Village of Yellow Pine Association et al v. US Forest Service et al

Filing 40

MEMORANDUM DECISION AND ORDER in case 1:09-cv-00275-EJL; denying (6) Motion to Dismiss for Lack of Jurisdiction; granting (8) Motion to Consolidate Cases; denying (9) Motion to Intervene in case 1:11-cv-00233-BLW. Yellow Pine v U.S. Case No. 1:CV-09- 275-EJL be consolidated with 1:11-CV-233-BLW and that this case (Valley County v. U.S. Case No. 1:CV-11-233-BLW) be deemedthe lead case and that all future filings be in this case; that the case number of the Yellow Pine case be changed from EJL to BLW. Signed by Judge B. Lynn Winmill. Associated Cases: 1:11-cv-00233-BLW, 1:09-cv-00275-EJL(caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by cjm)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
VALLEY COUNTY, IDAHO
Plaintiff,

Case No. 1:11-CV-233-BLW

v.

MEMORANDUM DECISION
AND ORDER

UNITED STATES DEPARTMENT OF
AGRICULTURE, et al.,
Defendants.

INTRODUCTION
The Court has before it three motions. They are fully briefed and at issue. For the
reasons explained below, the Court will (1) deny the Forest Service’s motion to dismiss,
(2) deny American Independence Mines and Minerals Company’s (AIMMCO’s) motion
to intervene, and (3) grant Valley County’s motion to consolidate.
LITIGATION BACKGROUND
Plaintiff Valley County brought this suit under NEPA to challenge the Forest
Service’s EIS and ROD approving a system of roads and trails in the Payette National
Forest. Valley County alleges that the Forest Service violated NEPA by failing to
consider the full environmental impact of its decision to close roads.
About two years before this case, AIMMCO filed a similar challenge to the same
EIS and ROD, and the case was assigned to Judge Lodge in this District. See AIMMCO v
U.S., 733 F. Supp.2d 1241 (D.Id. 2010). In the AIMMCO action, Judge Lodge ruled on
Memorandum Decision & Order - 1

two pending motions. The first was a motion to dismiss filed by the Forest Service
arguing that AIMMCO lacked standing; Judge Lodge granted that motion. Id. at 1252.
The second was a motion to intervene filed by Valley County. Judge Lodge also granted
that motion, holding that Valley County had standing to challenge the Forest Service’s
EIS and ROD under NEPA, but also holding that because the plaintiff AIMMCO had
been dismissed, Valley County must file a separate action. Id. at 1267.
Valley County responded by filing this action. The Forest Service has filed a
motion to dismiss, alleging that Valley County lacks standing. In response, Valley
County abandons the line of reasoning used by Judge Lodge and pursues a different
analysis to establish its standing. In addition, Valley County seeks to consolidate this
case with yet another similar case pending before Judge Lodge, and AIMMCO seeks to
intervene in this action. The Court will consider each motion separately below.
ANALYSIS
Motion to Dismiss
To demonstrate standing, Valley County must show: (1) An actual or threatened
injury as a result of alleged misconduct by the Forest Service; (2) the injury or threatened
injury is fairly traceable to the Forest Service’s alleged action; and (3) it is likely the
injury will be redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S.
555, 560 (1992). For purposes of ruling on a motion to dismiss for want of standing, this
Court must accept as true all material allegations of the complaint, and must construe the
complaint in favor of Valley County. Warth v. Seldin, 422 U.S. 490, 501 (1975). Valley
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County cannot satisfy the “injury in fact” element of the test simply by demonstrating that
the Forest Service caused injury to a cognizable interest. Lujan, 504 U.S. at 563. Instead,
Valley County must be among the entities injured. Id.
The requisite weight of proof for each element of the test for standing is lowered
for “procedural standing,” i.e., standing based on a plaintiff's procedural injury. Churchill
County v. Babbitt, 150 F.3d 1072, 1077 (9th Cir. 1998), amended by 158 F.3d 491 (9th
Cir. 1998), abrogated on other grounds by Wilderness Soc. v. U.S.F.S., 630 F.3d 1173
(9th Cir. 2011). A plaintiff may claim procedural standing when, for example, it seeks
“to enforce a procedural requirement the disregard of which could impair a concrete
interest of [the plaintiff's].” Id. To establish procedural standing, the plaintiff must show:
(1) It has been accorded a procedural right to protect its concrete interests, and (2) it has a
threatened concrete interest that is the ultimate basis of its standing. Id.
The plaintiff must establish the “reasonable probability” of the challenged action’s
threat to its concrete interest. Churchill County, 150 F.3d at 1078. While the strict
pleading requirements of Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009) do not apply to the
standing analysis on a motion to dismiss under Rule 12(b)(1), the plaintiff cannot engage
in an “‘ingenious academic exercise in the conceivable’ to explain how defendants’
actions caused his injury.” Maya v Centex Corp., 658 F.3d 1060, 1068 (9th Cir. 2011)
(quoting U.S. v. SCRAP, 412 U.S. 669, 689–90 (1973)).
The Forest Service does not dispute that NEPA gives Valley County a procedural

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right to protect its concrete interests,1 but focuses instead on the second requirement,
arguing that Valley County has failed to identify a concrete interest that is threatened by
its road and trail plan. The concrete interest required for procedural standing has been
identified in a trilogy of NEPA cases from the Ninth Circuit.
In the first case, Douglas County v. Babbitt, 48 F.3d 1495, 1500 (9th Cir.1995), a
county had standing to challenge under NEPA an agency’s decision to designate critical
habitat for an endangered species without preparing an EIS. The county alleged that this
designation could affect “the productivity and environment” of adjoining county lands
because it failed “to properly manage for insect and disease control and fire.” Id. at 1501.
These allegations, the Circuit held, were sufficient to confer standing:
These statements describe concrete, plausible interests, within NEPA’s zone
of concern for the environment, which underlie the County’s asserted
procedural interests. It is logical for the County to assert that its lands could
be threatened by how the adjoining federal lands are managed. It is uncertain
whether the findings of an EIS would affect the Secretary’s critical habitat
designation and when the adjacent county lands would actually be harmed. But
under Lujan, those concerns are not important: “The person who has been
accorded a procedural right to protect his concrete interests can assert the right
without meeting all the normal standards for redressibility and immediacy.”
Lujan, 112 S.Ct. at 2142 n. 7.
Id. In the second case, Churchill County, the plaintiffs, a city and county, alleged that a
water rights acquisition plan would “adversely affect both their land and their ability to

1

The first requirement of procedural standing is met if the plaintiff is bringing a NEPA
challenge and satisfies NEPA’s requirement, set forth in 42 U.S.C. § 4332(2)(C), that it be a local agency
authorized by state law to develop and enforce environmental standards. See Douglas County, 48 F.3d
1495, 1501 (9th Cir. 1995). Valley County is such a local agency because it is authorized by Idaho law to
develop land management plans. See Idaho Code § 67-6508(f) & (I).

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make plans for and to protect local drinking water.” Id. at 1501. This was enough to
confer standing because the plaintiffs had alleged that “implementation of the Plan
threatens their concrete interests in land and water management.” Id. at 1080. Similarly,
in the third case, City of Las Vegas, Nev. v. F.A.A., 570 F.3d 1109, 1114 (9th Cir. 2009), a
city had procedural standing under NEPA to challenge an FAA flight plan “because the
proposed departure path directs flights over densely populated parts of the city, which
threatens the city’s interests in the environment and in land management.”
In all three cases, procedural standing was conferred – at least sufficient to
overcome a motion to dismiss – by allegations that plaintiff’s adjoining lands would
suffer environmental harm because the federal agency violated NEPA. In this case, many
of the roads affected by the EIS and ROD at issue are in Valley County. AIMMCO, 733
F.Supp. 2d at 1253-54. The County alleges that the EIS’s No Action Alternative “falsely
treated” as closed hundreds of roads that had been open to public use. See Complaint
(Dkt. No. 1) at ¶ 128. By wrongly assuming that these roads had already been closed, the
No Action Alternative concluded that it was proposing nothing new and hence found no
need to consider the environmental impacts of closing these roads. Id. at ¶¶ 139-42. Yet
it was proposing something new, and there will be an environmental impact, alleges
Valley County: As maintenance ceases on these now-closed roads, those that are
unpaved will erode and the sediment will wash into creeks causing environmental
damage. Id. at ¶¶ 140-42. The failure of the No Action Alternative to evaluate this
environmental damage “masked the extent of environmental . . . impact of the federal
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action and resulted in restricting the scope of analysis undertaken in the NEPA process.”
Id. at ¶ 139.
These allegations align Valley County’s complaint with the trilogy of cases
discussed above. Valley County is alleging that the Forest Service underestimated the
environmental damage of its action. It does not take an “ingenious academic exercise” to
see how poor water quality in the Payette National Forest could cause environmental
damage to adjoining Valley County lands and waterways, especially given the fact that
Valley County lies up against, and extends into, the Forest. Like the Douglas County
case, it is at least reasonably conceivable that the management of federal land could cause
environmental damage to adjoining land of the plaintiff. While the precise nature of the
damage was not defined, Iqbal does not apply, as discussed above, and the allegations of
the complaint, although general, are sufficient.2
In addition to the procedural injury, Valley County must also meet the statutory
requirements for standing under the Administrative Procedure Act (APA), 5 U.S.C. §
702, by establishing that there is a final agency action adversely affecting the County, and
that, as a result, it suffers injury within the “zone of interests” of the statutory provision it
seeks to enforce – in this case, NEPA. City of Las Vegas, 570 F.3d at 1114. Valley
County satisfies these requirements because (1) the Forest Service’s ROD/FONSI is a
2

Each element of standing “must be supported . . . with the manner and degree of evidence
required at the successive stages of the litigation.” Lujan, 504 U.S. at 561. Standing may be challenged
at any time, and the Court’s ruling here does not foreclose the Forest Service from bringing another
challenge after discovery on this issue has closed. Id.

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final agency action that adversely affects the County, and (2) Valley County alleges a
concrete injury to its interests in the environment which falls within the zone of interests
of NEPA. Id.
For all of these reasons, the Court will deny the Forest Service’s motion to dismiss.
Motion to Consolidate
Valley County seeks to consolidate this case with Yellow Pine v U.S. Case No.
1:CV-09-275-EJL. Both cases challenge the same action by the Forest Service and both
involve the same administrative record. Consolidation would avoid the potential for
conflicting decisions by two different judges.
While the plaintiffs in Yellow Pine have no objection to consolidation, the Forest
Service objected on the ground that the Court had not yet ruled on its motion to dismiss.
Now that the Court has denied that motion above, the Court finds that the two cases
should be consolidated and will grant Valley County’s motion.
Motion to Intervene
AIMMCO has moved to intervene in this case, and its proposed complaint in
intervention raises essentially the same claims that it raised in Judge Lodge’s case. Once
again, it seeks a declaration that the Final EIS and ROD are invalid under NEPA and asks
the Court to order the agency to prepare a new road plan based on a revised EIS. The
Forest Service objects to the intervention, arguing that AIMMCO’s lack of standing – as
found by Judge Lodge – precludes intervention.
In this Circuit, an applicant for intervention need not establish Article III standing
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to intervene. Perry v. Schwarzenegger, 630 F.3d 898, 906 (9th Cir. 2011). This does not
mean, however, that AIMMCO’s lack of standing to pursue its own action is irrelevant.
If AIMMCO is allowed to intervene on Valley County’s side, and Valley County is later
dismissed or settles out, AIMMCO must at that time demonstrate that it has standing to
continue to pursue the litigation. Diamond v. Charles, 476 U.S. 54 (1986). AIMMCO
will be unable to do so because Judge Lodge’s decision establishes that it has no
independent standing to pursue its own action, and that decision is entitled to preclusive
effect here. See Salahuddin v. Jones, 992 F.2d 447, 449 (2nd Cir. 1993) (holding that
court may, sua sponte, give preclusive effect to decision from court in the same district
against identical party on same issue). That means that if AIMMCO is allowed to
intervene, it will have no greater or different rights than Valley County. If Valley County
is dismissed, AIMMCO must also be dismissed. If Valley County settles with the Forest
Service on terms unfavorable to AIMMCO, and drops out of the case, AIMMCO cannot
continue to pursue this action to seek its own relief.
Given this identity between AIMMCO and Valley County, AIMMCO cannot
make the showing required for intervention as of right that its interest is not adequately
protected by Valley County – AIMMCO has no protectable interest beyond that
possessed by Valley County. See Perry v. Proposition 8 Official Proponents, 587 F.3d
947, 950 (9th Cir. 2009) (holding that to intervene as of right, the “applicant’s interest
must not be adequately represented by existing parties”). The Court therefore rejects
AIMMCO’s motion to intervene as of right.
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With regard to AIMMCO’s request for permissive intervention, the Court may
now consider its lack of standing. Perry, 630 F.3d at 905 (holding that when exercising
its “broad discretion” to allow permissive intervention, a court may consider the proposed
intervenor’s “standing to raise relevant legal issues”). AIMMCO’s lack of standing leads
the Court to reject its request for permissive intervention.
For all of these reasons, the Court will deny AIMMCO’s motion to intervene.
ORDER
In accordance with the Memorandum Decision set forth above,
NOW THEREFORE IT IS HEREBY ORDERED, that the motion to dismiss
(docket no. 6) is DENIED.
IT IS FURTHER ORDERED, that the motion to intervene (docket no. 9) is
DENIED.
IT IS FURTHER ORDERED, that the motion to consolidate (docket no. 8) is
GRANTED and that Yellow Pine v U.S. Case No. 1:CV-09-275-EJL be consolidated with
this case; that this case (Valley County v. U.S. Case No. 1:CV-11-233-BLW) be deemed
the lead case and that all future filings be in this case; that the case number of the Yellow
Pine case be changed from EJL to BLW; and that this decision be sent to the plaintiffs in
the Yellow Pine case.

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DATED: February 15, 2012

Honorable B. Lynn Winmill
Chief U. S. District Judge

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