The opinion of the court was delivered by: B. Lynn Winmill Chief Judge United States District Court
MEMORANDUM DECISION AND ORDER
The Court has before it two motions to dismiss, one filed by the United States Forest Service (Forest Service) and one by the United States Federal Highway Administration (FHWA). The motions are fully briefed and at issue. The Court will grant each motion in part, for the reasons explained below.
The State of Idaho has authorized oil companies to transport hundreds of oversized loads along U.S. Highway 12, a route passing through the Clearwater National Forest and paralleling two rivers that have been designated as Wild and Scenic Rivers under the Wild and Scenic Rivers Act. Plaintiff Idaho Rivers United (IRU) claims that the Forest Service and the FHWA failed to comply with their mandatory duty to regulate the transportation of those loads through federal land.
Highway 12 and the Wild and Scenic River Corridor
The Idaho segment of U.S. Highway 12 is a two-lane highway that runs 177 miles from the port of Lewiston east to Lolo Pass at the Montana border. See Amended Complaint (Dkt. No. 10) at ¶ 66. For much of its route through Idaho, Highway 12 passes through the Clearwater National Forest, federal land regulated by the Forest Service. The State of Idaho constructed the Highway in the 1950s and '60s. Id. at ¶ 79. The Forest Service issued the State special use permits authorizing it to construct the Highway through the Forest. Id. Until 1995, the State administered the Highway pursuant to these special-use permits and two memoranda of understanding. Id. In 1995, the Forest Service conveyed an easement to the FHWA, which it then conveyed to the State. Id. at ¶ 81. The State recorded the Highway Easement Deed in 1997. The Deed grants the Idaho Transportation Department ("ITD") "a right-of-way for the operation and maintenance of a highway" through the Forest. See Exhibit A (Dkt. No. 21-1) at pg. 3. The easement is subject to various conditions, including that the State shall "[p]rotect and preserve soil and vegetative cover and scenic and scenic and esthetic values on the right of way outside of construction limits." Id. at pg. 6.
The Highway runs along the Middle Fork of the Clearwater and Lochsa Rivers. Both rivers were designated as Wild and Scenic Rivers by the passage of the Wild and Scenic Rivers Act in 1968. See 16 U.S.C. § 1274(a)(1). The Act tasked the Forest Service with administration of these river systems "in such manner as to protect and enhance . . . [their] esthetic, scenic, historic, archeologic, and scientific features." 16 U.S.C. § 1281(a).
The Surface Transportation Efficiency Act of 1991 directs the Secretary of Transportation to "carry out a national scenic byways program that recognizes roads having outstanding scenic, historic, cultural, natural, recreational, and archaeological qualities." 23 U.S.C. § 162(a). Pursuant to this statutory directive, the Secretary designated Highway 12 as the "Northwest Passage Scenic Byway" in 2002. See Amended Complaint at ¶ 71. Both before and after the designation of Highway 12 as a Scenic Byway, the Department of Transportation awarded grants to the State for projects supporting Highway's status as a Scenic Byway. Those grants included funding for the drafting of a "corridor management plan," construction of various interpretive and visitor's centers, and construction of passing lanes. Id. at ¶¶ 70, 71.
State Authorization of "Mega-load" Transportation.
Around October of 2008, Imperial Resources Ventures Limited ("Imperial Oil"), a partially-owned subsidiary of Exxon Mobil, contacted the IDT with a proposal to use Highway 12 to transport equipment for use in tar sand mining and extraction to Alberta, Canada. Id. at ¶¶ 84, 89, 91. Imperial Oil proposed barging pre-manufactured mining equipment to the Port of Lewiston and then using Highway 12 to transport the equipment through Idaho.
On February 14, 2011, ITD issued a Memorandum of Decision authorizing Imperial Oil's proposal. The Memorandum authorizes Imperial Oil to use Highway 12 to transport "200 plus" separate loads, each of which significantly exceeds the State's height, width, length, and/or weight transportation restrictions. Id. at ¶ 85, 90. These "mega-loads" are so large that they occupy both lanes of Highway 12. Id. Imperial Oil's traffic control plan requires the mega-loads to travel at night, accompanied by twenty or more support vehicles. Id. ¶ 92. During the day, the loads will be parked in public turnouts along the highway. Id.
With ITD's permission, Imperial Oil has made modifications along Highway 12 in preparation for the mega-loads. In 2009, Imperial Oil paid for utility companies to upgrade utility lines that did not provide sufficient clearance. Id. at ¶ 93. Also in 2009, the company's contractor, Kiewit, trimmed hundreds of trees along the highway right-ofway, including over 500 in the Clearwater National Forest. Id. Kiewit also resurfaced and reinforced nine turnouts along Highway 12. Id.
In light of ITD's approval of Imperial Oil's transportation plan and the modification of the highway to accommodate those loads, several other companies have approached ITD about transporting mega-loads over Highway 12. Id. at ¶ 102. On February 11, 2011, ConocoPhillips began transporting four oversized loads, along Highway 12 , from Lewiston to an oil refinery in Billings, Montana. Id. at ¶ 98. The Conoco loads delayed traffic along Highway 12, id. at ¶ 108, and occupied public turnouts where they "were parked . . . for days or weeks at a time," id. at ¶ 109.
ITD also issued a permit for Imperial Oil to transport a load as a "test validation module." Id. at ¶ 94. The test module left Lewiston on the evening of April 12, 2011. Id. at ¶ 95. That night, the module clipped a guy wire, resulting in the downing of a power line. Id. at ¶ 46. The module was moved to a turnout and parked there for two weeks while Imperial Oil upgraded additional utility lines and trimmed trees to create greater clearance. Id. at ¶ 97. Many of the trimmed trees were in the Clearwater National Forest and/or the Wild and Scenic River corridor. Id.
Though the Forest Service and the FHWA have expressed concern about the impact of mega-load transport on Highway 12 and the Wild and Scenic River corridor, neither agency has taken any action to prevent or regulate the loads. Both agencies have taken the position that they lack authority to regulate the mega-load transports. Id. at ¶¶ 122, 144.
The Forest Service stated its position in a September 10, 2010 letter from Clearwater National Forest Supervisor Rick Brazell ("Supervisor Brazell") to ITD. The letter raised concerns about the impact of the mega-load transports on the Wild and Scenic River corridor. Supervisor Brazell stated, however, that "I recognize that I have no jurisdiction to stop these shipments . . . ." Id. at ¶ 123.
The Secretary of Transportation, Ray LaHood, expressed his position in correspondence with Congressman Peter DeFazio. Secretary LaHood, in reply to a letter from Congressman DeFazio requesting that the FHWA investigate the mega-load permitting process, responded that "permit issuance for movement of this equipment is the responsibility of the states, not the Federal government." Id. at ¶ 144.
Plaintiff Idaho Rivers United (IRU) is a non-profit conservation organization, whose mission is "to protect and restore the rivers of Idaho." Id. at ¶ 13. On March 10, 2011, IRU filed their first Complaint, alleging that the Forest Service had a mandatory duty to regulate mega-load transportation through the Clearwater National Forest and along the Wild and Scenic River corridor. On June 15, 2011 IRU amended their complaint to add the FHWA as a defendant. The Amended Complaint alleged that the FHWA failed to notify the State of Idaho, pursuant to 23 U.S.C. § 116(c), that the State's authorization of mega-load transport amounted to improper maintenance of federal highway projects along Highway 12. Both defendants now move to dismiss the Amended Complaint.
In evaluating a Rule 12(b)(6) motion, the court accepts the complaint's well-pleaded factual allegations as true and draws all reasonable inferences in the light most favorable to the plaintiff. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555--56 (2007). The issue is not whether the plaintiff will prevail but whether he "is entitled to offer evidence to support the claims." Diaz v. Int'l Longshore and Warehouse Union, Local 13, 474 F.3d 1202, 1205 (9th Cir. 2007) (citations omitted).
IRU's Amended Complaint asserts four claims for relief, each brought pursuant to the judicial review provisions of the Administrative Procedures Act. These claims for relief rely on two related but distinct legal theories. In the Second, Third, and Fourth Claims for Relief, IRU alleges that the Forest Service and/or the FHWA have failed to act, violating a discrete, mandatory duty to regulate mega-load transportation along Highway 12. They argue that this duty flows from various federal statutes, regulations, and land management plans.
In the First Claim for Relief, IRU alleges that even if the Forest Service does not have a mandatory duty to act, it does have discretionary authority to regulate mega-load trucking. Relying on Montana Air Chapter No. 29 v. Fair Labor Relations Authority, 898 F.2d 753, 756 (9th Cir. 1990) ("Montana Air"), IRU argues that both agencies failed to act based on the erroneous conclusion that they lack jurisdiction to do so, and therefore IRU is entitled to limited declaratory relief stating that the agencies do in fact possess authority and jurisdiction to regulate mega-load transportation.
Defendants move to dismiss the Amended Complaint on the grounds that neither agency has a mandatory duty to undertake any particular regulatory or enforcement action under any of the sources of authority cited by IRU. The Court will turn to this argument, and examine it first in the context of the Second Claim.
In its Second Claim, IRU alleges that the Forest Service violated its "affirmative, mandatory duty" to regulate mega-load transport under the Wild and Scenic Rivers Act (WSRA) and the National Forest Management Act (NFMA). See Amended Complaint, supra at ¶ 157. This Claim goes on to allege two different theories about how this mandatory duty was violated. First, IRU alleges that it is challenging "discrete, identifiable agency actions" under § 702(2) of the APA, consisting of the Forest Service letters authorizing the mega-loads and approving tree-trimming. Second, IRU also sues under § 706(1), the provision ...