Committee to Save the Rio Hondo v. Lucero
102 F.3d 445
10th Cir.
1996
Check Treatment

*2 remedies, brought the Committee this action * BRORBY, LOGAN, claiming Before RONEY and the Forest Service had failed to Judges. Circuit follow the National Environmental * Roney, join Paul Honorable H. Senior Circuit The Forest Service did not in the Ski Circuit, Judge sitting by designa- for the Eleventh summary judgment. Area’s motion for tion. already Forest had com- because the Service approved it the sum procedures when plied with the National Environmental The Commit the Ski Area. use of mertime thorough environmental completing approval of the Forest Service’s tee claimed assessment, had failed to es- the Committee development plan and master the amended “major tablish a decision would redress its Fed favorable permit was either special use *3 injuries. affecting the ... en significantly eral action to requiring the Forest Service

vironment” II. DISCUSSION statement, impact prepare an environmental change” to approval was a “substantial or the questions the Commit to requiring the Forest Service plan, standing challenge to the Forest tee’s Ser im supplemental prepare standing ques vice’s actions. Because is a National Environmental pact statement. determine, to we tion of law for the court 4332(2)(C)(i- 1969; § 42 Policy Act of U.S.C. of review the district court’s determination (1995). 1502.9(c)(1)(i) v) (1994); § 40 C.F.R. standing de novo. Mountain Side Mobile claimed the Forest Service’s The Committee Secretary Housing Partnership v. Estates of complete an environmental failure to Dev., 1243, 56 F.3d 1249 & Urban im supplemental environmental statement or Cir.1995). County also Bd. See Catron of making the amend prior to pact statement Fish & Comm’rs v. United States Wildlife the National Environmental ments violated Serv., 1429, 1433 Policy Act. standing of an essential The doctrine “is Dismiss, to to The Area filed a “Motion Ski unchanging part case-or-contro and of Summary Judgment,” on the Treated as a be Lujan versy of Article III.” v. requirement standing. In lacked ground the Committee 560, 555, Wildlife, 504 112 U.S. Defenders of motion, the filed response to the Committee (1992) (cit 2130, 2136, 119 L.Ed.2d 351 S.Ct. claiming from two members sworn affidavits 737, 751, Wright, 468 Allen U.S. 104 enjoyed and they and the land water used (1984)).2 3315, 3324, 82 L.Ed.2d 556 S.Ct. surrounding and the Ski Area for recreation standing constitutional minimum of The con claimed irrigation. the affiants Wildlife, three elements. tains enjoyment land use and of the area’s First, 504 at S.Ct. at 2136. U.S. damaged by year- would be and water “injury in suffered must have operation, of the Area. round Ski protected in of a legally fact” —an invasion particularized” “concrete and of New terest which The District Court for the District .is Id.; Catron “actual or imminent.” granted the motion in favor of the Ski Mexico Second, a F.3d at 1433. causal holding not 75 Area the Committee had shown redressability must exist between injury in fact or to connection sufficient of; injury must complained standing. the conduct constitutional Particular- fairly challenged action. be traceable to ly, court held that because the the district Wildlife, at 112 not the Forest Ser- Committee could Defenders 2136; County, 75 F.3d at Catron required follow the recom- S.Ct. vice would be to Third, likely it 1433. must be of an environmental mendations by a decision. statement, be redressed favorable possible fears will the Committee’s Wildlife, 112 both imma- harm to the land and water were County, 75 F.3d at to constitute speculative terial and too Also, held that 1433.3 in fact. the District Court apply when an asso 3. same three elements Although was an Endan- Defenders of Wildlife Seldin, plaintiff. 422 case, Warth v. is the implica- ciation gered Species important it has 2197, 2211, L.Ed.2d U.S. standing the National Environmental tions for (1975). standing to sue An association has Policy Act context. Defenders long injured itself so not even if it has been explained court that in the context of Nation- satisfy the constitu members the association's Act, litigants Policy face al Environmental few III. An association tional minimum of Article agency's procedural standing where an barriers standing bring behalf of its mem suit on has injuries. in concrete flaw results "(a) would otherwise when: its members bers adversely the National Environmen Ski Area that

Because affected right decisions, private not contain a tal Act does the Forest the Forest Service’s seeking those to enforce its of action for procedures Service’s failure to follow the requirements, procedural Act con- Procedures Act as rely the Administrative on stitutes fact. and, therefore, its action the basis for considering important it these claims is satisfying the constitutional addition to procedural remember the nature of a Na requirements, a must es tional Environmental Act claim. The “adversely aggrieved affected or tablish it is Act was en meaning of a ... relevant statute” within the protect promote acted to Lujan agency action. v. Na some final 4331(a-c) (1994). quality. § 42 U.S.C. To Fed’n, tional Wildlife protection, ensure this the National Environ *4 3177, 3186, (1990); 111 L.Ed.2d 695 S.Ct. Policy forcing” mental Act establishes “action County, 75 F.3d at 1434. To be procedures follow, agencies the must such as meaning the of adversely affected within the requiring agency prepare an to either an Act, Policy the Com supple or a statement they mittee must establish have suffered an mental environmental statement un injury falling within the of in fact “zone der certain 42 U.S.C. .circumstances. protected the National Envi interests” 4332(2)(C)(i-v); 1502.9(c)(1)(i). § § 40 C.F.R. Policy ronmental Act. United States v. Stu prescribed procedures guarantee These the Challenging Regulatory Agency dents Proce agency will take a “hard look” at the environ dures, 669, 686, 2405, 2415, 412 NS. 93 S.Ct. consequences Kleppe mental of its actions. (1973); 37 L.Ed.2d 254 Sierra Club v. Mor Club, 390, 21, v. Sierra 427 U.S. 410 n. 96 733, ton, 727, 1361, 1365, 405 U.S. 92 S.Ct. 31 2718, (1976). 21, n. S.Ct. 2730 49 L.Ed.2d 576 (1972); see also L.Ed.2d 636 National Wild By focusing agency’s the attention on the Fed’n, 883, at 497 110 S.Ct. at 3186. U.S. life actions, consequences of its matter, preliminary we hold that As a be Policy the National Environmental Act “en protect seeks to its cause the Committee important sures that effects will not be over recreational, aesthetic, consumptive in looked or to underestimated be discov surrounding terests in the land and water ered after resources have been committed or injuries village, alleged their fall within the die otherwise cast.” Robertson v. Me the “zone of interests” National En Council, Valley 332, thow Citizens 490 U.S. Policy designed pro

vironmental Act was to 349, 1835, 1845, 109 S.Ct. 104 L.Ed.2d 351 Fed’n, tect. National 497 at U.S. Wildlife (1989). While the National Environmental 886, 110 at 3187. is S.Ct. there partic Act itself does not mandate the dispute no the Forest Service’s action was reach, agency ular an decisions it does Therefore, final. we turn to whether the necessary process agency mandate the the standing Committee has to sue reaching must follow while Id. decisions. under Article III. 350, 109 at 1845-46. Injury A. in Fact agency’s An failure to follow the National prescribed The Ski Area first contends the Committee proce- inju- members’ affidavits do not an dures creates a risk that serious environmen- ry in 'consequences agency fact. The Committee asserts that be- tal action will not cause its brought members concrete interest in be to the have decisionmaker’s surrounding the land and water in and attention. The of an increased risk of Union, (b) Romer, standing right; have Taxpayers to sue in their own the to the Colorado Inc. v. 963 protect germane 1394, denied, interests it seeks to are (10th Cir.1992), F.2d cert. (c) organization’s purpose; neither 949, 1360, 507 U.S. 113 S.Ct. 122 L.Ed.2d 739 requested requires claim asserted nor relief (1993). prongs The second two of this test are participation the lawsuit." Hunt v. of individual members in Only prong, satisfied. the first whether the Washington Apple State Ad satisfy members themselves elements Arti Comm’n, 333, 343, vertising 97 S.Ct. III, dispute. cle is in (1977); 53 L.Ed.2d 383 see also litigant “geographi must establish either its agency’s uninformed decision to an harm due to, cal nexus” or actual use of the site where type of precisely the is will take or has taken action such designed Act was expected that it Thus, National Environ be suffer the environ under the prevent. Act, consequences alleged Douglas in mental of the action. mental County, (stating agen 48 F.3d at 1501 risks due to an creased environmental “geographic decisionmaking may equated nexus” test is with the be the cy’s uninformed Article- “concrete interest” test of fact under Wild foundation Babbitt, life, County 504 U.S. at 573 n. at 2143 n. Douglas 48 F.3d III. Coleman, 8); Cir.1995), 1495, 521 F.2d at see also cert. de Car 1499-1501 — -, nied, tron 75 F.3d at 1433. 116 S.Ct. U.S. (1996); City Davis v. Cole- L.Ed.2d 655 Furthermore, standing because is not “an man, ingenious academic exercise the conceiva- ble,” summary judgment Poli- Although stage, at the requires showing cy procedural rights percep- to those in fact “a factual Act accords protecting an interest the environ- tible harm.” with ment, III (quoting under Article also re- 112 S.Ct. at 2139 Students Procedures, among injured. quires Challenging Regulatory Agency 2416). Morton, 734-35, Á 92 S.Ct. at 1365- U.S. at 93 S.Ct. at *5 fact, fully injury plain- may merely allege imagine in a not To it can circum- 66. separate by that a in tiff must be able to show stances which it could be affected the concrete, particularized of injury to its interests action. The risk environmental agency’s procedural litigant’s failure. harm from the to the concrete interests due flows 572, Wildlife, 112 agency’s decisionmaking 504 U.S. at to the uninformed Defenders of actual, imminent, Wildlife, threatened, the must be or not at 2142. S.Ct. Defenders of conjectural merely hypothetical.4 or Supreme said: Court Defend- 560, Wildlife, ers 504 at S.Ct. at 112 consistently plaintiff that a We have held of 2136. raising only generally grievance available a only government claiming harm to about — then, Ultimately the fact proper in every citizen’s interest his and III prong of the test of Article laws, application of the Constitution and (1) litigant the parts: breaks down into two directly seeking that no more and relief making in decision with must show that tangibly him than it benefits does the following out the public large at not state an Article —does procedures, the created controversy. or III case actual, threatened, or an increased risk of 573-74, There- Id. at 112 S.Ct. at 2143-44. (2) harm; and the imminent environmental fore, purposes to establish fact for risk of litigant must show that the increased III, plaintiff not show of Article must injures in harm its concrete agency’s disregard procedural of a geograph by demonstrating either'its terests in an risk of requirement results increased to, actual use of the site of the ical nexus or harm, must also but agency action. litigant’s the increased risk is to the reviewing questions of at In cases stand particularized concrete and interests. Id. dismiss, 8, 2145; the court a motion to 112 at 2143 n. under 573 n. allegations embrace those presumes general Douglas County, 48 at 1500. To dem- F.3d necessary support to the claim. specific in- facts onstrate that the increased risk of harm 561, interests, Wildlife, 112 504 U.S. at jures plaintiff’s the concrete the Defenders of however, certainly requirement explained Supreme in fact Court has that in litigant context of a National Environmental claim, establishes that is met where the satisfy require- litigant not need concrete interests is imminent. of Defenders immediacy purposes for in fact ment of 7, Wildlife, 112 S.Ct. at 2142 504 U.S. at 572 n. project complained may because the federal n. 7. years; several not affect the concrete interest for 450 2136; Challenging Regula consumption. increased river water Fur-

S.Ct. at Students Procedures, 689-90, thermore, tory Agency affiants aver the summertime (1973); Org. quality Glover River use of the Ski Area will affect the 93 S.Ct. at 2416-17 Interior, Dept. increasing sewage discharge 675 the river v. States United (10th Cir.1982). However, non-point 251, pollution source from increased ve- F.2d 254 n. 3 travel, silt, where, here, defendant moves for sum hicle and industrial fluids from longer Also, mary judgment, operations. can no the Ski Area’s mechanical affiants, Romero, allegations.” Fed.R.Civ.P. one of the Mr. rest on “mere avers that 561, 56(e); Wildlife, summertime use of the Ski Area would dis- Instead, at 2136. turb the recreational and aesthetic value of evidence, “spe- or other the land in and around the Ski set forth affidavit Area because genuine showing cific facts” there is issue summertime use of the Ski Area increases 56(e); development trial. and mechanization. These facts Fed.R.Civ.P. are 504 U.S. at 112 S.Ct. sufficient to establish the affiants suffer a Corp., F.3d Rohrhaugh v. Celotex threatened increased risk of environmental considering the mo- harm alleged due to the Forest Service’s tion, examine the factual record and the failure to follow we light Policy procedures. reasonable inferences therefrom the party' opposing most sum- favorable Int’l, 2. Concrete Interests

mary judgment. Applied Inc. Genetics Sec., Inc., v. First Affiliated The affiants established the Forest Ser- (10th Cir.1990) (citing Gray Phillips alleged procedural impair vice’s failures Co., F.2d Petroleum Cir. separate, concrete interests because the affi- 1988)). to, geographical ants have a nexus actu- ally use the land and water the affected contends the Commit argues area. The Ski Area the affiants do allege tee members’ affidavits do not facts *6 not have a concrete interest at stake because specific enough establish in fact. they live twelve to fifteen miles downstream disagree. We The Committee’s affidavits from the Ski Area. The Area Ski does not sufficiently demonstrate an increased risk of however, dispute, that the affiants have used harm to concrete interests the the waters of the Rio Hondo watershed for proce irrigating, their entire lifetimes for fishing, Therefore, protect. dures are meant to the swimming, they and and that intend to con- Committee has established fact. tinue their use. Because the affiants live immediately downstream from and share the 1. Increased Risk of Area, they same watershed with the Ski Harm expected to suffer effects of decreased the The Committee submitted affidavits from quality resulting water from summertime use two response members in to the Ski Area’s Consequently, Area. Ski the affiants standing challenge. in Both affiants live Ar- geographical have established their nexus to Hondo, royo miles twelve to fifteen down- the site of the action. First, through stream from the Ski Area. actually Mr. Romero uses the affidavits, their the affiants have established in land and around the Ski Area. Mr. Rome- increased, they suffer an risk threatened ro avers: environmental harm due to the Forest Ser- life, alleged vice’s decisionmaking. my uninformed All I have used the area in and The affiants Valley attested to the Forest Service’s around the Taos Ski for recreational complete failure to purposes. either an environmental and subsistence example, For I supplemental statement or a hunting, hiking, environ- often use these for lands mental general enjoyment. statement. The affiants aver and aesthetic Further development Forest uninformed decision Valley Service’s will of the Taos ... Ski affect Rio injures my Hondo River because the sum- interest in the use of continued mertime use of the Ski Area will result in the area. B. Causation to show the are sufficient

These affidavits upon interest which affiants have a concrete establishing injury in In addition to Because the procedural claim is based. fact, plaintiff must also causation. a establish to, geographical nexus and have a affiants 560-61, 112 Wildlife, 504 U.S. Defenders of and the Forest Ser- actually land water use causation, at 2136-37. To a risk of exposed to an increased vice has injuries fairly plaintiff must show its áre alleged un- harm due to its complained to the conduct of. Id. traceable have decisionmaking, the affiants informed of a National Environmental the context purposes of an in fact for claim, injury is the increased Article III. harm to concrete inter risk of environmental consistent with estab- conclusion is Our ests, complained the conduct of is the pur- Supreme precedent. The lished Court agency’s failure to follow the National Envi Ar- injury-in-faet requirement pose of the procedures. To es ronmental only having those ticle III is to ensure causation, only need tablish ” “ outcome,’ in the and not ‘direct stake fairly risk is traceable to the its increased concerns, may having have those abstract comply with the National agency’s failure to Valley Forge access to the courts. Christian Act. Separation College v. Americans United also 75 F.3d at see Wild State, Inc., & U.S. Church n. life, 504 U.S. at 572 (1982) 70 L.Ed.2d 102 S.Ct. n.7. Morton, 92 S.Ct. at (quoting Soc’y v. Recently, Audubon Florida 1368). in National Unlike the affiants Wild- Bentsen, (D.C.Cir.1996), 94 F.3d 658 the D.C. Fed’n and life presented a somewhat different cau- Circuit members have established such Committee’s analysis for National Environmental sation same stake. The affiants live direct Bentsen, Policy Act claims. the court located, Area is watershed where the Ski held: flowing directly they used the water have causation, seeking prove To irrigation recre Area for from the Ski im- preparation [environmental present ation for their lifetimes with pact statement] must demonstrate using the water intent to continue particularized injury that is the affiants in same manner. Unlike Defend fairly suffering likely suffer is or is allege an who could ers of Wildlife impli- action that traceable to the time, future these at some indefinite *7 an im- [environmental cated the need for present a and con affiants have established words, In other unless pact statement]. in suffi tinuing interest the land and water probability that the is a substantial there injury require in fact cient for Article III’s a de- agency action created substantive Wildlife, ment. 504 U.S. risk, a demonstrable monstrable or caused 563-64, at 2137-38. risk, injury existing in an to the increase in Fed’n unlike the affiants National Wildlife plaintiff, interests of the particularized “in only claim to use land who could standing. plaintiff lacks land, vicinity” Mr. Romero of the affected added) (citations actually in Area for uses the land the Ski (emphasis omit- Id. at 669 purposes. spe ted). These facts are recreational analysis appears to confuse the This enough harm, the affiants’ concrete cific to establish of the which is issue of the likelihood are threatened such that the Com injury prong interests in fact in the better addressed right the Forest mittee has the to ensure analysis, its cause. of the with Environmental follows the National Service not an increased risk will or will Whether Policy procedures. Act’s agency action determines occur due to the fact, injury in hold, therefore, plaintiff a has suffered has whether the Committee We Certainly, under the requirement plaintiff not causation. met Article Ill’s merely allege prong, plaintiff fact a cannot injury in fact to itself or its demonstrate an attenuated, fanciful environ- highly that some members. agency from the deci- summertime use of mental risk will result the Ski Area. dis-We actual, sion; agree. authority threatened or the risk must The Ski Area fails to cite However, plaintiff imminent. once the has proposition for the to have likelihood of the increased Policy established the the National under fact, purposes Act, to estab- plaintiff preliminary risk for a must seek a in- causation, here, junction. lish as the Committee has fail to We see relevance of plaintiff trace the risk of harm plaintiff need whether or not a seeks extraordi- agency’s alleged hold, to the failure to follow the nary standing. relief to the issue of We Policy therefore, proce- National Environmental has Committee dures. Under the National Environmental causation. Act,

Policy an results not from the Redressability decision, C. agency’s agency’s but from the un- decisionmaking. The increased informed Finally, plaintiff must also estab consequences risk of adverse environmental likely, opposed merely specula it is lish substantively agency’s is due to the “failure tive, will be redressed to consider the environmental ramifications Wildlife, favorable decision. Defenders of of its actions in accordance with Nation- [the 2136; 504 U.S. at S.Ct. at Catron Policy al Environmental Act].” Catron County, Compliance 75 F.3d at 1433. with 1433; County, 75 F.3d at see also Defenders Policy Act would Wildlife, n. 112 S.Ct. at possibility avert the that the Forest Service Ltd., 7; Robertson, 2142 n. Resources Inc. v. may significant have overlooked environmen Cir.1993); 35 F.3d 1303 n. Idaho consequences tal of its action. Under the Mumma, League v. Conservation Act, Policy National Environmental “the nor 1508, 1517-18 redressability” mal standards for are re laxed; not need establish that the purpose statutory require of the agency change upon ultimate decision would agency prepare ment that a federal an envi Policy compli National Environmental Act ronmental statement is to ensure that ance. 504 U.S. at 572 decision, Defenders reaching will have S.Ct, 7; n. at 2142 n. County, carefully available and will consider detailed Rather, 75 F.3d at 1433. the Committee concerning' significant information environ establish, has, itas that its would impacts. Valley, mental Methow be redressed requir favorable decision require at 1845. To that a comply the Forest Service to with Na establish that the action will proce tional Environmental very impacts result an environmental dures. That the Forest Service not impact statement is meant to examine is change its decision op to allow summertime contrary spirit purpose to the erations at preparing the Ski Area after National Environmental Act. The statement is immateri not was 1433; al. Catron 75 F.3d at see also require intended to with Act of certainty, probabil or even with a substantial *8 4332(2)(C)(i-v) (1988); § 42 U.S.C. 40 C.F.R. ity, action; the results of those exam 1502.9(e)(1)(i)(1995). § inations are left to an environmental statement. To the extent that the D.C. Cir Accordingly, we hold the Committee has requires cuit’s standard to estab standing. We REVERSE the here, something lish more than set out it is district court and REMAND for consider- contrary to the intent and essence ation of merits. is, Act and therefore, rejected. RONEY, Judge, specially Senior Circuit concurring: argues the Committee has not established causation because it has not I concur in the result with the understand- sought preliminary injunction ordering that the decision reached the Court withdrawal of Mr. Lucero’s decision to allow concerns the threshold issue of whether plaintiffs challenge have the For- compliance

est Service’s with the National Act. We have not Protection merits, is,

considered the whether the already complied

Forest Service has with the

Act, or, not, might required if what

bring compliance. it into

Beverly Wayne Kuenzle, KUENZLE and

Plaintiffs-Appellees,

HTM SPORT-UND FREIZEITGERÄTE

AG, Defendant-Appellant.

No. 95-8031. Appeals,

United States Court of

Tenth Circuit.

Dec.