue. However, Defendants assert that if the they had finalized CMPs, they would have, in all likelihood, adopted the development restrictions already in place under the existing Management Prescriptions. Defendants also note that while they have not established detailed boundaries for the DWSRs, the detailed boundaries could not be more expansive than the one-quarter mile boundaries they are currently implementing.

3. Timber Harvest and Road Construction Within ONF and HNF

The Forest Service has harvested timber and constructed some roads, or plans to do so in the future, within ONF pursuant to its Management Prescription 8.1. In seventeen of the twenty-three DWSR segments identified in Plaintiffs complaint, the Forest Service states that there is no timber cutting or road construction now underway or proposed for the future. Of the six impacted DWSR segments, the Forest Service indicates that selected timber cutting will take place on approximately 1.2% of the total land that the DWSRs occupy, or 403 of the 31,200 acres.⁴ The total amount of road construction will be just over one mile. Five of the impacted DWSRs are designated "recreational," and one is designated "scenic."

The Forest Service has no timber harvesting or road construction underway or planned for any of the fifteen DWSRs at issue in HNF.

4. Plaintiffs'Affidavits

In support of their claims, Plaintiffs offer affidavits from nine of their members. The first member, Raymond Weglarz, lives in Allouez, Michigan. (Weglarz Decl. ¶ 2, Pls.' Mem. Opp'n Defs.' Mot. Partial Summ. J. Ex. F.) Weglarz states that he has used DWSRs in ONF and HNF for a variety of activities, including hiking, camping, fishing, and canoeing for the past twenty-six years, and he will continue to do so in the future. (Id. ¶¶ 5, 6.) Weglarz states that he is "extremely concerned about the health of the environment and the maintenance of wild and scenic places in the Upper Peninsula of Michigan," (id. ¶ 3), and that he has "seen first hand how the continuing absence of a Comprehensive Management Plan and the failure to establish detailed river corridor boundaries for the Wild and Scenic Rivers in this lawsuit has led to...