Forest Guardians v. U.S. Forest Service

• Decision Date: 27 May 2003
• Docket Number: No. 01-15066.,01-15066.
• Citation: 329 F.3d 1089
• Parties: FOREST GUARDIANS, a nonprofit corporation; White Mountain Conservation League, Plaintiffs-Appellants, v. UNITED STATES FOREST SERVICE; Ann M. Veneman, in her capacity as Secretary of Agriculture of the United States,<SMALL><SUP>*</SUP></SMALL> Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

329 F.3d 1089

FOREST GUARDIANS, a nonprofit corporation; White Mountain Conservation League, Plaintiffs-Appellants, v. UNITED STATES FOREST SERVICE; Ann M. Veneman, in her capacity as Secretary of Agriculture of the United States,^* Defendants-Appellees.

No. 01-15066.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 14, 2002.

Filed May 27, 2003.

COPYRIGHT MATERIAL OMITTED

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James S. Angell and Marie A. Kirk, Earthjustice Legal Defense Fund, Denver, Colorado, for the plaintiffs-appellants.

Katherine W. Hazard, Department of Justice, Washington, D.C., for the defendants-appellees.

Appeal from the United States District Court for the District of Arizona; Owen M. Panner, Senior Judge, Presiding. D.C. No. CV-99-01145-OMP.

Before: WALLACE, KOZINSKI and PAEZ, Circuit Judges.

Opinion by Judge WALLACE.

Opinion concurring in part and dissenting in part by Judge PAEZ.

OPINION

WALLACE, Senior Circuit Judge:

Forest Guardians and the White Mountain Conservation League (collectively, Forest Guardians) appeal from a summary judgment in favor of the United States Forest Service (Service) regarding the Service's adoption of certain measures relating to cattle grazing on land in the Apache-Sitgreaves National Forest. The district court had jurisdiction over the claims pursuant to 28 U.S.C. § 1331 and 16 U.S.C. § 1540(g). We have jurisdiction over Forest Guardians' timely appeal pursuant to 28 U.S.C. § 1291. After the briefs were filed, but before argument was heard, the Service filed a motion notifying the court that intervening events rendered moot some of Forest Guardians' claims. After oral argument, Forest Guardians filed its response to the mootness motion. We dismiss in part and affirm in part.

I.

The Service is currently responsible for managing the 191 million acres of land in the National Forest System. The Apache-Sitgreaves National Forest is managed by the Southwest Region of the Service and is located in the central eastern portion of Arizona that is bordered by New Mexico.

The Service administers the National Forest System, including the Apache-Sitgreaves National Forest, under the Forest and Rangeland Renewable Resources Planning Act of 1974, as amended by the National Forest Management Act of 1976, 16 U.S.C. § 1600 et seq. (NFMA), and the Multiple-Use Sustained-Yield Act of 1960, 16 U.S.C. §§ 528-531 (MUSYA). The Service also promulgates its own regulations regarding forest management in the Code of Federal Regulations.

The Service makes forest management decisions by developing a Land and Resource Management Plan (Forest Plan) for each unit of the National Forest System. The Service then implements the Forest Plan by approving or disapproving site-specific actions. The NFMA and service regulations require that proposed actions be consistent with the Forest Plan. 16 U.S.C. § 1604(I).

In developing a Forest Plan, the Service is required to "provide for multiple use and sustained yield of the products and services obtained therefrom in accordance with [the MUSYA] and, in particular, include coordination of outdoor recreation, range, timber, watershed, wildlife and fish, and wilderness...." 16 U.S.C. § 1604(e)(1). The NFMA also requires the Service to consider the "economic and environmental aspects of various systems of renewable resource management." 16 U.S.C. § 1604(g)(3)(A). In addition, a Forest Plan must comply with the National Environmental Policy Act of 1960 (NEPA), which requires the Service to prepare an environmental impact statement for every "major Federal action[] significantly affecting the quality of the human environment." 42 U.S.C. § 4332(c). Service actions must also comply with the Endangered Species Act (ESA), which requires consultation with the Fish and Wildlife Service to ensure that any action by the Service "is not likely to jeopardize the continued existence of any [listed] species or result in the destruction or adverse modification" of a designated critical habitat. 16 U.S.C. § 1536(a)(2).

The Service issued a Forest Plan for the Apache-Sitgreaves National Forest in 1987, and amended the Plan in 1989, 1990, 1991, 1992, and 1996. The Forest Plan, in accordance with MUSYA, provided for grazing of livestock on certain portions (allotments) of forest land. In 1996, the Service began to develop Allotment Management Plans (AMPs) for six grazing allotments in the forest. The "Red Hill" and "Grandfather" allotments (hereinafter, Red Hill) were evaluated together in one administrative process, while the Cow Flat, Foote Creek, PS and Stone Creek allotments (hereinafter, Cow Flat) were evaluated together in another. The purpose of the two AMPs was to determine whether livestock grazing should be authorized, and if so, what the appropriate management strategy would be. As then-current grazing capacity estimates indicated overstocking and overutilization of vegetation on the rangelands by both the livestock and wild ungulates (i.e., hoofed animals such as deer, big horn sheep and elk), the Service concluded that the grazing permits had to be revised to comply with the Forest Plan and the applicable environmental laws.

After considering its options, the Service canceled existing permits on the Red Hill and Cow Flat allotments and issued new permits. In these new permits, the Service provided for a gradual three-year reduction of the number of cattle allowed to graze, allocated 100% of the available forage (i.e., forage that can be consumed or trampled by any ungulate, wild or domesticated, without damage to the environment) to the cattle — and, therefore, not to the wild ungulates known to inhabit the allotments — and reserved the power to issue temporary permits to increase the number of grazing cattle to experiment with management strategy for the allotments.

Forest Guardians sued, alleging that the phased-in reduction, the allocation of all available forage to cattle, and the reserved power to experiment with range management through temporary permits all violate the consistency provision of the NFMA, because the Forest Plan requires balancing grazing capacity with use and environmental concerns. The Service, Forest Guardians alleges, failed to consider, as it must, the needs of the wild ungulates known to subsist on the allotments. It further alleges that the Service's actions violated a 1999 Biological Opinion (BO) in which the Fish and Wildlife Service determined that unless cattle grazing was significantly reduced and harmonized with use by wild ungulates, the resulting overuse would result in a "take" of the loach minnow and the Mexican spotted owl in violation of sections 7 and 9 of the ESA. A "take" occurs when a species listed by the Fish and Wildlife Service as "endangered" is killed, or its habitat is so threatened that members of the species will die, in violation of the terms of the Fish and Wildlife Service's consultation with the offending agency.

On appeal, Forest Guardians challenges the district court's summary judgment in favor of the Service on these claims. It also challenges the district court's refusal to admit monitoring evidence gathered in 2000 that demonstrates overgrazing on the Red Hill and Cow Flat allotments, arguing that its claims under the ESA are not limited to administrative record review.

II.

Before addressing the merits of Forest Guardians' claims, we must consider whether some of those claims are now moot. The Service argues (A) that the validity of the phased-in reduction scheme is moot because the three-year period for both allotment groups (Red Hill and Cow Flat) ended on or before March 1, 2002; (B) that the validity of the temporary permit power was mooted by the Service's issuance of a Decision Notice indicating its intent to use its temporary permit power only in accordance with the Service's Manual (mirroring the regulation at 36 C.F.R. § 222.3(c)(2)(I)); and (C) that all of Forest Guardians' ESA sections 7 and 9 claims with respect to the loach minnow and the Mexican spotted owl are moot because they are based on a 1999 BO that has been superseded, or in the alternative, that the section 7 claim is moot because the Service has already reconsulted with the Fish and Wildlife Service, or that Forest Guardians failed to give adequate notice of the sections 7 and 9 claims to the agency in its intent to sue letter. We consider each argument in turn.

A.

The Service first asserts that the phased-in reduction scheme is moot because the three-year period has ended. "Our cases, however, make clear that completion of activity is not the hallmark of mootness. Rather, a case is moot only where no effective relief for the alleged violation can be given." Neighbors of Cuddy Mountain v. Alexander, 303 F.3d 1059, 1065 (9th Cir.2002). A controversy remains live so long as effective relief is still available. Id. at 1066; Cantrell v. City of Long Beach, 241 F.3d 674, 678-79 (9th Cir.2001) (challenge to plan to develop naval station was not mooted by destruction of buildings on the site because "the defendants could consider alternatives to the current reuse plan, and develop ways to mitigate the damage to the birds' habitat"); Northwest Envtl. Def. Ctr. v. Gordon, 849 F.2d 1241, 1245 (9th Cir.1988) (challenge to regulations governing 1986 salmon fishing season was not mooted by the close of the season because the damage could be mitigated "by allowing more fish to spawn in 1989"). If we conclude that the Service's phased-in reduction scheme violates the NFMA, the district court could order the Service to develop tactics to mitigate the damage caused by the violation, such as moving or removing livestock from the allotments so the land can repair itself. Thus, Forest Guardians' claim with respect to the phased-in reduction scheme remains live.

B.

We now discuss the temporary permit power issue. Forest Guardians complained in its opening brief that the Service's Decision Notice indicated that the...