United States District Court, D. Idaho
WILDEARTH GUARDIANS, CASCADIA WILDLANDS, KOOTENAI ENVIRONMENTAL ALLIANCE, CENTER FOR BIOLOGICAL DIVERSITY, WESTERN WATERSHEDS PROJECT, PROJECT COYOTE, Plaintiffs,
v.
UNITED STATES FOREST SERVICE, CHARLES A. MARK, in his official capacity, Defendants.
MEMORANDUM DECISION AND ORDER ON CROSS-MOTIONS FOR
SUMMARY JUDGMENT, AND MOTION TO STRIKE
Honorable Ronald E. Bush Chief U.S. Magistrate Judge
Currently
pending are cross-motions for summary judgment filed by
Plaintiffs Wildearth Guardians, et al.
(“Plaintiffs”) and the United States Forest
Service (“the Forest Service”) (Dkt. 80, 83), and
a motion to strike filed by the Forest Service (Dkt. 85). The
Court heard oral argument on the motions, and having
carefully considered the record and otherwise being fully
advised, the undersigned enters the following Memorandum
Decision and Order.
PROCEDURAL
BACKGROUND
This
case involves Plaintiffs' contentions that the Forest
Service was required by law to examine and potentially
constrain a “predator derby” - that is, a private
competition involving the hunting of coyotes, wolves, and
other wildlife[1] (“the Derby”) - to take place
on public lands in the Salmon-Challis National Forest
(“the Forest”) and other public or private lands
near Salmon, Idaho. Plaintiffs claim that the Forest Service
violated its own regulations, the National Environmental
Policy Act (“NEPA”), and the Administrative
Procedure Act (“APA”) by failing to require a
special use permit for this event. The event was first held
on December 28-29, 2013 and challenged in a separate lawsuit,
Wildearth Guardians v. Mark, Case No.
4:13-cv-00533-CWD. In that case, before Magistrate Judge
Candy W. Dale, Plaintiffs' request for a temporary
restraining order to stop the Derby was denied. Plaintiffs
voluntarily dismissed the case on January 16, 2014.
See Case No. 4:13-cv-00533-CWD, Dkt. 23 (also
at 2013 WL 6842771 (D. Idaho Dec. 27, 2013)), Dkt. 25.
Plaintiffs
filed this case on November 13, 2014, seeking to enjoin a
second Derby proposed by the same private organization, Idaho
for Wildlife, to take place on January 2ndthrough
4th of 2015. Complaint (Dkt. 1) ¶ 41. In
Plaintiffs' Second Amended Complaint, they allege that:
(1) the Forest Service violated NEPA because the Forest
Service's decision that a special use permit is not
required was arbitrary and capricious and made without
observance of procedure; and (2) the Forest Service violated
NEPA by failing to take a “hard look” at impacts
on the environment. Second Amended Complaint
(“SAC”) (Dkt. 23) ¶¶ 108-123.
Plaintiffs request that the Court: (1) declare that the
Forest Service violated NEPA in failing to evaluate the
Derby's impacts on the environment on the Forest; (2)
order the Forest Service to comply with its own regulations
and guidance regarding special use permits as they apply to
the Derby; and (3) enjoin the Forest Service from allowing
the Derby on the Forest until a special use permit has been
issued and environmental review pursuant to NEPA has been
completed. Id. at p. 32.[2]
FACTUAL
BACKGROUND
The
relevant Forest Service regulations were promulgated by the
Department of Agriculture pursuant to 16 U.S.C. § 551,
which authorizes the Secretary of Agriculture to protect the
public forests against destruction by fire and depredation
and to make rules and regulations as will preserve the
National Forests from destruction by regulating occupancy and
use. Subpart B of the regulations governs “special
uses” of Forest Service lands. 36 C.F.R. §
251.50(a). Most users engaging in “noncommercial
recreational activities” on the Forest, e.g.,
hikers, campers, hunters, and boaters, do not need a special
use permit. Id. at § 251.50(c). Special use
permits are required, however, under section 251.50(c) for
certain uses, including, commercial uses (any use where an
entry or participation fee is charged or the primary purpose
is a sale of good or service), recreation events
(recreational activities for which an entry or participation
fee is charged), and noncommercial group uses (defined as a
group of 75 or more people, either participants or
spectators). Id. at §§ 251.50, 251.51.
Idaho
for Wildlife scheduled its first “Coyote and Wolf
Derby” in December of 2013. Participants were to sign
in and attend a rules meeting in Salmon, Idaho on the first
evening of the event, followed by a weekend of hunting
animals such as wolves, coyotes, skunks, weasels,
jackrabbits, raccoons, and starlings on private land or
federal or state land (including the Forest). At the end of
the contest period, participants were invited to attend a
gathering in Salmon, where prizes were awarded. The Forest
Service concluded that there were no activities associated
with the 2013 Derby that required a special use permit.
Plaintiffs sought a temporary restraining order to halt the
Derby, but that request was denied by Judge Dale in the case
previously referenced. See Wildearth Guardians v.
Mark, 4:13-cv-00533-CWD, 2013 WL 6842771 (D. Idaho Dec.
27, 2013). The Derby went forward on December 28-29, 2013,
with approximately 26 hunters participating and no wolves
were killed. Steve Alder Decl. (Dkt. 83-3) ¶ 3.
On
August 7, 2014, Idaho for Wildlife submitted an application
to the Forest Service for a Special Use Permit for a Derby to
be held on the Forest and other lands near Salmon, Idaho on
January 2-4, 2015. FSAR000198-199. On August 19, 2014,
Charles Mark, Forest Supervisor for the Salmon-Challis
National Forest, sent a letter to Idaho for Wildlife
informing the group that “a permit will not be issued,
nor is one needed for this event.” Id.
Specifically, Mr. Mark found that participants were not
“paying organizers to go onto the National Forest to
hunt, and organizers are not offering equipment or services
to facilitate hunting on the National Forest. Participants .
. . may hunt anywhere they wish, they are not limited to an
area on NFS land, nor are they being specifically invited to
. . . NFS land.” Id. Additionally, Mr. Mark
noted that the Derby event “is confined to a business
location in the Town of Salmon, and involves the award of
prizes to hunters who bring animals taken during
noncommercial hunting activities to that business location to
compete for prizes.” Id.
Following
this decision, several conservation organizations wrote to
the Forest Service asking it to take a “fresh
look” at the Derby due to modifications Idaho for
Wildlife had made to its proposal. See
FSAR000018-21. However, the Chief of the Forest Service,
Thomas Tidwell, agreed with Charles Mark's decision,
stating that “no special use permit is required for the
activities currently proposed by Derby organizers.”
FSAR000327. Chief Tidwell also explained why he believed the
event was not a “group use”:
The development of a permit requirement for group uses was
based on the need to manage large, concentrated groups of
people to prevent unacceptable environmental impacts, by
assuring appropriate public health and sanitation measures
are followed. There are often 75 or more people on National
Forests at the same time who are participating in shared or
similar activities, but that does not, in and of itself, make
them a ‘group' for purposes of the regulation.
FSAR000327-328.
STANDARD
OF REVIEW
1.
Statutory Framework
The
National Environmental Policy Act (“NEPA”) was
enacted to ensure that the federal government makes major
decisions significantly affecting the environment only after
considering the impacts of those decisions and exploring
possible alternatives. 42 U.S.C. §§ 4321, 4331; 40
C.F.R. § 1501.1. NEPA establishes procedures to ensure
that federal agencies take a “hard look” at the
environmental consequences of their proposed action in
advance of a final decision. Robertson v. Methow Valley
Citizens Council, 490 U.S. 332, 350-51 (1989);
Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S.
519, 558 (1978).
The APA
provides the authority for judicial review of agency
decisions under NEPA. Pit River Tribe v. U.S. Forest
Serv., 469 F.3d 768, 778 (9th Cir. 2006). Under the APA,
a court must uphold an agency action unless it is
“arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law.” 5 U.S.C. §
706(2)(A). This standard is “highly deferential,
presuming the agency action to be valid and affirming the
agency action if a reasonable basis exists for its
decision.” Ranchers Cattlemen Action Legal Fund
United Stockgrowers of Am. v. U.S. Dep't of Agric.,
499 F.3d 1108, 1115 (9th Cir. 2007). Generally, “[a]n
agency decision will be upheld as long as there is a rational
connection between the facts found and the conclusions
made.” Barnes v. U.S. Dep't of Transp.,
655 F.3d 1124, 1132 (9th Cir. 2011). The court will deem an
agency action to be arbitrary and capricious only “if
the agency has relied on factors which Congress has not
intended it to consider, entirely failed to consider an
important aspect of the problem, offered an explanation for
its decision that runs counter to the evidence before the
agency, or is so implausible that it could not be ascribed to
a difference in view or the product of agency
expertise.” Motor Vehicle Mfrs. Ass'n of the
U.S. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43
(1983).
The
court may not overturn a decision simply because it disagrees
with the decision or with the agency's conclusions about
environmental impacts. River Runners for Wilderness v.
Martin, 593 F.3d 1064, 1070 (9th Cir. 2010) (citations
omitted). The “court may not substitute its judgment
for that of the agency concerning the wisdom or prudence of
the agency's action.” Id. (citation and
marks omitted).
2.
Summary Judgment Standard
Federal
Rule of Civil Procedure 56 provides, in pertinent part, that
the “Court shall grant summary judgment if the movant
shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of
law.” Fed.R.Civ.P. 56(a). “Only disputes over
facts that might affect the outcome of the suit under the
governing law will properly preclude the entry of summary
judgment.” Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). For summary judgment purposes, an
issue must be both “material” and
“genuine.” An issue is “material” if
it affects the outcome of the litigation. An issue is
“genuine” if it must be established by
“sufficient evidence supporting the claimed factual
dispute . . . to require a jury or judge to resolve the
parties' differing versions of the truth at trial.”
Hahn v. Sargent, 523 F.3d 461, 464 (1st Cir. 1975)
(quoting First Nat. Bank v. Cities Serv. Co. Inc.,
391 U.S. 253, 289 (1968)); see also British Motor. Car
Distrb.v. San Francisco Auto. Indus. Welfare Fund, 883
F.2d 371, 374 (9th Cir. 1989). “Where the record taken
as a whole could not lead a rational trier of fact to find
for the non-moving party, there is no genuine issue for
trial.” Matsushita, 475 U.S. at 587 (citation
omitted).
When
parties submit cross-motions for summary judgment, the Court
must independently search the record for factual disputes.
See Fair Hous. Council of Riverside Cnty., Inc. v.
Riverside Two, 249 F.3d 1132, 1136 (9th Cir. 2001). The
filing of cross-motions for summary judgment “where
both parties essentially assert that there are no material
factual disputes” does not vitiate the Court's
responsibility to determine whether disputes as to material
facts are present. See id.
In
considering a motion for summary judgment, the Court does not
make findings of fact or determine the credibility of
witnesses, Anderson, 477 U.S. at 255; rather, it
must draw all inferences and view all evidence in the light
most favorable to the nonmoving party. Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88
(1986); Whitman v. Mineta, 541 F.3d 929, 931 (9th
Cir. 2008).
ANALYSIS
1.
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