Coalition for Sustainable Resources Inc. vs. USFS

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259 F3d 1244, *; 2001 U.S. App. LEXIS 17639, **; 53 ERC (BNA) 1368; 31 ELR 20864 The Coalition is a non-profit organization devoted to encouraging the recovery of endangered species "using [**6] sound scientific, technological, and legal means in a manner that avoids unnecessary interference with private property rights." Among its members are ranchers, farmers, and other water-users in Wyoming and Colorado whose water-use practices are subject to restriction to prevent harm to the Platte River species. A declaration submitted for standing purposes indicates that the Coalition also has a member who is an amateur photographer with an aesthetic interest in these species. Some 300 miles west is the Medicine Bow National Forest in Wyoming, part of which lies within the Platte River watershed. The Coalition alleges that implementing certain vegetation and snow management techniques in the Medicine Bow [*1248] and other nearby National Forests could supply most or all of the water needed for the Platte River species to recover. Because denser forests yield less water, these techniques include increasing timber harvesting and allowing forest fires and insect outbreaks to proceed without human intervention. The 1985 forest plan n5 far the Medicine Bow states that the forest could be managed so as to increase the forest's yield of water by 41,000-53,500 acre-feet per year; the Coalition alleges [**7] (and the Forest Service concedes) that a substantial portion of this increase would accrue to the Platte River, although it is not specifically alleged how much of this increased flow would benefit the listed species, given the water claims of the other water users in the river. The Coalition alleges, however, that the Medicine Bow is being managed in a manner that increases forest density and therefore decreases the quantity of water produced by the forests. In particular, in recent years the total timber sale volume in the Medicine Bow has fallen short of the level prescribed in the forest plan. The Forest Service is currently revising the Medicine Bow forest plan and expects to finish by the fall of 2002. n6 This revision will look at a broad range of alternatives for managing the forest, such as "increasing the acreage where natural disturbance events (fire, insects and disease) are tolerated." n5 Forest plans guide management strategies in the National Forests. They are developed with public participation, provide for an appropriate mix of multiple uses (commercial, recreational, and conservation-oriented), and are updated at least every fifteen years. See generally 16 U.S.C. § 1604. [**8] n6 The district court concluded that the Medicine Bow forest plan would be compieted by Page 3 2001. Again, the parties have not provided us with a status report on the expected timetables. The Coalition sued Defendants, who are responsible for managing the Medicine Bow, under the citizen-suit provision of the Endangered Species Act, 16 U.S.C. § 1540(g)(1), which states that "any person may commence a civil suit on his own behalf ... to enjoin any person, including the United States and any other governmental instrumentality or agency ..., who is alleged to be in violation of any provision of' the Act. n7 It alleged that Defendants violated their duty under § 1536(a)(1) n8 to carry out conservation programs in its management of the Medicine Bow. In particular, the Coalition alleged that the agency's inaction - its failure to implement the water- producing techniques, specifically more aggressive timber-harvesting practices - violated its conservation duty. The Coalition also implied that by allowing forest density to increase, the Forest Service was contributing to the decline [**9] of the Platte River species. n9 As less water is produced by the upstream forests, greater restrictions are imposed on downstream water-users such as the Coalition's members. [*1249] The complaint sought declaratory and injunctive relief n7 The complaint also asserted a violation of the Forest and Rangeland Renewable Resources Planning Act. The district court dismissed this claim on the grounds of sovereign immunity, and the Coalition has not appealed that ruling. n8 In relevant part this section provides, "All other federal agencies shall, in consultation with and with the assistance of the Secretary, utilize their authorities in furtherance of the purposes of [the Endangered Species Act] by carrying out programs for the conservation of endangered species and threatened species listed" under the Act. n9 The Coalition did not allege that Defendants' inaction was an agency "action ... likely to jeopardize the continued existence" of the Platte River species or adversely modify their habitat in violation of § 1536(a)(2). We therefore have no occasion to consider whether an agency's inaction can constitute an "action" for these purposes under § 1536(a)(2). [**10] The Forest Service moved to dismiss the complaint, arguing that the Coalition lacked standing and failed to