The removal of 44 culverts, which were required for A19
compliance in the Spotted Beetle project, will result in the release
of 127.6 tons of sediments, if they were all in the moderate range and
they were all "Best Case". This is 11 times the amount of
sediment delivered by one culvert failure of the same type. The
above analysis does not take into account the additional sediment
delivery that occurs during the next 2 or 3 spring runoff events or
until the new stream channel stabilizes. In some cases this would be
more, maybe several times more, sediment delivered to the stream
than culvert removal itself. Since these obliteration projects have
always been associated with other management projects, they only
affect one or two watersheds per project. This causes a massive
spike in sediment for the downstream watershed that lasts for the
duration of the project and beyond. Actual photographs of the
erosion that occurred at these stream crossings after culvert
removal may be seen at www.mtmultipleuse.org/road_destruction.htm See,
Spotted Beetle Resource Management Project Environmental
Assessment". Flathead National Forest. September, 2001.
Likewise, based on intervenors’ declarant, Mr. Hammer,
intervenors argue that road removal benefits the environment
by reducing pollution, evidently in response to plaintiffs’
declarations and other evidence showing increased environmental
injury from culvert removal and road obliteration. However, this
assertion is contradicted by the Forest Service’s own data. See
Exhibit D, Attachment 7.
Similarly, intervenors
assert, based on Mr. Hammer’s declarations, that the economic
impact of the defendants’ activities are not as represented.
However, the data and analysis provided by plaintiffs in their
opening brief was official and up-to-date County data supplied by
County Officials using County records whereas Mr. Hammer’s were
based on broad general studies and inadequate and out of date data.
Indeed, his reasoning is frequently circular. For example, he
asserts that logging is no longer as important a source of revenue
in the area, but neglects to mention that this is, as plaintiffs
demonstrated in their Opening Brief, a direct result of defendants’
actions.
II. ARGUMENT
A. STANDARD OF REVIEW
Plaintiffs stand by their description of the standards of review
to be applied to both the Administrative Procedure Act review and
for the granting of a preliminary injunction. None of the cases
cited by the defendants or the intervenors undermines the plaintiffs
discussion and application of those standards. It is the defendants
and the intervenors who fail to properly apply these standards.
B. DEFENDANTS FAILURE TO UNDERTAKE THE REVISION OF THE
FLATHEAD NATIONAL FOREST MANAGEMENT PLAN IS ACTIONABLE
The opposing parties argue that plaintiffs cannot prevail on
their claim that defendants violated the NFMA because Congress has
determined that a failure to act within 15 years does not violate
the Act. For this proposition, they point to Pub. L. 108-108, §
320, 117 Stat. 1241 (2003). However, they fail in their
understanding of § 320 and in applying to the facts before this
Court.
Section 320 of Pub. L.108-108 was enacted in November, 2003, long
after this action was filed. It places a temporary ban on a
court finding a per se violation of the NFMA’s requirement
that a plan be revised every 15 (fifteen) years, i.e., it prohibits
a court from finding that the passage of 15 years from the adoption
of an initial plan or a revision of a plan standing alone
violates the revision requirements of the NFMA until October 1,
2004.
However, even with this temporary ban of a finding of per se
violation based on a mere finding of the passage of more than 15
years, plaintiffs are free to, and have, sought relief based on the
grounds that the delay in undertaking the revision in the instant
case was unreasonable and expressly plead this in their Complaint.
Section 706(1) of the Administrative Procedure Act ("APA")
specifically provides that a litigant may obtain relief from a court
for an agency action "unlawfully withheld or unreasonably
delayed." Defendants and intervenors suggest that such a claim
can be made only as to a "discrete, statutorily mandated action
that they agency has failed to take" or the face of an
"express statutory duty to act". Defendants’ Brief in
Opposition to Plaintiffs’ Motion for Preliminary Injunction
("Defendants’ Brief") at 11 (citing ONRC Action v.
Bureau of Land Management, 150 F.3d
1132, 1137 (9th Cir. 1998); Muwekma Tribe v. Babbitt, 133
F.Supp. 2d 30, 35-36 n.4 (D.D.C. 2000). This suggestion is not well
founded, however. As noted, § 320 of Pub. L. 108-108 implicitly
recognizes that the provisions of the NFMA requiring a Plan revision
at least every 15 years is a mandatory duty and provides a temporary
respite from the consequences of the failure to follow that
mandatory duty where the claim of violation is based solely on the
passage of 15 years. Nothing in that language protects the Secretary
from a claim that the failure to meet that deadline was unreasonable
under the circumstances.
Likewise, even the limited protection given to the defendants
under §320 is negated if the Secretary is not acting to revise the
forest plan "expeditiously and in good faith, within the
funding available". Pub. L. 108-108,
§320. Defendants mischaracterize this language as providing that
the protection of § 320 do not apply if the Secretary "is not
acting in good faith, within the funding available". Defendant’s
Brief at 10. There is, however, a substantial difference in meaning
between the characterization offered by the opposing parties and
that in the specific language of § 320. The actual language of the
section would deprive the Secretary temporary haven from a finding
of per se violation if either he or she was not acting either
"expeditiously" or "in good faith" within the
funding available. The defendants’ reading of the statute would
deprive the Secretary of protection against a finding of per se
violation of the 15 year requirement only if he or she was acting in
bad faith regardless of how inexpeditiously he or she acted.
Defendants assert that there is no evidence before the Court to
suggest that the defendants were acting in "bad faith".
This is demonstrably wrong. The record already placed before this
Court demonstrates that several years had passed before the
defendants made any move to revise the plan and, in fact, only did
so after the Complaint in this action was filed. The record also
shows that the defendants processed proposed amendment after
proposed amendment and prepared environmental assessment
("EA") after environmental assessment and environmental
impact statement ("EIS") after environmental impact
statement throughout the time it should have been performing a
revision and thereby diverting funding and personnel who would
otherwise have been devoted to the Plan revision. Indeed, the record
before this Court also shows that even now, when a revision
plan is purportedly under way, the defendants are pursuing an
amendment to the current Flathead Nation Forest Plan, Amendment 24,
which will prejudice the revision process as well as divert funds
and personnel from the revision process. See, e.g.,
Plaintiffs’s Opening Brief at 26-27.
Plaintiffs respectfully suggest that defendants are quite
incorrect, and somewhat disingenuous, when they argue that the fact
that a plan revision process is finally underway is proof of good
faith. On the contrary, it is a more than reasonable inference from
the evidence and the circumstances of this case, that it is doubtful
that the plan revision process would even be underway now if it were
not for the instant ligitation.
This leads logically to the opposing parties’ next argument,
that the Court should resort to the doctrine of "prudential
mootness." Specifically, defendants argue that this Court
should not issue a preliminary injunction, or grant any relief on
plaintiffs unreasonable delay claim because they have finally
started the process of plan revision. For this they rely on cases
such as United States v. W. T. Grant Co., 345 U.S. 629, 633
(1953) and Chamber of Commerce v. United States Dep’t of Energy,
627 F.2d 289 (D.C. Cir.1980), for the proposition that declaratory
and injunctive relief can be denied at the discretion of the Court
when "it appears that a defendant, usually the government, has
already changed or is in the process of changing its policies or
where it appears that any repeat of the actions in question is
otherwise highly unlikely." Defendant’s Brief at 11. However,
this argument should not prevail.
Indeed, the fact that a governmental action was finally
forthcoming in the face of actual or threatened litigation is a
factor which allows this Court to issue a preliminary injunction. It
is unquestioned that courts have the authority to issue an order
compelling the agency to perform this duty and to set a schedule for
the performance of the duty, even where the agency has already,
though belatedly, started the process, Nat’l Wildlife
Federation v. Cosgriffe, 21 F.Supp. 2d 1211, 1218-19 (D. Or.
1998) particularly where, as here, the agency waited for years to do
its job. Id. This is even more true where, as here, health
and safety concerns are at issue. Id. at 1218. No impropriety
in the delay is necessary for relief to be granted. Id.
Defendant’s hint that they would not likely repeat delays is not
reassuring under the circumstances nor does the fact that they have
set a schedule mean that they will keep it. Even if this Court
agrees with plaintiffs and there for adopts as a schedule the one
currently proposed by the defendants or, for that matter, even if
the parties agree that the schedule set by the parties is a
reasonable one, having an order of the Court in place which gives
the Court oversight and the parties a forum to go to if defendants
fail to follow their own schedule without the necessity of the
plaintiffs to file a whole new suit. For these reasons, the Court
should not accept the defendants’ invitation to invoke a
prudential mootness approach.
The opposing parties’ argument that a judicial imposition of
such a schedule might upset the coordination purportedly going on
between the Flathead, Lolo, and Bitterroot National Forests and
might, speculatively, even affect forest planning nationwide, does
not support their invitation to the Court to bow out of the
scheduling process. On the contrary, it gives the Court more of a
reason to want to stay involved as it would be all too easy for the
defendants to further delay the mandatory revision of the Flathead
National Forest Plan out of an alleged concern for some other forest’s
priority preferences, allowing the Flathead Forest to once again
slip backward in the process. Furthermore, nothing in the plaintiffs’
motion for preliminary injunction or in any other law or regulation
prevents this Court from taking the concerns expressed by the
defendants into account in setting a planning schedule. This
argument, therefore, does not support a request that this Court
essentially abstain from ensuring that the NFMA is adhered to.
C. THE PIECEMEAL APPROACH TO REVISING THE FOREST PLAN
IS REVIEWABLE
The Opposing parties argue that the plaintiffs’ claim that the
accumulation of amendments reached a threshold at which they
constituted a piecemeal amendment of the Flathead National Forest
Plan is not reviewable on the theory that they do not challenge a
specific amendment. Defendants cite Lujan v. National Wildlife
Fed’n, 497 U.S. 871, 882 (1990) for the proposition that a
plaintiff, to bring an APA challenge, "must direct its attack
against some particular ‘agency action’ that causes it
harm.". They then argue that a plaintiff cannot bring a claim
that several specific and identified agency actions taken together
violate law and cause the plaintiff specific harms. However, none of
the cases cited by defendants stands for the proposition that a
plaintiff is prohibited from showing that a number of
specific agency actions which standing alone might be lawful become
unlawful taken in combination and reviewable under the APA which
authorizes suits challenging agency action or actions "not in
accordance with law" (5. U.S.C. § 706(2)(a)), "in excess
of statutory limitations" (5 U.S.C. § 706(2)(c)), or
"without observance of procedures required by law" (5
U.S.C. §706 (2)(d)).
To hold that a plaintiff cannot challenge multiple identified
agency actions which together violate law, exceed statutory
limitations, and enable the agency to do an end-run around required
procedures (such as the revision procedure mandated by NFMA as
described in detail in plaintiffs’ opening brief) would be to open
a door by which agencies may, using stealth techniques, accomplish
what they could not lawfully do in a single action and would elevate
form over substance. Quite clearly, as plaintiffs’ Opening Brief
establishes, plaintiffs identified very specific actions taken by
defendants with respect to the Flathead Forest Plan that taken
together constitute a plan revision. Plaintiffs did not, as
defendants suggest, simply ask this Court "to
simply look at the original Forest Plan, look at the amendments
issued over the past 18 years,
and then hold that the difference between the two is significant
and that the Forest Service is thus
in violation of NFMA." Defendants’ Opening Brief at 13.
Plaintiffs specifically identified Amendments 1-3, 5-7, 19,
21, 24 (if adopted) and the Regional Forester’s INFISH and OHV
Amendments" as constituting a
revision when considered together. Until they were all adopted, the
cumulative effect did not come into being and their cumulative
effect could not, therefore, have been individually challenged.
Defendants argue that they can not be guilty of "piecemealing"
a plan revision because forest planning is an "evolutionary
process". Defendants’ Brief at 13 n.10. Their argument is
essentially that they could not have piecemealed anything because a
Forest Plan is an evolutionary project whose end cannot be foreseen,
unlike (in their example) a road project which it must know will be
part of a larger highway project in the future. This is a false,
indeed disingenuous, analogy. The Forest Plan was a finished project
when it was approved, and it is well within the ability of the
defendants to determine whether changes it proposes to make will
effectively be so inconsistent with the existing plan or so
significant that it will effectively revise the plan, triggering the
extensive process for revision required by the Forest Management
Act. It then becomes easy for the defendants to break the effective
revision into smaller pieces which can then be characterized as ‘nonsignficant
amendments", thus avoiding a responsibility imposed on them by
statute.
Furthermore, notwithstanding defendant’s assertions to the
contrary, plaintiffs, or members of the organizational plaintiffs
who have standing to sue on behalf of their members, did in fact
undertake appeals. Defendants admit that plaintiff MFMU did appeal
Amendment 19, raising the cumulative effects of the Amendment, which
appeal was denied, making it clear that such cumulative impact
objections would be ignored.
D. PLAINTIFFS CLAIMS ARE NOT BARRED BY A STATUTE OF
LIMITATIONS OR A FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES
The opposing parties allege that plaintiffs claims are barred by
a statute of limitations and by a failure on the part of plaintiffs
to exhaust administrative remedies. Plaintiffs respectfully
disagree.
Whether a challenge to agency action is barred by a
statute of limitations is ultimately a question of law (Wind
River Mining Corporation v. United States, 946 F.2d 710, 712 (9th
Cir. 1991)); determining whether an action is barred by a statute of
limitations must be made with reference to applicable facts. For
this reason, "where the issue of limitations requires
determination of when a claim begins to accrue, the complaint should
be dismissed only if the evidence is so clear that there is no
genuine factual issue and the determination can be made as a matter
of law. Sisseton-Wahpeton Sioux Tribe v. United States, 895
F.2d 588, 591 (9th Cir. 1990), cert. denied, 498
U.S. 824 (1990).
The short answer to the assertions of defendants is at least in
part that the statute of limitations did not begin to run until all
of the Amendments said to constitute, taken together, a revision of
the Plan, were enacted. It was not until all amendments through
Amendment 21 and the Off Highway Vehicle ("OHV")
amendments, which even defendants admit are within the Statute of
Limitations), had been adopted that the de facto revision be
said to be complete enough to trigger the statute of limitations.
The same can be said for defendants claim that plaintiffs failed to
exhaust administrative remedies.
Plaintiffs do not, for the purposes of this motion, contest that
the applicable statute of limitations is that contained in 28 U.S.C.
§ 2401(a). Plaintiffs do, however, contest the arguments of
defendants which proceed from this initial point and defendants’
characterizations of the nature of the claims it seeks to bar.
As a general proposition, facial challenges to a statute or
regulation must be initiated within six years of the date on which
the statue is enacted or the regulation is published in the Federal
Register. See, e.g., Shiny Rock Mining Corp. v. United
States, 906 F.2d 1362 (9th Cir. 1990); Sisseton-Wahpeton
Sioux Tribe, supra. However, subsequent governmental
actions which rest on or flow from the prior governmental actions
open the prior actions to judicial scrutiny if the subsequent
actions were themselves taken within the period provided by the
statute of limitations:
It is possible . . . to challenge a regulation after the
limitations period has expired, provided that the ground for the
challenge is that the issuing agency exceeded its constitutional
or statutory authority. To sustain such a challenge, however,
the claimant must show some direct, final agency action
involving the particular plaintiff within six years of filing
suit.
Dunn-McCampbell Royalty Interest, Inc. v. National Park Service,
112 F.3d 1283, 1287 (5th Cir. 1997); see also Wind
River Mining Corp., supra, 946 F.2d at 713, discussed in
more detail, infra. The principle applied in Dunn-McCampbell
and Wind River, supra, is consistent with the
principle, enunciated in numerous cases in other areas of law, that
subsequent actions in violation of law constitute continuing
violations giving rise to viable causes of action. See, e.g.,
Havens Realty Corp. v. Coleman, 455 U.S. 363, 380 (1982)
(staleness concerns underlying limitations period disappeared when
challenged violations of Fair Housing Act were continuing); Gross
v. United States, 723 F.2d 609, 614 (8th Cir. 1983)
(cause of action for continuing tort accrues as of the date of the
last tort); Kennedy v. United States, 643 F.Supp. 1072, 1079
(when defendant commits continuing torts, plaintiff’s cause of
action accrues anew each day) (E.D.N.Y. 1986).
The ongoing actions of defendants in adopting and applying
regulations which implement the Forest Plan Amendments that are at
issue in this case, enumerated above, are both new actions which
have occurred within the six years before the filing of the
Complaint and are therefore not protected from scrutiny by the
statute of limitations. For example, road closures pursuant to
Amendment 19 and Amendment 21 have been undertaken within the past
six years and the Forest Service insists that it is obliged to
continue to close roads in the future. Exhibit D, Attachment 8. Each
and every closure of a road which does not belong to the United
States constitutes a separate wrong and enables plaintiffs, who have
clearly demonstrated the harm to them which arises from such road
closures in the Opening Brief, gives rise to a right in plaintiffs
to sue in that they violate the laws of the United States as
described in Plaintiffs’ Opening Brief.
Similarly, these recent actions applying and implementing Forest
Plan Amendments constitute continuing violations of the applicable
constitutional and statutory provisions and principles named in the
complaint and discussed in the Opening Brief, giving rise to current
and viable causes of action. This is to be distinguished from a
claim that the mere continued existence of the Amendment constitutes
a continuing wrong. This claim is a claim based on the actual
application of the Amendments.
Defendants then cite McCarty v.
Madigan (503 U.S. 140, 144
(1992)), the U.S.D.A. Reorganization Act of 1994 (7 U.S.C. §
6912(e)), and 36 C.F.R. §§ 215, 217 (1999) for the proposition
that a party seeking review of agency actions must first exhaust
"all administrative appeal procedures established by the
Secretary [of Agriculture] or required by law" before he or she
may challenge in court an action of "(1) the Secretary; (2) the
Department; or (3) an agency, office, officer, or employee of the
Department." The problem for defendants is two-fold.
First, there are no procedures established by the
Secretary for appealing multiple decisions taken over time which
taken together. A fair reading of the CFR provisions governing
administrative appeals reveals that they do not contemplate
reopening old decisions when it later is shown that they, with
current decisions, constitute a revision of a plan.
Defendants are quite correct that parties must exhaust
administrative remedies which have been established by the Secretary
or which are required by law, though there is no indication in any
authority cited by defendants for the proposition that the futility
doctrine has been abrogated. See discussion infra. The
only procedures required by under this analysis are those in the CFR
parts cited by defendants, 36 CFR 215 and 217. Neither of them apply
to the instant circumstance.
Since the opposing parties are arguing that plaintiffs lack the
right to challenge the cumulative effect of the Amendments adopted
over the course of several years because they did not appeal all of
those Amendments, only Part 217 (which addresses "[d]ecisions
to approve, amend, or revise a National Forest Land and Resource
Management Plan").
Pursuant to 36 CFR 217.9, appeals must be filed as follows. The
party appealing must:
(1) File a written notice of appeal, in duplicate, with the
next higher line officer in accordance with the provisions of
Sec. 217.9 of this part. (2) File the notice of appeal within
45 days of the date specified in the published legal notice
for non-significant amendments to land and resource management
plans documented in a Decision Notice or Record of Decision. (3)
File the notice of appeal within 90 days of the date
specified in the published legal notice for land and resource
management plan approvals, significant amendments, or revisions,
and for other programmatic decisions documented in a Record of
Decision. (b) Computation of time periods. (1) The day after the
published notices required in Sec. 217.5(b) is the first day of
the appeal period provided for in paragraphs (a)(2) and (a)(3)
of this section.
Given the time limits for filing of an appeal contained in 36 CFR
217.9 it is clear that the only decision that can reviewed under §
217.9 is the most immediate decision and that no opportunity to
reopen past decisions in the light of the current decision is
afforded any party. Given that the cumulative impact of an amendment
to the plan in terms of whether it will effectively revise the plan
rather than merely amend it may not be readily apparent until
actions are taken under it or even more amendments are made, the
time frames provided for above do not contemplate appeals of matters
such as those at issue in this case; therefore, no appeal process
exists which is designed to give a party an opportunity to appeal a
series of decisions in the light of later actions.
Further, as already noted above, the treatment given to complaint
by plaintiffs as to the cumulative impacts of plan amendments and to
objections raised by plaintiffs in administrative proceedings
described in plaintiffs’ Opening Brief, defendants have remained
unremittingly hostile to claims by plaintiffs and others that
amendments asserted by the Forest Service to be non-significant were
in fact significant demonstrates that any attempt to further appeal
such claims would have been, and remain, futile.
E. THE QUIET TITLE ACT IS INAPPLICABLE
The opposing parties ignore clear and settled precedent when they
try to force plaintiffs right-of-way claims into a quiet title
claim.
First, the Quiet Title Act (28 U.S.C. § 2409a) itself exempts
from its provisions claims such as those made here, providing that
it "does not apply to or affect" cases "which may or
could have" been brought pursuant to 28 U.S.C. §§ 1346, 1347,
1491, or 2410, among others. 28 U.S.C. § 2409a(a). Section 1346 of
28 U.S.C., which governs this case, provides for concurrent
jurisdiction between the United States District Courts and the
United States Claims Court (now the United States Court of Federal
Claims) over, inter alia, "any other civil action or
claim against the United States founded either upon the
Constitution, or any act of Congress, or any regulation of any
executive department." Id. Both kinds of claims are
present in this case. Plaintiffs alleged, and have provided evidence
in support of the allegations, that defendants took regulatory and
physical actions that amount to a taking of property within the
meaning of the Fifth Amendment. Plaintiffs have also alleged, and
provided evidence in support of the allegations, that Congress
withdrew the authority from defendants to take actions that might
result in a taking of such property. Therefore, both constitutional
and statutory authority claims, exempted from the Quiet Title Act by
its own terms, are plead in the instant case. Indeed, as shown above
and in plaintiffs’ Opening Brief, but for the withdrawal by
Congress by the inclusion of "valid existing rights"
language in the Federal Land Policy and Management Act ("FLPMA")
and elsewhere of the authority from the executive branch and its
officials to take actions amounting a taking with such
rights-of-way, this matter might well be in the United States Court
of Federal Claims or here.
Opposing parties cannot avoid this result by arguing that a
question of title exists, because such a question always
exists where a party claims either that an authorized governmental
action amounted to a taking requiring compensation or that an
unauthorized action of government deprived a party of the
rights-of-ownership which must be restored. He must proved a
property interest.
Second, courts have rejected the notion that the Quiet Title Act
applies where there is a constitutional claim, or a claim that a
governmental action was taken outside of the scope of officials’
authority or is a compensable taking of property under the Fifth
Amendment. Wright v. Gregg, 685 F.2d 340, 341-42 (9th
Cir. 1982); McClellan v. Kimball, 623 F.2d 83, 85 (9th
Cir. 1980); Oak Forest, Inc. v. U.S., 23 Cl. Ct. 90 (Fed.Cl.
1991). See also, Golden v. U.S., 15 Cl.Ct. 513, 518 (Fed.Cl.
1988). What is sought here is not a declaration of ownership, but a
declaration that the defendants acted outside their authority. The
title questions is a necessary, but subsidiary, one. Indeed, nothing
in the record inherently supports a claim that the defendants were
asserting title their actions, but merely a right to regulate or to
control roads across National Forest lands regardless of who
owns them.
Therefore all plaintiffs are entitled to bring this claim. None
of the restrictions on parties contained in the Quiet Title Act,
which defendants so laboriously discuss, apply.
F. PLAINTIFFS SBREFA CLAIM IS VALID
As predicted, the opposing parties rely on the language in 5
U.S.C. § 802, part of the Small Business Regulatory Enforcement Act
("SBREFA")(Pub. L. No. 104-121,
110 Stat. 868 (1996)) to argue that plaintiffs are barred
from seeking a review of the agency’s failure to provide Congress
and the Comptroller General with the regulation before it can become
effective. Plaintiffs stand by their analysis in their Opening
Brief. Plaintiffs agree that the case law regarding this section of
SBREFA is slim, but, unlike defendants, believe that the unpublished
decision of United States v. Southern
Indiana Gas and Elec. Co., 2002
WL 31427523, (S.D. Indiana, 2002), though not precedent, provides a
useful analysis of the judicial review question. The Southern
Indiana court, like the other courts cited by defendants, went
slightly astray. The question in this case, as in the others, was
not really one as to whether the agency acted properly, made a
proper decision, or failed to take an action it was obliged to take
(which is the essence of judicial review), but whether the
conditions precedent to the effectiveness of a regulation have as
yet been met.
As for whether SBREFA has been violated, plaintiffs again stand
by their analysis in their Opening Brief. If a Forest Plan is
subject to SBREFA (as the defendants apparently concede that it is,
at least in general terms and as the Comptroller General has found
them to be, as shown by the Comptroller General’s letter, appended
to plaintiffs’ Opening Brief shows), then by necessary extension,
an amendment to the Plan must also be. It is of no help to argue
that an amendment only is of particular applicability because it
applies to only a portion, however large or small, of the entire
forest. That is true of the Plan as a whole. Even defendants
describe the Plan in their brief as dividing the Forest into
discrete areas and applying management prescriptions to those
discrete areas. Defendants’ Opposing Brief at 3. By their
reasoning, therefore, a Forest Plan can never be considered a
regulation subject to SBREFA, a direct contradiction of the
Comptroller General’s view which, plaintiffs submit, is the
correct view.
G. PLAINTIFFS HAVE SHOWN A CLEAR AND COMPELLING THREAT OF
IMMINENT HARM
1. Plaintiffs’ Preliminary Injunction Motion is
Timely
As foreshadowed early in defendants’ Opposing Brief,
defendants allege that the fact that plaintiffs did not file a
preliminary injunction motion until May, 2004 is proof that there is
no imminent harm to be prevented. This argument is disingenuous in
the extreme. The plaintiffs take seriously the requirement that the
harm or the threat of harm be imminent before a preliminary
injunction can be issued and take seriously the need of this court
or any other to not address an issue before it becomes needful to do
so in order to more efficiently distribute judicial resources. For
that matter, the plaintiffs are mindful of the needs of the parties
to efficiently use their resources. After the 2003 fire season
ended, a new threat of fire was not imminent until the mountain
winter was over and spring had sufficiently advanced in terms of
fire risk that a threat of harm can reasonably be said to have
become imminent. Likewise, it seemed unlikely, though not
impossible, that significant road closure activities would not occur
during winter months.
Quite clearly had plaintiffs brought the instant motion earlier,
defendants could have, and almost certainly would have, argued that
the motion was premature as there was no risk of catastrophic fire
until much later in the spring or summer and that events in this
litigation, or in the Forest, might occur which would mitigate or
eliminate that risk long before a likely catastrophic fire season
approached, thus rendering a preliminary injunction motion grossly
premature. Plaintiffs withheld their motion until, in their
judgment, a time had arrived in which a real and substantial risk of
injury from fire was present or imminent. If the defendants are
suggesting that a preliminary injunction motion must be brought at
the beginning of a given piece of litigation or not at all,
plaintiffs respectfully submit that defendants have failed to
understand the nature of a preliminary injunction and the need for
judicial economy and are asking that plaintiffs be punished
for acting prudently and in accordance with the principles
underlying the preliminary injunction rules. The cases relied on by
defendants do not undermine the foregoing analysis. They, like every
other court, made their determinations based on the specific facts
and circumstances of the case before them.
2. Procedural Harm Entitles Plaintiffs to the Order
Requested
The opposing parties neglected to note that the plaintiffs’
motion asked for both: (a) a preliminary injunction prohibiting the
enforcement of certain rules, the cessation of road closures, and
the processing of Amendments not yet final; and (b) an order setting
a schedule for the processing of a Plan Revision. They assert that
the denial of procedural rights is all in the past and therefore not
addressable by a preliminary injunction. This is incorrect.
First, the processing of as yet unapproved amendments which, as
alleged in plaintiffs’ complaint should be addressed in the more
elaborate revision process which allows greater public participation
and greater disclosure to the plaintiffs than the allegedly
insignificant amendment under consideration (Amendment 24) during a
time in which a revision is or should be occurring deprives
plaintiffs of the procedural rights they would enjoy in the proper
process. This is not a past event, but an ongoing one that would be
addressed by the preliminary injunction requested.
Second, defendants themselves assert that
"Courts
can remedy procedural defects by ordering the Agency to afford the
requisite procedure, and have full discretion to permit agency
actions to go forward while such procedural defects are
remedied." Defendants’ Opposing Brief at 23. This is
precisely what plaintiffs have asked this Court to do in this motion
in addition to the preliminary injunction requested. If defendants
are allowed to continue until this matter is fully decided,
plaintiffs would indeed be deprived of their procedural rights. It
would appear that defendants agree that this is a proper interim
measure. In short, this portion of the motion is not a
request for preliminary injunction, but an order of this court
subject to its equitable powers. Therefore, defendants’ resort to
cases regarding preliminary injunctions is inapposite.
3. Plaintiffs Showing of Irreparable Harm or the
Threat of Imminent Irreparable Harm is not Speculative, but
Compelling
Defendants’ assertion that the risk of catastrophic injury is
merely speculative is beyond understanding. Notwithstanding the
assertions by Mr. Donald R. Black with his "expensive [sic]
experience in fire management" that he was "unaware of a
single instance on the Flathead NF where the Forest Service was
unable to provide a timely response to a forest fire because of a
road closure" (Defendants Opposing Brief at 24) establishes
only that he was unaware, not that such events did not occur. In
addition to the declarations of appended to plaintiffs’ opening
brief which establish conclusively that such blockages are an
impediment to fire suppression, the declarations, appended hereto,
of other highly experienced persons who were in the field either
fighting fires personally or directly observing fire fighting
efforts in the Wedge fire and others, attest to the serious adverse
effects of the closed roads. See Exhibit A-C, appended
hereto.
Likewise, Mr. Black’s belief that aerial methods of fire
suppression are more important are contradicted both by Exhibits A-C
and by the public statements of Chief of the Forest Service, Dale
Bosworth and Kathleen Clarke, Director of the Bureau of Land
Management, in a guest opinion published in the Billings Gazette on
June 6, 2004. Exhibit D, Attachment 6. Addressing the public
concerns with the news that aerial tankers were grounded for safety
reason, Mr. Bosworth and Ms. Clarke assured the public that ground
fighting was the sine qua non of wildfire supression.
[W]e have thousands of firefighters - including smokejumpers
and hotshot crews - as well as fire engines and bulldozers ready
to fight fires on the ground, which is critical to stopping
fires from spreading. Contrary to widespread belief, fires are
stopped on the ground -not from the air.
This conclusion, supported by the defendants’ own environmental
assessment done in support of Amendment 19, directly contradicts Mr.
Black’s assertion and supports Mr. Bosworth’s.
Management actions that change roaded access, may affect
initial attack fire suppression success and have significant
effects on large-fire suppression capability. Delayed response
time for initial attack and reinforcement for emerging fires is
the critical limiting factor for fire starts. Extended response
time due to reduced surface access (Note: caused by closed and
obliterated roads) increases escaped fire possibility. The
cost of suppression increases due to needs for aviation support
and fire fighter support in more remote areas.
Amended Environmental Assessment, Forest Plan Amendment 19, p.
40. Emphasis added.
Defendants do not assert that there are unlikely to be dangerous
wildfires on the ground in the Flathead this summer. Indeed, Mr.
Black’s declaration, read in its entirety indicates that such
fires are a virtual certainty. Ironically, defendants assert that
the very unpredictability of where they will occur, which is what
makes them so dangerous to persons and property, is a reason for not
granting a preliminary injunction. Instead, defendants claim,
plaintiffs should attempt to defeat particular closures, as they are
proposed or are undertaken, through the administrative process,
which is an absurd position to take on the very face of it. The
evidence submitted with plaintiffs’ Opening Brief attached hereto
demonstrate beyond any question that the risk of loss of life and
property is so great and devastating, should it occur, that this
court should exercise its equitable powers to prevent even the
chance of such a thing occurring. For defendants to suggest that it
not do so verges on the unconscionable.
4. There is no Harm to the Forest Service
The opposing parties suggest that the status quo in this case to
be preserved is the one in which the amendments plaintiffs allege to
be unlawful are maintained whereas plaintiffs submit that the status
quo to be preserved is the one in which the unlawful amendment have
not been implemented. This, however, is not the real claim raised
for a claim of harm to defendants. Their actual claim is that they
may decide to not approve any discretionary projects in case
this matter is resolved one way or another. This, they say, means
that defendants cannot plan. This is difficult to understand given
the fact that such decisions require them to consider alternative
actions in any event. There is no reason, therefore, that such
project determinations cannot include alternatives which take into
account the litigation. Plaintiffs submit that this argument, rather
than demonstrating a harm to defendants, appears to be a threat to
plaintiffs that the defendants will ensure that plaintiffs suffer if
they prevail on their motion.
Ms. Barbouletos’s position on re-assigning personnel from other
critical areas, such as firefighting (Defendants’ Opposing Brief
at 26-27) seem to be cut from the same cloth. There is no logical
reason for such reassignments nor any support in her declaration for
her conclusion that she has insufficient resources to do the job.
According to defendants, they are already in the planning process,
presumably with people qualified to do the job. If, in fact, this
Court orders that this process be accelerated and the processing of
amendments ceases, such personnel as would have been working on plan
amendments instead of plan revisions, will be
available for the revision process.
5. The Proposed Injunction is in the Public Interest
Notwithstanding the opposing parties’ allegations to the
contrary, plaintiffs very clearly and overwhelmingly demonstrated in
their Opening Brief that the injunction is in the public interest.
As the Opening Brief and the declarations and evidence appended
thereto demonstrated (a discussion that will not be repeated in
detail here) the fires of last year showed clearly that the air,
water, and ground pollution, increased insect infestation and
disease in trees, even greater accumulation of fuels, economic
impacts, and the like resulting from such fires and the diminution
in the ability to fight such fires because of the defendants’
actions and proposed actions have a significant adverse impact on
the public. Not only the Flathead National Forest area but, as
demonstrated in the Opening Brief, other areas of the United States,
such as southern California, have suffered greatly from catastrophic
fires and will continue to do so if something is not done. Indeed,
both the President and the Congress realized this fact in enacting
and signing the Healthy Forests Restoration Act (a copy of which is
appended hereto for the Court’s convenience). Exhibit D,
Attachment 2. Throughout the Act, Congress made findings regarding
the public importance of fire control. See also Exhibit D,
Attachment 3.
6. The Requested Injunction is not Overbroad
Finally, defendants argue that the elements of the proposed
injunction that would prohibit closing roads and trails and the
processing of amendments in Forests in where revisions are overdue
is too broad. They argue that plaintiffs only showed effects in the
Flathead National Forest and therefore cannot support an injunction
elsewhere. However, this is not entirely correct.
As noted above, for example, plaintiffs showed that the same fire
issues that raised concerns in the Flathead National Forest are of
concern everywhere and that the same factors that govern the spread
and ability to control wildfires in forests are present everywhere. See,
e.g., Exhibit D, Attachments 2 and 3. Therefore, prohibiting
closures of roads of the type described in the proposed injunction
is demonstrably as important in other Forests as in the Flathead. As
for the proposal to stop processing of amendments in other Forests
in which a required plan is overdue, the same issues arise there as
in the Flathead, that is the processing of amendments after a
revision is due prejudices the revision process and takes resources
away from the revision process.
III.
CONCLUSION
For the reasons stated herein and in plaintiffs’
Opening Brief and the exhibits and attachments thereto, plaintiffs’
Motion for Preliminary Injunction and Order should be granted.
Respectfully Submitted this __ day of June, , 2004.
