Citizens for Environmental Quality v. US

• Citation: 731 F. Supp. 970
• Decision Date: 24 August 1989
• Docket Number: Civ. A. No. 87-F-1714.
• Parties: CITIZENS FOR ENVIRONMENTAL QUALITY, Plaintiff, Colorado Environmental Coalition, Natural Resources Defense Council, the Wilderness Society, and National Audubon Society, Plaintiffs-Intervenors, v. The UNITED STATES, Richard A. Lyng, Secretary of the U.S. Department of Agriculture, F. Dale Robertson, Chief of the U.S. Forest Service and Gary E. Cargill, Regional Forester, U.S. Forest Service, Rocky Mountain Region, Defendants.
• Court: United States District Courts. 10th Circuit. United States District Court of Colorado

731 F. Supp. 970

CITIZENS FOR ENVIRONMENTAL QUALITY, Plaintiff, Colorado Environmental Coalition, Natural Resources Defense Council, the Wilderness Society, and National Audubon Society, Plaintiffs-Intervenors, v. The UNITED STATES, Richard A. Lyng, Secretary of the U.S. Department of Agriculture, F. Dale Robertson, Chief of the U.S. Forest Service and Gary E. Cargill, Regional Forester, U.S. Forest Service, Rocky Mountain Region, Defendants.

Civ. A. No. 87-F-1714.

United States District Court, D. Colorado.

August 24, 1989.

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Frances M. Green, Boulder, Colo., and Grove T. Burnett, Glorieta, N.M., for plaintiff.

Michael J. Norton, Acting U.S. Atty., J. Greg Whitehair, Asst. U.S. Atty., Denver, Colo., and Wells D. Burgess, U.S. Dept. of Justice, Land and Natural Resources Div., Gen. Litigation Section, Washington, D.C., for defendants.

Ronald J. Wilson and F. Kaid Benfield, Natural Resources Defense Council, Washington, D.C., and David C. VonGunten and Michael J. Cook, Faegre & Benson, Denver, Colo., for plaintiffs-intervenors.

ORDER AND MEMORANDUM OPINION OF LAW

SHERMAN G. FINESILVER, Chief Judge.

This case involves broad attacks by environmental groups on governmental plans for the management of a large forest in Colorado. In effect, the groups seek to nullify management plans which have been under study and development since 1981.

I. Parties

Plaintiff:

Citizens for Environmental Quality

Plaintiff-Intervenors:

Colorado Environmental Coalition

Natural Resources Defense Council

The Wilderness Society

The Audubon Society

Defendants:

The United States of America

Richard A. Lyng, Secretary of the U.S. Department of Agriculture

F. Dale Robertson, Chief of the U.S. Forest Service

Gary E. Cargill, Regional Forester, U.S. Forest Service, Rocky Mountain Region

II. Jurisdiction

This action arises under the National Forest Management Act ("NFMA") 16 U.S.C. §§ 1600-1614, and its implementing regulations, 36 C.F.R. Part 219; the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321 et seq., and its implementing regulations, 40 C.F.R. Parts 1500-1508; the Endangered Species Act ("ESA"), 16 U.S.C. § 1531 et seq.; and the Administrative Procedure Act ("APA"), 5 U.S.C. § 701 et seq.

Jurisdiction is exercised pursuant to 28 U.S.C. § 1331 (Federal Question), and 28 U.S.C. §§ 2201, and 2202 (Declaratory Judgment and Further Relief).

III. Nature of the Litigation

The parties have filed cross motions for summary judgment pursuant to Fed.R. Civ.P. 56. Plaintiff Citizens for Environmental Quality and Plaintiff-Intervenors ("Intervenors") seek judicial review of an administrative decision by Defendants to issue a comprehensive Land Resource Management Plan ("LRMP" or "the Plan") for the Rio Grande National Forest.¹ Defendants Lyng, Robertson and Cargill as officials of the United States government are responsible for the direction and supervision of operations and activities of the Forest Service, a branch of the United States Department of Agriculture, and of the Rio Grande National Forest.

The present litigation centers on the issue of whether the National Forests should be used or preserved, and reflects the need for balancing the nation's legitimate economic needs with its limited natural resources. Congress addressed this problem in 1976 by passing the National Forest Management Act which directed the Secretary to develop, maintain, and revise LRMPs for units of the National Forest System ("NFS"). The task of satisfying the nation's need for timber and other forest products while preserving forest lands for the use of future generations is a complex one. Nonetheless, the NFMA contemplates that through careful planning and management, both economic and aesthetic needs will be met.

The potential impact of the NFMA planning process on the nation poses important environmental and economic issues. Of the 191 million acres included in the National Forest System, 108.1 million acres have been developed for recreation, logging and other uses; 32.5 million are protected as official wilderness, and an additional 50.4 million acres remain roadless with 5.5 million of them recommended for classification as wilderness.

In 1985, cash receipts from NFS activities amounted to $1.1 billion dollars in revenue, $225 million of which was returned to county governments for support of schools and roads. In the same year, recreational use amounted to 225 million visitor-days with an estimated assigned monetary value of about $2.2 billion. Forest plans average about $2.5 million each to develop.²

Pursuant to NFMA mandate, the U.S. Forest Service is in the final stages of developing LRMPs for all national forests. Because of the financial value of the resources at stake and the cost of producing plans, sixty-two final plans have been the subject of formal administrative appeals within the Forest Service. These appeals have reflected an intense concern that the plans resolve resource use issues, meet requirements of the NFMA, are financially feasible, and are politically supported by the people most affected. This case is among the first requesting broad judicial review of Forest Service decisions regarding forest land management plans. Additional litigation is anticipated as more of these plans reach the implementation stage.

IV. Statutory and Regulatory Background

By enacting the National Forest Management Act as an amendment to the Forest and Rangeland Resources Planning Act ("RPA"), Congress directed the Secretary of Agriculture ("Secretary") to develop, maintain and revise LRMPs for units of the National Forest System. 16 U.S.C. § 1604(a). LRMPs must provide for the multiple use and sustained yield of the products and services obtained from the Forest in accordance with the Multiple-Use Sustained-Yield Act of 1960. ("MUSY"), 16 U.S.C. §§ 528-531. See also, 16 U.S.C. §§ 1604(b), (d), and (e).³

The general procedure, content and process requirements for forest planning are set forth in regulations promulgated in 36 C.F.R. § 219. See 16 U.S.C. § 1604(h).⁴ Under the regulations, the purpose of the LRMP is to provide for multiple use and sustained yield of goods and services from the National Forest System in a way that maximizes long term net public benefits in an environmentally sound manner. 36 C.F.R. § 219.1(a). The essential planning tool in implementing the multiple use/sustained yield mandate is a cost-benefit analysis, where both costs and benefits to which a monetary value can be assigned, and those to which no quantitative value can be assigned, are considered.⁵ 36 C.F.R. § 219.3 (Definition of "net public benefits").

Under NFMA regulations, planning begins with the formal identification of purpose and need (§ 219.12(b)), the establishment of planning criteria (§ 219.12(c)), and the collection of data. § 219.12(d). Planning then proceeds through the formulation of a range of alternative management scenarios (§ 219.12(f)), the evaluation of those alternatives (§ 219.12(h)), and the formal recommendation and adoption of an alternative as the Plan. § 219.12(i) & (j). The regulations also provide for on-going monitoring and evaluation of the Plan. § 219.12(k).

The development of the Plan is based on a set of management prescriptions, each of which sets forth a strategy for managing all of the major resources of the forest. Each management prescription provides for various levels of goods and services and addresses issues and concerns raised in the public participation process. Each of the alternative management scenarios considered represents a different set of management prescriptions applied to different areas and resources of the forest to produce an array of outputs, goods, and services.

The LRMP defines the "management direction" for the forest. 36 C.F.R. §§ 219.1(b), 219.3. It constitutes a program for all natural resource management activities and establishes management requirements to be employed in implementing the plan. It identifies the resource management practices, the projected levels of production of goods and services, and the location where various types of resource management may occur. Implementation of the LRMP is achieved through individual site-specific projects, and all projects must be consistent with the LRMP. 16 U.S.C. § 1604(i); 36 C.F.R. § 219.10(e). LRMPs must be prepared in compliance with NEPA, (16 U.S.C. § 1604(g)(1)), and the regulations contemplate the preparation of an appropriate Environmental Impact Statement ("EIS") in compliance with NEPA together with LRMPs as part of an integrated process. 36 C.F.R. § 219.12.

The decisions of the Regional Forester in approving a LRMP may be categorized as:

1. Establishment of forest-wide multiple-use goals and objectives (36 C.F.R. § 219.11(b));

2. Establishment of forest-wide management requirements (standards and guidelines) to fulfill the requirements of the NFMA relating to future activities (resource integration requirements of 36 C.F.R. §§ 219.13 to 219.27);

3. Establishment of management area direction (management area prescriptions) applying to future management activities in that management area (36 C.F.R. § 219.11);

4. Designation of land suitable for timber production and the establishment of allowable timber sale quality (36 C.F.R. §§ 219.14 and 219.16);

5. Nonwilderness multiple-use allocations for those roadless areas that were reviewed under 36 C.F.R. § 219.17 and not recommended for wilderness designation 6. Monitoring and evaluation requirements (36 C.F.R. § 219.11(d)).

Of primary concern in this case is the designation of land suitable for timber production.

Section 219.14 sets forth a series of criteria for making the identification of lands suitable for timber production, together known as Stage 1. Under Stage 1, land is considered unsuitable for timber production if: (1) it currently and historically has less...