Citizens for Better Forestry v. U.S. Dept. of Agr., C 05-1144 PJH.

• Citation: 481 F.Supp.2d 1059
• Decision Date: 30 March 2007
• Docket Number: No. C 05-1144 PJH.,C 05-1144 PJH.
• Court: U.S. District Court — Northern District of California
• Parties: CITIZENS FOR BETTER FORESTRY, et al., Plaintiffs, v. U.S. DEPT. OF AGRICULTURE, et al., Defendants, and American Forest & Paper Assn., et al., Defendants — Intervenors. Defenders of Wildlife, et al., Plaintiffs, and People of the State of California, Plaintiff — Intervenor, v. Mike Johanns, Secretary, United States Department of Agriculture, in his official capacity, et al., Defendants, and American Forest & Paper Assn., et al., Defendants — Intervenors.

481 F.Supp.2d 1059

CITIZENS FOR BETTER FORESTRY, et al., Plaintiffs, v. U.S. DEPT. OF AGRICULTURE, et al., Defendants, and American Forest & Paper Assn., et al., Defendants — Intervenors.

Defenders of Wildlife, et al., Plaintiffs, and People of the State of California, Plaintiff — Intervenor, v. Mike Johanns, Secretary, United States Department of Agriculture, in his official capacity, et al., Defendants, and American Forest & Paper Assn., et al., Defendants — Intervenors.

No. C 05-1144 PJH.

United States District Court, N.D. California.

March 30, 2007.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Marc D. Fink, Duluth, MN, Peter M.K. Frost, Western Environmental Law Center, Eugene, OR, Brent Plater, San Francisco, CA, for Plaintiffs.

Cynthia S. Huber, U.S. Department of Justice, Environment and Natural Resources Div., J. Michael Klise, Thomas R. Lundquist, Crowell & Moring LLP, Washington, DC, Andrew A. Smith, United States Department of Justice c/o United States Attorneys Office, Albuquerque, NM, James A. Coda, Office of the United States Attorney, San Francisco, CA, for Defendants.

ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT; AND GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

HAMILTON, District Judge.

The parties' cross-motions for summary judgment in these two environmental cases came on for hearing before the court on November 1, 2006. The court had previously decided two motions for summary judgment and/or for judgment on the pleadings. Because of the overlap in the facts, administrative records, and claims, the court ordered consolidated summary judgment briefing and argument on the remaining claims.

For the reasons that follow, the court GRANTS IN PART AND DENIES IN PART plaintiffs' motion for summary judgment and GRANTS IN PART AND DENIES IN PART defendants' motion for summary judgment.

PROCEDURAL BACKGROUND

Defenders of Wildlife, Sierra Club, The Wilderness Society, and the Vermont Natural Resources Council (collectively "Defenders" plaintiffs) are non-profit environmental and conservation organizations headquartered throughout the United States. Defenders filed their case, 04-4512 PJH, on October 26, 2004, asserting five claims for relief under the Administrative Procedure Act ("APA"), 5 U.S.C. § 553, the National Forest Management Act of 1976 ("NFMA"), 16 U.S.C. § 1600 et seq., and the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4231 et seq., against defendants Mike Johanns, the Secretary of the United States Department of Agriculture ("USDA"), Dale Bosworth, the Chief of the United States Forest Service, and the United States Forest Service, an agency within the USDA.

Defenders plaintiffs filed a supplemental complaint on February 17, 2005. Defendants American Forest & Paper Association and American Forest Resource Council (collectively "defendant-intervenors") intervened on May 23, 2005. On October 14, 2005, this court granted in part and denied in part Defenders defendants' motion for partial summary judgment and/or for judgment on the pleadings as to three of the five claims in 04-4512 PJH. The court denied summary judgment as to two of the claims, and granted it as to one. Thus, following the motion, four claims remained. Subsequently, on October 17, 2005, the State of California intervened in the Defenders case, and filed a complaint stating two claims (which overlap with surviving claims in both the Defenders and Citizens cases).

Plaintiffs Citizens for Better Forestry, Environmental Protection Information Center, Center for Biological Diversity, the Ecology Center, Gifford Pinchot Task Force, Kettle Range Conservation Group, Idaho Sporting Congress, Friends of the Clearwater, Utah Environmental Congress, Cascadia Wildlands Project, Klamath Siskiyou Wildlands Center, Southern Appalachian Biodiversity Project, Headwaters, the Lands Council, and Oregon Natural Resources Council Fund (collectively "Citizens" plaintiffs) are also non-profit environmental and conservation organizations headquartered throughout the United States. They filed their complaint in case number 05-1144 on March 21, 2005, and a supplemental complaint on November 7, 2005 (following this court's summary judgment order in the Defenders case), alleging ten claims under NEPA, the APA, and the Endangered Species Act ("ESA") against defendants USDA and the Forest Service. Defendants American Forest & Paper Association and American Forest Resource Council intervened in the Citizens case as well. On April 21, 2006, the court granted Citizens defendants' motion for partial summary judgment and/or judgment on the pleadings, and dismissed six of the ten claims in the Citizens case. Accordingly, there are also four remaining claims in the Citizens case.

Because the Citizens and Defenders cases were both assigned to the undersigned judge, the cases were never formally related or consolidated. However, because of the overlapping nature of the eight surviving claims in the two cases, on May 10, 2006, the court ordered consolidated briefing on the final summary judgment motions as to the remaining claims. Thus, when the court refers to "plaintiffs and defendants" in this order, it is referring collectively to the plaintiffs and defendants in both cases. Additionally, on November 21, 2006, after the hearing on the motions, the court ordered supplemental consolidated briefing on the NEPA and ESA claims, which was completed on December 19, 2006.

CLAIMS/ISSUES

In their cross-motions for summary judgment, the parties consolidated the surviving claims in the two cases and presented five issues for the court's resolution:

(1) Whether the USDA violated NEPA in failing to analyze the environmental effects of the decision to replace existing NFMA regulations with the 2005 Rule and categorically excluding the 2005 Rule from NEPA;

(2) Whether the USDA violated ESA by failing to consult with expert agencies regarding the potential impacts of the 2005 Rule on threatened and endangered species;

(3) Whether the USDA violated the APA by failing to provide sufficient public notice and opportunity for comment on the 2005 Rule;

(4) Whether the USDA violated the APA by failing to provide public notice and allow public comment on the 2004 Interpretive Rule; and

(5) Assuming there is a violation of one of the statutes, what is the appropriate remedy or relief?

FACTUAL BACKGROUND

A. The National Forest System and the NFMA

The National Forest System (also referred to as "NFS"), which at 192 million acres comprises approximately eight percent of the United States landscape, in eludes 155 national forests and 22 national grasslands. See Ohio Forestry Ass'n, Inc. v. Sierra Club, 523 U.S. 726, 729, 118 S.Ct. 1665, 140 L.Ed.2d 921 (1998). The National Forest System is administered by the Forest Service (also referred to as "FS"), an agency of the USDA.

In 1976, Congress enacted the National Forest Management Act of 1976 ("NFMA") to reform Forest Service management of the National Forest System. The NFMA requires the Secretary of Agriculture to develop land and resource management plans for units of the National Forest System. 16 U.S.C. § 1604(a). When the Secretary develops these plans, the NFMA requires him to comply with NEPA, which in turn encompasses a duty to prepare environmental impact statements ("EIS"). See 16 U.S.C. § 1604(g)(1).

The NFMA envisions a two-stage approach to forest planning. Inland Empire Pub. Lands v. United States Forest Serv., 88 F.3d 754, 757 (9th Cir.1996) (citing Idaho Conservation League v. Mumma, 956 F.2d 1508, 1511 (9th Cir.1992)); Neighbors of Cuddy Mountain v. United States Forest Serv., 137 F.3d 1372, 1376 (9th Cir. 1998). First, the NFMA requires the Forest Service to develop a comprehensive forest plan ("forest plan"), which may also be referred to as a Land Resource Management Plan ("LRMP"), and as mentioned above, an EIS for the entire forest. Id.; 36 C.F.R. § 219(a),(b). The forest plan establishes basic guidelines and sets forth the planning elements that will be employed by the Forest Service in future actions in that forest. See Sierra Club v. Robertson, 28 F.3d 753, 755 (8th Cir.1994). "Once the [Forest Plan] is approved, direct implementation of the LRMP occurs at a second, stage, when individual site-specific projects are proposed and assessed." Inland Empire, 88 F.3d at 757. A site-specific project or decision "must be consistent with the LRMP for the larger area." Neighbors, 137 F.3d at 1376-77.

The NFMA also imposes substantive requirements on the Forest Service at both stages. See 16 U.S.C. § 1604(g)(3). These requirements have been promulgated as regulations. See 36 C.F.R. §§ 219, et seq. Among the NFMA's substantive requirements is the duty to provide for the diversity of plant and animal communities. See 16 U.S.C. § 1604(g)(3)(B).

B. The 1982 Rule (also referred to as 1982 Planning Regulations)

In 1982, the USDA promulgated regulations to protect wildlife and fish, soils water, outdoor recreation, and other public resources. The 1982 Planning Regulations included a species viability provision, which provided that "[f]ish and wildlife habitat shall be managed to maintain viable populations of existing native and desired non-native vertebrate species in the planning area." See 36 C.F.R. § 219.19(a)(1) & (6) (1982). To implement or facilitate this provision, the 1982 Planning Regulations required the Forest Service to select certain wildlife species to be monitored as proxies for the health of broader wildlife populations of the specific ecosystems. These proxy species are referred to as "management indicator species" or "MIS." Id. at § 219.19(a)(1).

C. The 2000 Rule (also referred to as 2000 Planning Regulations)

Several attempts were made to revise the 1982 Planning Regulations prior to 2000. In 1998, a Committee of Scientists convened meetings across the country regarding such revisions, and...