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Alaska Forest Association, et al v. Thomas Vilsack

August 10, 2012

ALASKA FOREST ASSOCIATION, ET AL., PLAINTIFFS,
v.
THOMAS VILSACK, SECRETARY OF THE U.S. DEPARTMENT OF AGRICULTURE, ET AL., DEFENDANTS.



The opinion of the court was delivered by: John D. Bates United States District Judge

MEMORANDUM OPINION

Plaintiffs Alaska Forest Association ("AFA") and Southern Southeast Alaska Building Industries Association ("Building Association") bring this action against Secretary of Agriculture Thomas Vilsack and other employees of the United States Department of Agriculture ("USDA") and the United States Forest Service ("USFS") acting in their official capacities. Plaintiffs seek injunctive relief from a 2008 USFS Forest Plan amendment that reduced the amount of commercial forestland in the Tongass National Forest in Alaska. Plaintiffs claim that the procedures used and the substantive decisions made in approving the amended Forest Plan violated the National Forest Management Act ("NFMA"), 16 U.S.C. § 1604, and the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321-4370h. Pursuant to the Administrative Procedure Act ("APA"), 5 U.S.C. § 706(2), plaintiffs seek declaratory relief vacating the Forest Plan amendment and requiring the USFS and USDA to amend the Forest Plan in a manner that complies with federal law. Now before the Court is [29] defendants' motion to dismiss plaintiffs' claims. For the reasons explained below, defendants' motion will be granted.

I. Background

The Tongass National Forest encompasses about 17 million acres and is the largest national forest in the United States. Am. Compl. ¶ 11. In 1980, Congress passed the Alaska National Interest Lands Conservation Act ("ANILCA"), which directed the USFS to "'maintain the timber supply from the Tongass National Forest'" at a rate set by statute. Am. Compl. ¶ 14 (quoting 16 U.S.C. § 539d (1988)). In 1990, Congress enacted the Tongass Timber Reform Act ("TTRA"), which directs the Secretary of Agriculture, "'to the extent consistent with providing for the multiple use and sustained yield of all renewable forest resources . . . to provide a supply of timber from the Tongass National Forest'" that meets both the annual market demand and the market demand for "each planning cycle" for timber. Am. Compl. ¶ 15 (quoting 16 U.S.C. § 539d(a)).

The NFMA directs the USFS to revise and update its land-use plans for each of the national forests "at least every fifteen years." 16 U.S.C. § 1604(f)(5). In 2008, pursuant to the NFMA, the USFS prepared a record of decision (the "Tongass Decision") for an amendment to the Tongass National Forest Plan. Am. Compl. ¶ 18. The Tongass Decision amended the Forest Plan and reduced the amount of land available for commercial foresting from 2.4 million acres to 676,000 acres. Id. ¶¶ 16-20. The Tongass Decision also adopted an adaptive strategy for managing lands for timber sale that plaintiffs claim reduces the acreage capable of supporting financially feasible timber sales to approximately 103,000 acres. Id. ¶ 23.

The USFS's action drew two court challenges. On September 17, 2008, the Southeast Conference and several other Alaskan cities and municipal organizations ("Southeast Conference") filed suit against the Secretary of Agriculture and other USDA and USFS defendants acting in their official capacities. Compl. ¶ 1, Se. Conference v. Vilsack, 684 F. Supp. 2d 135 (D.D.C. 2010) (No. 08-1598) ("Se. Compl."). The plaintiffs in that case claimed that the Tongass Decision substantively violated the TTRA, ANICLA, NFMA, and NEPA, and requested injunctive relief reversing the challenged Decision. Id. ¶¶ 1, 46-55, I-VII. By the time the Southeast Conference's case advanced to the summary judgment stage, the plaintiffs there had abandoned their claim that the Decision violated NEPA and focused their summary judgment motion on their NFMA, TTRA and ANICLA claims. See Se. Conference, 684 F. Supp. 2d at 138-39 (listing the NFMA, TTRA, and ANICLA as the three statutes at issue in considering the parties' cross-motions for summary judgment).

A little under two months after Southeast Conference initiated their lawsuit, the plaintiffs in the present case filed their complaint, alleging that the USFS decision resulted in substantive and procedural violations of the NFMA, NEPA, and TTRA. Compl. ¶¶ 25-45. Recognizing the related issues in the two cases, the parties in a joint statement agreed that either staying the present case or consolidating it with Southeast Conference would be appropriate, and proposed a stay of this case on April 3, 2009. Joint Meet & Confer Statement & Request for Extension of Time to Submit Proposed Scheduling Order [Docket Entry 7] at 2-3. Because Southeast Conference was pending before this Court, the present case was reassigned to the undersigned judge as a related matter under Local Rule 40.5. This Court granted the requested stay on June 16.

While the present case was stayed pending the outcome in Southeast Conference, the defendants there questioned Southeast Conference's standing in that case. Mem. in Reply to Defs.' Opp'n to Pls.' Mot. for Partial Summ. J. & Pls.' Opp'n to Defs.' Mot. for Summ. J. at 1, Se. Conference v. Vilsack, 684 F. Supp. 2d 135 (D.D.C. 2010) (No. 08-1598) ("Se. Pls.' Mem."). Southeast Conference replied in June 2009 and included an affidavit, signed by the president of AFA, stating that the AFA was a member of their organization. Id. at 5. Southeast Conference argued that the AFA had suffered concrete, redressable harm as a result of the Tongass Decision. Id. This Court granted defendants' motion for summary judgment on February 17, 2010. Se. Conference, 684 F. Supp. 2d at 149. That decision addressed the merits of Southeast Conference's APA challenges to the Tongass Decision under the NFMA, TTRA, and ANICLA, implying that Southeast Conference did have standing to bring the case without reaching the issue.

Following this Court's decision in Southeast Conference, the plaintiffs in the present case filed a status report on March 29, 2010, indicating their desire to file an amended complaint and "to resolve any preclusive effect concerns with federal defendants prior to filing an amended pleading." Pls.' Status Report [Docket Entry 17] at 2. During the same period, defendants' counsel communicated to plaintiffs' counsel that he was "considering, and in the process of researching, the potential preclusive effect of the Court's judgment in Southeast Conference on this case." Defs' Reply in Support of Mot. to Dismiss ("Defs.' Reply") [Docket Entry 33], Ex. 9 ¶ 5. Defendants' counsel mentioned that he "wanted to review the case law regarding the definition of a 'claim' for the purposes of preclusion" on April 17, 2010. Id. ¶ 7.

Plaintiffs then amended their complaint. The Amended Complaint [Docket Entry 24] claims that the USFS and USDA, by promulgating the Tongass Decision and related land management strategy, committed substantive violations of the NFMA and procedural violations of the NFMA and NEPA. Am. Compl. ¶¶ 26-38. Defendants subsequently moved to dismiss all of plaintiffs' claims.

II. Standard of Review

"[I]n passing on a motion to dismiss, whether on the ground of lack of jurisdiction over the subject matter or for failure to state a cause of action, the allegations of the complaint should be construed favorably to the pleader." Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); see Leatherman v. Tarrant Cnty. Narcotics & Coordination Unit, 507 U.S. 163, 164 (1993); Phillips v. Bureau of Prisons, 591 F.2d 966, 968 (D.C. Cir. 1979). Hence, the factual allegations must be presumed true, and plaintiff must be given every favorable inference that may be drawn from the allegations of fact. Scheuer, 416 U.S. at 236; Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000). However, the Court need not accept as true "a legal conclusion couched as a factual allegation," nor inferences that are unsupported by the facts set out in the complaint. Trudeau v. Fed. Trade Comm'n, 456 F.3d 178, 193 (D.C. Cir. 2006) (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)).

Under Rule 12(b)(1), the party seeking to invoke the jurisdiction of a federal court --plaintiff here -- bears the burden of establishing that the court has jurisdiction. See US Ecology, Inc. v. U.S. Dep't of Interior, 231 F.3d 20, 24 (D.C. Cir. 2000); see also Grand Lodge of Fraternal Order of Police v. Ashcroft, 185 F. Supp. 2d 9, 13 (D.D.C. 2001) (a court has an "affirmative obligation to ensure that it is acting within the scope of its jurisdictional authority"). "'[P]laintiff's factual allegations in the complaint . . . will bear closer scrutiny in resolving a 12(b)(1) motion' than in resolving a 12(b)(6) motion for failure to state a claim." Grand Lodge, 185 F. Supp. 2d at 13-14 (quoting 5A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1350 (2d ed. 1987)). Additionally, a court may consider material other than the allegations of the complaint in determining whether it has jurisdiction to hear the case, as long as it still accepts the factual allegations in the complaint as true. See Jerome Stevens Pharms., Inc. v. FDA, 402 F.3d 1249, 1253-54 (D.C. Cir. 2005); EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624-25 n.3 (D.C. Cir. 1997).

In reviewing a motion to dismiss pursuant to Rule 12(b)(6), the Court is mindful that the Federal Rules of Civil Procedure require only that a complaint contain "'a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to 'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)); accord Erickson v. Pardus, 551 U.S. 89, 93-94 (2007) (per curiam). Although "detailed factual allegations" are not necessary to withstand a Rule 12(b)(6) motion to dismiss, to provide the "grounds" of "entitle[ment] to relief," a plaintiff must furnish "more than labels and conclusions" or "a formulaic recitation of the elements of a cause of action." Twombly, 550 U.S. at 555-56; see also Papasan v. Allain, 478 U.S. 265, 286 (1986). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570); Atherton v. Dist. of Columbia Office of the Mayor, 567 F.3d 672, 681 (D.C. Cir. 2009). A complaint is plausible on its face "when the plaintiff pleads factual content that allows the court to draw the ...


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