OTTER et al v. JEWELL et al

Filing 67

MEMORANDUM OPINION. Signed by Judge Emmet G. Sullivan on 1/5/16. (mac)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
___________________________________
)
C.L. “BUTCH” OTTER, in his official)
Capacity as Governor of the State )
of Idaho, et al.,
)
)
Plaintiffs,
)
)
v.
) Case No. 15-cv-1566 (EGS)
)
S.M.R. JEWELL, in her official
)
Capacity as Secretary of the
)
United States Department of the
)
Interior, et al.,
)
)
Federal Defendants )
)
THE WILDERNESS SOCIETY, et al.,
)
)
Intervenor-Defendants
)
___________________________________)

MEMORANDUM OPINION
Plaintiffs Butch Otter, in his official capacity as the
Governor of Idaho, and the Idaho State Legislature, bring this
action pursuant to Section 702 of Administrative Procedure Act
(“APA”), seeking review of certain final agency decisions of the
federal defendants, 1 contending that they are contrary to the

1

The federal defendants are S.M.R. Jewell, in her official
capacity, Secretary, U.S. Department of the Interior; Janice
Schneider, in her official capacity, Assistant Secretary for
Land and Minerals Management; Neil Kornze, in his official
capacity, Director of the Bureau of Land Management; U.S. Bureau
of Land Management; Thomas J. Vilsack, in his official capacity,
Secretary, U.S. Department of Agriculture; Thomas L. Tidwell, in

National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321 et
seq., the Federal Land Policy and Management Act (“FLPMA”), 43
U.S.C. §§ 1701 et seq., and the National Forest Management Act
(“NFMA”), 16 U.S.C. § 1600 et seq. See Compl., ECF No. 1 ¶ 10.
Pending before the Court are the parties’ motion and crossmotions for summary judgment, in which the federal defendants
argue, among other things, that this Court lacks subject matter
jurisdiction because plaintiffs do not have standing to bring
their claims pursuant to Article III of the U.S. Constitution.
Upon consideration of the motion and cross-motions, the
responses and replies thereto, the applicable law, and for the
reasons stated below, the Court concludes that it lacks subject
matter jurisdiction over plaintiffs’ claims, and therefore
cannot reach the merits of those claims, because plaintiffs have
failed to meet their burden of demonstrating that they have
suffered an injury-in-fact as a result of the agency action. 2
Therefore, plaintiffs’ motion for summary judgment is DENIED,
federal defendants’ cross-motion for summary judgment is

his official capacity, Chief of the U.S. Forest Service; and
United States Forest Service.
2 Even if plaintiffs had demonstrated that they have standing to
bring their claims, their claims are not ripe for review
substantially for the reasons articulated by the federal
defendants.
2

GRANTED, and intervenor-defendants’ cross-motion for summary
judgment is DENIED as moot. 3
I.

BACKGROUND
This case is before this Court as related to the Court-

approved agreements between environmental advocacy groups and
the Fish and Wildlife Service (“FWS”) in 2010 to settle multidistrict litigation. See In re ESA Section 4 Deadline Litig.—MDL
No. 2156, Misc. Action No. 10-377 (D.D.C.2010). The agreements
require FWS to determine by certain deadlines whether to list a
number of species as endangered or threatened under the
Endangered Species Act (“ESA”), or find that listing these
species is not warranted. Misc. Action No. 10-377, ECF No. 42.
Relevant to the case currently before the Court, FWS was
required to make a listing decision regarding the Sage-Grouse by
September 30, 2015. Misc. Action No. 10-377, ECF No. 56.
In anticipation of the need to make that decision, the
Bureau of Land Management (“BLM”) and the Forest Service
“undertook a land use planning effort of unprecedented scope
[that] was designed to amend or revise the existing regulatory

3Intervenor-defendants

Wilderness Society, National Audubon
Society, National Wildlife Federation, and Earthworks did not
challenge plaintiffs’ Article III Standing, nor did Amicus
Owyhee County, Idaho; Public Lands Council; and National
Cattlemen’s Beef Association address standing. Therefore, the
Court does not reach the arguments on the merits made by those
parties.
3

mechanisms—federal land use plans—to provide enforceable
conservation measures and management objectives to protect and
improve Sage-Grouse habitat.” Federal Defs.’ Combined Mem. in
Supp. of Cross-Mot. for Summ. J., ECF No. 56 at 16-17. The
planning effort, which involved federal land in ten western
states, spanned four years and included the participation of
members of the public and numerous state and federal entities,
including the State of Idaho. Id. at 17; Mem. in Supp. of Mot.
for Prelim. Inj., ECF No. 15-1 at 17-18. Idaho’s participation
included, among other things, the submission of one of the
alternative plans for consideration by BLM and the Forest
Service. Federal Defs.’ Combined Mem. in Supp. of Cross-Mot. for
Summ. J., ECF No. 56 at 19; Mem. in Supp. of Mot. for Prelim.
Inj., ECF No. 15-1 at 18-19, 21-22. That plan was not adopted as
the final agency decision although federal defendants state that
several aspects of the Idaho plan were included in the final
agency decision. Federal Defs.’ Combined Mem. in Supp. of CrossMot. for Summ. J., ECF No. 56 at 25. Plaintiffs ask this Court
to set aside, vacate, and remand the final decision,
specifically the land use plan amendment and supporting
Environmental Impact Statement (“EIS”) for the Idaho and

4

Southwestern Montana sub-region (“IDMT Plan” or “plan”), 4 as
contrary to law.
II.

Standard of Review

“Summary judgment is the proper mechanism for deciding, as a
matter of law, whether an agency action is supported by the
administrative record and consistent with the APA standard of
review, which requires a reviewing court to ‘hold unlawful and
set aside agency action, findings, and conclusions found to be .
. . arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with the law.” UPMC v. Sebelius, 793 F.Supp.2d
62, 67 (D.D.C.2011). Due to the limited role of a court in
reviewing the administrative record, the typical summary
judgment standards set forth in Rule 56(c) are not applicable.
Stuttering Found. of America v. Springer, 498 F.Supp.2d 203, 207
(D.D.C.2007)(internal citation omitted). Rather, “[u]nder the
APA, it is the role of the agency to resolve factual issues to
arrive at a decision that is supported by the administrative
record, whereas ‘the function of the district court is to
determine whether or not as a matter of law the evidence in the
administrative record permitted the agency to make the decision
it did.’” Id. (quoting Occidental Eng’g Co. v. INS, 753 F.2d
766, 769-70 (9th Cir.1985)). A reviewing court will “hold

4

Plaintiffs refer to the final agency decision at issue as the
Idaho Land Use Planning Amendments (“Idaho LUPA”).
5

unlawful and set aside agency action, findings, and conclusions
found to be . . . arbitrary, capricious, an abuse of discretion,
or otherwise not in accordance with the law.” Ludlow v. Mabus,
793 F.Supp.2d 352, 354 (D.D.C.2001) (quoting 5 U.S.C. §
706(2)(A)).
III. Analysis
A. Standing
“Article III of the Constitution limits the jurisdiction of
the federal courts to ‘Cases’ and ‘Controversies.’” Susan B.
Anthony List v. Driehaus, 134 S. Ct. 2334, 2341 (2014) (quoting
U.S. Const., art. III, § 2). “‘One element of the case-orcontroversy requirement’ is that plaintiffs ‘must establish that
they have standing to sue.’” Clapper v. Amnesty Int’l USA, 133
S. Ct. 1138, 1146 (2013) (quoting Raines v. Byrd, 521 U.S. 811,
818 (1997)). The standing requirement “serves to prevent the
judicial process from being used to usurp the powers of the
political branches.” Id. To establish standing, “a plaintiff
must show (1) an ‘injury in fact,’ (2) a sufficient ‘causal
connection between the injury and the conduct complained of,’
and (3) a ‘likel[ihood]’ that the injury ‘will be redressed by a
favorable decision.’” Susan B. Anthony List, 134 S. Ct. at 2341
(quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61
(1992)). The injury-in-fact requirement is only satisfied when
an injury is “‘concrete and particularized’ and ‘actual or
6

imminent, not conjectural or hypothetical.’” Id. (quoting Lujan,
504 U.S. at 560).
“The party invoking federal jurisdiction bears the burden
of establishing these elements.” Lujan, 504 U.S. at 561
(internal citations omitted). “Since they are not mere pleading
requirements but rather an indispensable part of the plaintiff's
case, each element must be supported in the same way as any
other matter on which the plaintiff bears the burden of proof,
i.e., with the manner and degree of evidence required at the
successive stages of the litigation.” Id. “In response to a
summary judgment motion . . . the plaintiff . . . must set forth
by affidavit or other evidence specific facts, Fed.Rule
Civ.Proc. 56(e), which for purposes of the summary judgment
motion will be taken to be true.” Id. (internal quotation marks
omitted). “[A]t summary judgment a court will not ‘presume’ the
missing facts necessary to establish an element of standing.”
Swanson Group Mfg. LLC v. Jewell, 790 F.3d 235, 240
(D.C.Cir.2015) (quoting Lujan v. Nat’l Wildlife Fed’n, 497 U.S.
871, 889 (1990)).
Although “states are ‘entitled to special solicitude in our
standing analysis’ . . . . [they are not] exempt from the burden
of establishing a concrete and particularized injury in fact.”
Coal. for Responsible Regulation Inc. v. EPA, 684 F.3d 102, 148
(D.C.Cir.2012)(quoting Massachusetts v. E.P.A., 549 U.S. 497,
7

522 (2007)); see also State of West Virginia v. U.S. Department
of Health and Human Services, 145 F.Supp.3d 94, 101
(2015)(reasoning that states “too must allege a cognizable
injury-in-fact to establish standing”).
Here, federal defendants dispute that plaintiffs have
satisfied the injury-in-fact requirement necessary to
demonstrate standing. The Court agrees.
1. Plaintiffs have failed to demonstrate that they have
suffered an injury-in-fact as a result of the binding
standards and self-implementing aspects of the IDMT
Plan
In support of their argument that they have standing to
bring their claims, plaintiffs state that the purpose of the
IDMT Plan was to make mandatory, binding changes to land use,
and that as a result of these changes, certain “immediate
decisions” went into effect upon its adoption. Pls.’ Combined
Reply in Supp. of Mot. for Summ. J., ECF No. 58 at 13. These
“immediate decisions” include “allocation of lands as open or
closed for salable mineral sales, lands open with stipulations
for oil and gas leasing, and OHV [Off Highway Vehicle] area
designations.” Id. Plaintiffs then assert that because deviating
from the standards set forth in the IDMT Plan would require a
site-specific forest plan amendment, “there is no legal ability
to change challenged standards in the interim between the
pendency of this action and when a later, site-specific activity

8

is undertaken.” Id. Plaintiffs conclude that they are
challenging binding standards for third-party activity and
assert that federal defendants cannot contend that the plan is
merely a planning level document because of the selfimplementing aspects of the plan. Id. at 14.
Federal defendants reply that they do not dispute that the
plan is intended to be implemented in the future, nor that it
contains binding standards. Federal Defs.’ Reply in Supp. of
Cross-Mot. for Summ. J., ECF No. 62 at 8. That said, federal
defendants assert that until there is a specific implementation
decision, there is no injury to plaintiffs’ claimed interests.
Id. at 9; Federal Defs.’ Combined Mem. in Supp. of Cross-Mot.
for Summ. J., ECF No. 56 at 37 (citing Fed. Forest Res. Coal. v.
Vilsack, 100 F.Supp.3d at 46 for the proposition that “plaintiff
lacks standing when challenged rule or plan does not implement
site-specific decision”). 5 Federal defendants dispute that any of
the “immediate decisions” provide a basis for a cognizable
injury-in-fact, pointing out that plaintiffs “merely speculate
that those immediate decisions will somehow affect revenues owed

5

Plaintiffs distinguish Fed. Forest Res. Coal. v. Vilsack, 100
F.Supp.3d. 121 (D.D.C.2015) from the circumstances in this case
because the binding standards in the IDMF Plan are distinct from
the ‘amalgamation of first principles’ at issue in Fed. Forest
Res. Coal. Pls.’ Combined Reply in Supp. of Mot. for Summ. J.,
ECF No. 58 at 13. However, it is not necessary for the Court to
address this issue because plaintiffs have failed to provide any
facts in support of their injury-in-fact.
9

to the State.” Id. at 9-10. In sum, according to federal
defendants, “[p]laintiffs’ allegations of harm flowing from the
certainty of the plans are unsupported by facts, speculative and
conclusory.” Id.
Plaintiffs bear the burden of demonstrating that they
“suffered an injury in fact—an invasion of a legally protected
interest which is (a) concrete and particularized, and (b)
actual or imminent, not conjectural or hypothetical.” Lujan, 504
U.S. at 561 (internal quotations omitted). At the summary
judgment stage, plaintiffs must “set forth by affidavit or other
evidence specific facts” supporting the alleged injury-in-fact.
Id.(internal quotations omitted). Based on the record before the
Court, plaintiffs have failed to meet this burden because they
set forth no facts at all to support their argument that the
binding standards and self-implementing aspects of the plan have
caused them injuries. See Pls.’ Combined Reply in Supp. of Mot.
for Summ. J., ECF No. 58 at 13-14. Plaintiffs’ citations to the
Administrative Record support their point that the plan contains
binding standards. Id. at 14. Plaintiffs do not, however, set
forth any specific facts to demonstrate an injury-in-fact as a
result of the binding standards and self-implementing aspects of
the IDMT Plan.

10

2. Plaintiffs have failed to demonstrate that they have
suffered an injury-in-fact to Governor Otter’s ability
to carry out his constitutional responsibilities
Next, plaintiffs argue that the mandatory standards set
forth in the plan “directly impede, impair and injure Governor
Otter’s ability to carry out his constitutional responsibilities
as chief executive of Idaho, which is a cognizable injury-infact.” Pls.’ Combined Reply in Supp. of Mot. for Summ. J., ECF
No. 58 at 14-15. Plaintiffs assert that because of the interest
states have as sovereigns in creating and enforcing a legal
code, they “may have standing based on (1) federal assertions of
authority to regulate matters they believe they control, (2)
federal preemption of state law, and (3) federal interference
with the enforcement of state law, at least where the state
statute at issue regulate[s] behavior or provide[s] for the
administration of a state program.” Pls.’ Combined Reply in
Supp. of Mot. for Summ. J., ECF No. 58 at 15 (quoting Texas v.
United States, 809 F.3d 134, 153 (5th Cir.2015), as revised (Nov.
25, 2015), aff’d by an equally divided Court, 136 S.Ct. 2271,
2272 (2016)). Plaintiffs argue that “[i]njury to Idaho’s
sovereign authority over wildlife management” is a cognizable
injury-in-fact because, pursuant to Idaho Code § 36-103, the
wild animals within the borders of the state are owned by the
state in its sovereign capacity. Pls.’ Combined Reply in Supp.
of Mot. for Summ. J., ECF No. 58 at 14-15.
11

Federal defendants acknowledge that “[s]tates can have
standing to challenge federal actions that allegedly infringe on
state sovereignty or police powers in certain circumstances,
such as where federal law impairs the enforceability of an
existing state law or directly regulates a state officer’s
official duties.” Federal Defs.’ Reply in Supp. of Cross-Mot.
for Summ. J., ECF No. 62 at 11 (citing Arpaio v. Obama, 27
F.Supp.3d, 185, 201-02 (D.D.C. 2014)). Those circumstances are
not present here, according to federal defendants, because at
issue is “a federal land use plan, promulgated pursuant to valid
delegations of federal power vested in the federal government by
the Constitution, which applies only to federal property and
will be implemented by federal officials.” Id. at 11-12. Federal
defendants agree that the State of Idaho has police powers over
the wildlife on state lands, noting that the IDMT Plan neither
regulates Sage-Grouse nor infringes on the State’s authority to
manage wildlife on its own land. 6 Id. at 13.
The Court finds plaintiffs’ legal support for standing
based on injury to state sovereignty to be unpersuasive. In
Texas v. United States, which constitutes persuasive authority

6

The Court agrees with federal defendants’ observation that the
cases cited by plaintiffs which stand for the proposition that
States have police powers over the wildlife within their borders
do not provide legal support for their theory of standing based
on state sovereignty.
12

for this Court, the Court of Appeals for the Fifth Circuit found
that the State of Texas had standing to sue because it had
demonstrated that it “would incur significant costs in issuing
driver’s licenses to DAPA [Deferred Action for Parents of
Americans and Lawful Permanent Residents] beneficiaries.” 809
F.3d at 155. This circumstance, which concerns the financial
impact of federal action on a program wholly within the purview
of state law—specifically the issuance of state driver’s
licenses—is clearly distinguishable from the circumstance in
this case, which, as explained by federal defendants, concerns
“a federal land use plan, promulgated pursuant to valid
delegations of federal power vested in the federal government by
the Constitution, which applies only to federal property and
will be implemented by federal officials.” Federal Defs.’ Reply
in Supp. of Cross-Mot. for Summ. J., ECF No. 62 at 11-12. Nor
does plaintiffs’ reliance on Alaska v. U.S. Dep’t of Transp.,
868 F.3d 441, 443 (D.C.Cir.1989) help their cause as the injury
alleged in that case was federal preemption of state law, which
has not been alleged in this case.
In Arpaio, Chief Judge Howell of this Court rejected a
county sheriff’s standing to sue in his official capacity based
on a theory similar to the “spill-over” effect theory advanced
by Governor Otter and the Idaho State Legislature here. See
infra Section III.A.3. Sheriff Arpaio alleged that federal
13

immigration policies “inhibit[ed] his ability to perform his
official functions as the Sheriff of Maricopa County” and
“adversely affected and harmed his office’s finances, workload,
and interfere[d] with the conduct of his duties.” 27 F.Supp.3d
at 200. The Court acknowledged that if federal law directly
regulated a state officer’s official duties it would present a
question distinct from that before the Court: “the challenged
[federal] programs do not regulate the official conduct of the
plaintiff but merely regulate the conduct of federal immigration
officials in the exercise of their official duties.” Id. at 202.
This is analogous to the circumstance in this case, which again
concerns “a federal land use plan . . . which applies only to
federal property and will be implemented by federal officials.”
Federal Defs.’ Reply in Supp. of Cross-Mot. for Summ. J., ECF
No. 62 at 11-12.
Even if there was legal precedent for plaintiffs’ theory of
injury to state sovereignty, based on the record before the
Court, plaintiffs have failed to meet their burden of
demonstrating that they “suffered an injury in fact—an invasion
of a legally protected interest which is (a) concrete and
particularized, and (b) actual or imminent, not conjectural or
hypothetical . . . set forth by affidavit or other evidence
specific facts” supporting the alleged injury-in-fact. Lujan,
504 U.S. at 561 (internal quotations omitted). The three
14

declarations plaintiffs cite to demonstrate injury-in-fact to
Governor Otter’s ability to carry out his constitutional
responsibilities merely speculate about various injuries that
may result from the implementation of the IDMT Plan. None
provide factual support demonstrating any concrete and
particularized, and actual or imminent injury as a result of the
IDMT Plan. See Otter Decl., ECF No. 17, ¶¶ 6, 12-47, 48-54
(alleging generalized injuries to Governor’s and State’s ability
to execute constitutional duties); Moore Decl., ECF No. 22, ¶¶
23-25 (describing how certain changes to the IDMT Plan were not
justified and were made without soliciting or considering
Idaho’s comments); Schultz Decl. ECF No. 19, ¶¶ 5-7, 9
(estimating losses to state revenue resulting from non-surface
occupancy restrictions and listing general impacts that “may”
result from the IDMT Plan).
3. Plaintiffs have failed to demonstrate that they have
suffered an injury-in-fact as a result of “spillover”
effects of the IDMT Plan on state and privately owned
lands
Next, plaintiffs argue that their injury includes: (1) the
“spillover effects of federal management onto surrounding stateand privately- owned lands” which are “intermixed in a checkerboard pattern” and across which Sage-Grouse freely range; (2)
lost state revenue from bonuses and royalties from oil and gas
production on federal land as a result of the no surface

15

occupancy (NSO) restrictions in the [Sagebrush Focal Areas]” and
(3) an increase in the risk of wildfires on federal land, which
will spread to adjacent state land. Pls.’ Combined Reply in
Supp. of Mot. for Summ. J., ECF No. 58 at 17.
Federal defendants respond that plaintiffs’ allegations are
are conclusory and lack factual support and that none of the
“spillover effects” demonstrate an injury-in-fact. Federal
Defs.’ Reply in Supp. of Cross-Mot. for Summ. J., ECF No. 62 at
14.
Again, however, plaintiffs have failed to meet their burden
of demonstrating that they “suffered an injury in fact—an
invasion of a legally protected interest which is (a) concrete
and particularized, and (b) actual or imminent, not conjectural
or hypothetical . . . set forth by affidavit or other evidence
specific facts” supporting the alleged injury-in-fact. Lujan,
504 U.S. at 561 (internal quotations omitted). The five
declarations plaintiffs cite to demonstrate injury-in-fact as a
result of spill-over effects of the IDMT Plan fail to provide
factual support demonstrating any concrete and particularized,
and actual or imminent injury. See Schultz Decl. ECF No. 19, ¶¶
5-7, 9 (estimating losses to state revenue resulting from nonsurface occupancy restrictions and listing general impacts that
“may” result from the IDMT Plan); Chatburn Decl., ECF No. 20, ¶¶
18-20 (declaring that the China Mountain wind energy project was
16

“effectively jettisoned” when work on the Environmental Impact
Statement for that project was deferred until the IDMT Plan
process was finalized and that the IDMT Plan “continue[s] the
federal government’s pattern, to date, of refusing to permit or
significantly delaying the development of utility scale,
renewable energy projects . . . [and also] undermin[ing] the
necessity of predictability in Western energy siting processes); 7
Brackett Decl., ECF No. 24, ¶ 9 (declaring that the IDMT Plan
will result in an exacerbated wildfire risk); Bedke Decl., ECF
No. 21, ¶¶ 6-7, 13 (declaring that the threat of wildfires will
be exacerbated and that the State’s sovereign authority to
manage wildlife within its borders is undermined by the IDMT
Plan); Gould Decl., ECF No. 23, ¶¶ 10-11, 16-17(declaring a
potentially dramatic impact on Idaho’s livestock industries and
local economies, expecting value of state leases to be impacted,
describing expected impacts on members of Idaho’s livestock
industry who utilize public grazing allotments). 8

7

Moreover, the Court notes that the decision to defer work on the
EIS for the China Mountain wind energy project was a separate
agency decision that is not being challenged in this case.
8 The Court agrees with federal defendants that plaintiffs’
fourth argument—that “agency actions are not immune to judicial
review simply because they are labelled ‘plans’”, see Pls.’
Combined Reply in Supp. of Mot. for Summ. J., ECF No. 58 at 17,
is more relevant to ripeness than standing. Clearly, the IDMT
Plan is not immune to judicial review as long as the plaintiff
can demonstrate: “(1) an ‘injury in fact,’ (2) a sufficient
‘causal connection between the injury and the conduct complained
of,’ and (3) a ‘likel[ihood]’ that the injury ‘will be redressed
17

IV.

CONCLUSION

For the reasons stated above, plaintiffs’ motion for
summary judgment is DENIED, federal defendants’ cross-motion for
summary judgment is GRANTED, and intervenor-defendants’ crossmotion for summary judgment is DENIED as moot. An appropriate
order accompanies this Memorandum Opinion.
Signed:

Emmet G. Sullivan
United States District Judge
January 5, 2017

by a favorable decision.’” Susan B. Anthony List, 134 S. Ct. at
2341 (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 56061 (1992)). As explained above, plaintiffs here have failed to
demonstrate that they have suffered an injury-in-fact as a
result of the adoption of the plan.
18