Pub. Lands for the People, Inc. v. U.S. Dep't of Agric.

• Decision Date: 26 September 2012
• Docket Number: No. 11–15007.,11–15007.
• Citation: 697 F.3d 1192
• Parties: PUBLIC LANDS FOR THE PEOPLE, INC., a California 501 C–3, non-profit corporation; Gerald E. Hobbs; Bryan Bunting; Hillarie Bunting; Steve Wandt; Gene E. Bailey; Richard Nuss; Randy Burleson, individuals, Plaintiffs–Appellants, v. UNITED STATES DEPARTMENT OF AGRICULTURE; United States Forest Service; Tom Vilsack, in his official capacity as Secretary of Agriculture; Tom Tidwell, in his official capacity as Chief Forester of the USDA Forest Service; Randy Moore, in his official capacity as Regional Forester USDA Forest Service Regional Office R5; Ramiro Villalvazo, in his official capacity as Forest Supervisor of the El Dorado National Forest, Defendants–Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

697 F.3d 1192

2012 Daily Journal D.A.R. 13,466

PUBLIC LANDS FOR THE PEOPLE, INC., a California 501 C–3, non-profit corporation; Gerald E. Hobbs; Bryan Bunting; Hillarie Bunting; Steve Wandt; Gene E. Bailey; Richard Nuss; Randy Burleson, individuals, Plaintiffs–Appellants,

v.UNITED STATES DEPARTMENT OF AGRICULTURE; United States Forest Service; Tom Vilsack, in his official capacity as Secretary of Agriculture; Tom Tidwell, in his official capacity as Chief Forester of the USDA Forest Service; Randy Moore, in his official capacity as Regional Forester USDA Forest Service Regional Office R5; Ramiro Villalvazo, in his official capacity as Forest Supervisor of the El Dorado National Forest, Defendants–Appellees.

No. 11–15007.

United States Court of Appeals,Ninth Circuit.

Argued and Submitted April 17, 2012.

Filed Sept. 26, 2012.

David Young (argued), Law Offices of David Young, Los Angeles, CA, for the plaintiffs-appellants.

Ignacia S. Moreno, Assistant Attorney General, David C. Shilton (argued), Andrew C. Mergen, and Jason A. Hill, Attorneys United States Department of Justice, Environment & Natural Resources Division, Washington, DC; Thomas K. Snodgrass, Attorney United States Department of Justice, Environmental Defense Section, Denver, CO, for the defendants-appellees.

Appeal from the United States District Court for the Eastern District of California, Lawrence K. Karlton, Senior District Judge, Presiding. D.C. No. 2:09–cv–01750–LKK–JFM.

Before: ALEX KOZINSKI, Chief Judge, M. MARGARET McKEOWN and N. RANDY SMITH, Circuit Judges.

OPINION

McKEOWN, Circuit Judge:

The Wild West has long conjured up images of prospectors with pack mules and pickaxes foraging for gold. The oft-romanticized ways of the Wild West eventually modernized and gave way to prospecting with the aid of motor vehicles and heavy machinery. The United States Forest Service (the “Forest Service”), an arm of the Department of Agriculture, recently limited the use of motor vehicles to certain roads in the century-old El Dorado National Forest (“ENF”). Concerned about the impact of the limitation on their activities, a group of miners and prospectors challenged the Forest Service's decision. The district court dismissed the complaint, and we affirm.

Background

Beginning in 2005, the Forest Service published a Notice of Intent to propose prohibitions on motor vehicle use in the ENF, held public meetings, and circulated for public comment a draft environmental impact statement on proposed travel management in the ENF. The Final Environmental Impact Statement (“FEIS”), issued in March 2008, recognized that if prohibitions on motor vehicle use were adopted, miners and prospectors would need to obtain permission, through a Notice of Intent or Plan of Operations, to use motor vehicles in areas where no such permission restriction existed before. The FEIS discussed the effect of 36 C.F.R. § 228, which requires miners to obtain pre-authorization when conducting certain operations:

Individuals or companies that conduct prospecting and exploration activities are not usually required to obtain a permit or other form of authorization, pursuant to 36 CFR 228, but must comply with other Forest rules and regulations. Access associated with mineral developmentactivities, such as for an active mine, is commonly dealt with through a Plan of Operations or Notice of Intent, pursuant to 36 CFR 228.

The FEIS explicitly acknowledged that, because mining and prospecting are “facilitated by the use of public wheeled motor vehicles for access and hauling of equipment,” restrictions on motorized vehicle use in areas with likely mineral resources “may have the affect [sic] of reducing access for prospecting or exploration, with the subsequent effect of a reduction of discovery of new mineral resource commodities.”

In April 2008, the Forest Service issued a decision limiting motor vehicle use in the ENF to certain roads and trails and prohibiting public wheeled motor vehicle cross-country travel 11875 (the “2008 Decision”). The 2008 Decision specifically limits motor vehicle use by the public to “1,002 miles of ML–2 roads and 210 miles of trails,” while concurrently disallowing motor vehicle use on 502,000 acres of previously open forest land.¹ According to the Forest Service, the 2008 Decision provides “diverse public wheeled motor vehicle opportunities,” while minimizing effects on both forest resources and wildlife and “limiting conflict between wheeled motor vehicle use and other recreation opportunities.”

Appellants (“the Miners”) are seven individuals who wish to use motor vehicles to pursue mining or prospecting activities in the ENF, and Public Lands for the People, Inc., an association of miners and prospectors. Some of the individuals claim existing mining rights within the ENF, while others simply anticipate prospecting for minerals. The Miners allege that, due to the 2008 Decision, they “could [now] be subject to criminal and civil penalties for failure to file a Notice of Intent or Plan of Operations should they proceed [with motor vehicle use] without such authorization.” The Miners seek “to vindicate Federal rights of access to prospect, and access their mining claims” by continuing to use motor vehicles on ENF roads in the same manner as they did before the 2008 Decision.

The Miners claim that the Forest Service is without authority to restrict their motor vehicle use and that the Forest Service “acted arbitrarily and capriciously by requiring that entry onto roads and rights of way previously open, and now closed due to the [2008 Decision], requires a Notice of Intent or Plan of Operations pursuant to 36 C.F.R. § 228.4(a) in order to prospect and/or access a valid Federal mining claim and mineral estate.” The district court held that the Miners failed to establish standing and, alternatively, that they failed to state a claim upon which relief could be granted because the Secretary of Agriculture had the authority to impose the road restrictions and reasonably interpreted a Forest Service regulation pertaining to “public roads.”

Analysis

I. Standing

“Article III ... gives the federal courts jurisdiction over only ‘cases and controversies.’ ” Whitmore v. Arkansas, 495 U.S. 149, 154–55, 110 S.Ct. 1717, 109 L.Ed.2d 135 (1990) (citation omitted). The oft-cited Lujan v. Defenders of Wildlife case states the three requirements for Article III standing: (1) an injury in fact that (2) is fairly traceable to the challenged conduct and (3) has some likelihood of redressability. 504 U.S. 555, 560–61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). With respect to the “injury in fact” requirement, the threat of injury must be “concrete and particularized; ... actual and imminent, not conjectural or hypothetical.” Summers v. Earth Island Inst., 555 U.S. 488, 493, 129 S.Ct. 1142, 173 L.Ed.2d 1 (2009).

The district court sua sponte dismissed the Miners' first amended complaint for lack of standing. According to the district court, the “injury in fact” prong required the Miners to identify specific mining claims affected by the 2008 Decision, as well as the road closures that limited their ability to access those claims. “Because the district court sua sponte dismissed [the Miners'] complaint on its face,” we review “standing as if raised in a motion to dismiss.” Bernhardt v. Cnty. of Los Angeles, 279 F.3d 862, 867 (9th Cir.2002). We “accept all factual allegations of the complaint as true and draw all reasonable inferences in favor of the nonmoving party.” Id. (internal quotation marks and citation omitted).

The district court's restrictive approach unduly burdens the standing requirements with bells and whistles not imposed by the Supreme Court. The Miners' standing to bring suit rests on their claim that they should not be forced to obtain advance approval either to access their claims or to prospect for minerals. It doesn't depend on the details of their mining rights. As the government acknowledges, road closures pursuant to the “[2008] Decision place [ ] at least a modest burden on prospectors or miners who before that decision did not have to request that authorization.”

The Miners' allegations are not vacuous. Some of them are apparently no longer able to access their mining claims. For example, the Bunting family claims “access to their Federal mining claims and mineral estates has been closed pursuant to the FEIS and [Record of Decision], in that Forest Road 13N92 is now closed to wheeled motorized vehicles.” Identical allegations are made by another miner, Bailey, regarding Road 14N25G.

We must accept these allegations as true. They are sufficient to establish standing under the Defenders of Wildlife factors. Some of the Miners have suffered an injury in fact because they can no longer access their mining claims via motor vehicles without first filing a Notice of Intent or Plan of Operations. The denial of access is “fairly traceable” to the 2008 Decision, and it could be redressed by a court order striking down the prohibition on vehicular access. The Miners aren't required to identify particular mining claims to satisfy constitutional standing. See Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 889, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990) (noting that in a motion to dismiss, we “presume[ ] that general allegations embrace those specific facts that are necessary to support the claim”).

The harm alleged here is not unlike that in Karuk Tribe of California v. United States Forest Service, in which we recently held that a Native American tribe had standing to challenge a Forest Service decision that allowed mining because such “operations could impact the Tribe's ability to enjoy the spiritual, religious, subsistence, recreational, wildlife, and aesthetic qualities of the areas affected by the mining operations, ... [and] any alleged failure of the Forest Service to properly regulate mining operations could directly and adversely harm the Tribe and its members.”...