ELR Citation: ELR 20100
No(s). 92-15814 (9th Cir. Nov 2, 1993)

The court holds that the U.S. Forest Service (Service) did not violate the National Forest Management Act (NFMA) in developing a land and resource management plan for the Toiyabe National Forest in Nevada. The court first holds that an association of ranchers who have permits to use the forest for livestock grazing does not have standing to challenge the plan under the National Environmental Policy Act. The primary injury the association alleges its members suffer is economic. Although the association also alleges that its members will suffer a "lifestyle loss," it does not allege that the increased grazing levels it seeks would benefit the natural environment, and there appears to be substantial evidence to the contrary.

Turning to the association's claims under the NFMA, the court holds that the Service complied with Service regulations requiring it to consider a broad range of reasonable alternatives. The Service considered nine different alternatives and projected the grazing outputs likely to result from them. Also, evidence exists that the grazing output levels were derived by professional estimation and were not arbitrarily selected. The court next holds that the Service complied with its regulations requiring it to maintain records of the planning process, as the Service maintained handwritten worksheets reflecting the calculations made. The association's assertion that the Service was specifically required to produce the scientific data and literature it considered is not supported by it's regulations or any other authority the association cites.

Addressing the association's claim that adoption of the plan was arbitrary and capricious because there allegedly exists no rational connection between the plan's grazing standards and its statement that grazing levels would not be significantly affected, the court holds that the Service acted rationally in projecting that grazing levels would not significantly decrease. The Service based its projections on professional estimations by experienced personnel familiar with the allotments of land and the range management standards. Moreover, maintaining current grazing levels was only one of the goals of the plan, and the Service was aware that this goal would conflict with other goals of the plan.

The court holds that the Service did not violate the notice and public participation requirements of the NFMA or the Administrative Procedure Act, because the public was on notice of all details of the proposed plan, including the standards and management prescriptions that may have since resulted in decreased grazing levels. Even if these standards were inconsistent with the goal of maintaining current grazing levels, since the Service did not conceal anything from the public or guarantee that its projections would be accurate, the public was sufficiently informed to be able to participate meaningfully in the planning process. The court further holds that the plan may not be invalidated on the ground that it interferes with allegedly vested water rights held by the association's members, because the Service has the right under the NFMA to limit the use of water resources in national forests. Finally, the court dismisses the association's claim that the plan is invalid because its impairment of vested water rights constitutes a taking of property rights without just compensation in violation of the Fifth Amendment. Even if the implementation of the plan did effect a taking under the Fifth Amendment, the association's remedy would be to file a suit seeking compensation.

[Pleadings in this litigation are published at ELR PEND. LIT. 66251.]

Counsel for Plaintiff
W. Hugh O'Riordan
Davis, Wright & Tremaine
702 W. Idaho St., Ste. 700, Boise ID 83702
(208) 338-8200

John E. Marvel
285 10th St., P.O. Box 2645, Elko NV 89803
(702) 738-9881

W. Brett Hansen
380 Court St., P.O. Box 109, Elko NV 89801
(702) 738-1460

Counsel for Defendant
Robert L. Klarquist
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before Nelson and Norris, JJ.