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Forestkeeper v. Benson

United States District Court, E.D. California

August 22, 2014

SEQUOIA FORESTKEEPER, Plaintiff,
v.
TERESA BENSON, et al., Defendants.

MEMORANDUM DECISION AND ORDER RE MOTION TO DISMISS (DOC. 23) AND MOTION TO STRIKE (DOC. 33)

LAWRENCE J. O'NEILL, District Judge.

I. INTRODUCTION

Plaintiff challenges the United States Forest Service's ("Forest Service" or "USFS") Decision Notice and Finding of No Significant Impact ("Decision Notice") for the Hume Roadside and Recreation Site Hazard Tree Project ("Hume Hazard Tree Project" or "Project") in the Giant Sequoia National Monument ("the Monument") under the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321 et seq., and the National Forest Management Act ("NFMA"), 1600 U.S.C. §§ 1600 et seq. Plaintiff also alleges that the Forest Service violated the Presidential Proclamation that established the Monument, 65 Fed. Reg. 24, 095, 24, 097 (Apr. 25, 2000), when it issued the Monument Management Plan because the Forest Service improperly authorized tree removal under the Proclamation's "clearly needed" standard. In its Complaint, Plaintiff requested (1) a declaration that the Hume Hazard Tree Project violates NFMA, NEPA, and the Monument Plan, (2) an injunction against the sale and removal any of the hazard trees from the Project Area and the Monument, (3) a declaration that the Monument Plan's tree removal criteria violates the Monument Proclamation, (4) vacatur of the Monument Plan's tree removal criteria, and (5) remand of the Monument Plan decision back to the Agency. The USFS rescinded authorization for the sale and removal of hazard trees on June 4, 2014 and moved to dismiss the case shortly thereafter. Defs.' Mtn. to Dismiss (hereinafter "Defs.' Mem.") (Doc. No. 23); Declaration of Teresa Benson, District Ranger for the Hume lake Ranger District of the Sequoia National Forest and the Giant Sequoia National Monument (Doc. Nos. 23-1 through 23-3).

II. BACKGROUND OF THE CASE

In September 2013, the Forest Service issued the Decision Notice authorizing the implementation of the Hume Hazard Tree Project, and adopting Alternative D from the Project's Final Environmental Assessment ("EA"). Doc. No. 11-11. Alternative D proposed the felling of hazard trees along 58 miles of roads and within eleven developed campgrounds and residential areas in the Hume Lake Ranger District of the Sequoia National Forest and the Monument. Id. As described in the EA, hazard trees are dead or damaged trees that are susceptible to falling onto roadways and recreation sites, and are therefore deemed hazardous to people. Doc. No. 11-6. Alternative D also proposed the sale and removal 2000 of CCF (centum cubic feet, equivalent to 100 cubic feet) of wood as logs over the next two years. Id. The USFS also considered Alternative C, which called for felling the same number of trees as under Alternative D; but not for the sale or removal of the trees from the Project area. Plaintiff appealed the Decision Notice to the USFS in November 2013. Id. In January 2014, the USFS affirmed the District Ranger's rationale and decision to implement Alternative D. Doc. No. 11-13. On March 1, 2014, the USFS announced that it would accept sealed bids for the timber sale. Doc. No. 11-14.

Plaintiff filed its Complaint on March 7, 2014 and on March 16 moved for a preliminary injunction ("PI") halting the sale and removal of trees from the Project Area. Doc. No. 10-1. Plaintiff alleges, first, that the Forest Service's authorization of the Project is inconsistent with the Monument Management Plan's requirement not to remove trees from the project area unnecessarily, and that this inconsistency violates NFMA's requirement that the Forest Service actions "shall be consistent" with land management plans. Compl. at ¶ 77 (quoting 16 U.S.C. § 1604(i)). Plaintiff's second cause of action alleges the authorization also violates NEPA because it failed to disclose how it will determine whether tree removal can be justified and failed to analyze available hazard tree data. Compl. ¶¶ 82-84 (quoting 40 C.F.R. §§ 1500.1(b) & 1502.24)). Plaintiff's third claim alleges that the Monument Management Plan itself is flawed because the "vague and unenforceable" criteria it outlines for the removal of trees is inconsistent with the proclamation establishing the Monument. Compl. ¶¶ 87-88. Plaintiff brings all claims under the Administrative Procedure Act, 5 U.S.C. § 706(2), on the basis that the Forest Service's approval of the Project and the Management Plan are final agency actions that are "arbitrary, capricious, and otherwise not in accordance with law, or without observance of procedures required by law." Compl. ¶¶ 80, 85, & 89.

The Forest Service received no bids for the proposed timber sale. Doc. No. 17. On April 3, 2014 Plaintiff withdrew its PI subject to a stipulation in which parties agreed that the USFS could use its own contractors and employees to fell hazard trees, but would not sell the trees or remove them from the Project Area unless this case is resolved in the Forest Service's favor. Id. at ¶ 2.

On June 4, 2014, Defendant USFS District Ranger Teresa Benson issued a decision to withdraw authorization of the decision to sell and remove trees from the Project Area by striking the sentence authorizing this sale from the Decision Notice. Doc. No. 23-2 (hereinafter "Withdrawal Notice"). In an accompanying document, Benson explained that it was not economically feasible to use a timber sale for the removal of trees the USFS felled pursuant to its stipulation. Doc. No. 23-3 (hereinafter "Withdrawal Memo"). Because the USFS had considered this situation under Alternative C in the EA, Benson concluded that she did not need to supplement or revise the EA to accommodate the change in position. Id. Neither document altered the Forest Service's approval of Alternative D as the preferred alternative. The Withdrawal Memo states that the "analysis and conclusions in the original Environmental Assessment are still valid." Id.

On June 9, 2014, Defendants moved to dismiss the case pursuant to Federal Rule of Civil Procedure 12(b)(1) on the basis that Benson's withdrawal of the approval to sell and remove trees from the project area mooted Plaintiff's claims. Defs.' Mem. at 1. On July 29, 2014, Defendants filed a motion to strike certain paragraphs from Plaintiff's declarations filed in support of its Opposition to Defendants Motion to Dismiss. Doc. No. 33.

III. STANDARD OF DECISION

A motion to dismiss for lack of subject matter jurisdiction determines whether the plaintiff has a right to be in the particular federal court, whereas a motion to dismiss for failure to state a claim adjudicates whether a cognizable legal claim has been stated. Trustees of Screen Actors Guild-Producers Pension & Health Plans v. NYCA, Inc., 572 F.3d 771, 775 (9th Cir. 2009) (quoting 5B Wright & Miller, Federal Practice and Procedure § 1350 (3d ed. 2004)). A federal court is a court of limited jurisdiction, and may adjudicate only those cases authorized by the Constitution and by Congress. Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994). Faced with a Rule 12(b)(1) motion, a plaintiff bears the burden of proving the existence of the court's subject matter jurisdiction. Thompson v. McCombe, 99 F.3d 352, 353 (9th Cir. 1996). A federal court is presumed to lack jurisdiction in a particular case unless the contrary affirmatively appears. Gen. Atomic Co. v. United Nuclear Corp., 655 F.2d 968, 968-69 (9th Cir. 1981). "A motion to dismiss for lack of subject matter jurisdiction may either attack the allegations of the complaint or may be made as a speaking motion' attacking the existence of subject matter jurisdiction in fact." Thornhill Pub. Co., Inc. v. Gen. Tel. & Electronics Corp., 594 F.2d 730, 733 (9th Cir. 1979) (citing Land v. Dollar, 330 U.S. 731, 735 & n. 4 (1947)). "In a facial attack, the challenger asserts that the allegations contained in a complaint are insufficient on their face to invoke federal jurisdiction." Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1038 (9th Cir. 2004). "By contrast, in a factual attack, the challenger disputes the truth of the allegations that, by themselves, would otherwise invoke federal jurisdiction." Id. at 1039. "If the challenge to jurisdiction is a facial attack, i.e., the defendant contends that the allegations of jurisdiction contained in the complaint are insufficient on their face to demonstrate the existence of jurisdiction, the plaintiff is entitled to safeguards similar to those applicable when a Rule 12(b)(6) motion is made." Cervantez v. Sullivan, 719 F.Supp. 899, 903 (E.D. Cal. 1989), rev'd on other grounds, 963 F.2d 229 (9th Cir.1992). If the motion constitutes a factual attack, "no presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims. Moreover, the plaintiff will have the burden of proof that jurisdiction does in fact exist." Thornhill, 594 F.2d at 733(internal citation and quotation omitted).

IV. DISCUSSION

A. Whether Plaintiff's First Two Claims Are Moot

1. Legal Background of Constitutional Mootness and ...


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