League of Wilder. Defenders-Blue Moun. v. Bosworth

• Decision Date: 27 July 2005
• Docket Number: No. CV04-405-AS.,CV04-405-AS.
• Citation: 383 F.Supp.2d 1285
• Parties: LEAGUE OF WILDERNESS DEFENDERS — BLUE MOUNTAIN BIODIVERSITY PROJECT, Plaintiff, v. Dale BOSWORTH, in his official capacity as Chief of the United States Forest Service; and United States Forest Service, an agency of the United States Department of Agriculture, Defendants, and Sisters Forest Planning Committee, an Oregon non-profit corporation; and Friends of the Metolius, an Oregon non-profit corporation, Intervenor-Defendants.
• Court: U.S. District Court — District of Oregon

Page 1285

383 F.Supp.2d 1285

LEAGUE OF WILDERNESS DEFENDERS — BLUE MOUNTAIN BIODIVERSITY PROJECT, Plaintiff, v. Dale BOSWORTH, in his official capacity as Chief of the United States Forest Service; and United States Forest Service, an agency of the United States Department of Agriculture, Defendants, and Sisters Forest Planning Committee, an Oregon non-profit corporation; and Friends of the Metolius, an Oregon non-profit corporation, Intervenor-Defendants.

No. CV04-405-AS.

United States District Court, D. Oregon.

July 27, 2005.

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David A. Stewart, Jeffrey Long & Associates, Robert C. Kline, Jr., Attorney at Law, Portland, OR, for Plaintiff.

Jeffrey K. Handy, United States Attorney's Office, Val J. Black, U.S. Department of Agriculture Office of General Counsel, Portland, OR, Paul D. Dewey, Bend, OR, for Defendants.

OPINION AND ORDER

ASHMANSKAS, United States Magistrate Judge.

Plaintiff League of Wilderness Defenders — Blue Mountain Biodiversity Project (LOWD) brings this action alleging that defendants Dale Bosworth and the United States Forest Service (together "Forest Service") violated the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321 et seq., and the National Forest Management Act (NFMA), 16 U.S.C. § 1600 et seq., in developing and approving the Final Environmental Impact Statement for the Metolius Basin Forest Management Project (Metolius Project) on the Sisters Range District of the Deschutes National Forest. The matters now before the court are LOWD's Motion for Summary Judgment and Injunctive Relief (No. 35) and the Forest Service's Motion for Summary Judgment (No. 51). Intervenor-Defendants Sisters Forest Planning Committee and Friends of the Metolius have each filed memoranda in opposition to LOWD's Motion.

For the reasons that follow, LOWD's Motion for Summary Judgment is denied, and the Forest Service's Motion for Summary Judgment is granted.

BACKGROUND

The Forest Service issued a Final Environmental Impact Statement (EIS) and Record of Decision (ROD) for the Metolius Project on July 2, 2003. On September 1, 2003, LOWD filed an administrative appeal of the Acting Supervisor's decision to approve the Metolius Project. LOWD's appeal was denied on October 17, 2003.

LOWD then filed this action for judicial review of the Forest Service's final agency action under the Administrative Procedure Act (APA), 5 U.S.C. § 551, et seq. 5 U.S.C. § 702. LOWD alleges the Forest Service violated NEPA by: (1) failing to provide data or scientific support for the proposal to reduce stand density in order to reduce the risk of wildfire and failing to consider credible science that runs counter to that proposal; (2) failing to address the Metolius Project, Cache Mountain and Eyerly wildfires, the Eyerly Fire Salvage Project, and the McCache Vegetation Management Project in the same EIS; and (3) failing to address significant new information, specifically the 2003 Link and B & B complex wildfires, in a supplemental EIS. LOWD also alleges that the Forest Service violated NFMA by: (1) failing to analyze and discuss the impact on management indicator species; (2) failing to provide for the viability of management indicator species; and (3) failing to comply with soil standards set forth in the Deschutes National Forest Land Resource Management Plan (LRMP).

LOWD seeks a declaratory judgment that the Metolius EIS violates NEPA and NFMA and an injunction on the "commercial portions" of the Metolius Project, "including advertising, offering for sale, or awarding contracts for the commercial portions of the sale." Complaint at ¶ F.

STANDING

In order to have standing under Article III of the Constitution, a plaintiff must satisfy a three-part test: (1) "the plaintiff must have suffered an injury in fact — an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical;" (2) "there must be a causal connection between the injury and the conduct complained of;" and (3) "it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision." Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (citations omitted).

Where, as here, plaintiff is an organization, plaintiff must show that: (1) "its members would otherwise have standing to sue in their own right;" (2) "the interests at stake are germane to the organization's purpose;" and (3) "neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit." Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167, 180-181, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000).

"The party invoking jurisdiction bears the burden of establishing these elements." Lujan, 504 U.S. at 561, 112 S.Ct. 2130. At the summary judgment stage, plaintiff may not rely on allegations in the complaint, but must "set forth by affidavit or other evidence specific facts, which for purposes of the summary judgment motion will be taken to be true." Id. (citations omitted). If the facts are controverted, plaintiff must establish the truth of those facts or other adequate allegations. Id. (citation omitted); Legal Aid Soc. of Alameda County v. Brennan, 608 F.2d 1319, 1333 n. 26 (9th Cir.1979) ("To invoke federal jurisdiction, plaintiffs must allege facts adequate to confer standing; to obtain a judgment and remedy, plaintiffs must establish the truth of these or other adequate allegations.").

LOWD does not meet the requirements for standing because LOWD has failed to establish that any of its members have suffered an injury in fact.

In Lujan, environmental organizations challenged a Bureau of Land Management regulation. The Supreme Court held that the plaintiffs did not have standing because the affidavits submitted by plaintiffs' members failed to establish that they would be directly affected by the challenged agency action apart from their special interest in their respective organizations. 504 U.S. at 563-64, 112 S.Ct. 2130. The Court stated that the injury in fact test requires that the party seeking review must have suffered an individual injury:

"Of course, the desire to use or observe an animal species, even for purely esthetic purposes, is undeniably a cognizable interest for purpose of standing. But the `injury in fact' test requires more than an injury to a cognizable interest. It requires that the party seeking review be himself among the injured. To survive the Secretary's summary judgment motion, respondents had to submit affidavits or other evidence showing, through specific facts, not only that listed species were in fact being threatened by funded activities abroad, but also that one or more of respondents' members would thereby be directly affected apart from their special interest in th[e] subject."

Id. at 563, 112 S.Ct. 2130 (internal quotations omitted).

In Laidlaw, the plaintiffs satisfied the injury in fact requirement by offering affidavits and deposition testimony from five members, each stating with specificity that the member lived near the affected area, the member had used the affected area for recreational purposes in the past, and the member's use and enjoyment of the affected area was impacted by the challenged government action. 528 U.S. at 181-182, 120 S.Ct. 693. For example, one member averred and testified,

"that he lived a half-mile from Laidlaw's facility; that he occasionally drove over the North Tyger River, and that it looked and smelled polluted; and that he would like to fish, camp, swim, and picnic in and near the river between 3 and 15 miles downstream from the facility, as he did when he was a teenager, but would not do so because he was concerned that the water was polluted by Laidlaw's discharges."

Id. at 181-82, 120 S.Ct. 693.

LOWD has presented a declaration by Karen Coulter, the Co-Director of the Blue Mountains Biodiversity Project. In her declaration, Coulter states that: (1) she has spent time hiking and recreating in the Metolius Project area; (2) she appreciates the old growth trees and high quality riparian areas; and (3) she is concerned about the impact of the Metolius Project on old growth habitat, larger trees, water quality, and Peck's Penstemon in the Metolius Basin. This type of averment does not satisfy the injury in fact requirement. Coulter's declaration establishes her concern for the environmental consequences of defendant's actions, but fails to establish that she would be directly affected. "The relevant showing for purposes of Article III standing ... is not injury to the environment but injury to the plaintiff." Laidlaw, 528 U.S. at 181, 120 S.Ct. 693.

LOWD argue that the exact same showing was made in Methow Forest Watch v. United States Forest Service, 2005 WL 119590 (D.Or.), where Judge King held that the plaintiffs had met the standing requirements. The court disagrees. Based upon the representation of counsel at oral argument, the court understands that in Methow Forest Watch, the plaintiffs submitted affidavits stating that their individual recreational and aesthetic interests would be harmed. Here, the Coulter declaration fails to establish that individualized injury.

Much of Coulter's declaration is devoted to detailing her involvement in the administrative process leading up the Metolius Project EIS. LOWD does not explain to the court, or cite authority explaining, how involvement in the administrative process creates standing. LOWD may be attempting to make an argument for standing based on procedural rights. That argument fails, however, because standing based on procedural rights still requires injury in fact. Lujan, 504 U.S. at 573-74, 112 S.Ct. 2130.

In Lujan, the plaintiffs argued, and the court of appeals held, that the plaintiffs had standing because they had suffered a ...