United States District Court, N.D. California
October 14, 2005.
DEFENDERS OF WILDLIFE, SIERRA CLUB, THE WILDERNESS SOCIETY, and VERMONT NATURAL RESOURCES COUNCIL, Plaintiffs,
MIKE JOHANNS, Secretary, United States Department of Agriculture, in his official capacity; DALE BOSWORTH, Chief, United States Forest Service, in his official capacity; and UNITED STATES FOREST SERVICE, Defendants, AMERICAN FOREST & PAPER ASS'N and AMERICAN FOREST RESOURCE COUNCIL, Defendants-Intervenors.
The opinion of the court was delivered by: PHYLLIS HAMILTON, District Judge
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR
SUMMARY JUDGMENT AND/OR JUDGMENT ON THE PLEADINGS
This is an environmental case in which plaintiffs mount
numerous facial challenges to a 2004 National Forest Management
Act ("NFMA") interpretative rule (the "2004 Interpretative Rule")
and to 2005 NFMA Planning Regulations. Defendants move for
partial summary judgment and/or judgment on the pleadings. Having
read the parties' papers and carefully considered their arguments
and the relevant legal authorities, the court hereby GRANTS the
motion in part and DENIES it in part as follows. INTRODUCTION
Plaintiffs are non-profit environmental and conservation
organizations headquartered throughout the United States.
Plaintiffs assert five claims for relief under the Administrative
Procedure Act ("APA"), 5 U.S.C. § 553, the NFMA, 16 U.S.C. § 1600
et seq., and the National Environmental Policy Act ("NEPA"),
42 U.S.C. § 4231 et seq., as follows:
(1) Claim One: Violation of APA Failure to Provide
Notice and Comment on the 2004 Interpretative Rule;
(2) Claim Two: Violation of NFMA and APA Failure to
Include Required Resource Standards in the 2005
(3) Claim Three: Violation of APA Inadequate Notice
and Comment on 2005 Planning Regulations;
(4) Claim Four: Violation of APA Failure to Provide
Support in Record for Abandonment of Species
Viability Requirement in 2005 Planning Regulations;
(5) Claim Five: Violation of NEPA and APA Failure
to Prepare Environmental Impact Statement ("EIS") on
2005 Planning Regulations.
Defendants move for partial summary judgment and/or judgment on
the pleadings with respect to claims one, two, and four.
A. The National Forest System and the NFMA
The National Forest System, which at 192 million acres
comprises approximately eight percent of the United States
landscape, includes 155 national forests and 22 national
grasslands. See Ohio Forestry Assoc., Inc. v. Sierra Club,
523 U.S. 726, 729 (1998). The National Forest System is administered
by the Forest Service, an agency of the U.S. Department of
In 1976, Congress enacted the National Forest Management Act of
1976 ("NFMA") to reform Forest Service management of the National
Forest System. The NFMA requires the Secretary of Agriculture to
develop land and resource management plans for units of the
National Forest System. 16 U.S.C. § 1604(a). When the Secretary
develops these plans, the NFMA requires him to comply with NEPA,
which in turn encompasses a duty to prepare environmental impact
statements ("EIS"). See 16 U.S.C. § 1604(g)(1). The NFMA envisions a two-stage approach to forest planning.
Inland Empire Public Lands Council v. United States Forest
Service, 88 F.3d 754, 757 (9th Cir. 1996) (citing Idaho
Conservation League v. Mumma, 956 F.2d 1508, 1511 (9th Cir.
1992)); Neighbors of Cuddy Mountain v. United States Forest
Service, 137 F.3d 1372, 1376 (9th Cir. 1998). First, the NFMA
requires the Forest Service to develop a comprehensive forest
plan ("forest plan"), which may also be referred to as a Land
Resource Management Plan ("LRMP"), and as mentioned above, an EIS
for the entire forest. Id; 36 C.F.R. § 219(a), (b). The forest
plan establishes basic guidelines and sets forth the planning
elements that will be employed by the Forest Service in future
actions in that forest. See Sierra Club v. Robertson,
28 F.3d 753, 755 (8th Cir. 1994). "Once the [Forest Plan] is approved,
direct implementation of the LRMP occurs at a second stage, when
individual site-specific projects are proposed and assessed."
Inland Empire, 88 F.3d at 757. A site-specific project or
decision "must be consistent with the LRMP for the larger area."
Neighbors, 137 F.3d at 1376-77.
The NFMA also imposes substantive requirements on the Forest
Service at both stages. See 16 U.S.C. § 1604(g)(3). These
requirements have been promulgated as regulations. See
36 C.F.R. §§ 219 et seq. Among the NFMA's substantive requirements
is the duty to provide for the diversity of plant and animal
communities. See 16 U.S.C. § 1604(g)(3)(B).
B. The 1982 Planning Regulations
In 1982, the Forest Service promulgated regulations to protect
wildlife and fish, soils, water, outdoor recreation, and other
public resources. The 1982 Planning Regulations included a
species viability provision, which provided that "[f]ish and
wildlife habitat shall be managed to maintain viable populations
of existing native and desired non-native vertebrate species in
the planning area." See 36 C.F.R. § 219.19(a)(1) & (6) (1982).
To implement or facilitate this provision, the 1982 Planning
Regulations required the Forest Service to select certain
wildlife species to be monitored as proxies for the health of
broader wildlife populations of the specific ecosystems. These
proxy species are referred to as "management indicator species"
or "MIS." Id. at § 219.19(a)(1). C. The 2000 Planning Regulations
Several attempts were made to revise the 1982 Planning
Regulations prior to 2000. In 1998, a Committee of Scientists
convened meetings across the country regarding such revisions,
and invited public participation. In 1999, the Committee provided
recommendations to the Forest Service. Subsequently, on November
9, 2000, the Forest Service adopted a final rule revising
provisions for managing wildlife and other resources in the
national forests. The 2000 Planning Regulations consisted of a
transition provision for the new regulations, and substantive
regulations that included revisions to the wildlife "viability"
provision of the 1982 Planning Regulations. 65 Fed. Reg. 67579;
36 C.F.R. § 219.35 (2000).
The 2000 Planning Regulations' transition provision,
36 C.F.R. § 219.35, provided that the 1982 Planning Regulations would
remain in effect until the 2000 Planning Regulations became
effective. Furthermore, the 1982 Planning Regulations were to
continue to govern site-specific Forest Service decisions until
November 9, 2003. Id.
In 2001, the USDA determined that the Forest Service was not
sufficiently prepared to implement the 2000 Planning Regulations,
proposed a new rulemaking, and postponed the effective date of
the 2000 Planning Regulations until May 2002. See
66 Fed. Reg. 27552 (May 17, 2001). Subsequently, on May 20, 2002, the USDA
again extended the transition date of the 2000 Planning
Regulations, and published an "interim final rule" that provided
that until revised planning regulations were promulgated, Forest
Service officials could continue to amend or revise forest plans
pursuant to the 1982 Planning Regulations if they chose to do so,
instead of the 2000 Planning Regulations. 67 Fed. Reg. 35431-34.
D. The 2002 Proposed Regulations
On December 6, 2002, the Forest Service published the 2002
Proposed Regulations, which differed from the 2000 Planning
Regulations. Public comment on the 2002 Proposed Regulations was
open until April 7, 2003.
Meanwhile, on September 10, 2003, the Forest Service published
another "interim final rule," again extending the transition date
of the 2000 Planning Regulations. 68 Fed. Reg. 53294 (Sept. 10,
2003). This interim rule provided that, for site-specific
decisions, the effective date of the 2000 Planning Regulations was "extended
from November 9, 2003, until the Department promulgates the
final planning regulations published as proposed December 6,
2002." 68 Fed. Reg. 53297 (emphasis added).
E. The 2004 Interpretative Rule
While the USDA was still in the process of reviewing the 2002
Proposed Regulations, the department asserted that "considerable
uncertainty" had arisen regarding the effect of the 2000 Planning
Regulations and its provision regarding application of the 1982
Planning Regulations during the 2000 Planning Regulations'
transition period. On September 29, 2004, the Forest Service
issued an "interpretative rule" that provided that the 1982
Planning Regulations were no longer in effect.
69 Fed. Reg. 58057. The 2004 Interpretative Rule provided in pertinent part:
The transition provisions as originally enacted, and
now twice amended, explicitly refer to the 1982
planning rule as the rule "in effect prior to
November 9, 2000." At the same time, given the
extension of the effective date of paragraph (d),
within which site-specific decisions must comply with
the 2000 planning rule (68 FR 53294), it is clear
that site-specific decisions entered into during the
transition period are not to comply with the
substantive provisions of the 2000 planning rule.
This interpretative rule clarifies that until a new
final rule is promulgated, the transition provision
of the 2000 planning rule, as amended by the May 2002
interim final rule remain in effect, including the
requirement of § 219.35 paragraph (a) of the
transition provisions that responsible officials
consider the best available science in implementing
national forest land management plans and, as
appropriate, plan amendments. Pursuant to paragraph
(b), the provisions of the 1982 planning rule may
continue to be used only for plan amendments and
revisions upon election of the responsible official.
Appropriate plan amendments and projects proposed
during the transition period should be developed
considering the best available science in accordance
with § 219.35 paragraph (a).
69 Fed. Reg. at 58056.
On October 26, 2004, shortly after publication of the 2004
Interpretative Rule, plaintiffs filed this lawsuit.
F. The 2005 Planning Regulations
Subsequently, on January 5, 2005, the Forest Service published
the final 2005 Planning Regulations. 70 Fed. Reg. 1022.
Plaintiffs in this case filed a supplemental complaint on
February 17, 2005, adding a challenge to the 2005 Planning
Regulations in addition to the 2004 Interpretative Rule. The pertinent portions
of the 2005 Planning Regulations are discussed in more detail as
follows in this order.
A. Legal Standards
1. Motions for Summary Judgment
Summary judgment is appropriate when there is no genuine issue
as to material facts and the moving party is entitled to judgment
as a matter of law. Fed.R.Civ.P. 56. Material facts are those
that might affect the outcome of the case. 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.
Id. An issue is not genuine if it is unsupported by evidence,
or if it is created by evidence that is "merely colorable" or
that is "not significantly probative." Id. at 249-50. The court
may not weigh the evidence, and is required to view the evidence
in the light most favorable to the nonmoving party. Id. at 248.
A party seeking summary judgment bears the initial burden of
informing the court of the basis for its motion, and of
identifying those portions of the pleadings and discovery
responses that demonstrate the absence of a genuine issue of
material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986). Where the moving party will have the burden of proof at
trial, it must affirmatively demonstrate that no reasonable trier
of fact could find other than for the moving party. On an issue
where the nonmoving party will bear the burden of proof at trial,
the moving party can prevail merely by pointing out to the
district court that there is an absence of evidence to support
the nonmoving party's case. Id. If the moving party meets its
initial burden, the opposing party must then set forth specific
facts showing that there is some genuine issue for trial in order
to defeat the motion. Anderson, 477 U.S. at 250.
2. Motions for Judgment on the Pleadings
The standard applied on a Rule 12(c) motion for judgment on the
pleadings is the same as that applied to Rule 12(b)(6) motions:
judgment on the pleadings is appropriate when, even if all
material facts in the pleading under attack are true, the moving
party is entitled to judgment as a matter of law. See Hal Roach Studios,
Inc. v. Richard Feiner & Co, 896 F.2d 1542, 155 (9th Cir. 1989).
As with motions to dismiss under Rule 12(b), a motion for
judgment on the pleadings ordinarily may not be based on matters
outside the pleadings. However, if extrinsic evidence is
presented and the court is willing to consider it, then the
motion is "converted" to one for summary judgment. See id. at
3. Actions under the Administrative Procedure Act
The general review provisions of the APA, 5 U.S.C. §§ 701, et
seq., apply in cases asserting violations of the NFMA and NEPA.
Native Ecosystems Council v. Dombeck, 304 F.3d 886, 891 (9th
Cir. 2002); Hells Canyon Alliance v. U.S. Forest Serv.,
227 F.3d 1170, 1176-77 (9th Cir. 2000). In fact, "[t]here is no right
to seek judicial review under the Administrative Procedure Act in
the absence of a relevant statute whose violation forms the legal
basis of the complaint against the governmental action." Wright &
Miller, 14A Fed. Prac. & Proc. Juris.3d § 3659. Arbitrary and
capricious review cannot be conducted under the APA independent
of another statute. Oregon Natural Resources Council v. Thomas,
92 F.3d 792, 797 (9th Cir. 1996).
Under the APA, "[a] person suffering a legal wrong because of
agency action, or adversely affected or aggrieved by agency
action within the meaning of a particular statute, is entitled to
judicial review thereof." 5 U.S.C. § 702. Agency action includes
the "whole or 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). The APA applies except to the extent that a
statute precludes judicial review, or agency action is committed
to agency discretion by law. 5 U.S.C. § 701(a).
An agency action may be set aside under the APA only if it was
"arbitrary, capricious, an abuse of discretion, or otherwise not
in accordance with the law." 5 U.S.C. § 706(2)(A)); see Morongo
Band of Mission Indians v. Fed. Aviation Admin, 161 F.3d 569,
573 (9th Cir. 1998). The APA limits judicial review to review of
"final" agency action. See 5 U.S.C. § 704. For an action to be
"final" under the APA, it should mark the conclusion of an
agency's decision-making process, and should also be an action by
which rights or obligations have been determined or from which
legal conclusions flow. Bennett v. Spear, 520 U.S. 154, 177 (1997).
4. Actions Under NFMA
Because the NFMA does not authorize judicial review or create a
private cause of action to enforce its provisions, plaintiffs are
required to bring a claim under the APA to enforce NFMA
provisions. Neighbors of Cuddy Mtn. v. Alexander,
303 F.3d 1059, 1067 (9th Cir. 2002); Ecology Center v. United States
Forest Service, 192 F.3d 922, 924-25 (9th Cir. 1999).
1. Claim One: Violation of APA/Failure to Provide Notice
and Comment on 2004 Interpretative Rule
Plaintiffs contend that with the 2004 Interpretative Rule,
defendants sought to rescind the 1982 Planning Regulations as the
governing authority in effect for site-specific Forest Service
decisions. Plaintiffs argue that the 2004 Interpretative Rule was
really legislative, and that defendants sought to avoid the APA
requirements for notice and comment by labeling the regulatory
change an "interpretative rule."
In support, plaintiffs note that the 2004 Interpretative Rule
replaced detailed 1982 Planning Regulations, requiring
consideration of species viability, with a generalized
requirement that the Forest Service merely "consider" "the best
available science" in making site-specific decisions. In this
respect, plaintiffs assert that the 2004 Interpretative Rule was
inconsistent with the 1982 Planning Regulations as well as the
2000 Planning Regulations.
Accordingly, plaintiffs claim that defendants failed to provide
public notice and permit comment on the 2004 Interpretative Rule
as required by the APA, 5 U.S.C. § 553. They argue that the
rulemaking was arbitrary, capricious, and an abuse of discretion
under the APA, § 706(2).
Defendants do not dispute that the 2004 Interpretative Rule was
promulgated without public comment or involvement. Instead, they
argue that the 2004 Interpretative Rule was not legislative, and
therefore no notice or public comment period was required under
the APA. According to defendants, the 2004 Interpretative Rule
merely "explained" that the site-specific provisions of the 1982 Planning Regulations, such as the species
viability provision, were no longer in effect, but had been
supplanted under the 2000 Planning Regulations' transition
provision, which dictated that site-specific activities were to
be guided by the "best available" science principle. Defendants
argue that the 2004 Interpretative Rule merely "stated USDA's
understanding of the transition provision of the 2000 . . .
regulations and did not itself change the degree to which the
1982 . . . regulations remained in effect."
In the instant motion, defendants, however, have not developed
this argument on the merits or cited any authority warranting
summary judgment on the merits. Instead, defendants contend that
plaintiffs' first claim is moot and that plaintiffs lack standing
to assert it.
A federal court's jurisdiction is limited to cases or
controversies. A case becomes moot when it "loses its character
as a present, live controversy of the kind that must exist if
[the court is] to avoid advisory opinions. . . ." Neighbors of
Cuddy Mountain, 303 F.3d at 1065. The Ninth Circuit has made it
"clear that completion of an activity is not the hallmark of
mootness." Id. "Rather, a case is moot only where no effective
relief for the alleged violation can be given." Id.
Additionally, a challenge is not barred as moot "if the action
at issue is capable of repetition, yet likely to evade review."
Idaho Dep't of Fish & Game v. Hardy, 56 F.3d 1071, 1075-75 (9th
Cir. 1995). "[A]gency actions fall within the capable of
repetition exception to the mootness doctrine if (1) the duration
of the challenged action is too short to allow full litigation
before it ceases, and (2) there is a reasonable expectation that
the plaintiffs will be subjected to it again." Id. at 1075.
Defendants assert that following publication of the 2005
Planning Regulations, the 2004 Interpretative Rule, and the 2000
Planning Regulations that it interpreted, were no longer
effective.*fn1 Defendants note that the 2005 Planning
Regulations expressly repealed the 2000 Planning Regulations, and the related 2004 Interpretative Rule,
through a notice published the day that the 2005 Planning
Regulations became effective. See 70 Fed Reg. 1022 (Jan 5,
2005). Therefore, defendants argue that plaintiffs' first claim
is moot because there is no live case or controversy. Moreover,
because the 2004 Interpretative Rule is no longer in effect,
defendants contend that the only possible outcome of this
litigation would be an impermissible advisory opinion.
Plaintiffs argue, however, that the 2004 Interpretative Rule
does have continuing effect for a number of reasons, including
that federal courts have continued to apply the 2004
Interpretative Rule to forest projects that arose during the 2000
Planning Regulations' transition period, which ultimately lasted
from November 2000 through January 2005, notwithstanding repeal
of 2000 provision.
In response, defendants contend that because plaintiffs have
not challenged the application of the 2004 Interpretative Rule to
site-specific project decisions, there is no live case or
controversy. Moreover, defendants argue that the 2004
Interpretative Rule does not present a live controversy because
the 2005 Planning Regulations should apply retroactively.
Normally, "an attack on an interim or temporary administrative
rule is mooted when a permanent rule supersedes the temporary
rule." Wright & Miller, 13A Fed. Prac. & Proc. Juris.2d § 3533.6;
see also Pacific Northwest Venison Producers v. Smitch,
20 F.3d 1008, 1011 (9th Cir. 1994) (challenge to emergency regulations
governing possession of exotic wildlife was mooted to the extent
that the regulations were replaced by permanent regulations that
did not apply to one of the species covered by the permanent
regulations on essentially the same terms as the temporary
regulations). However, a challenge to a repealed rule or
regulation may not be moot if "the former provisions continue to
control the consequences of past actions." Wright & Miller, 13A
Fed. Prac. & Proc. Juris.2d at § 3533.6; see also Jacobus v.
Alaska, 338 F.3d 1095, 1102-04 (9th Cir. 2003) (subsequently
amended provision of Alaskan campaign finance laws was not moot
where legally significant present effects remained). "[I]n cases
involving the amendment or repeal of a statute, mootness is not a
jurisdictional issue; rather, [the court] may continue to
exercise authority over a purportedly moot case where the balance of interests favors such continued
authority." Id. at 1103. "The party moving for dismissal on
mootness grounds bears a heavy burden." Id.
Defendants' argument that the 2005 Planning Regulations should
be retroactively applied is not persuasive on the mootness issue.
The Ninth Circuit recently held that it would apply NFMA planning
regulations in effect at the time "the plan revisions challenged
in the lawsuit were prepared." Natural Resources Defense Council
v. U.S. Forest Service, 421 F.3d 797, 800 n. 3 (9th Cir. 2005).
In that case, the court held that the plaintiffs' challenge to
1997 amendments to the forest plan at issue should be judged
pursuant to the planning regulations in effect at the time the
plan revisions were made the 1982 Planning Regulations. Id.
Therefore, pursuant to Natural Resources, the 2004
Interpretative Rule may continue to be applied in cases where the
challenged action was taken during the 2004 Interpretative Rule's
effective period and it clearly has been. See, e.g., Utah
Environmental Congress v. Bosworth, 370 F.Supp.2d 1157, 1169 (D.
Utah 2005); Forest Watch v. U.S. Forest Service, 410 F.3d 115,
117 (2nd Cir. 2005); League of Wilderness Defenders v.
Bosworth, 383 F.Supp.2d 1285, 1303 & n. 5 (D.Or. 2005); but see
Utah Environmental Congress v. Bosworth, 421 F.3d 1105,
1110-1111 (10th Cir. 2005) (refusing to apply 2004 Interpretative
For these reasons, the court concludes that claim one is not
To satisfy Article III standing, plaintiffs must demonstrate
(1) [they] ha[ve] 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. City of Sausalito v. O'Neill, 386 F.3d 1186, 1197 (9th Cir.
2004); Citizens for Better Forestry v. U.S.D.A., 341 F.3d 961,
975 (9th Cir. 2003).
Defendants contend that plaintiffs lack standing because they
are unable to demonstrate a concrete, imminent injury that is
redressable by a favorable decision. Defendants further argue
that plaintiffs are not suffering a present or prospective injury
because the 2004 Interpretative Rule that they challenge is no
longer in effect, having been supplanted by the new 2005 Planning
Regulations. Because the 2004 Interpretative Rule has been
rescinded, defendants contend that plaintiffs can no longer claim
that they are injured by the USDA having promulgated the rule in
alleged violation of APA procedures. Defendants further note that
because plaintiffs are raising only a facial challenge to the
2004 Interpretative Rule as opposed to a site-specific
challenge there is no threatened future injury resulting from
any potential application of the rule to a prior project.
In their opposition, plaintiffs appear to concede that they are
not currently challenging a site-specific project. Instead,
plaintiffs assert a procedural and/or an informational injury
based on the 2004 Interpretative Rule's failure to provide for
notice and public comment and the resulting removal of 1982
regulation requirements. They rely on the Ninth Circuit's
decision in Citizens for Better Forestry ("Citizens"), for
the proposition that "environmental plaintiffs have standing to
challenge not only site-specific plans, but also higher-level,
programmatic rules that impose or remove requirements on
site-specific plans." 341 F.3d at 975.
The standing requirements for procedural injuries vary from the
test set forth above. To demonstrate a cognizable procedural
injury in fact, plaintiffs are required to show: "(1) the agency
violated certain procedural rules; (2) these rules protect
plaintiff's concrete interests; and (3) it is reasonably probable
that the challenged action will threaten [plaintiff's] concrete
interests." City of Sausalito, 386 F.3d at 1197 (citing
Citizens, 341 F.3d at 969-70). In other words, "for Article III
purposes, [the court] may recognize a `procedural injury' when a
procedural requirement has not been met, so long as the plaintiff
also asserts a `concrete interest' that is threatened by the
failure to comply with that requirement." Id. I. Procedural Injury in Fact
"To satisfy the injury in fact requirement, a plaintiff
asserting a procedural injury must show that `the procedures in
question are designed to protect some threatened concrete
interest of his that is the ultimate basis of his standing.'"
Cantrell v. City of Long Beach, 241 F.3d 674, 679 (9th Cir.
2001) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555,
573 n. 8, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)). As plaintiffs
have recognized, Ninth Circuit law is clear "that environmental
plaintiffs have standing to challenge not only site-specific
plans, but also higher-level programmatic rules that impose or
remove requirements on site-specific plans." Citizens,
341 F.3d at 975.
In Citizens, the plaintiffs filed a lawsuit on February 16,
2001, challenging the substance of and alleged procedural
violations related to the promulgation of the 2000 Planning
Regulations. 341 F.3d at 968. The challenge was a facial
challenge to the regulations, and not a site or project-specific
challenge. Soon after the plaintiffs filed the lawsuit, the USDA
announced that it was developing a new rule to replace the 2000
Planning Regulations. Id. Plaintiffs and the USDA stipulated to
stay the portion of the lawsuit challenging the merits of the
2000 Planning Regulations pending the regulations' revision, but
plaintiffs did not agree to stay the procedural challenge to the
2000 Planning Regulations. Id. Plaintiffs then moved for
partial summary judgment on their procedural claims, and the USDA
filed a cross-motion contending that plaintiffs lacked standing
to challenge the 2000 Planning Regulations. The district court
granted the USDA's motion.
On appeal, the Ninth Circuit reversed. The court held that
"standing may properly hinge on [the] type of injury" asserted by
the plaintiffs in that case the denial of the public's
opportunity to comment and participate in the revision of an
environmental regulation. Id. at 971. Specifically, the court
[T]his type of procedural injury is tied to a
substantive harm to the environment the harm that
takes place when governmental decisionmakers make up
their minds without having before them an analysis
(with public comment) of the likely effects of their
decision on the environment.
Id. (citations omitted). The Citizens court then reiterated that "the concrete
interest test . . . requir[es] a geographic nexus between the
individual asserting the claim and the location suffering an
environmental impact." Id. "That is, environmental plaintiffs
must allege that they will suffer harm by virtue of their
geographic proximity to and use of areas that will be affected by
the USDA's policy." Id. The court then held that the plaintiffs
in that case had done so where they had "supported with numerous
affidavits . . . that their members use and enjoy national
forests." Id. The court rejected the USDA's argument that the
plaintiffs were required to assert that a "specific injury will
occur in [a] specific national forest." Id. Instead, the court
held that "[t]he asserted injury is that environmental
consequences might be overlooked as a result of deficiencies in
the government's analysis under environmental statutes." Id.
The procedural injury that plaintiffs here have alleged is
similar to that of the plaintiffs in Citizens. At the outset,
the plaintiffs here have properly alleged, and supported with
numerous affidavits, a concrete interest that their members use
and enjoy national forests.
Moreover, similar to the plaintiffs in Citizens, the
plaintiffs here have also properly alleged a procedural injury in
the denial of the opportunity to comment on the 2004
Interpretative Rule. In this case, plaintiffs have sufficiently
alleged that the purported procedural violations of the APA
harmed plaintiffs' concrete interest in their rights under the
Planning Regulations implementing the NFMA, specifically the
species viability standards, which plaintiffs assert were altered
by the 2004 Interpretative Rule. For the reasons stated by the
Ninth Circuit in Citizens, the court rejects defendants'
argument that plaintiffs need to demonstrate an injury to a
ii. Causation and Redressability
Once a plaintiff has established a procedural injury in fact,
the causation and redressability requirements are relaxed.
Citizens, 341 F.3d at 975; see also Defenders of Wildlife v.
United States Environmental Protection Agency, 420 F.3d 946,
957-58 (9th Cir. 2005) ("[r]eliance on procedural harms alters a
plaintiff's burden on the last two prongs of the Article III
standing test"). Unlike in an ordinary causation analysis, a
petitioner asserting a procedural injury need only establish "the
reasonable probability of the challenged action's threat to [his] concrete interest." Hall v. Norton,
266 F.3d 969, 977 (9th Cir. 2001).
The issue here is whether the fact that the 2004 Interpretative
Rule was rescinded by the 2005 Planning Regulations dispels any
"reasonable probability" of its "threat to [plaintiffs'] concrete
interest" in the viability standards that the 2004 Interpretative
Rule allegedly replaced. This is very similar to the mootness
issue discussed above.
Defendants argue that this case is different than Citizens,
341 F.3d at 975, because the plaintiffs in that case were
challenging the promulgation of the 2000 Planning Regulations
while those regulations still retained prospective application.
Defendants argue that unlike the plaintiffs in Citizens, there
is no reasonable possibility that the plaintiffs here may be
prospectively harmed by application of the 2000 Planning
Regulations via the 2004 Interpretative Rule because the 2005
Planning Regulations rescinded the 2004 Interpretative Rule. For
that reason, defendants argue that this court will be unable to
redress any injury to plaintiffs by granting the declaratory and
injunctive relief plaintiffs seek.
However, as discussed above in conjunction with the discussion
on mootness, the 2004 Interpretative Rule still remains a
prospective if not a current threat to plaintiffs' concrete
interests because it continues to be applied by federal courts to
projects underway at the time the rule was in effect. Moreover,
contrary to defendants' argument, the 2000 Planning Regulations
at issue in Citizens retained no more "prospective application"
than the 2004 Interpretative Rule at issue here. In Citizens,
the 2000 Planning Regulations were being replaced.
Nor are defendants' arguments regarding redressability relevant
here. As noted, where plaintiffs have alleged a procedural
injury, the redressability requirement is relaxed. See
Cantrell, 241 F.3d at 674. "The Supreme Court has recognized
that the assertion of procedural rights is special." Id. "The
person who has been accorded a procedural right to protect his
concrete interest can assert that right without meeting all the
normal standards for redressability and immediacy." Id. (citing
Defenders of Wildlife, 504 U.S. at 572 n. 7). In the most
recent Ninth Circuit case mentioned above, Defenders of
Wildlife, the court did not address either the causation or
redressability standards, suggesting that neither was an issue where a procedural harm had been alleged. 420 F.3d at 957-58.
For these reasons, the court finds that plaintiffs have
standing to assert claim one. Defendants' motion for partial
summary judgment and/or judgment on the pleadings is therefore
DENIED as to claim one.
2. Claims Two and Four
A. Description of Plaintiffs' Claims
In claim two, plaintiffs contend that the 2005 Planning
Regulations differ substantially from the 2002 Proposed
Regulations, for which public comment was sought, and that it was
promulgated without observance of the procedure required by law,
in violation of APA § 706(2), and is, therefore, arbitrary,
capricious, and an abuse of discretion.
Plaintiffs further contend that the 2005 Planning Regulations
violate the NFMA by failing to include the mandatory standards
set forth in 16 U.S.C. § 1604(g). Specifically, plaintiffs
contend that defendants deleted from the 2005 Planning
Regulations virtually every resource standard that appeared in
the 2002 Proposed Regulations. The omitted standards include:
Standards to Provide for the Diversity of Plant and
Standards Re: Timber Harvest
Forest Plan Consistency Requirement
Public Participation Requirement
Pre-2005 Planning Regulations provided detailed guidance to
the Forest Service for implementing and monitoring species
viability. See 36 C.F.R. § 219.19 (1982 Planning Regulations);
36 C.F.R. § 219.20 (b)(2) (2000 Planning Regulations). In claim
four, plaintiffs contend that the 2005 Planning Regulations
violate the APA because they abandon the previous species
viability requirements contained in prior regulations in favor of
an "ecosystem diversity" without a substantial basis in the
record for doing so. See 36 C.F.R. § 219.10(b) (2005 Planning
B. Nature of Claims Two and Four The nature of plaintiffs' claims substantive versus
procedural is relevant to plaintiffs' standing and the ripeness
of claims two and four. Defendants contend that both claims two
and four constitute substantive claims, asserting that plaintiffs
allege substantive injuries as opposed to procedural injuries.
Plaintiffs, on the other hand, contend that both claims two and
four are procedural claims. Intervenors, unlike defendants, have
not challenged claim four on standing and ripeness grounds, and
appear to concede that claim four is a procedural claim. However,
like defendants, intervenors argue that claim two is a
i. Claim Two is a Substantive Claim
Plaintiffs argue that claim two is a procedural claim,
contending that the Forest Service did not follow NFMA procedures
in promulgating the 2005 Planning Regulations. However, review of
the plaintiffs' complaint clearly suggests the contrary. As set
forth above, plaintiffs contend that the 2005 Planning
Regulations unlawfully omitted or changed prior planning
regulations interpreting the NFMA, and that in doing so,
defendants violated the APA. Plaintiffs' argument is essentially
that because some of the planning regulations changed by or
omitted from the 2005 Planning Regulations themselves provided
procedural directives, claim two should be read to assert a
procedural injury. However, regardless how plaintiffs
characterize it, claim two challenges the substance of the 2005
Planning Regulations insofar as the 2005 Planning Regulations
differ from prior Planning Regulations. See, e.g., Inland
Empire, 88 F.3d at 759; see also Neighbors of Cuddy Mtn.,
303 F.3d at 1071 n. 6; Idaho Sporting Congress v. Rittenhouse,
305 F.3d 957, 961 (9th Cir. 2002).
ii. Claim Four is a Procedural Claim
The same cannot be said for claim four. Defendants argue that
plaintiff's fourth "claim that the Forest Service's handling of
the species diversity issue in the 2005 Planning Regulations is
not supported by the record is nothing more than a substantive
attack on the Planning Regulations asking the Court to review the
Administrative Record to determine whether the agency's substantive decisions satisfy section
1604(g)(3)(B)."*fn3 Defendants' Reply Br. at 9. The court
finds, however, that defendants are incorrect regarding the
nature of claim four. Unlike claim two, claim four is not a
disguised challenge to the 2005 Planning Regulations' standards
regarding species viability, but is simply a procedural claim in
which plaintiffs assert that the record defendants compiled in
support of the 2005 Planning Regulations was insubstantial and
therefore insufficient under the APA. Accordingly, the court will
construe claim four as alleging that procedural injury only.
C. Ripeness: Claims Two and Four
In Ohio Forestry Ass'n, the Supreme Court announced a
three-pronged test for determining the ripeness of an
administrative challenge: (1) whether delayed review would cause
hardship to the plaintiffs; (2) whether judicial intervention
would inappropriately interfere with further administrative
action; and (3) whether the courts would benefit from further
factual development of the issues presented. 523 U.S. at 733.
However, since Ohio Forestry, the Ninth Circuit has interpreted
the ripeness standards set forth by that case differently
depending on whether plaintiffs present procedural or substantive
claims. See Citizens, 341 F.3d at 977; Laub v. U.S. Dep't of
Interior, 342 F.3d 1080, 1090 (9th Cir. 2003) (citing Kern v.
BLM, 284 F.3d 1062, 1070-71 (9th Cir. 2002)).
The Ninth Circuit "ha[s] recognized the distinction between
substantive challenges which are not ripe until site-specific
plans are formulated, and procedural challenges which are ripe
for review" at the time of violation. Laub, 342 F.3d at 1090
(emphasis added); Kern, 284 F.3d at 1070. Accordingly, claim
two, which presents a substantive facial challenge to the 2005
Planning Regulations is not ripe and therefore not justiciable.
See id.; see also Ohio Forestry Ass'n, 523 U.S. at 733. For this reason, defendants'
motion for summary judgment and/or judgment on the pleadings is
GRANTED as to claim two.
However, claim four, which mounts a procedural challenge is
ripe. That is because the question regarding whether defendants
compiled a sufficient record to revise the species viability
standards in the 2005 Planning Regulations was ripe at the time
the 2005 Planning Regulations were promulgated. Thus, claim four
will not "inappropriately interfere with further administrative
action," and there is no further factual development that can be
had. See Kern, 284 F.3d at 1071.
D. Standing: Claim Four
Because claim two is not ripe, the only issue remaining is that
of plaintiffs' standing with respect to claim four. The
applicable legal standards are the same as those set forth above
with respect to claim one since a procedural injury has been
alleged. Therefore, the inquiry again is whether: "(1) the agency
violated certain procedural rules; (2) these rules protect
plaintiff's concrete interests; and (3) it is reasonably probable
that the challenged action will threaten [plaintiff's] concrete
interests." City of Sausalito, 386 F.3d at 1197.
The analysis and conclusion are nearly identical to that
discussed above with respect to claim one and that contained in
the Ninth Circuit's decision in Citizens. 341 F.3d at 969-76.
Again, the plaintiffs here have properly alleged, and supported
with numerous affidavits, a concrete interest that their
members use and enjoy national forests. Moreover, in claim four,
the plaintiffs here have also properly alleged a procedural
injury in the USDA's alleged failure to compile a sufficient
record prior to amending and/or rescinding prior species
viability standards. Plaintiffs have also demonstrated that the
procedural injury presented a "reasonable probability" of its
"threat to [plaintiffs'] concrete interest." Hall,
266 F.3d at 977.
For these reasons, the court concludes that plaintiffs have
standing with respect to claim four. Defendants' motion for
summary judgment and/or judgment on the pleadings is DENIED with
respect to claim four.
The court GRANTS IN PART and DENIES IN PART defendants' motion
for partial summary judgment and/or judgment on the pleadings. As set forth
above, the court DENIES defendants' motion with respect to claim
one because the claim is not moot, and plaintiffs have standing
to assert the claim. The court also DENIES defendants' motion as
to claim four because the claim is ripe, and plaintiffs have
standing. However, the court GRANTS defendants' motion regarding
claim two because that claim, which constitutes a substantive
claim, is not ripe because plaintiffs are not challenging a
This order fully adjudicates the matter listed at no. 33 of the
clerk's docket for this case.
IT IS SO ORDERED.
© 1992-2005 VersusLaw Inc.