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People, ex rel Lockyer v. United States Forest Service

July 11, 2005

PEOPLE OF THE STATE OF CALIFORNIA, EX REL. BILL LOCKYER, ATTORNEY GENERAL, PLAINTIFF,
v.
UNITED STATES FOREST SERVICE, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Charles R. Breyer United States District Judge

MEMORANDUM AND ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT'S MOTIONS FOR SUMMARY JUDGMENT AND JUDGMENT ON THE PLEADINGS

The Sequoia National Forest ("the Forest") in the Sierra Nevada mountains of California is a national forest managed by defendant United States Forest Service ("the Forest Service"). Plaintiff, People of the State of California ("California"), claims the Forest Service did not comply with the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321 et seq., when it failed to prepare an Environmental Impact Statement ("EIS") before approving the Sequoia National Forest Fire Management Plan. Defendant claims that the Fire Plan is exempt from NEPA because it is not a decisional document. The parties agree that no EIS was prepared for the Fire Plan; the contested issue is whether, as a matter of law, the Fire Plan is subject to NEPA requirements.

After reviewing the memoranda and exhibits submitted by the parties and with the benefit of oral argument on June 17, 2005, the Court hereby grants plaintiff's motion for summary judgment and denies defendant's cross-motion for summary judgment and motion for judgment on the pleadings for the reasons set forth below.

BACKGROUND

The 2004-2005 Sequoia National Forest Fire Management Plan ("Fire Plan") is one of several documents governing the Forest Service's response to wildland fires in specific locations within the Sequoia National Forest. Wildland fires are naturally occurring fires in areas without significant human development. 2004 Fire Plan at Appendix AE. Wildland fires may place adjacent human communities at risk, and may harm Forest ecosystems and endangered species. However, some level of fire is necessary within the Forest, both because certain plants (including Giant Sequoia trees) need fire to reproduce, and because, in the absence of any moderate-level fires, old growth builds up in the Forest and creates a high risk of uncontrollable, catastrophic-level wildfires.

The Forest Service uses wildland fires, as well as prescribed fire (intentionally lit, controlled burns) and "mechanical treatments" (including logging), to alleviate the risk of catastrophic-level wildfires and to maintain fire-dependant ecosystems in the Forest. Fire Plan at 8. Possible Forest Service responses to wildland fire include letting the fire burn; containing and controlling the fire to various degrees; or immediately and completely suppressing the fire. Fire Plan at 7, 8. The Fire Plan geographically divides the Forest into three Fire Management Units ("FMUs"), and specifies which wildland fire responses may be used in each. Fire Plan at 8. The Fire Plan also specifies the goal of annually treating a specific number of acres in each FMU to reduce fuel hazards and fire risk. Id. The three FMUs are defined in the Fire Plan as: FMU #1-Wildland Fire Use (Wilderness); FMU #2-Suppression and Restricted Wildland Fire Use; and FMU #3-Suppression. Id.

The Fire Plan is one in a larger universe of documents, of varying geographic and subject-matter specificity, addressing fire management policy within Sequoia National Forest. These include regional and forest-level land and resource management plans and "frameworks," which address fire management as well as all other aspects of forest / management; and national fire management policy documents, which establish broad fire management policy.

Plaintiff contends that the Fire Plan includes important decisions on fire management within the Forest, and as such should have been subject to NEPA review, including the preparation of an EIS. Defendant claims that the Fire Plan merely implements programmatic-level policy decisions that were made in earlier, NEPA-compliant documents and postpones ground-level decisions until site-specific projects are initiated and so, as a non-decisional document, the Fire Plan was not required to undergo NEPA review.

ANALYSIS

I. Motion for Judgment on the Pleadings

Before addressing the merits, as a preliminary matter the Court must address whether plaintiff has standing to pursue this claim. Defendant argues that plaintiff lacks constitutional standing under Article III and also fails to state a ground for statutory standing under the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701 et seq. Defendant's assertions lack merit, and therefore plaintiff possesses standing to sue.

A. Constitutional Standing

Whether a party has standing to invoke federal court jurisdiction is a threshold question that courts are required to address when raised, prior to deciding the merits. Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94-96 (1998); Pershing Park Villas Homeowners Ass'n v. United Pacific Insurance Co., 219 F.3d 895, 899 (9th Cir. 2000).

1. Parens Patriae

As a preliminary matter, defendant argues that the Attorney General lacks standing to bring this case because he has brought in the name of the People of the State of California, and therefore the suit is based on a theory of parens patriae. Under this theory, a state has the right to assert "quasi-sovereign interests" in "the well-being of its populace," including both physical and economic well-being. Alfred L. Snapp & Son, Inc. v. Puerto Rico, 458 U.S. 592, 602, 607 (1982). However, "[a] State does not have standing as parens patriae to bring an action against the Federal Government." Id. at 610 n. 16; see also Massachusetts v. Mellon, 2626 U.S. 447, 485-86 (1923) (a state may not enforce the rights of its citizens in relation to the federal government because, in such instances, it is the United States, not the state, that represents them as parens patriae). While plaintiff attempts to distinguish the statement in Snapp as dicta, the Ninth Circuit has unequivocally endorsed it as binding authority. See Nevada v. Burford, 918 F.2d 854, 858 (9th Cir. 1990) (stating that Ninth Circuit authority to the contrary must "give way to the Supreme Court's clear statement in Snapp."). Therefore, California may not bring this suit parens patriae.

2. Standing Based on State Interests

Although California may not obtain Article III standing on a parens patriae theory, its ability to bring this case will not be defeated if it can show that the state has relevant interests that are independent of the rights of its citizens. See Davis v. United States EPA, 336 F.3d 965, 971 (9th Cir. 2003). If California can do so, then it may also argue on behalf of the broader public interest in protection of Sequoia National Forest resources and in Forest Service NEPA compliance without bringing suit as parens patriae. See City of Davis v. Coleman, 521 F.2d 661, 672 n.14 (9th Cir. 1975) ("a plaintiff who establishes standing in his own right may then argue the public interest as well").

To establish Article III standing to invoke federal court jurisdiction, a plaintiff must demonstrate: "(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). Plaintiff bears the burden of establishing these elements. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992).

The complaint asserts a procedural injury: that defendant did not comply with NEPA. The Ninth Circuit has held that, with respect to procedural injury, "'to show a cognizable injury in fact, [a plaintiff] must allege . . . that (1) the [agency] violated certain procedural rules; (2) these rules protect [a plaintiff's] concrete interests; and (3) it is reasonably probable that the challenged action will threaten their concrete interests.'" City of Sausalito v. O'Neill, 386 F.3d 1186, 1197 (9th Cir. 2004) (internal citations omitted) (modification in original). The court went on to find that "a cognizable procedural injury exists when a plaintiff alleges that a proper EIS has not been prepared under the National Environmental Policy ...


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