Ctr for Biological v. Veneman ( 2005 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 05a0320p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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Plaintiffs-Appellants, -
CENTER FOR BIOLOGICAL DIVERSITY, et al.,
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No. 03-1139
v.
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ROBERT LUECKEL, Ottawa National Forest -
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Defendants-Appellees. -
Supervisor, et al.,
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Appeal from the United States District Court
for the Western District of Michigan at Marquette.
No. 01-00194—Gordon J. Quist, District Judge.
Argued: August 13, 2004
Decided and Filed: August 1, 2005
Before: NELSON, SILER, and BATCHELDER, Circuit Judges.
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COUNSEL
ARGUED: Brent R. Plater, CENTER FOR BIOLOGICAL DIVERSITY, Oakland, California, for
Appellants. Ronald M. Stella, UNITED STATES ATTORNEY, Grand Rapids, Michigan, for
Appellees. ON BRIEF: Brent R. Plater, CENTER FOR BIOLOGICAL DIVERSITY, Oakland,
California, Matthew G. Kenna, KENNA & HICKCOX, Durango, Colorado, for Appellants.
Terrence Dean, UNITED STATES ATTORNEY, Grand Rapids, Michigan, for Appellees.
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OPINION
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DAVID A. NELSON, Circuit Judge. This is an appeal from the denial of declaratory and
injunctive relief in a suit arising out of the failure of the United States Forest Service to comply with
certain requirements of the Wild and Scenic Rivers Act, 16 U.S.C. §§ 1271 et seq., and other federal
statutes. The Forest Service concedes that it has not established detailed river corridor boundaries
and has not completed comprehensive management plans for a number of Michigan river segments
with respect to which such steps were required by statute to have been taken by 1993 and 1995
respectively. The district court dismissed the case, however, on the ground that the plaintiffs lacked
standing to sue. See Center for Biological Diversity v. Lueckel, 248 F. Supp. 2d 660 (W.D. Mich.
2002).
1
No. 03-1139 Center for Biological Diversity, et al. v. Lueckel, et al. Page 2
Upon de novo review, we conclude that the plaintiffs have shown that they suffered concrete
injuries as a result of logging and other activities along several of the “wild and scenic” rivers in
question. But we are not persuaded that the plaintiffs have established the necessary causal link
between those injuries and the Forest Service’s failure to perform its statutory duties. On that basis,
we shall affirm the judgment entered by the district court.
I
In 1992 Congress designated sections of certain Michigan rivers and the adjacent lands as
part of the national system of wild and scenic rivers. See 16 U.S.C. § 1274(a)(120)-(121), (124)-
(125), (127)-(132). Each of these river segments is located within the Ottawa National Forest or the
Hiawatha National Forest in the Upper Peninsula of Michigan. The Forest Service was charged with
establishing detailed river corridor boundaries for each segment within one year of the designation.
16 U.S.C. § 1274(b). A comprehensive management plan for each segment, “to provide for the
protection of the river values,” was to be prepared within three full fiscal years of the designation.
16 U.S.C. § 1274(d). It is undisputed that the Forest Service has neither established detailed river
corridor boundaries nor prepared comprehensive management plans for the river segments to which
this lawsuit relates.
The lawsuit was filed against the Forest Service by three organizations with an interest in
environmental preservation — Center for Biological Diversity, Northwoods Wilderness Recovery,
and Superior Wilderness Action Network — seeking declaratory and injunctive relief under the
Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701-06. (The APA provides a right of action
to any person aggrieved by the acts or omissions of a federal agency. See 5 U.S.C. §§ 702, 706.)
By failing to establish detailed river corridor boundaries and prepare comprehensive management
plans, the plaintiffs alleged, the Forest Service “unlawfully withheld or unreasonably delayed”
compliance with the Wild and Scenic Rivers Act. The plaintiffs also alleged that the Forest
Service’s inaction violated the National Forest Management Act, 16 U.S.C. §§ 1600 et seq., and the
National Environmental Policy Act, 42 U.S.C. §§ 4321 et seq.
The parties filed cross-motions for summary judgment, the defendants moving for judgment
separately with respect to each of the two national forests. The plaintiffs argued that the Forest
Service’s admitted non-compliance with the Wild and Scenic Rivers Act required the entry of
judgment in their favor. The Forest Service argued that the plaintiffs lacked standing to sue.
Pointing out that the Act establishes default boundaries for each designated river segment, see 16
U.S.C. § 1275(d), and that existing land and resource management plans for the Ottawa and
Hiawatha National Forests regulate activities within the wild and scenic river corridors of the
forests, the Forest Service argued that its non-compliance with the Act’s “technical requirements”
had not harmed the plaintiffs.
In opposition to the Forest Service’s motions for summary judgment, the plaintiffs submitted
10 affidavits executed by nine of their members. The main purpose of these affidavits was to
demonstrate that the affiants were being injured by the Forest Service’s inaction.
One affiant, Raymond Weglarz, stated that “the continuing absence of a Comprehensive
Management Plan and the failure to establish detailed river corridor boundaries” have “allowed
inappropriate development and damage to the riparian environment, including roads, bridges,
culverts, erosion, soil compaction, petroleum product pollution, and other inappropriate uses.” Mr.
Weglarz pointed specifically to “logging along the East Branch of the Ontonagon [River] in the
Ottawa Forest,” which he said had caused erosion along the riverbank.
Another affiant, Douglas Cornett, stated a belief that “the absence of a Comprehensive
Management Plan and the failure to establish detailed river corridor boundaries . . . has allowed the
No. 03-1139 Center for Biological Diversity, et al. v. Lueckel, et al. Page 3
Forest Service to engage in unlawful activities that destroy habitat and degrade river values . . . .”
He said that two timber sales, one in the Ontonagon River corridor and one in the Sturgeon River
corridor of the Ottawa National Forest, “[might] have had cutting units dropped or been significantly
modified if Wild and Scenic River management plans had been in place.”
In a second affidavit,1 Mr. Cornett stated that he had visited nine of the Ottawa National
Forest’s wild and scenic rivers between May and October of 2002 and had found that the scientific,
recreational, and aesthetic values of the rivers were not being protected. Specifically, Mr. Cornett
pointed to periodic flooding and de-watering of the Middle Branch of the Ontonagon River, caused
by the Bond Falls Dam, and to timber sales in the watersheds of the Cisco Branch of the Ontonagon
River and the East Branch of the Presque Isle River. All of these rivers are in the Ottawa National
Forest.
The remaining affiants expressed a generalized concern that logging and road construction
are degrading the wild and scenic rivers of Michigan’s Upper Peninsula and will continue to do so
until the Forest Service establishes detailed river corridor boundaries and implements
comprehensive management plans.
The Forest Service submitted affidavits detailing the current and proposed logging and road-
building activities within the corridors of the wild and scenic river segments in the Ottawa and
Hiawatha National Forests. The affiants stated that only six out of 23 designated river segments in
the Ottawa National Forest, and none of the eight designated river segments in the Hiawatha
National Forest, were being affected or would soon be affected by timber harvests or road
construction. Logging activity was planned for only 1.2 percent of the acreage of the six affected
river segment corridors, and only 1.05 miles of new roads were planned.
The district court granted the summary judgment motions filed by the Forest Service and
denied summary judgment to the plaintiff. Concluding that the plaintiffs’ affidavits demonstrated
only “a theoretical possibility of harm” attributable to the Forest Service’s inaction, the court held
that the plaintiffs had not established any of the three elements of constitutional standing: injury-in-
fact, causation, and redressability. The court also held that injunctive relief was inappropriate
because there was no “showing of actual irreparable harm.” This appeal followed issuance of the
district court’s judgment.
II
To establish standing to sue under the Administrative Procedure Act, a plaintiff must satisfy
constitutional prerequisites derived from the “case or controversy” requirement of Article III of the
Constitution and must demonstrate the inapplicability of “prudential” limitations imposed by the
APA. See Courtney v. Smith, 297 F.3d 455, 460-61 (6th Cir. 2002), cert. denied, 540 U.S. 814
(2003). The two sets of requirements overlap substantially.
“The ‘irreducible constitutional minimum of standing’ contains three requirements.” Steel
Co. v. Citizens for a Better Environment, 523 U.S. 83, 102-03 (1998) (quoting Lujan v. Defenders
of Wildlife, 504 U.S. 555, 560 (1992)).
“First and foremost, there must be alleged (and ultimately proved) an injury in fact
– a harm suffered by the plaintiff that is concrete and actual or imminent, not
conjectural or hypothetical. Second, there must be causation – a fairly traceable
1
The Forest Service contends that Mr. Cornett’s second affidavit should not be considered because it relates
to injuries that post-date the filing of the complaint. In light of our ultimate disposition of this case, we shall assume that
the affidavit is properly before us.
No. 03-1139 Center for Biological Diversity, et al. v. Lueckel, et al. Page 4
connection between the plaintiff’s injury and the complained-of conduct of the
defendant. And third, there must be redressability – a likelihood that the requested
relief will redress the alleged injury.” Id. at 103 (internal quotation marks and
citations omitted).
In the case at bar there is a dispute as to whether each of these three requirements has been met. It
is the plaintiffs who bear the burden of showing that the requirements have been satisfied. See id.
at 103-04.
The APA imposes two requirements for standing. See Lujan v. National Wildlife Federation,
497 U.S. 871, 882 (1990). First, the plaintiff’s complaint must relate to “agency action,” which is
defined to include “failure to act.” See id.; 5 U.S.C. § 551(13). It is undisputed that the Forest
Service’s failure to establish detailed river corridor boundaries and to prepare comprehensive
management plans constitutes agency action within the meaning of the APA.
Second, the plaintiff must have suffered either “legal wrong” or an injury falling within the
“zone of interests” sought to be protected by the statute on which his complaint is based. See
National Wildlife Federation, 497 U.S. at 883. The plaintiffs here have not alleged any “legal
wrong” resulting from the Forest Service’s inaction. They have alleged, however, injuries to their
members’ enjoyment of the aesthetic, recreational, and scientific values of the designated river
segments. Enjoyment of these values plainly falls within the “zone of interests” that the Wild and
Scenic Rivers Act is meant to protect. See 16 U.S.C. § 1271.2 We assume, moreover, that the
interests of the plaintiff organizations’ members in the designated river segments are closely related
to the purposes of the organizations themselves, so that the organizations have standing to sue under
the APA if their members have standing. See National Wildlife Federation, 497 U.S. at 885 (citing
Hunt v. Washington State Apple Advertising Commission, 432 U.S. 333 (1977)).
The fact that the plaintiffs’ alleged injuries fall within the statutorily protected zone of
interests does not itself mean that the existence of the injuries has been demonstrated. To establish
standing, the plaintiffs must still show that their members have suffered a concrete injury to
aesthetic, recreational, or scientific interests. They must also show (1) that the injury is causally
connected to the Forest Service’s failure to establish detailed river corridor boundaries and prepare
comprehensive management plans and (2) that the injury can be redressed by an order requiring the
Forest Service to act.
The plaintiffs cannot carry their burden by generalized allegations. Because the plaintiffs’
standing was challenged in a motion for summary judgment, the plaintiffs must, in the words of Rule
56, Fed. R. Civ. P., “set forth specific facts,” in affidavits or through other evidence, demonstrating
that each element of standing is satisfied. See National Wildlife Federation, 497 U.S. at 884; cf.
Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992).
A
The plaintiffs contend that the absence of detailed river corridor boundaries and
comprehensive management plans, without more, constitutes an actionable injury. We disagree.
2
Section 1271 declares it to be
“the policy of the United States that certain selected rivers of the Nation which, with their immediate
environments, possess outstandingly remarkable scenic, recreational, geologic, fish and wildlife,
historic, cultural, or other similar values, shall be preserved in free-flowing condition, and that they
and their immediate environments shall be protected for the benefit and enjoyment of present and
future generations.”
No. 03-1139 Center for Biological Diversity, et al. v. Lueckel, et al. Page 5
The plaintiffs can only suffer a concrete injury if the Forest Service or others are undertaking
or threatening to undertake activities that cause or threaten harm to the plaintiffs’ protected interests.
Such an eventuality cannot be presumed. Cf. Sierra Club v. Robertson, 28 F.3d 753, 758 (8th Cir.
1994) (“Finding an environmental injury based on [a land and resource management plan] alone,
without reference to a particular site-specific action, would ‘take[] us into the area of speculation
and conjecture.’”) (quoting O’Shea v. Littleton, 414 U.S. 488, 497 (1974)). It follows, we believe,
that the plaintiffs must do more than show that their members use the wild and scenic river segments
for which detailed corridor boundaries and comprehensive management plans are overdue. They
must show that actual, site-specific activities are diminishing or threaten to diminish their members’
enjoyment of the designated river segments. See id. at 759.
Most of the affidavits submitted by the plaintiffs – those of Scott Berry, John Jungwirth,
Steven Craig Garske, Kraig Klungness, Daniel Patterson, Rob Cadmus, and Jeff Ensing – refer
generally to logging and road-building within wild and scenic river corridors without demonstrating
that the affiants’ enjoyment of any particular river segment has been diminished by specific
instances of logging or road-building. In our view, these affidavits fail to set forth “specific facts”
that can satisfy the plaintiffs’ burden under Rule 56. See National Wildlife Federation, 497 U.S. at
886-89. Expressions of generalized concern are insufficient to establish the requisite injury. See
Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167, 199 (2000)
(Scalia, J., dissenting). The insufficiency of such generalizations is particularly striking here, where
there is unchallenged evidence that logging and road-building activities are planned or underway
only in small portions of the corridors of six designated river segments.
The affidavits of Raymond Weglarz and Douglas Cornett, on the other hand, identify
specific activities and events that have diminished or will diminish the affiants’ enjoyment of
particular river corridors. These are: logging along the East Branch of the Ontonagon River, logging
in the Ontonagon River corridor, logging in the Sturgeon River corridor, flooding and de-watering
of the Middle Branch of the Ontonagon River, logging along the Cisco Branch of the Ontonagon
River, and logging along the East Branch of the Presque Isle River. Messrs. Weglarz and Cornett
do not always specify that the designated segments of these rivers (as opposed to undesignated
segments) are being affected by the activities that they have observed. But the Forest Service
acknowledges current or proposed timber harvests along one designated segment of the East Branch
of the Ontonagon River, two designated segments of the Cisco Branch of the Ontonagon River, and
the sole designated segment of the East Branch of the Presque Isle River. Moreover, the Forest
Service does not deny that the flooding and de-watering reported by Mr. Cornett occurs in one or
more of the five designated segments of the Middle Branch of the Ontonagon River.3 It seems to
us that the plaintiffs have “set forth specific facts” showing that they are being injured by activities
affecting some of the river segments at issue.
B
The next question is whether the plaintiffs have shown that their injuries – the logging,
flooding, and de-watering described above – are causally connected to the Forest Service’s inaction.
Closely related to the question of causation is the question of redressability, i.e., whether the
plaintiffs’ injuries are likely to be alleviated if the Forest Service is compelled to establish detailed
corridor boundaries and to prepare comprehensive management plans.
3
The Forest Service has denied the existence of logging activity along the designated segments of the Sturgeon
River, and no segment of the main stem of the Ontonagon River is at issue in this case. Accordingly, we think that Mr.
Cornett’s complaint of logging activity in the Ontonagon and Sturgeon River corridors is insufficient to show that such
activity occurred along designated segments of those rivers.
No. 03-1139 Center for Biological Diversity, et al. v. Lueckel, et al. Page 6
As the District of Columbia Circuit has pointed out, an adequate causal chain in a case
involving an agency’s non-compliance with procedural requirements must contain at least two links:
a link between the plaintiff’s injury and some substantive decision of the agency, and a link between
that substantive decision and the agency’s procedural omissions. See Florida Audubon Society v.
Bentsen, 94 F.3d 658, 668 (D.C. Cir. 1996) (en banc).
Here the first causal link has been established with respect to logging along the East Branch
of the Ontonagon River, the Cisco Branch of the Ontonagon River, and the East Branch of the
Presque Isle River, the Forest Service having acknowledged its decisions to authorize timber
harvests in the designated river segment corridors. (There is no evidence, on the other hand, that
the flooding and de-watering of the Middle Branch of the Ontonagon River is attributable to any
substantive decision of the Forest Service.)
The question of the second causal link – whether the Forest Service’s procedural omissions
are causally linked to the agency’s authorization of timber harvests along designated river segments
– is hard to distinguish from the question of redressability. Both depend on how likely it is that the
establishment of detailed river corridor boundaries and adoption of comprehensive management
plans would alter the Forest Service’s decisions to authorize logging activity.
The substantial equivalence of these questions is important because the “normal standards
for redressability and immediacy” are relaxed when a plaintiff has asserted a “procedural right.”
Lujan v. Defenders of Wildlife, 504 U.S. 555, 572-73 n.7 (1992). As the Supreme Court explained
in Defenders of Wildlife,
“one living adjacent to the site for proposed construction of a federally licensed dam
has standing to challenge the licensing agency’s failure to prepare an Environmental
Impact Statement, even though he cannot establish with any certainty that the
Statement will cause the license to be withheld or altered, and even though the dam
will not be completed for many years.” Id.
Accordingly, the plaintiffs – who have asserted a “procedural right” to have the Forest Service fulfill
its duties under the Wild and Scenic Rivers Act – need not show “with any certainty” that the
establishment of detailed river corridor boundaries and comprehensive management plans would
alter the Forest Service’s decisions with respect to logging activity within the designated river
segment corridors.
But Defenders of Wildlife did not entirely eliminate the redressability element of standing
in cases involving “procedural rights.” See Florida Audubon Society, 94 F.3d at 664 (“[T]he
particular nature of a case does not – and cannot – eliminate any of the ‘irreducible’ elements of
standing . . . .”). The plaintiffs must make some showing with respect to redressability, although the
strength of the necessary showing may be open to debate.
The plaintiffs argue that the causation and redressability requirements may be satisfied by
evidence that their injuries “reasonably could have been avoided” had the Forest Service complied
with its statutory duties. We accept that standard for the purposes of this appeal. Cf. Citizens for
Better Forestry v. United States Department of Agriculture, 341 F.3d 961, 976 (9th Cir. 2003)
(stating that redressability is established by evidence that the agency’s decision “could be
influenced” by additional environmental considerations).
We are not persuaded, however, that the plaintiffs have “set forth specific facts” showing that
the establishment of detailed river corridor boundaries and comprehensive management plans might
appreciably alter the Forest Service’s decision-making with respect to logging activity within the
designated river segment corridors. For one thing, the plaintiffs have presented no evidence that
detailed river corridor boundaries might offer greater protection from logging than the default
No. 03-1139 Center for Biological Diversity, et al. v. Lueckel, et al. Page 7
boundaries established by the Wild and Scenic Rivers Act. As the Forest Service points out, the
default boundaries already encompass the maximum acreage that the Act allows to be encompassed
by detailed boundaries. See 16 U.S.C. §§ 1274(b), 1275(d). Nor is there any real evidence that a
comprehensive management plan might have altered the Forest Service’s decisions. The plaintiffs
point to Mr. Cornett’s first affidavit, where he states that certain timber sales “[might] have had
cutting units dropped or been significantly modified if Wild and Scenic River management plans
had been in place.” Absent any explanation of the basis for this statement, we think the statement
is too speculative to satisfy the plaintiffs’ burden of presenting “specific facts.”
The plaintiffs also cite evidence that the lack of a comprehensive management plan hindered
the Forest Service’s consideration of a proposed highway rest area project within the corridor of a
designated river segment in the Hiawatha National Forest. But this evidence does not suggest that
the Forest Service is any more likely to approve environmentally harmful projects in the absence
of a comprehensive plan. To the contrary, the Forest Service cited the absence of a plan as a reason
for its denial of permission to build the proposed rest area. Moreover, evidence relating to a
proposed highway project in the Hiawatha National Forest has little relevance to the Forest Service’s
decisions about timber harvests in the Ottawa National Forest.
Finally, the plaintiffs contend that the existing land and resource management plans for the
Ottawa and Hiawatha National Forests do not provide adequate protection of wild and scenic river
segments – the implication being that a comprehensive management plan under the Wild and Scenic
Rivers Act might well provide greater protection. But the adequacy of the existing plan for the
Hiawatha National Forest is irrelevant, because none of the logging activities at issue occurred there.
As for the Ottawa National Forest, its existing plan states that wild and scenic river corridors “will
be managed to protect and enhance the values for which the river was designated.” This standard
is at least equivalent to the standard prescribed by the Wild and Scenic Rivers Act. See 16 U.S.C.
§§ 1274(d), 1283(a). More specifically, the plan prohibits commercial timber harvests within the
corridors of wild river segments and requires that timber harvests within the corridors of scenic and
recreational river segments be consistent with their scenic conditions and recreational uses. The
plaintiffs have presented no evidence that comprehensive management plans typically provide for
greater restrictions.
In accordance with the existing plan, the Forest Service has authorized only a very limited
amount of logging activity within the corridors of designated river segments in the Ottawa National
Forest. And there is undisputed evidence that the Forest Service has sought to minimize the
environmental impact of that limited activity. We can find no “specific facts” in the record
suggesting any likelihood that the Forest Service would have authorized even less logging activity,
or would have minimized its environmental impact further, had a comprehensive management plan
been in place. Even under the relaxed standard suggested by Defenders of Wildlife, as we see it, the
plaintiffs have failed to establish the causation and redressability elements of standing.
In the light of our conclusion that the plaintiffs lack standing, we need not address the district
court’s ruling that injunctive relief is inappropriate. The granting of the defendants’ summary
judgment motions is AFFIRMED for the reasons stated.