Blue Mountains Biodiversity Project v. Wilkes

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BLUE MOUNTAINS BIODIVERSITY PROJECT, an Oregon non-profit corporation, FINDINGS AND Plaintiff, v. HOMER WILKES, in his official capacity as Undersecretary for Natural Resources and Environment, United States Department of Agriculture; GLENN CASAMASSA, in his official capacity as Regional Forester for Region 6; SHANE JEFFRIES, in his official capacity as Forest Supervisor of the Ochoco National Forest; MICHAEL RAMSEY, in his official capacity as District Ranger for the Lakeview Ranger District, Fremont Winema National Forest; and the UNITED STATES FOREST SERVICE, Defendants.

No. 1:22-cv-01500-CL

United States District Court, D. Oregon, Medford Division

April 27, 2023

FINDINGS AND RECOMMENDATION

MARK D. CLARKE UNITED STATES MAGISTRATE JUDGE

This case comes before the Court on Defendants' Motion to Dismiss (ECF No. 24). For the reasons that follow Defendants' motion should be DENIED.

BACKGROUND

The following facts are taken from Plaintiff's complaint and are accepted as true for the purpose of the pending motion. See Compl, ECF No. 1.

During the 1990s, in response to concerns about over-logging, the United States Forest Service (“Forest Service”) noted that “eastside ecosystems are stressed and unstable” because of “management practices of this century that have reduced diversity ... and long-term productivity.” Id. ¶ 48 (citation omitted). In 1994, the Forest Service established new standards known as the “Eastside Screens” for timber sales in the eastside forests, which include the Fremont-Winema National Forest (“FWNF”). Id. ¶ 49 (citation omitted). In addition to other requirements, the Eastside Screens prohibited logging “live trees” greater than 21” diameter at breast height (“DBH”). Id. (citation omitted).

In 2020, the Forest Service published a “Notice to initiate a land management plan amendment and a notice of availability[,]” which explained that “[t]he Forest Service is proposing to replace the 21” standard with a guideline that emphasizes recruitment of old trees and large trees[.]” Id. ¶ 50 (citing 85 Fed.Reg. 48,500-01 (Aug. 11,2020)). This land management plan amendment is known as the “Eastside Screens Amendment.” The Notice listed Ochoco Forest Supervisor Shane Jeffries, as the Responsible Official and noted that the Preliminary EA (“PEA”) and other related documents were available for public comment. Id. The Notice also explained that “[t]he EA is subject to Forest Service regulation 36 CFR 219, Subpart B, known as the administrative review, or objection, process.” Id. A subsequent Notice extended the public comment period and again noted that “[t]his EA is subject to Forest Service regulation 36 CFR 219, Subpart B, known as the administrative review, or objection, process.” Id. ¶ 51 (citing 85 Fed.Reg. 55,409 (Sep. 8, 2020)). The subsequent Notice did not name a Responsible Official but noted that any hardcopy comments should be submitted to “Shane Jeffries, Forest Supervisor, Ochoco National Forest.” Id.

The Forest Service published the PEA in August 2020 and listed Shane Jeffries as the Responsible Official. Id. ¶ 52 (citation omitted). The PEA suggested raising the limit for what qualifies as a “large tree” for grand fir, white fir, and Douglas fir and recommended a new standard of 30” DBH for these trees. Plaintiff submitted comments on the Eastside Screens Amendment PEA on October 13, 2020. Id. ¶ 53.

On January 12, 2021, the Forest Service published the Final EA (“FEA”) and Decision Notice/Finding of No Significant Impact (“DN/FONSI”) for the Eastside Screens Amendment. Id. ¶ 54. The FEA and DN/FONSI included additional analysis on the environmental impacts to wildlife and plant species in the project area that was not included in the PEA. Id. Plaintiff emphasizes it did not have a chance to review and comment on the additional analysis. Id. The FEA and DN/FONSI listed then-Under Secretary for National Resources and Environment (“Under Secretary”) James Hubbard as the Responsible Official. Id. ¶ 55 (citation omitted). The DN/FONSI also noted:

In accordance with the regulation at 36 CFR 219.51(b), this plan amendment is not subject to objection (administrative review) because it is signed by the Under Secretary for Natural Resources and Environment. As such, this decision is the final administrative determination by the U.S. Department of Agriculture.

Id.

In December 2021, the Forest Service published a Decision Memo for the FWNF's South Warner Project that explained the Forest Service would be logging “larger [white fir] (<30”) and other species to reduce competition around larger trees[.]” Id. ¶ 60 (citation omitted).

In October 2022, Plaintiff filed the instant action. See Compl., ECF No. 1. Plaintiff alleges that Defendants violated the National Forest Management Act (“NFMA”) and the Administrative Procedure Act (“APA”) in three ways: (1) Defendants approved the 2021 Eastside Screens Amendment without providing for an objection process in violation of 36 C.F.R. § 219.51(b); (2) Defendants failed to provide an explanation for why the 2021 Eastside Screens Amendment was not subject to the objection process in violation of 36 C.F.R. § 219.51(d); and (3) Defendants approved the South Warner Project, which authorizes the logging trees greater than 21” DBH based on the 2021 Eastside Screens Amendment and in violation of the original Eastside Screens. Id. ¶¶ 65-67.

LEGAL STANDARD

A motion to dismiss under Rule 12(b)(6) for failure to state a claim may be granted only when there is no cognizable legal theory to support the claim or when the complaint lacks sufficient factual allegations to state a facially plausible claim for relief. Shroyer v. New Cingular Wireless Servs., Inc., 622 F.3d 1035, 1041 (9th Cir. 2010). In evaluating the sufficiency of a complaint's factual allegations, the court must accept as true all well-pleaded material facts alleged in the complaint and construe them in the light most favorable to the non-moving party. Wilson V. Hewlett-Packard Co., 668 F.3d 1136, 1140 (9th Cir. 2012); Daniels-Hall v. Nat'l Educ. Ass'n, 629 F.3d 992, 998 (9th Cir. 2010). To be entitled to a presumption of truth, allegations in a complaint “may not simply recite the elements of a cause of action, but must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively.” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). All reasonable inferences from the factual allegations must be drawn in favor of the plaintiff. New cal Indus, v. Ikon Office Solution, 513 F.3d 1038, 1043 n.2 (9th Cir. 2008). The court need not, however, credit the plaintiff's legal conclusions that are couched as factual allegations. Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009).

A complaint must contain sufficient factual allegations to “plausibly suggest an entitlement to relief, such that it is not unfair to require the opposing party to be subjected to the expense of discovery and continued litigation.” Starr, 652 F.3d at 1216. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)). “The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Mashiri v. Epstein Grinnell & Howell, 845 F.3d 984, 988 (9th Cir. 2017) (quotation marks omitted).

DISCUSSION

Defendants argue that Plaintiff's claims should be dismissed because they are “based on the incorrect and non-cognizable legal theory that U.S. Department of Agriculture's regulations require the Department to hold an objection period for a Forest Service decision signed by the Under Secretary.” Defs.' Mot. Dismiss 6, ECF No. 24 (“Defs.' Mot.”). Specifically, Defendants argue that: (1) decisions by the Under Secretary are “proposed” by the Under Secretary and' therefore not subject to an objection process; and (2) the Forest Service adequately explained why an objection process was not required by citing the relevant regulation. Defs.' Reply 2-12, ECF No. 34. The Court addresses each argument in turn.

I. 36 C.F.R. § 219.51(b)

At the heart of the parties' dispute is the meaning of the word “proposed” in 36 C.F.R. § 219.51(b). This section of the Department of Agriculture's regulations states that:

Plans, plan amendments, or plan revisions proposed by the Secretary of Agriculture or the Under Secretary for Natural Resources and Environment are not subject to the procedures set forth in this section. A decision by the Secretary or Under Secretary constitutes the final administrative determination of the U.S. Department of Agriculture.

36 C.F.R. § 219.51(b). Defendants offer the following interpretation of Section 219.51(b):

Read plainly, these two sentences exempt the Under Secretary's decisions from the pre-decisional objection process. The first sentence sets forth the rule-plan amendments proposed by the Secretary or Under Secretary are not subject to objection. The second sentence sets forth the why-because those decisions by the Under Secretary are the final decisions of the Department of Agriculture. So decisions made by the Under Secretary are “proposed” by him and do not receive an objection period.

Defs.' Reply 3, ECF No. 34. Plaintiff argues that, if the Court accepts Defendants' interpretation, “the Under Secretary is presumably able to both propose and approve a decision in one fell swoop with the simple signing of a Decision Notice.” Pl.'s Resp. 14, ECF No. 30.

A court interprets regulations based on their plain language. Pardini v. Unilever United States, Inc., __ F.4th...