Hells Canyon Preservation Council v. Richmond, Civ. No. 92-1432-ST.

• Decision Date: 09 December 1993
• Docket Number: Civ. No. 92-1432-ST.
• Parties: HELLS CANYON PRESERVATION COUNCIL, Plaintiff, v. Robert RICHMOND, in his official capacity as Wallowa-Whitman National Forest Supervisor; Mike Espy, in his official capacity as Secretary of Agriculture; U.S. Forest Service, Defendants, Northwest Powerboaters Association, Inc., an Idaho nonprofit corporation; Western Whitewater Association, an Idaho nonprofit association; R Y Timber, Inc., an Idaho corporation; Wallowa County, a public entity; Boise Cascade Corp., a Delaware corporation; Ellingson Lumber Co., an Oregon Corporation; Northwest Forestry Association, an Oregon nonprofit corporation; Northwest Forest Resource Council, an Oregon nonprofit corporation, Defendant-Intervenors.
• Court: U.S. District Court — District of Oregon

841 F. Supp. 1039

HELLS CANYON PRESERVATION COUNCIL, Plaintiff, v. Robert RICHMOND, in his official capacity as Wallowa-Whitman National Forest Supervisor; Mike Espy, in his official capacity as Secretary of Agriculture; U.S. Forest Service, Defendants Northwest Powerboaters Association, Inc., an Idaho nonprofit corporation; Western Whitewater Association, an Idaho nonprofit association; R Y Timber, Inc., an Idaho corporation; Wallowa County, a public entity; Boise Cascade Corp., a Delaware corporation; Ellingson Lumber Co., an Oregon Corporation; Northwest Forestry Association, an Oregon nonprofit corporation; Northwest Forest Resource Council, an Oregon nonprofit corporation, Defendant-Intervenors.

Civ. No. 92-1432-ST.

United States District Court, D. Oregon.

December 9, 1993.

COPYRIGHT MATERIAL OMITTED

Gary Kahn, Reeves, Kahn & Eder, Portland, OR, for plaintiff Hells Canyon Preservation Council.

Jack C. Wong, U.S. Atty., Thomas C. Lee, Larry A. Brown, Val J. McLam Black, Sp. Asst. U.S. Atty., Office of Gen. Counsel, U.S. Dept. of Agriculture, Portland, OR, for defendants Robert Richmond, Mike Espy, and U.S. Forest Service.

Michael E. Hagland, Scott W. Horngren, Haglund & Kirtley, Portland, OR, for defendant-intervenors R Y Timber, Inc., Wallowa County, Boise Cascade Corp., Ellingson Lumber Co., Northwest Forestry Ass'n, and Northwest Forest Resource Council.

Jeffery W. Ring, Eric R. Todderud, Heller, Ehrman, White & McAuliffe, Portland, OR, for defendant-intervenors Northwest Power-boaters Ass'n, Inc. and Western Whitewater Ass'n.

OPINION

STEWART, Magistrate Judge:

INTRODUCTION

This is an action brought pursuant to the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 551-559 and the Hells Canyon National Recreation Area Act ("HCNRA Act"), 16 U.S.C. §§ 460gg to -13, to obtain declaratory and injunctive relief requiring defendant the United States Forest Service ("Forest Service") to promulgate rules governing uses of the Hells Canyon National Recreation Area ("HCNRA"). Two individual defendants¹ are named, as are six defendant intervenors.²

Plaintiff, the Hells Canyon Preservation Council ("HCPC"), is a non-profit corporation dedicated to the preservation of the Hells Canyon area in its natural condition. Plaintiff and its members use the HCNRA for recreational, scientific, and commercial purposes. HCPC alleges jurisdiction under 28 U.S.C. § 1331 (federal question), 28 U.S.C. § 2201 (authorizing declaratory relief), and 28 U.S.C. § 2202 (authorizing injunctive relief). Defendants and defendant-intervenors dispute plaintiff's standing to bring this action. All parties have consented to allow a Magistrate Judge to enter final orders and judgment in this case in accordance with F.R.C.P. 73 and 28 U.S.C. § 636(c). See Consent forms in Civ. No. 92-1432-ST (docket # 61-64).

Two motions are now before me, including (1) plaintiff's motion for summary judgment (docket # 49); and (2) defendant-intervenors Northwest Powerboaters Association, Inc. and Western Whitewater Association's motion for summary judgment (docket # 44).

STANDARDS

F.R.C.P. 56(c) authorizes summary judgment if no genuine issue exists regarding any material fact and the moving party is entitled to judgment as a matter of law. The moving party must show an absence of an issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). Once the moving party shows the absence of an issue of material fact, the nonmoving party must go beyond the pleadings and designate specific facts showing a genuine issue for trial. Id. at 324, 106 S.Ct. at 2553. A scintilla of evidence, or evidence that is merely colorable or not significantly probative, does not present a genuine issue of material fact. United Steelworkers of Am. v. Phelps Dodge Corp., 865 F.2d 1539, 1542 (9th Cir.), cert. denied, 493 U.S. 809, 110 S.Ct. 51, 107 L.Ed.2d 20 (1989).

The substantive law governing a claim or defense determines whether a fact is material. T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir.1987). The court must view the inferences drawn from the facts in the light most favorable to the nonmoving party. Thus, reasonable doubts about the existence of a factual issue should be resolved against the moving party. Id. at 630-631. However, when the nonmoving party's claims are factually implausible, that party must come forward with more persuasive evidence than would otherwise be required. California Architectural Bldg. Prods. v. Franciscan Ceramics, Inc. 818 F.2d 1466, 1470 (9th Cir. 1987), cert. denied, 484 U.S. 1006, 108 S.Ct. 698, 98 L.Ed.2d 650 (1988). The Ninth Circuit has stated, "No longer can it be argued that any disagreement about a material issue of fact precludes the use of summary judgment." Id. at 1468.

DISCUSSION

I. Background

Congress enacted the HCNRA Act in 1975, establishing the Hells Canyon National Recreation Area, located generally along the Snake River in Eastern Oregon and Western Idaho. The HCNRA Act required the Secretary of Agriculture ("Secretary") to promulgate a Comprehensive Management Plan ("CMP") for the HCNRA to provide for a broad range of land uses and recreational opportunities. 16 U.S.C. § 460gg-5(a). The Forest Service adopted a CMP for the HCNRA after receipt of public comment and preparation of an Environmental Impact Statement.

In addition to the requirement that the Secretary promulgate a CMP, the HCNRA Act requires the Secretary to "promulgate ... such rules and regulations as he deems necessary to accomplish the purposes of the HCNRA Act which shall include but are not limited to standards and provisions governing certain uses of the HCNRA." 16 U.S.C. § 460gg-7(a) — (e). In 1989, the Ninth Circuit Court of Appeals held that this section, rather than giving the Secretary discretion, mandated that the Secretary "promulgate nonduplicative regulations of the sort described by Section 10." Oregon Natural Resources Council v. Lyng, 882 F.2d 1417, 1427 (9th Cir.1989), amended on other grounds, 899 F.2d 1565 (9th Cir.1990) ("ONRC v. Lyng").

In response to this decision, the Forest Service adopted an "interim rule" applicable to public lands in the HCNRA. The "interim rule" was adopted without prior notice and comment and was made effective immediately upon publication, but was open to a subsequent sixty-day comment period. The "interim rule" calls for management of public lands in the HCNRA in a manner consistent with the CMP and with existing regulations of general applicability to Forest Service lands. 36 C.F.R. § 292.40-.43. The "interim rule" does not address use or development of private lands in the HCNRA.

After adopting this "interim rule", the Forest Service solicited and received comments, including comments from plaintiff HCPC. On or about November 3, 1992, the Forest Service published two notices of proposed rule making in the Federal Register. The first notice, published at 57 Fed.Reg. 51103, announced the Forest Service's intent to issue regulations governing uses of private lands in the HCNRA. The Notice of Proposed Rulemaking was scheduled for publication in March of 1993, with the comment period to close in September, 1993. The second notice announced the Forest Service's intent to adopt rules governing federal lands in the HCNRA. The proposed rules were scheduled to become effective in June, 1993. 57 Fed.Reg. 51108. Prior notices with earlier deadlines have been published. See, e.g. 54 Fed.Reg. 44466 (October 30, 1989); 55 Fed.Reg. 15983 (April 23, 1990). None of these deadlines have been met.

II. The Pending Claims and Defenses

The HCPC alleges seven separate claims against defendants. Each of HCPC's claims charge that the Forest Service has failed to promulgate regulations addressing specific subsections of 16 U.S.C. § 460gg-7(a) to (e) (Section 10 of the HCNRA Act), or that the Forest Service has improperly deferred to the CMP for control of the activities specifically identified in those subsections.

HCPC seeks a declaration that (1) the "interim rule" does not comply with the APA's requirement of notice and comment rulemaking and does not constitute a final rule or regulation for purposes of the HCNRA Act; (2) the "interim rule" improperly defers to the CMP for regulation of activities within the HCNRA; and (3) the "interim rule" does not satisfy the requirements of Section 10 of the HCNRA Act. In addition, HCPC seeks (1) an order requiring the Forest Service to engage in notice and comment rulemaking and to promulgate final regulations as required by the HCNRA Act; and (2) injunctive relief enjoining a number of activities in the HCNRA until such time as final regulations are in place.

Defendants contend that HCPC has no standing to bring this action, that the Forest Service has complied with all but one subsection of Section 10 of the HCNRA Act, that HCPC has failed to exhaust administrative remedies, and that HCPC's claims are either moot or barred by latches. In addition, defendants contend that plaintiff is not entitled to the injunctive relief it seeks because such relief would violate the limits of the consent to suit contained in the APA and violate the HCNRA Act by enjoining activities and uses expressly authorized by that Act.

This opinion will not address this latter point as plaintiff does not, at this time, move to enjoin any activities on public or private lands in the HCNRA. Rather, HCPC currently seeks a declaration that the Forest Service has unlawfully withheld or unreasonably delayed the promulgation of regulations pursuant to Section 10 of the HCNRA Act, and seeks a mandatory order compelling the Forest Service to promulgate new regulations covering that section.

III. Initial Issues

Initially, defendants contest whether HCPC may now, or ever, assert its claims. These arguments raise intimately related issues of jurisdiction, ripeness, finality of the agency action, the requirement of...