Opinion
No. C 00-0713 SC
January 22, 2001
ORDER GRANTING DEFENDANTS' AND INTERVENORS' MOTIONS FOR SUMMARY JUDGMENT
I. INTRODUCTION
In the above-titled action, Environmental Protection Information Center and numerous other organizations ("Plaintiffs") are suing Andrea Tuttle, in her official capacity as Director of the California Department of Forestry ("CDF"), Bob Kersteins, in his official capacity as the Chairperson of the California State Board of Forestry, and Mary Nichols, in her official capacity as Secretary of Resources of the California Resources agency, (collectively "Defendants") for alleged violations of the Endangered Species Act, 16 U.S.C. § 1531 et sect. American Forest Paper Association and California Forestry Association ("Intervenors") moved to intervene as defendants under Federal Rule of Civil Procedure 24. The Court granted Intervenors' motion and denied Plaintiffs' motion for a preliminary injunction following a hearing on June 23, 2000. Now before the Court are Defendants' and Intervenors' motions for summary judgment.
II. BACKGROUND
This case concerns the State of California's regulation of private timber harvesting in Northern California. Specifically, Plaintiffs contend that the individual state officers have violated and continue to violate federal endangered species provisions protecting the coho salmon through promulgation of Forest Practice Rules.
A. The Endangered Species Act
Congress enacted the Endangered Species Act ("ESA") in response to growing public concern about extinctions of various species of fish, wildlife, and plants caused by "economic growth and development untempered by adequate concern and conservation." Forest Conservation Council v. Rosboro Lumber Co., 50 F.3d 781, 783 (9th Cir. 1995); 16 U.S.C. § 1531 (a). The purpose of the ESA is "to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved, and to provide a program for the conservation of endangered species and threatened species." 16 U.S.C. § 1531 (b). To achieve this purpose, the ESA authorizes citizen suits "to enjoin any person . . . who is alleged to be in violation of any provision of this chapter or regulation issued under authority thereof." 16 U.S.C. § 1540 (g)(1)(A).
Section 9 of the ESA, codified at 16 U.S.C. § 1538 (a)(1)(B), makes it unlawful for a person to "take" any endangered or threatened species of fish or wildlife within the United States. 16 U.S.C. § 1538 (a)(1)(B). "Take," in the ESA is defined to mean "harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct." 16 U.S.C. § 1532 (19). The National Marine Fisheries Service ("NMFS"), the body with ESA authority over the coho salmon at issue here, defines "harm" as:
[a]n act which actually kills or injures fish and wildlife. Such an act may include significant habitat modification or degradation which actually kills or injures fish or wildlife by significantly impairing essential behavioral patterns including breeding, spawning, rearing, migrating, feeding or sheltering.50 C.F.R. § 222.102. A virtually identical definition of 'harm' has been upheld against challenge by the Supreme Court. See Babbit v. Sweet Home Chpt. of Communities for a Great Oregon, 515 U.S. 687 (1995).
In 1996 and 1997, NMFS listed the Central California and the Southern Oregon/Northern California Coast populations of coho salmon as threatened species under the ESA. See 61 Fed. Reg. 56138, 62 Fed. Reg. 24588. In its listing decisions, NMFS concluded that the decline in the populations of coho salmon in these areas was due to both human and natural causes, including logging, removal of large woody debris, and destruction of riparian shade canopy. See 61 Fed. Reg. 56147; 62 Fed. Reg. 24592.
B. California Regulation of Private Land Timber Harvesting
The State of California regulates timber harvesting on private lands pursuant to the Z'berg-Nejedly Forest Practice Act of 1973 ("FPA"). Under the FPA, a party seeking to conduct commercial timber operations on private lands must submit a Timber Harvesting Plan, or a Nonindustrial Timber Management Plan, (collectively "THP") to the California Department of Forestry ("CDF") for approval. The THP is then approved, rejected, or modified by the CDF. Any approved THP is awarded a timber harvesting permit, and harvesting operations may proceed.
The California Board of Forestry, part of CDF, is authorized to adopt Forest Practice Rules ("FPRs") which contain standards to be used in preparing and evaluating THPs. Pub. Res. Code §§ 4551-2. To be approved, a THP must comply with the FPRs' numerous specifications concerning the site and manner of acceptable timber harvesting practices. Id., 14 C.C.R. § 895-1115.3. The FPRs constitute minimum standards for approval of a THP. Importantly, one FPR requires that CDF "shall disapprove a plan" if the implementation of that plan as proposed would result in a "'taking' . . . of wildlife specie" listed as endangered or threatened. 14 C.C.R. § 898.2(d). Thus, any THP that otherwise complies with the FPRs must be rejected if it would result in a "take" in violation of the ESA. See id.
C. Procedural Background
Plaintiffs filed their complaint on March 1, 2000, alleging violations of Section 9 of the ESA with respect to the coho salmon in Northern California. Specifically, Plaintiffs contend that the CDF-enacted FPRs contain standards for use in formulating and evaluating THPs that fail to adequately prevent unlawful "take" of coho salmon. Plaintiffs allege that Defendants, through their regulation of and authority over private timber harvesting in California, "allow and authorize acts that exact a taking of coho salmon," and thereby incur liability under Section 9 of the ESA.See Compl. ¶¶ 65-68. By their complaint, Plaintiffs seek a declaratory judgment that the Defendants are in violation of Section 9 of the ESA, an injunction preventing Defendants from authorizing, approving or otherwise permitting timber harvesting activities in California that have resulted in and continue to result in take of coho salmon, and attorneys fees. Compl. at 30.
On March 30, 2000 American Forest and Paper Association, a national trade association representing wood-related interests, and the California Forestry Association, a California nonprofit organization representing the forest products industry moved to intervene in the case. Plaintiffs moved for a preliminary injunction on May 19, 2000, to prevent Defendants "from approving, authorizing or otherwise permitting logging and associated operations pursuant to the California Forest Practice Rules" and declaring that the FPRs "are likely to result in an unlawful 'take' of coho salmon." Mot. for Prelim. Inj. at 2.
The Court heard the motion to intervene and the motion for a preliminary injunction on June 23, 2000. The Court granted the motion to intervene and denied Plaintiffs' motion for a preliminary injunction.
Defendants and Intervenors now move for summary judgment. Both parties argue that Plaintiffs' challenge fails on ripeness grounds. Further, both contend that Plaintiffs fail to adequately make out a facial challenge to the relevant FPRs. Both parties also argue that partial summary judgment is separately warranted on Plaintiffs' claim for an injunction to stop timber harvesting pursuant to previously approved THPs.
III. LEGAL STANDARD
The standards for considering a motion for summary judgment are well settled. Summary judgment is proper only when there is no genuine issue of material fact and, when viewing the evidence in the light most favorable to the nonmoving party, the movant is clearly entitled to prevail as a matter of law. See Fed.R.Civ.P. 56(c); Cleary v. News Corp., 30 F.3d 1255, 1259 (9th Cir. 1994). Once a summary judgment motion is made and properly supported, the nonmoving party may not rest on the mere allegations of its pleadings, but must set forth specific facts showing that there is a genuine issue for trial. See Fed R. Civ. P. 56 (e); Celotex Corp. v. Myrtle Nell Catrett, 477 U.S. 317 (1986). In addition, to withstand a proper motion for summary judgment, the nonmoving party must show that there are "genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986)
IV. ANALYSIS
Defendants' and Intervenors' attack on Plaintiffs' claims come in three forms. First, they argue that Plaintiffs' claim to enjoin timber harvesting pursuant to previously-approved THPs cannot be maintained. Second, they argue that Plaintiffs' remaining claims against the FPRs and future THPs are not ripe for adjudication. Third, they argue that Plaintiffs' claims constitute an improper and untenable facial challenge to a state agency regulation.
A. Plaintiffs' claim against previously-approved THPs
Plaintiffs' claims implicate THPs that were approved prior to the filing of this lawsuit, and pursuant to which timber harvesting has either commenced or will soon commence. In the complaint, Plaintiffs seek an "injunction preventing Defendants from authorizing, approving or otherwise permitting timber harvesting activities in California that have resulted in and continue to result in take of coho salmon." Compl. at 30. In their motion for a preliminary injunction, Plaintiffs sought to enjoin Defendants "from approving, authorizing or otherwise permitting logging and associated operations pursuant to the California Forest Practice Rules." Ptff. Mot. for Prelim. Inj. at 2. These requests seek to enjoin not just the approval of future THPs, but the permission of timber harvesting activity under previously approved THPs.
Plaintiffs recently professed to have abandoned these claims. In their opposition to Defendants' and Intervenors' motions, Plaintiffs stated "while Plaintiffs sought such relief at the preliminary injunction stage, at all further stages of these proceedings plaintiffs intend to seek injunctive relief against defendants only to prohibit them from approving timber harvest activities in the future. . . ." Ptff. Opp to Mot. for Summ. Jmt. at 1.
Plaintiffs' abandonment of this claim is well advised. The Eleventh Amendment of the U.S. Constitution bars suits against States and State agencies. Idaho v. Coeur D'Alene Tribe of Idaho, 521 U.S. 261, 267-8 (1997). However, under a narrow exception found in Ex Parte Young, 209 U.S. 123 (1908), state officials can be sued in their official capacity for prospective relief to stop ongoing violations of federal constitutional or statutory law. See Seminole Tribe of Florida v. Florida, 517 U.S. 44, 76 (1996); Ex Parte Younq, 209 U.S. 123 (1908). Plaintiffs cannot maintain an action for past violations of federal law.Coeur D'Alene Tribe of Idaho, 521 U.S. at 288. Consequently, Plaintiffs' claims for declaratory and injunctive relief, to the extent that they seek to remedy past violations of federal law, cannot be maintained in this action. For this reason, Defendants' and Intervenors' motions for partial summary judgment, concerning Plaintiffs' claim on timber harvesting pursuant to previously approved THPs, are HEREBY GRANTED.
B. Ripeness of prospective claim challenging FPRs
Defendants' and Intervenors' challenge Plaintiffs' claims as not ripe for judicial review. Ripeness is a justiciability doctrine determining when judicial review is appropriate. The doctrine concerns when matters are premature for review, and when matters are appropriately specific and advanced to merit federal court consideration. It is aimed at cases that do not yet have a concrete impact on the parties.
Whether a claim is ripe for adjudication implicates the Court's subject matter jurisdiction under the "case and controversy clause" of Article III of the United States Constitution. See U.S. Const. art. III, § 2; St. Clair v. City of Chico, 880 F.2d 199, 201 (9th Cir. 1989). As stated by the Supreme Court, the ripeness requirement is designed
to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties.Ohio Forestry Association v. Sierra Club, 523 U.S. 726, 732-33 (1998) (quoting Abbott Laboratories v. Gardner, 387 U.S. 136, 148-9 (1967)). Application of the ripeness doctrine also enhances the quality of judicial decision-making by ensuring that there is an adequate record to permit effective review.
When deciding whether an action is ripe for judicial review, courts generally examine both "the hardship to the parties of withholding court consideration," and the "fitness of the issues for judicial decision."See Ohio Forestry, 523 U.S. 733; Abbott Laboratories, 387 U.S. at 149. These 'hardship' and 'fitness' components do not constitute a test to be strictly adhered to, but rather embody considerations to be analyzed and used in determining if an action is indeed ripe.
In Ohio Forestry, a case with very similar facts to the present case, the Supreme Court broke down the 'hardship' and 'fitness' components of ripeness analysis into three necessary considerations:
(1) whether delayed review would cause hardship to the plaintiffs; (2) whether judicial intervention would inappropriately interfere with further administrative action; and (3) whether the courts would benefit from further factual development of the issues presented.Ohio Forestry, 523 U.S. 733. In Ohio Forestry, plaintiffs challenged a federal Forest Plan as permitting and approving excessive logging and clear cutting in violation of the National Forest Management Act of 1976. On federal lands, prior to conducting timber harvesting operations, a timber company must propose a particular logging operation, ensure that the proposed operation complied with the federal Forest Plan, conduct evaluations and reviews, and receive a Forest Service permit for each specific logging operation. Ohio Forestry, 523 U.S. at 729. After analyzing the three ripeness considerations, the Supreme Court found that the Sierra Club's challenge to the Plan was not ripe for review, and remanded the case with instructions to dismiss. Ohio Forestry, 523 U.S. 739. Careful consideration of these factors in the present case leads the Court to the same conclusion as the Supreme Court in Ohio Forestry.
First, withholding court consideration, or delaying court review at present, will not cause Plaintiffs significant hardship as defined by the Supreme Court. The FPRs themselves do not create adverse effects that could traditionally qualify as harm. The FPRs, as the Court noted about the Forest Plan in Ohio Forestry, "do not command anyone to do anything or to refrain from doing anything: they do not grant, withhold, or modify any formal legal license, power or authority; they do not subject anyone to any civil or criminal liability; they create no legal rights or obligations." Ohio Forestry, 523 U.S. at 733.
The FPRs do not, by themselves, give anyone the legal right to cut trees, nor do they abolish anyone's legal authority to object to trees being cut. Instead, the FPRs provide a set of requirements that a THPmust comply with in order to be considered. The FPRs therefore act as a guide and a minimum standard. However, the FPRs are necessary, not sufficient conditions to commencing timber harvest operations. Compliance with the FPRs gives a private timber harvester no more a legal right to actually commence operations than does the presence of timber itself. The timber harvester must receive a permit signifying the approval of their specific THP before commencing operations. That permit is only granted after CDF has considered the THP and had an opportunity to modify its terms. Therefore, it is the approval of each permit that Plaintiffs should challenge. Withholding court consideration here alters the forum and posture of a challenge to private timber harvests. It does not prevent Plaintiffs from making a challenge. Any specific THP can be challenged by Plaintiffs as violating the ESA. Plaintiffs therefore have ample time and ability to bring a legal challenge to the THPs.
Plaintiffs spend little time addressing the Ohio Forestry analysis. However, Plaintiffs appear to argue that they will suffer a substantive harm in a case-by-case framework. Plaintiffs argue that such an approach fails to properly consider the cumulative degradation of coho habitat caused by the failure of THPs to incorporate a watershed analysis. Instead, they claim that approach focuses only on site-specific inadequacies.
The Court sees no reason why Plaintiffs' concerns cannot be presented in a site-specific challenge to a THP. When considering the more precise factual development of a particular THP challenge, such cumulative arguments could carry more weight. Without question, such arguments will have a sharper focus and will concern specific facts.
Moreover, as the Supreme Court stated in Lujan v. National Wildlife, and quoted in Ohio Forestry, "[t]he case-by case approach . . . is understandably frustrating to an organization such as [Plaintiffs] which has as its objective across-the-board protection of our Nation's . . . forests . . . But this is the traditional, and remains the normal, mode of operation of the courts." See Ohio Forestry, 523 U.S. at 734 (quotingLujan v. National Wildlife Federation, 497 U.S. 871, 894 (1994). While Plaintiffs here may also be frustrated with challenging particular THPs rather than the FPRs, they suffer no legally significant hardship in being forced to do so.
Second, judicial intervention at this stage would inappropriately interfere with further administrative action. In developing a proposed THP, a timber developer could decide to include greater coho protections than contained in the FPRs. Similarly, in determining whether to grant, deny, or modify a THP before approval, the Board has discretion to add greater protections. Moreover, the FPRs prohibit THP approval that would result in harm to the coho salmon as defined by the ESA. In such a circumstance, the CDF is required to either modify or reject that THP.
Judicial intervention at this stage would undoubtedly interfere with the administrative process envisioned by the ESA. Judicial review of the FPRs contents would hinder CDF efforts to revise its policies, in cooperation with NMFS and Plaintiffs so as to eliminate potential takes of coho in certain areas while allowing for acceptable timber harvest in other areas. The Court sees no benefit in substituting its own judgment at this time for that of CDF, working in conjunction with private timber harvesters, NMFS, Plaintiffs, and all citizens in the agency framework created by the Congress and the California legislature.
Third, from the courts' perspective, review of Plaintiffs' claims regarding the FPRs would require time-consuming judicial consideration of details of an elaborate regulatory scheme. As was the case in Ohio Forestry, the review would have to take place "without benefit of the focus that a particular logging proposal could provide." Ohio Forestry, 523 U.S. at 736. Considering the case now would require speculation and generality concerning the likelihood that a THP would be approved containing no more standards than those contained in the FPRs, and the likelihood that such a THP would result in a take of coho salmon as defined by the ESA. Instead of considering these likelihoods, the Court needs to concern itself with more distinct and developed facts.
Plaintiffs' arguments in opposition to Defendants' and Intervenors' motions fail to convince the Court that the present action is indeed ripe. Plaintiffs devote much of their brief in support of the relatively unremarkable proposition that regulatory agencies can be liable under the ESA. See Ptff. Opp. at 3-12. The Court does not dispute, and indeed fully agrees with, this proposition. However, the mere fact that a regulatory agency can be found liable under the ESA neither satisfies nor obviates ripeness requirements. Ripeness considerations arise from the cases and controversies requirement of Article Three of the United States Constitution. See U.S. Const. art. III, § 2. They must be satisfied in any case in this Court, regardless of the basis for the claim.
Plaintiffs next argue that the limitations to and loopholes within CDF's discretion to reject a THP make their claim ripe. Plaintiffs contend that these limitations "make it clear that the Rules on their face are insufficient to provide legal assurances against take of coho." Ptff. Opp. at 18. Not only does the regulatory scheme controlling the approval of THPs give CDF the discretion to alter, modify, or reject a proposed THP, CDF is required to do so if the THP violates the ESA. Should CDF fail to modify or reject such a proposal, a suit challenging CDF's actions would certainly be ripe. A suit brought before a final action by CDF is not.
Finally, cases cited by Plaintiffs do not support a finding that the present action is ripe. Plaintiffs cite Forest Conservation Council v. Rosboro Lumber Co., 50 F.3d 781 (9th Cir. 1995) and Marbled Murrelet v. Babbit, 83 F.3d 1060 (9th Cir. 1996) as supporting their position. The Court's finding that the present action is not ripe conflicts with neither of these cases.
Both Forest Conservation Council and Marbled Murrelet concerned specific threats to endangered or threatened species from an approved and imminent timber harvest in a distinct area. In Forest Conservation Council Plaintiffs sued to stop an approved private timber harvest due to the threat of a take of a spotted owl pair in the Swartz Creek area. 50 F.3d at 782. In Marbled Murrelet, Plaintiffs sued to stop a private timber harvest in Owl Creek, an isolated 440-acre stand of old-growth redwoods in Humboldt County, California. 83 F.3d at 1060. In both cases, the threat of harm is precisely the type Plaintiffs should challenge on a case by case basis. Plaintiffs in these cases do not challenge CDF standards (FPRs) or their equivalents. Plaintiffs in these cases point to particular instances with specific facts concerning the likelihood of a take. Rather than speculative evidence, these cases develop a more reliable and narrow factual basis. Instead of challenging regulations which could result in a take, if coho salmon are in the watershed, if the THP concerns such a watershed, and if no other specifications are added or modified, plaintiffs there challenged individual and particular circumstances which the courts are well equipped to consider. Plaintiffs did not attempt a broad programmatic change. They challenged a specific violation of the Endangered Species Act.
The difficulties of adjudicating such broad programmatic challenges as this to admittedly imperfect regulatory schemes are well documented. See Ohio Forestry, 523 U.S. at 733; Lujan, 497 U.S. at 894; Allen v. Wright, 468 U.S. 737, 759-760 (1984); Sierra Club v. Peterson, 228 F.3d 559, 568 n. 12 (5th Cir. 2000); Wilderness Society v. Thomas, 188 F.3d 1130 (9th Cir. 1999). The expanse, specificity, and complexity of the FPRs make programmatic changes necessary on an agency level first, not in the courts. The agencies involved are in a better position to accumulate all of the necessary facts and to make the determinations as to the possible effect of the FPRs on coho salmon habitats. Once these determinations have been made, and a specific THP is approved, then any adverse impact of the harvesting activity on coho salmon can and should be considered in the courts. Indeed, nothing in this order should be interpreted as precluding Plaintiffs from challenging the propriety of any particular THP with respect to the ESA. Should an identified THP violate the terms of Section 9, a suit seeking enforcement against that individual THP holder would certainly be ripe.
Lacking such a specific challenge, the Court finds that Plaintiffs' claim that the FPRs violate Section 9 of the Endangered Species Act is not ripe for adjudication. Consequently, Defendants' and Intervenors' Motions for Summary Judgment are HEREBY GRANTED.
C. Defendants' and Intervenors' remaining grounds
Defendants and Intervenors argue that summary judgment should be granted on the grounds that Plaintiffs' complaint constitutes an impermissible facial challenge to a state regulation. Intervenors also argue that Plaintiffs' complaint implicates separation of powers considerations, and violates the Eleventh Amendment of the United States Constitution.
The Court has determined that Plaintiffs' claim, with respect to already approved THPs cannot be maintained under the Eleventh Amendment. Further, the Court has determined that Plaintiffs' claim against the FPRs concerning THPs that have not yet been approved is not yet ripe. As ripeness is a jurisdictional consideration, the Court finds that it cannot, and will not, address Defendants' and Intervenors' remaining grounds for summary judgment.
V. CONCLUSION
For the foregoing reasons, Defendants' and Intervenors' motions for summary judgment are HEREBY GRANTED.
IT IS SO ORDERED.