Committee to Save the Rio Hondo v. Lucero , 102 F.3d 445 ( 1996 )

PUBLISH
UNITED STATES COURT OF APPEALS
Filed 12/6/96
TENTH CIRCUIT
_____________________
COMMITTEE TO SAVE THE RIO HONDO,
Plaintiff-Appellant,
v. No. 95-2274
LEONARD LUCERO, Carson National Forest
Supervisor, United States Department of
Agriculture Forest Service,
Defendant-Appellee.
TAOS SKI VALLEY, INC.,
Defendant-Intervenor-Appellee.
_____________________
Appeal from the United States District Court
for the District of New Mexico
(D.C. No. CIV-94-589-JC/DJS)
_____________________
Steven Sugarman (Eric Ames, Taos, New Mexico, with him on the briefs), Santa
Fe, New Mexico, for Plaintiff-Appellant.
John A. Mitchell of Mitchell and Mitchell, Santa Fe, New Mexico, for Defendant-
Intervenor-Appellee.
_____________________
Before BRORBY, RONEY * and LOGAN, Circuit Judges.
BRORBY, Circuit Judge.
*
The Honorable Paul H. Roney, Senior Circuit Judge for the Eleventh
Circuit, sitting by designation.
_____________________
The Committee to Save the Rio Hondo ("Committee") appeals the district
court's order granting intervenor Taos Ski Valley's ("Ski Area") motion for
summary judgment. 1 The district court held the Committee lacked standing to
challenge the Forest Service's decision allowing summertime use of the Ski Area.
We disagree. We reverse and remand for consideration of the merits.
II. BACKGROUND
Taos Ski Valley is a ski area located in New Mexico, within the Carson
National Forest. The Ski Area is located near the headwaters of the Rio Hondo
River, which flows through the village of Arroyo Hondo. The Ski Area operates
under term and special use permits issued by the Forest Service. In 1981, the
Carson National Forest Supervisor approved a master development plan
accompanied by an environmental impact statement prepared in compliance with
the National Environmental Policy Act's provisions. The environmental impact
statement addressed only the impacts of wintertime Ski Area operations.
1
The Forest Service did not join in the Ski Area's motion for summary
judgment.
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Recently, the Ski Area proposed an amendment to its master plan and
special use permit to allow for some summertime operation of its facilities. In
considering the Ski Area's request, the Forest Service prepared an environmental
assessment. An environmental assessment contains a less exhaustive
environmental analysis than does an environmental impact statement. Acting as
Supervisor of the Carson National Forest and relying on the environmental
assessment, Leonard Lucero prepared a finding of no significant impact and
record of decision that approved the Ski Area's proposed summer operations, and
a corresponding amendment to the master development plan and special use
permit.
After first exhausting its administrative remedies, the Committee brought
this action claiming the Forest Service had failed to follow the National
Environmental Policy Act's procedures when it approved the summertime use of
the Ski Area. The Committee claimed the Forest Service's approval of the
amended master development plan and special use permit was either a "major
Federal action significantly affecting the ... environment" requiring the Forest
Service to prepare an environmental impact statement, or the approval was a
"substantial change" to the plan, requiring the Forest Service to prepare a
supplemental environmental impact statement. National Environmental Policy
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Act of 1969; 42 U.S.C. § 4332 (2)(C)(i-v)(1994); 40 C.F.R.
§ 1502.9(c)(1)(i)(1995). The Committee claimed the Forest Service's failure to
complete an environmental impact statement or supplemental environmental
impact statement prior to making the amendments violated the National
Environmental Policy Act.
The Ski Area filed a "Motion to Dismiss, to be Treated as a Summary
Judgment," on the ground the Committee lacked standing. In response to the
motion, the Committee filed sworn affidavits from two members claiming they
used and enjoyed the land and water surrounding the Ski Area for recreation and
irrigation. Additionally, the affiants claimed their use and enjoyment of the area's
land and water would be damaged by the year-round operation of the Ski Area.
The District Court for the District of New Mexico granted the motion in
favor of the Ski Area holding the Committee had not shown sufficient injury in
fact or redressability to establish constitutional standing. Particularly, the district
court held that because the Committee could not show the Forest Service would
be required to follow the recommendations of an environmental impact statement,
the Committee's fears of possible harm to the land and water were both
immaterial and too speculative to constitute injury in fact. Also, the District
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Court held that because the Forest Service had already complied with the National
Environmental Policy Act by completing a thorough environmental assessment,
the Committee had failed to establish a favorable decision would redress its
injuries.
III. DISCUSSION
The Ski Area questions the Committee's standing to challenge the Forest
Service's actions. Because standing is a question of law for the court to
determine, we review the district court's determination of standing de novo.
Mountain Side Mobile Estates Partnership v. Secretary of Housing & Urban Dev.,
56 F.3d 1243, 1249 (10th Cir. 1995). See also Catron County Bd. of Comm'rs v.
United States Fish & Wildlife Serv., 75 F.3d 1429, 1433 (10th Cir. 1996).
The doctrine of standing "is an essential and unchanging part of the case-
or-controversy requirement of Article III." Lujan v. Defenders of Wildlife, 504
U.S. 555, 560 (1992) (citing Allen v. Wright, 468 U.S. 737, 751 (1984)). 2 The
constitutional minimum of standing contains three elements. Defenders of
2
Although Defenders of Wildlife was an Endangered Species Act case, it
has important implications for standing in the National Environmental Policy Act
context. In Defenders of Wildlife, the court explained that in the context of the
National Environmental Policy Act, litigants face few standing barriers where an
agency's procedural flaw results in concrete injuries.
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Wildlife, 504 U.S. at 560. First, the plaintiff must have suffered an "injury in
fact" -- an invasion of a legally protected interest which is "concrete and
particularized" and "actual or imminent." Id.; Catron County, 75 F.3d at 1433.
Second, a causal connection must exist between the injury and the conduct
complained of; the injury must be fairly traceable to the challenged action.
Defenders of Wildlife, 504 U.S. at 560; Catron County, 75 F.3d at 1433. Third, it
must be likely that the injury will be redressed by a favorable decision.
Defenders of Wildlife, 504 U.S. at 561; Catron County, 74 F.3d at 1433. 3
Because the National Environmental Policy Act does not contain a private
right of action for those seeking to enforce its procedural requirements, a plaintiff
must rely on the Administrative Procedures Act as the basis for its action and,
3
The same three elements apply when an association is the plaintiff.
Warth v. Seldin, 422 U.S. 490, 511 (1975). An association has standing to sue
even if it has not been injured itself so long as the association's members satisfy
the constitutional minimum of Article III. An association has standing to bring
suit on behalf of its members when: "(a) its members would otherwise have
standing to sue in their own right; (b) the interests it seeks to protect are germane
to the organization's purpose; and (c) neither the claim asserted nor the relief
requested requires the participation of individual members in the lawsuit." Hunt
v. Washington State Apple Advertising Comm'n, 432 U.S. 333, 343 (1977); see
also Colorado Taxpayers Union, Inc. v. Romer, 963 F.2d 1394, 1396 (10th Cir.
1992), cert. denied, 507 U.S. 949 (1993). The second two prongs of this test are
satisfied. Only the first prong, whether the members themselves satisfy the
elements of Article III, is in dispute.
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therefore, in addition to satisfying the constitutional standing requirements, a
plaintiff must establish it is "adversely affected or aggrieved ... within the
meaning of a relevant statute" by some final agency action. Lujan v. National
Wildlife Fed'n, 497 U.S. 871, 883 (1990); Catron County, 75 F.3d at 1434. To be
adversely affected within the meaning of the National Environmental Policy Act,
the Committee must establish they have suffered an injury in fact falling within
the "zone of interests" protected by the National Environmental Policy Act.
United States v. Students Challenging Regulatory Agency Procedures, 412 U.S.
669, 686 (1973); Sierra Club v. Morton, 405 U.S. 727, 733 (1972); see also
National Wildlife Fed'n, 497 U.S. at 883. As a preliminary matter, we hold that
because the Committee seeks to protect its recreational, aesthetic, and
consumptive interests in the land and water surrounding their village, their
alleged injuries fall within the "zone of interests" that the National Environmental
Policy Act was designed to protect. National Wildlife Fed'n, 497 U.S. at 886.
Additionally, there is no dispute the Forest Service's action was final. Therefore,
we turn to whether the Committee has established standing to sue under Article
III.
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A. Injury in Fact
The Ski Area first contends the Committee members' affidavits do not
establish an injury in fact. The Committee asserts that because its members have
a concrete interest in the land and water in and surrounding the Ski Area that may
be adversely affected by the Forest Service's decisions, the Forest Service's
failure to follow the procedures of the National Environmental Policy Act
constitutes injury in fact.
In considering these claims it is important to remember the procedural
nature of a National Environmental Policy Act claim. The National
Environmental Policy Act was enacted to protect and promote environmental
quality. 42 U.S.C. § 4331(a-c) (1994). To ensure this protection, the National
Environmental Policy Act establishes "action forcing" procedures the agencies
must follow, such as requiring an agency to prepare either an environmental
impact statement or a supplemental environmental impact statement under certain
circumstances. 42 U.S.C. § 4332 (2)(C)(i-v); 40 C.F.R. § 1502.9(c)(1)(i). These
prescribed procedures guarantee the agency will take a "hard look" at the
environmental consequences of its actions. Kleppe v. Sierra Club, 427 U.S. 390,
410 n.21 (1976). By focusing the agency's attention on the environmental
consequences of its actions, the National Environmental Policy Act "ensures that
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important effects will not be overlooked or underestimated only to be discovered
after resources have been committed or the die otherwise cast." Robertson v.
Methow Valley Citizens Council, 490 U.S. 332, 349 (1989). While the National
Environmental Policy Act itself does not mandate the particular decisions an
agency must reach, it does mandate the necessary process the agency must follow
while reaching its decisions. Id. at 350.
An agency's failure to follow the National Environmental Policy Act's
prescribed procedures creates a risk that serious environmental consequences of
the agency action will not be brought to the agency decisionmaker's attention.
The injury of an increased risk of harm due to an agency's uninformed decision is
precisely the type of injury the National Environmental Policy Act was designed
to prevent. Thus, under the National Environmental Policy Act, an injury of
alleged increased enviromental risks due to an agency's uninformed
decisionmaking may be the foundation for injury in fact under Article III.
Douglas County v. Babbitt, 48 F.3d 1495, 1499-1501 (9th Cir. 1995), cert. denied,
116 S. Ct. 698 (1996); City of Davis v. Coleman, 521 F.2d 661, 671 (9th Cir.
1975).
Although the National Environmental Policy Act accords procedural rights
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to those with an interest in protecting the environment, standing under Article III
also requires a plaintiff be among the injured. Morton, 405 U.S. at 734-35. To
fully establish injury in fact, a plaintiff must be able to show that a separate injury
to its concrete, particularized interests flows from the agency's procedural failure.
Defenders of Wildlife, 504 U.S. at 572. In Defenders of Wildlife, the Supreme
Court said:
We have consistently held that a plaintiff raising only a
generally available grievance about government--claiming only harm
to his and every citizen's interest in proper application of the
Constitution and laws, and seeking relief that no more directly and
tangibly benefits him than it does the public at large--does not state
an Article III case or controversy.
Id. at 573-74. Therefore, to establish injury in fact for purposes of Article III, a
plaintiff must not only show that the agency's disregard of a procedural
requirement results in an increased risk of environmental harm, but a plaintiff
must also show the increased risk is to the litigant's concrete and particularized
interests. Id. at 573 n.8, 578; Douglas County, 48 F.3d at 1500. To demonstrate
that the increased risk of harm injures the plaintiff's concrete interests, the litigant
must establish either its "geographical nexus" to, or actual use of the site where
the agency will take or has taken action such that it may be expected to suffer the
environmental consequences of the action. Douglas County, 48 F.3d at 1501(stating that the "geographic nexus" test is equated with the "concrete interest"
test of Defenders of Wildlife, 504 U.S. at 573 n.8); Coleman, 521 F.2d at 670; see
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also Catron County, 75 F.3d at 1433.
Furthermore, because standing is not "an ingenious academic exercise in
the conceivable," at the summary judgment stage, injury in fact requires "a factual
showing of perceptible harm." Defenders of Wildlife, 504 U.S. at 566 (quoting
Students Challenging Regulatory Agency Procedures, 412 U.S. at 688). A
plaintiff may not merely allege it can imagine circumstances in which it could be
affected by the agency action. The risk of environmental harm to the litigant's
concrete interests due to the agency's uninformed decisionmaking must be actual,
threatened, or imminent, not merely conjectural or hypothetical. 4 Defenders of
Wildlife, 504 U.S. at 560.
Ultimately then, the injury in fact prong of the standing test of Article III
breaks down into two parts: (1) the litigant must show that in making its decision
without following the National Environmental Policy Act's procedures, the agency
created an increased risk of actual, threatened, or imminent environmental harm;
4
The Supreme Court has explained that in the context of a National
Environmental Policy Act claim, the litigant need not satisfy the requirement of
immediacy for purposes of injury in fact because the federal project complained
of may not affect the concrete interest for several years; however, the injury in
fact requirement certainly is met where the litigant establishes that injury to
concrete interests is imminent. Defenders of Wildlife, 504 U.S. at 572 n.7.
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and (2) the litigant must show that the increased risk of environmental harm
injures its concrete interests by demonstrating either its geographical nexus to, or
actual use of the site of the agency action.
In cases reviewing questions of standing under a motion to dismiss, the
court presumes general allegations embrace those specific facts necessary to
support the claim. Defenders of Wildlife, 504 U.S. at 561; Students Challenging
Regulatory Agency Procedures, 412 U.S. at 689-90 (1973); Glover River Org. v.
United States Dept. of the Interior, 675 F.2d 251, 254 n.3 (10th Cir. 1982).
However, where, as here, a defendant moves for summary judgment, the plaintiff
can no longer rest on "mere allegations." Fed. R. Civ. P. 56(e); Defenders of
Wildlife, 504 U.S. at 561. Instead, the plaintiff must set forth by affidavit or
other evidence, "specific facts" showing there is a genuine issue for trial. Fed. R.
Civ. P. 56(e); Defenders of Wildlife, 504 U.S. at 561; Rohrbaugh v. Celotex
Corp., 53 F.3d 1181, 1182 (10th Cir. 1995). In considering the motion, we
examine the factual record and the reasonable inferences therefrom in the light
most favorable to the party opposing summary judgment. Applied Genetics Int'l,
Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir. 1990) (citing
Gray v. Phillips Petroleum Co., 858 F.2d 610, 613 (10th Cir. 1988)).
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The Ski Area contends the Committee members' affidavits do not allege
facts specific enough to establish injury in fact. We disagree. The Committee's
affidavits sufficiently demonstrate an increased risk of environmental harm to
concrete interests the National Environmental Policy Act's procedures are meant
to protect. Therefore, the Committee has established injury in fact.
1. Increased Risk of Environmental Harm
The Committee submitted affidavits from two members in response to the
Ski Area's standing challenge. Both affiants live in Arroyo Hondo, twelve to
fifteen miles downstream from the Ski Area. First, through their affidavits, the
affiants have established they suffer an increased, threatened risk of
environmental harm due to the Forest Service's alleged uninformed
decisionmaking. The affiants attested to the Forest Service's failure to complete
either an environmental impact statement or a supplemental environmental impact
statement. The affiants aver the Forest Service's uninformed decision will affect
the Rio Hondo River because the summertime use of the Ski Area will result in
increased river water consumption. Furthermore, the affiants aver the
summertime use of the Ski Area will affect the quality of the river by increasing
sewage discharge and non-point source pollution from increased vehicle travel,
silt, and industrial fluids from the Ski Area's mechanical operations. Also, one of
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the affiants, Mr. Romero, avers that summertime use of the Ski Area would
disturb the recreational and aesthetic value of the land in and around the Ski Area
because summertime use of the Ski Area increases development and
mechanization. These facts are sufficient to establish the affiants suffer a
threatened increased risk of environmental harm due to the Forest Service's
alleged failure to follow the National Environmental Policy Act's procedures.
2. Concrete Interests
The affiants established the Forest Service's alleged procedural failures
impair their separate, concrete interests because the affiants have a geographical
nexus to, and actually use the land and water in the affected area. The Ski Area
argues the affiants do not have a concrete interest at stake because they live
twelve to fifteen miles downstream from the Ski Area. The Ski Area does not
dispute, however, that the affiants have used the waters of the Rio Hondo
watershed for their entire lifetimes for irrigating, fishing, and swimming, and that
they intend to continue their use. Because the affiants live immediately
downstream from and share the same watershed with the Ski Area, they may be
expected to suffer the effects of decreased water quality resulting from
summertime use of the Ski Area. Consequently, the affiants have established
their geographical nexus to the site of the agency action.
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Additionally, Mr. Romero actually uses the land in and around the Ski
Area. Mr. Romero avers:
All my life, I have used the area in and around the Taos Ski Valley
for recreational and subsistence purposes. For example, I often use
these lands for hunting, hiking, and general aesthetic enjoyment.
Further development of the Taos Ski Valley ... injures my interest in
the continued use of the area.
These affidavits are sufficient to show the affiants have a concrete interest upon
which their procedural claim is based. Because the affiants have a geographical
nexus to, and actually use land and water the Forest Service has exposed to an
increased risk of environmental harm due to its alleged uninformed
decisionmaking, the affiants have established an injury in fact for purposes of
Article III.
Our conclusion is consistent with established Supreme Court precedent.
The purpose of the injury-in-fact requirement of Article III is to ensure only those
having a "'direct stake in the outcome,'" and not those having abstract concerns,
may have access to the courts. Valley Forge Christian College v. Americans
United for Separation of Church & State, Inc., 454 U.S. 464, 473 (1982) (quoting
Morton, 405 U.S. at 740). Unlike the affiants in National Wildlife Fed'n and
Defenders of Wildlife, the Committee's members have established such a direct
stake. The affiants live in the same watershed where the Ski Area is located, and
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they have used the water flowing directly from the Ski Area for irrigation and
recreation for their lifetimes with the present intent to continue using the water in
the same manner. Unlike the affiants in Defenders of Wildlife who only could
allege an injury at some indefinite future time, these affiants have established a
present and continuing interest in the land and water sufficient for Article III's
injury in fact requirement. Defenders of Wildlife, 504 U.S. at 563-64.
Additionally, unlike the affiants in National Wildlife Fed'n who could only claim
to use land "in the vicinity" of the affected land, Mr. Romero actually uses the
land in the Ski Area for recreational purposes. These facts are specific enough to
establish the affiants' concrete interests are threatened such that the Committee
has the right to ensure the Forest Service follows the National Environmental
Policy Act's procedures.
We hold, therefore, the Committee has met Article III's requirement the
plaintiff demonstrate an injury in fact to itself or its members.
B. Causation
In addition to establishing injury in fact, a plaintiff must also establish
causation. Defenders of Wildlife, 504 U.S. at 560-61. To establish causation, a
plaintiff must show its injuries are fairly traceable to the conduct complained of.
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Id. In the context of a National Environmental Policy Act claim, the injury is the
increased risk of environmental harm to concrete interests, and the conduct
complained of is the agency's failure to follow the National Environmental Policy
Act's procedures. To establish causation, a plaintiff need only show its increased
risk is fairly traceable to the agency's failure to comply with the National
Environmental Policy Act. Catron County, 75 F.3d at 1433; see also Defenders of
Wildlife, 504 U.S. at 572 n.7.
Recently, in Florida Audubon Soc'y v. Bentsen, 94 F.3d 658 (D.C. Cir.
1996), the D.C. Circuit presented a somewhat different causation analysis for
National Environmental Policy Act claims. In Bentsen, the court held:
To prove causation, a plaintiff seeking the preparation of an
[environmental impact statement] must demonstrate that the
particularized injury that the plaintiff is suffering or is likely to
suffer is fairly traceable to the agency action that implicated the need
for an [environmental impact statement]. In other words, unless
there is a substantial probability that the substantive agency action
created a demonstrable risk, or caused a demonstrable increase in an
existing risk, of injury to the particularized interests of the plaintiff,
the plaintiff lacks standing.
Id. at 669 (emphasis added) (citations omitted). This analysis appears to confuse
the issue of the likelihood of the harm, which is better addressed in the injury in
fact prong of the analysis, with its cause.
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Whether an increased risk will or will not occur due to the agency action
determines whether a plaintiff has suffered injury in fact, not causation.
Certainly, under the injury in fact prong, a plaintiff cannot merely allege that
some highly attenuated, fanciful environmental risk will result from the agency
decision; the risk must be actual, threatened or imminent. However, once the
plaintiff has established the likelihood of the increased risk for purposes of injury
in fact, to establish causation, as the Committee has here, the plaintiff need only
trace the risk of harm to the agency's alleged failure to follow the National
Environmental Policy Act's procedures. Under the National Environmental Policy
Act, an injury results not from the agency's decision, but from the agency's
uninformed decisionmaking. The increased risk of adverse environmental
consequences is due to the agency's "failure substantively to consider the
environmental ramifications of its actions in accordance with [the National
Environmental Policy Act]." Catron County, 75 F.3d at 1433; see also Defenders
of Wildlife, 504 U.S. at 572 n.7; Resources Ltd., Inc. v. Robertson, 35 F.3d 1300,
1303 n.2 (9th Cir. 1994); Idaho Conservation League v. Mumma, 956 F.2d 1508,
1517-18 (9th Cir. 1992).
The purpose of the statutory requirement that a federal agency prepare an
environmental impact statement is to ensure that in reaching its decision, the
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agency will have available and will carefully consider detailed information
concerning significant environmental impacts. Methow Valley, 490 U.S. at 349.
To require that a plaintiff establish that the agency action will result in the very
impacts an environmental impact statement is meant to examine is contrary to the
spirit and purpose of the National Environmental Policy Act. The National
Environmental Policy Act was not intended to require the plaintiff to show with
certainty, or even with a substantial probability, the results of agency action;
those examinations are left to an environmental impact statement. To the extent
that the D.C. Circuit's standard requires a plaintiff to establish something more
than set out here, it is contrary to the intent and essence of the National
Environmental Policy Act and is, therefore, rejected.
The Ski Area argues the Committee has not established causation because it
has not sought a preliminary injunction ordering the withdrawal of Mr. Lucero's
decision to allow summertime use of the Ski Area. We disagree. The Ski Area
fails to cite authority for the proposition that to have standing under the National
Environmental Policy Act, a plaintiff must seek a preliminary injunction. We fail
to see the relevance of whether or not a plaintiff seeks extraordinary relief to the
issue of standing. We hold, therefore, the Committee has established causation.
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C. Redressability
Finally, a plaintiff must also establish it is likely, as opposed to merely
speculative, that the injury will be redressed by a favorable decision. Defenders
of Wildlife, 504 U.S. at 561; Catron County, 75 F.3d at 1433. Compliance with
the National Environmental Policy Act would avert the possibility that the Forest
Service may have overlooked significant environmental consequences of its
action. Under the National Environmental Policy Act, "the normal standards for
redressability" are relaxed; a plaintiff need not establish that the ultimate agency
decision would change upon National Environmental Policy Act compliance.
Defenders of Wildlife, 504 U.S. at 572 n.7; Catron County, 75 F.3d at 1433.
Rather, the Committee must establish, as it has, that its injury would be redressed
by a favorable decision requiring the Forest Service to comply with National
Environmental Policy Act's procedures. That the Forest Service may not change
its decision to allow summertime operations at the Ski Area after preparing an
environmental impact statement is immaterial. Catron County, 75 F.3d at 1433;
see also National Environmental Policy Act of 1969; 42 U.S.C. § 4332(2)(C)(i-v)
(1988); 40 C.F.R. § 1502.9(c)(1)(i)(1995).
Accordingly, we hold the Committee has established standing. We
REVERSE the district court and REMAND for consideration of the merits.
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No. 95-2274 - Committee to Save the Rio Hondo v. Lucero
Roney, Senior Circuit Judge, specially concurring:
I concur in the result with the understanding that the decision reached by
the Court concerns only the threshold issue of whether plaintiffs have standing to
challenge the Forest Service's compliance with the National Environmental
Protection Act. We have not considered the merits, that is, whether the Forest
Service has already complied with the Act, or, if not, what might be required to
bring it into compliance.