High Sierra Hikers Ass'n. v. U.S. Forest Service

• Decision Date: 08 June 2006
• Docket Number: No. CV F 05-0496 AWI DLB.,CV F 05-0496 AWI DLB.
• Citation: 436 F.Supp.2d 1117
• Parties: HIGH SIERRA HIKERS ASSN. et al., Plaintiffs, v. UNITED STATES FOREST SERVICE, et al., Defendants. California Department of Fish and Game, California Trout, Inc., Back Country Horsemen of California, Inc., Mid Valley Unit, Kennedy Meadows Resort and Pack Station, Inc., James L. Phelan, Defendant Interveners.
• Court: U.S. District Court — Eastern District of California

436 F.Supp.2d 1117

HIGH SIERRA HIKERS ASSN. et al., Plaintiffs, v. UNITED STATES FOREST SERVICE, et al., Defendants.

California Department of Fish and Game, California Trout, Inc., Back Country Horsemen of California, Inc., Mid Valley Unit, Kennedy Meadows Resort and Pack Station, Inc., James L. Phelan, Defendant Interveners.

No. CV F 05-0496 AWI DLB.

United States District Court, E.D. California.

June 8, 2006.

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Julia A. Olson, Wild Earth Advocates, Peter M.K. Frost, Western Environmental Law Center, Eugene, OR. for High Sierra Hikers Association And Wilderness Watch.

Ernest Robert Wright, Sacramento, CA, James A. Coda, Environment and. Natural Resources, San Francisco, CA, for. United States Forest Service, Jack—Blackwell Regional Forester, Forest Service Region 5, Tom. Quinn Supervisor, Stanislaus National Forest.

Michael William Neville, Office of the Attorney General, San Francisco,. CA, for California Department of Fish and Game,

Michael William Neville, Office of the Attorney General, San Francisco, CA, pro se.

William B. Look, Jr., Law Office Of William B. Look Jr., Monterey, CA, for Inc: California Trout, Tuolumne County Sportsmen, Inc.

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT

ISHII, District Judge.

This is an action for declaratory and injunctive relief by plaintiffs High Sierra Hikers Association and Wilderness Watch (collectively "Plaintiffs") against defendant United States Forest Service, and two individual Forest Service officials ("Defendants") and intervener-defendants, California Trout, Inc., Tuolumne County Sportsmen, "Kennedy Meadows Resort, James Phelan, and the California Department of Fish and. Game (collectively, "interveners"). The action is pursuant to the Wilderness Act, 16 U.S.C., §§ 1131, et seq., and the National Environmental Policy Act ("NPA"), 42 U.S.C., §§ 4321 et seq. The action challenges a decision by Defendants to repair and maintain and operate certain small water impoundment structures located in the Emigrant Wilderness Area. In the instant motion, Plaintiffs seek summary judgment of their claims that Defendants' actions were contrary to law and for injunctive relief to prohibit the maintenance or repair of any dam structures in the Emigrant Wilderness. Defendants and Interveners counter-move for summary judgment on All Plaintiffs' claims. Federal Subject matter jurisdiction exists pursuant to 28 U.S.C., § 1331. Venue is proper in this court.

PROCEDURAL HISTORY

This case Was transferred from the Northern District of California on April 14, 2005. Apparently, the operative pleading in the case at the time of, transfer was "the first amended complaint. On September 12, 2005, Plaintiffs moved to amend/correct the complaint. That motion was granted in part on October 24, 2005, and the currently-operative Second Amended Complaint ("SAC") was filed on October 28, 2005. Plaintiffs' moved for, summary judgment on November 11, 2005. Interveners filed an opposition on December 19, 2005, which Defendants joined on December 22, 2005. Defendants filed their opposition to Plaintiffs', motion for summary judgment and cross-motion, for summary judgment on December 22, 2005. Interveners joined Defendants opposition, and cross-motion for summary judgment on January 3, 2006. Plaintiffs filed their reply on January 20 2006, and filed a motion to strike certain extra-record materials on January 23, 2006. Defendants/Interveners filed their opposition to the motion to strike on January 25, 2005, and Plaintiffs filed their reply on February 2, 2006,

Hearing on the parties' motions and cross-motions for summary judgment was held on March 24, 2006. At the hearing the parties requested leave to file, additional briefing regarding congressional intent. Leave was granted. Plaintiffs filed a supplemental brief on March 27, 2006; Defendants filed a response to the supplemental brief on March 30, 2006; and Intervener-Defendants filed a supplemental brief on March 28, 2008.

FACTUAL BACKGROUND/UNDISPUTED FACTS

Plaintiffs and Defendants have, filed statements of undisputed facts as to their respective motions for summary judgment, and filed objections to the factual aversions of the, opposing parties. The facts set forth below represent a synthesis of the facts submitted by the parties. Disputed facts are noted and factual disputes are resolved to the extent possible.

Although neither party offers undisputed facts to explain the why the controversy is before the court at this time, it is helpful, as an initial matter, to briefly address the history and nature of the controversy. The introductory portion of the Draft EIS summarizes the historical antecedents of the current controversy.

Following designation of the Emigrant Wilderness in 1975, a document titled the "Emigrant Wilderness Management, Plan" was prepared in 1976, which contained a requirement for a study to determine "... the condition, value and cost-effectiveness of the various [water control structures] as well, as their effects, on the natural hydrological processes." AR at 3460. The water control structures had been, built beginning in the 1920's to develop a local fishery that, had begun during the 1890's when the natural lakes in the area were planted with trout by cattlemen who use the meadows in the area for grazing. The dams, which had been constructed mostly of mortar and local stone were operated on a shared basis by the Forest Service, California Department of Fish and Game ("CDFG"), sportsmen's groups, and, others. Since 1988, operation of the stream flow releases has been done primarily by CDPG. Fisheries in the Emigrant. Wilderness are co-managed through a local Memorandum of Understanding ("MOU"). Controversy over the status of the dams in the Emigrant Wilderness "resulted in recent Congressional consideration of legislation related to the Emigrant dams. No specific legislation has been enacted. The Forest Service has conducted several planning efforts related to the disposition of the dams since designation of the Emigrant Wilderness. Public and legislative requests have beep received to maintain, repair and operate twelve of the dams. No maintenance has occurred since 1989 due to appeal decisions on previous planning efforts." AR at 3460.

The following facts hate been compiled from the statements of undisputed facts submitted by both parties. The facts are not disputed unless otherwise noted..

On January 3, 1975, Public Law 93-632 (Section 2(b)) designated 106,988 acres as Emigrant Wilderness, and on September 28, 1984, Public Law 98-425 designated an additional 6,100 acres as part of the Emigrant Wilderness. The Emigrant Wilderness is a glaciated area of high mountain peaks, granite domes, glacial valleys, and alpine and subalpine meadows interspersed with patches of subalpine coniferous forest. The elevation of the Emigrant Wilderness ranges from 4,700 feet to. 11,700 feet at Leavitt Peak. The Emigrant Wilderness contains over 100 named lakes and over 500 small, unnamed lakes. At the time the Emigrant Wilderness was designated, 18 dams existed within it; a fact that was known to Congress at the time of the designation.

The parties differ as to the status and characterization of the fish populations in the Emigrant Wilderness. Plaintiffs aver, and Defendants do not dispute, that the high mountain lakes of the Emigrant Wilderness were originally without any native fish population. Plaintiffs characterize the lakes of the region as having been stocked with "non-native" trout, beginning in the 1890's. Defendants state, and Plaintiffs do not dispute, that 77 of the 100 named lakes in the Emigrant Wilderness have historically been stocked with fish. Defendants point out the fish that were stocked were Rainbow Trout, a species that is native to both the Stanislaus and Tuolumne river systems. The waterways of the Emigrant Wilderness drain into the Stanislaus and Tuolumne rivers. Defendants contend, and Plaintiffs do not dispute, that the trout populations that have been established in those areas of the Emigrant Wilderness that were historically stocked are at least partially self-reproducing and that current fish stocking operations are for the purpose of enhancing populations for the benefit of anglers.

The parties agree that, of the 18 dams in the Emigrant Wilderness, 15 are associated with fakes, and except for Y-Meadow, impound water on naturally existing lakes. All the dams are constructed of ideal stone and mortar, except for one dam which is earthen. The dams are of three functional types. Twelve of the dams are streamflow augmentation dams that are intended to increase downstream flow during dry weather in late summer, or early fall. These darns raise the height of natural lakes from about 6 to 10 feet. Three of the dams are lake level dams that add approximately three feet of height to existing natural lakes, but do not, regulate downstream flows. Three dams are meadow enhancement dams that are not associated with lakes. These dams are located, in stream channels and serve to raise water tables to sub-irrigate meadows.

The parties do not generally dispute the foregoing except that Plaintiffs characterize the lakes whose natural levels are raised by dams as "reservoirs." Defendants consistently oppose this characterization, contending the impoundments do not meet the dictionary definition as they do not, impound water for irrigation, domestic, industrial or other human use. Plaintiffs also aver the meadow enhancement dams originally served to sub-irrigate meadows for the benefit of livestock.

Plaintiffs allege a number, of undisputed facts that relate to the decline in importance of the dam structures in the Emigrant Wilderness since the 1950's. Defendants have disputed the proffered facts, but the disputations pertain mostly to, the appropriateness of...