Sportsmen's Wildlife Def. Fund v. U.S. Dept. of Int., Civil No. 96-B-1637.

• Decision Date: 26 December 1996
• Docket Number: Civil No. 96-B-1637.
• Citation: 949 F.Supp. 1510
• Parties: SPORTSMEN'S WILDLIFE DEFENSE FUND, a non-profit corporation; Western Slope Environmental Resource Council, a non-profit citizens group; Theresa Hamilton, an individual; Richard Saxton, an individual; and David Huerkamp, an individual, Plaintiffs, v. UNITED STATES DEPARTMENT OF THE INTERIOR; Bruce Babbitt, in his official capacity as Secretary of the Department of the Interior; United States Fish and Wildlife Service; Mollie Beattie, in her official capacity as Director of the United States Fish and Wildlife Service; John Mumma, in his official capacity as Director of the Colorado Division of Wildlife; Laurie Mathews, in her official capacity as Director of the Colorado Division of Parks and Outdoor Recreation; Ari Zavaras, in his official capacity as Director of the Colorado Department of Corrections; and Roy Romer, in his official capacity as the Governor of the State of Colorado, Defendants.
• Court: U.S. District Court — District of Colorado

949 F.Supp. 1510

SPORTSMEN'S WILDLIFE DEFENSE FUND, a non-profit corporation; Western Slope Environmental Resource Council, a non-profit citizens group; Theresa Hamilton, an individual; Richard Saxton, an individual; and David Huerkamp, an individual, Plaintiffs, v. UNITED STATES DEPARTMENT OF THE INTERIOR; Bruce Babbitt, in his official capacity as Secretary of the Department of the Interior; United States Fish and Wildlife Service; Mollie Beattie, in her official capacity as Director

of the United States Fish and Wildlife Service; John Mumma, in his official capacity as Director of the Colorado Division of Wildlife; Laurie Mathews, in her official capacity as Director of the Colorado Division of Parks and Outdoor Recreation; Ari Zavaras, in his official capacity as Director of the Colorado Department of Corrections; and Roy Romer, in his official capacity as the Governor of the State of Colorado, Defendants.

Civil No. 96-B-1637.

United States District Court, D. Colorado.

December 26, 1996.

COPYRIGHT MATERIAL OMITTED

Colin Deihl, Earthlaw, University of Denver School of Law, Denver, CO, for Plaintiffs.

Maurice G. Knazier, Attorney General's Office, John A. Lizza, First Asst. Attorney General, Timothy J. Monahan, Steven O. Sims, Assistant Attorney Generals, Natural Resources Section, Bob Clark, Assistant U.S. Attorney, Denver, CO, Thomas R. Graf, U.S. Dept. of the Interior, Lakewood, CO, for Defendants.

MEMORANDUM OPINION AND ORDER

BABCOCK, District Judge.

This is an action asserting claims for violations under 42 U.S.C. § 1983 of the Pittman-Robertson Wildlife Restoration Act (P-R Act); 16 U.S.C. § 669 et seq., the Land and Water Conservation Fund Act (LWCF Act); 16 U.S.C. § 460l et seq., and the National Environmental Protection Act (NEPA); 42 U.S.C. § 4321 et seq. Jurisdiction is based on 28 U.S.C. §§ 1331, 1343(a)(3) and (4), and 1361. Plaintiffs, Sportsmen's Wildlife Defense Fund (SWDF), Western Slope Environmental Resource Council (WSERC), Theresa Hamilton (Hamilton), Richard Saxton (Saxton), and David Huerkamp (Huerkamp) (collectively, plaintiffs) move, pursuant to Fed.R.Civ.P. 65, for a preliminary injunction against state defendants John Mumma (Mumma), in his official capacity as Director of the Colorado Division of Wildlife (DOW), Laurie Mathews (Mathews), in her official capacity as Director of the Colorado Division of Parks and Outdoor Recreation (DOP), Ari Zavaras, in his official capacity as Director of the Colorado Department of Corrections (DOC), and Roy Romer (the Governor), in his official capacity as the Governor of the State of Colorado (State) (collectively, state defendants). Plaintiffs seek to enjoin prospectively the state defendants from any further construction of a prison within the boundaries of the West Rifle Creek State Wildlife Area (Wildlife Area) or the Rifle Gap State Park (State Park). After consideration of the motions, briefs, evidence taken at the preliminary injunction hearing, and arguments of counsel, I will deny the motion for preliminary injunction.

Also before me is the state defendants' motion to dismiss claim one (§ 1983 under the P-R Act) and claim two (§ 1983 under the LWCF Act) pursuant to 1) Fed.R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction and lack of standing and 2) Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted. The motions addressed here do not involve plaintiffs' additional claims in mandamus against federal and state officials, allegations of violations of NEPA, state based mandamus claims against the state defendants, and breach of fiduciary claims against the state defendants.

I deny the motion to dismiss based on lack of subject matter jurisdiction and lack of standing. I deny the motion to dismiss for failure to state a claim as to claim one, but grant it as to claim two.

I. Background

This action was filed by plaintiffs to stop construction of an expansion of the DOC prison facility located in Rifle, Colorado (Rifle prison). The initial DOC Rifle facility, built in the mid 1960's, was known as the Rifle honor camp and consisted of a temporary or mobile facility which housed a dozen inmates. The honor camp capacity increased to 18 inmates in 1973, and to 60 inmates in 1975. During this time, the inmates continued to be housed in mobile trailers. In the late 1970's, the DOC constructed a permanent facility at Rifle with a capacity of 100 inmates. In 1983, an additional living unit was added raising the inmate population to 120. The last living unit was added in 1984 bringing the current inmate population to 150.

In 1996, the DOC began construction on an expansion of the Rifle prison which, if completed, will increase the prison population by 42 inmates for a total capacity of 192. Plaintiffs seek injunctive relief pursuant to Rule 65 to stop further construction at the Rifle prison pending the outcome of this action.

II.

The state defendants' motion to dismiss

The state defendants move to dismiss claims one and two of the second amended complaint based on Fed.R.Civ.P. 12(b)(1) for lack of jurisdiction and lack of standing. They also move to dismiss claims one and two pursuant to Fed.R.Civ.P. (12)(b)(6) for failure to state a claim upon which relief can be granted. At the outset, I address the motion to dismiss in light of its effect on the motion for preliminary injunction.

A. Fed.R.Civ.P. 12(b)(1)

Pursuant to a Fed.R.Civ.P. 12(b)(1) motion to dismiss, a district court must consider whether it lacks subject matter jurisdiction. The burden of establishing subject matter jurisdiction is on the party asserting jurisdiction. Basso v. Utah Power and Light Co., 495 F.2d 906, 909 (10th Cir.1974). In analyzing a Rule 12(b)(1) motion, the district court has wide discretion to consider affidavits, documents, and even hold a limited evidentiary hearing. See Wheeler v. Hurdman, 825 F.2d 257, 259 n. 5 (10th Cir.1987).

1. Claims against Governor Roy Romer

The Governor argues that under the circumstances, this Court does not have jurisdiction over him. I disagree.

The Governor's motion to dismiss was heard as part of the preliminary injunction. Therefore, I may consider documents and evidence admitted during the hearing. See Wheeler, 825 F.2d at 259 n. 5.

The Governor argues that before a party may invoke the jurisdiction of the federal court, the party must show that: 1) he has personally suffered some actual or threatened injury as a result of the conduct of the defendant; 2) the injury is fairly traceable to the challenged action; and 3) the injury is likely to be redressed by a favorable court decision. Catron County B. of Comm'rs v. United States Fish and Wildlife Service, 75 F.3d 1429, 1433 (10th Cir.1996) citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 559, 112 S.Ct. 2130, 2135-36, 119 L.Ed.2d 351 (1992). It is further asserted that the mere fact that a governor is generally charged with enforcing all state laws does not make an action "fairly traceable" to the governor. NAACP v. State of California, 511 F.Supp. 1244, 1261 (E.D.Cal.1981). A governor may be liable for the acts of subordinates only when he actually participates or acquiesces in the alleged violation. Parker v. Rockefeller, 521 F.Supp. 1013, 1016 (N.D.W.Va.1981).

Plaintiffs argue that personal action by the Governor individually, is not a necessary predicate for their action against the Governor in his official capacity. See Luckey v. Harris, 860 F.2d 1012 (11th Cir.1988). It is sufficient that the Governor must, "by virtue of his office, ha[ve] some connection" with the disputed conduct. Ex parte Young, 209 U.S. 123, 157, 28 S.Ct. 441, 453, 52 L.Ed. 714 (1908). "Whether [this connection] arises out of general law, or is specially created ..., is not material so long as it exists." Id.

According to the Colorado Constitution, the "supreme executive power of the state shall be vested in the governor, who shall take care that the laws be faithfully executed." Colorado Constitution, Art. IV, section 2. Moreover, the Governor is a proper party to a petition for an original writ of mandamus to compel a state official to perform lawfully his/her duties. See People ex rel. Ammons v. Kenehan, 55 Colo. 589, 136 P. 1033 (1913). (Plaintiffs prayer in their complaint here seeks relief in the nature of mandamus against all defendants.). Also, the Governor has final authority to order the executive directors of all state agencies to commence or cease any action on behalf of the state. See Luckey, 860 F.2d at 1015. Thus, based on the Colorado Constitution, I conclude that under the P-R Act and the LWCF Act, Governor Romer is a proper party subject to the Court's jurisdiction. See Ex parte Young, 209 U.S. at 157, 28 S.Ct. at 452-53.

Moreover, the LWCF Act designates specifically the Governor as the responsible state official for meeting the state's obligations under the Act: "[N]o plan shall be approved unless the Governor of the respective State certifies that ample opportunity for public participation in plan development and revision has been accorded...." 16 U.S.C. § 460l-8(d). The LWCF Act also states that "[p]ayments for all projects shall be made by the Secretary to the Governor of the State or to a State official or agency designated by the Governor or by State law having authority and responsibility to accept and to administer funds paid hereunder for approved projects. If consistent with an approved project, funds may be transferred by the State to a political subdivision or other appropriate public agency." Id. at 8(f)(2). As a matter of Colorado and Federal law, then, Governor Romer has, by virtue of his office, some connection with the conduct in dispute under the LWCF Act.

Also, Plaintiffs' Exhibit 49, Notes from a Colorado Board of Parks and Outdoor Recreation meeting, states, in part:

MARTINEZ RIFLE LEASE. There was request from Dept. of Institutions to lease some facilities at Rifle. Board requested some additional...