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.
II BACKGROUND FACTS
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
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.
III LEGAL STANDARDS
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.
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 alleged by Plaintiffs
individually on its own merits.
A case or controversy becomes moot when it "`los[es] its character as a
present, live controversy of the kind that must exist if [the court is] to
avoid advisory opinions on abstract propositions of law.'" Cantrell v.
City of Long Beach, 241 F.3d 674, 678 (9th Cir. 2001) (citing Hall v.
Beals, 396 U.S. 45, 48 (1969)). To be justiciable, a controversy
`must be definite and concrete, touching the legal
relations of parties having adverse legal interests.
It must be a real and substantial controversy,
admitting of a specific relief through a decree of a
conclusive character, as distinguished from an opinion
advising what the law would be upon a hypothetical
state of facts.'
West v. Sec'y of Dep't of Transp., 206 F.3d 920, 924 (9th Cir. 2000).
Demonstrating mootness is a heavy burden. See id.
In determining mootness, the issue is not whether the specific relief
sought in the complaint is still available, but whether there can be any
meaningful relief. See West, 206 F.3d at 925; Headwaters, Inc. v.
Bureau of Land Mgmt., 893 F.2d 1012, 1015 (9th Cir. 1990) ("case or
controversy exists only when `the challenged government activity . . . is
not contingent, has not evaporated or disappeared, and, by its continuing
and brooding presence, casts what may well be a substantial adverse
effect on the interests of the petitioning parties.'") (citing Super Tire
Eng'g Co. v. McCorkle, 416 U.S. 115, 121 (1974)).
Importantly for this case, however, "[l]ongstanding principles of
mootness . . . prevent the maintenance of suit when `there is no
reasonable expectation that the wrong will be repeated.'" Gwaltney of
Smithfield, Ltd. v. Chesapeake Bay Found., 484 U.S. 49, 66 (1987). In
particular, a claim based on a governmental directive that has been
superseded and "therefore has no current effect or continuing
consequences" is moot. See Western Radio Servs. Co. v. Glickman,
113 F.3d 966, 974 (9th Cir. 1997).
An exception to the mootness rule applies when an issue is "capable of
repetition yet evading review." See Doe v. Madison Sch. Dist. No. 321,
177 F.3d 789, 798 (9th Cir. 1999). This exception is limited, however, to
extraordinary cases in which (1) "`the duration of the challenged action
is too short to be fully litigated before it ceases," and (2) "there is a
reasonable expectation that the plaintiffs will be subjected to the same
action again.'" Doe, 177 F.3d at 798 (citing American Rivers v. Nat'l
Marine Fisheries Serv., 126 F.3d 1118, 1124 (9th Cir. 1997)). "It is
sufficient, therefore, that the litigant show the existence of an
immediate and definite governmental action or policy that has adversely
affected and continues to affect a present interest." Super Tire, 416
U.S. at 125-26; see also Sosna v. Iowa, 419 U.S. 393, 401 (1975) (a
challenge to state residency requirements for voting does not become moot
simply because the plaintiff meets the residency requirement during the
pendency of the action).
A defendant's voluntary cessation of the alleged unlawful conduct is
another exception to the mootness doctrine
provided that "there is [a]
reasonable expectation that the wrong will be repeated.'" Doe, 177 F.3d
at 799 (citing PUC v. FERC, 100 F.3d 1451, 1460 (9th Cir. 1996)). The
burden of persuading the court that the challenged conduct cannot
reasonably be expected to recur lies with the party asserting mootness.
See Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., 528 U.S. 167,
189 (2000). The relevant inquiry under this exception is "whether the
defendant is free to return to its illegal action at any time." PUC, 100
F.3d at 1460. In addition, for this exception to apply, the cessation of
the unlawful conduct must have occurred because of the litigation. See
E. Declaratory Relief
"In a case of actual controversy within its jurisdiction . . . any
court of the United States . . . may declare the rights and other legal
relations of any interested party seeking such declaration, whether or
not further relief is or could be sought." 28 U.S.C. § 2201(a). In
determining whether a case or controversy exists for purposes of
declaratory relief, the question is whether there is "a substantial
controversy, between parties having adverse legal interests, of
sufficient immediacy and reality to warrant issuance of a declaratory
judgment." Maryland Cas. Co. v. Pac. Coal & Oil Co., 312 U.S. 270, 273
(1941); Super Tire, 416 U.S. at 122.
Relief under 28 U.S.C. § 2201 is discretionary. Wilton v. Seven
Falls Co., 316 U.S. 491, 494 (1942). A court cannot issue a declaratory
judgment if a claim has become moot. PUC v. FERC, 100 F.3d 1451, 1459
(9th Cir. 1996) (citing United Pub. Workers of Am. v. Mitchell,
330 U.S. 75, 89 (1947)); Native Vill. of Noatak v. Blatchford,
38 F.3d 1505, 1514 (9th Cir. 1994).
A. National Forest Management Act ("NFMA"), 16 U.S.C. § 1600-1687
Plaintiffs claimed that Defendants violated the direction and standards
contained in the LRMPs by failing to perform nondiscretionary duties and
by affirmatively acting to permit commercial uses in the wilderness that
destroy the wilderness. Specifically, Plaintiffs alleged that Defendants
failed to adopt new management standards, failed to adopt capacity limits
for each wilderness and all travel zones, failed to apply trailhead entry
quotas all users, failed to include commercial stock use in quotas and
failed to require commercial users to apply for permits.
NFMA creates a statutory framework for the management of national
forests. Specifically, NFMA states that the Forest Service "shall
develop, maintain, and, as appropriate, revise land and resource
management plans for units of the National Forest System."
16 U.S.C. § 1604(a). NFMA provides a two-step process for forest
planning. First, the Forest Service must develop a LRMP and an EIS for the
entire forest. See 36 C.F.R. § 219.10(a), (b). Second, once the LRMP
is in place, the Forest Service assesses site-specific projects in light
of the LRMP. See 36 C.F.R. § 219.10(e); Neighbors of Cuddy Mountain
v. United States Forest Serv., 137 F.3d 1372, 1377 (9th Cir. 1998). In
this process, the Forest Service implements the LRMP by approving, with
or without modification, or disapproving, particular site-specific
projects to take place within the wilderness area.
The LRMP is "in essence, a programmatic statement of intent that
establishes basic guidelines and sets forth the planning elements that
will be employed by the
Forest Service in future site-specific
decisions." Sierra Club v. Robertson, 28 F.3d 753, 755 (8th Cir. 1994).
Among other items, an LRMP must provide for multiple use and sustained
yield of the products and services obtained from that use, including
outdoor recreation. See 16 U.S.C. § 1604(e). NFMA also provides for
public participation in the development, review and revision of the LRMP.
See 16 U.S.C. § 1604(d).
1. Failure to Adopt New Management Standards
Plaintiffs alleged that Defendants failed to act by failing to adopt
new management standards for the Ansel Adams and John Muir Wilderness
Areas as described in the Inyo LRMP. In the "Forest-wide standards and
guidelines" section, the Inyo LRMP states,
Develop management plans or amend existing plans to
address wilderness designated by the California
Wilderness Act of 1984 or any wilderness legislation
enacted during the planning period. Manage wilderness
under the following guidelines: maintain a
predominantly neutral and natural-appearing
environment, facilitate low frequencies of interaction
between users, and exercise necessary controls
primarily from outside the wilderness boundary. Any
on-site controls should be subtle.
AR, volume 1A at 1225. These "standards and guidelines" set forth the
"minimum resource conditions that will be maintained throughout the
Forest" and "provide specific guidelines for the management of each
resource to ensure its protection or enhancement." Id. at 1202. The plain
language of these standards and guidelines indicates that they are
mandatory, rather than discretionary.