Mountain States Legal Foundation v. Glickman

Decision Date23 August 1996
Docket NumberNo. 95-5185,95-5185
Citation92 F.3d 1228,320 U.S. App. D.C. 87
Parties, 320 U.S.App.D.C. 87, 26 Envtl. L. Rep. 21,596 MOUNTAIN STATES LEGAL FOUNDATION, et al., Appellants, v. Dan GLICKMAN, Secretary of Agriculture, et al., Appellees.
CourtU.S. Court of Appeals — District of Columbia Circuit

Appeal from the United States District Court for the District of Columbia (No. 92cv00097).

Todd S. Welch, Denver, CO, argued the cause for appellants. William P. Pendley was on the briefs with him.

Edward J. Shawaker, Attorney, United States Department of Justice, Washington, DC, argued the cause for appellees. Lois J. Schiffer, Assistant Attorney General, Anne S. Almy and Robert L. Klarquist, Attorneys, were on the brief with him.

Douglas L. Honnold and James S. Angell, Oakland, CA, were on the brief for appellees the Wilderness Society, et al.

Before: BUCKLEY, WILLIAMS and HENDERSON, Circuit Judges.

Opinion for the Court filed by Circuit Judge STEPHEN F. WILLIAMS.


Plaintiffs--two non-profit corporations, several Montana and Idaho municipalities, and a lumber company--filed suit attacking the government's choice among several alternatives for timber harvesting in part of a national forest. They claimed that in rejecting alternatives with more harvesting the government disregarded necessary procedures and neglected (or at least gave too short shrift to) important factors, i.e., acted arbitrarily and capriciously. The plaintiffs based their claims on federal statutes governing use of the national forests, as well as on the Administrative Procedure Act, NEPA (the National Environmental Policy Act, 42 U.S.C. §§ 4321 et seq.) and the ESA (Endangered Species Act, 16 U.S.C. §§ 1531 et seq.). The district court dismissed most claims on the pleadings for want of standing, and the rest on summary judgment for want of standing and, in the alternative, on the merits. See Mountain States Legal Foundation v. Madigan, Civ. A. No.92-0097, 1992 WL 613292 (D.D.C.1992); Mountain States Legal Foundation v. Glickman, 922 F.Supp. 628 (D.D.C.1995). We affirm, though for the most part on the merits rather than on standing.

* * *

In 1972 the Forest Service discovered that the mountain pine beetle was infesting and killing a number of lodgepole pine stands in the Upper Yaak River drainage region of the Kootenai National Forest in Montana. Since dead trees rapidly lose their commercial value and contribute to wildfire risk, the Forest Service sought to accelerate timber harvesting in the region and began construction and reconstruction of logging roads. The Ninth Circuit found that the different road building and logging operations going on in the Upper Yaak were "connected actions" for purposes of NEPA, and thus were of enough significance to require an Environmental Impact Statement. It enjoined further operations pending completion of the statement. See Save the Yaak Committee v. Block, 840 F.2d 714 (9th Cir.1988).

The required EIS, finished in 1990, discussed the environmental, social, and economic effects of 14 alternate plans with varying levels of timber harvest and road construction. See United States Forest Service, Upper Yaak Final Environmental Impact Statement (April 20, 1990) ("FEIS"). The FEIS preferred "Alternative 9B," which was among the choices allowing the least logging. But the Forest Supervisor for the Kootenai National Forest picked Alternative 9A, which allowed considerably more logging, on the grounds that it would "provide the highest timber harvest level while meeting the requirements of the ESA." Record of Decision at 2 (August 24, 1990).

Plaintiffs filed suit in district court after the Regional Forester upheld the Supervisor's selection. They would have the Forest Service allow more logging, specifically championing Alternative 6, which projects sales of 151 million board feet ("MMBF") of lumber, compared to Alternative 9A's 90 MMBF. Besides the Administrative Procedure Act, the ESA and NEPA, they invoke three statutes guiding the administration of the national forests: the Organic Act, 16 U.S.C. §§ 473-82, 551, the Multiple-Use Sustained-Yield Act ("MUSYA"), 16 U.S.C. §§ 528 et seq., and the Resources Planning Act as amended by the National Forest Management Act ("NFMA"), 16 U.S.C. §§ 1600 et seq.

Although several of plaintiffs' claims are procedural, their significance depends on the plaintiffs' substantive theories. These appear to be twofold. First, plaintiffs believe that the selection of Alternative 9A makes an arbitrary trade-off as between the welfare of the grizzly bear and its habitat as opposed to the welfare of people who make a living through the timber industry, unduly favoring the grizzly. Second, they say that the timber left in place under Alternative 9A poses an unnecessarily high risk of catastrophic wildfire, endangering the grizzly bear, the forest itself, and people living nearby. Before we discuss the merits of the claims, we first examine plaintiffs' standing to bring them.

I. Standing

Plaintiffs must establish both constitutional and prudential standing. Because they assert quite a variety of injuries, we think it worthwhile to make the point--perhaps obvious, but on which we've found no cases--that on any given claim the injury that supplies constitutional standing must be the same as the injury within the requisite "zone of interests" for purposes of prudential standing. For example, if plaintiffs established an interest sufficiently aligned with the purposes of the ESA for prudential standing, but failed to show (for example) an adequate causal relation between the agency decision attacked and any injury to that interest, we could not adjudicate the claim--even if plaintiffs had constitutional standing with respect to some other interest that was outside the requisite "zone." With this in mind, we first examine whether plaintiffs allege injuries adequate for constitutional standing, and then inquire whether at least one of those injuries can be tied to interests protected by each statute at issue.

For each claim, if constitutional and prudential standing can be shown for at least one plaintiff, we need not consider the standing of the other plaintiffs to raise that claim. See Watt v. Energy Action Educational Foundation, 454 U.S. 151, 160, 102 S.Ct. 205, 212, 70 L.Ed.2d 309 (1981); Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 264 n. 9, 97 S.Ct. 555, 562 n. 9, 50 L.Ed.2d 450 (1977).

A. Constitutional standing

The "irreducible constitutional minimum" of standing contains three elements:

First, 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. Second, there must be a causal connection between the injury and the conduct complained of--the injury has to be fairly ... traceable to the challenged action of the defendant.... Third, 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, 560-61, 112 S.Ct. 2130, 2136, 119 L.Ed.2d 351 (1992) (internal quotations and citations omitted). See also Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., 454 U.S. 464, 472, 102 S.Ct. 752, 758-59, 70 L.Ed.2d 700 (1982). We find that the plaintiffs have set forth facts showing those elements in two independent ways, each in enough (unrebutted) detail to withstand a motion for summary judgment.

1. Injury to economic interests from curtailment of logging

Plaintiff Owens & Hurst Lumber Company is located in Eureka, Montana, and is "almost totally dependent on federal timber for its raw materials, about one third of which comes from the upper Yaak River drainage." First Amended Complaint p 12 at 5-6. The owner of the company averred that after the Forest Service's announced plans to allow logging of 300 MMBF of lumber from the Yaak Area were postponed by "appeals" (presumably the litigation resulting in Save the Yaak Committee's injunction), the company's mill was temporarily closed and twenty-five workers were laid off. Declaration of James L. Hurst p 4 at 2. Given the company's historic dependence upon the Upper Yaak for its supply, together with the disruptive- effect of the past shutdown, logging cutbacks in the Upper Yaak clearly inflict injury on the firm's economic well-being, which an order reducing the cutbacks would redress. And even forcing the Forest Service to rethink the issue would have some chance of affecting the cutbacks. See Defenders of Wildlife, 504 U.S. at 572 n. 7, 112 S.Ct. at 2142 n. 7 (for procedural default, plaintiffs need not show that the default necessarily caused the injury or that its correction would necessarily redress the injury).

The district court, after reciting Lujan's standard for constitutional standing, rejected any economic injuries as the basis for "injury in fact" because "the Organic Act, MUSYA, and NFMA do not provide a legally cognizable economic interest in a specified level of timber harvest." Mountain States Legal Foundation v. Glickman, 922 F.Supp. 628, 631-32 (D.D.C.1995), citing Region 8 Forest Serv. Timber Purchasers v. Alcock, 993 F.2d 800, 808 (11th Cir.1993) (denying plaintiffs' "right" to future timber but seeming to rest denial of standing primarily on speculative relation between decision attacked and any future curtailment of supply).

We take it that the district court's phrase "legally cognizable" draws upon the Lujan Court's uses of similar phrases to modify the necessary "injury," e.g., "legally protected," 504 U.S. at 560, 112 S.Ct. at 2136, and "cognizable," id. at 562-63, 112 S.Ct. at 2137. While we are unsure what function the Court intended for these modifiers, we are quite confident it did not intend to restore the "legal right" tes...

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