Coalition for Sustainable Resources Inc. vs. USFS

• File Number: 8451.960
• Description: Coalition for Sustainable Resources Inc. vs. USFS
• State: CO
• Basin: South Platte
• Water Division: 1
• Date: 8/7/2001
• Author: US Court of Appeals for the Tenth Circuit, Clarence A. Brimmer
• Title: Coalition for Sustainable Resources Inc. vs. USFS
• Water Supply Pro - Doc Type: Litigation

Page 9
48 F. Supp. 2d 1303, *; 1999 U.S. Dist. LEXIS 7198, **;
48 ERC (BNA) 1753
ORDER GRANTING FEDERAL DEFENDANTS'
MOTION TO DISMISS AND GRANTING
INTERVENER'S MOTION TO DISMISS
This case arises from the alleged improper forest
management techniques used by the United States Forest
Service in the Medicine Bow National Forest and the
alleged injury to endangered species caused by such
techniques. The United States Forest Service has brought
a motion to dismiss, arguing that the plaintiff lacks
standing and otherwise fails to state a claim upon which
relief can be granted. Additionally, the Intervenors have
brought a motion to dismiss, arguing that this case is not
ripe for judicial resolution. For the reasons that follow,
the Court ORDERS that both motions are [**3]
GRANTED, and that all further proceedings are hereby
VACATED.
[*1306] Factual Background
This suit has been brought by the Coalition for
Sustainable Resources ("CSR"). CSR is a non-profit
corporation organized for the purpose of encouraging the
prompt recovery of species designated under the
Endangered Species Act ("ESA") by using sound
techniques in a manner that avoids unnecessary
interference with private property rights. (Compl. P 5.)
CSR's members include ranchers, farmers, and other
water users in Wyoming and Colorado whose water-use
practices are subject to restriction under the ESA.
(Compl. P 8.)
Defendant United States Forest Service ("USFS") is
responsible for the oversight, management, and care of
the National Forest System, including the Medicine Bow
National Forest in Wyoming. (Compl. P 10.) CSR has
also named various officers and employees of the United
States government as defendants in their official
capacities for their roles and responsibilities in managing
the Medicine Bow. (Compl. PP 11-15.)
The Fish and Wildlife Service ("FWS") estimates
that at least 238,000 more acre-feet of water will need to
be delivered annually, in addition to current flows, to
meet the target flows established for the listed species.
(Compl. P 21, Ex. 1.) Final Biological Opinions issued
by FWS conclude that the continuation of evaporation
and other water depletions of as little as .7 acre-feet per
year from the Platte River tributary streams would
jeopardize the continued existence of the listed species.
(Compl. P 22.)
National Forests were established for the purposes,
among other things, of securing favorable conditions of
water flows and furnishing a continuous supply of timber.
(Compl. P 26.) The Medicine [**5] Bow, Routt,
Roosevelt, and other nearby National Forests include
lands that are within the watershed of the Platte River.
(Compl. P 29.) Forest Plans guide all natural resource
activities and establish management standards and
guidelines for the National Forest System. (Compl. P 32.)
According to the original Forest Plan for the nearby
Arapaho and Roosevelt National Forests in northern
Colorado, the annual water yields from those Forests can
be increased depending on the extent and location of the
vegetation treatment and/or snow management activities,
and the constraints of water quality management
standards. (Compl. P 33.) A maximum increase of
240,000 acre-feet per year, for a total of 2.21 million
acre-feet per year, could be provided in those Forests
without degading water quality. (Compl. P 33.) CSR
alleges that a substantial portion of the 240,000 acre-feet
potential would accrue to the Platte River drainage.
(Compl. P 34.)
Similarly, the original Forest Plan for the adjacent
Routt National Forest could have been increased 103,000
acre-feet by 1991. (Compl. P 35.) A substantial portion
of this increase in water yield would accrue to the Platte
River drainage. (Compl. P 36.) [**6]
The Intervenor-Defendants (the "Biodiversity
Parties") have fought to protect the natural environment
of the Medicine Bow. In particular, their efforts include
[**4] challenging past attempts by various parties to
allow clear-cutting portions of the Medicine Bow.
CSR claims to be interested in the recovery of the
following endangered species: The Whooping Crane, the
Least Tern, the Piping Plover, and the Pallid Sturgeon.
(Compl. PP 16-19.) These endangered species have
habitats along the Platte River in Nebraska. (Compl. PP
16-19.) CSR alleges that increased river flow in the
central Platte River is necessary to protect the listed
species. (Compl. P 20.)
In the environmental analysis which produced the
Forest Plan for the Medicine Bow, USFS developed a
benchmark for maximum water yield production by
assigning various management prescriptions to lands
within the Forest. (Compl. P 37.) This analysis further
limited the maximum [*1307] water yield benchmark.
(Compl. P 37.) Consistent with this analysis, the
maximum water yield for the Medicine Bow showed a
potential increase ranging from approximately 41,000 to
53,500 acre-feet. (Compl. P 38.) A substantial portion of
this potential increased yield would accrue to the Platte
River drainage. (Compl. P 39.)
In a recent study (the "Coon Creek Study")
completed pursuant to the Medicine Bow Forest Plan,