Wilderness Society v. Bosworth

• Decision Date: 20 July 2000
• Docket Number: No. CV-97-208-M-LBE.,CV-97-208-M-LBE.
• Citation: 118 F.Supp.2d 1082
• Parties: The WILDERNESS SOCIETY, Idaho Conservation League, Inland Empire Public Lands Council, Ecology Center, Friends of Clearwater, Idaho Rivers United, and Clearwater Biodiversity Project, Plaintiffs, v. Dale BOSWORTH, Regional Forester; James Caswell, Forest Supervisor, Clearwater National Forest; and U.S. Forest Service, an agency of the U.S. Department of Agriculture, Defendants. Intermountain Forest Industry Association, Resource Organization on Timber Supply, Ltd., Bennett Lumber Products, Inc., and Three Rivers Timber, Inc., Intervener Defendants. Associated Logging Contractors, Inc., a non-profit corporation, Intervener Defendant.
• Court: U.S. District Court — District of Montana

118 F.Supp.2d 1082

The WILDERNESS SOCIETY, Idaho Conservation League, Inland Empire Public Lands Council, Ecology Center, Friends of Clearwater, Idaho Rivers United, and Clearwater Biodiversity Project, Plaintiffs, v. Dale BOSWORTH, Regional Forester; James Caswell, Forest Supervisor, Clearwater National Forest; and U.S. Forest Service, an agency of the U.S. Department of Agriculture, Defendants.

Intermountain Forest Industry Association, Resource Organization on Timber Supply, Ltd., Bennett Lumber Products, Inc., and Three Rivers Timber, Inc., Intervener Defendants.

Associated Logging Contractors, Inc., a non-profit corporation, Intervener Defendant.

No. CV-97-208-M-LBE.

United States District Court, D. Montana, Missoula Division.

July 20, 2000.

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Elizabeth A. Brennan, Rossbach Brennan, P.C., Missoula, MT, Laird J. Lucas, William M. Eddie, Land and Water Fund of the Rockies, Boise, ID, William A. Rossbach, Rossbach Brennan, P.C., Missoula, MT, for Wilderness Society, Idaho Conservation League Inland Empire Public Lands Council, Ecology Center, Friends of Clearwater, Idaho Rivers United, Clearwater Biodiversity Project.

John W. Watts, U.S. Dept. of Justice, Env. & Nat. Resources Div., Washington, DC, Edward A. Boling, U.S. Dept. of Justice —Gen. Litigation Section, Washington, DC, William W. Mercer, Office of U.S Atty., Missoula, MT, Daniel W. Pinkston, U.S. Dept. of Justice, Env. & Nat. Resources Div., Denver, CO, Christine Reck Everett, Office of Gen. Counsel, U.S. Dept. of Ag., Missoula, MT, for Dale Bosworth, James Caswell, U.S. Forest Service.

Rebecca W. Watson, Gough, Shanahan, Johnson & Waterman, Helena, MT, Jeffrey M. Hindoien, Gough, Shanahan, Johnson & Waterman, Helena, MT, Nancy A. Wolff, Richard S. Christensen, Morris and Wolff, St. Maries, ID, for Associated Logging Contractors.

Patrick D. Madigan, Rosholt, Robertson & Tucker, Boise, ID, Bruce M. Smith, Moore Smith Buxton & Turcke, Boise, ID, Steven R. Brown, Garlington, Lohn & Robinson, PLLP, Missoula, MT, Lucy T. France, Garlington, Lohn & Robinson, PLLP, Missoula, MT, for Intermountain Forst Industry, Association, Resource Organization on Timber Supply, Ltd., Bennett Lumber Products, Inc., Three Rivers Timber, Inc.

ORDER

ERICKSON, United States Magistrate Judge.

This action seeks judicial review of Forest Service projects on the Clearwater National Forest under the National Forest Management Act (NFMA), the National Environmental Policy Act (NEPA), a court-approved settlement agreement outlined in the Stipulation of Dismissal of The Wilderness Society v. Robertson, No. 93-0043-S-HLR (D.Idaho 1993) (referred to by the parties as the "TWS Settlement"), and the Clean Water Act (CWA).¹ Further, the Plaintiffs request costs and attorney fees under the Equal Access to Justice Act regarding these claims. The parties have consented to the jurisdiction of the magistrate judge for these proceedings pursuant to 28 U.S.C. § 636(c). Pending before the Court are a number of motions. The motions have been fully briefed, deemed submitted, and heard at oral argument. The Court being informed now enters the following order:

1. Plaintiffs' motion is GRANTED and Defendants' cross-motion is DENIED for partial summary judgment on Old Growth Violations regarding the 10% standard.

Plaintiffs' motion is DENIED and Defendants' cross-motion is GRANTED for partial summary judgment regarding Old Growth violations regarding the 5% standard.

2. Plaintiffs' Motion for Partial Summary Judgment regarding Monitoring Violations is DENIED.

3. Plaintiffs' and Defendants' motion for partial summary judgment regarding the Fish Bate Projects are GRANTED IN PART and DENIED IN PART as more fully set forth herein.

4. Plaintiffs' Motions to Strike Reply Declarations or for Leave to File Surreply on Fish Bate Motions is DENIED.

5. Intervener Associated Logging Contractors' Motion for Partial Summary Judgment on the TWS Settlement is GRANTED IN FAVOR OF PLAINTIFFS AND DEFENDANTS.

6. Defendants' Motion for Summary Judgment on all remaining claims is DENIED.

I. BACKGROUND

The Clearwater National Forest encompasses approximately 1.8 million acres of mountainous federal land in north-central Idaho. The focus of this action is primarily on two forest-management project decisions named after the watersheds in which they occur; the Fish Bate Salvage (Fish Bate) project and the White Pine Creek (White Pine) project². The Fish Bate project area lies to the south and west of a bend in the North Fork of the Clearwater River above Dworshak Reservoir, and includes the watersheds of Fish and Bates Creeks among others. (Administrative Record (AR) Fish Bate, Vol. 11, Doc. 25.) This project is in a landscape managed entirely by the Forest Service. The White Pine project is in a landscape composed of federal, state and private lands. The project area is located within Latah and Benewah Counties in Idaho. Proposed activities would occur primarily within the White Pine Creek and Blakes Fork Creek tributaries of Meadow Creek, which flows into the upper Palouse River. Limited activity would also take place in upper Hangman Creek, which drains into the Spokane River. (AR White Pine, Vol. 4, Doc. 5.) Specific facts concerning the projects will be discussed as relevant to each motion.

II. STANDARD OF REVIEW

A. ADMINISTRATIVE PROCEDURE ACT

Plaintiffs seek relief under the Administrative Procedure Act (APA), which permits judicial review of final actions of agencies of the United States. The APA imposes a narrow and highly deferential standard of review. Pertinent to this action, the Court's review is limited to a determination of whether the agency acted in a manner that was "arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A) (1994). The party challenging the agency action has the burden of showing there is not "a rational connection between the facts found and the choice made" or that there was a clear error in judgment based on the relevant factors. Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983); Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). An agency's decision is arbitrary and capricious if the agency, inter alia, has "entirely failed to consider an important aspect of the problem, [or] offered an explanation for its decision that runs counter to the evidence before the agency ...." Motor Vehicle Mfrs., 463 U.S. at 43, 103 S.Ct. 2856.

"Although this inquiry into the facts is to be searching and careful, the ultimate standard of review is a narrow one. The court is not empowered to substitute its judgment for that of the agency." Volpe, 401 U.S. at 416, 91 S.Ct. 814. In making a determination under the arbitrary and capricious standard of the APA, a court is to "review the whole record or those parts of it cited by a party." 5 U.S.C. § 706 (1994). Thus, the scope of such a review is necessarily limited to the administrative record before the decision-maker and placed before the reviewing court. Florida Power & Light Co. v. Lorion, 470 U.S. 729, 743, 105 S.Ct. 1598, 84 L.Ed.2d 643 (1985); See also Friends of the Earth v. Hintz, 800 F.2d 822, 828-9 (9th Cir.1986). In applying this standard, "the focal point for judicial review should be the administrative record already in existence, not some new record made initially in the reviewing court." Camp v. Pitts, 411 U.S. 138, 142, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973).

Moreover, the focus of judicial review under the APA must be upon the record before the agency at the time it made its decision, and not upon subsequent events or rationales after the fact. Volpe, 401 U.S. at 419-21, 91 S.Ct. 814; Asarco, Inc. v. United States Envtl. Protection Agency, 616 F.2d 1153, 1159-60 (9th Cir.1980); Alvarado Community Hosp. v. Shalala, 155 F.3d 1115, 1124 (9th Cir.1998). The Ninth Circuit allows consideration of extra-record materials in four circumstances:

(1) if necessary to determine whether the agency has considered all relevant factors and has explained its decision, (2) when the agency has relied on documents not in the record, or (3) when supplementing the record is necessary to explain technical terms or complex subject matter, and (4) when the plaintiffs make a showing of agency bad faith.

Northcoast Envtl. Ctr. v. Glickman, 136 F.3d 660, 665 (9th Cir.1998)(internal quotes omitted). Such supplementation of the record should be a limited exception and the supplemental information viewed for its narrow purpose. Asarco, 616 F.2d. at 1159-60 (9th Cir.1980) ("When a reviewing court considers evidence that was not before the agency, it inevitably leads the reviewing court to substitute its judgment for that of the agency.").

And finally, "[w]hen specialists express conflicting views, an agency [has] the discretion to rely on the reasonable opinions of its own qualified experts even if, as an original matter, a court might find contrary views more persuasive." Greenpeace Action v. Franklin, 982 F.2d 1342, 1350 (9th Cir.1992)(citing Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 378, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989)).

B. SUMMARY JUDGMENT

Disposition on the merits by way of summary judgment is appropriate where no genuine issues of material fact exist, and a party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). To defeat a motion for summary judgment, the nonmoving party must set forth specific facts that show there is a genuine issue for trial. Fed.R.Civ.P. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The Supreme Court has made clear that summary judgment is the principal tool for eliminating factually and legally insufficient claims. It is "an integral part of the Federal Rules as a whole, which are designed `to...