Forest Serv. Emps. for Envtl. Ethics v. U.S. Forest Serv.

• Decision Date: 18 September 2018
• Docket Number: CASE NO. C17-5747-RBL
• Citation: 341 F.Supp.3d 1217
• Court: U.S. District Court — Western District of Washington
• Parties: FOREST SERVICE EMPLOYEES FOR ENVIRONMENTAL ETHICS, Plaintiff, v. UNITED STATES FOREST SERVICE, Defendant.

341 F.Supp.3d 1217

FOREST SERVICE EMPLOYEES FOR ENVIRONMENTAL ETHICS, Plaintiff,

v.UNITED STATES FOREST SERVICE, Defendant.

CASE NO. C17-5747-RBL

United States District Court, W.D. Washington, at Tacoma.

Signed September 18, 2018

Richard Adam Smith, Smith & Lowney PLLC, Seattle, WA, Timothy M. Bechtold, Bechtold Law Firm, LLC, Missoula, MT, for Plaintiff.

Shawn Derek Shugert, Department of Justice, Washington, DC, for Defendant.

ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT

DKT. ## 22, 23

Ronald B. Leighton, United States District Judge

INTRODUCTION

THIS MATTER is before the Court on Plaintiff Forest Service Employees for Environmental Ethics' [Dkt. # 22] and the United States Forest Service's [Dkt. # 23] Cross Motions for Summary Judgment. This suit arose as a result of the Forest Service's decision to grant a special use permit to the United States Navy allowing the Navy to conduct electronic warfare training in the Olympic National Forest. FSEEE challenges this decision on two grounds.

First, FSEEE contends that the Forest Service lacks congressional authorization to grant permits for the purpose of military training. According to FSEEE, use of national forest land is circumscribed by the purposes set out in the Organic Administration Act of 1897 (Organic Act), the Multiple-Use Sustained-Yield Act of 1960 (MUSYA), and several narrower statutes. See 16 U.S.C.A. §§ 475, 528. Because the Navy's electronic warfare training does not fall within any of these purposes, the Forest Service lacked the power to grant the permit. In response, the Forest Service argues that section 551 of the Organic Act grants it broad regulatory power to control the uses of national forest land. See 16 U.S.C.A. § 551.

Second, FSEEE argues that the decision to grant a permit to the Navy violates the National Forest Management Act's (NFMA) requirement that all use permits comply with the agency's land management plan. See 16 U.S.C.A. § 1604. More specifically, FSEEE points to the Olympic National Forest Land and Resource Management Plan's (Forest Plan) requirements that the relevant use cannot reasonably be accommodated on private land, prioritizes the interests of the general public, and is in harmony with the surrounding landscape. The Forest Service contends that the Court must defer to the agency's interpretation of its own Forest Plan, under which the Forest Service's decision satisfies all requirements.

For the reasons set forth below, FSEEE's Motion for Summary Judgment is DENIED in part and the Forest Service's Motion is GRANTED in part. The Court reserves one issue under the NFMA, as discussed below.

BACKGROUND

In simplified terms, "electronic warfare" refers to the use of electromagnetic energy to disrupt or control access to the electromagnetic spectrum, which may be used for such purposes as navigation or communication. AR177874. To conduct training, the Navy must simulate the types of electromagnetic energy that an enemy would generate in order to practice detecting and controlling these systems. AR177875.

One way that the Navy does this is through the use of trucks hauling the necessary equipment to emit an electromagnetic signal. AR177871. These trucks are basically Ford F-350s carrying trailers with large antennae. AR177872. To conduct training, the Navy drives these trucks to pre-selected locations and energizes the emitters, after which aircraft fly overhead and try to detect the signals. AR177871. According to the Navy, these trucks are important for electronic warfare training because they challenge aviators by simulating the mobility of an actual enemy. AR177875.

On March 16, 2015, the Navy submitted a revised application to expand the use of mobile emitter trucks in the Olympic National Forest. AR205704-20. During the comment period, FSEEE objected three times. [Compl., Dkt. # 1, at ¶¶ 14-16, Ex. 3-5]. However, on July 31, 2017, the Forest Service issued its decision granting a special use permit pursuant to 36 C.F.R. § 251.50, which regulates the Forest Service's permitting process. AR205606.

The permit allows the Navy to park mobile emitter trucks at 11 designated sites alongside logging roads within the national forest. AR205579. On a typical day, three trucks will be present in the national forest at a time. AR205579. Once a truck is parked, Navy personnel set up a safety zone around the truck using warning tape and signage. AR205579. They then begin operations for an average of 12 hours each day, 250 days of the year. AR205579, 205586. All mobile emitter sites are within the Olympic Military Operations Areas, which is airspace designated for Department of Defense training. AR188404.

DISCUSSION

A. Summary Judgment Standard

Summary judgment is proper "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). In determining whether an issue of fact exists, the Court must view all evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in that party's favor. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248-50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ; Bagdadi v. Nazar , 84 F.3d 1194, 1197 (9th Cir. 1996). A genuine issue of material fact exists where there is sufficient evidence for a reasonable factfinder to find for the nonmoving party. Anderson , 477 U.S. at 248, 106 S.Ct. 2505. The inquiry is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Id. at 251-52, 106 S.Ct. 2505. The moving party bears the initial burden of showing that there is no evidence which supports an element essential to the nonmovant'sclaim. Celotex Corp. v. Catrett , 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

Once the movant has met this burden, the nonmoving party then must show that there is a genuine issue for trial. Anderson , 477 U.S. at 250, 106 S.Ct. 2505. If the nonmoving party fails to establish the existence of a genuine issue of material fact, "the moving party is entitled to judgment as a matter of law." Celotex , 477 U.S. at 323-24, 106 S.Ct. 2548. There is no requirement that the moving party negate elements of the non-movant's case. Lujan v. National Wildlife Federation , 497 U.S. 871, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990). Once the moving party has met its burden, the non-movant must then produce concrete evidence, without merely relying on allegations in the pleadings, that there remain genuine factual issues. Anderson , 477 U.S. 242, 248, 106 S.Ct. 2505 (1986).

B. Congressional Authorization of Military Training as a Use of National Forest Land

1. Sufficiency of FSEEE's Pleadings to Raise the Congressional Authorization Argument at Summary Judgment

FSEEE argues that the Forest Service could not grant the Navy a permit to conduct training on national forest land because no congressional statute authorizes such a use. However, the Forest Service counters that FSEEE is procedurally barred from raising this legal theory because the complaint makes no mention of it. Instead, the Forest Service contends that the complaint states only one claim for relief under the NFMA, and focuses solely on the facts underlying that claim. [Compl., Dkt. # 1, at ¶¶ 11-20]. As a result, the Forest Service argues that it was not put on notice of a claim based on congressional authorization.

FSEEE responds that the only fact necessary to support its congressional authorization claim is that the Forest Service issued the Navy a special use permit to carry out training, and this fact was pled. [Compl., Dkt. # 1, ¶ 17]. Further, FSEEE argues that the complaint incorporates the FSEEE's objection to the draft decision to grant the permit, which lays out the congressional authorization argument. [Compl., Dkt. # 1, at ¶ 16, Ex. 5]. Finally, FSEEE argues that, by invoking jurisdiction under the APA and stating that the Forest Service "violated the NFMA," the complaint implicitly claims that the agency exceeded its authority. [Compl., Dkt. # 1, at ¶¶ 6, 20].

Federal Rule of Civil Procedure 8(a) requires that a complaint contain "a short and plain statement of the claim showing that the pleader is entitled to relief." The Ninth Circuit has explained that where "the complaint does not include the necessary factual allegations to state a claim, raising such claim in a summary judgment motion is insufficient to present the claim to the district court." Navajo Nation v. U.S. Forest Serv. , 535 F.3d 1058, 1079–80 (9th Cir. 2008). Following this logic, the court held that the plaintiffs failed to adequately present a claim that the NEIS did not consider certain risks when authorizing the use of artificial snow at a ski resort. Id.

The Ninth Circuit came to a similar conclusion in Coleman v. Quaker Oats Co. , where the plaintiff attempted to raise a disparate impact theory at summary judgment that was not pled in the complaint or raised during discovery. 232 F.3d 1271, 1292 (9th Cir. 2000). The court held that allowing the plaintiff to assert such a new theory would prejudice the defendant by forcing them to develop entirely new defenses that were not explored through discovery. Id. ; see also Smith v. City & Cty. of Honolulu , 887 F.3d 944, 951–52 (9th Cir. 2018) (relying on Coleman ).

Here, like Navajo Nation , the plaintiff raises a new argument at summary judgment challenging an agency action. The Court determines that the Forest Service was not adequately put on notice of this claim. The complaint's "Factual Background" section focuses on the Navy and Forest Service's failure to conform to the Forest Plan in granting the permit. [Compl., Dkt. # 1, at ¶¶ 11-19]. The "Claim for Relief" section likewise states only that the Forest Service violated the NFMA by failing to meet the LRMP's requirements for special-use permits. [Compl., Dkt. # 1,...