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Louisiana Sportsmen Alliance, LLC v. Vilsack

United States District Court, W.D. Louisiana, Alexandria Division

November 27, 2013

LOUISIANA SPORTSMEN ALLIANCE, LLC
v.
TOM VILSACK, et al

Page 601

[Copyrighted Material Omitted]

Page 602

For Louisiana Sportsmen Alliance L L C, Plaintiff: Charles D Elliott, LEAD ATTORNEY, Vilar & Elliott, Alexandria, LA.

For Tom Vilsack, Elizabeth Agpaoa, U S Dept of Agriculture, Defendants: Courtney Terell Joiner, LEAD ATTORNEY, U S Attorneys Office (SHV), Shreveport, LA; Jennifer B Frederick, Katherine W Vincent, U S Attorneys Office (LAF), Lafayette, LA.

Dee D. Drell, Chief United States District Judge. MAGISTRATE JUDGE KIRK.

OPINION

Dee D. Drell, Chief United States District Judge.

Page 603

RULING

Pending before the Court is a " Motion for Summary Judgment" (Doc. 21) filed by Defendants. All responses have been submitted, and the matter is ready for disposition. After careful consideration of the record, appropriate review, and for the reasons set forth herein, the motion will be GRANTED.

I. Factual and Procedural Background

This case concerns an amendment to the Kisatchie National Forest Revised Land and Resource Management Plan (" Forest Plan" ) that bans the age-old tradition of hunting deer with dogs (" dog-deer hunting" ) in the Kisatchie National Forest (" KNF" ). Dog-deer hunting has historically been permitted in the forest and Plaintiff Louisiana Sportsmen Alliance, L.L.C. opposes banning the Louisiana tradition. (Doc. 26 at 7).

The Kisatchie National Forest is managed and governed by the United States Forest Service (" Forest Service" ), an agency of the United States Department of Agriculture (" USDA" ). (Doc. 15 A-1 at 1; Doc. 21-2 at 7). The Forest Service's management of KNF is governed by the Forest Plan, which historically did not prohibit dog-deer hunting. (Doc. 15 A-3 at 7, G-1 at 5; Doc. 21-1 at 1). The Louisiana Department of Wildlife and Fisheries (" LDWF" ) cooperates with the Forest Service to set dog-deer hunting season on an annual basis. (Doc. 15 G-1 at 5; Doc. 21-1 at 1). The Forest Service provides recommendations regarding hunting regulations to the LDWF before hunting season is determined every year. (Doc. 15 G-1 at 5; Doc. 21-1 at 1). The Forest Service's recommendations are presented annually at LDWF's public comment hearings. (Doc. 15 G-1 at 5; Doc. 21-1 at 1). Dog-deer hunting has been allowed on approximately 369,000 acres of the KNF during dog-deer hunting season and all the KNF Ranger Districts have allowed dog-deer hunting on at least a part of each district, with the exception of the Caney Ranger District. (Doc. 15 G-1 at 5).

In recent years, the Forest Service had recommended a reduction in the number of days in the dog-deer hunting season. (Doc. 15 B-11 at 1-3; H-1 at 1-3; Doc.

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21-1 at 1). Over the past several years, the number of days in the dog-deer season has gone from fifteen to seven days. (Doc. 15 G-1 at 5). In August 2009, the Forest Service initiated a proposal to ban using dogs to hunt deer in KNF completely. (Doc. 15 B-1; Doc. 21-1 at 1). Scoping letters requesting comments about the proposed prohibition were mailed and emailed to a general mailing list. (Doc. 15 B-1, B-5, B-6, B-7; Doc. 21-1 at 1). Additionally, a scoping notice was published in several local newspapers. (Doc. 15 G-1 at 9; Doc. 21-1 at 1). During the 2009 scoping process, the Forest Service received 1, 237 comments, 320 of which agreed with the prohibition and 917 of which were against it. (Doc. 15 G-1 at 11; Doc. 21-1 at 2). While the National Environmental Protection Act (" NEPA" ) does not force the Forest Service to select the alternative that receives the most support or opposition during the public comment process, the NEPA does require the Forest Service to scrutinize the substantive issues presented in the comments received from all perspectives. (Doc. 15 J-8(c) at 22; Doc. 21-1 at 2).

An Environmental Assessment (" EA" ) was conducted in April 2010 as required by NEPA. (Doc. 15 B-10; Doc. 21-1 at 2). The EA identified, developed, and analyzed three alternatives: (1) take no action to maintain the status quo; (2) implement the proposed plan amendment prohibiting dog-deer hunting; or (3) designate dog-deer hunting areas. (Doc. 15 B-10 at 14-19; Doc. 21-1 at 2). In December 2010, the deciding official issued a Decision Notice and Finding of No Significant Impact (" FONSI" ) selecting Alternative 2. (Doc. 15 B-11; Doc. 21-1 at 2). A number of administrative appeals were filed and the December 2010 decision was reversed by the agency's reviewing officer in July of 2011. (Doc. 15 B-13 at 1-2, G-1 at 10; Doc. 21-1 at 2). The reviewing officer's decision included instructions regarding how to supplement or revise the EA if the agency decided to reissue the proposal to ban dog-deer hunting. (Doc. 15 B-13 at 2, G-1 at 10; Doc. 21-1 at 2).

In the Fall of 2011, the Forest Service reinstated the 2009 proposal to ban hunting with dogs in KNF and again issued scoping letters to solicit additional comments from the public. (Doc. 15 D-1, D-2; Doc. 21-1 at 2). A scoping notice was again published in local newspapers. (Doc. 15 D-3; Doc. 21-1 at 2). During the 2011 scoping process, approximately 1,300 more comments were received via U.S. mail and email. (Doc. 15 D-5, D-7(a), D-7 (b), G-1 at 11; Doc. 21-1 at 2). Out of the 1,279 letters received, 5 supported the ban. (Doc. 26 at 17; Doc. 15 G-1 at 11). There were also at least 106 emails received in addition to the letters and all but 11 of these emails supported the prohibition. (Doc. 15 G-1 at 11). The Forest Service analyzed these comments as required by NEPA, and found that there were no new issues in the 2011 scoping period not already recognized and addressed in the 2009 scoping period. (Doc. 15 D-8, G-1 at 12; Doc. 21-1 at 2). The Forest Service determined that most comments were 'votes' for or against the proposition with reasons being nearly identical to those offered in the 2009 scoping assessment and the majority of comments were form letters. (Doc. 15 G-1 at 11-12; Doc. 21-1 at 2).

The April 2010 EA was revised by the Forest Service in December 2011 and February 2012 with the same three alternatives mentioned supra. (Doc. 15 B-10, B-15, G-1; Doc. 21-1 at 3). On February 29, 2012, the deciding official issued a FONSI and Decision Notice adopting alternative 2 that prohibits the use of dogs to hunt deer in KNF. (Doc. 15 H-1; Doc. 21-1 at 3). The Plaintiff filed an administrative appeal

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to reverse the decision. (Doc. 15 J-3; Doc. 21-1 at 3). Upon appeal, the reviewing officer upheld the agency's decision, but stated that the amendment could not be implemented until the Forest Service complied with certain instructions. (Doc. 1-4 at 2; Doc. 21-1 at 3). The Forest Service followed the given instructions and the reviewing officer confirmed that the necessary instructions were carried out in a letter dated November 5, 2012. (Doc. 15 K-1, K-2, K-3; Doc. 21-1 at 3).

The case before us is an appeal from the reviewing officer's decision upholding the amendment to the Forest Plan prohibiting the use of dogs to hunt deer. After Plaintiff the Louisiana Sportsmen Alliance, LLC exhausted administrative remedies, on November 16, 2012, the Alliance filed this complaint seeking a preliminary injunction, a permanent injunction, and a declaratory judgment against Tom Vilsack in his official capacity as Secretary of the USDA and Elizabeth Agpaoa in her official capacity as the Southern Regional Forester. (Doc. 1 at 1). After an agreed delay during the 2012 hunting season, the parties (with Court consent) further agreed to pursue the issue in advance of the 2013 hunting season. (See Doc. 8). On August 9, 2013, Defendants filed the instant Motion for Summary Judgment (Doc. 21). Plaintiff submitted a Memorandum in Opposition of Motion for Summary Judgment (Doc. 26), and Defendants filed a Reply (Doc. 29).

On October 9, 2013, Plaintiff filed a Motion to Expedite Consideration of Defendants' Motion for Summary Judgment based upon the quick approach of hunting season. (Doc. 30). On October 16, 2013, the Court granted Plaintiff's motion and agreed that the matter be considered in an expedited manner without the necessity of oral argument. (Doc. 31).

II. Law and Analysis

A. Summary Judgment Standard

A court " shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). A dispute as to a material fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). We consider all " evidence in the light most favorable to the party resisting the motion." Trevino v. Celanese Corp., 701 F.2d 397, 407 (5th Cir. 1983). It is important to note that the standard for a summary judgment is twofold: (1) there is no genuine dispute as to any material fact, and (2) the movant is entitled to judgment as a matter of law.

Summary judgment is " an appropriate procedure for resolving a challenge to a federal agency's administrative decision when review is based upon the administrative record . . . even though the Court does not employ the standard of review set forth in Rule 56." Sierra Club v. Federal Highway Admin., 715 F.Supp.2d 721 (S.D. Tex. 2010) (citations omitted); see also Boquet Oyster House, Inc. v. U.S., CIV.A. 09-3537, 2011 WL 5187292, at *4 (E.D. La. Oct. 31, 2011). Since the court is merely reviewing the legality of the agency's decision and is not acting as the initial factfinder, summary judgment is the appropriate means for resolving claims. Spiller v. Walker, No. A-98-CA-255-SS, 2002 WL 1609722, at *6 (W.D. Tex. July 19, 2002). Therefore, we find the summary judgment procedure to be proper in this case.

B. Standard of Review

While the Court reviews this case de novo, the Administrative Procedure Act " allows a federal court to overturn

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an agency's ruling only if it is arbitrary, capricious, an abuse of discretion, not in accordance with law, or unsupported by substantial evidence on the record taken as a whole." Amrollah v. Napolitano, 710 F.3d 568, 571 (5th Cir. 2013) (internal quotations and citations omitted); see also 5 U.S.C. § 706(2)(A) & (E). Under this standard, there is a presumption that the agency's decision is valid, and the Plaintiff has the burden to show the agency's decision is erroneous to overcome that presumption. Buffalo Marine Servs. ...


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