Coalition for Sustainable Resources Inc. vs. USFS

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vc ?' .r Page 16 48 F. Supp. 2d 1303, *; 1999 U.S. Dist. LEXIS 7198, **; 48 ERC (BNA) 1753 Partnership process or through administrative adjudication. Biodiversity Parties' Motion to Dismiss on ripeness grounds is thus GRANTED. n8 Although the plaintiff may try to argue that this case is more immediate because endangered species are at issue, this Court is not convinced that unmediacy is an issue in this lawsuit. This is not a circumstance where USFS is going to cut down trees in which the spotted owl lives. Instead, this is a case where the plaintiff wants USFS to implement a long range program that would take months or years to increase water yield for the benefit of species 300 miles away. Accordingly, the Court is not convinced that because this lawsuit was brought under the ESA a more imminent harm has surfaced making this IV. Failure to State a Claim Upon Which Relief Can be Granted Another alternative ground supports this Court's conclusion today. The federal defendants have also moved to dismiss Plaintiffs ESA claims because federal agencies have substantial discretion in how to implement their § 1536(a)(1) obligations and, accordingly, § 1536(a)(1) does not mandate that specific actions be taken by federal agencies. Recall that § 1536(a)(1) states that federal agencies shall utilize their authorities in furtherance of the purposes of the ESA to carry out programs for the "conservation" of endangered species. n9 case ripe. **32 Further, like Ohio Forestry, this action is hindering agency and other governmental attempts to change policy. The Partnership is currently working on a solution to the harm Plaintiff complains of. Short-circuiting these efforts would not only be unwise, but would be a waste of governmental resources. USFS is also currently revising its Forest Plan. The experts that should be considering these matters are working this problem, and this Court will not substitute its judgment for these parties. The issues before the Court are not fit for judicial resolution at this time. And most importantly, like Ohio Foresriy, this case involves challenges to an elaborate [*1315] and technically based plan that would require time- consuming consideration. There are so many factors involved in the type of relief Plaintiff seeks that it would be impossible for this Court to determine and consider all of the possible impacts such remedies would have. This Court is only saying that further factual development would significantly advance a Court's ability to deal with the issues in this case. It is better to let the Partnership and USFS consider these matters. Again, the Court refuses to substitute its [**33] judgment for the wise and fair processes described above. The issues before the Court are not fit far judicial resolution at this time. In sum, Plaintiff will not suffer significant hardship if the Court declines to exercise jurisdiction. Plaintiff more properly should bring these matters before the Partnership Process and before an administrative tribunal. Moreover, this Court would benefit from further factual development of the issues involved. The n9 The terms "conserve", "conserving", and "conservation" mean to use and the use of all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to this chapter are no longer necessary. Such methods and procedures include, but are not limited to all activities associated with scientific resources management such as research, census, law enforcement, habitat acquisition and maintenance, propagation, live trapping, and transplantation, and, in the extraordinary case where population pressures within a given ecosystem cannot be other relieved, may include regulated taking. 16 U.S.C. ,¢ 1532(3) (1994). **34 The case law is well settled that federal agencies are accorded discretion in determining how to fulfill their § 1536(a)(1) obligations. See Pyramid Lake, 898 F.2d at 1418. As Judge Kerr of this District stated: "While the affirmative nature of § 1536(a)(1) is beyond dispute, the definition of conservation in § 1532 proves some discretion in conservation measures." National Wildlife Fed'n v. National Park Service, 669 F. Supp. 384, 387 (D. Wyo. 1987). The ESA's implementing regulations also support this proposition. See Pyramid Lake, 898 F.2d at 1418 (citing SO C.F.R. § 402.146) for this proposition). In particular, SO C.F.R § 402.146) states that FWS may present the federal agency with a biological opinion, but