Freedom From Religion Foundation, Inc. v. Weber et al
Filing
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ORDER denying 37 Motion to Dismiss for Failure to State a Claim; denying 43 Motion for Leave to File. Signed by Judge Dana L. Christensen on 11/27/2012. (dle)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION
FREEDOM FROM RELIGION
FOUNDATION, INC., a Wisconsin nonprofit corporation,
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Plaintiff,
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vs.
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CHIP WEBER, Flathead National Forest
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Supervisor; UNITED STATES FOREST
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SERVICE, An Agency of the United States )
Department of Agriculture,
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Defendants,
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and
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WILLIAM GLIDDEN, RAYMOND
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LEOPOLD, EUGENE THOMAS,
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NORMAN DeFORREST, and the
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KNIGHTS OF COLUMBUS
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(KALISPELL COUNCIL 1328),
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Defendant-Intervenors, )
___________________________________ )
CV 12-19-M-DLC
ORDER
Intervenor-Defendants William Glidden, Raymond Leopold, Norman
DeForrest, Eugene Thomas, and Knights of Colombus (Kalispell Council No.
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1328) (“Defendants”) have moved to dismiss the complaint of Plaintiff Freedom
From Religion Foundation, Inc. (“Plaintiff”) under Federal Rule of Civil
Procedure 12(b)(1) (doc. 37). Plaintiff opposed the motion, but alternatively
moved to amend its complaint if necessary (docs. 41, 43). Both motions will be
denied. Plaintiff’s submission of member William Cox’s affidavit will be
considered in determining Defendants’ motion, and its consideration along with
the allegations in the complaint establish standing for Plaintiff in this matter.
I. Background
Plaintiff sued the United States Forest Service and its supervisor Chip
Weber alleging a violation of the Establishment Clause of the First Amendment to
the United States Constitution. (Doc. 1 at 2.) Plaintiff seeks declaratory relief that
the Forest Service’s decision to permit the continued presence of a statue of Jesus
Christ located on National Forest Service land within Whitefish Mountain Resort
violates the Establishment Clause. Plaintiff also seeks injunctive relief ordering
Defendant to withdraw approval of the statue and remove it from Forest Service
property. (Doc. 1 at 9-10.)
At the preliminary pretrial conference held on June 5, 2012, the Court
inquired whether Plaintiff has any members who recreate at Whitefish Mountain
Resort and have contact with the statue. (Doc. 37-1 at 7-8.) Plaintiff’s counsel
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responded that he would be identifying specific members in an attempt to resolve
any standing issues. (Doc. 37-1 at 7-8.) Plaintiff’s counsel also stated that he did
not believe amendment of the complaint was necessary to establish standing. The
deadline for amending pleadings in this case was June 29, 2012. (Doc. 31.)
Plaintiff did not amend its complaint prior to the deadline, nor did it provide
Defendants or the Court documentation specifying its individual members who
had contact with the statue.
Defendants filed their motion to dismiss for lack of subject matter
jurisdiction under Rule 12(b)(1) on July 31, 2012, arguing Plaintiff lacks standing
because it failed to identify any member who was directly offended by the statue,
and the time for amendment had passed. (Docs. 37, 38.) Plaintiff responded by
submitting a declaration of William Cox, one of its members who had and will
continue to have direct and unwelcome contact with the statue, asserting the
affidavit satisfies its evidentiary burden. (Doc. 41 at 2.) Plaintiff alternatively
filed a motion to amend its complaint if the Court should determine its affidavit is
insufficient to meet the standing requirements. (Docs. 43, 44.) Members of
Congress and the American Center for Law and Justice filed an amici curiae brief
in support of Defendants’ motion to dismiss (doc. 51.), to which Plaintiff
responded (doc. 54). Defendants Chip Weber and United States Forest Service
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took no position on any of these motions. (Doc. 47.)
II. Discussion
“[T]hose who seek to invoke the jurisdiction of the federal courts must
satisfy the threshold requirement imposed by Article III of the Constitution by
alleging an actual case or controversy.” City of Los Angeles v. Lyons, 461 U.S. 95,
101 (1983). To have standing for injunctive relief under Article III a plaintiff
must demonstrate he is under threat of suffering concrete and particularized
“injury in fact; the threat must be actual and imminent, not conjectural or
hypothetical; it must be fairly traceable to the challenged action of the defendant;
and it must be likely that a favorable judicial decision will prevent or redress the
injury.” Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009). Plaintiff has
standing because the Court will consider Cox’s affidavit whose allegations bolster
the complaint above the standing threshold required for this Establishment Clause
challenge.
A. Consideration of the William Cox Affidavit
Although “lack of statutory standing requires dismissal for failure to state a
claim, lack of Article III standing requires dismissal for lack of subject matter
jurisdiction under Federal Rule of Civil Procedure 12(b)(1).” Maya v. Centex
Corp., 658 F.3d 1060, 1067 (9th Cir. 2011). Review for failure to state a claim
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under 12(b)(6) is generally limited to the complaint, attachments to the complaint,
and facts of which the Court may take judicial notice. When reviewing for
constitutional standing, however, “it is within the trial court's power to allow or to
require the plaintiff to supply, by amendment to the complaint or by affidavits,
further particularized allegations of fact deemed supportive of plaintiff's standing.”
Id. (citing Warth v. Seldin, 422 U.S. 490, 501 (1975)). Additionally, the enhanced
pleading standards required by Ashcroft v. Iqbal, 556 U.S. 662 (2009) and Bell
Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) “are ill-suited to application in
the constitutional standing context” because the merits of a case are not analyzed
in determining constitutional standing. Id. at 1068.
The Ninth Circuit Court of Appeals considers declarations or affidavits
submitted by members of organizations when determining standing. See Pacific
Rivers Council v. United States Forest Service, 689 F.3d 1012, 1022 (9th Cir.
2012)(Ninth Circuit found standing based on declarations submitted to district
court and determined remand for further development of the record was
unnecessary); Wilderness Soc., Inc. v. Rey, 622 F.3d 1251, 1256 (9th Cir.
2010)(Ninth circuit considered member declarations in deciding organizational
standing issue).
Defendants have moved to dismiss Plaintiff’s complaint under 12(b)(1),
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alleging a lack of associational standing. (Doc. 37 at 1.) The Court is thus
permitted to consider the Cox affidavit Plaintiff submitted with its response to
Defendant’s motion to dismiss. (Doc. 46.) The Court will do so as a matter of
judicial efficiency because Plaintiff’s proposed amendment of the complaint is not
required and standing exists when the facts set forth in Cox’s affidavit are
considered.
Plaintiff would be required to have good cause to amend its complaint
because it sought leave to amend after the deadline set in the pretrial scheduling
order. Fed.R.Civ.P. 16(b); Coleman v. Quaker Oats Co., 232 F.3d 1271, 1294 (9th
Cir. 2000). Although Plaintiff’s most recent filing suggests it would prefer
amending its complaint to proceeding with the current complaint and affidavit
(doc. 54 at 10), it does not supply the requisite good cause for doing so. The sole
reason Plaintiff has provided for not filing the affidavit or any amendment within
the deadline is its attorney’s oversight. (Doc. 41 at 2-3.) As Defendants point out,
this reason does not meet the good cause standard Rule 16(b) requires. Johnson v.
Mammoth Recreations, Inc., 975 F.2d 604, 607-09 (9th Cir. 1992)(carelessness
does not demonstrate diligence, and a lack of diligence ends the good cause
inquiry). Thus, Plaintiff’s motion to amend must be denied. If the Court chose
not to consider Cox’s affidavit, Plaintiff appears to concede it would not have
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standing, and its complaint would be dismissed. Plaintiff could then, of course,
refile its complaint with sufficient allegations to establish standing. Because this
needless delay can properly be avoided by considering Cox’s affidavit, the Court
will do so.
B. Establishment Clause Standing
An organization has standing on behalf of its members when “its members
would otherwise have standing to sue in their own right, the interests at stake are
germane to the organization's purpose, and neither the claim asserted nor the relief
requested requires the participation of individual members in the lawsuit.”
Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., 528 U.S. 167, 181 (2000).
Regarding the first requirement, to demonstrate standing to sue a member of
the organization must show that he has repeatedly visited the area at issue, he has
concrete plans to visit again, and his recreational or aesthetic interests would be
harmed without the relief requested. Wilderness Soc., 622 F.3d at 1256. Spiritual
harm resulting from the member’s contact with the religious symbol is sufficient to
confer standing–avoidance of the symbol is not required. Vasquez v. Los Angeles
County, 487 F.3d 1246, 1252 (9th Cir. 2007). Cox’s declaration meets these
requirements. He is a member of FFRF, he lives 15 miles from Whitefish
Mountain Resort, he is a frequent skier at the resort who has skied past the statue
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many times previously and intends to again this winter, and he is a non-believer
who considers the statue religious in nature and offensive. (Doc. 46.) Cox would
have standing to sue in his own right if he were a named plaintiff. As to the
second requirement, the parties do not dispute that the interests at stake in this
matter are germane to Plaintiff’s organizational interests.
Regarding the third requirement, individual participation of members is
generally not required when the plaintiff only seeks declaratory or injunctive
relief. Warth v. Seldin, 422 U.S. 490, 515-516 (1975). Indeed, associational
standing often rises or falls based on the nature of the relief sought. Id. “If in a
proper case the association seeks a declaration, injunction, or some other form of
prospective relief, it can reasonably be supposed that the remedy, if granted, will
inure to the benefit of those members of the association actually injured.” Id.
Plaintiff only requests declaratory and injunctive relief in this case–not
damages. Individual member participation is not likely to be required. Moreover,
because no individualized avoidance or particular emotional distress must be
proved to establish standing, the injury outlined in the Cox affidavit is redressible
by the general equitable relief Plaintiff seeks for all its members. Vasquez, 487
F.3d at 1252. The facts underlying the alleged establishment clause violation are
not as complex as Defendants would like to make them appear. Members of FFRF
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who ski at Whitefish Mountain Resort are offended by the Jesus statue. Cox’s
allegations are sufficient to confer standing, and extensive discovery into each
member’s contact with the statue is unnecessary for this associational standing
case.
III. Conclusion
In sum, the Court may and will consider Cox’s affidavit submitted by
Plaintiff in response to Defendants’ motion to dismiss. Plaintiff does not establish
good cause for missing the amendment deadline so its motion to amend must be
denied under Rule 16(b). Plaintiff has standing to proceed in its establishment
clause challenge because Cox would have standing to sue in his own right, the
interests here are germane to the Plaintiff's purpose, and neither the claim asserted
nor the relief requested necessarily requires participation of Plaintiff’s individual
members.
In accordance with the foregoing, IT IS ORDERED
1. Defendant Intervenors’ Motion to Dismiss (doc. 37) is DENIED.
2. Plaintiff’s Motion for Leave to File Amended Complaint (doc. 43) is DENIED.
Dated this 27th day of November, 2012.
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