RESTORE v. USDA CV-95-498-JD 04/11/96 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

RESTORE: The North Woods

v. Civil No. 95-498-JD

United States Department of Agriculture, et al.

O R D E R

The plaintiff, RESTORE: The North Woods ("RESTORE"), brought

this action seeking declaratory and injunctive relief following

the decision of the defendants (collectively the "Forest

Service") to perform bridge reconstruction and trail relocation

work on the Huntington River Winter Access Trail ("HRWAT").

Before the court are the defendants' motion to dismiss (document

no. 6) and motion for summary judgment (document no. 18), and the

plaintiff's motion for summary judgment (document no. 17).

Background

On May 25, 1995, the Forest Service released for public

comment a five-part plan to reconstruct the HRWAT, a 1.15-mile

trail providing winter access to Huntington Ravine. The HRWAT is

regularly used by hikers and by the Forest Service for search and

rescue operations. The reconstruction plan called for the Forest

Service to replace four bridges; relocate eighty-five feet of trail at two bridge locations; reduce the size of approximately

thirty rocks to allow safe passage by winter vehicles; stabilize

part of the trail; and eliminate 870 feet of the Huntington River

Hiking Trail by designating the parallel section of the HRWAT as

the hiking trail.

By letter to the file dated August 10, 1995, District Ranger

Kathryn Bulchis documented her decision to begin replacing three

of the four bridges and relocating eighty-five feet of trail due

to the "immediate need to provide safe access for the public and

Forest Service employees and cooperators." Bulchis stated in her

letter that given the "widespread misunderstanding" concerning

the reconstruction project, she had decided to defer the decision

on the remaining components "to allow time for additional public

outreach." Bulchis also indicated that replacement of the fourth

bridge could be deferred for a short period of time "because it

[did] not pose as immediate a safety risk," and suggested that

replacement of the fourth bridge might be contingent on

completion of the other components of the restoration project.

The Forest Service commenced work on the bridge replacement

and trail relocation project on October 3, 1995, and completed

all or substantially all of the work by October 26, 1995.

RESTORE filed a complaint on October 16, 1995, alleging that the

Forest Service's decision to move ahead with the bridge

2 replacement and trail relocation project violated the National

Environmental Policy Act ("NEPA"), the Forest Service Handbook,

and the Administrative Procedure Act. The plaintiff sought,

inter alia, a preliminary injunction prohibiting the Forest

Service "from performing any bridge relocation or new trail

construction," and a declaration that the HRWAT project had been

illegally segmented in violation of NEPA and did not fall within

a categorical exclusion under NEPA. The plaintiff has withdrawn

its reguest for a preliminary injunction.

Bulchis has attested that the Forest Service has made no

decision concerning the remainder of the reconstruction project,

including replacement of the fourth bridge. She also has stated

that the Forest Service's final decision on the matter will

depend on a variety of factors including the need for such work,

the relative priority of other projects, budgetary constraints,

and unforeseen events. Second Declaration of Kathy Bulchis at 55

2-3.

Discussion

The Forest Service argues as a threshold matter that the

plaintiff's claims are not properly before the court because they

are not justiciable. Specifically, the Service claims that the

plaintiff's reguests for relief related to the work already

3 performed is moot, and that the plaintiff's claims related to the

remaining components of the reconstruction project are not yet

ripe for judicial review. The plaintiff disputes the assertions

that its claims are moot and not yet ripe and contends that the

Forest Service's August 10, 1996, decision falls into the

"evading review but capable of repetition" exception to the

mootness doctrine.

A. Mootness

Article III of the Constitution limits the court's

jurisdiction to the resolution of actual cases or controversies.

U.S. Const, art. Ill, Sec. 2, cl. 1; Lewis v. Continental Bank

Corp.,

(1990); Oakville Dev. Corp. v. FDIC,

(1st Cir. 1993). The court lacks the authority "to

issue advisory opinions . . . [or] to decide guestions that

cannot affect the rights of litigants in the case before [it]."

North Carolina v. Rice,

(1971) (per curiam)

(citations omitted). Although an action may present a live

controversy at the time of filing, subseguent events may render

the action moot. See, e.g., Kremens v. Bartley,

(1977) (constitutional challenge to statute rendered moot by

enactment of superseding statute); Board of License Comm'rs v.

Pastore,

(1985) (per curiam) (lawsuit

4 challenging restrictions placed on business rendered moot by

closure of business). When no case or controversy exists, a

claim is moot because its resolution would not affect the

parties' legal interests. Air Line Pilots Ass'n v. UAL Corp.,

(7th Cir. 1990); see Oakville Dev. Corp.,

; New Bank of New England, N.A. v. Tritek

Communications, Inc.,

, 17 n.l (D. Mass. 1992). The

court must dismiss moot claims. Oakville Dev. Corp.,

.

An exception to the mootness doctrine attaches when the

conduct being challenged is "capable of repetition, yet evading

review." Weinstein v. Bradford,

(1975) (per

curiam). In order to invoke the exception, the plaintiff "must

show that '(1) the challenged action was in its duration too

short to be fully litigated prior to its cessation or expiration,

and (2) there was a reasonable expectation that the same

complaining party would be subjected to the same action again.'"

Boston Teachers Union, Local 66 v. Edgar,

(1st

Cir. 1986) (guoting Murphy v. Hunt,

(1982) (per

curiam)); see also Oakville Dev. Corp.,

(exception only applicable where there is a "reasonable

expectation" or "demonstrated probability" of recurrence

involving same complaining party).

5 To the extent that the plaintiff seeks relief for the

projects that already have been completed, the court finds that

the plaintiff's claim is moot. Even if the Forest Service

violated statutory or administrative requirements in deciding to

implement the bridge replacement or trail relocation projects,

the court cannot craft an injunctive or declaratory remedy that

would affect the parties' rights as they relate to these efforts.

Although the plaintiff argues that the August 10, 1995, decision

constituted an improper segmentation of the HRWAT reconstruction

plan, the only possible relevance this argument might have

relates to the Forest Service's plans for restoring the HRWAT in

the future, which the court considers infra, and not to work that

already has been completed.

The court also finds that the plaintiff's claims are not

properly considered as capable of repetition yet evading review.

The events precipitating this litigation do demonstrate the

Forest Service's belief that it can replace the fourth bridge

targeted in the HRWAT restoration plan without filing an

environmental impact statement or a decision memo. However, the

record before the court indicates that implementation of such a

project is contingent on an administrative decision that the

court is not in a position to forecast. Moreover, the record

demonstrates that the Forest Service did not begin its bridge

6 replacement and trail relocation work until nearly two months

after the decision to undertake these efforts was made. The

evidence thus belies the defendant's assertions that the decision

to replace the fourth bridge without adhering to proper

procedural reguirements is a demonstrated probability, or that

such a decision would be likely to evade judicial scrutiny.

Accordingly, the court dismisses as moot the plaintiff's claims

as they relate to the already completed work.

B. Ripeness

Just as the mootness doctrine prevents the court from

issuing a ruling that cannot affect the parties' legal interests,

the ripeness doctrine seeks to "'prevent the courts, through

avoidance of premature adjudication, from entangling themselves

in abstract disagreements.'" Ernst & Young v. Depositors

Economic Protection Corp.,

(1st Cir. 1995)

(guoting Abbott Labs, v. Gardner,

(1967)).

Inguiry into a dispute's ripeness encompasses two distinct

guestions: (1) whether the issue presented "'involves uncertain

and contingent events that may not occur as anticipated or may

not occur at all, '" id. at 536 (guoting Massachusetts Ass'n of

Afro-American Police v. Boston Police Dep't,

(1st

Cir. 1992) (per curiam)); and (2) the extent to which the

7 challenged agency action creates a direct and immediate dilemma

for the parties.

at 535 (citing W.R. Grace & Co. v. EPA,

(1st Cir. 1992)). A finding of ripeness reguires

satisfaction of both prongs of the inguiry.

at 535 & n.9.

The court need not advance beyond the first prong of this

formula. As noted supra, the remainder of the HRWAT restoration

project is contingent on a variety of factors currently under

consideration at the administrative level. It is entirely

speculative whether the Forest Service will decide to complete

the remaining components of the project and what procedures it

will follow in reaching its decision. Compare Roosevelt

Campobello Int'l Park Comm'n v. EPA,

, 10 (1st Cir.

1982) (agency action not ripe if it reguires further

administrative action).1 As such, the court finds that the

plaintiff's claims related to future implementation of the HRWAT

restoration project are not ripe for judicial review.

1The plaintiff relies on Roosevelt Campobello for the proposition that an agency action is ripe for review if it changes the status guo, and claims that "the decision to move forward with the action to reconstruct the HRWAT changed the status guo." Plaintiff's Reply Memorandum at 3. The argument fails because the agency action relevant to the court's ripeness inguiry is not the work that already has been completed, but, rather, implementation of the remainder of the project. Conclusion

The defendant's motion to dismiss (document no. 6) is

granted. The defendant's motion for summary judgment (document

no. 18) and the plaintiff's motion for summary judgment (document

no. 17) are moot. The clerk is ordered to close the case.

SO ORDERED.

Joseph A. DiClerico, Jr. Chief Judge

April 11, 1996

cc: Grant T. Kidd, Esguire T. David Plourde, Esguire