Nez Perce Tribe et al v. US Forest Service

Filing 58

MEMORANDUM DECISION AND ORDER denying 47 Expedited Motion for Reconsideration; denying 50 Government's Motion for Reconsideration. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjm)

UNITED STATES DISTRICT COURT
IN THE DISTRICT OF IDAHO
NEZ PERCE TRIBE and
IDAHO RIVERS UNITED
Case No. 3:13-CV-348-BLW
Plaintiffs,
v.

MEMORANDUM DECISION AND
ORDER

UNITED STATES FOREST SERVICE,
Defendant.
And
RESOURCES CONSERVATION
COMPANY INTERNATIONAL,
Defendant-Intervenor

INTRODUCTION
The Court has before it motions to reconsider filed by the Forest Service and
RCCI. The motions were briefed on an expedited schedule and are now at issue. For the
reasons explained below, the Court will deny both motions.
ANALYSIS
Many of the arguments raised by RCCI and the Forest Service were raised in prior
briefing and resolved in the Court’s prior decision, and the Court can find no reason to
reconsider those rulings. Other arguments were not directly raised, and the Court will
address those.

Memorandum Decision & Order – page 1

RCCI complains about the Court’s holding that the Forest Service’s refusal to stop
the mega-loads, communicated in a telephone conversation between Forest Service Chief
Tidwell and Tribal Chairman Whitman, constitutes final agency action reviewable under
the APA. The Court’s holding, RCCI argues, allows “[a]ny party aggrieved by an
agency[] . . . [to] obtain immediate judicial review by picking up the phone to fabricate a
final agency action – or even by sending an email, voicemail, or text message.” See
RCCI Brief (Dkt. No. 47-1) at p. 7.
The Court’s holding, however, does not apply to “any party” as argued by RCCI;
rather, it is tied to the specific facts of this case and will not release a flood of APA
litigation. As discussed in the prior decision, the Forest Service has a specific duty to the
Tribe – under NFMA and the Forest Plans – to consult with the Tribe before these megaloads proceed. An emergency arose when the Forest Service decided to allow the megaloads to proceed without consulting the Tribe and without conducting the corridor study.
Under the threat of this emergency, the Tribal Chairman telephoned the Chief of the
Forest Service to demand that the Forest Service carry out its duty. By holding that the
Forest Service Chief’s denial was final agency action, the Court is not holding that any
party can conjure up “final agency action” with a mere telephone call or text – this is a
unique case limited to its facts, as set forth above.
RCCI argues that the response of the Forest Service Chief did not constitute the
“last word” of the agency – to render it “final agency action” – because the Forest Service
was still in the process of conducting the corridor study and consulting with the Tribe.
But the Forest Service Chief’s denial did constitute the “last word” of the agency on the
Memorandum Decision & Order – page 2

crucial question of whether the agency would consult with the Tribe before the megaloads passed over Highway 12.
RCCI argues that the Court erred in relying on 36 C.F.R. § 261.50, and its
associated regulations, as authority for the Forest Service to close Highway 12 because
the regulation had not been cited in plaintiffs’ complaint or briefing and was mentioned
for the first time at oral argument. However, the Court can find no indication that
plaintiffs ambushed the Forest Service by citing to the agency’s own regulations for the
first time at oral argument. The briefing and argument were conducted on an expedited
basis, and, in any event, the Forest Service and RCCI have been given an opportunity to
respond to the issue in this motion to reconsider.
Turning to the substance of the regulations, RCCI and the Forest Service argue
that they provide no authority for closing Highway 12. The Court disagrees. Section
261.50(a) gives the Forest Service authority to “close or restrict the use of described
areas within the area over which he has jurisdiction.” The Court’s prior decision held
that the Forest Service had jurisdiction over Highway 12 between mileposts 74 and 174,
and it was that segment that the Court ordered closed.
The Forest Service points out that § 261.50(a) limits the Forest Service to those
prohibitions “authorized in this subpart or any portion thereof,” and that the only
applicable subpart allows closure of “National Forest System Roads,” a category that
does not include Highway 12. However, the Forest Service’s authority is not so limited.
Other provisions “in this subpart” include closures authorized to stop “entering or being
on lands or waters within the boundaries of a component of the National Wild and Scenic
Memorandum Decision & Order – page 3

Rivers System.” See 36 C.F.R. § 261.58(z). Another subpart gives the Forest Service
authority to close “any area” to protect (1) “special biological communities,” (2) “objects
or areas of historical . . . [or] geological . . . interest,” and (3) “the privacy of tribal
activities for traditional and cultural purposes.” See 36 C.F.R. § 261.53(b)(c) & (g).
These provisions are not limited to “National Forest System Roads.” The Court reaffirms
its earlier holding that the regulations give the Forest Service authority to close Highway
12 between mileposts 74 and 174.
The Forest Service cites Gros Ventre Tribe v. United States, 469 F.3d 801 (9th Cir.
2006) for its holding that the Government had no trust obligation “to take action beyond
complying with generally applicable statutes and regulations.” Id. at 810. That case is
inapplicable, however, because here there is a specific duty under NFMA and the Forest
Plans to consult with the Tribe, a situation that was not present in Gros Ventre Tribe.
RCCI argues that the Court’s estimate of the economic loss of $5 million was far
below the $85 million that they will actually suffer from the delay. The $5 million figure
represented the additional transportation costs RCCI stated that it would incur if the
mega-loads could not pass over Highway 12. See Hein Declaration (Dkt. No. 21-2) at
¶ 21; Hein Declaration (Dkt. No. 47-2) at ¶ 16. The $85 million figure represented the
loss of revenue to RCCI if customers terminated the contracts for delay. Id. While
RCCI will likely incur the $5 million figure to reroute the mega-loads, spending that
money may protect RCCI from paying the $85 million, a more speculative sum.
Moreover, the equities tip against RCCI here because both sums are largely the result of
the gamble RCCI took that they could proceed down Highway 12, as fully discussed in
Memorandum Decision & Order – page 4

the Court’s prior decision. RCCI counters that it took no gamble because it entered into
commitments to move the mega-loads along Highway 12 well before it knew that anyone
objected. See Hein Declaration (Dkt. No. 47-2) at ¶ 10. According to RCCI, it engaged
in its transportation analysis between August 2011 and January 2012, and concluded that
Highway 12 was feasible. Id. But the original litigation – highly publicized – was filed
in March of 2011. See IRU v Forest Service 1:11-CV-95-BLW. It was clear at that time
the route was contested. The Court therefore discounts RCCI’s allegations that it was
blindsided by the opposition.
RCCI seeks to stay the injunction pending appeal. See Reply Brief (Dkt. No. 56) at
p. 9. In order to stay an injunction, the Court must consider “(1) whether the stay
applicant has made a strong showing that he is likely to succeed on the merits; (2)
whether the applicant will be irreparably injured absent a stay; (3) whether issuance of
the stay will substantially injure the other parties interested in the proceeding; and (4)
where the public interest lies.” Lair v. Bullock, 697 F.3d 1200, 1203 (9th Cir.2012). The
party requesting the stay bears the burden to show that a stay is warranted, and the first
two factors are the most critical. Id. at 1204. The Court cannot find that RCCI has made
a strong showing that it will prevail on appeal. Moreover, any likely damages are
monetary in nature and not irreparable. Perhaps most importantly, staying the injunction
will cause the very harm plaintiffs complain about in this lawsuit, harm the Court has
found would be irreparable.
Finally, the Court finds that no injunction bond will be imposed in this case. See
Landwatch v. Connaughton, 905 F.Supp.2d 1192, 1198 (D.Or. 2012) (holding that
Memorandum Decision & Order – page 5

“[f]ederal courts have consistently waived the bond requirement in public interest
environmental litigation, or required only a nominal bond”).
ORDER
In accordance with the Memorandum Decision set forth above,
NOW THEREFORE IT IS HEREBY ORDERED, that the expedited motion for
reconsideration (docket no. 47) and the Government’s motion for reconsideration (docket
no. 50) are DENIED.

DATED: October 10, 2013

_________________________
B. Lynn Winmill
Chief Judge
United States District Court

Memorandum Decision & Order – page 6