Griffin v. Yeutter

No. 88-1415G (CM) (S.D. Cal. November 1, 1989)

The court upholds the Forest Service's Land and Resource Management Plan (LRMP) and environmental impact statement (EIS) for the Cleveland National Forest under the National Forest Management Act (NFMA) and National Environmental Policy Act (NEPA). The court holds that the LRMP gives due consideration to recreation, wilderness, and grazing. The court holds that the computer model underlying the LRMP is entitled to substantial deference, and that plaintiff failed to present evidence that use of the model was unwise. The court holds that the LRMP was properly coordinated with other agencies. Holding that the plaintiff's vagueness challenge to the NFMA and certain implementing regulations is timely, the court holds the challenge has no merit. Finally the court holds that the EIS is adequate under NEPA. The EIS adequately considered the LRMP's effects on outdoor recreation and wildlife. The court also holds that the Forest Service used adequate methodology to prepare the EIS and adequately responded to public comment.

Counsel for Plaintiff
Montague D. Griffin
2034 Upas St., San Diego CA 92104
(619) 291-3633

Counsel for Defendant
Stephen Petix
U.S. Courthouse, 940 Front St., Rm. 5-N-19, San Diego CA 92189-0150
(619) 557-5610

[20 ELR 20400]

Gilliam, J.:

Memorandum Decision and Order

The defendants' motion for summary judgment was scheduled for hearing on October 2, 1989, in Courtroom 7 before the Honorable Earl B. Gilliam. Plaintiff was represented by Montague Griffin in propria persona. Stephen Petix and Allan Brock appeared on behalf of defendant[s]. Having considered the points and authorities and oral argument of counsel, the court issues this memorandum decision and order granting defendants' motion for summary judgment.

Facts

Plaintiff brings this action for a decision by the Chief of the Forest Service denying his administrative appeal of the Forest Service's decision to institute the Cleveland National Forest Land and Resource Management Plan (the Plan).

On or about April 5, 1985, defendants released to the general public a Draft Environment[al] Impact Statement (DEIS) and the Draft Cleveland National Forest Land and Resources Management Plan (draft Plan) dated February 1985. The DEIS and draft Plan were stated to have been developed in compliance with all statutory regulations. The draft Plan is required by the Forest and Rangeland Renewable Resources Planning Act of 1974 (RPA), as amended by the National Forest Management Act of 1976 (NFMA). See, 16 U.S.C. §§ 1600-1614. The DEIS, disclosing a proposed action and alternatives thereto, is required by the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. § 4321-4332. See, 16 U.S.C. § 1604(g)(1); 42 U.S.C. § 4332(2)(C).

After a period of public review and comment, and subsequent modification of the draft Plan, defendants released the final environmental impact statement (EIS) and the final Plan. Defendants released the EIS and Plan to the general public on June 2, 1986. Plaintiff appealed the Plan on July 11, 1986, and on July 19, 1988, defendants denied the relief requested in plaintiff's appeal.

Plaintiff challenges the Plan and the EIS in this review of administrative action. Plaintiff contends that the Plan failed to give due consideration to the relevant factors, was based on inappropriate methodology, was not developed under the proper procedures, and failed to consider the "net public benefits" as required by statute. Plaintiff also contends that the EIS was based on a statute with flawed policy objectives, was developed by inappropriate methodology, and failed to adequately respond to public comment.

Discussion

Plaintiff does not introduce any evidence or affidavits contradicting facts set forth in the Plan or EIS. Plaintiff in essence seems to be arguing that defendants did not properly weigh and consider all of the facts and public input before they formulated the forest Plan. Therefore, this is a classic case where there are no genuinely disputed issues of material fact, making summary judgment proper.

This is also a classic case of a citizen asking the courts to look back at an agency's actions and decide whether we would have done things differently. However, our standard of review is much more limited. The law in this area clearly states that plaintiff must prove that the agency's assessment is "irrational" or that "there is virtually no evidence in the record to support the agency's methodology in gathering and evaluating the data." Perkins v. Bergland, 608 F.2d 803, 807 & n.12 [10 ELR 20070] (9th Cir. 1979). Whether the Plan is the best one or the most logical one is a matter for academic or policy debates; it is not a concern for the court. At this time, the court need only concern itself as to whether defendants have presented evidence to support their decisions and whether defendants made rational decisions based on this evidence. Based on the court's reading of the Plan, the EIS, the Record of Decision, and the denial of the administrative appeal it appears that defendants have met their burden.

[20 ELR 20401]

The standard and scope of judicial review that apply in this case presume the legality of agency action and limit the evidence a party can offer to rebut the presumption. See, 5 U.S.C. § 701-706. The applicable standard of review is whether the agency's decision was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A); see also; Marsh v. Oregon Natural Resources Council, 109 S. Ct. 1851 [19 ELR 20749] (1989); Natural Resources Defense Counsel v. Hodel, 624 F. Supp. 1045 [16 ELR 20508] (D. Nev. 1985), aff'd 819 F.2d 927, 929 [17 ELR 21012] (9th Cir. 1987). In making these determinations, the scope of review extends only to "the whole record or those parts of it cited by a party." 5 U.S.C. § 706.

Plaintiff challenges three aspects of the final Plan: recreation, wilderness and grazing.

Plaintiff's contention that the Plan fails togive recreation due consideration is unfounded. The Multiple Use Sustained Yield Act (MUSYA) compels the agency to consider "making the most judicious use of the land for some or all of these resources. . . ." 16 U.S.C. § 531(a). Therefore, the MUSYA does not require one particular use or resource to take precedence over others, instead, it requires the agency's plan to give due consideration to each resource in light of the particular circumstances present in the Cleveland National Forest. The Plan duly considers recreation in that it identifies the demand for recreation and articulates two interrelated premises to guide management of recreation services. See, Land and Resources Management Plan: Cleveland National Forest [hereinafter: The Plan], Exhibit 8, defendants' Memorandum in Support of Motion for Summary Judgment at 3-15 to 3-17 and 4-37 to 4-61.

Plaintiff's contention that the Plan fails to give wilderness due consideration lacks legal foundation. Plaintiff challenges this aspect of the Plan under the Wilderness Act of 1964, but missing in any provisions of the Act are requirements that the agency designate or review roadless areas of national forests for any purpose. See, 16 U.S.C. §§ 1131-1133. Congress has the sole authority to designate an area "wilderness," and plaintiff cannot ask the defendants or the court to do so. See, 16 U.S.C. § 1132. Therefore, plaintiff has no cause of action under this statute.

The Plan gives rangelands and grazing due consideration. The only cognizable claim is whether the agency's plan takes into account and weighs the factors relevant to managing grazing. See, Natural Resources Defense Council v. Hodel, supra. Hence, plaintiff's preference to eliminating livestock grazing is immaterial. The Plan does identify the total amount of land suitable for grazing, and the amount of land available for grazing when other resources are considered. See, The Plan at 3-15, 4-25 to 4-26; Final Environmental Impact Statement [hereinafter: EIS], Exhibit 10, defendant's Memorandum in Support of Motion for Summary Judgment at 3-47 to 3-49.

The methodology used by the Forest Service in developing the Plan was a computer program called FORPLAN. Plaintiff challenges this methodology and its "underlying analytical methods and mathematical tools." However, in passing judgment on an agency's methodologies, courts "must defer to a great extent to the expertise of the [agency]." Natural Resources Defense Council v. U.S. E.P.A., 863 F.2d 1420, 1430 (9th Cir. 1988). FORPLAN is a widely recognized and respected planning tool generally accepted by the professional community. See, FORPLAN: An Evaluation of a Forest Planning Tool. Exhibit 16, defendants' Memorandum in Support of Motion for Summary Judgment at 161-64. Plaintiff has presented no evidence to support his allegations that use of FORPLAN was unwise.

The Plan was properly coordinated with other government agencies. The Forest Service sought comments from numerous governmental bodies and academic institutions. The Service received much written comment about the Plan. See, Appendix Volume, Exhibit 11, defendants' Memorandum in Support of Summary Judgment, Appendix K.

Plaintiff also challenges the National Forest Management Act itself, arguing that the Act failed to adequately define "net public benefits." Defendants claim that plaintiff's substantive challenge of the agency's regulation is time barred. This [is] not true. Plaintiff challenges the language of 36 C.F.R. §§ 219.1, 219.3 (authorized by the National Environmental Policy Act of 1969) as vague, indeterminate and lacking specific criteria. This section provides that the Forest Service shall manage the forest to "maximize net public benefit." There is a six-year statute of limitations on challenges to administrative regulations such as this one. See, Sierra Club v. Penfold, 857 F.2d 1307, 1315 [19 ELR 20207] (9th Cir. 1988). The regulation at issue was publicly noticed on September 30, 1982. Plaintiff filed this complaint on September 16, 1988. Therefore, plaintiff's challenge is timely.

There is, however, no merit in plaintiff's challenge to the statute. The September 1982 notice acknowledges that "maximizing net public benefits" involves "both positive and negative values that cannot be quantitatively valued and therefore require the decisionmaker to subjectively balance such benefits or costs with each other and with those that can be quantified." 47 Fed. Reg. 43208 (1982) (to be codified at 36 C.F.R. § 219.1). However, this subjectiveness does not kill the statute. It is extremely difficult to weigh the costs and benefits when deciding the fate of public lands, therefore this subjective language is necessary, for anything more specific would be unenforceable. The statute also appears to satisfy the longstanding objective of the Forest Service to make decisions based on the "greatest good of the greatest number in the long run." Id.

Plaintiff's challenges to the EIS also fail. Unless defendants failed to follow the necessary procedures under the NEPA, the court cannot overturn the agency's decision. See, Robertson v. Methow Valley Citizens Council, 109 S. Ct. 1835 [19 ELR 20743] (1989). The court only need concern itself that the agency's impact statement took a "hard look" at the proposed action's environmental effects. See, Vermont Yankee Nuclear Power Corp. v. N.R.D.C., 435 U.S. 519 [8 ELR 20288] (1978). In this case, the EIS specifically identifies and discusses the Plan's consequences on outdoor recreation. See, EIS at pp. 2-33 to 2-127, 3-15 to 3-19, 4-6 to 4-13, 4-47 to 4-51; Appendix Volume, Exhibit 11, defendants' Memorandum in Support of Motion for Summary Judgment, Appendix A. The EIS considers the Plan's effect on wildlife as well. See, EIS at chapter 4.

As stated above with regard to plaintiff's challenge to the Plan, the methodology used to develop the EIS must be given deference by the court. See, Oregon Environmental Council v. Kunzman, 817 F.2d 484, 492-93 [17 ELR 20756] (9th Cir. 1987). Again, defendants used valid methodology in developing their EIS, and plaintiff produced no evidence that the methodology was completely unreliable.

The EIS responded to public comment adequately, reproducing the comments in its text and dealing with many of them substantively in its assessment. Plaintiff must show a lack of good faith, reasoned analysis by defendants to those comments, and he has failed to do so. See, State of Cal. v. Block, 690 F.2d 753, 773 [13 ELR 20092] (9th Cir. 1982).

For the foregoing reasons, the court shall grant summary judgment for defendants on all of plaintiff's claims.

IT IS SO ORDERED.