Sierra Forest Legacy v. U.S. Forest Service
| Decision Date | 19 February 2009 |
| Docket Number | No. C-08-4240 SC.,C-08-4240 SC. |
| Parties | SIERRA FOREST LEGACY, Center for Biological Diversity, Sierra Club, and Defenders of Wildlife, Plaintiffs, v. UNITED STATES FOREST SERVICE; Abigail Kimball, in her official capacity as Chief of the Forest Service; Charles Myers, in his official capacity as Associate Deputy Chief of the Forest Service; Randy Moore, in his official capacity as Regional Forester, Region 5, U.S. Forest Service; Beth Pendleton, in her official capacity as Deputy Regional Forester, Region 5, U.S. Forest Service; United States Fish and Wildlife Service; and National Marine Fisheries Service, Defendants. |
| Court | U.S. District Court — Northern District of California |
David Edelson, Attorney at Law, Berkeley, CA, Erin Marie Tobin, Gregory C. Loarie, Erin Marie Tobin, Gregory C. Loarie, Michael Ramsey Sherwood, Michael Ramsey Sherwood, Earthjustice, Oakland, CA, for Plaintiffs.
Andrew A. Smith, United States Department of Justice, Albuquerque, NM, for Defendants.
ORDER GRANTING FEDERAL DEFENDANTS' MOTION TO DISMISS
This litigation arises out of an amendment to the "land and resource management plan" for the Sierra Nevada National Forest adopted by the United States Forest Service ("Forest Service"). See Compl., Docket No. 1. In addition to challenging the Forest Service's amendment, Plaintiffs Sierra Forest Legacy, Center for Biological Diversity, Sierra Club, and Defenders of Wildlife (collectively "Plaintiffs") challenge the concurring opinions issued by the National Marine Fisheries Service ("NMFS") and the United States Fish and Wildlife Service ("FWS", collectively with NMFS referred to as "Wildlife Services") that the amendment would have no effect on certain threatened or endangered species. Id. Plaintiffs seek declaratory and injunctive relief.
Before the Court is a motion by the Wildlife Services to dismiss all claims against them for lack of subject-matter jurisdiction and for failure to state a claim. Docket No. 5 ("Motion"). Plaintiffs opposed the Motion and the Wildlife Services replied. Docket Nos. 13, 15. The Forest Service and the various individual defendants did not participate in the briefing on this Motion. Having reviewed the parties' submissions, the Court finds that Plaintiffs lack standing to bring suit against the Wildlife Services and that the Court therefore lacks jurisdiction. The Court GRANTS the Wildlife Services' Motion.
There are ten National Forests in the Sierra Nevada mountain range. These forests are managed by the Forest Service pursuant to the National Forest Management Act ("NFMA"), 16 U.S.C. § 1601 et seq. The NFMA requires that the Forest Service adopt a plan for each national forest unit in order to, among other things, "provide for diversity of plant and animal communities." 16 U.S.C. § 1604(g) (3)(B). The Forest Service adopted management plans for each of the forests in the Sierra Nevada. Pursuant to the plan for each forest, the Forest Service tracked the population of "management indicator species" ("MIS")—certain bellwether species whose population fluctuations are believed to be indicators of the effects of various forest management activities. See Compl. ¶¶ 28-29. Prior to the amendment that is the subject of this litigation, discussed in detail below, there were 60 such MIS being followed in the Sierra Nevada. Id. ¶ 30. For each MIS, the Forest Service adopted detailed monitoring protocols, management objectives, and specific thresholds for reconsideration of management actions or adoption of mitigation measures. Id. ¶¶ 30-32.
In December 2007, the Forest Service, through the authority of the Regional Forester, adopted an amendment to the MIS list for the forests in the Sierra Nevada ("MIS Amendment"). Id. ¶ 35. The MIS Amendment reduces the number of species on the MIS list from 60 to 13, allows the Forest Service to proceed with certain projects without fully monitoring the effects of those projects on MIS, and adds new MIS without establishing protocols for monitoring the populations, setting management objectives, or providing for mitigation measures to respond to population fluctuation. Id. ¶¶ 36-38. Finally, the MIS Amendment exempts numerous previously-approved projects from any sort of monitoring requirements. Id. ¶ 39.
Prior to adopting the MIS Amendment, the Regional Forester prepared an Environmental Impact Statement ("EIS"), as required by the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321 et seq. Id. ¶ 40; see also Section III, infra. The EIS concludes that the MIS Amendment would have "no ecological effects." Id. The Regional Forester also prepared a Biological Assessment of the impact of the MIS Amendment on certain species protected by the Endangered Species Act ("ESA"), 16 U.S.C. § 1531 et seq. Id. ¶ 41. The Biological Assessment concluded that the MIS Amendment would have "no effect" on threatened or endangered species, or on the critical habitat of such species. Id.
In October 2007, NMFS sent a letter to the Regional Forester concurring that the MIS Amendment would have "no effect" on ESA-listed species. Id. ¶ 42. Also in October 2007, the Deputy Division Chief of the California/Nevada Operations Office of FWS sent an email to the Forest Service indicating FWS's concurrence in the Forest Service's "no effect" determination. Id. Based on its own conclusions and the concurrences of NFMA and FWS that the MIS Amendment would have "no effect" on the relevant species, the Forest Service implemented the MIS Amendment without engaging in formal consultation with either NFMA or FWS. Id.
On December 14, 2007, the Deputy Regional Forester of the Pacific Southwest Region of the Forest Service signed the record of decision approving the MIS Amendment. Id. ¶ 43. Plaintiffs appealed that decision, but their appeal was denied by the Associate Deputy Chief of the Forest Service. See id. ¶¶ 44-47.
Shortly after their administrative appeal was denied, Plaintiffs filed this suit, alleging violations of the ESA, NEPA, and the Administrative Procedure Act ("APA"), 5 U.S.C. § 701 et seq. With regard to the Wildlife Services, Plaintiffs contend that both NMFS and FWS gave their concurrences in the "no effect" determination without properly researching the issues, and that the concurrences were therefore arbitrary and capricious.
A brief overview of the statutory and regulatory framework underlying this dispute is warranted. The Forest Service, an agency within the United States Department of Agriculture, is responsible for the management of National Forests and grasslands. The Forest Service promulgates regulations in a three-tier system, pursuant to the Forest and Rangeland Renewable Resources Planning Act of 1974 and the NFMA. See Citizens for Better Forestry v. U.S. Dept. of Agric., 341 F.3d 961, 965 (9th Cir.2003) ("Citizens") (citing 16 U.S.C. §§ 1601-1687). At the highest level, the Secretary of Agriculture promulgates national regulations, which govern the development of the regional and local forest management plans and require NEPA compliance. Id. (citing 16 U.S.C. § 1604(g)). The second tier comprises "land and resource management plans" ("LRMPs"), governing the management of forest regions. Id. at 966. Finally, there are "site-specific" plans, designed to implement specific, on-the-ground actions that are consistent with the national regulations and the LRMPs. Id. The Sierra National Forest LRMP is at issue in this suit.
Prior to taking any "major Federal action[] significantly affecting the quality of the human environment," a federal agency must prepare an Environmental Impact Statement. See 42 U.S.C. § 4332(2)(C). When an agency is uncertain as to whether a proposed action requires an EIS, it may first prepare a more concise Environmental Assessment ("EA") to determine if the EIS is necessary. See 40 C.F.R. §§ 1501.4(a), 1508.9. In addition to these requirements under NEPA, federal agencies must comply with the ESA. Prior to any agency action, including the promulgation of new regulations, the agency must determine whether the proposed action jeopardizes or affects any endangered or threatened species, or adversely affects the critical habitats of such species. This determination may require the agency to consult with either the Secretary of Commerce or the Secretary of Interior. See 16 U.S.C. § 1536(a)(2)-(4); 50 C.F.R. § 402.14.1 If the Secretary advises the agency that endangered or threatened species may be present at the site of the proposed action, the agency must prepare a "Biological Assessment" describing those species and the possible effects on them. Id. § 1536(c); see also Citizens, 341 F.3d at 967 n. 3. The Biological Assessment may be conducted as part of the agency's NEPA-compliant EIS or EA. 16 U.S.C. § 1536(c); see also 50 C.F.R. § 402.12. If the agency consults with the Secretary informally and concludes that no threatened or endangered species or habitat will be affected, it need not engage in formal consultation. 50 C.F.R. § 402.14(b).
The Wildlife Services seek dismissal of Plaintiffs' Complaint for lack of subject-matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1). Specifically, the Wildlife Services argue that Plaintiffs lack standing to sue and that the APA does not establish jurisdiction because the Wildlife Services' concurrences at issue were not final agency actions as required by 5 U.S.C. § 704. See Mot.
The Court may dismiss a complaint for lack of subject-matter jurisdiction where the action (1) "does not `arise under' the Federal Constitution, laws or treaties (or fall within one of the other enumerated categories of Art. III, § 2);" (2) "is not a within the meaning of that section;" or (3) "is not one described by any jurisdictional statute." Baker v. Carr, 369...
To continue reading
Request your trial