Coalition for Sustainable Res. v. U.S. Forest Serv

• Decision Date: 13 May 1999
• Docket Number: No. 98-CV-174-B.,98-CV-174-B.
• Citation: 48 F.Supp.2d 1303
• Parties: COALITION FOR SUSTAINABLE RESOURCES, INC., a Colorado corporation, Plaintiff, v. UNITED STATES FOREST SERVICE, et al., Defendants, Biodiversity Associates, et al., Intervenor-Defendants.
• Court: U.S. District Court — District of Wyoming

48 F.Supp.2d 1303

COALITION FOR SUSTAINABLE RESOURCES, INC., a Colorado corporation, Plaintiff, v. UNITED STATES FOREST SERVICE, et al., Defendants, Biodiversity Associates, et al., Intervenor-Defendants.

No. 98-CV-174-B.

United States District Court, D. Wyoming.

May 13, 1999.

COPYRIGHT MATERIAL OMITTED

William Perry Pendley, Mountain States Legal Foundation, Denver, CO, James Witwer, Trout & Raley, P.C., Denver, CO, for plaintiff.

Jane P. Davenport, Edward A. Boling, Department of Justice, Washington, DC, for defendants.

Michael R. Hope, Patton Boggs, L.L.P., Denver, CO, Mark S. Squillace, University of Wyoming, College of Law, Laramie, WY, for intervener-defendants.

ORDER GRANTING FEDERAL DEFENDANTS' MOTION TO DISMISS AND GRANTING INTERVENER'S MOTION TO DISMISS

BRIMMER, District Judge.

This case arises from the alleged improper forest management techniques used by the United States Forest Service in the Medicine Bow National Forest and the alleged injury to endangered species caused by such techniques. The United States Forest Service has brought a motion to dismiss, arguing that the plaintiff lacks standing and otherwise fails to state a claim upon which relief can be granted. Additionally, the Interveners have brought a motion to dismiss, arguing that this case is not ripe for judicial resolution. For the reasons that follow, the Court ORDERS that both motions are GRANTED, and that all further proceedings are hereby VACATED.

Factual Background

This suit has been brought by the Coalition for Sustainable Resources ("CSR"). CSR is a non-profit corporation organized for the purpose of encouraging the prompt recovery of species designated under the Endangered Species Act ("ESA") by using sound techniques in a manner that avoids unnecessary interference with private property rights. (Compl.¶ 5.) CSR's members include ranchers, farmers, and other water users in Wyoming and Colorado whose water-use practices are subject to restriction under the ESA. (Compl.¶ 8.)

Defendant United States Forest Service ("USFS") is responsible for the oversight, management, and care of the National Forest System, including the Medicine Bow National Forest in Wyoming. (Compl.¶ 10.) CSR has also named various officers and employees of the United States government as defendants in their official capacities for their roles and responsibilities in managing the Medicine Bow. (Compl.¶¶ 11-15.)

The Intervenor-Defendants (the "Biodiversity Parties") have fought to protect the natural environment of the Medicine Bow. In particular, their efforts include challenging past attempts by various parties to allow clear-cutting portions of the Medicine Bow.

CSR claims to be interested in the recovery of the following endangered species: The Whooping Crane, the Least Tern, the Piping Plover, and the Pallid Sturgeon. (Compl.¶¶ 16-19.) These endangered species have habitats along the Platte River in Nebraska. (Compl.¶¶ 16-19.) CSR alleges that increased river flow in the central Platte River is necessary to protect the listed species. (Compl.¶ 20.)

The Fish and Wildlife Service ("FWS") estimates that at least 238,000 more acre-feet of water will need to be delivered annually, in addition to current flows, to meet the target flows established for the listed species. (Compl.¶ 21, Ex. 1.) Final Biological Opinions issued by FWS conclude that the continuation of evaporation and other water depletions of as little as .7 acre-feet per year from the Platte River tributary streams would jeopardize the continued existence of the listed species. (Compl.¶ 22.)

National Forests were established for the purposes, among other things, of securing favorable conditions of water flows and furnishing a continuous supply of timber. (Compl.¶ 26.) The Medicine Bow, Routt, Roosevelt, and other nearby National Forests include lands that are within the watershed of the Platte River. (Compl.¶ 29.) Forest Plans guide all natural resource activities and establish management standards and guidelines for the National Forest System. (Compl.¶ 32.)

According to the original Forest Plan for the nearby Arapaho and Roosevelt National Forests in northern Colorado, the annual water yields from those Forests can be increased depending on the extent and location of the vegetation treatment and/or snow management activities, and the constraints of water quality management standards. (Compl.¶ 33.) A maximum increase of 240,000 acre-feet per year, for a total of 2.21 million acre-feet per year, could be provided in those Forests without degrading water quality. (Compl.¶ 33.) CSR alleges that a substantial portion of the 240,000 acre-feet potential would accrue to the Platte River drainage. (Compl.¶ 34.)

Similarly, the original Forest Plan for the adjacent Routt National Forest could have been increased 103,000 acre-feet by 1991. (Compl.¶ 35.) A substantial portion of this increase in water yield would accrue to the Platte River drainage. (Compl.¶ 36.)

In the environmental analysis which produced the Forest Plan for the Medicine Bow, USFS developed a benchmark for maximum water yield production by assigning various management prescriptions to lands within the Forest. (Compl.¶ 37.) This analysis further limited the maximum water yield benchmark. (Compl.¶ 37.) Consistent with this analysis, the maximum water yield for the Medicine Bow showed a potential increase ranging from approximately 41,000 to 53,500 acre-feet. (Compl.¶ 38.) A substantial portion of this potential increased yield would accrue to the Platte River drainage. (Compl.¶ 39.)

In a recent study (the "Coon Creek Study") completed pursuant to the Medicine Bow Forest Plan, USFS harvested 24 percent of a 4133 acre catchment and concluded that such vegetation management techniques significantly increased water flows during the months when FWS believed the listed species suffer from insufficient water. (Compl.¶ 40.) Because substantial portions of the aforementioned forests lie within the Platte River Basin, a substantial portion of the total water yield increase could be produced annually (from vegetation and snow management techniques) to the Platte River and its tributaries. (Compl.¶ 42.) Thus, the implementation of vegetation and snow management programs on National Forest Lands within the Platte River drainage can produce most or all of the 238,000 acre-feet of the additional water that FWS asserts is necessary for the recovery of the listed species. (Compl.¶ 44.)

CSR asserts that the activities explained above have not occurred and USFS has continued to manage these National Forests in a manner that will continue to increase forest density. (Compl.¶ 45.) Research by USFS shows that dense, uniform forests yield less water than diverse forests with openings. (Compl.¶ 47.)

Furthermore, since the creation of the Medicine Bow, USFS fire suppression, pest control, and other vegetation management techniques have decreased the amount of water produced from that forest. (Compl.¶ 48.)

Timber harvest is a proven technique that can increase water yield, and from 1986-1995 the total timber sale was only 58 percent of the allowable sale quantity ("ASQ") prescribed in the Medicine Bow Forest Plan. (Compl.¶ 50.) The 1997 Annual Report indicates that the trend of not meeting the ASQ has persisted through 1996 and 1997. (Compl.¶ 51.) Further, one or more of the federal defendants has announced that USFS intends to dramatically decrease the ASQ. (Compl.¶ 52.)

Based on these allegations, CSR has filed a three Count Complaint. The first two counts have been brought via the "citizen-suit" provision, and under 16 U.S.C. § 1536(a)(1) of the ESA. In its first Count, CSR alleges that Defendants have failed to manage the Medicine Bow to maximize water available to listed species under the ESA. CSR alleges that the defendants have not used "all methods and procedures" necessary to bring the listed species to the point at which measures provided by the ESA are not necessary. (Compl.¶¶ 56, 57.) CSR further alleges that Defendants have violated and continue to violate the ESA by not implementing snow and vegetation techniques to increase water flow to the Platte River Basin. (Compl.¶ 60.)

CSR's second Count alleges that the defendants have managed the Medicine Bow forest vegetation to the detriment of the listed species under the ESA. Here CSR alleges that past and present USFS forest vegetation management will continue to exacerbate water shortages to listed species and that the defendants have a duty to prevent an increase in forest density to pre-National Forest levels. These actions have allegedly continued to decrease the quantity of water produced by the Medicine Bow.

CSR's third Count alleges that the defendants have violated the requirements of the Forest and Rangeland Renewable Resources Planning Act ("FRRRPA," also known as the National Forest Management Act), 16 U.S.C. § 1600 et seq., by failing to implement snow and vegetation management programs (as described in the environmental analysis, Forest Plan and Coon Creek Report) to maximize water flows from the Medicine Bow to the benefit of listed species. Further, the defendants have allegedly continued to violate FRRRPA by failing to comply with the Forest Plan prohibition against an increase in forest density above historic and pre-National Forest levels.

CSR seeks the following relief regarding the Medicine Bow: (1) that this Court adjudge and declare that the defendants are violating the ESA by not implementing proper snow and vegetation management programs, as described in the Forest Plan, its environmental analysis, and the Coon Creek Report, that maximize water flow to the listed species in Nebraska; (2) that this Court adjudge and declare that the defendants are violating the ESA by failing to prevent an increase in forest density above pre-National Forest and historic levels; (3) that this Court adjudge and declare that the defendants are violating FRRRPA in...