EDWARD J. LODGE, District Judge.
Before the Court is Defendants' Motion to Dismiss for Lack of Subject Matter Jurisdiction (Docket No. 18), or, in the alternative, Defendants' Motion to Dismiss for Failure to State a Claim (Docket No.
Plaintiffs American Independence Mines and Minerals Co., Ivy Minerals, Inc., and Walker Mining Co., filed a complaint in this court in September 2009. Plaintiff American Independence is an Idaho joint venture. Plaintiffs Ivy Minerals and Walker Mining are two Idaho corporations; they are the companies that make up the American Independence joint venture. Defendants are the United States Department of Agriculture; Tom Vilsack, in his official capacity as the Secretary of the Department of Agriculture; the United States Forest Service ("USFS"); and Tom Tidwell, Harvey Forsgren, Brent L. Larson, and Suzanne Rainville in their various official capacities with the USFS.
Plaintiffs challenge the environmental impact statement and record of decision underlying an agency rule, created on November 9, 2005, called the Travel Management Rule. The Travel Management Rule requires each national forest system to designate "those roads, trails, and areas that are open to motor vehicle use" and "prohibit[s] the use of motor vehicles off the designated system, as well as use of motor vehicle on routes and in areas that is not consistent with the designations." See 70 Fed. Reg. 68,264; see also 70 Fed. Reg. 68,624-68,291 (Nov. 9, 2005). Plaintiffs also challenge the record of decision from October 3, 2008 that is associated with the Travel Management Rule as applied to the McCall and Krassel Ranger Districts in the Payette National Forest. Lastly, Plaintiffs challenge Brent Larson's January 8, 2009 decision denying Plaintiffs' appeal of the record of the decision.
Plaintiffs assert that they are "actively engaged in mining, exploration and environmental assessment" in the Big Creek area of the Krassel Ranger District. Compl. ¶ 24 (Docket No. 1). This area is referred to as "MA-13" in the Record of Decision. Plaintiffs brought eight causes of action against Defendants but withdrew without prejudice claims five, seven, and eight pursuant to the parties' stipulation. See Stipulation (Docket No. 25); Order (Docket No. 29).
Plaintiffs' five remaining claims are as follows. Plaintiffs claim that Defendants failed to follow the procedural requirements of NEPA (1) by failing to adequately describe the "no action" alternative during the rulemaking process, by which Plaintiffs mean that Defendants failed to describe ownership of existing roads in the affected area (Claim 1); (2) by failing to adequately consider the mining and associated economic impacts of the proposed rule (Claims 2 and 3); (3) by failing to notify Plaintiffs of the proposed action (Claim 4); and (4) by failing to ascertain and describe roads protected as rights of way under Revised Statute § 2477, codified at 43 U.S.C. § 932 (Claim 6). Plaintiffs
Plaintiffs assert federal subject matter jurisdiction, arising under NEPA, 42 U.S.C. §§ 4321-4370h, and the NFMA, 16 U.S.C. §§ 1600-1614. Compl. ¶ 14. Plaintiffs allege that Defendants violated various NEPA and NFMA provisions and implementing regulations. See id. ¶¶ 78-81, 108-10, 119, 121, 130, 144, and 146. For claims one through four and six, Plaintiffs also allege that Defendants violated the Administrative Procedure Act ("APA"), 5 U.S.C. § 706(2)(A) and (2)(D). Id. ¶¶ 104-05, 126-27, 140-41, 158-59.
Defendants move to dismiss for lack of subject matter jurisdiction and argue that Plaintiffs lack standing to file a NEPA action because Plaintiffs' alleged harm is purely economic and therefore not within the environmental zone of interests protected by NEPA.
In addition to Defendants' motions, the Court will also consider Valley County's motion to intervene in Plaintiffs' case. See Motion to Intervene (Docket No. 13). Like Plaintiffs, Valley County asserts federal subject matter jurisdiction based on NEPA and the NFMA and alleges a procedural injury related to recreational, aesthetic, and other interests on behalf of its citizens. Valley County also claims an ownership interest in some of the roads affected by the Travel Management Rule and argues that this ownership interest confers standing.
Valley County initially proposed to bring seven claims against Defendants but will voluntarily withdraw claims four, six, and seven if this Court allows Valley County to intervene. See Valley County's Reply, at 6 (Docket No. 27). Although the stipulation between Plaintiffs and Defendants did not affect Valley County's proposed intervention, Valley County's withdrawn claims parallel those withdrawn by the parties' stipulation. Of Valley County's remaining causes of action, claims one through three are the same claims that Plaintiffs asserted as claims one through three. See Complaint in Intervention, ¶¶ 17-19 (Docket No. 13-1). Claims one through three allege that Defendants failed to adequately describe the no action alternative and failed to consider mining and economic impacts associated with the Travel Management Rule. See id. Claim five in Valley County's proposed Complaint, which is identical to Plaintiffs' original claim six, alleges that the Record of Decision underlying the Travel Management Rule failed to adequately describe possible R.S. 2477 roads and the costs and benefits to quieting title to R.S. 2477 roads. Id. ¶ 21.
Pursuant to Federal Rule of Civil Procedure 12(b)(1), a party may ask the court to dismiss for lack of subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1). Moreover, subject matter jurisdiction is a "threshold matter," which a court must determine before proceeding to the merits
NEPA does not provide for private rights of action, but a plaintiff may challenge an agency action under the Administrative Procedure Act ("APA"). The APA provides statutory standing to a "person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of the relevant statute." 5 U.S.C. § 702. To bring an action under the APA, a plaintiff must demonstrate both constitutional and prudential standing. Nat'l Credit Union Admin. v. First Nat'l Bank & Trust Co., 522 U.S. 479, 488, 118 S.Ct. 927, 140 L.Ed.2d 1 (1998) (citation omitted).
In order to have prudential standing under the APA, "`the interest sought to be protected by the complainant [must be] arguably within the zone of interests to be protected or regulated by the statute . . . in question.'" Id. (quoting Ass'n of Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150, 152, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970)). The purpose of the zone of interests test is "to exclude those plaintiffs whose suits are more likely to frustrate than to further statutory objectives." Clarke v. Secs. Indus. Ass'n, 479 U.S. 388, 397 n. 12, 107 S.Ct. 750, 93 L.Ed.2d 757 (1987). A plaintiff's asserted interest does not meet the zone of interests test "`if the plaintiff's interests are. . . marginally related to or inconsistent with the purposes implicit in the statute.'" Id. at 399, 107 S.Ct. 750. However, "`no indication of congressional purpose to benefit the would-be plaintiff'" need exist. Id. at 399-400, 107 S.Ct. 750.
The party asserting "federal jurisdiction bears the burden of establishing [the standing] elements." Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). Moreover, the plaintiff must support each element of standing "with the manner and degree of evidence required at the successive stages of the litigation." Id.
Defendants argue that Plaintiffs' asserted claims do not fall with NEPA or the NFMA's zone of interests because Plaintiffs assert purely economic interests. The Court agrees.
NEPA does not impose substantive requirements but instead mandates a process that the agency must follow. NEPA was enacted in order "to promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man." 42 U.S.C. § 4321, NEPA § 101. NEPA requires a federal agency to prepare a "detailed statement" on the environmental impact of a proposed rule if that rule is a "major Federal action[] significantly affecting the quality of the human environment." 42 U.S.C. § 4332(2)(C), NEPA § 102.
In a NEPA action, the zone of interests protected is environmental. Nuclear Info. & Res. Serv. v. Nuclear Regulatory Comm'n, 457 F.3d 941, 950 (9th Cir. 2006). A plaintiff asserting "purely economic injuries does not have standing to challenge an agency action under NEPA." Nev. Land Action Ass'n v. United States Forest Serv., 8 F.3d 713, 716 (9th Cir.1993) (citations omitted); id. ("The purpose of NEPA is to protect the environment, not
In the context of an Endangered Species Act case, the Supreme Court held that the zone of interests test is "determined not by reference to the overall purpose of the Act in question . . . but by reference to the particular provision of law upon which the plaintiff relies." Bennett v. Spear, 520 U.S. 154, 175-76, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997). Plaintiffs correctly point out that post-Bennett, a court is required to interpret NEPA's zone of interests by reference to particular provisions in the statute. Plaintiffs appear to argue that interpreting specific NEPA provisions, rather than NEPA as a whole, may expand or change the zone of interests protected by NEPA to include solely economic injuries caused by an environmental regulation. The Ninth Circuit, however, rejected this argument in Ashley Creek Phosphate Co. v. Norton, 420 F.3d 934 (9th Cir.2005). In Ashley Creek, the Ninth Circuit explicitly held that § 102, which requires the preparation of environmental impact statements, did not protect "purely economic interests" and that § 102 could not be "severed from NEPA's overarching purpose" of protecting the environment. 420 F.3d at 942.
Here, Plaintiffs assert federal subject matter jurisdiction arising from NEPA, specifically 42 U.S.C. § 4332, NEPA § 102, which requires each federal agency to prepare an environmental impact statement. In order to meet the zone of interests requirement, Plaintiffs must show that their interest is environmental or that they have suffered an economic injury that is related to an environmental injury. See Ranchers Cattlemen, 415 F.3d at 1103.
Plaintiffs have not linked their pecuniary interest in mineral resource development to the physical environment or to an environmental interest contemplated by NEPA. See id. Rather, Plaintiffs' injury is the inability to freely travel a road or roads that Plaintiffs wish to travel to access mineral resource development sites. See Plaintiffs' Combined Response, at 10 (Docket No. 26). Contrary to NEPA's environmental purpose, Plaintiffs' access on these roads would degrade the environment, not protect the environment.
Plaintiffs assert that their mining and resource development interests are completed "in a fashion that minimizes and/or mitigates and remediates environmental impact and stimulates human welfare through economic development." Compl. ¶ 22. This only demonstrates the manner in which Plaintiffs operate their business and not whether Plaintiffs' interests also
Plaintiffs also assert that the owners of the joint venture "appreciate the environmental, historical and cultural values of lands and historic sites" affected by the decision and "derive intrinsic enjoyment from their use of the roads." Id. ¶¶ 26-27. The Court agrees that the owners might have these interests. The owners, however, are not suing in their individual capacities nor are Plaintiffs asserting organizational standing on behalf of these interests. It is hard to see how mining and resource development corporations can "appreciate environmental values" or "derive intrinsic enjoyment from their use of the roads." More importantly, the promotion of either of these asserted interests is not part of the Plaintiffs' admitted interest in mineral resource development.
The Court therefore finds that the injury asserted as the basis of claims one through four and claim six does not fall within the environmental zone of interests protected by NEPA.
The NFMA provides for the management of national forests and requires the USFS to balance the demands on national forests by creating forest management plans. 16 U.S.C. § 1604(a). Although case law on the NFMA is sparse, the zone of interests protected by the NFMA is identifiable from the statute, which lays out "the goals" of creating a forest management plan. Id. § 1604(g)(3). The statute specifies the consideration and protection of the following interests: recreational use, environmental preservation, and ensuring the continued diversity of plant and animal communities. Id. § 1604(g)(3)(A)-(B). The other interests specified in the statute are unimportant here.
In this case, the only relevant interest Plaintiffs could assert is environmental preservation. For the reasons discussed above, Plaintiffs' asserted injury is not related to environmental preservation. See id. The Court therefore finds that claims two and four fall outside the zone of interests protected by the NFMA.
Federal Rule of Civil Procedure 24 allows an applicant to intervene either as of right or permissively. Fed. R. Civ. P. 24. An applicant may intervene as of right if the applicant meets four requirements: (1) "the applicant must timely move to intervene"; (2) "the applicant must have a significantly protectable interest related to the property . . . that is the subject of the action"; (3) the applicant must prove that "the disposition of the action may impair or impede" the applicant's ability to protect that interest; and (4) "the applicant's interest must not be adequately represented by existing parties." Arakaki v. Cayetano, 324 F.3d 1078, 1083 (9th Cir.2003) (citation omitted); see Fed. R. Civ. P. 24(a)(2).
A court may also permit a party to intervene if an applicant "has a claim or defense that shares with the main action a common question of law or fact." Fed. R. Civ. P. 24(b)(1)(A)-(B). An applicant must meet three requirements:
(1) jurisdiction independent of the original parties; (2) a timely filed motion; and (3) a claim or defense that shares a common question of law or fact with the main action. See Northwest Forest Res. Council v. Glickman, 82 F.3d 825, 839 (9th Cir. 1996) (citation omitted). Valley County meets requirements two and three for permissive intervention because Valley County filed a timely motion to intervene and asserts claims similar to those Plaintiffs asserted. See id. (citation omitted).
Defendants argue that the Court lacks jurisdiction over Valley County's claims. Specifically, they contend that Valley County lacks standing to proceed with this case because it has not suffered an injury in fact and that its injury does not fall within the zone of interests protected by NEPA and the NFMA.
Pursuant to Article III's case and controversy limitation of federal court jurisdiction, a plaintiff must demonstrate constitutional standing to bring a claim in federal court. U.S. Const., art. III, § 1; see Allen v. Wright, 468 U.S. 737, 750-51, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984) (citations omitted). A plaintiff meets constitutional standing requirements if the Plaintiff shows an injury in fact, causation, and redressability. Lujan, 504 U.S. at 560, 112 S.Ct. 2130. To assert a procedural injury in fact, a plaintiff must allege that "(1) the [agency] violated certain procedural rules; (2) these rules protect [the plaintiff's] concrete interests; and (3) it is reasonably probable that the challenged action will threaten their concrete interests." Citizens for Better Forestry v. United States Dep't of Agric., 341 F.3d 961, 969-70 (9th Cir.2003). A plaintiff meets the concrete interest requirement if "a `geographic nexus' [exists] between the individual asserting the claim and the location suffering an environmental impact." Cantrell v. City of Long Beach, 241 F.3d 674, 679 (9th Cir.2001) (citation omitted).
Valley County has demonstrated a geographic nexus because the affected roads are within Valley County. See id. The
A plaintiff must also meet the requirements for prudential standing, namely, that the plaintiff's interests fall within the governing statute's zone of interests. Nat'l Credit Union Admin., 522 U.S. at 488, 118 S.Ct. 927. In order to meet the zone of interests requirement with regard to NEPA, Valley County must show that its interest is environmental or that their economic injury is related to a NEPA-protected injury. See Ranchers Cattlemen, 415 F.3d at 1103. Additionally, Valley County's NEPA action may proceed if Valley County asserts an interest in "recreational use and aesthetic enjoyment" in the affected area. See Lujan, 497 U.S. at 886, 110 S.Ct. 3177.
Valley County alleges various interests on behalf of its citizens, one of which is to protect the rights of those citizens who "derive intrinsic enjoyment from their use of these roads." Compl. in Intervention, ¶ 8 (Docket No. 13-1). This asserted interest falls within the "aesthetic enjoyment" zone of interest protected by NEPA and is therefore sufficient to confer standing upon Valley County to proceed in this action. See Lujan, 497 U.S. at 886, 110 S.Ct. 3177. Valley County's citizens may also "derive intrinsic enjoyment from the use of these roads" in pursuit of recreational uses, which also falls within the zone of interests protected by NEPA. See id.
Defendants argue that Lujan v. Defenders of Wildlife ("Defenders"), 504 U.S. 555, 565-66, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992), requires Valley County to identify specific roads affected by the Travel Management Rule that fall within the zone of interests. It is true that Defenders rejected various standing arguments premised on hypothetical future injuries or on environmental injuries loosely related to the regulated area. See Defenders, 504 U.S. at 565-66, 112 S.Ct. 2130 ("[A] plaintiff claiming injury from environmental damage must use the area affected by the challenged activity and not an area roughly `in the vicinity of it.'" (citing Lujan, 497 U.S. at 887-89, 110 S.Ct. 3177)). The Court is not persuaded by Defendants' argument. Valley County may not have identified affected roads by name, but Valley County clearly limits its claims to those roads affected by the Travel Management Rule. In contrast to the Plaintiffs in Defenders, Valley County does not seek to redress an injury that falls somewhere outside the regulated area. See Defenders, 504 U.S. at 565-66, 112 S.Ct. 2130.
The Court therefore finds that Valley County's alleged injury falls within the zone of interests protected by NEPA.
To meet the zone of interests requirement with respect to the NFMA, Valley County must show that its interest is in protecting recreational use, environmental preservation, or ensuring the continued diversity of plant and animal communities. 16 U.S.C. § 1604(g)(3)(B). For the reasons discussed above, the Court finds that Valley County's asserted interest is related to recreational use and therefore falls within the zone of interests protected by the NFMA.
For the reasons discussed above, the Court finds that Valley County has standing to proceed with this action.
If an intervenor cannot demonstrate that this Court has jurisdiction, the Court may deny intervention. See EEOC v. Nevada Resort Ass'n, 792 F.2d 882, 886
Defendants argue that claim one is moot. Valley County alleges a procedural violation of NEPA and argues that the agency's Record of Decision underlying the Travel Management Rule is invalid because it fails to adequately describe the no action alternative. Specifically, Valley County argues that the agency did not describe ownership of existing roads and therefore did not fully understand the implications of changing access to the roads affected by the Travel Management Rule.
A court lacks jurisdiction to hear moot claims. Feldman v. Bomar, 518 F.3d 637, 642 (9th Cir.2008) (citation omitted). "The burden of demonstrating mootness is a heavy one." Nw. Envtl. Def. Ctr. v. Gordon, 849 F.2d 1241, 1244 (9th Cir. 1988). "The basic question in determining mootness is whether there is a present controversy as to which effective relief can be granted." Id. "As long as effective relief may still be available to counteract the effects of the violation, the controversy remains live and present." Id. at 1245.
In this case, if Valley County prevails on claim one, the Court could offer effective relief by ordering the agency to restart the rulemaking process and adequately describe the no action alternative. See Gordon, 849 F.2d at 1244-45. The Court therefore finds that claim one is not moot and may proceed. See id.
In claims two and three, Plaintiffs allege that Defendants did not adequately consider mining and the economic impact of the proposed rule. Defendants argue that these claims are not ripe.
A plaintiff, or, in this case, the intervenor, bears the burden of establishing that an issue is ripe for judicial review. A ripeness inquiry requires this Court "to evaluate both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration." Abbott Laboratories v. Gardner, 387 U.S. 136, 149, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967), abrogated on other grounds by Califano v. Sanders, 430 U.S. 99, 104-05, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977). Ordinarily, a challenge to an agency regulation is not ripe until "some concrete action applying the regulation to the claimant's situation . . . harms or threatens to harm him." Lujan, 497 U.S. at 891, 110 S.Ct. 3177.
In many cases, ripeness "coincides squarely with standing's injury in fact prong" and "can be characterized as standing on a timeline." Thomas v. Anchorage Equal Rights Comm'n, 220 F.3d 1134, 1138 (9th Cir.2000). To meet the injury in fact requirement, a plaintiff asserting a purely procedural interest must demonstrate "a `geographic nexus' between the individual asserting the claim and the location suffering an environmental impact." Cantrell, 241 F.3d at 679.
To the extent that Valley County alleges a purely procedural interest with respect to claims two and three, Valley County meets the geographic nexus test because the roads affected by the Travel Management Rule are at least partially within Valley County. See id. To the extent that Valley County alleges other non-procedural harms in claims two and three, Valley County has not demonstrated ripeness.
In claim five, Plaintiffs allege that the Record of Decision supporting the Travel Management Rule failed to adequately describe possible R.S. 2477 roads and the costs and benefits to determining the existence and ownership of R.S. 2477 roads. Complaint in Intervention, ¶ 21 (Docket No. 13-1). Defendants argue that this Court must determine ownership of the affected roads to decide claim five, and that this Court must do so pursuant to the Quiet Title Act ("QTA").
Revised Statute § 2477 ("R.S.2477") once provided that "the right of way for construction of highways over public lands, not reserved for public uses, is hereby granted." 43 U.S.C. § 932 (1970), repealed by Federal Land Policy Management Act of 1976, Pub. L. No. 94-579, § 706(a), 90 Stat. 2743 (1976). Congress repealed the act in 1976 but preserved any rights of way that existed prior to the date of repeal. See 43 U.S.C. § 1769(a). Roads protected as rights of way pursuant to R.S. 2477 are commonly called R.S. 2477 roads.
The Court is not persuaded that determining ownership of the affected roads is necessary to adjudicating Valley County's claims. Valley County disclaims any intention of having this Court conclusively adjudicate ownership of these roads. The Court has no reason to doubt this assertion. Further, as discussed above, to the extent that Valley County is alleging procedural violations of NEPA on behalf of its citizens, this Court has jurisdiction to hear those claims. The Court therefore finds that it has jurisdiction to hear claim five.
Defendants argue that Valley County has not exhausted claims one through three and claim five. Pursuant to the APA, a court may review agency action that is "final." 5 U.S.C. § 704. In addition, a party seeking review of a final agency action must also exhaust administrative remedies if expressly required by the statute or an agency rule. See Clouser v. Espy, 42 F.3d 1522, 1532 (9th Cir.1994) (citation omitted). A party meets the exhaustion requirement if the "`claims raised at the administrative appeal and in the federal complaint [are] so similar that the district court can ascertain that the agency was on notice of, and had an opportunity to consider and decide, the same claims now raised in federal court.'" Native Ecosys. Council v. Dombeck, 304 F.3d 886, 899 (9th Cir.2002) (quoting Kleissler v. United States Forest Serv., 183 F.3d 196, 202 (3d Cir.1999)). A party does not need to use "precise legal formulations" in the administrative process; the claims a party raises to the agency need only alert "the decision maker to the problem in general terms."
Valley County submitted two documents during rulemaking: a comment letter on July 26, 2004 and an appeal of the Travel Management Rule on November 22, 2008. See Opposition to Motion to Intervene, Exhs. F-G (Docket Nos. 20-1-20-2). The Court will only consider whether the appeal letter sufficiently raises the claims Valley County would like to assert here. Although the Ninth Circuit has not explicitly decided whether a party's comment letter is part of an administrative appeal, Ninth Circuit cases assume that exhaustion requirements begin with a party's administrative appeal. See, e.g., Native Ecosys., 304 F.3d at 898-900 (describing exhaustion during the administrative appeals process and addressing only the party's administrative appeal); Idaho Sporting Cong., 305 F.3d at 965-66 (same).
Defendants argue that Valley County did not mention NEPA, the EIS, or R.S. 2477 rights of way and that Valley County's claims are therefore not exhausted.
In its appeal letter, Valley County clearly identified the issue of the possible adverse impact that the Travel Management Rule could have on mining and the local economy, thereby putting the agency on notice of claims two and three in Valley County's proposed complaint. See Native Ecosys., 304 F.3d at 899. Valley County also sufficiently challenged Defendants' alleged failure to describe the existing status of possible R.S. 2477 roads and therefore put the agency on notice of claims one and five in Valley County's proposed complaint. See id. The Court therefore finds that Valley County sufficiently raised claims one through three in its administrative appeal and has exhausted these claims. See id.
Lastly, even if an applicant has proven independent jurisdiction and therefore meets the requirements for permissive intervention, a court has discretion to deny permissive intervention. Donnelly v. Glickman, 159 F.3d 405, 412 (9th Cir.1998) (citations omitted). A court must consider whether "intervention will unduly delay the main action or will unfairly prejudice the existing parties." Id. (citations omitted). As Valley County's motion to intervene was timely filed and, as a result of this Court's dismissal of Plaintiffs' complaint, will not unfairly prejudice any party,
IT IS THEREFORE ORDERED that Defendants' Motion to Dismiss for Lack of Subject Matter Jurisdiction (Docket No. 18) is GRANTED;
Defendants' Motion to Dismiss for Failure to State a Claim (Docket No. 19) is DENIED as moot; and
Valley County's Motion to Intervene (Docket No. 13) is GRANTED.
Pending before the Court in the above-entitled matter is Plaintiffs Motion to Alter or Amend Order and Judgment. The parties have filed their briefing and matter is ripe for the Court's consideration. Having fully reviewed the record herein, the Court finds that the facts and legal arguments are adequately presented in the briefs and record. Accordingly, in the interest of avoiding further delay, and because the court conclusively finds that the decisional process would not be significantly aided by oral argument, this motion shall be decided on the record before this Court without oral argument.
Plaintiff, American Independence Mines and Minerals Company, is an Idaho joint venture composed of Plaintiffs Ivy Minerals, Inc. and Walker Mining Company (collectively the "Plaintiffs"). (Dkt. No. 1.) Plaintiffs state they have been involved in efforts to develop the mineral resources of the Payette National Forest (PNF) in a fashion that minimizes and/or mitigates and remediates environmental impact and stimulates human welfare through economic development. (Dkt. No. 1.) To this end, Plaintiffs claim they have undertaken studies, own property, and are actively engaged in mining, exploration, and environmental assessment activities in the Big Creek area of the Krassel Ranger District in the PNF, known as "MA-13." (Dkt. No. 1.) Such activities, Plaintiffs allege, require the use of "long-established roads, some of which are R.S. 2477 roads, to access existing mining claims and for exploration for mineral deposits which are locatable under the General Mining Act of 1872. . . ." (Dkt. No. 1.)
On November 9, 2005, the United States Department of Agriculture (USDA) and the Forest Service (FS) enacted the Travel Management Rule requiring National Forests to designate a system of roads, trails, and areas that are open to motor vehicle use and prohibits the unauthorized use of motor vehicles off the designated system. See 70 Fed.Reg. 68,264; see also 70 Fed. Reg. 68,264-68,291 (Nov. 9, 2005). On October 3, 2008, following an extended public comment period, the USDA and FS issued its Record of Decision (ROD) applying the Travel Management Rule to the McCall and Kassel Ranger Districts in the PNF. Plaintiffs oppose the ROD's application of the Travel Management Rule arguing it has adversely affected them, and the public, by closing roads within the PNF that
Following the denial of their appeal, Plaintiffs initiated this action in September of 2009 challenging: 1) November 9, 2005 Travel Management Plan; 2) October 3, 2008 ROD; and 3) January 8, 2009 decision denying Plaintiffs' appeal. (Dkt. No. 1.) Plaintiffs' claims allege violations of NEPA and the National Forest Management Act (NFMA). (Dkt. No. 1.) Defendants filed a Motion to Dismiss arguing the Plaintiffs lacked standing to file a NEPA action because their alleged harm is purely economic and, therefore, not within the environmental zone of interests protected by NEPA. (Dkt. No. 18.) Alternatively, Defendants also moved to dismiss for failure to state a claim. (Dkt. No. 19.)
On May 12, 2010 the Court entered an Order and Judgement granting the Defendants' Motion to Dismiss for lack of subject matter jurisdiction and dismissing the case in its entirety. (Dkt. No. 31, 32.)
Motions to alter or amend are governed by Federal Rule of Civil Procedure 59(e). Sierra On-Line, Inc. v. Phoenix Software, Inc., 739 F.2d 1415, 1419 (9th Cir.1984). The scope and purpose of such motions have been analyzed as follows:
Federal Deposit Insurance Corp. v. Meyer, 781 F.2d 1260, 1268 (7th Cir.1986) (citations omitted).
Illinois Central Gulf Railroad Co. v. Tabor Grain Co., 488 F.Supp. 110, 122 (N.D.Ill.1980). Where Rule 59(e) motions
The Motion asks that the Order and Judgment be altered or amended to prevent manifest injustice and correct clear legal error; challenging the Court's determination that the Plaintiffs' claims assert purely economic interests outside of both NEPA's and NFMA's the zones of interest. (Dkt. No. 33, 34.) The Court erred, Plaintiffs argue, in its application of the Rule 12(b)(1) standard by failing to draw all reasonable inferences in their favor. When properly construed in their favor, Plaintiffs argue, their claims allege injuries falling within the zone of interests sufficient for standing. Plaintiffs focus on the following language from the Court's Order:
(Dkt. No. 34, p. 1 quoting Dkt. No. 35, p. 11.) In particular, Plaintiffs challenge the Court's statement that "Plaintiffs' access on these roads would degrade the environment, not protect the environment." (Dkt. No. 33, p. 2.) This finding, Plaintiffs contend, is not supported in the record. Plaintiffs now ask the Court to amend its Order and find that "Plaintiffs have linked their pecuniary interest in mineral resource development to the physical environment or to an environmental interest contemplated by NEPA." (Dkt. No. 33, p. 2.) Alternatively, Plaintiffs seek leave to amend their complaint and/or present evidence concerning the Court's finding regarding the use of these roads on the environment. (Dkt. No. 34, p. 6.)
A defendant may move to dismiss a complaint for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1) in one of two ways. See Thornhill Publ'g Co., Inc. v. General Tel. & Elec. Corp., 594 F.2d 730, 733 (9th Cir.1979). The attack may be a "facial" one where the defendant attacks the sufficiency of the allegations supporting subject matter jurisdiction. Id. On the other hand, the defendant may launch a
However, "[t]he relatively expansive standards of a 12(b)(1) motion are not appropriate for determining jurisdiction... where issues of jurisdiction and substance are intertwined. A court may not resolve genuinely disputed facts where `the question of jurisdiction is dependent on the resolution of factual issues going to the merits.'" Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir.1987) (quoting Augustine, 704 F.2d at 1077). In such a case, "the jurisdictional determination should await a determination of the relevant facts on either a motion going to the merits or at trial." Augustine, 704 F.2d at 1077 (citing Thornhill, 594 F.2d at 733-35). This case does not require the Court to resolve substantive issues in determining whether jurisdiction is proper. Applying the above standard to this case, the Court finds as follows.
The Complaint filed in this action is 33 pages long and accompanied by 39 pages of exhibits. (Dkt. No. 1.) It alleges five NEPA and NFMA based claims applicable here: failure to adequately describe the "no action" alternative; failure to analyze impact on mining; failure to analyze economic impacts; failure to notify Plaintiffs of proposed action; and failure to evaluate the closure of R.S. 2477 roads. (Dkt. No. 1.)
The zone of interests applicable here are found in NEPA.
NEPA's zone of interests do not, however, include solely or purely economic injuries. See Ashley Creek, 420 F.3d at 941. "[A] plaintiff who asserts purely economic injuries does not have standing to challenge an agency action under NEPA." Silver Dollar, 2009 WL 166924, * 1 (quoting Nev. Land Action Ass'n v. United States Forest Serv., 8 F.3d 713, 716 (9th Cir. 1993)). However, standing to sue under NEPA may exist even where the party's interest is primarily economic so long as the party also alleges an "environmental interest or economic injuries that are `causally related to an act within NEPA's embrace.'" Ranchers Cattlemen Action Legal Fund v. USDA, 415 F.3d 1078, 1103 (9th Cir.2005) (citation omitted). Thus, Plaintiffs' in this case must demonstrate a link between their economic interests and NEPA's environmental zone of interests. The Plaintiffs have failed to do so.
The Court's prior Order concluded "Plaintiffs have not linked their pecuniary interest in mineral resource development to the physical environment or to an environmental interest contemplated by NEPA. Rather, Plaintiffs' injury is the inability to freely travel a road or roads that Plaintiffs wish to travel to access mineral resource development sites." (Dkt. No. 35, p. 12.) In reaching this conclusion, the Court considered the allegations raised in the Complaint as well as the arguments made in the Plaintiffs' response to the Motion to Dismiss and construed the allegations in the light most favorable to the Plaintiffs.
The Complaint's principle allegations challenge that the Defendants failed to compile an accurate assessment of the existing road network so as to properly analyze the status quo in relation to the impact of the road closures in the alternatives and failed to recognize and analyze the impact on mineral exploration and the economy. (Dkt. No. 1.) Paragraphs 30 and 31 of the Complaint state:
(Dkt. No. 1, ¶¶ 30, 31.)
The Court's prior Order considered the Plaintiffs' arguments pointing to their efforts at remediation, studies, and assessment. The Court concluded such tasks were not environmental in nature but were completed in pursuit of Plaintiffs' economic interests in mineral resource development and, therefore, do not fall within the environmental zone of interests. (Dkt. No. 35, p. 13-15.) Though Plaintiffs argue otherwise, the Complaint's allegations center upon activities done for the purposes of furthering Plaintiffs' mining activities. Regardless of any findings concerning mining's impact on the environment,
In this Motion, Plaintiffs bring a new basis in support of their argument that their claims are linked to environmental interests sufficient for standing purposes. Plaintiffs now argue their interest in keeping the roads open and maintained for their use in mining exploration is linked to NEPA's objectives because closure of roads may increase sediment load, thereby harming the environment. (Dkt. Nos. 34, 38.) This argument was not previously raised by the Plaintiffs in their initial briefing on the Motion to Dismiss. (Dkt. No. 26.) There, Plaintiffs' arguments centered on compliance with NEPA's requirements,
Raising this argument at this stage in a motion to alter or amend is outside the scope and purpose of such motions. See Fed.R.Civ.P. 59(e). A Rule 59(e) motion may not be used to raise arguments or present evidence for the first time when they could reasonably have been raised earlier in the litigation. See 389 Orange St. Partners v. Arnold, 179 F.3d 656, 665 (9th Cir.1999); Kona Enters., Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir.2000). Accordingly, the Court denies the motion on this basis.
Even considering the Plaintiffs' new sediment load argument, the Court finds the Plaintiffs have failed to link their economic interest in mineral resource exploration and development to NEPA's zone of interests. The Court has again
Plaintiffs point to paragraph 22 of their Complaint as evidence of "linkage between the admitted economic interest of [Plaintiffs] and the environmental interests contemplated by NEPA." (Dkt. No. 38, p. 1.) Paragraph 22 of the Complaint states:
(Dkt. No. 1, ¶ 22.) Drawing all reasonable inferences in their favor, Plaintiffs contend this demonstrates the Court erred in finding "Plaintiffs' access on these roads would degrade the environment, not protect the environment." (Dkt. No. 38, p. 2 quoting Dkt. No. 35, p. 12.) The remediation of environmental impacts referred to in Paragraph 22, Plaintiffs argue, are not limited to mining activities but, instead, their remediation efforts include maintenance of roads for use by themselves and the public in order to reduce the sediment load.
As the Court stated in its prior Order, Paragraph 22's reference to the Plaintiffs' efforts at remediating, minimizing, and mitigating environmental impact are all done in an effort to develop the mineral resources of the PNF. (Dkt. No. 35, pp. 12-13.) The language of Paragraph 22 specifically states the Plaintiffs' activities are "in efforts to develop the mineral resources...." (Dkt. No. 1, ¶ 22.) Likewise, the environmental and geophysical studies referred to in Paragraph 23 of the Complaint were done in "furtherance of its efforts to develop the mineral resources of the PNF. (Dkt. No. 1, ¶ 23.) Even construing these allegations in favor of the Plaintiffs, the fact remains that the interests alleged in the Complaint are not environmental and not linked to NEPA's zone of interests. Both the studies and assessment activities were done in furtherance of and in efforts to develop mineral resources which are unquestionably economic. The paragraphs relate to the manner in which Plaintiffs pursue their economic mining interests. (Dkt. No. 35, p. 13.)
Plaintiffs also attempt to liken themselves to Valley County whom this Court allowed to intervene in this matter. The Court disagrees. Valley County's interests fall squarely within the zone of interest protected by NEPA and NFMA; intrinsic and aesthetic enjoyment from and recreational use of the roads. (Dkt. No. 35, p. 18-20.) Plaintiffs, on the other hand, do not allege interests akin to Valley County's. As discussed above, it is clear from the Complaint that the Plaintiffs interests in use and maintenance of the roads begin and end with their pecuniary economic purpose.
The Plaintiffs also object to the particular language from the Court's prior order
Plaintiffs also request an opportunity to amend their complaint and/or to present further evidence. Federal Rule of Civil Procedure 15(a) provides that after responsive pleading has been filed, a party may amend their pleading only by leave of the court or written consent of the adverse party. Such leave "shall be freely given when justice so requires." Fed.R.Civ.P. 15(a). "Liberality in granting a plaintiff leave to amend is subject to the qualification that the amendment not cause undue prejudice to the defendant, is not sought in bad faith, and is not futile. Additionally, the district court may consider the factor of undue delay." Bowles v. Reade, 198 F.3d 752, 757-58 (9th Cir.1999) (citation omitted). Having reviewed the record in this matter, the Court denies the request to file an amended complaint.
Plaintiffs seek leave to amend their complaint and offer additional evidence in support of their allegation that the ROD's proposed closure of the roads will harm the environment by increasing sediment load. This, they believe, will satisfy the standing requirement of a link between their interests and NEPA's zone of interests. Such amendment would be futile. This argument fails to show Plaintiffs' economic interests and the environmental effects of the proposed action are intertwined. Even if there is evidence of increased sediment loads resulting from the closure of roads, the fact remains that Plaintiffs' interest here is economic. As discussed above, Plaintiffs desire to keep roads open is driven by their economic interest in exploring and developing mining opportunities in the PNF.
The Plaintiffs' allegations, even when construed in their favor, fail to fall within NEPA's zone of interests. As stated in the Court's prior Order, Plaintiffs interests asserted in this action are not within the zone of interests of these statutes as they are raised solely for economic interests. Again, the Plaintiffs' interest in the maintenance and use of the roads at issue arise from their economic mining interests. The interests as alleged in the Complaint here are not intertwined with the environment.
Furthermore, it does not appear Plaintiffs previously raised the argument regarding increased sediment load due to road closures as required by the APA. "In order to seek judicial relief of a NEPA
Attached to the Complaint are the Plaintiffs various comments presented to the Defendants during the comment period. (Dkt. No. 1, Ex. 1.) No where in them do the Plaintiffs present the sediment load argument or materials that they now seek to present to the Court.
Though it may be that the sediment load argument was raised by another entity, it is unclear whether that happened in this case. See Id. ("For NEPA challenges, entities may challenge an issue they failed to address if someone else brought `sufficient attention to the issue to stimulate the agency's attention and consideration of the issue during the environmental analysis comment process.'") (citations omitted); see also Benton County v. United States Dept. of Energy, 256 F.Supp.2d 1195, 1198-99 (E.D.Wash.2003) ("a plaintiff, or another, must bring sufficient attention to an issue to stimulate the agency's attention and consideration of the issue during the environmental analysis comment process. A failure to do so bars judicial review.") (citations omitted). Regardless of whether it was raised previously, the Court finds the sediment load argument does not establish a link between the Plaintiffs' economic interests and NEPA's zone of interests sufficient for standing purposes. Accordingly, the request to file an amended complaint and/or additional evidence is denied.
NOW THEREFORE IT IS HEREBY ORDERED that Plaintiff's Motion to Reconsider and/or Alter or Amend Judgment (Dkt. No. 33) is
