Pacific Rivers Council v. Robertson, Civ. No. 92-1322-MA.

• Citation: 854 F. Supp. 713
• Decision Date: 25 October 1993
• Docket Number: Civ. No. 92-1322-MA.
• Parties: PACIFIC RIVERS COUNCIL, et al., Plaintiffs, v. F. Dale ROBERTSON, et al., Defendants.
• Court: United States District Courts. 9th Circuit. United States District Court (Oregon)

854 F. Supp. 713

PACIFIC RIVERS COUNCIL, et al., Plaintiffs, v. F. Dale ROBERTSON, et al., Defendants.

Civ. No. 92-1322-MA.

United States District Court, D. Oregon.

October 25, 1993.

Victor Sher, Todd True, Adam Berger, Sierra Club Legal Defense Fund, Seattle, WA, for plaintiffs.

Thomas Lee, Portland, OR, Fred Disheroon, James C. Kilborne, Elinor Colbourn, U.S. Dept. of Justice, Washington, DC, for defendants.

Mark Rutzick, Preston Thorgrimson Shidler Gates & Ellis, Portland, OR, for defendants-intervenors Northwest Forest Resource Council, et al.

Bruce Smith, Rosholt, Robertson & Tucker, Boise, ID, for defendants-intervenors Intermountain Forest Industry Ass'n.

AMENDED OPINION

MARSH, District Judge.

On October 21, 1993, the parties filed a joint motion for clarification of my opinion issued on October 6, 1993. The motion is GRANTED and my amended opinion follows.

Plaintiffs filed this action against defendants seeking declaratory and injunctive relief on grounds that the Forest Service (USFS) has violated the Endangered Species Act (ESA) by failing to engage in § 7 consultations with the NMFS on two Land Resource Management Plans (LRMPs)¹ for the Wallowa-Whitman and Umatilla forests regarding effects of the LRMPs on threatened Snake River chinook salmon. The forest plans were adopted in 1990, the salmon were listed in 1992. Plaintiffs assert three claims for relief against the USFS: (1) violation of the ESA and APA by failing to consult with NMFS over the Wallowa-Whitman and Umatilla LRMPs; (2) violation of the ESA and APA by failing to ensure that adoption and implementation of the Umatilla and Wallowa-Whitman LRMPs are not likely to jeopardize the species; and (3) violation of ESA § 9 and the APA by "taking" listed species without an incidental take permit.

Plaintiffs now move for partial summary judgment on their first claim seeking an injunction against the continuation of all activity which has been identified by the forest service as activity which "may affect" listed salmon species. Defendants and defendants-intervenors (hereinafter "defendants," except where noted) have filed cross-motions for summary judgment or for dismissal on 5 grounds: (1) plaintiffs lack standing; (2) failure to state a claim; (3) failure to exhaust administrative remedies; (4) the LRMPs are not "agency actions" for which ESA consultation is required; and (5) mootness — that consultations on "anticipated" amendments are underway.

On July 12, 1993, during oral argument on the motions, I directed several questions to the parties regarding: (1) the scope of plaintiffs' requested relief and what activity they specifically sought to stay by injunction; (2) what practical effect compliance with the ESA would have on the LRMP beyond ESA compliance on site-specific activities and anticipated "conservation strategies" for listed chinook; (3) the scope, purpose and actual inpractice use of the LRMPs by the Forest Service; and (4) what the Forest Service is actually doing now and under what time-line.

Plaintiffs and defendants submitted supplemental briefs and responses pursuant to my requests and both did an excellent job of providing direct, concise responses to my questions for more background information. In addition, the parties submitted a copy of the entire Wallowa-Whitman LRMP and the biological opinion prepared for the Tucannon River Subbasin which have aided my understanding of the issues.²

Discussion

a. Standing

Section 11 of the ESA, 16 U.S.C. § 1540(g), provides that "any person" may maintain an action against another person, or against a government entity, for violations of the ESA.³ Parties seeking to invoke federal jurisdiction under the ESA must allege the following: (1) an injury in fact; (2) a causal connection between the injury and the challenged action; and (3) that the injury is likely to be redressed by the relief sought. Lujan v. Defenders of Wildlife, ___ U.S. ___, ___, 112 S.Ct. 2130, 2136, 119 L.Ed.2d 351 (1992).

Plaintiffs are five non-profit organizations interested in monitoring and protecting public lands, waters and wildlife. Plaintiffs claim that their members "derive recreational, scientific and aesthetic benefit" from the existence of listed Snake River chinook through observation, study and recreational fishing within the Umatilla and Wallowa-Whitman National Forests.⁴ Plaintiffs contend that their interests in the listed species have been adversely affected by defendants' failure to consult on the impacts of the LRMPs on the listed species.

Defendants have no dispute with plaintiffs' interest in the listed species in the Wallowa-Whitman and Umatilla forests,⁵ but contend that plaintiffs have failed to allege facts sufficient to show "causation" and "redressability," — i.e. if the plaintiffs' requested relief is ordered, it will have no impact on the listed species because of the broad programmatic nature of the LRMPs.

The heart of defendants' challenge to plaintiffs' standing relates to the underlying merits of plaintiffs' claim. Plaintiffs have countered these arguments by proffering declarations from Jonathan Rhodes, an hydrologist with the Columbia River Inter-Tribal Fish Commission (CRITFC), and Dale McCullough, a fishery scientist with CRITFC. Supported by these declarations, plaintiffs contend that the standards and guidelines in the LRMP are either "too vague" to provide sufficient direction to protect listed chinook habitat, ignore essential aspects of listed salmon habitat, and, where the LRMPs provide specific minimum guidelines (such as to 100 foot riparian "buffer zone"), such guidelines are an inappropriate "floor" to adequately sustain the habitat of the listed species. Further, plaintiffs contend that site-specific consultations would fail to ameliorate potential harm because, in part, such consultations fail to adequately consider long-range future effects and have a relatively narrow geographic focus.

The Ninth Circuit has rejected similar arguments by government defendants regarding the "nexus" required between an alleged procedural violation in the adoption of a management program and harm which could flow from actions authorized under a program. See Seattle Audubon Society v. Espy, 998 F.2d 699, 703 (9th Cir.1993) (allegation that interagency strategy failed to consider new information about spotted owl in violation of NEPA and NFMA constituted sufficient "harm" to group's interest in owl to satisfy standing causation requirement); Portland Audubon, 998 F.2d at 708 (standing under NEPA established since Timber Management Plans "necessarily drive the location and volume" of decisions which "culminate" in timber sales); see also Idaho Conservation League v. Mumma, 956 F.2d 1508, 1515 (9th Cir.1992) (that potential injury may result from chain of events does not doom standing, otherwise programmatic authorization could escape review). Thus, while defendants are technically correct that an LRMP itself should have no direct impact upon listed salmon, actions authorized under an LRMP — such as timber harvesting or grazing — may adversely affect the species.

For the limited purpose of establishing standing, I find that the declarations of plaintiffs' members adequately support the existence of an "injury-in-fact," and that the three declarations of Jonathan Rhodes, and portions of the declarations of Dale McCullough adequately allege causation — that the Forest Service's failure to initiate § 7 consultation procedures with respect to the LRMPs may harm listed species, and redressability — that compliance with the ESA may ameliorate such harm.⁶

b. The LRMPs

(1) What is an LRMP?

Under National Forest Management Act, 16 U.S.C. § 1604 (NFMA), the USFS is directed to prepare land and resource management plans for individual units of the national forest system which serve as guides to the agency's management for 10-15 years. 16 U.S.C. § 1604(f)(5). A forest plan must provide for multiple use and sustained yield of goods and services from the national forest maximizing long term net public benefits in an environmentally sound manner; meet specified requirements covering a wide-range of forest resources and activities including wildlife; provide adequate fish and wildlife habitat to maintain viable populations of existing native vertebrate species; and "include measures for preventing the destruction or adverse modification of critical habitat for threatened and endangered species." 36 C.F.R. 219.1(a); 219.27(6) & (8); see also Wallowa-Whitman LRMP, 2-9. The USFS is directed to select "management indicator species (MIS)," which may or may not be listed species, and thereafter set objectives within the forest plans for maintaining and/or improving MIS habitats. 36 C.F.R. § 219.19(a) and 219.20. Every resource plan, permit, contract, or any other document pertaining to the use of the forest must be consistent with the Forest Plan. 16 U.S.C. § 1604(i).

The LRMPs at issue in this case are designed to "guide all natural resource management standards and guidelines," for the Umatilla and Wallowa-Whitman National Forests "for the next 10 to 15 years." The Wallowa-Whitman LRMP was approved on April 23, 1990 and the Umatilla LRMP was approved on June 11, 1990 — approximately 2 years prior to the listing of the Snake River chinook salmon. The plans include multiple use goals, activity management and maximum forest-wide allowable timber sale quantity — "ASQ."⁷ The "Management Goals" section notes social and economic needs and a desire to generally preserve, protect and enhance "values of the forest's wilderness" and to "double" anadromous fish runs in the Columbia River Basin by the year 2000.

The LRMP section entitled "Forest-wide Standards and Guidelines" covers a broad range of areas including cultural resources, soil quality, recreation, and timber and range management. Anadromous fish and fish habitat are addressed in sections covering watersheds, threatened, endangered...