Committee to Save the Rio Hondo v. Lucero

Citation102 F.3d 445
Decision Date06 December 1996
Docket NumberNo. 95-2274,95-2274
Parties, 27 Envtl. L. Rep. 20,576, 96 CJ C.A.R. 1993 COMMITTEE TO SAVE THE RIO HONDO, Plaintiff-Appellant, v. Leonard LUCERO, Carson National Forest Supervisor, United States Department of Agriculture Forest Service, Defendant-Appellee. Taos Ski Valley, Inc., Defendant-Intervenor-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)

Steven Sugarman (Eric Ames, Taos, NM, with him on the briefs), Santa Fe, NM, for Plaintiff-Appellant.

John A. Mitchell of Mitchell and Mitchell, Santa Fe, NM, for Defendant-Intervenor-Appellee.

Before BRORBY, RONEY * and LOGAN, Circuit Judges.

BRORBY, Circuit Judge:

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.

I. 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.

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 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 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.

II. 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, 112 S.Ct. 2130, 2136, 119 L.Ed.2d 351 (1992) (citing Allen v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 3324, 82 L.Ed.2d 556 (1984)). 2 The constitutional minimum of standing contains three elements. Defenders of Wildlife, 504 U.S. at 560, 112 S.Ct. at 2136. 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, 112 S.Ct. at 2136; 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, 112 S.Ct. at 2136; Catron County, 75 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, 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, 110 S.Ct. 3177, 3186, 111 L.Ed.2d 695 (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, 93 S.Ct. 2405, 2415, 37 L.Ed.2d 254 (1973); Sierra Club v. Morton, 405 U.S. 727, 733, 92 S.Ct. 1361, 1365, 31 L.Ed.2d 636 (1972); see also National Wildlife Fed'n, 497 U.S. at 883, 110 S.Ct. at 3186. 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, 110 S.Ct. at 3187. 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.

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, 96 S.Ct. 2718, 2730 n. 21, 49 L.Ed.2d 576 (1976). By focusing the agency's attention on the environmental consequences of its actions, the National Environmental Policy Act "ensures that 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, 109 S.Ct. 1835, 1845, 104 L.Ed.2d 351 (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, 109 S.Ct. at 1845-46.

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...

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