Federal Lands Legal Foundation v. U.S. Forest Service

No. 91-0972-HB (D.N.M. December 7, 1992)

The court holds that an organization of ranchers using federal land for livestock grazing lacks standing to compel the U.S. Forest Service and other federal agencies to promulgate regulations for the development of allotment management plans under the Public Rangelands Improvement Act (PRIA) and the Federal Land Policy and Management Act. The court finds that the organization had offered no proof that any member was injured by the government's failure to promulgate regulations. The court concludes that the organization wanted regulations specifying who will attend meetings held under the PRIA for developing allotment management plans, but the PRIA does not include the language the organization would like. The court holds that the organization did not prove the causation and redressability prongs of the constitutional standing inquiry. The court further finds that the organization did not establish its right to judicial review under the Administrative Procedure Act, and that it failed to point to final agency action. The organization never formally requested the government to commence or review rulemaking.

[Counsel not available at this printing.]

[23 ELR 20388]

Bratton, J.:

Memorandum Opinion and Order

Plaintiff, whose members are ranchers utilizing federal land for livestock grazing, brought this action on September 28, 1991, to compel defendants to promulgate rules and regulations for the development of allotment management plans¹ pursuant to 43 U.S.C. §§ 1740 [23 ELR 20389] and 1752(d). Plaintiff requested the court to issue a declaratory judgment finding defendants had not complied with the rulemaking requirements of the above statutes and with 5 U.S.C. §§ 551 et seq., the Administrative Procedures Act (APA), and to enjoin defendants from developing or altering any allotment management plans until such rules are promulgated. Plaintiff asserts jurisdiction under the APA, 5 U.S.C. §§ 702-704.²

On January 17, 1992, plaintiff moved for a temporary restraining order and preliminary injunction. Defendants, after filing an answer, responded with a Motion to Dismiss or for Summary Judgment arguing plaintiff lacked standing, the court lacked subject matter jurisdiction under the APA, and defendants were entitled to judgment as a matter of law on the merits. After denying plaintiff's motion for a temporary restraining order, the court conducted an evidentiary hearing on the preliminary injunction motion. That hearing was subsequently converted, pursuant to stipulation, into a hearing on the merits. After the hearing, plaintiff filed a Motion to Supplement the Record and to Renew Request for Preliminary Injunction and a Motion to Strike Certain of Defendants' Requested Findings of Fact. Defendants continued to assert their jurisdictional arguments, further augmenting arguments supporting their statute of limitations defense. Both parties filed Requested Findings of Fact and Conclusions of Law and supplemental briefs. After hearing all of the evidence, the court finds plaintiff has failed to prove its standing to bring this litigation, and the court has no jurisdiction under Article III of the U.S. Constitution to hear their dispute with defendants. The court further finds plaintiff's complaint does not adequately plead jurisdiction under the APA. For these two reasons, the action must be dismissed.

Section 8 of the Public Rangelands Improvement Act³ provides that grazing permits and leases may include "allotment management plans." 43 U.S.C. § 1752(d). The statutory language relevant to plaintiff's grievance is:

If the Secretary concerned elects to develop an allotment management plan for a given area, he shall do so in careful and considered consultation, cooperation and coordination with the lessees, permittees, and landowners involved, the district grazing advisory boards established pursuant to section 1753 of this title, and any State or States having lands within the area to be covered by such allotment management plan.

Id.

Plaintiff believes Section 310 of the Federal Land Policy and Management Act (FLPMA), 43 U.S.C. § 1740, requires defendants to formally promulgate rules and regulations to implement the above "Section 8" process. Section 310, entitled "Rules and Regulations," provides:

The Secretary [of Interior], with respect to public lands, shall promulgate rules and regulations to carry out the purposes of this Act and of other laws applicable to the public lands, and the Secretary of Agriculture, with respect to lands within the National Forest System, shall promulgate rules and regulations to carry out the purposes of the Act. The promulgation of such rules and regulations shall be governed by the provisions of chapter 5 of Title 5, without regard to section 553(a)(2). Prior to the promulgation of such rules and regulations, such lands shall be administered under existing rules and regulations concerning such lands to the extent practical.

Plaintiff claims defendants have never formally promulgated rules and regulations and that the lack of formal rules and regulations is causing injury to the members of plaintiff organization.

Three members of the plaintiff organization testified at the hearing, R.C. Manning, Nick Grat, and Bud Eppers. Mr. Manning has a permit to graze cattle on National Forest lands, and he testified about the length of time the Forest Service was taking to develop an AMP for his allotment, and the economic harm he was experiencing due to the delay. Mr. Gray's testimony was similar and also involved the Forest Service. Mr. Eppers testified generally on direct examination about the implementation of Section 8. On cross-examination, Mr. Eppers testified neither defendant agency is engaged in developing an AMP for his grazing land.

Article III limits the "judicial power" of the federal courts to the resolution of "cases" and "controversies." Ash Creek Mining Co. v. Lujan, 969 F.2d 868, 874 (10th Cir. 1992) (quoting Valley Forge Christian College v. Americans United for Seperation of Church and State, Inc., 454 U.S. 464, 471 (1982)). The doctrine of standing is a central, essential, and unchanging component of the Article III "caseor-controversy" requirement. Lujan v. Defenders of Wildlife, 112 S. Ct. 2130 (1992).

To establish standing under Article III, a plaintiff bears the burden of proving three elements. The plaintiff must show he has actually been injured by the defendant's conduct, the injury is causally connected to the challenged conduct, and the requested relief will most likely remove or redrees the injury. See id. At this stage of this litigation, after hearing on the merits, the plaintiff's factual allegations regarding these standing requirements must be adequately supported by the evidence in the record. Id. at 2137; Glover River Org. v. United States Dep't of the Interior, 675 F.2d 251, 254 n.3 [12 ELR 20730] (10th Cir. 1982). As an organization, the plaintiff must show that one or more of its members are directly affected by a defendant's challenged conduct and have standing in their own right. Warth v. Seldin, 422 U.S. 490, 511 (1975); Glover River, 675 F.2d at 253 n.2.

Initially, the court finds plaintiff has offered no proof any member of its organization is injured by the failure of the Secretary of Agriculture, Edward Manigan, the Bureau of Land Management (BLM), Cy Jamison, Director of the BLM, or Manuel Lujan, Secretary of the Interior (the BLM defendants) to promulgate rules and regulations. Both Mr. Manning and Mr. Gray alleged injury by the Forest Service defendants only. Plaintiff introduced expert testimony showing the BLM does not implement Section 8 in a consistent manner due to the lack of rules and regulations, but did not introduce any evidence its members were "directly" affected by this failure, Defenders of Wildlife, 112 S. Ct. at 2138 (citing Hunt v. Washington State Apple Advertising Comm'n, 432 U.S. 333, 343 (1977)).⁴

Although Mr. Manning and Mr. Gray have alleged injury by the action or inaction of the Forest Service Defendants, they have not adequately linked their injuries to the defendants' failure to promulgate rules and regulations. In addition, they have not shown their problems will be resolved if the court grants their requested relief. It was obvious from the evidence presented at the hearing that these two members of the plaintiff organization are aggrieved by the Forest Service's failure to develop their AMPs in a timely manner. However, a "plaintiff may not convert the federal courts into 'publicly funded forums' for the ventilation of public grievances." Ash Creek, 969 F.2d at 875 (quoting Valley Forge, 454 U.S. at 473).

Mr. Manning and Mr. Gray testified the finalization of their AMPs was delayed because the Forest Service did not work to develop their AMPS solely "with the careful and considered consultation, cooperation and coordination with the lessees, permittees, and landowners involved, the district grazing advisory boards . . ., and any State or States having lands within the area to be covered by such allotment management plan," as stated in Section 8, but included other interested persons in the discussions. They and the plaintiff's experts testified that the inclusion of these other "affected parties" unnecessarily confused and elongated the Section 8 process.⁵ What Mr. Manning and Mr. Gray want and need are rules and regulations specifying who will attend Section 8 meetings and giving a time limit to the Forest Service for developing their AMPs. However, plaintiff's [23 ELR 20390] counsel steadfastly maintains she is "not arguing what th[e] regulations should be or what th[e] regulations should include.⁶

Section 8 does not include the limiting language plaintiff would like it to include. Congress stated certain parties should be included; it did not state that only those parties should be included and no others. In addition, the Forest Service did formally promulgate a regulation implementing Section 8 in 1979.⁷ See 36 C.F.R. § 222.2. Thus, it is not the absence of rules and regulations that injures plaintiff, but the absence of a particular rule or regulation requiring the Forest Service to develop AMPs in a manner acceptable to plaintiff and its members.

Consequently, even if the court ordered the Forest Service defendants to promulgate rules and regulations, without any guidance as to what those regulations should consist of, the regulation could be as general as the current one, could allow for more parties to participate than currently do, and, given the nature of the AMP development process, would probably not give any time frame for AMP completion.

Plaintiff made the argument that if its members were given the opportunity to formally comment on rules and regulations, the regulations would then be more beneficial to them. However, they had the opportunity to comment on the current regulation, and they are still not happy. Thus, it is entirely speculative whether the formal promulgation of rules and regulations would alleviate the injury caused by the delayed AMPs. In addition, since the court has identified economic harm caused by delay as plaintiff's injury, it is clear that if the court stayed the development of AMPs pending the promulgation of rules and regulations, as requested by plaintiff, plaintiff's members would actually suffer additional harm, not redress.

Even if plaintiff had proven the causation and redressability prongs of the constitutional standing inquiry, the court finds plaintiff has not established its right under the APA to Judicial review of the Forest Service's actions. Section 10(a) of the APA provides that "[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof." 5 U.S.C. § 702. However, only "[a]gency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court are subject to judicial review." Id. § 704. Thus, even if plaintiff could prove for purposes of § 702 the causal connection between its alleged injuries and the Forest Service's failure to promulgate rules and regulations, it would still need to prove that the Forest Service's failure was reviewable under § 704. This it has not done. See generally Lujan v. National Wildlife Fed'n, 110 S. Ct. 3177, 3185 (1990).

As in Lujan v. National Wildlife Federation, the plaintiff must point to "final agency action" because there is no provision for judicial review in the substantive statute, FLPMA. Id. Plaintiff is not requesting this court to review the adequacy of 36 C.F.R. § 222.2; nowhere in its complaint does it even mention that regulation. Plaintiff is requesting this court to review the Forest Service's failure, or denial, to promulgate adequate rules and regulations. Yet plaintiff has never formally requested the agency to commence rulemaking or review its rulemaking regarding Section 8, nor has it alleged it has been denied that opportunity by the Forest Service. See 5 U.S.C. § 553(e) ("Each agency shall give an interested person the right to petition for the issuance, amendment, or repeal of a rule."). Thus there is no "final agency action," or any agency action for this court to review.

Defendants' statute of limitations defense highlights plaintiff's jurisdictional deficiency. Defendants argued that 28 U.S.C. § 2401, the six-year statute of limitations for civil actions against the United States bars this lawsuit because the Forest Service promulgated the regulation codified at 36 C.F.R. § 222.2 more than six years ago. If the issue was whether that regulation complied with the law, then that regulation would be final agency action subject to judicial review, but review would be barred by the statute of limitations. See Wind River Mining Corp. v. United States, 946 F.2d 710, 716 (9th Cir. 1991).

Plaintiff seeks to invoke the exception allowed by the Ninth Circuit in Wind River whereby a party may contest "the substance of an agency decision as exceeding constitutional or statutory authority, [if] the challenger [does] so later than six years following the decision by filing a complaint for review of the adverse application of the decision to the particular challenger." Id. at 715.

First, plaintiff vehemently maintains it is not contesting any particular regulation, it is merely arguing that the agencies have not fulfilled their duties to promulgate regulations. Plaintiff has not, and surely cannot, argue that the regulation promulgated by the Forest Service in 1979 or 1980 was "beyond the agency's authority." See id. Section 310 of FLPMA and Section 8 of a PRIA provide the authority for the promulgation of the original rules and regulations as well as the regulations plaintiff wishes to see, and since the regulation is only a "regurgitation of the statute," as plaintiff contends, it is clearly not in excess of the agency's authority. Thus, plaintiff was not entitled to wait over 10 years to file this lawsuit if it is contesting the regulation itself.

Second, to avoid ripeness problems, plaintiff maintains it is not contesting the development of any particular AMP, only the manner in which AMPs are developed. Yet, in contradiction, it points to its representative members' AMPs and argues it is not subject to the statute of limitations because the non-finalized AMPs are continuing actions. Under either argument there is no "adverse application of the decision" to any "particular challenger," and the Wind River exceptionwould not apply. See id.

Under the APA, plaintiff cannot have it both ways, and plaintiff cannot have it either way. If it is challenging the manner in which AMPs are developed, then there is "not an 'agency action' within the meaning of § 702, much less a 'final agency action' within the meaning of § 704." See National Wildlife Fed'n, 110 S. Ct. at 3185. If plaintiff is challenging individual AMPs which are not yet completed, then the action is not yet ripe and plaintiff has failed to exhaust administrative remedies. See, e.g., Ash Creek Mining Co. v. Lujan, 934 F.2d 240 (10th Cir. 1991); Franks v. Nimmo, 683 F.2d 1290 (10th Cir. 1982).

Plaintiff also claims it is contesting the fact that the defendants are applying procedures from manuals and directives for the development of AMPs, and have not engaged in formal rulemaking with regard to those procedures. If defendants had denied a request for rulemaking pursuant to 5 U.S.C. § 553(e), the court would have "final agency action" it could review. See Taylor-Callahan-Coleman Counties Dist. Adult Probation Dep't v. Dole, 948 F.2d 953, 960 (5th Cir. 1991) (action would be "final and subject to review" if agency had rejected a § 553(e) petition), Shipbuilders Council of America v. United States, 868 F.2d 452, 456 n.3 (D.C. Cir. 1989) ("denial of [§ 553(e)] petition is subject to judicial review"); South Hills Health System v. Bowen, 864 F.2d 1084, 1095 (3d Cir. 1988) ("threshold requirement of seeking judicial review of an agency's refusal to undertake rulemaking is the filing of a rulemaking petition with the relevant agency"). However, the mere mention of such requests in Plaintiff's Supplemental Brief Regarding Statute of Limitations, uncorroborated by any evidence in the record and not substantiated by the exhibit attached to the Brief,⁸ is not enough to confer jurisdiction on this court.

In view of the fact that this court lacks jurisdiction over plaintiff's complaint, the court will not reach the merits of plaintiff's claim for injunctive relief, and all other motions filed by the plaintiff are moot.

NOW, THEREFORE,

IT IS HEREBY ORDERED that Defendants' Motion for Summary Judgment be granted.

IT IS FURTHER ORDERED that this action be dismissed for lack of subject matter jurisdiction.

[23 ELR 20391]

Judgment

This court, having granted defendants' motion for summary Judgment, finding that the action must be dismissed for lack of subject matter jurisdiction for the reasons stated in the memorandum opinion and order filed contemporaneously herewith;

IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that plaintiff's complaint is dismissed with prejudice.

1. An allotment management plan (AMP) is a discretionary document prescribing the manner in which livestock operations are to be conducted. If developed its terms become conditions of a grazing permit.

2. Plaintiff also based jurisdiction on 28 U.S.C. § 1331, § 1361, and §§ 2201-2202. None of these cited statutes confer jurisdiction on a federal court. See, e.g., State of N.M. v. Regan, 745 F.2d 1318, 1321, 1323 (10th Cir. 1984), cert. denied, 471 U.S. 1065 (1985).

3. The Public Rangelands Improvement Act (PRIA) was an amendment to the Federal Land Policy and Management Act (FLPMA).

4. Actually, the only proper defendants in plaintiff's suit are the Secretary of the Interior and the Secretary of Agriculture. Section 310 of FLPMA provides that the secretaries "shall promulgate rules and regulations." However, in light of the court's ultimate finding in this case, the court will continue to refer to the BLM and Forest Service defendants in the plural.

5. The experts also testified that the process varies from region to region and this lack of certainty leads to distrust between the Forest Service personnel and the ranchers. However, lack of trust is not the injury plaintiff wants the court to redress in this lawsuit. The injury is the harm caused by delay. A delayed AMP in an atmosphere of trust would lead to the same injury, and timely AMPs, regardless of the level of trust, would apparently have made Mr. Manning and Mr. Gray happy.

6. Transcript of Hearing, p. 5.

7. 36 C.F.R. § 222.2 entitled Management of the range environment provides in relevant part:

. . .

(b) Each allotment will be analyzed and with careful considered consultation and cooperation with the affected permittees, landowners, and grazing advisory boards involved, as well as the state having land within the area covered, and an allotment management plan developed. The plan will then be approved and implemented. The analysis and plan will be updated as needed.

(c) Forage producing National Forest System lands will be managed for livestock grazing and the allotment management plans will be prepared consistent with land management plans.

8. The relevant exhibit was a copy of Plaintiff's Interrogatory No. 8 in which plaintiff asked the Forest Service "whether any individual or entity has requested your agency to promulgate rules pertaining to the implementation of Section 8 of PRIA by your agency . . .?" The answer referred to two letters that "provided comment," not § 553(e) petitions for rulemaking.