The opinion of the court was delivered by: Honorable Edward J. Lodge U. S. District Judge
MEMORANDUM DECISION AND ORDER
Before the Court is Defendants' Motion to Dismiss for Lack of Subject Matter Jurisdiction (Docket No. 18), or, in the alternative, Defendants' Motion to Dismiss for Failure to State a Claim (Docket No. 19). Also before the Court is Valley County's Motion to Intervene (Docket No. 13). The Court grants Defendants' Motion to Dismiss for Lack of Subject Matter Jurisdiction, denies as moot Defendants' Motion to Dismiss for Failure to State a Claim, and grants Valley County's Motion to Intervene. Specifically, the Court finds that Plaintiffs' alleged injury is not within the zone of interests protected by the National Environmental Policy Act ("NEPA") nor the National Forest Management Act ("NFMA"). The Court finds that Valley County has asserted an injury in fact and that Valley County's alleged injury falls within the zone of interests protected by NEPA and the NMFA. The Court also finds that Valley County's proposed claims are not moot or unripe, and that Valley County has exhausted its proposed claims. The Court will therefore allow Valley County to intervene and its action to proceed separately.
Plaintiffs American Independence Mines and Minerals Co., Ivy Minerals, Inc., and Walker Mining Co., filed a complaint in this court in September 2009. Plaintiff American Independence is an Idaho joint venture. Plaintiffs Ivy Minerals and Walker Mining are two Idaho corporations; they are the companies that make up the American Independence joint venture. Defendants are the United States Department of Agriculture; Tom Vilsack, in his official capacity as the Secretary of the Department of Agriculture; the United States Forest Service ("USFS"); and Tom Tidwell, Harvey Forsgren, Brent L. Larson, and Suzanne Rainville in their various official capacities with the USFS.
Plaintiffs challenge the environmental impact statement and record of decision underlying an agency rule, created on November 9, 2005, called the Travel Management Rule. The Travel Management Rule requires each national forest system to designate "those roads, trails, and areas that are open to motor vehicle use" and "prohibit[s] the use of motor vehicles off the designated system, as well as use of motor vehicle on routes and in areas that is not consistent with the designations." See 70 Fed. Reg. 68,264; see also 70 Fed. Reg. 68,624 -- 68,291 (Nov. 9. 2005). Plaintiffs also challenge the record of decision from October 3, 2008 that is associated with the Travel Management Rule as applied to the McCall and Krassel Ranger Districts in the Payette National Forest. Lastly, Plaintiffs challenge Brent Larson's January 8, 2009 decision denying Plaintiffs' appeal of the record of the decision.
Plaintiffs assert that they are "actively engaged in mining, exploration and environmental assessment" in the Big Creek area of the Krassel Ranger District. Compl. ¶ 24 (Docket No. 1). This area is referred to as "MA-13" in the Record of Decision. Plaintiffs brought eight causes of action against Defendants but withdrew without prejudice claims five, seven, and eight pursuant to the parties' stipulation. See Stipulation (Docket No. 25); Order (Docket No. 29).
Plaintiffs' five remaining claims are as follows. Plaintiffs claim that Defendants failed to follow the procedural requirements of NEPA (1) by failing to adequately describe the "no action" alternative during the rulemaking process, by which Plaintiffs mean that Defendants failed to describe ownership of existing roads in the affected area (Claim 1); (2) by failing to adequately consider the mining and associated economic impacts of the proposed rule (Claims 2 and 3); (3) by failing to notify Plaintiffs of the proposed action (Claim 4); and (4) by failing to ascertain and describe roads protected as rights of way under Revised Statute § 2477, codified at 43 U.S.C. § 932 (Claim 6). Plaintiffs also allege in claims two and four that Defendants violated the NFMA.
Plaintiffs assert federal subject matter jurisdiction, arising under NEPA, 42 U.S.C. §§ 4321 -- 4370h, and the NFMA, 16 U.S.C. §§ 1600 -- 1614. Compl. ¶ 14. Plaintiffs allege that Defendants violated various NEPA and NFMA provisions and implementing regulations. See id. ¶¶ 78 -- 81, 108 -- 10, 119, 121, 130, 144, and 146. For claims one through four and six, Plaintiffs also allege that Defendants violated the Administrative Procedure Act ("APA"), 5 U.S.C. § 706(2)(A) and (2)(D). Id. ¶¶ 104 -- 05, 126 -- 27, 140 -- 41, 158 -- 59.
Defendants move to dismiss for lack of subject matter jurisdiction and argue that Plaintiffs lack standing to file a NEPA action because Plaintiffs' alleged harm is purely economic and therefore not within the environmental zone of interests protected by NEPA.*fn1 See Docket No. 18. In the alternative, Defendants move to dismiss for failure to state a claim. See Docket No. 19.
In addition to Defendants' motions, the Court will also consider Valley County's motion to intervene in Plaintiffs' case. See Motion to Intervene (Docket No. 13). Like Plaintiffs, Valley County asserts federal subject matter jurisdiction based on NEPA and the NFMA and alleges a procedural injury related to recreational, aesthetic, and other interests on behalf of its citizens. Valley County also claims an ownership interest in some of the roads affected by the Travel Management Rule and argues that this ownership interest confers standing.
Valley County initially proposed to bring seven claims against Defendants but will voluntarily withdraw claims four, six, and seven if this Court allows Valley County to intervene. See Valley County's Reply, at 6 (Docket No. 27). Although the stipulation between Plaintiffs and Defendants did not affect Valley County's proposed intervention, Valley County's withdrawn claims parallel those withdrawn by the parties' stipulation. Of Valley County's remaining causes of action, claims one through three are the same claims that Plaintiffs asserted as claims one through three. See Complaint in Intervention, ¶¶ 17 -- 19 (Docket No. 13-1). Claims one through three allege that Defendants failed to adequately describe the no action alternative and failed to consider mining and economic impacts associated with the Travel Management Rule. See id. Claim five in Valley County's proposed Complaint, which is identical to Plaintiffs' original claim six, alleges that the Record of Decision underlying the Travel Management Rule failed to adequately describe possible R.S. 2477 roads and the costs and benefits to quieting title to R.S. 2477 roads. Id. ¶ 21.*fn2
I. Standard for a Motion to Dismiss for Lack of Subject Matter Jurisdiction
Pursuant to Federal Rule of Civil Procedure 12(b)(1), a party may ask the court to dismiss for lack of subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1). Moreover, subject matter jurisdiction is a "threshold matter," which a court must determine before proceeding to the merits of the case. Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94 (1998). A court may determine subject matter jurisdiction from the facts alleged in the complaint or, if necessary, from the actual facts in the case. Thornhill Pub. Co. v. General Tel. & Elecs. Corp., 594 F.2d 730, 733 (9th Cir. 1979) (citations omitted).
II. Standing Requirements
NEPA does not provide for private rights of action, but a plaintiff may challenge an agency action under the Administrative Procedure Act ("APA"). The APA provides statutory standing to a "person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of the relevant statute." 5 U.S.C. § 702. To bring an action under the APA, a plaintiff must demonstrate both constitutional and prudential standing. Nat'l Credit Union Admin v. First Nat'l Bank & Trust Co., 522 U.S. 479, 488 (1998) (citation omitted).
In order to have prudential standing under the APA, "'the interest sought to be protected by the complainant [must be] arguably within the zone of interests to be protected or regulated by the statute . . . in question.'" Id. (quoting Ass'n of Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150, 152 (1970)). The purpose of the zone of interests test is "to exclude those plaintiffs whose suits are more likely to frustrate than to further statutory objectives." Clarke v. Secs. Indus. Ass'n, 479 U.S. 388, 397 n.12 (1987). A plaintiff's asserted interest does not meet the zone of interests test "'if the plaintiff's interests are . . . marginally related to or inconsistent with the purposes implicit in the statute.'" Id. at 399. However, "'no indication of congressional purpose to benefit the would-be plaintiff'" need exist. Id. at 399 -- 400.
The party asserting "federal jurisdiction bears the burden of establishing [the standing] elements." Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). Moreover, the plaintiff must support each element of standing "with the manner and degree of evidence required at the successive stages of the litigation." Id.
III. Plaintiffs' Claims Do Not Fall Within NEPA's Zone of Interests
Defendants argue that Plaintiffs' asserted claims do not fall with NEPA or the NFMA's zone of interests because Plaintiffs assert purely economic interests. The Court agrees.
NEPA does not impose substantive requirements but instead mandates a process that the agency must follow. NEPA was enacted in order "to promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man." 42 U.S.C. § 4321, NEPA § 101. NEPA requires a federal agency to prepare a "detailed statement" on the environmental impact of a proposed rule if that rule is a "major Federal action significantly affecting the quality of the human environment." 42 U.S.C. § 4332(c), NEPA § 102.
In a NEPA action, the zone of interests protected is environmental. Nuclear Info. & Res. Serv. v. Nuclear Regulatory Comm'n, 457 F.3d 941, 950 (9th Cir. 2006). A plaintiff asserting "purely economic injuries does not have standing to challenge an agency action under NEPA." Nev. Land Action Ass'n v. United States Forest Serv., 8 F.3d 713, 716 (9th Cir. 1993) (citations omitted); id. ("The purpose of NEPA is to protect the environment, not the economic interests of those adversely affected by agency decisions.") (citation omitted). A plaintiff may, however, "have standing to sue under NEPA even if his or her interest is primarily economic, as long as he or she also alleges an environmental interest or economic injuries that are causally related to an act within NEPA's embrace." Ranchers Cattlemen Action Legal Fund United Stockgrowers of America v. United States Dep't Agric., 415 F.3d 1078, 1103 (9th Cir. 2005) (citation and internal quotation marks omitted). A plaintiff's interest in "recreational use and aesthetic enjoyment" are also among the interests NEPA was designed to protect. Lujan, 497 U.S. at 886.
In the context of an Endangered Species Act case, the Supreme Court held that the zone of interests test is "determined not by reference to the overall purpose of the Act in question . . . but by reference to the particular provision of law upon which the plaintiff relies." Bennet v. Spear, 520 U.S. 154, 175 -- 76 (1997). Plaintiffs correctly point out that post-Bennet, a court is required to interpret NEPA's zone of interests by reference to particular provisions in the statute. Plaintiffs appear to argue that interpreting specific NEPA provisions, rather than NEPA as a whole, may expand or change the zone of interests protected by NEPA to include solely economic injuries caused by an environmental regulation. The Ninth Circuit, however, rejected this argument in Ashley Creek Phosphate Co. v. Norton, 420 F.3d 934 (9th Cir. 2005). In Ashley Creek, the Ninth Circuit explicitly held that § 102, which ...