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Clearwater County v. United States Forest Service

United States District Court, D. Idaho

June 16, 2017

CLEARWATER COUNTY, IDAHO, et al., Plaintiffs,
v.
UNITED STATES FOREST SERVICE, et al., Defendants.

          MEMORANDUM DECISION AND ORDER

          Edward J. Lodge United States District Judge

         INTRODUCTION

         Pending before the Court in the above-entitled matter are the Cross-Motions for Summary Judgment filed by the parties in this environmental case. The Motions are fully briefed and ripe for the Court's consideration. The Court finds that the facts and legal arguments are adequately presented in the briefs and record. Accordingly, in the interest of avoiding further delay, and because the decisional process would not be significantly aided by oral argument, the Motions are decided on the record without a hearing. For the reasons stated below, the Court grants the Defendants' Motion for Summary Judgment and denies Plaintiffs' Motion for Summary Judgment.

         FACTUAL AND PROCEDURAL BACKGROUND

         Plaintiffs, Clearwater County and Idaho County, have brought this action against the Defendants the United States Forest Service (“Forest Service”); Clearwater National Forest; Faye Kruger, Regional Forester, Northern Region; and Rick Brazell, Forest Supervisor for the Clearwater National Forest. Plaintiffs challenge the Forest Service's August 2011 Final Environmental Impact Statement (“FEIS”) and November 11, 2011 Record of Decision (“ROD”) wherein the Forest Service proposes implementation of the Clearwater National Forest Travel Management Plan (“Travel Plan”) and selection of the chosen action alternative, Alternative C Modified, designating motorized roads and trails in the Clearwater National Forest (“CNF”). (Dkt. 1.)[1] In particular, Plaintiffs dispute the Forest Service's closure of approximately 200 miles of trail to motorized use where such use was previously allowed as well as other restrictions on open motorized use, bicycle use, and snowmobile use in the CNF. (Dkt. 1 at ¶ 2.) Plaintiffs seek declaratory and injunctive relief setting aside the ROD and Travel Plan and remanding the matter for further analysis.

         Plaintiffs' claims are brought under the Administrative Procedure Act (“APA”), 5 U.S.C. § 701 et seq., alleging the Defendants' violated the Federal Land Policy and Management Act (“FLPMA”), 43 U.S.C. § 1701 et seq.; National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321 et seq.; National Forest Management Act (“NFMA”), 16 U.S.C. § 1600 et seq.; the Wilderness Act, 16 U.S.C. § 1131 et seq.; the 2005 Travel Management Rule; and the implementing regulations of these statutes, including the Forest Plan for the CNF. (Dkt. 1.) Defendants counter that their decisions and actions were in accord and fully complied with the applicable standards and requirements of these statutes. (Dkt. 22.) Both parties have filed Motions for Summary Judgment. (Dkt. 57, 65.)[2] Three organizations have intervened as Defendants in this matter - Great Burn Study Group, Idaho Conservation League, and The Wilderness Society (collectively “Intervenors”) - and have jointly filed briefing on the summary judgment motions as well. (Dkt. 59, 66, 72.) The Court finds as follows.

         STATUTORY FRAMEWORK

         1. NEPA

         NEPA is a procedural statute that requires federal agencies to “assess the environmental consequences of their actions before those actions are undertaken.” Klamath-Siskiyou Wildlands Ctr. v. Bureau of Land Mgmt., 387 F.3d 989, 993 (9th Cir. 2004). NEPA serves two fundamental purposes: (1) to require agency consideration of detailed information concerning significant environmental impacts; and (2) to ensure that the public can both access and contribute to that body of information via comments. San Luis Obispo Mothers for Peace v. Nuclear Regulatory Comm'n, 449 F.3d 1016, 1034 (9th Cir. 2006) (citation omitted). NEPA “does not mandate particular results, but simply describes the necessary process” that an agency must follow in issuing an EIS. Kettle Range Conservation Grp. v. United States Forest Serv., 148 F.Supp.2d 1107, 1116 (E.D. Wash. 2001) (citing Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349 (1989)). NEPA is designed to ensure that federal agencies take a “hard look” at the environmental consequences of a proposed federal agency action. Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 23 (2008). Taking a “hard look” requires the agency to consider “all foreseeable direct and indirect impacts” as well as discuss “adverse impacts that do[] not improperly minimize negative side effects.” N. Alaska Envtl. Ctr. v. Kempthorne, 457 F.3d 969, 975 (9th Cir. 2006) (internal quotation marks and citations omitted); see also Or. Natural Res. Council Fund v. Brong, 492 F.3d 1120, 1133 (9th Cir. 2007) (“[G]eneral statements about possible effects and some risk do not constitute a hard look absent a justification regarding why more definitive information could not be provided.”) (internal quotation marks omitted).

         2. NFMA

         NFMA sets forth the statutory framework and specifies the procedural and substantive requirements under which the Forest Service is to manage National Forest System lands. Congress enacted NFMA to “serve the national interest” by ensuring that “renewable resource program[s] [for the National Forests] [ ] be based on a comprehensive assessment of present and anticipated uses, demand for, and supply of renewable resources from the Nation's public and private forests and rangelands, ” and that the agency manage the national forest system so as to provide multiple use and sustained yield opportunities. 16 U.S.C. § 1600(3). “NFMA requires the Forest Service to develop comprehensive management plans for each unit of the National Forest System, 16 U.S.C. § 1604(a), and all subsequent agency action must be consistent with the governing forest plan § 1604(i).” Greater Yellowstone Coalition v. Lewis, 628 F.3d 1143, 1149 (9th Cir. 2010); see also Earth Island Inst. v. United States Forest Serv., 351 F.3d 1291, 1300 (9th Cir. 2003) (citing 16 U.S.C. §§ 1604(a) and (i))). “In developing and maintaining each plan, the Forest Service is required to use a systematic interdisciplinary approach to achieve integrated consideration of physical, biological, economic, and other sciences.” Greater Yellowstone, 628 F.3d at 1149 (citation and quotations omitted); see also 16 U.S.C. § 1604(b).

         3. FLPMA

         FLPMA's purpose is to manage public lands for “multiple use, [ ] with an increased emphasis on the management of the public lands ‘in a manner that will protect the quality of scientific, scenic, historical, ecological, environmental, air and atmospheric, water resource, and archeological values.'” W. Watersheds Project v. Kraayenbrink, 632 F.3d 472, 478 (9th Cir. 2010) (citing 43 U.S.C. § 1701(a)(8)). FLPMA also provides that the “public lands be managed in a manner that...will provide food and habitat for fish and wildlife and domestic animals; and that will provide for outdoor recreation and human occupancy and use.” 43 U.S.C. § 1701(a)(8).

         STANDARD OF REVIEW

         Judicial review of administrative agency decisions is made under the APA. 5 U.S.C. § 702. Such review is based on the administrative record compiled by the agency - not on independent fact-finding by the district court. Camp v. Pitts, 411 U.S. 138, 142 (1973). APA claims may be resolved via summary judgment pursuant to the standard set forth in Rule 56. See Nw. Motorcycle Ass'n v. United States Dept. Agric., 18 F.3d 1468, 1472 (9th Cir. 1994). Summary judgment is appropriate where “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” See Fed. R. Civ. P. 56(a). The APA requires that the agency action be upheld unless it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” League of Wilderness Defs. Blue Mnts. Biodiversity Proj. v. Allen, 615 F.3d 1122, 1130 (9th Cir. 2010) (quoting 5 U.S.C. § 706(2)(A)).

         There are two standards governing review of agency actions under the APA. See Price Rd. Neighborhood Ass'n, Inc. v. United States Dept. of Transp., 113 F.3d 1505, 1508 (9th Cir. 1997); Alaska Wilderness Rec. & Tour. v. Morrison, 67 F.3d 723 (9th Cir. 1995). Factual disputes implicating substantial agency expertise are reviewed under the arbitrary and capricious standard and legal issues are reviewed under the reasonableness standard. Idaho Sporting Congress, Inc. v. Rittenhouse, 305 F.3d 957, 964 (9th Cir. 2002) (citations omitted). These standards reflect the axiomatic distinction between “the strong level of deference we accord an agency in deciding factual or technical matters [and] that to be accorded in disputes involving predominantly legal questions.” Price Rd., 113 F.3d at 1508.). Both standards may be applied in the same case to different issues.

         An agency's factual decision will be deemed arbitrary and capricious:

only if the agency relied on factors Congress did not intend it to consider, entirely failed to consider an important aspect of the problem, or offered an explanation 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.

Wildland CPR, Inc. v. United States Forest Serv., 872 F.Supp.2d 1064, 1074-75 (D. Mont. 2012) (quoting Gardner v. United States BLM, 638 F.3d 1217, 1224 (9th Cir. 2011) (quoting Lands Council v. McNair, 537 F.3d 981, 987 (9th Cir. 2008)). That is to say, when an agency reaches a decision based on its expert review of the facts, a reviewing court should determine only whether the decision was “arbitrary or capricious.” Price Rd., 113 F.3d at 1508.

         The scope of review under the arbitrary and capricious standard is narrow and courts do not substitute their judgment for that of the agency. MotorVehicle Mfrs. Ass'n v. State Farm Mutual Auto. Ins. Co., 463 U.S. 29, 43 (1983); Western Watersheds Proj. v. United States BLM, 181 F.Supp.3d 673, 677 (D. Ariz. 2016) (citation omitted). The arbitrary and capricious standard is “highly deferential, presuming the agency action to be valid and [requires] affirming the agency action if a reasonable basis exists for its decision.” Indep. Acceptance Co. v. California, 204 F.3d 1247, 1251 (9th Cir. 2000) (quotations and citations omitted). When applying this standard, courts grant substantial deference to the decisions and actions of federal agency defendants in adopting and implementing certain agency activities. See Trout Unlimited v. Lohn, 559 F.3d 946, 958 (9th Cir. 2009) (quoting Nat. Wildlife Fed'n v. United States Army Corps of Eng'rs, 384 F.3d 1163, 1174 (9th Cir. 2004) (“Where scientific and technical expertise is necessarily involved in agency decision- making, ... a reviewing court must be highly deferential to the judgment of the agency.”)). “Where the question presented for review is a factual dispute which implicates ‘a high level of technical expertise' we defer to ‘the informed discretion of the responsible federal agencies.'” Bahr v. United States EPA, 836 F.3d 1218, 1229 (9th Cir. 2016) (quoting Kleppe v. Sierra Club, 427 U.S. 390, 412 (1976)). The APA's “highly deferential standard” of review “is highest when reviewing an agency's technical analyses and judgments involving the evaluation of complex scientific data within the agency's technical expertise.” League of Wilderness Defs., 615 F.3d at 1130.

         Nevertheless, even as to factual and technical matters, the agency must still examine the relevant data and articulate a satisfactory explanation for its action including a “rational connection between the facts found and the choice made.” MotorVehicle, 463 U.S. at 43 (citing Burlington Truck Lines v. United States, 371 U.S. 156, 168 (1962)); see also City of Sausalito v. O'Neill, 386 F.3d 1186, 1206 (9th Cir. 2004). In reviewing that explanation, the court must “consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.” Id. (citations omitted); see also Marsh v. Or. Nat. Resources Council, 490 U.S. 360, 378 (1989) (quoting Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971)). The court may not overturn an agency 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) (The “court may not substitute its judgment for that of the agency concerning the wisdom or prudence of the agency's action.”) (citation omitted).

         When a dispute is primarily legal in nature, or concerns a threshold question of law, this Court applies the more lenient, but less deferential, “reasonableness” standard. San Luis Obispo Mothers for Peace v. Nuclear Regulatory Com'n, 449 F.3d 1016, 1028 (9th Cir. 2006) (citing Alaska Wilderness Rec. & Tourism Ass'n, 67 F.3d at 727 (reviewing predominately legal issue for reasonableness because “it makes sense to distinguish the strong level of deference we accord an agency in deciding factual or technical matters from that to be accorded in disputes involving predominately legal questions”); Ka Makani‘O Kohala Ohana, Inc. v. Dept. of Water Supply, 295 F.3d 955, 959 (9th Cir. 2002) (“Because this case involved primarily legal issues ... based on undisputed historical facts, we conclude that the ‘reasonableness' standard should apply to this case.”)). The “reasonableness” standard of review, applies only to those “rare” cases in which the agency's decision raises legal, not factual, questions. Kettle Range, 148 F.Supp.2d at 1116 (citation omitted). Under this standard, the Court will uphold the agency's decision unless it is unreasonable. Friends of the Earth v. Hintz, 800 F.3d 822, 836 (9th Cir. 1986).

         DISCUSSION

         1. Standing

         Defendants challenge the Plaintiffs' standing to bring their claims arguing they have failed to demonstrate an actual or imminent injury resulting from the approval of the Travel Plan. (Dkt. 65, 71.) In particular, Defendants point out the Plaintiffs have not filed anything, beyond the allegations in their Complaint, sufficient to establish standing at the summary judgment stage. (Dkt. 71.) Plaintiffs counter arguing the allegations in their Complaint adequately demonstrate standing and, additionally, that they have procedural standing based on their allegations that the Forest Service failed to coordinate with the counties and failed to provide the counties with the requisite notice and opportunity to participate in the process. (Dkt. 69 at 5-7.)

         Article III of the United States Constitution restricts judicial power to deciding actual cases and controversies. Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009). Thus, the doctrine of standing “requires federal courts to satisfy themselves that the plaintiff has alleged such a personal stake in the outcome of the controversy as to warrant his invocation of federal-court jurisdiction.” Id. (citations and quotations omitted). Plaintiffs, as the party invoking federal jurisdiction, bear the burden of establishing standing. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). To satisfy Article III's standing requirements, a plaintiff must show “(1) it has suffered an ‘injury in fact' that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC) Inc., 528 U.S. 167, 180-81 (2000) (quoting Def. of Wildlife, 504 U.S. at 560-61); see also Jayne v. Sherman, 706 F.3d 994, 999 (9th Cir. 2013). A plaintiff bringing suit challenging a statutory provision under the APA must also show that its alleged injury falls within the “zone of interests” that the statute was designed to protect. Cantrell v. City of Long Beach, 241 F.3d 674, 679 (9th Cir. 2001) (citing Douglas Cnty. v. Babbit, 48 F.3d 1495, 1499-1500 (9th Cir. 1995)). To survive a motion for summary judgment raising standing, the counties must set forth “specific facts” by affidavit or by other admissible evidence demonstrating that they have suffered an “injury in fact” as a result of the agency's action. Friends of the Earth, 528 U.S. at 180-81; see also Def. of Wildlife, 504 U.S. at 561 (In responding to a summary judgment motion, the plaintiff must set forth by affidavit specific facts to show that it has Article III standing.).

         The Plaintiffs argue the allegations in the Complaint establish their concrete interests and particularized actual harm, to both the Counties themselves and the individual citizens who reside or are employed in the Counties, resulting from the Defendants' decision adopting the Travel Plan. (Dkt. 1 at ¶ 15) (Dkt. 69 at 5-7.)[3] Such harm can be remedied, Plaintiffs allege, if the Court were to overturn the Defendants' decision concerning the Travel Plan. (Dkt. 1 at ¶ 16.) In responding to a summary judgment motion, however, Plaintiffs can “no longer rest on such ‘mere allegations, ' but must ‘set forth' by affidavit or other evidence ‘specific facts, '...which for purposes of the summary judgment motion will be taken as true.” Def. of Wildlife, 504 U.S. at 561. No affidavits or other evidence have been provided in this case by Plaintiffs that set forth “specific facts” supporting their allegations. There f o r e, t h e C o u r t f i n d s t h e P l aintiffs have failed to establish Article III standing. For the same reason, the Court finds Plaintiffs have also failed to show procedural standing.

         Plaintiffs argue their claims alleged the Defendants violated the procedural rules of several federal statutes giving them “procedural standing.” (Dkt. 69 at 5-7.) Where the claims allege procedural injuries - i.e., the defendants violated various federal statutes and regulations resulting in injuries to plaintiffs - procedural standing may exist. To establish statutory standing, a plaintiff alleging a procedural injury must first show that the agency procedures in question were designed to protect a threatened concrete interest that is the “ultimate basis” of its standing. Cantrell, 241 F.3d at 679 (citing Def. of Wildlife, 504 U.S. at 573 n. 8). This requires a showing that (1) the agency violated certain procedural rules, (2) those rules protect the plaintiff's concrete interests, and (3) it is reasonably probable that the challenged action will threaten the plaintiff's concrete interests. Citizens for Better Forestry v. United States Dep't of Agric., 341 F.3d 961, 969-70 (9th Cir. 2003). A plaintiff shows injury to a “concrete interest” when the plaintiff “will suffer harm by virtue of [its] geographic proximity to and use of areas that will be affected” by the challenged agency action. Id. at 971. For procedural standing, once the plaintiff has established a “reasonable probability” that the challenged action threatens its concrete interest, the “inquiry into the imminence of the threatened harm is less demanding… and the causation and redressability requirements are relaxed.” California ex rel. Imperial Cnty. Air Pollution Control Dist. v. United States Dept. of Interior, 767 F.3d 781, 789-90 (9th Cir. 2014) (quoting Hall v. Norton, 266 F.3d 969, 976 (9th Cir. 2001) and Cantrell, 241 F.3d at 682).

         Here again, Plaintiffs have not come forward with any affidavits or evidence beyond the allegations in their Complaint to satisfy their burden to show procedural standing. This is fatal to Plaintiffs' cause of action at the summary judgment stage.[4]

         Despite the fact that standing has not been shown, for the sake of completeness, the Court has considered the merits of the Plaintiffs' claims and, for the reasons stated below, grants Defendants' Motion for Summary Judgement.

         2. The Clearwater National Forest Plan

         The CNF lies in north-central Idaho and comprises 1, 827, 380 total acres of forest lands offering a mix of diverse outdoor opportunities to its visitors including camping, hunting, hiking, skiing, biking, off-road vehicular travel, fishing, whitewater boating, and bird/nature viewing. (Dkt. 1 at ¶ 8.) Approximately half of the CNF, 950, 311 acres, are designated as inventoried roadless areas (“IRA”). (AR 3343.) 198, 200 acres of the IRAs have been deemed Recommended Wilderness Areas; meaning they are candidates for prospective Wilderness designation by Congress. (AR 3342.) The CNF is also home to many species of animals and fish as well as their habitats.

         In 1987, the Forest Service approved the Forest Plan which set forth goals and objectives for multiple resource management in the CNF as well as standards and guidelines for specific activities and projects. (AR 42365, 42885.) In 2005, the Forest Service published the Travel Management Rule, 36 C.F.R. §§ 212.1-261.55, which mandates certain changes to the management of motor vehicle use on National Forest System lands. Prior to the Travel Management Rule, motor vehicle use on public lands was largely unregulated resulting in uncontrolled cross-country motor vehicle use, unplanned routes, and damage to the resources. The Travel Management Rule was instituted to eliminate cross-country motor vehicle use by requiring designation of routes and areas for motor vehicle use. See 36 C.F.R. §§ 212.50(b), 212.55. The designated routes are displayed on a Motor Vehicle Use Map (“MVUM”) which is annually updated and provided to the public. Any motor vehicle use inconsistent with the MVUM is prohibited. See 36 C.F.R. § 261.13.

         In response to the Travel Management Rule, the Forest Service compiled the August 2011 FEIS and November 2011 ROD, as well as the related materials in the Administrative Record, for the CNF that are at issue in this case. These documents identify the alternative selected by the Forest Supervisor for the CNF as Alternative C Modified which establishes the Travel Plan with a system of designated routes for motorized uses, which Defendants argue, provides the best mix ...


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