High Sierra Hikers Assn v. Weingardt

521 F.Supp.2d 1065

HIGH SIERRA HIKERS ASSN, et al., Plaintiffs, v. Bernie WEINGARDT, et al., Defendants.

No. C-00-01239 EDL.

United States District Court, N.D. California.

October 30, 2007.

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Peter M.K. Frost, Western Environmental Law Center, Eugene, OR, Julia Ann Olson, Wild Earth Advocates, San Francisco, CA, for Plaintiffs.

David Bernard Glazer, U.S. Department of Justice, San Francisco, CA, for Defendants.

ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT AND GRANTING IN PART AND DENYING IN PART DEFENDANTS' CROSS-MOTION FOR SUMMARY JUDGMENT

ELIZABETH D. LAPORTE, United States Magistrate Judge.

I. Background

On April 10, 2000, Plaintiffs High Sierra Hikers Association, et al. ("Plaintiffs") filed this action for declaratory and injunctive relief against Defendants Bradley Powell, et al. ("Defendants")¹, alleging violations of the National Forest Management Act ("NFMA"), 16 U.S.C. §§ 1600-1687, the Wilderness Act, 16 U.S.C. §§ 1131-1136, the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321-4370d and the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701-706 arising from the Forest Service's allowance of special use permits for commercial packstock operations in the Ansel Adams and John Muir Wilderness areas. On June 5, 2001, the Court issued an order regarding the merits of the parties' cross-motions for summary judgment, and on January 9, 2002, after further briefing, issued an order granting injunctive relief and ordering the Forest Service to complete a NEPA cumulative impacts analysis by December 31, 2005 and a site-specific analysis for each special use permittee for packstock operations by December 31, 2006. The Court also ordered interim protective measures, including, inter alia, a reduction in the service day allocation for packstock operators, a reduction in maximum packstock group size and implementation of trail head quotas. Both sides appealed.

On December 1, 2004, the Ninth Circuit issued its decision affirming the Court's ruling that the Forest Service violated NEPA and the Court's order of injunctive relief. See High Sierra Hikers Ass'n v. Blackwell, 390 F.3d 630 (9th Cir.2004). The Ninth Circuit reversed the Court's grant of summary judgment in favor of the Forest Service under the Wilderness Act, holding that "the Wilderness Act imposes substantive requirements on an administering agency and that there are triable issues of fact regarding whether the Forest Service damaged the wilderness areas." Blackwell, 390 F.3d at 649. The Ninth Circuit remanded on the Wilderness Act issue, stating:

The equitable relief granted by the injunction in practicality addresses most of the substantive violations of the Wilderness Act pending the Forest Service's compliance with NEPA, as ordered by the district court. However, the injunction does not address remediation of any degradation that may have been caused by packstock services before the 2001 Needs Assessment. The requirements of NEPA are procedural, to assure that the agency takes a hard look at the important environmental factors, whereas the Wilderness Act sets forth substantive requirements to protect the wilderness. Until such time as the Forest Service complies with the court's order concerning the NEPA, procedural requirements, and thereafter reaches a decision concerning the commercial activity permissible in the Wilderness Areas, the Court's interim injunction largely addresses the requirements of the Wilderness Act. The ultimate decision of the Forest Service will remain subject to the substantive requirements of the Wilderness Act. We affirm the decision of the district court in granting the injunction, but reverse the summary judgment with respect to the Forest Service's compliance with the Wilderness Act and remand to the district court for a determination of appropriate relief under the Wilderness Act for remediation of any degradation that has already occurred.

Blackwell, 390 F.3d at 649. The Ninth Circuit also stated:

The Forest Service's decision to grant permits at their pre-existing levels in the face of documented damage resulting from overuse does not have rational validity. In its Needs Assessment, the Forest Service listed the trailheads showing damage from overuse, but it did not take the next step to actually protect those areas by lowering the allowed usage. Given the Wilderness Act's repeated emphasis of the administering agency's responsibility to preserve and protect the wilderness areas, this decision cannot be reconciled with the Forest Service's statutory responsibility.

Blackwell, 390 F.3d at 648.

At a status conference in February 2005, the parties agreed that the question of remediation of past wilderness degradation should be held in abeyance until the Forest Service completed the court-ordered environmental analyses pursuant to NEPA by the end of 2005 and 2006. Subsequently, on December 27, 2005, the Forest Service issued a Final Environmental Impact Statement ("FEIS") and Record_ a Decision for the Trail and Commercial Pack Stock Management in the Ansel Adams and John Muir Wildernesses ("2005 ROD") adopting Alternative 2 — Modified from the FEIS that addressed the cumulative impacts of pack stock operations in the Ansel Adams and John Muir Wilderness Areas. Administrative Record ("AR") 8880, et seq.

The Court held a status conference on March 7, 2006. At that conference, the Court gave Plaintiffs leave to file an amended complaint at the conclusion of the administrative appeal process for the 2005 ROD. Plaintiffs' administrative appeal of the 2005 ROD was subsequently denied.

On August 31, 2006, Plaintiffs filed an amended complaint challenging the 2005 ROD. In September 2006, Plaintiffs sought an extension of the injunctive relief ordered by the Court in January 2002. In November 2006, the Court declined to extend the terms of the injunction, which applied pending completion by December 31, 2006 of site-specific environmental analyses for each special use permittee.

In May 2007, Plaintiffs filed a motion for summary judgment alleging that the Forest Service, through the 2005 ROD, violated the Wilderness Act and NEPA, and seeking wide-ranging injunctive relief. The Forest Service opposed that motion and filed a cross-motion for summary judgment. The cross-motions were fully briefed and the Court held a hearing on the merits on September 5, 2007. The Court deferred the issue of Plaintiffs' proposed injunctive relief pending a decision on the merits.

II. Standard of Review

The Court reviews challenges under the Wilderness Act and NEPA under the APA to ensure that the agency has not acted in a manner that is. "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706; Blackwell, 390 F.3d at 638. "Normally, an agency rule would be arbitrary and capricious if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise." Motor Vehicle Mfrs. Ass'n of the United States, Inc. v. State Farm Mutual Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983). The Court's role is to:

consider whether the [agency's] decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment. Although this inquiry into the facts is to be searching and careful, the ultimate standard of review is a narrow one. The court is not empowered to substitute its judgment for that of the agency. The final inquiry is whether the Secretary's action followed the necessary procedural requirements.

Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971).

The Court must determine whether the EIS was "arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with law." Okanogan Highlands Alliance v. Williams, 236 F.3d 468, 471 (9th Cir.2000); City of Carmel-By-The-Sea v. United States Dep't of Transp., 123 F.3d 1142, 1150 (9th Cir.1997); Western Radio Servs. Co., Inc. v. Espy, 79 F.3d 896, 900 (9th Cir.1996). Courts apply a "rule of reason" standard, which assesses "whether an EIS contains a reasonably thorough discussion of the significant aspects of the probable environmental consequences." Churchill County v. Norton, 276 F.3d 1060, 1071 (9th Cir.2001) (quoting Trout Unlimited v. Morton, 509 F.2d 1276, 1283 (9th Cir.1974)); see also City of Carmel, 123 F.3d at 1150-51 ("the National Environmental Policy Act requires a `reasonably thorough' discussion of the environmental consequences in question, not unanimity of opinion, expert or otherwise.") In making this determination, a court must make a "`pragmatic judgment whether the EIS's form, content, and preparation foster both informed decision-making and informed public participation'" Churchill County, 276 F.3d at 1071; City of Carmel, 123 F.3d at 1150-51. "`Once satisfied that a proposing agency has taken a "hard look" at a decision's environmental consequences, [our] review is at an end.'" City of Carmel, 123 F.3d at 1151 (quoting Idaho Conservation League v. Mumma, 956 F.2d 1508, 1519 (9th Cir.1992)). The purpose of an EIS is to provide full and fair discussion of significant environmental impacts and to inform decision makers and the public of reasonable alternatives which would minimize adverse impact to the environment. 40 C. F. R. § 1502.1.

Review under the Wilderness Act proceeds under the framework adopted in The Wilderness Society:

If the statute is clear and unambiguous, no deference is required and the plain meaning of Congress will be enforced. [citations...