FEDERAL FOREST RESOURCE COALITION, et al., Plaintiffs, v. THOMAS J. VILSACK, Secretary of Agriculture, et al.,
Civil Action No. 12-1333 (KBJ)
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
04/28/15
Congress has charged the United States Forest Service with the management of 155 national forests and 20 national grasslands covering over 180 million acres of forest and rangeland throughout the United States. See
This case concerns the Forest Service‘s latest Planning rule, which was promulgated in 2012. See National Forest System Land Management Planning, 77 Fed. Reg. 21,162 (April 9, 2012) (codified at
Before this Court at present are the parties’ cross-motions for summary judgment based on the administrative record. Plaintiffs’ motion reiterates the complaint‘s core contention that the 2012 Planning Rule is manifestly inconsistent with the OAA, MUSYA, and NFMA. Defendants’ motion argues, as a threshold matter, that Plaintiffs’ case should be dismissed pursuant to Federal Rule of Civil Procedure
On March 31, 2015, this Court entered an order stating that Plaintiffs’ Motion for Summary Judgment was DENIED; Defendants’ Motion to Dismiss was GRANTED; and the Intervenor-Defendants’ Motion for Summary Judgment was DENIED as moot. This Memorandum Opinion explains the reasoning behind that ruling. Specifically, this Court has concluded that it lacks subject matter jurisdiction with respect to Plaintiffs’ claims, and thus cannot reach the merits of those claims, because Plaintiffs have failed to identify an injury-in-fact that they have suffered, or will imminently suffer, as a result of Defendants’ promulgation of the 2012 Planning Rule. In other words, Plaintiffs lack standing to challenge the 2012 Planning Rule in federal court, and as a result, Plaintiffs’ lawsuit cannot proceed.
I. BACKGROUND
A. Land And Resource Management Of National Forests
The national forests of the United States are subject to “a dynamic management system, akin to a zoning ordinance, that regulates future project-level decisionmaking.” Michael J. Gippert & Vincent L. DeWitte, The Nature of Land and Resource Management Planning Under the National Forest Management Act, 3 Envtl. Law. 149, 154 (1996). Congress first authorized the United States Department of Agriculture (“USDA“) to manage national forest lands—and first articulated the goals of the national forest management system—in the OAA, 30 Stat. 11, 34-36 (June 4, 1897) (codified as amended at
Significantly for present purposes, in 1976, Congress enacted the NFMA, 90 Stat. 2949 (Oct. 22, 1976) (originally enacted as the Forest and Rangeland Renewable Resources Planning Act of 1974) (codified as amended at
Pursuant to the NFMA, the Forest Service regulates the land and resources of national forests through “a three-tiered regulatory approach to forest management, with different tiers existing at the national, regional and local levels.” Citizens for Better Forestry v. U.S. Dep‘t of Agric., 632 F. Supp. 2d 968, 970 (N.D. Cal. 2009); see also
Notably, the Planning rule itself is mandated in the NMFA, see
With the Planning rule as a guide for how to proceed, at the second tier of forest management, the Forest Service develops specific land and resource management plans (“forest plans“) for each unit in the National Forest System.1 Like a zoning ordinance, a forest plan defines management areas and guides Forest Service actions with respect to units within those areas. Forest plans establish management goals and broad standards and guidelines that apply to various regions; they generally do not authorize any particular on-the-ground action. See Gippert & DeWitte, supra at 156-57 (“The [forest plan] is a guide designed to give broad management guidance and ensure that other legal requirements are fulfilled prior to ‘critical’ project decisions, such as the decision to begin timber harvesting, mining operations or road construction.“). Then, at the third tier, the Forest Service analyzes and approves project-level decisions, such as the decision to harvest timber or authorize grazing in a particular area. See id. No proposed site-specific project may go forward until it has been found consistent with the forest plan that has been developed pursuant to the Planning rule, see
Once the Forest Service decides to authorize a project pursuant to these three planning stages, the agency‘s decision is subject to judicial review pursuant to the Administrative Procedure Act (“APA“),
B. Planning Rule Permutations—From 1979 To 2012
USDA promulgated the first Planning rule in 1979. See National Forest System Land and Resource Management Planning, 44 Fed. Reg. 53,928 (Sept. 17, 1979) (to be codified at
The Forest Service engaged in a notice and comment period and the preparation of an EIS pursuant to NEPA in 2011, and it issued the final 2012 Planning Rule—the rule that is being challenged in the instant action—on April 9, 2012. See National Forest System Land Management Planning, 77 Fed. Reg. at 21,162. Consistent with the three-tiered management structure described above, the 2012 Planning Rule does not itself establish any particular land management plan or authorize any concrete action in furtherance of any existing land management plan. Rather, the rule is a framework that consists, essentially, of two types of regulations: those that set forth the specific procedures that agency officials must utilize to develop land use plans in the future, and those that address the required components of any such plan.
For example, with respect to the procedural requirements agency officials must follow, the 2012 Planning Rule states that “[t]he responsible official shall use the best available scientific information to inform the planning process[,]”
The 2012 Planning Rule also sets forth a number of specific substantive provisions that must be included in all land management plans. Section 219.8, for example, states that “[t]he plan must provide for social, economic, and ecological sustainability within Forest Service authority and consistent with the inherent capability of the plan area,” and goes on to specify precisely what acceptable sustainability plan provisions should entail.
This all means that, in order to satisfy the requirements of the 2012 Planning Rule, each forest plan must not only have been developed pursuant to certain procedural steps, see, e.g.,
for which the plan area is best suited[.]”
C. Plaintiffs’ Challenge To The 2012 Planning Rule
On August 13, 2012, Plaintiffs filed the instant complaint. (See Complaint (“Compl.“), ECF No. 1.) The Plaintiffs in the instant action are 13 associations that represent members of the timber, ranching, and forest recreation industries, to wit: the Federal Forest Resource Coalition, American Forest Resource Council, Blueribbon Coalition, California Association of 4 Wheel Drive Clubs, Public Lands Council, National Cattlemen‘s Beef Association, American Sheep Industry Association, Alaska Forestry Association, Resource Development Council For Alaska, Inc., Minnesota Forest Industries, Inc., Minnesota Timber Producers Association, California Forestry Association, and Montana Wood Products Association, Inc. (collectively, “Plaintiffs“). Plaintiffs’ complaint asserts 12 claims against the United States Forest Service and the Secretary of Agriculture that are based on various provisions of the 2012 Planning Rule; these claims can be summarized as follows.5
provision violates the OAA (Claim 1), the NFMA (Claim 2), and the MUSYA (Claim 3), by “establish[ing] ‘ecological sustainability’ as [the] primary purpose of national forest management[.]” (Compl. ¶¶ 22-33.) In Plaintiffs’ view, the relevant statutes set forth only “five statutorily-designated purposes of national forests[,]” id. ¶ 32—“outdoor recreation, range, timber, watershed, and wildlife and fish purposes[,]”
Claims 4, 5, and 6 of the complaint are based on a similar theory, but target a different provision of the 2012 Planning Rule. These claims assert that
“establish[ing] an entirely new category of national forest uses” that is nowhere provided for in any of the relevant statutes. (Id. ¶ 35)
Claim 7 of the complaint targets an alleged disconnect between the 2012 Planning Rule and the NFMA‘s requirement that land management plans “provide for diversity of plant and animal communities based on the suitability and capability of the specific land area in order to meet overall multiple-use objectives[.]”
Claim 8 of the complaint takes issue with the fact that the 2012 Planning Rule requires the official responsible for preparing a land management plan to “use the best available scientific information to inform the planning process required[.]”
Claim 10 of the complaint is based on a provision of the 2012 Planning Rule that is entitled “[l]imitations on timber harvest[,]” which provides in part that “[n]o timber harvest for the purposes of timber production may occur on lands not suited for timber production.”
Claim 11 of the complaint is procedural in nature. (See id. ¶¶ 66-77.) In this claim, Plaintiffs allege that Defendants have violated the NFMA and the APA by incorporating new definitions into the final Planning rule that were not included in the proposed rule that was posted for public comment. (See id.) In particular, Plaintiffs claim that “[t]he final rule contains three new definitions critical to forest planning that were not contained in the draft rule and were never subject to public comment—ecological integrity, riparian zone and riparian management area.” (Id. ¶ 68.) Plaintiffs claim that the Forest Service‘s failure to submit these definitions for public comment violates the NFMA, which states that the Secretary of Agriculture “shall establish procedures” directed towards “giv[ing] the Federal, State, and local governments and the public adequate notice and an opportunity to comment upon the formulation of
standards, criteria, and guidelines applicable to Forest Service programs.”
Finally, Claim 12 of the complaint alleges that the Planning Rule contains an unlawful definition of the term “sustainable recreation.” (Id. ¶¶ 78-81.)8 Plaintiffs claim that, while the MUSYA and NFMA allow “outdoor recreation” as a permissible purpose for which national forests can be
As relief, Plaintiffs seek a declaration that the Forest Service has violated the OAA, MUSYA, NFMA, and APA; an order vacating and remanding the 2012 Planning Rule; an injunction prohibiting Defendants from taking any action to begin or continue land management plan revisions under the Planning Rule; and attorneys’ fees. (See id. at 26.)
II. PROCEDURAL HISTORY
Approximately one month after Plaintiffs filed their complaint, four environmental organizations—Klamath-Siskiyou Wildlands Center, Oregon Wilds, Wilderness Society, and Defenders of Wildlife—moved to intervene as defendants in this matter. (See Mot. to Intervene by Klamath-Siskiyou Wildlands Center and Oregon Wild, ECF No. 12; Mot. to Intervene by Wilderness Society and Defenders of Wildlife, ECF No. 16.) The Court granted those motions on December 10, 2012. (See Memorandum Order, ECF No. 28 (Leon, J.).) Thereafter, both Defendants and Defendant-Intervenors answered Plaintiffs’ complaint. (See Answer to Complaint by Federal Defendants, ECF No. 24; Answer to Complaint by Klamath-Siskiyou Wildlands Center and Oregon Wild, ECF No. 29; Answer to Complaint by Wilderness Society and Defenders of Wildlife, ECF No. 31.) Defendants filed the administrative record on February 28, 2013. (See Administrative Record, ECF No. 36.)9 The case was assigned to the undersigned on April 9, 2013. (See Minute Entry, Apr. 9, 2013.)
On June 5, 2013, Plaintiffs filed a motion for summary judgment. (See Mot. for Summ. J., ECF No. 40.) In that motion, Plaintiffs first assert that they satisfy both the constitutional and prudential standing requirements necessary to make this case justiciable. (Pls.’ Br. in Supp. of Mot. for Summ. J. (“Pl. Br.“), ECF No. 40-1, at 17-25.)10 With respect to the merits of their case, Plaintiffs argue that they are entitled to summary judgment on their claims because, in Plaintiffs’ view, “the 2012 Rule represents a sea change for national forest management[,]” and “Congress has [not]
delegated the Forest Service sufficient authority to accomplish its paradigm shift solely through rulemaking without legislative action.” (Id. at 15.)
On August 13, 2013, Defendants filed a cross-motion for summary judgment. (See Cross-Mot. for Summ. J., ECF No. 42.) Defendants argue that “this case does not present a justiciable case-or-controversy and fails on grounds of both standing and ripeness[,]” and that the Court should therefore dismiss Plaintiffs’ complaint for lack of subject matter jurisdiction. (Defs.’ Br. in Supp. of Cross-Mot. for Summ. J. (“Def. Br.“), ECF No. 42-1, at 10.) Defendants also argue that, even if this Court reaches the merits of Plaintiffs’ case, it
On August 23, 2013, Defendant-Intervenors also filed a motion for summary judgment. (See Mot. for Summ. J., ECF No. 43.) Defendant-Intervenors do not address the Court‘s jurisdiction over this case; however, like Defendants, Defendant-Intervenors argue that Plaintiffs “are not entitled to summary judgment on any of their claims because they fail to overcome the vast discretion conveyed by Congress to [Defendants] to develop a comprehensive set of rules to guide management of the 176 units of the National Forest System.” (Intervenors’ Br. In Supp. of Cross-Mot. for Summ. J. (“Int. Br.“), ECF No. 43-1, at 6.)
These motions were fully briefed on January 24, 2014. This Court held a hearing on April 29, 2014. (See Minute Entry, Apr. 29, 2014.)
III. LEGAL STANDARDS
A. Standing
Article III of the United States Constitution “limits the ‘judicial power’ of the United States to the resolution of ‘cases’ and ‘controversies[,]‘” Valley Forge Christian Coll. v. Am. United for Separation of Church & State, Inc., 454 U.S. 464, 471 (1982), and the doctrine of standing serves to identify those “‘Cases’ and ‘Controversies’ that are of the justiciable sort referred to in Article III” and thus “‘are appropriately resolved through the judicial process,‘” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (quoting Whitmore v. Arkansas, 495 U.S. 149, 155 (1990)). “In this sense, the standing requirement acts as a gatekeeper, opening the courthouse doors to narrow disputes that can be resolved merely by reference to facts and laws, but barring entry to the broad disquiets that can be resolved only by an appeal to politics and policy.” Food & Water Watch, Inc. v. Vilsack, No. 14-cv-1547, 2015 WL 514389, at *6 (D.D.C. Feb. 9, 2015).
To establish the “irreducible constitutional minimum of standing[,]” a plaintiff must allege (1) an “injury in fact” that is “(a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical“; (2) “a causal connection between the injury and the conduct complained of“; and (3) a likelihood “that the injury will be redressed by a favorable decision.” Defenders of Wildlife, 504 U.S. at 560-61 (internal quotation marks and citations omitted). “The party invoking federal jurisdiction bears the burden of establishing standing—and, at the summary judgment stage, such a party can no longer rest on mere allegations, but must set forth by affidavit or other evidence specific facts.” Clapper v. Amnesty Int‘l USA, 133 S. Ct. 1138, 1148-49 (2013) (citations, internal quotation marks, and alterations omitted). “[A] plaintiff must
demonstrate standing for each claim [it] seeks to press and for each form of relief that is sought.” Davis v. Fed. Election Comm‘n, 554 U.S. 724, 734 (2008) (citation and internal quotation marks omitted).
Significantly, “when the plaintiff is not himself the object of the government action or inaction he challenges, standing is not precluded, but it is ordinarily ‘substantially more difficult’ to establish.” Defenders of Wildlife, 504 U.S. at 562 (quoting Allen v. Wright, 468 U.S. 737, 758 (1984)). Indeed, “courts [only] occasionally find the elements of standing to be satisfied in cases challenging government action on the basis of third-party conduct.” Nat‘l Wrestling Coaches Ass‘n v. Dep‘t of Educ., 366 F.3d 930, 940 (D.C. Cir. 2004). The D.C. Circuit has identified “two categories of cases where standing exists to challenge government action though the direct cause of injury is the action of a third party.” Renal Physicians Ass‘n v. U.S. Dept. of Health & Human Servs., 489 F.3d at 1275 (D.C. Cir. 2007). “First, a federal court may find that a party has standing to challenge government action that permits or authorizes third-party conduct that would otherwise be illegal in the absence of the Government‘s action.” Nat‘l Wrestling Coaches, 366 F.3d at 940. In this circumstance, a plaintiff must show that the challenged government conduct authorizes the specific third-party conduct that causes injury to the plaintiff. See Animal Legal Def. Fund, Inc. v. Glickman, 154 F.3d 426, 440 (D.C. Cir. 1998) (“Supreme Court precedent establishes that the causation requirement for constitutional standing is met when a plaintiff demonstrates that the challenged agency action authorizes the conduct that allegedly caused the plaintiff‘s injuries[.]“). A court may also find that a party has standing to challenge government action that authorizes third-party conduct “where the record
present[s] substantial evidence of a causal relationship between the government policy and the third-party conduct, leaving little doubt as to causation and the likelihood of redress.” Nat’l Wrestling Coaches, 366 F.3d at 941. When such is the case, the plaintiff must allege facts that are “sufficient to demonstrate a substantial likelihood that the third party directly injuring the plaintiff would cease doing so as a result of the relief the plaintiff sought.” Renal Physicians, 489 F.3d at 1275.
B. Summary Judgment In APA Cases
As a general matter, summary judgment will be granted “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Agency action challenged under the APA shall be set aside when the action is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law[,]”
IV. ANALYSIS
Standing is a “threshold question in every federal case,” Warth v. Seldin, 422 U.S. 490, 498 (1975), because, as explained above, standing relates to the Court’s jurisdiction. See Steel Co. v. Citizens for a Better Envt., 523 U.S. 83, 88 (1998). Where, as here, an organization—or a group of organizations—seeks to sue on behalf of its members, the organization must demonstrate that “(a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization’s purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.” Hunt v. Wash. State Apple Adver. Comm’n, 432 U.S. 333, 343 (1977).
Plaintiffs here are 13 organizations that use the national forests for timber harvest, livestock grazing, and recreation.11 Plaintiffs
id. at 19–22.) Second, Plaintiffs maintain that the 2012 Planning Rule poses an “imminently threat of environmental injury” because “overcrowded, unmanaged forests” increase the risk of destructive wildfires that harm their members’ interests. (Id. at 22.) Third, Plaintiffs contend that their members have suffered a procedural injury because the Forest Service failed to provide an opportunity for public comment on certain provisions of the 2012 Planning Rule. (Id. at 23–24.)
For the reasons that follow, this Court concludes that Plaintiffs have not demonstrated that the 2012 Planning Rule has caused, or imminently will cause, their members to suffer an injury-in-fact, as the law requires, nor have Plaintiffs established a procedural injury that gives rise to standing to bring the claims alleged in Plaintiffs’ complaint.
A. Plaintiffs Have Failed To Show That The 2012 Planning Rule Has Caused (Or Imminently Will Cause) Their Members To Suffer An Injury
Plaintiffs make a series of injury-related arguments that stem from their organizational interests; the description of these alleged injuries must be fully fleshed out in order to be adequately understood. First up are the timber-harvest Plaintiffs, who contend that the 2012 Planning Rule will perpetuate a pre-existing downward trend in the amount of timber harvested from national forests. (See Pl. Br. at 19 (“Under the current trend in the Forest Service’s timber program, timber harvest has declined by more than 80% [i]n the national forests over the last two decades.” (internal quotation marks and citation omitted)).) The timber-harvest Plaintiffs argue that, as a result of the continued reduction in the amount of timber that is permitted to be harvested, their members will suffer direct economic harm from their inability to get as much timber from the national forests under the 2012 Planning Rule as they would like. (See id. (noting the “demise of many” members, “with the fates of others still hanging precariously in the balance”).) The timber harvesters also assert that the 2012 Planning Rule’s perpetuation of the downward trend in timber harvesting will lead to overcrowded forests, and that “as timber harvest levels have declined, more and more fuel accumulates, and there has been an accompanying increase in the loss of forests to wildfire.” (Id. (citing Decl. of Thomas Partin, President of the American Forest Resource Council, ECF No. 40-4, ¶¶ 7–10).) And because certain of their members (some timber industry groups) own private forest lands that are adjacent to national forests, the timber-harvest Plaintiffs emphasize the risk that wildfires and insects in the national forests could spread,
The livestock-grazing Plaintiffs sound a similar note of alarm about the allegedly harmful effects of the 2012 Planning Rule. These Plaintiffs highlight a statement in the 2012 Planning Rule’s EIS that explains: “‘where livestock grazing is identified as a stressor, allotment management plans would be expected to be modified (e.g., through reductions in numbers, changes in season of use, or additional improvements).’” (Id. at 20 (quoting PR_0103713–14), and based on this statement, they argue that the 2012 Planning Rule will decrease the amount of national rangeland available for grazing. (Id.) These Plaintiffs contend that their rancher members “rely on Forest Service rangeland to meet their livestock grazing needs” and thus “will suffer a concrete and particularized economic injury from the Rule via its restriction of grazing access to rangeland.” (Id.) Moreover, the livestock-grazing Plaintiffs also “share the timber plaintiffs’ concerns regarding wildfire damage to lands managed by the Forest Service” (id.) because an increased risk of wildfires in the national forests “poses an imminent threat to the welfare of livestock and also threatens grazing permittees with sudden evictions from federal lands in the aftermath of the fire[,]” (id. at 21.)
This last alleged concern—that there will be an increase in the incidence of wildfires and insect infestations in the national forests as a result of the 2012 Planning Rule—is the injury that also purportedly impacts recreational users of national forests. According to Plaintiffs, “forest recreationalists . . . have a long-standing interest in the protection of the values and natural resources” of forests, and this interest “does not dovetail with destructive wildfire.” (Id. at 22 (internal quotation marks and citation omitted).) In discussing the wildfire concerns of recreational users of forest lands, Plaintiffs maintain that “the deleterious effects of wildfire on their recreation experiences are not based on conjecture” because such fires lead to “closures to, or understandable avoidance of, camping, off-highway vehicle use and other recreational pursuits[.]” (Id. at 22–23.)
The lynchpin of all of the alleged injuries that will purportedly befall each of Plaintiffs’ subgroups is, of course, the common contention that Defendants’ promulgation of the 2012 Planning Rule will, in fact, reduce the amount of forest land available for commercial use (timber and grazing) and will lead to overgrown and unmanaged forests giving rise to wildfires and insect infestations. But unfortunately for Plaintiffs, and as explained fully below, it is at this very first link in the causal chain of injury that Plaintiffs’ standing argument falters. In short, Plaintiffs have not demonstrated that the 2012 Planning Rule actually will cause the harmful reduction in timber harvest and land use that Plaintiffs maintain will be so detrimental to their membership, much less that any such reduction would follow “imminently” from implementation of the Rule or that any such reductions would occur with respect to the land management plans that govern the particular forests that the members of Plaintiffs’ organizations currently use. Moreover, even if one could surmise that the 2012 Planning Rule would imminently cause allegedly troublesome reductions in timber harvest and livestock grazing in relevant geographical areas, Plaintiffs have not shown that those reductions substantially increase the risk of wildfires such that, on the basis of this risk injury, Plaintiffs can be deemed to have an injury-in-fact giving rise to standing to sue.
Plaintiffs’ argument that the 2012 Planning Rule will injure them economically (and thus that they have standing to bring this lawsuit challenging that Rule) hinges on Plaintiffs’ assertion that the Rule will reduce the supply of timber available for harvesting on national forest lands and will reduce the availability of national forest lands for livestock grazing. (See Pl. Br. at 19–23.) But even a cursory review of the record belies any contention that Plaintiffs have shown that the alleged injury to the economic interests of their timber harvester and rancher members follows imminently from the Rule Plaintiffs seek to challenge, nor have Plaintiffs established that there is any causal link whatsoever between the 2012 Planning Rule and the reduction in timber-harvest or grazing land that is the basis of their alleged economic injury—and the record demonstrates otherwise.
With respect to the imminence requirement, one need look no further than the three-tier system of land use planning that Congress adopted in the NFMA to recognize the obvious flaw in Plaintiffs’ theory of economic harm as a basis for standing to challenge the 2012 Planning Rule. As explained above, the 2012 Planning Rule is akin to a charter—i.e., an amalgamation of first principles—that Forest Service officials must follow when developing regional forest plans, which, in turn, govern decision making with respect to site-specific issues, such as the amount of timber harvest or grazing that will be permitted in a particular area. The 2012 Planning Rule does not, in itself, set particular timber-harvest or animal-grazing levels; in fact, the Rule specifically directs each national forest system unit to establish timber-harvest levels based upon the site-specific considerations the NFMA requires, see
What is more, the EIS prepared in conjunction with the 2012 Planning Rule states merely that the agency expects that “current trends in the NFS timber program [will] continue[.]” (PR_0103714). Plaintiffs latch on to this contention, coupling it with the observation that timber-harvest levels have declined for several decades (PR_0103868), and they argue that this continuing downward trend in the amount of timber harvested “has led to the [economic] demise of many [of Plaintiffs’] members, with the fates of others still hanging precariously in the balance.” (Pl. Br. at 19.) But the fact that there is a
Plaintiffs’ members, the record evidence shows merely that the 2012 Planning Rule will “[m]aintain[] the status quo with respect to timber harvest” (Pl. Br. at 21)—a set of circumstances that Plaintiffs obviously dislike but that fail to support any conclusion that the 2012 Planning Rule has caused, or imminently will cause, the Plaintiffs’ injuries for standing purposes. See Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 41–42 (1976) (“[T]he ‘case or controversy’ limitation of Art. III still requires that a federal court act only to redress injury that fairly can be traced to the challenged action of the defendant, and not injury that results from the independent action of some third party not before the court.”).13
Undaunted, Plaintiffs appear to assert that, regardless of the many discretionary steps between the 2012 Planning Rule and an injurious site-specific land use determination, and setting aside the fact that other factors have contributed to the pre existing decline in harvest levels, by its very nature, the 2012 Planning Rule necessarily will cause a harmful decrease in timber harvest and grazing land that will injure Plaintiffs’ members. (Pls.’ Reply in Supp. of Summ. J. (“Pl. Reply”), ECF No. 45 at 11 (“The nature of forest management dictates that when more of the fixed acreage of the national forest system is dedicated to ‘ecological sustainability,’ or ‘viable populations’ or ‘ecosystem services,’ fewer acres will remain available for the statutorily-designated uses of timber, grazing and recreation.”).) But the mere fact that the 2012 Planning Rule requires “ecological sustainability” does not solve Plaintiffs’ lack of imminence or causation problems because, as Defendants point, out “[Plaintiffs] err[] in assuming that forest uses are mutually exclusive; that for example, ecological sustainability and timber harvest cannot be achieved in the same location.” (Defs.’ Reply Mem. in Supp. of Cross-Mot. for Summ. J. (“Def. Reply”),
All told, Plaintiffs ultimately appear to rest their allegations of economic injury for standing purposes upon the outcome Mountain States Legal Foundation v. Glickman, 92 F.3d 1228 (D.C. Cir 1996). (See Pl. Br. at 18; Pl. Reply at 12 (“The controlling authority here is the D.C. Circuit’s holding in Mountain States Legal Foundation[.]”).) That case involved the Forest Service’s environmental review of a national forest that resulted in an EIS outlining 14 alternate plans with varying degrees of timber harvesting. See Mountain States, 92 F.3d at 1231. The Forest Service selected one of the plans, and then several timber industry associations sued the agency for not selecting a different plan with a higher level of harvesting. See id. Reversing the district court, the D.C. Circuit found that those plaintiffs had standing based both on the lower level of timber harvesting and on the increased risk of wildfires. See id. at 1233–35. As to timber harvesting in particular, the D.C. Circuit noted that “[g]overnment acts constricting a firm’s supply of its main raw material clearly inflict the constitutionally necessary injury.” Id. at 1233.
However, despite the similarity between aspects of Mountain States and the circumstances presented in the instant case, Plaintiffs’ reliance on that case is misplaced because it ignores a crucial factual distinction: unlike the forest plan that was under scrutiny in Mountain States, the 2012 Planning Rule that Plaintiffs challenge here says nothing about the level of harvesting for any particular national forest. That is, in Mountain States, there was no question that the plan the Forest Service selected would result in a lesser harvest than the plan favored by the plaintiffs (i.e., that the government action would imminently cause the feared harm) because the plan actually set the level of timber harvesting. By contrast, here, the 2012 Planning Rule merely sets forth the
In sum, while Plaintiffs argue that their members have standing to challenge the 2012 Planning Rule based on the feared harm to their economic bottom lines—i.e., their ability “to maintain timber supply” from national forests (Pl. Br. at 18) and/or “to graze livestock on federal lands managed by the Forest Service” (id. at 20)—they have failed to demonstrate that the 2012 Planning Rule itself is the cause of the harms they fear (as opposed to other forces), or that the Rule poses an imminent threat to their economic interests. Consequently, Plaintiffs have not satisfied the causation or imminence requirements for establishing Article III standing. See, e.g., Warth, 422 U.S. at 505–06 (finding that plaintiffs lacked standing because there was no evidence that defendant’s actions caused plaintiff’s injuries); Haitian Refugee Ctr. v. Gracey, 809 F.2d 794, 806–07 (D.C. Cir. 1987) (same).
2. Plaintiffs Have Failed To Identify A Specific Land Management Plan Promulgated Pursuant To The 2012 Planning Rule That Threatens To Harm Their Economic Interests
Even if Plaintiffs could show that the 2012 Planning Rule will imminently cause a general reduction in the amount of forest, grassland, and rangeland available for commercial use, Plaintiffs have not identified a specific land management plan promulgated pursuant to the 2012 Planning Rule that threatens to harm the members of the plaintiff organizations in this case. See Summers v. Earth Island Inst., 555 U.S. 488, 495–96 (2009) (holding that a plaintiff has standing to challenge rules governing an agency’s conduct in “project planning” only if the plaintiff can identify a specific project to which those rules were applied and, as a result of which, the plaintiff has suffered or will suffer injury); see also Defenders of Wildlife v. Perciasepe, 714 F.3d 1317, 1323 (D.C. Cir. 2013) (explaining that “an injury is particularized if it affects the party asserting standing in a personal and individual way”) (internal quotation marks and citation omitted). Indeed, it appears that Plaintiffs here cannot even begin to clear the particularization hurdle because no individual forest plans have been created pursuant to the 2012 Planning Rule.
Plaintiffs resist the characterization of their alleged economic injury as too remote and not particularized by pointing to Mountain States and arguing that, “[l]ike the injury flowing from the timber restrictions
The Supreme Court’s decision in Summers v. Earth Island Institute, 555 U.S. 488 (2009), helps to illustrate why Plaintiffs’ ‘no need for particularization’ argument is so off base. In Summers, the Court considered a challenge brought by environmental groups with respect to a Forest Service regulation exempting certain timber salvage sales (those involving less than 250 acres of forest) from the notice and comment period otherwise required for such sales. See Summers, 555 U.S. at 490. In ruling that the plaintiffs lacked standing, the Summers Court noted that “[t]he regulations under challenge here neither require nor forbid any action on the part of” the plaintiffs, but rather “govern only the conduct of Forest Service officials engaged in project planning.” Id. at 493. In such circumstances, said the Court, plaintiffs can “demonstrate standing only if application of the regulations by the Government will affect them in the manner described [in the complaint].” Id. at 494 (emphasis in original). Ultimately, the Supreme Court found that the plaintiffs lacked standing because they had failed “to allege that any particular timber sale or other project claimed to be unlawfully subject to the regulations will impede a specific and concrete” interest of the plaintiffs in the national forests. Id. at 495 (emphasis in original). Furthermore, the Summers Court explicitly rejected a theory of standing (posed in
So it is here. The 2012 Planning Rule, much like the rule at issue in Summers, governs only agency conduct. Therefore, under Summers’ reasoning, Plaintiffs do not have standing to challenge the 2012 Planning Rule unless and until they have been—or certainly will be—harmed by a specific land management action, that was made pursuant to a land management plan, which was (in turn) developed pursuant to the 2012 Planning Rule. It is simply not enough for Plaintiffs to say that, by virtue of their size and membership, their constituent organizations use all of the national forests, and therefore are affected by any regulation pertaining to those forests. See id. at 496 (refusing to “assume not only that [plaintiff] will stumble across a project tract unlawfully subject to the regulation, but also that the tract is about to be developed by the Forest Service in a way that harms his recreational interests”). And that is really all that Plaintiffs are saying here. (See, e.g., Pl. Reply Br. at 15 (“Plaintiffs’ injuries have the same nationwide distribution as the plaintiffs themselves (and their members) and are particularized because the Rule will necessarily affect every national forest and the related thousands of projects, permits and sites used and visited by plaintiffs’ members.” (emphasis in original)).)
3. Plaintiffs Have Not Demonstrated That The 2012 Rule Substantially Increases The Risk Of Wildfires And Insect Infestations
In addition to Plaintiffs’ contention that the 2012 Planning Rule will cause an economically detrimental decrease in timber harvest and grazing levels, Plaintiffs also argue that all three plaintiff subgroups will suffer “environmental injury” due to an increased risk of wildfires and insect infestations in the national forests as a result of the 2012 Planning Rule. (See Pl. Br. at 19–21.)16 Plaintiffs’ fears of an increased risk of wildfire and insect infestations are plainly based entirely on the flawed premise that the 2012 Planning Rule itself limits timber harvest levels, and thus, this wildfire risk injury fails at the outset for the reasons discussed in Part IV.A.1, supra. But even assuming arguendo that the 2012 Planning Rule limits harvest and grazing levels, and
thus leads to unmanaged forest growth, this Court finds that Plaintiffs have not demonstrated adequately that there would be a substantially increased risk of wildfires or invasive insects such that their claimed increased-risk theory of injury-in-fact would give rise to Article III standing.
The Supreme Court has “repeatedly reiterated that a ‘threatened injury must be certainly impending to constitute injury[-]in[-]fact,’ and that ‘[a]llegations of possible future injury’ are not sufficient.” Clapper, 133 S. Ct. at 1147 (quoting Whitmore, 495 U.S. at 158) (emphasis in original). Thus, “[a]lthough the D.C. Circuit has not closed the door to all increased-risk-of-harm
In support of their argument that the 2012 Planning Rule increases the risk of injury to Plaintiffs from wildfire and insect infestations, Plaintiffs point once again to Mountain States. (See Pl. Reply at 12 (citing Mountain States, 92 F.3d at 1234–35).) There, in addition to the holding regarding the injury from reduced timber harvest discussed above, see supra Part IV.A.1, the D.C. Circuit found that “Plaintiffs’ aesthetic and environmental interests in having such areas free of devastating forest fire are clearly sufficient for Article III standing.” Mountain States, 92 F.3d at 1234; see also Douglas Timber Operators, Inc. v. Salazar, 774 F. Supp. 2d 245, 252 (D.D.C. 2011) (relying on MLSF to find that timber companies had standing to challenge the revision of a decision regarding the level of harvesting allowed in a national forest). And it is clear that the D.C. Circuit’s standing conclusion was based on extensive and detailed evidence from the EIS regarding such increased risk of wildfire. See Mountain States, 92 F.3d at 1234–35.
There are no such findings in the EIS presented here; instead, Plaintiffs rely solely on historical figures showing that wildfires have increased as timber harvesting has decreased over the last 20 years. (See Pl. Br. at 19.) And while this may or may not be true as a matter of common forestry knowledge, the instant record simply fails to support the assumption that there is any causal connection between decreased harvesting and increased wildfires. See Cal. Forestry Ass’n, 936 F. Supp. at 20 (noting that standing cannot rest on an injury that “depends largely upon speculations about the natural course of forest development”). Moreover, and importantly, the text of the 2012 Planning Rule directly addresses wildfires and insect infestations by requiring each forest plan to include components that maintain or restore ecological sustainability, taking into account “wildland fire [and] invasive species[,]” and it also mandates that planners consider “wildland fire and opportunities to restore fire adapted ecosystems” when developing plan components.
B. Plaintiffs’ Alleged Procedural Injury Is Not Connected To A Substantive Injury
Turning from the alleged economic and environmental injuries premised on decreased timber harvesting, decreased availability of public lands for grazing, and increased chances of wildfire, Plaintiffs also argue that they have standing to sue because they have suffered procedural injury due to the Forest Service’s failure to allow them to comment on certain terms defined in the Planning Rule. Specifically, Plaintiffs allege that they “actively participated in the rulemaking process but were denied an opportunity to weigh in on” three key terms: ecological integrity, riparian areas, and riparian management zone. (Pl. Br. at 23 (citing Van Liew Dec. ¶¶ 5, 10, 19; Partin Dec. ¶ 3; Amador Dec. ¶¶ 6-7).) Plaintiffs claim that the Forest’s Service’s alleged failure to submit these definitions for public comment violates both the NFMA’s and the APA’s notice and comment requirements (see Pl. Br. at 24; Pl. Reply at 26) and claim that the allegedly new definitions will lead to “severe restrictions on timber production and grazing” (Pl. Br. at 26) such that a finding of procedural injury is warranted. Plaintiffs are mistaken; “a plaintiff may have standing to challenge the failure of an agency to abide by a procedural requirement[,]” Fla. Audubon, 94 F.3d at 664, but only “if it can show that an agency failed to abide by a procedural requirement that was ‘designed to protect some threatened concrete interest’ of the plaintiff,” Ctr. for Biological Diversity v. U.S. Dep’t of Interior, 563 F.3d 466, 479 (D.C. Cir. 2009) (quoting Lujan, 504 U.S. at 573 n.8); see also Summers, 555 U.S. at 496 (“deprivation of a procedural right without some concrete interest that is affected by the deprivation—a procedural right in vacuo—is insufficient to create Article III standing”). Plaintiffs here have failed to demonstrate that the allegedly unvetted definitions threaten Plaintiffs’ concrete interests because, as explained above, there is no indication that any new forest management plan developed pursuant to the 2012 Planning Rule and its definitions will, in fact, reduce the amount of land that is available for timber harvest and grazing.
This Court also rejects Plaintiffs’ contention that a cognizable procedural injury arises from “the Forest Service’s new limitation on decision making information, i.e. the best available science constraint on forest planning,” which Plaintiffs say “prevents plaintiffs from participating in the planning process to the extent they provide public comment based on such things as local experience and personal knowledge[.]” (Pl. Br. at 23 (citing Van Liew Dec. ¶ 15).) Nothing in
In sum, while Plaintiffs’ declarants speculate that the terms on which they allegedly could not comment could be construed to limit timber harvests, or narrow their ability to comment on future forest management plans, these speculative and generalized fears fall short of demonstrating an impact to a concrete interest in a manner that gives rise to “procedural” injury for the purpose of Article III standing. See Ctr. for Biological Diversity, 563 F.3d at 478.
V. CONCLUSION
Plaintiffs have failed to show that the 2012 Planning Rule threatens an injury-in-fact that is imminent, or particularized. Moreover, because the injuries that Plaintiffs allege cannot be traced to the challenged action of the defendant, Plaintiffs have failed to demonstrate that the 2012 Planning Rule will cause them harm. Consequently, Plaintiffs lack standing, and, as set forth in the previously filed Order, Plaintiffs’ Motion for Summary Judgment is DENIED; Defendants’ Motion to Dismiss is GRANTED, and Intervenor-Defendants’ Motion for Summary Judgment is DENIED as moot.
DATE: April 28, 2015
KETANJI BROWN JACKSON
United States District Judge