Murphy v. United States Forest Service, et al.

Filing 55

ORDER signed by Judge Garland E. Burrell, Jr. on 3/30/2015 DENYING 38 Motion to Dismiss. (Zignago, K.)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DENNIS D. MURPHY, PH.D,

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Plaintiff,

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No. 2:13-cv-02315-GEB-AC

v.
UNITED STATES FOREST SERVICE;
THOMAS TIDWELL, in his
official capacity as Chief of
the United States Forest
Service; and NANCY J. GIBSON,
in her official capacity as
Forest Supervisor of the
United States Forest Service,

ORDER DENYING DEFENDANTS’
DISMISSAL MOTION

Defendants.

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Defendants United States Forest Service; Tom Tidwell,

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who is sued in his official capacity as Chief of the Forest

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Service; and Nancy Gibson, who is sued in her official capacity

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as Forest Supervisor (collectively, “the Forest Service”) move

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for dismissal with prejudice of the four remaining claims in

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Plaintiff‟s Second Amended Complaint (“SAC”), under Federal Rule

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of Civil Procedure (“Rule”) 12(b)(6).1 Plaintiff alleges in the

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SAC that the Forest Service‟s Upper Echo Lakes Hazardous Fuels

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Reduction

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National

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Service

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[P]roject by failing to comment during the public comment period

Project

(the

“Project”)

Environmental

Protection

argues:

“Plaintiff

waived

violates
Act
any

provisions

(“NEPA”).
legal

The

challenge

of

the

Forest
to

the

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Plaintiff previously dismissed three claims that were alleged under the
federal Endangered Species Act. (Stipulation of Dismissal 2:4-7, ECF No. 37.)

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[and failing] to exhaust available administrative remedies by not

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appealing

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U.S.C. § 6912(e), [and] 36 C.F.R. part 215. . . .” (Defs.‟ Not.

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Mot.

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contending:

the

challenged

1:22-26,

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ECF

No.

[Project]

38.)

decision

Plaintiff

as

required

opposes

the

by

7

motion,

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[T]he
Forest
Service‟s
attempt
to
characterize an ad hoc appeals process as a
prerequisite
for
seeking
judicial
review . . . fails as a matter of law because
the agency failed to follow rulemaking
procedures when adopting the process. Thus,
the [administrative] appeal process cannot
provide the basis for depriving [Plaintiff]
of the opportunity to seek judicial review.

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(Pl.‟s Opp‟n to Defs.‟ Mot. to Dismiss (“Opp‟n”) 2:9-14, ECF No.

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39.)

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I.

INFORMATION CONSIDERED IN DECIDING THE DISMISSAL MOTION

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The Forest Service cites in its dismissal motion its

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November 15, 2012 Decision Memo, in which it decided to implement

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the Project (“Decision Memo”). (See Defs.‟ Mem. P.&A. in Supp.

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Mot. to Dismiss (“Mot.”) 2:13-28, 5:9-11, ECF No. 38-1.)

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In ruling on a [Rule] 12(b)(6) motion, a
court may generally consider only allegations
contained in the pleadings, exhibits attached
to the complaint, and materials properly
subject to judicial notice. However, . . . a
court
may
[also]
consider
a
writing
referenced in a complaint but not explicitly
incorporated therein if the complaint relies
on the document and its authenticity is
unquestioned.

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Swartz

v.

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curiam).

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of [a] of public record.” U.S. v. 14.02 Acres of Land More or

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Less

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(internal citations omitted). Such matters “may be consider[ed]

in

KPMG

LLP,

476

F.3d

756,

763

(9th

Cir.

2007)

(per

In addition, “a district court may take judicial notice

Fresno

County,

547

F.3d

2

943,

955

(9th

Cir.

2008)

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without

2

judgment.” Id.

converting

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The

SAC

a

Rule

12

expressly

motion

into

references

one

the

for

Forest

summary

Service‟s

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Decision Memo, and “[its] authenticity . . . is not in dispute.

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Therefore, [the Decision Memo may be] properly considered [in

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deciding] the 12(b)(6) motion[].” Swartz, 476 F.3d at 763.

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Plaintiff requests that judicial notice be taken of the

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Forest

Service‟s

March

9

Letter”). (Pl.‟s Req. Judicial Notice ¶¶ 7, 10, ECF No. 40, Ex.

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7, 40-7.) Plaintiff argues the Guidance Letter does not indicate

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that

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prerequisite

13

decisions

to

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“Judicial

notice

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administrative bodies.” United States v. 14.02 Acres, 547 F.3d

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943, 955 (9th Cir. 2008) (internal quotation marks and citation

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omitted). Therefore, Plaintiff‟s request is granted. Plaintiff

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also requests judicial notice be taken of other documents but has

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not shown that decision is required on those documents.

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II.

administrative

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The

for

remedies

seeking

invoke
is

29,

2012

Guidance

have

judicial

to

Letter

be

review

(“Guidance

exhausted
of

Forest

categorical

exclusions.”

(Opp‟n

appropriate

for

and

following

records

“as

a

Service
14:2-3.)

reports

of

BACKGROUND

allegations

in

Plaintiff‟s

SAC

and

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information in the Decision Memo and Guidance Letter concern the

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motion.

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“Beginning in January 2011, the Forest Service listed

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the [Project] on its website.” (SAC ¶ 27.) “[O]n July 15, 2011,

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the Forest Service circulated a scoping letter and [P]roject area

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map describing the [P]roject as a fuel reduction treatment on up

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to 100 acres to include cutting and burning trees and brush.”
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(Id.) The “scoping letter and [P]roject area map were mailed to

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14 agencies, individuals and organizations [that same day and

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sought] public comment[].” (Decision Memo 7.)

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news release about the project was posted on the [Lake Tahoe

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Basin Management Unit (“LTBMU”) of the Forest Service‟s] website

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and was sent out to local media on July 15, 2011.” (Id.)

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“In addition, a

“On November 15, 2012, the Forest Service issued the

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[D]ecision

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implement

[M]emo
the

.

.

.

[Project].”

indicat[ing]
(SAC

¶

its

29.)

determination

The

Decision

to
Memo

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“concluded that the [P]roject is categorically excluded from the

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need

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[Environmental

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Actions that have been categorically excluded are defined as an

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“„action[] which do[es] not individually or cumulatively have a

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significant effect on the human environment,‟ and „for which,

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therefore, neither an [EA] nor an [EIS] is required.” Alcoa, Inc.

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v. Bonneville Power Admin., 698 F.3d 774, 795 (9th Cir. 2012)

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(citations

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administrative

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“[o]nly those who provided comments during [the] comment period

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are

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including attachments, must be filed within 45 days from the

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publication date of th[e] notice in the Tahoe Daily Tribune, the

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newspaper of record.” (Decision Memo 9-10.)

to

prepare

Impact

[Environmental
Statement

omitted).

eligible

25

an

remedies

to

appeal

Assessment

(“EIS”)

under

The

Decision
challenging

the

NEPA].”

Memo

for

the

decision[,]”

(“EA”)

(Id.)

described
Project,

and

any

or

the

stating:

“[a]ppeals,

Plaintiff alleges in his SAC that the Forest Service

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violated

the

NEPA

27

requirements;

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invoking a categorical exclusion; (3) failing to re-visit its

(2)

by

(1)

failing

failing
to

comply

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to

comply
with

with

scoping

requirements

for

1

decision to invoke a categorical exclusion for the Project after

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it was made aware of new information concerning the Sierra Nevada

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yellow legged frog (“SNYLF”); and (4) failing to re-visit its

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decision to invoke a categorical exclusion for the Project after

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the Project was implemented contrary to the description in the

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Forest Service‟s Decision Memo. (SAC ¶¶ 64-96.)

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III. DISCUSSION
A. Whether

the

Forest

Service

has

Shown

that

Plaintiff

Required Under 7 U.S.C. § 6912(e) to Exhaust the Project’s
Available Administrative Remedies.
The

Forest

Service

contends

that

Plaintiff‟s

should be dismissed with prejudice, arguing:

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[Plaintiff] waived any legal challenge [to
the Project] by failing to [timely] comment
[within the comment period].

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. . . .

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[Further,] all of Plaintiff‟s claims are
barred
because
he
failed
to
exhaust
administrative
remedies
as
required
by
statute.
In
adopting
7
U.S.C.
§
6912(e), . . .
Congress
has
made
it
especially clear that no person may sue the
Forest Service unless he first exhausts the
appeal process: “Notwithstanding any other
provision of law, a person shall exhaust all
administrative appeal procedures established
by the Secretary or required by law before
the person may bring an action in a court of
competent jurisdiction . . . .” 7 U.S.C. §
6912(e). . . .

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was

. . . .
Regulations governing Forest Service
programs in 2012 and 2013 provided the
“administrative exhaustion appeal procedures”
contemplated by 7 U.S.C. § 6912(e). See 36
C.F.R. Part 215, Notice, Comment, and Appeal
Procedures
for
National
Forest
System
Projects and Activities. . . . And, as
explained in the Decision Memo and the
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claims

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newspaper publication announcing it, the
procedures set forth in 36 C.F.R. § 215
applied to this proceeding. It is thus clear
that
there
were
“administrative
appeal
procedures”
available
for
the
decision
challenged here. Because Plaintiff failed to
exhaust
the
available
administrative
remedies, his claims are barred by 7 U.S.C. §
6912(e),
and
must
be
dismissed
with
prejudice.
(Mot. 1:19-20, 3:22-5:13 (citations omitted).)
Plaintiff counters, inter alia,
Although the Forest Service claims that
the regulations previously codified at 36
C.F.R. Part 215 provided the administrative
exhaustion appeal procedures applicable to
the Project, in truth, those regulations
never included procedures for commenting on
or appealing a decision by the Forest Service
to invoke a categorical exclusion. Indeed,
the
regulations
explicitly
excepted
categorical exclusion decisions from the
comment and appeals process. 36 C.F.R. §§
215.4(a), 215.12(f). . . .
In
addition,
to
the
extent
the
regulations
included
procedures
for
commenting and pursuing an appeal, they only
included procedures for doing so where an
environmental assessment or environmental
impact
statement
was
prepared.
.
.
.
Therefore, [the Forest Service‟s] claim that
“the procedures set forth in 36 C.F.R. § 215
applied to this proceeding” cannot be squared
with the regulations.
The regulations were enjoined, in part,
in March 2012 [in Sequoia Forestkeeper v.
Tidwell, 847 F. Supp. 2d 1244, 1246 (E.D.
Cal. 2012)], which held that the Forest
Service
could
not
exclude
categorical
exclusions from notice, comment, and appeal
procedures. Whereas the Court enjoined 36
C.F.R. §§ 215.4(a) and 215.12(f), it did not
affirmatively establish notice, comment, and
appeal procedures for categorical exclusions
analogous to those set out in Part 215 for
environmental assessments and environmental
impact
statements.
Nor
did
the
Court
authorize
the
Forest
Service
to
adopt
mandatory appeal procedures without complying
with
the
requisite
notice
and
comment
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procedures mandated by
Procedure Act [(“APA”)].

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the

Administrative

(Opp‟n 12:19-24-13:23 (citations omitted).)

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Sequoia Forestkeeper enjoined the Forest Service from

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implementing 36 C.F.R. §§ 215.4(a) and 215.12(f), the regulations

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that

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projects categorically excluded from preparing an EA or EIS. In

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response

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Guidance Letter, in which it states: “effective March 19, 2012,

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all units shall refrain from applying the[ enjoined] exemptions,”

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and

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administrative

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decisions as provided for in the District Court‟s [injunction

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issued in Sequoia Forestkeeper].” (Guidance Letter 1) (emphasis

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in original). Plaintiff argues:

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exempted

“the

to

from

this

Forest

the

notice,

injunction,

Service

appeal

comment,

the

will

Forest

offer

opportunities

for

and

appeal

Service

notice,

process

issued

comment

categorically

the

and

excluded

[T]he contents of the [Guidance Letter] were
not
subject
to
the
[APA‟s]
rulemaking
requirements. 5 U.S.C. § 553 (requiring,
among other things, publication in the
Federal Register of the rule as adopted). The
[APA] “was adopted to provide, inter alia,
that
administrative
policies
affecting
individual
rights
and
obligations
be
promulgated
pursuant
to
certain
stated
procedures so as to avoid the inherently
arbitrary nature of unpublished ad hoc
determinations.” Morton v. Ruiz, 415 U.S.
199, 232 (1974). To the extent the Forest
Service argues that the ad hoc determination
of the Chief set out in internal agency
guidance is binding on an entire class of
people, including [Plaintiff], it is contrary
to the [APA] and longstanding precedent.
(Opp‟n 14:8-18 (citation omitted).)
The Forest Service replies, “[c]ontrary to Plaintiff‟s
claim, the administrative appeal procedures in place at the time

28
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1

of

2

appeal

3

excluded from an environmental impact statement.” (Defs.‟ Reply

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(“Reply”) 5:2-4, ECF No. 41.) The Forest Service argues:

the

decision
of

5

decision

here

that

allowed

the

for

[P]roject

and
was

required

an

categorically

The availability of an administrative appeal
was made plain in the [Decision Memo], in the
legal notice published in the newspaper, and
in
a
memorandum
announcing
that
all
categorical exclusion decisions would be
subject to the appeal process. Plaintiff
seeks to avoid this conclusion by focusing
only on the regulations themselves, which did
not
originally
provide
for
appeal
of
categorical
exclusion
decisions.
But
§
6912(e) is not so limited. It requires
exhaustion of “all administrative appeal
procedures.” . . . Because Plaintiff failed
to
exhaust
“all
administrative
appeal
procedures,” 7 U.S.C. § 6912(e), he may not
maintain this suit.

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the

challenged

(Id. at 5:4-19.)

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7

U.S.C.

§

law,

part:

a

shall

exhaust all administrative appeal procedures established by the

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Secretary or required by law before the person may bring an

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action in a court of competent jurisdiction . . . .” (emphasis

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added). The Forest Service has not shown that the administrative

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remedies

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“administrative appeal procedures established by the Secretary or

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required by law.” 7 U.S.C. § 6912(e). Therefore, this portion of

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the Forest Service‟s motion is denied.

Plaintiff

of

pertinent

17

asserts

provision

in

“Notwithstanding

25

other

prescribes,

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it

any

6912(e)

failed

to

person

exhaust

were

B. Whether the Forest Service has Shown that Plaintiff’s Claim

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Alleging

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Environmental Analysis Should be Dismissed.

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The

the

Forest

Project

Service

Cannot

seeks
8

Proceed

dismissal

Without

of

Further

Plaintiff‟s

1

claim, in which he alleges the Forest Service violated the NEPA

2

by failing to re-visit its decision to invoke the categorical

3

exclusion

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concerning the SNYLF. The Forest Service argues, notwithstanding

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decision on its administrative exhaustion argument, this claim

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should be dismissed since “further environmental [analysis] is

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only required if there are significant environmental impacts not

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previously evaluated or considered[,]” and possible impacts to

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the [SNYLF] were already considered and found to be non-existent

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or insignificant as part of the original decision.” (Reply 8:4-5,

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9:1-2 (internal quotation marks and citations omitted).)

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for

the

Plaintiff

Project

after

contends

it

“[the

learned

Forest

new

information

Service]

improperly

13

demand[s] that the Court dismiss [this claim] on the basis of a

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series of factual arguments that are not ripe for resolution at

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the pleading stage.” (Pl.‟s Supp. Br. 4:12-13, ECF No. 45.)

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The Forest Service‟s dismissal argument is based upon

17

evidence that has not been shown appropriate to consider when

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deciding a 12(b)(6) dismissal motion. See Swartz, 476 F.3d at 763

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(stating “[i]n ruling on a [Rule] 12(b)(6) motion, a court may

20

generally consider only allegations contained in the pleadings,

21

exhibits

22

subject to judicial notice.”). Therefore, this portion of the

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motion is denied.

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attached

to

the

complaint,

and

materials

properly

C. Whether the Forest Service has Shown that Plaintiff’s Claim

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Challenging Project Implementation Should be Dismissed.

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The

Forest

Service

seeks

dismissal

of

Plaintiff‟s

27

claim, in which he alleges the Forest Service violated the NEPA

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by

implementing

the

Project

in
9

a

manner

contrary

to

its

1

description

in

2

“[e]ven

the

3

avoided[,]”:

4

if

the

Decision

[Project‟s]

Memo.

The

exhaustion

Forest

Service

requirements

argues,

c[an]

be

8

[T]he [P]roject[‟s] implementation . . . is
not even subject to challenge under the
Administrative Procedure Act (“APA”). The APA
only permits challenges to “agency action.”
. . . Because the placement of a particular
slash pile or the cutting of a particular
tree is not “agency action” within the
meaning of the APA, [Plaintiff‟s fourth claim
should be dismissed].

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(Reply 7:9-14, 7:25-26) (citations omitted).) Plaintiff contends:

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7

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“Courts

11

continuing

12

major

13

indicates that such action may significantly affect the quality

14

of the human environment.” (Pl.‟s Supp. Br. 2:18-22.)

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have

consistently

duty

[f]ederal

to

held

undertake

action

that

federal

environmental

remains

to

occur

agencies

review
and

new

so

have
long

a
as

information

The Forest Service has not shown that this claim should
be dismissed. Therefore, this portion of the motion is denied.

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For the stated reasons, the Forest Service‟s dismissal

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motion is denied.

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Dated:

March 30, 2015

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