Citizens for Better Fors. v. U.S. Dept., Agri.

Decision Date28 August 2003
Docket NumberNo. 02-16009.,02-16009.
PartiesCITIZENS FOR BETTER FORESTRY; The Ecology Center; Gifford Pinchot Task Force; Kettle Range Conservation Group; Idaho Sporting Congress, Inc.; Friends Of The Clearwater; Utah Environmental Congress; Cascadia Wildlands Project; Klamath Siskiyou Wildlands Center; Southern Appalachian Biodiversity Project; Headwaters; The Lands Council, Plaintiffs-Appellants, v. U.S. DEPARTMENT OF AGRICULTURE; United States Forest Service, Defendants-Appellees.
CourtU.S. Court of Appeals — Ninth Circuit

Michael Axline and Marc D. Fink, Western Environmental Law Center, Eugene, Oregon, and Roger Beers, Oakland, California for the plaintiffs-appellants.

Thomas L. Sansonetti, Assistant Attorney General, David C. Shilton and Sylvia Quast, United States Department of Justice, Washington, D.C. for the defendants-appellees.

Appeal from the United States District Court for the Northern District of California; Martin J. Jenkins, District Judge, Presiding. D.C. No. CV-01-00728-MJJ.

Before: John T. Noonan, A. Wallace Tashima, and Kim McLane Wardlaw, Circuit Judges.


WARDLAW, Circuit Judge:

Appellants1 (hereinafter "Citizens"), a coalition of environmental groups, appeal the district court's grant of partial summary judgment in favor of the United States Department of Agriculture and the United States Forest Service (collectively the "USDA"). Asserting that the USDA failed to comply with procedural requirements of the National Environmental Policy Act and the Endangered Species Act before promulgating its new national forest management policy (the "2000 Plan Development Rule"), Citizens sought injunctive relief to preclude implementation of the 2000 Plan Development Rule until the USDA complied with the statutory requirements. The district court held it did not have jurisdiction over this action because (i) Citizens failed to demonstrate a reasonable probability that the Rule threatened their concrete interests as their complaint was directed to neither a site-specific project nor a particular forest plan, and thus they lack standing; and (ii) Citizens failed to show any imminent injury and thus their claims are not ripe. Because Citizens alleges procedural injury, however, we hold that Citizens established both standing and ripeness, and reverse and remand to the district court to determine whether injunctive relief is appropriate.

I. Background
A. Historical Overview

National forests and grasslands are managed by the United States Forest Service, an agency within the United States Department of Agriculture. This agency utilizes a three-tiered approach to forest management, prescribed by the Forest And Rangeland Renewable Resources Planning Act of 1974 and the National Forest Management Act of 1976 ("NFMA") (both statutes codified as amended at 16 U.S.C. §§ 1601-1687).

National uniform regulations promulgated by the Secretary of Agriculture constitute the highest tier of regulatory oversight of the forest management system and govern the development and revision of the regional and local plans. 16 U.S.C. § 1604(g). These regulations mandate the compliance of lower-level plans with the National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321-4370f ("NEPA"), specifically setting forth the circumstances that require preparation of an Environmental Impact Statement ("EIS"). 16 U.S.C. § 1604(g)(1). In addition, they set broad guidelines (to be followed when preparing regional and site-specific plans) regarding plant and animal species conservation, timber management, and water management. Id. § 1604(g)(3). It is this highest-tier type of regulation (hereinafter referred to as a "plan development rule") that is at issue.

The next tier of regulatory oversight comprises regional "land and resource management plans" ("LRMPs") for large "units" in the national forest and grassland system. 16 U.S.C. § 1604(a). These plans operate like zoning ordinances, defining broadly the uses allowed in various forest regions, setting goals and limits on various uses (from logging to road construction), but do not directly compel specific actions, such as cutting of trees in a particular area or construction of a specific road. 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 content and promulgation of these plans must comply with the plan development rule.

At the lowest tier of forest rules are the so-called "site-specific" plans, which are prepared to effect specific, on-the-ground actions; these plans must be consistent with both sets of higher-level rules. 16 U.S.C. § 1604(i).

The USDA promulgated the first national forest-management plan development rule in 1979, accompanied by a full EIS analyzing the environmental impact of the regulation. See National Forest System Land and Resource Management Planning, 44 Fed.Reg. 53,928 (Forest Serv., Dep't of Agric. Sept. 17, 1979) (creating 36 C.F.R. pt. 219) ("1979 Plan Development Rule"). This rule was short-lived, and was substantially revised in 1982. See National Forest System Land and Resource Management Planning, 47 Fed.Reg. 43,026 (Forest Serv., Dep't of Agric. Sept. 30, 1982) (amending 36 C.F.R. pt. 219) ("1982 Plan Development Rule"). When initially published in the Federal Register as a draft rule, the 1982 Plan Development Rule was accompanied by a brief Environmental Assessment ("EA"), but not a full EIS.2 See 47 Fed.Reg. 7678, app. A at 7694 (Feb. 22.1982).

The 1982 Plan Development Rule set out a comprehensive approach to forest management, implementing the statutory directive. See 47 Fed.Reg. at 43,038 (revising 36 C.F.R. § 219.1(a)). This Rule required that "[f]ish and wildlife habitat shall be managed to maintain viable populations [thereof]," further defining a "viable" population as "one which has the estimated numbers and distribution of reproductive individuals to insure its continued existence is well distributed in the [relevant] area." See id. at 43,048 (creating 36 C.F.R. § 219.19) (emphasis added). In addition, the 1982 Rule required the development of so-called "regional guides," which "provide[d] standards and guidelines for addressing major issues and management concerns which need to be considered at the regional level to facilitate forest planning." See id. at 43,042 (revising 36 C.F.R. § 219.8-.9). Furthermore, the Rule contained "minimum specific management requirements," setting forth mandatory directives which all regional LRMPs must follow, and specific, quantifiable baselines below which no LRMP or site-specific plan can fall. See id. at 43,050 (creating 36 C.F.R. § 219.27). These requirements included, inter alia, establishment of 100-foot buffers around bodies of water and specific limits on tree-cutting. See id.

Although not put in place through the same rulemaking notice as the 1982 Rule procedures for the public to appeal certain decisions relating to LRMPs existed prior to the 2000 Rule. These procedures were modified several times between the early 1980s and the later 2000 Rule. See 36 C.F.R. pt. 217 (1999) (previous codification at 36 C.F.R. § 211.18 (1988)). The pre 2000 appeal rule permitted members of the public to file a notice of appeal "within 90 days of the date specified in the published legal notice for land and resource management plan approvals, significant amendments, or revisions," id. § 217.8(a)(3), i.e., within 90 days after a final decision is made.

B. The 2000 Plan Development Rule

The 1982 Rule was the subject of the USDA's unsuccessful six-year effort at amendment, culminating in 1995 with a draft rule that was never finalized. Subsequently, the Secretary of Agriculture convened a 13-member scientist committee under 16 U.S.C. § 1604(h), to offer recommendations for revising the plan development rules. After conducting a number of public meetings and conferences, the USDA published a proposed rule in late 1999, soliciting further public comment. See 64 Fed.Reg. 54,074 (Oct. 5, 1999). The public comment period ran from October 5, 1999, through February 10, 2000. See 65 Fed.Reg. 67,514, 67,517 (Nov. 9, 2000).

Unlike the previous draft plan development rules, the proposed rule did not include any analysis of its environmental impact and did not specifically solicit comments on this matter. The USDA did, however, state that it would complete an "environmental review" at some point before the adoption of a final rule. 64 Fed. Reg. at 54,094. It claims that it complied with this promise, preparing an Environmental Assessment ("EA") and Finding of No Significant Impact ("FONSI") dated July 21, 2000 (over five months after the close of the comment period for the proposed rule), although these documents were never published in the Federal Register. (They were, however, apparently available on the Forest Service's website.) The USDA never completed any "biological assessment" of the rule's impact on endangered species under the Endangered Species Act ("ESA"); nor did it engage in formal consultation with the Secretaries of the Interior or Commerce.3

The final version of the 2000 Plan Development Rule was published on November 9, 2000. National Forest System Land and Resource Management Planning, 65 Fed.Reg. 67,514 (Forest Serv., Dep't of Agric. Nov. 9.2000). The published version was not accompanied by any environmental or endangered-species analysis, although it did note the existence of the EA and FONSI, thus the USDA did not entertain comments regarding the rule's environmental impact. Id. at 67,567.

This Rule substantially modified the 1982 Rule in a number of ways. First, it relaxed the species "viability" requirement by providing that "[p]lan decisions affecting species diversity must provide for ecological conditions that ... provide a high likelihood that those conditions are capable of...

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