Otter v. Jewell

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

___________________________________
)
C.L. “BUTCH” OTTER, in his official)
Capacity as Governor of the State )
of Idaho, et al., )
)
Plaintiffs, )
)
v. ) Case No. 15-cv-1566 (EGS)
)
S.M.R. JEWELL, in her official )
Capacity as Secretary of the )
United States Department of the )
Interior, et al., )
)
Federal Defendants )
)
THE WILDERNESS SOCIETY, et al., )
)
Intervenor-Defendants )
___________________________________)

MEMORANDUM OPINION

Plaintiffs Butch Otter, in his official capacity as the

Governor of Idaho, and the Idaho State Legislature, bring this

action pursuant to Section 702 of Administrative Procedure Act

(“APA”), seeking review of certain final agency decisions of the

federal defendants, 1 contending that they are contrary to the

1
The federal defendants are S.M.R. Jewell, in her official
capacity, Secretary, U.S. Department of the Interior; Janice
Schneider, in her official capacity, Assistant Secretary for
Land and Minerals Management; Neil Kornze, in his official
capacity, Director of the Bureau of Land Management; U.S. Bureau
of Land Management; Thomas J. Vilsack, in his official capacity,
Secretary, U.S. Department of Agriculture; Thomas L. Tidwell, in
National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321 et

seq., the Federal Land Policy and Management Act (“FLPMA”), 43

U.S.C. §§ 1701 et seq., and the National Forest Management Act

(“NFMA”), 16 U.S.C. § 1600 et seq. See Compl., ECF No. 1 ¶ 10.

Pending before the Court are the parties’ motion and cross-

motions for summary judgment, in which the federal defendants

argue, among other things, that this Court lacks subject matter

jurisdiction because plaintiffs do not have standing to bring

their claims pursuant to Article III of the U.S. Constitution.

Upon consideration of the motion and cross-motions, the

responses and replies thereto, the applicable law, and for the

reasons stated below, the Court concludes that it lacks subject

matter jurisdiction over plaintiffs’ claims, and therefore

cannot reach the merits of those claims, because plaintiffs have

failed to meet their burden of demonstrating that they have

suffered an injury-in-fact as a result of the agency action. 2

Therefore, plaintiffs’ motion for summary judgment is DENIED,

federal defendants’ cross-motion for summary judgment is

his official capacity, Chief of the U.S. Forest Service; and
United States Forest Service.
2 Even if plaintiffs had demonstrated that they have standing to

bring their claims, their claims are not ripe for review
substantially for the reasons articulated by the federal
defendants.
2
GRANTED, and intervenor-defendants’ cross-motion for summary

judgment is DENIED as moot. 3

I. BACKGROUND

This case is before this Court as related to the Court-

approved agreements between environmental advocacy groups and

the Fish and Wildlife Service (“FWS”) in 2010 to settle multi-

district litigation. See In re ESA Section 4 Deadline Litig.—MDL

No. 2156, Misc. Action No. 10-377 (D.D.C.2010). The agreements

require FWS to determine by certain deadlines whether to list a

number of species as endangered or threatened under the

Endangered Species Act (“ESA”), or find that listing these

species is not warranted. Misc. Action No. 10-377, ECF No. 42.

Relevant to the case currently before the Court, FWS was

required to make a listing decision regarding the Sage-Grouse by

September 30, 2015. Misc. Action No. 10-377, ECF No. 56.

In anticipation of the need to make that decision, the

Bureau of Land Management (“BLM”) and the Forest Service

“undertook a land use planning effort of unprecedented scope

[that] was designed to amend or revise the existing regulatory

3Intervenor-defendants Wilderness Society, National Audubon
Society, National Wildlife Federation, and Earthworks did not
challenge plaintiffs’ Article III Standing, nor did Amicus
Owyhee County, Idaho; Public Lands Council; and National
Cattlemen’s Beef Association address standing. Therefore, the
Court does not reach the arguments on the merits made by those
parties.
3
mechanisms—federal land use plans—to provide enforceable

conservation measures and management objectives to protect and

improve Sage-Grouse habitat.” Federal Defs.’ Combined Mem. in

Supp. of Cross-Mot. for Summ. J., ECF No. 56 at 16-17. The

planning effort, which involved federal land in ten western

states, spanned four years and included the participation of

members of the public and numerous state and federal entities,

including the State of Idaho. Id. at 17; Mem. in Supp. of Mot.

for Prelim. Inj., ECF No. 15-1 at 17-18. Idaho’s participation

included, among other things, the submission of one of the

alternative plans for consideration by BLM and the Forest

Service. Federal Defs.’ Combined Mem. in Supp. of Cross-Mot. for

Summ. J., ECF No. 56 at 19; Mem. in Supp. of Mot. for Prelim.

Inj., ECF No. 15-1 at 18-19, 21-22. That plan was not adopted as

the final agency decision although federal defendants state that

several aspects of the Idaho plan were included in the final

agency decision. Federal Defs.’ Combined Mem. in Supp. of Cross-

Mot. for Summ. J., ECF No. 56 at 25. Plaintiffs ask this Court

to set aside, vacate, and remand the final decision,

specifically the land use plan amendment and supporting

Environmental Impact Statement (“EIS”) for the Idaho and

4
Southwestern Montana sub-region (“IDMT Plan” or “plan”), 4 as

contrary to law.

II. Standard of Review

“Summary judgment is the proper mechanism for deciding, as a

matter of law, whether an agency action is supported by the

administrative record and consistent with the APA standard of

review, which requires 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.” UPMC v. Sebelius, 793 F.Supp.2d

62, 67 (D.D.C.2011). Due to the limited role of a court in

reviewing the administrative record, the typical summary

judgment standards set forth in Rule 56(c) are not applicable.

Stuttering Found. of America v. Springer, 498 F.Supp.2d 203, 207

(D.D.C.2007)(internal citation omitted). Rather, “[u]nder the

APA, it is the role of the agency to resolve factual issues to

arrive at a decision that is supported by the administrative

record, whereas ‘the function of the district court is to

determine whether or not as a matter of law the evidence in the

administrative record permitted the agency to make the decision

it did.’” Id. (quoting Occidental Eng’g Co. v. INS, 753 F.2d

766, 769-70 (9th Cir.1985)). A reviewing court will “hold

4 Plaintiffs refer to the final agency decision at issue as the
Idaho Land Use Planning Amendments (“Idaho LUPA”).
5
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.” Ludlow v. Mabus,

793 F.Supp.2d 352, 354 (D.D.C.2001) (quoting 5 U.S.C. §

706(2)(A)).

III. Analysis

A. Standing

“Article III of the Constitution limits the jurisdiction of

the federal courts to ‘Cases’ and ‘Controversies.’” Susan B.

Anthony List v. Driehaus, 134 S. Ct. 2334, 2341 (2014) (quoting

U.S. Const., art. III, § 2). “‘One element of the case-or-

controversy requirement’ is that plaintiffs ‘must establish that

they have standing to sue.’” Clapper v. Amnesty Int’l USA, 133

S. Ct. 1138, 1146 (2013) (quoting Raines v. Byrd, 521 U.S. 811,

818 (1997)). The standing requirement “serves to prevent the

judicial process from being used to usurp the powers of the

political branches.” Id. To establish standing, “a plaintiff

must show (1) an ‘injury in fact,’ (2) a sufficient ‘causal

connection between the injury and the conduct complained of,’

and (3) a ‘likel[ihood]’ that the injury ‘will be redressed by a

favorable decision.’” Susan B. Anthony List, 134 S. Ct. at 2341

(quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61

(1992)). The injury-in-fact requirement is only satisfied when

an injury is “‘concrete and particularized’ and ‘actual or

6
imminent, not conjectural or hypothetical.’” Id. (quoting Lujan,

504 U.S. at 560).

“The party invoking federal jurisdiction bears the burden

of establishing these elements.” Lujan, 504 U.S. at 561

(internal citations omitted). “Since they are not mere pleading

requirements but rather an indispensable part of the plaintiff's

case, each element must be supported in the same way as any

other matter on which the plaintiff bears the burden of proof,

i.e., with the manner and degree of evidence required at the

successive stages of the litigation.” Id. “In response to a

summary judgment motion . . . the plaintiff . . . must set forth

by affidavit or other evidence specific facts, Fed.Rule

Civ.Proc. 56(e), which for purposes of the summary judgment

motion will be taken to be true.” Id. (internal quotation marks

omitted). “[A]t summary judgment a court will not ‘presume’ the

missing facts necessary to establish an element of standing.”

Swanson Group Mfg. LLC v. Jewell, 790 F.3d 235, 240

(D.C.Cir.2015) (quoting Lujan v. Nat’l Wildlife Fed’n, 497 U.S.

871, 889 (1990)).

Although “states are ‘entitled to special solicitude in our

standing analysis’ . . . . [they are not] exempt from the burden

of establishing a concrete and particularized injury in fact.”

Coal. for Responsible Regulation Inc. v. EPA, 684 F.3d 102, 148

(D.C.Cir.2012)(quoting Massachusetts v. E.P.A., 549 U.S. 497,

7
522 (2007)); see also State of West Virginia v. U.S. Department

of Health and Human Services, 145 F.Supp.3d 94, 101

(2015)(reasoning that states “too must allege a cognizable

injury-in-fact to establish standing”).

Here, federal defendants dispute that plaintiffs have

satisfied the injury-in-fact requirement necessary to

demonstrate standing. The Court agrees.

1. Plaintiffs have failed to demonstrate that they have
suffered an injury-in-fact as a result of the binding
standards and self-implementing aspects of the IDMT
Plan

In support of their argument that they have standing to

bring their claims, plaintiffs state that the purpose of the

IDMT Plan was to make mandatory, binding changes to land use,

and that as a result of these changes, certain “immediate

decisions” went into effect upon its adoption. Pls.’ Combined

Reply in Supp. of Mot. for Summ. J., ECF No. 58 at 13. These

“immediate decisions” include “allocation of lands as open or

closed for salable mineral sales, lands open with stipulations

for oil and gas leasing, and OHV [Off Highway Vehicle] area

designations.” Id. Plaintiffs then assert that because deviating

from the standards set forth in the IDMT Plan would require a

site-specific forest plan amendment, “there is no legal ability

to change challenged standards in the interim between the

pendency of this action and when a later, site-specific activity

8
is undertaken.” Id. Plaintiffs conclude that they are

challenging binding standards for third-party activity and

assert that federal defendants cannot contend that the plan is

merely a planning level document because of the self-

implementing aspects of the plan. Id. at 14.

Federal defendants reply that they do not dispute that the

plan is intended to be implemented in the future, nor that it

contains binding standards. Federal Defs.’ Reply in Supp. of

Cross-Mot. for Summ. J., ECF No. 62 at 8. That said, federal

defendants assert that until there is a specific implementation

decision, there is no injury to plaintiffs’ claimed interests.

Id. at 9; Federal Defs.’ Combined Mem. in Supp. of Cross-Mot.

for Summ. J., ECF No. 56 at 37 (citing Fed. Forest Res. Coal. v.

Vilsack, 100 F.Supp.3d at 46 for the proposition that “plaintiff

lacks standing when challenged rule or plan does not implement

site-specific decision”). 5 Federal defendants dispute that any of

the “immediate decisions” provide a basis for a cognizable

injury-in-fact, pointing out that plaintiffs “merely speculate

that those immediate decisions will somehow affect revenues owed

5
Plaintiffs distinguish Fed. Forest Res. Coal. v. Vilsack, 100
F.Supp.3d. 121 (D.D.C.2015) from the circumstances in this case
because the binding standards in the IDMF Plan are distinct from
the ‘amalgamation of first principles’ at issue in Fed. Forest
Res. Coal. Pls.’ Combined Reply in Supp. of Mot. for Summ. J.,
ECF No. 58 at 13. However, it is not necessary for the Court to
address this issue because plaintiffs have failed to provide any
facts in support of their injury-in-fact.
9
to the State.” Id. at 9-10. In sum, according to federal

defendants, “[p]laintiffs’ allegations of harm flowing from the

certainty of the plans are unsupported by facts, speculative and

conclusory.” Id.

Plaintiffs bear the burden of demonstrating that they

“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.” Lujan, 504

U.S. at 561 (internal quotations omitted). At the summary

judgment stage, plaintiffs must “set forth by affidavit or other

evidence specific facts” supporting the alleged injury-in-fact.

Id.(internal quotations omitted). Based on the record before the

Court, plaintiffs have failed to meet this burden because they

set forth no facts at all to support their argument that the

binding standards and self-implementing aspects of the plan have

caused them injuries. See Pls.’ Combined Reply in Supp. of Mot.

for Summ. J., ECF No. 58 at 13-14. Plaintiffs’ citations to the

Administrative Record support their point that the plan contains

binding standards. Id. at 14. Plaintiffs do not, however, set

forth any specific facts to demonstrate an injury-in-fact as a

result of the binding standards and self-implementing aspects of

the IDMT Plan.

10
 2. Plaintiffs have failed to demonstrate that they have
suffered an injury-in-fact to Governor Otter’s ability
to carry out his constitutional responsibilities

Next, plaintiffs argue that the mandatory standards set

forth in the plan “directly impede, impair and injure Governor

Otter’s ability to carry out his constitutional responsibilities

as chief executive of Idaho, which is a cognizable injury-in-

fact.” Pls.’ Combined Reply in Supp. of Mot. for Summ. J., ECF

No. 58 at 14-15. Plaintiffs assert that because of the interest

states have as sovereigns in creating and enforcing a legal

code, they “may have standing based on (1) federal assertions of

authority to regulate matters they believe they control, (2)

federal preemption of state law, and (3) federal interference

with the enforcement of state law, at least where the state

statute at issue regulate[s] behavior or provide[s] for the

administration of a state program.” Pls.’ Combined Reply in

Supp. of Mot. for Summ. J., ECF No. 58 at 15 (quoting Texas v.

United States, 809 F.3d 134, 153 (5th Cir.2015), as revised (Nov.

25, 2015), aff’d by an equally divided Court, 136 S.Ct. 2271,

2272 (2016)). Plaintiffs argue that “[i]njury to Idaho’s

sovereign authority over wildlife management” is a cognizable

injury-in-fact because, pursuant to Idaho Code § 36-103, the

wild animals within the borders of the state are owned by the

state in its sovereign capacity. Pls.’ Combined Reply in Supp.

of Mot. for Summ. J., ECF No. 58 at 14-15.

11
 Federal defendants acknowledge that “[s]tates can have

standing to challenge federal actions that allegedly infringe on

state sovereignty or police powers in certain circumstances,

such as where federal law impairs the enforceability of an

existing state law or directly regulates a state officer’s

official duties.” Federal Defs.’ Reply in Supp. of Cross-Mot.

for Summ. J., ECF No. 62 at 11 (citing Arpaio v. Obama, 27

F.Supp.3d, 185, 201-02 (D.D.C. 2014)). Those circumstances are

not present here, according to federal defendants, because at

issue is “a federal land use plan, promulgated pursuant to valid

delegations of federal power vested in the federal government by

the Constitution, which applies only to federal property and

will be implemented by federal officials.” Id. at 11-12. Federal

defendants agree that the State of Idaho has police powers over

the wildlife on state lands, noting that the IDMT Plan neither

regulates Sage-Grouse nor infringes on the State’s authority to

manage wildlife on its own land. 6 Id. at 13.

The Court finds plaintiffs’ legal support for standing

based on injury to state sovereignty to be unpersuasive. In

Texas v. United States, which constitutes persuasive authority

6 The Court agrees with federal defendants’ observation that the
cases cited by plaintiffs which stand for the proposition that
States have police powers over the wildlife within their borders
do not provide legal support for their theory of standing based
on state sovereignty.
12
for this Court, the Court of Appeals for the Fifth Circuit found

that the State of Texas had standing to sue because it had

demonstrated that it “would incur significant costs in issuing

driver’s licenses to DAPA [Deferred Action for Parents of

Americans and Lawful Permanent Residents] beneficiaries.” 809

F.3d at 155. This circumstance, which concerns the financial

impact of federal action on a program wholly within the purview

of state law—specifically the issuance of state driver’s

licenses—is clearly distinguishable from the circumstance in

this case, which, as explained by federal defendants, concerns

“a federal land use plan, promulgated pursuant to valid

delegations of federal power vested in the federal government by

the Constitution, which applies only to federal property and

will be implemented by federal officials.” Federal Defs.’ Reply

in Supp. of Cross-Mot. for Summ. J., ECF No. 62 at 11-12. Nor

does plaintiffs’ reliance on Alaska v. U.S. Dep’t of Transp.,

868 F.3d 441, 443 (D.C.Cir.1989) help their cause as the injury

alleged in that case was federal preemption of state law, which

has not been alleged in this case.

In Arpaio, Chief Judge Howell of this Court rejected a

county sheriff’s standing to sue in his official capacity based

on a theory similar to the “spill-over” effect theory advanced

by Governor Otter and the Idaho State Legislature here. See

infra Section III.A.3. Sheriff Arpaio alleged that federal

13
immigration policies “inhibit[ed] his ability to perform his

official functions as the Sheriff of Maricopa County” and

“adversely affected and harmed his office’s finances, workload,

and interfere[d] with the conduct of his duties.” 27 F.Supp.3d

at 200. The Court acknowledged that if federal law directly

regulated a state officer’s official duties it would present a

question distinct from that before the Court: “the challenged

[federal] programs do not regulate the official conduct of the

plaintiff but merely regulate the conduct of federal immigration

officials in the exercise of their official duties.” Id. at 202.

This is analogous to the circumstance in this case, which again

concerns “a federal land use plan . . . which applies only to

federal property and will be implemented by federal officials.”

Federal Defs.’ Reply in Supp. of Cross-Mot. for Summ. J., ECF

No. 62 at 11-12.

Even if there was legal precedent for plaintiffs’ theory of

injury to state sovereignty, based on the record before the

Court, plaintiffs have failed to meet their burden of

demonstrating that they “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 . . . set forth by affidavit or other evidence

specific facts” supporting the alleged injury-in-fact. Lujan,

504 U.S. at 561 (internal quotations omitted). The three

14
declarations plaintiffs cite to demonstrate injury-in-fact to

Governor Otter’s ability to carry out his constitutional

responsibilities merely speculate about various injuries that

may result from the implementation of the IDMT Plan. None

provide factual support demonstrating any concrete and

particularized, and actual or imminent injury as a result of the

IDMT Plan. See Otter Decl., ECF No. 17, ¶¶ 6, 12-47, 48-54

(alleging generalized injuries to Governor’s and State’s ability

to execute constitutional duties); Moore Decl., ECF No. 22, ¶¶

23-25 (describing how certain changes to the IDMT Plan were not

justified and were made without soliciting or considering

Idaho’s comments); Schultz Decl. ECF No. 19, ¶¶ 5-7, 9

(estimating losses to state revenue resulting from non-surface

occupancy restrictions and listing general impacts that “may”

result from the IDMT Plan).

3. Plaintiffs have failed to demonstrate that they have
suffered an injury-in-fact as a result of “spillover”
effects of the IDMT Plan on state and privately owned
lands

Next, plaintiffs argue that their injury includes: (1) the

“spillover effects of federal management onto surrounding state-

and privately- owned lands” which are “intermixed in a checker-

board pattern” and across which Sage-Grouse freely range; (2)

lost state revenue from bonuses and royalties from oil and gas

production on federal land as a result of the no surface

15
occupancy (NSO) restrictions in the [Sagebrush Focal Areas]” and

(3) an increase in the risk of wildfires on federal land, which

will spread to adjacent state land. Pls.’ Combined Reply in

Supp. of Mot. for Summ. J., ECF No. 58 at 17.

Federal defendants respond that plaintiffs’ allegations are

are conclusory and lack factual support and that none of the

“spillover effects” demonstrate an injury-in-fact. Federal

Defs.’ Reply in Supp. of Cross-Mot. for Summ. J., ECF No. 62 at

14.

Again, however, plaintiffs have failed to meet their burden

of demonstrating that they “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 . . . set forth by affidavit or other evidence

specific facts” supporting the alleged injury-in-fact. Lujan,

504 U.S. at 561 (internal quotations omitted). The five

declarations plaintiffs cite to demonstrate injury-in-fact as a

result of spill-over effects of the IDMT Plan fail to provide

factual support demonstrating any concrete and particularized,

and actual or imminent injury. See Schultz Decl. ECF No. 19, ¶¶

5-7, 9 (estimating losses to state revenue resulting from non-

surface occupancy restrictions and listing general impacts that

“may” result from the IDMT Plan); Chatburn Decl., ECF No. 20, ¶¶

18-20 (declaring that the China Mountain wind energy project was

16
“effectively jettisoned” when work on the Environmental Impact

Statement for that project was deferred until the IDMT Plan

process was finalized and that the IDMT Plan “continue[s] the

federal government’s pattern, to date, of refusing to permit or

significantly delaying the development of utility scale,

renewable energy projects . . . [and also] undermin[ing] the

necessity of predictability in Western energy siting processes); 7

Brackett Decl., ECF No. 24, ¶ 9 (declaring that the IDMT Plan

will result in an exacerbated wildfire risk); Bedke Decl., ECF

No. 21, ¶¶ 6-7, 13 (declaring that the threat of wildfires will

be exacerbated and that the State’s sovereign authority to

manage wildlife within its borders is undermined by the IDMT

Plan); Gould Decl., ECF No. 23, ¶¶ 10-11, 16-17(declaring a

potentially dramatic impact on Idaho’s livestock industries and

local economies, expecting value of state leases to be impacted,

describing expected impacts on members of Idaho’s livestock

industry who utilize public grazing allotments). 8

7
Moreover, the Court notes that the decision to defer work on the
EIS for the China Mountain wind energy project was a separate
agency decision that is not being challenged in this case.
8 The Court agrees with federal defendants that plaintiffs’

fourth argument—that “agency actions are not immune to judicial
review simply because they are labelled ‘plans’”, see Pls.’
Combined Reply in Supp. of Mot. for Summ. J., ECF No. 58 at 17,
is more relevant to ripeness than standing. Clearly, the IDMT
Plan is not immune to judicial review as long as the plaintiff
can demonstrate: “(1) an ‘injury in fact,’ (2) a sufficient
‘causal connection between the injury and the conduct complained
of,’ and (3) a ‘likel[ihood]’ that the injury ‘will be redressed
17
 IV. CONCLUSION

For the reasons stated above, plaintiffs’ motion for

summary judgment is DENIED, federal defendants’ cross-motion for

summary judgment is GRANTED, and intervenor-defendants’ cross-

motion for summary judgment is DENIED as moot. An appropriate

order accompanies this Memorandum Opinion.

Signed: Emmet G. Sullivan
United States District Judge
January 5, 2017

by a favorable decision.’” Susan B. Anthony List, 134 S. Ct. at
2341 (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-
61 (1992)). As explained above, plaintiffs here have failed to
demonstrate that they have suffered an injury-in-fact as a
result of the adoption of the plan.
18