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MOUNTAIN STATES LEGAL FOUND. v. GLICKMAN

April 18, 1995

MOUNTAIN STATES LEGAL FOUNDATION, et al., Plaintiffs,
v.
DANIEL R. GLICKMAN,1 SECRETARY OF THE UNITED STATES DEPARTMENT OF AGRICULTURE, et al, Defendants



The opinion of the court was delivered by: LAMBERTH

MEMORANDUM OPINION

 This case comes before the court on cross-motions for summary judgment. Upon consideration of the plaintiffs' and the defendants' motions, oppositions thereto, and materials submitted by the parties in support of their positions, the defendants' request for summary judgment on counts I, II and IV of the first amended complaint will granted and the plaintiffs' motion will be denied.

 I. Introduction

 A. Summary Judgment Standard

 The court decides defendants' and plaintiffs' motions for summary judgment under Fed. R. Civ. P. 56(b). The parties have had a "reasonable opportunity to present all material made pertinent to [the] motion by Rule 56," Neal v. Kelly, 295 U.S. App. D.C. 350, 963 F.2d 453, 456 (D.C. Cir. 1992), and the parties have submitted affidavits and other materials pertinent to the dispute. Summary judgment is appropriate where there is no genuine issue as to any material fact and the moving party is entitled to summary judgment as a matter of law. E.g., Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). Inferences drawn from the facts must be viewed in the light most favorable to the party opposing the motion. E.g., Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970).

 Plaintiff Mountain States Legal Foundation ("MSLF") is a voluntary, nonprofit, public interest corporation organized under the laws of Colorado. It alleges that its members use the National Forests as a source of income and for recreational activities. John Hossack alleges standing as a member of MSLF. He currently works as an independent forest consultant and is hired by private individuals and companies to advise, assist in purchasing timber, interpret contracts and to review Environmental Impact Statements ("EIS"). He alleges that the implementation of Alternative 9A of the EIS at issue in this case will result in a loss of jobs. Plaintiff Communities for a Great Northwest ("CGN") is also a voluntary, nonprofit corporation and is organized under the laws of Montana. It also alleges its members use the National Forests as a source of income and for recreational activities. Bruce Vincent asserts standing as a member of CGN. Vincent owns a small logging company which has been forced to serve as a subcontractor to a larger mill while downsizing its operation since the limitations in timber harvest in the mid-eighties. Plaintiff Owens & Hurst is a lumber corporation organized under the laws of Montana with its principal place of business in Eureka, Montana. It purchases approximately one third of its timber from the supply that comes from the Upper Yaak River Drainage. Its owner, James Hurst claims that Forest Service action caused the temporary closure of his business and the permanent layoff of 25 employees.

 Plaintiffs are suing the Secretary of the United States Department of Agriculture, the Chief of the United States Forest Service ("Forest Service"), the Forest Service (which is subject to the authority of the Department of Agriculture), the Forest Supervisor of the Kootenai National Forest, the Secretary of the Interior, the Regional Director of Region VI of the United States Fish and Wildlife Service and the Fish and Wildlife Service (who are subject to the authority of the Department of the Interior). The Wilderness Society, American Wildlands, and the Sierra Club intervened as defendants. Each are environmental organizations with an active interest in the management of the Kootenai National Forest.

 Plaintiffs ask the court to stop the implementation of Alternative 9A and force the implementation of Alternative 6 set forth in the EIS for the Upper Yaak River Area.

 A series of events and legal actions have formed the historical basis for the current suit. In August 1983, the Save the Yaak Committee sought an injunction against reconstruction of the Porcupine-Sullivan section of Highway 92 asserting that the United States Department of Agriculture Forest Service had violated the Endangered Species Act ("ESA") 16 U.S.C. §§ 1531 et. seq. by failing to comply with the National Environmental Policy Act ("NEPA") 42 U.S.C. § 4321 et. seq. That specific area is not at issue in this case but was considered part of the cumulative effects combined with the decision area of this case. The District court dismissed plaintiffs' claim, Vance v. Block, 635 F. Supp. 163 (D. Mont. 1986), but the Ninth Circuit Court of Appeals reversed, stating that the Forest Service had failed to consider the cumulative and connected actions. Save the Yaak Committee v. Block, 840 F.2d 714, 721 (9th Cir. 1988). An injunction was issued against further timber sales until NEPA deficiencies had been corrected. Id. at 722.

 The Draft EIS for the Upper Yaak area was issued and presented for public review in May 1989. The EIS decision area at issue in this case was limited to 360 timber harvest units located within a 284,432-acre land area in the Upper Yaak area in the Northern Region of the Kootenai National Forest. The Draft EIS was designed to consider and evaluate the environmental consequences of each alternative to the proposed timber harvest. The purpose of the proposed action was to "re-establish timber harvesting and road construction in the Upper Yaak River ... and to reduce, as much as possible, the mortality occurring in the lodgepole pine because of the mountain pine beetle infestation." United States Department of Agriculture Forest Service, Upper Yaak Record of Decision, August, 1990, 3. The Forest Service also noted the local concern for increased risk of wildfire caused by failure to remove dead and dying timber in a timely manner. Id. After a series of meetings and reviewing 568 written responses and forms and over 1800 separate statements, the Forest Service issued the Final Environmental Impact Statement ("FEIS") in April 1990. United States Department of Agriculture, Forest Service, Upper Yaak Final Environmental Impact Statement, April 20, 1990.

 The FEIS contains as an evaluation of the 14 different alternatives presented to the Forest Service with consideration of the following issues: Lodgepole Pine harvest affected by the Mountain Pine Beetle, timber management and harvest methods, economic effects, wildlife and threatened and endangered species, recreation, visual quality, road construction/reconstruction and road management, water quality, and risk of wildfire.

 The U.S. Fish and Wildlife Service pursuant to the request for the required formal consultation under the Endangered Species Act, 16 U.S.C. § 1536(a)(2), issued a biological opinion. United States Department of the Interior Fish and Wildlife Service Biological Opinion addressing Alternatives 6 and 9A, June 20, 1990. "It is the Service's biological opinion that timber harvesting outlined under Alternative 6 is likely to jeopardize the continued existence of the grizzly bear and that timber harvesting under Alternative 9A is not likely to jeopardize the grizzly bear." Biological Opinion at 1.

 On January 10, 1992, the current plaintiffs in conjunction with plaintiffs no longer party to this suit filed a complaint in this court alleging that the implementation of Alternative 9A violated a series of environment statutes including the Organic Act, 16 U.S.C. §§ 473-478, 479-482, 551; Resource Planning Act ("RPA"), 16 U.S.C. §§ 1600-1687; National Forest Management Act ("NFMA"), 16 U.S.C. §§ 1600-1400; National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321 et. seq.; Multiple-Use Sustained-Yield Act ("MUSYA") 16 U.S.C. §§ 528-531; and the Endangered Species Act ("ESA") 16 U.S.C. §§ 1531 et. seq. Plaintiffs also allege that defendants violated the Administrative Procedures Act ("APA") 5 U.S.C. § 706(2)(E),(F). Only counts I, II, and IV concerning, alleging violation of the Organic Act, NFMA, MUSYA, and the APA, remain. The other counts were dismissed due to lack of standing. Mountain States Legal Found. v. Madigan, 867 F. Supp. 1026 (D. D.C., 1992); Mountain States Legal Found. v. Madigan, No. 92-0097 (D. D.C., May 7, 1992)

 II. Standing

 A. Article III Requirements

 1. Standard of Review

 Standing in this case is controlled by Lujan v. Defenders of Wildlife 504 U.S. 555, 112 S. Ct. 2130, 119 L. Ed. 2d 351 (1992). The plaintiffs have the burden of proving the following elements. "First, the plaintiff must have suffered an injury in fact-an invasion of a legally-protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical. Second, there must be a causal connection between the injury and the conduct complained of-the injury has to be fairly traceable to the challenged action of the defendant and not ... the result of the independent action of some third party not before ...


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