BALDOCK, Circuit Judge.
The United States Fish and Wildlife Service (FWS) has listed a "distinct population segment" (DPS) of Canada Lynx as "threatened" under the Endangered Species Act (ESA), 16 U.S.C. §§ 1531-44. See Determination of Threatened Status for the Contiguous U.S. Distinct Population Segment of the Canada Lynx and Related Rule, 65 Fed.Reg. 16052 (March 24, 2000) (Final Rule), clarified by Notice of Remanded Determination of Status for the Contiguous U.S. Distinct Population Segment of the Canada Lynx, 68 Fed.Reg. 40076 (July 3, 2003) (Rule Clarification). Forest Guardians and other environmental nonprofit groups (collectively Forest Guardians) seek to compel the United States Forest Service pursuant to § 7(a)(2) of the ESA to consult with FWS on the question of whether the Land and Resource Management Plans (LRMPs) for the Carson and Santa Fe National Forests may jeopardize the continued existence of the lynx. See 16 U.S.C. §§ 1536(a)(2).
Congress enacted the ESA to provide for the "conservation, protection and propagation" of wildlife facing extinction. S.Rep. No. 93-307, at 1, reprinted in 1973 U.S.C.C.A.N. 2989; see also 16 U.S.C. § 1531(b). The ESA authorizes FWS to designate a DPS of a species as "endangered" or "threatened." See 16 U.S.C. §§ 1532(16), 1533(a)(1). When FWS designates a DPS of a species as endangered or threatened, sister agencies assume special obligations to protect that species. See Wyoming Farm Bureau Fed'n v. Babbitt, 199 F.3d 1224, 1231 (10th Cir.2000). The principal obligation at issue in this case is encompassed within § 7(a)(2) of the ESA. That section requires an acting agency (allegedly the Forest Service) to consult with FWS to ensure the former's "action" (allegedly the LRMPs) is unlikely to jeopardize the continued existence of an endangered or threatened species:
16 U.S.C. § 1536(a)(2) (emphasis added).
The district court dismissed Forest Guardians' amended complaint in its entirety. Relevant to our task, the court dismissed Forest Guardians' ESA claim against the Forest Service pursuant to Fed.R.Civ.P. 12(b)(6).
Our jurisdiction to review the district court's dismissal of Forest Guardians' ESA claim arises under 28 U.S.C. § 1291. Our review is de novo. See Moya v. Schollenbarger, 465 F.3d 444, 454 (10th Cir.2006). We accept the factual allegations of the amended complaint as true but owe no such allegiance to its legal conclusions. See Jordan v. Alternative Res. Corp., 458 F.3d 332, 338 (4th Cir.2006). Because we conclude Forest Guardians has not adequately alleged the agency action necessary to trigger the Forest Service's duty to consult with FWS under § 7(a)(2) of the ESA, we need not reach the question of whether the DPS listing of Canada Lynx would otherwise require the Forest Service to consult with FWS on the Carson and Santa Fe National Forest Plans. See Champagne Metals v. Ken-Mac Metals, Inc., 458 F.3d 1073, 1088 (10th Cir.2006) (court of appeals may affirm on any ground supported by the record, provided the parties have had an opportunity to address such ground).
We begin with the relevant allegation of Forest Guardians' amended complaint. Paragraph 11 states: "Implementation of the Carson and Santa Fe National Forest LRMPs are `agency actions' that `may affect' listed lynx and, as such, the Federal-Defendants must undergo formal § 7 consultation to insure that such actions are not jeopardizing the continued existence of lynx." According to the Forest Service, "the Carson and Santa Fe Forest Plans do not constitute ongoing `agency action' for
The National Forest Management Act (NFMA), 16 U.S.C. §§ 1600-1614, directs the Forest Service to develop a LRMP for each unit of the National Forest System. See id. § 1604(a). Regulations contained in Subpart A of 36 C.F.R. Pt. 219 set forth the process for developing, amending and revising LRMPs. LRMPs are "embodied in appropriate written material[.]" 16 U.S.C. § 1604(f)(2). LRMPs reflect, among other things "proposed and possible actions[.]" Id.
Id. § 219.3(b) (internal citation omitted). In short, LRMPs are "a framework for making later project decisions rather than
As we have oft explained, management of LRMPs occurs at two levels. The first level is "programmatic:"
Utah Envtl. Cong. v. Bosworth, 443 F.3d 732, 737 (10th Cir.2006) (emphasis added). The second level is "project:" We have repeatedly stated that "[t]he Forest Service is required to implement the forest plan by approving or disapproving specific projects. Projects must be consistent with the governing forest plan and are subject to the procedural requirements of NEPA." Lamb v. Thompson, 265 F.3d 1038, 1042 (10th Cir.2001); accord Silverton Snowmobile Club v. United States Forest Serv., 433 F.3d 772, 785 (10th Cir.2006); Colorado Envtl. Coalition v. Dombeck, 185 F.3d 1162, 1168 (10th Cir.1999); see also 36 C.F.R. § 215.1(recognizing the implementation of LRMPs through projects and activities). "[I]mplementation of the LRMP occurs . . . when individual site-specific projects are proposed and assessed[,]" and not before. Idaho Conservation League v. Mumma, 956 F.2d 1508, 1512 (9th Cir. 1992). To assess a proposed project or action, the Forest Service must conduct an analysis and evaluation of such project or action to assure compliance not only with the LRMP but also with applicable laws and regulations. See 36 C.F.R. § 219.8(b), (e); Forest Service Manual 1926.41 (2006) (available at http://www.fs.fed.us/im/ directives /fsm/1900/1920.doc); see generally 36 C.F.R. Pt. 215 (addressing notice, comment, and appeals procedures for Forest Service projects and activities). Only then may an irreversible commitment of forest resources occur. See Plan Review, 58 Fed.Reg. at 19370.
Much like the promulgation of a regulation, we have little doubt after Norton that the act of approving, amending, or revising a LRMP constitutes "action" under § 7(a)(2) of the ESA. See 50 C.F.R. 402.02 (listing the "promulgation" of regulations as an example of "action" under § 7). Nothing in the foregoing overview, however, suggests that LRMPs, once approved, amended, or revised, constitute ongoing, self-implementing action under § 7(a)(2). Compare Norton, 542 U.S. at 72-73, 124 S.Ct. 2373.
Nonetheless, Forest Guardians insists the definition of "action" as used in § 7(a)(2) of the ESA is broad enough to encompass the sizable entirety of the respective LRMPs for the Carson and Santa Fe National Forests, each of which sets policy for a forest exceeding 1.3 million acres in land mass.
50 C.F.R. § 402.02; see also 40 C.F.R. § 1508.18(b)(3) (describing a "program" as "a group of concerted actions to implement a specific policy or plan").
We do not doubt a LRMP might authorize an activity or program, and that such authorization could constitute "action" within the meaning of § 7(a)(2). Similarly, if the LRMP demanded the Forest Service fund or carry out an activity or program, this too could constitute "action" under § 7(a)(2). Such "action," in turn, could give rise to a duty to consult on that particular action under § 7(a)(2) of the ESA. See 16 U.S.C. § 1536(a)(2). LRMPs, however, "typically do not approve or execute projects and activities," and do not authorize the irreversible commitment of forest resources. 36 C.F.R. § 219.3(b) (emphasis added); see also id. § 215.12 (recognizing a LRMP may include a "project decision"); compare Norton, 542 U.S. at 69, 124 S.Ct. 2373 ("[A] land use plan is not ordinarily the medium for affirmative decisions that implement the agency's `projections.'" (internal brackets omitted)); see also Plan Review, 58 Fed.Reg. at 19370 (discussing the nature of LRMPs and project decisions).
Yet whether a particular activity or program is part of a LRMP or subsequently authorized at the project level, the ESA's definition of "action" still requires Forest Guardians to direct its focus on an activity or program that allegedly threatens the lynx. This is because only in the presence of such activity or program, i.e., "agency action," does a duty to consult ever arise under § 7(a)(2). See 50 C.F.R. § 402.02; California Sportfishing Prot. Alliance v. Federal Energy Regulatory Comm'n, 472 F.3d 593, 595 (9th Cir.2006) ("The ESA and the applicable regulations . . . mandate consultation . . . only before an agency takes some affirmative agency action, such as issuing a license."). Needless to say then, we are hard pressed to conclude, based on the allegations of the amended complaint, that the two LRMPs on which Forest Guardians demands consultation constitute, in their entirety, an activity or program, i.e., an "action, authorized, funded, or carried out" by the Forest Service. 16 U.S.C. § 1536(a)(2); compare Lujan v. National Wildlife Fed'n, 497 U.S. 871, 890-93, 110 S.Ct. 3177, 111 L.Ed.2d 695 & nn. 2, 3 (1990) (rejecting a "generic" challenge under the APA to the "entirety" of BLM's "land withdrawal review program" couched as unlawful agency action).
We have searched Forest Guardians' amended complaint in vain for some concrete allegation of "action" beyond the mere "implementation of the . . . LRMPs"
Similarly, paragraph 110 of the amended complaint alleges in the abstract:
We do not disagree with the proposition that policies, directions, and allowances contained in a LRMP may indirectly impact the lynx and its habitat adversely. After all, these are matters contained within a LRMP on which agency actions are based. But this does not make such policies, directions, and allowances "action" requiring consultation within the meaning of § 7(a)(2). Policies and directions only guide the Forest Service in determining whether an "action" may be properly undertaken consistent with the LRMP. Moreover, the fact that a LRMP "allows" certain activities to occur on forest lands does not commit the Forest Service to anything. See Plan Review, 58 Fed.Reg. at 19370 (citing cases); compare Norton, 542 U.S. at 72, 124 S.Ct. 2373 (holding a land use plan's "statement to the effect that BLM will conduct `Use Supervision and Monitoring' in designated areas—like other `will do' projections of agency action set forth in land use plans—are not a legally binding commitment"). "[M]any activities allowed by Plans, such as timber harvest and road construction, are never carried out for a variety of reasons, such as funding limitations and environment, wildlife or policy considerations." Final Rule, 65 Fed.Reg. at 16079; compare Norton, 542 U.S. at 71, 124 S.Ct. 2373. What LRMPs might "allow" is thus readily distinguishable from "actual actions as a result of past or current implementation of the Plans." Final Rule, 65 Fed.Reg. at 16079.
A LRMP considered in isolation simply is not an ongoing, self-implementing document. Specific activities, programs, and/or projects are necessary to implement the plan. See, e.g., Bosworth, 443 F.3d at 737; Lamb, 265 F.3d at 1042. Those same activities, programs, and projects must be alleged in a complaint that seeks to establish an "acting" agency's duty to consult under § 7(a)(2) of the ESA. As we have explained, a LRMP envisions the forest will be used for multiple purposes, including "outdoor recreation, range, timber, watershed, wildlife and fish, and wilderness." 16 U.S.C. § 1604(e)(1). A plan or vision is certainly a precursor to "agency action," but neither is action requiring § 7(a)(2) consultation.
The Ninth Circuit decision in Pacific Rivers does not persuade us otherwise. In that case, the National Marine Fisheries Service (NMFS) had listed the Snake River chinook salmon as "threatened" under the ESA. The basis for that suit was the Forest Service's failure to consult with the NMFS regarding the effects of certain LRMPs on the species. The court's description of LRMPs in that case was not unlike our description here. The court described LRMPs as—
Pacific Rivers, 30 F.3d at 1052. The court further referred to LRMPs as "establishing resource and land use policies" and "set[ting] forth criteria for harvesting resources[.]" Id. at 1055-56. Nonetheless, the court rejected as "incorrect" the Forest Service's argument that "LRMPs are not ongoing agency action throughout their duration." Id. at 1053. Rather, the Court concluded:
Contrary to Pacific Rivers, our analysis makes painfully apparent that "standards," "guidelines," "policies," "criteria," "land designations," and the like appearing within a LRMP do not constitute "action" requiring consultation under § 7(a)(2) of the ESA. A contrary view would be the equivalent of saying that agency regulations constitute ongoing action because such regulations continually affect what goes on in the forest. Of course, the very definition of "action" in § 402.02 tells us that the "promulgation of regulations," not the regulations themselves, constitutes "action." 50 C.F.R. § 402.02 (emphasis added). We have no quarrel with the proposition that LRMPs may have "an ongoing and long-lasting effect" on the forest. That's the very purpose of a LRMP—to guide management decisions regarding the use of forest resources and to establish to a substantial degree what is permitted to occur within the forest. But this does not alter our conclusion that the entirety of LRMPs do not constitute § 7 "action." Instead, "activities or programs . . . authorized, funded, or carried out," by the Forest Service are the "action" of which § 7(a)(2) speaks. 16 U.S.C. § 1536(a)(2); 50 C.F.R. § 402.02.
What Forest Guardians seeks in this case is nothing short of a wholesale review
Although we must assume Forest Guardians can prove all of the facts alleged in its amended complaint, its allegation that "[i]mplementation of the Carson and Santa Fe National Forest LRMPs are `agency actions'" within the meaning of § 7(a)(2) of the ESA is a legal conclusion that we need not accept. When reviewing the district court's grant of a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6), we must determine whether the complaint sufficiently alleges facts supporting all the elements necessary to establish an entitlement to relief under the legal theory proposed. Because Forest Guardians has not alleged any activity, project, or program authorized, funded, or carried out by the Forest Service that might constitute "action" within § 7(a)(2) of the ESA, the Forest Service has no duty to consult with the FWS pursuant to the statute. Because Forest Guardians' amended complaint is not actionable, the judgment of the district court is—
(internal citation omitted).
Federal actions tend to fall within one of the following categories:
Id. § 1508.18(b) (emphasis added).
The plan divides the forest into 21 "management areas" and addresses the following concerns: air, cultural resources, facilities and corridors, fire, lands, law enforcement, minerals, people, range, recreation, special uses, sustainable forests, timber, travel, visual, watershed, and wildlife and fish. The Santa Fe National Forest Plan, approved in 1987, is also available online at http://www.fs.fed.us/r 3/sfe/projects/plansReports/index.html. That plan divides the forest into 12 "management areas," while addressing the following concerns: recreation, off-road vehicle use, visual quality, cultural resources, wildlife, wildlife habitat diversity, range, timber, firewood, watershed, transportation, and research. Compare Norton, 542 U.S. at 70-71, 124 S.Ct. 2373 (discussing the complexity of a land use plan for 1.5 million acres of BLM-administered land). The Forest Service must revise a LRMP at least once every fifteen years, but may amend it, in compliance with set procedures, at any time. 16 U.S.C. § 1604(f)(4), (f)(5). Both plans have been amended periodically.
Id. at 733-34, 118 S.Ct. 1665; compare 36 C.F.R. § 219.3(b); see also Lujan, 497 U.S. at 892-93, 110 S.Ct. 3177 n. 3.