MEMORANDUM OPINION
Plaintiffs Western Wood Preservers Institute, Treated Wood Council, Southern Pressure Treaters’ Association, Creosote Council, and Railway Tie Association (“plaintiffs”) sued John M. McHugh in his official capacity as the Secretary of the Army, the United States Army Corps of Engineers, and Rebecca Blank in her official capacity as Acting Secretary of Commerce (“defendants” or “Corps”). Plaintiffs challenged the Corps’ approval of two regional conditions to nationwide permits under the Clean Water Act, as well as the issuance of certain operating procedures for activities that are regulated by that Act.
On February 27, 2013, this Court held that plaintiffs lacked standing to bring their claims, and further dismissed certain of plaintiffs’ claims for failure to state a claim under Rule 12(b)(6). See Western Wood Preservers Inst. v. McHugh, No. 12-cv-1253,
BACKGROUND
The factual background of this case was laid out in this Court’s initial ruling. See WWPI I,
In that ruling, the Court granted defendants’ motion to dismiss plaintiffs’ complaint for lack of standing under Rule 12(b)(1) and for failure to state a claim under Rule 12(b)(6). See id. With respect to standing, the Court first found that plaintiffs could not establish assoeiational standing because they had not identified a single member firm that had suffered the alleged economic harm. Id., at 69-70. The Court further concluded that the associations themselves had not sufficiently alleged any environmental or procedural harm and did not have prudential standing to sue under the National Environmental Policy Act. Id., at 72-74. Finally, the Court held that plaintiffs had failed to state a claim under the Regulatory Flexibility Act (“RFA”) and the Endangered Species Act (“ESA”). Id., at 72-73.
Plaintiffs now seek leave to file a Third Amended Complaint with two additional plaintiffs, both members of organizational plaintiff Western Wood Preservers Institute. (See Mot. at 1-2.) They also seek reconsideration of the Court’s Rule 12(b)(6) dismissal of their claims under the RFA and ESA, but do not challenge the dismissal of their claims under the NEPA for lack of prudential standing. (See id., at 72-73 & n. 1.)
ANALYSIS
I. STANDING
A. Leave to Amend
Plaintiffs seek leave to amend their complaint under Rule 15(a), which provides that leave to amend should be freely given “when justice so requires.” Fed.R.Civ.P. 15(a)(2). Defendants, however, insist that the Court’s order granting their motion to dismiss amounted to an entry of final judgment, such that plaintiffs must meet the standard under Rule 59(e) for a motion to reconsider. (See Opposition to Plaintiffs’ Motion for Leave to File Third Amended Complaint, May 1, 2013 [ECF No. 23] (“Opp’n”) at 1-2, 4-5.) Reconsideration under Rule 59(e) is a “more stringent standard,” under which leave to amend “need not be granted unless the district court finds that there is an ‘intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice.’ ” Firestone v. Firestone,
Defendants are correct that plaintiffs must meet the higher standard of Rule 59(e) in this instance. It is well established that “[w]here a district court is presented with a motion for leave to amend following a dismissal, the court considers the motion for leave to amend only after consideration of a party’s motion to amend or alter the dismissal.” DeGeorge v. United States,
Because, for the reasons stated below, the Court declines to reconsider its dismissal of plaintiffs’ complaint, it need not address the merits of plaintiffs’ motion for leave to amend.
B. Reconsideration
In the alternative to their motion for leave to amend, plaintiffs seek reconsideration of this Court’s ruling that they failed to establish assoeiational standing. (See Mot. at 9-14.) Specifically, plaintiffs claim that this Court’s requirement that they identify
Plaintiffs argue that two of the cases on which defendants and this Court relied are inapposite because they are direct appeals from administrative decisions and therefore “ha[ve] no relevance to a civil action in district court initiated by the filing of a complaint.” (Id. at 10.) However, the mere fact that those eases arose in a different context than this one does not mandate a contrary outcome in this case.
Nor do the other cases plaintiffs cite render this Court’s ruling “clearly erroneous.” In their motion, plaintiffs point to several instances where courts found it unnecessary for a plaintiff to identify specific member firms to support associational standing at the motion to dismiss stage. (See Mot. at 12-13.) As an initial matter, none of the cases cited bind this Court. Moreover, there are plenty of contrary examples from other courts across the country. See, e.g., Nationwide Ins. Indep. Contractors Ass’n, Inc. v. Nationwide Mut. Ins. Co., No. 12-2549,
Within this district, the Court is aware of one case where a plaintiff did not need to identify any affected members by name. See Ass’n of Am. Physicians & Surgeons, Inc. v. Sebelius,
The mere fact that there are conflicting opinions on this issue among the various courts of this country—and even among the judges of this court—does not render this Court’s ruling “clearly erroneous,” as required to survive a motion to reconsider under Rule 59(e). Nor have plaintiffs even attempted to argue that there has been an “intervening change of controlling law” or that there is any newly-available evidence that should compel this Court to reach a different conclusion. Thus, the Court concludes that reconsideration of its earlier rul
II. FAILURE TO STATE A CLAIM
Plaintiffs also seek reconsideration of three of the claims that this Court denied with prejudice for failure to state a claim.
A. RFA Claims
Plaintiffs seek reconsideration of the Court’s dismissal of claims 7 and 12 under the RFA (re-pled as claims 6 and 10 in the proposed Third Amended Complaint) for failure to state a claim under Rule 12(b)(6), arguing that the addition of new plaintiff Western Wood Structures, Inc. remedies the previous pleading deficiencies. (See Mot. at 5-6.)
However, those claims were also dismissed for lack of associational standing, see WWPI I,
B. ESA Claim Against the NMFS
Plaintiffs also seek reconsideration of the Court’s dismissal of claim 10 against the NMFS under the ESA (re-pled as claim 9) for failure to state a claim under Rule 12(b)(6). (See Mot. at 6-9.)
As an initial matter, those claims were also dismissed for lack of associational standing, see WWPI I,
In addition to a lack of standing, plaintiffs’ ESA claim against the NMFS was also dismissed for failure to state a claim under Rule 12(b)(6). See WWPI I,
Plaintiffs now seek reconsideration of that opinion on two grounds. First, they argue that by considering the Biological Opinion itself, this Court improperly converted the Rule 12(b)(6) motion into a motion for summary judgment without following the procedures set out in Rule 12(d). (See Mot. at 6-7.) The Court declines to reconsider its previous opinion on this basis, because it is well established that in ruling upon a motion to dismiss, “[t]he Court may consider ‘the facts alleged in the complaint, documents attached as exhibits or incorporated by reference in the complaint,’ or ‘documents upon which the plaintiffs complaint necessarily relies even if the document is produced not by [the parties].’ ” Attakora v. District of Columbia, No. 12-1413,
However, plaintiffs also seek reconsideration on the grounds that this Court misconstrued their claim. Plaintiffs’ complaint—in both its Second and Third Amended iterations—alleges that “the NMFS biological opinion on the SLOPES IV procedures violated NMFS’ obligation in 16 U.S.C.
Although plaintiffs’ briefing remains murky at best on this issue, the Court now understands that plaintiffs intend these allegations to relate specifically to the Incidental Take Statement included within the Biological Opinion. In their motion, plaintiffs explained that:
The issue in this case[] arises from the ESA provision requiring that when, as here, NMFS concludes that a proposed agency action is not like[ly] to jeopardize any listed species, NMFS must issue an ‘incidental take statement’ authorizing incidental take for the action, including reasonable and prudent measures to minimize take, and nondiscretionary terms and conditions that the Federal action agency must comply with to carry out the reasonable and prudent measures.
(Mot. at 7.) Here, as part of the Incidental Take Statement, the NMFS imposed a non-discretionary term and condition specifying that “ ‘[f]or each action with a general construction element, the Corps will apply design criteria 1 through 10 and 11 through 27 as enforceable permit conditions or as final project specifications.’ ” (Mot. at 8 (quoting Biological Opinion [ECF No. 15-3] at 106).) In other words, the NMFS’ Incidental Take Statement imposed an obligation on the agency requiring it to enforce the various design criteria in the SLOPES IV procedures, including the prohibition on treated wood. Plaintiffs’ claim against the NMFS is apparently focused on that independent action, which they allege was done without consideration of “the best scientific and commercial data available,” as required by the ESA.
With this understanding, the Court agrees that plaintiffs have stated a claim under the ESA The Supreme Court has expressly noted that a “Biological Opinion and accompanying Incidental Take Statement alter the legal regime to which the action agency is subject, authorizing it to take the endangered species if (but only if) it complies with the prescribed conditions.” Bennett v. Spear,
CONCLUSION
For the foregoing reasons, plaintiffs’ motion for reconsideration is granted in part
Notes
. Plaintiffs argue that Common Cause is not relevant to this debate because the plaintiffs there failed to respond to the defendants’ argument that they were required to name specific member firms who had been injured. (See Mot. at 13.) However, if there was no such requirement, the plaintiffs’ failure to address it would not have amounted to a concession that they lacked associational standing. Thus, Judge Sullivan's ruling that the plaintiffs in Common Cause lacked associational standing further bolsters this Court’s conclusion.
. The parties also disagree as to whether plaintiffs’ proposed claim 9 (previously claim 10) against the Corps under the ESA is barred by the notice requirement of the ESA’s citizen-suit provision (See Opp’n at 13-16; Plaintiffs’ Reply in Support of Their Motion for Leave to File a Third Amended Complaint, May 17, 2013 [ECF No. 26] at 15.) However, because the Court has denied plaintiffs’ request for leave to amend their complaint (see supra Section I), it need not rule on any arguments that relate to new additions in the amended complaint. If plaintiffs re-file their complaint with additional plaintiffs, the Court can consider at that time whether those plaintiffs may bring a claim under the ESA against the Corps.