Rounds v. U.S. Forest Service
| Decision Date | 06 February 2004 |
| Docket Number | No. 03-CV-0003-B.,03-CV-0003-B. |
| Citation | 301 F.Supp.2d 1287 |
| Parties | M. Michael ROUNDS, in his official capacity as Governor of the State of South Dakota, and the State of South Dakota, Plaintiffs, v. UNITED STATES FOREST SERVICE, et al., Defendants. |
| Court | U.S. District Court — District of Wyoming |
Kenneth E. Barker, Barker, Wilson, Reynolds & Burke, Belle Fourche, S.D., Stephen H. Kline, Kline Law Office, Cheyenne, WY, for Plaintiffs.
Carol A. Statkus, U.S. Attorney's Office, Cheyenne, WY, Cynthia S. Huber, Department of Justice, Environment & Natural Resources Division, Washington, D.C., for Defendants.
ORDER DENYING DEFENDANTS' MOTION FOR JUDGMENT ON THE PLEADINGS AND DENYING DEFENDANTS' MOTION TO DISMISS CLAIM UNDER THE ORGANIC ACT
This matter is before the Court on Defendants' Motion for Judgment on the Pleadings and Defendants' Motion to Dismiss Claim under the Organic Act. Upon reading the briefs, hearing oral arguments, and being fully advised in the premises, the Court FINDS and ORDERS as follows:
PARTIES AND JURISDICTION
Plaintiff M. Michael Rounds is the Governor of the State of South Dakota and a South Dakota resident. Plaintiff State of South Dakota owns property and land abutting the Black Hills National Forest. This land, along with the Black Hills National Forest, is used and enjoyed by South Dakota and Wyoming citizens.
Defendant United States Forest Service is an agency of the United States Department of Agriculture. The Forest Service is responsible for the administration of the laws relating to the lands within the National Forest System, including the Black Hills National Forest in South Dakota and Wyoming. Defendant Ann M. Veneman is sued in her official capacity as Secretary of Agriculture. Defendant Mark E. Rey is sued in his official capacity as Under Secretary for Natural Resources and Environment. Defendant Dale Bosworth is sued in his official capacity as Chief of the United States Forest Service. Defendant Rick Cables is sued in his official capacity as Regional Forester for the Rocky Mountain Region. Defendant John Twiss is sued in his official capacity as Supervisor of the Black Hills National Forest.
Subject matter jurisdiction has been contested and will be addressed in this Order. Venue is properly vested in this Court pursuant to 28 U.S.C. § 1391(e) as some of the Defendants are employees of a United States agency and a substantial part of the events or omissions giving rise to the claims occurred in the Black Hills National Forest which is partially located in Wyoming and is part of the Rocky Mountain Region of the United States Forest Service.
This is a civil action for declaratory and injunctive relief.
This case was initiated by Plaintiffs in their First Amended Complaint pursuant to 5. U.S.C. § 706, alleging that the United States Forest Service failed to comply with the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321 et. seq.; the National Forest Management Act ("NFMA"), 16 U.S.C. §§ 1600 et seq.; and the Administrative Procedures Act ("APA"), 5 U.S.C. §§ 551 et seq. Plaintiffs filed a Second Amended Complaint in which they added a third claim for relief under the Organic Act of 1897, 16 U.S.C. §§ 473-482, 551.
Plaintiffs allege that the Forest Service has failed to take action regarding the removal and harvesting of dead trees in the Black Hills National Forest and that Defendants' inaction has caused and will continue to cause damage and destruction to the forest, private property and threaten human life. More specifically, Plaintiffs allege that the spread of mountain pine beetles in the Black Hills National Forest has reached epidemic proportions. Beetle-caused tree mortality has increased from 1,500 trees in 1996 to over 300,000 trees in 2002. This infestation has caused a significant increase in the risk of fire. Plaintiffs claim that the exponential spread of the mountain pine beetle will continue with consequent forest fires unless Defendants take immediate and expeditious steps to increase the removal or thinning of dead, damaged, or diseased trees.
Defendants generally deny Plaintiffs' allegations and affirmatively allege: (1) Plaintiffs fail to state a claim upon which relief can be granted; (2) the Court lacks subject matter jurisdiction over this case; and (3) the Organic Act claim is not ripe for judicial review.
The original Motion filed by Defendants was for a Judgment on the Pleadings pursuant to Fed.R.Civ.P. 12(c) for lack of subject matter jurisdiction, or in the alternative, for failure to state a claim upon which relief can be granted. The Defendants' second Motion was on the Second Amended Complaint and was filed under Fed.R.Civ.P. 12(b).
In the Tenth Circuit, the standard by which a court must determine a Rule 12(c) motion for judgment on the pleadings is the same as the standard for the more familiar motion to dismiss under 12(b)(6). Mock v. T.G. & Y Stores Co., 971 F.2d 522, 528-29 (10th Cir.1992). At the pleadings stage, general factual allegations of injury resulting from the Defendants' conduct may suffice, for on a motion to dismiss we "presume the general allegations embrace those specific facts that are necessary to support the claim." Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). However, conclusions of law are not assumed to be true. Robbins v. Bureau of Land Mgmt., 252 F.Supp.2d 1286, 1292 (D.Wyo.2003). The party invoking federal jurisdiction has the burden of proving by a preponderance of the evidence that jurisdiction exists. United States ex rel. Holmes v. Consumer Ins. Group, 279 F.3d 1245, 1249 (10th Cir.2002). Because the jurisdiction of federal courts is limited, there is a presumption against jurisdiction. Penteco Corp. v. Union Gas Sys., Inc., 929 F.2d 1519, 1521 (10th Cir.1991).
The court will dismiss a cause of action for failure to state a claim only when it appears beyond a doubt that the plaintiff can prove no set of facts in support of the theory of recovery that would entitle him or her to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Maher v. Durango Metals, Inc., 144 F.3d 1302, 1304 (10th Cir.1998), or when an issue of law is dispositive. Neitzke v. Williams, 490 U.S. 319, 326, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989). The issue in resolving a motion such as this is not whether the plaintiff will ultimately prevail, but whether he or she is entitled to offer evidence to support the claims. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974).
Defendants bring this motion to dismiss pursuant to Fed.R.Civ.P. 12(b), seeking dismissal of Plaintiffs' Second Amended Complaint because it is not ripe, for lack of subject matter jurisdiction and for failure to state a claim upon which relief can be granted. The standards for review of motions under Fed.R.Civ.P. 12(b) and 12(c) are the same. Therefore, it is the same standard as those given above.
Neither NEPA or NFMA provide a private right of action. Lujan, 497 U.S. at 882, 110 S.Ct. 3177. Therefore, this Court must review Plaintiffs' claims through the APA. Review of agency action is usually limited to a "final agency action for which there is no other adequate remedy." 5 U.S.C. § 704. The requirement of final agency action is a jurisdictional requirement, and serves to prevent courts from prematurely adjudicating matters that are initially committed to the agency's expertise and discretion. Utah v. Babbitt, 137 F.3d 1193, 1203 (10th Cir.1998); Ohio Forestry Ass'n v. Sierra Club, 523 U.S. 726, 733, 118 S.Ct. 1665, 140 L.Ed.2d 921 (1998). The core question in evaluating if there is final agency action is whether the agency has completed its decision making process, and whether the result of that process is one that will directly affect the parties. Franklin v. Mass., 505 U.S. 788, 797, 112 S.Ct. 2767, 120 L.Ed.2d 636 (1992).
In limited circumstances, an agency's failure to act can itself be a final agency action. 5 U.S.C. §§ 551(13)1 and 706(1). Jurisdiction under this exception only exists when the agency fails to carry out a mandatory, nondiscretionary duty. See ONRC Action v. BLM, 150 F.3d 1132 (9th Cir.1998). By contrast, if a duty is not mandated, or if an agency possesses discretion over whether to act in the first instance, a court may not grant relief under § 706(1). Willow Creek Ecology v. U.S. Forest Serv., 225 F.Supp.2d 1312, 1317 (D.Utah 2002). In "extraordinary circumstances" a court may review claims of unreasonable agency delay pursuant to 5 U.S.C. § 706(1). In re Int'l Chem. Workers Union, 958 F.2d 1144, 1149 (D.C.Cir.1992).
This Court reaffirmed Magistrate Judge Beaman's order which limited the review of the NEPA and NFMA claims to the Administrative record.2 Magistrate Judge Beaman held that judicial review of Plaintiffs' NEPA and NFMA claims were governed by the provisions of the APA and subject to review as an appeal under the procedures set forth in Olenhouse v. Commodity Credit Corp., 42 F.3d 1560 (10th Cir.1994). In addition, Magistrate Judge Beaman held that the case at hand alleged a "failure to act" which could be treated as a final agency action and therefore governed by the same standard, requiring review based on the administrative record. This Court upheld Magistrate Judge Beaman's order based on Olenhouse. The claims under NEPA and NFMA are governed by the provisions of the APA and therefore are subject to review as appeals. Section 701 of the APA provides that an agency action is subject to judicial review except where there is a statutory prohibition on review or where agency action is committed to agency discretion as a matter of law. Olenhouse, 42 F.3d at 1572 (citing 5 U.S.C. § 701(a)(1)(2)). With regard to NEPA and NFMA, there is...
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