United States District Court for the District of Columbia
November 10, 2004.
ROCK CREEK PACK STATION, INC., et. al. Plaintiffs,
JACK BLACKWELL, Regional Forester, Region 5 of the United States Forest Service; et. al. Defendants.
The opinion of the court was delivered by: ROYCE LAMBERTH, District Judge
This matter comes before the Court on the defendants' motion to
dismiss and motion for summary judgment, and the plaintiffs'
cross-motion for summary judgment. The defendants' move to
dismiss pursuant to Rule 12 of the Federal Rules of Civil
Procedure. The defendants and plaintiffs both move for summary
judgment pursuant to Rule 56 of the Federal Rules of Civil
Procedure on the ground that no genuine issue of material fact
exists and therefore they, respectively, are entitled to judgment
as a matter of law. The defendants submitted a motion and
memorandum in support of their motion, a memorandum in opposition
to the plaintiffs' summary judgment motion, and a reply to the
plaintiffs' opposition to their motion. The plaintiffs submitted
a motion and memorandum in support of their summary judgment
motion, a memorandum in opposition to the defendants' motion, and
a reply to the defendants' opposition to their summary judgment
motion. Upon consideration of the parties' filings, the
applicable law, the Federal Rules of Civil Procedure and the
facts of this case, the Court previously found that the
defendants' motion to dismiss and for summary judgment should be
GRANTED because the plaintiffs lack standing. Rock Creek Pack Station,
Inc., et. al. v. Blackwell, et. al., No. 03-330, consolidated
with No. 03-353 (D.D.C. Sept. 30, 2004) (order granting
defendants' motion to dismiss and for summary judgment). Because
the plaintiffs lacked standing, the remaining motions were
rendered moot; the Court therefore does not address the issues in
the remaining motions of the parties. This memorandum opinion
explains the rationale behind the Court's Order.
A. The Parties
The plaintiffs are Rock Creek Pack Station, Inc. and High
Sierra Packers' Association Eastern Unit. Plaintiffs are
commonly referred to as pack stations. Specifically, Rock Creek
is a commercial enterprise that provides recreational pack
services to persons visiting the wilderness areas in question.
(Rock Creek Compl. ¶ 13). High Sierra is an association of
commercial entities that provide horses, mules and burros to the
public for trips into the wilderness areas in question. (High
Sierra Compl. ¶ 5).*fn1
The defendants are various Government officials and entities.
Specifically, the named defendants are Jack Blackwell, Regional
Forester, Region 5 of the United States Forest Service; Jeffrey
Bailey, Supervisor, Inyo National Forest; James Boynton,
Supervisor, Sierra National Forest; Dale Bosworth, Chief, United
States Forest Service; the United States Forest Service; Ann
Veneman, Secretary of the United States Department of
Agriculture; and the United States Department of Agriculture
("defendants"). B. The Wilderness Areas in Question
The three wilderness areas in question are located in the
central and southern Sierra Nevada mountains in eastern
California. (Administrative R. Doc. No. 1 ("ARD 1"), Wilderness
Management Plan, at 1, Apr. 2001). The John Muir Wilderness Area
was created in 1964 by the original Wilderness Act. (Id.). In
1984 it was enlarged by 81,000 acres and currently consists of
approximately 580,323 acres. (Id.). The Ansel Adams Wilderness
Area, formerly known as the Minarets Wilderness Area, was created
in 1964. (Id.). It was enlarged by 119,000 acres in 1984 by the
California Wilderness Act and currently consists of approximately
230,000 acres. (Id.). The California Wilderness Act established
the Dinkey Lakes Wilderness Area as well. (Id.). This 30,000
acre area is located entirely within the Sierra National Forest.
(ARD 1 at 2).
C. Wilderness Area Management Plans
The wilderness areas in question are governed by a Land and
Resource Management Plan ("LRMP"). A LRMP is a programmatic level
forest-wide plan setting overall management direction, standards,
and guidelines for a National Forest. (Administrative R. Doc. 18,
Revised Draft Environmental Impact Statement ("EIS"), Glossary at
3, Apr. 2000). A National Forest may contain multiple wilderness
areas, all of which would be subject to the LRMP established for
the National Forest of which they are a part.
The John Muir, Ansel Adams, and Dinkey Lakes Wilderness Areas
fall under the jurisdiction of the Sierra LRMP (1991) and the
Inyo LRMP (1988). (Administrative R. Doc. 3 ("ARD 3"), Final EIS,
Chapter 1 at 2, Mar. 2001). Each LRMP currently contains general
management direction applicable to all respective wilderness
areas within each forest. (Id.). This direction includes
multiple use goals and objectives, forest-wide standards and
guidelines, management area prescriptions, and monitoring and evaluation
requirements. (Id.). In 1979, the Forest Service adopted
Wilderness Management Plans for the John Muir and Ansel Adams
Wilderness Areas. (ARD 1 at 5).
At issue before the Court is the defendant's adoption of a new
Wilderness Management Plan for the John Muir, Ansel Adams, and
Dinkey Lakes Wilderness Areas in April 2001. The 2001 Wilderness
Management Plan amends the LRMPs on both the Sierra and Inyo
National Forests to provide more specific, updated and consistent
direction for management of the John Muir, Ansel Adams, and
Dinkey Lakes Wilderness Areas. (Id.). It supercedes the 1979
wilderness plans for the John Muir and Ansel Adams Wilderness
Areas. (Id.) An explanation of the process leading up to the
adoption of the 2001 Wilderness Management Plan follows.
The Inyo and Sierra Forest LRMPs incorporated the John Muir
(1979) and Minarets Wilderness Management Plans (1978). (ARD 3,
Chapter 1 at 2). The Forest Service proposed to amend the plans
to provide for new management direction. In 1997, the Forest
Service released an EIS covering the John Muir, Ansel Adams, and
Dinkey Lakes Wilderness Areas to analyze various alternatives for
managing these wilderness areas. (ARD 3, Summ. at 1). After
almost one year of public review and after receiving over 2,000
comment letters, the Forest Service issued a revised EIS.
(Id.). The Forest Service released the revised draft EIS in
August of 2000, and received about 1,700 comment letters.
(Id.). After reviewing the letters and completing additional
field analysis, the Forest Service issued the final EIS in March
of 2001. (Id.). In April 2001, the Forest Service issued its
Record of Decision, (Administrative R. Doc. No. 2 ("ARD 2"),
Final EIS, R. of Decision, Apr. 2001), which established the
joint 2001 Wilderness Management Plan for the John Muir, Ansel
Adams, and Dinkey Lakes Wilderness Areas and includes non-significant amendments to the LRMPs for the Sierra
and Inyo National Forests. (ARD 2, R. of Decision at 1).
The Forest Service analyzed five management alternatives and
chose an alternative that combines existing management direction
with strategies from two alternatives. (ARD 3, Summ. at 5). The
selected alternative created three categories of management in
the wilderness areas. (Id.). Categories 1 and 2 consist of
large areas managed for low and moderate use levels, while
Category 3 consists of small, confined areas of more concentrated
visitor use that coincide with historical areas of high use.
The Wilderness Management Plan maintains the level of
commercial use at the levels that existed before the plan, but
reduces uses in certain areas where limiting factors indicate
that such action is necessary to alleviate impacts. (Id.). The
Wilderness Management Plan also attempts to achieve equitable use
between commercial and non-commercial users by proposing changes
to commercial operations on gaining access to the wilderness.
The Forest Service explained the reasoning for choosing the
preferred alternative in the Record of Decision, which was issued
in April 2001. (ARD 2). Following the Forest Service's adoption
of the Wilderness Management Plan, the plaintiffs each filed
timely administrative appeals pursuant to 36 C.F.R. Part 217
(2000). (Administrative R. Doc. 6, Rock Creek Notice of Appeal;
Administrative R. Doc. 8, High Sierra Notice of Appeal;
Administrative R. Doc. 10, Backcountry Notice of Appeal). The
Deputy Regional Forester affirmed the decision made in each
appeal. (Administrative R. Docs. 7,9,11, Deputy Regional Forester
Decisions). The plaintiffs then filed suit in federal district
court. D. The Suit Before This Court
The plaintiffs assert jurisdiction under numerous federal
statutes and make numerous claims against the defendants. In
their complaints, the plaintiffs allege that the defendants' new
Wilderness Management Plan for the John Muir and Ansel Adams
Wilderness Areas violates the National Environmental Policy Act
("NEPA"), 42 U.S.C. §§ 4321-4370d, by failing to prepare an EIS
that carefully analyzes environmental aspects of proposed
alternatives. (Rock Creek Compl. ¶¶ 53-58; see generally High
Sierra Compl. p. 20). The plaintiffs further allege that the
adoption of the Wilderness Management Plan pursuant to its final
EIS violates the Wilderness Act, 16 U.S.C. §§ 1131-1136, which
created the wilderness areas at issue. (Rock Creek Compl. ¶¶
59-61; See generally High Sierra Compl. p. 20). The
plaintiffs also assert this Court has jurisdiction under the
Administrative Procedures Act ("APA"), 5 U.S.C. § 701, et. seq.
(Rock Creek Compl. ¶ 10; High Sierra Compl. ¶ 2). Rock Creek
asserts that jurisdiction is also conferred under and the
National Forest Management Act ("NFMA"), 16 U.S.C. § 1600, et.
seq. (Rock Creek Compl. ¶ 10).*fn2
E. Injunctions Affecting Wilderness Areas at Issue
Management of two of the three wilderness areas involved in
this case (John Muir and Ansel Adams) is further affected by an
injunction issued by the United States District Court for the
Northern District of California. High Sierra Hikers Ass'n v.
Powell, No. C-00-01239-EDL, 2002 U.S. Dist. LEXIS 18087 (N.D.
Cal. Nov. 1, 2001), aff'd, High Sierra Hikers Ass'n v.
Blackwell, 381 F.3d 886 (9th Cir. 2004). The injunction requires
the Forest Service to undertake additional NEPA compliance in connection with the issuance of
special use permits to packers.
In April 2000 the High Sierra Hikers Association and other
non-profit organizations filed suit against defendants under
NEPA, NFMA, the Wilderness Act, and the APA. High Sierra Hikers
Assoc'n v. Powell, 150 F. Supp. 2d 1023, 1028-29 (N.D. Cal.
2001). The suit was filed about one year before the defendants
issued their Record of Decision. On July 24, 2000 the District
Court permitted Rock Creek and High Sierra to intervene as to the
relief phase of the case, but denied their motions with respect
to the merits phase. Id. at 1029 n. 1. The Court denied the
non-profit organizations' claims under NFMA and the Wilderness
Act, finding them moot. Id. at 1046. The Court granted the
non-profit organizations' motion with respect to the claims under
NEPA, finding the Forest Service violated NEPA by failing to
assess the environmental impact of issuing multiple-year special
use permits to commercial operators in the wilderness. Id. at
1043, 1046. The plaintiffs moved for injunctive relief on the
NEPA claim, which was granted in January 2002. High Sierra
Hikers Assoc'n v. Powell, No. C-00-01239-EDL, 2002 U.S. Dist.
LEXIS 2871 (N.D. Cal. Jan. 9, 2002). The Court found plaintiffs
had shown evidence of environmental degradation caused by stock
use. Id. at *12. The Court held that the balance of harms and
the public interest favored the issuance of an injunction to
prevent further harm to the environment. Id. at *19.
Under the January 2002 injunction, which remains in effect, the
Court required the Forest Service to complete a cumulative
impacts analysis of pack station operation by no later than
December 31, 2005. Id. at *24-25. The Court further ordered the
Forest Service to complete site specific environmental analysis
under NEPA for each permittee by no later than December 31, 2006.
Id. at *25. The injunction also reduced service days allocated in the
Wilderness Management Plan by 20%, allocating a certain amount to
the east and west sides of the Sierra Nevada Mountains, and
requiring the Forest Service to allocate the service days among
the various pack stations in proportion to their use of service
days as demonstrated in certain identified portions of the final
EIS. Id. at *25-26.
Until completion of the NEPA process, the District Court also
enjoined the use of the pool of 3,000 extra service days that had
been established in the Wilderness Management Plan. Powell,
2002 U.S. Dist. LEXIS 2871, at *26. The Court further limited the
maximum group size for overnight trips supported by commercial
packstock at 12 people and 20 stock. Id. Where the Wilderness
Management Plan proposed to phase in trailhead quotas over a
five-year period, the Court required the trailhead quotas to be
phased in over a two-year period. Id. at *27. For the first
year, beginning in 2002, the trailhead quotas were not to exceed
130% of the quotas listed in the Wilderness Management Plan.
Id. In 2003, the quotas were not to exceed 115% of the quotas
in the plan, and in 2004 and thereafter the quotas were not to
exceed 100% of the quotas in the plan. Id.
The District Court also ordered the Forest Service to use
interim criteria to approve or disapprove non-system trail use by
commercial operators, and the Court required all Forest Orders
listed in the Record of Decision, such as orders restricting
fires at certain elevations or closing certain meadows to
grazing, to be implemented by June 1, 2002. Id. In the period
before the Forest Service completed the required NEPA analyses
and issues special use permits, commercial packstock operations
cannot occur except under the terms and conditions of the Court's
order, or under any Forest Service plans, permits, or directives
that are consistent with the order. Powell, 2002 U.S. Dist. LEXIS 2871, at *27-28.
II. APPLICABLE LAW
NEPA has twin aims. Baltimore Gas & Elec. Co. v. NRDC,
462 U.S. 87, 97 (1983). First, it requires federal agencies to
examine environmental impacts of proposed federal actions. Id.
Second, it ensures that the agency will inform the public that it
has indeed considered environmental concerns in its decision
making process. Id.
Although those procedures are almost certain to affect an
agency's substantive decision, it is well settled that NEPA does
not require a particular agency to reach a particular result
based on the information it collects and analyzes, but only
prescribes the necessary process. Robertson v. Methow Valley
Citizens Council, 490 U.S. 332, 350 (1989) (citation omitted).
NEPA provides a set of action-forcing procedures that require
that agencies take a hard look at environmental consequences and
that provide for broad dissemination of relevant environmental
NEPA requires agencies to prepare EISs on all proposals for
major federal actions that will significantly affect the quality
of the human environment. 42 U.S.C. § 4332(2)(C).
NFMA provides that the "Secretary of Agriculture shall develop,
maintain, and, as appropriate, revise land and resource
management plans for units of the National Forest System. . . ."
16 U.S.C. § 1604(a). Further, "[t]he Secretary shall provide for
public participation in the development, review, and revision of
land management plans. . . ." 16 U.S.C. § 1604(d). Such plans or
revisions are to be made available to the public at convenient
locations in the vicinity of the affected unit for a period of at least three months before
final adoption during which time the Secretary shall hold public
meetings. Id. In developing, maintaining, and revising plans
for units of the National Forest System, the Secretary shall
assure that such plans provide for multiple use and sustained
yield in accordance with the Multiple Use Sustained Yield Act of
1960. 16 U.S.C. § 1604(e).
C. The Wilderness Act
Congress established the wilderness preservation system in 1964
with the enactment of the Wilderness Act, 16 U.S.C. §§ 1131-1136.
The Wilderness Act provides Congress with the ability to
designate certain areas as "wilderness," and the United States
government to administer those lands for the use of and enjoyment
by the American people, and in a manner that leaves the lands
"unimpaired" for future use and enjoyment. 16 U.S.C. § 1131(a).
"Wilderness" is defined as "an area where the earth and its
community of life are umtrammeled by man, where man himself is a
visitor who does not remain. . . . [It is an area of] undeveloped
Federal land retaining its primeval character and influence,
without permanent improvements or human habitation, and which is
protected and managed as to preserve its natural
conditions. . . ." 16 U.S.C. § 1131(c). Any human impact is
to be "substantially unnoticeable". Id.
The purposes of the Wilderness Act are within and supplemental
to the purposes for which national forests are established and
administered. 16 U.S.C. § 1133(a). Except as otherwise provided
by statute, each agency administering any area designated as
wilderness shall be responsible for preserving the wilderness
character of the area, and shall administer the area for such
other purposes for which it may have been established in such
away also to preserve its wilderness character.
16 U.S.C. § 1133(b). Except as otherwise provided, wilderness areas must be devoted to the public purposes of recreational, scenic,
scientific, educational, conservation, and historic use. Id.
Except as specifically provided in the act, and subject to
existing private rights, commercial enterprises are prohibited in
the wilderness areas. 16 U.S.C. §§ 1133(c), 1133(d)(5). Section
1133(d)(5) states: "[c]ommercial services may be performed within
the wilderness areas . . . to the extent necessary for activities
which are proper for realizing the recreational or other
wilderness purposes of the areas."
A. Standard of Review
The plaintiffs filed this case pursuant to the APA.
5 U.S.C. § 701; (Rock Creek Compl. ¶ 10; High Sierra Compl. ¶ 2). The task
of a reviewing court, therefore, is to apply the APA standard of
review to the agency decision based on the record the agency
presents to the reviewing court. Florida Power & Light Co. v.
Lorion, 470 U.S. 729, 743-44 (1985) (citations omitted). The APA
standard of review requires a court to determine if agency action
is arbitrary, capricious, an abuse of discretion, without
observance of the procedure required by law, or otherwise not in
accordance with the law. 5 U.S.C. § 706. This standard is applied
to review compliance with NEPA to determine the adequacy of an
EIS. City of Olmsted Falls, Ohio v. Fed. Aviation Admin.,
292 F.3d 261, 269 (D.C. Cir. 2002). This "`standard of review is a
narrow one. The court is not empowered to substitute its judgment
for that of the agency.'" San Luis Obispo Mothers for Peace v.
United States Nuclear Regulatory Comm'n, 789 F.2d 26, 37 (D.C.
Cir. 1986) (quoting Citizens to Preserve Overton Park v. Volpe,
401 U.S. 402, 416 (1971)). When reviewing an EIS, it does not
matter whether a court agrees with the agency's conclusions.
City of Olmsted Falls, Ohio, 292 F.3d at 273. The EIS, rather,
acts only as a procedural safeguard. Id.
The scope of review is limited to the administrative record
that was before the agency at the time it made its decision.
Lorion, 470 U.S. at 743. The plaintiffs have the burden of
showing that the defendants acted in a manner contrary to the
APA. San Luis Obispo Mothers for Peace, 789 F.2d at 37.
B. Motion for Summary Judgment
Because the case at bar comes to the Court on cross-motions for
summary judgment, the Court will assess the record under the
standard set forth in Rule 56 of the Federal Rules of Civil
Procedure. Lujan v. Nat'l Wildlife Federation, 497 U.S. 871,
885 (1990). Each party argues that no genuine issue of material
fact exists, thus, summary judgment should be granted in their
respective favor. Pursuant to Federal Rule of Civil Procedure
56(c), summary judgment is appropriate when there is no genuine
issue as to any material fact. Celotex Corp. v. Catrett,
477 U.S. 317, 322-23 (1986). A genuine issue of material fact exists
if the evidence is such that a reasonable jury could return a
verdict for the non-moving party. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). Inferences drawn from the facts
must be viewed in the light most favorable to the party opposing
the motion. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157
(1970). Summary judgment may be granted if evidence favoring the
non-moving party is merely colorable or is not significantly
probative. Anderson, 477 U.S. at 249-50 (citations omitted).
Once the moving party files a proper summary judgment motion, "an
adverse party may not rest upon the mere allegations or denials
of the adverse party's pleading, but the adverse party's
response, by affidavits or as otherwise provided in this rule,
must set forth specific facts showing that there is a genuine issue for trial." FED. R. CIV. P. 56.
The plain language of Rule 56(c) mandates the entry of summary
judgment, after adequate time for discovery and upon motion,
against a party who fails to make a showing sufficient to
establish the existence of an element essential to that party's
case, and on which that party will bear the burden of proof at
trial. Celotex Corp., 477 U.S. 317, 322 (1986). If no such
showing is made, the moving party is entitled to a judgment as a
matter of law because the nonmoving party has failed to make a
sufficient showing on an essential element of its case with
respect to which it has the burden of proof. Id. at 323.
In order to invoke the jurisdiction of the federal courts, a
plaintiff must demonstrate that a case or controversy exists
between themselves and defendants within the meaning of Article
III of the United States Constitution. Warth v. Seldin,
422 U.S. 490, 498 (1975). A core component of the case or controversy
inquiry is the doctrine of standing. Allen v. Wright,
468 U.S. 737, 751 (1984). The question of "standing" determines whether a
litigant is entitled to have a court decide the merits of a
dispute or of particular issues. Id. To establish standing,
plaintiffs bear the burden of demonstrating that: (1) they
suffered an "injury in fact", which is an invasion of a legally
protected interest that is concrete and particularized and
"actual or imminent", not conjectural or hypothetical; and (2)
the there must be a causal connection between the injury and the
conduct complained of the injury has to be fairly traceable to
the challenged action of the defendant; and (3) it must be likely
that the injury will be redressed by a favorable decision. Lujan
v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). Since the plaintiffs have challenged the defendants' compliance
with NEPA under the APA, 5 U.S.C. § 551, the plaintiffs must also
demonstrate that the injuries they allegedly suffered fall within
the "zone of interests" that NEPA protects. Lujan,
497 U.S. at 883. Recreational use and aesthetic enjoyment are considered
among the sorts of interests NEPA was specifically designed to
protect. Id. at 886. An allegation of injury to monetary
interest alone may not bring a party within the zone of
environmental interests as contemplated by NEPA. Realty Income
Trust v. Eckerd, 564 F.2d 447, 452 (D.C. Cir. 1977). But a party
is not precluded from asserting cognizable injury to
environmental values because its "real" or "obvious" interest may
be viewed as monetary in nature. Id. (citation omitted). It is
established in this circuit that a party is not disqualified from
asserting a legal claim under NEPA because the impetus behind the
NEPA claim may be economic. Id. at 452-53.
A plaintiff may have standing to challenge the failure of an
agency to abide by procedural requirements only if the
requirements are designed to protect some threatened concrete
interest of the plaintiff. Florida Audubon Soc'y v. Bentsen,
94 F.3d 658, 664 (D.C. Cir. 1996). In that type of case, which
includes suits demanding preparation of an EIS, a plaintiff must
show the government action performed without the procedure in
question will cause a distinct risk to a particularized interest
of the plaintiff. Id. The mere violation of a procedural
requirement does not permit any person to sue the Government.
The Court first addresses the defendants' motion to dismiss and
for summary judgment. If the defendants are correct as to the
plaintiffs' lacking standing to bring their claim; the
defendants' motion to dismiss and for summary judgment will be
granted as a matter of law and discussion of plaintiffs'
cross-motion for summary judgment will be deemed moot. In their various pleadings the plaintiffs assert three types of
injuries. First, the plaintiffs cite injuries related to the
environment itself. (See generally Rock Creek Compl. ¶¶ 56, 61;
See High Sierra Compl. ¶¶ 13, 41, 43, 45-46). Second, the
plaintiffs allege they suffered economic injuries. (Pls.' Opp'n
to Defs.' Mot. to Dis. and for Summ. J. at 5; Pls.' Reply in
Supp. of Mot. for Summ. J. at 2). Finally, the plaintiffs allege
they suffered injuries related to their recreational use and
aesthetic enjoyment of the environment. (Pl.'s Opp'n to Def.'s
Mot. Dismiss and Mot. for Summ. J., Craig London Aff.). The Court
will review each of these three alleged injuries
1. Economic Injuries
The plaintiffs summarized their alleged economic injuries in
multiple filings. The plaintiffs alleged in their complaint and
their motion for summary judgment that the defendants' adoption
of the new Management Plan has substantially harmed them by
limiting their trail access, slashing their service days, and
banning their use of campfires in numerous areas of the
wilderness. (Pls.' Opp'n to Defs.' Mot. to Dis. and for Summ. J.
at 5; Pls.' Reply in Supp. of Mot. for Summ. J. at 2).
The plaintiffs and defendants each provided the Court with
persuasive arguments concerning standing in this regard. The
defendants correctly argued that an allegation of injury to
monetary interest alone may not bring a party within the zone of
environmental interests as contemplated by NEPA. Eckerd,
564 F.2d at 452. The plaintiffs correctly argued that a party is not
precluded from asserting cognizable injury to environmental
values because its "real" or "obvious" interest may be viewed as monetary in nature. Id.
(citation omitted).*fn4 In other words, it is established in
this circuit that a party is not disqualified from asserting a
legal claim under NEPA because the impetus behind the NEPA claim
may be economic. Id. at 452-53. Further, the plaintiffs are
correct that a court has granted standing when a party asserts
economic injury interrelated with environmental concerns.
Friends of the Boundary Waters Wilderness v. Dombeck,
164 F.3d 1115 (8th Cir. 1999).
The Court need not parse through the nuances of the standing
doctrine in this regard, however, because plaintiffs'
accompanying affidavit and declaration in response to the
defendants' motion for summary judgment neither alleges nor
establishes any economic injury to the plaintiffs. Since the
matter before the Court is at the summary judgment stage, the
plaintiffs' response to the defendants' motion for summary
judgment, must by affidavits or otherwise, set forth specific
facts showing that there is a genuine issue for trial. FED. R.
CIV. P. 56. The plaintiffs apparently attempt to jump this hurdle
in their reply to the defendants' motion for summary judgment
through an affidavit from Craig London, the current operator and
proprietor of Rock Creek. (Pls.' Opp'n to Defs.' Mot. to Dismiss
and for Summ. J. at ¶ 1).*fn5 In the seven paragraph
affidavit London does not assert Rock Creek has suffered any
specific economic injuries; nor does he tie any economic injuries
to any alleged environmental damage. In paragraph one London
states his family has operated Rock Creek since 1947 and that he
has assisted with daily activities at Rock Creek since 1959, when
he was five years old. (Id. at ¶ 1). In paragraph two London
states: "Rock Creek provides me with financial support" and that
he leads "paid trips" into the wilderness. (Id. at ¶ 2). He does
not allege in paragraph two, let alone establish as fact, that he
lost any financial support due to the defendants' actions, nor
does he allege or establish as fact that Rock Creek's number of
paid trips has diminished because of defendants' actions. In
paragraph three London indicates he: "used to take groups through
the Hopkins Trail", a trail he previously used, which "is now off
limits for pack stock". (Id. at ¶ 3). London, however, does not
indicate that this restriction harmed Rock Creek economically. In
paragraph four London indicates a campfire is critical to staying
warm around Pioneer Lake No. 2 during cold temperatures. (Id.
at ¶ 4). In paragraph five London explains that: "clients also
believe a campfire is a basic part of a packing/camping trip, so
if we cannot make a campfire, clients will not want to go to such
a destination. Under the new [p]lan, though, I cannot build a
campfire at Pioneer Lake No. 2 because it is above the arbitrary
campfire elevational cutoff, and the lake is now unusable for
most of the year." (Id. at ¶ 5). London here only presents a
belief that clients will not want to go to a destination without
a campfire. He does not present a specific fact showing that Rock
Creek actually lost any business because of the new campfire
policy. In paragraph six London states that: "[t]here are several
sites in the Tamarack [area of the wilderness] that are of
significance in . . . [his] family's history" and he "would take
clients and friends to these areas and share stories with
them. . . ." (Pls.' Opp'n to Defs.' Mot. to Dismiss and for Summ.
J. at ¶ 6). Regarding any economic consequence in relation to
this assertion, London only indicates he: "cannot take packstock
on many trails that I had historically used. . . ." (Id. at ¶
6). London does not establish any specific fact showing the
inability to take packstock into these trails caused economic
damage to Rock Creek. In paragraph seven London only discusses
the impact of defendants' regulation on his "personal enjoyment
of the wilderness"; thus, he does not establish any factual disputes concerning
economic or interrelated environmental injuries. (Id. at ¶ 7).
Since London's affidavit (and verbatim declaration) do not assert
or establish any economic injury to Rock Creek, plaintiffs have
not established an injury in fact based on alleged economic
damage to Rock Creek.
2. Environmental Injuries
London's affidavit and verbatim declaration do not assert or
allege any environmental damage to the wilderness areas in
question. As the foregoing explanation of the affidavit shows,
London does not refer to any alleged environmental damages to the
wilderness areas in question. Consequently, plaintiffs have not
established an injury in fact based on environmental damage to
the wilderness areas in question at the summary judgment stage of
3. Recreational Use and Aesthetic Enjoyment of the Wilderness
Finally, the plaintiffs cannot establish they suffered an
injury in fact under a theory that their recreational use and
aesthetic enjoyment of the wilderness areas in question were
detrimentally affected by the defendants' actions. It is true
that recreational use and aesthetic enjoyment are the sorts of
interests within the zone of interest of NEPA. Lujan,
497 U.S. at 885; see also Friends of the Earth, Inc. v. Laidlaw
Environmental Serv., Inc., 528 U.S. 167, 183 (2000); Lujan,
504 U.S. at 562-63; Sierra Club v. Morton, 405 U.S. 727, 735
(1972). The plaintiffs, however, admit that the current
proprietors of Rock Creek, Herb and Craig London, "certainly
operate Rock Creek as a commercial venture. . . ." (Pl.'s Opp'n
to Def.'s Mot. Dismiss and Mot. for Summ. J. at 5). Further, the
plaintiffs described High Sierra as "an association of commercial
entities . . . which provide horses, mules and burros ("stock")
to the public for trips" into various wilderness areas. (High Sierra
Compl. ¶ 5). High Sierra stated that: "[t]he continued viability
of their commercial operations depends on the Wilderness Areas
maintaining their primitive and historical character." (Id. at
¶ 10). The plaintiffs do not provide, nor can this Court find,
authority for the proposition that a commercial entity itself can
enjoy the recreational use and aesthetic enjoyment of the
environment. Consequently, such a commercial entity cannot
establish standing under a recreational use and aesthetic
enjoyment of the environment rationale.
Craig London's affidavit and declaration only establish that
London individually will lose the recreational use and aesthetic
enjoyment of the environment. London states in his affidavit that
he chose to operate Rock Creek because he enjoys the wilderness
and he receives great pleasure leading pack trips into the
wilderness. (Pl.'s Opp'n to Def.'s Mot. Dismiss and Mot. for
Summ. J., Craig London Affidavit, ¶ 2). London frequently travels
into the wilderness on his own personal time. (Id.). London
indicated that his inability to access Hopkins Pass Trail meant
he could not access it on business or personal time. (Id. at ¶
3). London claims that under the new Wilderness Management Plan
he no longer has the same degree of freedom and enjoyment to
travel to areas that he has visited before the new plan was
implemented. (Id. at ¶ 3). Similarly, London claims the
restrictions on campfires interferes with his enjoyment of the
land because campfires increase his personal enjoyment of the
camping experience. (Id. at ¶ 4). Because certain areas of the
Tamarack Area of the wilderness can no longer be accessed under
the Wilderness Management Plan, London claims he has lost the
personal enjoyment of taking trips using certain trails in that
area. Finally, London states that the decision to permit
unregulated growth in day use of the wilderness areas under the
new plan impacted his personal enjoyment of the wilderness. (Id. at ¶ 7). London said the
wilderness loses the qualities that makes it enjoyable to him
when trails and campsites are busier due to the new regulations
on use. (Pl.'s Opp'n to Def.'s Mot. Dismiss and Mot. for Summ.
J., Craig London Affidavit, ¶ 7). The unregulated day use
therefore has reduced his enjoyment of traveling into wilderness
Craig London's recreational use and aesthetic enjoyment of the
wilderness areas in question is not an issue before the Court.
London, individually, is not a party and has not asserted a claim
against the defendants in the matter before the Court. Only Rock
Creek and High Sierra, which the plaintiffs admit are both
operated as commercial ventures, asserted a claim against the
defendants. This distinction is critical because "the `injury in
fact' test requires more than an injury to a cognizable interest.
It requires that the party seeking review be himself among the
injured.'" Lujan, 504 U.S. at 564 (quoting Sierra Club,
405 U.S. at 734). The parties seeking review here, Rock Creek and
High Sierra, cannot establish that they were injured under a
recreational use or aesthetic enjoyment of the environment
rationale. Craig London, individually, is not a party seeking
review here, thus, whether he personally suffered an injury or
not is irrelevant to determining whether Rock Creek and/or High
Sierra suffered an injury in fact.*fn6
For the foregoing reasons, the Court concludes that plaintiffs
lack standing to bring their claims. As such, the defendants'
motion to dismiss and for summary judgment was GRANTED. The
plaintiffs' cross-motion for summary judgment was therefore