CNSP, Inc. v. United States Forest Service et al

Filing 34

Proposed Findings of Fact and Recommended Disposition by Magistrate Judge Kirtan Khalsa re 14 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM AND FOR LACK OF JURISDICTION filed by James Melonas, Thomas Tidwell, United States Forest Se rvice. Objections to R&R due by 9/20/2018. Add 3 days to the deadline if service is by mailing it to the person's last known address (or means described in Fed. R. Civ. P. 5(b)(2)(D) and (F)); if service is by electronic means, no additional days are added. (Fed. R. Civ. P. 6(d); Fed. R. Crim. P. 45(c).) (tkl)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
CNSP, INC.,
Plaintiff,
v.

Civ. No. 17-814 MV/KK

UNITED STATES FOREST
SERVICE; THOMAS TIDWELL;
JAMES MELONAS,
Defendants.

PROPOSED FINDINGS OF FACT AND RECOMMENDED DISPOSITION
THIS MATTER is before the Court on Federal Defendants’ Motion to Dismiss and
Memorandum in Support (Doc. 14), filed December 22, 2017. In this Motion, Defendants seek
dismissal, pursuant to Rule 12(b) of the Federal Rules of Civil Procedure, of Plaintiff’s
Complaint for Declaratory Judgment and Other Relief (Doc. 1), filed August 9, 2017. Also
before the Court are Plaintiff’s Response to Federal Defendants’ Motion to Dismiss (Doc. 17),
filed January 11, 2018; and Federal Defendants’ Reply in Support of Motion to Dismiss (Doc.
20), filed February 1, 2018. The undersigned,1 having considered the parties’ submissions, the
record, and the relevant law, finds that Federal Defendants’ Motion to Dismiss and
Memorandum in Support is well taken, and recommends that it be GRANTED.
I.

Background

Plaintiff CNSP, Inc. is a New Mexico Corporation and a State Regulated Competitive
Local Exchange Carrier. (Doc. 1 at 3.) Defendant, the United States Forest Service is a federal

1

Pursuant to an Order of Reference Relating to Non-Prisoner Pro Se Cases issued on January 30, 2018, by United
States District Judge Martha Vazquez, the undersigned United States Magistrate Judge Kirtan Khalsa submits an
analysis and recommended disposition of this Matter to United States District Judge Vazquez. (Doc. 30.)

1 

agency within the United States Department of Agriculture charged with managing the National
Forest System lands. (Doc. 1 at 2.) Defendant Thomas Tidwell, sued in his official capacity, is
Chief of the United States Forest Service; and Defendant James Melonas, also sued in his official
capacity, is the Santa Fe National Forest Supervisor. (Doc. 1 at 3.)
Tesuque Peak is a mountain in the Santa Fe National Forest. (Doc. 1-1 at 2.) Tesuque
Radio Company (TRC) has telecommunications facilities on Tesuque Peak in an area called the
“Tesuque Peak Communications Site.”

(Doc. 1 at 2; Doc. 1-1 at 2.)

Plaintiff has

telecommunications equipment on the Tesuque Peak Communications site pursuant to a lease
agreement with TRC. (Doc. 1 at 2.) On June 15, 2017, after TRC increased its leasing fees,
Plaintiff, through its president, Albert Catanach, requested authorization from the Forest Service
to place new telecommunications facilities, including a 30 foot mini tower and
telecommunications hut, on Tesuque Peak. (Doc. 1 at 2; Doc. 1-1 at 2.) In a July 7, 2017, letter
signed by Forest Supervisor James Melonas, the Forest Service denied Plaintiff’s request. (Doc.
1-1 at 2.)
In his July 7, 2017, letter, Mr. Melonas advised Mr. Catanach that Plaintiff’s request was
being denied “[b]ecause it does not meet requirements to maximize joint use of existing
electronic site facilities and creation of a new communications site on the forest is not authorized
in the current Forest Plan.” (Doc. 1-1 at 2.) In substantive part, Mr. Melonas continued:
Tesuque Radio Company (TRC) is the only facility owner/manager at the
Tesuque Peak Communications Site authorized to lease to commercial entities
such as your company. This right to own and manage the exclusive commercial
facility on the mountain was competed for through a Prospectus process in 1984.
TRC acquired the facilities and associated lease in 1991. The site management
plan and TRC’s lease require that the leaseholder co-locate and house other
tenants within their authorized infrastructure. TRC’s infrastructure would have to
have reached full capacity before any new/additional infrastructure could be
considered. These requirements are intended to prevent a proliferation of towers

2 

and structures, thereby protecting natural resource values such as Visual Quality
Objectives for the mountain and adjoining Wilderness Area.
New infrastructure would require formal establishment of a new communications
site, situated some distance from the existing site to minimize interference,
competition, and visual quality issues. Because a new site is not authorized in the
current Forest Plan this would require new environmental analysis and a Forest
Plan amendment to accomplish. The processing costs associated with this
analysis are borne by the proponent. Just as TRC’s predecessor did, interested
parties would have to compete for the right to develop new/expanded facilities.
The original proponent is not guaranteed to benefit from this competition.
Denial of unsolicited proposals is not subject to administrative appeal under 36
CFR part 215 or part 251, subpart C., and does not constitute a proposed action
pursuant to 36 CFR 251.54(e)(6) and the National Environmental Policy Act
(NEPA) of 1969 (42 U.S.C. 4321-4347).
(Doc. 1-1 at 2.)
Based on the Forest Service’s denial of its request to place telecommunications facilities
on Tesuque Peak, Plaintiff filed the present lawsuit. (Doc. 1.) Plaintiff raises three claims. In its
“First Cause of Action” Plaintiff claims that by denying its request, Defendants violated 47
U.S.C. Section 253, a provision of the Telecommunications Act that bars states and localities
from effectively prohibiting any entity from providing any interstate or intrastate
telecommunications service. (Doc. 1 at 6-8.) In its “Second Cause of Action” Plaintiff claims in
denying its request, Defendants violated 47 U.S.C. Section 332(c)(7)(B), a provision of the
Telecommunications Act that bars state and local governments or instrumentalities thereof from
unreasonably discriminating among providers of functionally equivalent services; and from
prohibiting, or effectively prohibiting the provision of personal wireless services. (Doc. 1 at 811.) In its “Third Cause of Action” Plaintiff claims that in denying its request without first
requiring Plaintiff to complete Standard Form 299 as part of Plaintiff’s application, Defendants
violated 47 U.S.C. Section 1455(b), a provision of the Spectrum Act pursuant to which federal
agencies (such as the Forest Service) may grant an easement, right-of-way, or a lease to install,
3 

construct, modify or maintain a communications facility installation, and requiring the agency to
develop and use a standard form for applications therefor. (Doc. 1 at 11-13; see Doc. 20 at 12.)
Defendants argue that Plaintiff’s claims should be dismissed for lack of subject-matter
jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure because Plaintiff’s
First and Second Causes of Action do not arise under federal law, and because Plaintiff lacks
standing to pursue its Third Cause of Action. (Doc. 14 at 11-16, 21-25) Defendants argue, in the
alternative, that each of Plaintiff’s claims should be dismissed pursuant to Rule 12(b)(6) of the
Federal Rules of Civil Procedure for failure to state a claim upon which relief can be granted.
(Doc. 14 at 13-21.) Also in the alternative, Defendants argue that the procedures and remedies
sought by Plaintiff—namely, a jury trial, compensatory damages, and an order enjoining
Defendants from prohibiting its access to the Tesuque Peak Communications site and an order
granting Plaintiff’s request to construct a telecommunications facility on that site—are not
available as a matter of law and, therefore, if Plaintiff’s Causes of Action are not dismissed, the
relief requested by Plaintiff should be denied. (Doc. 14 at 25-29.)
For the reasons that follow, I recommend that the Presiding Judge grant Defendants’
Motion to Dismiss on the ground that the Court lacks subject-matter jurisdiction over Plaintiff’s
claims.

Because I recommend that this matter be dismissed for lack of subject-matter

jurisdiction, I do not address Defendant’s alternative arguments.
II.

Discussion

A. Law Governing Subject Matter Jurisdiction
It is the Plaintiff’s burden to establish subject-matter jurisdiction. Fed. R. Civ. P. 8(a)(1);
Blume v. Los Angeles Superior Courts, 731 F. App’x 829, 829 (10th Cir. 2018). Rule 12(b)(1)
of the Federal Rules of Civil Procedure permits a defendant to defend against any claim on the
ground that the Court does not have subject-matter jurisdiction over a claim. “If the court
4 

determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the
action.” Fed. R. Civ. P. 12(h)(3). Issues relating to the Court’s subject matter jurisdiction are of
primary concern, and should be resolved before the Court considers the merits of a claim. See
Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94 (1998) (emphasizing that the Court
cannot proceed at all in any cause without jurisdiction, which issue must be settled before the
merits of an action are addressed).
“[A] federal court may adjudicate a case only if there is both constitutional and statutory
authority for federal jurisdiction.” Erwin Chemerinsky, Federal Jurisdiction § 5.1 (Sixth ed.
2012). “Constitutional authority derives from Article III of the Constitution, which provides for
federal judicial power over nine categories of ‘cases’ and ‘controversies’” including, of
relevance here, the power to decide all cases arising under the laws of the United States. Id.
Statutory authority for federal jurisdiction derives from Congress, which is vested with the power
to determine the jurisdiction of federal district courts. Id. “Many federal statutes concerning
specific topics contain provisions allowing federal court subject matter jurisdiction over matters
arising under them.” Id. Others are quite broad, including for example and of particular
relevance here, 28 U.S.C. Section 1331, in which Congress granted federal district courts
jurisdiction over “all civil actions arising under the Constitution, laws, or treaties of the United
States.” Chemerinsky, supra, §5.1.
Defendants’ Motion raises issues implicating both Constitutional and statutory jurisdiction
over this matter. Because Plaintiff’s subject-matter jurisdiction argument presents a “facial
attack,” the Court accepts the allegations in Plaintiff’s Complaint as true. Holt v. United States,
46 F.3d 1000, 1002 (10th Cir. 1995) (A facial attack challenges the sufficiency of the allegations
in the complaint relating to subject-matter jurisdiction.).

5 

B. Defendants’ Statutory Subject-Matter Jurisdiction Argument
Defendants argue that because none of the statutes upon which Plaintiff’s claims rely
provide for a cause of action against the United States, these “claims are cognizable, if at all,
pursuant to the judicial review provisions of the Administrative Procedure Act (APA), 5 U.S.C.
Sections 701-706.” (Doc. 14 at 11.) This argument raises an issue concerning the statutory basis
of the Court’s subject-matter jurisdiction over Plaintiff’s claims.
The APA waives the United States’ sovereign immunity by permitting claims for
injunctive relief against the federal government in circumstances where “an agency or an officer
or employee [of the United States] acted or failed to act in an official capacity or under color of
legal authority.” 5 U.S.C.A. § 702 (“An action in a court of the United States seeking relief
other than money damages and stating a claim that an agency or an officer or employee thereof
acted or failed to act in an official capacity or under color of legal authority shall not be
dismissed nor relief therein be denied on the ground that it is against the United States or that the
United States is an indispensable party.”); see Chemerinsky, supra, § 9.2.1 (explaining that the
APA, which permits the federal government to be sued for injunctive relief, is one of three major
statutes that waives the United States’ sovereign immunity). To that end, the APA provides that
“[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved
by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.”
5 U.S.C.A. § 702. And it provides the standards that govern the Court’s review of agency
actions. Olenhouse v. Commodity Credit Corp., 42 F.3d 1560, 1573 (10th Cir. 1994) (“Judicial
review of both formal and informal agency action is governed by § 706 of the APA, which
provides that a ‘reviewing court shall . . . hold unlawful and set aside agency action findings and
conclusions found’ not to meet six separate standards.”).

6 

Importantly, however, “the APA is not to be interpreted as an implied grant of subjectmatter jurisdiction to review agency actions.” Califano v. Sanders, 430 U.S. 99, 105 (1977).
Instead, the issue of the Court’s subject matter jurisdiction to review an agency action is
governed by 28 U.S.C. Section 1331. Califano, 430 U.S. at 106-07; Chemerinsky, supra, § 9.2.2
(Section 702 “is a major exception to the doctrine of sovereign immunity because it allows the
judiciary, assuming all other jurisdictional requirements are met, to halt illegal government
conduct.” (emphasis added)). As noted earlier, 28 U.S.C. Section 1331 provides that the Court
has subject-matter jurisdiction over “all civil actions arising under the Constitution, laws, or
treaties of the United States.” 28 U.S.C. § 1331. “Jurisdiction under [Section] 1331 exists only
where there is a colorable claim arising under federal law.” McKenzie v. U.S. Citizenship &
Immigration Servs., Dist. Dir., 761 F.3d 1149, 1156 (10th Cir. 2014) (emphasis added)
(quotation marks omitted). In the statutory context, a case “arises under” federal law “when a
federal [statute] creates the cause of action asserted.” Gunn v. Minton, 568 U.S. 251, 257 (2013).
Thus, in determining whether the Court has subject-matter jurisdiction over a claim, the Court
must consider whether Congress created the right of action that the plaintiff is pursuing. Id.; see
Alexander v. Sandoval, 532 U.S. 275, 286 (2001) (“Like substantive federal law itself, private
rights of action to enforce federal law must be created by Congress.”).
In undertaking this analysis, the Court must consider “whether the cause of action alleged
is so patently without merit as to justify the court's dismissal for want of jurisdiction.” Duke
Power Co. v. Carolina Envtl. Study Grp., Inc., 438 U.S. 59, 70 (1978) (alteration omitted). This
is so because “a court may dismiss for lack of subject-matter jurisdiction when [a] claim is so
insubstantial, implausible, foreclosed by prior decisions. . . , or otherwise completely devoid of
merit as not to involve a federal controversy[.]” McKenzie, 761 F.3d at 1156–57.

7 

With these principles in mind, the Court considers Plaintiff’s First and Second Causes of
Action.
C. Plaintiff’s First and Second Causes of Action Should Be Dismissed for Lack of
Statutory Subject Matter Jurisdiction
Plaintiff’s First and Second Causes of Action are premised on 47 U.S.C. Section 253 and
47 U.S.C. Section 332(c)(7)(B), respectively. (Doc. 1 at 6-11.) In relevant part, Section 253
provides as follows:
(a) In general
No State or local statute or regulation, or other State or local legal requirement,
may prohibit or have the effect of prohibiting the ability of any entity to provide
any interstate or intrastate telecommunications service.
...
(b) State and local government authority
Nothing in this section affects the authority of a State or local government to
manage the public rights-of-way or to require fair and reasonable compensation
from telecommunications providers, on a competitively neutral and
nondiscriminatory basis, for use of public rights-of-way on a nondiscriminatory
basis, if the compensation required is publicly disclosed by such government.
Relying on the foregoing provisions of Section 253, Plaintiff alleges in its First Cause of
Action that “Defendants denial of Plaintiff’s request prohibits or has the effect of prohibiting the
ability of Plaintiff to provide telecommunications service as Plaintiff is forced to lease space
from a competitor at a rate that is excessive and prohibitive.” (Doc. 1 at 7.) In support of this
theory, Plaintiff alleges that the fees that TRC charges for access to Tesuque Peak (which TRC
increases annually) are cost prohibitive and that, “[b]y denying Plaintiff’s request and forcing
Plaintiff to lease space from TRC as the only alternative to access, Defendants effectively
prohibit Plaintiff from providing service.” (Doc. 1 at 7-8.) Additionally, Plaintiff alleges that by
denying its request Defendants deprive the Santa Fe National Forest of additional rental income
8 

and allow TRC to monopolize the site. (Doc. 1 at 7-8.) Further, apparently invoking the APA
standard of review, Plaintiff alleges that “[b]y requiring Plaintiff to lease space from TRC as the
only alternative for access, Defendant[s] ha[ve] failed to consider all alternatives rendering the
basis of their decision arbitrary, capricious or an abuse of discretion.” (Doc. 1 at 7.) See 5
U.S.C. § 706(2)(A) (requiring 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).
Plaintiff’s First Cause of Action does not involve a federal controversy. By its plain
terms, and considered in context,2 Section 253 does not give rise to a cause of action against the
Forest Service or its officers such that Plaintiff’s claim may be construed as “arising from” that
law.

King v. Burwell, 135 S. Ct. 2480, 2489 (2015) (stating that if the language of a statute is

plain, it must be enforced according to its terms; and in deciding whether language is plain, the
words must be read in their context and with a view to their place in the overall statutory
scheme). Section 253 applies exclusively to States and localities which, pursuant to Subsection
(a), are forbidden from establishing a regulation or requirement that effectively prohibits an
entity from providing telecommunications services; and which, pursuant to Subsection (b), are
unimpeded in their authority to manage public rights of way. The Forest Service is indisputably
an agency of the federal government as distinct from a state or locality. The Department of
Agriculture—within which the Forest Service is subsumed—has authority over rights of way
within National Forest System land. 43 U.S.C. § 1761(a). Section 253 imposes no obligations
or prohibitions on the Forest Service. Plainly, the Forest Service’s conduct and that undertaken
by its officers is not within the purview of Section 253. Plaintiff’s argument that the Forest

2

In its entirety, Section 253 governs states and localities, and does not purport to apply to the United States
Government or any of its agencies.

9 

Service is essentially a state or locality because the Federal Communications Commission has
“general authority to administer the Communications Act” is legally unsupported and rationally
unfounded. (Doc. 17 at 8-9.) Because the Forest Service has no duties or obligations under
Section 253, Plaintiff’s claim against Defendants for a purported violation of that law are so
lacking in merit as to justify dismissal of Plaintiff’s First Cause of Action for lack of jurisdiction.
Duke Power Co., 438 U.S. at 70.
Plaintiff’s Second Cause of Action is brought pursuant to 47 U.S.C. Section
332(c)(7)(B)(i), which provides:
The regulation of the placement, construction, and modification of personal
wireless service facilities by any State or local government or instrumentality
thereof-(I) shall not unreasonably discriminate among providers of functionally
equivalent services; and
(II) shall not prohibit or have the effect of prohibiting the provision of
personal wireless services.
(Emphasis added).
Plaintiff claims that Defendants violated 47 U.S.C. Section 332(c)(7)(B) by allowing
certain federal and local agencies to access and build towers on Tesuque Peak without requiring
these agencies to use TRC’s facility while depriving Plaintiff of the same opportunity. (Doc. 1 at
9.) This, Plaintiff alleges, constitutes discrimination among service providers in contravention of
Section 332(c)(7)(B)(i)(I).

(Doc. 1 at 9.)

Plaintiff also alleges that “Defendants further

discriminate against Plaintiff in their requirements that ‘[n]ew infrastructure would require
formal establishment of a new communications site, situated some distance from the existing site
to minimize interference, competition, and visual quality issues’ and require ‘new environmental
analysis and a Forest Plan amendment.’” (Id.) Elaborating on that allegation, Plaintiff alleges
further that “Defendants have allowed multiple towers at the site situated with in (sic) the
10 

existing site proximity.” (Id.) Plaintiff also alleges, in summary, that Defendants failed to
consider several factors pertaining to Plaintiff’s request and, as a result, Defendants’ decision is
not only discriminatory, but also “arbitrary, capricious, an abuse of discretion, or otherwise not
in accordance with law” or with required procedure. (Doc. 1 at 10-11.)
The excerpted portion of Section 332 set forth above is part of a broader statute
governing the general provisions of the Federal Communications Commission’s management of
the spectrum available for use by private mobile services. 47 U.S.C. § 332(a). The provisions of
Section 332 upon which Plaintiff relies for its Second Cause of Action apply to state and local
governments. Neither those provisions nor any other provision in the statute govern the Forest
Service or its officials. Because Section 332(c)(7)(B)(i) does not apply to the Forest Service, and
for the same reasons discussed in regard to Plaintiff’s First Cause of Action, Plaintiff’s Second
Cause of Action should be dismissed for lack of jurisdiction. Duke Power Co., 438 U.S. at 70.
D. Plaintiff’s Third Cause of Action Should Be Dismissed for Lack of Subject-Matter
Jurisdiction Under Article III of the Constitution
Defendants argue that Plaintiff lacks standing to bring the challenge raised in its Third
Cause of Action. (Doc. 14 at 19.) Article III of the United States Constitution limits this Court’s
jurisdiction to certain “cases” or “controversies.” The requirement of “standing,” which derives
from that requirement is an “irreducible constitutional” limitation on the subject-matter
jurisdiction of federal district courts. Bennett v. Spear, 520 U.S. 154, 167 (1997). Standing
requires
(1) that the plaintiff have suffered an ‘injury in fact’—an invasion of a judicially
cognizable interest which is (a) concrete and particularized and (b) actual or
imminent, not conjectural or hypothetical; (2) that there be a causal connection
between the injury and the conduct complained of—the injury must be fairly
traceable to the challenged action of the defendant, and not the result of the
independent action of some third party not before the court; and (3) that it be

11 

likely, as opposed to merely speculative, that the injury will be redressed by a
favorable decision.
Id. Self-inflicted harms stemming from a plaintiff’s own choices do not constitute “injury” for
the purposes of the Article III standing requirement. Nat’l Treasury Emps. Union v. U.S., 101
F.3d 1423, 1429 (D.C. Cir. 1996); see Pa. v. N.J., 426 U.S. 660, 664 (1976) (holding, in the
context of a lawsuit between two States, that self-inflicted injuries to the plaintiff States arising
from decisions by their respective legislatures did not give rise to standing to sue the Defendant
States because “[n]o State can be heard to complain about damage inflicted by its own hand”).
“Furthermore, even if self-inflicted harm qualified as an injury” such harm, by its very nature,
cannot be said to be “fairly traceable to the defendants’ challenged conduct.” Nat’l Family
Planning & Reprod. Health Ass’n, Inc. v. Gonzales, 468 F.3d 826, 831 (D.C. Cir. 2006) (holding
that self-inflicted harm that could be alleviated by the plaintiff does not qualify as an “injury”
sufficient to satisfy the basic requirements for standing).

In its Third Cause of Action, Plaintiff claims that Defendants violated 47 U.S.C. Section

1455(b). Section 1455 governs the deployment of wireless facilities. It provides, in relevant
part:
(b) Federal easements, rights-of-way, and leases
(1) Grant
If an executive agency, a State, a political subdivision or agency of a State, or a
person, firm, or organization applies for the grant of an easement, right-of-way, or
lease to, in, over, or on a building or other property owned by the Federal
Government for the right to install, construct, modify, or maintain a
communications facility installation, the executive agency having control of the
building or other property may grant to the applicant, on behalf of the Federal
Government, subject to paragraph (3), an easement, right-of-way, or lease to
perform such installation, construction, modification, or maintenance.
(2) Application

12 

(A) In general
The Administrator of General Services shall develop a common form for
applications for easements, rights-of-way, and leases under paragraph (1) for all
executive agencies that, except as provided in subparagraph (B), shall be used by
all executive agencies and applicants with respect to the buildings or other
property of each such agency.
47 U.S.C. § 1455.
Plaintiff’s claim is centered upon the “common form” referenced in Section
1455(b)(2)(A). (Doc. 1 at 12.) Plaintiff alleges (and the Forest Service concedes) that Standard
Form 299 (SF-299) was developed by federal agencies—including the Forest Service for the
authorization of use or occupancy of federal lands. (Doc. 1 at 12; Doc. 14 at 17.) Here, Plaintiff
did not submit a SF-299; instead, Plaintiff submitted a letter to the Forest Service requesting
authorization to place new telecommunications facilities on Tesuque Peak. (Doc. 1 at 4; Doc. 11 at 2.) Plaintiff alleges that the Forest Service violated Section 1455(b)(2)(A) by denying its
request without first requesting that Plaintiff submit its application using SF-299. (Doc. 1 at 12;
Doc. 17 at 15-16.)
As to the issue of standing, Defendants argue that any injury allegedly suffered by
Plaintiff as a result of its having not submitted a SF-299 was self-inflicted and cannot fairly be
traced to the Forest Service (which is not statutorily mandated to request that an applicant submit
SF-299) having not requested that Plaintiff submit that form in lieu of its letter. (Doc. 14 at 18,
21-25.) Defendants note that Plaintiff has not alleged that Plaintiff was barred from submitting a
SF-299, and they argue further that Plaintiff could, even now, submit the form on its own accord.
(Doc. 14 at 22-24.) Thus, Defendants argue, not only is the alleged harm self-inflicted, but it is
redressable without judicial intervention. (Doc. 14 at 24.) Neither Plaintiff’s allegations nor the

13 

arguments that Plaintiff submitted in response to Defendants’ Motion to Dismiss demonstrate
otherwise. (See Doc. 17 at 10-12.)
While Section 1455 requires executive agencies and applicants for easements, rights of
way, and leases to use a standard form, Plaintiff does not allege or argue, nor does the record
reveal that Plaintiff ever was or presently is prohibited from submitting a SF-299 in its effort to
gain the Forest Service’s permission to place new telecommunications facilities on Tesuque
Peak. Plaintiff chose to submit its request via letter instead of using SF-299. This was a choice
that, insofar as the record in this case reveals, Plaintiff made of its own accord. To the extent
that Plaintiff was “injured” as a result of its request having not been processed via the SF-299 the
harm was caused by Plaintiff’s decision to submit a letter in lieu of a SF-299 and not by the
Forest Service’s allegedly wrongful conduct. As such the resulting “harm” does not give rise to
Article III standing.

Nat’l Treasury Emps. Union, 101 F.3d at 1429 (Self-inflicted harms

stemming from the plaintiff’s own choices do not constitute “injury” for the purposes of Article
III standing). To the extent that Plaintiff seeks an order from this Court requiring that the Forest
Service process its request using the SF-299, Plaintiff may accomplish this end without judicial
intervention by submitting a SF-299. (Doc. 17 at 16) That Plaintiff has chosen not to do so, and
has allegedly been injured as a result, is a consequence of Plaintiff’s own conduct that cannot
fairly be traced to a wrongful act of the Forest Service or its officers. See Nat’l Family planning
& Reprod. Health Ass’n, Inc., 468 F.3d at 831 (holding that where a plaintiff “has within its
grasp an easy means for alleviating” an alleged injury, but has failed to do so and has, instead,
“chosen to remain in the lurch” the plaintiff “cannot demonstrate an injury sufficient to confer
standing”). Because Plaintiff has not established standing to pursue its Third Cause of Action,
that claim should be dismissed for lack of subject-matter jurisdiction.

14 

III.

Conclusion

For the foregoing reasons, I recommend that Federal Defendants’ Motion to Dismiss and
Memorandum in Support (Doc. 14), filed December 22, 2017, be GRANTED on the ground that
the Court lacks subject-matter jurisdiction over Plaintiff’s claims.

KIRTAN KHALSA
UNITED STATES MAGISTRATE JUDGE

THE PARTIES ARE NOTIFIED THAT WITHIN 14 DAYS OF SERVICE of a
copy of these Proposed Findings and Recommended Disposition they may file written objections
with the Clerk of the District Court pursuant to 28 U.S.C. § 636(b)(1). A party must file any
objections with the Clerk of the District Court within the fourteen-day period if that party
wants to have appellate review of the proposed findings and recommended disposition. If
no objections are filed, no appellate review will be allowed.

15