Pub. Lands For People Inc. v. United States Dep't of Agriculture, No. CIV. S-09-1750 LKK/JFM

• Court: United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
• Writing for the Court: LAWRENCE K. KARLTON
• Citation: 733 F.Supp.2d 1172
• Parties: PUBLIC LANDS FOR THE PEOPLE, INC., et al., Plaintiffs, v. UNITED STATES DEPARTMENT OF AGRICULTURE, et al., Defendants.
• Docket Number: No. CIV. S-09-1750 LKK/JFM
• Decision Date: 05 August 2010

733 F.Supp.2d 1172

PUBLIC LANDS FOR THE PEOPLE, INC., et al., Plaintiffs,
v.
UNITED STATES DEPARTMENT OF AGRICULTURE, et al., Defendants.

No. CIV. S-09-1750 LKK/JFM.

United States District Court,
E.D. California.

Aug. 5, 2010.

733 F.Supp.2d 1174

David Young, Law Offices of David Young, Los Angeles, CA, for Plaintiffs.

733 F.Supp.2d 1175

Jason Alan Hill, Govt., Washington, DC, Thomas K. Snodgrass, Govt, United States Department of Justice, Denver, CO, Lisa Tamara Belenky, San Francisco, CA, for Defendants.

ORDER

LAWRENCE K. KARLTON, Senior District Judge.

In 2008, the United States Forest Service adopted a "Travel Management Plan" for the Eldorado National Forest ("2008 Plan" and "ENF"). This plan limits motorized vehicle use of Forest Service roads and generally prohibits cross-country motorized travel.

Plaintiffs are miners. They challenge the 2008 Plan under twenty causes of action, most of which invoke several theories of liability. Broadly speaking, plaintiffs argue that the plan interferes with access to mining claims in the ENF. Defendants are the United States Department of Agriculture, its subsidiary the United States Forest Service, and four federal officials.¹

Defendants move for a more definite statement as to plaintiffs' first claim, which alleges that defendants violated the National Environmental Policy Act. Defendants separately move to dismiss claims II through XVIII and XX. Defendants do not challenge claim XIX, which is a blanket request for injunctive relief, and plaintiffs do not oppose dismissal of claim XV. For the reasons stated below, the court grants both of defendants' motions.

I. Background

A. Plaintiffs

Plaintiff Public Lands for the People is a nonprofit "nationwide organization of miners." Compl. ¶ 40. The eight individual plaintiffs are all members of this organization. Only four plaintiffs are alleged to own mining claims within Eldorado National Forest, although a fifth allegedly "uses" the forest and a sixth allegedly sold a claim on account of the challenged plan. Compl. ¶ ¶ 41-47. The last two individual plaintiffs allege that they have "expressed interest and desire to prospect and mine in the ENF." Compl. ¶¶ 41-42. More generally, plaintiffs allege that there are three hundred and sixty five valid existing mining estates in the ENF, attributing this figure to the Bureau of Land Management without citation. Compl. ¶ 30. Plaintiff Randy Burleson further alleges that he uses the ENF as an "off-road enthusiast." Compl. ¶ 45.

B. The 2008 ENF Travel Management Plan

Plaintiffs in this suit challenge the Forest Service's 2008 Travel Management Plan for the ENF. This plan "regulate[s] unmanaged public wheeled motor vehicle use by allowing use on specific National Forest Transportation System (NFTS) roads and trails and prohibiting cross country travel." Record of Decision ("ROD") at 4. The "National Forest Transportation System" does not include State, county, and private roads within the ENF, nor does it include forest service roads "managed for standard four wheel passenger vehicles." Final Environmental Impact Statement ("FEIS") at 2-2, ix; see also ROD at 4 (noting that there are 635 miles of such roads in the ENF). Thus, the 2008 Plan does not apply to these roads.

733 F.Supp.2d 1176

The first step in adoption of the 2008 Plan was taken on October 16, 2005. On that date, the Forest Service published a notice of intent to prepare an environmental impact statement in support of a travel management decision for the Eldorado National Forest. See FEIS at 1-9. The Forest Service states that it took this step for two reasons.

One reason was that in Center for Sierra Nevada Conservation v. Berry, No. 2:02-cv-00325-LKK-JFM (E.D.Cal.) (" Berry ") the undersigned ordered the Forest Service to reexamine the issue. Berry concerned a challenge to an "Off-Highway Vehicle Plan" for ENF that the Forest Service adopted in 1990. On August 16, 2005, this court ordered the Forest Service to withdraw the 1990 plan and to "issue a Final Environmental Impact Statement and Record of Decision on a new ENF [Off-Highway Vehicle] Plan (or site-specific area plans)." ²

The second reason was that in 2005 the Forest Service published a general rule requiring the Forest Service to designate a system of roads, trails, and areas for motor vehicle use for all administrative units of the National Forest System in accordance with certain criteria. This rule was published on November 9, 2005, subsequent to publication of the notice of intent for the Eldorado Travel Management Decision. See 70 Fed. Reg. 68,264 (Nov. 9, 2005).³ It is unclear whether the 2005 Rule was influenced or motivated by the Berry litigation. Nonetheless, the Forest Service indicates that the notice of intent for the Eldorado Travel Management Decision was published in anticipation of the November rule and that the final ENF decision comports with this rule.

After publication of the October 16, 2005 notice, the Forest Service conducted public meetings and solicited public comments. The Forest Service then published a draft Environmental Impact Statement on July 20, 2007. The draft environmental impact statement ("DEIS") considered five alternatives. The Forest Service ultimately adopted a modification of alternative B for the 2008 Plan, publishing a ROD on March 31, 2008 and a final EIS two days thereafter, on April 2, 2008. This decision allows motor vehicle use on 242 miles of NFS trails and 1,002 miles of "ML-2" roads, which are roads "maintained for high clearance vehicles." FEIS at xviii, ix. Plaintiffs allege that "the closure of roads, rights of way, and haul roads" effectuated by the 2008 Plan "affects over 50% of the total roads and rights of way in the ENF." Compl. ¶ 37.

The parties agree that miners may in some circumstances use motorized vehicles on roads closed to the general public. Under Forest Service regulations, travel management decisions do not restrict "[m]otor vehicle use that is specifically authorized under a written authorization issued under Federal law or regulations." 36 C.F.R. § 212.51(a)(8). The Forest Service contends that miners must secure such authorization by filing a Notice of Intent or Plan of Operations under 36 C.F.R. § 228.4. The EIS itself explained that "[i]n the event that ground disturbing activities or the use of public lands are such to warrant the need for a Plan of Operations, an environmental analysis will

733 F.Supp.2d 1177

be completed[.] This Plan of Operations or other authorization may include the use of specific roads or trails not otherwise open to public wheeled motor vehicle use." FEIS at 3-212.

Plaintiffs contend that the 2008 Plan is flawed insofar as it requires plaintiffs to utilize these procedures. Plaintiffs alternatively argue that the 2008 Plan, interpreted in light of the 2005 Rule, does not require miners to do so, and that the Forest Service's contrary interpretation of its own plan is flawed.

C. The Notice of Intent/Plan of Operations System

Although the parties disagree as to whether miners must file a notice of intent and/or plan of operations prior to using roads not open to the public, there is no dispute as to what the notice of intent/plan of operations process itself involves. See Park Lake Resources v. United States Dep't of Agric., 197 F.3d 448, 450 (10th Cir.1999) (summarizing these regulations). A notice of intent is the simpler document. The regulation requires a notice of intent for any operations that " might cause significant disturbance of surface resources." 36 C.F.R. § 228.4(a) (emphasis added). "Operations" include the use of "roads and other means of access." 36 C.F.R. § 228.3(a). The Forest Service contends that use of motorized vehicles on roads not designated for such use is by definition activity that "might cause significant disturbance of surface resources" because such roads would otherwise remain undisturbed. Thus, at a minimum, a miner seeking to use such roads must submit a notice of intent.⁴

"[I]f the proposed operations will likely cause" a disturbance of surface resources a more elaborate plan of operations is required. 36 C.F.R. § 228.4(a)(3) (emphasis added). If a miner submits a notice of intent, within 15 days of receipt of the notice of intent the District Ranger will determine whether the proposed activity crosses the "will likely cause" threshold, such that "a proposed plan of operations is required before operations may begin." 36 C.F.R. § 228.4(a)(2). Alternatively, a miner may submit a plan of operations initially. If a plan of operations is submitted under either pathway, operations cannot commence until the Forest Service affirmatively approves the plan. 36 C.F.R. § 228.12.

Approval of a plan of operations is a federal agency action subject to the National Environmental Policy Act. See 36 C.F.R. § 228.4(f) ("Upon completion of an environmental analysis in connection with each proposed operating plan, the authorized officer will determine whether an environmental statement is required.... The Forest Service will prepare any environmental statements that may be required."); Hells Canyon Pres. Council v. Haines, CV. 05-1057, 2006 WL 2252554, *10, 2006 U.S. Dist. LEXIS 54884, *32 (D.Or.2006) (citing Cady v. Morton, 527 F.2d 786, 796 (9th Cir.1975)). Within thirty

733 F.Supp.2d 1178

days of receipt of a plan of operations, the Forest Service must either approve the plan, explain that no plan is necessary, "[n]otify the operator of any changes in, or additions to, the plan of operations deemed necessary to meet the purpose of the regulations," or inform the operator that additional time is necessary to complete review. 36 C.F.R. § 228.5(a)(1)-(5). In determining whether to approve a plan, the Forest Service must ensure that the plan conforms to state and federal air and water quality statutes. 36 C.F.R. § 228.8(a)-(b). The regulations further impose a variety of other environmental standards, which typically require the operator to take...