Idaho Wool Growers Assoc. v. Schafer

• Decision Date: 01 July 2009
• Docket Number: No. CV-08-394-S-BLW.,CV-08-394-S-BLW.
• Citation: 637 F.Supp.2d 868
• Parties: IDAHO WOOL GROWERS ASSOC., and Dr. Marie S. Bulgin, Plaintiffs, v. Ed SCHAFER, in his official capacity as the Secretary of the United States Department of Agriculture, Gail Kimbell, in her official capacity as the Chief of the United States Forest Service, Suzanne C. Rainville, in her official capacity as the Forest Supervisor of the Payette National Forest, and United States Forest Service, Defendants.
• Court: U.S. District Court — District of Idaho

637 F.Supp.2d 868

IDAHO WOOL GROWERS ASSOC., and Dr. Marie S. Bulgin, Plaintiffs, v. Ed SCHAFER, in his official capacity as the Secretary of the United States Department of Agriculture, Gail Kimbell, in her official capacity as the Chief of the United States Forest Service, Suzanne C. Rainville, in her official capacity as the Forest Supervisor of the Payette National Forest, and United States Forest Service, Defendants.

No. CV-08-394-S-BLW.

United States District Court, D. Idaho.

July 1, 2009.

COPYRIGHT MATERIAL OMITTED

William Gerry Myers, III, Holland & Hart, Boise, ID, for Plaintiffs.

Deborah A. Ferguson, U.S. Attorney's Office, Boise, ID, for Defendants.

MEMORANDUM DECISION AND ORDER RE: IWGA'S MOTION FOR SUMMARY JUDGMENT (Docket No. 23)

B. LYNN WINMILL, Chief Judge.

INTRODUCTION

The Court has before it Plaintiff Idaho Wool Growers Association's Motion for Summary Judgment (Docket No. 23). The Court heard oral argument on June 18, 2009. For the reasons expressed below, the Court will grant the Motion.

BACKGROUND

The Forest Service established two committees-the "RADT Committee" and the "Payette Principles Committee" (collectively "Committees")¹—to study the risk of disease transmission from domestic sheep to bighorn sheep. Plaintiffs Idaho Wool Growers Association ("IWGA") and Dr. Marie S. Bulgin allege that the Committees (in both their formation and operation) violated the Federal Advisory Committee Act ("FACA") and the National Forest Management Act ("NFMA"). In particular, Plaintiffs claim that they were barred from participating in the Committees, resulting in a lack of representation by anyone engaged in domestic sheep management or behavior.

Through this action, Plaintiffs seek (1) a declaration that the Committees were "advisory committees" subject to the procedural mandates of FACA and NFMA, and (2) an order setting aside the Committees' findings and conclusions and precluding the Forest Service's future reliance on the reports generated therefrom. Importantly, Plaintiffs are not attempting to challenge prior grazing permit decisions or, likewise, any earlier decision relating to the Land and Resource Management Plan.

ANALYSIS

Under federal law, the Forest Service must establish and utilize advisory committees according to FACA's and NFMA's provisions. These provisions attempt to ensure that advisory committees to federal agencies are transparent and adequately represent the public interest by imposing a number of requirements on advisory groups regarding such matters as advance notice of committee meetings, the keeping of public availability of minutes, and the composition of advisory group membership. See 5 U.S.C.App. II, §§ 2, 9-14.

The Forest Services does not dispute these objectives. Still, in opposing IWGA's Motion, the Forest Services raises five arguments: (1) Plaintiffs' claims do not relate to a "final agency action" as is required under the Administrative Procedure Act ("APA");² (2) Plaintiffs lack standing under the APA; (3) Plaintiffs' claims are procedurally barred consistent with the principles of res judicata and collateral estoppel; (4) the Committees are exempt from FACA/NFMA in any event; and (5) there is no basis for awarding the relief Plaintiffs' seek, even when assuming FACA's/NFMA's application. See Resp. to Pls.' Mot. for Summ. J., pp. 6-16 (Docket No. 26). Based upon the record supplied to the Court, each of these arguments is without merit.

I. Plaintiffs' Claims Relate to a "Final Agency Action"

To obtain judicial review under the APA, Plaintiffs must challenge a final agency action. See 5 U.S.C. § 704. As the Supreme Court has noted, the word "action" in this context is meant "to cover comprehensively every manner in which an agency may exercise its power," and is not particularly problematic. See Whitman v. American Trucking Assoc., 531 U.S. 457, 478, 121 S.Ct. 903, 149 L.Ed.2d 1 (2001). It is the word "final" that carries more significance. To be "final," an agency action must "mark the consummation of the agency's decisionmaking process," and must either determine "rights or obligations" or occasion "legal consequences." Bennett v. Spear, 520 U.S. 154, 177-78, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997).

Here, the Forest Service appears to acknowledge that the challenged conduct represents agency action, arguing, instead, that such conduct is not sufficiently "final" to warrant judicial review. Specifically, the Forest Service claims that the Committees' formation and corresponding reports are preliminary in nature and cannot possibly affect Plaintiffs' rights or obligations in a way that imposes any legal consequences upon Plaintiffs. See Resp. to Pls.' Mot. for Summ. J., p. 7 (Docket No. 26). These arguments fail.

First, the claim that the Committees' reports represent an initial step toward determining whether and how to amend the Forest Plan (see id.) misses the point. The discrete issue here is unrelated to a forthcoming final environmental impact statement and any later, "final decision," as the Forest Service suggests. See id. ("The Forest Service has issued a draft environmental impact statement for public comment, and will be issuing a final environmental impact statement before making any final decisions."). Rather, Plaintiffs' claims appropriately focus on whether the Forest Service's conduct attendant to the Committees' creation and operation complied with both FACA and NFMA. It is in this latter respect that Plaintiffs' claims are premised—not any future Forest Service determination.³

Second, the Committees' allegedly procedurally-deficient meetings necessarily affected Plaintiffs' legal rights—again, independent of any discretion the Forest Service may have had in accepting or rejecting the Committees' final work-product. That is, the alleged decision to hold meetings without public access to those meetings or to the records created as part of those meetings would have denied Plaintiffs' right of access to that information pursuant to FACA protocols. Thus, the Forest Service's reliance on Fairbanks N. Star Borough v. U.S. Army Corps of Eng'rs, 543 F.3d 586 (9th Cir.2008) is distinguishable from the situation here; the challenged agency action cannot realistically be described as "advisory" when any subsequent Forest Service decision does not speak uniquely to the formation of or proceedings conducted by the Committees. See Judicial Watch, 219 F.Supp.2d at 40 (meetings in violation of FACA "had a legal consequence").

FACA obligates the government to make open and available to the public the meetings and records of advisory committees generally. See supra at p. 871. The Forest Service's alleged failure to do so here is what Plaintiffs allege, nothing more. These circumstances constitute a challenge to a final Forest Service action.

II. Plaintiffs Have Standing Under the APA

"A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action . . . is entitled to judicial review thereof." See 5 U.S.C. § 702; see also Lujan v. National Wildlife Fed., 497 U.S. 871, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990) ("[T]o be `adversely affected or aggrieved' . . ., the plaintiff must establish that the injury he complains of (his aggrievement, or the adverse effect upon him) falls within the `zone of interests' sought to be protected by the statutory provision whose violation forms the legal basis for his complaint" (quoting Clarke v. Securities Indus. Assn., 479 U.S. 388, 396-97, 107 S.Ct. 750, 93 L.Ed.2d 757 (1987) (emphasis in original))). Organizations like the IWGA can assert the standing of their members as well, so long as the particularized injury that standing requires is established. See Resp. to Pls.' Mot. for Summ. J., p. 8 (Docket No. 26) (citing Summers v. Earth Island Inst., ___ U.S. ___, 129 S.Ct. 1142, 1149, 173 L.Ed.2d 1 (2009)).

The Forest Service argues that "Plaintiffs' sole basis for standing is the injury to [Frank Shirts, Jr., Shirts Bros. Sheep, and Carlson Livestock Company], who are pursuing the identical lawsuit in the Shirts' litigation." See Resp. to Pls.' Mot. for Summ. J., p. 8 (Docket No. 26). The Forest Services misunderstands the distinct relief Plaintiffs seek in this action and, in doing so, misdirects its argument regarding standing.

Based upon the record (and confirmed during oral argument), Plaintiffs are not seeking injunctive relief; are not seeking to overturn a final regulation; and are not seeking to set aside any previous grazing decision. See IWGA's Mem. in Supp. of Mot. for Summ. J., p. 19 (Docket No. 23, Att. 1). Plaintiffs' claims relate to the Forest Service's alleged failure to follow the procedural requirements outlined within FACA and NFMA when forming and operating the Committees. See Compl., ¶¶ 77-88 (Docket No. 1). Arguing they were denied their rights to attend, observe and comment, and to access information made available to and/or prepared by/for the Committees (see IWGA's Reply in Supp. of Mot. for Summ. J., p. 5 (Docket No. 32)), Plaintiffs seek only to prevent the use of the Committees' reports going forward. According to the IWGA, it is this denial of rights that represents the predicate injury to confer standing. The Court agrees.

In Lujan v. Defenders of Wildlife, 504 U.S. 555, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992), the Supreme Court recognized that a person accorded a procedural right to protect his interests can assert that right or, put another way, has standing. See id. at 572, n. 7, 112 S.Ct. 2130 (relaxing normal requirements of redressability and immediacy when dealing with alleged violations of procedural rights). Applying this standard, this Court, in Idaho Farm Bureau, 900 F.Supp. 1349, not only determined that "FACA clearly accords Plaintiffs the procedural rights they claim were denied to them,"⁴ but, equally important, that "Plaintiffs' asserted injury, i.e. that the FACA violations resulted in a biased recommendation from...