Montanas for Multiple Use v. Barbouletos

• Decision Date: 31 March 2008
• Docket Number: Civil No. 03-1244 (TFH).
• Citation: 542 F.Supp.2d 9
• Parties: MONTANANS FOR MULTIPLE USE, et al., Plaintiff, v. BARBOULETOS, et al., Defendants, and Swan View Coalition, et al., Defendant-Intervenors.
• Court: U.S. District Court — District of Columbia

542 F.Supp.2d 9

MONTANANS FOR MULTIPLE USE, et al., Plaintiff, v. BARBOULETOS, et al., Defendants, and Swan View Coalition, et al., Defendant-Intervenors.

Civil No. 03-1244 (TFH).

United States District Court, District of Columbia.

March 31, 2008.

COPYRIGHT MATERIAL OMITTED

Robin W. Grover, Law Office of Robin W. Grover, Washington, DC, Mark L. Pollot, Boise, ID, for Plaintiff.

Thomas S. Zia, U.S. Department of Justice, Washington, DC, for Defendants.

Michael Thomas Leahy, Defenders of Wildlife, Washington, DC, for Defendant-Intervenors.

MEMORANDUM OPINION

THOMAS F. HOGAN, Chief Judge.

Pending before the Court is defendants' Motion for Judgment on the Pleadings under Federal Rule of Civil Procedure 12(c). Upon careful review of the motion, plaintiffs' opposition, and the replies thereto, the Court will grant defendants' motion.

I. PROCEDURAL BACKGROUND

Plaintiffs, Montanans for Multiple Use, et al. ("plaintiffs") are fourteen individuals and entities — both private and governmental.¹ Named defendants include Cathy Barbouletos, Forest Supervisor for the Flathead National Forest; Brad Powell, Regional Forester for the Northern Region of the United States Forest Service ("USFS"); Michael Dale Bosworth, Chief of the USFS; the USFS; Ann M. Veneman, United States Secretary of Agriculture; the Department of Agriculture; and Does 1-50, alleged to be employees or agents of the United States or the USFS ("defendants").

Plaintiffs filed a Complaint on June 10, 2003, alleging defendants: (1) failed to take actions mandated by the National Forest Management Act ("NFMA") and failed to fulfill the procedural requirements demanded by the NFMA; (2) failed to take actions and unreasonably delayed actions in violation of the Administrative Procedures Act ("APA"); (3) improperly closed certain roads in violation of the Federal Land Policy Management Act ("FLPMA"); and, (4) failed to submit the proposed management plan to each House of Congress in violation of the Small Business Regulatory Enforcement Fairness Act ("SBREFA"). On August 8, 2003, the Swan View Coalition, the Wildlife Center for Preventing Roads, the Montana Chapter of the Sierra Club, and Defenders of Wildlife ("defendant-intervenors") intervened pursuant to Fed.R.Civ.P. 24(a)(2). Defendants timely filed a Fed.R.Civ.P. 12(c) motion for judgment on the pleadings on November 1, 2004, and seek dismissal of the Complaint in its entirety based on a failure to state a claim and lack of subject matter jurisdiction [Docket No. 31].

II. STATUTORY BACKGROUND

1. National Forest Management Act 16 U.S.C. § 1600, etseq.

Enacted in 1976, the NFMA compelled the Forest Service to develop a Forest Management Plan by September 30, 1985. 16 U.S.C. § 1604(c). Accordingly, the Forest Service adopted and issued its Record and Decision for a Forest Management Plan for Flathead National Forest on January 22, 1986. Compl. ¶ 41. Forest Plans shall be revised "from time to time when the Secretary finds conditions in a unit have significantly changed, but no later than every fifteen years, and in accordance with [public involvement comparable to the development of the initial Management Plan]." 16 U.S.C. § 1604(f)(5)(A)-(B). The NFMA permits the Forest Service to amend the Forest Plan "in any manner whatsoever after final adoption [of the Management Plan]," but "if such amendment would result in a significant change in such plan, [the amendment must be adopted] in accordance with the provisions [governing revision of the Management Plan]." 16 U.S.C. § 1604(f)(4).

2. The Multiple-Use Sustained-Yield Act ("MUSYA") 16 U.S.C. §§ 528-531.

The Organic Administration Act of 1897, 16 U.S.C. § 551, conferred on the Forest Service the authority to "make provisions for the protection against destruction by fire and depredations upon the public forests and national forests" and to "make such rules and regulations and establish such service as will insure the objects of [the national forests], namely, to regulate their occupancy and use and to preserve forests thereon from destruction." Id. The MUSYA clarifies the regulatory authority and makes clear that the Forest Service is to manage national forests for "multiple uses" and "sustained yield," in the combination of uses that "best meet[s] the needs of the American people; making the most judicious use of the land for some or all of these resources or related services over areas large enough to provide sufficient latitude for periodic adjustments in use to conform to changing needs and conditions." 16 U.S.C. § 531(a).

3. The Small Business Regulatory Enforcement Fairness Act 5 U.S.C. 801.

The SBREFA, enacted on March 29, 1996, requires federal agencies to submit a report to both Houses of Congress and to the Government Accounting Office ("GAO") before a rule becomes effective. 5 U.S.C. § 801(a)(1)(A). A major rule may not become effective until 60 days after it is submitted to Congress or published in the Federal Register, whichever is later. 5 U.S.C. § 801(a)(3)(A). Section 805 provides that "[n]o determination, finding, action or omission under this chapter shall be subject to judicial review."

4. R.S. 2477 (43 U.S.C. § 932)

The Mining Law of 1866 provided: "the right of way for the construction of highways over public lands, not reserved for public uses, is hereby granted." Act of July 26, 1866, ch. 262, § 8, 14 Stat. 251, codified at R.S. 2477, recodified at 43 U.S.C. § 932. The Federal Land Policy Management Act ("FLPMA") repealed R.S. 2477 on October 21, 1976, but expressly preserved any valid, then existing rights of way. FLPMA § 701(a), 43 U.S.C. § 1701.

5. Administrative Procedures Act ("APA") 5 U.S.C. §§ 551-559, 701-706.

Agency actions may be judicially reviewed under the APA and set aside if they are arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law. 5 U.S.C. § 706(2)(A). Judicial review of agency action may be reviewed only where: (a) the agency has taken final action; or (b) in limited circumstances, where the agency failed to act and such action was both statutorily mandated and non-discretionary. See Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55, 61-64, 124 S.Ct. 2373, 159 L.Ed.2d 137 (2004).

III. FACTUAL BACKGROUND

The Flathead National Forest occupies roughly 2.3 million acres in northwest Montana. The Forest Service adopted a Forest Plan for the management of the Flathead in 1986 and has since amended it approximately 23 times.² In addition, despite the statutory command to revise the Forest Plan at least every fifteen years, the defendants have not yet completed a revision.³ Defendants' alleged failure to comport with certain statutory proscriptions related to the amendment and revision process forms the basis of Claims One and Two of plaintiffs' Complaint. Claim Three is based on certain road closures allegedly undertaken without proper authority. Finally, plaintiffs allege defendants failed to submit management plans and related matters to Congress. Such failures form the basis of Claim Four.

IV. STANDARD OF REVIEW

A 12(c) motion is appropriately granted when at the close of the proceedings "no material issue of fact remains to be solved, and [the movant] is clearly entitled to judgment as a matter of law." In re United Mine Workers of America Employee Benefit Plans Litigation, 854 F.Supp. 914, 915 (D.D.C.1994) (quoting Haynesworth v. Miller, 820 F.2d 1245, 1249 (D.D.C.1987)). When considering a 12(c) motion to dismiss for lack of subject matter jurisdiction, the Court must accept the facts as alleged by the non-movant and all reasonable inferences drawn therefrom as true. Peters v. National R.R. Passenger Corp., 966 F.2d 1483, 1485 (D.C.Cir.1992) (citing Jablonski v. Pan American World Airways, Inc., 863 F.2d 289, 290-91 (3d Cir.1988)). Where the movant bases the motion on a failure to state a claim upon which relief can be granted, the Court may dismiss based on dispositive issues of law. Neitzke v. Williams, 490 U.S. 319, 326, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989).

V. DISCUSSION

A. Claim One: Violation of the National Forest Management Act ("NFMA")

Plaintiffs allege defendants violated NFMA by: (1) evading the Forest Plan amendment and revision processes by making "substantial changes" to the Flatheaded National Forest Plan without proper procedure; (2) improperly adopting a de facto revision of the Forest Plan through a piecemeal amendment process; (3) failing to undertake the fifteen year revision of the Forest Plan as required by statute; and, (4) improperly closing certain roads when such roads "are required to ensure that adequate protection and care of the Forest can proceed." Compl. ¶ 50.

After the Forest Service adopts a Forest Plan, it may alter the Plan by amendment, significant amendment, or complete revision. The procedural requisites demanded by the NFMA turn on which type of alteration vehicle the Forest Service utilizes. If the alteration is merely an amendment, the Forest Service may adopt the amendment "in any manner whatsoever after final adoption after public notice." 16 U.S.C. § 1604(f)(4). Whereas, if the Forest Service undertakes either a complete plan revision, or an amendment that results in a "significant change," it must undergo a more elaborate process. Id.

For the reasons hereinafter set forth, the Court will dismiss plaintiffs' allegations regarding a de facto revision, improper "substantial amendments," and improper road closures for failure to exhaust administrative remedies. Additionally, the Court will dismiss plaintiffs' allegations regarding the Forest Service's failure to undertake the fifteen year revision for failure to state a claim.

i. Failure to Exhaust Administrative Remedies

"Where Congress specifically mandates, exhaustion is required." McCarthy v. Madigan, 503 U.S. 140, 144, 112 S.Ct. 1081, 117 L.Ed.2d 291 (1992). Accordingly, "statutory exhaustion requirements are mandatory, and the courts are not free to...