Resources Ltd. v. Robertson

8 F.3d 1394, 24 Envtl. L. Rep. (Envtl. Law Inst.) 20026, 93 Daily Journal DAR 13912, 93 Cal. Daily Op. Serv. 8168, 37 ERC (BNA) 2111, 1993 U.S. App. LEXIS 28590
Court of Appeals for the Ninth Circuit·Decided November 3, 1993·No. No. 92-35047·Published·Cited by 15 cases

Opinion

BEEZER, Circuit Judge:

Plaintiffs (hereafter “Resources Limited”) challenge the Flathead National Forest Land and Resource Management Plan (“Plan”) and the forest-wide Environmental Impact Statement (“EIS”). Resources Limited asserts the defendants (“Forest Service”) violated the National Environmental Policy Act (“NEPA”), the National Forest Management Act, and the Endangered Species Act. In-tervenor Intermountain Forest Industry Association submitted additional briefing on behalf of the Forest Service. We affirm in part and reverse in part the district court’s grant of the Forest Service’s motion for summary judgment.

I

Several threatened or endangered species, including the grizzly bear, the gray wolf, the bald eagle, and the peregrine falcon, live in the Flathead National Forest (“the Forest”) in northern Montana. The Forest Service [1397] has been involved in developing the Plan and EIS for the Forest to accommodate these species, while allowing logging and other uses, since the early 1980s. The Forest Service issued the Plan and the EIS in 1985 and approved them in 1986.

Resources Limited criticized the EIS as inadequate and disputed the Forest Service’s conclusion that implementation of the Plan would not jeopardize the survival of listed species. After exhausting its administrative appeals, Resources Limited brought suit in the district court. The district court determined Resources Limited had no standing and that the matter was not ripe for adjudication. The court also granted the Forest Service summary judgment on all claims. 789 F.Supp. 1529.

II

We review de novo the district court’s holding that Resources Limited has no standing. Benally v. Hodel, 940 F.2d 1194, 1198 (9th Cir.1990).

Resources Limited must demonstrate that it satisfies three essential elements of standing:

First, the plaintiff must have suffered an “injury in fact” — an invasion of a legally-protected interest which is (a) concrete and particularized, and (b) “actual or imminent, not ‘conjectural’ or ‘hypothetical.’ ” Second, there must be a causal connection between the injury and the conduct complained of — the injury has to be “fairly trace[able] to the challenged action of the defendant, and not ... th[e] result [of] the independent action of some third party not before the court.” Third, it must be “likely” as opposed to merely “speculative,” that the injury will be “redressed by a favorable decision.”1

Lujan v. Defenders of Wildlife (“Defenders”), — U.S.—, —, 112 S.Ct. 2130, 2136, 119 L.Ed.2d 351 (1992) (citations omitted) (all editing in original).

The district court determined its decision on standing was controlled by its decision in Idaho Conservation League v. Mumma, No. CV-88-197-M-CCL, 1990 WL 300860 (D.Mont. August 7, 1990), rev’d, 956 F.2d 1508 (9th Cir.1992). There, the district court held that the plaintiff had not shown that it was injured in fact. The injury was “too remote and [could not] be directly tied to the plan adopted by the Forest Service” since later, site-specific actions would also require the preparation of an EIS. As Resources Limited, too, was challenging a Plan “that merely allowed for the possibility of development in the future,” the district court held that Resources Limited had failed to show that it was injured in fact.

We reversed the district court in Idaho Conservation League v. Mumma (“Mumma”), 956 F.2d 1508 (9th Cir.1992). We recognized that the initial plan, though not site-specific, is an “important decision! ].” Id. at 1516 (“Indeed, short of assuming that Congress imposed useless procedural safeguards, ... we must conclude that the management plan plays some, if not a critical, part in subsequent decisions.”). We also noted that, if plaintiffs did not have standing to challenge a non-site-specific EIS, the program as a whole could never be reviewed. “To the extent that the plan pre-determines the future, it represents a concrete injury that plaintiffs must, at some point, have standing to. challenge.” Id. at 1516.

The Forest Service suggests that two recent Supreme Court cases Defenders and Lujan v. National Wildlife Federation, 497 U.S. 871, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990), call Mumma into question.2 Nation[1398] al Wildlife was handed down before Mum-ma, and was in fact cited in Mumma. We have just decided two cases affirming the continuing validity of Mumma in light of the two Supreme Court cases. In Seattle Audubon Soc’y v. Espy, 998 F.2d 699 (9th Cir.1993), we addressed whether the Seattle Audubon Society had standing to “challenge[] the Forest Service’s Final EIS and Record of Decision adopting the Interagency Scientific Committee’s Report as the Forest Service’s spotted owl management plan.” Id. at 701. We rejected the Forest Service’s view that the Supreme Court cases “materially alter the standing principles which previously applied” as “not well-founded.” Id. at 702. In Portland Audubon Soc’y v. Babbitt, 998 F.2d 705 (9th Cir.1993), which concerned the Secretary of the Interior’s decision not to supplement timber management plans with new information, we rejected the Forest Service’s argument that the two Supreme Court cases “establish a new, stricter burden on plaintiffs to establish with specificity an injury-in-fact caused by a challenged government action.” Id. at 707.

Though the plaintiffs “filed various affidavits from members of their associations and organizations which state that the particular member visits and uses the Flathead National Forest on a regular basis, and that their use and enjoyment of the Forest will be inhibited and affected by the adoption” of the Plan, the intervenor contends Resources Limited’s inability to point to the precise area of the park where their injury will occur indicates Resources Limited has no standing. We have not imposed any such requirement of specificity. Espy, 998 F.2d at 702-03; Mumma, 956 F.2d at 1516-17. We have also rejected the argument that the injury is “conjectural or hypothetical” because there may be “as yet unknown intervening circumstances.” Espy, 998 F.2d at 703; Mumma, 956 F.2d at 1515.

We reverse the district court’s holding that Resources Limited does not have standing.

III

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Resources Ltd. v. Robertson, 8 F.3d 1394, 24 Envtl. L. Rep. (Envtl. Law Inst.) 20026, 93 Daily Journal DAR 13912, 93 Cal. Daily Op. Serv. 8168, 37 ERC (BNA) 2111, 1993 U.S. App. LEXIS 28590 (9th Cir. 1993).

8 F.3d 1394 (Resources Ltd. v. Robertson) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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