Summary of a Recent
Judicial Development in
Environmental Law

Non-final Agency Actions Are Not Subject to Judicial Review
under the Administrative Procedure Act

Eric H. Foy
National AgLaw Center Research Associate

Summary of Decision

In Sierra Forest Legacy v. U.S. Forest Service, 598 F. Supp. 2d 1058 (N.D. Cal. 2009), the United States District Court for the Northern District of California granted the defendants' motion to dismiss for lack of subject matter jurisdiction. The plaintiffs brought action against the U.S. Forest Service (USFS), the U.S. Fish and Wildlife Service (FWS) and National Marine Fisheries Service (NMFS) for allegedly violating National Environmental Policy Act (NEPA), the Administrative Procedure Act (APA), and the Endangered Species Act (ESA) in amending the land and resource management plan for the Sierra Nevada National Forest. The plaintiffs sought declaratory and injunctive relief. The court held that the plaintiffs lacked standing to bring suit and that the defendants' actions did not constitute final agency actions.

Background

The forests in the Sierra Nevada mountain range are managed by the USFS pursuant to the National Forest Management Act (NFMA), 16 U.S.C. § 1601. Id. at 1062. The USFS adopted management plans for each of the forests and also tracked the population of species "whose population fluctuations [were] believed to be indicators of the effects of various forest management activities," known as Management Indicator Species (MIS). Id. In December 2007, the USFS amended the MIS list for the Sierra Nevada National Forest, reducing the number of species from sixty to thirteen and allowing the USFS to move forward with certain projects with less monitoring. Id. Before adopting the amendment, the USFS prepared an Environmental Impact Statement (EIS) and a Biological Assessment regarding the effects of the amendment on ESA listed species. Id. The assessment stated that "the MIS Amendment would have 'no effect' on threatened or endangered species, or on the critical habitat of such species." Id. The NFFS and the FWS concurred with the USFS on the effects of the amendment; therefore, the USFS "implemented the MIS Amendment without engaging in formal consultation" with the NFMA or the FWS. Id. at 1063. Thereafter, the plaintiffs filed suit "alleging violations of the ESA, NEPA, and the APA." Id.

Arguments

The plaintiffs argued that the defendants had "failed to comply with the consultation requirements of the ESA because they did not base their concurrences on the best scientific and commercial data available." Id. at 1065 (citing 16 U.S.C. § 1536(a)(2)). They also argued that the agency actions were sufficiently final. Id. at 1064.

The defendants argued the court lacked of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1) because the plaintiffs did not have standing and the agency actions at issue were not final. Id. at 1064 (citing 5 U.S.C. § 704).

Analysis and Holdings

Before a federal agency takes any "'major Federal action[ ] significantly affecting the quality of the human environment," it must first prepare an EIS. Id. at 1063 (citing , 42 U.S.C. § 4332(2)(C)). When an agency is unclear whether an EIS is necessary, it may prepare an Environmental Assessment (EA) to aid in the inquiry. Id. (citing 40 C.F.R. § 1501.4(a), § 1508.9). In addition to complying with the NEPA requirements, an agency also must comply with ESA requirements. Id. The ESA requires an agency to "determine whether its proposed action jeopardizes or affects any endangered or threatened species, or adversely affects the critical habitats of such species." Id. at 1063. The determination may involve consulting with the Secretary of Commerce or the Secretary of Interior. Id. (citing 16 U.S.C. § 1536(a)(2)-(4); 50 C.F.R. § 402.14). Either Secretary may require the agency to prepare a Biological Assessment describing threatened or endangered species that "may be present at the site of the proposed action," and the agency action's possible effects on them. Id. at 1063-64.

In the instant case, the plaintiffs argued that the defendants "failed to comply with ESA's consultation requirements because they did not base their concurrences on the best scientific and commercial data available." Id. at 1065 (citing 16 U.S.C. § 1536(a)(2)). However, the court explained that "it need not reach the validity of the concurrences . . . because [p]laintiffs have failed to establish that the concurrences were required." Id. Since the USFS "never initiated formal consultation, there was no requirement imposed on [the defendants], including the use of the best scientific and commercial data, and therefore no procedural violation." Id. Furthermore, the court stated, "The Forest Service's initial determination that the MIS Amendment would have no effect on listed species [was] dispositive with respect to the ESA." Id.

The defendants argued that their concurrences were not final agency actions because they did not determine rights or obligations or create legal consequences. Id. at 1067. The plaintiffs argued that the defendants' concurrences had "legal consequences because they 'alter[ed] the legal regime to which the action agency [was] subject,' . . . and because they [could] provide evidentiary support for the [USFS's] defense of its own 'no effect' determination in this lawsuit." Id. The court was not persuaded by either of the plaintiffs' arguments. Id. Ultimately, the court concluded that the defendants' concurrences in the USFS's "no effect" determination "were not final agency actions and [were] therefore not subject to judicial review under the APA." Id. at 1069.

The case was decided on February 19, 2009.