Committee to Save the Rio Hondo v. Lucero

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.

-2-
 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

-3-
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

-4-
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.

-5-
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.

-6-
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.

-7-
 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

-8-
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

-9-
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

-10-
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.

-11-
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)).

-12-
 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

-13-
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.

-14-
 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

-15-
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.

-16-
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.

-17-
 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

-18-
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.

-19-
 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.

-20-
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.