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DEFENDERS OF WILDLIFE v. JOHANNS

October 14, 2005.

DEFENDERS OF WILDLIFE, SIERRA CLUB, THE WILDERNESS SOCIETY, and VERMONT NATURAL RESOURCES COUNCIL, Plaintiffs,
v.
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 Planning Regulations;
(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.

  BACKGROUND

  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 Agriculture ("USDA").

  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.

  DISCUSSION

  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 ...


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