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Wilderness Society v. Thomas



Plaintiff environmental groups sued the United States Forest Service (Forest Service) over its Land and Resource Management Plan (Forest Plan) and livestock grazing on the Prescott National Forest in Arizona. The groups claimed that 1) the National Forest Management Act (NFMA)[1] requires the Forest Service to determine whether lands deemed “capable” of supporting livestock grazing are also “suitable” for livestock grazing, based on a consideration of the economic and environmental consequences of grazing and any alternative uses; 2) the Forest Service violated NFMA by issuing grazing permits for certain grazing allotments in the Prescott National Forest; and 3) the Forest Service violated the Administrative Procedure Act (APA)[2] by arbitrarily and capriciously permitting grazing in the National Forest, without a suitability determination. The Ninth Circuit held the first claim non-justiciable, and upheld the district court’s ruling that the Forest Service’s actions, with respect to individual grazing allotments, were reasonable interpretations of the regulations.

In considering the plaintiffs’ first claim–that the Forest Service violated NFMA by adopting the Forest Plan before conducting a grazing suitability determination–the court turned to Ohio Forestry Association v. Sierra Club.[3] In that case, the Supreme Court held that a generic challenge to a forest plan, without any specific or concrete harm alleged, was not ripe for adjudication. In deciding whether an agency decision to adopt a forest plan is ripe for judicial review, the Ninth Circuit applied the three factors enunciated in Ohio Forestry: 1) whether delayed review would cause hardship to the plaintiff; 2) whether judicial review would inappropriately interfere with further administrative action and; 3) whether the court would benefit from further factual development of the issues presented.[4] According to the Ninth Circuit, a plaintiff must allege either “imminent concrete injuries that would be caused by the forest plan”[5] or “a site-specific injury causally related to an alleged defect in the forest plan.”[6] Further, “[g]eneric challenges to the sufficiency of forest plans are no longer justiciable, nor are challenges that merely identify affected sites without alleging a harm causally related to the forest plan.”[7]

Plaintiffs alleged only that the Forest Service’s general methodology in determining grazing suitability in the Forest Plan was flawed, thereby causing site-specific harm by allowing grazing in an unsuitable area. However, the court then stated that “[b]ecause the site-specific injury to the two allotments is alleged to have been caused by a defect in the Forest Plan, we may consider whether the Forest Service complied with [NFMA] in making its general grazing suitability determinations in the Forest Plan.”[8] The court found the first claim to be non-justiciable, despite Ohio Forestry’s statement permitting “a challenge to the lawfulness of [a forest plan] if (but only if) the present Plan then matters, i.e., if the Plan plays a causal role with respect to the future, then-imminent, harm.”[9]

Nevertheless, the Ninth Circuit went on to analyze the Forest Plan in order to decide the Plaintiffs’ site-specific claims. First, the court addressed the argument that the identity of acreage in the Forest Plan designated as “capable” of grazing and land designated as “suitable” for grazing reflects a blanket decision on the part of the Forest Service–without any consideration of economic or environmental consequences, as required in the regulations[10]–that all lands capable of grazing are also suitable for grazing. The Forest Service claimed that it had performed its economic and environmental analyses, including consideration of alternative uses of the lands, during the environmental impact statement (EIS) stage of the forest planning process. The EIS examined seven plan alternatives, each with different management goals and directives for a variety of resources. Thus, the Forest Service claimed, the required grazing suitability determination was performed within a planning process that focused on a variety of other resources at the same time.

The court noted that in reviewing an interpretation of an agency regulation, a court will defer to the agency’s interpretation unless it is plainly erroneous or inconsistent with the regulation.[11] Here, the Forest Service was interpreting the grazing suitability regulation that mandates that the “suitability and potential capability of National Forest System lands for producing forage for grazing animals and for providing habitat for management indicator species shall be determined” in the forest planning process.[12] The Forest Service claimed that it had permissibly interpreted that regulation by performing the economic and environmental analysis at the EIS stage of the forest planning process. Agreeing with the Forest Service, the Ninth Circuit decided that the agency adequately considered economic and environmental consequences and alternatives forgone in favor of the preferred Forest Plan.

Plaintiffs also argued that the Forest Service’s computer program, used as an analytic modeling tool, caused the grazing outcomes to be predetermined and therefore did not satisfy NFMA’s grazing suitability determination requirement.[13] The court, however, decided that the program’s grazing assumptions were not contrary to NFMA’s requirements, and that the Forest Service could use the program to assist in its analysis: “To be sure, the [computer program] analysis of the EIS preferred alternative did include a grazing assumption. However, other examined options did not. One alternative contained no grazing restraints, while the other alternatives constrained grazing to a floor ranging from 86 to 177.5 animal unit months.”[14]

Finally, the court found that the plaintiffs’ APA claim was subsumed into the resolution of the NFMA claim. Because the Forest Service complied with NFMA in adopting the Forest Plan, the APA claim failed.

[1] National Forest Management Act of 1976, 16 U.S.C. §§ 472a, 521b, 1600, 1611-1614 (1994 & Supp. III 1997) (amending Forest and Rangeland Renewable Resources Planning Act of 1974, Pub. L. No. 93-378, 88 Stat. 476).

[2] Administrative Procedure Act, 5 U.S.C. §§ 551-559, 701-706, 1305, 3105, 3344, 4301, 5335, 5372, 7521 (1994 & Supp. IV 1998).

[3] 523 U.S. 726 (1998).

[4] Id. at 733.

[5] Wilderness Society v. Thomas, 188 F.3d 1130, 1133 (9th Cir. 1999).

[6] Id. at 1133-34.

[7] Id. at 1134.

[8] Id.

[9] Ohio Forestry Ass’n v. Sierra Club, 523 U.S. 726, 734 (1998).

[10] 36 C.F.R. §§ 219.20, 219.3 (1999).

[11] 188 F.3d at 1135 (citing Salmon River Concerned Citizens v. Robertson, 32 F.3d 1346, 1356 (9th Cir. 1994)).

[12] 36 C.F.R. § 219.20 (1999).

[13] Id.

[14] 188 F.3d at 1136.

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