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Sierra Club et al. v. Bosworth: US District Court : ENVIRONMENTAL LAW - forest plan question not ripe; dismissed for lack of jurisdictionUNITED STATES DISTRICT COURTDISTRICT OF MINNESOTA SIERRA CLUB, FRIENDS OF THE BOUNDARY WATERS WILDERNESS, DEFENDERS OF WILDLIFE, and MINNESOTANS FOR WILDERNESS, Plaintiffs, v. DALE N. BOSWORTH, Chief of the United States Forest Service, and MIKE JOHANNS, Secretary of Agriculture, Defendants. MINNESOTA FOREST INDUSTRIES, INC., MINNESOTA TIMBER PRODUCERS ASSOCIATION, ALL TERRAIN VEHICLE ASSOCIATION OF MINNESOTA, and BLUERIBBON COALITION, Intervenor Defendants. RUFFED GROUSE SOCIETY and LAKE COUNTY, Intervenors. Case No. 06-CV-3334 (PJS/RLE) MEMORANDUM OPINION AND ORDER Brian B. O’Neill, Richard A. Duncan, Sanne H. Knudsen, and Catherine G. Davis, FAEGRE & BENSON, LLP; Mike Leahy, DEFENDERS OF WILDLIFE, for plaintiffs. Ronald J. Tenpas and Rachel A. Dougan, U.S. DEPARTMENT OF JUSTICE, ENVIRONMENT AND NATURAL RESOURCES DIVISION; Rachel K. Paulose and Mary Trippler, UNITED STATES ATTORNEY’S OFFICE, for defendants. This matter is before the Court on the objection of plaintiffs (collectively, “the Sierra Club”) to the May 15, 2007 Report and Recommendation (“R&R”) of Chief Magistrate Judge Raymond L. Erickson. The Court has reviewed de novo those portions of the R&R to which the 1The Forest Service agrees that the forest plan challenged in this case is governed by regulations promulgated in 1982 and in effect through 1999. Fed. Def. Mem. Supp. Mot. Dism. at 6 n.4 [Docket No. 44]. -2- Sierra Club has objected, as required by 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b), and has considered carefully all of the Sierra Club’s objections. The Court agrees with Judge Erickson’s recommendation and with almost all of his reasoning. The Court’s analysis of Count I, relating to Management Indicator Species (“MIS”), differs from Judge Erickson’s analysis in some respects, as is described below. Also, as to Count II, although the Court agrees with the R&R, the Court nevertheless writes separately to expand on one aspect of the analysis. The Court therefore adopts the R&R except insofar as it is inconsistent with this Order. I. Count I: Management Indicator Species (“MIS”) Under the National Forest Management Act (“NFMA”), the Forest Service must develop “land and resource management plans” for national forests. 16 U.S.C. § 1604(a). Those plans, commonly known as “forest plans,” must be formulated to allow multiple uses of each forest as well as to ensure biodiversity and to maintain the viability of desired species in the planning area. 16 U.S.C. § 1604(e), (g)(3)(B). Regulations promulgated under the NFMA direct the Forest Service to designate, in forest plans, certain so-called management indicator species (“MIS”) and to monitor those species. 36 C.F.R. § 219.19(a)(6) (1999) (“Population trends of the management indicator species will be monitored and relationships to habitat change determined.”).1 In Count I of the complaint, the Sierra Club challenges two MIS-related aspects of the revised forest plan for the Superior National Forest. First, the Sierra Club challenges the Forest 2See, e.g., Ind. Forest Alliance, Inc. v. U.S. Forest Serv., 325 F.3d 851 (7th Cir. 2003); Wilderness Soc’y v. Thomas, 188 F.3d 1130, 1134 (9th Cir. 1999) (“Because the site-specific injury to the two allotments is alleged to have been caused by a defect in the Forest Plan, we may consider whether the Forest Service complied with the [NFMA] in making its general grazing suitability determinations in the Forest Plan.”); Sierra Club v. Robertson, 28 F.3d 753, 759 (8th Cir. 1994) (“[W]hen a site-specific action in the Ouachita Forest, such as a timber sale, is proposed, and all administrative appeals are exhausted, persons threatened by an imminent injury in fact may seek judicial review of the proposed action. At that time, such persons may assert that the proposed site-specific action is not consistent with the [Forest] Plan, or that the Plan as it -3- Service’s decision to reduce the number of species designated as MIS from thirty-four in the original (1986) plan to four in the revised (2004) plan. Second, the Sierra Club challenges the plan’s reliance on “Management Indicator Habitat,” rather than on MIS population numbers, to gauge the status of MIS for planning purposes. In other words, the Sierra Club contends that the Forest Service must count creatures, and not habitat. The Court agrees with Judge Erickson that, under Ohio Forestry Association, Inc. v. Sierra Club, 523 U.S. 726 (1998), Count I is not ripe and must therefore be dismissed for lack of jurisdiction. Under Ohio Forestry, plaintiffs are generally foreclosed from directly challenging forest plans because such plans rarely have any practical, on-the-ground effects. Id. at 733 (observing that forest plans “do not command anyone to do anything or to refrain from doing anything; they do not grant, withhold, or modify any formal legal license, power or authority; they do not subject anyone to any civil or criminal liability; they create no legal rights or obligations”). Instead, litigants must generally challenge forest plans in the context of a challenge to site-specific action to be carried out under the umbrella of the forest plan. Specifically, litigants must argue, in the context of a challenge to a site-specific action, that the site-specific action must be blocked because it has been authorized pursuant to a defective forest plan. Such challenges are common.2 relates to the proposed site-specific action is inconsistent with the governing statutes, or both.”). -4- The Sierra Club argues, however, that if it cannot raise its MIS challenge in connection with a challenge to the forest plan as a whole, it may be unable to do so at all. Pl. Obj. R&R at 4-7 [Docket No. 97]. The Sierra Club notes that in Sharps v. U.S. Forest Service, 28 F.3d 851 (8th Cir. 1994), the Eighth Circuit observed that the Forest Service’s designation of MIS was a forest-plan-level issue, not a project-level issue. Pl. Obj. R&R at 6. If Ohio Forestry requires the Sierra Club to bring its MIS challenge (a challenge to a forest plan) only in connection with a challenge to a site-specific projects, while Sharps forbids courts to consider MIS challenges in connection with site-specific projects, then how can the Sierra Club ever challenge an MIS designation? The Court agrees with the Sierra Club that if the combination of Ohio Forestry and Sharps in fact made the Forest Service’s amendment of the forest plan with respect to MIS unreviewable, that would present a significant problem. The Court believes, however, that in light of Ohio Forestry, Sharps can no longer be read to foreclose site-specific challenges to MIS designations. This is true for several reasons: First, Sharps itself barely discussed the issue of how challenges to MIS designations should be raised. The entire analysis in Sharps consists of a single paragraph in which the court concludes, summarily, that the regulations governing MIS designations do not apply to a district3The relevant paragraph provides in its entirety: Sharps’s amended complaint also alleged that the October 1990 decision memorandum violated NFMA, and regulations promulgated thereto, because it did not provide for maintenance of viable populations of certain species as mandated by 16 U.S.C. § 1604 and 36 C.F.R. § 219.10, .27 (1992). However, as the district court found, the regulations cited by Sharps apply only to areas within the National Forest System which are covered by a “regional guide or forest plan.” See 36 C.F.R. § 219.3, .4. The October 1990 decision memorandum established a district plan to bring the Fall River Ranger District into compliance with the August 1989 decision notice. Because the October 1990 decision memorandum is a district plan, not a forest plan or regional guide, the sections cited by Sharps are inapplicable to the October 1990 decision memorandum. Sharps, 28 F.3d at 855 (footnote omitted). 4The Ninth Circuit said: We believe that the Sharps court’s reading of Regulations 219.19 and 219.3 is incorrect. Regulation 219.3 defines the “planning area” as “the area . . . covered by a regional guide or forest plan.” 36 C.F.R. § 219.3 (emphasis added). Because any district contained within the boundaries of a forest having a plan would be an “area . . . covered by a . . . forest plan,” it would be also be a planning area governed by Regulation 219.19. Inland Empire, 88 F.3d at 760 n.6. -5- level, as opposed to forest-level, plan. 28 F.3d at 855.3 Aside from stating this principle, Sharps provides no guidance as to how far the principle should reach. Second, even before Ohio Forestry, Sharps was called into question by the Ninth Circuit in Inland Empire Public Lands Council v. United States Forest Service, 88 F.3d 754, 760 n.6 (9th Cir. 1996).4 5See, e.g., Ind. Forest Alliance, Inc. v. U.S. Forest Serv., 325 F.3d 851, 861-65 (7th Cir. 2003) (in connection with challenge to Forest Service’s plan to clear areas in forest, entertaining challenge to Forest Service’s collection of MIS data); Neighbors of Cuddy Mountain v. Alexander, 303 F.3d 1059, 1068 (9th Cir. 2002) (entertaining plaintiff’s claim “that a failure to monitor species viability as required by NFMA renders a specific final agency action, namely the Grade/Dukes [timber] sale, unlawful”); Sierra Club v. Martin, 168 F.3d 1, 6-7 (11th Cir. 1999) (finding specific challenged timber sales unlawful because the Forest Service did not collect sufficient MIS data); Sierra Club v. Bosworth, 352 F. Supp. 2d 909, 917-19 (D. Minn. 2005) (in connection with challenge to Big Grass timber sale, entertaining challenge to Forest Service’s collection of MIS data); Utah Envtl. Cong. v. Zieroth, 190 F. Supp. 2d 1265, 1271-72 (D. Utah 2002) (finding unlawful specific challenged timber sales because of the Forest Service’s failure to collect MIS data). -6- Third, numerous courts have allowed challenges to MIS designations and MIS-related data collection in the context of site-specific challenges.5 Finally, Sharps was decided before Ohio Forestry, and the Court finds that when the Supreme Court held in Ohio Forestry that challenges to forest plans must generally be raised in connection with challenges to site-specific action, it effectively ruled that MIS challenges must also be raised in connection with site-specific action. The Court therefore disagrees with the position that the Forest Service has apparently taken on this subject in administrative proceedings. See Pl. Obj. R&R Ex. B at B-18. In addition, the Court notes that because the government has moved to dismiss the Sierra Club’s MIS challenge on ripeness grounds, the merits of the challenge are not before the Court. The Court therefore expresses no opinion as to whether the government can rely on data about “Management Indicator Habitat,” rather than on MIS population numbers, to comply with its 6Compare Ind. Forest Alliance, 325 F.3d at 863-64 (upholding Forest Service’s use of habitat data instead of population data) and Inland Empire, 88 F.3d at 761-62 (same), with Martin, 168 F.3d at 7 (rejecting Forest Service’s reliance on habitat data where forest plan itself required population data) and Zieroth, 190 F. Supp. 2d at 1271-72 (holding that 36 C.F.R. §§ 219.19 and 219.26 require the Forest Service to collect population data on MIS). -7- duties under the NFMA.6 To the extent that the R&R can be read as taking a position on this issue, see R&R at 13-14, the Court declines to adopt that portion of the R&R. II. Roads and Trails Inventory The Sierra Club contends in Count II that the revised forest plan is flawed because it relies on an outdated and inaccurate inventory of roads and trails. On its face, this contention does not appear to be justiciable under Ohio Forestry, but the Sierra Club nevertheless argues that the government’s use of inaccurate roads-and-trails data gives rise to a procedural injury. Pl. Obj. R&R at 12-14. Obviously, a lawsuit seeking to remedy the violation of a procedural right created by a statute (such as NEPA) is ripe when the procedural right is violated. The problem for the Sierra Club is that Ohio Forestry specifically holds that the NFMA, unlike NEPA, does not create procedural rights. 523 U.S. at 737 (“NEPA, unlike the NFMA, simply guarantees a particular procedure, not a particular result.”) (emphasis added). Not surprisingly, the Sierra Club has not been able to cite any case in which a court has found that the government’s use of shoddy data in a forest plan violates a procedural right created by the NFMA. This Court will not blaze a new trail (so to speak) and allow litigants to argue that, when the Forest Service adopts a defective forest plan, the general public suffers the violation of a procedural right conferred by the NFMA. -8- ORDER Based on the foregoing and on all of the files, records, and proceedings herein, the Court OVERRULES plaintiffs’ objection [Docket No. 97] and ADOPTS Judge Erickson’s Report and Recommendation [Docket No. 91] to the extent that it is consistent with this opinion. Accordingly, IT IS HEREBY ORDERED THAT: 1. Defendants’ motion to dismiss Count I and Count II of the complaint [Docket No. 43] is GRANTED. 2. Count I and Count II are DISMISSED FOR LACK OF JURISDICTION. Dated: November 15 , 2007 s/Patrick J. Schiltz Patrick J. Schiltz United States District Judge |
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