Southwest Center for Biological Diver. v. F.E.R.C.

• Decision Date: 28 March 1997
• Docket Number: No. CIV 96-0843-PCT-SMM.,CIV 96-0843-PCT-SMM.
• Citation: 967 F.Supp. 1166
• Parties: SOUTHWEST CENTER FOR BIOLOGICAL DIVERSITY, a non-profit corporation, Plaintiff, v. FEDERAL ENERGY REGULATORY COMMISSION, U.S. Forest Service, and Fred Trevey, the Coconino National Forest Supervisor, Defendants, and Phelps Dodge Corporation, Intervenor-Defendant.
• Court: U.S. District Court — District of Arizona

Page 1166

967 F.Supp. 1166

SOUTHWEST CENTER FOR BIOLOGICAL DIVERSITY, a non-profit corporation, Plaintiff, v. FEDERAL ENERGY REGULATORY COMMISSION, U.S. Forest Service, and Fred Trevey, the Coconino National Forest Supervisor, Defendants and Phelps Dodge Corporation, Intervenor-Defendant.

No. CIV 96-0843-PCT-SMM.

United States District Court, D. Arizona.

March 28, 1997.

Grove T. Burnett, David T. Gomez, Western Environmental Law Center, Taos, NM, for Plaintiff.

Kelly E. Mofield, U.S. Dept. of Justice, Environment & Natural Resources Div., Washington, DC, Eric Lee Christensen, Federal Energy Regulatory Com'n, Washington, DC, for Defendants.

Jerry L. Haggard, Gerrie Apker Kurtz, Kevin Michael Moran, Apker, Apker, Haggard & Kurtz, Phoenix, AZ, Cynthia Marie Chandley, Phelps Dodge Corp., Phoenix, AZ, for Intervenor.

MEMORANDUM OF DECISION AND ORDER

McNAMEE, District Judge.

Pending before this Court and considered herein is the Intervenor-defendant's motion to dismiss for lack of standing treated as a motion for summary judgment under Fed. R. Civ. Pro. 56, and the Federal Defendant's motion to dismiss pursuant to Fed. R. Civ. Pro. 12(b)(1), for lack of subject matter jurisdiction and 12(b)(6), for failure to state a claim upon which relief may be granted.

I. BACKGROUND

Plaintiff Southwest Center For Biological Diversity ("SWCBD"), a public interest organization, filed this declaratory and injunctive relief action against Defendants Federal Energy Regulatory Commission ("FERC"), the United States Forest Service ("Forest Service"), and Fred Trevey (collectively "the Federal Defendants") on April 8, 1996. Plaintiff alleges violations of the Endangered Species Act, 16 U.S.C. § 1531 et seq. ("ESA"), and its implementing regulations, 50 C.F.R. § 402 et seq.

Plaintiff contends that the FERC and the Forest Service have violated the ESA by (1) failing to formally consult the United States Fish and Wildlife Service (USFWS) on the ongoing effects of the Blue Ridge Hydro Project ("the Project") on a particular endangered fish species (Little Colorado River spinedace — hereinafter "spinedace"), and (2) authorizing an unpermitted taking of the spinedace by allowing continued operation of the Project without consultation of the USFWS. See Compl. at p. 2. Plaintiff seeks an injunction requiring the FERC and the Forest Service to enter into formal consultations with the USFWS and to modify the Project in such a way as to protect the spinedace pending completion of the consultation.

The Blue Ridge Hydro Project was constructed by Phelps Dodge Corporation in 1963. The Project is currently owned and operated by a wholly-owned subsidiary of Phelps Dodge. Id. On July 31, 1996, this Court granted a motion by Phelps Dodge to intervene as a defendant in this action.

The Federal Defendants collectively and Phelps Dodge ("Intervenor-defendant") separately filed motions to dismiss the Complaint. Intervenor-defendant Phelps Dodge's motion to dismiss was argued before this Court. Both motions are considered herein.

II. STANDING

Phelps-Dodge moved this Court to Dismiss pursuant to Rule 12(h)(3) of the Federal Rules of Civil Procedure. Plaintiff submitted affidavits in support of its opposition to the motion to dismiss and requested this Court treat the motion instead as a motion for summary judgment under Rule 56. Phelps Dodge expressly consented to Plaintiff's request. Accordingly, the Court will review the Intervenor-defendant's motion to dismiss as a motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure.

A. Standard of Review

A court must grant summary judgment if the pleadings and supporting documents, viewed in the light most favorable to the nonmoving party, "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c) (1995); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986); Jesinger v. Nevada Federal Credit Union, 24 F.3d 1127, 1130 (9th Cir.1994). Substantive law determines which facts are material. Anderson v. Liberty Lobby, 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986); see also Jesinger, 24 F.3d at 1130. "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 248, 106 S.Ct. at 2510. The dispute must also be genuine, that is, "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id.; see also Jesinger, 24 F.3d at 1130.

A principal purpose of summary judgment is "to isolate and dispose of factually unsupported claims." Celotex, 477 U.S. at 323-24, 106 S.Ct. at 2553. Summary judgment is appropriate against a party who "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Id. at 322, 106 S.Ct. at 2552; see also Citadel Holding Corp. v. Roven, 26 F.3d 960, 964 (9th Cir.1994). The moving party need not disprove matters on which the opponent has the burden of proof at trial. Celotex, 477 U.S. at 317, 106 S.Ct. at 2549-50. The party opposing summary judgment "may not rest upon the mere allegations or denials of [the party's] pleadings but must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); see also Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 585-88, 106 S.Ct. 1348, 1355-57, 89 L.Ed.2d 538 (1986); Brinson v. Linda Rose Joint Venture, 53 F.3d 1044, 1049 (9th Cir. 1995).

B. Discussion

The doctrine of standing encompasses both constitutional and statutory considerations. Salmon River Concerned Citizens v. Robertson, 32 F.3d 1346, 1353 (9th Cir.1994). To satisfy constitutional requirements for standing, plaintiffs must show: "(1) actual or threatened injury (2) suffered as a result of the allegedly illegal conduct of the defendant, which (3) fairly can be traced to the challenged action and (4) is likely to be redressed by a favorable decision." Id. at 1353 (citing Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 472, 102 S.Ct. 752, 758, 70 L.Ed.2d 700 (1982)) The Supreme Court recently summarized these requirements as follows:

(1) the plaintiff must have suffered an injury in fact — an invasion of a legally-protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical[;]¹

(2) there must be a causal connection between the injury and the conduct complained of — the injury has to be fairly ... trace[able] to the challenged action of the defendant, and not ... the result [of] the independent action of some third party not before the court; [and]

(3) it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.

Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 2136, 119 L.Ed.2d 351 (1992) (internal quotations and citations omitted). The party invoking federal jurisdiction bears the burden of establishing the above elements. Id. Because these elements are an indispensable part of the plaintiff's case, "each element must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation." Id.

In addition, a procedural injury can form the basis for standing. Douglas County v. Babbitt, 48 F.3d 1495, 1500, n. 3 (9th Cir. 1995), cert. denied, ___ U.S. ___, 116 S.Ct. 698, 133 L.Ed.2d 655, reh'g denied, ___ U.S. ___, 116 S.Ct. 1292, 134 L.Ed.2d 236 (1996). A plaintiff alleging a procedural injury must show that plaintiff (1) has been accorded a procedural right, (2) has some threatened concrete interest that is the ultimate basis for standing, and that (3) the interest falls within the "zone of interests" that the challenged statute is designed to protect. Id. at 1500 (internal quotations and citations omitted).

Phelps-Dodge argues that Plaintiff's lack standing to bring this action because (1) Plaintiff fails to allege a sufficient injury-infact, (2) the injury alleged is procedural without impairment of a separate concrete interest of the Plaintiff, and (3) Plaintiff fails to allege injuries redressable by this Court.

1. Procedural Right

The Endangered Species Act, 16 U.S.C. §§ 1531 et seq., contains a citizen suit provision. See 16 U.S.C. § 1540(g). It provides that "any person may commence a civil suit on his own behalf ... to enjoin any person, including the United States and any other governmental instrumentality or agency ... who is alleged to be in violation of any provision or regulation" of the ESA. Id. Plaintiff alleges that Defendants are in violation of § 7 and of § 9 of ESA for their failure to enter into formal consultation with the USFWS on the impact of the Hydro Project on the Spinedace. Accordingly, Plaintiffs have a procedural right to bring this action. See Lujan v. Defenders of Wildlife, 504 U.S. at 571-72, 112 S.Ct. at 2142-43 (finding individual procedural right to sue under citizen suit of the ESA).

2. Threatened Separate Concrete Interest

Intervenor-defendant argues that the relaxed standard for procedural standing does not apply because Plaintiff cannot show that any "concrete interest" for which the procedural right protects. In opposition, Plaintiff submits affidavits from two members, Landi Fernley and Liza Hoover, alleging a concrete interest in the continued existence of the Spinedace.

Plaintiff's affidavits contain broad, sweeping, and conclusory statements regarding their alleged concrete interest(s) in the Spinedace. The courts, however, appear to condone articulating a concrete interest in vague, generalized terms. The language of the Fernley affidavit mimics...