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Center for Biological Diversity v. Tidwell

United States District Court, District of Columbia

March 9, 2017

Center for Biological Diversity, Plaintiff,
Thomas Tidwell, et al., Defendants.


          COLLEEN KOLLAR-KOTELLY United States District Judge

         Plaintiff Center for Biological Diversity has brought suit under the Federal Advisory Committee Act (“FAC A ”) and the Administrative Procedures Act (“A PA ”) against Defendants United States Department of Agriculture (“USDA”); United States Forest Service, an agency of the USDA; and Thomas Tidwell, the Chief of the Forest Service. Plaintiff claims that Defendants violated FACA and the APA by convening an advisory committee to develop a conservation strategy for the California spotted owl without following certain procedural requirements that FACA imposes on such committees. Defendants have moved to dismiss the Complaint, ECF No. 1, for lack of subject-matter jurisdiction and for failure to state a claim.

         Upon consideration of the pleadings, [1] the relevant legal authorities, and the record as a whole, the Court GRANTS IN PART AND DENIES IN PART Defendants' [10] Motion to Dismiss. Plaintiff's claims survive only to the extent they seek relief under the APA for Defendants' alleged failure to comply with FACA's document disclosure provision, 5 U.S.C. app. 2 § 10(b). Accordingly, Plaintiff's other claims are DISMISSED WITHOUT PREJUDCE.

         I. BACKGROUND

         A. Statutory Background

         FACA imposes a number of procedural requirements on “advisory committees, ” which are defined as “any committee . . . which is . . . established or utilized by one or more [federal] agencies, in the interest of obtaining advice or recommendations for . . . one or more agencies or officers of the Federal Government . . . .” 5 U.S.C. app. 2 § 3(2). The statute exempts “any committee that is composed wholly of full-time, or permanent part-time, officers or employees of the Federal Government . . . .” Id. FA C A was enacted out of

a desire to assess the need for the numerous committees, boards, commissions, councils, and similar groups which have been established to advise officers and agencies in the executive branch of the Federal Government. . . . Its purpose was to ensure that new advisory committees be established only when essential and that their number be minimized; that they be terminated when they have outlived their usefulness; that their creation, operation, and duration be subject to uniform standards and procedures; that Congress and the public remain apprised of their existence, activities, and cost; and that their work be exclusively advisory in nature.

Pub. Citizen v. U.S. Dep't of Justice, 491 U.S. 440, 445-46 (1989) (internal quotation marks and citations omitted). To achieve that purpose, FACA requires that advisory committees, inter alia, file a charter, give advance notice of any meeting, hold all meetings open to the public, and keep minutes and other records of those meetings. See 5 U.S.C. app. 2 §§ 9(c), 10(a), 10(c). FACA also mandates that, unless an exception applies under the Freedom of Information Act (“FOIA”), “the records, reports, transcripts, minutes, appendixes, working papers, drafts, studies, agenda, or other documents which were made available to or prepared for or by each advisory committee shall be available for public inspection and copying . . . .” Id. § 10(b). Finally, FACA requires that each advisory committee be “fairly balanced in terms of the points of view represented and the functions to be performed, ” id. § 5(b)(2), and “not be inappropriately influenced by the appointing authority or by any special interest, ” id. § 5(b)(3).

         B. Factual Background

         This case involves an advisory committee established to create a conservation strategy for the California spotted owl-“a small and declining genetically-distinct subspecies found primarily in California's Sierra Nevada Region and the mountains of southern California.” Opp'n Mem. at 2. As part of a settlement agreement in 2014, the Forest Service agreed to create a spotted owl conservation strategy, but retained the discretion to select experts and to determine the scope of the strategy. Id. at 2-3. On September 25, 2015, the Forest Service announced via an “initiation letter” that it was convening “a team of experienced managers and scientific advisors” to develop the conservation strategy (the “Strategy Team”). Id. at 3 (quotation marks and citations omitted); Compl. ¶ 24; Rosen Decl. ¶ 5. The Strategy Team met only once before this case was filed, for a two-day period spanning November 12-13, 2015. Compl. ¶ 29; Rosen Decl. ¶ 27.

         At the time it was formed, the Strategy Team included at least four non-federal scientists, and at least 17 members altogether, but included no experts that had been previously recommended by Plaintiff in a July 2015 letter to the Forest Service. Compl. ¶ 25. Plaintiff sent another letter to the Forest Service after the Strategy Team was convened, requesting that additional experts be included to ensure that the Strategy Team was “fairly balanced, ” and warning that the team as composed was “not conducive to spotted owl conservation, ” and that the team was violative of FACA. Plaintiff sent a third letter to the same effect in November 2015. With no response forthcoming from the Forest Service, Plaintiff filed the Complaint on December 15, 2015. Opp'n Mem. at 3-4; Compl. ¶¶ 27- 29.

         Three days after the Complaint was filed, but before it was served, on December 18, 2015, the Forest Service issued a “revised initiation letter, ” which relayed that the four non-federal team members would no longer participate in the Strategy Team, meaning that the Strategy Team was then composed entirely of federal employees. Defs.' Mem. at 4. This action was taken “due to the FACA concerns raised by the Center for Biological Diversity . . . .” Rosen Decl. ¶ 10. The four non-federal scientists, however, were not completely separated from the workings of the Strategy Team. Rather, the Forest Service represented that “their input [would] be sought on an individual basis . . ., ” but added that the non-federal scientists “ [would] not be included in any group emails, conference calls, or working group meetings that are managed or controlled by the Forest Service.” Id. ¶ 11. Finally, on May 27, 2016, Defendants also publicly disclosed a variety of materials associated with the Strategy Team's November 2015 meeting. Sawyer Decl. at 1-2.


         A. Motion to Dismiss for Lack of Subject-Matter Jurisdiction To survive a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1), Plaintiff bears the burden of establishing that the Court has subject-matter jurisdiction over its claims. Moms Against Mercury v. FDA, 483 F.3d 824, 828 (D.C. Cir. 2007); Ctr. for Arms Control & Non-Proliferation v. Redd, No. CIV.A. 05-682 (RMC), 2005 WL 3447891, at *3 (D.D.C. Dec. 15, 2005). Although the Court's decision regarding its “subject-matter jurisdiction necessarily precedes a ruling on the merits, the same principle does not dictate a sequencing of jurisdictional issues.” Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 584 (1999). In other words, the Court may dismiss Plaintiff's claims because they are moot without deciding whether Plaintiff had standing to bring those claims. Arizonans for Official English v. Arizona, 520 U.S. 43, 66-67 (1997) (“We m a y resolve the question whether there remains a live case or controversy . . . without first determining . . . standing . . . because the former question, like the latter, goes to the Article III jurisdiction of this Court and the courts below, not to the merits of the case.”).

         In determining whether there is jurisdiction, the Court may “consider the complaint supplemented by undisputed facts evidenced in the record, or the complaint supplemented by undisputed facts plus the court's resolution of disputed facts.” Coal. for Underground Expansion v. Mineta, 333 F.3d 193, 198 (D.C. Cir. 2003) (internal quotation marks omitted); see also Charles Alan Wright & Arthur R. Miller, 5B Federal Practice & Procedure § 1350 (3d ed. 2017) (noting the “wide array of cases from the four corners of the federal judicial system involving the district court's broad discretion to consider relevant and competent evidence on a motion to dismiss for lack of subject matter jurisdiction to resolve factual issues”). “Although a court must accept as true all factual allegations contained in the complaint when reviewing a motion to dismiss pursuant to Rule 12(b)(1), ” the factual allegations in the complaint “will bear closer scrutiny in resolving a 12(b)(1) motion than in resolving a 12(b)(6) motion for failure to state a claim.” Wright v. Foreign Serv. Grievance Bd., 503 F.Supp.2d 163, 170 (D.D.C. 2007) (internal quotation marks omitted).

         B. Motion to Dismiss for Failure to State a Claim

         Defendants also move to dismiss the Complaint for “failure to state a claim upon which relief can be granted” pursuant to Federal Rule of Civil Procedure 12(b)(6). “[A] complaint [does not] suffice if it tenders ‘naked assertion[s]' devoid of ‘further factual enhancement.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007)). Rather, a complaint must contain sufficient factual allegations that, if accepted as true, “state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678.

         In deciding a Rule 12(b)(6) motion, a court may consider “the facts alleged in the complaint, documents attached as exhibits or incorporated by reference in the complaint, ” or “documents upon which the plaintiff's complaint necessarily relies even if the document is produced not by the plaintiff in the complaint but by the defendant in a motion to dismiss.” Ward v. District of Columbia Dep't of Youth Rehab. Servs., 768 F.Supp.2d 117, 119 (D.D.C. 2011) (internal quotation marks omitted). The court may also consider documents in the public record of which the court may take judicial notice. Abhe & Svoboda, Inc. v. Chao, 508 F.3d 1052, 1059 (D.C. Cir. 2007). Apart from these two exceptions, however, “in evaluating a motion for failure to state a claim under Rule 12(b)(6), the Court cannot rely on the same set of materials as in evaluating a motion under Rule 12(b)(1) for lack of jurisdiction” without converting the motion to dismiss into a motion for summary judgment as provided for in Federal Rule of Civil Procedure 12(c). Hagan v. United States, 197 F.Supp.3d 30, 35 (D.D.C. 2016) (Kollar-Kotelly, J.). Whether to convert a motion to dismiss to a motion for summary judgment is a decision “committed to the sound discretion of the trial court.” Flynn v. Tiede-Zoeller, Inc., 412 F.Supp.2d 46, 50 (D.D.C. 2006). Generally, district courts exercise that discretion based on their “determination of whether or not the proffered material, and the resulting conversion . . . is likely to facilitate the disposition of the action.” 5C Wright et al., supra, § 1366.

         III. ...

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