Donohoe v. U.S. Forest Serv.
| Decision Date | 29 March 2022 |
| Docket Number | CV20-137-BLG-SPW |
| Parties | PAUL AND CATHY DONOHOE; TORIAN DONOHOE; KYLE AND ANNA DONOHOE; DAVID AND KAYCE ARTHUN, AND CASTLE CREEK RANCH L.P., Plaintiffs, v. U.S. FOREST SERVICE, FOREST SUPERVISOR MARY ERICKSON, DISTRICT RANGER KEN COFFIN, Defendants. |
| Court | U.S. District Court — District of Montana |
Before the Court is Plaintiffs Paul and Cathy Donohoe, et al Motion on October 15, 2021. (Doc. 29). Defendants filed a reply on November 5, 2021. (Doc. 30). Both Motions are deemed ripe and ready for adjudication.
In 2002, the USFS rebuilt the Initial Creek Campground in the Beartooth District in south central Montana near Red Lodge. This project included an expansion of the stock parking lot for the campground.
In 2004, because trailer parking was limited at the nearby West Fork Stillwater trailhead, the USFS established the Initial Creek Campground as a stock trailhead. The only access between the campground and the West Fork Stillwater trailhead, at the time, was via Initial Creek Road necessitating those on horse-back to use the same roadway as motor vehicles.
In 2007, the USFS began exploring the viability of a project to create non-motorized trail access from the campground to the trailhead ("Bridge Project"). The proposed trail consisted of approximately 1 mile of an abandoned trail/road system known as the Bryant Road and trail. The Bryant Road had been abandoned for 80 years and considerable amounts of downfall and other vegetation had overtaken the path. To complete the proposed trail, the USFS needed to remove downfall and brush along 3, 200 feet of the old road and 1 800 feet of the old trail. The USFS also proposed constructing a bridge across the West Fork Stillwater River as well as approximately 300 feet of new trail to complete the trail.
In 2014, the USFS secured a right-of-way on the land needed to construct the proposed trail. The USFS approved the Bridge Project via a Decision Memo on March 6, 2015. The trail portion of the Bridge project was completed between 2016 and 2017. The bridge itself was constructed in the summer of 2019.
In 2017, the USFS also began exploring the possibility of utilizing more of the Bryant Road and trail to connect the Initial Creek Campground to the Castle Creek Trailhead ("Trail Project"). The Castle Creek Trailhead is accessed via a different roadway than the Initial Creek Campground and the Castle Creek Trailhead contains a large parking lot. The USFS investigated the section of the Bryant Road between the campground and trailhead and concluded that, although the access-way had been abandoned for so long, the roadway was in good condition. The proposed Trail Project would consist of 1.5 miles of the existing Bryant roadway and 0.5 miles of new trail constructed on USFS land to circumvent private property. The USFS approved the Trail Project via Decision Memo on April 15, 2019.
On September 16, 2020, Plaintiffs filed the present lawsuit arguing that the USFS violated the National Environmental Policy Act ("NEPA"), the Endangered Species Act ("ESA"), and the National Forest Management Act ("NFMA") in approving the Bridge Project and the Trail Project.
Judicial review of administrative decisions is governed by the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701-706. 5 U.S.C. § 706(2)(A); Pyramid Lake Paiute Tribe of Indians v. U.S. Dep 't of Navy, 898 F.2d 1410, 1414 (9th Cir. 1990). In reviewing an agency action under the APA, the Court must determine whether the agency's action was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law." 5 U.S.C. § 706(2)(A). "Normally, an agency rule would be arbitrary and capricious if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise." Motor Vehicle Mfrs. Ass 'n v. State Farm Mutual Auto Ins. Co., 463 U.S. 29, 43 (1983). "An agency acts contrary to the law when it fails to abide by and implement the direction and intent of Congress or when it acts contrary to its own rules and requirements." Upper Missouri Waterkeeper v. United States Envtl. Prot Agency, 377 F.Supp.3d 1156, 1162 (D. Mont. 2019). Review under this standard is narrow, and the reviewing court may not substitute its judgment for that of the agency. Kern Cty. Farm Bureau v. Allen, 450 F.3d 1072, 1076 (9th Cir. 2006).
Two motions are currently before the Court. Plaintiffs filed a motion for summary judgment asserting that (1) the USFS violated NEPA by improperly segmenting the Bridge Project from the Trail Project and by failing to properly scope the Projects; (2) the USFS violated NFMA by failing to follow the Custer National Forest and National Grasslands Land and Resources Management Plan ("Forest Plan") in approving the Trail Project; and (3) the USFS violated the ESA by failing to properly consider the effects the Projects would have on the endangered grizzly bear population in the area. Defendants filed a cross-motion for summary judgment arguing that Plaintiffs have no standing to challenge the Bridge Project and that Defendants complied with NEPA, NFMA, and the ESA in approving the Trail Project. The Court shall address each argument below.
Defendants challenge Plaintiffs' standing regarding the Bridge Project, arguing that Plaintiffs have demonstrated no injury-in-fact related to the Bridge Project and cannot seek redress for the Project as it was completed several months before Plaintiffs filed their Complaint. Plaintiffs respond that they have suffered injury-in-fact due to their geographic nexus to the Bridge Project. Further, because Plaintiffs have shown a procedural injury, Plaintiffs assert that the required redressability element of standing is satisfied here "by showing that had the Forest Service complied with NEPA's requirements they could have a [sic] had a meaningful say in the process." (Doc. 29 at 13-14).
"Article III standing requires that a 'plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.'" California v. Bernhardt, 460 F.Supp.3d 875, 884 (N.D. Cal. May 18, 2020) (quoting Spokeo, Inc. v. Robins, 136 S.Ct. 1540, 1547 (2016)). A plaintiff must establish an injury in fact by demonstrating that they suffered "an invasion of a legally protected interest that is concrete and particularized and actual or imminent, not conjectural or hypothetical." (Id.) (internal quotations removed). To sufficiently allege a procedural injury, the plaintiff must demonstrate that "the procedures in question are designed to protect some threatened concrete interest of his that is the ultimate basis of his standing." Western Watersheds Project v. Kraayenbrink, 632 F.3d 472, 485 (9th Cir. 2011). If a plaintiff sufficiently establishes a procedural injury, the causation and redressability elements are relaxed. California v. Azar, 911 F.3d 558, 573 (9th Cir. 2018). The party invoking federal jurisdiction bears the burden of establishing each element of standing. California v. Bernhardt, 460 F.Supp.3d at 884.
Here, Plaintiffs allege that their concrete injury stems from the USFS's failure to properly scope the Bridge Project and notify Plaintiffs of the USFS's intended action near their property. Plaintiffs further contend that new trail construction "will destroy the pristine nature of the area," "carries infestations of noxious weeds," and otherwise produces harmful effects on Plaintiffs' enjoyment of the area that Plaintiffs would have opposed had they received proper notice. (Doc. 29 at 13).
The Court finds these allegations sufficient to establish Plaintiffs' procedural injury in fact. NEPA regulations require the agency to make diligent efforts to notify and include public participation on proposed actions, especially those persons who may be affected by the proposed action. 40 C.F.R. § 1506.6(a)-(b) (2020). Agencies accomplish this goal through scoping, by holding scoping meetings, publishing scoping information, or using "other means to communicate with those persons or agencies who may be interested or affected ...." 40 C.F.R. § 1501.9(c) (2020). Thus, the scoping process was designed to protect a concrete interest of an affected party. By allegedly failing to properly scope the Bridge Project, the USFS violated a concrete interest of the Plaintiffs due to their geographic nexus to the Project. See Pub. Citizen v. Dep 't of Tramp., 316 F.3d 1002, 1015 (9th Cir. 2003) rev 'd on other grounds ( that a party's geographic nexus to the location suffering an environmental impact satisfies the concrete interest test in a procedural injury claim).
However Plaintiffs have failed to demonstrate how that procedural injury is redressable by an order from this Court. The entire Bridge Project was completed in the summer of 2019. Plaintiffs did not file their lawsuit until September 16, 2020. Defendants argue this precludes the Court...
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