Utah Native Plant Society v. United States Forest Service, 050719 FED10, 17-4074

Docket Nº:17-4074
Opinion Judge:BALDOCK, CIRCUIT JUDGE.
Party Name:UTAH NATIVE PLANT SOCIETY; GRAND CANYON TRUST, Plaintiffs - Appellants, v. UNITED STATES FOREST SERVICE; TOM TIDWELL, in his official capacity as Chief of the U.S. Forest Service, Defendants - Appellees. STATE OF UTAH; STATE OF ALASKA; STATE OF COLORADO; STATE OF IDAHO; STATE OF KANSAS; STATE OF NEBRASKA; STATE OF WYOMING; NEW MEXICO DEPARTMENT...
Attorney:Aaron Paul (Neil Levine with him on the briefs), Grand Canyon Trust, Denver, Colorado, for Plaintiffs-Appellants. Jared C. Bennett, Assistant United States Attorney (John W. Huber, United States Attorney, with him on the brief), Salt Lake City, Utah, for Defendants-Appellees. Sean D. Reyes, Utah ...
Judge Panel:Before BRISCOE, BALDOCK, and EID, Circuit Judges. EID, J., concurring in part and concurring in the judgment in part.
Case Date:May 07, 2019
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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UTAH NATIVE PLANT SOCIETY; GRAND CANYON TRUST, Plaintiffs - Appellants,

v.

UNITED STATES FOREST SERVICE; TOM TIDWELL, in his official capacity as Chief of the U.S. Forest Service, Defendants - Appellees.

STATE OF UTAH; STATE OF ALASKA; STATE OF COLORADO; STATE OF IDAHO; STATE OF KANSAS; STATE OF NEBRASKA; STATE OF WYOMING; NEW MEXICO DEPARTMENT OF GAME AND FISH; ASSOCIATION OF FISH AND WILDLIFE AGENCIES, Amici Curiae.

No. 17-4074

United States Court of Appeals, Tenth Circuit

May 7, 2019

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH (D.C. No. 2:16-CV-00056-PMW)

Aaron Paul (Neil Levine with him on the briefs), Grand Canyon Trust, Denver, Colorado, for Plaintiffs-Appellants.

Jared C. Bennett, Assistant United States Attorney (John W. Huber, United States Attorney, with him on the brief), Salt Lake City, Utah, for Defendants-Appellees.

Sean D. Reyes, Utah Attorney General, Tyler R. Green, Utah Solicitor General, and Martin B. Bushman and Gregory Hansen, Assistant Utah Attorneys General, Salt Lake City, Utah, filed an Amicus Curiae Brief for the States of Utah, Alaska, Colorado, Idaho, Kansas, Nebraska, and Wyoming, and the New Mexico Department of Game and Fish in support of Defendants-Appellees.

Carol Frampton and Lane Kisonak, Association of Fish and Wildlife Agencies, Washington, D.C., filed an Amicus Curiae Brief for the Association of Fish and Wildlife Agencies in support of Defendants-Appellees.

Before BRISCOE, BALDOCK, and EID, Circuit Judges.

BALDOCK, CIRCUIT JUDGE.

The La Sal Mountain Range, located in southeastern Utah on the Colorado Plateau, encompasses the vast acreage of the Manti-La Sal National Forest. The highest elevations of the national forest support one of the rare alpine communities in the region. At these elevations, sensitive tundra vegetation grows among talus rock and rare plants find their home. To preserve this particular community, Defendant United States Forest Service (FS) in 1988 designated a 2, 380 acre portion of the Manti-La Sal National Forest's highest elevations, namely the summits and ridges of Mt. Peale, Mt. Mellenthin, and Mt. Tukuhnikivatz, as the Mt. Peale Research Natural Area (RNA).1 According to an FS regulation, an RNA should "illustrate adequately or typify for research or educational purposes, the important forest and range types in each forest region, as well as other plant communities that have special or unique characteristics of scientific interest and importance." 36 C.F.R. § 251.23. The applicable regulation further provides an RNA "will be retained in a virgin or unmodified condition except where measures are required to maintain a plant community which the area is intended to represent." Id. According to the instant suit, "until 2013, the Forest Service adhered to its rules and preserved the [Mt. Peale RNA] in an unmodified natural state."

Now enter the State of Utah's Division of Wildlife Resources (UDWR), the "wildlife authority for Utah . . . [s]ubject to the broad policymaking authority of the Wildlife Board." Utah Code Ann. § 23-14-1(1)(b), (2)(a). In June 2013, the Utah Wildlife Board approved UDWR's "Utah Mountain Goat Statewide Management Plan." Among other things, UDWR's plan anticipated the release of a target population of 200 mountain goats into the La Sal Mountains adjacent to the Manti-La Sal National Forest for the express purposes of hunting and viewing. The FS, rightly concerned the goats might adversely affect the habitat of the higher alpine regions of the national forest, responded by asking UDWR to delay implementation of its plan while the FS in coordination with UDWR studied the plan's expected impact on the national forest and the RNA. Unfortunately, UDWR rejected the FS's request for an outright delay. UDWR indicated it would begin implementing its plan by transplanting a small number of goats into the mountains, but would work cooperatively with the FS to assess impacts and develop a strategy to prevent overutilization of the habitat. In September 2013, UDWR released twenty mountain goats on State lands adjacent to the Manti-La Sal National Forest. A year later, UDWR released an additional fifteen mountain goats on the same State lands.

At this point, Plaintiff Grand Canyon Trust (GCT) said enough.2 The goats, to no one's surprise, had moved into the La Sal Mountains' higher elevations. There, according to GCT, the goats were wallowing and foraging within the national forest and more particularly within the Mt. Peale RNA. Noting ongoing harm to the Mt. Peale RNA and citing 36 C.F.R. § 251.23, GCT demanded the FS (1) prohibit UDWR from introducing additional mountain goats onto State lands adjacent to the national forest, (2) regulate UDWR's occupancy and use of the national forest by requiring it to obtain special use authorization before releasing additional mountain goats on State lands, and (3) immediately remove the mountain goats already in the national forest.

The FS denied GCT any relief, at least for the time being. In a letter to GCT, the Chief of the FS explained "[t]he Forest Service does not regulate or control UDWR's activities that do not occur on NFS [National Forest Service] land, and your request that the Forest Service prevent UDWR from transplanting goats anywhere in the La Sal Mountains is beyond the control of the Forest Service." The Chief further explained UDWR was not required to seek a special use permit to use the national forest before releasing the mountain goats on State lands: "[T]he UDWR did not release the mountain goats on NFS land, and therefore was not using or occupying NFS land at the time of the mountain goats release. The mountain goats have strayed onto adjacent NFS land, including the land within the Mount Peale RNA, after they were released on non-Federal land by UDWR." Lastly, the FS Chief took a "wait and see" attitude with regard to GCT's request that the FS remove or destroy any mountain goats not only in the Mt. Peale RNA but throughout the national forest:

[T]he Forest Service is working cooperatively with UDWR to evaluate any resource impacts and to determine an appropriate action, including consideration of removal of the mountain goats from the RNA or reduction in herd numbers.

Before initiating any such action, the Forest Service will work with UDWR to gather and evaluate data sufficient to determine whether that action is warranted, and then will work cooperatively with UDWR to determine and implement the appropriate course of action.

GCT's lawsuit for declaratory and injunctive relief followed.

I.

GCT's muddled complaint alleged five "claims for relief" against the FS arising under federal law, all pursuant to the judicial review provisions of the Administrative Procedures Act (APA), 5 U.S.C. §§ 701-706. GCT represents that only two of its claims are before us on appeal. GCT's first claim seeks relief under APA § 706(2) and alleges the FS -knowing full well UDWR's mountain goat plan would result in goats migrating into the Manti-La Sal National Forest and the Mt. Peale RNA-acted arbitrarily, capriciously, and unlawfully by denying GCT's three demands for relief. Meanwhile, GCT's second claim seeks relief under APA § 706(1) and alleges the FS unlawfully failed to act by refusing to comply with the FS regulation mandating RNA's "will be retained in a virgin or unmodified condition." 36 C.F.R. § 251.23.

The FS moved to dismiss GCT's complaint in its entirety under Fed.R.Civ.P. 12(b)(1) for failure to allege final agency action as required by APA § 704, and thus subject matter jurisdiction over the Government, which enjoys sovereign immunity absent congressional waiver. The district court granted the motion: Plaintiffs have cleverly amalgamated federal law in an attempt to find some pathway to judicial review. Pulling apart Plaintiffs' contortions, the court [concludes] that it has no jurisdiction to review the Forest Service's action or inaction with respect to the mountain goats' occupation of the Manti-La Sal National Forest. . . . The Forest Service has not determined whether the goats' presence in the Manti-La Sal National Forest violates federal law or the existing Forest Plan. Nor has the Forest Service decided that it will never act on Plaintiffs' requests. The State acted and now the Forest Service is in the reactionary position attempting to determine what agency action, if any, is warranted. Accepting Plaintiffs' allegations as true, the court [holds] that Plaintiffs have failed to provide the court any action or inaction on behalf of the Forest Service that is reviewable under the APA.

Utah Native Plant Soc'y v. United States Forest Serv., 2017 WL 822098, at *5 (D. Utah 2017) (unpublished). GCT appeals. Our jurisdiction arises under 28 U.S.C. § 1291. Our review of the complaint's sufficiency is de novo. See Jones v.

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