Coalition for Sustainable Resources Inc. vs. USFS

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? #1 ? 48 F. Supp. 2d 1303, 1999 U.S. Dist. LEXIS 7198, **; 48 ERC (BNA) 1753 such opinions are not mandatory, they are advisory only-- therefore, how to implement "conservation" is ultimately left to the discretion of the agency. This discretionary authority is also apparent from FWS's statement in the Federal Register, where in adopting 50 C.F.R. § 402.146), it stated § 1536(a)(1) "does not mandate particular actions to be taken by Federal Agencies to implement" that provision. SI Fed. Reg. 19,926, 19,934 (June 3, 1986). Of [**35] course, the interpretation of a statute by an agency charged with its administration is entitled to deference. See Chevron, U.S.A. v. Natural Resources Defense Council, 467 U.S. 837, 844, 81 L. Ed. 2d 694, 104 S. Ct. 2778 (1984). District courts and other authorities have also found that discretion is abundant under the provision. First, in a case where the plaintiffs alleged that the defendants [*1316] failed to take affirmative steps under § 1536(a)(1), the Court found that the claims were without merit because that section did not require that affirmative steps be taken. See Hawksbill Sea Turtle v. FEMA, 39 V.I. 268, 11 F. Supp. 2d 529, 542-43 (D. V.I. 1998). Another district court observed that "Conservation plans under [Section] 7(a)(1) are voluntary measures that the federal agency has the discretion to undertake and the [ESA] does not mandate particular actions be taken by Federal Agencies to implement [Section] 7(a)(1)." Strahan v. Linnon, 967 F. Supp. 581, 596 (D. Mass. 1997); see also J.B. Ruhl, Section 7(a)(1) of the "New" Endangered Species Act: Rediscovering and Redefining the Untapped Power of Federal Agencies' Duty to Conserve Species, 25 Envtl. L. 1107, 1132 [**36] (1995). Another court has reasoned that "reasonable people could disagree as to the proper level of activism required by an agency under the ESA. The court will not substitute its judgment for the agency's in deciding as a general matter that the totality of defendant's actions taken to protectthreatened and endangered species were insufficient." Defenders of Wildlife v. Administrator, Environmental Protection Agency, 688 F. Supp. 1334, 1352 (D. Minn1988), affd in part and rev'd in part on other grounds, 882 F.2d 1294 (8th Cir. 1989). This leads to the necessary and relevant question posed in this motion: Does an action brought under § 1536(a)(1) envision the type of affirmative injunctive relief sought by the Plaintiff? The Court has conducted an extensive review of the law in this area, and its research has not revealed one case where a court ordered the federal agency to take specific measures to land, such as ordering that vegetation and snow management programs be implemented. The absence of such a case makes sense: The courts are not in the best position to Page 17 order a specific affirmative remedy such as clearing a forest. Likewise, this Court is not the proper place [**37] to adjudge and declare that the defendants have violated the ESA as a matter of law by not implementing the processes listed. The weighty decisions of what an affirmative act will do, in terms of USFS's statutory obligations and potential impact on the environment, is better left to the experts in this field. To order such action without going through the proper procedure of ordering analyses and impact statements is unthinkable and judicially irresponsible. In sum, the ESA never envisioned such a remedy for violating § 1536(a)(1) and the Court finds as a matter of law that it will not entertain such an action today. Defendants' motion to dismiss Plaintiffs ESA claims is thus GRANTED. V. Plaintiff s NRRRPA Claim Must Be Dismissed The federal defendants correctly point out that this Court has no jurisdiction over Plaintiffs NRRRPA claims because there is no waiver of sovereign immunity present. Because NFMA does not include provisions for judicial review, challenges to Forest Plans must be made under the general waiver of sovereign immunity found in the APA, S U.S.C. § 702 (1994). Plaintiff has not brought this cause of action through the APA, thus this claim [**38] must be dismissed. Accordingly, Defendants' motion to dismiss Plaintiffs third Count is GRANTED. Conclusion For the stated reasons, Plaintiffs Counts are DISMISSED because: (1) Plaintiffs ESA claims are not ripe, and (2) Plaintiffs ESA claims fail to state a claim upon which relief can be granted, and (3) Plaintiffs NRRRPA claim has not proceeded under a waiver of sovereign immunity. These claims are DISMISSED WITHOUT PREJiTDICE. Each party shall bear their own costs. Dated this 13th day of May 1999. CLARENCE A. BRIMMER, UNITED STATES DISTRICT JUDGE