Ashley Creek Phosphate Co. v. Norton

• Decision Date: 22 August 2005
• Docket Number: No. 04-35640.,04-35640.
• Citation: 420 F.3d 934
• Parties: ASHLEY CREEK PHOSPHATE CO., Plaintiff-Appellant, v. Gale NORTON, Secretary, United States Department of the Interior; Nu-West Industries, Inc., dba: Agrium Conda Phosphate Operations, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

420 F.3d 934

ASHLEY CREEK PHOSPHATE CO., Plaintiff-Appellant, v. Gale NORTON, Secretary, United States Department of the Interior; Nu-West Industries, Inc., dba: Agrium Conda Phosphate Operations, Defendants-Appellees.

No. 04-35640.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 7, 2005.

Filed August 22, 2005.

E. Craig Smay, E. Craig Smay, P.C., Salt Lake City, UT, for the appellant.

Zach C. Miller, Davis Graham & Stubbs, Denver, CO, for the appellees.

Robert C. Grisham, Assistant United States Attorney, Boise, ID, for the appellees.

Appeal from the United States District Court for the District of Idaho; B. Lynn

Winmill, District Judge, Presiding. D.C. No. CV-03-00499-BLW.

Before FERGUSON, BEEZER, and McKEOWN, Circuit Judges.

McKEOWN, Circuit Judge.

The issue we address is whether Ashley Creek Phosphate Company has standing to bring this action under the National Environmental Policy Act ("NEPA"). Ashley Creek has no environmental stake in the phosphate mining project at issue, which is some 250 miles from the phosphate Ashley Creek controls. Indeed, its only interest is an economic one: if the project does not go forward, Ashley Creek speculates that it might become an alternate supplier of phosphate. Because it has shown neither an injury in fact nor an interest within the zone of interests protected by section 102(2)(C) of NEPA,¹ Ashley Creek lacks standing to bring this NEPA challenge.

PROCEDURAL AND FACTUAL BACKGROUND

Agrium Conda Phosphate Operations manufactures phosphate-based fertilizer at the Conda Phosphate Processing Plant ("the Plant") near Soda Springs, Idaho. Agrium historically has obtained phosphate for the Plant from the Rasmussen Ridge Mine, which is about twelve miles from the Plant. With the Rasmussen Ridge Mine nearing depletion, Agrium began exploring alternate sources of phosphate in the late 1990s.

One option that Agrium initially considered was to supply the Plant with phosphate from deposits near Vernal, Utah ("Vernal deposits"). The Vernal deposits are controlled by Ashley Creek, which leases large portions of the deposits from the State of Utah. Agrium contacted Ashley Creek to find out whether it could supply phosphate for the Plant, but after investigating the cost of mining and transporting phosphate from the Vernal deposits, Agrium decided that obtaining phosphate from Ashley Creek was too expensive.

Agrium turned its attention to expanding its existing operations at the Rasmussen Ridge Mine into North Rasmussen Ridge where it had not previously mined. Much of the land on North Rasmussen Ridge is administered by the Bureau of Land Management ("BLM"), which required Agrium to submit a mine and reclamation plan. The BLM determined that an Environmental Impact Statement ("EIS") was necessary to evaluate the potential impact of exposing harmful materials, such as selenium, and possible harm to the Canada Lynx, a species recently listed as "threatened" under the Endangered Species Act. The exposure of selenium and other elements contained in phosphate increases the potential for release of those elements into the water and soil.

The BLM prepared a draft EIS that considered three alternatives, including the proposed action — mining at North Rasmussen Ridge — and a no action alternative. In response, Ashley Creek submitted a letter commenting that the draft EIS was deficient because it did not consider as an alternative the possibility of mining the Vernal deposits that Ashley Creek controls. Ashley Creek wrote that the Vernal deposits were not only cost-effective, but were also environmentally superior to the proposed action.

In declining to include mining the Vernal deposits as an alternative in the final EIS, the BLM explained that its responsibility was to respond to the proposed mining expansion on North Rasmussen Ridge, not to compare various phosphate supplies:

[The BLM's responsibility is to] either approve the plan of operations as proposed, modify the mine plan with alternatives, or disapprove the operation with the No Action Alternative. As such, a comparative analysis of the cost or other environmental factors of mining North Rasmussen Ridge with other viable phosphate reserves is not within the scope of this analysis. The fundamental question to be decided by this NEPA analysis is not how Agrium's Conda Fertilizer Plant will be fed, but if the North Rasmussen Ridge reserve will be mined at this time.

The BLM also observed that Agrium's investigation indicated that the Vernal deposits were not a viable supply of phosphate because Ashley Creek had not developed the reserves, had no mine plan, and lacked a host of other conditions for mining.

Following the issuance of the final EIS, Ashley Creek filed a complaint in the district court alleging that the alternatives analysis in the EIS was deficient because it failed to consider supplying the Plant with phosphate from the Vernal deposits. The district court dismissed the suit for lack of standing, reasoning that Ashley Creek's interest was purely economic and economic interests do not fall within the zone of interests protected by NEPA.

DISCUSSION

To resolve this appeal, we must address the threshold question of standing. The Supreme Court has described standing as being "[i]n essence the question of . . . whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues." Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). Because Article III of the Constitution limits the role of the judiciary to hearing only "cases" or "controversies," constitutional standing ensures that a plaintiff has sufficient stake in a case to establish a "case" or "controversy." See United Food & Commercial Workers Union Local 751 v. Brown Group, Inc., 517 U.S. 544, 551, 116 S.Ct. 1529, 134 L.Ed.2d 758 (1996). Grafted on top of this constitutional backbone are prudential standing requirements consisting of "several judicially self-imposed limits on the exercise of federal jurisdiction." Id. (internal quotation marks and citation omitted). Thus, our standing analysis entails an examination of both constitutional and non-constitutional requirements. See City of Sausalito v. O'Neill, 386 F.3d 1186, 1197 (9th Cir.2004). We review a district court's determination of standing de novo. Id. at 1196-97.

I. ARTICLE III STANDING

Because Article III standing is based on constitutional limits on the federal courts' power, U.S. Const. art. III § 2, Article III standing requires as an "irreducible minimum," Brown Group, Inc., 517 U.S. at 551, 116 S.Ct. 1529, that the plaintiff show (1) an injury in fact that is both (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) that the injury is fairly traceable to the challenged action of the defendant; and (3) a likelihood that the injury will be redressed by a favorable decision. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., 528 U.S. 167, 180-81, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000). The injury in fact prong is determinative of this appeal.

The injury Ashley Creek asserts is that the BLM refused to include in the EIS the alternative that Agrium could mine phosphate from Ashley Creek's Vernal deposits. Ashley Creek's alleged injury is a procedural one that, in essence, amounts to a claim that the BLM injured it by failing to comply with NEPA's procedural requirement of considering alternatives. See NEPA § 102(2)(C)(iii) (requiring an EIS to consider alternatives to the proposed action).

NEPA is a procedural statute, and thus it is not surprising that procedural injuries frequently suffice for standing in the NEPA context. See e.g., Citizens for Better Forestry v. United States Dep't of Agric., 341 F.3d 961, 970-72, 978 (9th Cir.2003) (plaintiffs had standing when they alleged procedural injury of deprivation of opportunity to comment on environmental reviews); see also, Lujan v. Defenders of Wildlife, 504 U.S. 555, 573 n. 8, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (plaintiff "assuredly can" enforce procedural rights). But a plaintiff asserting a procedural injury does not have standing absent a showing that the "procedures in question are designed to protect some threatened concrete interest of his that is the ultimate basis of his standing." Lujan, 504 U.S. at 573 n. 8, 112 S.Ct. 2130.² A free-floating assertion of a procedural violation, without a concrete link to the interest protected by the procedural rules, does not constitute an injury in fact. See id. at 572-73 & nn. 7-8, 112 S.Ct. 2130; see also City of Sausalito, 386 F.3d at 1197 (plaintiff alleging a procedural injury must also assert a concrete interest that is threatened by failure to comply with the procedural requirement); Cantrell v. City of Long Beach, 241 F.3d 674, 679 (9th Cir.2001) (plaintiff alleging procedural injury must show that the procedures protect a concrete interest).

For claims brought under NEPA, "we have described this `concrete interest' test as requiring a `geographic nexus' between the individual asserting the claim and the location suffering an environmental impact." Cantrell, 241 F.3d at 679 (citing Douglas County v. Babbitt, 48 F.3d 1495, 1500 n. 5 (9th Cir.1995)). Accordingly, plaintiffs who use the area threatened by a proposed action or who own land near the site of a proposed action have little difficulty establishing a concrete interest. See, e.g., Citizens for Better Forestry, 341 F.3d at 971 (plaintiffs established geographic nexus by showing that they used and enjoyed national forests affected by proposed national forest management policy); Kootenai Tribe of Idaho v. Veneman, 313 F.3d 1094, 1112 (9th Cir.2002) (plaintiffs with ownership interests in land adjacent to forest affected by proposed action established geographic nexus).

Ashley Creek, whose phosphate leases are in Utah, lacks any judicially recognizable geographic nexus to the area that would be...