Newton County Wildlife Ass'n v. U.S. Forest Service

• Decision Date: 06 August 1997
• Docket Number: 96-3463,Nos. 96-1994,s. 96-1994
• Citation: 113 F.3d 110
• Parties: , 28 Envtl. L. Rep. 20,020 NEWTON COUNTY WILDLIFE ASSOCIATION; Sierra Club; Kent Bonar; Herb Culver; Howard Kuff; Tom McKinney; Jerry Williams, Plaintiffs--Appellants, v. UNITED STATES FOREST SERVICE; George Rogers; Gregory A. Hatfield; Robert C. Joslin; Lynn C. Neff, Defendants--Appellees, Arkansas Forestry Association, et al., Intervenors--Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 110

113 F.3d 110

44 ERC 2017, 28 Envtl. L. Rep. 20,020

NEWTON COUNTY WILDLIFE ASSOCIATION; Sierra Club; Kent Bonar; Herb Culver; Howard Kuff; Tom McKinney Jerry Williams, Plaintiffs--Appellants, v. UNITED STATES FOREST SERVICE; George Rogers; Gregory A Hatfield; Robert C. Joslin; Lynn C. Neff Defendants--Appellees Arkansas Forestry Association, et al., Intervenors--Appellees.

Nos. 96-1994, 96-3463.

United States Court of Appeals, Eighth Circuit.

Submitted Dec. 12, 1996.

Decided May 6, 1997.

Rehearing and Suggestion for Rehearing En Banc Denied Aug.

6, 1997. ^*

Stephan C. Volker, San Francisco, CA, argued for plaintiffs-appellants (John Holleman, Bryant AR, on the brief).

David C. Shilton, Washington, DC, argued for defendants-appellees (Robert L. Klarquist and Karen M. Dicke, on the brief). J. Michael Klise, Washington, DC, argued for intervenors-appellees (Steven P. Quarles and Thomas Lundquist, Washington, DC, and Searcy W. Harrell, Jr., Camden, AR, on the brief).

Before FAGG, FLOYD R. GIBSON, and LOKEN, Circuit Judges.

LOKEN, Circuit Judge.

Newton County Wildlife Association, the Sierra Club, and certain individuals (collectively "the Wildlife Association") sued the United States Forest Service and four of its employees (collectively the "Forest Service") seeking judicial review of four timber sales in the Ozark National Forest. Parties favoring timber harvesting intervened to support the Forest Service. The Wildlife Association filed sequential motions to preliminarily enjoin the sales as violative of the Wild and Scenic Rivers Act ("WSRA"), 16 U.S.C. §§ 1271 et seq., and the Migratory Bird Treaty Act ("MBTA"), 16 U.S.C. §§ 703 et seq. The district court ¹ separately denied each motion, and the Wildlife Association separately appealed those orders. We consolidated the appeals and now affirm.

I. WSRA Issues.

Enacted in 1968, WSRA authorizes Congress or a responsible federal agency to designate river segments that possess "outstandingly remarkable" environmental or cultural values as "components of the national wild and scenic rivers system." 16 U.S.C. §§ 1271, 1274. The responsible federal agency, here the Forest Service, must establish detailed boundaries for each designated segment, including an average of not more than 320 acres of land per mile along both sides of the river. § 1274(b). Under a 1986 amendment, the agency must also prepare a "comprehensive management plan" within three fiscal years after a river segment is designated. The plan "shall address resource protection, development of lands and facilities, user capacities, and other management practices necessary and desirable to achieve the purposes of [WSRA]." § 1274(d)(1).

In 1992, Congress designated segments of six rivers within the Ozark National Forest. The Forest Service's three-year deadline for completing comprehensive management plans for these segments (the "Plans") was September 30, 1995. It is undisputed that the Plans were not completed on time. Therefore, the Wildlife Association argues that logging under the four timber sales must be preliminarily enjoined until the agency complies with this statutory mandate.

The Forest Service issued final agency actions approving the four timber sales between August 23, 1994, and September 12, 1995, before the agency's WSRA planning deadline. The Wildlife Association fails to relate this subsequent planning delinquency to judicial review of the timber sales. It relies upon cases in which plans or studies were a statutory precondition to the agency actions under review. See Kleppe v. Sierra Club, 427 U.S. 390, 398-402, 96 S.Ct. 2718, 2723-27, 49 L.Ed.2d 576 (1976) (National Environmental Policy Act), LaFlamme v. F.E.R.C., 852 F.2d 389, 402 (9th Cir.1988) (Federal Power Act), and Thomas v. Peterson, 753 F.2d 754, 763-64 (9th Cir.1985) (Endangered Species Act). But WSRA does not mandate completion of § 1274(d)(1) plans before timber sales may be approved. Therefore, the Forest Service did not violate WSRA by approving timber sales during the planning process. That being so, the agency was not required to suspend on-going implementation of the timber sales when it later failed to complete the Plans on time. Absent specific statutory direction, an agency's failure to meet a mandatory time limit does not void subsequent agency action. See Brotherhood of Ry. Carmen v. Pena, 64 F.3d 702, 704 (D.C.Cir.1995); Kinion v. United States, 8 F.3d 639, 644 (8th Cir.1993).

Moreover, because the preparation of WSRA Plans was not a precondition to approving the timber sales, a reviewing court may not enjoin or set aside the sales based upon the failure to prepare the Plans. Although the Forest Service may well have WSRA compliance obligations in approving timber sales (an issue not before us), the agency has substantial discretion in deciding procedurally how it will meet those obligations. Cf. Sierra Club v. Cargill, 11 F.3d 1545, 1548 (10th Cir.1993). The Forest Service maintains land and resource management plans for each national forest. Those plans "provide for multiple use and sustained yield of [forest] products and services ... [and] coordination of outdoor recreation, range, timber, watershed, wildlife and fish, and wilderness." 16 U.S.C. § 1604(e)(1); see 36 C.F.R. Part 219. In 1994, the Forest Service amended its management plan for the Ozark National Forest to take into account the 1992 WSRA designations. In addition, the agency prepared an environmental assessment before approving each of the timber sales in question. Had the Forest Service relied on WSRA Plans as evidencing its compliance with WSRA in approving the timber sales, then we would carefully examine that rationale. But absent a specific statutory directive, we would usurp the agency's procedural autonomy if we compelled it to channel its compliance efforts into a particular planning format. ²

Finally, a preliminary injunction would be inappropriate in this case because the Forest Service contends that the four timber sales lie outside the boundaries of the WSRA-designated river segments, and the Wildlife Association has not refuted that contention. The district court avoided this issue by ruling that WSRA plans must encompass federally controlled areas that lie outside but may affect a designated river segment. On appeal, the Forest Service argues that WSRA plans need only encompass lands lying within a designated segment and therefore its failure to timely prepare the Plans cannot affect the timber sales in question. We agree. ³

Under WSRA, each designated river segment becomes a "component" of the national system. § 1274(a). Following designation, the responsible agency defines the boundaries of "each component," determining how much land adjacent to the river is included in the designation. § 1274(b). At that point, the agency "charged with the administration of each component ... shall prepare a comprehensive management plan for such river segment to provide for the protection of the river values." § 1274(d)(1). In our view, the plain meaning of that provision limits the planning requirement to the boundaries of the designated river segment, because it is the designated "segment" that becomes a "component" of the national system. This reading is confirmed by § 1281(a) of the Act, which links agency planning and administration to the designated component. ⁴ Because the Forest Service may limit WSRA plans to lands lying within designated river segments, failure to timely prepare the Plans cannot be a basis for enjoining timber sales on lands lying outside any designated area.

If a plaintiff's legal theory has no likelihood of success on the merits, preliminary injunctive relief must be denied. See Pottgen v. Missouri State High Sch. Activities Ass'n, 40 F.3d 926, 931 (8th Cir.1994). Therefore, the district court properly denied the Wildlife Association's motion to preliminarily enjoin the timber sales because of the Forest Service's failure to complete WSRA Plans. ⁵

II. MBTA Issues.

The Wildlife Association seeks judicial review of the timber sales under the Administrative Procedure Act, 5 U.S.C. §§ 701 et seq. As a matter of pleading, APA review is a single "claim for relief" under Fed.R.Civ.P. 8(a). But the Wildlife Association's amended complaint made this lawsuit unnecessarily convoluted by improperly pleading a separate "Claim for Relief" under each federal statute that, in the Wildlife Association's view, the Forest Service has violated. Thus, its Sixth Claim for Relief alleged that "approval of the Buffalo River Timber Sales violates the Migratory Bird Treaty Act (16 U.S.C. § 703 et seq.)." After the district court denied preliminary injunctive relief under WSRA, the Wildlife Association filed a second motion for a preliminary injunction, seeking to enjoin implementation of the timber sales on the ground that the Forest Service failed to obtain an MBTA "special purpose" permit from the United States Fish and Wildlife Service. The district court denied the motion, concluding that it does not have jurisdiction over a separate MBTA claim. One week later, the court granted the Forest Service partial summary judgment and dismissed the Wildlife Association's Sixth Claim for Relief. The Wildlife Association appeals both orders.

The Wildlife Association argues that the APA confers jurisdiction to grant injunctive relief "under the MBTA." The district court correctly concluded that the Wildlife Association's MBTA claim is barred by Defenders of Wildlife v. Administrator, E.P.A., 882 F.2d 1294 (8th Cir.1989). In Defenders, plaintiffs alleged that the agency violated MBTA when it terminated a proceeding commenced under another statute, known as FIFRA, to cancel strychnine pesticide registrations. After noting that MBTA does not create private rights of action, we rejected plaintiffs' assertion that the APA conferred jurisdiction to consider this claim. "Although the APA may state the scope of review, 5...