Friends of the Columbia Gorge, Inc. v. Elicker

Decision Date27 December 2007
Docket NumberNo. 05-CV-646-BR.,05-CV-646-BR.
Citation598 F.Supp.2d 1136
CourtU.S. District Court — District of Oregon
PartiesFRIENDS OF the COLUMBIA GORGE, INC., and in defense of Animals, Plaintiffs, v. Roy ELICKER,<SMALL><SUP>1</SUP></SMALL> Director, Oregon Department of Fish and Wildlife; Marla Rae, Chair, Oregon Fish and Wildlife Commission; and United States Forest Service, Defendants.

Gary K. Kahn, Reeves, Kahn & Hennessy, Portland, OR, for Plaintiffs.

Karin J. Immergut, United States Attorney, Stephen J. Odell, Assistant United States Attorney, Portland, OR, for Defendant United States Forest Service (hereinafter referred to as USFS).

Hardy Myers, Attorney General of Oregon, John Clinton Geil, Matthew J. Donahue, Assistant Attorneys General, Oregon Department of Justice, Salem, OR, for State Defendants, Roy Elicker, Director of Oregon Department of Fish and Wildlife, and Marla Rae, Chair of Oregon Fish and Wildlife Commission (the agencies hereinafter referred to as ODFW and OFWC respectively and the individuals in their official capacities referred to collectively as State Defendants).

OPINION AND ORDER

BROWN, Judge.

This matter comes before the Court on Plaintiffs' Motion for Summary Judgment (# 75), State Defendants' Motion for Summary Judgment (# 94), and USFS's Cross-Motion for Summary Judgment (# 107).

For the following reasons, the Court

1. DENIES Plaintiffs' Motion as to Claims Two and Three against State Defendants;

2. GRANTS State Defendants' Motion as to Plaintiffs' Claims Two and Three;

3. GRANTS Plaintiffs' Motion as to Claims One and Four against USFS, DENIES as premature Plaintiffs' Motion as to Claim Three against USFS, and DENIES Plaintiffs' Motion as to Claim Five against USFS; and

4. DENIES USFS's Cross-Motion as to Plaintiffs' Claims One and Four, DENIES as premature USFS's Cross-Motion as to Plaintiffs' Claim Three, and GRANTS USFS's Cross-Motion as to Plaintiffs' Claim Five.

SUMMARY OF PLAINTIFFS' CLAIMS

Plaintiffs bring the following claims for declaratory and injunctive relief:

Claim OnePlaintiffs request the Court to declare USFS violated the Columbia River Gorge National Scenic Area Act (Scenic Area Act) and the Management Plan for the Scenic Area (Scenic Area Plan) by erroneously exempting ODFW's Rocky Mountain Goat Columbia River Gorge Reintroduction Plan from a consistency review and request the Court to enjoin implementation of the Reintroduction Plan until such review is performed.

Claim TwoPlaintiffs request the Court to declare State Defendants violated the Scenic Area Act by approving ODFW's Reintroduction Plan without ensuring it was reviewed for consistency and request the Court to enjoin the implementation of the Reintroduction Plan until such review is performed.

Claim ThreePlaintiffs request the Court to declare USFS and State Defendants violated the Scenic Area Act and the Scenic Area Plan by approving the Reintroduction Plan, which poses risks to sensitive plants within the Columbia River Gorge National Scenic Area (Scenic Area), and request the Court to enjoin the implementation of the Reintroduction Plan.

Claim FourPlaintiffs request the Court to declare USFS violated the National Environmental Policy Act (NEPA) by failing to satisfy NEPA requirements to review the environmental impacts of the Reintroduction Plan and request the Court to enjoin the implementation of the Reintroduction Plan until USFS complies with NEPA.

Claim FivePlaintiffs request the Court to declare USFS violated the National Forest Management Act (NFMA) by failing to prohibit the Reintroduction Plan even though it is inconsistent with the Mount Hood National Forest Land and Resource Management Plan (Mt. Hood Forest Plan) and request the Court to enjoin the implementation of the Reintroduction Plan.

BACKGROUND
I. Columbia River Gorge National Scenic Area Act.

Congress enacted the Scenic Area Act, 16 U.S.C. §§ 544-544p, for purposes of enhancing the scenic, cultural, recreational, and natural resources of the Columbia River Gorge and to protect and to encourage economic growth in the Gorge. 16 U.S.C. § 544a. To accomplish these goals the Scenic Area Act created the Scenic Area and established mechanisms for the regulation of land use and development within the Scenic Area. The Scenic Area Act divides the Scenic Area into three land classifications: Special Management Areas (SMAs) that are administered by USFS; General Management Areas (GMAs) that are administered by the Columbia River Gorge Commission (Commission);2 and exempt urban areas. 16 U.S.C. § 544b. See also Scenic Area Plan at 2-3. The Scenic Area Act is basically a land-use planning statute designed to balance the needs of the counties within the Scenic Area with the protection of the natural and scenic beauty of the Columbia Gorge by designating areas as agricultural, commercial, recreational, etc., and prescribing the types of development allowed in those areas. Scenic Area Plan at 2-14.

The Scenic Area Act requires the Secretary of Agriculture to "administer Federal lands within the special management areas in accordance with [the Scenic Area Act] and other laws, rules and regulations applicable to the national forest system." 16 U.S.C. § 544f(a)(1). SMAs constitute over one-third of the land within the nearly 300,000-acre Scenic Area. In addition, "[e]xcept as otherwise provided in ... § 544o of this title, Federal agencies having responsibilities within the scenic area shall exercise such responsibilities consistent with the provisions of [the Scenic Area Act] as determined by the Secretary." 16 U.S.C. § 544l (d).

Section 544o sets out the savings provisions of the Scenic Area Act and describes the compatibility of the Scenic Area Act with other applicable laws. Section 544o (a)(8), invoked by USFS as the savings-clause exception that exempts the Reintroduction Plan from federal consistency review, provides: "Nothing in [the Scenic Area Act] shall—... affect the laws, rules and regulations pertaining to hunting and fishing under existing State and Federal laws and Indian treaties." 16 U.S.C. § 544o (a)(8).

The Scenic Area Act also mandates the development of a management plan for the Scenic Area. 16 U.S.C. §§ 544d(c),(d). The Commission developed the Scenic Area Plan in compliance with the Scenic Area Act, and the Secretary of Agriculture concurred with the Scenic Area Plan in 1991.

The Scenic Area Plan establishes a cooperative implementation, management, and monitoring scheme for the Scenic Area with responsibilities shared by USFS, the Commission, and the counties in Washington and Oregon that lie within the Scenic Area.3 Scenic Area Plan at IV-1, IV-2. All land uses within the Scenic Area, whether private, local, or federal, must comply with the Scenic Area Act and the Scenic Area Plan. Columbia River Gorge United-Protecting People and Prop. v. Yeutter, 960 F.2d 110, 112 (9th Cir.1992).

The Scenic Area Plan sets out two categories of uses in the Scenic Area: uses allowed outright and uses allowed only after review for consistency with the Scenic Area Act and the Scenic Area Plan. Scenic Area Plan at 11-14.

II. Factual Background.

The Scenic Area and the surrounding forest wilderness are governed by a complex matrix of statutes and forest plans including the Scenic Area Act; the Scenic Area Plan developed pursuant to § 544d of the Scenic Area Act; and the Mt. Hood Forest Plan. The Scenic Area contains approximately 50,000 acres of federal land, and these governing statutes and management plans outline a cooperative management strategy and implementation procedure between federal and state actors in the Scenic Area.

In 2003 ODFW began developing a plan to introduce4 Rocky Mountain goats into the Scenic Area. After numerous public meetings and with the assistance of USFS, ODFW completed a draft proposal in June 2004.

On March 10, 2005, Daniel T. Harkenrider, USFS manager of the Scenic Area, wrote a letter advising ODFW that USFS is not required to perform a consistency review to ensure the proposed introduction of Rocky Mountain goats is consistent with the Scenic Area Act. Harkenrider noted ODFW has the authority to use the Scenic Area for wildlife-management projects such as the proposed introduction of Rocky Mountain goats and concluded the proposal is exempt from review under the savings-clause exception of the Scenic Area Act because the proposed Reintroduction Plan is a rule or regulation "pertaining to hunting and fishing." See 16 U.S.C. § 544o(a)(8).

On April 15, 2005, USFS finalized a Memorandum of Understanding with ODFW describing the cooperative efforts USFS and ODFW would take to establish a viable population of Rocky Mountain goats in the Scenic Area. The Memorandum committed the USFS to establishing a technical committee to monitor the location of the goats with GPS radio collars and to perform a biannual study of the impact of the goats on vegetation in the Scenic Area. That same day, OFWC approved the Reintroduction Plan to introduce the goats in 521 square miles along the Oregon side of the Columbia River Gorge, which includes the Scenic Area and parts of the Hatfield Wilderness, Mt. Hood Wilderness, and Bull Run Watershed. The vast majority of these areas is federal land.

The Reintroduction Plan calls for ODFW to trap an initial group of 15 to 20 Rocky Mountain goats from northeastern Oregon and to release them at Herman Creek near Cascade Locks, Oregon, which is within the Scenic Area. ODFW would later release another 15-20 goats at Dodson, Oregon, and potentially more goats at Tanner Butte with the goal of ultimately establishing a stable population of 300 Rocky Mountain goats.

The proposed introduction area includes habitat for several endemic and rare plant species, including two candidate species under the Endangered Species Act (ESA), 16 U.S.C. §§ 1531-1544, and at least five candidate...

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2 cases
  • Soc'y v. U.S. Forest Serv. & Tom Tidwell
    • United States
    • U.S. District Court — District of Utah
    • March 2, 2017
    ...60. Id. at ¶ 65. 61. Id. at ¶ 72. 62. Id. at ¶ 64 63. Id. at ¶ 65. 64. Plaintiffs also unwisely rely on Friends of the Columbia Gorge v. Elicker, 598 F. Supp. 2d 1136, 1156 (D. Or. 2009) which was vacated and ordered to be depublished. 2011 WL 3205773, *1 (D. Ore. July 27, 2011). As a depub......
  • Friends of the Columbia Gorge, Inc. v. Elicker
    • United States
    • U.S. District Court — District of Oregon
    • July 24, 2011
    ...Opinion and Order on Reconsideration (#148), and Judgment (#183), which are collectively published as Friends of the Columbia Gorge v. Elicker,598 F. Supp. 2d 1136 (D. Or, 2009), and which will be hereinafter collectively referred to as the "Judicial Rulings." As the parties have noted, the......

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