Idaho Sporting Congress, Inc. v. U.S. Forest Service, 96-35150
| Decision Date | 12 August 1996 |
| Docket Number | No. 96-35150,96-35150 |
| Citation | 92 F.3d 922 |
| Parties | 26 Envtl. L. Rep. 21,630, 96 Cal. Daily Op. Serv. 5999, 96 Daily Journal D.A.R. 9815 IDAHO SPORTING CONGRESS, INC., Plaintiff-Appellant, v. UNITED STATES FOREST SERVICE, Defendant-Appellee, and Intermountain Forest Industry Association, Intervenor-Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Thomas J. Woodbury, Idaho Sporting Congress, Inc., Boise, Idaho; D. Bernard Zaleha, Boise, Idaho, for plaintiff-appellant.
Monica Medina, Environment & Natural Resources Division, United States Department of Justice, Washington, DC, for defendant-appellee.
Bruce M. Smith, Rosholt, Robertson & Tucker, Boise Idaho, for defendant-intervenor-appellee.
Appeal from the United States District Court for the District of Idaho, Edward J. Lodge, District Judge, Presiding. D.C. No. CV 95-00419-EJL.
Before: LAY, * FERGUSON, and LEAVY, Circuit Judges.
The Idaho Sporting Congress ("ISC") appeals from the district court's dismissal of various claims and its grant of summary judgment in favor of the United States Forest Service ("Forest Service") in ISC's action seeking declaratory and injunctive relief with respect to three forest projects and seven associated timber sales. ISC alleged that the Forest Service had violated the Rescissions Act, 1 the Administrative Procedure Act, 5 U.S.C. § 701 et seq., ("APA"), a Presidential directive and an interagency Memorandum of Agreement concerning implementation of the Rescissions Act, and the public trust doctrine.
ISC argues that the district court erred by: 1) dismissing all the claims brought under the APA; 2) concluding that the Forest Service had not violated any Presidential directive; 3) concluding that the Forest Service had not violated the public trust doctrine; and 4) concluding that the Forest Service's decisions with respect to the sales properly challenged under the Rescissions Act were not arbitrary or capricious. We affirm.
In 1994, a series of unprecedented wildfires burned hundreds of thousands of acres of forestland in Idaho and Montana. The areas involved in this appeal were affected by the Corrall, Blackwell, Chicken, and Thunderbolt wildfires. In response to these unprecedented fires, the Forest Service formed interdisciplinary scientific teams, referred to as Landscape Analysis Teams, to study how the fires had affected the natural resources in the forests, and to make recommendations for remedying ecological damage.
The work done by the teams eventually led to the development of a series of forest project decisions, all issued by the Forest Service in October of 1995. While the goals of each project differed in minor respects, the intended goals of each program included: salvaging of timber, reforestation of salvage areas, and improvement of water quality and fish habitat. The three forest recovery projects relevant to the present appeal are the Lower South Fork Project ("Lower South Fork Project"), the Thunderbolt Wildfire Recovery Project ("Thunderbolt Project"), and the Main Salmon Post-Fire Recovery Project ("Main Salmon Project").
Each forest project included planned salvage timber sales, which would allow harvesting of the burned timber or affected areas and whose revenues would help toward financing other parts of the forest recovery projects. The Lower South Fork Project provided for two sales: the Big Flat and Pony Creek; the Thunderbolt Project provided for one sale: the Thunderbolt; the Main Salmon Project provided for four sales: the Lower Elkhorn, Fall/Carey, Jenkins, and Elkhorn Basin. There is no dispute that all of the salvage timber sales at issue in this appeal fall within the scope of sales covered by the Rescissions Act.
The Idaho Sporting Congress ("ISC") filed this action seeking declaratory and injunctive relief challenging the three projects and the seven timber sales associated with the projects. ISC alleged that the Forest Service had violated the Rescissions Act, the APA, a The district court first held that provisions of the Rescissions Act precluded review of the sales under the APA, and its provisions further limited review of salvage timber sales to those challenged within 15 days after initial advertisement by the Forest Service. Of the challenged sales, only the Thunderbolt sale and the Lower Elkhorn sale satisfied this limitation.
Presidential directive concerning implementation of the Rescissions Act, and the public trust doctrine. The parties filed opposing motions for summary judgment and waived oral argument.
The court then considered these two sales under the limited standard of review in the Rescissions Act and concluded that in neither case was the Forest Service's decision arbitrary and capricious, and thus neither sale violated the Rescissions Act. Finally, the court concluded that the Forest Service had not violated its obligations under a Presidential directive pertaining to the Rescissions Act, nor did it violate the federal "public trust" doctrine.
A dismissal for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6) is reviewed de novo. Franceschi v. Schwartz, 57 F.3d 828, 830 (9th Cir.1995). A grant of summary judgment is also reviewed de novo. Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir.1995).
We agree with the district court that review of the challenged timber sales is precluded under the APA and that the unadvertised or withdrawn sales were not ripe for review.
The APA provides for review of agency actions "for which there is no adequate remedy in a court...." 5 U.S.C. § 704. The APA also states that "[n]othing herein (1) affects other limitations on judicial review ...; or (2) confers authority to grant relief if any other statute ... expressly or impliedly forbids the relief which is sought." 5 U.S.C. § 702.
Section 2001(f) of the Rescissions Act provides:
(f) Judicial Review.--
(1) Place and Time of Filing.--A salvage timber sale to be conducted under subsection (b) ... shall be subject to judicial review only in the district court for the district in which the affected Federal lands are located. Any challenge to such sale must be filed in district court within 15 days after the date of initial advertisement of the challenged sale.
* * * *
(4) Standard of Review.--The courts shall have authority to enjoin permanently, order modifications of, or void an individual salvage timber sale if it is determined by a review of the record that the decision to prepare, advertise, offer, award, or operate such sale was arbitrary and capricious or otherwise not in accordance with applicable law (other than those laws specified in subsection (i)).
Review under the APA is not available because the Rescissions Act provides the remedy sought by the ISC under the APA. As the district court stated:
Here, the relief sought by ISC--the permanent injunction of all salvage timber sales in the Boise and Payette National Forests--is relief expressly provided for by the Rescissions Act, and thus ISC is not without remedy in a court.
Because § 2001(f) of the Rescissions Act provides a specific mechanism for judicial review and offers a remedy, if appropriate, for every salvage timber sale, the APA is not applicable to timber sales covered by the Rescissions Act.
ISC notes that subsection (f)(3) of the Rescissions Act provides, "Section 705 of title 5, United States Code, shall not apply to any challenge to such a sale." ISC contends that the explicit exclusion of this single provision of the APA implies a general reviewability of agency timber sale decisions under the APA.
We disagree. Considering the Rescissions Act as a whole, the reference to 5 We also agree with the district court that five of the sales were not ripe for review under the Rescissions Act. Subsection (f)(1) provides that: All of the salvage timber sales at issue in this appeal fall within the applicable time scope of the Rescissions Act. However, four of the sales had not been advertised prior to ISC's filing of the complaint, and a fifth sale had been withdrawn. The only sales properly before this court are the Thunderbolt sale and the Lower Elkhorn sale.
U.S.C. § 705 merely serves to clarify and make explicit the comprehensiveness of the prohibition on restraining orders, preliminary injunctions, and relief pending review. By expressly excluding that provision in the Rescissions Act, Congress intended to forestall any attempt to obtain such relief under the APA based on the fact that that particular remedy is not available under the Rescissions Act. For a discussion of reasons why remedies under the APA are not available for "Option 9" sales, authorized under § 2001(d) of the Rescissions Act, as distinguished from "salvage timber sales," authorized under § 2001(b), see Oregon Natural Resources Council v. Thomas, 92 F.3d 792 (9th Cir.1996).
ISC also argues that the sales must be set aside because the Rescissions Act is ambiguous about whether substantive federal environmental laws must be satisfied and because the Forest Service's decision to proceed with the sales violated a Presidential directive regarding implementation of the Rescissions Act and an interagency Memorandum of Agreement ("MOA") regarding the Act.
In his directive the President stated:
I intend to carry out the objectives of the relevant timber-related activities authorized by Public Law 104-19. I am also firmly committed to doing so in ways that, to the maximum extent allowed, follow our current environmental laws and programs. Public Law 104-19 gives us the discretion to apply current environmental...
To continue reading
Request your trial
-
Mukaddam v. Permanent Mission of Saudi Arabia
... ... was a member of the Saudi Arabian civil service. 6 The United States does not interpret Article ... In 1976 Congress enacted the FSIA, codifying a "restrictive ... 13. Villager Pond, Inc. v. Town of Darien, 56 F.3d 375, 378 (2d ... ...
-
Southwest Center for Biological Diversity v. U.S. Forest Service
...the Forest Service was entitled to rely on the opinions and recommendations of its own experts." Idaho Sporting Congress, Inc. v. United States Forest Serv., 92 F.3d 922, 928 (9th Cir. 1996). Another recent Ninth Circuit case, Idaho Conservation League v. Thomas, also illustrates the defere......
- Mohammad v. Gen. Consulate of Kuwait in L. A.
-
Gonzalez v. Metropolitan Transp. Authority
...whether it states a claim upon which relief could be granted, if the facts alleged were proved. Idaho Sporting Congress, Inc. v. United States Forest Service, 92 F.3d 922 (9th Cir.1996). The constitutionality of agency drug testing regulations is reviewed de novo. International Bhd. of Team......
-
THE WORLD'S LARGEST ECOSYSTEM MANAGEMENT PLAN: THE NORTHWEST FOREST PLAN AFTER A QUARTER-CENTURY.
...of law" precluded judicial review of all NFP timber sales because it left no law to apply); Idaho Sporting Cong. v. Forest Serv., 92 F.3d 922, 924-25, 927 (9th Cir. 1996) (rejecting challenges to salvage timber sales on several grounds, including a lack any law to apply); but see, Klamath T......
-
Striking the balance: the tale of eight Ninth Circuit timber sales cases.
...than a "gap and imperfection" in USFS's analysis. The court cited with approval Idaho Sporting Congress v. United States Forest Service, 92 F.3d 922 (9th Cir. 1996), which held that an action agency may rely on its own experts in the face of interagency disagreement when determining the eff......