Friends of the Wild Swan v. US Forest Service

• Decision Date: 09 November 1995
• Docket Number: Civil No. 94-1455-JO.
• Citation: 910 F. Supp. 1500
• Parties: FRIENDS OF THE WILD SWAN, INC.; et al., Plaintiffs, v. UNITED STATES FOREST SERVICE, an agency of the U.S. Department of Agriculture; et al., Defendants.
• Court: U.S. District Court — District of Oregon

910 F. Supp. 1500

FRIENDS OF THE WILD SWAN, INC.; et al., Plaintiffs, v. UNITED STATES FOREST SERVICE, an agency of the U.S. Department of Agriculture; et al., Defendants.

Civil No. 94-1455-JO.

United States District Court, D. Oregon.

November 9, 1995.

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Gary Keith Kahn, Reeves Kahn & Eder, Portland, OR, Jack R. Tuholske, Missoula, MT, for Plaintiffs.

Kristine Olson, United States Attorney, District of Oregon, Thomas C. Lee, Assistant United States Attorney, United States Attorney's Office, Portland, OR, Sandra B. Zellmer, Stephanie M. Parent, U.S. Department of Justice, Environment and Natural Resources Division, Washington, DC, Scott W. Horngren, Michael E. Haglund, Shay S. Scott, Haglund & Kirtley, Portland, OR, for Defendants and Intervenor-Defendants.

OPINION AND ORDER

ROBERT E. JONES, District Judge:

This case involves a challenge under the National Forest Management Act ("NFMA"), 16 U.S.C. §§ 1600 et seq. (1988), and the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4231 et seq. (1988), with regard to the United States Forest Service's ("USFS") management of bull trout native habitat. This dispute is before the Court on Defendants' Motion to Dismiss Plaintiffs' Amended Complaint (# 15-1), or alternatively, Defendants' Motion for Judgment on the Pleadings (# 15-2).¹

FACTUAL BACKGROUND

The source of this litigation stems from a study entitled "Demographic and Habitat Requirements for Conservation of Bull Trout" which was published in 1993 by the Intermountain Research Station of the USFS. This report stated that bull trout populations are significantly threatened and that conservation of bull trout would require "multiple, high quality connected habitats distributed throughout the conservation area, which in turn should be distributed throughout the species range." To date, the USFS has not definitively responded to these known threats to the existence of bull trout.

Accordingly, Plaintiffs filed this action against the USFS to compel compliance with NFMA and NEPA. Plaintiffs allege that the USFS violated those federal statutes by permitting logging and road construction, among other activities, in the native habitat of the bull trout.² In their Amended Complaint, filed January 26, 1995, Plaintiffs assert the following claims for relief:

(1) by failing to protect the future viability of bull trout populations, the USFS violated 16 U.S.C. § 1604(g)(3)(B) of the NFMA which requires forest plans to promote diversity of plant and animal communities;

(2) by allowing the degradation of water conditions, the USFS violated 16 U.S.C. § 1604(g)(3)(E) of the NFMA which requires that management plans provide for the protection of aquatic habitat where timber harvest practices are likely to harm bull trout;

(3) the USFS violated NEPA by failing to consider new information in developing Regional Guides and Forest Plan Environmental Impact Statements ("EIS") for areas where bull trout are present;

(4) the USFS violated the NFMA by failing to amend management plans, guides, and regulations after discovering new information concerning the status of bull trout populations; and,

(5) the USFS violated 5 U.S.C. § 706(2)(A) of the Administrative Procedure Act ("APA") because its actions and failure to act are arbitrary, capricious, and an abuse of discretion not in accordance with the law.

Am.Compl. ¶¶ 37-50. If they succeed, Plaintiffs request a declaratory judgment holding that the USFS violated NFMA and NEPA. In addition, Plaintiffs seek injunctive relief to prevent the USFS from taking actions which adversely affect the viability of the bull trout, and to require that the USFS prepare a Supplemental EIS for each regional guide and forest plan where bull trout are present. Id. at 20-21.

On March 14, 1995, the USFS published a proposal to prepare a strategy for inland native fish habitat management ("INFISH"). 60 Fed.Reg. 13697 (March 14, 1995). The proposal states that the USFS, in cooperation with the Bureau of Land Management, will gather information "in order to prepare an Environmental Assessment (EA) for a proposal to protect habitat and populations of native inland fish." Id. "This Environmental Assessment is intended to provide the basis for establishing appropriate interim direction to protect habitat and populations of resident native fishes outside of anadromous fish habitat, including bull trout * * *." Id. The proposal also serves as notice to any interested party who would like to submit information and comments which the agency will consider in preparing the EA. Id.

Though Plaintiffs applaud the USFS's attempts to develop a strategy to protect bull trout, the USFS has not produced a definitive program on behalf of bull trout. Therefore, Plaintiffs argue that the USFS is failing to adequately protect the bull trout populations and their native habitat.

STANDARD

"Where a jurisdictional issue is separable from the merits of a case, the court may determine jurisdiction by the standards of a Rule 12(b)(1) motion to dismiss for lack of jurisdiction. In such a situation, the district court is: `free to hear evidence regarding jurisdiction and to rule on that issue prior to trial, resolving factual disputes where necessary.'" Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir.1987) (quoting Augustine v. United States, 704 F.2d 1074, 1077 (9th Cir.1983) (internal quotation omitted)).

"Because the court's power to hear the case is at stake, it is not limited to considering the allegations of the complaint. It may consider extrinsic evidence; and if the evidence is disputed, it may weigh the evidence and determine the facts in order to satisfy itself as to its power to hear the case * * *." Schwarzer, Tashima, Wagstaffe, Federal Civil Procedure Before Trial, RUTTER GROUP PRACTICE GUIDE § 9:85 (1992) (emphasis in original) (citing Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir.1987); MCG, Inc. v. Great Western Energy Corp., 896 F.2d 170, 176 (5th Cir.1990)). However, where the question of jurisdiction is dependent on the resolution of factual issues going to the merits, a court may not resolve genuinely disputed facts. Augustine at 1077; See Schwarzer § 9:85.1.

DISCUSSION

I. Statutory Framework

The NFMA directs the Secretary to "develop, maintain, and, as appropriate, revise land and resource management plans LRMP for units of the National Forest System." 16 U.S.C. § 1604(a) (1988). Furthermore, the Secretary shall promulgate regulations which specify guidelines for LRMPs which "provide for diversity of plant and animal communities based on the suitability and capability of the specific land area in order to meet overall multiple use objectives * * *." Id. § 1604(g)(3)(B).

The implementing regulations for LRMPs require that "fish and wildlife habitat shall be managed to maintain viable populations of existing native and desired non-native vertebrate species in the planning area." 36 C.F.R. § 219.19 (1994).³ In addition, LRMPs "shall provide for multiple use and sustained yield of goods and services from the National Forest System in a way that maximizes long term net public benefits in an environmentally sound manner." Id. § 219.1. More specifically, the Secretary shall develop LRMPs which insure that timber will be harvested only where (1) the harvest will not irreparably damage the land or water, (2) the land will be adequately restocked within five years, (3) water bodies are protected, and (4) economic output is not the primary goal. 16 U.S.C. § 1604(g)(3)(E). In accordance with the statute and regulations, the LRMP establishes general guidelines and a statement of intent which is used by the USFS in site-specific decisions for up to fifteen years. Idaho Conservation League v. Mumma, 956 F.2d 1508, 1511 (9th Cir. 1992) (citing 16 U.S.C. § 1604(a)).

The LRMP also must be developed in compliance with NEPA which requires federal agencies to prepare an EIS before undertaking "major Federal actions significantly affecting the quality of the human environment." 42 U.S.C. § 4332(2)(C)(i). The draft and final EIS must accompany the LRMP. 36 C.F.R. § 219.10 (1994).⁴

II. Arguments

A. Defendants' Position

In support of its Motion to Dismiss, Defendants contend that this Court is without jurisdiction to review the LRMPs targeted by Plaintiffs' Amended Complaint because (1) the decision to amend LRMPs rests solely within the discretion of the USFS, (2) Plaintiffs have failed to exhaust administrative remedies, (3) Plaintiffs do not challenge a final agency action, and (4) the issue is not ripe for resolution.

B. Plaintiffs' Position

In opposition, Plaintiffs argue that new information known by the USFS shows that the LRMPs for the bull trout habitat do not adequately protect bull trout populations. In light of this new information about bull trout, the USFS's decisions to allow degrading activities (e.g. logging and road construction) and the USFS's failure to amend its LRMPs contravene its duties under the NFMA. Though Plaintiffs acknowledge the USFS's attempt to gain knowledge about protecting bull trout through INFISH, they argue that the USFS is currently failing to comply with its duties under the NFMA. Therefore, the USFS should consider the new information regarding the viability of bull trout, and then amend the LRMPs to maintain viable populations.

III. Analysis

As a matter of introduction, I wish to properly categorize this lawsuit. This is not an action for judicial review of an LRMP, but rather is a lawsuit under the APA, NFMA, and NEPA to compel the USFS to perform statutorily mandated duties. The APA provides for judicial intervention to "compel agency action unlawfully withheld or unreasonably delayed." 5 U.S.C. § 706(1).⁵

Plaintiffs challenge the USFS's alleged failure to ensure the viability of bull trout. The USFS responds by attacking the sufficiency of the pleadings under four interrelated doctrines: (1)...