Wildearth Guardians v. United States Forest Service

          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 2^ndthrough 4^th 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

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