WILDERNESS SOCIETY v THOMAS, 9816693
U.S. 9th Circuit Court of Appeals
WILDERNESS SOCIETY v THOMAS
9816693
WILDERNESS SOCIETY, a non-profitcorporation; SIERRA CLUB, a non-profit corporation,Plaintiffs-Appellants,v.JACK WARD THOMAS, Chief of theUnited States Forest Service; CHIPCARTWRIGHT, Regional Forester forNo. 98-16693the Southwest Region of theD.C. No.Forest Service; MICHAEL KING,CV-96-01812-PGRForest Supervisor for the PrescottNational Forest,OPINIONDefendants-Appellees,YAVAPAI CATTLE GROWERSASSOCIATION, a non-profitassociation; REX G. MAUGHAN;RUTH G. MAUGHAN; HOBSONFAMILY TRUST,Defendants-Intervenors-Appellees.
Appeal from the United States District Courtfor the District of ArizonaPaul G. Rosenblatt, District Judge, PresidingArgued and SubmittedJuly 13, 1999--San Francisco, CaliforniaFiled August 24, 1999Before: Herbert Y. C. Choy, Ferdinand F. Fernandez andSidney R. Thomas, Circuit Judges.Opinion by Judge Sidney R. Thomas
_____________________________COUNSEL Deborah S. Reames, Earthjustice Legal Defense Fund, SanFrancisco, California, Gilbert T. Venable, Barton, Venabale,Gullette & Randall, Phoenix, Arizona, for the plaintiffs-appellants.Lisa E. Jones, Environment & Natural Resources Division,United States Department of Justice, Washington, D.C., forthe defendants-appellees.Karen Budd-Falen, L. Eric Lundgren, Budd-Fallen LawOffices, Cheyenne, Wyoming, for the defendants-intervenors-appellees.
_____________________________OPINION THOMAS, Circuit Judge:In this appeal, we consider whether the United States ForestService ("Forest Service") violated the National Forest Man-agement Act ("NFMA" or "the Act"), 16 U.S.C. S 1600, etseq., in preparing a Forest Plan for the Prescott National For-est. We conclude that the Forest Service complied with theAct, and affirm the judgment of the district court.IThe Prescott National Forest ("Forest") is a unit of theNational Forest System located in a relatively mountainousarea in central Arizona, about 70 air miles north of Phoenix.Following its creation in 1908, the original Forest area wassupplemented by additional land over the years, and it nowcontains approximately 1,227,000 acres. The Forest Servicemanages the Forest for a variety of uses, including camping,backpacking and horseback riding. It has historically alsobeen used for livestock grazing, managed through the issu-ance of grazing permits to ranchers on a total of 69 separategrazing allotments.The NFMA requires the Forest Service to develop andmaintain a forest management plan for each unit of theNational Forest System. See 16 U.S.C. S 1604 (a). The forestplans must provide for multiple uses of forests, including"coordination of outdoor recreation, range, timber, watershed,wildlife and fish, and wilderness." 16 U.S.C.S 1604(e)(1). Allpermits and contracts for the use of the forests must be consis-tent with the forest plans. See 16 U.S.C.S 1604(i).In November 1985, the Forest Service issued a ProposedNational Forest Plan for the Forest in central Arizona,together with a Draft Environmental Impact Statement. Aftera period of public comment and review, the final Plan andaccompanying Environment Impact Statement ("EIS") wereissued. The Regional Forester approved the Plan in a Recordof Decision ("ROD").The Plan identified aggregate acreage not "capable" ofbeing used for commercial livestock grazing due to physicalconstraints such as steepness of slopes and lack of soil. Acoalition of environmental groups, including the plaintiffs,administratively appealed the ROD, claiming that the ForestService was obligated by its own regulations to conduct a sep-arate grazing suitability analysis in order to physically iden-tify land "suitable" for livestock grazing.The Forest Service affirmed the Regional Forester's deci-sion to adopt the Plan, concluding that it conformed to appli-cable regulations. Thereafter, the plaintiffs filed suit in districtcourt, alleging that the NFMA requires the Forest Service todetermine whether lands deemed "capable" of supportinglivestock grazing are also "suitable" for livestock grazing,based on a consideration of the economic and environmentalconsequences of grazing and the alternative uses foregone.Additionally, plaintiffs alleged that since the adoption of thePlan, the Forest Service has approved numerous site-specificallotment management plans and issued grazing permits with-out conducting an analysis of "grazing suitability."The complaint stated four claims for relief: (1) that the For-est Service violated the NFMA by adopting the Plan beforeconducting a grazing suitability determination; (2) that theForest Service violated the NFMA by issuing grazing permitsfor the Crooks Canyon/Maverick grazing allotment withoutfirst conducting a grazing suitability determination; (3) thatthe Forest Service violated the NFMA by issuing grazing per-mits for the Brady Butte grazing allotment without first con-ducting a grazing suitability determination; and (4) that theForest Service violated the Administrative Procedures Act("APA") by arbitrarily and capriciously permitting grazing inthe Prescott National Forest in the absence of a suitabilitydetermination.The district court granted summary judgment in favor ofthe Forest Service and defendants-intervenors Yavapai CattleGrowers, and this appeal followed.IIWe address first the question of whether this case is justi-ciable pursuant to Ohio Forestry Ass'n, Inc. v. Sierra Club,118 S. Ct. 1665 (1998). Ohio Forestry held that a genericchallenge to a forest plan untethered to any specific or con-crete harm was not ripe for adjudication, and therefore notjusticiable. The Court enumerated three factors in decidingwhether the agency decision to adopt the forest plan was ripefor judicial review: "(1) whether delayed review would causehardship to the plaintiffs; (2) whether judicial interventionwould inappropriately interfere with further administrativeaction; and (3) whether the courts would benefit from furtherfactual development of the issues presented." Id. at 1670.Applying those criteria to a challenge to a forest plan'sspecification for logging and clear-cutting, the Court notedthat the forest plan at issue did not by itself bestow or dimin-ish legal rights because any logging activity requires a site-specific action preceded by a permitting process. See id. Asa consequence, the challenge to the forest plan was not ripefor judicial review. See id. However, the Court further notedthat the ripeness doctrine does not always render forest plansimmune to challenge because a later challenge to a site-specific action, brought "when harm is more imminent andmore certain[,] . . . might also include a challenge to the law-fulness of the present Plan if . . . the Plan plays a causal rolewith respect to the . . . then-imminent[ ] harm from logging."Id. The Court indicated that the ripeness doctrine would notbar a challenge to a forest plan if the plaintiff alleged a spe-cific harm that would flow immediately from adoption of theplan. See id. at 1672-73.1[1]Ohio Forestry embraces the eminently sensible proposi-tion that harm is best assessed when it is tangible, rather thantheoretical. Thus, for a challenge to a forest plan to be justi-ciable under the Act, the plaintiffs must allege either (1)imminent concrete injuries that would be caused by the forestplan, such as "allowing motorcycles into a bird-watchingarea" or "clos[ing] a specific area to off-road vehicles," see118 S. Ct. at 1673, or (2) a site-specific injury causally relatedto an alleged defect in the forest plan. Generic challenges tothe sufficiency of forest plans are no longer justiciable, norare challenges that merely identify affected sites withoutalleging a harm causally related to the forest plan. See id.; seealso ONRC Action v. BLM, 150 F.3d 1132, 1136 (9th Cir.1998) (acknowledging that Ohio Forestry "calls into doubt aplaintiff's ability to challenge an agency's adoption of a planwithout site-specific actions as the focus of the challenge").[2] Here, plaintiffs' complaint alleges not only that the For-est Service violated the NFMA by failing to conduct a forest-wide grazing suitability study, but also that the Forest Serviceviolated the NFMA at a site-specific level by approving allot-ment management plans for the Crooks Canyon/Maverick andthe Brady Butte allotments without identifying the lands suit-able for grazing on those allotments. In short, the plaintiffsallege that the Forest Service's general methodology in deter-mining grazing suitability in the Forest Plan was flawed, caus-ing site-specific harm by allowing grazing in an areaunsuitable for it. Thus, the claims alleged in count one (a gen-eral challenge to the Forest Plan) are not justiciable; however,the claims alleged in counts two and three (site specific injuryrelating to Crooks Canyon/Maverick and the Brady Butteallotments) are ripe for review. Because the site-specificinjury to the two allotments is alleged to have been caused bya defect in the Forest Plan, we may consider whether the For-est Service complied with the Act in making its general graz-ing suitability determinations in the Forest Plan.[3] In sum, the Ohio Forestry ripeness factors do not weighagainst judicial review of counts two and three at this junc-ture. An actual, site-specific injury causally related to a plandefect has been alleged. The question presented by the plain-tiffs -- whether the Forest Service is obliged under theNFMA to conduct a distinct grazing suitability analysis -- isessentially a question of law. Therefore, the court would notbenefit from further factual development of the issue pre-sented. Because the action seeks to compel the agency tocomply with an alleged NFMA requirement, judicial interven-tion would not interfere inappropriately with further adminis-trative action. Finally, our review does invoke "the kind of`abstract disagreements over administrative policies' that theripeness doctrine seeks to avoid." Ohio Forestry, 118 S. Ct.at 1672 (quoting Abbott Labs. v. Gardner
387 U.S. 136
, 148(1967)). However, count one of plaintiffs' complaint presentsa generic challenge which Ohio Forestry cautions againstadjudicating. Thus, counts two and three of plaintiffs' com-plaint are ripe for adjudication; count one is not.IIIThe Plan EIS stated that 273,000 acres of the Forest werenot suitable for livestock grazing because of steep slopes,unstable soils, rock outcrops, and dense timber. The Plan des-ignates the remaining 977,834 acres of the forest as suitablefor livestock grazing. Plaintiffs argue that the Plan shows anidentity of acreage between land designated as "capable" andland designated as "suitable" as a result of a blanket decisionto designate as suitable all lands capable of grazing, withouttaking into account the economic or environmental conse-quences of livestock grazing or its effects on alternative usesof those lands as required by Forest Service regulations.2[4] The applicable regulations mandate that the "suitabilityand potential capability of National Forest System lands forproducing forage for grazing animals and for providing habi-tat for management indicator species shall be determined" inthe forest planning process. 36 C.F.R. S 219.20. To this end,the Forest Service must identify lands suitable for grazing andbrowsing, id., where suitability is "[t]he appropriateness ofapplying certain resource management practices to a particu-lar area of land, as determined by an analysis of the economicand environmental consequences and the alternative usesforegone," id. S 219.3.A[5] The Forest Service analyzed economic and environmen-tal consequences, and considered alternative uses foregone,associated with different grazing suitability levels at the EISstage of the forest planning process. The EIS examined sevenPlan alternatives, each with different management goals anddirectives with respect to soil and water, recreation, wildlifeand fish, range, and timber and fuelwood. Given this, the For-est Service asserts that the grazing suitability determinationwas conducted within a planning process that focused not onone resource at a time but, instead, upon alternatives withinwhich different resources and management practices wereproposed.[6] After reviewing the record, we conclude that through itsanalysis of the alternatives considered in the EIS, the ForestService adequately considered both economic and environ-mental consequences, as well as opportunities foregone, forthe preferred Plan. Where review involves the interpretationof an agency regulation, we defer "to the agency's interpreta-tion unless it is plainly erroneous or inconsistent with theregulation." Salmon River Concerned Citizens v. Robertson,32 F.3d 1346, 1356 (9th Cir. 1994) (citing Marathon Oil v.United States, 807 F.2d 759, 765 (9th Cir. 1986)). Here, itcannot be said that the agency's approach to determininggrazing suitability within the consideration of alternatives inthe EIS is plainly inconsistent with or contrary to the dictatesof the regulation. Although the Forest Service unnecessarilycomplicated the analysis by occasionally interchanging theterms "suitability" and "capability," it did not violate the Actor its implementing regulations.B[7] Plaintiffs also contend that the Forest Service's consid-eration of alternatives does not satisfy NFMA's requirementfor a determination of grazing suitability because the grazingoutcomes were predetermined by the Forest Service's FOR-PLAN computer program. This argument misapprehends theprogram. At least at this stage of its development, FORPLANis not an artificial life form. It is, purely and simply, an ana-lytic modeling tool. It provides, among other things, an analy-sis of the economic consequences of various planningassumptions. Plaintiffs complain that some of these assump-tions included grazing. However, examination of alternativesis precisely what is required of the Forest Service. To be sure,the FORPLAN analysis of the EIS preferred alternative didinclude a grazing assumption. However, other examinedoptions did not. One alternative contained no grazingrestraints while the other alternatives constrained grazing to afloor ranging from 86 to 177.5 animal unit months.[8] The very object of the analytic exercise is to examinethe effects of alternatives; the Forest Service did not err byincluding grazing among them. Indeed, the Forest Service isplainly entitled to identify "parameters and criteria[ ] relatedto Plan standards" in generating alternatives for final consid-eration in the EIS. Idaho Conservation League v. Mumma,956 F.2d 1508, 1522 (9th Cir. 1992) (accepting, for purposesof a challenge to a forest plan under the National Environ-mental Policy Act, that the Forest Service had properly elimi-nated an alternative containing more wilderness area becauseFORPLAN had been programmed only to generate alterna-tives which satisfied a given timber yield in the first decadeof the plan). The Forest Service does not violate the Act byemploying FORPLAN to assist in the analysis. See NevadaLand Action Ass'n v. US Forest Service, 8 F.3d 713, 717 (9thCir. 1993).IV[9] Last, we consider plaintiffs' claim under the Adminis-trative Procedures Act ("APA"). Under the APA, an agencydecision may be set aside only if it is "arbitrary, capricious,an abuse of discretion, or otherwise not in accordance withlaw." 5 U.S.C. S 706(2)(A); Anaheim Mem'l Hosp. v. Shalala,130 F.3d 845, 849 (9th Cir. 1997). Here, plaintiffs argue thatthe record contains no rational basis or explanation for theForest Service's grazing suitability determination.[10] Although plaintiffs identify this as a separate claim, itis subsumed into our resolution of the NFMA claim. Havingdetermined that the Forest Service complied with the NFMAin adopting the Plan, including the grazing suitability determi-nation therein, plaintiffs' APA claim fails.VThe Forest Service is charged with managing the NationalForest System for multiple uses, including livestock grazing.The preferred Plan reflects a balancing of those interests. Rea-sonable minds may differ in selecting the best alternative.However, the agency's assessment is not one we will judi-cially disturb, absent a violation of statute or regulation. Inthis case, the Forest Service complied with the NFMA inadopting the Plan, including the Plan's allocation of acreagesuitable for grazing.We dismiss the appeal as to count one of plaintiffs' com-plaint as non-justiciable. We affirm in all other respects thejudgment of the district court.DISMISSED IN PART; AFFIRMED IN PART. the end
___________________________FOOTNOTES 1 The Ohio Forestry court also acknowledged that a forest plan couldalways be challenged under the National Environmental Protection Act("NEPA") because "NEPA, unlike the NFMA, simply guarantees a partic-ular procedure, not a particular result." 118 S. Ct. at 1672. Thus, "a personwith standing who is injured by a failure to comply with the NEPA proce-dure may complain of that failure at the time the failure takes place, forthe claim can never get riper." Id. There is no NEPA claim in this case.2 The applicable regulation governing livestock grazing provides that: In forest planning, the suitability and potential capability of National Forest System lands for producing forage for grazing animals and for providing habitat for management indicator spe- cies shall be determined as provided in paragraphs (a) and (b) of this section. Lands so identified shall be managed in accordance with direction established in forest plans. (a) Lands suitable for grazing and browsing shall be identified and their condition and trend shall be determined. The present and potential supply of forage for livestock, wild and free- roaming horses and burros, and the capability of these lands to produce suitable food and cover for selected wildlife species shall be estimated. The use of forage by grazing and browsing animals will be estimated. Lands in less than satisfactory condition shall be identified and appropriate action planned for their restoration.36 C.F.R. S 219.20.The regulations define "capability" as: The potential of an area of land to produce resources, supply goods and services, and allow resource uses under an assumed set of management practices and at a given level of management intensity. Capability depends upon current conditions and site conditions such as climate, slope, landform, soils, and geology, as well as the application of management practices, such as silvi- culture or protection from fire, insects, and disease.36 C.F.R. S 219.3"Suitability" is defined as: The appropriateness of applying certain resource management practices to a particular area of land, as determined by an analysis of the economic and environmental consequences and the alterna- tive uses foregone. A unit of land may be suitable for a variety of individual or combined management practices.Id.