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Ecology Center, Inc. v. United States Forest Service



Ecology Center, Inc. brought suit to compel the United States Forest Service to comply fully with the monitoring duties established by the National Forest Management Act (NFMA),[1] for the Kootenai National Forest. The Kootenai National Forest Plan (KNFP) mandates a monitoring schedule evaluating the effectiveness of the Forest Service’s management. Since the beginning of the plan in 1976, the Forest Service has complied with these requirements for each year except for 1988 and 1993. The district court dismissed Eagle Center’s suit for lack of subject matter jurisdiction under the Administrative Procedure Act (APA).[2]

The APA grants the right of judicial review to a person who suffers a legal wrong or is adversely affected by a “final agency action.”[3] According to the Supreme Court, there are two conditions to a “final agency action” under the APA: 1) the action should signify the conclusion of the agency’s decision making process and 2) the action should be a duty from which rights or legal obligations arise.[4] In 1999, the Ninth Circuit affirmed the lower court’s dismissal of the plaintiff’s case.

The Ninth Circuit determined that Ecology Center did not meet either APA condition and that it consequently failed to establish the existence of a final agency action. First, the court held that the monitoring duty was only an intermediate step toward a final agency determination. Under KNFP, an interdisciplinary team utilizes the monitoring reports to determine whether to make a recommendation to change current forest practices. These recommendations are not reviewable as final agency actions.[5] Monitoring precedes such a recommendation; therefore, it was not a final agency action within the meaning of the APA.

Furthermore, the court held that the Forest Service’s monitoring duty did not create any rights, legal obligations, or consequences, because it failed the second requirement for a final agency action. Ecology Center argued that the Forest Service’s failure to prepare monitoring reports harmed the Center because the absence of reports denied it access to information necessary for public participation. The court rejected this argument, and held that the NFMA did not establish any public participation requirement in regards to monitoring of Forest Service management practices.

The Ninth Circuit also rejected Ecology Center’s alternative argument for judicial review. The Center argued that the Forest Service’s failure to perform fully its monitoring duty was tantamount to an unreasonable delay of compliance. Section 706(1) of the APA provides a right to judicial review for “agency action[s] unlawfully withheld or unreasonably delayed.”[6] The court recognized that section 706(1) established a limited exception to the finality doctrine “only when there has been a genuine failure to act.”[7] It determined that the Forest Service’s failure to strictly perform its monitoring duties was not equivalent to a failure to act under the APA, and therefore, Ecology Center’s claim was not ripe for review.

[1] National Forest Management Act of 1976, 16 U.S.C. §§ 1600-1614 (1994) (amending Forest and Rangeland Renewable Resources Planning Act of 1974, Pub. L. No. 93-378, 88 Stat. 476).

[2] 5 U.S.C. §§ 551-559, 701-706, 1305, 3105, 3344 (1994 & Supp. IV 1998).

[3] Id. §§ 702, 704.

[4] Bennett v. Spear, 520 U.S. 154, 177-78 (1997).

[5] See, e.g., Dalton v. Specter, 511 U.S. 462, 468 (1994).

[6] 5 U.S.C. § 706(1) (1994).

[7] Ecology Ctr., Inc. v. United States Forest Serv., 192 F.3d 922, 926 (9th Cir. 1999).

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