Double R Ranch Trust v. Nedd, Case No. 17–cv–438 (CRC)
| Citation | 284 F.Supp.3d 21 |
| Decision Date | 18 January 2018 |
| Docket Number | Case No. 17–cv–438 (CRC) |
| Court | U.S. District Court — District of Columbia |
| Parties | DOUBLE R RANCH TRUST, et al., Plaintiffs, v. Michael D. NEDD, et al., Defendants. |
Diane M. Meyers, Northwest Resource Law PLLC, Seattle, WA, Jennie L. Bricker, Jennie Bricker Land & Water Law, Portland, OR, for Plaintiffs.
John Pershing Tustin, U.S. Department of Justice, Washington, DC, for Defendants.
Peter M.K. Frost, Western Environmental Law Center, Eugene, OR, for amici curiae Rogue Riverkeeper et al.
Under the Wild and Scenic Rivers Act, Congress can designate certain rivers in the United States for statutory protection intended to preserve the river's flow, water quality, and other natural, recreational, or cultural attributes. This case concerns the conclusion by the Medford, Oregon district of the Bureau of Land Management ("Bureau") that a segment of the Rogue River in Oregon is suitable for Congress to designate for future protection under the Act. Plaintiffs contend that this decision is flawed and here sued the Bureau's Acting Director seeking its reversal. But because the Bureau's suitability determination is but one step in a long and unpredictable process towards potential congressional designation, and because they fail to allege an injury-in-fact that is traceable to the suitability determination itself, Plaintiffs lack standing to challenge that determination. The Court will, accordingly, grant Defendants' motion to dismiss for lack of subject matter jurisdiction.
The Wild and Scenic Rivers Act, passed by Congress in 1968, serves to protect free-flowing rivers that "possess outstandingly remarkable scenic, recreational, geologic, fish and wildlife, historic, cultural, or other similar values." 16 U.S.C. § 1271. Such rivers are to be "preserved in free-flowing condition" so that "they and their immediate environments shall be protected for the benefit and enjoyment of present and future generations." Id. Each river designated for protection under the act is classified as either a wild, scenic, or recreational river. Id. § 1273(b). Together, these rivers form the national wild and scenic rivers system.
When Congress first passed the Act, it included a list of rivers designated for protection. See id. § 1274(a). Additional rivers can be so designated by an act of legislation. Id. § 1273(a)(i).2 The Secretary of the Interior and the Secretary of Agriculture are further directed to conduct a study of certain other rivers and make a recommendation to Congress as to whether those rivers should be designated for protection by legislative act. Id. § 1275(a); see also id. § 1276(a) (). The Act also directs federal agencies to consider other potential national wild, scenic, and recreational rivers within lands under their jurisdiction and to make recommendations regarding potential designations to Congress. Id. § 1276(d)(1).
The study process for both congressionally-mandated study rivers—those that Congress has directed for study—and agency-identified study rivers—those that agencies choose to study absent congressional direction—is the same. The process involves two main phases: eligibility and suitability. First, the agency determines if the river is eligible for designation. Defs.' Mem. Supp. Mot. Dismiss ("Def.'s MTD") Ex. C ("Study Manual"), at 12. For eligibility, the main question is whether the river meets the statutory requirements to be free-flowing and to possess one or more "outstandingly remarkable values." Id. If the agency determines that a river is eligible, it assigns a tentative classification to the river—either as a wild, scenic, or recreational river. Id. at 15.
Next, if the river is found eligible, the agency determines if it is suitable for designation. Id. at 17. The "suitability" analysis focuses on three questions: (1) whether the river's free-flowing character, water quality, and outstanding values should be protected in light of any other important uses of the river; (2) whether the river's free-flowing character, water quality, and outstanding values will be protected through designation, considering the costs and benefits of doing so; and (3) whether there is a demonstrated commitment to protect the river by nonfederal entities who might share in its protective management. Id.
If an agency determines that a river is suitable for designation, the river then undergoes the recommendation process. Id. at 19–21. With respect to congressionally-mandated study rivers, the responsible federal agency's staff prepares a formal study report, which is subject to a 90–day review by the Secretary of the Interior or Agriculture (depending on which agency prepared the report), the Secretary of the Army, the Chairman of the Federal Energy Regulatory Commission, the Governors of the States where the river is located, and the heads of any other affected federal departments or agencies. Id. at 19–20. The study result and the relevant comments are transmitted to the President, who then delivers the report to Congress. Id. at 20. For agency-initiated study rivers, the recommendation by the agency is first made through a record of decision for an environmental impact statement, which follows a notice-and-comment process. Id. at 21. A draft bill and the report are then reviewed by the Office of Management and Budget before being transmitted by the Secretary of the Interior or the Secretary of Agriculture to Congress. Id. In the end, however, only Congress can designate recommended rivers by passing a legislative act. See 16 U.S.C. § 1273(a)(i).
To ensure that designated rivers are adequately preserved, the Act created a variety of statutory protections, including a prohibition on the licensing of any dam along the river, id. § 1278(a); limitations on agency authorization of "any water resource project that would have a direct and adverse effect" on the river's values, id.; restrictions on mining rights on federal lands within one-quarter mile of protected rivers, id. § 1280(a); and removal of any federal land containing protected rivers and their associated lands from sale, id. § 1279(a). Federal agencies and departments are generally instructed to manage designated rivers and their associated lands to protect the rivers. Id. § 1283(a).
The Act also extends some of these protections accorded designated rivers to congressionally-mandated study rivers during the study period and prior to any designation. For instance, the prohibition on licensing dams or other projects along the river that "would have a direct and adverse effect" on the river's values extends to congressionally-mandated study rivers. Id. § 1278(b). Similarly, restrictions on mining on federal lands, id. § 1280(b), and on the sale of federal lands within a designated river and its area, id. § 1279(b), extend to congressionally-mandated study rivers. In contrast, an agency -identified study river "is not protected under the Act." Study Manual at 21; see also id. at 26–28. However, agencies can use their pre-existing authorities—such as those under the Federal Land Management and Planning Act, the Endangered Species Act, or the Clean Water Act—to try to preserve the free-flowing nature, water quality, and outstanding values of the river so that it remains suitable or eligible for designation. Id. at 21, 29–30.
The Rogue River, located in southwestern Oregon, flows more than 200 miles from the Cascade Range to the Pacific Ocean. One segment of the Rogue, totaling 84.5 miles, was designated for protection as a wild and scenic river with the original passage of the Wild and Scenic Rivers Act in 1968. See 16 U.S.C. § 1274(a)(5). An additional segment, this one stretching 40.3 miles, was designated for protection by Congress in 1988. See id. § 1274(a)(104).
This case concerns the potential designation of a third segment of the Rogue River. In 1990, the Western Oregon divisions of the Bureau completed the first phase of the study process for the rivers in western Oregon and determined that fifty-one river segments, including a third section of the Rogue, were eligible for designation. Defs.' MTD Ex. F, at 1. The Western Oregon divisions proceeded to the second phase of the study process, a determination of whether the fifty-one river segments were also suitable for designation. Id. at 1, 4–5. In August 2016, the divisions reached their final determinations, concluding that six of the fifty-one river segments met the criteria for suitability. Id. at 6. One of those six rivers was a 63.2 mile segment of the Rogue River (the "Proposed Segment"), which had been tentatively classified as a recreational river. Id. at 121–38.3
A group of plaintiffs subsequently filed suit against the Acting Director of the Bureau of Land Management and the Secretary of the Interior, seeking to vacate the Medford District's determination that the Rogue River segment was eligible and suitable for recommendation for designation. Compl. ¶ 1. The plaintiffs consisted of Double R Ranch Trust, the owner of property alongside the Rogue River and Proposed Segment, id. ¶ 4; the Oregon Cattleman's Association, a nonprofit trade association representing the interests of Oregon cattle producers, id. ¶ 8; and the Oregon Concrete and Aggregate Producers Association, a trade association representing the concrete industry, id. ¶ 12. They alleged that the suitability determination was arbitrary and capricious under the Administrative Procedures Act ("APA") and sought a declaration that the Proposed Segment was neither eligible nor suitable for designation. Id. ¶¶ 71, 73.
Defendants moved to dismiss, arguing that the Plaintiffs lack standing, that there is no final agency action as required for review under the APA, and that the case is not ripe...
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