Ksanka Kupaqa Xa'lcin et al v. United States Fish and Wildlife Service et al
OPINION and ORDER. IT IS ORDERED that Federal Defendants and Defendant-Intervenor's motions for judgment on the pleadings (Docs. 32 , 34 ) are DENIED. Signed by Judge Donald W. Molloy on 10/10/2019. (NOS)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
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KSANKA KUPAQA XA'teIN, et al.,
UNITED STATES FISH AND
WILDLIFE SERVICE, et al.,
RC RESOURCES, INC.,
This case challenges decisions by the United States Fish and Wildlife
Service and the United States Forest Service (collectively "Federal Defendants")
about the Rock Creek Mine, a proposed mine that would lie beneath and adjacent
to the Cabinet Mountains Wilderness. Plaintiffs are tribal and environmental
organizations whose members use the Cabinet Mountains for cultural, spiritual,
subsistence, and recreational activities. They claim Federal Defendants violated
the Endangered Species Act ("ESA") by failing to reinitiate formal consultation on
the mine's impact to grizzly bears (Claim I), determining the mine will not
jeopardize bull trout (Claim II), and using a habitat surrogate to establish the
mine's authorized incidental take of bull trout (Claim III). Federal Defendants and
Defendant-Intervenor RC Resources seek judgment on the pleadings for the Fish
and Wildlife Service on Claim I and for all defendants on Claim III. (Docs. 32,
34.) They argue that the Fish and Wildlife Service has no obligation to reinitiate
formal consultation under the ESA and therefore cannot be liable on Claim I and
that Plaintiffs lack standing to assert Claim III. Alternatively, they argue that
Claim III is unripe. For the following reasons, the motions are denied.
The Rock Creek Mine is an underground copper and silver mine proposed
near the town of Noxon in Sanders County, Montana. (Doc. 33-2 at 10.) The ore
deposit lies beneath and adjacent to the Cabinet Mountains Wilderness; however,
the mine' s surface facilities and access points, except for a possible air intake, will
be located outside of the wilderness boundary. (Id.) The mine's implementation is
planned in two phases. (Id.) Phase I, which is expected to last two years, calls for
the construction of an evaluation adit to obtain ore samples for metallurgical
testing and collect hydrologic and geochemical data. (Id. at 11; Doc. 33-1 at 1415.) Phase II comprises the development and operation of the mine. (Doc. 33-2 at
11.) Once in operation, the mine is expected to produce 10,000 tons of ore per day
for 26 to 30 years. (Id.) A two-year period for shutdown and reclamation will
follow. (Id. at 12.) In all, the project will last 33.5 to 38 years and will disturb 445
acres, including 136 acres on the Kootenai National Forest. (Id. at 11.)
Forest Service authorization of the mine is required because it will be
located, in part, on National Forest land. (Doc. 33-1 at 8.) Further, because the
mine may affect bull trout and grizzly bear populations protected under the ESA,
the Forest Service must consult with the Fish and Wildlife Service before
approving the mine. (Id. at 67); 16 U.S.C. § 1536(a)(2). The result of the
consultation is the Fish and Wildlife Service's issuance of a "biological opinion"
as to whether the mine is likely to jeopardize a protected species or adversely
modify its critical habitat. 16 U.S.C. § 1536(b)(3); 50 C.F.R. § 402.14(g)(4). If
the Service issues a "no jeopardy" opinion but determines the mine may
incidentally "take" individual members of a protected species, it must specify the
permitted level of take in an "incidental take statement." 16 U.S.C. § 1536(b)(4);
50 C.F.R. § 402.14(i)(l); see also 16 U.S.C. § 1532(19) (defining "take").
This is the fourth round of litigation on the Rock Creek Mine. (See Doc. 331 at 67 (summarizing litigation history).) Most recently, in 2010, the Forest
Service's authorization was invalidated under the National Environmental Policy
Act and the Forest Service Organic Administration Act. Rock Creek All. v. US.
Forest Serv., 703 F. Supp. 2d 1152, 1170, 1181 (D. Mont. 2010).
In 2017, the Forest Service reinitiated consultation with the Fish and
Wildlife Service regarding the mine' s effects on bull trout, which resulted in a
biological opinion ("2017 Bull Trout Biological Opinion") that the mine was not
likely to jeopardize bull trout and an accompanying Incidental Take Statement.
(Doc. 33-1 at 68; see Doc. 33-2.) At the same time, the Fish and Wildlife Service
issued a supplement to its 2006 biological opinion on grizzly bears ("201 7 Grizzly
Bear Supplement"), concluding that reinitiating consultation on grizzly bears was
not required. (Doc. 36-1 at 3; see Doc. 33-2.) In August 2018, the Forest Service
issued a record of decision approving Phase I of the mine ("2018 Record of
Decision"). (See Doc. 33-1.)
Plaintiffs filed this suit on January 25, 2019, seeking a declaration that the
2017 Bull Trout Biological Opinion, 2017 Grizzly Bear Supplement, and 2018
Record of Decision are invalid under the ESA. (Doc. 1.) RC Resources, which
owns the mineral estate for the Rock Creek ore deposit, holds the mine' s principal
permits, and will be the mine operator, intervened as a matter of right on March 14,
2019. (Doc. 11.) Federal Defendants and RC Resources filed the present motions
for judgment on the pleadings on July 19, 2019. (Docs. 32, 34.)
Federal Rule of Civil Procedure 12(c) provides that "[a]fter the pleadings are
closed-but early enough not to delay trial-a party may move for judgment on
the pleadings." "Dismissal under Rule 12(c) is warranted when, taking the
allegations in the complaint as true, the moving party is entitled to judgment as a
matter of law." Daewoo Elec. Am. Inc. v. Opta Corp., 875 F.3d 1241, 1246 (9th
Cir. 2017). In ruling on 12(c) motions, courts are limited to the material included
in the pleadings. Yakima Valley Mem 'l Hosp. v. Wash. St. Dep 't ofHealth, 654
F.3d 919, 925 n.6 (9th Cir. 2011); Fed. R. Civ. P. 12(d). However, courts may
consider "documents incorporated into the complaint by reference, and matters of
which a court may take judicial notice" without converting the motion into one for _
summary judgment. Tellabs, Inc. v. Makar Issues & Rights, Ltd., 551 U.S. 308,
322 (2007). A document "may be incorporated by reference into a complaint if the
plaintiff refers extensively to the document or the document forms the basis of the
plaintiffs claim." United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003).
Failure to Reinitiate Formal Consultation (Claim I)
Federal Defendants seek judgment on the pleadings for the Fish and Wildlife
Service on Claim I. Claim I alleges the Forest Service and Fish and Wildlife
Service violated the ESA by failing to reinitiate formal consultation about the Rock
Creek Mine's effects on grizzly bears notwithstanding new data about humancaused grizzly bear mortalities in the mine' s vicinity. ESA violations are reviewed
under the Administrative Procedure Act ("APA"), which governs judicial review
of agency action. 5 U.S.C. § 706; Ariz. Cattle Growers' Ass 'n v. US. Fish &
Wildlife Serv., 273 F.3d 1229, 1235 (9th Cir. 2001). The APA authorizes two
types of challenges to agency decisions. First, under § 706( 1), a reviewing court
can "compel agency action unlawfully withheld or unreasonably delayed."
Second, under § 706(2), a reviewing court can "hold unlawful and set aside agency
action" that is found to be, among other things, "arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law."
Federal Defendants construe Claim I as a "failure to act" claim under
§ 706(1). But while the Complaint does not specify which provision of the APA
governs Claim I, it uses language from§ 706(2). Specifically, it alleges that the
2017 Grizzly Bear Supplement is "arbitrary, capricious, and violates the ESA and
its implementing regulations," (Doc. 1 at, 98), and asks the Court to "set aside"
the 2017 Grizzly Bear Supplement, (id. at, 108). Claim I is thus a § 706(2) claim
that the Fish and Wildlife Service's decision not to reinitiate consultation, as
formalized in the 2017 Grizzly Bear Supplement, is arbitrary and capricious.
Federal Defendants concede that a§ 706(2) claim challenging the 2017 Grizzly
Bear Supplement is cognizable against the Fish and Wildlife Service. (Doc. 39 at
2 n.2.) Based on that concession, Federal Defendants' motion for judgment on the
pleadings is denied as to Claim I.
Use of Unlawful Surrogate to Measure Incidental Take (Claim III)
Federal Defendants and Defendant-Intervenor seek judgment on the
pleadings for the Fish and Wildlife Service on Claim III, which alleges the Fish
and Wildlife Service violated the ESA by relying on an unlawful metric in its
Incidental Take Statement for bull trout. Rather than authorize the take of a
specific number of bull trout, the Fish and Wildlife Service authorized the
reduction in stream flows at three locations surrounding the mine. (Doc. 33-2 at
87.) Plaintiffs argue the stream flow surrogate fails to set an adequate "trigger" for
when an unacceptable level of take is occurring, as required by the relevant
regulations. However, because there will be no take of bull trout until Phase II of
the mine is approved and implemented, Federal Defendants and DefendantIntervenor argue the Plaintiffs do not have standing on Claim III. Alternatively,
Federal Defendants argue Claim III is not ripe. Both arguments fail.
The requirement that plaintiffs have standing to bring their claims is
grounded in Article III of the Constitution, which limits federal courts' jurisdiction
to cases and controversies. Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016).
To have Article III standing, a plaintiff must (1) have suffered an injury in fact that
(2) is causally connected and fairly traceable to the challenged conduct and (3) is
likely to be redressed by a favorable decision in court. Lujan v. Deft. of Wildlife,
504 U.S. 555, 560-61 (1992). The plaintiff has the burden to establish these
elements. Spokeo, Inc., 136 S. Ct. at 1547. Here, Federal Defendants and
Defendant-Intervenor only challenge the injury in fact prong of the inquiry.
"To establish injury in fact, a plaintiff must show that he or she suffered 'an
invasion of a legally protected interest' that is 'concrete and particularized' and
'actual or imminent, not conjectural or hypothetical."' Id. at 1548 (quoting Lujan
504 U.S. at 560). Generally, "[a]n injury is imminent if the threatened injury is
certainly impending, or there is a substantial risk that the harm will occur." Mont.
Envtl. Info. Ctr. v. Stone-Manning, 766 F.3d 1184, 1189 (9th Cir. 2014) (internal
quotation marks omitted). However, the imminence requirement is relaxed for
plaintiffs asserting a procedural injury. See Summers v. Earth Island Inst., 555
U.S. 488, 496 (2009). Plaintiffs alleging procedural injury need only show a
reasonable probability that the challenged procedural violation threatens their
concrete interest. Citizens for Better Forestry v. US. Dep't ofAgric., 341 F.3d
961, 972 (9th Cir. 2003).
Federal Defendants and Defendant-Intervenor argue that Plaintiffs have not
alleged a "certainly impending" injury with respect to Claim III because no bull
trout take will occur until Phase II of the mine, which has not been approved yet.
Plaintiffs respond that the relaxed imminence standard applies because they have
alleged a procedural injury. Plaintiffs are correct.
Claim III alleges the Fish and Wildlife Service's failure to specify an
adequate "trigger" for the unacceptable level of bull trout take violates the ESA' s
implementing regulations at 50 C.F .R. § 402. l 4(i)( 1). Section 402.14(i)(l) sets
forth the required components of an incidental take statement. Relevant here,
when a surrogate is used to set the authorized level of take, the take statement must
"set a clear standard for determining when the level of anticipated take has been
exceeded." § 402. l 4(i)(l )(i). However, the regulation does not mandate use of a
particular standard. Similarly, Plaintiffs do not argue for any particular standard
here; they merely assert there must be a standard. The touchstone of a procedural
injury is that the plaintiff does not have to allege what the result would be if the
agency had followed proper procedures. See Cottonwood Envtl. Law Ctr. v. US.
Forest Serv., 789 F.3d 1075, 1082-83 (9th Cir. 2015). Claim III meets that
criteria. See Wildearth Guardians v. Fish & Wildlife Serv., 342 F. Supp. 3d 1047,
1057 (D. Mont. 2018).
The question then becomes whether Plaintiffs have alleged a reasonable
probability that the failure to set a clear standard threatens a concrete interest. See
Citizens for Better Forestry, 341 F .3d at 972. Plaintiffs assert aesthetic,
recreational, cultural, and spiritual interests in bull trout near the Rock Creek Mine.
(Doc. 1 at ,r,r 14-22.) These interests are sufficiently concrete, Summers, 555 U.S.
at 494, and it is undisputed that the procedural rules governing incidental take
statements set forth in 50 C.F.R. § 402.14(i)(l) are designed to protect those
interests, see Citizens for Better Forestry, 341 F .3d at 969-71.
Further, Plaintiffs have shown that the alleged violation of the procedural
requirements poses a reasonably probable threat to their interests. Contrary to
Federal Defendants and Defendant-Intervenor's argument, that the Forest Service
has not yet approved Phase II of the mine does not doom the analysis. See Idaho
Conservation League v. Mumma, 956 F.2d 1508, 1515 (9th Cir. 1992) (finding
"that Congress and other third parties would have to act before actual development
could take place is not dispositive" on injury in fact inquiry).
Defendant-Intervenor argues that the alleged harm to Plaintiffs' interests
depends on a long chain of events, including that it wants to proceed after Phase I,
that Phase II is approved, and that the Incidental Take Statement is not modified
before then. (Doc. 35 at 15-16.) However, the inquiry "is whether there is a
'reasonable probability' that the challenged procedural violation will harm the
plaintiffs' concrete interests, not how many steps must occur before such harm
occurs." Navajo Nation v. Dep't of the Interior, 876 F.3d 1144, 1161 (9th Cir.
2017) (internal quotation marks omitted). A "contingent chain of events can create
a reasonably probable threat to a plaintiffs interests" but "a purely speculative
sequence of occurrences will not meet this standard." Id. (internal quotation marks
omitted). Here, Defendant-Intervenor and its predecessors' long history of
applying to operate the mine, and the Forest Service's long history of approving it,
pushes the implementation of Phase II from the purely speculative to the
reasonably probable. Consequently, Plaintiffs have standing on Claim III.
Federal Defendants argue that Claim III is not ripe unless and until Phase II
is approved. However, because procedural injuries are ripe when the procedural
violation occurs, Claim III is ripe. Citizens for Better Forestry, 341 F .3d at 977.
IT IS ORDERED that Federal Defendants and Defendant-Intervenor's
motions for judgment on the pleadings (Docs. 32, 34) are DENIED.
day of October, 2019.
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