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STEPHANIE M. PARENT -- OSB #92590
Pacific Environmental Advocacy Center
10015 S.W. Terwilliger Blvd.
Portland, OR 97219
Telephone: (503)768-6736
Facsimile: (503) 768-6642
email: parent@lclark.edu
JACK K. STERNE - Alaska State Bar #9905010
106 F Street
Anchorage, AK 99501
Telephone: (907) 276-4244
Attorneys for Plaintiffs
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
OREGON NATURAL DESERT ASSOCIATION;
IDAHO WATERSHEDS PROJECT;
CENTER FOR BIOLOGICAL DIVERSITY;
COMMITTEE FOR IDAHO'S HIGH DESERT;
FOREST GUARDIANS; HELLS CANYON
PRESERVATION COUNCIL;
OREGON NATURAL RESOURCES COUNCIL;
AMERICAN LANDS ALLIANCE,
v.
BRUCE BABBITT, Secretary of the Interior;
UNITED STATES DEPARTMENT OF THE
INTERIOR; BUREAU OF LAND
MANAGEMENT, and agency of the U.S.
Department of the Interior,
__________________________________________)
INTRODUCTION
1. This is an action for declaratory judgment and injunctive relief under the Administrative Procedure Act (APA), 5 U.S.C. §§ 551 et seq.. The Plaintiffs, Oregon Natural Desert Association, Idaho Watersheds Project, Center for Biological Diversity, Committee for Idaho's High Desert, Forest Guardians, Hells Canyon Preservation Council, Oregon Natural Resrouces Council, and American Lands Alliance, challenge the inaction of the Defendants, Bruce Babbitt, Secretary of the Interior, the Department of the Interior, and the Bureau of Land Management ("BLM") (collectively "the Secretary") in failing to respond timely to their petition for rulemaking, pursuant to the APA, 5 U.S.C. § 553(e), to establish procedures which enable the Secretary to determine the specific parcels of land within grazing districts that are "chiefly valuable for grazing and raising forage crops" as required by the Taylor Grazing Act ("TGA"), 43 U.S.C. §§ 315-316o-2 and the Federal Land Policy and Management Act ("FLPMA"), 43 U.S.C. §§ 1701 et seq..
2. This action arises under and alleges violations of the Administrative Procedure Act ("APA"), 5 U.S.C. 551 et seq. color="#000000" face="Times New Roman" size="+2">
3. Plaintiffs seek a declaration that the Secretary's failure to respond timely to Plaintiffs' petition violates the APA, 5 U.S.C. §§ 553(e), 555(b),(e), and constitutes agency action unlawfully withheld and unreasonably delayed pursuant to the APA, 5 U.S.C. § 706(1).
4. Also, in accordance with the APA, 5 U.S.C. § 706(1), Plaintiffs seek injunctive relief compelling the Secretary to respond to Plaintiffs' petition for rulemaking because such agency action has been unlawfully withheld and unreasonably delayed.
JURISDICTION AND VENUE
6. Jurisdiction over this action is conferred by 28 U.S.C. § 1331 (federal question); 28 U.S.C. § 1346 (United States as a Defendant); 28 U.S.C. § 2201 (declaratory relief); 28 U.S.C. § 2202 (injunctive relief); and 5 U.S.C. §§ 702 et seq. (APA). There is a present and actual controversy between the parties. Plaintiffs have challenged a final agency action as defined by the Administrative Procedure Act, 5 U.S.C. § 551(13).
7. Venue is properly vested in this Court pursuant to 28 U.S.C. 1391(e) because the Defendants maintain offices in Portland, Oregon.
PARTIES
8. Plaintiff OREGON NATURAL DESERT ASSOCIATION ("ONDA") is a non-profit conservation organization of approximately 1,500 members, headquartered in Bend, Oregon established to protect, defend and restore forever, the health of Oregon's native deserts. ONDA actively participates in Department of the Interior proceedings and decisions concerning the management of public lands in eastern Oregon pursuant to the TGA and FLPMA. ONDA brings this action on its own behalf and on behalf of its members, many of whom regularly enjoy and will continue to enjoy rangelands for educational, recreational, and scientific activities, including hiking, camping, and observing wildlife. The interests of ONDA and its members have been harmed by The Secretary's failure to respond to the APA petition requesting determinations that BLM livestock districts are "chiefly valuable for livestock grazing" as required by the Taylor Grazing Act.
9. Plaintiff IDAHO WATERSHEDS PROJECT ("IWP) is an Idaho non-profit membership (incorporated) organization dedicated to protecting, conserving and restoring public lands and natural resources on Idaho watersheds in 6 states. IWP has over 1100 members, most of whom live in the State of Idaho. IWP, as an organization and on behalf of its members, is concerned with and active in seeking to protect and improve the riparian areas, water quality, fisheries, wildlife, and other natural resources and ecological values of Idaho's watersheds. IWP and its members have actively participated in agency proceedings concerning management of all BLM managed public lands on Idaho watersheds. IWP has legal status with the BLM as an "interested public" on grazing allotments on more than 18,000,000 acres of BLM administered public lands in 5 states. The members of Idaho Watersheds Project use these public lands to hunt, hike, fish, bike, boat, photograph, enjoy wildlife viewing and for spiritual and contemplative reasons. The failure of the federal management agencies to conserve and recover these lands and to protect them for the posterity of all Americans through rulemaking is of great concern to IWP's members.
10. Plaintiff CENTER FOR BIOLOGICAL DIVERSITY (Center), formerly the Southwest Center for Biological Diversity, is a non-profit environmental advocacy organization based in Tucson, Arizona. The Center works to protect endangered species, wildlife and wildlands in western North America and the Pacific. The Center has 5,000 members and offices in Silver City, New Mexico, Phoenix and Tucson, Arizona and San Diego and Berkeley, California. The Center works extensively on public lands issues throughout the west and is particularly concerned with the impacts to wildlife and wildlands from public lands grazing activities. Many of the species we advocate for are negatively impacted by livestock grazing on public lands. The Center brings this action on its own behalf and on behalf of its members, many of whom regularly enjoy and will continue to enjoy rangelands for educational, recreational, and scientific activities, including hiking, camping, and observing wildlife. The interests of the Center and its members have been harmed by The Secretary's failure to respond to the APA petition requesting determinations that BLM livestock districts are "chiefly valuable for livestock grazing" as required by the Taylor Grazing Act.
11. Plaintiff COMMITTEE FOR IDAHO'S HIGH DESERT (CIHD) is a science-based non-profit grassroots group that has been an effective and strong advocate for Idaho wildlands for 20 years. CIHD has approximately 200 members. CIHD is dedicated to the conservation and sustainable management of our treasured, fragile high desert ecosystem and the conservation of biodiversity on arid Western lands. CIHD brings this action on its own behalf and on behalf of its members, many of whom regularly enjoy and will continue to enjoy rangelands for educational, recreational, and scientific activities. The interests of CIHD and its members have been harmed by The Secretary's failure to respond to the APA petition requesting determinations that BLM livestock districts are "chiefly valuable for livestock grazing" as required by the Taylor Grazing Act.
12. Plaintiff FOREST GUARDIANS is a conservation organization dedicated to the preservation of biodiversity and natural systems on public and private land in the Southwest. Forest Guardians has approximately 2,500 members, the majority of whom reside in New Mexico and Arizona. Members of Forest Guardians frequently use and enjoy the public lands of the southwestern United States for recreational, aethetic, and scientific activities. In pursuit of these activities, Forest Guardians members regularly observe and enjoy wildlife, including wildlife which is dependent on habitat on public lands. As noted above, Forest Guardians and its members are committed to the enhancement and restoration of habitat on public lands throughout the Southwest. Towards this end, Forest Guardians works through administrative appeals, litigation, the petition at issue and otherwise to assure that all federal agencies fully comply with the provisions of all pertinent federal environmental law. Forest Guardians brings this action on its own behalf and on behalf of its members, many of whom regularly enjoy and will continue to enjoy rangelands for educational, recreational, and scientific activities, including hiking, camping, and observing wildlife. The interests of Forest Guardians and its members have been harmed by The Secretary's failure to respond to the APA petition requesting determinations that BLM livestock districts are "chiefly valuable for livestock grazing" as required by the Taylor Grazing Act.
13. Plaintiff OREGON NATURAL RESOURCES COUNCIL ("ONRC"), is headquartered in Portland, Oregon, is a non-profit corporation with approximately 4,000 members. ONRC's goals are: (1) to defending and conserving Oregon's wildlands, wildlife, and waters, including the state's remaining old-growth forest, roadless areas, rangelands, and (2) protecting and restoring fully-functioning ecosystems with a full complement of native species. ONRC brings this action on its own behalf and on behalf of its members, many of whom regularly enjoy and will continue to enjoy rangelands for educational, recreational, and scientific activities, including hiking, camping, and observing wildlife. The interests of ONRC and its members have been harmed by The Secretary's failure to respond to the APA petition requesting determinations that BLM livestock districts are "chiefly valuable for livestock grazing" as required by the Taylor Grazing Act.
14. Plaintiff AMERICAN LANDS ALLIANCE is a national grassroots conservation organization that works with individuals and local groups to protect wildlands and wildlife throughout the country. American Lands is a leader in forest, grasslands and desert issues; prescribed fire and invasive species research; international environmental politics; natural resource economics; and endangered species protection. American Lands is headquartered in Washington, D.C., and Portland, Oregon.
15. Each of the named Plaintiffs is a petitioner that petitioned for rulemaking, pursuant to the APA, 5 U.S.C. § 553(e), to establish procedures which would enable the Secretary to determine the specific parcels of land within grazing districts that are "chiefly valuable for grazing and raising forage crops" as required by the TGA and FLPMA, to which the Secretary has not responded.
16. The Plaintiffs and their members regularly use and enjoy for recreational, scientific, aesthetic and spiritual purposes public lands managed by the Bureau of Land Management ("BLM"), an agency of the Department of the Interior. Plaintiffs and their members regularly derive or would derive, recreational, scientific, aesthetic and spiritual benefits from the public lands affected through plant and wildlife observation, study, and photography, and spiritual renewal, but for the failure of the Secretary to promulgate rulemaking to address whether these lands are chiefly valuable for grazing and raising forage crops, as required by the TGA and FLPMA. The past, present, and future enjoyment of these benefits by Plaintiffs and their members has been, is being, and will continue to be irreparably harmed by the The Secretary's disregard of its statutory duties, as described below.
17. In particular, Plaintiffs are harmed by the failure to respond to their petition because the failure to promulgate rulemaking to make a bona fide determination of whether the lands within grazing districts are "chiefly valuable" for grazing is contributing to the degradation of the public lands, including but not limited to severe degradation of the region's native plant species as a result of livestock introducing invasive weed species.
18. Plaintiffs are concerned that the above-described recreational, scientific, aesthetic and spiritual interests of Plaintiffs and their respective members have been, are being, and, unless the relief requested is granted, will continue to be adversely affected and irreparably injured by the failure of the Defendant to comply with the Administrative Procedure Act. Plaintiffs have no adequate remedy at law.
19. Defendant BRUCE BABBITT is sued in his official capacity as the United States Secretary of the Interior ("Secretary"). Mr. Babbitt, in his official capacity, is vested with the ultimate responsibility to manage the public lands pursuant to the TGA and FLPMA, and he has the obligation to respond to a petition for rulemaking within a reasonable time, pursuant to the APA.
20. Defendant, UNITED STATES DEPARTMENT OF THE INTERIOR ("Department"), a federal agency, has the responsibility to manage the public lands pursuant to the TGA and FLPMA. As a federal agency, it has the obligation to respond to a petition for rulemaking within a reasonable time, pursuant to the APA.
21. Defendant, BUREAU OF LAND MANAGEMENT ("BLM"), a federal agency within the Department, has the responsibility to manage the public lands pursuant to the TGA and FLPMA. As a federal agency, it has the obligation to respond to a petition for rulemaking within a reasonable time, pursuant to the APA.
FACTUAL BACKGROUND
22. On October 7, 1998, on behalf of ONDA and all petitioners, Attorney Jack K. Sterne filed a petition for rulemaking to establish procedural and substantive standards to govern the Secretary's determination of those areas that are "chiefly valuable for grazing and raising forage crops" in accordance with section 315 of the TGA, 43 U.S.C. 315 et seq.
23. On December 7, 1998, the BLM responded to Mr. Sterne acknowledging receipt of the petition and stating it could not "promise [ONDA] an exact date for making a determination on the merits of [its] petition."
24. As of the filing of this Complaint on May 22, 2000, the Secretary has not responded substantively to Plaintiffs petition for rulemaking, a delay of more than one and a half years.
CLAIM FOR RELIEF - APA
25. The above paragraphs are incorporated here by reference.
26. The APA requires that "[e]ach agency shall give an interested person the right to petition for the issuance, amendment, or repeal of a rule." 5 U.S.C. § 553(e).
27. The APA further requires that "within a reasonable time, each agency shall proceed to conclude a matter presented to it." 5 U.S.C. § 555(b).
28. When an agency denies a petition for rulemaking, the APA directs the agency to give "prompt notice" accompanied by "a brief statement of the grounds for the denial." 5 U.S.C. § 555(e).
29. Based on the above facts and legal obligations, the Secretary has violated the APA, 5 U.S.C. §§ 553(e), 555(b), (e), by failing to respond timely to Plaintiffs' petition for rulemaking, which constitutes agency action unlawfully withheld and unreasonably delayed pursuant to the APA, 5 U.S.C. § 706(1).
REQUEST FOR RELIEF
For these reasons, Plaintiffs respectfully request that this Court enter judgment providing the following relief:
a) Declare that the Secretary's failure to respond timely to Plaintiffs' petition violates the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 553(e), 555(b),(e), and constitutes agency action unlawfully withheld and unreasonably delayed pursuant to the APA, 5 U.S.C. § 706(1); and
b) Order injunctive relief compelling the Secretary to respond to Plaintiffs' petition for rulemaking within 60 days of the date of this Court's order, in accordance with the APA, 5 U.S.C. § 706(1); and
c) Award Plaintiffs their reasonable costs, expenses, and disbursements, including attorney's fees, under the Equal Access to Justice Act, 28 U.S.C. § 2412; and
d) Provide Plaintiffs such other relief as the Court deems just, proper, and equitable.
DATED this _____ day of May, 2000.
