United States District Court, D. Columbia.
For AMERICAN FOREST RESOURCE COUNCIL, Plaintiff: Mark C. Rutzick, LEAD ATTORNEY, MARK C. RUTZICK, INCORPORATED, Oak Hill, VA; Caroline M. Lobdell, PRO HAC VICE, Portland, OR; Julie A. Weis, PRO HAC VICE, HAGLUND KELLEY HORNGREN JONES & WILDER LLP, Portland, OR; Scott W. Horngren, PRO HAC VICE, AMERICAN FOREST RESOURCE COUNCIL, Portland, OR.
For BLUERIBBON COALITION, PUBLIC LANDS COUNCIL, NATIONAL CATTLEMEN'S BEEF ASSOCIATION, AMERICAN SHEEP INDUSTRY ASSOCIATION, ALASKA FOREST ASSOCIATION, RESOURCE DEVELOPMENT COUNCIL FOR ALASKA, INC., MINNESOTA FOREST INDUSTRIES, INC., MINNESOTA TIMBER PRODUCERS ASSOCIATION, INC., CALIFORNIA FORESTRY ASSOCIATION, MONTANA WOOD PRODUCTS ASSOCIATION, INC., FEDERAL FOREST RESOURCE COALITION, CALIFORNIA ASSOCIATION OF 4 WHEEL DRIVE CLUBS, Plaintiffs: Mark C. Rutzick, LEAD ATTORNEY, MARK C. RUTZICK, INCORPORATED, Oak Hill, VA; Scott W. Horngren, PRO HAC VICE, AMERICAN FOREST RESOURCE COUNCIL, Portland, OR.
For THOMAS J. VILSACK, UNITED STATES FOREST SERVICE, Defendants: Barclay Samford, LEAD ATTORNEY, UNITED STATES DEPARTMENT OF JUSTICE, Denver, CO; Stuart Campbell Gillespie, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE, Washington, DC.
For KLAMATH SISKIYOU WILDLANDS CENTER, OREGON WILD, Intervenor Defendants: Matt G. Kenna, LEAD ATTORNEY, PUBLIC INTREST ENVIRONMENTAL LAW, Durango, CO; Peter M.K. Frost, PRO HAC VICE, Eugene, OR; Susan Jane M. Brown, PRO HAC VICE, Portland, OR.
For WILDERNESS SOCIETY, DEFENDERS OF WILDLIFE, Intervenor Defendants: Matt G. Kenna, LEAD ATTORNEY, PUBLIC INTREST ENVIRONMENTAL LAW, Durango, CO; Timothy Joseph Preso, LEAD ATTORNEY, EARTHJUSTICE, Bozeman, MT; Trent W. Orr, LEAD ATTORNEY, EARTHJUSTICE, San Francisco, CA.
KETANJI BROWN JACKSON, United States District Judge.
Congress has charged the United States Forest Service with the management of 155 national forests and 20 national grasslands covering over 180 million acres of forest and rangeland throughout the United States. See 16 U.S.C. § 1604(a); 36 C.F.R. § 200.3(b)(2). The Forest Service promulgates a " Planning" rule to achieve this mandate, see 36 C.F.R. § 219 et seq., and this set of regulations governs the Forest Service's development of individual land and resource management plans for the national forests and grasslands that the agency oversees. Forest-resource stakeholders (such as environmental groups, recreational interest groups, and industry groups that promote timber harvest, mining, and grazing) have long debated the appropriate terms of the Planning rule-- i.e., which specific procedural requirements the Forest Service should adopt to guide it in developing land use management plans--and the Forest Service has promulgated five successive Planning rules since 1979, each of which has been controversial, and some of which have even been invalidated by federal courts.
This case concerns the Forest Service's latest Planning rule, which was promulgated in 2012. See National Forest System Land Management Planning, 77 Fed.Reg. 21,162 (April 9, 2012) (codified at 36 C.F.R. pt. 219). Plaintiffs are a number of trade associations and nonprofit corporations that represent members of the timber/lumber industry, along with other groups whose members use national forest lands for recreation. The gravamen of Plaintiffs' complaint, which has been filed against Defendants Secretary of Agriculture Tom Vilsack in his official capacity and the Forest Service (collectively, " Defendants" or " the Government" ), is the contention that the 2012 Planning Rule exceeds the Forest Service's statutory authority by requiring land management plans to privilege environmental goals, such as maintaining " ecological sustainability" and " ecosystem services," over other competing uses of national forests, such as logging, grazing, and recreation. Plaintiffs claim that by privileging environmental interests over other interests, the 2012 Planning Rule violates three separate statutes that set forth the purposes of the national forests: the Organic Administration Act of 1897 (" OAA" ), 16 U.S.C. § § 473-75, 477-82, 551; the Multiple-Use Sustained-Yield Act of 1960 (" MUSYA" ), 16 U.S.C. § § 528-31; and the National Forest Management Act of 1976 (" NFMA" ), 16 U.S.C. § § 1600-1614. Plaintiffs also argue that the 2012 Planning Rule is inconsistent with the OAA, MUSYA, and NFMA in a number of other respects, and that Plaintiffs were not afforded an adequate opportunity to comment on the definitions of three words that are used in the 2012 Planning Rule--words that Plaintiffs believe are critically important to how the 2012 Planning Rule will be implemented.
Before this Court at present are the parties' cross-motions for summary judgment based on the administrative record. Plaintiffs' motion reiterates the complaint's core contention that the 2012 Planning Rule is manifestly inconsistent with the OAA, MUSYA, and NFMA. Defendants' motion argues, as a threshold matter, that Plaintiffs' case should be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction because Plaintiffs lack standing to challenge to the 2012 Planning Rule and this dispute is not yet ripe for adjudication. On the merits, Defendants are joined by several environmental organizations that have intervened to argue that Defendants are entitled to summary judgment because the 2012 Planning Rule does not exceed Defendants' authority under the OAA, MUSYA, and NFMA.
On March 31, 2015, this Court entered an order stating that Plaintiffs' Motion for Summary Judgment was DENIED; Defendants' Motion to Dismiss was GRANTED; and the Intervenor-Defendants' Motion for Summary Judgment was DENIED as moot. This Memorandum Opinion explains the reasoning behind that ruling. Specifically, this Court has concluded that it lacks subject matter jurisdiction with respect to Plaintiffs' claims, and thus cannot reach the merits of those claims, because Plaintiffs have failed to identify an injury-in-fact that they have suffered, or will imminently suffer, as a result of Defendants' promulgation of the 2012 Planning Rule. In other words, Plaintiffs lack standing to challenge the 2012 Planning Rule in federal court, and as a result, Plaintiffs' lawsuit cannot proceed.
A. Land And Resource Management Of National Forests
The national forests of the United States are subject to " a dynamic management system, akin to a zoning ordinance, that regulates future project-level decisionmaking." Michael J. Gippert & Vincent L. DeWitte, The Nature of Land and Resource Management Planning Under the National Forest Management Act, 3 Envtl. Law. 149, 154 (1996). Congress first authorized the United States Department of Agriculture (" USDA" ) to manage national forest lands--and first articulated the goals of the national forest management system--in the OAA, 30 Stat. 11, 34-36 (June 4, 1897) (codified as amended at 16 U.S.C. § § 473-75, 477-82, 551), a statute that specifically provides that the national forest system exists for two purposes: "  to improve and protect the forest within the boundaries, or for the purpose of securing favorable conditions of water flows, and  to furnish a continuous supply of timber for the use and necessities of citizens of the United States." 16 U.S.C. § 475. Congress augmented this initial statement of purposes in the MUSYA, 74 Stat. 215 (June 12, 1960) (codified as amended at 16 U.S.C. § § 528-31), which states that " [i]t is the policy of the Congress that the national forests are established and shall be administered for outdoor recreation, range, timber, watershed, and wildlife and fish purposes." 16 U.S.C. § 528. The MUSYA also specifically references the environmental resources management principles of " multiple use" and " sustained yield," and directs Secretary of Agriculture--who acts in this area through the Forest Service--" to develop and administer the renewable surface resources of the national forests for multiple use and sustained yield of the several products and services obtained therefrom." Id. § 529; see also id. § 531(a) (defining " multiple use" as the " management of all the various renewable surface resources of the national forests so that they are utilized in the combination that will best meet the needs of the American people" ); id. § 531(b) (defining " sustained yield" as " the achievement and maintenance in perpetuity of a high-level annual or regular periodic output of the various renewable resources of the national forests without impairment of the productivity of the land" ). According to the D.C. Circuit, " these statutes make clear a congressional intention that the national forests should play a significant role in supplying timber," and " [t]hey also, especially the later statutes, indicate a purpose to advance outdoor recreation[.]" Mountain States Legal Foundation v. Glickman, 92 F.3d 1228, 1236, 320 U.S.App.D.C. 87 (D.C. Cir. 1996).
Significantly for present purposes, in 1976, Congress enacted the NFMA, 90 Stat. 2949 (Oct. 22, 1976) (originally enacted as the Forest and Rangeland Renewable Resources Planning Act of 1974) (codified as amended at 16 U.S.C. § § 1600-1614), a statute that expressly adopts the statutory purposes laid out in the OAA and MUSYA; makes additional findings; and establishes a detailed land and resource management scheme that the Forest Service must follow in order to further those purposes. The NFMA, which seeks " to balance the protection of natural ecosystems on public lands with the industrial and recreational uses of those lands[,]" was Congress' attempt to address the conflicting interests that often vie for priority when forest resources are at stake. Vanessa Wishart, Before Beginning, Plan Carefully: A Call for Public Comment on the New Forest Planning Rule, 2010 Wis. L.Rev. 1537, 1540. Congress specifically acknowledged in the statute " the necessity for a long term perspective in planning" how renewable forest resources would be managed. Forest and Rangeland Renewable Resources Planning Act of 1974, Pub. L. No. 93-378 § 2 (codified as amended by the NFMA at 16 U.S.C. § § 1600-1614). To this end, the NFMA commands the Forest Service to " develop, maintain, and, as appropriate, revise land and resource management plans for units of the National Forest System[.]" 16 U.S.C. § 1604(a).
Pursuant to the NFMA, the Forest Service regulates the land and resources of national forests through " a three-tiered regulatory approach to forest management, with different tiers existing at the national, regional and local levels." Citizens for Better Forestry v. U.S. Dep't of Agric., 632 F.Supp.2d 968, 970 (N.D. Cal. 2009); see also 16 U.S.C. § § 1600 et seq. The instant case involves the first tier-- i.e., the set of USDA regulations that outline the procedures that the Forest Service must follow in planning for resource allocation across all national forests. See 16 U.S.C. § 1604(g). The agency's " Planning" rule (as these regulations are titled) essentially lays out a series of steps for developing individual land and resource management plans for national forests, and the Planning rule thereby governs the Forest Service's future consideration of proposed activities on forest land at the regional and local levels.
Notably, the Planning rule itself is mandated in the NMFA, see 16 U.S.C. § 1604(g), and not only must the agency's Planning rule guide the development of land and resource plans that are consistent with the purposes of forest management articulated in the statutes discussed above, it must do so by incorporating specific requirements that the NMFA sets forth. For example, the NMFA provides that the agency's Planning rule must be crafted to ensure, with respect to proposed projects, that there is compliance with the National Environmental Policy Act (" NEPA" ), 42 U.S.C. § § 4321-4370h, 16 U.S.C. § 1604(g)(1); that " economic and environmental" factors are considered, id. § 1604(g)(3)(A); that the " diversity of plant and animal communities" is provided for, id. § 1604(g)(3)(B); and that certain parameters for timber harvesting are adopted, id. § 1604(g)(3)(E)--(F). As explained further below, Plaintiffs maintain that the USDA's most recently adopted Planning rule improperly prioritizes ecological sustainability, ecosystem services, and maintaining and restoring plant and animal communities, and thus diverges from the Forest Service's mandate and purposes of the national forest system as set forth in the NMFA, MUSYA, and OAA.
With the Planning rule as a guide for how to proceed, at the second tier of forest management, the Forest Service develops specific land and resource management plans (" forest plans" ) for each unit in the National Forest System. Like a zoning ordinance, a forest plan defines management areas and guides Forest Service actions with respect to units within those areas. Forest plans establish management goals and broad standards and guidelines that apply to various regions; they generally do not authorize any particular on-the-ground action. See Gippert & DeWitte, supra at 156-57 (" The [forest plan] is a guide designed to give broad management guidance and ensure that other legal requirements are fulfilled prior to 'critical' project decisions, such as the decision to begin timber harvesting, mining operations or road construction." ). Then, at the third tier, the Forest Service analyzes and approves project-level decisions, such as the decision to harvest timber or authorize grazing in a particular area. See id. No proposed site-specific project may go forward until it has been found consistent with the forest plan that has been developed pursuant to the Planning rule, see 16 U.S.C. § 1604(i), and each project must also undergo the appropriate level of environmental review and public participation under NEPA and other applicable laws, see, e.g., Idaho Conservation League v. Mumma, 956 F.2d 1508, 1511-12 (9th Cir. 1992).
Once the Forest Service decides to authorize a project pursuant to these three planning stages, the agency's decision is subject to judicial review pursuant to the Administrative Procedure Act (" APA" ), 5 U.S.C. § § 701-706. See Ohio Forestry Ass'n, Inc. v. Sierra Club, 523 U.S. 726, 728, 118 S.Ct. 1665, 140 L.Ed.2d 921 (1998) (holding that without site-specific, on-the-ground activities, forest plans are not ripe for review).
B. Planning Rule Permutations--From 1979 To 2012
USDA promulgated the first Planning rule in 1979. See National Forest System Land and Resource Management Planning, 44 Fed.Reg. 53,928 (Sept. 17, 1979) (to be codified at 36 C.F.R. pt. 219). However, after a few short years, the Forest Service concluded that the 1979 Planning Rule was overly complex, and it promulgated a revised Planning rule in 1982 in order to streamline the process of developing forest plans. See National Forest System Land and Resource Management Planning, 47 Fed.Reg. 43,026, 43,026 (Sept. 30, 1982) (to be codified at 36 C.F.R. pt. 219). Thereafter, in the year 2000, the USDA promulgated a new Planning Rule, see National Forest System Land and Resource Management Planning, 65 Fed.Reg. 67,514, 67,515-16 (Nov. 9, 2000) (to be codified at 36 C.F.R. pts. 217, 219), based on its finding that the 1982 Planning Rule no longer reflected contemporary scientific or technical knowledge and had led to a forest plan development process that was complex, costly, lengthy, and cumbersome, see National Forest System Land and Resource Management Planning, 77 Fed.Reg. at 21,163. The 2000 Planning Rule was challenged in federal court, see Citizens for Better Forestry v. U.S. Dep't of Agric., No. 3:01-cv-00728 (N.D. Cal. Feb. 16, 2001), and Am. Forest and Paper Ass'n v. Veneman, No. 1:01-cv-00871 (D.D.C. April 23, 2001), and the Forest Service decided to develop a new rule after an internal agency review concluded that implementation of the 2000 Planning Rule would be procedurally burdensome. See National Forest System Land and Resource Management Planning, 67 Fed.Reg. 72,770, 72,771 (Dec. 6, 2002). This new Planning rule was issued in 2005, and a revised version was promulgated in 2008, but federal courts invalidated both efforts for failure to comply with the procedural obligations of the NEPA and the Endangered Species Act. See Citizens for Better Forestry v. U.S. Dep't of Agric., 481 F.Supp.2d 1059, 1089-90, 1097 (N.D. Cal. 2007); Citizens for Better Forestry v. U.S. Dep't of Agric., 632 F.Supp.2d 968, 980-82 (N.D. Cal. 2009). The Forest Service then chose to continue conducting forest planning pursuant to the 1982 Planning Rule while developing a new Planning rule. See National Forest System Land Management Planning, 74 Fed.Reg. 67,165, 67,166 (Dec. 18, 2009). Consequently, the 1982 Planning Rule has guided the development of all individual forest plans currently in existence.
The Forest Service engaged in a notice and comment period and the preparation of an EIS pursuant to NEPA in 2011, and it issued the final 2012 Planning Rule--the rule that is being challenged in the instant action--on April 9, 2012. See National Forest System Land Management Planning, 77 Fed.Reg. at 21,162. Consistent with the three-tiered management structure described above, the 2012 Planning Rule does not itself establish any particular land management plan or authorize any concrete action in furtherance of any existing land management plan. Rather, the rule is a framework that consists, essentially, of two types of regulations: those that set forth the specific procedures that agency officials must utilize to develop land use plans in the future, and those that address the required components of any such plan.
For example, with respect to the procedural requirements agency officials must follow, the 2012 Planning Rule states that " [t]he responsible official shall use the best available scientific information to inform the planning process[,]" 36 C.F.R. § 219.3, and clarifies that " [p]lanning for a national forest, grassland, prairie, or other comparable administrative unit . . . is an iterative process that includes assessment (§ 219.6); developing, amending, or revising a plan (§ § 219.7 and 219.13); and monitoring (§ 219.12)[,]" id. § 219.5(a). The 2012 Planning Rule further provides specific procedural guidance for agency officials with respect to each of these stages of the planning process, such as the directive that the official " shall provide opportunities to the public for participating" in the creation of any specific land management plan, id. § 219.4(a), and that, during the assessment phase, " [t]he responsible official shall consider and evaluate existing and possible future conditions and trends of the plan area, and assess the sustainability of social, economic, and ecological systems within the plan area, in the context of the broader landscape[,]" id. § 219.5(a)(1).
The 2012 Planning Rule also sets forth a number of specific substantive provisions that must be included in all land management plans. Section 219.8, for example, states that " [t]he plan must provide for social, economic, and ecological sustainability within Forest Service authority and consistent with the inherent capability of the plan area," and goes on to specify precisely what acceptable sustainability plan provisions should entail. Id. § 219.8; see also, e.g., id. § 219.8(a) (stating that " [t]he plan must include plan components, including standards or guidelines, to maintain or restore the ecological integrity of terrestrial and aquatic ecosystems and watersheds in the plan area" ). The 2012 Planning Rule contains similar directives regarding the inclusion of plan provisions related to plant and animal diversity, id. § 219.9(a); multiple uses and ecosystem services, id. § 219.10(a); and timber harvest requirements, id. § 219.11.
This all means that, in order to satisfy the requirements of the 2012 Planning Rule, each forest plan must not only have been developed pursuant to certain procedural steps, see, e.g., id. § 219.7(c), it must also include certain substantive elements. Accordingly, while the 2012 Planning Rule outlines the same overarching development process and management goals for every forest, each forest plan developed under the Rule will be unique--tailored through a public process to " reflect the unit's expected distinctive roles and contributions to the local area, region, and Nation, and the roles for which the plan area is best suited[.]" 36 C.F.R. § 219.2(b); see also 77 ...