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HIGH SIERRA HIKERS ASS'N v. POWELL
June 5, 2001
HIGH SIERRA HIKERS ASS'N, ET AL., PLAINTIFFS,
BRADLEY POWELL, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Elizabeth D. Laporte, United States Magistrate Judge.
DISMISSING AS MOOT PLAINTIFFS' CLAIMS UNDER THE NATIONAL
FOREST MANAGEMENT ACT AND ONE OF PLAINTIFFS' CLAIMS UNDER THE WILDERNESS
ACT; GRANTING IN PART AND DENYING IN PART PLAINTIFFS' MOTION FOR SUMMARY
JUDGMENT; AND GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR
On April 10, 2000, Plaintiffs High Sierra Hikers Association, et al.
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
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.
"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).
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).
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 ...