Sierra Club v. Robertson

• Decision Date: 22 April 1991
• Docket Number: Civ. No. 90-2150.
• Citation: 764 F. Supp. 546
• Parties: SIERRA CLUB, Jerry Williams, Defenders of the Ouachita Forest, Sherry Balkenhol, Bill Greer, Stan Heard, Plaintiffs, v. F. Dale ROBERTSON, in his official capacity as Chief, U.S.D.A. Forest Service, John E. Alcock, in his official capacity as Regional Forester, Southern Region, U.S.D.A. Forest Service, John M. Curran, in his official capacity as Supervisor, Ouachita National Forest, Larry Theivagt, in his official capacity as Mena District Ranger, U.S.D.A. Forest Service, George Landrum, in his official capacity as Poteau District Ranger, U.S.D.A. Forest Service, Paul Fuller, in his official capacity as Tiak District Ranger, U.S.D.A. Forest Service, Don Monk, in his official capacity as Oden District Ranger, U.S.D.A. Forest Service, John Archer, in his official capacity as Jessieville District Ranger, U.S. D.A. Forest Service, James Watson, in his official capacity as Caddo District Ranger, U.S.D.A. Forest Service, Robert Raines, in his official capacity as Womble District Ranger, U.S.D.A. Forest Service, Douglas Webb, in his official capacity as Cold Springs District Ranger, U.S.D.A. Forest Service, Eugene Hayes, in his official capacity as Fourche District Ranger, U.S.D.A. Forest Service, Defendants, Arkansas Forestry Association, Ouachita National Forest Timber Purchasers Group, and Region 8 Forest Service Timber Purchasers Council, Intervenors.
• Court: U.S. District Court — Western District of Arkansas

764 F. Supp. 546

SIERRA CLUB, Jerry Williams, Defenders of the Ouachita Forest, Sherry Balkenhol, Bill Greer, Stan Heard, Plaintiffs, v. F. Dale ROBERTSON, in his official capacity as Chief, U.S.D.A. Forest Service, John E. Alcock, in his official capacity as Regional Forester, Southern Region, U.S.D.A. Forest Service, John M. Curran, in his official capacity as Supervisor, Ouachita National Forest, Larry Theivagt, in his official capacity as Mena District Ranger, U.S.D.A. Forest Service, George Landrum, in his official capacity as Poteau District Ranger, U.S.D.A. Forest Service, Paul Fuller, in his official capacity as Tiak District Ranger, U.S.D.A. Forest Service, Don Monk, in his official capacity as Oden District Ranger, U.S.D.A. Forest Service, John Archer, in his official capacity as Jessieville District Ranger, U.S. D.A. Forest Service, James Watson, in his official capacity as Caddo District Ranger, U.S.D.A. Forest Service, Robert Raines, in his official capacity as Womble District Ranger, U.S.D.A. Forest Service, Douglas Webb, in his official capacity as Cold Springs District Ranger, U.S.D.A. Forest Service, Eugene Hayes, in his official capacity as Fourche District Ranger, U.S.D.A. Forest Service, Defendants Arkansas Forestry Association, Ouachita National Forest Timber Purchasers Group, and Region 8 Forest Service Timber Purchasers Council, Intervenors.

Civ. No. 90-2150.

United States District Court, W.D. Arkansas, Fort Smith Division.

April 25, 1991.

Nunc pro tunc April 22, 1991.

Mary M. Rawlins, Mena, Ark., for plaintiffs.

Charles Smith, Asst. U.S. Atty., Fort Smith, Ark., and Rebecca A. Donnellan and David F. Shuey, U.S. Dept. of Justice, Washington, D.C., for defendants.

Searcy W. Harrell, Jr., Roberts, Harrell & Lindsey, P.A., Camden, Ark., for intervenor-plaintiff Arkansas Forestry Ass'n.

Thomas R. Lundquist and Steven P. Quarles, Crowell & Moring, Washington, D.C., for other intervenors-plaintiffs.

MEMORANDUM OPINION

MORRIS SHEPPARD ARNOLD, District Judge.

Plaintiffs in this case contend that the 1986 Land and Resource Management Plan for the Ouachita National Forest ("1986 LRMP") and the Plan as amended in March of 1990 ("Amended LRMP" or "1990 LRMP") violate the requirements of the National Environmental Policy Act (NEPA), 42 U.S.C. § 4332, the National Forest Management Act (NFMA), 16 U.S.C. § 1600 et seq., and the Administrative Procedure Act (APA), 5 U.S.C. § 701 et seq. They also challenge the adequacy of the Final Environmental Impact Statements ("FEIS") prepared in conjunction with the Amended LRMP, and the Records of Decision ("ROD") adopting the Amended LRMP and the FEIS. Finally, plaintiffs' second amended complaint alleges that two of the Forest Service's timber sales decisions violate the requirements of NEPA and NFMA.

Intervening events, in particular the adoption of the Amended LRMP, which has completely superseded the 1986 LRMP, and a recent decision by the Forest Service to vacate the two contested timber sales decisions, has rendered claims regarding these issues moot.¹ Accordingly, defendants' motion to dismiss these claims can be granted summarily as there is no prospect for relief nor an active "case or controversy" as required for continuing jurisdiction under Article III of the U.S. Constitution. See, e.g., National Wildlife Federation v. Hodel, 839 F.2d 694, 741 (D.C.Cir.1988) (challenge to withdrawn regulations is moot); Defenders of Wildlife v. Endangered Species Scientific Authority, 725 F.2d 726, 731 (D.C.Cir.1984) (challenge to changed guidelines is moot).

As to the remaining claims, the Forest Service and the timber industry intervenors (collectively referred to as "the defendants") argue that all other issues raised in plaintiffs' complaint, except for the Freedom of Information Act attorney's fee issue (Count VI), should be dismissed on the grounds of standing, ripeness, and failure to exhaust administrative remedies. The court examines each of these issues in turn.

I. EXHAUSTION

The question of exhaustion arises because plaintiffs' Second Amended Complaint seeks judicial review of Forest Service actions on which plaintiffs have pending administrative appeals. Final decisions on these appeals are three to five months overdue, but expected within the month.²

The government and intervenors argue that Eighth Circuit precedent requires dismissal of claims where administrative remedies have not been exhausted, but the Eighth Circuit has not in fact established such a rule. See, e.g., Arkla Exploration Co. v. Texas Oil & Gas, 734 F.2d 347, 355 (8th Cir.1984) (exhaustion doctrine would not be applied to state when at the time state had standing to challenge leases, Secretary of Interior had invalidated them, but later court of appeals decision ordering Secretary to reinstate leases made it unlikely that state could ever get relief in administrative proceedings), cert. denied, 469 U.S. 1158, 105 S.Ct. 905, 83 L.Ed.2d 920 (1985). Although the doctrine of exhaustion of administrative remedies is applied in a number of different situations, it is "like most judicial doctrines subject to numerous exceptions." McKart v. United States, 395 U.S. 185, 193, 89 S.Ct. 1657, 1662, 23 L.Ed.2d 194 (1969). The doctrine is based on the principle that "no one is entitled to judicial relief for a supposed or threatened injury until the prescribed administrative remedy has been exhausted." Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 50-51, 58 S.Ct. 459, 463-64, 82 L.Ed. 638 (1938). Absent a specific statutory requirement, however, exhaustion of administrative remedies is "sometimes required and sometimes not." 4 K. Davis, Administrative Law Treatise § 26.1 at 4.14 (2d ed. 1983). See also Morrison-Knudsen Co., Inc. v. CHG International Inc., 811 F.2d 1209, 1225 (9th Cir.1987) ("where there is no explicit statutory requirement of exhaustion of administrative remedies, the application of exhaustion rules is a matter committed to the discretion of the district court"). This judicially-created doctrine "does not limit jurisdiction;" rather it furnishes the district court with "a method to exercise comity toward administrative agencies and to promote efficient use of the judicial resources while protecting the rights of parties who have come before the court seeking relief." Morrison-Knudsen, 811 F.2d at 1223.

In applying this doctrine to the case at hand the court therefore has several options: it may allow the action to proceed immediately, dismiss the action pending exhaustion of administrative review, or institute a stay of these proceedings pending administrative review. The Supreme Court, in McGee v. United States, 402 U.S. 479, 491, 91 S.Ct. 1565, 1572, 29 L.Ed.2d 47 (1971) and McKart, 395 U.S. at 197, 89 S.Ct. at 1664-65, has held that the district court's exhaustion decision should reflect a "discrete analysis of the particular default in question, to see whether there is a `governmental interest compelling enough to' justify the forfeiting of judicial review." McGee, 402 U.S. at 485, 91 S.Ct. at 1569 (quoting McKart, 395 U.S. at 197, 89 S.Ct. at 1664). McGee and McKart identify three types of governmental interests which the court needs to review. First, the requirement of exhaustion enables the agency to correct its own errors and so preclude, perhaps entirely, the need for judicial review. Second, the agency has an interest in developing the factual background of the case so that it can exercise its expertise on a fully developed record prior to consideration by the court. (These interests are served by a temporary stay of proceedings in this court pending the outcome of the administrative appeal just as well as they would be by an outright dismissal.) Finally, the court must also consider the government's interest in discouraging litigants from by-passing administrative remedies prior to seeking judicial review.

The Eighth Circuit has ordered dismissal of claims where administrative remedies have not been exhausted in cases where the plaintiff utterly bypassed the available administrative process. See, e.g., McAlister v. Secretary of HHS, 900 F.2d 157, 158 (8th Cir.1990) (dismissal of employee discrimination suit where employee failed to assert timely claim with the EEOC); Watson v. Arkansas National Guard, 886 F.2d 1004, 1008 (8th Cir.1989); Madsen v. Dept. of Agriculture, 866 F.2d 1035, 1037 (8th Cir.1989) (failure to appeal agency's established yield figures, before they were established by statutes, required dismissal of farmers' claims). The case at bar, however, does not present such a difficulty. Plaintiffs have been involved in protracted and complex administrative proceedings that seem to be unending. The plaintiffs' claims in this case were originally brought to stop certain timber sale decisions and clear-cutting practices allowed under the 1986 LRMP upon which the underlying administrative appeals had been concluded. The Forest Service later indicated that it would stop clearcutting and withdrew the contested sales decisions. They then issued new sales decisions which were subsequently withdrawn. Plaintiffs have amended their complaint two times in an effort to keep current with these and other changes. An examination of the litigation history in this matter indicates that the Forest Service has developed a practice of making, withdrawing, and reinstating timber sales and forest policy decisions in a way that might forestall judicial review indefinitely if left unchecked. Such a result cannot be encouraged.

In light of the above, the government's interests are not "compelling enough to justify the forfeiture of judicial review." McGee, 402 U.S. at 485, 91 S.Ct. at 1569. In fact, the interests of all parties, as well as the court's interest in benefitting from Forest Service expertise in these matters, would be best served by a brief stay of proceedings in this court until after administrative proceedings have been concluded, that is,...