Wilderness Soc. v. Robertson

• Decision Date: 21 May 1993
• Docket Number: No. CV 91-78-M-CCL.,CV 91-78-M-CCL.
• Citation: 824 F. Supp. 947
• Parties: The WILDERNESS SOCIETY, a non-profit corporation; Great Bear Foundation, a non-profit corporation, Plaintiffs, v. F. Dale ROBERTSON, in his official capacity as Chief, United States Forest Service; David F. Jolly, in his official capacity as Regional Forester, Northern Region; Robert L. Schrenk, in his official capacity as Supervisor, Kootenai National Forest; United States Forest Service, an agency of the United States; and Noranda Minerals Corp., a Delaware corporation and wholly-owned subsidiary of Noranda, Inc., a Canadian corporation, Defendants.
• Court: U.S. District Court — District of Montana

824 F. Supp. 947

The WILDERNESS SOCIETY, a non-profit corporation; Great Bear Foundation, a non-profit corporation, Plaintiffs, v. F. Dale ROBERTSON, in his official capacity as Chief, United States Forest Service; David F. Jolly, in his official capacity as Regional Forester, Northern Region; Robert L. Schrenk, in his official capacity as Supervisor, Kootenai National Forest; United States Forest Service, an agency of the United States; and Noranda Minerals Corp., a Delaware corporation and wholly-owned subsidiary of Noranda, Inc., a Canadian corporation, Defendants.

No. CV 91-78-M-CCL.

United States District Court, D. Montana, Missoula Division.

May 21, 1993.

COPYRIGHT MATERIAL OMITTED

Karl J. Englund, Englund Law Office, Missoula, MT, Victor M. Sher, Todd D. True, Seattle, WA, Fern L. Shepard, Sierra Club Legal Defense Fund, Washington, DC, for plaintiffs.

Robert J. Brooks, Office of U.S. Atty., Butte, MT, Gary B. Randall, U.S. Dept. of Justice, Washington, DC, Doris M. Poppler, Office U.S. Atty., Billings, MT, Carolyn S. Ostby, Crowley, Haughey, Hanson, Toole & Dietrich, Billings, MT, Paul F. Hultin, James L. Harrison, William Hillhouse, II, Parcel, Mauro, Hultin & Spaanstra, PC, Denver, CO, for defendants.

OPINION AND ORDER

LOVELL, District Judge.

Plaintiffs, The Wilderness Society and Great Bear Foundation, filed this action on May 24, 1991. The complaint comprises seven claims for relief relating to the actions of the Forest Service and non-federal co-defendant Noranda Minerals Corporation ("Noranda"), in connection with certain mining claims located in the Cabinet Mountains Wilderness in Montana.

In the first claim, Plaintiffs allege that the Forest Service has not made a final appealable decision that Noranda had valid existing rights in the subject claims as of December 31, 1983, the date minerals within the Cabinet Mountain Wilderness were withdrawn by statute from appropriation under the mining laws.

In the second claim, Plaintiffs allege that if, in fact, the Forest Service has made a final decision that Noranda has existing rights, the agency violated the National Environmental Policy Act ("NEPA") by not preparing an Environmental Assessment ("EA") or an Environmental Impact Statement ("EIS") on that decision.

In the third, fourth, fifth and sixth claims, Plaintiffs directly challenge the Forest Service's validity determination. They allege that if, in fact, the Forest Service made a final decision that Noranda has valid existing rights, it violated the Wilderness Act by 1) relying on evidence of mineralization outside of Noranda's claims; 2) relying on evidence of mineralization obtained after January 1, 1984; 3) failing to examine whether Noranda's claims were properly located; and 4) relying on an erroneous interpretation of the Wilderness Act with regard to mineral deposits outside the claims.

Plaintiffs have stated their intent that their seventh claim, alleging that Noranda has no valid existing rights, be dismissed.

Plaintiffs seek declaratory and injunctive relief. They ask the court to declare that the Forest Service has not made a final appealable decision that Noranda had valid rights in the subject claims. In the alternative, they seek a declaration that the Forest Service has violated NEPA by not preparing the appropriate environmental documentation. Finally, Plaintiffs ask the court to enjoin the Forest Service from approving Noranda's pending plan of operations unless and until the Forest Service lawfully determines that Noranda has valid existing rights.

FACTS:

In 1964, Congress designated a portion of the Cabinet Mountains a wilderness area. At the same time, Congress provided that until January 1, 1984, the mining laws would apply to wilderness areas designated by the Act, including the Cabinet Mountains, such that minerals from valid claims existing on or before December 31, 1983, could be appropriated and such claims patented even after the withdrawal date.

Prior to December 31, 1983, Noranda's predecessor, Pacific Coast Mines, a subsidiary of U.S. Borax ("Borax"), located the mining claims at issue. By December 31, 1983, Borax had collected surface samples and drilled two holes on the claims.

On February 27, 1985, the Forest Service completed a mineral claims report ("Rock Lake Report"). The report stated that Borax had discovered a valuable mineral deposit on the subject claim by December 31, 1983, and that these discoveries still existed as of February, 1985. The Regional Forester purportedly adopted the report on February 28, 1985, and concluded that the Borax discoveries constituted valid existing rights under the 1872 Mining Law and the 1964 Wilderness Act. As a consequence, the Regional Forester recommended that the Kootenai National Forest proceed with the processing of Borax's proposed plan of operations to do diamond core drilling to develop a mining plan for a silver-copper mineral deposit.

In 1988, Noranda purchased the claims from Borax. In 1989, Noranda submitted to the Forest Service a proposed plan of operations. In October of 1990, the Forest Service released for public comment a draft EIS on Noranda's application. On October 10, 1992, the final EIS on Noranda's Montanore Project mine was issued.

On August 2, 1991, Noranda applied to the Bureau of Land Management ("BLM") for a mineral patent on the subject claims. On August 22, 1991, Plaintiffs filed a protest with BLM against Noranda's application. The patent proceeding is ongoing before the BLM.

The dispositive motions currently pending before the court are Noranda's motion to dismiss, a supplemental motion to dismiss, and the Forest Service's motion for judgment on the pleadings. Additionally there are motions for protective orders, motions to compel, and motions for judicial notice. As all motions have been fully briefed and heard, the court is now prepared to rule.

DISCUSSION

Standing:

The first issue to be resolved is the question of standing raised in Noranda's supplemental motion to dismiss. In order to establish standing, Plaintiffs must show that "1 they or their members have personally suffered an actual or threatened injury due to the defendant's allegedly illegal conduct, 2 that the injury can be fairly traced to the challenged conduct, and 3 that the injury is likely to be redressed by a favorable decision." Friends of the Earth v. United States Navy, 841 F.2d 927, 931 (9th Cir.1988) (citations omitted).

It is fundamental that a plaintiff's mere interest in having "the government act in accordance with the law is not sufficient, standing alone, to confer jurisdiction on a federal court." Allen v. Wright, 468 U.S. 737, 754, 104 S.Ct. 3315, 3326, 82 L.Ed.2d 556 (1984). To establish standing, a plaintiff must show that he is among the injured. Harm to aesthetic, recreational and environmental interests can constitute injury-in-fact. Sierra Club v. Morton, 405 U.S. 727, 734, 92 S.Ct. 1361, 1365, 31 L.Ed.2d 636 (1972). It appears undisputed that the development of the Montanore project will adversely affect the conservation, recreational and aesthetic use and enjoyment of the Cabinet Mountains Wilderness and Kootenai National Forest.

Nevertheless, Noranda argues that Plaintiffs do not have standing under Article III of the Constitution and the Administrative Procedure Act, 5 U.S.C. § 702, because the effect of the challenged action is too remote. In Idaho Conservation League v. Mumma, the Ninth Circuit Court of Appeals addressed a very similar argument to that now raised by Noranda. 956 F.2d 1508, 1514-6 (9th Cir.1992). In that case, the court held that an asserted harm can be threatened rather than actual and can be contingent rather than certain. Id. at 1515. Furthermore, the mere fact that "third parties would have to act before actual development could take place is not dispositive." Id. Even though the same agency was required to take an additional step, the effect was not found to be too remote. Id. at 1516. Therefore, the fact that the Forest Service must further act, and various federal and state permits must be acquired before any subsequent development takes place does not defeat Plaintiffs' standing.

Standing is established only if a plaintiff can show a causal connection between his asserted injury and the complained-of conduct and that his injury is redressable through the remedy sought. Allen, 468 U.S. at 751, 104 S.Ct. at 3324. The issues of traceability and redressability can be dealt with together because both are "alike in focusing on the question of causation." Idaho Conservation League, 956 F.2d at 1517 (citations omitted).

The causation question concerns only whether Plaintiffs' injury is dependent upon the agency's policy, or is instead the result of independent incentives governing the third parties' decision making process. Id. citing Wilderness Society v. Griles, 824 F.2d 4, 11 (D.C.Cir.1987). In this case, Noranda cannot undertake development of the Montanore Project but for the challenged decision. Therefore, traceability and redressability are established.

Statute of Limitations:

The next issue which must be resolved before proceeding to the merits of Plaintiffs' claims is whether Plaintiffs are barred by the applicable six-year statute of limitations set forth in 28 U.S.C. § 2401(a). Defendants argue that Plaintiffs' claims accrued either on February 28, 1985, when the transmittal letter allegedly adopting the mineralization report was sent to the Forest Supervisor, or on March 7, 1985, when news accounts regarding Noranda's wilderness mining claims and the Rock Lake Report appeared in the local press.

The court finds that the cause of action could not have accrued on February 28, 1985, as no notice of the asserted validity determination was published at that time. I further find that the March 7, 1985, press releases were inadequate for providing notice. See Mullane v. Central Hanover Bank and Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652,...