Feds Motion to Dismiss

8/9/2019 Feds Motion to Dismiss

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IGNACIA S.MORENO

Assistant Attorney General

Environment and Natural Resources Division

U.S. Department of Justice

DOMINIKA TARCZYNSKA, Trial Attorney

New York Bar No. 4431573JOHN S.MOST, Trial Attorney

Virginia Bar No. 27176

Natural Resources Section

P.O. Box 7611

Washington, D.C. 20044-7611

(202) 305-0447 (Tarczynska)

(202) 616-3353 (Most)

(202) 305-0506 (fax)

[email protected]

[email protected] for Defendants

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

PRESCOTT DIVISION

NORTHWEST MINING

ASSOCIATION,

Plaintiff,

v.

KEN SALAZAR, SECRETARY

OF THE INTERIOR, et al.,

Defendants.

Case No. 3:12-cv-08042-DGC

DEFENDANTS MOTION TO DISMISSAND MEMORANDUM IN SUPPORT

Case 3:12-cv-08042-DGC Document 27 Filed 06/01/12 Page 1 of 24
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TABLE OF CONTENTS

DEFENDANTS MOTION TO DISMISS ...........................................................................

DEFENDANTS MEMORANDUM OF LAW ....................................................................

INTRODUCTION .................................................................................................................

LEGAL BACKGROUND .....................................................................................................

A. Mining Law of 1872 ........................................................................................

B. Federal Land Policy and Management Act ....................................................

FACTUAL BACKGROUND ...............................................................................................

A. The Affected Lands .........................................................................................B. Administrative and Judicial Proceedings ........................................................

STANDARD OF REVIEW ...................................................................................................

ARGUMENT ........................................................................................................................

I. Plaintiffs Claims Fail to Establish an Article III Case or

Controversy .....................................................................................................

A. By failing to identify member-held mining claims,Plaintiff has not alleged facts essential to show

standing as to any count .......................................................................

B. Plaintiff is not harmed by the unexercised legislative

veto provision and thus fails to establish Article III

standing as to its Seventh Claim .........................................................

C. Plaintiff fails to demonstrate that its claims are ripe ............................

II. Plaintiffs NEPA Claims Fail to Demonstrate Prudential Standing ...............

CONCLUSION .....................................................................................................................



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DEFENDANTS MOTION TO DISMISS

Pursuant to Fed. R. Civ. P. 12(b)(1), Defendants respectfully move to dismiss the

Complaint in this action, Dkt. 1 (Mar. 6, 2012), due to lack of subject-matter

jurisdiction. Plaintiff has not met its burden of demonstrating Article III standing or

ripeness, or prudential standing, as explained in the following memorandum.

DEFENDANTS MEMORANDUM OF LAW

INTRODUCTION

The Mining Law of 1872 (Mining Law), authorizes citizens to locate mining

claims on federal lands that are open to exploration upon discovery of valuable

mineral deposits and compliance with applicable legal requirements. Chrisman v

Miller, 197 U.S. 313, 322-23 (1905). Section 204(c)(1) of the Federal Land Policy and

Management Act of 1976 (FLPMA) authorizes the Secretary of the Interior to

withdraw lands from settlement, sale, location, or entry under the general land laws

(including the Mining Law), in order to maintain other public values in the area. 43

U.S.C. 1702(j), 1712(e)(3), 1714(c)(1).

The Northwest Mining Association (NWMA or the association), claiming to

represent the interests of members it declines to identify, challenges the Secretarys

recent exercise of this Section 204(c)(1) authority. It asks the Court in a seven-count

complaint to invalidate the Secretarys decision to withdraw from location and entry

under the Mining Law approximately one million acres of public and National Forest

System lands in the Grand Canyon watershed (collectively, Federal lands), for twenty

years, subject to valid existing rights. SeeRecord of Decision (ROD) at 1 (Jan. 9



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2012) (attached herewith as Ex. 1). The first claim for relief asserts that the Secretarys

exercise of his withdrawal authority was unlawful under FLPMA and the

Administrative Procedure Act (APA). The second claim asserts that the withdrawal

violates both the National Environmental Policy Act, 42 U.S.C. 4321 et seq

(NEPA) and the National Forest Management Act, 16 U.S.C. 1701 et seq

(NFMA), while the third through sixth Claims allege additional NEPA violations

The seventh claim asserts that the Secretarys withdrawal authority is inoperative

because the statutory source for that authority contains an allegedly unconstitutional

and unseverable legislative veto provision. Based on these supposed infirmities but

without identifying any affected mining claimants the association asks that the

decision be set aside.

The Court should decline and instead dismiss the action for lack of subject-

matter jurisdiction because the complaint fails to identify imminent harm to the legally

protected interests of any NWMA member and because it fails to identify harm suffered

by the association itself. Instead the complaint generally asserts that the decision will

substantially hinder mineral exploration and development by preventing location of

new claims and slowing or preventing development of valid existing rights. Compl

58(c); see also id. 48 (referring to costly and unnecessary delays). However

nowhere in the complaint does Plaintiff claim that anyones legally protected interests

are harmed by the outcomes Plaintiff predicts.The Complaint also asserts that, but for

the withdrawal, NWMAs members would seek to locate additional claims, id. 8

but does so without asserting that this circumstance harms either the association or a



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member. Based on these scant allegations, which at best would allow the Court to infer

the required harm, Plaintiff declares that NWMAs members and the association itself

have suffered injury in fact . . . . Id. 55. However, in the absence of an allegation

that a specified member is personally threatened, none of these allegations has meaning.

SeeLujan v. Defenders of Wildlife, 504 U.S. 555, 560 n.1 (1992). The challenged

decision precludes further location and entry on the withdrawn lands for twenty years,

but the complaint does not identify anyone who is interested in locating additional

mining claims nor, for that matter, does it identify any person or entity injured by

supposedly costly delay. Consequently, all seven counts should be dismissed.

Even if Plaintiff were to amend the complaint by identifying a member with a

mining claim, the fact remains that Plaintiff still cannot identify a member presently

seeking authorization for surface-disturbing work which would trigger the delay of

which Plaintiff complains. As a result, the vaguely alleged injuries are not actual or

imminent for purposes of standing, nor are they ripe within the meaning of Article III.

Finally, should the Court conclude Plaintiff has properly alleged an Article III

case or controversy, it should nonetheless dismiss the NEPA counts in the second

through sixth claims for relief because Plaintiff lacks prudential standing to bring

these claims. The alleged harm costly delay is economic in nature and thus falls

outside the zone of interests that NEPA, an environmental statute, protects.

For these and additional reasons set out below, Defendants respectfully request

that the Court dismiss the complaint for lack of an Article III case or controversy and

that it dismiss the NEPA count for lack of prudential standing.



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LEGAL BACKGROUND

A.Mining Law of 1872

The Mining Law of 1872, 30 U.S.C. 22-54, made public lands available to

American citizens for the purpose of mining valuable mineral deposits . . . . United

States v. Coleman, 390 U.S. 599, 602 (1968); Cameron v. United States, 252 U.S. 450

460 (1920); 30 U.S.C. 22. It authorizes citizens to locate valid mining claims upon

discovery of valuable mineral deposits and compliance with applicable legal

requirements. Chrisman, 197 U.S. at 322-23. As long as lands remain open to

location and entry, a citizen may locate a mining claim. See43 C.F.R. Part 3832.1

Before conducting most extractive mining activities, operators must obtain

approval of a plan of operations, either from the Forest Service (Service), 36 C.F.R.

228.4, or from the Bureau of Land Management (BLM). 43 C.F.R. 3809.11

3809.412. On withdrawn lands, the surface-managing agency conducts a mineral

examination before processing a proposed plan or allowing notice-level operations.2

1 Mining claimants often locate claims before making a discovery, to protect their

interests as against rival claimants while working to make the physical exposure

required to establish a valid claim. This act of pre-discovery location gives the mining

claimant the right of pedis possessio, as against other claimants. See Union Oil Co. v

Smith, 249 U.S. 337, 346-47 (1919). However, only upon discovery of a valuable

mineral deposit is a mining claim valid and enforceable against the United States. Id.at348-49;Hafen v. United States, 30 Fed. Cl. 470, 473 (1994). A valid claim affords its

holder the right to possess, occupy, and extract minerals from federal lands. 30 U.S.C

26;Mineral Policy Ctr. v. Norton, 292 F. Supp. 2d 30, 47 (D.D.C. 2003).

See 43 C.F.R. 3809.100 (BLM-managed public land); May 31, 2012 Declaration

2The term "notice" or "notice-level" operations in this brief refers both to operations

under a "notice" under the BLM's regulations at 43 C.F.R. 3809.300 and to a "notice

of intent" filed under the Forest Service's regulations at 36 C.F.R. 228.4.



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(Decl.) of Rody Cox 6, 7 (Ex. 2) (same); May 31, 2012 Decl. of Thomas Mutz

5, 6 (Ex. 3) (National Forest System Lands). A mineral examination determines the

validity of a mining claim; that is, whether the claimant had discovered a valuable

mineral deposit at the time of withdrawal which continues to date. See United States v

Pass Minerals, Inc., 168 IBLA 115, 122 (2006). If the mineral examination concludes

there has been no discovery, BLM, either on its own or on behalf of the surface-

managing agency, institutes a contest proceeding to have the mining claims declared

invalid. See43 C.F.R. 4.451-1; Ex. 2 at 8; Ex. 3 at 6.

B. Federal Land Policy and Management Act

Section 204(c) of FLPMA authorizes the Secretary to withdraw lands from the

operation of the general land laws, including the Mining Law, 43 U.S.C. 1714(a), in

order to, inter alia, maintain other public values in the area. Id. 1702(j). Such

withdrawals are made subject to valid existing rights. Id. 1701 Note, Pub. L. 94-579

701; see also43 U.S.C. 1714. This authority extends not only to lands managed by

BLM, but also to lands managed by other federal agencies. Id. 1702(j) (defining

withdrawal authority as applying to Federal land); id. 1714(i) (authorizing the

Secretary to withdraw lands administered by another agency only with the agencys

consent). FLMPA contains a severability provision, which requires that if any of the

acts provisions are held invalid, the remainder of the Act and the application thereof,

shall not be affected thereby. 43 U.S.C. 1701 Note, Pub. L. No. 94-579, 707.



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FACTUAL BACKGROUND

A. The Affected Lands

The lands withdrawn consist principally of three parcels, two managed primarily

by BLM (the north and east parcels on the Kanab Plateau, north of the Grand Canyon

consisting of 684,449 acres) and one located on the Kaibab National Forest, south of

the park (the south parcel, consisting of 322,096 acres). Ex.1 at 4-7, 8 (Map 1).

Uranium is a mineral locatable under the Mining Law, see43 C.F.R. 3830.11

3830.12(a), and has occurred in northern Arizona as pipe-shaped breccia bodies,

generally no more than 300 feet in diameter and extending as far as 2,000 feet below

the surface. Ex. 1 at 2. Uranium exploration and mining began in northern Arizona in

the 1940s and 1950s and, following significant price increases, expanded in the 1970s

From 1978 to 1992, prospectors drilled more than 900 exploratory holes in the

withdrawal area. Id. By the early 1990s, six of seven uranium mines in the withdrawn

area had produced over 1.5 million tons of uranium. Id. More recently, price spikes

spurred renewed interest in mining, as prospectors located thousands of new mining

claims in the mid-2000s. Id.at 3. This demand generated concern about impacts on the

natural, cultural, and social resources of the Grand Canyon watershed. Id.

B. Administrative and Judicial Proceedings

In July 2009, upon application of BLM, the Secretary proposed the withdrawal

and the Department gave public notice thereof. See74 Fed. Reg. 35,887-01 (July 21,

2009). Its purpose was to protect the Grand Canyon watershed from adverse effects of

locatable hardrock mineral exploration and mining. Id. at 35,887. By operation of



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law, the notice segregated the lands from location and entry for a period of two years.

Id.; see also 43 U.S.C. 1714(b)(1). BLM then commenced analysis of the proposal

including environmental analysis under NEPA. 74 Fed. Reg. at 35,887.

In February 2011, the Environmental Protection Agency (EPA) published a

notice of availability of a draft environmental impact statement (DEIS), which

initiated a 45-day comment period. 76 Fed. Reg. 9575 (Feb. 18, 2011). BLM later

extended the comment period to 75 days. 76 Fed. Reg. 19,772 (Apr. 8, 2011). Given

the complexity of issues and volume of comments received, it became apparent the

effort could not be completed during the two-year segregation. Consequently, the

Secretary, under FLPMAs broad grant of emergency authority, see 43 U.S.C

1714(e), 43 C.F.R. 2310.5, issued Public Land Order 7773, withdrawing the lands

for an additional 6 months, to January 20, 2012. 76 Fed. Reg. 37,826-01 (Jun. 28

2011). This preserved the status quo as the agency completed decision making. Id

The Secretary also announced he was directing BLM to identify Alternative B in the

DEIS (i.e., full withdrawal) as the preferred alternative in the Final EIS. See

http://www.doi.gov/news/pressreleases/Secretary-Salazars-Remarks-from-Mather-Point-at-the-Rim-of-the-Grand-

Canyon.cfm(last checked May 29, 2012).

In October 2011, EPA published a notice of availability of the Final EIS

(FEIS). 76 Fed. Reg. 66,925-02 (Oct. 28, 2011). Among other things, the FEIS

responded to over a quarter million comments, FEIS at 5-6 to 5-320,3

3 The eight-chapter FEIS and its eleven appendices are available online at

and identified the

http://www.blm.gov/az/st/en/prog/mining/timeout/feis.html (last checked May 29, 2012). Substantial

portions of the FEIS are also available at Dkt. 18-1 (beginning at ECF page 8 of 368).

http://www.doi.gov/news/pressreleases/Secretary-Salazars-Remarks-from-Mather-Point-at-the-Rim-of-the-Grand-Canyon.cfmhttp://www.doi.gov/news/pressreleases/Secretary-Salazars-Remarks-from-Mather-Point-at-the-Rim-of-the-Grand-Canyon.cfmhttp://www.doi.gov/news/pressreleases/Secretary-Salazars-Remarks-from-Mather-Point-at-the-Rim-of-the-Grand-Canyon.cfmhttp://www.blm.gov/az/st/en/prog/mining/timeout/feis.htmlhttp://www.blm.gov/az/st/en/prog/mining/timeout/feis.htmlhttp://www.blm.gov/az/st/en/prog/mining/timeout/feis.htmlhttp://www.doi.gov/news/pressreleases/Secretary-Salazars-Remarks-from-Mather-Point-at-the-Rim-of-the-Grand-Canyon.cfmhttp://www.doi.gov/news/pressreleases/Secretary-Salazars-Remarks-from-Mather-Point-at-the-Rim-of-the-Grand-Canyon.cfm


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proposed withdrawal as the preferred alternative. Id. at 2-30; see also 40 C.F.R

1502.14(e) (requiring agencies to identify preferred alternative in a final EIS)

Natural Res. Def. Council, Inc. v. Hodel, 819 F.2d 927, 929-30 (9th Cir. 1987). On

January 9, 2012, the Secretary selected the preferred alternative, and signed the ROD

and a Public Land Order implementing it. Compl. 53; 77Fed. Reg. 2563-01 (Jan. 18

2012). The withdrawal does not eliminate the agencies authority to acknowledge

notices or to approve mining plans of operation under 43 C.F.R. subpart 3809 (BLM)

and 36 C.F.R. Part 228, Subpart A (National Forest Service), but so long as the lands

remain withdrawn, the agencies would conduct mineral examinations before processing

any such requests, in order to verify claim validity. Ex. 2, 6, 7; Ex. 3, 5, 6

Plaintiff commenced this litigation on March 6, 2012. Dkt. 1. As noted, the complain

identifies no NWMA member who has ever sought surface-use authorization.

STANDARD OF REVIEW

Jurisdiction is a threshold issue that must be addressed before considering the

merits of a case. Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94-96 (1998)

McCarthy W. Constructors, Inc. v. Phoenix Resort Corp., 951 F.2d 1137, 1140 (9th Cir

1991). The burden of proving subject matter jurisdiction rests with plaintiff, the party

invoking the federal courts jurisdiction. Thompson v. McCombe, 99 F.3d 352, 353

(9th Cir. 1996). Federal courts are courts of limited jurisdiction, and are presumed to

lack jurisdiction unless a plaintiff establishes its existence. Kokkonen v. Guardian Life

Ins. Co. of Am., 511 U.S. 375, 377 (1994). The plaintiff must allege in his pleading



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the facts essential to show jurisdiction. McNutt v. Gen. Motors Acceptance Corp., 298

U.S. 178, 189 (1936); see also Legal Aid Soc. of Alameda Cnty. v. Brennan, 608 F.2d

1319, 1333 n.26 (9th Cir. 1979) (To invoke federal jurisdiction, plaintiffs must allege

facts adequate to confer standing) (citations omitted). If the Court finds it lacks

subject matter jurisdiction, it must dismiss the action. Fed. R. Civ. P. 12(h)(3).

Defects in subject matter jurisdiction may be raised at any time, by the parties

or by the court on its own motion, and may never be waived. Cripps v. Life Ins. Co. of

N. Am., 980 F.2d 1261, 1264 (9th Cir. 1992) (citation omitted). Pursuant to Rule

12(b)(1), a party may move to dismiss a claim based on lack of subject-matter

jurisdiction. Fed. R. Civ. P. 12(b)(1). On such a motion, a party may attach materials

outside the pleadings to prove jurisdictional matters. See, e.g., McCarthy v. United

States, 850 F.2d 558, 560 (9th Cir. 1988) (when considering a motion to dismiss . .

[the] court is not restricted to the face of the pleadings, but may review any evidence . .

. to resolve factual disputes concerning the existence of jurisdiction.). Consideration

of such evidence does not convert the motion to one for summary judgment. Biotics

Research Corp. v. Heckler, 710 F.2d 1375, 1379 (9th Cir. 1983).

ARGUMENT

Federal courts are presumed to lack jurisdiction unless the plaintiff establishes its

existence, Kokkonen, 511 U.S. at 377, which plaintiff must do affirmatively and

clearly. FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 231 (1990). This includes

demonstrating Article III and prudential standing,Natl Credit Union Administration v

First National Bank & Trust Co., 522 U.S. 479, 488 (1998), as well as ripeness. Warth



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v. Seldin, 422 U.S. 490, 516 (1975) (affirming dismissal of organizations complaint

that failed to show injury to a member of sufficient immediacy and ripeness . . .)

Here, Plaintiff has not satisfied these requirements as to any of its claims. Accordingly

the Complaint should be dismissed.

I.

Plaintiffs Claims Fail to Establish an Article III Case or Controversy.

A.

By failing to identify member-held mining claims, Plaintiff has not

alleged facts essential to show standing as to any count.

In order to establish Article III standing, a plaintiff must show that: (1) he has

suffered an injury-in-fact to a legally protected interest that is both concrete and

particularized and actual or imminent, as opposed to conjectural or hypothetical;

(2) there is a causal connection between the injury and the conduct complained of;

and (3) it is likely not merely speculative that [his] injury will be redressed by

a favorable decision. Defenders of Wildlife, 504 U.S. at 560-61 (citations omitted)

An association has standing to bring suit on behalf of its members when they would

otherwise have standing to sue in their own right, when the interests at stake are

germane to the organizations purpose, and when neither the claim asserted nor the

relief requested requires the participation of individual members in the lawsuit. Hunt v

Wash. State Apple Advertising Comm'n, 432 U.S. 333, 343 (1977). To seek injunctive

relief, a party must establish a present injury or an actual and imminent not

conjectural threat of future injury. Summers v. Earth Island Inst.,555 U.S. 488

493 (2009). Such injury must be present at the commencement of the litigation.

Davis v. Fed. Election Commn, 554 U.S. 724, 732 (2008) (citation omitted).



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One important reason to require a showing of imminent and concrete injury is

that it provides the essential dimension of [factual] specificity to a case. Schlesinger

v. Reservists Comm. to Stop the War, 418 U.S. 208, 221 (1974). In addition, it assures

that legal questions will be resolved, not in the rarified atmosphere of a debating

society, but in a concrete factual context conducive to a realistic appreciation of the

consequences of judicial action, Valley Forge Christian Coll. v. Ams. United for

Separation of Church and State, Inc., 454 U.S. 464, 472 (1982)).

The complaint in this case does not achieve these purposes. Construing i

generously in Plaintiffs favor, it implies the protected legal interests of unspecified

NWMA members will be harmed in two ways. First, the decision will substantially

hinder continued mineral exploration and development by preventing location of new

claims and slowing or preventing development of valid existing rights, Compl.

58(c); and second, but for the withdrawal, NWMAs members would seek to locate

additional claims. Id. 8. Notably, Plaintiff fails to assert, in any affirmative manner

that the impediments they fear would harm the legally protected interests of a NWMA

member. Even if the complaint clearly and affirmatively stated that members would

be harmed by the impediments Plaintiff predicts, this is still inadequate, because

Plaintiff must specifically identify at least one member so affected. Summers, 555 U.S

at 498 (plaintiff-organizations must make specific allegations establishing that at least

one identified member had suffered or would suffer harm); W. Watersheds Project v

Kraayenbrink, 620 F.3d 1187, 1197 (9th Cir. 2010) (same); see also Chamber of

Commerce v. EPA, 642 F.3d 192, 199 (D.C. Cir. 2011) (it is not enough to aver that



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unidentified members have been injured). The complaint therefore does not satisfy the

first prong of the standing inquiry. It also does not satisfy Plaintiffs obligation to

allege the facts essential to show jurisdiction. McNutt, 298 U.S. at 189; Legal Aid

Soc. of Alameda Cnty,608 F.2d at 1333 n.26.4

Further, should the Plaintiff amend its complaint to specifically identify member

mining claimants, this too would be inadequate to confer standing. No decision, statute

or regulation prevents Plaintiffs members from pursuing the administrative avenues

they could have pursued before withdrawal. Such members are free to follow the

appropriate agencys requirements for obtaining surface-use authorization. The

complaint does not allege that any member has done so and, consequently, Plaintiff

fails to demonstrate the imminent injury Article III requires.

The imminence requirement is a safeguard that ensures the existence of a case or

controversy. If a member were to submit a proposed plan or notice, the appropriate

agency would conduct a validity determination. SeeEx. 1 at 6. But even if a validity

determination were, in a given case, to cause the predicted delay, Plaintiff has not

identified a single member who has sought surface-use authorization, and thus has not

identified any member who will suffer the injury alleged.

4 Despite the complaints numerous NEPA claims, Plaintiff also does not assert injury

to any aesthetic, recreational or environmental interests. Rather, Plaintiff identifiesonly interests of an economic nature, specifically, costly delay. Although Plaintiff

also asserts that the withdrawal prevents the development of valid existing rights,

Compl. 58(c), this reasoning is circular and plainly in error. The withdrawal, by its

own terms, is made subject to valid existing rights, Ex. 1 at 2, as FLPMA itself requires

See43 U.S.C. 1701 Note (h). Consequently, the withdrawal cannot prevent

development of such rights, nor does it purport to, and thus the allegation is inadequate

to support Article III standing.



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In sum, Plaintiff identifies no member who holds a mining claim or who has

chosen to engage in these administrative processes, yet it asks the Court to set aside the

withdrawal based on the delay caused by such processes. The Court should not do so

An injury is not imminent if it is based on speculati[on] that [government] officials

will take harmful actions, because such conjecture gives no assurance that the

asserted injury is . . . certainly impending. DaimlerChrslyer Corp. v. Cuno, 547 U.S

332, 344-45 (2006). At present, Plaintiff has not alleged, and cannot allege except by

conjecture, facts sufficient to demonstrate injury to a member that is certainly

impending. Defenders of Wildlife, 504 U.S. at 564 n.2 (citation omitted). For these

reasons, Plaintiff lacks Article III standing and the Complaint should be dismissed.

B.

Plaintiff is not harmed by the unexercised legislative veto provision and

thus fails to establish Article III standing as to its Seventh Claim.

The seventh claim for relief may also be dismissed on Article III groundsfor the

additional reason that Plaintiff is not harmed by the unexercised legislative veto

provision which it claims is unconstitutional. The seventh claim contends the

withdrawal is unlawful because the entirety of subsection 204(c) of FLPMA is

unconstitutional. Compl. 133 (asserting violation of Article Is Presentment Clause)

141 (asserting that the veto provision is not severable and therefore all of section 204(c)

and not just section 204(c)(1) is unconstitutional).

Plaintiff citesImmigration and Naturalization Service v. Chadha, 462 U.S. 919

(1983), in arguing that action by Congress of a legislative character, that is, action that

alter[s] the legal rights, duties and relations of persons, is subject to the Presentment



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Clause. Compl. 130, 131 (citing Chadha, 462 U.S. at 952, 954). However, the

unexercised veto provision here has had no effect on legal rights, duties, and relations.

In Chadha, plaintiff challenged a provision in section 244 of the Immigration

and Nationality Act, 8 U.S.C. 1254(c)(2), that permitted either House of Congress to

veto a decision of the Attorney General (or his delegee) suspendingdeportation of an

alien in certain circumstances. Chadha, 462 U.S. at 958-59. The court found the

provision unconstitutional for violating the Bicameralism and Presentment Clauses of

Article I, and severed it from the remainder of section 244, which survived. Thus, the

suspension became effective again, and Chadha was allowed to remain in the United

States. If the veto provision had been upheld, he would have been subject to immediate

deportation.

Importantly, the legislative veto provision in Chadha was actually exercised

resulting in direct and substantial harm to the plaintiff. By contrast, the veto provision

here was not exercised. Thus, Plaintiff challenges it only in the abstract. SeeUnited

States v. City of Yonkers, 592 F. Supp. 570, 576 (S.D.N.Y. 1984) (defendants lack

standing to complain of the mere presence in the Act of a legislative veto provision

which has not been exercised to their detriment). In fact, if Congress had exercised the

provision, it would have if anything advanced Plaintiffs objectives in this litigation.5

5 We note that the court inMueller Optical Co. v. EEOC, 743 F.2d 380 (6th Cir. 1984)

rejected a contention that an unexercised legislative veto precluded standing, but the

case is factually distinct. In Mueller, plaintiff had been served with subpoenas

requiring representatives to appear before an agency and produce documents. Neither

the association nor its members are under a comparable compulsion here. To the

contrary, neither has sought to engage at all in the available administrative processes.



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Notably, the Chadha court rejected a standing challenge, concluding that

plaintiff had demonstrated injury in fact and a substantial likelihood that the judicial

relief requested will prevent or redress the claimed injury. Id. at 936 (quoting Duke

Power Co. v. Carolina Envtl. Study Grp., 438 U.S. 59, 79 (1978)). If the veto

provision violates the Constitution, and is severable, the Supreme Court explained

the deportation order [would] be cancelled. Id. The Ninth Circuits earlier decision

in the case, affirmed by the Supreme Court, reached a similar conclusion: that

Chadhas claim was specific and concrete. Chadha v. INS, 634 F.2d 408, 418 (9th

Cir. 1980). As the Ninth Circuit stated, Chadhas injury

stems directly from the operation of the statute he challenges . . . .

[H]e presents a specific instance of injury flowing directly from the

statute's operation. In a separation of powers claim, this type of

concrete injury is sufficient for standing purposes. [Buckley v.

Valeo, 424 U.S. 1, 12 n.10 (1976) (per curiam)].

Id. Plaintiff cannot point to a similar injury here because the veto provision it

challenges was never exercised. The purported injury cannot possibly have resulted

from the statutes operation. Moreover, the veto provision here purports to terminatean

existing withdrawal, not to effectuate it. Plaintiff is no more particularly harmed by the

provision than any other citizen who objects to the mere existence of a legislative veto.

Finally, Plaintiff unfairly dismisses FLPMAs severability provision by arguing

that Congress would not have granted the Secretary authority to make withdrawals of

5,000 acres or greater if it could not also retain a legislative veto. The severability

provision creates a presumption that Congress intended unaffected provisions to survive



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a partial judicial invalidation. Because Plaintiff has not rebutted the presumption, the

Court should

refrain from invalidating more of [a] statute than is necessary . . . . [W]henever

an act of Congress contains unobjectionable provisions separable from thosefound to be unconstitutional, it is the duty of th[e] court to so declare, and to

maintain the act in so far as it is valid.

Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 684 (1987) (quoting Regan v. Time, Inc.

468 U.S. 641, 652 (1984) and El Paso & Ne. Ry. Co. v. Gutierrez, 215 U.S. 87, 96

(1909)). Thus, [u]nless it is evident that the Legislature would not have enacted

those provisions which are within its power, independently of that which is not, the

invalid part may be dropped if what is left is fully operative as a law. Id. (quoting

Buckley v. Valeo, 424 U.S. 1, 108 (1976)) (emphasis added); Chadha, 462 U.S. at 931-

32;Minority Television Project v. Fed. Commc'ns Commn, 767 F.3d 869, 882 (9th Cir

2012).

For these additional reasons, the Seventh Claim should be dismissed.

C.

Plaintiff fails to demonstrate that its claims are ripe.

The ripeness doctrine prevent[s] the courts, through avoidance of premature

adjudication, from entangling themselves in abstract disagreements over administrative

policies, and . . . protect[s] the agencies from judicial interference until an

administrative decision has been formalized and its effects felt in a concrete way by the

challenging parties.Abbott Labs. v. Gardner, 387 U.S. 136, 148-49 (1967). A case is

not ripe for judicial review . . . until the scope of the controversy has been reduced to

more manageable proportions, and its factual components fleshed out, by some concrete



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action applying the regulation to the claimants situation in a fashion that harms or

threatens to harm him. Lujan v. Natl Wildlife Fedn, 497 U.S. 871, 891 (1990).

In deciding whether an issue is ripe, a court must evaluate both the fitness of

the issues for judicial decision and the hardship to the parties of withholding court

consideration. Abbott Labs., 387 U.S. at 149; see alsoOhio Forestry Assn v. Sierra

Club, 523 U.S. 726, 733 (1998). Here, the first prong of the Abbott test strongly

counsels that the Court decline involvement. As noted, NWMA makes no allegation

that a member has sought surface-use authorization, nor for that matter has it even

identified any member mining claimants. If a NWMA member were to seek surface-

use authorization and trigger a mineral examination, then the appropriate agency would

act and the effects of the decision might be felt in a concrete way.Abbott Labs., 387

U.S. at 148. At this juncture, meaningful judicial review is possible.

For all these reasons, the Court should dismiss the Complaint because it fails to

establish a justiciable case or controversy under Article III.

II. Plaintiffs NEPA Claims Fail to Demonstrate Prudential Standing.

Assuming Plaintiff could establish Article III standing and ripeness, it

nonetheless lacks prudential standing to bring NEPA claims challenging the withdrawal

decision because its alleged interests fall outside the environmental zone of interests

protected by NEPA. Nev. Land Action Assn v. U.S. Forest Serv., 8 F.3d 713, 716 (9th

Cir. 1993); see also Ashley Creek Phosphate Co. v. Norton, 420 F.3d 934, 939-40 (9th

Cir. 2005). As explained above, Plaintiffs allegations of injury are exceedingly vague

but even if those allegations are construed generously, it is evident that what Plaintiff



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complains of is the economic consequences of the withdrawal on its members the

costlyand unnecessary delays in developing valid existing mining rights, Compl. 48

(emphasis added), id. 58, and the inability to locate additional mining claims, id. 8.

Such economic interests are outside the zone of interests protected by NEPA.

It is well-established that [t]he purpose of NEPA is to protect the environment, not the

economic interests of those adversely affected by agency decisions. Nev. Land Action

8 F.3d at 716. Thus, a plaintiff who asserts purely economic injuries does not have

standing to challenge an agency action under NEPA. Ashley Creek, 420 F.3d at 940

(quotingNev. Land Action, 8 F.3d at 716); seealsoRanchers Cattleman v. U.S. Dept

of Agric., 415 F.3d 1078, 1103 (9th Cir. 2005) (plaintiff must allege injury to the

environment; economic injury will not suffice.); W. Radio Servs. Co. v. Espy, 79 F.3d

896, 903 (9th Cir. 1996); Port of Astoria v. Hodel, 595 F.2d 467, 475 (9th Cir. 1979)

(holding that pecuniary losses and frustrated financial expectations that are not

coupled with environmental considerations are outside of NEPAs zone of interests

and are not sufficient to establish standing).

Plaintiff has not even attempted to link[] [its members] pecuniary interest in

mineral resource development to the physical environment or to an environmental

interest contemplated by NEPA. Am. Independence Mines & Minerals Co. v. U.S

Dept of Agric., 733 F. Supp. 2d 1241, 1262 (D. Idaho 2010) (holding that mining

companys interests were purely economic and outside the NEPA zone of interests).

Plaintiff also has not demonstrated injury to its members aesthetic, recreational, or

environmental interests, and thus allowing Plaintiff to assert such claims is more likely



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to frustrate than to further [NEPAs] objectives. Clarke v. Sec. Indus. Assn, 479 U.S

388, 397 n.12 (1987). It would be difficult for Plaintiff to make such allegations

because the withdrawal limits, rather than increases, mining development thereby

enhancing environmental interests. See Idaho Farm Bureau Fedn v. Babbitt, 900 F

Supp. 1349, 1356 (D. Idaho 1995) ([agricultural organization] . . . cannot possibly

establish that the area of the river and the water in which they recreate or aesthetically

enjoyed will be destroyed or harmed by the listing of the snails [under the Endangered

Species Act].). At their core, Plaintiffs NEPA claims allege that BLMs

environmental analysis was inadequate because it failed to consider information

showing the feasibility of alternatives that allowed for more mining, see Compl. 80-

84, 97-101, 110, 112, 118, 123, and because it incorrectly assessed the economic

impact of a withdrawal, id. 91. Given the nature of these allegations, it is clear

NEPAs environmental objectives would not be furthered by allowing Plaintiff to

pursue its NEPA claims. See Wyoming v. U.S. Dept of the Interior, 674 F.3d 1220

1237 (10th Cir. 2012) (holding that State and county, which alleged injury because the

National Park Service could have promulgated a rule allowing more snowmobiles into

Grand Teton without adverse environmental effects, lacked standing because NEPA

does not protect against such an injury) (emphasis added).

Plaintiffs vague assertion that one of NWMAs purposes as a trade organization

is to promote economic opportunity and environmentally responsible mining and that

its principles include the protection of human health, the natural environment, and a

prosperous economy, Compl. 5-6, do not bring the claims within the zone of



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interests protected by NEPA. See Am. Independence Mines, 733 F. Supp. 2d at 1251

(finding plaintiffs who asserted intention to mine in a fashion that minimizes and/or

mitigates and remediates environmental impact lacked standing to bring NEPA

claims). Plaintiff may not use ostensibly environmental concerns to mask its purely

economic interests. City of Williams v. Dombeck, No. 00CV66, 2000 WL 33675559, at

*3 (D.D.C. Aug. 17, 2000) (rejecting argument that plan to develop a model

environmentally-sustainable, gateway community on outskirts of Grand Canyon

National Park creates a cognizable environmental interest under NEPA). It is clear that

NWMAs ultimate interest is in the economic benefits derived from extracting

minerals from the land; this interest is not systematically aligned with NEPAs

purpose, to prevent or eliminate damage to the environment. Cal. Forestry Assn v

Thomas, 936 F. Supp. 13, 22 (D.D.C. 1996) (rejecting timber companies purported

environmental interest in a healthy forest because their ultimate interest is to

maximize the number of trees harvested) (quoting 42 U.S.C. 4321). Because its

organizational interests are at their core economic, NWMA lacks prudential standing to

bring NEPA claims on behalf of its members. See Ranchers Cattlemen, 415 F.3d at

1104 (association representing cattle producers lacked associational standing to bring

NEPA claims because there was no connection between the associations purposes and

environmental interests); see also Friends of the Earth, Inc. v. Laidlaw Envtl. Servs.,

528 U.S. 167, 181 (2000) (an organization can only bring an action on behalf of its

members if the interests at stake are germane to the organization's purpose).



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In sum, the Court should dismiss the third through sixth claims and those

portions of the second claim that are based on alleged NEPA violations because

Plaintiff has failed to establish prudential standing.

CONCLUSION

For the foregoing reasons, Defendants respectfully request that the Court dismiss

the complaint for lack of a justiciable case or controversy and that it also dismiss all

NEPA claims for lack of prudential standing.

Dated: June 1, 2012

Respectfully Submitted,

IGNACIA S.MORENO,

Assistant Attorney General

Environment and Natural Resources Division

/s/ John S. Most

JOHN S.MOST,Trial Attorney

Virginia Bar, No. 27176

DOMINIKA TARCZYNSKA,Trial AttorneyNew York Bar, No. 4431573

Natural Resources Section

P.O. Box 7611

Washington, D.C. 20044-7611

(202) 305-0447(Tarczynska)

202-616-3353 (Most)

202-305-0506 (fax)

[email protected]

[email protected]

Counsel for Defendants

mailto:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]


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CERTIFICATE OF SERVICE

I hereby certify that I have caused the foregoing to be served upon counsel of

record through the Courts electronic service system (ECF/CM).

Dated: June 1, 2012

/s/ John S. Most

Counsel for Federal Defendants


Feds Motion to Dismiss

Documents

Transcript of Feds Motion to Dismiss