Idaho Conservation League v. Mumma

No. 88-197-M-CCL (D. Mont. August 8, 1990)

The court holds that environmental groups lack standing to challenge a forest plan and draft environmental impact statement (EIS) for the Idaho Panhandle National Forest. Plaintiffs allege that the Forest Service violated the National Forest Management Act (NFMA) and the Administrative Procedure Act by not considering relevant factors in its decision to recommend against wilderness designation for 43 roadless areas. Plaintiffs also allege that the Forest Service violated the National Environmental Policy Act (NEPA) by not evaluating reasonable alternatives and not disclosing relevant information in the EIS. The court holds that plaintiffs have not established sufficient injury to support standing. The court holds that the plaintiffs have shown that their interests fall within the zone of interests protected or regulated by the relevant statutes. However, the court holds that the threatened injury to plaintiffs' recreational use of roadless areas caused by the adoption of the forest plan allocating those areas to development was too remote and speculative. The plan does not propose any specific development and the Forest Service will be required to prepare an EIS that is specific to any future development. The court holds that two of plaintiffs' claims must also be dismissed because plaintiffs failed to raise these issues in the administrative appeal. Neither plaintiffs' statement of reasons presented at the administrative appeal nor the Forest Service's duty to evaluate roadless areas for recommendation as wilderness areas put the Service on notice that plaintiffs objected to its explanation of the roadless area decisions.

On the merits, the court holds that the Forest Service considered relevant economic and environmental factors in developing the land and resource management plan under the NFMA. The court holds that the discussion of alternatives in the EIS was adequate. Plaintiffs contend that the EIS should have considered the alternative of allowing all roadless areas to be recommended for wilderness designation while sustaining timber harvest levels in existing roaded areas. The Forest Service is entitled to rely on the reasonable opinion of its experts, which concluded that this is not a viable alternative.

Counsel for Plaintiffs
Todd D. True
Sierra Club Legal Defense Foundation
216 First Ave. S., Ste. 330, Seattle WA 98104
(206) 343-7340

Joan Jonkel
250 Station Dr., Missoula MT 59801
(406) 721-1835

Counsel for Defendants
Allan D. Brock
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

[21 ELR 20667]

Lovell, J.:

Memorandum and Order

This matter came on for hearing on Tuesday, May 29, 1990, on cross-motions for summary judgment. Plaintiffs were represented by Todd D. True, with Joan Jonkel as local counsel; Defendants were represented by Allan D. Brock; and Defendant-Intervenor was represented by Steven P. Quarles,with Sam Haddon as local counsel. After reviewing the arguments of the parties and the briefs filed in response to these motions, the court is now prepared to rule.

In October, 1979, the Forest Service (FS) published a notice of intent to prepare a Forest Plan Environmental Impact Statement for the Idaho Panhandle National Forest (IPNF). The draft Forest Plan and the draft Environmental Impact Statement (EIS) were published on April 19, 1985. In August, 1987, FS published a Final Forest Plan (Plan) and associated EIS for the IPNF, and on September 17, 1987, the Regional Forester signed and adopted the Record of Decision (ROD). Public comment was encouraged and considered throughout the development of the Plan.

Plaintiffs, a group of six environmental and public interest groups (collectively referred to as ICL), appealed the decision of the Regional Forester, and on August 15, 1988, the FS denied ICL's administrative appeal. Plaintiffs filed this case on December 29, 1988, seeking declaratory and injunctive relief. On April 10, 1989, the court granted Intermountain Forest Industry Association leave to intervene as a party defendant. Defendants and Defendant-Intervenor shall for purposes of this order be referred to as Defendants.

Plaintiffs in their amended complaint request the court to: (1) declare that Defendants have violated the National Forest Management Act (NFMA), 16 U.S.C. § 1600 et seq., and the Administrative Procedures Act (APA), 5 U.S.C. § 702 et seq., by not providing a rational explanation for and not considering relevant factors in their decisions to recommend against wilderness designation for 43 roadless areas on the IPNF; (2) declare that Defendants violated the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321 et seq., and APA by not evaluating reasonable alternatives and not disclosing relevant information in the EIS prepared for the decision to recommend against wilderness designation for the 43 roadless areas in the IPNF; and (3) vacate the Record of Decision (ROD) as it relates to decisions affecting roadless areas and to remand the final EIS and Forest Plan to Defendants for supplementation and reconsideration upon compliance with procedures required by law.

Plaintiffs seek summary judgment on grounds that the ROD did not adequately explain the reasons for designating 43 of the roadless areas as nonwilderness designations; the EIS did not consider all of the reasonable alternatives; and the EIS failed to disclose economic factors crucial to the determination of the Plan.

Defendants argue that Plaintiffs' claims should be dismissed because Plaintiffs lack standing to bring these claims; that Plaintiffs failed to raise either of their first two claims in the administrative appeal and are therefore precluded from raising them at this time; and, that the EIS sufficiently set out the economic information necessary to evaluate the programmatic decision made in the Plan.

For the reasons detailed in section I, the court finds that the Plaintiffs have not demonstrated that the challenged action will cause them injury. Furthermore, as explained in section II, the court finds that the Plaintiffs failed to raise their first two issues in the administrative appeal. The court's finding on the standing issue is dispositive, since the Plaintiffs lack standing to bring this claim. Moreover, the Plaintiffs are barred from asserting the first two issues raised in their amended complaint because they failed to raise them in the administrative appeal. Nonetheless, the court will briefly address the merits of the Plaintiffs' claim because the procedure used and decisions reached in the process of developing the Plan for the IPNF is of vital interest to the public.

I. Standing

Defendants initially argue that ICL lacks standing because this is a review of an agency action brought pursuant to 5 U.S.C. § 702, and ICL "must show that 'the challenged action has caused them injury in fact' and that the injury is 'to an interest arguably within the zone of interests to be protected or regulated by the statutes that the agencies were claimed to have violated.'" Wilderness Soc. v. Griles, 824 F.2d 4, 11 [17 ELR 21117] (D.C. App. 1987) (quoting Sierra Club v. Morton, 405 U.S. 727, 733 [2 ELR 20192] (1972)).

ICL filed affidavits of several of its members indicating that they use the roadless areas designated as nonwilderness areas for hiking and other recreational uses, and that any development of these areas will affect their enjoyment of the lands. Plaintiffs have established that their interests fall within the zone of interests protected or regulated by the statutes they claim the FS has violated.

Defendants argue that the occurrence of any threatened injury is too remote in time to be a sufficient basis for standing. Whether an allegation of threatened injury suffices for standing turns on the likelihood of the occurrence of that injury. Id. at 12. Additionally, any threatened injury must be "fairly traceable to the challenged action, and relief from the injury must be likely to follow from a favorable decision." Id. at 17, (quoting Allen v. Wright, 468 U.S. 737, 751 (1984)). Defendants argue that ICL has not shown that any threatened injury to its members can be traced to the actions of the FS in adopting the Plan. The Plan does not deal with any specific development of those areas which were designated as nonwilderness. It does not even propose any future development; it merely allows for the possibility of development in the future.

The instant case is distinguishable from the facts in Wilderness Soc. v. Griles, supra. In that case the Bureau of Land Management (BLM) policy being challenged transferred legal ownership of BLM lands to the State of Alaska and to Native Groups which also transferred the power to control the use and enjoyment of the land. The BLM policy effectively relieved BLM of any authority over the future [21 ELR 20668] use of the land. In this case any future development which might take place will again be determined by the FS and will be subject to the requirements of NEPA. The FS will again be required to prepare an EIS which is specific to the proposed development. The threatened injury in this instance is too remote and cannot be directly tied to the Plan adopted by the FS. For these reasons, the court finds that Plaintiffs lack standing to bring this case.

II. Failure to Raise Issues in Administrative Appeal

Defendants contend that Plaintiffs raised two issues in their amended complaint that Plaintiffs had not raised during the administrative appeals process. Those issues involve Plaintiffs' claims that the FS is in violation of the NFMA and the APA because it failed to explain its reasons for not recommending 43 of the roadless areas for wilderness designation and because it failed to evaluate all reasonable alternatives and consider all relevant factors in making its decision not to recommend 43 roadless areas for wilderness designation. Defendants argue that those claims should be dismissed for failure to raise them at the time of the administrative appeal.

As a general rule courts refuse to consider issues which were not presented before an administrative proceeding at the appropriate time. Marathon Oil Co. v. United States, 807 F.2d 759 (9th Cir. 1986), cert. denied, 480 U.S. 940 (1987). Plaintiffs argue that the Statement of Reasons (SOR) presented in relation to the administrative appeal put the FS on notice that they were appealing the FS's failure to explain the rationale for its decisions in the ROD. However, upon review of those portions of the SOR which Plaintiffs argue give notice of these claims, the court finds that Plaintiffs did not effectively raise these issues in the administrative appeal.

Plaintiffs also argue that the FS's own regulations put it on notice that it was to explain its wilderness decisions for each roadless area. Plaintiffs rely on Seabrook v. United States Environmental Protection Agency, 659 F.2d 1349, 1360-61 [11 ELR 21068] (5th Cir. 1981), for the proposition that where regulations impose a nondiscretionary duty on an agency, the statute or regulation itself suffices to put the agency on notice of a potential claim.

Seabrook involved a claim which was made after the final promulgation of a rule. The EPA argued that the party was estopped from bringing the claim because it had not raised the objection to the rule during the "notice and comment" period of the rule-making process. The court found that the party was not estopped from bringing its claim because it could not be responsible for objecting during the "notice and comment period" to any changes made in the rule after the "notice and comment" period had expired. Seabrook is not dispositive in this situation. Here, Plaintiffs had the opportunity to raise their objections after the Plan had been adopted and at the time of the administrative appeal, yet they failed to do so.

As Plaintiffs point out, the FS has a duty, pursuant to the NFMA and the regulations promulgated under it, to evaluate and consider for recommendation as potential wilderness areas all roadless areas in the National Forest System. 36 C.F.R. § 219.17. The existence of this duty, however, does not put the FS on notice that Plaintiffs objected to its explanation of the roadless area decisions.

Additionally, Plaintiffs argue that because there are public interests at stake, the court should exempt them from the requirement of first raising these issues at the time of the administrative appeal. Plaintiffs argue that they seek to "vindicate public rights to an explanation for critical decisions regarding the fate of thousands of acres of undeveloped public land." (Plaintiffs' Reply In Opposition to Defendants' Motions For Summary Judgment at p. 6) (emphasis in original). Without deciding at this juncture whether the public has a right to an explanation of the decisions made in the ROD, the court notes that case law does not indicate that wherever there is a public interest at stake, parties have no obligation to comply withthe law and raise their objections at the administrative level. See National Coal Ass'n v. Hodel, 675 F. Supp. 1231 [18 ELR 20039] (D. Mont. 1987).

Plaintiffs are not excused from their obligation to raise issues at the administrative level. Neither the Statement of Reasons presented at the administrative appeal nor FS regulations concerning roadless areas gave adequate notice of the first two issues raised by Plaintiffs in their amended complaint. Plaintiffs failed to assert those issues in its administrative appeal. Therefore, Plaintiffs are barred from raising these claims on judicial review.

III. Discussion of Merits

Pursuant to the Administrative Procedures Act, 5 U.S.C. § 706(2)(A), the applicable standard of review of an agency decision is whether the decision was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." See also, Marsh v. Oregon Natural Resources Council, 490 U.S. , 104 L. Ed. 2d 377 [19 ELR 20749] (1989). Where agency action is challenged on the record as arbitrary, capricious, and in violation of the procedures required by law, summary disposition is appropriate. Northern Spotted Owl v. Hodel, 716 F. Supp. 479 [19 ELR 20277] (W.D. Wash. 1988).

Summary judgment is also appropriate in cases involving the issue of whether an EIS adequately explains the environmental consequences of a proposed agency action. Methow Valley Citizens Council v. Regional Forester, 833 F.2d 810, 815 [18 ELR 20163] (9th Cir. 1987) aff'd in part, rev'd in part, Robertson v. Methow Valley Citizens Council, U.S. , 104 L. Ed. 2d 351 [19 ELR 20743] (1989).

The NFMA requires Land and Resource Management Plans for National Forests. 16 U.S.C. § 1604(E)(1). These Forest Plans are general planning documents which provide land management direction for 10 to 15 years. 16 U.S.C. § 1604(f). The q NFMA requires the agency to provide in one set of documents its plan for managing multiple uses and resources within the national forests. Id. The plans must "provide for multiple use and sustained yield of the products and service obtained in accordance with the Multiple-Use Sustained Yield Act of 1960, and, in particular, include coordination of outdoor recreation, range, timber, watershed, wildlife and fish, and wilderness . . ." 16 U.S.C. § 1604(e)(1). The plan must also "determine management systems, harvesting levels, and procedures in the light of the definition of the terms 'multiple use' and 'sustained yield' as provided in the Multiple-Use Sustained Yield Act . . ." 16 U.S.C. § 1604(e)(2). These plans are to provide for multiple use and sustained yield of goods and services in a way that maximizes long-term net public benefits in an environmentally acceptable manner, and "[u]nless otherwise provided by law, roadless areas within the National Forest System shall be evaluated and considered for recommendation as potential wilderness areas during the forest planning process." 36 C.F.R. § 219.17. Each plan is also to be accompanied by an EIS prepared in accordance with the NEPA. See 36 C.F.R. § 219.12.

Plaintiffs argue that FS failed to consider relevant economic and environmental factors in developing the plan. The NFMA provides for the promulgation of regulations "specifying guidelines for land management plans developed to achieve the goals of the Program which . . . insure consideration of the economic and environmental aspects of various systems of renewable resource management . . ." 16 U.S.C. § 1604(g)(3)(a). There is no question that the FS must consider the economic and environmental aspects of its decisions in developing the Plan. However, the parties now agree that because the Plan does not make an "irretrievable commitment" of resources, this evaluation does not need to be the site-specific evaluation which is required when there is a specific proposal for development in a specific area.

There is ample evidence in the record that the environmental and economic aspects were considered. See, ROD at pp. 16-20; Final EIS Addendum C. Each of the roadless areas were individually described in terms of resource and wilderness values, assessed for wilderness suitability and assessed as to wilderness values that would be lost if development were allowed. This evaluation complies with the requirement that the agency "assess the wilderness value of each area and . . . evaluate the impact of nonwilderness designations upon each area's wilderness characteristics and value." California v. Block, 690 F.2d 753, 764 [13 ELR 20092] (9th Cir. 1982). Accordingly, Plaintiffs' first claim is without merit.

Plaintiffs also contend that the EIS is defective because it fails to consider a reasonable alternative and because it failed to disclose relevant information that the value of timber in some of the roadless areas is negative. The EIS, however, does indicate that the expenses involved in harvesting timber on some of the roadless areas may be greater than the value of the timber. ICL's basic argument in the second claim is that the FS did not consider an alternative which would allow all 47 of the roadless areas to be recommended for wilderness [21 ELR 20669] designation while at the same time sustaining a timber harvest of 280 million board feet per year on existing roaded areas.

Plaintiffs argue that due to a particular programming error the FS did not have as one of its alternatives a plan which considered the possibility of sustaining a constant amount of timber harvest over a period of time. By changing the particular program used to analyze the various alternatives, the FS could have had before it a plan which would allow for ample wilderness designation without giving up any of the economic benefits of timber harvesting.

NEPA requires agencies to "study, develop, and describe appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resources." 42 U.S.C. § 4332(2)(E). The review of an EIS is governed by the APA's arbitrary and capricious standard but the ultimate standard of review is a narrow one. Marsh, 490 U.S. , 104 L. Ed. 2d 377 (1989). If the impact statement evidences a "hard look" by the agency of the proposed action's environmental effects and alternatives, the document is adequate. Animal Defense Council v. Hodel, 840 F.2d 1432, 1436 [18 ELR 20497] (9th Cir. 1988).

The EIS in this case listed thirteen different alternatives. These alternatives considered a wide range of possibilities, from recommending that all the roadless areas be designated as wilderness, to recommending that none of the roadless areas be designated as wilderness.

The range of alternatives . . . is governed by a 'rule of reason' that requires an agency to set forth only those alternatives necessary to permit a reasonable choice. . . . As with the standard employed to evaluate the detail that NEPA requires in discussing a decision's environmental consequences, the touchstone for our inquiry is whether an EIS's selection and discussion of alternatives fosters informed decisionmaking and informed public participation.

Block, 690 F.2d at 767.

The new alternative presented by Plaintiffs was not presented for consideration before the ROD was issued, nor was it presented as an issue for appeal. It is basically a variation of an alternative already considered. The main difference is in the determination of the amount of timber harvest which should be sustained in the first decade and continued over a given period of time. Plaintiffs submitted the declaration of Randal O'Toole in support of their contention that this new alternative should now be considered. In response, Defendants have submitted the declarations of their own experts suggesting that the new alternative would not be a viable alternative.

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 introduce to rebut the presumption. See, 5 U.S.C. §§ 701-706. The court will not address the issue of whether it should admit declarations of experts which are outside of the record. Suffice it to say that an agency is able to rely on the opinions of its own experts in making its decisions and that disagreement among experts will not serve to invalidate an EIS. Life of Land v. Brinegar, 485 F.2d 460, 472 [3 ELR 20811] (9th Cir. 1973). "When specialists express conflicting views, an agency must have discretion to rely on the reasonable opinions of its own qualified experts even if, as an original matter a court may find contrary views more persuasive." Marsh, 490 U.S. at , 104 L. Ed. 2d at 395.

The actions of the Forest Service in developing the Forest Plan for the Idaho Panhandle National Forest were not arbitrary or capricious. The EIS and the ROD meet the requirements of the National Forest Management Act and the National Environmental Policy Act. Accordingly,

IT IS HEREBY ORDERED that Plaintiffs' motion for summary judgment is DENIED and Defendants motions for summary judgment are GRANTED. Judgment shall enter for Defendants and Defendant-Intervenor and against Plaintiffs.

The clerk is directed forthwith to notify counsel of entry of this order.