Coalition for Sustainable Resources Inc. vs. USFS

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Page 11 48 F. Supp. 2d 1303, *; 1999 U.S. Dist. LEXIS 7198, **; 48 ERC (BNA) 1753 The National Forest System lands are managed under a framework set out by the National Forest Management Act ("NFMA") of [**11] 1976,16 U.S.C. § 1600 et seq. Pursuant to this Act, USFS devises Forest Plans to manage the forest lands. As required by NFMA, these plans involve the public in selecting a plan to manage the forests under "multiple use and sustained" yield principles and disclose the environmental impacts of a range of management scenarios consistent with the National Environmental Policy Act of 1969. See 16 U.S.C. ,¢ 1604(d), (e), (g) (1994). The multiple uses that the plans provide for are: Outdoor recreation, range, timber, watershed, wildlife and fish, and wilderness. See 16 U.S.C. § 1604(e)(1) (1994). The forest plans also are required to identify those areas of farests that are not suited for timber production, see 16 U.S.C. § 1604(k) (1994), and to establish ASQ requirements far a forest over the life of a plan. See 36 C.F.R. § 219.16 (1998). These forest plans are revised after a ten to fifteen-year period. See 16 U.S.C. § 1604(fl(5) (1994). The Medicine Bow Forest Plan nl expressly stated that its purpose was to ensure compliance with the statutory mandate of NFMA, to develop and maintain a management system that uses a interdisciplinary approach to achieve integrated [**12] consideration of physical, biological, economic and other sciences, and to provide assessment through current modeling techniques to make forecasts of the outputs which could be produced under the [*1309] Forest Plan and other alternatives to the Plan. The Forest Plan also cautioned that the forecasts of outputs that could be produced under this Plan may not occur at the projected number. The 1985 Medicine Bow Forest Plan is presently being revised. This revision process began in 1992 and is scheduled to be completed by May 2001. The Endangered Species Act The ESA, 16 U.S.C. § I531 et seq. (1994), seeks to protect species of animals against threats to their continuing existence caused by man. See generally TVA v. Hill, 437 U.S. I53, 98 S. Ct. 2279, 57 L. Ed. 2d 117 (1978). The ESA has directed that all Federal deparhnents and agencies shall seek to conserve endangered species and threatened species and shall utilize their authority to further the purposes of the ESA. The Secretaries of Commerce and the Interior jointly administer the ESA through the National Marine Fisheries Service and FWS. The ESA instructs the Secretary of the Interior to promulgate by regulation a list of those species that are either endangered or threatened, and to define the critical habitat of these species. See 16 U.S.C. ,¢ § 1533, 1536 (1994). Once a species is listed and a critical habitat is designated, specific substantive and procedural protections are accarded to that species and its habitat. See, e.g., 16 U.S.C. § 1536(a)(2) (1994). At issue in this lawsuit is § 1536(a)(1) (also known as Section [**14] 7(a)(1)), which directs federal agencies to carry out their programs "in a manner consistent with the conservation of endangered and threatened species." See Pyramid Lake Paiute Tribe of Indians v. U.S. Dept. of the Navy, 898 F.2d 1410, 1416 (9th Cir. 1990). The amount of discretion accorded to agencies in carrying out their duties under this provision is a source of contention in this lawsuit. nl Although the Medicine Bow Forest Plan was not attached to the Complaint, the Court may consider it in this motion to dismiss because the defendants have provided the Court with an authentic copy attached as exhibit 1 to their memorandum in support of their motion. "If a plaintiff does not incorporate by reference or attach a document to its complaint, but the document is referred to in the complaint and is central to the plaintiffs claim, a defendant may submit an indisputably authentic copy to the court to be considered on a motion to dismiss." GFF Corp. v. Associated Wholesale Grocers, Inc., 130 F.3d 1381, 1384 (10th Cir. 1997) [**13] Discussion 1. Motion to Dismiss Standards n2 n2 Although materials outside the complaint were submitted to the Court, it will not convert the instant motion into one for summary judgment. The federal defendants have moved pursuant to Rules 12(b)(1) and 12(b)(6) to dismiss Plaintiffs complaint. The standards for a motion to dismiss are well established and need only be briefly restated. When ruling on a 12(b)(6) motion to dismiss, the Court takes all well-pleaded allegations in the complaint as true and construes them in the light most favorable to the plaintiff. See Realmonte v. Reeves, [**15] 169 F.3d 1280, 1283 (IOth Cir. 1999). Conversely, in a 12(b)(1) motion to