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People ex rel Lockyer v. U.S. Dep't of Agriculture

August 5, 2009

PEOPLE OF THE STATE OF CALIFORNIA EX REL. BILL LOCKYER; STATE OF NEW MEXICO, EX REL. PATRICIA A. MADRID, ATTORNEY GENERAL FOR THE STATE OF NEW MEXICO; STATE OF OREGON, BY AND THROUGH THEODORE KULONGOSKI, GOVERNOR; STATE OF WYOMING; THE WILDERNESS SOCIETY; CALIFORNIA WILDERNESS COALITION; FORESTS FOREVER FOUNDATION; NORTHCOAST ENVIRONMENTAL CENTER; OREGON NATURAL RESOURCES COUNCIL FUND; SITKA CONSERVATION SOCIETY; SISKIYOU REGIONAL EDUCATION PROJECT; BIODIVERSITY CONSERVATION ALLIANCE; SIERRA CLUB; NATIONAL AUDUBON SOCIETY; GREATER YELLOWSTONE COALITION, CENTER FOR BIOLOGICAL DIVERSITY; ENVIRONMENTAL PROTECTION INFORMATION CENTER; KLAMATH-SISKIYOU WILDLANDS CENTER; DEFENDERS OF WILDLIFE; PACIFIC RIVERS COUNCIL; IDAHO CONSERVATION LEAGUE; HUMANE SOCIETY OF THE UNITED STATES; CONSERVATION NW; GREENPEACE, PLAINTIFFS-APPELLEES,
v.
U.S. DEPARTMENT OF AGRICULTURE; DALE BOSWORTH, CHIEF OF THE U.S. FOREST SERVICE; MIKE JOHANNS, SECRETARY OF THE DEPARTMENT OF AGRICULTURE; MARK REY, UNDER SECRETARY FOR NATURAL RESOURCES & ENVIRONMENT OF THE DEPARTMENT OF AGRICULTURE; UNITED STATES FOREST SERVICE, DEFENDANTS-APPELLANTS,
AMERICAN COUNCIL OF SNOWMOBILE ASSOCIATIONS; BLUERIBBON COALITION; CALIFORNIA ASSOCIATION OF 4 WHEEL DRIVE CLUBS UNITED FOUR WHEEL DRIVE ASSOCIATIONS; SILVER CREEK TIMBER COMPANY, INC., DEFENDANT-INTERVENORS,
v.
STATE OF WASHINGTON, PLAINTIFF-INTERVENOR-APPELLEE.
PEOPLE OF THE STATE OF CALIFORNIA EX REL. BILL LOCKYER; STATE OF NEW MEXICO, EX REL. PATRICIA A. MADRID, ATTORNEY GENERAL FOR THE STATE OF NEW MEXICO; STATE OF OREGON, BY AND THROUGH THEODORE KULONGOSKI, GOVERNOR; STATE OF WYOMING; THE WILDERNESS SOCIETY; CALIFORNIA WILDERNESS COALITION; FORESTS FOREVER FOUNDATION; NORTHCOAST ENVIRONMENTAL CENTER; OREGON NATURAL RESOURCES COUNCIL FUND; SITKA CONSERVATION SOCIETY; SISKIYOU REGIONAL EDUCATION PROJECT; BIODIVERSITY CONSERVATION ALLIANCE; SIERRA CLUB; NATIONAL AUDUBON SOCIETY; GREATER YELLOWSTONE COALITION, CENTER FOR BIOLOGICAL DIVERSITY; ENVIRONMENTAL PROTECTION INFORMATION CENTER; KLAMATH-SISKIYOU WILDLANDS CENTER; DEFENDERS OF WILDLIFE; PACIFIC RIVERS COUNCIL; IDAHO CONSERVATION LEAGUE; HUMANE SOCIETY OF THE UNITED STATES; CONSERVATION NW; GREENPEACE, PLAINTIFFS-APPELLEES,
v.
U.S. DEPARTMENT OF AGRICULTURE; DALE BOSWORTH, CHIEF OF THE U.S. FOREST SERVICE; MIKE JOHANNS, SECRETARY OF THE DEPARTMENT OF AGRICULTURE; MARK REY, UNDER SECRETARY FOR NATURAL RESOURCES & ENVIRONMENT OF THE DEPARTMENT OF AGRICULTURE; UNITED STATES FOREST SERVICE, DEFENDANTS,
SILVER CREEK TIMBER COMPANY, INC., DEFENDANT-INTERVENOR, AND AMERICAN COUNCIL OF SNOWMOBILE ASSOCIATIONS; BLUERIBBON COALITION; CALIFORNIA ASSOCIATION OF 4 WHEEL DRIVE CLUBS UNITED FOUR WHEEL DRIVE ASSOCIATIONS, DEFENDANT-INTERVENORS-APPELLANTS,
v.
STATE OF WASHINGTON, PLAINTIFF-INTERVENOR-APPELLEE.



Appeal from the United States District Court for the Northern District of California Elizabeth D. Laporte, Magistrate Judge, Presiding D.C. No. CV-05-03508-EDL.

The opinion of the court was delivered by: Beezer, Circuit Judge

FOR PUBLICATION

OPINION

Argued and Submitted October 20, 2008 -- San Francisco, California

Before: Robert R. Beezer, Jay S. Bybee, and Carlos T. Bea, Circuit Judges.

This case involves procedural challenges to a United States Forest Service Rule known as the State Petitions Rule. The plaintiffs, several states and various environmentalist organizations, contend that the State Petitions Rule was promulgated without proper process and that it is invalid. They urge us to affirm the district court, which set aside the State Petitions Rule and reinstated the Roadless Area Conservation Rule, more commonly known as the "Roadless Rule," pending Forest Service compliance with the National Environmental Policy Act and the Endangered Species Act.

We agree with the plaintiffs that the promulgation of the State Petitions Rule effected a repeal of the Roadless Rule, which we previously found to afford greater protections to the nation's roadless areas than those the individual forest plans provide. The Forest Service's use of a categorical exemption to repeal the nationwide protections of the Roadless Rule and to invite States to pursue varying rules for roadless area management was unreasonable. It was likewise unreasonable for the Forest Service to assert that the environment, listed species, and their critical habitats would be unaffected by this regulatory change.

We affirm the district court's order permanently enjoining the implementation of the State Petitions Rule because the Forest Service violated the National Environmental Policy Act and the Endangered Species Act when it promulgated the State Petitions Rule. We further conclude that the district court did not abuse its discretion in ordering the Forest Service to comply with the Roadless Rule as a remedy for these procedural shortcomings.

I.

Before turning to the merits of this dispute, we will provide an overview of the factual background and procedural history of the instant litigation. We will also resolve disputes about the ripeness of the plaintiffs' claims and the appropriate standard of review to apply to them.

A.

The State Petitions Rule is the most recent effort by the Forest Service to address the management of roadless areas in the national forests. In order to appreciate this rule and the plaintiffs' challenges to its validity, one must have a general understanding of the land management measures that preceded it.

The U.S. National Forest System consists of approximately 192 million acres of national forests, national grasslands, and related areas. The Forest Service manages these lands under several federal statutes, including the National Forest Management Act, 16 U.S.C. §§ 1600-14. Under the National Forest Management Act, the Forest Service must develop and periodically revise an integrated land and resource management plan, commonly known as a "forest plan," for each unit of the National Forest System. 16 U.S.C. § 1604(a), (f); see also Idaho Sporting Cong., Inc. v. Rittenhouse, 305 F.3d 957, 961 (9th Cir. 2002). Each forest plan is prepared by an interdisciplinary team and must "provide for multiple use and sustained yield of the products and services obtained" from the forest unit and include coordination of uses relating to "out-door recreation, range, timber, watershed, wildlife and fish, and wilderness." 16 U.S.C. § 1604(e)(1), (f).

To achieve these objectives, forest plans typically divide a forest unit into different "management areas" that are subject to different goals, objectives, and management prescriptions. For example, a management area may be dedicated to recreation or to forest products. The Forest Service then may consider individual, site-specific projects consistent with that plan. See, e.g., Ohio Forestry Ass'n v. Sierra Club, 523 U.S. 726, 729-30 (1998) (describing the method for proposing and adopting a site-specific logging project in a national forest). Activities proposed to occur within a management area must be consistent with the management-area prescriptions as well as with the prescriptions applicable to the entire forest unit. See 16 U.S.C. § 1604(I); see also Citizens for Better Forestry v. USDA, 341 F.3d 961, 965-66 (9th Cir. 2003) (describing the tiered approach to forest land management and decision making at the national, regional, and site-specific levels).

In the 1970s, the Forest Service began to study and evaluate roadless areas in national forests. It developed an "inven-tory" of roadless areas, each larger than 5000 acres, to be considered by Congress for inclusion in the National Wilder- ness Preservation System. As a result of the reviews in the 1970s, subsequent large-scale assessments, and land and resource planning for individual forest units, there are now 58.5 million acres of the national forest identified as "inventoried roadless areas." These inventoried roadless areas are largely undeveloped, but not entirely without roads.*fn1

From the late 1970s through the late 1990s, inventoried roadless areas were governed primarily by the individual forest plans developed under the National Forest Management Act. Nothing in that Act or any other federal statute obligates the Forest Service to manage inventoried roadless areas as a distinct unit of administration or resource value. Most forest plans provided for extractive uses, including logging, mining, oil and gas development, and construction of off-road vehicle routes, on at least some portion of what are classified as inventoried roadless areas.

In the late 1990s, the Forest Service began to reevaluate its approach to roadless area management. On October 13, 1999, President Clinton directed the Forest Service to initiate a nationwide plan to protect the roadless areas in the national forests. Within a week of this directive, the Forest Service began working on what would ultimately become the Roadless Area Conservation Rule, or "Roadless Rule."*fn2

The Forest Service promulgated the Roadless Rule on January 5, 2001. It was an adaptation of one of several options for roadless area management studied in the Final Environmental Impact Statement issued in November 2000. Subject to limited exceptions, the Roadless Rule would prohibit road construction, reconstruction, and timber harvest in roadless areas. Roadless Area Conservation, 66 Fed. Reg. 3244 (Jan. 12, 2001). It did not displace the forest plans used for forest management; rather, the Roadless Rule superseded any restrictions on inventoried roadless areas that were less stringent. See id. at 3250; State Petitions for Inventoried Roadless Area Management, 70 Fed. Reg. 25,654, 25,656 (May 13, 2005).

Perhaps in response to, or in anticipation of, concerns that local decision making might be preferred, the Forest Service defended its categorical, programmatic approach to roadless area management:

At the national level, Forest Service officials have the responsibility to consider the "whole picture" regarding the management of the National Forest System, including inventoried roadless areas. Local land management planning efforts may not always recognize the national significance of inventoried roadless areas and the values they represent in an increasingly developed landscape. If management decisions for these areas were made on a case-by-case basis at a forest or regional level, inventoried roadless areas and their ecological characteristics and social values could be incrementally reduced through road construction and certain forms of timber harvest. Added together, the nation-wide results of these reductions could be a substantial loss of quality and quantity of roadless area values and characteristics over time.

66 Fed. Reg. at 3246.

The Roadless Rule was to go into effect on March 13, 2001, 66 Fed. Reg. 3244; however, because of a change in presidential administration, the effective date of the Roadless Rule was delayed for 60 days, or until May 12, 2001.

Two days before the Roadless Rule's postponed effective date, the United States District Court for the District of Idaho preliminarily enjoined the Forest Service from implementing "all aspects" of the rule. Kootenai Tribe of Idaho v. Veneman, No. 01-10, 2001 WL 1141275, at *2 (D. Idaho May 10, 2001). The Forest Service chose not to appeal this ruling, but environmentalist groups that had intervened in the suit mounted a successful appeal.

On December 12, 2002, the Ninth Circuit Court of Appeals reversed. Kootenai Tribe of Idaho v. Veneman, 313 F.3d 1094, 1126 (9th Cir. 2006). The majority evaluated in considerable detail the procedural challenges made against the Roadless Rule and concluded, on the record before it, that "it is plain that the Forest Service gave a 'hard look' at the complex problem presented." Id. at 1123. The majority concluded that the plaintiffs had not shown a substantial likelihood of success on their National Environmental Policy Act claims and that the balance of the hardships weighed against enjoining the Roadless Rule. Id. at 1123-26. The majority reversed the district court's issuance of the preliminary injunction. Id. at 1126. The court's mandate issued in April 2003, and the Roadless Rule went into effect nationwide.

Within months, another court enjoined the Roadless Rule. Wyoming v. USDA, 277 F. Supp. 2d 1197 (D. Wyo. 2003). On July 14, 2003, the United States District Court for the District of Wyoming held that the Roadless Rule was promulgated in violation of the National Environmental Policy Act and the Wilderness Act and ordered that it "be permanently enjoined." Id. at 1239. As in the Idaho litigation, the Forest Service did not appeal to the Tenth Circuit, but the environ-mentalist intervenors did.

The day after oral argument before the Tenth Circuit, the "Forest Service announced the adoption of a final rule replac- ing the Roadless Rule." Wyoming v. USDA, 414 F.3d 1207, 1211 (10th Cir. 2005). Because the new rule-the State Petitions Rule-eliminated "[t]he portions of the Roadless Rule that were substantively challenged," the Tenth Circuit concluded that "to render a decision on the validity of the now nonexistent Roadless Rule would constitute a textbook example of" an advisory opinion. Id. at 1212. The Tenth Circuit dismissed the appeal for want of jurisdiction and vacated the district court's judgment. Id. at 1214.

The rule announced by the Forest Service on May 5, 2005 -the State Petitions Rule-is the primary focus of this appeal.

The Forest Service began working on what would become the State Petitions Rule in July 2001, when the appeal of the Idaho preliminary injunction against the Roadless Rule was pending before the Ninth Circuit. Roadless Area Conservation, 66 Fed. Reg. 35,918 (July 10, 2001). In its Advance Notice of Proposed Rulemaking in the Federal Register, the Forest Service expressed its intention to re-examine the Roadless Rule and move forward with a "responsible and balanced approach" to roadless area management that would fairly address concerns raised by those affected by the Roadless Rule. Id.

The Forest Service issued a Notice of Proposed Rulemaking for the State Petitions Rule in July 2004. See State Petitions for Inventoried Roadless Area Management, 69 Fed. Reg. 42,636 (July 16, 2004). The Forest Service determined that "a State petitioning process that will allow State-specific consideration of the needs of [roadless] areas [was] an appropriate solution to address the challenges of roadless area management." Id. at 42,638.

Following an extended period of public comment, the Forest Service issued the final State Petitions Rule. State Petitions for Inventoried Roadless Area Management, 70 Fed.

Reg. 25,654 (May 13, 2005). The rule revised Part 294 of Title 36 of the Code of Federal Regulations to remove the text of the Roadless Rule and insert in its place provisions establishing an eighteen-month window during which states could petition for state-specific roadless area protections.*fn3 Id. at 25,661.

The final provision of the State Petitions Rule is a "sever-ability clause." 36 C.F.R. § 294.18. According to the Forest Service, this provision . . . responds to public comment expressing concerns and confusion regarding the status of the prior roadless rule that was set aside by the Federal District Court in Wyoming. The Department [of Agriculture] believes that adopting this new rule resolves the matter by establishing a new process for addressing inventoried roadless area . . . . Regardless of these lawsuits [surrounding the Roadless Rule], the Department has concluded that the 2001 rule's inflexible "one-size fits-all" nationwide rulemaking approach is flawed and there are better means to achieve protection of roadless area values. The Department wishes to make its intent clear that should all or any part of this regulation be set aside, the Department does not intend that the prior rule be reinstated, in whole or in part.

70 Fed. Reg. at 25,655-56.

In its decision memorandum, the Forest Service explained that it had designated this rule for categorical exclusion under the National Environmental Policy Act ("NEPA"). 70 Fed. Reg. at 25,660. The Forest Service specifically cited a provision from the Forest Service Handbook ("FSH"), which provision "excludes from documentation in an environmental assessment or impact statement 'rules, regulations, or policies to establish Service-wide administrative procedures, program processes, or instructions.' " Id. at 25,660 (citing FSH 1909.15, ยง 31.1b; 57 Fed. Reg. 43,208 (Sept. 18, 1992)). The Forest Service explained that the "final rule is merely procedural in nature and scope and, as such, has no direct, indirect, or cumulative effect on the environment." Id. The Forest Service also referred to the Draft and Final Environmental Impact Statements that were prepared as part of the Roadless Rule's development and explained ...


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