Watch v. Ferebee

445 F.Supp.3d 1313

WILDERNESS WATCH, San Juan Citizens Alliance, and Great Old Broads for Wilderness, Plaintiffs,

v.Brian FEREBEE, in his official capacity as Regional Forester, and United States Forest Service, a Federal Agency within the U.S. Department of Agriculture, Defendants.

Civil Action No. 19-cv-01449-PAB

United States District Court, D. Colorado.

Signed March 18, 2020

Dana M. Johnson, Wilderness Watch, Moscow, ID, Maya Leonard Kane, Kane Law LLC, Travis Earl Stills, Travis Stills Attorney at Law Energy & Conservation Law, Jeffrey M. Kane, Southwest Water and Property Law LLC, Durango, CO, for Plaintiffs.

Dustin Joseph Weisman, Sean C. Duffy, U.S. Department of Justice, Environment and Natural Resources Division, Natural Resources Section, Washington, DC, for Defendants.

ORDER

PHILIP A. BRIMMER, Chief United States District Judge

This matter is before the Court on the Federal Defendants' Motion to Dismiss the Complaint and Memorandum in Support Thereof [Docket No. 20] and Plaintiffs' Motion for Leave to Conduct Limited Discovery Regarding Administrative Record and Jurisdiction [Docket No. 22].

I. BACKGROUND

The Wilderness Act, 16 U.S.C. § 1131 et seq. , governs wilderness areas included in the National Wilderness Preservation System.¹ The Wilderness Act prohibits the use of "motorized equipment" within a wilderness "except as necessary to meet minimum requirements for the administration of the area." 11 U.S.C. § 1133(c).

Defendant United States Forest Service (the "Forest Service") is a federal agency within the United States Department of Agriculture. Docket No. 1 at 6, ¶ 11.² Among other things, the Forest Service is responsible for administering wilderness areas within national forests. Id. at 6-7, ¶¶ 11, 13; see also 16 U.S.C. § 1131(b) (indicating that areas included in the National Wilderness Preservation System "shall continue to be managed by the Department and agency having jurisdiction thereover"). Two such wildernesses are the Weminuche Wilderness and the South San Juan Wildernesses (together, the "Wilderness Areas"), which are located in the San Juan National Forest and Rio Grande National Forest in southern Colorado. Id. at 10-11, ¶¶ 24-26. The Wilderness Areas are within the Forest Service's Rocky Mountain Region. Id. at 11, ¶ 26. Defendant Brian Ferebee ("Ferebee") is the Regional Forester of the Rocky Mountain Region. Id. at 5, ¶ 10.

On May 7, 2019, Ferebee issued a memorandum (the "May 7 memo") to the Forest Supervisors for the San Juan National Forest and the Rio Grande National Forest. Id. at 13, ¶ 35; see also Docket No. 11-1. In the May 7 memo, Ferebee approved the use of chainsaws in the Wilderness Areas during the 2019 field season "for the purpose of clearing trail obstructions[ ] and creating safe refuges for administrative use and trail users" (the "chainsaw authorization"). Docket No. 11-1 at 1. The chainsaw authorization allowed the Forest Supervisors to use chainsaws for "no more than [six] weeks between June 1 and August 17." Id. Ferebee explained that the chainsaw authorization was justified in order to "clear beetle-killed trees that are obstructing trail access to the wilderness." Id. at 2. Ferebee further explained that "[t]he magnitude of obstructed trails across [the Wilderness Areas] and the potential resource damage that will occur... warrants the rare and limited exception to allow chainsaw use." Id. Ferebee also noted that "the 2019 field season is likely to be shorter than recent years due to the extensive snowpack that has built up during the past winter." Id. The May 7 memo also directed the Forest Supervisors to produce a report with certain data that would "help determine if any future chainsaw allowances are justified and needed to administer wilderness." Id. at 3.

Plaintiffs are three non-profit organizations whose missions include "the preservation and proper stewardship of lands... in the National Wilderness Preservation System" (Wilderness Watch), "monitoring and scrutinizing National Forest management" (San Juan Citizens Alliance), and "inspir[ing] activism to preserve and protect wilderness and wild lands" (Great Old Broads for Wilderness). Docket No. 1 at 3-4, ¶¶ 3-5. On May 22, 2019, plaintiffs filed this lawsuit, challenging the chainsaw authorization promulgated by the May 7 memo. See generally id. Plaintiffs allege that their members' use and enjoyment of the Wilderness Areas will be "degraded" by the chainsaw authorization. Id. at 5, ¶ 6. Plaintiffs contend that the decision violates the Wilderness Act, the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4331 et seq. , and the Administrative Procedure Act ("APA"), 5 U.S.C. § 701 et seq. Id. at 19-24, ¶¶ 83-104. Plaintiffs request as relief that the Court (1) declare that the chainsaw authorization violates the Wilderness Act, NEPA, and APA, (2) void the chainsaw authorization, (3) enjoin defendants from acting on both the chainsaw authorization and "any future motorized use proposal in designated wilderness," and (4) remand the chainsaw authorization to defendants. Id. at 24-25.

On May 31, 2019, Ferebee issued another memorandum (the "May 31 memo"). R. at 2735.³ In the May 31 memo, Ferebee amended the chainsaw authorization because "[d]ue to heavy snowpack, it [would be] unlikely for work to begin as early as contemplated in" the May 7 memo. Id. The May 31 memo made the chainsaw authorization effective July 8, 2019. Id.

On June 4, 2019, plaintiffs moved for a preliminary injunction. Docket No. 11. However, on June 14, 2019, plaintiffs withdrew the motion. Docket No. 17 at 2. The parties explained that Ferebee, in a memorandum dated June 10, 2019 (the "June 10 memo"), rescinded the chainsaw authorization. See Docket No. 17-1. In the June 10 memo, Ferebee explained that "[r]eports by trail crews and scouts over the past week indicate that... trail maintenance work will need to be delayed even further than initially forecasted" because "[a]valanches and heavy snowpack have created changed conditions" in the Wilderness Areas. Id. at 1. Thus, Ferebee concluded that it was "unlikely that [the Forest Service] would realize any substantial benefit from the use of chainsaws to clear trail obstructions." Id. at 1. The June 10 memo directs the Forest Supervisors to proceed with certain data collection efforts outlined in the May 7 memo.

On July 23, 2019, defendants filed a motion to dismiss for lack of jurisdiction. Docket No. 20. Defendants argue that plaintiffs' claims for relief are moot as a result of the June 10 memo and that any claims regarding potential future conduct are not ripe for review; thus, the Court does not have jurisdiction to hear the case. Id. at 1. In addition to their response, plaintiffs filed a motion for leave to conduct limited discovery. Docket No. 22. Plaintiffs argue that limited discovery is necessary in order to "establish a complete record concerning the facts that [defendants] allege[ ] to support [the] motion to dismiss." Id. at 2.

II. LEGAL STANDARD

A motion under Fed. R. Civ. P. 12(b)(1) is a request for the Court to dismiss a claim for lack of subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1). Plaintiff bears the burden of establishing that the Court has jurisdiction. Basso v. Utah Power & Light Co. , 495 F.2d 906, 909 (10th Cir. 1974). When the Court lacks subject matter jurisdiction over a claim for relief, dismissal is proper under Rule 12(b)(1). See Jackson v. City and Cty. of Denver , No. 11-cv-02293-PAB-KLM, 2012 WL 4355556 at *1 (D. Colo. Sept. 24, 2012).

Rule 12(b)(1) challenges are generally presented in one of two forms: "[t]he moving party may (1) facially attack the complaint's allegations as to the existence of subject matter jurisdiction, or (2) go beyond allegations contained in the complaint by presenting evidence to challenge the factual basis upon which subject matter jurisdiction rests." Merrill Lynch Bus. Fin. Servs., Inc. v. Nudell , 363 F.3d 1072, 1074 (10th Cir. 2004) (quoting Maestas v. Lujan , 351 F.3d 1001, 1013 (10th Cir. 2003) ). The court may review materials outside the pleadings without converting the Rule 12(b)(1) motion to dismiss into a motion for summary judgment. Davis ex rel. Davis v. U.S. , 343 F.3d 1282, 1296 (10th Cir. 2003).

III. ANALYSIS

Neither NEPA nor the Wilderness Act provides for a private right of action. Colo. Farm Bureau Fed. v. U.S. Forest Serv. , 220 F.3d 1171, 1173 (10th Cir. 2000) ; Wyoming v. U.S. Dep't of Agric. , 661 F.3d 1209, 1227 (10th Cir. 2011). Thus, the Court construes plaintiffs' challenges to the chainsaw authorization as challenging a "final agency action" under the APA, 5 U.S.C. § 704. See id. ; Dine Citizens Against Ruining Our Env't v. Klein , 676 F. Supp. 2d 1198, 1205 (D. Colo. 2009). As relevant here, the APA grants the Court jurisdiction to review final agency actions. Farrell-Cooper Mining Co. v. U.S. Dep't of Interior , 864 F.3d 1105, 1110 (10th Cir. 2017).

Defendants move to dismiss the complaint pursuant to Rule 12(b)(1) on the grounds that plaintiffs' claims for relief are moot because the chainsaw authorization has been withdrawn, and that any claims in the complaint based on a future proposal to authorize chainsaw use are not ripe. Docket No. 20.

A. Mootness

"Under Article III of the Constitution [federal courts] may only adjudicate actual, ongoing controversies." Honig v. Doe , 484 U.S. 305, 317, 108 S.Ct. 592, 98 L.Ed.2d 686 (1988) ; see also Wiley v. Nat'l Collegiate Athletic Ass'n , 612 F.2d 473, 475 (10th Cir. 1979) (noting that mootness "has its constitutional origin in the ‘case or controversy’ limitation of Article III"). Thus, "mootness is a threshold issue" that implicates the Court's subject-matter jurisdiction. Disability Law Ctr. v. Millcreek Health Ctr. , 428 F.3d 992, 996 (10th Cir. 2005). In the mootness inquiry, "[t]he crucial question is whether granting a present determination of the issues offered will have some effect in the real world." Citizens for Responsible...