FOREST SERVICE EMPLOYEES v. US Forest Service

• Decision Date: 10 February 2010
• Docket Number: Case No. 5:08-CV-00091-TBR.
• Parties: FOREST SERVICE EMPLOYEES FOR ENVIRONMENTAL ETHICS and Daphne Sewing, Plaintiffs v. UNITED STATES FOREST SERVICE, Defendant.
• Court: U.S. District Court — Western District of Kentucky

689 F.Supp.2d 891

FOREST SERVICE EMPLOYEES FOR ENVIRONMENTAL ETHICS and Daphne Sewing, Plaintiffs v. UNITED STATES FOREST SERVICE, Defendant.

Case No. 5:08-CV-00091-TBR.

United States District Court, W.D. Kentucky, Paducah Division.

February 10, 2010.

Timothy M. Bechtold, Bechtold Law Firm, PLLC, Missoula, MT, for Plaintiffs.

Pamela S. West, U.S. Department of Justice—Environment & Natural Resources, Washington, DC, for Defendant.

MEMORANDUM OPINION

THOMAS B. RUSSELL, Chief Judge.

This matter is before the Court upon Plaintiffs, Forest Service Employees for Environmental Ethics ("FSEEE") and Daphne Sewing's, Motion for Summary Judgment (Docket # 23). The Defendant, United States Forest Service ("Forest Service") has filed a Motion for Cross Summary Judgment (Docket # 33). The Plaintiffs have filed a response (Docket # 36). The Defendant has filed a reply (Docket # 39). This matter is now ripe for adjudication. For the following reasons, the Plaintiffs Motion for Summary Judgment is GRANTED in part and DENIED in part. Defendant's Motion for Cross Summary Judgment is GRANTED in part and DENIED in part.

BACKGROUND

The Plaintiffs, Forest Service Employees for Environmental Ethics ("FSEEE"), an Oregon corporation, and Daphne Sewing, a Nevada resident and FSEEE member, seek judicial review of the Forest Service's September 21, 2007, decision to authorize the Continued Maintenance of Open Lands ("Project") on the Land Between the Lakes National Recreational Area ("LBL"), under the Administrative Procedure Act ("APA"). Plaintiffs seek to enjoin the implementation of this Project, and to void the Challenge Cost Share Stewardship Agreement ("Stewardship Agreement") between the Forest Service and National Wild Turkey Federation ("NWTF") entered into on January 14, 2008.

On April 30, 2007, the Forest Service released an environmental assessment ("EA") for its Open Lands Project. AR 49-291. After completion of the EA, Decision Notice, and Finding of No Significant Impact ("FONSI"), the documents were approved by the Forest Service. AR 292. FSEEE appealed the April 30, 2007, decision. AR 298-303. In response, the Forest Service withdrew the decision. AR 312. A Revised Environmental Assessment ("REA") was prepared with more in depth consideration of the potential effects of the proposed activities on wildlife resources. AR 325-608; 388-435. On September 21, 2007, the Forest Service issued its open lands decision and FONSI. AR 317-22; 322-324. On October 19, 2007, FSEEE administratively appealed the Forest Service's open lands decision because the proposed pesticide use may have a significant environmental impact on amphibians that must be disclosed in an environmental impact statement ("EIS"). AR 617-23. On December 6, 2007, the Forest Service denied FSEEE's appeal. AR 624-32.

On January 14, 2008, the Forest Service entered into the Stewardship Agreement with the NWTF-a private, non-profit corporation. AR 9003-21. Pursuant to the Stewardship Agreement, the NWTF, in February of 2008, issued permits to several farmers authorizing the farmers to grow corn and soybean corps and cut hay on several thousand acres of LBL land. AR 9022-51. Each of these permits were signed by Robert Abernethy, Director of Agency Programs for the NWTF. Abernethy is not an employee of the Forest Service. FSEEE alleges that at this time, there is no Forest Service-issued special-use permit to farm at LBL as required, yet private commercial farming continues on national forest land.

The Plaintiffs assert that the approval of the Project violated the National Environmental Policy Act ("NEPA"). The Plaintiffs contend that the Forest Service was required to prepare an EIS instead of relying on the REA. The Plaintiffs further allege that the Forest Service by implementing the Project through the Stewardship Agreement violated the Organic Administration Act ("OAA") and its implementing regulations. The Forest Service contends it did not violate the NEPA nor the OAA and argues the Plaintiffs lack standing and have not exhausted their administrative remedies. Both parties have moved for summary judgment.

STANDARD

Generally, summary judgment is proper if the movant shows "there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). However, in the case of a district court reviewing final agency action, the rules governing summary judgments do not apply because of the limited role of a court in reviewing the administrative record. See City of Cleveland v. Ohio, 508 F.3d 827 (6th Cir.2007); North Carolina Fisheries Ass'n, Inc. v. Gutierrez, 518 F.Supp.2d 62 (D.D.C.2007); J.N. Moser Trucking, Inc. v. U.S. Dept. of Labor, 306 F.Supp.2d 774 (N.D.Ill.E.Div.2004) (stating that a district court's opinion on an appeal from a final agency action may be triggered by motions for summary judgment, but the judicial review of an agency's final determination follows standards quite different from those applied in a typical summary judgment proceeding). When "reviewing administrative agency decisions, the function of the district court is to determine whether or not as a matter of law, evidence in the administrative record permitted the agency to make the decision it did...." Sierra Club v. Dombeck, 161 F.Supp.2d 1052, 1064 (D.Ariz.2001) (citing City & County of San Francisco v. United States, 130 F.3d 873, 877 (9th Cir.1997)).

The APA states "the reviewing court shall ... hold unlawful and set aside agency action, findings, and conclusions found to be—arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). The APA limits the scope of judicial review to a review of the administrative record only. 5 U.S.C. § 706 ("the court shall review the whole record or those parts of it cited by a party"); Florida Power & Light Co. v. Lorion, 470 U.S. 729, 734, 105 S.Ct. 1598, 84 L.Ed.2d 643 (1985); Camp v. Pitts, 411 U.S. 138, 142, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973). Under the "arbitrary and capricious standard, the standard is narrow and the court should not substitute its judgement for that of the agency." Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983). The court should be particularly deferential to the agency decisions when it implicates substantial agency expertise or regards scientific matters within its area of expertise. Marsh v. Oregon Natural Res. Council, 490 U.S. 360, 377-78, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989); Baltimore Gas & Elec. Co. v. Natural Res. Def. Council, 462 U.S. 87, 103, 103 S.Ct. 2246, 76 L.Ed.2d 437 (1983). While the court is deferential to the agency decision, the agency must still "examine the relevant data and articulate a satisfactory explanation for its action including a `rational connection between the facts found and the choice made.'" Id. (citing Burlington Truck Lines v. United States, 371 U.S. 156, 168, 83 S.Ct. 239, 9 L.Ed.2d 207 (1962)). An agency decision would be considered 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.

Id.

In sum, in order to "survive summary judgment under the APA, the party seeking judicial review must point to facts or factual failings in the administrative record that indicate that the agency's decision is `arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.' If the plaintiffs cannot do so, then the agency's decision stands." Shenandoah Ecosystems Defense Group v. U.S. Forest Service, 144 F.Supp.2d 542, 547 (W.D.Va.2001).

DISCUSSION

I. Standing

The question of standing, a threshold question, must be determined by the court before addressing the merits of a cause of action. Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). The doctrine of standing, establishing a "case or controversy," has developed over the years into a three part test:

First, the plaintiff must have suffered an "injury in fact"-an invasion of a legally protected interest which is (a) concrete and particularized, and (b) "actual or imminent, not `conjectural' or `hypothetical.'" Second, there must be a causal connection between the injury and the conduct complained of-the injury has to be "fairly ... traceable to the challenged action of the defendant, and not... the result of the independent action of some third party not before the court." Third, it must be "likely," as opposed to merely "speculative," that the injury will be "redressed by a favorable decision."

Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (internal citations omitted). "The party invoking federal jurisdiction bears the burden of establishing these elements." Id. In the case of a motion for summary judgment, the plaintiff must set forth, by affidavit or declaration, specific facts which will be taken as true for the purposes of summary judgment. Id.

The Forest Service argues in its Cross Motion for Summary Judgment that FSEEE lacks Article III standing. The Forest Service asserts that the declarations of Daphne Sewing and Mary Courtney Moore are deficient due to their failure to address specifically the 2008 Stewardship Agreement and their failure to show that implementation of the Project would cause them injury in fact. Additionally, the Forest Service asserts that each declaration merely expresses generalized concern with the use of pesticides.

FSEEE addresses only the declaration of Sewing and argues that Sewing states in her declaration that she used to work at LBL; has recreated at LBL; plans specific visits...