Conservation Action v. Moore

Conservation Action v. Moore          CV-02-193-JD        12/18/02
              UNITED STATES DISTRICT COURT FOR THE
                    DISTRICT OF NEW HAMPSHIRE


Conservation Action Project and
American Lands Alliance

        v.                               Civil No. 02-193-JD
                                         Opinion No. 

Randv Moore, Regional Forester,
Eastern Region, United States
Forest Service and Terry Miller,
District Ranger, Saco Ranger District,
White Mountain National Forest,
United States Forest Service


                                  O R D E R


        Conservation Action Project and American Lands Alliance

bring suit against Randy Moore, Regional Forester for the Eastern

Region, and Terry Miller, District Ranger for the Saco Ranger

District of the White Mountain National Forest, in their official

capacities with the United States Forest Service, seeking

declaratory and injunctive relief.        The plaintiffs contend that

the defendants did not comply with environmental laws before

authorizing the "Iron Maple Timber Sale" in the White Mountain

National Forest.        The defendants move to dismiss on the grounds

that because the authorization for the "Iron Maple Timber Sale"

has been withdrawn, the plaintiffs' complaint is moot and not

ripe.        The defendants also move to dismiss on the ground that the

withdrawal of the final decision authorizing the sale eliminates

the final agency action in this case, which is an essential
predicate to the court's subject matter jurisdiction under the

Administrative Procedures Act.     The plaintiffs object.



                              Background

     The White Mountain National Forest     ("WMNF") is located in

northern New Hampshire and western Maine and comprises almost

800,000 acres of public land.     The United States Forest Service

("Forest Service") is responsible for managing public lands in

the WMNF.     In April of 1998, the Forest Service announced that it

would propose a timber sale in the WMNF.      In February of 2001,

the Forest Service issued a pre-decision environmental

assessment.    Public comment on this environmental assessment was

accepted by the Forest Service, including several comments from

the plaintiffs in this case.     On October 5, 2001, the Forest

Service issued a final environmental assessment, a "finding of no

significant impact"    ("FONSI"), and a final decision notice

approving a plan for the harvesting of timber on approximately

140 acres of the WMNF in the Saco Ranger District     ("final

decision").    This plan is known as the Iron Maple Timber Sale.

     After exhausting administrative remedies, the plaintiffs

brought this action in May of 2002, seeking judicial review of

the final decision authorizing the timber sale pursuant to the

Administrative Procedures Act    ("APA").   The plaintiffs allege

that the final decision authorizing the sale does not meet the

                                   2
requirements of the National Forest Management Act, 

 et seg. ("NFMA") and the National Environmental Policy Act,

 et seg. ("NEPA").    The plaintiffs seek a

declaration that the defendants violated NFMA and NEPA by

authorizing the timber sale, an injunction compelling the

defendants to comply with NFMA and NEPA before proceeding with

the sale, and an order compelling the defendants to withdraw the

decision approving the sale.

     In July of 2002, the defendants retracted the final decision

and FONSI authorizing the timber sale.    Explaining the

retraction, the Forest Service cited the need "to allow for

incorporation and analysis of additional available information

relative to the environmental effects of the project."     Def.'s

Attach. 1.



                             Discussion

     The defendants raise several jurisdictional issues including

mootness.    Because the issue of mootness is dispositive, it is

not necessary for the court to address the other issues.

     The defendants argue that the plaintiffs' complaint is moot

because the Forest Service has retracted the final decision and

FONSI authorizing the timber sale.    There is no dispute that,

when filed, the plaintiffs' claim was ripe for review and

properly before the court under 

.    Although an

                                  3
action may present a live controversy at the time of filing,

subsequent events may render the action moot.      See, e.g., Kremens

v. Bartley, 

 (1977).      The doctrine of mootness

precludes federal courts from determining the merits of a case

which has lost "its character as a present, live controversy of

the kind that must exist [if federal courts are] to avoid

advisory opinions on abstract propositions of law."       See Hall v.

Beals, 

 (1969)    (per curiam).   When no case or

controversy exists, a claim is moot because its resolution would

not affect the parties' "legally cognizable interest in the

outcome."     Powell v. McCormack, 

 (1969).

     The October 5, 2001 final decision, which is the subject of

this litigation, has been withdrawn.      Miller has disavowed

reliance on the decision in the formulation of future Forest

Service policy in the region:

     [The] conclusions made in the withdrawn October 5, 2001
     Decision Notice and FONSI will not, in any way,
     prejudice or guide [his] evaluation of the relevant
     information and public comments, or any decision
     arising therefrom, with respect to the vegetative
     management in the area that was addressed by the
     withdrawn Iron Maple Project Decision and FONSI.

Decl. of Terry Miller 5 6.     Based on that statement, the Forest

Service authorization of the timber sale is of no force or

effect.     Therefore, the court is "without power to grant

injunctive and declaratory relief" because the challenged actions

"no longer exist,"    (See D .H .L . Assocs., 

 (1st Cir.

                                   4
1999) unless an exception to the mootness doctrine applies.         See

New England Reg. Council of Carpenters v. Kinton, 

(1st Cir. 2002)    ("[I]t would be pointless either to enjoin the

enforcement of a regulation that is no longer in effect or to

declare its constitutional status.").

     The plaintiffs contend that their complaint satisfies an

exception to the mootness doctrine which permits courts to hear

otherwise moot cases if a defendant voluntarily ceases allegedly

illegal conduct to avoid a ruling on the merits.      See City of

Mesquite v. Aladdin's Castle, Inc., 

 (1982);

Adams et al. v. Bowater Inc., et al., 

     (1st Cir.

Dec. 17, 2002)    (pinpoint citations unavailable).   The voluntary

cessation exception to mootness "traces to the principle that a

party should not be able to evade judicial review, or to defeat a

judgment, by temporarily altering guestionable behavior."        See

Citv News & Novelty, Inc. v. Waukesha, 

, 284 n.l

(2001)    (citing Gwaltnev of Smithfield, Ltd. v. Chesapeake Bay

Found., Inc., 

 (1987)).     A defendant asserting

that its voluntary cessation of challenged conduct moots a case

bears a " 'heavy burden of persuading' the court that the

challenged conduct cannot reasonably be expected to start up

again."    See Friends of the Earth v. Laidlaw Envtl. Servs., 

 (2000)    (guoting United States v. Concentrated

Phosphate Export Ass'n, 

 (1968)).      In evaluating

                                   5
the defendants' voluntary cessation, "the court should consider

'the bona fides of the expressed intent to [discontinue], the

effectiveness of the discontinuance and, in some cases, the

character of the past' behavior."    Vagalebre, et al. v. SAU 47,

et al., Civil No. 97-135-JD, at *6 (D.N.H. Feb. 24, 1998)

(quoting United States v. W.T. Grant Co., 

(1953)).   The voluntary cessation exception "applies 'only when

there is a reasonable expectation that the challenged conduct

will be repeated following dismissal of the case.'"    Kinton, 

 (quoting D.H.L. Assocs., Inc., 

); see

also Adams, 

.

     The plaintiffs support their contention that the Forest

Service will likely reauthorize the allegedly illegal timber sale

by noting the Forest Service's use of the phrase, "for the time

being," in a public notice of the withdrawal.    The public notice

which is offered as evidence of the Forest Service's intention to

repromulgate the timber sale with the same alleged deficiencies,

however, does not provide any indication that the Forest Service

intends not to comply with NEPA and NFMA.1   Instead, the notice


     1 The excerpt offered by the plaintiffs in their opposition
motion abbreviates the public notice of Thomas G. Wagner, Forest
Supervisor.  The full context of the relevant part of the notice
provides that:

     Since coming to the White Mountain National Forest, I

                                 6
indicates the Forest Service's awareness of the points raised by

this lawsuit, its intent to comply with the requirements of NEPA,

and its intention to "implement projects that accomplish resource

objectives and meet the standards set for both public and legal

review."   Pl.'s Ex. 4.   These intentions are consistent with the

Forest Service's public statement that it withdrew the

authorization "to allow for incorporation and analysis of

additional available information relative to the environmental

effects from the project."    Def.'s Ex. 3.   The Forest Service's

actions and statements do not indicate an intention to reissue a

legally deficient decision once the threat of litigation has

passed.

     The plaintiffs also contend that the Forest Service's

failure to accept the plaintiffs' settlement proposals,

stipulating to legal obligations for future timber sales,

indicates that the alleged violations will likely recur.



     have carefully reviewed the Iron Maple sale and the
     points raised within the lawsuit.  District Ranger,
     Terry Miller and I have discussed the Iron Maple sale
     and he has decided to withdraw the sale for the time
     being while he incorporates, analyzes and documents
     additional available information relative to the
     environmental effects from the project.  This will be
     done in a timely manner consistent with the National
     Environmental Policy Act.

Pi.'s Ex. 4.

                                  7
However,    " [m]ootness turns primarily on future threats, not upon

penance."    Adams, 

.   Although the Forest Service

has made clear that it does not agree with the plaintiffs'

articulation of its legal obligations, it has represented that:

     Any future action that the Forest Service might take
     with respect to vegetative management in the area that
     was addressed by the withdrawn Iron Maple Project
     Decision Notice and FONSI will be taken in accordance
     with decision-making reguirements prescribed by Federal
     law and regulations, including, but not limited to:
     the reguirements of the National Environmental Policy
     Act; reguirements of the National Forest Management
     Act; and opportunities for pre-decisional public
     comments and post-decisional administrative appeal
     under 

.


Decl. of Terry Miller 5 4.     This statement indicates that the

Forest Service intends to comply with applicable environmental

laws in future actions.     The plaintiffs have offered no

substantial basis for the court to conclude that the Forest

Service has acted in bad faith or will reissue the timber sale

without complying with the reguirements of NEPA and NFMA.

     A conclusion that the Forest Service will repromulgate the

allegedly illegal timber sale would be "mere speculation."       See

Vagalebre, et al.. Civil No. 97-135-JD, at *8.     Absent an

"indication of contrary intent," the court should not "presume"

that the Forest Service will repromulgate the allegedly illegal

timber sale "after the conclusion of this litigation."       D.H.L.
Assocs. Inc., 

.      The court has no reasonable basis

to believe that the violations alleged in the plaintiffs'

complaint are likely to recur.     On the basis of the evidence of

record, there is only a "very low" probability that the Forest

Service will reissue a similarly deficient timber sale,

therefore, the plaintiffs' claim is moot.      See Adams, 

.   Furthermore, there is no indication that future timber

sales are likely to evade judicial scrutiny.      Should the Forest

Service reauthorize the timber sale, or promulgate a new timber

sale in violation of applicable law, the plaintiffs will have the

opportunity to pursue administrative and judicial remedies.



                            Conclusion

      For the foregoing reasons, the defendants' motion to dismiss

(document no. 8) is granted.      The clerk shall enter judgment

accordingly, and close the case.

      SO ORDERED.



                                      Joseph A. DiClerico, Jr.
                                      District Judge

December 18, 2002

cc:   Jed Z. Callen, Esguire
      Neil Levine, Esguire
      T. David Plourde, Esguire