MEMORANDUM OPINION
The Resource Conservation and Recovery Act, 42 U.S.C. §§ 6902 et seq., (hereinafter “RCRA”) was passed by Congress to establish a “comprehensive federal program to regulate the handling and disposal of solid wastes.” Defs.’ Mot at 3. The act requires the Environmental Protection Agency (“EPA”) and the Department of the Interior (“DOI”) to take certain actions to develop an extensive federal management scheme for handling potentially haz *129 ardous waste. Plaintiffs bring this action against the Administrator of the EPA and the Secretary of DOI claiming that they, and their respective agencies, have failed to perform the nondiscretionary duties imposed on them by RCRA. Specifically, plaintiffs allege that defendants have never undertaken the study of coal mining wastes requested by Congress and, accordingly, have failed to determine whether such wastes should be regulated as “hazardous” under Subtitle C of RCRA. Defendants have moved to dismiss the complaint. They argue that the lawsuit is untimely and that the Court lacks jurisdiction over the subject matter of the complaint. They also maintain that plaintiffs lack standing to bring this challenge. That motion is now fully briefed and ripe for resolution. Upon careful consideration, and for the reasons set forth below, the Court will grant defendants’ motion.
BACKGROUND
“Coal mining, benefieiation, and processing generate large amounts of waste, including overburden and coal slurry.” Compl. ¶ 12. Overburden consists of the “earthen material removed in order to gain access to a coal seam.” Id. ¶ 13. Coal slurry is the waste generated by the bene-ficiation, or cleansing, of coal. Id. ¶ 14. By plaintiffs’ count, “[i]n West Virginia today, there are at least 111 impound-ments holding back billions of gallons of coal mining and cleaning waste.” Pis.’ Opp’n at 1. Those impoundments are created by “constructing embankments from coarse coal refuse across valleys, creating unlined basins behind the embankments to hold slurry and other liquid and semi-liquid coal wastes.” Id. at 1-2. Unfortunately, impoundments have occasionally been known to fail. In 1972, a coal waste impoundment in West Virginia “catastrophically failed, releasing 132 million gallons of coal mining waste.... The resulting flood was the most destructive in West Virginia history: 125 people lost their lives, 1,100 were injured, and 4,000 rendered homeless.” Id. at 2. More recently, an impoundment failed in Kentucky in 2000, releasing “250 million gallons of coal slurry” into the environment. Id. Aside from the disastrous effects of total impoundment failure, so-called “ ‘blackwa-ter’ spills from coal waste impoundments are frequent, with damaging effects on surface water quality.” Id.
Plaintiffs are West Virginia Highlands Conservancy, Inc. (“WVHC”), Ohio Valley Environmental Coalition (“OVEC”), and Coal River Mountain Watch (“CRMW”). WVHC is a non-profit organization with 2,000 members devoted to “conservation and wise management of West Virginia’s natural resources.” Compl. ¶ 9. OVEC, for its part, is a 1,000 member nonprofit organization dedicated to “organiz[ing] and maintaining] a diverse grassroots organization [for] the improvement and preservation of the environment through education, coalition building, leadership development, and media outreach.” Id. ¶ 10. In addition, OVEC is a founding member of the Sludge Safety Project, which is “a collaborative effort seeking to document the effects of coal slurry ... on human health and the environment, to reform the regulation of the disposal of coal slurry, and to encourage the adoption of alternative” coal cleansing methods. Id. Finally, CRMW is a non-profit organization that is “dedicated to the establishment of social, economic, and environmental justice in the southern coalfields of West Virginia.” Id. ¶ 11. CRMW is also a founding member of the Sludge Safety Project. The constituent members of CRMW, the argument goes, “are harmed by the lack of information about the chemical makeup of coal slurry, the amount of it generated by the coal mining industry, and the extent of its disposal into slurry impoundments and underground injection wells.” Id.
*130
In 1976, “Congress enacted RCRA ... to establish a comprehensive federal program to regulate the handling of solid wastes.”
Envtl. Def. Fund v. EPA,
When it first enacted RCRA, Congress recognized that the “ ‘information on the potential danger posed by mining waste is not sufficient to form the basis for legislative action.’ ”
Id.
(quoting H.R.Rep. No. 1491, 94th Cong., 2d Sess. 15). Thus, 42 U.S.C. § 6982(f), more commonly referred to as § 8002(f) of RCRA, directs the EPA to “conduct a detailed study of mining wastes to evaluate ‘the potential danger to human health and environmental vitality.’ ”
Id.
RCRA also directed the Administrator of EPA to consult with the Secretary of the Interior while preparing the § 8002(f) study. Despite Congress’ instructions, EPA pushed forward with mining waste regulation during the period between 1978 and the fall of 1980 without first conducting the § 8002(f) study. At the time, EPA proposed several regulations governing hazardous waste under Subtitle C. Under those proposed regulations, “certain smelting and refining waste streams satisfied] the ... criteria for hazard [and] were ‘listed’ under Subtitle C.”
Envtl. Def. Fund,
Before EPA’s proposed regulations went into effect, however, Congress passed the Solid Waste Disposal Act of 1980, Pub.L. 96-482, 94 Stat. 2334, which added to RCRA the so-called “Bevill Amendment,” 42 U.S.C. § 6921(b)(3). The Bevill Amendment included § 8002(p), which “expanded the scope of EPA’s study of mining industry wastes.” Id. In addition to directing EPA to consider several additional criteria in its study of mining wastes, 1 the Bevill Amendment “suspended regulation of mining processing wastes under Subtitle C until at least six months after the agency had completed and submitted [the] study to Congress.” Id. Congress also *131 required EPA to issue a regulatory determination on mining wastes within six months of delivering its report. Following a public comment period, EPA was directed either to propose regulations for each type of mining waste under Subtitle C or to explain why such regulation was “unwarranted.” Id. Thus, the effect of the Bevill Amendment was to strip EPA of authority to regulate mining wastes under Subtitle C until it performed the following steps: (1) conduct a detailed study of mining wastes that takes into account the appropriate statutory criteria; (2) publish the results of that study to Congress; and then (3) within six months of publishing its report to Congress — and following an opportunity for public comment — issue a regulatory determination as to regulation of mining wastes under Subtitle C. Congress instructed EPA to complete its § 8002(p) study by not later than October 16, 1983.
As plaintiffs point out, “[i]n response to the 1980 amendments to RCRA, on November 19, 1980, EPA promulgated an interim final regulation without notice and comment. That rule categorically excluded ‘solid waste from the mining, beneficiation, and processing of ores and minerals (including coal)’ from the definition of ‘hazardous waste.’ ” Pis.’ Opp’n at 5 (quoting 40 C.F.R. § 261.4(b)(7)). In relevant part, the interim regulation stated that because “coal is arguably a ‘mineral or ore’ under Section 3001(b)(3), wastes from the extraction, beneficiation and processing of coal are excluded from RCRA Subtitle C regulation in today’s amendment.” 45 Fed. Reg. 76,619. The interim rule was designed to tide over the regulated community while EPA purportedly undertook to conduct the § 8002(p) study required by RCRA and the Bevill Amendment. Meanwhile, DOI established a permanent regulatory program concerning mining wastes through the Office of Surface Mining Reclamation and Enforcement (“OSMRE”). In its regulations, OSMRE indicated that “any noncoal ... mine waste defined as ‘hazardous’ under [RCRA] ... shall be handled in accordance with the requirements of subtitle C of RCRA.” See 48 Fed.Reg. 44,006, 44,030, 44,032 (1983). As for coal, OSMRE explained that “OSM and EPA have undertaken a joint study under Subtitle C of RCRA. Until that study is completed, OSM has no responsibility for regulating coal mine waste under Subtitle C or RCRA.” 48 Fed.Reg. 44,027. 2
EPA missed the statutory deadline for the 8002(p) study imposed by Congress. Consequently, the agency was sued and judicially compelled to “complete the studies mandated by sections 8002(f) and (p) of RCRA with respect to extraction and be-neficiation wastes by December 31, 1985, and to take final action on the proposed reinterpretation by September 30, 1986.” Defs.’ Mot. at 6; see also Concerned Citizens of Adamstown v. EPA, Civ. No. 84-3041 (D.D.C. Aug. 21, 1985). Thus, on December 31, 1985, EPA submitted a “Report to Congress on Wastes from the Extraction and Beneficiation of Metallic Ores, Phosphate Rock, Asbestos, Overburden from Uranium Mining and Oil Shale” (hereinafter “Hard Rock Mining Report”). Defs.’ Mot. Ex. A.
That report is the focal point of this lawsuit. 3 Significantly, EPA expressly ex- *132 eluded any study of coal mining waste from the Hard Rock Mining Report:
The Agency excluded wastes from coal mining and beneficiation, because both EPA and the Department of the Interior play a role in their regulation, and it is not clear whether Congress intended coal mining to be included within the scope of the studies conducted in response to Sections 8002(f) and (p) or RCRA.
Id. Ex. A at 7-8. In addition, the Hard Rock Mining Report concluded that primary responsibility for regulation of coal mining waste rested with DOI pursuant to the Surface Mining Control and Reclamation Act (“SMCRA”) of 1977. Indeed, EPA stated that “the Secretary of the Interior, with concurrence from the Administrator of EPA, is responsible for promulgating regulations that effectuate the purposes of Subtitle C of RCRA with respect to coal mining waste or overburden.” Id. Ex. A at 1-9 (internal quotation omitted).
Following a public comment period, EPA issued its regulatory determination concerning extraction and beneficiation wastes on July 3, 1986.
See
51 Fed.Reg. 24,496 (1986). It determined that “regulation of mining waste under Subtitle C of [RCRA] is not warranted at this time.”
Id.
Although EPA was “concerned about certain actual and potential mining waste problems,” it concluded that those concerns were best addressed under Subtitle D: “[EPA] therefore plans to develop a program for mining waste under Subtitle D of RCRA.”
Id.
The agency’s decision to exclude all mining extraction and benefici-ation wastes from Subtitle C regulation was challenged and upheld by the D.C. Circuit in
Envtl. Def. Fund v. EPA. See
Several years later, EPA “completed the rulemaking process for amending the Be-vill exclusion with respect to processing wastes with final rules published on September 1, 1989, see 54 Fed.Reg. 36,592, and January 23, 1990, see 55 Fed.Reg. 2,322.” Defs.’ Mot. at 8. In its report to Congress, EPA limited “the Bevill exclusion for mineral processing wastes to 20 specific” wastes, including coal processing wastes. Defs.’ Mot. at 8, Ex. B at 2-3. On June 13, 1991, EPA issued its regulatory determination that “regulation under Subtitle C of RCRA is inappropriate for all 20 of the special wastes [including coal processing waste] that were studied.” 56 Fed.Reg. 27,300. The agency indicated that it “plannfed] to address 18 of the wastes [including coal processing waste] under Subtitle D, possibly in the program being developed for mining wastes.” Id. Once this processing wastes final regulatory determination was issued, EPA believed it had finally satisfied its statutory and judicial obligations under §§ 8002(f) and (p)-
Plaintiffs take a different view, however. They complain that EPA has effectively left the wastes from extraction and benefi-ciation of coal both unstudied and unregulated in contravention of Congress’ direct instructions. By omitting coal extraction and beneficiation from the Hard Rock Mining Report, plaintiffs argue, EPA flouted a requirement of the Bevill Amendment. And because of that omission, EPA’s 1986 regulatory determination “neither expressly nor implicitly discussed whether continued exemption of coal mining wastes from such regulation was warranted.” Pis.’ Opp’n at 7. Consequently, as plaintiffs would have it, EPA has never revisited its 1980 interim “decision to categorically exclude coal mining wastes from regulation as hazardous.” Id. at 5; see also 45 Fed.Reg. 76,619. To make matters worse, “OSMRE never promulgated the regulations to effectuate Subtitle C that EPA told Congress justified its failure to study or report the environmental *133 effects of coal mining wastes.” Pl.’s Opp’n at 7. Nor has either agency ever undertaken to regulate coal mining under Subtitle D. As a result, “EPA and OSMRE each point the finger at the other when asked who must regulate coal mining wastes ... [and] the studies of coal mining and bene-ficiation wastes that Congress required remain unperformed.” Id. at 8. Through this lawsuit, plaintiffs seek to compel EPA to finally conduct — with the Secretary of the Interior’s consultation — that study, issue a fresh report to Congress, and publish a regulatory determination regarding coal extraction and beneficiation wastes. Compl. at 10-11. Defendants, in turn, ask that the suit be dismissed for lack of jurisdiction based on timeliness and standing grounds.
STANDARD OF REVIEW
“[I]n passing on a motion to dismiss, whether on the ground of lack of jurisdiction over the subject matter or for failure to state a cause of action, the allegations of the complaint should be construed favorably to the pleader.”
Scheuer v. Rhodes,
Under Rule 12(b)(1), the party seeking to invoke the jurisdiction of a federal court — plaintiffs here — bears the burden of establishing that the court has jurisdiction.
See U.S. Ecology, Inc. v. U.S. Dep’t of Interior,
In reviewing a motion to dismiss pursuant to Rule 12(b)(6), the Court is mindful that all that the Federal Rules of Civil Procedure require of a complaint is that it contain “ ‘a short and plain statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of what the ... claim is and the grounds upon which it rests.’ ”
Bell Atl. Corp. v. Twombly,
550 U.S. —,
DISCUSSION
This ease presents a thorny threshold issue concerning the proper characterization of defendants’ regulatory activities. As plaintiffs would have it, they are seeking to compel agency action unreasonably withheld for over twenty years — that is, they aim to challenge what the agency has not done. Defendants, however, see it differently. According to them, plaintiffs are in fact attempting to challenge final agency decisions made over two decades ago; not surprisingly, defendants therefore maintain that the appropriate time period for this action has long since passed. There is some merit to both sides of this dispute. The Court need not resolve this preliminary question, however, because under either formulation the ultimate result is the same. 4
I. Agency Action
Defendants’ position is straightforward. According to them, “EPA undisput-edly conducted the required studies and submitted the required reports to Congress on December 31, 1985 and on July 31, 1990.” Defs.’ Mot. at 26. Additionally, they maintain, “DOI consulted with EPA on the required studies.” Id. From their perspective, both agencies fulfilled their statutory obligations with respect to the RCRA § 8002(f) and (p) studies. Plaintiffs’ lawsuit, then, amounts to nothing more than “a collateral challenge to EPA’s interpretation of RCRA and the manner in which the agency has chosen to comply with the statute,” that should be dismissed for failure to state a claim because untimely. Id.
The choice to omit coal extraction and benefíciation wastes from the 1985 report, defendants argue, 5 was deliberate: the Hard Rock Mining Report “did not include *135 coal mining wastes because EPA determined that those wastes are subject to SMCRA ... and the agency did not interpret RCRA § 8002 as mandating the inclusion of coal mining wastes.” Id. at 26-27. That determination, EPA insists, was an appropriate exercise of discretion by the Administrator, particularly in light of Congress’ statement in § 8002(f) that he may “review ... actions of other Federal agencies concerning such wastes with a view toward avoiding duplication of effort and the need to expedite such study.” 42 U.S.C. § 6982(f). According to defendants, plaintiffs had the opportunity to “challenge EPA’s interpretation of the mining wastes the agency was required to study under RCRA § 8002(f) and (p) and chose not to.” Id. at 27-28. As defendants would have it, plaintiffs presumably could have raised their objections to the exclusion during the public comment period following publication of the Hard Rock Mining Report or judicially challenged EPA’s 1986 regulatory determination as arbitrary and capricious. But the available window of time to raise such challenges has now manifestly expired. RCRA specifically provides that a petition for review of EPA’s actions “shall be filed within ninety days” of such action in the D.C. Circuit. 42 U.S.C. § 6976(a)(1). 6
In response, plaintiffs argue that they do not seek to “ ‘complain about what the agency has done but rather about what the agency has yet to do.’ ” Pls.’ Opp’n at 30 (quoting
In re United Mine Workers,
To begin with,
In re Bluewater Network
involved the Coast Guard’s rather explicit refusal to promulgate regulations statutorily mandated by the Oil Pollution Act, which required the Coast Guard to establish certain regulations governing the minimum standards for oil-tanker pressure monitoring devices.
See
But there are important differences between In re Bluewater Network and the situation here. Significantly, in In re Bluewater Network the temporary 1997 regulations at issue “explicitly stated the Coast Guard’s intention to defer implementation of permanent [regulations] and to delay rulemaking on ... requirements.” Id. at 1314. When the temporary regulations expired, however, the Coast Guard *136 flatly declined to conduct additional rule-making to develop permanent regulations. And in response to the petitioners’ subsequent challenge, the agency insisted that the filing period for judicial review concerning its failure to issue permanent regulations in fact began to run when it promulgated temporary regulations. Id. That proposition is obviously untenable, and the D.C. Circuit rejected it. Indeed, the court stated that “the agency’s ‘we-will-not-promulgate-regulations’ position is a blatant violation of the Act.” Id. But this case does not involve such a clear-cut violation of RCRA. In fact, EPA performed a study on mining extraction and beneficiation wastes as ordered by Congress. Although the agency excluded coal wastes from that analysis, it provided an explanation for doing so, albeit an unsatisfactory one in plaintiffs’ view. And EPA’s final regulatory determination to exclude mining wastes from Subtitle C regulation altogether was held to be a permissible construction of RCRA by the D.C. Circuit in Envtl. Def. Fund. That is a far cry from the Coast Guard’s outright refusal to abide by Congress’ demands.
More importantly, unlike in In re Blue-water Network, defendants here are not attempting to tie the filing period expiration date to any unrelated agency action. As defendants would have it, RCRA’s 90-day clock began to tick on July 3, 1986 when EPA issued its final regulatory determination excluding mining wastes from Subtitle C regulation. To be sure, plaintiffs are correct that the determination itself was silent on the issue of coal wastes. But it was also a direct by-product of the Hard Rock Mining Report — and its accompanying public comment period — that explicitly excluded coal wastes from study. Put another way, the Hard Rock Mining Report was very much a part of the regulatory decision-making process. And contrary to In re Bluewater Network, there is no suggestion here that EPA’s determination on this point was anything but final. Indeed, that determination was challenged in court as final agency action with respect to extraction and beneficiation regulation. There is no reason to believe that plaintiffs could not have lodged a complaint challenging EPA’s exclusion of coal mining wastes from the § 8002(f) and (p) study— as they have done in this lawsuit — back in 1986.
Similarly,
In re United Mine Workers
does not advance the ball much for plaintiffs. In that case, the National Mining Association intervened to argue that the plaintiffs “petition is tantamount to an untimely challenge to the [Mine Safety and Health Administration’s] ... diesel equipment rules.”
In this case, however, EPA’s exclusion of coal from the Hard Rock Mining Report relates directly to the challengeable agency action: the 1986 regulatory determination. Indeed, EPA’s explanation of its decision not to study coal extraction and *137 beneficiation waste amounts to a conclusion that such a study was not in fact required by § 8002(f) and (p). The 1986 regulatory determination’s silence on the issue of coal mining wastes is consistent with that conclusion. It seems that EPA was empowered to make such a decision. After all, the applicable portions of RCRA do not explicitly direct EPA to “study coal mining wastes.” And although coal is indeed “arguably a mineral or ore,” as the EPA put it, § 8002(p) apparently provides some room for EPA to exclude studying certain materials to “avoid[ ] duplication of effort” by other federal agencies. 7
In any event, by the time that the 1986 regulatory determination was issued, it was evident that EPA had decided not to regulate coal mining waste — or, for that matter, any mining wastes from extraction or beneficiation — under Subtitle C of RCRA. Unlike In re United Mine Workers, the agency here did not direct Congress or other interested parties to await the results of an additional study or rule-making proceeding. Instead, the coal exclusion and other provisions of the Hard Rock Mining Report — subject to any changes prompted by the public comment period — were incorporated into EPA’s final regulatory determination. In a very direct sense, the Hard Rock Mining Report was part of the process that resulted in the 1986 determination. That was not the case, however, in In re United Mine Workers, where the only agency action at issue expressly indicated that the agency took no position on permissible exposure limits but instead directed interested parties to a related proceeding.
Admittedly, EPA’s actions here are not exactly a model of regulatory lucidity. It would have been clearer had EPA explicitly stated in its 1986 regulatory determination that it was excluding coal mining wastes from regulation under Subtitle C. As it is, the only statement from EPA concerning the treatment of that waste came in the form of EPA’s decision to omit it from the Hard Rock Mining Report. The resulting ambiguity has created the present controversy. Nevertheless, the Court concludes that defendants’ position that plaintiffs’ complaint is in fact a challenge to its 1986 final agency action is a permissible, even if not compelling, characterization. Construed as such, it is evident that plaintiffs’ complaint is untimely and must be dismissed. As noted above, RCRA requires that any petition for review of a decision by the Administrator concerning regulations must be filed within ninety days of publication. See 42 U.S.C. § 6976(a)(1). It is undisputed here that plaintiffs have failed to file them challenge within that allotted time-frame — they are over twenty years late. Accordingly, if viewed as a challenge to EPA’s final regulatory determination issued in July 1986, plaintiffs’ complaint must be dismissed.
II. Agency Inaction
As plaintiffs frame the case, on the other hand, they are challenging what the agency has failed to do for over twenty *138 years in direct contravention of Congress’ plain directive to “study and report the environmental effects of coal mining and beneficiation waste.” Pis.’ Opp’n at 12. They style their complaint as an action to compel agency action unlawfully withheld or unreasonably delayed pursuant to the APA. See 5 U.S.C. § 706(1). Thus, plaintiffs argue that EPA never took any regulatory action on this question that could be the subject of judicial review within RCRA’s 90-day filing limit. But defendants have an answer to this characterization as well. Even assuming that plaintiffs’ claim is properly conceptualized as a challenge to agency inaction, defendants argue that it is nevertheless untimely pursuant to the six-year limitations period contained in 28 U.S.C. § 2401(a). Moreover, defendants maintain that § 2401(a) is no ordinary statute of limitations; instead, it has jurisdictional dimensions such that once the six-year period has lapsed, a court is stripped of subject matter jurisdiction. As explained below, defendants appear to be correct.
At the outset, a brief discussion of the nature of 28 U.S.C. § 2401(a) is in order. In relevant part, § 2401(a) provides: “every civil action commenced against the United States shall be barred unless the complaint is filed within six years after the right of action first accrues.” The United States, of course, enjoys sovereign immunity from suit without its consent.
See, e.g., United States v. Mitchell,
In private civil litigation, a motion “to dismiss for lack of subject matter jurisdiction cannot rest upon an assertion that an action is barred by the statute of limitations because the expiration of the limitations period is an affirmative defense and not a bar to jurisdiction.”
Id.
at 122 (citing
Gordon v. Nat’l Youth Work Alliance,
But an initial question here is when plaintiffs’ cause of action accrued. As defendants correctly point out, the “statutory
*139
deadline for publishing a report of the section 8002 mining waste studies was October 21, 1983.” Defs.’ Mot. at 15. Technically speaking, then, plaintiffs’ claim ripened on that date when EPA failed to issue a report — after all, at that time it was evident that EPA had not performed a nondiscretionary duty by the specific time set by Congress.
See Center for Biological Diversity v. Hamilton,
Defendants maintain that the:
only elements necessary to plaintiffs’ causes of action against the federal defendants are: (1) that EPA had a duty to publish the mining waste study under RCRA § 8002(f) and (p) by October 21, 1983; (2) that DOI had a duty to consult EPA on the study; and (3) that EPA did not publish the study by that date.
Defs.’ Mot. at 15. It follows, according to defendants, that “the remedy that Congress provided for EPA’s alleged failure to fulfill its statutory duty was to permit any person to ‘invoke the aid of the court’ at any time between October 21, 1983 and October 21, 1989. In that ‘ample time,’ plaintiffs did nothing.” Id. at 16. 8 For their part, plaintiffs do not seriously dispute most of defendants’ account. Instead, they argue that an agency’s persistent nonfeasance in the face of a statutory deadline constitutes a continuing violation of federal law. Each day after the congressional deadline that the agency continues to flout its regulatory obligations, the argument goes, a fresh violation has occurred. Thus, according to plaintiffs, “an action to compel a recalcitrant government agency to perform its statutorily mandated duties is not time-barred if it is brought more than six years after the expiration of the statutory deadline.” Pls.’ Opp’n at 13.
Plaintiffs cite to considerable authority to support their position. In addition to four district court opinions from around the country, they maintain that the D.C. Circuit also adheres to their view. The primary case on which they rely is
The Wilderness Society v. Norton,
The district court first acknowledged that the force of the legal precedents prohibiting the equitable tolling of statutes of
*140
limitations against the United States has “been eroding over the last decade.”
Id.
at *5. Reviewing the operative cases, Judge Collyer noted that in
Irwin v. Dep’t of Veterans Affairs,
Building on that final passage from Chung,
9
Judge Collyer concluded that the plaintiffs claim in
The Wilderness Society
was “in the nature of ‘mandamus.’ ”
On appeal, the D.C. Circuit affirmed that dismissal, but on alternative grounds. The court based its holding on the lack of Article III standing rather than the jurisdictional nature of § 2401(a). In fact, in dictum the court questioned Judge Col-lyer’s holding on that point:
Although we need not reach a final determination on this issue because we find TWS lacks standing as to its statutory claims, the Society appears to be right in its contention that the District Court erred in dismissing the counts under the Wilderness Act and the specific enabling statutes as time-barred under 28 U.S.C. § 2401(a).
The Wilderness Society,
It seems that the D.C. Circuit explicitly contemplated that the doctrine of continuing violations could toll the statute of limitations contained in § 2401(a). The court was curiously silent on the precise question of whether § 2401(a) is indeed jurisdictional — not to mention the import of its own precedents, including
Spannaus
and Chung — but application of a judicially-recognized exception to a statute of limitations is inconsistent with the conclusion that it is jurisdictional.
See Fetter,
Plaintiffs’ position might have been more persuasive if not for two very recent opinions from the Supreme Court and the D.C. Circuit, respectively. First, in
John R. Sand & Gravel Co. v. United States,
— U.S. —,
The primary question presented in
John R. Sand
was whether, as the petitioner argued, intervening decisions, including
Irwin,
had undermined that assessment of § 2501 as jurisdictional. The Court wasted no time in rejecting that proposition.
John R. Sand is relevant to this case for two reasons. To begin with, § 2501 and § 2401(a) contain highly similar language. Section 2501 provides, in relevant part: “Every claim of which the United States Court of Federal Claims has jurisdiction shall be barred unless the petition thereon is filed within six years after such claim first accrues.” 28 U.S.C. § 2501. That phrasing in § 2501 is nearly identical to § 2401(a) (“every civil action commenced against the United States shall be barred unless the complaint is filed within six years after the right of action first accrues”). Moreover, both statutes are Congressional waivers of sovereign immunity that effectively serve the same purpose; the only difference between them is that § 2501 deals with cases in the Court of Federal Claims, a narrow subset of claims against the United States addressed more generally in § 2401(a). The Supreme Court’s determination that § 2501 is jurisdictional strongly suggests the same conclusion with respect to § 2401.
Moreover,
John R. Sand
helps to reconcile conflicting ease law within this Circuit. In
P & V Enters. v. U.S. Army Corps of Eng’rs,
More importantly, the district court in
P & v. Enters.
also relied upon the government’s concession that
“Irwin
may well have overturned the precedent that [§ ] 2401(a) is jurisdictional in nature.”
Id.
at 148. That concession, in turn, was motivated by the D.C. Circuit’s pronouncement in
Harris v. FAA,
Plaintiffs are ultimately correct that the D.C. Circuit’s position on whether § 2401(a) is jurisdictional is apparent. They are simply incorrect, however, on what that position actually is. Indeed, the *143 court of appeals has adopted an approach directly contrary to plaintiffs’ asserted position. In their brief, plaintiffs state that “Spannaus need not be, and indeed cannot be, read to hold that 28 U.S.C. § 2401(a) presents a question of subject matter jurisdiction.” Pls.’ Opp’n at 28. The D.C. Circuit expressly disagreed only a month ago in P & V Enters. Consequently, this Court is compelled to hold that § 2401(a) is jurisdictional. 11 As a result of that conclusion, the entire basis for plaintiffs’ argument that their complaint is timely — that the continuing violations doctrine tolled the limitations period — is not legally viable.
The Court is cognizant that this holding may leave plaintiffs with no judicial avenue at this time to compel EPA and DOI to take actions that plaintiffs believe are mandated by Congress. But that does not preclude plaintiffs from filing a petition for rulemaking with the agencies themselves. They can also bring this alleged two-decade long violation to Congress’ attention. Finally, plaintiffs are free to ask the D.C. Circuit to reconsider its case law. But it is not this Court’s role to ignore binding D.C. Circuit and persuasive Supreme Court eases issued within the past two months. Even viewed as a challenge to agency action unreasonably withheld, then, plaintiffs’ claim fails for lack of subject matter jurisdiction because it is untimely. Accordingly, the Court will grant defendants’ motion to dismiss. 12
*144 CONCLUSION
For the foregoing reasons, the Court concludes that plaintiffs’ complaint must be dismissed as untimely. If the complaint is regarded as a challenge to final agency action, it must be dismissed pursuant to Rule 12(b)(6) for failure to state a claim. In the alternative, if the complaint is more properly regarded as an action to compel agency action unreasonably withheld, it must be dismissed pursuant to Rule 12(b)(1) for lack of subject matter jurisdiction. A separate Order accompanies this Memorandum Opinion.
Notes
. As initially enacted, RCRA § 8002(f) required EPA’s study to include:
(1) the sources and volume of discarded material generated per year from mining;
(2) present disposal practices;
(3) potential dangers to human health and the environment from surface runoff of leachate and air pollution by dust;
(4) alternatives to current disposal methods;
(5) the cost of those alternatives in terms of the impact on mine product costs; and
(6) potential for use of discarded material as a secondary source of the mine product. 42 U.S.C. § 6982(f). The Bevill Amendment also required EPA to “ 'conduct a detailed and comprehensive study on the adverse effects on human health and the environment, if any, of the disposal and utilization’ of these wastes and to investigate any 'documented cases in which danger to human health or the environment has been proved.’ ” Envtl. Def. Fund,852 F.2d at 1311 (quoting § 8002(p)). EPA was also directed to ''investigate the impact of alternative disposal methods on the utilization of the nation’s natural resources.” Id. (citing § 8002(p)(7)).
. Although it is not entirely clear, plaintiffs observe that "[presumably, OSMRE was referring to the studies under Sections 8002(f) and (p) of RCRA that were due by October 21, 1983.” Pis.' Opp’n at 6.
. As defendants point out, the Hard Rock Mining Report “discussed extraction and be-neficiation wastes but did not address processing wastes, which were the subject of EPA's proposed reinterpretation of the Bevill Amendment” issued on October 2, 1985. Defs.' Mot. at 6-7.
. Plaintiffs contend that defendants have requested an inappropriate standard of review at various points. For instance, plaintiffs maintain that defendants’ "statute of limitations argument must be treated as a motion for failure to state a claim” rather than as a motion to dismiss for lack of subject matter jurisdiction. Pis.’ Opp'n at 8. That is correct insofar as plaintiffs’ complaint is characterized as a challenge to agency action. It is not correct, as demonstrated below, regarding plaintiffs' preferred characterization because the Court concludes that § 2401(a) is in fact jurisdictional; thus, a motion pursuant to Rule 12(b)(1) is appropriate. Plaintiffs also maintain that because defendants make reference to materials outside of the complaint— namely, the Hard Rock Mining Report and EPA’s 1990 Report to Congress — this Court should regard a portion of defendants’ motion as one for summary judgment. But "[i]n determining whether a complaint states a claim, the court may consider the facts alleged in the complaint, documents attached thereto or incorporated therein, and matters of which it may take judicial notice.”
Howard v. Gutierrez,
. Plaintiffs initially appeared to argue that EPA also failed to study coal processing wastes. See Compl. ¶ 18. The agency rather plainly, however, conducted such a study and issued a report to Congress in 1990. See 56 Fed.Reg. 27,301.
. Indeed, EPA's determination not to regulate
any
mining wastes under Subtitle C was in fact challenged in
Envtl. Def. Fund.
As noted above, the D.C. Circuit concluded that EPA’s decision to exclude such wastes from Subtitle C regulation was not arbitrary and capricious.
Envtl. Def. Fund,
. Plaintiffs engage in a lengthy discussion regarding whether EPA's determination that it need not study coal deserves Chevron deference; they argue, naturally, that it does not. See Pls.' Opp'n at 32-35. That contention is beside the point for our purposes. This Court is not reviewing whether EPA's interpretation is worthy of any deference or whether it was arbitrary and capricious. Instead, the pertinent question here is whether the agency acted at all. Plaintiffs' invitation to the Court to "conclude that it is neither reasonable nor permissible to interpret Section 8002(f) and (p) not to require the study of coal wastes,'' id. at 35, is better suited to a challenge on the merits — not to mention the fact that it demonstrates plaintiffs' willingness to contemplate that EPA did, in fact, take action in this instance.
. The Court substitutes the later judicially-crafted deadline of December 31, 1985 for the statutory deadline of October 31, 1983.
. Plaintiffs here take issue with Judge Col-lyer's reliance on Chung. That case, they claim, "put a gloss on
Irwin
that had not previously been there.” Pls.’ Opp'n at 25. And that gloss was subsequently removed by the Supreme Court in
Scarborough v. Principi,
. Interestingly, the D.C. Circuit noted that neither party on appeal "challenged this circuit’s precedent” and therefore it "need not question ... prior authority.”
P & V Enters.,
. Naturally, given the binding authority from the D.C. Circuit on this question, and the firm support from the Supreme Court in John R. Sand, plaintiffs' reliance on the contrary holdings of district courts is unavailing.
. Defendants also assert that plaintiffs lack Article III standing to bring this lawsuit. Although the Court need not decide this question, it appears likely that plaintiffs have standing. Where, as here, there are multiple plaintiffs, "if constitutional and prudential standing can be shown for at least one plaintiff, [the court] need not consider the standing of the other plaintiffs to raise that claim.”
Mountain States Legal Found. v. Glickman,
Plaintiffs advance two grounds to establish standing: informational and associational standing. "Informational standing arises 'only in very specific statutory contexts' where a statutory provision has ‘explicitly created a right to information.’ ”
Am. Farm Bureau v. EPA,
Plaintiffs’ claim to associational standing in a representative capacity, however, fares better. Associational standing requires an organization to demonstrate “that at least one member would have standing under Article III to sue in his or her own right, that the interests it seeks to protect are germane to its purposes, and that neither the claim asserted nor the relief requested requires an individual member participate in the lawsuit.”
Natural Res. Defense Council v. EPA,
Those allegations are sufficient to demonstrate that at least some of plaintiffs' members would have Article III standing to bring this suit. As the Supreme Court has held, “environmental plaintiffs adequately allege injury in fact when they aver that they use the affected area and are persons 'for whom the aesthetic and recreational values of the area will be lessened’ by the challenged activity.' ”
Friends of the Earth
v.
Laidlaw Envtl. Services,