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People, ex rel Lockyer v. United States Dep't of Agriculture

August 18, 2008

PEOPLE OF THE STATE OF CALIFORNIA, EX REL. BILL LOCKYER, ATTORNEY GENERAL, PLAINTIFF,
v.
UNITED STATES DEPARTMENT OF AGRICULTURE; MIKE JOHANNS, SECRETARY OF THE DEPARTMENT OF AGRICULTURE; MARK REY, UNDER SECRETARY OF THE DEPARTMENT OF AGRICULTURE; UNITED STATES FOREST SERVICE; DALE BOSWORTH, CHIEF, UNITED STATES FOREST SERVICE; ANDBERNARD WEINGARDT, REGIONAL FORESTER, PACIFIC SOUTHWEST REGION, UNITED STATES FOREST SERVICE, DEFENDANTS. AND TUOLUMNE COUNTY ALLIANCE FOR RESOURCES & ENVIRONMENT, ET AL.; CALIFORNIA SKI INDUSTRY ASS'N; QUINCY LIBRARY GROUP, ET AL.; AND CALIFORNIA CATTLEMEN'S ASS'N, DEFENDANTS-INTERVENORS.



The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge

MEMORANDUM AND ORDER

Through this lawsuit, Plaintiff Bill Lockyer, on behalf of the People of the State of California (hereinafter "Plaintiff") challenges the 2004 Sierra Nevada Forest Plan Amendment ("SNFPA"), commonly known as the 2004 Framework. Defendants are sued in their official capacities as representatives of the United States Forest Service. ("Forest Service") Plaintiff contends that the 2004 Framework runs counter to the provisions of both the Administrative Procedures Act ("APA") and the National Environmental Policy Act of 1969 ("NEPA"). Presently before the Court are cross motions for summary judgment filed on behalf of both the Plaintiff and Defendants.

FACTUAL BACKGROUND

The Sierra Nevada contains some 11.5 million acres of National Forest Service land with eleven National Forests and encompasses "dozens of complex ecosystems each with numerous, inter-connected social, economic and ecological components." SNFPA 1920. In the late 1980s, the Forest Service began developing a comprehensive strategy for managing the myriad resources found within the region. In 1995, the Regional Forester for the Pacific Southwest Region of the Forest Service issued a draft Environmental Impact Statement ("EIS") outlining its management proposal. SNFPA 229.*fn1

After extensive public participation and the preparation of a Final EIS ("FEIS") responding to public concerns, the Regional Forester issued, in 2001, a Record of Decision ("ROD") which adopted management objectives in five major areas: old forest ecosystems; aquatic, riparian, and meadow ecosystems; fire and fuels; noxious weeds; and hardwood ecosystems on the lower westside of the Sierras. Id. at 231-35.

Among the thorniest issues confronted by the ROD was striking the appropriate balance between balancing the excessive fuel buildups occasioned by decades of fire repression and conserving key habitat for wildlife species dependent on old forest environments. The 2001 ROD included a network of "old forest emphasis areas" across about 40 percent of all national forest land in the Sierra Nevada that was designed to provide a contiguous network of old forest ecosystems conducive to species preferring such habitat like the California Spotted Owl, the American Marten and the Pacific Fisher. SNFPA 236. Aside from other areas slated for specific treatment (like a limited "urban wildland intermix" designed to create a buffer between developed areas and the forest), the 2001 Framework specified a "general forest" land allocation intended to increase the density of large old trees and the continuity and distribution of old forests across the landscape. SNFPA 236-37.

In order to protect old forest conditions within its specific areas of emphasis, the 2001 Framework generally prohibited logging that would remove trees over 12 inches in diameter or logging that would reduce canopy cover by more than 10 percent. SNFPA 328.

Even within the "general forest" areas, the 2001 Framework prohibited logging of trees over 20 inches in diameter. SNFPA 336. It was only within the intermix zones that no canopy restrictions were imposed and logging of trees up to 30 inches was permitted. SNFPA 333, 315.

Although the Forest Service ultimately affirmed adoption of the 2001 ROD despite receipt of approximately 200 administrative appeals, it nonetheless directed the Regional Forester to conduct an additional review with respect to specific concerns like wildfire risk and the Forest Service's responsibilities under the Herger-Feinstein Quincy Library Group Forest Recovery Act ("HFQLG Act"), a congressional mandate which established a Pilot Program for fire suppression through a combination of fire breaks, group selection logging and individual logging. SNFPA 1918. A management review team was assembled by the Regional Forester for this purpose.

In March 2003, the team concluded that the 2001 ROD's "cautious approach" to active fuels management had limited its effectiveness in many treatment areas. The management review team further found that revisions to vegetation management rules would decrease flammable fuels while protecting critical wildlife habitat by guarding against the risk of stand-replacing wildfire. See SNFPA 1918, 1926.

Moreover, with respect to the California Spotted Owl ("CASPO" or "owl"), the team felt that the 2001 ROD had unnecessarily "took a worst case approach to estimating effects" on the owl. SNFPA 1968.*fn2 In addition to citing recent research indicating that habitat losses resulting from fuel treatments were less than previously believed, the team further found that the 2001 ROD's extensive reliance on maintaining extensive canopy cover was impracticable to implement.

Following receipt of the team's findings, the Regional Forester ordered that management strategy alternatives in addition to those considered in the 2001 FEIS be considered. A draft supplemental environmental impact statement ("DSEIS") was thereafter released to the public in January 2004. While the same five areas of concern were targeted in the DSEIS as in its 2001 predecessor, in 2004 a new action alternative was identified (Alternative S2), in addition to the alternative selected by the 2001 Framework (Alternative S1) and the seven alternatives that had previously been considered before adoption of the 2001 Framework (Alternatives F2-F8).*fn3

Following the public comment period after dissemination of the DSEIS, the SEIS in final form also included response to various issues raised, including comments by the United States Fish and Wildlife Service, by the United States Environmental Protection Agency, by California resources protection agencies, and by the Science Consistency Review ("SCR") team.*fn4

By adopting the SEIS on January 21, 2004, the Regional Forester replaced the 2001 ROD with its 2004 successor and amended the forest plans for all eleven national forests situated in the Sierra Nevada. SNFPA 2987-3061. The 2004 ROD reasoned that the 2001 Framework "prescribed technical solutions that do not produce needed results, or offered methods we often dare not attempt in the current Sierra Nevada." SNFPA 2995. The 2004 Framework reasoned that the methods as adopted in 2001 fail to reverse the damage, and growing threat, of catastrophic fires quickly enough. Id.

The Chief of the Forestry Service ultimately affirmed the 2004 ROD,*fn5 with the direction that details of the ROD's adaptive management be submitted to him within six months. SNFPA 3997-4305. The Regional Forester submitted that supplemental information to the Chief on March 31, 2005.

Through the present lawsuit, Plaintiffs allege that the 2004 Framework as ultimately adopted runs afoul of both the APA and NEPA on a programmatic basis. Specifically, Plaintiff contends that the 2004 Framework violates the APA because it failed to include a reasoned analysis for changing the approach advocated by its predecessor, the 2001 Framework. Moreover, Plaintiffs also argue that the 2004 Framework runs afoul of NEPA because it was adopted without either adequate disclosure of its significant environmental impacts or consideration of reasonable alternatives to the selected approach.

PROCEDURAL FRAMEWORK

Congress enacted NEPA in 1969 to protect the environment by requiring certain procedural safeguards before an agency takes action affecting the environment. The NEPA process is designed to "ensure that the agency ... will have detailed information concerning significant environmental impacts; it also guarantees that the relevant information will be made available to the larger [public] audience."

Blue Mountains Biodiversity Project v. Blackwood, 171 F.3d 1208, 121 (9th Cir. 1998). The purpose of NEPA is to "ensure a process, not to ensure any result." Id. "NEPA emphasizes the importance of coherent and comprehensive up-front environmental analysis to ensure informed decision-making to the end that the agency will not act on incomplete information, only to regret its decision after is it too late to correct." Center for Biological Diversity v. U.S. Forest Serv., 349 F.3d 1157, 1166 (9th Cir. 2003).

Complete analysis under NEPA also assures that the public has sufficient information to challenge the agency's decision. Robertson v. Methow Valley Citizens, 490 U.S. 332, 349 (1989); Idaho Sporting Cong. v. Thomas, 137 F.3d 1146, 1151 (9th Cir. 1998).

NEPA requires that all federal agencies, including the Forest Service, prepare a "detailed statement" that discusses the environmental ramifications, and alternatives, to all "major Federal Actions significantly affecting the quality of the human environment." 42 U.S.C. § 4332(2)(c). An agency must take a "hard look" at the consequences, environmental impacts, and adverse environmental effects of a proposed action within an environmental impact statement ("EIS"), when required. Kleppe v. Sierra Club, 427 U.S. 390, 410, n.21 (1976).

NEPA does not mandate that an EIS be based on a particular scientific methodology, nor does it require a reviewing court to weigh conflicting scientific data. Friends of Endangered Species, Inc. v. Jantzen, 760 F.2d 976, 986 (9th Cir. 1985).

An agency must be permitted discretion in relying on the reasonable opinions of its own qualified experts, even if the court might find contrary views more persuasive. See, e.g., Kleppe, 427 U.S. at 420, n. 21. NEPA does not allow an agency to rely on the conclusions and opinions of its staff, however, without providing both supporting analysis and data. Idaho Sporting Cong., 137 F.3d at 1150. Credible scientific evidence that contraindicates a proposed action must be evaluated and disclosed. 40 C.F.R. § 1502.9(b).

Because NEPA itself contains no provisions allowing a private right of action (see Lujan v. National Wildlife Federation, 497 U.S. 871, 882 (1990)), a party can obtain judicial review of alleged violations of NEPA only under the waiver of sovereign immunity contained within the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701-706. Earth Island Institute v. U.S. Forest Serv., 351 F.3d 1291, 1300 (9th Cir. 2005).

Under the APA, the court must determine whether, based on a review of the agency's administrative record, agency action was "arbitrary and capricious," outside the scope of the agency's statutory authority, or otherwise not in accordance with the law. Salmon River Concerned Citizens v. Robertson, 32 F.3d 1346, 1356 (9th Cir. 1994). Review under the APA is "searching and careful." Ocean Advocates, 361 F.3d at 1118. However, the court may not substitute its own judgment for that of the agency. Id. (citing Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971), overruled on other grounds by Califano v. Sanders, 430 U.S. 99 (1977)).

In reviewing an agency's actions, then, the standard to be employed is decidedly deferential to the agency's expertise. Salmon River, 32 F.3d at 1356. Although the scope of review for agency action is accordingly limited, such action is not unimpeachable. The reviewing court must determine whether there is a rational connection between the facts and resulting judgment so as to support the agency's determination.

Baltimore Gas and Elec. v. NRDC, 462 U.S. 87, 105-06 (1983), citing Bowman Trans. Inc. v. Arkansas-Best Freight Sys. Inc., 419 U.S. 281, 285-86 (1974). An agency's review is arbitrary and capricious if it fails to consider important aspects of the issues before it, if it supports its decisions with explanations contrary to the evidence, or if its decision is either inherently implausible or contrary to governing law. The Lands Council v. Powell, 395 F.3d 1019, 1026 (9th Cir. 2005).

STANDARD

Summary judgment is an appropriate procedure in reviewing agency decisions under the dictates of the APA. See, e.g., Northwest Motorcycle Assn. v. U.S. Dept. Of Agric., 18 F.3d 1468, 1471-72 (9th Cir. 1994). Under Federal Rule of Civil Procedure 56, summary judgment may accordingly be had where, viewing the evidence and the inferences arising therefrom in favor of the non-movant, there are no genuine issues of material fact in dispute." Id. at 1472. In cases involving agency action, however, the court's task "is not to resolve contested facts questions which may exist in the underlying administrative record", but rather to determine whether the agency decision was arbitrary and capricious as defined by the APA and discussed above. Gilbert Equipment Co., Inc. v. Higgins, 709 F. Supp. 1071, 1077 (S.D. Ala. 1989); aff'd, Gilbert Equipment Co. Inc. v. Higgins, 894 F.2d 412 (11th Cir. 1990); see also Occidental Eng'g Co. v. INS, 753 F.2d 766, 769 (9th Cir. 1985).

Consequently, in reviewing an agency decision, the court must be "searching and careful" in ensuring that the agency has taken a "hard look" at the environmental consequences of its proposed action. Ocean Advocates v. U.S. Army Corps of Engineers, 402 F.3d 846, 858-59 (9th Cir. 2005); Or. Natural Res. Council v. Lowe, 109 F.3d 521, 526 (9th Cir. 1997).

ANALYSIS

I. STANDING

According to Defendants, Plaintiff has failed to demonstrate the requisite standing for proceeding with this lawsuit because he has submitted no evidence that the State of California's natural resources will be impacted. Defendants correctly point out that determining whether an adequate "case or controversy" exists between litigating parties is a critical threshold inquiry in every federal case. Warth v. Seldin, 422 U.S. 490, 498 (1975). Vital in satisfying the case or controversy requirement is the doctrine of standing which requires a plaintiff to have suffered a "concrete and particularized" injury which is "actual or imminent" rather than "conjectural or hypothetical," and can be fairly traced to the actions of a defendant. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992).

Despite Defendants' contentions to the contrary, however, the detailed allegations of Plaintiff's Complaint herein are in and of themselves sufficient to confer standing in this matter. To establish Article III standing based on alleged procedural injuries like those guaranteed by NEPA and the APA, a plaintiff need only show 1) that defendants violated certain procedural rules; 2) that the rules existed to protect plaintiff's concrete interests; and 3) that it is reasonably probable that the challenged action threatens those concrete interests. City of Sausalito v. O'Neill, 386 F.3d 1186, 1197 (9th Cir. 2004); see also Citizens for Better Forestry v. U.S. Dept. Of Ag., 341 F.3d 961, 969-70 (9th Cir. 2003).

In City of Sausalito, the Ninth Circuit found standing on the part of Sausalito to sue the National Park Service under NEPA. The court held that the City's "concrete interests" included "proprietary interests" that are "as varied as a municipality's responsibilities, powers, and assets." Id. at 1197. Such interests included the City's interest in protecting its ability to enforce its land use and health regulations and in preventing effects to its natural resources, its city-owned land, and its "aesthetic appeal." Id. at 1198-99. The court determined that it was reasonably probable that the project proposed by the Park Service threatened Sausalito's concrete interests, through the possibility of "a detrimental increase in traffic and crowds...., affecting city-owned streets as well as municipal management and public safety functions." Id.

The Ninth Circuit also identified an "aesthetic injury" due to congestion that "will destroy the City's quiet, beauty, serenity and quaint and historic village character and attributes"; and "injury to Sausalito's natural resources" due to an increase in noise and trash, degraded air quality, and harm to the marina, parks and shoreline. Id.; see also City of Davis v. Coleman, 521 F.2d 661 (9th Cir. 1975).

The considerations weighed and deemed sufficient to confer standing in City of Sausalito apply with equal force in this case. Plaintiff is authorized by law to protect its varied interests from harm, interests which reflect the State of California's own unique responsibilities, powers and assets. By operation of law and a factual matter, California owns, and holds in trust for its population, all wildlife, water, state-owned land, and public trust lands in and around the Sierra Nevada.

See, e.g., Betchart v. Cal. Dept. of Fish and Game, 158 Cal. App. 3d 1104, 1106-07 (1984) (wildlife); Cal. Water Code § 102 (water). To the extent Plaintiff has identified violations of APA and NEPA bearing upon such resources, it is reasonably probable that such violations will threaten California's concrete, proprietary interests.

California may sue under the APA and NEPA because it falls within the APA's broad definition of a "person... adversely affected or aggrieved by agency action." 5 U.S.C. § 702; see also 5 U.S.C. § 551(2). The Attorney General is also authorized, under common law, to file any civil action directly involving the rights and interests of the state in the absence of any legislative restriction.

D'Amico v. Board of Medical Examiners, 11 Cal. 3d 1, 14-14 (1974); People v. Birch Sec. Co., 86 Cal. App. 2d 703, 707 (1948); People v. Stratton, 25 Cal. 242, 248 (1864); see also Cal. Govt. Code §§ 12511, 12512.

Moreover, in approving the 2004 Framework and upholding it on administrative appeal, the Forest Service has made a final administrative determination that is subject to review under the APA. 5 U.S.C. § 702. The procedural injuries alleged by California clearly fall within the zone of interests that the APA and NEPA are designed to protect because the Attorney General brings this action to protect the environment and natural resources of this state. Defendants' challenge to Plaintiff's lawsuit on standing grounds consequently fails.

II. CLAIMS UNDER THE APA THAT DEFENDANTS FAILED TO PROVIDE THE FRAMEWORK REQUISITE "REASONED ANALYSIS" FOR ADOPTION OF THE 2004

Plaintiff's independent APA challenge (as set forth in the First Cause of Action) is predicated on the contention that the Forest Service summarily rejected the 2001 Framework without identifying any sufficient new information or changed circumstances and without reconciling its abrupt change of course with previous findings to the effect that permitting more flexibility for fuel treatments in old-growth forests posed an unacceptable risk to the long-term sustainability of the Sierra Nevada's habitat, wildlife, and ecosystems.

In response to Plaintiff's claim that the Bush Administration promptly jettisoned the 2001 Framework developed by the prior administration after assuming office, Defendants correctly point out that "a change in administration brought about by the people casting their votes is a perfectly reasonable basis for an executive agency's reappraisal of the costs and benefits of its programs and regulations." Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 59 (1983) (Rehnquist, J., concurring in part and dissenting in part). In National Cable & Tel. Ass'n v. Brand X Internet Servs. ("Brand X"), 545 U.S. 967 (2005), the Supreme Court again reiterated that a new administration may lawfully elect to modify its predecessor's policies:

"An initial agency interpretation is not instantly carved in stone. On the contrary, the agency.... must consider varying interpretations and the wisdom of its policy on a continuing basis, [citation omitted], for example, in response to changed factual circumstances or a change in administration...

Id. at 981 (internal quotations and citations omitted); see also Gorbach v. Reno, 179 F.3d 1111, 1123-24 & n.16 (6th Cir. 1999) (federal agencies have "inherent authority to reconsider their own decisions," as the power to decide includes the power to reach a different conclusion).

Nonetheless, to the extent that the 2004 Framework represented a significant departure from the policies embodied by its 2001 predecessor, the rationale for that change must be adequately articulated. As long as the agency provides a procedural explanation for the change of course, the APA is satisfied.

Brand X, 545 U.S. at 981; Springfield Inc. v. Buckles, 292 F.3d 813, 819 (D.C. Cir. 2002). An agency changing its course must "supply a reasoned analysis for the change beyond that which may be required when an agency does not act in the first instance." See Motor Vehicle Mfrs. Assoc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. at 42. "[T]he agency must examine the relevant data and articulate a satisfactory explanation for its action including a rational connection between the facts found and the decision made." Id. at 43. The standard of review to be employed is not whether an agency's decision is supported by substantial evidence; instead, the Court must uphold a decision for which an administrative hearing is not required unless it is arbitrary or capricious because the requisite reasoned analysis is lacking. See 5 U.S.C. § 706(2)(A); Wilderness Soc'y v. Thomas, 188 F.3d 1130, 1136 (9th Cir. 1999).

In analyzing the propriety of the 2004 Amendment, it should also be noted that claims under the APA must be viewed in light of the substantive statutory authority under which the agency acts. The National Forest Management Act ("NFMA"), which establishes criteria for stewardship of the nation's forests, allows the Forest Service to adopt an amendment to a forest plan at any time. 16 U.S.C. § 1604(f)(4). Significantly, too, the NFMA goes on to require that the Forest Service "provide for multiple use and sustained yield" of products and services, including "coordination of outdoor recreation, range, timber, watershed, wildlife and fish, and wilderness." 16 U.S.C. § 1604(e)(1).

In striking the appropriate balance of resources the Forest Service is also expected to "provide for diversity of plant and animal communities (1604(g)(3)(B), and to maintain viable populations of species. See 36 C.F.R 219.19 (1982); SNFPA 3011. The case law confirms that forest planning statutes incorporate considerations of multiple use. Sierra Club v. Espy, 38 F.3d 792, 795 (5th Cir. 1994).

The burden is on Plaintiff to demonstrate that the Forest Service's action is flawed; otherwise, the agency's action is given a presumption of regularity. See Clyde K. v. Puyallup School Dist., No. 3, 35 F.3d 1396, 1398 (9th Cir. 1994). This confers broad discretion to the Forest Service in its balancing of different resource uses, including timber and wildlife. Such discretion permits the Forest Service to determine the mix of uses that best suits the public interest. See 16 U.S.C. § 529 (directing Secretary of Agriculture to administer the National Forest Service for multiple uses and sustained yield); Perkins v. Bergland, 608 F.2d 803, 806 (9th Cir. 1979) (the mandate to manage for multiple uses "'breathe[s] discretion at every pore.'" (citation omitted); Intermtn. Forest Ass'n v. Lyng, 683 F. Supp. 1330, 1337-38 (D. Wyo. 1988).

Discretion in managing for multiple use is reflected in pertinent forest management statutes and is also incorporated into the forest planning. Where the factual issue concerns an opinion or judgment on some environmental or silvicultural matter, on such a "scientific determination.... a reviewing court must generally be at its most deferential."

Baltimore Gas & Elec. Co. v. Natural Resources Def. Council, 462 U.S. 87, 103 (1983). An "agency must have discretion to rely on the reasonable opinions of its own qualified experts even if, as an original matter, a court might find contrary ...


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