United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER ON SUMMARY JUDGMENT MOTIONS INTRODUCTION
RONALD E. BUSH, Magistrate Judge.
Pending before the Court are cross motions for summary judgment (Dkts. 23 & 28), asserting legal issues appropriate for resolution on summary judgment. After an earlier hearing upon the motions, the Court stayed the case to wait for the U.S. Supreme Court's decision on review of a Ninth Circuit Court of Appeals case involving a standing issue similar to this case, Pacific Rivers Council v. U.S. Forest Service, 689 F.3d 1012 (9th Cir. 2012). See U.S. Forest Service, et al. v. Pacific Rivers Council, et al., No. 12-623, 133 S.Ct. 1582, 2013 WL 1091766 (U.S. Mar. 18, 2013). On June 17, 2013, the Supreme Court vacated the opinion by the United States Court of Appeals for the Ninth Circuit, and in remanding the case, directed the district court to dismiss it as moot in its entirety. U.S. Forest Service v. Pacific Rivers Council, 133 S.Ct. 2843, 2013 WL 2922118 (U.S. Jun 17, 2013). See also Pacific Rivers Council v. U.S. Forest Service, 724 F.3d 1146, 1147 (9th Cir. 2013). Accordingly, the stay is lifted and the Court now enters the following Order granting ICL's Motion for Summary Judgment and denying Defendants' cross-motion.
Plaintiff Idaho Conservation League ("ICL") challenges a decision made by the U.S. Forest Service and supervisors Mary Farnsworth and Maggie Pittman (collectively "the Forest Service") for a timber and fire management project ("Project") in the Fern Hardy Resource Area ("Fern Hardy"), located in the Coeur d'Alene River Ranger District in the Idaho Panhandle National Forests (the "Panhandle"). ICL seeks declaratory relief (1) stating that the Forest Service failed to comply with the environmental review requirements of the Healthy Forest Restoration Act, and (2) "an injunction prohibiting road building, timber extraction, and fire management activities until the Forest Service complies with the law." Pl.'s Mem., p. 1 (Dkt. 23-1).
ICL argues that the Project will affect a number of terrestrial and aquatic ecosystems and species. Pl.'s Mem., p. 2 (Dkt. 23-1). The planned activities include commercial timber harvest, prescribed burning, fuel breaks, vegetation management, road construction, road improvement and reconditioning, and road maintenance. PI-75, EA, p. 2-2. These activities will occur on 2, 493 acres of the 13, 200 acre Fern Hardy area. PI 75, p. 2-2. The management plan for the Project emerged because conditions in the Fern Hardy create a risk of uncontrolled fires that threaten homes, infrastructure (such as roads and power lines), and natural resources. EA, pp. 3-2, 3-8.
The Healthy Forest Restoration Act ("HFRA") was enacted in 2003 to "reduce wildfire risk to communities, municipal water supplies, and other at-risk federal land" by "[a]s soon as practicable" implementing "authorized hazardous fuel reduction projects." 16 U.S.C. §§ 6501(1), 6512(a). In pursuit of that goal, in April 2011 the Forest Service developed an Environmental Assessment for the Project in the Fern Hardy. EA, p. 1-3. That assessment describes the Fern Hardy's location as close to home sites, private lands, the I-90 freeway corridor, and other community infrastructure. PI-75, EA, p. 1-3. The Forest Service explained in the assessment that a severe wildfire in the area could result in loss of lives, structures, and private land values, in addition to a loss of environmental values such as forest cover, wildlife habitat, soil productivity, water quality, timber value, and scenic quality. Id.
In the EA, the Forest Service states that its management plan for the Fern Hardy Project was based on three objectives - to reduce hazardous fuels, develop sustainable forest conditions, and restore and retain key ecosystem components. PI-75, EA, p. 1-3. The Forest Service identified two alternatives for the Project in the EA: (1) take no action or (2) or implement a plan that includes vegetation and road management. PI-75, EA, p. 2-2. The Forest Service's road management plan includes building temporary and permanent roads, and reconstructing, reconditioning, maintaining, and decommissioning roads. The vegetation management plan includes commercial timber harvesting, prescribed burns, fuel break development, and tree planting. PI-75, EA, p. 2-2. The Fern Hardy Project is farther than 1.5 miles of the boundary of an at risk community. PI-PF-81, p. D-7.
ICL contends in its pending motion that insufficient action alternatives were considered by the Forest Service in creating the Fern Hardy Environmental Assessment. The Forest Service takes the opposition position in making its own motion, and also challenges ICL's standing to bring this case. Accordingly, the Court decides here: (1) whether ICL has standing to pursue this case, (2) whether the Forest Service was required to include and analyze a second action alterative in the Fern Hardy Environmental Assessment, and, if so, (3) whether the Forest Service adequately considered a second action alternative.
THE FOREST SERVICE'S CROSS-MOTION FOR SUMMARY JUDGMENT
The Forest Service requests summary judgment in its favor on all issues raised by ICL, but also asserts that ICL lacks standing to pursue this case. Because a ruling in favor of the Forest Service on the standing issue would obviate the need to rule on other matters, the Court first will decide the question of ICL's standing.
A. Evidence Considered in Determining Whether ICL has Standing
The parties disagree about whether Julie Dalsaso's declaration in support of ICL's standing was timely submitted. The Dalsaso Declaration was filed with Plaintiff's reply brief on May 3, 2012. The Case Management Order ("CMO"), however, contains a March 15, 2012 deadline to file "declarations or other evidence in support of [ICL's] Article III standing." (Dkt. 24, p. 2).
ICL contends that the parties' stipulation, presented to the Court in support of the CMO, was not intended to foreclose additional evidence. ICL submitted an email exchange between counsel in which ICL's counsel committed to file the "standing" declarations by March 15th. However, ICL qualified its intentions, saying that if "the Forest Service raises standing arguments in its brief, we reserve our rights... to introduce additional evidence related to standing." Regan Declr., Ex. B-1, p. 1 (Dkt. 33-3).
Accordingly, there is an open question as to whether the parties had agreed there would be no objection to a later-raised piece of evidence on standing. Of significance, the Forest Service could have rejected ICL's qualified position, but did not do so and in the context, its silence is the equivalent of assent. Even so, because Plaintiff's reply brief also was intended to serve as a brief in response to the Forest Service's Cross-Motion for Summary Judgment, the Dalsaso Declaration was timely filed as an affidavit supporting ICL's response to the Forest Service's motion, which first raised the standing issue. See D. Idaho L. Civ. R. 7.1(c)(1) (providing that the "responding party shall serve and file with the response brief any affidavits, declarations[, ]... and other supporting materials on which the responding party intends to rely"). For these reasons, the Court will consider the Dalsaso Declaration on the standing issue.
B. Standards of Law
Article III of the United States Constitution limits judicial power to deciding cases and controversies. The standing doctrine requires a plaintiff to allege "a personal stake in the outcome of the controversy... to warrant his invocation of federal-court jurisdiction." Warth v. Seldin, 442 U.S. 490, 498-99 (1975). A plaintiff must establish that:
he is under threat of suffering "injury in fact" that is concrete and particularized; the threat must be actual and imminent, not conjectural or hypothetical; it must be fairly traceable to the challenged action of the defendant; and it must be likely that a favorable judicial decision will prevent or redress the injury.
Jayne v. Sherman, 706 F.3d 994, 999 (9th Cir. 2013). See also Summers v. Earth Island Inst., 555 U.S. 488, 493, 129 S.Ct. 1142, 1149 (2009). The burden, of course, is upon ICL to demonstrate its standing to pursue its claims. Summers, 555 U.S. at 493.
The concrete harm requirement can be satisfied by an injury to "the recreational or even the mere esthetic interests of the plaintiff." Summers, 555 U.S. 493. The Ninth Circuit has recognized that such an injury can be found in the testimony of a member of an environmental group that he or she "had repeatedly visited an area affected by a project, that he had concrete plans to do so again, and that his recreational or aesthetic interests would be harmed if the project went forward without his having the opportunity to appeal." Wilderness Society, Inc. v. Rey, 622 F.3d 1251, 1256 (9th Cir. 2010). Further, "[w]here the recreational use of a particular area has been extensive and in close proximity to the plaintiff, an affiant's expressed intention to continue using the land is sufficiently concrete to underwrite an injury-in-fact." Jayne, 706 F.3d 994, 999 (9th Cir. 2013) (citation and internal quotation marks omitted). The nexus is not entirely without shape, however, as "a vague desire to return to the area without any description of concrete plans, or indeed any specification of when the some day will be' does not support a finding of actual or imminent injury." Id.
C. ICL has Established the Injury and Causation Elements of Standing
The Forest Service argues that ICL lacks standing because it "has failed to draw any link between the Forest Service's alleged failure to consider an additional alternative and any likely future injury." Cross-Mot. Summ. J., p. 10 (Dkt. 28-1). The template for such an analysis drawn by the Supreme Court in Summers provides that "[w]hile generalized harm to the forest or the environment will not alone support standing, if that harm in fact affects the recreational or even the mere esthetic interests of the plaintiff, that will suffice." Summers, 555 U.S. at 494. Additionally, ICL "need not establish causation with the degree of certainty that would be required for [it] to succeed on the merits, say, of a tort claim. Rather, [it] need only establish "the reasonable probability' of the challenged action's threat to [its] concrete interest." Hall v. Norton, 266 F.3d 969, 977 (9th Cir. 2001) (citation and ...