Wind River Multiple-Use Advocates v. Espy, No. 92-CV-0296-B.

• Court: United States District Courts. 10th Circuit. District of Wyoming
• Writing for the Court: BRIMMER
• Citation: 835 F. Supp. 1362
• Parties: WIND RIVER MULTIPLE-USE ADVOCATES, a nonprofit corporation, Plaintiff, v. Michael ESPY, Secretary of Agriculture, F. Dale Robertson, Chief of the United States Forest Service; Graye Reynolds, Regional Forester of Region 4 of the United States Forest Service; Brian Stout, Forest Supervisor for the Bridger-Teton National Forest; and The United States Forest Service, Defendants.
• Decision Date: 29 October 1993
• Docket Number: No. 92-CV-0296-B.

835 F. Supp. 1362

WIND RIVER MULTIPLE-USE ADVOCATES, a nonprofit corporation, Plaintiff,
v.
Michael ESPY, Secretary of Agriculture, F. Dale Robertson, Chief of the United States Forest Service; Graye Reynolds, Regional Forester of Region 4 of the United States Forest Service; Brian Stout, Forest Supervisor for the Bridger-Teton National Forest; and The United States Forest Service, Defendants.

No. 92-CV-0296-B.

United States District Court, D. Wyoming.

October 29, 1993.

835 F. Supp. 1363

COPYRIGHT MATERIAL OMITTED

835 F. Supp. 1364

John G. Nelson, Todd S. Welch, Mountain States Legal Foundation, Denver, CO, for plaintiff

Carol Statkus, Asst. U.S. Atty. Cheyenne, WY (Scott M. Farley, Michael W. Reed, U.S. Dept. of Justice Environment and Natural Resources Div., Washington, DC, on the brief), for defendant.

ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT

BRIMMER, District Judge.

The above-entitled matter having come before the Court upon the parties' cross-motions for summary judgment, and the Court having reviewed the materials on file herein, having heard argument from the parties, and being fully advised in the premises, FINDS and ORDERS as follows:

Background

The United States Forest Service is administratively empowered to manage and develop lands and resources in the National Forest System. 16 U.S.C. § 1604 (1988). As early as 1979, the Forest Service began to develop alternative management scenarios, analyze the environmental impact of various proposed plans, and incorporate public comment into alternative plans, for the Bridger-Teton National Forest.

Ultimately, on March 2, 1990, the Forest Service adopted the final Bridger-Teton National Forest Land and Resource Management Plan ("the Plan"). Plaintiff, Wind River Multiple Use Advocates ("WRMUA"), then filed an appeal to the Plan. WRMUA principally objected to the Plan because it believes the plan failed to provide for sufficient output of timber and minerals. WRMUA brought this suit alleging that the Forest Service's decision to adopt the Plan gives rise to causes of action under the National Forest Management Act ("NFMA"), 16 U.S.C. § 1604 (1988), the Forest and Rangeland Renewable Resources Planning Act ("RPA"), 16 U.S.C. §§ 1600-1614 (1988), and the Multiple-Use Sustained-Yield Act ("MUSYA"), 16 U.S.C. §§ 528-531 (1988). WRMUA claims specifically: (1) the Forest Service failed to complete a thorough survey of the forest's mineral potential which violated the service's own regulations; (2) the forest plan improperly fails to meet the timber harvest objective as required by the national

835 F. Supp. 1365

renewable resources program; and (3) the grizzly bear zones contained in the Plan were established in violation of the statutory requirement for multiple use. Both WRMUA and the defendants have moved for summary judgment

Standard of Review

"By its very terms, the Rule 56(c) standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there is no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202, 211 (1986) (emphasis in original).

The trial court decides which facts are material as a matter of law. "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Id. at 248, 106 S.Ct. at 2510, 91 L.Ed.2d at 211; see also Carey v. United States Postal Serv., 812 F.2d 621, 623 (10th Cir.1987). Summary judgment may be entered "against a party who fails to make a sufficient showing to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265, 273 (1986); Carey, 812 F.2d at 623. The relevant inquiry is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Carey, 812 F.2d at 623. In considering a party's motion for summary judgment, the court must examine all evidence in the light most favorable to the nonmoving party. Barber v. General Elec. Co., 648 F.2d 1272, 1276 n. 1 (10th Cir.1981).

Discussion

A. The Plaintiff's Claims

In urging this Court to invalidate the Bridger-Teton National Forest Land and Resource Management Plan, WRMUA makes three arguments: (1) the Forest Service failed to complete a thorough survey of the forest's mineral potential which violated the service's own regulations; (2) the forest plan improperly fails to meet the timber harvest objective as required by the national renewable resources program; and (3) the forest plan contains special grizzly bear zones which were established in violation of the statutory requirement for multiple use. In order to fully examine the parties' contentions, it will be necessary to understand each of the plaintiff's arguments. The Court therefore first sets forth an overview of each claim.

1. The Mineral Survey

The plaintiff's first claim rests on the NFMA, 16 U.S.C. § 1604 (1988), and its accompanying regulations, 36 C.F.R. §§ 219.1-219.27 (1991). The NFMA requires the United States Forest Service ("Forest Service") to survey a forest's mineral potential during the forest planning process. This survey must assess, among other things, the probable occurrence of minerals in the planning area; access requirements for mineral exploration and development; and the probable effect of land management prescriptions on mineral-related activities. 36 C.F.R. § 219.22(c)-(f) (1991).

In performing the mineral survey, the Forest Service relied heavily upon portions of the available literature on mineral occurrence in Wyoming.¹ WRMUA contends that because the Forest Service overlooked some additional literature which indicates that the forest possesses a high potential for hard rock mineral development, and that it failed to conduct a proper minerals survey in violation of the NFMA regulation.

2. The Timber Harvest Objective

WRMUA's second claim essentially states that the Average Annual Allowable Sale Quantity ("ASQ") of timber set forth in the plan violates the Renewable Resource Program, 16 U.S.C. § 1602(2) (1988), contained

835 F. Supp. 1366

in the RPA, 16 U.S.C. §§ 1600-1614 (1988), and the NFMA. The RPA directs the Secretary of Agriculture to prepare an assessment of the Nation's renewable resources every ten years. 16 U.S.C. § 1601 (1988). This assessment serves as a basis for the program recommended to Congress by the President which contemplates resource output goals and objectives nationwide. 16 U.S.C. § 1602 (1988). At the regional level, the RPA directs each of the Regional Foresters to prepare Regional Guides which incorporate the resource goals and objectives set forth in the national program. 36 C.F.R. § 219.4(b)(2) (1991). The Regional Guides must "display tentative resource objectives for each Forest from the RPA program." Id.

The Bridger-Teton National Forest's timber harvest objective was set at 46 million board feet per year. See United States Forest Service, Bridger-Teton Nat'l Forest Final Envtl. Impact Statement. The plan, however, sets the ASQ for timber at approximately 12 million board feet per year. WRMUA claims that the RPA harvest objective is binding upon the forest Service and as a result, the plan's designation is in violation of the RPA and the NFMA.

3. The Grizzly Bear Zones

WRMUA's final contention is that the plan's incorporation of the Interagency Grizzly Bear Guidelines ("Grizzly Bear Guidelines") violated the MUSYA, 16 U.S.C. §§ 528-531 (1988), and the NFMA requirements that the forest be managed for multiple use.² Generally, the MUSYA requires the Forest Service to consider multiple use in its administration of the national forests. 16 U.S.C. § 529.

The Forest Service adopted the Grizzly Bear Guidelines when it designated certain areas of the forest as "Management Situation Two" and "Management Situation Three" ("MS-2" and "MS-3"). In essence, MS-2 areas are defined as areas where grizzly bears are occasionally found. In MS-2 areas, where grizzly bears and a proposed use are mutually exclusive, the other uses may prevail. MS-3 areas are defined as those areas where many people are found, and as a result, grizzly bears may be attracted to the area. In those areas, the maintenance and improvement of grizzly habitat is not considered a factor in forest management, and in fact, the goal in these areas is to discourage the presence of bears to prevent human conflict.

WRMUA's argument is that in adopting the Grizzly Bear Guidelines, the Forest Service relied solely upon biological criteria, failing to weigh any multiple use alternatives against grizzly use. This, claims WRMUA, violated the MUSYA.

B. The Defendants' Motion for Summary Judgment

Having set out a general description of each of the plaintiff's claims, the Court next turns to the defendants' motion for summary judgment. The defendants make two arguments in support of their motion: (1) that the plaintiff does not have standing to bring this suit; and that even if it does, (2) this Court cannot invalidate the plan under the Administrative Procedure Act ("APA"), 5 U.S.C. § 706(2)(A) (1988).³ The Court addresses each argument below.

835 F. Supp. 1367

1. The Doctrine of Standing

a. Background on the Law of Standing

Article III of the Constitution limits the jurisdiction of the federal courts to actual "cases" and "controversies." U.S. CONST. art. III, § 2. This limitation on the federal judicial power requires, that a litigant have "standing" before he may invoke a court's power. As the Supreme Court has stated, "in essence, the question of standing is whether the litigant is entitled to...