PHILIP A. BRIMMER, Chief United States District Judge.
This matter is before the Court on the Federal Defendants' Motion to Dismiss the Complaint and Memorandum in Support Thereof [Docket No. 20] and Plaintiffs' Motion for Leave to Conduct Limited Discovery Regarding Administrative Record and Jurisdiction [Docket No. 22].
The Wilderness Act, 16 U.S.C. § 1131 et seq., governs wilderness areas included in the National Wilderness Preservation System.
Defendant United States Forest Service (the "Forest Service") is a federal agency within the United States Department of Agriculture. Docket No. 1 at 6, ¶ 11.
On May 7, 2019, Ferebee issued a memorandum (the "May 7 memo") to the Forest Supervisors for the San Juan National Forest and the Rio Grande National Forest. Id. at 13, ¶ 35; see also Docket No. 11-1. In the May 7 memo, Ferebee approved the use of chainsaws in the Wilderness Areas during the 2019 field season "for the purpose of clearing trail obstructions[ ] and creating safe refuges for administrative use and trail users" (the "chainsaw authorization"). Docket No. 11-1 at 1. The chainsaw authorization allowed the Forest Supervisors to use chainsaws for "no more than [six] weeks between June 1 and August 17." Id. Ferebee explained that the chainsaw authorization was justified in order to "clear beetle-killed trees that are obstructing trail access to the wilderness." Id. at 2. Ferebee further explained that "[t]he magnitude of obstructed trails across [the Wilderness Areas] and the potential resource damage that will occur ... warrants the rare and limited exception to allow chainsaw use." Id. Ferebee also noted that "the 2019 field season is likely to be shorter than recent years due to the extensive snowpack that has built up during the past winter." Id. The May 7 memo also directed the Forest Supervisors to produce a report with certain data that would "help determine if any future chainsaw allowances are justified and needed to administer wilderness." Id. at 3.
Plaintiffs are three non-profit organizations whose missions include "the preservation and proper stewardship of lands ... in the National Wilderness Preservation System" (Wilderness Watch), "monitoring and scrutinizing National Forest management" (San Juan Citizens Alliance), and "inspir[ing] activism to preserve and protect wilderness and wild lands" (Great Old Broads for Wilderness). Docket No. 1 at 3-4, ¶¶ 3-5. On May 22, 2019, plaintiffs filed this lawsuit, challenging the chainsaw authorization promulgated by the May 7 memo. See generally id. Plaintiffs allege that their members' use and enjoyment of the Wilderness Areas will be "degraded" by the chainsaw authorization. Id. at 5, ¶ 6. Plaintiffs contend that the decision violates the Wilderness Act, the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4331 et seq., and the Administrative Procedure Act ("APA"), 5 U.S.C. § 701 et seq. Id. at 19-24, ¶¶ 83-104. Plaintiffs request as relief that the Court (1) declare that the chainsaw authorization violates the Wilderness Act, NEPA, and APA, (2) void the chainsaw authorization, (3) enjoin defendants from acting on both the chainsaw authorization and "any future motorized use proposal in designated wilderness," and (4) remand the chainsaw authorization to defendants. Id. at 24-25.
On May 31, 2019, Ferebee issued another memorandum (the "May 31 memo"). R. at 2735.
On June 4, 2019, plaintiffs moved for a preliminary injunction. Docket No. 11. However, on June 14, 2019, plaintiffs withdrew the motion. Docket No. 17 at 2. The parties explained that Ferebee, in a memorandum dated June 10, 2019 (the "June 10 memo"), rescinded the chainsaw authorization. See Docket No. 17-1. In the June 10 memo, Ferebee explained that "[r]eports by trail crews and scouts over the past week indicate that ... trail maintenance work will need to be delayed even further than initially forecasted" because "[a]valanches and heavy snowpack have created changed conditions" in the Wilderness Areas. Id. at 1. Thus, Ferebee concluded that it was "unlikely that [the Forest Service] would realize any substantial benefit from the use of chainsaws to clear trail obstructions." Id. at 1. The June 10 memo directs the Forest Supervisors to proceed with certain data collection efforts outlined in the May 7 memo.
On July 23, 2019, defendants filed a motion to dismiss for lack of jurisdiction. Docket No. 20. Defendants argue that plaintiffs' claims for relief are moot as a result of the June 10 memo and that any claims regarding potential future conduct are not ripe for review; thus, the Court does not have jurisdiction to hear the case. Id. at 1. In addition to their response, plaintiffs filed a motion for leave to conduct limited discovery. Docket No. 22. Plaintiffs argue that limited discovery is necessary in order to "establish a complete record concerning the facts that [defendants] allege[ ] to support [the] motion to dismiss." Id. at 2.
A motion under Fed. R. Civ. P. 12(b)(1) is a request for the Court to dismiss a claim for lack of subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1). Plaintiff bears the burden of establishing that the Court has jurisdiction. Basso v. Utah Power & Light Co., 495 F.2d 906, 909 (10th Cir. 1974). When the Court lacks subject matter jurisdiction over a claim for relief, dismissal is proper under Rule 12(b)(1). See Jackson v. City and Cty. of Denver, No. 11-cv-02293-PAB-KLM, 2012 WL 4355556 at *1 (D. Colo. Sept. 24, 2012).
Rule 12(b)(1) challenges are generally presented in one of two forms: "[t]he moving party may (1) facially attack the complaint's allegations as to the existence of subject matter jurisdiction, or (2) go beyond allegations contained in the complaint by presenting evidence to challenge the factual basis upon which subject matter jurisdiction rests." Merrill Lynch Bus. Fin. Servs., Inc. v. Nudell, 363 F.3d 1072, 1074 (10th Cir. 2004) (quoting Maestas v. Lujan, 351 F.3d 1001, 1013 (10th Cir. 2003)). The court may review materials outside the pleadings without converting the Rule 12(b)(1) motion to dismiss into a motion for summary judgment. Davis ex rel. Davis v. U.S., 343 F.3d 1282, 1296 (10th Cir. 2003).
Neither NEPA nor the Wilderness Act provides for a private right of action. Colo. Farm Bureau Fed. v. U.S. Forest Serv., 220 F.3d 1171, 1173 (10th Cir. 2000); Wyoming v. U.S. Dep't of Agric., 661 F.3d 1209, 1227 (10th Cir. 2011). Thus, the Court construes plaintiffs' challenges to the chainsaw authorization as challenging a "final agency action" under the APA, 5 U.S.C. § 704. See id.; Dine Citizens Against Ruining Our Env't v. Klein, 676 F.Supp.2d 1198, 1205 (D. Colo. 2009). As relevant here, the APA grants the Court
Defendants move to dismiss the complaint pursuant to Rule 12(b)(1) on the grounds that plaintiffs' claims for relief are moot because the chainsaw authorization has been withdrawn, and that any claims in the complaint based on a future proposal to authorize chainsaw use are not ripe. Docket No. 20.
"Under Article III of the Constitution [federal courts] may only adjudicate actual, ongoing controversies." Honig v. Doe, 484 U.S. 305, 317, 108 S.Ct. 592, 98 L.Ed.2d 686 (1988); see also Wiley v. Nat'l Collegiate Athletic Ass'n, 612 F.2d 473, 475 (10th Cir. 1979) (noting that mootness "has its constitutional origin in the `case or controversy' limitation of Article III"). Thus, "mootness is a threshold issue" that implicates the Court's subject-matter jurisdiction. Disability Law Ctr. v. Millcreek Health Ctr., 428 F.3d 992, 996 (10th Cir. 2005). In the mootness inquiry, "[t]he crucial question is whether granting a present determination of the issues offered will have some effect in the real world." Citizens for Responsible Government State Political Action Comm. v. Davidson, 236 F.3d 1174, 1182 (10th Cir. 2000) (internal quotations and alterations omitted). It is the plaintiff's burden to establish that the claims are not moot. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (noting that the party invoking federal jurisdiction bears the burden of establishing standing).
Defendants' argument is straightforward: because the June 10 memo rescinded the chainsaw authorization, no chainsaw use as outlined in the May 7 memo will occur in the Wilderness Areas. Docket No. 20 at 6. Thus, plaintiffs' claims, which seek to prevent defendants from implementing the chainsaw authorization, are moot. Id. Plaintiffs do not seem to argue that the chainsaw authorization remains operative. Rather, in response, plaintiffs contend that their claims fit into one of two exceptions to mootness: the voluntary cessation exception and the capable of repetition yet evading review exception. Docket No. 21 at 12-15.
"[A] defendant's voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice." Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000). Defendant must meet a "heavy burden," see id., of showing that (1) it is "absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur" and (2) "[i]nterim relief or events have completely and irrevocably eradicated the effects of the alleged violation." Equal Employment Opportunity Commn. v. CollegeAmerica Denver, Inc., 869 F.3d 1171, 1173-74 (10th Cir. 2017) (quotation marks omitted); see also Rio Grande Silvery Minnow v. Bureau of Reclamation, 601 F.3d 1096, 1116 (10th Cir. 2010) (noting that, in practice, "Laidlaw's heavy burden frequently has not prevented governmental officials from discontinuing challenged
One factor in determining whether the challenged action could not be expected to recur is whether the action has been formally withdrawn or whether defendants have issued a "mere informal promise or assurance ... that the challenged practice will cease." Id. at 1118. Defendants point to the June 10 memo as evidence that defendants have formally withdrawn the chainsaw authorization. Docket No. 20 at 8-9. In the June 10 memo, Ferebee states that, because it is "unlikely that [Forest Service personnel] would realize any substantial benefits from the use of chainsaws to clear trail obstructions during the period authorized by" the May 7 memo, he is "rescinding the approval to use chainsaws that was conveyed in" the May 7 memo. See Docket No. 17-1 at 1. The Court is satisfied that this operates as a formal withdrawal — not, as plaintiffs contend, an "informal promise" of cessation — of the chainsaw authorization as promulgated in the May 7 memo.
In response, plaintiffs argue that the record indicates that defendants still plan to take action on "the same proposal [p]laintiffs challenged," suggesting that defendants' withdrawal of the chainsaw authorization was done in order to render this case moot and then resume the illegal conduct. Docket No. 21 at 13. The Court sees two problems with this argument. First, plaintiffs define the "proposal" imprecisely. See Front Range Equine Rescue v. Bureau of Land Mgmt., No. 16-cv-00969-WJM, 2017 WL 5885314, at *9 (D. Colo. Nov. 29, 2017) (noting that, in the voluntary mootness inquiry, the analysis depends on what is construed as the "challenged conduct"). The complaint challenges the chainsaw authorization as set out in the May 7 memo only. See, e.g., Docket No. 1 at 2 (arguing that the chainsaw authorization "must be set aside and its implementation enjoined"). That chainsaw authorization has been withdrawn. Now, however, plaintiffs claim to be challenging "a broader reoccurring proposal to use chainsaws regionally on wilderness trails." See Docket No. 21 at 2 (internal quotations omitted).
As to the second prong of the voluntary cessation test, the Court has little difficulty concluding that the effects of the alleged violation have been "completely and irrevocably eradicated." CollegeAmerica Denver, Inc., 869 F.3d at 1174. No chainsaws were used to clear trails in the Wilderness Areas; plaintiffs suffered no harm. Plaintiffs do not explain what, if any, effects of the chainsaw authorization linger on and cause them future harm. Thus, the Court concludes that defendants have met their burden to show that the voluntary mootness exception does not apply to this case.
An otherwise moot claim is "capable of repetition, yet evading review" if "(1) the duration of the challenged action [is] too short to be fully litigated prior to its cessation or expiration; and (2) there [is] a reasonable expectation that the same complaining party will be subjected to the same action again." Wyoming v. U.S. Dep't of Interior, 674 F.3d 1220, 1229 (10th Cir. 2012). This doctrine is "narrow," Jordan v. Sosa, 654 F.3d 1012, 1034-35 (10th Cir. 2011), and applies "only in exceptional situations." Kingdomware Techs., Inc. v. United States, ___ U.S. ___, 136 S.Ct. 1969, 1976, 195 L.Ed.2d 334 (2016). The inquiry turns on "whether something inherent exists in the nature or structure of the governmental action that makes it necessarily of short duration." Wyoming, 674 F.3d at 1229. Unlike the voluntary mootness exception, the plaintiff has the burden of showing that this exception applies. Id.
Plaintiffs argue that the capable of repetition yet evading review exception applies to this case because (1) defendants' project window is less than three months, which is too short to fully litigate plaintiffs'
Second, even assuming arguendo that any future chainsaw authorization is necessarily of short duration, there is no reason to believe that plaintiffs could not obtain a preliminary injunction against chainsaw use before the authorization expired. See Missouri ex rel. Nixon v. Craig, 163 F.3d 482, 485 (8th Cir. 1998) (declining to apply exception where "judicial processes such as preliminary injunctions" would "be available to [plaintiff] if the need arises in the future"); see also Docket No. 16 (setting hearing on preliminary injunction for June 25, 2019).
Finally, the Court is not persuaded that the chainsaw authorization is likely to recur in the same form in the future. The May 7 memo and June 10 memo indicate that the chainsaw authorization was a result of unique conditions on the ground in the Wilderness Areas. See Docket No. 11-1 at 2 (noting that the chainsaw authorization is to "clear beetle-killed trees that are obstructing trail access" to the Wilderness Areas because of "[t]he magnitude of obstructed trails across [the Wilderness Areas] and the potential resource damage that will occur"); Docket No. 17-1 at 1 (withdrawing chainsaw authorization as a result of "[a]valanches and heavy snowpack"). The Court agrees with defendants that any future chainsaw authorization is likely to be meaningfully different; thus, it is not reasonable to expect that plaintiffs will be subject to "the same action" again. See Wyoming, 674 F.3d at 1229.
Because defendants have rescinded the chainsaw authorization and the voluntary cessation and capable of repetition yet evading review exceptions to mootness do not apply, the Court concludes that plaintiffs' claims for relief are moot.
Plaintiffs argue that their claims are ripe for decision even if the chainsaw authorization has been rescinded. Docket No. 21 at 8-12. Plaintiffs argue that the Court can order "meaningful relief," including "APA findings of fact and law, issuing declaratory and injunctive relief, and granting ... a remand to conduct NEPA analysis" on any future decision to approve chainsaw use in the wilderness. Docket No. 21 at 8-9. Relatedly, plaintiffs contend that the chainsaw authorization is
"The basic rationale of the ripeness requirement is `to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties.'" Coal. for Sustainable Res., Inc. v. U.S. Forest Serv., 259 F.3d 1244, 1249 (10th Cir. 2001) (quoting Abbott Labs. v. Gardner, 387 U.S. 136, 148-49, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967)). Before reviewing an agency's decision, courts must assess "the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration." HRI, Inc. v. Envtl. Prot. Agency, 198 F.3d 1224, 1235 (10th Cir. 2000). In making this determination, courts consider four factors:
Coal. for Sustainable Res., 259 F.3d at 1250. "The plaintiff bears the burden of providing evidence to establish that the issues are ripe." Id. at 1249.
Coalition for Sustainable Resources is instructive. In that case, plaintiffs alleged that agency defendants, including the Forest Service, violated their duties under the Endangered Species Act to carry out certain conservation programs in the management of Medicine Bow National Forest. Id. at 1248. The Tenth Circuit concluded that plaintiffs' claims were not ripe, holding that none of the four factors supported jurisdiction. First, noting that the case "may raise numerous questions of fact or mixed questions of law and fact," the court concluded that the issues in the case were not purely legal. Id. at 1250. Next, the court determined that the agency action was not "final" within the meaning of the APA. Id. at 1251-52. Finally, the court held that there would be "little immediate impact" if the case was not resolved, and that addressing the merits of the case at the present time would not promote effective administration. Id. at 1252.
As in Coalition for Sustainable Resources, none of the factors support a determination that the issues raised by plaintiffs here are ripe for review. First, the issues in this case are not purely legal, as plaintiffs appear to concede. See Docket No. 21 at 10 (noting that "[t]he existence of a NEPA-triggering proposal is a question of fact" (citing 40 C.F.R. § 1508.23)). This factor cautions against the Court's exercise of jurisdiction. See Sierra Club v. Yeutter, 911 F.2d 1405, 1417 (10th Cir. 1990) ("Where disputed facts exist and the issue is not purely legal, greater caution is required prior to concluding that an issue is ripe for review."). Next, defendants' consideration of allowing chainsaw use more
Plaintiffs have not met their burden to demonstrate that any issues related to the "proposed federal action" of authorizing future chainsaw use in the Wilderness Areas is ripe for review. Thus, the Court rejects plaintiffs' arguments that there are issues in this case that are ripe for determination independent of the chainsaw authorization.
Plaintiffs move for limited jurisdictional discovery. Docket No. 22. As relevant to resolving defendants' motion to dismiss, plaintiffs seek to discover information related to defendants' decision to revoke the chainsaw authorization. Id. at 7-11. Plaintiffs argue that the information they seek to discover will demonstrate that defendants sought to manipulate the Court's jurisdiction to dismiss this case.
Plaintiffs allege that jurisdictional discovery is necessary in order to demonstrate that defendants' stated reason for rescinding the chainsaw authorization — that changed circumstances on the ground meant that little practical benefit would be gained from the chainsaw authorization — was pretextual and a "transparent attempt to manipulate this Court's jurisdiction." Docket No. 22 at 7. In support, plaintiffs point to evidence in the record that Ferebee was aware of high levels of snowpack well before issuing the May 7 memo, May 31 memo, and June 10 memo. The Court, however, agrees with defendants that the record does not lead to any inference of a discrepancy between defendants' action — issuing and subsequently rescinding the chainsaw authorization — and their stated reasons. Instead, the record shows that the heavy snowpack, which defendants were aware of at the time Ferebee issued the chainsaw authorization, lasted longer than expected. Compare Docket No. 11-1 at 2 (justifying the chainsaw authorization because "the extensive snowpack that has built up during the past winter" is likely to shorten the field season), with Docket No. 17-1 at 1 (indicating that "[r]eports from trail crews and scouts over the past week" indicates that "[a]valanches have blocked many trails," creating "changed conditions" requiring revocation of the chainsaw authorization). The Court is not persuaded that this record gives rise to any inference that defendants' decision to rescind the chainsaw authorization was motivated by a bad-faith attempt to manipulate the Court's jurisdiction over this case. Cf. Dep't of Comm. v. New York, ___ U.S. ___, 139 S.Ct. 2551, 2573-74, 204 L.Ed.2d 978 (2019) (noting that an inquiry into the "mental processes of administrative decisionmakers" may justify extra-record discovery only on "a strong showing of bad faith or improper behavior"). Moreover, the Court is not persuaded that plaintiffs have alleged any facts or evidence that they believe limited discovery would reveal and would make their claims ripe for review. See Docket No. 22; see also First Magnus Fin. Corp. v. Star Equity Funding, 2007 WL 635312, at *10 (D. Kan. Feb. 27, 2007) (denying jurisdictional discovery where plaintiff "ha[d] not stated any facts that it believe[d] jurisdictional discovery would likely reveal").
For the foregoing reasons, it is
