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Griffin v. Yuetter

filed: September 11, 1991.

MONTAGUE GRIFFIN, PLAINTIFF-APPELLANT,
v.
CLAYTON YUETTER, SECRETARY OF THE U.S. DEPARTMENT OF AGRICULTURE, ET AL., DEFENDANTS-APPELLEES



Appeal from the United States District Court for the Southern District of California; D.C. No. CV-88-1415-G(CM); Earl B. Gilliam, District Judge, Presiding.

Norris, Hall, and Trott, Circuit Judges.

MEMORANDUM

Montague D. Griffin appeals pro se summary judgment against him in an action seeking review of a decision by the Forest Service to issue a comprehensive land and resource management plan ("LRMP") for the Cleveland National Forest. The district court had jurisdiction under 28 U.S.C. § 1331. We have jurisdiction over this timely appeal pursuant to 28 U.S.C. § 1291. We affirm.

I

Appellant first challenges the district court's disposition of his case on summary judgment. Of the several objections he makes, only one -- the sufficiency of the administrative record -- merits discussion.*fn1 The Forest Service presented to the court the Record of Decision; the final LRMP; the final EIS; and relevant appendices. Appellant objects to the exclusion of the "planning records" upon which the EIS is based from this administrative record. Appellant's Informal Brief at 4; Reply Brief at 5.

Judicial review of agency action is generally limited to a review of the administrative record the agency presents to the district court. Florida Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985) ("'The task of the reviewing court is to apply the appropriate APA standard of review, 5 U.S.C. § 706, to the agency decision based on the record the agency presents to the reviewing court."); Friends of the Earth v. Hintz, 800 F.2d 822, 828 (9th Cir. 1986) ("With a few exceptions . . . judicial review of agency action is limited to a review of the administrative record."); 5 U.S.C. § 706 (a reviewing court "shall review the whole record or those parts of it cited by a party") (emphasis added). Only if there is "such a failure to explain administrative action as to frustrate effective judicial review," should a court "obtain from the agency, either through affidavits or testimony, such additional explanations of the reasons for the agency decision as may prove necessary." Public Power Counsel v. Johnson, 674 F.2d 791, 793-94 (9th Cir. 1982).

We find no error in the district court's decision to grant summary judgment on the record presented by the Forest Service. Having reviewed that record, we conclude that it provides an adequate explanation for the Service's decision and the factors weighed in reaching it. Since the planning materials are summarized in the EIS, had they been included they "might have supplied a fuller record, but otherwise [do] not address issues not already there." Friends of the Earth, 800 F.2d at 829. We also note that the Secretary's decision to incorporate by reference the planning documents into the EIS is consistent with regulations promulgated under the National Forest Management Act of 1976 (NFMA), 90 Stat. 2949 (codified as amended at 16 U.S.C. § 1604 (1988)), and the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. § 4321-61 (1988). See National Forest System Land and Resource Management Planning, 36 C.F.R. § 219.10(h) (1990); NEPA, Requirements for Environmental Impact Statements, 40 C.F.R. § 1502.20 (1990).

II

Appellant challenges the Forest Service's adoption of the final LRMP and EIS on several grounds.

A

He first argues that the Forest Service failed to give due consideration to competing uses of the Forest in drafting the LRMP. Specifically, he contends that the Forest Service (1) intentionally undervalued recreational needs, (2) overstated the value of cattle grazing interests, and (3) ignored the potential for conflict between the two uses. Appellant's Informal Brief, Attachment 1, at 3-4, 12-14. He claims that the LRMP therefore violates the NFMA and the Multi-Use Sustained-Yield Act of 1960 (MUSYA), 16 U.S.C. § 528-531 (1988), by failing adequately to provide for conflicting multiple forest uses. Id. at 5-6.

In reviewing the LRMP, we apply the APA's arbitrary and capricious standard. 5 U.S.C. § 706(2)(A) (1988). That is, we "must determine only whether a clear error of judgment has occurred and whether the agency based its decision upon consideration of relevant factors." Marathon Oil Co. v. United States, 807 F.2d 759, 765 (9th Cir. 1986) (citing Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971)), cert. denied, 480 U.S. 940 (1987). This is particularly true in reviewing multiple-use statutes like MUSYA and NFMA, which "breathe[] discretion at every pore." Perkins v. Bergland, 608 F.2d 803, 806-07 (9th Cir. 1979). "Only very narrow review is appropriate." Id. at 807.

A review of the administrative record makes clear that the Forest Service assessed the interests of both recreational users*fn2 and livestock owners,*fn3 and considered the potential conflict between them.*fn4 Under our "very narrow review" we may not reweigh the competing uses considered by the Forest Service. We find that the Service gave due consideration to the ...


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