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June 5, 2001


The opinion of the court was delivered by: Elizabeth D. Laporte, United States Magistrate Judge.



On April 10, 2000, Plaintiffs High Sierra Hikers Association, et al. ("Plaintiffs") filed this action for declaratory and injunctive relief against Defendants Bradley Powell, et al. ("Defendants"). The complaint alleges that Defendants violated the National Forest Management Act ("NFMA"), 16 U.S.C. § 1600-1687, the Wilderness Act, 16 U.S.C. § 1131-1136, the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321-4370d and the Administrative Procedure Act ("APA"), 5 U.S.C. § 701-706. Plaintiffs seek a declaration that Defendants have violated NFMA by violating the standards and directions set forth in the Inyo National Forest Land and Resource Management Plan ("LRMP") and the Sierra National Forest LRMP through their failure to perform nondiscretionary duties and through their affirmative action to allow commercial uses in the Forests that are inconsistent with wilderness values. Compl. at 15:9-13. Plaintiffs also seek a declaration that Defendants have violated the Wilderness Act by failing to determine whether current commercial uses of the John Muir and Ansel Adams Wilderness Areas are consistent with the Act. Id. at 15:19-21. In addition, Plaintiffs seek a declaration that Defendants have violated NEPA by failing to prepare an environmental analysis prior to issuing special use permits to commercial users. Id. at 15:27-16:3. Plaintiffs also seek injunctive relief compelling Defendants "to promptly adopt or implement all required standards for management of and allowed uses in the wilderness areas and to limit uses that are inconsistent with those standards." Id. at 2:20-22.

Plaintiffs are nonprofit entities dedicated to conservation, education and wilderness protection. Each organization has members who use the Ansel Adams and John Muir Wilderness Areas for various recreational activities. Defendants are the United States Forest Service itself and the Chief of the United States Forest Service as well as a Regional Forester and two Forest Supervisors. Intervenors, as Amici at this stage of the litigation, are packers who operate commercial pack stations in the Inyo and Sierra National Forests and the Ansel Adams and John Muir Wilderness Areas and their associations, the National Forest Recreation Association and the High Sierra Packers Association.*fn1

On December 19, 2000, Defendants moved to dismiss or for summary judgment on the grounds that: (1) Plaintiffs' challenges to the Forest Service's management program for the two wilderness areas amounts to an impermissible programmatic challenge and (2) there is no final agency action from which Plaintiffs can obtain relief under the APA. Defendants also contend that some of Plaintiffs' claims are time-barred and others became moot upon issuance of the Final Environmental Impact Statement ("FEIS") and Record of Decision ("ROD").

On December 20, 2000, Plaintiffs moved for summary judgment, arguing that their claims are reviewable. Plaintiffs also seek declaratory relief that the Forest Service has: (1) violated NFMA by failing to implement or meet Forest and Wilderness Standards; (2) violated the Wilderness Act by failing to determine that commercial services are necessary and proper and by allowing services that degrade wilderness values; and (3) violated NEPA by failing to prepare environmental analyses before issuing special use permits and other instruments that allow commercial services to be performed in the wilderness areas.

Both motions were timely opposed and each party filed a reply.*fn2 The Court permitted Defendants to file an additional response by February 16, 2001. Both parties have filed motions to strike evidence and argument. Amici filed a brief on February 6, 2001.

On March 13, 2001, the Court held a hearing on the Plaintiffs' Motion for Summary Judgment and Defendants' Motion to Dismiss or for Summary Judgment as well as the related Motions to Strike. All parties appeared through their counsel of record.

On April 20, 2001, just as the Court was preparing to issue this decision, the Forest Service issued the FEIS and ROD. Pursuant to the Court's April 24, 2001 Order, Plaintiffs and Defendants filed supplemental briefs addressing the effect of these documents on this case. Upon consideration of the parties' submissions, the arguments at the hearing, the relevant authorities and the record in this case and good cause appearing, the Court enters the following Order.


Two wilderness areas are at issue here. The John Muir Wilderness Area ("John Muir") was created in 1964 and initially encompassed approximately 502,000 acres. Administrative Record ("AR"), volume 1A at 886. In 1984, John Muir was enlarged by 81,000 acres. Id. at 16. The Ansel Adams Wilderness Area ("Ansel Adams"), formerly known as the Minarets Wilderness Area, consisted of approximately 109,559 acres when it was created in 1964. Id. at 974. In 1984, Ansel Adams was enlarged by 119,000 acres. Id. at 16. These two wilderness areas are located within the Inyo and Sierra National Forests; each National Forest contains some portion of each of the two wilderness areas. Id. at 886, 974.

In 1979, the Forest Service adopted a management plan for John Muir and Ansel Adams. AR, volume 1A at 882, 968. In 1988, the Forest Service adopted a Land and Resource Management Plan ("LRMP") for the Inyo National Forest. Id. at 1116. In 1992, the Forest Service adopted an LRMP for the Sierra National Forest. Id. at 1522. For both LRMPs, the Forest Service prepared environmental impact statements ("EIS") to evaluate the impacts of the LRMPs. Id. at 1096, 1452.

Both wildernesses issue permits to the public as well as to businesses that provide services to the visiting public. See AR, volume 1A at 130-31. Members of the public must obtain a "wilderness permit" from the Forest Service for an overnight visit. See id. at 130. The Forest Service limits the number of these wilderness permits by specific trailheads. See id. at 131. Some trailheads have daily quotas, which are determined by capacity limits for wilderness zones. See id.

Commercial outfitters and guides who operate commercial services must obtain a "special use permit." See AR, volume 1 at 778. These commercial users include operators with livestock. See AR, volume 1A at 31. The amount of wilderness use by the commercial users is dictated by their "service day allocations." See id. A "service day" equals one person being assisted by an outfitter or guide and using the wilderness for one day. Id.

In 1992, the Forest Service notified the public of its intent to prepare a revised management plan for the two wilderness areas. See AR, volume 1A at 483. In 1997, the Forest Service issued a draft environmental impact statement ("DEIS") proposing replacement of existing management direction in the LRMPs with new management plans for the Ansel Adams and John Muir Wildernesses. Id. at 472. In February 1999, the Forest Service announced that it would issue a revised DEIS ("RDEIS"), which it did in August 2000. Id. at 470.

On April 20, 2001, the Forest Service issued the FEIS, ROD and Wilderness Management Plan. In the ROD, the Forest Service decided to adopt a plan that "replaces the existing wilderness plans for the Ansel Adams (formerly Minarets), John Muir, and Dinkey Lakes Wildernesses and . . . will mak[e] non-significant amendments to the LRMPs for the Sierra and Inyo National Forests." ROD, April 2001, at 1. Relevant to this case, the Wilderness Management Plan and ROD removed from the Inyo LRMP two Management Directions that Plaintiffs rely on in this lawsuit: (1) the direction to establish capacity limits for each wilderness and implement entry limits on specific trailheads to regulate use when use exceeds capacity; and (2) the direction to apply trailhead entry quotas to both commercial and noncommercial users. See AR, volume 1A at 1239; Wilderness Management Plan at 5; ROD at 31.


A. Motion to Dismiss

"After the pleadings are closed, but within such time as not to delay the trial, any party may move for judgment on the pleadings." Fed.R.Civ.Proc. 12(c). A motion under this rule challenges the legal sufficiency of the parties' allegations. The standard applied on a Rule 12(c) motion is essentially the same as that applied to a Rule 12(b)(6) motion, i.e., even if all material facts in the pleading are true, the moving party is entitled to judgment as a matter of law. See Hal Roach Studios v. Richard Feiner & Co., 896 F.2d 1542, 1550 (9th Cir. 1990). Judgment on the pleadings is not appropriate if the complaint raises issues of fact which, if proven, would support recovery. See General Conference Corp. of Seventh-Day Adventists v. Seventh-Day Adventist Congregational Church, 887 F.2d 228, 230-31 (9th Cir. 1989).

B. Summary Judgment

Rule 56(c) of the Federal Rule of Civil Procedure provides that summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). Material facts are those that may affect the outcome of the case. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as to a material fact is "genuine" if there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. See id. The court may not weigh the evidence. See id. at 255. Rather, the nonmoving party's evidence must be believed and "all justifiable inferences must be drawn in [the nonmovant's] favor." United Steelworkers of Am. v. Phelps Dodge Corp., 865 F.2d 1539, 1542 (9th Cir. 1989) (en banc) (citing Liberty Lobby, 477 U.S. at 255).

The moving party bears the initial responsibility of informing the district court of the basis for its motion and identifying those portions of the pleadings, depositions, interrogatory answers, admissions and affidavits, if any, that it believes demonstrate the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Where the nonmoving party will bear the burden of proof at trial, the moving party's burden is discharged when it shows the court that there is an absence of evidence to support the nonmoving party's case. See id. at 325.

A party opposing a properly supported motion for summary judgment "may not rest upon the mere allegations or denials of [that] party's pleading, but . . . must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); Liberty Lobby, 477 U.S. at 250. The opposing party, however, need not produce evidence in a form that would be admissible at trial in order to avoid a summary judgment. See Celotex, 477 U.S. at 324. Nor must the opposing party show that the issue will be resolved conclusively in its favor. See Liberty Lobby, 477 U.S. at 248-49. All that is necessary is sufficient evidence supporting the asserted factual dispute and requiring a jury or judge to resolve the parties' differing versions of the truth at trial. See id.

C. Reviewability

1. Judicial review under the Administrative Procedure Act ("APA"), 5 U.S.C. § 701-706

To establish a right to judicial review under the APA, a complaining party must satisfy two requirements: (1) that the party was affected by some "agency action" which will be the subject of judicial review and (2) that the party suffered legal wrong because of the agency action or was adversely affected by that action within the meaning of a relevant statute. See 5 U.S.C. § 702; see also Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 882 (1990). Under the APA, the reviewing court shall "compel agency action unlawfully withheld or unreasonably delayed" and "hold unlawful and set aside agency action, findings, and conclusions found to be — arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law." 5 U.S.C. § 706(1), 706(2)(A). Therefore, to survive summary judgment based on claims brought under the APA, there must be a genuine factual dispute as to whether the Forest Service's decision was arbitrary, capricious, an abuse of discretion or otherwise not in accordance with the law. 5 U.S.C. § 706(2).

"Agency action" is defined as "the whole or a part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act." 5 U.S.C. § 551(13). Where review is not pursuant to authorization in the substantive statute but only under the APA, as with Plaintiffs' NFMA and Wilderness Act claims, the "agency action" must be "final agency action." 5 U.S.C. § 704 ("Agency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court are subject to judicial review.").

"Final agency actions" are actions which (1) "mark the consummation of the agency's decisionmaking process" and (2) "by which rights or obligations have been determined, or from which legal consequences will flow." Bennett v. Spear, 520 U.S. 154, 178 (1997); Ecology Ctr., Inc. v. United States Forest Serv., 192 F.3d 922, 925 (9th Cir. 1999). The final action must be "an identifiable action or event." Lujan, 497 U.S. at 899. Absent a specific and final agency action, there is no jurisdiction to challenge agency conduct. Lujan makes clear that programmatic challenges are not permitted; a lawsuit must challenge a concrete agency action. See Lujan, 497 U.S. at 891.

Even if an action is not a final agency action, the action could be judicially reviewable pursuant to 5 U.S.C. § 706(1) as a failure to act. That section permits review of claims to compel "agency action unlawfully withheld or unreasonably delayed." 5 U.S.C. § 706(1). Under this limited exception to the finality rule, there has to be a genuine failure to act, rather than a complaint about the sufficiency of the action. Ecology Ctr., 192 F.3d at 926.

2. Programmatic challenges under Lujan v. National Wildlife Federation, 497 U.S. 871 (1990).

Here, Defendants claim that Plaintiffs' complaint constitutes an impermissible programmatic challenge to the forest management plan, similar to Lujan. Defendants urge that Plaintiffs' claims impermissibly exceed specific challenges to discrete permit actions. Rather, Defendants argue, "Plaintiffs' attempt to claim some final agency action in this case with respect to the commercial users should not cloud the fact that plaintiffs are challenging the Forest Service's entire wilderness program for the John Muir and Ansel Adams Wilderness Areas." Defs.' Mot. for Summ. J. at 17:14-16. Plaintiffs counter that they have brought a series of specific legal challenges based on Defendants' clear violations of legal duties. See Pls.' Opp'n to Defs.' Mot. for Summ. J. at 12:10-11.

In Lujan, the plaintiffs alleged that the defendants violated the Federal Land Policy Act, NEPA and APA in the administration of the "land withdrawal review program" of the Bureau of Land Management ("BLM"), but failed to challenge any particular agency action that caused harm. See Lujan, 497 U.S. at 875, 891. The Court held that the "land withdrawal review program" was not an identifiable, much less final, agency action or series of such actions within the meaning of the APA, but rather a general label sweeping into its purview policies and practices as broad and multi-faceted as those of a "drug interdiction program" of the Drug Enforcement Agency. See id. at 890 ("The term `land withdrawal review program' (which as far as we know is not derived from any authoritative text) does not refer to a single BLM order or regulation, or even to a completed universe of particular BLM orders and regulations. It is simply the name by which [defendants] have occasionally referred to the continuing (and thus constantly changing) operations of the BLM in reviewing withdrawal revocation applications and the classifications of public lands and developing land use plans. . . ."). Even though the plaintiffs alleged rampant violations of the law within the program, the Court found that the plaintiffs "cannot seek wholesale improvement of this program by court decree, rather than in the offices of the Department or the halls of Congress, where programmatic improvements are normally made." Id. at 891 (emphasis in original).

Here, unlike in Lujan, Plaintiffs have alleged specific discrete agency actions taken by Defendants that have caused harm to Plaintiffs, rather than a challenge to the entirety of Defendants' wilderness plans. For example, Plaintiffs have challenged the calculation of certain trailhead limits and the grant of certain special use permits. Cf. Lujan, 497 U.S. at 892 n. 3 (if and when requested mine permit is granted, "there is no doubt that agency action ripe for review will have occurred; nor any doubt that, in the course of an otherwise proper court challenge . . .[plaintiffs] would be able to call into question the validity of the classification order authorizing the permit. . . .")

Accordingly, the Court rejects Defendants' general objection to Plaintiffs' complaint as a non-reviewable programmatic challenge. The Court will therefore consider each agency action ...

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