Sequoia ForestKeeper v. Tidwell

Decision Date19 March 2012
Docket NumberCase No. CV F 11–679 LJO DLB.
Citation847 F.Supp.2d 1217
CourtU.S. District Court — Eastern District of California
PartiesSEQUOIA FORESTKEEPER, et al., Plaintiffs, v. Thomas TIDWELL, in his official capacity as Chief of the United States Forest Service, and the United States Forest Service, Defendants.

OPINION TEXT STARTS HERE

Matt Kenna, Phv, Public Interest Environmental Law, Durango, CO, Rene Peter Voss, Rene P. Voss, Attorney at Law, San Anselmo, CA, for Plaintiffs.

Marissa Ann Piropato, Govt., US Department of Justice, Washington, DC, for Defendants.

SUMMARY JUDGMENT DECISION ON JURISDICTIONAL ISSUES

LAWRENCE J. O'NEILL, District Judge.

Introduction

This action challenges two of the public notice, comment, and administrative appeal regulations that the defendant United States Forest Service (Forest Service) promulgated to implement the Forest Service Decisionmaking and Appeals Reform Act of 1992, Pub.L. 102–381, Title III, § 322, 106 Stat. 1419 (16 U.S.C. § 1612 note) (October 5, 1991) (“ARA”). The challenged provisions are codified at 36 C.F.R. §§ 215.4(a) and 215.12(f) (2003).1 Before reaching the merits of Plaintiffs' 2 challenge to the regulations, this Court must address the jurisdictional issues raised by the parties. First, the Court shall consider whether Plaintiffs have standing to pursue this action. Second, the Court must determine whether this action is ripe for judicial review. Third, this Court shall examine the Forest Service's alternative argument that this action is barred by the statute of limitations. Finally, this Court shall entertain the Forest Service's argument that the Consolidated Appropriations Act of 2012 (“Appropriations Act) renders this action prudentially moot. Having considered the parties' arguments, this Court finds that plaintiffs have established standing to challenge the regulations at issue in this case and that their challenge to regulations is ripe for review. This Court rejects the Forest Service's alternative argument that this action is time-barred. Finally, this Court denies the Forest Service's motion to dismiss this action as prudential moot based on the Appropriations Act. Accordingly, and for the following reasons, this Court GRANTS summary adjudication in favor of Plaintiffs on the jurisdictional issues discussed in this opinion.

Background
ARA and the 215 Regulations

Prior to 1992, the Forest Service “provided a post-decision administrative appeals process, 36 C.F.R. pt. 217, for agency decisions documented in a ‘decision memo,’ ‘decision notice,’ or ‘record of decision.’ Earth Island v. Ruthenbeck, 490 F.3d 687, 691 (2007). In March 1992, the Forest Service proposed a new regulation that would have eliminated post-decision administrative appeals for all decisions except those approving forest plans or amendments or revisions to forest plans. Id. This “proposal was greeted with considerable protest, and environmental groups decried the loss of administrative review.” Id.

In response, Congress enacted the ARA later in 1992. Among other things, the ARA required the Forest Service to establish a notice, comment and appeal process for “proposed actions of the Forest Service concerning projects and activities implementing land and resource management plans developed under the Forest and Rangeland Renewable Resources Planning Act of 1974 ... and [to] modify the procedure for appeal of decisions concerning such projects.” ARA § 322(a).

After the ARA was passed, the Forest Service published a final rule revising the notice, comment and appeal procedures. 68 Fed. Reg. at 33,582 (June 4, 2003) (2003 Rule). This rule governs “projects and activities implementing land and resource management plans on National Forest System lands.” Id. The new regulations are codified at 36 C.F.R. § 215 et seq. (“215 Regulations”).3

Plaintiffs argue that two the 215 Regulations are manifestly contrary to the ARA. Specifically, Plaintiffs claim that the Forest Service has violated the ARA § 322(a) and (c) by issuing Sections 215.12(f) and 215.4(a), which exempt all decisions that are categorically excluded from National Environmental Policy Act (“NEPA”) analysis 4 but which implement forest plans and are approved with “decision documents” from notice, comment and appeal. Plaintiffs allege that the Forest Service is applying these regulations impermissibly to exclude many projects from public notice, comment and appeal. Plaintiffs request this Court to find that the Forest Service violated the ARA by enacting Sections 215.4(a) and 215.12(f), invalidate the regulations, and issue a nationwide injunction to enjoin the Forest Service from implementing them. The challenged regulations read, in relevant part:

The following decisions and actions are not subject to appeal under this part, except as noted: ... (f) Decisions for actions that have been categorically excluded from documentation in an EA or EIS....

36 C.F.R. § 215.12(f).

The procedures for legal notice (§ 215.5) and opportunity to comment (§ 215.6) do not apply to: (a) Projects and activities which are categorically excluded from documentation in an [EIS] or [EA] ...

36 C.F.R. § 215.4(a).

Prior Challenge to the Regulations

The regulations at issue in this action have been challenged previously. The procedural history of the prior challenge is instructive on legal issues raised in this action. Accordingly, this Court briefly summarizes the history of the prior action and its three published court opinions.

Earth Island Institute v. Penguilly

Plaintiffs Earth Island Institute and Sequoia Forestkeeper, among others, challenged the 215 Regulations in a separate challenge styled Earth Island Institute v. Pengilly, 376 F.Supp.2d 994 (E.D.Cal.2005) ( Pengilly ). In Pengilly, the court found that the plaintiffs had standing to challenge the 215 Regulations based on the declaration of Jim Bensman (“Mr. Bensman”), who is a member of one of the plaintiff organizations. In that action, Mr. Bensman declared:

that he is a regular visitor to many of the country's national forests, including several located in California. In addition to using and enjoying national forests, Bensman has “commented on [approximately] a thousand Forest Service projects.” Over there years he has also appealed decisions of the Forest Service and has, at times, been successful. Since the promulgation of the new regulations, Bensman affies that he has not been able to appeal projects that he and Heartwood otherwise would have appealed. Further, in August 2003 Bensman and Heartwood submitted comments on a Forest Service proposal. Not knowing whether his comments constituted “substantive comments” under the new regulations, Bensman submitted an addendum to his earlier comments identifying himself as “an interested and affected party for this project.” Later Bensman and Heartwood filed an appeal of the project. The appeal was dismissed because, according to the Regional Forester, Bensman and Heartwood did not have “standing under the 2003 appeal regulations,” and “the comments received during the Notice and Comment period [did] not meet the definition of substantive comments.

Pengilly, 376 F.Supp.2d 994, 1000–1001. The district court found Mr. Bensman's declaration “has established sufficient injury that is fairly traceable to the actions of the Forest Service in implementing the ARA [.] Id. at 1001. The court reasoned:

Bensman has gone beyond speculative or conjectural injury due to the Forest Service's regulations implementing the ARA. Standing in this case is an analytical step away from use and enjoyment of national forests. Any harm to Plaintiffs' use and enjoyment comes from harm to the environment that in turn comes from being unable to effectively challenge Forest Service projects in national forests.

Id. The district court rejected the Forest Service's argument that Mr. Bensman's declaration was insufficient because it was not tied to a specific project:

This action challenges the regulations adopted by the Forest Service in response to the ARA—not a specific project in a specific forest—and reference to a specific forest is not needed to ground the contention for purposes of showing injury in fact. That Bensman and his organization have been precluded from appealing Forest Service projects that they would have appealed under the old regulations and that the projects have therefore gone forward and impaired Plaintiffs' use and enjoyment is fairly traceable sufficient injury to clear the standing hurdle.

Id.

The court further found that plaintiffs' challenge to the 215 Regulations was ripe for review. The court found that “there can be little doubt that the eight regulations challenged by Plaintiffs are ‘final actions' by the Forest Service for purposes of the APA. The regulations are the Forest Service's definitive position on how to best implement the ARA and have been enforced on numerous occasions.” Pengilly, 376 F.Supp.2d at 1002. In determining whether review was ripe, the court focused on the plaintiffs' facial challenge of the 215 Regulations:

The purpose of the finality requirement would not be served by disallowing a facial challenge in this context. Were the Court to rule that these regulations are not ripe for decision because they are being facially challenged, Plaintiffs would be faced with bringing multiple lawsuits in multiple jurisdictions in order to challenge the regulations as they are applied to specific projects—and the Forest Service faced with defending against them. This facial challenge promotes judicial economy and is sufficiently particular to avoid judicial foray into the hypothetical.

Id.

After concluding that the plaintiffs had standing and the action was ripe for review, the court turned to the merits of the action. After considering the parties' arguments, the Pengilly court found five of the 215 Regulations invalid, including the two at issue in this action. The court found that those regulations were manifestly contrary to their governing statute...

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