Forest Service Employees v. U.S. Forest Service
| Decision Date | 11 January 2008 |
| Docket Number | No. CV-03-165-M-DWM.,CV-03-165-M-DWM. |
| Citation | 530 F.Supp.2d 1126 |
| Parties | FOREST SERVICE EMPLOYEES FOR ENVIRONMENTAL ETHICS, Plaintiff, v. UNITED STATES FOREST SERVICE, an agency of the U.S. Dept. of Agriculture, Defendant. |
| Court | U.S. District Court — District of Montana |
Charles M. Tebbutt, Eugene, OR, Marc D. Fink, Attorney at Law, Duluth, MN, Timothy M. Bechtold, Rossbach Hart Bechtold, Missoula, MT, for Plaintiff.
Mark Steger Smith, William W. Mercer, Office of the U.S. Attorney, Billings, MT, Thomas L. Sansonetti, U.S. Department of Justice, General Litigation, Washington, DC, Emma T. Pawlicki, Pacific Legal Foundation, Sacramento, CA, for Defendant.
The environmental laws and policy in this nation are set by Congress. Congress enacted the laws at issue in this case, the National Environmental Policy Act ("NEPA") and the Endangered Species Act ("ESA"). Executive agencies — here, the United States Forest Service — must execute the laws Congress enacts. The obligation is to faithfully execute the laws. The Forest Service has, throughout these proceedings, evidenced a strategy of circumventing, rather than complying with, NEPA and ESA. The apparent pattern suggests a strategy of looking for ways to avoid the law's mandate as opposed to looking for a means of complying with the law. The issue to be decided here is whether the Forest Service has, complied with the laws it is charged with executing and with this Court's orders directing it to do so. If it has not, a secondary issue is whether the Forest Service should be held in contempt and subjected to coercive sanction. In my view, the Forest Service is in contempt of the law and the prior orders of this Court. Nonetheless, a hearing is appropriate before reaching a final conclusion on that issue.
The record here shows the Forest Service uses an average of 15 million gallons of fire retardant each year, though in some years as many as 40 million gallons have been used. In the most severe fire seasons, millions of acres of land burn under tens of thousands of wildfires, many in national forests. The United States Forest `Service considers chemical fire retardant an important firefighting tool. In October of 2003, Plaintiff filed suit in this Court seeking a declaratory judgment that the Forest Service was, with respect to its use of chemical fire retardant, in violation of NEPA and ESA. They also wanted an injunction compelling the Forest Service to comply with the law.
Plaintiff's Motion for Contempt argues that the Forest Service is in contempt of this Court's orders that it comply with NEPA and ESA concerning the use of chemical fire retardant. The orders in issue are, specifically, 1) the September, 2005 order in which I ordered the Forest Service to comply with NEPA and begin formal consultations with the Fish and Wildlife Service ("FWS") as required by section 7 of ESA; 2) the February, 2006 order in which I again ordered the Forest Service to comply with NEPA regarding the aerial use of fire retardant and set a deadline for compliance of August 8, 2007; and 3) the August 17, 2007 order in which I granted the Forest Service an extension until October 10, 2007, to show compliance with the law and the Court's orders, and setting a contempt hearing for October 15, 2007, in the event the. Forest Service did not demonstrate compliance by the October 10, 2007 extended deadline.
On October 10, 2007, the Forest Service filed a Notice of Compliance. The notice was accompanied by several documents, including an environmental assessment ("EA"). The same day, Plaintiff filed its Motion for Contempt. The next day, October 11, 2007, the Forest Service filed a Decision Notice of a Finding of No Significant Impact (DN/FONSI), apparently in response to the argument Plaintiff raised in its Motion for Contempt. On October 12, 2007, I issued an order vacating the contempt hearing set for October 15, 2007, to have time to consider whether the Forest Service complied with the prior orders in this case. The order stated that "Secretary Rey, on further notice, shall be prepared to appear and show cause why he should not be held in contempt, and jailed until the contempt has been purged by compliance with the laws enacted by the Congress of the United States, including NEPA and ESA."
The Forest Service did Me the 2001 EA, which has been compared to the 2006 EA filed with the Forest Service's Notice of Compliance. The parties have further briefed the issues in reply and sur-reply briefs. The Court has perused the evidence the Forest Service filed to counter the contentions in Plaintiff's Motion for Contempt, and has carefully considered the arguments the parties have presented in their briefs. I have given particular attention to the documentary evidence the Forest Service filed in support of its claim that it has complied with the law and the Court's orders and should therefore not be held in contempt.
Plaintiff presents a persuasive argument that the Forest Service has not complied with the Court's order to comply with NEPA. The argument is based on the regulations implementing NEPA, specifically, 40 C.F.R. § 501.4, which is titled "Whether to prepare an environmental impact statement [`EIS']." Paragraph (a) of section 1501.4 of 40 C.F.R. allows an agency (e.g., the Forest Service) to first determine, according to "its procedures supplementing these regulations," whether the proposal under scrutiny (here, the use of chemical fire retardant) is one which normally requires an EIS or is categorically excluded from the need for either an EIS or an EA.
If the proposed action "is not covered by paragraph (a)," the agency must prepare an EA, and in doing so "involve environmental agencies, applicants, and the public." The regulation refers to the definition of an EA found at 40 C.F.R. § 1508.9(a)(1), which is "a concise public document for which a federal agency is responsible that serves to briefly provide sufficient evidence and analysis for determining whether to prepare an EIS or a finding of no significant impact." Once the EA is complete, the agency must then determine, "based on the EA," whether to prepare an EIS. 40 C.F.R. § 1501.4(c). If the agency "determines on the basis of the EA not to prepare [an EIS]," the agency must "prepare a finding of no significant impact." 40 C.F.R. § 1501.4(e).
Plaintiff argues that all the Forest Service has done in this case is produce and Me an. EA. Plaintiff correctly argues that this is only a step toward complying fully with NEPA. The Forest Service responds with two arguments. First, it argues that its response to the Court's orders, evaluated against the legal standards governing the Court's use of its contempt power, is reasonable, and therefore the Court should not hold it or Mr. Rey in contempt. Second, it argues that the DN/FONSI, filed a day after the Court's October 10 deadline and apparently in response to Plaintiff's Motion for Contempt, was completed prior to the date it was signed and filed vie% the Court (October 11, 2007) and it demonstrates compliance with NEPA.
As for the first argument, the Forest Service argues that on a Motion for Contempt, Plaintiff must present clear and convincing evidence of non-compliance with a specific and definite order of the Court. See F.T.C. v. Affordable Media, LLC, 179 F.3d 1228, 1239 (9th Cir.1999). It then notes that when a Court's. Order is not clear as to what is required for compliance, if the party allegedly in contempt has acted reasonably in response to the order, the party should not be held in contempt. Vertex Distrib. v. Falcon Foam Plastics, Inc., 689 F.2d 885, 889 (9th Cir.1982).
The. Forest Service offers no argument, however, from which the conclusion follows that the orders are not clear as to what is required for compliance. The Order required the Forest Service to comply with NEPA. This requires complying not only with the statutes in question, but also with the regulations implementing the law. The Forest Service makes no argument to the contrary. Instead, it proceeds to its second argument, claiming that it "did not issue the FONSI simultaneously with the EA because it recognized that the outcome of the consultation process [pursuant to the ESA] could affect the Forest Service's ultimate decision on the aerial use of fire retardant." Issuing a FONSI prior to the completion of the consultation process, the Forest Service argues, would leave it open to accusations by Plaintiff that it had "improperly prejudged its decision." Based on this argument, the Forest Service asserts it was reasonable to conclude that it "could best comply with NEPA and this Court's Orders by completing the EA, albeit recognizing that further analysis may be required pending the completion of the ESA consultation, and withholding the issuance of a FONSI until the results of the consultation process were known."
It is difficult to imagine how the Forest Service expects this argument to be construed. One possible interpretation is that the Forest Service admits it did not comply with the Court's orders as a litigation strategy — i.e., if it complied with NEPA and issued the FONSI, Plaintiff would accuse it of non-compliance, so it did not comply. Or, it may be claiming it is unreasonable to expect a party to comply with one law (NEPA) when the party has not yet complied with another law (ESA). This seems the more plausible construction, but the Forest Service does not explain, anywhere in its briefing, that the results from an ESA consultation are necessary before an agency can comply with NEPA.
This may, however, reflect agency practice. The Forest Service refers in one of its briefs, to the "natural inter-relationship between the NEPA and ESA consultation processes," and, claims that waiting for the completion of one before issuing a decision on the other is...
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FOREST Serv. EMPLOYEES FOR Envtl. ETHICS v. UNITED States FOREST Serv.
...2007, the Forest Service sought and received an extension until October 10, 2007. Forest Service Employees for Environmental Ethics v. United States Forest Service, 530 F.Supp.2d 1126, 1127 (D.Mont.2008). On October 10, 2007, the Forest Service issued an Environmental Assessment (USFS AR 33......