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Friends of the Earth, Bluewater Network Division v. United States Dep't of the Interior

March 21, 2007


The opinion of the court was delivered by: Royce C. Lamberth, United States District Judge


I. Background

A. Rulemaking Petition & Civil Suit

In December of 1999, plaintiffs, who are three environmental organizations, joined with some 70 other leading environmental groups in submitting a Petition for Rulemaking to the Director of the National Park Service ("NPS"), related to the use of off-road vehicles ("ORVs") in NPS units. The petition initially sought NPS adoption of a rule prohibiting ORV use in all off-road areas of the National Park System, and other relief generally aimed at curtailing ORV use, which plaintiffs allege leads to substantial environmental damage to park units. The parties engaged in ongoing discussions regarding the petition, and NPS informed plaintiffs that certain park units would begin the process of adopting "special regulations" to govern ORV use within their bounds.*fn1 Because this process was likely to take several years, plaintiffs requested that NPS prohibit ORV use in the interim. On May 3, 2005, NPS responded to the petition, explaining its intention that individual park units that allowed ORV use would promulgate special regulations, and that as far as the interim period was concerned, individual park units would be assigned to evaluate existing use and make determinations as to whether interim use would be allowed.

On November 29, 2005, plaintiffs filed a complaint against the Department of the Interior and the National Park Service in this Court, seeking review of NPS actions under the Administrative Procedure Act ("APA"). As described more fully below, plaintiffs' Complaint, as subsequently amended, challenges NPS' response to the Rulemaking Petition, including NPS' refusal to repeal existing authorizations, both permanently and on an interim basis. Plaintiffs also seek review of the authorizations of ORV use at 18 specific park units, seek a regulation defining "off-road vehicle usage," seek to compel NPS promulgation of regulations for the monitoring of ORV use and the enforcement of ORV-use restrictions, and seek compulsion of a response to outstanding requests for information under the Freedom of Information Act ("FOIA"). On February 1, 2006, the Court granted motions to intervene to two groups of intervenor-defendants, the "ORV Defendants" and the "Manufacturer/User Defendants."*fn2

B. Regulatory Context

The Organic Act for the National Park Service, 16 U.S.C. § 1 et seq., is silent on the specifics of individual park management, leaving the NPS with "especially broad discretion on how to implement [its] mandate." Davis v. Latschar, 202 F.3d 359, 365 (D.C. Cir. 2000) (reprinting District Court opinion in Davis v. Latschar, 83 F.Supp. 2d 1 (1999) (D.D.C. 1999) (Friedman, J.). This discretion is generally exercised by individual park unit Superintendents, who make decisions on ORV authorizations in accord with 36 C.F.R. § 4.10, see 52 Fed. Reg. 10670, 10679 (Apr. 2, 1987). Section 4.10 prohibits the use of motor vehicles*fn3 on NPS land except on park roads, in parking areas, and on routes and areas designated by the park unit Superintendent. The regulations thus prohibit all off-road motor vehicle use that is not specifically authorized.*fn4

If a park Superintendent wants to designate "routes and areas" for off-road motor vehicle use, she must promulgate those designations as "special regulations" in compliance with 36 C.F.R. § 1.5, which establishes procedures and standards for a Superintendent to impose use limits on an area of a park unit. Specifically, the imposition or termination of a use restriction must be justified in writing, and must be published as a rulemaking in the Federal Register if the restrictions will result in significant alterations of public uses, will adversely affect a park unit's "natural, aesthetic, scenic or cultural values," will require a long-term or significant change in the park unit's resource management objectives, or are highly controversial. A Superintendent can make such designations only in park units that are national recreation areas, national seashores, national lakeshores, or national preserves. 36 C.F.R. § 4.10(b).

Also relevant is Executive Order No. 11644, 37 Fed. Reg. 2877 (1972), as amended by Executive Order No. 11989, 42 Fed. Reg. 26959 (1977). Executive Order 11644 states that its purpose is to provide for procedures and policies "that will ensure that the use of off-road vehicles on public lands will be controlled and directed so as to protect the resources of those lands, to promote the safety of all users of those lands, and to minimize conflicts among the various uses of those lands." Id. at §1. Before designating areas of a park unit for ORV use, the agency must determine that ORV use "in such locations will not adversely affect their natural, aesthetic, or scenic values." Id. at § 3(a)(4). The agency also must "ensure adequate opportunity for public participation in the promulgation of such regulations and in the designation of areas and trails" for ORV use. Id. at §3(b).

The Executive Order further requires that NPS "prescribe appropriate penalties for violation of regulations adopted pursuant to this order, and shall establish procedures for the enforcement of those regulations." Id. § 6. Similarly, it commands the agency to "monitor the effects of the use of off-road vehicles on [NPS] lands." Id. § 8. Additionally, when a park Superintendent determines that ORV use will cause or is causing "considerable adverse effects on the soil, vegetation, wildlife, wildlife habitat or cultural or historic resources of particular areas or trails of the public lands," the Superintendent shall "immediately close such areas or trails to the type of off-road vehicle causing such effects," until she determines the adverse effects have been eliminated or adequate preventive measures have been implemented. Id. § 9.

C. The Complaint

The Second Amended Complaint sets forth five claims or counts, four of which are at issue here. Count I challenges NPS' response to plaintiffs' rulemaking petition under the Administrative Procedure Act, specifically under 5 U.S.C. §§ 706(1) and 706(2). It challenges the following aspects of the NPS response: (1) denial of the request to repeal authorizations for ORV use in eight park units where such use is not permitted; (2) denial of the request to repeal authorization of ORV use in 10 park units where such use was not authorized by special regulation, as required; (3) failure to repeal authorizations in the interim while responses to item (2) were considered; (4) denial of the request to adopt regulations defining "off-road vehicle usage"; and (5) denial of the requests to adopt regulations for monitoring ORV use and enforcing compliance with legal restrictions on ORV use.

Count II challenges the authorization of ORV use in eight park units where such use is not permitted at all, according to plaintiffs. As to these eight park units, Count I challenges the denial of plaintiffs' request to repeal the authorizations, while Count II challenges the authorizations themselves. Similarly, whereas Count I challenges the denial of plaintiffs' request to repeal ORV use in ten park units that allegedly have failed to follow the proper procedure for authorizing such use, which includes the promulgation of special regulations with opportunity for public participation, Count III challenges the allegedly improper authorizations themselves. Count IV seeks to compel NPS to adopt enforcement procedures and a monitoring program. Count V is the FOIA claim, which is not at issue here.

Each of the three defendants' groups has moved to dismiss. The federal defendants move [51] to dismiss Counts I-IV, arguing that plaintiffs lack standing as to Counts II-IV, and that all four counts fail to qualify for review under the APA, which the government describes as a jurisdictional defect. The ORV Defendants moved [49] to dismiss Counts I-IV, alleging a lack of standing and failure to state a claim under the APA. The Manufacturer/User Defendants moved [52] to dismiss the entire Second Amended Complaint, also alleging a lack of standing and a failure to state a claim under the APA. Also before the Court is plaintiffs' Motion [60] to file a Surreply, to which no opposition was filed. That motion is granted.


As with any case, plaintiffs here must demonstrate that this suit constitutes a justiciable "case" or "controversy" within the Article III jurisdiction of the federal courts. The party seeking to invoke federal jurisdiction bears the burden of establishing standing. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992) (hereinafter "Defenders of Wildlife"). The plaintiff associations in this case do not allege injuries to themselves, but rely on injuries to their members.

"An association has standing to bring suit on behalf of its members when: (a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization's purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit." Hunt v. Washington State Apple Adver. Comm'n, 432 U.S. 333, 343 (1977). There is no dispute that the interests asserted by plaintiffs -- in the protection of environmental and aesthetic values in the National Parks -- are germane to their interests. In their complaint and in affidavits, plaintiffs have established that these interests are at the core of each group's mission. Likewise, there is no dispute that this suit can proceed without the individual participation of any one member. The point of contention is whether the plaintiff associations have established the standing of any of their individual members.

At least one member of each plaintiff association must establish each of the three elements of standing. To satisfy the case or controversy requirement of Article III, the "irreducible constitutional minimum" of standing, requires: "(1) that the plaintiff have suffered an 'injury in fact' -- an invasion of a judicially cognizable interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) that there be a causal connection between the injury and the conduct complained of -- the injury must be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court; and (3) that it be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision."*fn5 Bennett v. Spear, 520 U.S. 154, 167 (1997).

Certain counts in the Complaint call for review of uniform, system-wide regulations that affect all park units the same. For these, each association need only identify a single member who has standing as to those counts, and as to at least one unit of the National Park System. But Counts II and III, and several aspects of Count I, challenge site-specific regulations at 18 individual park units. As to these challenges to site-specific agency action, each plaintiff association must identify a member affected by each site-specific action. In other words, plaintiffs must identify a member or member who can establish the elements of standing as to each of the 18 park units whose distinct regulations are at issue.

In reviewing Article III standing, each necessary element "must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation." Defenders of Wildlife, 504 U.S. at 561. A plaintiff "whose standing is not self-evident is required to demonstrate entitlement to review by means of record or supplemental evidence 'at the first appropriate point in the review proceeding.'" CARE, Inc. v. FAA, 355 F.3d 678, 685 (D.C. Cir. 2004) (quoting Sierra Club v. EPA, 292 F.3d 895, 900 (D.C. Cir. 2002)). Because defendants have moved to dismiss, the proper standard at this juncture is that of a Rule 12(b)(1) motion challenging subject matter jurisdiction. See Haase v. FBI, 835 F.2d 902 (D.C. Cir. 1987).

As described below, it is true that the motions to dismiss for failure to state a claim under the APA are 12(b)(6) motions, and these have been converted to summary judgment by the submission and consideration of extraneous materials. But this does not impact the 12(b)(1) motions, which are not subject to conversion under Rule 12(b). It has been established that "at the pleading stage, general factual allegations of injury resulting from the defendant's conduct may suffice, for on a motion to dismiss we 'presume that general allegations embrace those specific facts that are necessary to support the claim.'" Defenders of Wildlife, 504 U.S. at 561 (quoting Lujan v. National Wildlife Federation, 497 U.S. 871, 889 (1990) (hereinafter "National Wildlife Federation"). A. Injury-in-Fact

In environmental cases, plaintiffs can establish injury-in-fact if they demonstrate 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 Inc. v. Laidlaw Environmental Services, Inc., 528 U.S. 167, 181 (2000) (quoting Sierra Club v. Morton, 405 U.S. 727, 735 (1972)). Count I seeks review of the agency response to plaintiffs' rulemaking petition in two aspects. First, it seeks review of the petition's request for repeal of ORV-use authorization in 18 park units. Each plaintiff association must demonstrate that it has at least one member who has established standing as to each park unit at issue in this part of Count I, which challenges site-specific agency action. The same holds true for Counts II and III, which challenge agency authorization of ORV use in the same 18 park units. The rest of Count I seeks review of the agency response to the rulemaking petition's request for system-wide regulations defining off-road vehicle usage and for regulations related to enforcement and monitoring on a system-wide basis. Similarly, Count IV seeks to compel the agency to promulgate regulations ...

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