The opinion of the court was delivered by: Honorable B. Lynn Winmill Chief U. S. District Judge
MEMORANDUM DECISION AND ORDER
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.
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 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.
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 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 right to protect its concrete interests,*fn1 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 ...