Opinion
No. C 01-4835 PJH
June 19, 2003
ORDER RE MOTIONS FOR SUMMARY JUDGMENT
The parties' cross-motions for summary judgment came on for hearing on May 7, 2003, before this court, the Honorable Phyllis J. Hamilton presiding. Plaintiffs appeared by their counsel Peter M.K. Frost, and defendants appeared by their counsel Assistant United States Attorney James A. Coda. Having read the parties' papers and carefully considered their arguments and the relevant legal authority, and good cause appearing, the court hereby rules as follows.
BACKGROUND
This is an action alleging violation of federal conservation and environmental protection laws. Plaintiffs are two non-profit organizations that advocate on behalf of environmental issues, the Center for Biological Diversity and the Environmental Protection Information Center; and Coyote Downey, a member of the Keneste (or Wailaki) Tribe, who resides in Northern California, in the area of the headwaters of the Eel River. Defendants are Ann Veneman, the U.S. Secretary of Agriculture; the U.S. Forest Service, a federal agency within the Department of Agriculture; Roberto Delgado, employed by the U.S. Forest Service as the District Director of the Mad River Ranger District in the Six Rivers National Forest; and Lou Woltering, the Supervisor of the Six Rivers National Forest.
Defendants are referred to collectively herein as "the Forest Service."
Plaintiffs challenge the Forest Service's issuance of three permits authorizing the grazing of livestock on lands that include or are adjacent to the portion of the North Fork of the Eel River designated as the North Fork Eel Wild and Scenic River ("North Fork Eel WSR"), and also allowing diversion of water from the North Fork Eel WSR. Plaintiffs claim that the livestock grazing and water diversion have degraded the water quality, the riparian vegetation, the wild fish population, and the other values of the North Fork Eel WSR, in violation of the Wild and Scenic Rivers Act, 16 U.S.C. § 1271, et seq. ("WSRA").
The Secretary of Agriculture is authorized to issue permits for livestock grazing on National Forest lands under the Granger-Thye Act, 16 U.S.C. § 5810, and the National Land Policy Management Act, 43 U.S.C. § 1751, et seq.; see also 16 U.S.C. § 5801 (Secretary of Agriculture, in regulating grazing in the national forests, is authorized to issue permits for the grazing of livestock for periods not exceeding ten years and renewals thereof).
The Eel River has three forks. The North Fork, which is the subject of the complaint in this action, is approximately 35 miles long, and flows through the Six Rivers National Forest. Approximately 40% of the North Fork Eel watershed is administered by the Six Rivers National Forest through the Mad River Ranger District. Approximately 34 miles of the North Fork Eel River was designated as a federal wild and scenic river in 1981. The upstream 15-mile segment is administered by the Forest Service. The downstream segment flows through lands administered by the Bureau of Land Management or owned by the Round Valley Indian Nation.
Plaintiffs also assert that the Forest Service has violated the National Forest Management Act, 16 U.S.C. § 1600, et seq. ("NFMA"), by failing to prepare a comprehensive management plan for the North Fork Eel WSR; and has violated the National Environmental Policy Act, 42 U.S.C. § 4321, et seq. ("NEPA"), by failing to prepare an environmental impact statement or an environmental analysis prior to issuing the grazing permits.
Finally, plaintiffs allege that the Forest Service has violated the Emergency Supplemental Appropriations for Additional Disaster Assistance, for Anti-Terrorism, for Assistance in the Recovery that Occurred at Oklahoma City, and Rescissions Act, P.L. 104-19, 109 Stat. 194 (Jan. 4, 1995) ("Rescissions Act"), by failing to adhere to a schedule for the completion of NEPA analyses and decisions for all livestock grazing allotments for which such analyses are needed.
Each side now seeks summary judgment on the issues in the liability phase of the case.
DISCUSSION
A. Legal Standards
1. Motions for Summary Judgment
Summary judgment is appropriate when there is no genuine issue as to material facts and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56. Material facts are those that might affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as to a material fact is "genuine" if there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. Id. An issue is not genuine if it is unsupported by evidence, or if it is created by evidence that is "merely colorable" or that is "not significantly probative." Id. at 249-50. The court may not weigh the evidence, and is required to view the evidence in the light most favorable to the nonmoving party.Id. at 248.
A party seeking summary judgment bears the initial burden of informing the court of the basis for its motion, and of identifying those portions of the pleadings and discovery responses that demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Where the moving party will have the burden of proof at trial, it must affirmatively demonstrate that no reasonable trier of fact could find other than for the moving party. On an issue where the nonmoving party will bear the burden of proof at trial, the moving party can prevail merely by pointing out to the district court that there is an absence of evidence to support the nonmoving party's case. Id. If the moving party meets its initial burden, the opposing party must then set forth specific facts showing that there is some genuine issue for trial in order to defeat the motion. Anderson, 477 U.S. at 250.
2. Actions under the Administrative Procedures Act
The general review provisions of the Administrative Procedures Act ("APA"), 5 U.S.C. § 701, et seq., apply in cases asserting violations of the WSRA, the NFMA, and NEPA. Native Ecosystems Council v. Dombeck, 304 F.3d 886, 891 (9th Cir. 2002); Hells Canyon Alliance v. U.S. Forest Serv., 227 F.3d 1170, 1176-77 (9th Cir. 2000). Under the APA, "[a] person suffering a legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a particular statute, is entitled to judicial review thereof." 5 U.S.C. § 702. Under the APA, agency action includes the "whole or part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act." 5 U.S.C. § 551(13). The APA applies except to the extent that a statute precludes judicial review, or agency action is committed to agency discretion by law. 5 U.S.C. § 701(a).
An agency action may be set aside under the APA only if it was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law." 5 U.S.C. § 706(2)(A)); see Morongo Band of Mission Indians v. Fed. Aviation Admin. 161 F.3d 569, 573 (9th Cir. 1998). The reviewing court may also "compel agency action unlawfully withheld or unreasonably delayed." 5 U.S.C. § 706. In an APA "failure-to-act" claim, judicial review is allowed only if plaintiffs make a showing of "agency recalcitrance . . . in the face of clear statutory duty or . . . of such magnitude that it amounts to an abdication of statutory responsibility." ONRC Action v. Bureau of Land Management, 150 F.3d 1132, 1137 (9th Cir. 1998).
The APA limits judicial review to review of "final" agency action.See 5 U.S.C. § 704. For an action to be "final" under the APA, it should mark the conclusion of an agency's decision-making process, and should also be an action by which rights or obligations have been determined or from which legal conclusions flow. Bennett v. Spear, 520 U.S. 154, 177 (1997). Review of an agency's failure to act may be considered an exception to the final agency action requirement. However, courts have refused to consider claims of "failure to act" that are, in truth, simply "complaints about the sufficiency of an agency's action `dressed up as an agency's failure to act.'" Ecology Center Inc. v. U.S. Forest Serv.. 192 F.3d 922, 926 (9th Cir. 1999) (citation omitted).
B. The Motions for Summary Judgment
Plaintiffs and defendants now move for summary judgment. The Forest Service argues that plaintiffs do not have standing to bring this action, while plaintiffs claim that they do. Plaintiffs contend that they have established that the Forest Service has violated the WSRA, the NFMA, and NEPA and the Rescissions Act, while the Forest Service asserts that they have not.
1. Standing
The Forest Service argues that plaintiffs lack standing to bring this action. To satisfy Article Ill's standing requirements, a plaintiff must show that it has suffered "injury in fact" that is concrete and particularized and actual or imminent, not conjectural or hypothetical; that there is a causal connection between the injury and the alleged action; and that it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992); see also Friends of the Earth, Inc. v. Laidlaw Environmental Servs (TOC), Inc., 528 U.S. 167, 180-81 (2000).
Environmental plaintiffs adequately allege injury in fact when they assert that they use the affected area and are persons "for whom the aesthetic and recreational values of the area will be lessened" by the challenged activity. Laidlaw, 528 U.S. at 183 (citation omitted). They must, however, show more than an injury to a cognizable interest; "the party seeking review must himself be among the injured."Sierra Club v. Morton, 405 U.S. 727, 734-35(1972).
An association has standing to bring suit on behalf of its members when its members would otherwise have standing to sue in their own right, when the interests at stake are germane to the organization's purpose, and when neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit. Laidlaw, 528 U.S. at 181; see also Hunt v. Washington State Apple Advertising Comm'n, 432 U.S. 333, 343 (1977); Ecological Rights Found, v. Pac. Lumber Co., 230 F.3d 1141, 1147 (9th Cir. 2000).
To demonstrate standing under the APA, a plaintiff must identify a "final" agency action, and must show that the injury complained of falls within the "zone of interests" sought to be protected by the statutory provision whose violation forms the basis of the complaint. ONRC Action, 150 F.3d at 1135. The party with the burden of proving standing bears the responsibility of supporting its allegations as to each element with the level of proof required at each stage of the proceedings. Defenders of Wildlife, 504 U.S. at 561.
In this case, the Forest Service argue that plaintiffs have not suffered injury in fact, that they can show no causal connection between the alleged action and the injury, and that they cannot show redressability. Plaintiffs respond with four declarations that they contend establish their standing to bring this action.
First, plaintiff Coyote Downey states that he is a member of a the Wailaki (or Keneste) Tribe and a member of the Round Valley Nation, that his ancestors lived along the North Fork of the Eel River, that his family was forced to leave the area and move on to the Round Valley Reservation, that he has visited the lands along the North Fork Eel River and has fished in the river and hunted in the lands along the river, and that he has observed damage to the river environment that he believes has been caused by the cattle that graze in the allotments.
Second, Peter Galvin, a member of plaintiff Center for Biological Diversity, states that he lives in Garberville, California, frequently visits the North Fork Eel River, and has observed damage to the river environment that he believes has been caused by the cattle that graze in the allotments
Third, Christine Ambrose, a member of plaintiff Environmental Protection Information Center ("EPIC"), states that she has lived in Humboldt County, California, since 1984, and that she also serves as National Forest Monitor for EPIC. She says that in this capacity, she has frequently visited the area of the North Fork Eel River, and has observed damage to the river environment she believes has been caused by the grazing cattle. She also says she visits the area for aesthetic, educational, and spiritual reasons.
Fourth, Cynthia Elkins, a member of EPIC and currently the organization's Program Director, describes EPIC's interests in the North Fork Eel River area, and states that she has hiked, backpacked, and otherwise spent time on the Forest Service lands in the North Fork Eel River watershed, and has observed damage caused by the grazing cattle.
Based on the statements in the declarations, the court finds that plaintiffs have established that they have standing to raise the claims alleged in this case. With regard to injury-in-fact, plaintiffs have established that they use the affected area and are persons for whom the aesthetic and recreational values of the area have been, or will be, lessened by the claimed effects of the issuance of the grazing permits. EPIC and CBD have shown through the declarations of their members Galvin, Ambrose, and Elkins, that the members have standing to sue in their own right, that the interests at stake in the case are germane to the interests of the organizations, and that the claim asserted does not require the participation of the individual members. Plaintiffs have arguably shown a causal connection between the injury and the damage complained of, and also have arguably shown that the requested remedy will redress the injury.
2. WSRA Claims
Plaintiffs argue that the Forest Service violated the WSRA by issuing permits that allow grazing within the watershed of the North Fork of the Eel River. They claim that by allowing grazing, the Forest Service has violated its duty to protect and enhance steelhead habitat. They also contend that by allowing grazing and by constructing or allowing diversions of water from the river, the Forest Service has violated its duty to preserve the river in a free-flowing condition. The Forest Service responds that cattle grazing has not had any significant adverse impact on steelhead habitat and that water diversions and cattle grazing have had no impact on the free flow of the river. Accordingly, the Service maintains that it has not violated its duties under the WSRA.
The issuing of grazing permits is a final agency action. As stated above, an agency action is "final" if it "marks the consummation of the agency's decisionmaking process" and if it is one "by which rights or obligations have been determined or from which legal consequences will flow." Bennett v. Spear 520 U.S. at 177-78. Issuing a permit meets this standard. Permit issuance represents the consummation of the agency's decisionmaking process, determines rights and obligations, and creates legal consequences.
The Forest Service concedes that issuance of the permits constituted final agency action, but argues that only the NEPA/Rescissions Act claims, not the WSRA claims, challenge those permits. The amended complaint, however, specifically alleges that the Forest Service has violated WSRA by "allowing livestock grazing." The mechanism through which the Forest Service allows livestock grazing is a grazing permit; hence, the WSRA claims do challenge the issuance of those grazing permits and are challenges to final agency actions. See Oregon Natural Desert Assoc. v. Singleton, 47 F. Supp.2d 1182 (D. Or. 1998) (treating a claim that the Bureau of Land Management's issuance of grazing permits violated the WSRA as a challenge to a final agency action).
For the same reasons, plaintiffs' claims are not programmatic challenges. The Forest Service argues that this suit is an impermissible programmatic challenge to the agency's administration of the North Fork Eel WSR, citing to Lujan v. Nat'l Wildlife Fed.. 497 U.S. 871 (1990). In that case, the National Wildlife Federation challenged the BLM's land withdrawal review program and alleged many failures by BLM to properly administer the program. The Court held that the NWF "cannot seek wholesale improvement of this program by court decree, rather than in the offices of the Department or in the halls of Congress, where programmatic improvements are normally made." Id. at 891. Here, however, plaintiffs have identified discrete agency actions that have caused harm, specifically, the Forest Service's issuance of permits for grazing, which has allegedly had a harmful effect on the river. This challenge to the permits authorizes plaintiffs to challenge a programmatic agency action, such as the lack of a required river management plan.
The parties agree that stock ponds and water developments also are authorized by the grazing permits. These stock ponds and water developments, along with alterations to the hydrologic flow regime allegedly caused by soil compaction associated with grazing, provide the basis for plaintiffs' claim that the Forest Service has violated its obligation to maintain the North Fork of the Eel River in a free-flowing condition. Accordingly, although that claim is presented separately, it ultimately arises out of the same final agency actions.
a. Evidence considered
Based on their argument that the WSRA claims challenge final agency actions, plaintiffs assert that only information in the administrative record should be considered. Accordingly, they have moved to strike declarations submitted by the Forest Service that reference research done and expert opinions developed after the permits were issued. The Forest Service, which characterizes the WSRA claims as failure-to-act claims, argues that there is no cutoff date for the relevance of evidentiary material and that those declarations should be considered. For the following reasons, the court does not strike the challenged declarations in their entirety but does limit the scope of information subject to review.
In a somewhat perplexing argument, the Forest Service also contends that because the regional supervisor did not considerany documents in the record when issuing the permits, limiting review of that decision to the record would be nonsensical, and therefore the information compiled after the decisions were made should be considered. In his declaration submitted in opposition to plaintiffs' motion to strike, Forest Supervisor Lou Woltering ("Woltering") stated that he did not believe the Forest Service had discretion to deny the permit renewals and therefore did not consider any documents prior to signing the permits. If anything, this declaration suggests that the decision was arbitrary. It does not support a request for the court to consider documents not in the record. Nevertheless, even if Woltering made his decision without regard for the record, other Forest Service personnel would or should have been aware of documents in the record when the permits were issued, and for this reason the record is not irrelevant.
As indicated above, the WSRA claims do challenge final agency actions. The parties agree, correctly, that review of a final agency action is, with few exceptions, limited to the record that existed at the time the agency made its decision. ASARCO, Inc. v. U.S. Environmental Protection Agency, 616 F.2d 1153, 1158-60 (9th Cir. 1980); see also Citizens to Preserve Overton Park v. Volpe. 401 U.S. 402, 419-20 (1971) (agency actions are reviewed by examining the administrative record at the time the agency made its decision, and agency documents prepared during and in response to litigation are generally excluded from this review). Documents outside the record may be considered only if they help explain technical subject matter in the record or are used to show that the agency failed to consider information that should have been included in the record, or if the agency relied on documents outside the record in making its decision. Southwest Center for Biological Diversity v. United States Forest Service. 100 F.3d 1443, 1450 (9th Cir. 1996).
The challenged declarations were prepared after the Forest Service issued the permits, and reference observations made after the issuance of the permits. For example, the declarations describe field reconnaissance in the late spring and summer of 2002 and include references to water quality data generated as recently as November, 2002. Because such information postdates the challenged decisions and does not help explain the record, the court will not consider it. Other information in the declarations, however, does help explain the record and will be considered. For example, the declarants discuss differences of opinion regarding the ways in which plaintiffs cite and interpret the record. Such statements do assist the court in understanding the record.
The Department of Agriculture, through the Forest Service, designates areas of land — or "allotments" — available for livestock grazing, and authorizes livestock grazing by issuing a permit. 36 C.F.R. § 221 (b)91), 222.3. The Forest Service has designated five allotments on lands that include or are adjacent to the North Fork Eel WSR — the Zenia, Van Horn, Hoaglin, Long Ridge, and Soldier Creek allotments. The permit for the Zenia allotment was reissued in January 2001, and expires in 2010. The permit for the Van Horn allotment was reissued in March 2002, and expires in 2012. The permit for the Hoaglin and Long Ridge allotments were reissued in April 2002, and expire in 2012. No permit currently authorizes grazing on the Soldier Creek allotment.
Likewise, the declarations contain many generalized statements about the topography, geology, and hydrology of the North Fork Eel watershed. For example, the declarations describe the steep topography of the drainage basin and comment upon the tendency of river banks to be comprised of boulders or bedrock rather than vegetated soil. This information would have been known by the Forest Service at the time the permits were issued. Such general statements, unlike specific observations about the impact, or lack thereof, of cattle upon specific places at specific times, also help the court understand the record.
The Rhodes Declaration, submitted by plaintiffs, suffers from some of the same problems as the declarations submitted by the Forest Service. In part, the declaration is devoted to explaining, based upon generalized knowledge, the ways in which cattle grazing may impact salmonid habitat. This information is helpful in understanding the record and is consistent with information contained within the record. Nevertheless, Rhodes' specific observations of the North Fork Eel watershed were made in May and November, 2002, however, after the permits were issued. His field observations thus document conditions that postdate the Forest Service's final actions and that may not have existed when those decisions were made. Because this information does not help explain the record, does not document important matters left out of the record, and would not have been known by the Forest Service when it issued the permits, the court will not consider it.
Both plaintiffs and the Forest Service cite a 2002 Environmental Protection Agency report entitled North Fork Eel River Total Maximum Daily Loads for Sediment and Temperature (the "TMDL Report"). The TMDL Report was attached to the Second Declaration of Carolyn Amy Cook, which plaintiffs have moved to strike, but plaintiffs also attached excerpts from the TMDL Report as an exhibit in support of their motion for summary judgment. Thus, whether plaintiffs intended to move to strike the entire TMDL Report is unclear. Regardless of plaintiffs' intentions, the TMDL Report clearly postdates the challenged agency actions and apparently was prepared at least partly in reliance upon data generated by the Forest Service after the issuance of the permits. The court therefore considers the report only to the extent that it explains the record or summarizes information that would have been known by the Forest Service at the time it issued the permits.
Accordingly, although the court does not strike the Rhodes Declaration, the declarations challenged by plaintiffs, or the TMDL Report, it will consider only some of the information contained therein.
b. Claim of failure to protect and enhance
The WSRA established a "national wild and scenic rivers system" in order to implement a national policy that "certain selected rivers of the Nation which . . . possess outstandingly remarkable scenic, recreational, geologic, fish and wildlife, historic, cultural, or other similar values, shall be preserved in free-flowing condition, and that they and their environments shall be protected for the benefit and enjoyment of present and future generations." 16 U.S.C. § 1271. To this end, § 10(a) of the WSRA provides that
[e]ach component of the wild and scenic rivers system shall be administered in such manner as to protect and enhance the values which caused it to be included in said system without, insofar as it is consistent therewith, limiting other uses that do not substantially interfere with public use and enjoyment of these values. In such administration, primary emphasis shall be given to protecting its aesthetic, scenic, historic, archaeologic, and scientific features.16 U.S.C. § 1281(a).
Plaintiffs read this language to mean that the primary duty of the administering agencies is to protect and enhance the outstandingly remarkable values ("ORVs") for which the river was designated. Plaintiffs contend that only those uses that are consistent with protecting and enhancing river values may be allowed. The Forest Service advocates a different reading of WSRA § 10(a). It argues that any use that does not substantially interfere with the values for which a river is designated is within the agency's discretion to permit. It also asserts that courts should defer to an agency's judgment in deciding which uses substantially interfere with a river's ORVs. Thus, the Forest Service suggests that the statute should be read to allow degradation of a river's outstandingly remarkable values so long as that degradation isn't "substantial." Plaintiffs contend that those values should be enhanced if possible and, at a minimum, should not be degraded at all.
The text of § 10(a) supports plaintiffs' reading of the statute. The statute indicates that a river should be administered to "protect and enhance the values" responsible for its inclusion in the wild and scenic river system, and that other uses that are consistent with that primary mission should be permitted to the extent that they do not substantially interfere with public use and enjoyment. See Hells Canyon Alliance, 227 F.3d at 1177-78. In Hells Canyon Alliance, the Ninth Circuit set forth a two-pronged test for the permissibility of an activity: the activity must first be consistent with the primary mission of protecting and enhancing the river's outstandingly remarkable values, and any allowed activity also must not substantially interfere with public use and enjoyment of the river's ORVs. Id.; see also Singleton. 47 F. Supp.2d at 1192. Nothing in the statutory language itself indicates that consistency is defined only as the absence of substantial interference. See Singleton, 47 F. Supp.2d at 1192.
Because the statute is not ambiguous, the Forest Service's interpretation does not merit Chevron deference. See Chevron, U.S.A. v. Natural Resources Defense Council, 467 U.S. 837 (1984). Moreover, that interpretation has been articulated only in the context of litigation and is not expressed in any of the record documents submitted by the Forest Service; it thus would merit little deference even if the statute were ambiguous. See Bowen v. Georgetown University Hospital, 488 U.S. 204, 211 (1988).
Decisions from the Ninth Circuit and from other district courts in this circuit support plaintiffs' interpretation. Singleton, for example, squarely rejects the Forest Service's proposed interpretation of the statute, Id. The Forest Service cites Hells Canyon Alliance and Riverhawks v. Zepeda, 228 F. Supp.2d 1173 (D. Or. 2002), in support of its contention that uses may be permitted so long as they do not substantially interfere with the outstanding resource in question. Both cases, however, addressed what degree of interference one ORV — in both cases, motorized recreational use — might have with other ORVs — in both cases, non-motorized recreation and environmental protection. Hells Canyon Alliance, 227 F.3d at 1177-78; Riverhawks, 228 F. Supp.2d at 1183-84. Neither case addressed to what extent a non-ORV use might interfere with a river's ORVs.
Hells Canyon Alliance does contain language suggesting that some interference with ORVs could be tolerated. The Ninth Circuit did note that the "`protect and enhance language does not stand alone," and determined that both that language and the "substantial interference" language should govern the Forest Service's effort to balance competing statutory goals. 227 F.3d at 1177-79. The Ninth Circuit did not suggest, however, that the test for determining whether a non-ORV use is consistent with protection and enhancement of the river's ORVs involved a substantial-interference standard.
The Forest Service cites to the legislative history of the WSRA in support of its interpretation of the statute, but the legislative history also is consistent with plaintiffs' interpretation. The Senate Report states that
[a] national wild or scenic river area will be administered for its esthetic, scenic, historic, fish and wildlife, archeologic, scientific, and recreational features, based on the special attributes of the area. However, [the bill] will not prohibit the construction of roads or bridges, timber harvesting and livestock grazing, and other uses that do not substantially interfere with public use and enjoyment of these values.
S. Rep. No. 491 at 4 (1967) This language, as the Forest Service notes, clearly contemplates the continuation of other uses in wild or scenic river areas. It also indicates, however, that the primary purpose of river management is to protect a river's outstandingly remarkable values. This statement of purpose is consistent with the text of the statute.
The Forest Service's own guidance documents also support plaintiffs' statutory interpretation. In a 1982 guideline, the agency stated that
[Section 10(a)] is interpreted as stating a nondegradation policy and enhancement policy for all designated river areas, regardless of classification. Each component will be managed to protect and enhance the values for which the river was designated, while providing for public recreation and resource uses which do not adversely impact or degrade those values.
National Wild and Scenic Rivers System, Final Revised Guidelines for Eligibility, Classification, and Management of River Areas, 47 Fed. Reg. 39454, 39458-59 (September 7, 1982). The Forest Service now seeks to read this guideline as allowing other uses that do not substantially impact or degrade those values, but neither the word "substantially" nor its equivalent is present in the original guideline. The standard stated — that no adverse effect on the values for which the river was designated will be allowed — is actually closer to plaintiffs' suggestion that any adverse effect at all is inconsistent with protecting and enhancing the ORV.
In summary, the Forest Service must, when managing a wild or scenic river, protect and enhance the outstandingly remarkable values for which the river was designated. It may allow other uses consistent with those primary values to the extent that those uses do not substantially interfere with public use and enjoyment of those values. Showing only a lack of substantial interference with the underlying uses for which the river was designated is not sufficient to establish the legality of a management policy; instead, the key question is whether the management policy is consistent with the underlying mission of protection and enhancement.
The record suggests that issuing the permits was not consistent with the Forest Service's obligation to protect and enhance the steelhead ORV. The record indicates that cattle have some detrimental effects upon the riparian habitat in the watershed. It also indicates that the river's outstandingly remarkable value, its steelhead, are threatened, with their populations in steep decline, and that those steelhead are dependant upon the health of riparian habitats. The record also clearly indicates that even in the absence of grazing, the North Fork of the Eel River would be marginal steelhead habitat. Hot temperatures and an absence of summer precipitation leave the river barely flowing even without cattle present, and in many areas summer temperatures are too high and oxygen levels too low for steelhead to survive.
Because of the topography and geomorphology of the watershed, the North Fork of the Eel is, at least relative to other streams at which the impacts of grazing have been analyzed, somewhat impervious to destruction through grazing. Nevertheless, the existence of some detrimental effect, even if that effect is slight compared to other natural influences, to a fragile and declining resource indicates that allowing grazing is not consistent with protecting and enhancing the river's steelhead population.
Ordinarily, the court would defer to the Forest Service's determinations about what activities are consistent with protecting and enhancing steelhead habitat. Hells Canyon Alliance, 227 F.3d at 1178. In Hells Canyon Alliance, however, deference was predicated upon the Forest Service having considered the consequences of its policy and having exercised its technical expertise, Id. Here, by contrast, the record contains no explicit consistency determination, and the Woltering declaration indicates that Forest Service technical expertise may have had little impact upon the decision. Therefore, there is no exercise of agency expertise to which the court can defer.
The parties agree that steelhead in the North Fork of the Eel and in some of its larger tributaries need cold, clean water to survive and that in the summer, water in the river and its tributaries generally is not cold. They agree that algae growth within the river combines with warm water temperatures to deplete dissolved oxygen levels. They agree that riparian vegetation plays an important role in protecting habitat by providing shade that helps keep river water cool. Finally, they agree that grazing can, under some circumstances, increase erosion, have detrimental impacts upon riparian areas, and damage salmonid habitat.
Plaintiffs assert that grazing causes some of the problems with the North Fork Eel's steelhead habitat. They argue that foraging of riparian vegetation removes shade along the streams, leading to increased temperatures and sedimentation. Cattle feces, they argue, are deposited in and along waterways, leading to nutrient loading which then causes algae to grow and dissolved oxygen levels to decline. They argue that grazing denudes both upland and riparian areas of vegetation, leading to greater erosion and more sedimentation. They also argue that cattle grazing compacts soil. This compaction, they argue, decreases groundwater infiltration during storm events, increasing stormwater runoff but decreasing recharge during the summer months when the river's flow depends upon groundwater replenishment. In addition, Plaintiffs state that the record contains general statements both by other agencies and in Forest Service documents that grazing is a threat to steelhead habitat.
The Forest Service does not dispute that cattle grazing can, under certain circumstances, cause all of the above-described impacts. The Service questions, however, the extent to which any of these problems are occurring in the North Fork Eel watershed. Foraging of riparian vegetation, it argues, occurs only in limited areas of the watershed. It also notes that during the summer, the North Fork Eel WSR is for most of its length a narrow stream flowing through a wide, rocky channel that is not susceptible to compaction and that would not support riparian vegetation with or without grazing. The Forest Service thus contends that the lack of shade is due to the natural geomorphology of the river rather than due to grazing impacts upon streamside vegetation. Likewise, the Forest Service suggests that algae growth in the stream is primarily a function of temperature and light, not nutrient loading from cattle, and asserts that cattle feces have nothing to do with the reduced oxygen levels.
The Forest Service also notes that the river's steelhead habitat still is recovering from a 1964 flood that severely altered the morphology of the riverbed.
The Forest Service also claims that erosion caused by grazing is minimal and that sedimentation is almost entirely due to natural landslides in the steep inner gorge rather than any activity by cattle. Finally, it contends that compaction, even if it is occurring, takes place on such a minuscule percentage of the watershed area that it could not have any appreciable effect upon the overall hydrologic flow regime. In summary, the Forest Service agrees that the river provides only marginal steelhead habitat but suggests that the responsibility lies with the harshness of the habitat rather than with the effects of grazing.
The record substantiates some of plaintiffs' claims, but also suggests that the Forest Service is correct when it argues that cattle grazing is by no means the primary cause of the poor quality of the North Fork's steelhead habitat. A 1994 Transition Watershed Restoration Assessment prepared by the Forest Service, for example, suggests that grazing has degraded the river, and in particular states that grazing practices have led to nutrient blooms and that other effects of historic and current grazing can still be seen in the watershed. AR at 760, 763, 766. The report also describes the catastrophic effect of the 1964 flood and indicates that current grazing levels are far below historic levels, suggesting that current grazing is not the primary cause of poor habitat. AR at 763-66.
The Forest Service suggests that the Transitional Restoration Watershed Assessment was prepared in a relatively cursory fashion, involved no new research, and has been superseded by a 1996 Watershed Assessment and field studies in 2002, and therefore should not be relied upon. Of the studies it suggests superceded the TRWA, however, only the 1996 Watershed Assessment was completed prior to the issuance of the permits at issue in this case. The Watershed Assessment specifically acknowledges that "[n]o formal study of the effects of grazing on plant communities in the North Fork Eel River watershed has been done," AR at 1382, and its discussion of grazing impacts is not appreciably more detailed than that of the 1994 TRWA. The remaining studies, which are associated with more recent efforts to create an EIS addressing the impacts of grazing, are outside the record and the court will not consider them. Accordingly, even if the 1994 TRWA was hastily prepared, no other documents in the record appear to supplant or contradict it, and the court will not ignore it.
Likewise, a 1996 Watershed Assessment, also prepared by the Forest Service, contains generalized statements about the ways in which grazing may have affected the watershed. AR at 1382, 1385, 1427. It notes that "[f]ifteen to twenty percent of the riparian reaches sampled in the North Fork Eel River watershed in 1995 showed some visible effects of livestock grazing, but no details of the effects of grazing were collected." AR at 1382; see also AR at 1430. The Watershed Assessment also notes that the most severe effects of grazing occurred long ago when grazing intensity was much higher, however, AR at 1382, 1427, and discusses many other influences upon the watershed that have nothing to do with cattle. Although it does suggest that impacts to riparian vegetation may have some effect on the river, the Watershed Assessment also contains no conclusion that current grazing practices are influencing the overall hydrologic regime within the watershed. AR at 1417. Thus, the Watershed Assessment indicates that grazing was having some impact upon riparian habitat but that the Forest Service was uncertain about the extent of those impacts.
The record also contains some field observations of habitat damage caused by grazing. Perhaps the most unequivocal statements come from a 1995 Forest Service report prepared by a college student employed as a fisheries technician. After summarizing field observations from surveys on the North Fork and some of the larger tributaries, the report states that steelhead habitat conditions are poor and that "[c]attle are almost present over the entire drainage, trampling and thereby silting up spawning gravel, defecating in and around the wetted channel, and eating riparian vegetation." AR at 1093. Other than this statement, however, the report says little about the effects of cattle upon the drainage, only noting that in one location where cattle would have difficulty accessing the stream habitat conditions seemed especially good. AR at 1091. Such a statement is consistent both with plaintiffs' suggestion that cattle are causing habitat damage and with the Forest Service's contention that in places the steep and rocky nature of the drainage prevents such damage.
The Forest Service suggests that little weight should be given to the report of a college student without a background in biology. In her declaration, however, Karen Kenfield, the technician's former supervisor, noted that he worked for the Forest Service for six summers during which he "did acquire good field skills and the ability to produce trustworthy data." Second Kenfield Decl ¶ 24. Although the technician's observations might carry less weight than those of a career scientist, his comments document his observations and are consistent with statements elsewhere in the record. Accordingly, the court does not disregard these statements.
Forest Service monitoring reports also document that in some areas cattle grazing was having impermissibly heavy impacts upon riparian vegetation. AR at 1117, 1140, 1150. The few reports submitted are not sufficient to establish pervasive problems, but they do indicate that in some locations Forest Service standards were not being met and that riparian areas were being impacted.
Plaintiffs cite several other reports of violations, but these generally involve non-riparian vegetation.
Other agencies have drawn similar conclusions about the connections between grazing and steelhead habitat. In a 1997 opinion, the National Marine Fisheries Service ("NMFS") concluded that "grazing is expected to have some effect on the riparian reserves in all of the allotments and within the anadromous waters downstream. Cattle use, if extensive, on riparian habitat will alter the conditions of the reserve and potentially mobilize sediment through destabilizing of banks and increase temperature with loss of vegetation." AR at 1183. In the same document, however, NMFS concluded that sedimentation in the watershed was primarily due to natural landslides, that the lack of riparian vegetation was primarily due to periodic flooding, and that cattle grazing, if managed according to certain criteria, was likely to have only minimal effects on the watershed. AR at 1178-79, 1183.
Most recently, in its 2002 TMDL Report, the Environmental Protection Agency concluded that the North Fork of the Eel River contained fragile, marginal steelhead habitat. It also concluded, however, that such hostile conditions would naturally be found within the North Fork watershed.
The TMDL report also drew more specific conclusions about the current impacts of human activity upon the watershed and the importance of riparian vegetation, stating that riparian vegetation should not be at all disturbed but also that current management practices were not problematic. The former conclusion was based upon post-permit-issuance modeling, and the Forest Service notes that it was actively involved in providing EPA with information — much of which presumably was collected during 2002 field surveys that postdated the issuance of the permits — that EPA then used in developing the TMDL. Accordingly, the more specific conclusions in the TMDL fall outside the record and the court does not consider them.
In combination, all of this record evidence indicates that the North Fork is naturally a difficult place for steelhead to survive. It indicates that sedimentation in the river is almost entirely natural in origin, that near-lethal summer temperatures and low oxygen levels would be normal even under optimal conditions, and that low summer flows would limit the habitat's productivity even without cattle grazing. Moreover, it indicates that cattle grazing is having little appreciable effect upon sedimentation and suggests that it also has little impact upon the flow regime. The record also indicates, however, that cattle grazing is, in certain places, likely to have some effects upon sedimentation and upon bank stability, that cattle are defecating in the water, and, most importantly, that in some areas cattle are impacting riparian vegetation that might otherwise shade the river and its tributary streams, protect flow, and mitigate warm summer water temperatures.
In short, the record indicates that cattle grazing is causing slight to moderate degradation of a naturally fragile, hostile habitat. When a river's outstandingly remarkable value is a threatened species in severe decline, an activity that degrades that species' habitat even slightly to moderately cannot be consistent with protecting and enhancing that outstandingly remarkable value. The fact that steelhead habitat is under other stresses unrelated to grazing means that the impacts of grazing should more carefully be avoided rather than dismissed as de minimis; the Forest Service may not add more straws to an already heavily-burdened camel's back.
Although grazing may be a minor factor in degrading steelhead habitat in the North Fork Eel WSR, issuing the permits without considering the effect of grazing on the river's ORV was inconsistent with the WSRA. Accordingly, the court finds that the Forest Service acted arbitrarily and capriciously in issuing the permits, because it "entirely failed to consider an important aspect of the problem." Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Automobile Ins. Co.., 463 U.S. 29, 43 (1983). This is not to say that the Forest Service could not have justified the decision to allow grazing had it considered the effects on the steelhead habitat. By the admission of Forest Supervisor Woltering, however, the Forest Service failed in its obligations under the WSRA.
The evaluations prepared after the permits were issued, and which the court does not consider in its review of the record, indicate that the Forest Service was aware of the factors the agency should have considered under the WSRA.
As noted above, a plaintiff alleging a violation of the WSRA by a federal agency must bring the claim under the APA, as the WSRA contains no private right of action. For the reasons stated in the section discussing the NEPA and Rescissions Act claims, below, plaintiffs in this case are precluded from arguing, as do plaintiffs in other WSRA cases, that the Forest Service violated the WSRA by failing to complete an adequate environmental impact statement prior to issuing the permits, because only NEPA mandates the preparation of an ElS. The standard for independently determining, based on the substantive provisions of the WSRA, whether a final action by the Forest Service is arbitrary and capricious is not entirely clear. It is clear, however, that the Forest Service is required at a minimum to consider the effects on the ORV of a wild and scenic river before it issues a permit that allows grazing in the watershed of that river.
b. Claim of failure to preserve free-flowing condition
Section 1 of the WSRA states that designated rivers "shall be preserved in their free-flowing condition." 16 U.S.C. § 1271. Congress declared, in enacting the WSRA, that
the established national policy of dam and other construction at appropriate sections of the rivers of the United States needs to be complemented by a policy that would preserve other selected rivers or sections thereof in their free-flowing condition to protect the water quality of such rivers and to fulfill other vital national conservation purposes.16 U.S.C. § 1271. The WSRA defines "free-flowing" as "existing or flowing in natural condition without impoundment, diversion, straightening, rip-rapping, or other modification of the waterway." 16 U.S.C. § 1286(b). The statute provides that the existence of minor modifications to a river's free flow should not prevent designation of the river, but also states that once a river is designated no further modifications should be constructed, Id.
Plaintiffs argue that the Forest Service's diversions of water violate its duty to maintain the river in a free-flowing condition. In addition, they claim that by allowing cattle grazing to reduce infiltration and decrease water flows, the Forest Service has reduced the amount of water in the river, causing it to flow less freely. The diversions at issue, however, are generally removed from the river's main stem or major tributaries. The stockponds are dug into slopes away from natural streams and draw no water from such streams; the troughs, which the Forest Service asserts are no larger than bathtubs, draw small quantities of water from springs. Although the record is suggestive of some connection between cattle grazing, loss of riparian vegetation, and decreased flows, it also indicates that other factors more strongly control the level of water in the river.
Plaintiffs argue that the record states that cattle grazing has reduced flows in the river. The record does suggest a connection, but it does so indirectly. At AR 1417, where plaintiffs suggest the record clearly states that grazing has reduced flows, the record actually states only that flows in some ephemeral streams are reduced and makes general statements about the possible impacts, including reduced flows, of grazing. Elsewhere, the record does indicate that loss of riparian vegetation reduces flows. AR at 760. The record also indicates that cattle grazing has reduced riparian vegetation. AR at 1093, 1117, 1140, 1150, 1382, 1430. This suggests some connection between cattle grazing and flow levels. The record also indicates that water delivery in late summer is controlled primarily by the presence of coarse colluvium and fractured bedrock aquifers, neither of which would be altered by grazing, suggesting that the presence or absence of water during dry periods is in large part due to factors unrelated to grazing. AR at 1417.
In mandating in § 1 of the WSRA that rivers should remain "free-flowing," Congress appears to have been concerned with construction of dams or other alterations to the rivers themselves. See 16 U.S.C. § 1271. Protection of the watershed as a whole is accomplished by other parts, such as § 10(a), of the statute. Diversions from a minor tributary or watershed changes that result in losses of flow could, in combination with other effects upon the watershed, constitute a violation of the managing agency's duties under § 10(a), but they do not violate the duty to preserve the river's free flow. The North Fork Eel WSR remains undammed, unrip-rapped, and, with the exception of uses that preexisted designation, undiverted. Accordingly, the Forest Service has not violated its duty to preserve the river in a free-flowing condition.
Plaintiffs also argue that the Forest Service has violated its duty to protect the river by allowing diversions of water for agency and private use. The Frey Declaration, submitted by the Forest Service, indicates that some of the alleged uses are outside the watershed, that others have been discontinued, and that the remaining uses predated the designation of the river as wild. The statute indicates that new diversions are not to be constructed following designation, but it acknowledges that pre-existing uses or alterations may be present and does not indicate that they must be removed. Accordingly, these diversions also provide no basis for a claim that the Forest Service has failed to preserve the river's free flow.
In their amended complaint, plaintiffs also allege that the Forest Service has violated the WSRA by failing to quantify the amount of water needed to fulfill the purposes of the wild river designation and by failing to ensure that the needed amount of water remains in the river. In their moving and opposition papers, plaintiffs present this argument as a component of their claim that the Forest Service has illegally failed to preserve the river's free-flowing condition; they argue that the illegality of the Forest Service's withdrawals is compounded by the fact that the Forest Service has not determined how much water needs to remain in the river.
To the extent that this argument remains an independent claim, it must be a failure-to-act claim. Plaintiffs here challenge the absence of agency action, and can point to no affirmative act causing this alleged violation. Accordingly, the Court may compel action only if Plaintiffs show "agency recalcitrance . . . in the face of clear statutory duty or . . . of such magnitude that it amounts to an abdication of statutory responsibility." ONRC Action. 150 F.3d at 1137.
The WSRA creates a reserved right to the amount of water necessary to fulfill the purposes of the reservation. Nothing in the WSRA directly mandates, however, that an agency quantify that right. Quantifying the amount of water needed may be, as plaintiffs argue, a component of an effective management strategy for the river. Nevertheless, the Forest Service's failure to quantify the amount of water needed to fulfill the purposes does not amount to "recalcitrance . . . in the face of clear statutory duty or . . . abdication of statutory responsibility."Id.
3. NFMA Claims
Plaintiffs allege that in failing to prepare a management plan for the river, the Forest Service violated its duty under NFMA. NFMA requires the Secretary of Agriculture 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). The Forest Service must ensure that the forest plans provide for "multiple use and sustained yield of products and services . . . and, in particular, include coordination of outdoor recreation, range, timber, watershed, wildlife and fish, and wilderness." 16 U.S.C. § 1604(e). In providing for multiple uses, the forest plan must comply with the substantive requirements of NFMA that are designed to ensure continued diversity of plant and animal communities. 16 U.S.C. § 1604(g)(3)(B).
The Forest Service issued a Land Resource and Management Plan ("LRMP" or "forest management plan") for the Six Rivers National Forest in 1995. In that LRMP, the Forest Service stated the following goals:
1. Complete preparation of wild scenic river management plans consistent with the Wilderness and Wild Scenic Rivers Acts. In the interim, manage the upper reaches of the Middle Fork of the Eel River, Balm of Gilead, and a segment of the South Fork of the Trinity River consistent with Wild river and wilderness direction.
2. Provide for recreational use of the wild scenic rivers consistent with protection of wild river values (e.g., anadromous fisheries).
In addition, under "Goals," in a section labeled "Management Area 2 — Wild River," the LRMP stated that
[t]he natural state of the wild rivers within the Forest boundary will be maintained. Impacts due to river-related recreation will be monitored, and any restrictions on use will be defined in individual river management plans.
The LRMP also stated that "[g]razing schedules and intensities will be consistent with respective river management plans."
Plaintiffs assert that based on this language in the LRMP, the Forest Service was obligated to prepare a "river management plan," and argues that the Forest Service's failure to do so is a violation of NFMA. The claim that the Forest Service failed to prepare a river management plan for the river as required by the Forest Plan is a failure-to-act claim under the APA.
The Forest Service responds that plaintiffs cannot establish "agency recalcitrance amounting to an abdication of statutory responsibility."See ONRC Action, 150 F.3d at 1137. The Forest Service contends that "river management plans" are mentioned in the WSRA, but not in the NFMA, and also maintains, based on Wilderness Society v. Tyrrel, 918 F.2d 813 (9th Cir. 1990), that the requirement in the WSRA that the administering agency prepare a river management plan does not apply to state-proposed and managed rivers such as the North Fork Eel River. In Wilderness Society, the Ninth Circuit cautioned that "[c]ourts must be reluctant to mandate that a federal agency step through procedural hoops in effectuating its administrative role unless such procedural requirements are explicitly enumerated in the pertinent statutes." Id. at 817. Based on the fact that the WSRA does not expressly require a federal agency to prepare a management plan for a river designated by the Secretary before 1986, the court declined to read such a requirement into the statute.Id.
Some of the rivers protected under the WSRA were designated by Congress in the statute itself. Others, such as the North Fork Eel River, were designated by the Secretary, upon recommendation by the States in which they were located. The WSRA provides that Secretarially-designated rivers "shall be administered by the State . . . without expense to the United States other than for administration of federally-owned lands." 16 U.S.C. § 1273(a)(ii).
Defendants contend that the Forest Service is not required to do everything it says it will do in its forest plans because planning documents are not laws or regulations, and do not have the effect and force of law. Forest plans simply provide restrictions on later site-specific actions. See 16 U.S.C. § 1604(i) (resource plans and permits, contracts, and other instruments for the use and occupancy of National Forest System lands shall be consistent with the land management plans). For example, if a forest plan says that 5% of old-growth trees must be maintained in a particular area, a later site-specific plan to remove timber must stay within that limit.See Neighbors of Cuddy Mountain v. U.S. Forest Service, 137 F.3d 1372, 1377-78 (9th Cir. 1998).
Plaintiffs argue that the Forest Service was bound by the statements in the LMRP. They note that the forest plan states that "grazing schedules and intensities will be consistent with respective river management plans," and argue that this provision clearly links site-specific grazing with the duty to prepare a river management plan. They also argue that this provision restricts later "site-specific actions," because it makes grazing that affects the North Fork Eel WSR contingent on standards in a river management plan that must be completed. Plaintiffs cite to Appendix O of the final environmental impact statement for the LMRP, which states that
[t]he outstandingly remarkable values of all the designated wild and scenic rivers will be protected through the designation of corridor boundaries; programmatic standards and guidelines included in the final Plan, and additional management direction and standards and guidelines in the individual wild and scenic river management plans. Plans have already been developed for the Smith River and the Lower South Fork Trinity River; plans for the remaining rivers will be developed by 1997.
(Emphasis added.) Plaintiffs argue, based on this language, that the Forest Service was obligated to prepare a river management plan for the North Fork Eel River.
Plaintiffs cite three cases in support of their argument that the Forest Service should not be excused from complying with the standards set forth in the forest plan. Idaho Sporting Congress v. Thomas, 137 F.3d 1146 (9th Cir. 1998), involved a challenge to the adequacy of an EIS prepared pursuant to NEPA, regarding the proposed sale of timber from a watershed, and a claim that the Forest Service had violated NFMA by failing to monitor the trout population as required by its Forest Land Management Plan. Most of the Ninth Circuit's discussion concerns the NEPA claim. In addressing the NFMA claim, which centered on whether the Forest Service had used the correct scientific methodology in tracking the local trout populations, the court simply stated that Forest Service site-specific plans must be consistent with forest-wide Land Management Plans, and that the court would defer to the agency's expertise in interpreting its own Land Management Plan. The court added that the Forest Service should address the adequacy of the habitat in an EIS. id, at 1153-54.
Neighbors of Cuddy Mountain v. U.S. Forest Service involved an attempt to enjoin the sale of timber in National Forest lands, based on an asserted violation of NEPA, and also based on the failure of the Forest Service to comply with NFMA's requirement that there be a showing that a site-specific project would be consistent with the land resource management plan of the entire forest. The court found that the Forest Service had failed to comply with NFMA when it evaluated whether a sufficient percentage of old-growth trees would remain in the entire sale area, rather than "within each theoretical pileated woodpecker home range," as required by the forest management plan. Cuddy Mountain, 137 F.3d at 1377-78. As with Idaho Sporting Congress, this was a finding that a site-specific plan must be consistent with the forest-wide management plan.
Montana Wilderness Ass'n v. U.S. Forest Serv., 314 F.3d 1146 (9th Cir. 2003), involved a challenge to the Forest Service's administration of the Montana Wilderness Study Area as mandated by the Montana Wilderness Study Act, which required the Forest Service to administer the study area so as to "maintain" its wilderness character and potential for inclusion in the Wilderness System. The main issue was whether the court had jurisdiction under either the "final agency action" provision of the APA or the "failure to act" provision. The case did not involve a forest management plan or NFMA.
The court finds that the Forest Service was not required under NFMA to prepare a river management plan for the North Fork Eel WSR. First, the Six Rivers National Forest LRMP did not clearly state that a river management plan would be prepared for the wild and scenic rivers in the North Fork Eel Wilderness. Second, there is no obligation under NFMA to prepare a river management plan, nor under WSRA for rivers that are Secretarially-designated. Third, even assuming that there was some indication in the forest management plan that a river management plan was to be prepared for the North Fork Eel WSR, plaintiffs do not allege that the Forest Service has taken any site-specific action that is inconsistent with the forest management plan.
Moreover, as defendants note in their reply in support of their motion, the chapter of the LRMP that contains the directions and standards states that the wild and scenic rivers in the Yolla Bolly-Middle Eel Wilderness area will get river management plans, but in the discussion of wild river management for the North Fork Eel Wilderness, there is no such statement.
d. NEPA and Rescissions Act Claims
Plaintiffs claim that the renewal of the three grazing permits in 2001 and 2002 violated NEPA because the Forest Service did not complete the required environmental impact statement prior to issuing the permits. NEPA is a comprehensive statute that establishes a process whereby federal agencies must consider the effects of their actions on the environment. 42 U.S.C. § 4332. Under NEPA, the Forest Service must prepare a detailed statement on the environmental impact when it proposes any major action. 42 U.S.C. § 4332(C). There is no dispute that the issuance of a livestock grazing permit is an agency action that requires an EIS under NEPA. Greater Yellowstone Coalition v. Bosworth, 209 F. Supp.2d 156, 160 (D.D.C. 2002) (citingNatural Resources Defense Council v. Morton, 388 F. Supp. 829, (D.D.C. 1974), aff'd without opinion, 527 F.2d 1386 (D.C. Cir. 1976)).
In November 1994, in response to various court decisions, the Forest Service implemented a policy requiring that NEPA analyses be conducted in connection with the reissuance of any grazing permit. Greater Yellowstone, 209 F. Supp.2d at 158. Because of the large number of grazing permits issued every year, the Forest Service was unable to complete all the NEPA analyses prior to reissuing the permits.Id. In response to the threat that many permits would expire and not be reissued because of the lack of a NEPA analysis, Congress included as part of the Rescissions Act, Pub.L. No. 104-19, 109 Stat. 194 (1995), a provision establishing a temporary exemption from NEPA review for those permits that were up for reissuance before the NEPA review for that allotment had been completed, Id.
Thus, while the actual issuance or non-issuance of grazing permits is generally not judicially reviewable, the failure to conduct a required environmental analysis is reviewable under the APA.
The Rescissions Act directed each National Forest toestablish and adhere to a schedule for the completion of NEPA analyses and decisions on all of the allotments within that Forest. Rescissions Act, § 504(a), 109 Stat. 194. It also provided that if a permit came up for reissuance before the date established for completion of the NEPA review, the Forest Service must reissue the permit under the same terms and conditions as the previous permit, but included the caveat that the terms and conditions would be subject to modification based on the results of the NEPA analysis, Id. § 504(b).
Section 504 of the Rescissions Act provides as follows:
(a) SCHEDULE FOR NEPA COMPLIANCE — Each National Forest System unit shall establish and adhere to a schedule for the completion of National Environmental Policy Act of 1969 ( 42 U.S.C. § 4321 et seq.) analysis and decisions on all allotments within the National Forest System unit for which NEPA analysis is needed. The schedule shall provide that not more than 20 percent of the allotments shall undergo NEPA analysis and decisions through fiscal year 1996.
(b) REISSUANCE PENDING NEPA COMPLIANCE — Notwithstanding any other law, term grazing permits which expire or are waived before the NEPA analysis and decision pursuant to the schedule developed by individual Forest Service System units, shall be issued on the same terms and conditions and for the full term of the expired or waived permit. Upon completion of the scheduled NEPA analysis and decision for the allotment, the terms and conditions of existing grazing permits may be modified or re-issued, if necessary to conform to such NEPA analysis.
(c) EXPIRED PERMITS — This section shall only apply if a new term grazing permit has not been issued to replace an expired or waived term grazing permit solely because the analysis required by NEPA and other applicable laws has not been completed and also shall include permits that expired or were waived in 1994 and 1995 before the date of enactment of this Act.
Thus, in accordance with section 504(a) of the Act, the Forest Service established a schedule for the completion of NEPA analyses for livestock allotments in the Mad River Ranger District, which includes the five allotments that include, border upon, or are adjacent to the North Fork Eel WSR. The Service's schedule provided that NEPA analyses and decisions would be completed for the five allotments by 1999. The Forest Service did not meet this deadline with regard to any of the allotments.
The Forest Service reissued three permits after the expiration of the deadline for the completion of the NEPA analysis. The Forest Service initially asserted in response to plaintiffs' claims that under section 504(b), it was required to issue permits for those allotments, pending completion of the NEPA analysis. Thus, the Forest Service argued, the reissuance of the permits was a "ministerial," or mandatory act, rather than a discretionary act, and therefore not subject to judicial review.
Plaintiffs contended, however, that the Forest Service had misconstrued the Rescissions Act. Plaintiffs noted that the Rescissions Act requires the Forest Service to establish and adhere to a schedule for completion of the necessary NEPA analysis, and allows a limited exception to the rule that grazing permits cannot be reissued until a NEPA analysis has been completed by providing that any permit that expires prior to date scheduled for the completion of the NEPA analysis shall be reissued under the same terms and conditions as the previous permit. Plaintiffs asserted that the only ministerial act authorized by the Rescissions Act is this reissuance of expired permits, and argued, in essence, that once the date scheduled by the Forest Service for completion of the NEPA analysis has passed, the reissuance of permits for the affected allotments is no longer required or even authorized by the Rescissions Act.
As for the Rescissions Act claim, plaintiffs' argument is correct. The limited exception to the NEPA requirement, which was authorized by the Rescissions Act, ended as of the completion date established by the Forest Service (1999). Therefore, any reissuance of expired permits after that scheduled completion date cannot be viewed as a ministerial act under the Rescissions Act because it falls outside the purview of the Act. As the court stated in Greater Yellowstone, "The Rescissions Act's plain language indicates without ambiguity that the Service may not amend its § 504(a) schedule for NEPA compliance. . . . [W]hen Congress commanded the Service to `establish and adhere to a schedule' for NEPA compliance, it left no room for the Service to later modify that schedule." Greater Yellowstone, 209 F. Supp.2d at 161 (citations and quotations omitted). The court emphasized that "Congress did not grant the Service an indefinite time to get the NEPA work done. To the contrary, it insisted that it be done within a certain period of time and that the Service maintain the schedule it set within that period." Id. at 162.
To adopt defendants' position, that the reissuance of the grazing permits was a "ministerial act" because the Service was required by the Rescissions Act to reissue any expired permits pending completion of the NEPA analysis would be to find that the purpose of the Rescissions Act was to relieve permittees entirely of the consequences of the Service's not completing its NEPA obligations. See Id. The Rescissions Act plainly created a temporary — not an indefinite — exemption from NEPA. To find otherwise would be to allow the permittees and the Service to make an end run around NEPA.
The Forest Service now argues that the question whether the Rescissions Act did or did not legitimize the renewal of the grazing permits is no longer before the court, in light of the recent enactment of the § 328 of the 2003 Omnibus Appropriations Law, Public Law 108-7, 117 Stat. 11 (2003), Consolidated Appropriations Resolution of 2003, which provides that grazing permits expiring in 2003 shall be reissued and "shall continue in effect" until the Forest Service has completed the "processing of the renewed permit[s] in compliance with all applicable laws and regulations," i.e., in conformance with NEPA.
Section 328 of the 2003 Consolidated Appropriations Resolution provides, in part, that a permit issued by the Secretary of Agriculture for grazing on National Forest System lands, which expires during fiscal year 2003, shall be reissued under the appropriate federal statute — e.g., section 19 of the Granger-Thye Act, as amended, 16 U.S.C. § 5801 — and that the terms and conditions in the expired permit shall continue in effect until the Secretary of Agriculture completes the processing of the permit. In addition, where the Secretary of Agriculture has renewed an expired permit for grazing on National Forest System lands during fiscal year 2003 "under the authority of section 504 of the Rescissions Act of 1995," the terms and conditions of the renewed grazing permit "shall remain in effect until the Secretary of Agriculture completes processing of the renewed permit in compliance with all applicable laws and regulations or until the expiration of the renewed permit, whichever comes first."
Plaintiffs argued in their opposition to defendants' motion that the provisions of § 328 do not apply to permits that were reissued prior to 2003, asserting that § 328 is limited by the phrase "under the authority of Section 504 of the Rescission Act of 1995," which they claimed has the effect of narrowing the applicability in this case to permits that are reissued in 2003. Plaintiffs also asserted that the earlier-reissued permits could not have been issued "under the authority of . . . the Rescissions Act" because the Forest Service did not follow its own schedule for completing the NEPA analysis (the EIS), as mandated by the Rescissions Act, and that the only permits that were renewed "under the authority of the Rescissions Act were the permits that were renewed before the NEPA schedule deadline.
On April 7, 2003, however, Congress voted to amend § 328 to eliminate the phrase "under the authority of Section 504 of the Rescissions Act." See Emergency Wartime Supplemental Appropriations Act of 2003, Pub.L. No. 108-11, 2003 U.S.C.C.A.N. ( 117 Stat. 559) (amending Section 328 of Consolidated Appropriations Resolution of 2003, Pub.L. No. 108-7, 2003 U.S.C.C.A.N. ( 117 Stat. 11)276). The April 12, 2003, report from the committee of conference on H.R. 1559, "making emergency wartime supplemental appropriations for the fiscal year 2003, and for other purposes," stated as follows:
Sec. 2401. The managers are concerned that an ambiguity may exist with respect to Section 328 of Division F of Public Law 108-7 concerning grazing permits issued by the Forest Service. This ambiguity may lead to court decisions that are not consistent with Congressional intent. The intent of Section 328, among other things, was that no grazing permit should be invalidated because the Forest Service had not completed the allotment analysis prior to the date listed in a 1996 Forest Service schedule adopted by the agency pursuant to Section 504 of the Rescissions Act. Accordingly, this section has been included to remove the clause," . . . under the authority of Section 504 of the Rescissions Act of 1995 (Public Law 104-19)" from Section 328. The managers reiterate that any Forest Service grazing permit issued to replace a permit that expired after the date for analysis of the allotment in the 1996 schedule is valid even though the allotment analysis may not have been completed by the due date in the 1996 schedule.
This section does not exempt the Forest Service from completing the environmental analysis of grazing allotments on the 1996 Schedule. It simply allows for the continuation of ongoing activities while the required environmental analysis is completed. The managers emphasize that this provision does not prevent the Forest Service from taking appropriate action consistent with agency policies and procedures to address violations of permit terms and conditions.
H.R. Conf. Rep. No. 76, 108th Cong., 1st Sess. 2003, tit. 1, chap. 4, sec. 2401, 2003 WL 1876184; see also 149 Cong.Rec. H3357-05 at H3382-H3383, 2003 WL 1867103 (Cong.Rec., April 12, 2003) (emphasis added).
Plaintiffs concede that the effect of the amendment is that new § 328 does apply to the permits in this case. Under new § 328, the three grazing permits that were reissued before 2003 without an environmental analysis as required by NEPA, and after the mandatory date on the schedule for such an analysis, must remain in effect until they are processed or until they expire, whichever comes first.
Nevertheless, the recent modification of § 328 does not affect plaintiffs' claim for a declaratory judgment that the Forest Service violated NEPA by issuing permits in 2001 and 2002 without the required analysis, and violated the Rescissions Act by failing to complete the analysis by the scheduled date in 1999. The only effect of § 328 on the present case is that it limits the court's authority to issue certain types of injunctive relief based on those declarations of law.
CONCLUSION
In accordance with the foregoing, plaintiffs' motion for summary judgment is GRANTED in part and DENIED in part, and defendants' motion for summary judgment is GRANTED in part and DENIED in part.
Plaintiffs' motion is GRANTED as to the WSRA claims, to the extent that the court finds that the Forest Service acted arbitrarily and capriciously in reissuing the three grazing permits without first considering the effect of grazing on the North Fork Eel WSR's outstandingly remarkable value — the steelhead. Plaintiffs' motion is GRANTED as to the NEPA and Rescission Act claims, to the extent that the court finds that the Forest Service unlawfully failed to adhere to the schedule for compliance with the NEPA analysis requirements. Otherwise, plaintiffs' motion is DENIED.
Defendants' motion is GRANTED as to the WSRA claims, to the extent that the court finds that the Forest Service has not violated its duty to maintain the North Fork Eel WSR in a free-flowing condition. Defendants' motion is GRANTED as to the NFMA claim. Otherwise, defendants' motion is DENIED.
The motions to strike are GRANTED in part and DENIED in part, as indicated in the foregoing order.
This order fully adjudicates the motions listed at Nos. 63, 76, 91, and 99 on the clerk's docket for this case.
IT IS SO ORDERED.