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.
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 ...