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Sierra Club et al. v. Bosworth: US District Court : ENVIRONMENTAL LAW - forest plan question not ripe; dismissed for lack of jurisdiction

DALE N. BOSWORTH, Chief of the United
States Forest Service, and MIKE JOHANNS,
Secretary of Agriculture,
Intervenor Defendants.
Case No. 06-CV-3334 (PJS/RLE)
Brian B. ONeill, 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,
Mary Trippler, UNITED STATES ATTORNEYS 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].
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 Clubs objections.
The Court agrees with Judge Ericksons recommendation and with almost all of his
reasoning. The Courts analysis of Count I, relating to Management Indicator Species (MIS),
differs from Judge Ericksons 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
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 Socy 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
Services 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
plans 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.).
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 Services 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
The Court agrees with the Sierra Club that if the combination of Ohio Forestry and
Sharps in fact made the Forest Services 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:
Sharpss 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 courts 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.
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 Services plan to clear areas in forest, entertaining
challenge to Forest Services collection of MIS data); Neighbors of Cuddy Mountain v.
Alexander, 303 F.3d 1059, 1068 (9th Cir. 2002) (entertaining plaintiffs 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
Services 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
Services failure to collect MIS data).
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
Clubs 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 Services 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 Services 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).
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 governments 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
governments 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.
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 Ericksons Report and
Recommendation [Docket No. 91] to the extent that it is consistent with this opinion.
1. Defendants motion to dismiss Count I and Count II of the complaint [Docket
No. 43] is GRANTED.
Dated: November 15 , 2007 s/Patrick J. Schiltz
Patrick J. Schiltz
United States District Judge


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