Willow Creek Ecology v. U.S. Forest Service

• Decision Date: 10 October 2002
• Docket Number: No. 1:01CV00042K.,1:01CV00042K.
• Citation: 225 F.Supp.2d 1312
• Parties: WILLOW CREEK ECOLOGY, et al., Plaintiffs, v. UNITED STATES FOREST SERVICE, et al., Defendants.
• Court: U.S. District Court — District of Utah

225 F.Supp.2d 1312

WILLOW CREEK ECOLOGY, et al., Plaintiffs, v. UNITED STATES FOREST SERVICE, et al., Defendants.

No. 1:01CV00042K.

United States District Court, D. Utah, Central Division.

October 10, 2002.

COPYRIGHT MATERIAL OMITTED

Joro Walker, Land & Water Fund of the Rockies, Salt Lake City, UT, Neil Levine, Earthjustice Legal Defense Fund, University of Denver Law School, Denver, CO, for Plaintiffs.

Carlie Christensen, Maggie H. Abuhaidar, U.S. Attorney's Office, for Defendants.

ORDER

KIMBALL, District Judge.

This matter is before the court on Defendants' motion to dismiss. A hearing on the motion was held on September 25, 2002. At the hearing, Defendants were represented by Carlie Christensen and Plaintiffs were represented by Neil Levine. After carefully considering the pleadings, memoranda, and other materials submitted by the parties and the law and facts relating to this matter, and now being fully advised, the court renders the following ORDER.

BACKGROUND

This cases arises from a United States Forest Service ("USFS") Decision Notice issued in February 1999 by Forest Supervisor Bernie Weingardt authorizing the harvest of lodgepole pine and spruce-fir in the Wasatch-Cache National Forest ("Bear Hodges Project"). The contract for the lodgepole pine harvest was awarded in May 2000, and harvesting was completed in October 2001. On March 30, 2001 Plaintiffs filed an action seeking judicial review of the Decision Notice pursuant to the Administrative Procedure Act ("APA"). Plaintiffs sought an order declaring that Defendants violated the National Environmental Protection Act ("NEPA"), 42 U.S.C. §§ 4271 et seq., and the National Forest Management Act ("NFMA"), 16 U.S.C. §§ 1600-14, compelling Defendants' compliance with NEPA and NFMA, directing Defendants to rescind the Decision Notice, and enjoining further harvesting in the Bear Hodges Project area. In view of the court's hearing in the case of Utah Environmental Congress v. Zieroth ("UEC"), 190 F.Supp.2d 1265 (D.Utah 2002), Defendants filed a motion to stay the proceedings pending the court's decision in the UEC case. On February 1, 2002, the court granted Defendants' motion and enjoined Defendants from further implementation of the Bear Hodges Project. Subsequent to the decision in the UEC case, Defendants withdrew the February 1999 Decision Notice.

DISCUSSION

Defendants moved to dismiss the Plaintiffs' claims based on mootness under Article III of the U.S. Constitution or under the doctrine of prudential mootness because the February 1999 Decision Notice was voluntarily withdrawn.

A. Article III Mootness

"It is well settled that a defendant's voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice." City of Mesquite v. Aladdin's Castle, 455 U.S. 283, 289, 102 S.Ct. 1070, 71 L.Ed.2d 152 (1982). In analyzing whether voluntary cessation of a challenged activity can moot a pending matter, it must be determined if "(1) it can be said with assurance that there is no reasonable expectation that the alleged violation will recur, and (2) interim relief or events have completely and irrevocable eradicated the effects of the alleged violations." County of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 59 L.Ed.2d 642 (1979) (citations omitted). Moreover, "the burden of demonstrating mootness `is a heavy one.'" Id. In City of Mesquite, the Supreme Court applied this test and found that although the challenged legislation had been repealed, the issue was not moot because "the city's repeal ... would not preclude it from reenacting precisely the same provision if the District Court's judgment were vacated." 455 U.S. at 289, 102 S.Ct. 1070. However, the Tenth Circuit has interpreted City of Mesquite to apply to situations in which the issuing agency has an "openly-announced intention to re-enact the unconstitutional ordinance if the case was dismissed as moot." Camfield v. City of Oklahoma City, 248 F.3d 1214, 1223 (2001). The court must also consider whether the voluntary cessation is an attempt to evade judicial review. See City News and Novelty, Inc. v. City of Waukesha, 531 U.S. 278, 284 n. 1, 121 S.Ct. 743, 148 L.Ed.2d 757 (2001).

1. Timber Remaining in Bear Hodges Project

The USFS contends that this case is moot because Forest Supervisor Thomas Tidwell withdrew the February 1999 Decision Notice in light of the holding in the UEC case and there is currently no authorization to harvest timber in the Bear Hodges Project. Conversely, Plaintiffs argue that there remains a live controversy because Defendants have not indicated how it will correct the alleged NEPA violations, and therefore, Defendants are free to issue a new or reissued decision notice on the same project with the same NEPA deficiencies.

Under the APA, judicial review of agency action is limited to final agency action. 5 U.S.C § 704. Because the February 1999 Decision Notice has been withdrawn, there is no longer a final agency action which is subject to judicial review. See Lujan v. National Wildlife Fed'n, 497 U.S. 871, 882, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990) ("When ... review is sought ... under the general review provisions of the APA, the `agency action' in question must be `final agency action.'"). Moreover, unlike the situation in City of Mesquite, in the instant case, the evidence on record does not support an intent to reissue a decision notice with the same alleged deficiencies after a dismissal on mootness grounds. Indeed, the evidence of record, including the withdrawal of the Decision Notice specifically in light of the UEC ruling and Thomas Tidwell's Affidavit indicating the USFS's intention to follow the law, supports the opposite conclusion. Furthermore, as a new or reissued decision notice would be subject to judicial review under § 706 of the APA, this is not the type of agency action likely to evade judicial review. See City News and Novelty, 531 U.S. at 284 n. 1, 121 S.Ct. 743.

Finally, declaratory relief is not warranted because "[t]o be cognizable in federal courts, ... `[the suit] must be a real and substantial controversy admitting of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of fact.'" North Carolina v. Rice, 404 U.S. 244, 246, 92 S.Ct. 402, 30 L.Ed.2d 413 (1971) (quoting Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 240-241, 57 S.Ct. 461, 81 L.Ed. 617 (1937)). Accordingly, as there is no timber harvest authorized for the Bear Hodges Project, "an order would constitute relief to a hypothetic and non-existent injury." Bear Lodge Multiple Use Ass'n v. Babbitt, 2 F.Supp.2d 1448, 1452 (D.Wyo.1998). Therefore, Plaintiffs' claims regarding timber remaining in the Bear Hodges Project are moot.

2. Timber Harvested From the Bear Hodges Project

Plaintiffs argue that the claims relating to timber already harvested are not moot because effective relief is available in the form of an order to complete monitoring of management indicator species ("MIS") and to adopt mitigation measures for the area of the completed harvest. Plaintiffs have brought claims under both NEPA and NFMA. NEPA is procedural in nature. "NEPA does not work by mandating that agencies achieve particular and substantive environmental results.... NEPA ensures that the agency will not act on incomplete information, only to regret its decision after it is too late to correct." Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 371, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989). Accordingly, remedies under NEPA are limited to procedural remedies. See Utah Council v. United States Army Corp of Engineers, 187 F.Supp.2d 1334, 1338-1339 (D.Utah 2002). Conversely, NFMA exists to "maintain or restore ecological sustainability of national forests." 36 C.F.R. § 219.2(a). Accordingly, a case is not moot under NFMA as long as effective relief is available to counteract the effects of the violation.

Plaintiffs rely on a number of cases wherein completion of the federally authorized project did not render the challenge moot. In Airport Neighbors Alliance, Inc. v. United States, a proposal for an expansion of an airport runway was challenged. 90 F.3d 426, 427-28 (10th Cir.1996). Although the runway expansion was completed, the court found that the completion "renders moot any claim relating to the construction of the runway," id. at 429, but the court could still "consider whether [the agency] complied with NEPA by adequately addressing the environmental impacts resulting from the enhanced use of the runway," id. Similarly, in National Parks and Conservation Association v. FAA, a proposal for construction and use of an airport was challenged. 998 F.2d 1523, 1525 (10th Cir.1993). Although the airport was completed, the case was not moot because "the land could be reconveyed to the [Bureau of Land Management] or certain restrictions could be placed on the use of the airport." Id. at 1525 n. 3. Finally, in Utah Council v. United States Army Corp of Engineers, a proposal for the construction of three pipelines, two of which had been completed or substantially completed, was challenged. 187 F.Supp.2d 1334, 1337-38 (D.Utah 2002). The court recognized that in Airport Neighbors the Tenth Circuit had distinguished between the construction and use of the completed project. Id. at 1339. Accordingly, the Utah Council court concluded that "the Plaintiffs' challenges relating to the construction of the completed projects are moot. However, the court may consider whether the mitigation measures were adequate ... and order procedural relief if the agencies did not follow the mandate of NEPA and the APA." Id.

Only one case cited by the Plaintiffs involves timber. Plaintiffs rely on Neighbors of Cuddy Mountain v. Alexander, 303 F.3d 1059 (9th Cir.2002). In Cuddy Mountain, although an area subject to challenge had already been logged, the co...