Region 8 Forest Serv. Timber Purchasers v. Alcock

• Decision Date: 23 April 1990
• Docket Number: Civ. No. 1:89-cv-2741-ODE.
• Citation: 736 F. Supp. 267
• Parties: REGION 8 FOREST SERVICE TIMBER PURCHASERS COUNCIL; Hankins Lumber Company, Inc.; Hood Industries, Inc.; and Hunt Plywood Company, Inc. v. John E. ALCOCK, in his official capacity as Regional Forester for Region 8 of the United States Forest Service; F. Dale Robertson, in his official capacity as Regional Director of Region 4 of the United States Fish and Wildlife Service; and Manuel Lujan, in his official capacity as Secretary of the United States Department of the Interior.
• Court: U.S. District Court — Northern District of Georgia

736 F. Supp. 267

REGION 8 FOREST SERVICE TIMBER PURCHASERS COUNCIL; Hankins Lumber Company, Inc.; Hood Industries, Inc.; and Hunt Plywood Company, Inc. v. John E. ALCOCK, in his official capacity as Regional Forester for Region 8 of the United States Forest Service; F. Dale Robertson, in his official capacity as Regional Director of Region 4 of the United States Fish and Wildlife Service; and Manuel Lujan, in his official capacity as Secretary of the United States Department of the Interior.

Civ. No. 1:89-cv-2741-ODE.

United States District Court, N.D. Georgia, Atlanta Division.

April 23, 1990.

COPYRIGHT MATERIAL OMITTED

Alexander Stephens, Clay, IV, Mary Lillian Walker and Kilpatrick & Cody, Atlanta, Ga., and Steven P. Quarles, Thomas R. Lundquist and John A. Macleod, Crowell & Moring, Washington, D.C., for plaintiffs.

Daniel A. Caldwell, III, Asst. U.S. Atty., N.D. Georgia, Atlanta, Ga., for defendants.

ORDER

ORINDA D. EVANS, District Judge.

This case under the Endangered Species Act, 16 U.S.C. §§ 1531, et seq. ("Species Act)", the National Forest Management Act, 16 U.S.C. §§ 1604, et seq. ("Forest Act"), and the National Environmental Policy Act of 1969, 42 U.S.C. § 4332 ("Environmental Act") is before the court on the Sierra Club's motion to intervene, the Defendants' motions for a protective order and to dismiss or in the alternative for a stay, the Plaintiffs' motion for leave to file a supplemental brief, and the Defendants' motion to file a reply to this supplemental brief.

This case arises from the actions of the Region 8 Forest Service in restricting timber cutting within ¾ of a mile of a colony site of red cockaded woodpeckers. The red cockaded woodpecker is considered an endangered species under the Species Act. Through a process of consultation specified in the Species Act and the Forest Act, the Forest Service originally arrived at a plan to manage the red cockaded woodpecker population. That plan was defined in the 1985 Wildlife Habitat Management Handbook ("Woodpecker Handbook"). Plaintiffs allege that sometime in the late 1980s, Defendants discontinued full implementation of the procedures described in the Woodpecker Handbook, and thereafter adopted a new policy to protect the woodpeckers. Defendants assert that their new policy was in response to reports of unstable or declining woodpecker populations. In any event, on March 27, 1989 and then again on June 26, 1989, the Forest Service adopted a new "Policy on Cutting Within 3/4 Mile of RCW Colonies On Existing Timber Sale Contracts."

Plaintiffs, a group of timber purchasers, assert that Defendants' new timber policy violates their economic, informational, and public participation rights under the Species Act, the Forest Act, and the Environmental Act. Specifically, Plaintiffs assert that Defendants failed to comply with § 7(a)(2) of the Species Act by not entering into "consultation" with the Fish and Wildlife Service before altering a policy approved by formal consultation and affecting an endangered species. Plaintiffs also assert that Defendants violated the Forest Act and its implementing regulations by failing to obtain an Environmental Impact Statement before "significantly" altering a forest plan and by failing to allow for a period of public review of the new plan. Finally, Plaintiffs assert that Defendants violated the Environmental Act and its implementing regulations by failing to issue an Environmental Impact Statement or Environmental Assessment prior to adopting the new 3/4 mile policy.

The Motion to Dismiss or For a Stay

Defendants move to dismiss based on seven grounds. First and foremost, Defendants assert that under the Contract Disputes Act, 41 U.S.C. §§ 601, et seq., Plaintiffs' claims are subject to the exclusive jurisdiction of the United States Claims Court. Second, Defendants assert that to the extent Plaintiffs are claiming rights to future timber sales, they fail to state a claim due to the fact that timber sales are completely discretionary. Third, Defendants assert that Plaintiffs' claims regarding the failure of the Forest Service to implement the Woodpecker Handbook should be dismissed because Plaintiffs failed to comply with the notice requirements of the Species Act. Fourth, Defendants assert that Plaintiffs do not have standing to bring their Species Act and Environmental Act claims because Plaintiffs' injuries are not even arguably within the zone of interests sought to be protected or regulated by these statutes. Fifth, Defendants assert that Plaintiffs have waived their rights to pursue claims related to the ¾ mile policy because Plaintiffs agreed to modify the contracts that were subject to the policy. Sixth, Defendants assert that Plaintiffs' Species Act claims are barred by Plaintiffs' failure to recognizably raise these claims during the administrative proceeding. Finally, Defendants would have this court dismiss or stay these proceedings in light of the impending new Forest Service Guidelines.

Plaintiffs respond that this is not a contract action subject to the Contract Disputes Act. Rather, assert Plaintiffs, the focus of this action is the alleged statutory violations of the Species Act, the Forest Act, and the Environmental Act. With regard to the claim for lost future timber sales, Plaintiffs assert that they have made no such claim, but that the Forest Service's alleged "covenant" to sell timber and the decreased future timber sales that the ¾ mile policy necessarily involves serve as support for their claims of statutory violations. Plaintiffs further maintain that a letter dated September 1, 1989 provided the notice required under the Species Act, and that even if that letter was insufficient, the claim should be permitted as an exercise of federal question jurisdiction over a claim for failure to follow procedures under the Administrative Procedure Act. Plaintiffs also assert that they have standing to assert their Species Act and Environmental Act claims. According to Plaintiffs, the economic harm they have suffered and the denial of their informational and participational rights satisfy the Article III requirement of injury traceable to illegal conduct that can be redressed by order of this court. Plaintiffs also contend that the prudential standing test does not apply to the Species Act, and that even if it does apply, Plaintiffs have prudential standing due to the "legal wrong" they have allegedly suffered from the change in their timber contracts, due to the manner in which the Species Act "regulates" Plaintiffs' businesses, and due to the alleged denial of Plaintiffs' informational and participational rights. Plaintiffs reject Defendants' waiver-of-rights theory on the ground that no rights were intentionally and knowledgeably waived, and allegedly could not have been waived without language in their contracts to that effect. Plaintiffs also maintain that they raised all their claims at the administrative level, and that even if they did not, exhaustion was not required because it would have been futile. Finally, Plaintiffs assert that this case is not moot, and will not become moot just because the Forest Service plans to change its policy as: (1) the new Guidelines allegedly will not eradicate the pre-1990 effects of the current policy on timber cutting, (2) the new policy will be temporary and will allegedly be issued without an environmental impact statement, and (3) the alleged practice of denying informational and participational rights will still exist and be capable of repetition.

The court addresses the grounds for dismissal seriatim. The way they are pled, Plaintiffs' claims are not subject to the exclusive jurisdiction of the Claims Court. Although the Contract Disputes Act eliminated "U.S. district court jurisdiction ... from Government contract claims", S.Rep. No. 1118, 95th Cong., 2d Sess., reprinted in 1978 U.S.Code Cong. & Ad.News 5235, 5244, Plaintiffs' carefully pled complaint does not allege contract claims. Unlike the Plaintiffs in Management Science America, Inc. v. Pierce, 598 F.Supp. 223 (N.D. Ga.1984), aff'd, 778 F.2d 792 (11th Cir. 1985), Plaintiffs in this case assert statutory causes of action and seek remedies that are separate from any potential contract claims. Given the rights that Plaintiffs allege they seek to enforce, Plaintiffs' claims are not within the exclusive jurisdiction of the Claims Court. See North Side Lumber Co. v. Block, 753 F.2d 1482, 1485-86 (9th Cir.1985), cert. den., 474 U.S. 919, 106 S.Ct. 248, 88 L.Ed.2d 256 (1985); Megapulse, Inc. v. Lewis, 672 F.2d 959, 971 (D.C.Cir.1982); National Helium Corporation v. Morton, 455 F.2d 650, 654 (10th Cir.1971).

Defendants' second ground for dismissal, that Plaintiffs have no right to future timber sales, is moot. Plaintiffs have not asserted a claim for denial of future timber sales and would not be able to assert such a claim in this court.

Defendants' fourth ground for dismissal is that Plaintiffs do not have standing to sue under the Environmental Act and the Species Act. In order to have standing to bring this action, Plaintiffs must meet the minimal Article III requirement of personally suffering an actual or threatened injury due to Defendants' allegedly illegal conduct. Plaintiffs' injury must be fairly traceable to Defendants' actions and redressable by order of this court. Valley Forge College v. Americans United, 454 U.S. 464, 472, 102 S.Ct. 752, 758, 70 L.Ed.2d 700 (1982). In addition, Plaintiffs must meet whatever prudential standing requirements the courts have imposed on parties suing under the Environmental Act or the Species Act.

Plaintiffs maintain that they have established injury under Article III by asserting the loss of timber volume under their current contracts, the loss of future timber volume, and the increased timber harvesting costs incident to Defendants' ¾ mile policy. These injuries, however, are injuries to Plaintiffs' contractual rights. As Plainti...