Wilderness Society v. Thomas, 98-16693

Decision Date13 July 1999
Docket NumberNo. 98-16693,98-16693
Parties(9th Cir. 1999) WILDERNESS SOCIETY, a non-profit corporation; SIERRA CLUB, a non-profit corporation, Plaintiffs-Appellants, v. JACK WARD THOMAS, Chief of the United States Forest Service; CHIP CARTWRIGHT, Regional Forester for the Southwest Region of the Forest Service; MICHAEL KING, Forest Supervisor for the Prescott National Forest, Defendants-Appellees, YAVAPAI CATTLE GROWERS ASSOCIATION, a non-profit association; REX G. MAUGHAN; RUTH G. MAUGHAN; HOBSON FAMILY TRUST, Defendants-Intervenors-Appellees
CourtU.S. Court of Appeals — Ninth Circuit

[Copyrighted Material Omitted] Deborah S. Reames, Earthjustice Legal Defense Fund, San Francisco, California, Gilbert T. Venable, Barton, Venabale, Gullette & Randall, Phoenix, Arizona, for the plaintiffs- appellants.

Lisa E. Jones, Environment & Natural Resources Division, United States Department of Justice, Washington, D.C., for the defendants-appellees.

Karen Budd-Falen, L. Eric Lundgren, Budd-Fallen Law Offices, Cheyenne, Wyoming, for the defendants-intervenors-appellees.

Appeal from the United States District Court for the District of Arizona; Paul G. Rosenblatt, District Judge, Presiding. D.C. No. CV-96-01812-PGE.

Before: Herbert Y. C. Choy, Ferdinand F. Fernandez andSidney R. Thomas, Circuit Judges.

THOMAS, Circuit Judge:

In this appeal, we consider whether the United States Forest Service ("Forest Service") violated the National Forest Management Act ("NFMA" or "the Act"), 16 U.S.C. S 1600, et seq., in preparing a Forest Plan for the Prescott National Forest. We conclude that the Forest Service complied with the Act, and affirm the judgment of the district court.

I

The Prescott National Forest ("Forest") is a unit of the National Forest System located in a relatively mountainous area in central Arizona, about 70 air miles north of Phoenix. Following its creation in 1908, the original Forest area was supplemented by additional land over the years, and it now contains approximately 1,227,000 acres. The Forest Service manages the Forest for a variety of uses, including camping, backpacking and horseback riding. It has historically also been used for livestock grazing, managed through the issuance of grazing permits to ranchers on a total of 69 separate grazing allotments.

The NFMA requires the Forest Service to develop and maintain a forest management plan for each unit of the National Forest System. See 16 U.S.C. S 1604 (a). The forest plans must provide for multiple uses of forests, including "coordination of outdoor recreation, range, timber, watershed, wildlife and fish, and wilderness." 16 U.S.C.S 1604(e)(1). All permits and contracts for the use of the forests must be consistent with the forest plans. See 16 U.S.C.S 1604(i).

In November 1985, the Forest Service issued a Proposed National Forest Plan for the Forest in central Arizona, together with a Draft Environmental Impact Statement. After a period of public comment and review, the final Plan and accompanying Environment Impact Statement ("EIS") were issued. The Regional Forester approved the Plan in a Record of Decision ("ROD").

The Plan identified aggregate acreage not "capable" of being used for commercial livestock grazing due to physical constraints such as steepness of slopes and lack of soil. A coalition of environmental groups, including the plaintiffs, administratively appealed the ROD, claiming that the Forest Service was obligated by its own regulations to conduct a separate grazing suitability analysis in order to physically identify land "suitable" for livestock grazing.

The Forest Service affirmed the Regional Forester's decision to adopt the Plan, concluding that it conformed to applicable regulations. Thereafter, the plaintiffs filed suit in district court, alleging that the NFMA requires the Forest Service to determine whether lands deemed "capable" of supporting livestock grazing are also "suitable" for livestock grazing, based on a consideration of the economic and environmental consequences of grazing and the alternative uses foregone. Additionally, plaintiffs alleged that since the adoption of the Plan, the Forest Service has approved numerous site-specific allotment management plans and issued grazing permits without conducting an analysis of "grazing suitability."

The complaint stated four claims for relief: (1) that the Forest Service violated the NFMA by adopting the Plan before conducting a grazing suitability determination; (2) that the Forest Service violated the NFMA by issuing grazing permits for the Crooks Canyon/Maverick grazing allotment without first conducting a grazing suitability determination; (3) that the Forest Service violated the NFMA by issuing grazing permits for the Brady Butte grazing allotment without first conducting a grazing suitability determination; and (4) that the Forest Service violated the Administrative Procedures Act ("APA") by arbitrarily and capriciously permitting grazing in the Prescott National Forest in the absence of a suitability determination.

The district court granted summary judgment in favor of the Forest Service and defendants-intervenors Yavapai Cattle Growers, and this appeal followed.

II

We address first the question of whether this case is justiciable pursuant to Ohio Forestry Ass'n, Inc. v. Sierra Club, 118 S. Ct. 1665 (1998). Ohio Forestry held that a generic challenge to a forest plan untethered to any specific or concrete harm was not ripe for adjudication, and therefore not justiciable. The Court enumerated three factors in deciding whether the agency decision to adopt the forest plan was ripe for judicial review: "(1) whether delayed review would cause hardship to the plaintiffs; (2) whether judicial intervention would inappropriately interfere with further administrative action; and (3) whether the courts would benefit from further factual development of the issues presented." Id at 1670.

Applying those criteria to a challenge to a forest plan's specification for logging and clear-cutting, the Court noted that the forest plan at issue did not by itself bestow or diminish legal rights because any logging activity requires a sitespecific action preceded by a permitting process. See id. As a consequence, the challenge to the forest plan was not ripe for judicial review. See id. However, the Court further noted that the ripeness doctrine does not always render forest plans immune to challenge because a later challenge to a sitespecific action, brought "when harm is more imminent and more certain[,] . . . might also include a challenge to the lawfulness of the present Plan if . . . the Plan plays a causal role with respect to the . . . then-imminent[ ] harm from logging." Id. The Court indicated that the ripeness doctrine would not bar a challenge to a forest plan if the plaintiff alleged a specific harm that would flow immediately from adoption of the plan. See id. -, 118 S.Ct. at 1672-73.1

Ohio Forestry embraces the eminently sensible proposition that harm is best assessed when it is tangible, rather than theoretical. Thus, for a challenge to a forest plan to be justiciable under the Act, the plaintiffs must allege either (1) imminent concrete injuries that would be caused by the forest plan, such as "allowing motorcycles into a bird-watching area" or "clos[ing] a specific area to off-road vehicles," see 523 U.S. at-, 118 S. Ct. at 1673, or (2) a site-specific injury causally related to an alleged defect in the forest plan. Generic challenges to the sufficiency of forest plans are no longer justiciable, nor are challenges that merely identify affected sites without alleging a harm causally related to the forest plan. See id.; see also ONRC Action v. BLM, 150 F.3d 1132, 1136 (9th Cir. 1998) (acknowledging that Ohio Forestry "calls into doubt a plaintiff's ability to challenge an agency's adoption of a plan without site-specific actions as the focus of the challenge").

Here, plaintiffs' complaint alleges not only that the Forest Service violated the NFMA by failing to conduct a forestwide grazing suitability study, but also that the Forest Service violated the NFMA at a site-specific level by approving allotment management plans for the Crooks Canyon/Maverick and the Brady Butte allotments without identifying the lands suitable for grazing on those allotments. In short, the plaintiffs allege that the Forest Service's general methodology in determining grazing suitability in the Forest Plan was flawed, causing site-specific harm by allowing grazing in an area unsuitable for it. Thus, the claims alleged in count one (a general challenge to the Forest Plan) are not justiciable; however, the claims alleged in counts two and three (site specific injury relating to Crooks Canyon/Maverick and the Brady Butte allotments) are ripe for review. Because the site-specific injury to the two allotments is alleged to have been caused by a defect in the Forest Plan, we may consider whether the Forest Service complied with the Act in making its general grazing suitability determinations in the Forest Plan.

In sum, the Ohio Forestry ripeness factors do not weigh against judicial review of counts two and three at this juncture. An actual, site-specific injury causally related to a plan defect has been alleged. The question presented by the plaintiffs -- whether the Forest Service is obliged under the NFMA to conduct a distinct grazing suitability analysis -- is essentially a question of law. Therefore, the court would not benefit from further factual development of the issue presented. Because the action seeks to compel the agency to comply with an alleged NFMA requirement, judicial intervention would not interfere inappropriately with further administrative action. Finally, our review does invoke "the kind of `abstract disagreements over administrative policies' that the ripeness...

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