Federal Forest Resource Coalition v. Vilsack
Opinion
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
) FEDERAL FOREST RESOURCE ) COALITION, et al., ) ) Plaintiffs, ) ) v. ) Civil Action No. 12-1333 (KBJ) ) THOMAS J. VILSACK, Secretary of ) Agriculture, et al., ) ) Defendants, ) ) and ) ) KLAMATH-SISKIYOU WILDLANDS ) CENTER, et al., ) ) Defendant-Intervenors. ) )
MEMORANDUM OPINION
Congress has charged the United States Forest Service with the management of
155 national forests and 20 national grasslands covering over 180 million acres of
forest and rangeland throughout the United States. See 16 U.S.C. § 1604(a); 36 C.F.R.
§ 200.3(b)(2). The Forest Service promulgates a “Planning” rule to achieve this
mandate, see 36 C.F.R. § 219 et seq., and this set of regulations governs the Forest
Service’s development of individual land and resource management plans for the
national forests and grasslands that the agency oversees. Forest-resource stakeholders
(such as environmental groups, recreational interest groups, and industry groups that
promote timber harvest, mining, and grazing) have long debated the appropriate terms of the Planning rule—i.e., which specific procedural requirements the Forest Service
should adopt to guide it in developing land use management plans—and the Forest
Service has promulgated five successive Planning rules since 1979, each of which has
been controversial, and some of which have even been invalidated by federal courts.
This case concerns the Forest Service’s latest Planning rule, which was
promulgated in 2012. See National Forest System Land Management Planning, 77 Fed.
Reg. 21,162 (April 9, 2012) (codified at 36 C.F.R. pt. 219). Plaintiffs are a number of
trade associations and nonprofit corporations that represent members of the
timber/lumber industry, along with other groups whose members use national forest
lands for recreation. The gravamen of Plaintiffs’ complaint, which has been filed
against Defendants Secretary of Agriculture Tom Vilsack in his official capacity and
the Forest Service (collectively, “Defendants” or “the Government”), is the contention
that the 2012 Planning Rule exceeds the Forest Service’s statutory authority by
requiring land management plans to privilege environmental goals, such as maintaining
“ecological sustainability” and “ecosystem services,” over other competing uses of
national forests, such as logging, grazing, and recreation. Plaintiffs claim that by
privileging environmental interests over other interests, the 2012 Planning Rule violates
three separate statutes that set forth the purposes of the national forests: the Organic
Administration Act of 1897 (“OAA”), 16 U.S.C. §§ 473–75, 477–82, 551; the Multiple-
Use Sustained-Yield Act of 1960 (“MUSYA”), 16 U.S.C. §§ 528–31; and the National
Forest Management Act of 1976 (“NFMA”), 16 U.S.C. §§ 1600–1614. Plaintiffs also
argue that the 2012 Planning Rule is inconsistent with the OAA, MUSYA, and NFMA
in a number of other respects, and that Plaintiffs were not afforded an adequate
2 opportunity to comment on the definitions of three words that are used in the 2012
Planning Rule—words that Plaintiffs believe are critically important to how the 2012
Planning Rule will be implemented.
Before this Court at present are the parties’ cross-motions for summary judgment
based on the administrative record. Plaintiffs’ motion reiterates the complaint’s core
contention that the 2012 Planning Rule is manifestly inconsistent with the OAA,
MUSYA, and NFMA. Defendants’ motion argues, as a threshold matter, that Plaintiffs’
case should be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack
of subject matter jurisdiction because Plaintiffs lack standing to challenge to the 2012
Planning Rule and this dispute is not yet ripe for adjudication. On the merits,
Defendants are joined by several environmental organizations that have intervened to
argue that Defendants are entitled to summary judgment because the 2012 Planning
Rule does not exceed Defendants’ authority under the OAA, MUSYA, and NFMA.
On March 31, 2015, this Court entered an order stating that Plaintiffs’ Motion for
Summary Judgment was DENIED; Defendants’ Motion to Dismiss was GRANTED;
and the Intervenor-Defendants’ Motion for Summary Judgment was DENIED as moot.
This Memorandum Opinion explains the reasoning behind that ruling. Specifically, this
Court has concluded that it lacks subject matter jurisdiction with respect to Plaintiffs’
claims, and thus cannot reach the merits of those claims, because Plaintiffs have failed
to identify an injury-in-fact that they have suffered, or will imminently suffer, as a
result of Defendants’ promulgation of the 2012 Planning Rule. In other words,
Plaintiffs lack standing to challenge the 2012 Planning Rule in federal court, and as a
result, Plaintiffs’ lawsuit cannot proceed.
3 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 16 U.S.C. §§ 473–75, 477–82, 551), a statute that specifically
provides that the national forest system exists for two purposes: “[1] to improve and
protect the forest within the boundaries, or for the purpose of securing favorable
conditions of water flows, and [2] to furnish a continuous supply of timber for the use
and necessities of citizens of the United States.” 16 U.S.C. § 475. Congress augmented
this initial statement of purposes in the MUSYA, 74 Stat. 215 (June 12, 1960) (codified
as amended at 16 U.S.C. §§ 528–31), which states that “[i]t is the policy of the
Congress that the national forests are established and shall be administered for outdoor
recreation, range, timber, watershed, and wildlife and fish purposes.” 16 U.S.C. § 528.
The MUSYA also specifically references the environmental resources management
principles of “multiple use” and “sustained yield,” and directs Secretary of
Free access — add to your briefcase to read the full text and ask questions with AI
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
) FEDERAL FOREST RESOURCE ) COALITION, et al., ) ) Plaintiffs, ) ) v. ) Civil Action No. 12-1333 (KBJ) ) THOMAS J. VILSACK, Secretary of ) Agriculture, et al., ) ) Defendants, ) ) and ) ) KLAMATH-SISKIYOU WILDLANDS ) CENTER, et al., ) ) Defendant-Intervenors. ) )
MEMORANDUM OPINION
Congress has charged the United States Forest Service with the management of
155 national forests and 20 national grasslands covering over 180 million acres of
forest and rangeland throughout the United States. See 16 U.S.C. § 1604(a); 36 C.F.R.
§ 200.3(b)(2). The Forest Service promulgates a “Planning” rule to achieve this
mandate, see 36 C.F.R. § 219 et seq., and this set of regulations governs the Forest
Service’s development of individual land and resource management plans for the
national forests and grasslands that the agency oversees. Forest-resource stakeholders
(such as environmental groups, recreational interest groups, and industry groups that
promote timber harvest, mining, and grazing) have long debated the appropriate terms of the Planning rule—i.e., which specific procedural requirements the Forest Service
should adopt to guide it in developing land use management plans—and the Forest
Service has promulgated five successive Planning rules since 1979, each of which has
been controversial, and some of which have even been invalidated by federal courts.
This case concerns the Forest Service’s latest Planning rule, which was
promulgated in 2012. See National Forest System Land Management Planning, 77 Fed.
Reg. 21,162 (April 9, 2012) (codified at 36 C.F.R. pt. 219). Plaintiffs are a number of
trade associations and nonprofit corporations that represent members of the
timber/lumber industry, along with other groups whose members use national forest
lands for recreation. The gravamen of Plaintiffs’ complaint, which has been filed
against Defendants Secretary of Agriculture Tom Vilsack in his official capacity and
the Forest Service (collectively, “Defendants” or “the Government”), is the contention
that the 2012 Planning Rule exceeds the Forest Service’s statutory authority by
requiring land management plans to privilege environmental goals, such as maintaining
“ecological sustainability” and “ecosystem services,” over other competing uses of
national forests, such as logging, grazing, and recreation. Plaintiffs claim that by
privileging environmental interests over other interests, the 2012 Planning Rule violates
three separate statutes that set forth the purposes of the national forests: the Organic
Administration Act of 1897 (“OAA”), 16 U.S.C. §§ 473–75, 477–82, 551; the Multiple-
Use Sustained-Yield Act of 1960 (“MUSYA”), 16 U.S.C. §§ 528–31; and the National
Forest Management Act of 1976 (“NFMA”), 16 U.S.C. §§ 1600–1614. Plaintiffs also
argue that the 2012 Planning Rule is inconsistent with the OAA, MUSYA, and NFMA
in a number of other respects, and that Plaintiffs were not afforded an adequate
2 opportunity to comment on the definitions of three words that are used in the 2012
Planning Rule—words that Plaintiffs believe are critically important to how the 2012
Planning Rule will be implemented.
Before this Court at present are the parties’ cross-motions for summary judgment
based on the administrative record. Plaintiffs’ motion reiterates the complaint’s core
contention that the 2012 Planning Rule is manifestly inconsistent with the OAA,
MUSYA, and NFMA. Defendants’ motion argues, as a threshold matter, that Plaintiffs’
case should be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack
of subject matter jurisdiction because Plaintiffs lack standing to challenge to the 2012
Planning Rule and this dispute is not yet ripe for adjudication. On the merits,
Defendants are joined by several environmental organizations that have intervened to
argue that Defendants are entitled to summary judgment because the 2012 Planning
Rule does not exceed Defendants’ authority under the OAA, MUSYA, and NFMA.
On March 31, 2015, this Court entered an order stating that Plaintiffs’ Motion for
Summary Judgment was DENIED; Defendants’ Motion to Dismiss was GRANTED;
and the Intervenor-Defendants’ Motion for Summary Judgment was DENIED as moot.
This Memorandum Opinion explains the reasoning behind that ruling. Specifically, this
Court has concluded that it lacks subject matter jurisdiction with respect to Plaintiffs’
claims, and thus cannot reach the merits of those claims, because Plaintiffs have failed
to identify an injury-in-fact that they have suffered, or will imminently suffer, as a
result of Defendants’ promulgation of the 2012 Planning Rule. In other words,
Plaintiffs lack standing to challenge the 2012 Planning Rule in federal court, and as a
result, Plaintiffs’ lawsuit cannot proceed.
3 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 16 U.S.C. §§ 473–75, 477–82, 551), a statute that specifically
provides that the national forest system exists for two purposes: “[1] to improve and
protect the forest within the boundaries, or for the purpose of securing favorable
conditions of water flows, and [2] to furnish a continuous supply of timber for the use
and necessities of citizens of the United States.” 16 U.S.C. § 475. Congress augmented
this initial statement of purposes in the MUSYA, 74 Stat. 215 (June 12, 1960) (codified
as amended at 16 U.S.C. §§ 528–31), which states that “[i]t is the policy of the
Congress that the national forests are established and shall be administered for outdoor
recreation, range, timber, watershed, and wildlife and fish purposes.” 16 U.S.C. § 528.
The MUSYA also specifically references the environmental resources management
principles of “multiple use” and “sustained yield,” and directs Secretary of
Agriculture—who acts in this area through the Forest Service—“to develop and
administer the renewable surface resources of the national forests for multiple use and
sustained yield of the several products and services obtained therefrom.” Id. § 529; see
also id. § 531(a) (defining “multiple use” as the “management of all the various
4 renewable surface resources of the national forests so that they are utilized in the
combination that will best meet the needs of the American people”); id. § 531(b)
(defining “sustained yield” as “the achievement and maintenance in perpetuity of a
high-level annual or regular periodic output of the various renewable resources of the
national forests without impairment of the productivity of the land”). According to the
D.C. Circuit, “these statutes make clear a congressional intention that the national
forests should play a significant role in supplying timber,” and “[t]hey also, especially
the later statutes, indicate a purpose to advance outdoor recreation[.]” Mountain States
Legal Foundation v. Glickman, 92 F.3d 1228, 1236 (D.C. Cir. 1996).
Significantly for present purposes, in 1976, Congress enacted the NFMA, 90
Stat. 2949 (Oct. 22, 1976) (originally enacted as the Forest and Rangeland Renewable
Resources Planning Act of 1974) (codified as amended at 16 U.S.C. §§ 1600–1614), a
statute that expressly adopts the statutory purposes laid out in the OAA and MUSYA;
makes additional findings; and establishes a detailed land and resource management
scheme that the Forest Service must follow in order to further those purposes. The
NFMA, which seeks “to balance the protection of natural ecosystems on public lands
with the industrial and recreational uses of those lands[,]” was Congress’ attempt to
address the conflicting interests that often vie for priority when forest resources are at
stake. Vanessa Wishart, Before Beginning, Plan Carefully: A Call for Public Comment
on the New Forest Planning Rule, 2010 Wis. L. Rev. 1537, 1540. Congress specifically
acknowledged in the statute “the necessity for a long term perspective in planning” how
renewable forest resources would be managed. Forest and Rangeland Renewable
Resources Planning Act of 1974, Pub. L. No. 93-378 §2 (codified as amended by the
5 NFMA at 16 U.S.C. §§ 1600–1614). To this end, the NFMA commands the Forest
Service to “develop, maintain, and, as appropriate, revise land and resource
management plans for units of the National Forest System[.]” 16 U.S.C. § 1604(a).
Pursuant to the NFMA, the Forest Service regulates the land and resources of
national forests through “a three-tiered regulatory approach to forest management, with
different tiers existing at the national, regional and local levels.” Citizens for Better
Forestry v. U.S. Dep’t of Agric., 632 F. Supp. 2d 968, 970 (N.D. Cal. 2009); see also 16
U.S.C. §§ 1600 et seq. The instant case involves the first tier—i.e., the set of USDA
regulations that outline the procedures that the Forest Service must follow in planning
for resource allocation across all national forests. See 16 U.S.C. § 1604(g). The
agency’s “Planning” rule (as these regulations are titled) essentially lays out a series of
steps for developing individual land and resource management plans for national
forests, and the Planning rule thereby governs the Forest Service’s future consideration
of proposed activities on forest land at the regional and local levels.
Notably, the Planning rule itself is mandated in the NMFA, see 16 U.S.C.
§ 1604(g), and not only must the agency’s Planning rule guide the development of land
and resource plans that are consistent with the purposes of forest management
articulated in the statutes discussed above, it must do so by incorporating specific
requirements that the NMFA sets forth. For example, the NMFA provides that the
agency’s Planning rule must be crafted to ensure, with respect to proposed projects, that
there is compliance with the National Environmental Policy Act (“NEPA”), 42 U.S.C.
§§ 4321-4370(h), 16 U.S.C. § 1604(g)(1); that “economic and environmental” factors
are considered, id. § 1604(g)(3)(A); that the “diversity of plant and animal
6 communities” is provided for, id. § 1604(g)(3)(B); and that certain parameters for
timber harvesting are adopted, id. § 1604(g)(3)(E)–(F). As explained further below,
Plaintiffs maintain that the USDA’s most recently adopted Planning rule improperly
prioritizes ecological sustainability, ecosystem services, and maintaining and restoring
plant and animal communities, and thus diverges from the Forest Service’s mandate and
purposes of the national forest system as set forth in the NMFA, MUSYA, and OAA.
With the Planning rule as a guide for how to proceed, at the second tier of forest
management, the Forest Service develops specific land and resource management plans
(“forest plans”) for each unit in the National Forest System. 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 16 U.S.C. §
1 The word “unit” is not defined in the applicable statutes and regulations; however, that term appears to refer to a specific forest, rangeland, or grassland managed by the National Forest Service. See Forest Guardians v. Thomas, 967 F. Supp. 1536, 1538 (D. Ariz. 1997) (“A unit is a specific forest within a particular region of the National Forest System. For example, Arizona and New Mexico constitute Region 3, the Southwestern Region. The six national forests in Arizona and the five national forests in New Mexico constitute 11 separate units within Region 3.” (footnotes omitted)).
7 1604(i), and each project must also undergo the appropriate level of environmental
review and public participation under NEPA and other applicable laws, see, e.g., Idaho
Conservation League v. Mumma, 956 F.2d 1508, 1511–12 (9th Cir. 1992). 2
Once the Forest Service decides to authorize a project pursuant to these three
planning stages, the agency’s decision is subject to judicial review pursuant to the
Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701–706. See Ohio Forestry
Ass’n, Inc. v. Sierra Club, 523 U.S. 726, 728 (1998) (holding that without site-specific,
on-the-ground activities, forest plans are not ripe for review).
B. Planning Rule Permutations—From 1979 To 2012
USDA promulgated the first Planning rule in 1979. See National Forest System
Land and Resource Management Planning, 44 Fed. Reg. 53,928 (Sept. 17, 1979) (to be
codified at 36 C.F.R. pt. 219). However, after a few short years, the Forest Service
concluded that the 1979 Planning Rule was overly complex, and it promulgated a
revised Planning rule in 1982 in order to streamline the process of developing forest
plans. See National Forest System Land and Resource Management Planning, 47 Fed.
Reg. 43,026, 43,026 (Sept. 30, 1982) (to be codified at 36 C.F.R. pt. 219). Thereafter,
in the year 2000, the USDA promulgated a new Planning Rule, see National Forest
System Land and Resource Management Planning, 65 Fed. Reg. 67,514, 67,515-16
2 NEPA requires agencies to complete an Environmental Impact Statement (“EIS”) for any federal agency action “significantly affecting the quality of the human environment,” 42 U.S.C. § 4332(C), 40 C.F.R. § 6.207(a) (2010), so that agencies will “take a hard look at the environmental consequences of their actions[,]” Citizens for Better Forestry v. U.S. Dep’t of Agric., 481 F. Supp. 2d 1059, 1080 (N.D. Cal. 2007) (quoting High Sierra Hikers Ass’n v. Blackwell, 390 F.3d 630, 639 (9th Cir. 2004)). An EIS requires intensive study into the impacts of a proposed action on the environment as well as all reasonable alternatives to the proposed action, followed by the drafting of a report, see 42 U.S.C. § 4332(C), and the Forest Service must make the Draft EIS available for public comment, see 40 C.F.R. § 1502.9(a)–(b). Because ten-year Forest Plans and project-level activities generally constitute major federal actions that significantly affect the environment, they typically require the completion of an EIS. See 16 U.S.C. § 1604(g)(1).
8 (Nov. 9, 2000) (to be codified at 36 C.F.R. pts. 217, 219), based on its finding that the
1982 Planning Rule no longer reflected contemporary scientific or technical knowledge
and had led to a forest plan development process that was complex, costly, lengthy, and
cumbersome, see National Forest System Land and Resource Management Planning, 77
Fed. Reg. at 21,163. The 2000 Planning Rule was challenged in federal court, see
Citizens for Better Forestry v. U. S. Dep’t of Agric., No. 3:01-cv-00728 (N.D. Cal. Feb.
16, 2001), and Am. Forest and Paper Ass’n v. Veneman, No. 1:01-cv-00871 (D.D.C.
April 23, 2001), and the Forest Service decided to develop a new rule after an internal
agency review concluded that implementation of the 2000 Planning Rule would be
procedurally burdensome. See National Forest System Land and Resource Management
Planning, 67 Fed. Reg. 72,770, 72,771 (Dec. 6, 2002). 3 This new Planning rule was
issued in 2005, and a revised version was promulgated in 2008, but federal courts
invalidated both efforts for failure to comply with the procedural obligations of the
NEPA and the Endangered Species Act. See Citizens for Better Forestry v. U.S. Dep’t
of Agric., 481 F. Supp. 2d 1059, 1089–90, 1097 (N.D. Cal. 2007); Citizens for Better
Forestry v. U.S. Dep’t of Agric., 632 F. Supp. 2d 968, 980–82 (N.D. Cal. 2009). The
Forest Service then chose to continue conducting forest planning pursuant to the 1982
Planning Rule while developing a new Planning rule. See National Forest System Land
Management Planning, 74 Fed. Reg. 67,165, 67,166 (Dec. 18, 2009). Consequently, the
1982 Planning Rule has guided the development of all individual forest plans currently
in existence.
3 Both lawsuits were dismissed after the Agency determined to undertake a new rulemaking.
9 The Forest Service engaged in a notice and comment period and the preparation
of an EIS pursuant to NEPA in 2011, and it issued the final 2012 Planning Rule—the
rule that is being challenged in the instant action—on April 9, 2012. See National
Forest System Land Management Planning, 77 Fed. Reg. at 21,162. Consistent with the
three-tiered management structure described above, the 2012 Planning Rule does not
itself establish any particular land management plan or authorize any concrete action in
furtherance of any existing land management plan. Rather, the rule is a framework that
consists, essentially, of two types of regulations: those that set forth the specific
procedures that agency officials must utilize to develop land use plans in the future, and
those that address the required components of any such plan.
For example, with respect to the procedural requirements agency officials must
follow, the 2012 Planning Rule states that “[t]he responsible official shall use the best
available scientific information to inform the planning process[,]” 36 C.F.R. § 219.3,
and clarifies that “[p]lanning for a national forest, grassland, prairie, or other
comparable administrative unit . . . is an iterative process that includes assessment (§
219.6); developing, amending, or revising a plan (§§ 219.7 and 219.13); and monitoring
(§ 219.12)[,]” id. § 219.5(a). The 2012 Planning Rule further provides specific
procedural guidance for agency officials with respect to each of these stages of the
planning process, such as the directive that the official “shall provide opportunities to
the public for participating” in the creation of any specific land management plan, id.
§ 219.4(a), and that, during the assessment phase, “[t]he responsible official shall
consider and evaluate existing and possible future conditions and trends of the plan
10 area, and assess the sustainability of social, economic, and ecological systems within
the plan area, in the context of the broader landscape[,]” id. § 219.5(a)(1).
The 2012 Planning Rule also sets forth a number of specific substantive
provisions that must be included in all land management plans. Section 219.8, for
example, states that “[t]he plan must provide for social, economic, and ecological
sustainability within Forest Service authority and consistent with the inherent capability
of the plan area,” and goes on to specify precisely what acceptable sustainability plan
provisions should entail. Id. § 219.8; see also, e.g., id. § 219.8(a) (stating that “[t]he
plan must include plan components, including standards or guidelines, to maintain or
restore the ecological integrity of terrestrial and aquatic ecosystems and watersheds in
the plan area”). The 2012 Planning Rule contains similar directives regarding the
inclusion of plan provisions related to plant and animal diversity, id. § 219.9(a);
multiple uses and ecosystem services, id. § 219.10(a); and timber harvest requirements,
id. § 219.11.
This all means that, in order to satisfy the requirements of the 2012 Planning
Rule, each forest plan must not only have been developed pursuant to certain procedural
steps, see, e.g., id. § 219.7(c), it must also include certain substantive elements. 4
Accordingly, while the 2012 Planning Rule outlines the same overarching development
process and management goals for every forest, each forest plan developed under the
Rule will be unique—tailored through a public process to “reflect[] the unit’s expected
distinctive roles and contributions to the local area, region, and Nation, and the roles
4 The precise content of the plan components is not dictated by the 2012 Planning Rule, instead, the Planning rule states that the content of the components should be crafted during the development of each forest plan in response to the unique needs of that forest. See 77 Fed. Reg. at 21,207.
11 for which the plan area is best suited[.]” 36 C.F.R. § 219.2(b); see also 77 Fed. Reg. at
21,182 (noting that the Rule “allows flexibility for plans to reflect the different unique
circumstances across the National Forest System.”).
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
Claims 1, 2, and 3 of the complaint are based upon the language of the 2012
Planning Rule section that is titled “Sustainability” (36 C.F.R. § 219.8). As noted
above, this provision states in part that land management plans “must provide for
social, economic, and ecological sustainability within Forest Service authority and
consistent with the inherent capability of the plan area.” 6 Plaintiffs assert that this
5 Plaintiffs state in their summary judgment motion that one of their claims (Claim 9) has been resolved by an amendment to the Planning Rule published after the filing of the complaint. (Pl. Br. in Supp. of Mot. for Summ. J., ECF No. 40-1, at 50-51.) 6 “Sustainability” is defined in the Planning Rule as “[t]he capability to meet the needs of the present
12 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[,]” 16
U.S.C. § 528—and none of these statutory purposes can be subordinate to “ecological
sustainability” without violating the statutes that define the permissible 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 36 C.F.R.
§ 219.10 violates the OAA (Claim 4), the NFMA (Claim 5), and the MUSYA (Claim 6),
by stating that land management plans “must provide for ecosystem services and
multiple uses, including outdoor recreation, range, timber, watershed, wildlife, and fish,
within Forest Service authority and the inherent capability of the plan area[.]” 36
C.F.R. § 219.10. (See Compl. ¶¶ 34–44). 7 According to Plaintiffs, the establishment of
a “mandate to provide ‘ecosystem services’” rules afoul of the statutory scheme by
generation without compromising the ability of future generations to meet their needs. For purposes of this part, ‘ecological sustainability’ refers to the capability of ecosystems to maintain ecological integrity.” 36 C.F.R. § 219.19. “Ecological integrity” is defined as “[t]he quality or condition of an ecosystem when its dominant ecological characteristics (for example, composition, structure, function, connectivity, and species composition and diversity) occur within the natural range of variation and can withstand and recover from most perturbations imposed by natural environmental dynamics or human influence.” Id. 7 “Ecosystem services” is defined in the 2012 Planning Rule as “[b]enefits people obtain from ecosystems, including: (1) Provisioning services, such as clean air and fresh water, energy, fuel, forage, fiber, and minerals; (2) Regulating services, such as long term storage of carbon; climate regulation; water filtration, purification, and storage; soil stabilization; flood control; and disease regulation; (3) Supporting services, such as pollination, seed dispersal, soil formation, and nutrient cycling; and (4) Cultural services, such as educational, aesthetic, spiritual and cultural heritage values, recreational experiences, and tourism opportunities.” 36 C.F.R. § 219.19.
13 “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[.]” 16 U.S.C.
§ 1604(g)(3)(B). Plaintiffs claim that 36 C.F.R. § 219.9—which directs that land
management plans must “provide the ecological conditions necessary to: contribute to
the recovery of federally listed threatened and endangered species, conserve proposed
and candidate species, and maintain a viable population of each species of conservation
concern within the plan area”—violates the NFMA because it does not make the
requirement to maintain viable populations of plant and animal species contingent upon
the “overall multiple-use objectives” specified by the statute. (Compl. ¶¶ 45–48.)
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[.]” 36 C.F.R.
§ 219.3. According to Plaintiffs, this “best available scientific information” (“BASI”)
requirement contradicts the directive in the NFMA that “[i]n the development and
maintenance of land management plans,” the Forest Service “shall use a systematic
interdisciplinary approach to achieve integrated consideration of physical, biological,
economic, and other sciences.” 16 U.S.C. § 1604(b). Plaintiff contends that the BASI
requirement imposes an unlawful limitation on the types of information that can be
considered in devising a land management plan. (Compl. ¶¶ 49–54.)
14 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.” 36 C.F.R. § 219.11(d). Plaintiffs claim that this provision violates the
NFMA because, while that law does provide that no timber harvest shall occur on lands
that are “not suited for timber production[,]”16 U.S.C. § 1604(k), the statute also
provides several exceptions to this general rule that are not stated in the 2012 Planning
Rule. In particular, Plaintiffs point to language in the NFMA that exempts “salvage
sales or sales necessitated to protect other multiple-use values” from the timber harvest
prohibition. 16 U.S.C. § 1604(k), see also id. §§1604(m), 1611(a). Plaintiffs claim that
the omission of the exception for “salvage and sanitation harvesting” from the 2012
Planning Rule constitutes a violation of the NFMA. (Compl. ¶¶ 58–65.)
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
15 standards, criteria, and guidelines applicable to Forest Service programs.” 16 U.S.C.
§ 1612(a). (See Compl. ¶ 76.) Plaintiffs also allege that this procedure violates the
APA’s public notice of rulemaking requirements, codified at 5 U.S.C. § 553. (Id.)
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 used, the 2012 Planning Rule requires that
land management plans include components addressing “sustainable recreation,”
without any provision for other types of recreation that might fall under the language of
the statutes. (Id. ¶ 79.) Plaintiffs thus claim that the definition of “sustainable
recreation” in the 2012 Planning Rule impermissibly narrows the range of recreational
activities that can be allowed under a land management plan because this new definition
will permit land management plans to ban certain types of recreation that the statute
contemplates should be allowed in national forests. (Id. ¶¶ 80, 81.)
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.)
8 “Sustainable recreation” is defined in the 2012 Planning Rule as “[t]he set of recreation settings and opportunities on the National Forest System that is ecologically, economically, and socially sustainable for present and future generations.” 36 C.F.R. § 219.19.
16 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]
9 Citations to the administrative record for the 2012 Planning Rule will be made as PR_xx. 10 Page numbers refer to the page numbers that the Court’s electronic filing system assigns.
17 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 should nevertheless deny Plaintiffs’ motion for summary
judgment and enter judgment in Defendants’ favor because, in Defendants’ view, “the
[2012] Planning Rule is a reasonable exercise of the USDA’s broad authority to manage
the [National Forest System] to meet the needs of the American people, and the
procedures followed by the Department fully comport with the APA.” (Id. at 10–11.)
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.)
18 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
19 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
20 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.” Fed. R. Civ. P. 56(a); Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 247 (1986); Moore v. Hartman, 571 F.3d 62, 66 (D.C. Cir. 2009). “A
fact is material if it ‘might affect the outcome of the suit under the governing law,’ and
a dispute about a material fact is genuine ‘if the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.’” Steele v. Schafer, 535 F.3d 689, 692
(D.C. Cir. 2008) (quoting Anderson, 477 U.S. at 248). “Summary judgment is the
proper mechanism for deciding, as a matter of law, whether an agency action is
supported by the administrative record and consistent with the APA standard of
review.” Loma Linda Univ. Med. Ctr. v. Sebelius, 684 F. Supp. 2d 42, 52 (D.D.C.
2010) (citing Stuttering Found. of Am. v. Springer, 498 F. Supp. 2d 203, 207 (D.D.C.
2007)); see also Richards v. INS, 554 F.2d 1173, 1177 n.28 (D.C. Cir. 1977).
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[,]” 5 U.S.C. § 706(2)(A), or “in excess of statutory jurisdiction, authority, or
limitations, or short of statutory right[,]” id. § 706(2)(C). When determining whether
21 an agency action exceeds the power granted by Congress in a statute, courts apply the
two-step analysis described in Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc.,
467 U.S. 837, 843 (1984). Pursuant to Chevron’s first step, if “Congress has directly
spoken to the precise question at issue[,]” a court “must give effect to the
unambiguously expressed intent of Congress.” Id. at 842–43. Thus, if a challenged
regulation conflicts with the clearly expressed intent of the statute, it is deemed invalid
and the court’s Chevron analysis is at its end. See, e.g., Orion Reserves Ltd. P’ship v.
Salazar, 553 F.3d 697, 703 (D.C. Cir. 2009) (“‘A regulation which . . . operates to
create a rule out of harmony with the statute is a mere nullity.’” (alteration in original)
(quoting Manhattan Gen. Equip. Co. v. Comm’r of Internal Revenue, 297 U.S. 129, 134
(1936)). If, however, “the statute is silent or ambiguous with respect to the specific
issue, the question for the court is whether the agency’s answer is based on a
permissible construction of the statute.” Chevron, 467 U.S. at 843; see also Barnhart v.
Walton, 535 U.S. 212, 218 (2002) (explaining that the reviewing court’s task at step two
of the Chevron analysis is to determine “whether the [agency] interpretation . . .
exceeds the bounds of the permissible”).
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
22 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 seek to clear the standing hurdle
by identifying overarching injuries that they claim their members have suffered (or will
imminently suffer) as a result of the 2012 Planning Rule and that a court order
invalidating that regulation would redress. First, Plaintiffs assert that their members are
“imminently threatened with economic harm” (Pl. Br. at 17) because Defendants’
promulgation of the 2012 Planning Rule will necessarily result in a reduction in the
timber harvest and the availability of public land for grazing and recreational use. (See
11 Seven plaintiff organizations have members who use the national forests for timber harvest. Plaintiffs Federal Forest Resource Coalition, American Forest Resource Council, Alaska Forest Association, and California Forestry Association are trade associations whose members manufacture wood products using raw materials from national forests and from forest lands that are adjacent to national forests. (See Compl. ¶ 4, 5, 11, 15.) Plaintiffs Minnesota Forest Industries, Minnesota Timber Producers Association, Montana Wood Products Association are nonprofit corporations that represent loggers, small sawmills, and truckers who operate in and near national forests. (See id. ¶ 13, 14, 16.) All of the timber-harvest Plaintiffs believe that the proper management of the National Forest System— which in their view, includes an emphasis on promoting timber-harvest—is vital to their economic interests. (See id. ¶ 4–5, 11, 13–16.) Three of the plaintiff organizations have members who use the national forests for livestock grazing. National Cattlemen’s Beef Association is a nonprofit corporation that represents cattle producers who hold grazing permits and leases authorizing livestock grazing on national forest lands. (See id. ¶ 9.) Similarly, Plaintiff American Sheep Industry Association is a nonprofit corporation that represents sheep producers that graze sheep on national forest lands. (See id. ¶ 10.) Plaintiff Public Lands Council is a nonprofit organization that represents both cattle and sheep producers. (See id. ¶ 8.) All of the livestock grazing Plaintiffs believe that “[t]he ability to graze livestock on federal lands, including federal lands managed by the U.S. Forest Service, is vitally important[.]” (Id.) The members of two of the plaintiff organizations use the national forests for recreational purposes. Plaintiff BlueRibbon Coalition and California Association of 4 Wheel Drive Clubs use the dirt roads and trails through national forest land for biking, hiking, and driving off-road vehicles. (See id. at ¶ 6, 7.) Finally, Plaintiff Resource Development Council for Alaska “is a statewide business association comprised of individuals and companies from Alaska’s oil and gas, mining, forest products, tourism and fisheries industries.” (Id. ¶ 12.) The Resource Development Council for Alaska purports to be concerned that the Planning Rule will restrict uses that contribute to economic development,” because “forest planning determines the mix of uses allowed on particular areas of the national forests including the Tongass and Chugach National Forests.” (Id.)
23 id. at 19–22.) Second, Plaintiffs maintain that the 2012 Planning Rule poses an
“imminent 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.
24 (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, thereby causing harm to these members. (See id.)
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
25 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
26 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.
1. Plaintiffs’ Contention That The 2012 Planning Rule Will Cause Reductions In Land Use That Will Injure Them Economically Is Sheer Speculation
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
27 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 36 C.F.R.
§ 219.11(d), and specifies that grazing levels will be “determined in individual plans
and at the site-specific level,” 77 Fed. Reg. at 21,162. This means that there are several
intervening decision points between the 2012 Planning Rule and the overall decrease in
timber harvest and grazing that Plaintiffs decry, and because the individual forest plans
that are ultimately developed pursuant to the 2012 Planning Rule might even establish
timber harvest and grazing levels that are higher than existing plans, an injurious
decrease in timber harvest and grazing levels does not follow inevitably from
Defendants’ promulgation of the Rule. Thus, the key standing criterion of imminence is
clearly lacking. See DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 345 (2006);
Whitmore, 495 U.S. at 158; City of Los Angeles v. Lyons, 461 U.S. 95, 108 (1983); cf.
Clapper, 133 S. Ct. at 1149 (2013) (holding that “because [the challenged statute] at
most authorizes—but does not mandate or direct—the [injury] that respondents fear,
respondents’ allegations are necessarily conjectural” and therefore are not imminent)
(emphasis in original).
28 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 pre-existing trend toward declining timber-harvest levels clearly
undermines Plaintiffs’ economic injury standing argument rather than bolstering it,
because that fact nullifies any assertion that the 2012 Planning Rule is itself the cause
of the decline and the resulting economic injury to Plaintiffs’ members. Indeed, the
record establishes (and Plaintiffs apparently concede) that the decline in timber harvest
is attributable to forces other than the 2012 Planning Rule (see PR_0103870; see also
PR_0103868 (noting that the current trend in timber harvest on NFS lands is not the
result of a particular management regime, but reflects a broader shift over several
decades “from primarily producing timber to restoring and maintaining healthy
ecological conditions and meeting the recreational and amenity preferences of the
public.”); therefore, that trend may continue regardless of the particular management
regime selected by the Forest Service. 12 Thus, far from proving that the 2012 Planning
Rule will cause timber harvest and grazing permits to be set at levels injurious to
12 Indeed, the EIS found that the historic trend in timber harvest levels would continue under all of the six alternative rules considered by the USDA. (See PR_0103874 (Alternative A and Modified Alternative A); PR_0103875 (Alternative B); PR_0103877 (Alternative C); PR_0103878 (Alternative D); PR_0103880 (Alternative E)).
29 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
13 Notably, Plaintiffs’ interest in having the Forest Service promulgate a regulation that would stop the current decline of timber harvesting does not give rise to standing to challenge a rule that purportedly fails to do so (i.e., the 2012 Planning Rule). See Valley Forge Christian Coll., 454 U.S. at 483 (“[A]ssertion of a right to a particular kind of Government conduct, which the Government has violated by acting differently, cannot alone satisfy the requirements of Art. III without draining those requirements of meaning.”).
30 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”), ECF No. 49 at 11 (citing EIS finding (at
PR_0103867) that between 2006 and 2011, “only 11 percent of timber harvest was
conducted for the sole purpose of producing timber products; [t]he remaining 89
percent included additional purposes, including hazardous fuels reduction, wildlife
habitat restoration, and watershed restoration”).) In fact, the Rule calls for exactly this
type of “integrated resource management,” directing the Forest Service to develop plans
that provide for multiple uses “[w]hile” meeting the needs sustainability and diversity.
36 C.F.R. § 219.10 (emphasis added). This means that the 2012 Planning Rule cannot
be faulted for necessarily and inevitably requiring a reduction in timber harvest and
grazing due to its sustainability mandates, and Plaintiffs do not show that the Rule
otherwise dictates how many acres are available for one use or another. 14
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
14 To the extent that Plaintiffs’ scarce resources allegations relate to the competitive-standing argument that the “affected parties are competing for a fixed amount of resources” (Pl. Reply at 20), that doctrine is only applicable where a regulatory decision “imposes a competitive injury, i.e., that provides benefits to an existing competitor or expands the number of entrants in the petitioner’s market[.]” New World Radio, Inc. v. FCC, 294 F.3d 164, 172 (D.C. Cir. 2002). Plaintiffs here fail to identify an existing competitor who benefits from the Rule, or to explain how the Planning Rule expands the number of entrants in the market, and thus the competitive standing doctrine is inapplicable here. See Sherley v. Sebelius, 610 F.3d 69, 73 (D.C. Cir. 2010) (“[T]he basic requirement common to all our cases is that the complainant show an actual or imminent increase in competition[.]”) Moreover, given Plaintiffs’ failure to establish that the Rule actually results in a reduced pool of forest resources, it would seem that Plaintiffs have not successfully skirted the broader causation and imminence problems despite their glancing reference to market competition.
31 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 parameters for subsequent forest plans such as the one at issue in
Mountain States, and in this Court’s view, that distinction makes all the difference. In
other words, because there is nothing in the instant record that reveals whether the 2012
32 Planning Rule will increase or decrease the level of timber harvest and the amount of
land available for grazing—and indeed, the Rule allows for either result—the D.C.
Circuit’s analysis in Mountain States does not support Plaintiffs’ claims that they will
suffer an imminent economic injury as a result of the 2012 Planning Rule. 15
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 v. Seldin, 422 U.S.
490, 505–06 (1975) (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
15 In their reply brief, Plaintiffs assert that the USDA’s fiscal year 2014 budget request from Congress, which calls for a 15% reduction in national forest timber sales, provides evidence of the effect of the planning rule, since “[n]o management change has occurred on national forests between fiscal year 2013 and fiscal year 2014 except adoption of the rule.” (Pl. Reply at 13 (emphasis in original).) This claim is not supported by authority and appears to be false, as Defendants point out that, in Congressional testimony, the head of the Forest Service attributed the decline to the sequester, not to the Planning Rule. (Def. Reply at 14.)
33 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. Persciasepe, 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 in [Mountain States], the timber
plaintiffs’ members across the United States are concretely injured by the Rule, which
has the same harmful impact on timber sales nationally as the forest-wide timber sale
reduction in [Mountain States].” (Pl. Reply at 13.) But, again, the agency action in
Mountain States actually set the level of timber to be harvested, and it was therefore
possible to identify the actual economic harm that would follow from the agency’s
determination. Here, Plaintiffs make the baffling assertions (1) that they have no duty
to demonstrate actual economic injury to their members (see Pl. Reply at 15 (“Plaintiffs
do not have to point to a specific piece of ground where a timber sale or grazing will be
prohibited to show that their economic injury is particularized.”); (2) that “[n]o case has
34 ever held that a plaintiff must show the geographic source of economic injury to
establish Article III standing”; and (3) that, with respect to being required to show
particular harmful prohibitions in timber harvesting and grazing as a result of the 2012
Planning Rule, “it is impossible to prove a negative by showing where an action has not
occurred” (id. (emphasis in original)). Plaintiffs’ reasoning clearly misunderstands the
point of the particularized injury mandate, which requires precisely the kind of
“personal and individual” showing of injury that Plaintiffs denounce. See, e.g.,
Massachusetts v. EPA, 549 U.S. 497, 541 (2007) (“Central to th[e] concept of
particularized injury is the requirement that a plaintiff be affected in a personal and
individual way, and seek relief that directly and tangibly benefits him in a manner
distinct from its impact on the public at large.” (citations and internal quotation marks
omitted)); Lujan, 504 U.S. at 560 n. 1 (stating that to have standing, the plaintiff must
have suffered a “particularized” injury, which means that “the injury must affect the
plaintiff in a personal and individual way”); Bender v. Williamsport Area School Dist.,
475 U.S. 534, 543–544 (1986) (noting that a plaintiff who “has no personal stake in the
outcome of the litigation” has no standing); Simon, 426 U.S. at 39 (“The necessity that
the plaintiff who seeks to invoke judicial power stand to profit in some personal interest
remains an Art. III requirement”).
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
35 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
dissent) that was based on the “statistical probability that some of [the members of
plaintiff organizations] are threatened with concrete injury.” Id. at 497. Instead, the
majority held that “this novel approach to the law of organizational standing would
make a mockery of our prior cases, which have required plaintiff-organizations to make
specific allegation establishing that at least one identified member had suffered or
would suffer harm.” Id. at 497–98.
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
36 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
16 The alleged imminent threat of increased wildfires and insect infestations also bear on Plaintiffs’ economic injury arguments, as noted above; however, these alleged injuries also appear to be the basis for Plaintiffs’ separate assertion of “environmental” harm. (See Pl. Br. at 22–23.)
37 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 cases, the door remains only slightly ajar.” Ass’n
of Am. Physicians & Surgeons v. FDA, 539 F.Supp.2d 4, 17 (D.D.C. 2008), aff’d sub
nom. Ass’n of Am. Physicians v. FDA, 358 F. App’x 179 (D.C. Cir. 2009) (internal
quotation marks and citations omitted). “[A] plaintiff who plans to satisfy the imminent
injury requirement by alleging that the challenged act will increase the risk of harm to
[the plaintiff], must do more than merely assert that there is some conceivable risk that
[plaintiff] will be harmed on account of the defendant’s actions.” Food & Water
Watch, 2015 WL 514389, at *9. Instead, such a plaintiff must demonstrate that it faces
“both (i) a substantially increased risk of harm and (ii) a substantial probability of harm
with that increase taken into account.’” Pub. Citizen, Inc. v. Nat’l Highway Traffic
Safety Admin., 513 F.3d 234, 237 (D.C. Cir. 2008) (emphasis in original) (quotation
marks and citation omitted)). Moreover, “[i]n applying the ‘substantial’ standard, we
are mindful, of course, that the constitutional requirement of imminence as articulated
by the Supreme Court . . . necessarily compels a very strict understanding of what
38 increases in risk and overall risk levels can count as ‘substantial.’” Pub. Citizen, Inc. v.
Nat’l Highway Traffic Safety Admin., 489 F.3d 1279, 1296 (D.C. Cir. 2007).
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
39 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. 36 C.F.R. § 219.8(a)(1)(iv), (v). Thus, forest plans
ultimately developed under the 2012 Planning Rule may well include components
designed to reduce the risk of wildfire and insect infestation, despite the purported
reduction in harvest levels that Plaintiffs’ assert will follow from implementation of the
Rule. Consequently, this Court refuses to speculate that land management plans that
are developed pursuant to the 2012 Planning Rule will necessarily increase the risk of
wildfire and insect infestation, and therefore will not rule that Plaintiffs have satisfied
their burden of establishing an injury-in-fact for standing purposes on the basis of the
alleged wildfire-risk injury.
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
40 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 36 C.F.R. § 219.3 precludes
41 consideration of non-scientific information; therefore the best available science
requirement does not threaten the Plaintiffs’ interest in commenting on forest
management plans developed pursuant to the 2012 Planning Rule in any respect.
Indeed, the 2012 Planning Rule itself states in no uncertain terms that “[w]hile [the best
available scientific information] must inform the planning process and plan
components, it does not dictate what the decision must be. . . . [O]ther factors [in the
planning process] include budget, legal authority, local and indigenous knowledge,
Agency policies, public input, and the experience of land managers.” 77 Fed. Reg. at
21,193.
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
42 GRANTED, and Intervenor-Defendants’ Motion for Summary Judgment is DENIED as
moot.
DATE: April 28, 2015 Ketanji Brown Jackson KETANJI BROWN JACKSON United States District Judge
Federal Forest Resource Coalition v. Vilsack (Federal Forest Resource Coalition v. Vilsack) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.