Forest Guardians v. Forsgren

• Decision Date: 23 February 2007
• Docket Number: No. 05-2181.,05-2181.
• Citation: 478 F.3d 1149
• Parties: FOREST GUARDIANS, a nonprofit corporation; Sinapu, a nonprofit corporation; Center for Native Ecosystems, a nonprofit corporation; Animal Protection of New Mexico, a nonprofit corporation; Animal Protection Institute, a nonprofit corporation; and Carson Forest Watch, a nonprofit corporation, Plaintiffs-Appellants, v. Harv FORSGREN, Regional Forester, U.S. Forest Service Region 3; United States Forest Service, a Federal Agency; Ann M. Veneman, Secretary of the United States Department of Agriculture; United States Department of Agriculture, a Federal Department; Gale Norton, Secretary of United States Department of Interior; United States Department of the Interior, a Federal Department; Steven Williams, Director, United States Fish and Wildlife Service; United States Fish and Wildlife Service, a Federal Agency; H. Dale Hall, Director, United States Fish and Wildlife Service, Region 2, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

478 F.3d 1149

FOREST GUARDIANS, a nonprofit corporation; Sinapu, a nonprofit corporation; Center for Native Ecosystems, a nonprofit corporation; Animal Protection of New Mexico, a nonprofit corporation; Animal Protection Institute, a nonprofit corporation; and Carson Forest Watch, a nonprofit corporation, Plaintiffs-Appellants,

v. Harv FORSGREN, Regional Forester, U.S. Forest Service Region 3; United States Forest Service, a Federal Agency; Ann M. Veneman, Secretary of the United States Department of Agriculture; United States Department of Agriculture, a Federal Department; Gale Norton, Secretary of United States Department of Interior; United States Department of the Interior, a Federal Department; Steven Williams, Director, United States Fish and Wildlife Service; United States Fish and Wildlife Service, a Federal Agency; H. Dale Hall, Director, United States Fish and Wildlife Service, Region 2, Defendants-Appellees.

No. 05-2181.

United States Court of Appeals, Tenth Circuit.

February 23, 2007.

Matthew K. Bishop, Western Environmental Law Center, Taos, NM, for Plaintiffs-Appellants.

Mark R. Haag, Attorney (Kelly A. Johnson, Assistant Attorney General; James C. Kilbourne, Attorney) Environmental & Natural Resources Division, Department of Justice, Washington, D.C., for Defendants-Appellees.

Before MURPHY, BALDOCK, and McCONNELL, Circuit Judges.

BALDOCK, Circuit Judge.

The United States Fish and Wildlife Service (FWS) has listed a "distinct population segment" (DPS) of Canada Lynx as "threatened" under the Endangered Species Act (ESA), 16 U.S.C. §§ 1531-44. See Determination of Threatened Status for the Contiguous U.S. Distinct Population Segment of the Canada Lynx and Related Rule, 65 Fed.Reg. 16052 (March 24, 2000) (Final Rule), clarified by Notice of Remanded Determination of Status for the Contiguous U.S. Distinct Population Segment of the Canada Lynx, 68 Fed.Reg. 40076 (July 3, 2003) (Rule Clarification). Forest Guardians and other environmental nonprofit groups (collectively Forest Guardians) seek to compel the United States Forest Service pursuant to § 7(a)(2) of the ESA to consult with FWS on the question of whether the Land and Resource Management Plans (LRMPs) for the Carson and Santa Fe National Forests may jeopardize the continued existence of the lynx. See 16 U.S.C. §§ 1536(a)(2).¹ We hold Forest Guardians' allegation of "agency action" in the amended complaint insufficient to sustain its claim against the Forest Service under § 7(a)(2) of the ESA.

I.

Congress enacted the ESA to provide for the "conservation, protection and propagation" of wildlife facing extinction. S.Rep. No. 93-307, at 1, reprinted in 1973 U.S.C.C.A.N. 2989; see also 16 U.S.C. § 1531(b). The ESA authorizes FWS to designate a DPS of a species as "endangered" or "threatened." See 16 U.S.C. §§ 1532(16), 1533(a)(1). When FWS designates a DPS of a species as endangered or threatened, sister agencies assume special obligations to protect that species. See Wyoming Farm Bureau Fed'n v. Babbitt, 199 F.3d 1224, 1231 (10th Cir.2000). The principal obligation at issue in this case is encompassed within § 7(a)(2) of the ESA. That section requires an acting agency (allegedly the Forest Service) to consult with FWS to ensure the former's "action" (allegedly the LRMPs) is unlikely to jeopardize the continued existence of an endangered or threatened species:

Each federal agency shall, in consultation with and with the assistance of the [FWS], insure that any action authorized, funded, or carried out by such agency (hereinafter in this section referred to as an "agency action") is not likely to jeopardize the continued existence of any endangered species or threatened species . . . .

16 U.S.C. § 1536(a)(2) (emphasis added).² The applicable FWS regulation, in turn defines "action" as "all activities or programs of any kind authorized, funded, or carried out, in whole or in part, by Federal agencies in the United States . . . ." 50 C.F.R. § 402.02 (emphasis added).

The district court dismissed Forest Guardians' amended complaint in its entirety. Relevant to our task, the court dismissed Forest Guardians' ESA claim against the Forest Service pursuant to Fed.R.Civ.P. 12(b)(6).³ According to the court, the DPS listing for the Canada Lynx is limited to a fourteen State area that does not encompass the Carson and Santa Fe National Forests, both of which are located entirely within the State of New Mexico. Because FWS has not listed the lynx as threatened in New Mexico, the district court concluded the ESA does not require the Forest Service to consult with FWS.⁴

Our jurisdiction to review the district court's dismissal of Forest Guardians' ESA claim arises under 28 U.S.C. § 1291. Our review is de novo. See Moya v. Schollenbarger, 465 F.3d 444, 454 (10th Cir.2006). We accept the factual allegations of the amended complaint as true but owe no such allegiance to its legal conclusions. See Jordan v. Alternative Res. Corp., 458 F.3d 332, 338 (4th Cir.2006). Because we conclude Forest Guardians has not adequately alleged the agency action necessary to trigger the Forest Service's duty to consult with FWS under § 7(a)(2) of the ESA, we need not reach the question of whether the DPS listing of Canada Lynx would otherwise require the Forest Service to consult with FWS on the Carson and Santa Fe National Forest Plans. See Champagne Metals v. Ken-Mac Metals, Inc., 458 F.3d 1073, 1088 (10th Cir.2006) (court of appeals may affirm on any ground supported by the record, provided the parties have had an opportunity to address such ground).

II.

We begin with the relevant allegation of Forest Guardians' amended complaint. Paragraph 11 states: "Implementation of the Carson and Santa Fe National Forest LRMPs are `agency actions' that `may affect' listed lynx and, as such, the Federal-Defendants must undergo formal § 7 consultation to insure that such actions are not jeopardizing the continued existence of lynx." According to the Forest Service, "the Carson and Santa Fe Forest Plans do not constitute ongoing `agency action' for purposes of § 7(a)(2)." To support its position, the Forest Service relies on the Supreme Court's recent decision in Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55, 124 S.Ct. 2373, 159 L.Ed.2d 137 (2004). In Norton, the Court concluded that while approval of a land use plan promulgated by the Bureau of Land Management (BLM) constituted "major Federal action" under the National Environmental Policy Act (NEPA), such action was complete once BLM approved the plan. Id. at 73, 124 S.Ct. 2373. The Court rejected the notion that the plan itself constituted "ongoing `major Federal action.'" Id. Forest Guardians points out, however, that this case arises under the ESA, not NEPA, and that "action" under § 7 of the ESA is "broadly defined." To support its allegation of agency action, Forest Guardians relies principally on the Ninth Circuit's decision in Pacific Rivers Council v. Thomas, 30 F.3d 1050 (9th Cir.1994). In Pacific Rivers, the court held "LRMPs constitute continuing agency action requiring consultation under § 7(a)(2) of the ESA." Id. at 1051-52. Before turning to an analysis of these competing arguments, a brief overview of LRMPs is appropriate to add focus to the narrow issue before us, that is, the sufficiency of Forest Guardians' allegation that "[i]mplementation of the Carson and Santa Fe National Forest LRMPs are `agency actions'" within the meaning of § 7(a)(2).

A.

The National Forest Management Act (NFMA), 16 U.S.C. §§ 1600-1614, directs the Forest Service to develop a LRMP for each unit of the National Forest System. See id. § 1604(a). Regulations contained in Subpart A of 36 C.F.R. Pt. 219 set forth the process for developing, amending and revising LRMPs. LRMPs are "embodied in appropriate written material[.]" 16 U.S.C. § 1604(f)(2). LRMPs reflect, among other things "proposed and possible actions[.]" Id.⁵ Consistent with the NFMA, the applicable Forest Service regulation defines a "plan" as "[a] document or set of documents that integrates and displays information relevant to management of a unit of the National Forest System." 36 C.F.R. § 219.16. LRMPs developed pursuant to the NFMA and Subpart A of the regulations—

generally contain desired conditions, objectives, and guidance for project and activity decisionmaking in the plan area. Plans do not grant, withhold, or modify any contract, permit or other legal instrument, subject anyone to civil or criminal liability, or create any legal rights. Plans typically do not approve or execute projects and activities. Decisions with effects that can be meaningfully evaluated typically are made when projects and activities are approved.

Id. § 219.3(b) (internal citation omitted). In short, LRMPs are "a framework for making later project decisions rather than ... a collection of project decisions." Review and Comment and Appeal Procedures for National Forest Planning and Project Decisions; Requesting Review of National Forest Plans and Project Decisions, 58 Fed.Reg. 19369, 19370 (April 14, 1993) (Plan Review).⁶

As we have oft explained, management of LRMPs occurs at two levels. The first level is "programmatic:"

At the programmatic level, the Forest Service creates general, forest wide planning goals memorialized in a forest plan. Because the Forest Service must account for a variety of different interests, each forest plan envisions the forest will be used for multiple purposes, including "outdoor recreation, range, timber, watershed, wildlife and fish, and wilderness." 16 U.S.C. § 1604(e)(1). At the same time, the forest plan provides for "diversity of plant and animal communities based on the suitability and capability of the specific land area." Id. § 1604(g)(3)(B).

Utah Envtl. Cong. v. Bosworth, 443 F.3d 732, 737 (10th Cir.2006) (emphasis added). The second level is "project:" We have repeatedly stated that "[t]he Forest Service is required to implement...