Sierra Club v. Bosworth, No. CIV. 03-3572(MJD/JSM).

• Court: United States District Courts. 8th Circuit. United States District Court of Minnesota
• Writing for the Court: Davis
• Citation: 352 F.Supp.2d 909
• Docket Number: No. CIV. 03-3572(MJD/JSM).
• Decision Date: 14 January 2005
• Parties: SIERRA CLUB and Defenders of Wildlife, Plaintiffs, v. Dale BOSWORTH, as Chief of the United States Forest Service, and Ann M. Veneman, as Secretary of the United States Department of Agriculture, Steven A. Williams, as Director of the United States Fish and Wildlife Service, and Gale Norton, as Secretary of the Interior, Defendants, and Minnesota Forest Industries, Inc., and Minnesota Timber Producers Association, Intervenors-Defendants.

352 F.Supp.2d 909 SIERRA CLUB and Defenders of Wildlife, Plaintiffs,
v.
Dale BOSWORTH, as Chief of the United States Forest Service, and Ann M. Veneman, as Secretary of the United States Department of Agriculture, Steven A. Williams, as Director of the United States Fish and Wildlife Service, and Gale Norton, as Secretary of the Interior, Defendants, and
Minnesota Forest Industries, Inc., and Minnesota Timber Producers Association, Intervenors-Defendants. No. CIV. 03-3572(MJD/JSM). United States District Court, D. Minnesota. January 14, 2005.

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Anne E. Mahle, Faegre & Benson LLP, Minneapolis, MN, for Plaintiffs.

Friedrich A.P. Siekert, Assistant United States Attorney, Minneapolis, MN, for Defendants.

David R. Oberstar, Fryberger, Buchanan, Smith & Frederick, P.A., Duluth, MN, for Intervenors-Defendants.

MEMORANDUM OF LAW & ORDER

DAVIS, District Judge.

I. INTRODUCTION

The subject of this environmental action is the United States Forest Service's ("Forest Service" or "FS") Big Grass Project ("the Project"), which is adjacent to the Boundary Waters Canoe Area Wilderness ("BWCAW" or "Boundary Waters"), and which Plaintiffs allege violates the National Environmental Policy Act ("NEPA") and its implementing regulations, the National Forest Management Act ("NFMA") and its implementing regulations, the Superior National Forest Land and Resource Management Plan ("1986 Forest Plan"), the Endangered Species Act ("ESA"), and the Administrative Procedure Act ("APA").

Before the Court are Plaintiffs' motion for summary judgment; the Intervenors-Defendants' and the Defendants'¹ cross-motions for summary judgment against Plaintiffs; Defendants' motion to dismiss Plaintiff Defenders of Wildlife, as well as some claims, for lack of subject matter jurisdiction; and two pleadings neither referred to Magistrate Judge Erickson nor considered by his Report: Plaintiffs' motion to supplement the administrative record and Plaintiffs' motion for preliminary injunction. The parties presented their oral argument on October 13, 2004.

II. FACTUAL BACKGROUND

A. Superior National Forest and the Big Grass Project

This case involves agency action in the Superior National Forest, a second-growth forest that contains the Boundary Waters. In February 2003, the Forest Service issued its Decision Notice authorizing the sale of timber from the Project, which is bordered on the northeast and southwest by units of the Boundary Waters. If approved, the Project will eventually harvest timber on approximately 1,689 of the over

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2 million acres of land in the Superior National Forest, including the "clearcutting with reserves" of 1,488 acres. The proposal will include the following road projects: 13.2 miles of construction, 19.9 miles of reconstruction, and reopening 9.2 miles of roads.

B. Environmental Assessment of the Project

The Forest Service initially proposed the Big Grass Timber Sale in January 2001. The Forest Service thereafter prepared an Environmental Assessment ("EA") pursuant to NEPA. Under 40 C.F.R. § 1508.9, an EA is a short document developed to determine the need for a full Environmental Impact Statement ("EIS"). The review process for the EA included the following: forming a team of specialists; soliciting public comment; consulting with federal, state, and private consultants; meeting with interested persons; and evaluating and addressing the comments received. The Decision Notice determined that the Project was not a major federal action that would impact the quality of the human environment significantly, so it concluded that an EIS was unnecessary.

The Forest Service considered four alternatives with regard to the Project, and its EA Decision Notice ultimately adopted Alternative Four, which included a combination of tree harvests, regeneration, ecosystem management plantings, hand release to ensure adequate survival and stocking of plantings, construction of temporary and system roads, relocation of an intersection, improving FS roads, and performing fuels management through prescribed fire. Plaintiffs argue that the selected Alternative Four involves the most logging, the greatest acreage of clear-cuts, and the largest amount of active roadways.

C. Management of the Superior National Forest

Forest Service activities in the Superior National Forest are governed by the NFMA and the 1986 Forest Plan. These laws require the Forest Service to monitor the health of the forest and its species, including population trends of wildlife such as Management Indicator Species ("MIS") and Viability Indicator Species ("VIS"). See 16 U.S.C. § 1604(g) (2003); 36 C.F.R. § 219.11(d); 36 C.F.R. § 219.19(a)(7); (1986 Forest Plan at 3-1, 3-42).

MIS represent all of the community types and habitat conditions that Forest Service management activities may affect. Because each species prefers a particular community or habitat condition, its population level is likely to change with the availability of that habitat type or condition. (1986 Forest Plan at 3-42). VIS include species chosen from federally listed Endangered and Threatened species, as well as from the Sensitive Species and the Species of Concern. (Id. at 3-39).

The 1986 Forest Plan expired in 2001, and the Forest Service has been developing a successor plan since 1997. 36 C.F.R. § 219.10(g). A Draft EIS and Proposed Forest Plan were issued in April 2003. The final revised Forest Plan was signed just prior to the parties' oral argument on these motions.

The initial objectives of the Big Grass Project included providing a viable ecosystem for plants, animals, and people; increasing certain types of trees; increasing several wildlife species; furthering fire management objectives, including allowing fire to become a part of the ecosystem; providing access to landowners; resolving encroachments in the area; developing a road system; and supplying raw wood for the timber industry.

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D. Impacts to the Neighboring Boundary Waters

The Big Grass EA defines the Project Area as having a "unique" location as an "important corridor" between sections of the Boundary Waters. Because there is no certified survey of the BWCAW boundaries, the Forest Service is not certain, in some instances, of exactly where the wilderness boundary lies. But Defendants contend that GPS receivers can precisely determine the boundaries to ensure that timber harvesting does not occur within the BWCAW. In a letter dated July 19, 2002, the Forest Service acknowledges that past illegal use of the forest's logging roads has led to unauthorized development in areas surrounding the Boundary Waters.

E. Canada Lynx

The Project area includes the habitat of the Canada lynx. The Fish and Wildlife Service ("FWS") concurred with the Forest Service's determination that the Big Grass Timber Sale "may affect, [but is] not likely to adversely affect" the Canada lynx. In determining that the Project will not adversely affect the lynx, the Forest Service's Biological Evaluation ("BE") noted that "there are no habitats designated as `critical' (as defined by the ESA) within the [Project Area]." But by as late as 2002, the FWS has failed to designate any land in the United States as critical habitat for the lynx. Defenders of Wildlife v. Norton, 239 F.Supp.2d 9, 21-22 (D.D.C.2002), vacated as moot by 89 Fed.Appx. 273, 2004 WL 438590 (D.C.Cir.2004) (unpublished).

F. Administrative Appeal and the Instant Suit

On March 25, 2003, the Sierra Club initiated an administrative appeal of the Forest Service's decision, though Defenders of Wildlife did not join in that appeal. On May 8, 2003, the Appeal Deciding Officer affirmed the Forest Service's decision and finding of no significant impact. Plaintiffs Sierra Club and Defenders of Wildlife next filed a complaint with this Court, alleging (1) that the Forest Service violated NEPA and the APA by not preparing an EIS, (2) that the Project violates the NFMA by failing to have specific population data for five of the species in the forest, and (3) that the Endangered Species Act was violated by both the Forest Service and the Fish & Wildlife Service when they concluded that the Canada lynx is not likely to be negatively affected by the Project.

III. DISCUSSION

A. Preliminary Issues: Subject Matter Jurisdiction and Supplementation

The parties raise two preliminary issues that the Court will analyze before addressing the parties' substantive claims. Defendants contend that Plaintiff Defendant Defenders of Wildlife should be dismissed, and Plaintiffs argue that they should be permitted to supplement the administrative record.

1. Subject Matter Jurisdiction: Defenders of Wildlife

Defendants bring a Motion to Dismiss, claiming that the Court lacks subject matter jurisdiction over Plaintiff Defenders of Wildlife because of its failure to properly exhaust administrative remedies. See Fed.R.Civ.P. 12(b)(1).

A party aggrieved by administrative agency action must exhaust available administrative remedies before seeking judicial relief. See McKart v. United States, 395 U.S. 185, 193, 89 S.Ct. 1657, 23 L.Ed.2d 194 (1969); see also 7 U.S.C. § 6912(e). "The exhaustion doctrine guarantees administrative autonomy and efficiency, and ensures that administrative agencies are afforded an opportunity to

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address their own errors without judicial intervention." Sharps v. United States Forest Serv., 28 F.3d 851, 854 (8th Cir.1994). Objections to agency actions that a party does not raise administratively cannot properly be raised in court. Dep't of Transp. v. Pub. Citizen, 541 U.S. 752, 124 S.Ct. 2204, 2213-14, 159 L.Ed.2d 60 (2004).

Defendants argue that because it is uncontested that Plaintiff Defenders of Wildlife did not appeal the Project decision administratively, it should be dismissed as a party to this action. Although Plaintiffs reply that...