Summary
noting injury-in-fact requirement "ensur[es] that suit is brought by a plaintiff facing an injury to a concrete interest to protect rather than 'a roving environmental ombudsman seeking to right environmental wrongs wherever he might find them.' "
Summary of this case from Nguyen v. City of ClevelandOpinion
Case No. 1:00-CV-683
December 3, 2001
For Plaintiff(s): Thomas C. Buchele.
For Defendant(s): Robert I. Dodge.
OPINION
Plaintiff, Heartwood, Inc. ("Heartwood"), has sued Defendants, the United States Forest Service ("Forest Service") and Gary Cole, the District Ranger for the Huron-Manistee National Forest, pursuant to the Administrative Procedures Act ("APA"), 5 U.S.C. § 701 to 706, alleging that the Forest Service failed to comply with the National Environmental Policy Act of 1969 ("NEPA"), 42 U.S.C. § 4321 to 4370e, by failing to prepare a publicly available Environmental Assessment prior to its decision to perform various wildlife habitat improvement projects. Now before the Court are the parties' cross-motions for summary judgment. For the reasons stated below, the Court will dismiss the case for lack of standing.
I. Facts and Procedural Background
The Huron-Manistee National Forest ("HMNF" or "Forest") consists of approximately 531,000 acres of federally-owned land located in the northwest portion of Michigan's Lower Peninsula and is managed by the Forest Service. On December 6, 1999, the Forest Service issued a scoping letter describing proposed wildlife habitat improvement projects for HMNF in fiscal year 2000. The projects included: (i) mowing and brushing of 72 acres of upland openings; (ii) prescribed burning on 217 acres of upland openings; (iii) shrub planting on 25 acres; and (iv) non-commercial aspen regeneration on five acres. (12/6/99 Scoping Letter, AR vol. I, tab A.1.) The Forest Service received four responses to the scoping letter from the public, including one from Heartwood. The scoping letter indicated that various animal and plant species, such as the wild turkey, ruffed grouse, woodcock, grasses, and cattails would benefit from the projects.
In March 2000, the Forest Service prepared a Biological Assessment ("BA") pursuant to the Endangered Species Act of 1973 ("ESA") to assess the potential effects of the projects on federally listed or proposed endangered species with the potential to be found in or near the project areas. The BA examined the potential effects of the projects upon two species, the bald eagle and the Indiana bat, and concluded that the proposed projects would have no effect upon either species. (BA at 3-7, AR vol. I, tab C.) In addition, the Forest Service prepared a Biological Evaluation ("BE"), also pursuant to the ESA, to evaluate the potential effects of the projects upon sensitive species other than those listed or proposed for listing as endangered under the ESA. The BE concluded that the proposed projects would benefit or have no adverse impacts upon many of the listed species, would have no impact on a few of the species, and could have potential adverse impacts upon the wood turtle, the eastern box turtle, and the eastern massasauga rattlesnake. (BE at 5-7, AR vol. I, tab D.)
On April 5, 2000, the Forest Service issued a Notice of Decision and Decision Memo regarding the projects. The Decision Memo described the details of the projects as well as the potential effects of the projects upon endangered species and other wildlife as described in the BE and BA. (4/5/00 Decision Memo at 1-4, AR vol. II, tab. B.1.) The decision concluded that an Environmental Assessment ("EA") pursuant to NEPA was not required because the proposed projects fell within the Forest Service's categorical exclusion for "timber stand and/or wildlife habitat improvement activities which do not include the use of herbicides or do not require more than one mile of low standard road construction" and there were no "extraordinary circumstances." (Id. at 3-4.) The decision was considered final and not subject to appeal. Nevertheless, Heartwood attempted to appeal, object to, and comment on the Decision Memo by letter dated April 20, 2000, in which it specifically pointed out that the Forest Service was obligated to prepare an EA under Rhodes v. Johnson, 153 F.3d 785 (7th Cir. 1998), because an "extraordinary circumstance" was present. (Letter from Buchele to Schumacher of 4/20/00 at 1-2, AR vol. IV, tab.A.3.) In its response, the Forest Service denied the appeal and noted that the Rhodes decision was not applicable because it is a Seventh Circuit decision and HMNF is located within the Sixth Circuit. (Letter from Voltz to Buchele of 6/29/00, AR vol. IV, tab A.1.)
The Forest Service began to implement the projects shortly after it issued its Decision Memo. By the time Heartwood filed its complaint in this action on September 13, 2000, most of the projects identified in the Decision Memo had been completed. The only projects remaining to be done are the prescribed burning of 136 acres in Compartment 104 and regeneration of a five acre stand of aspen.
II. Overview of NEPA
Congress enacted NEPA as a means of ensuring that decisions regarding major federal action take into account all relevant information relating to the impacts of such action on man and the environment. 42 U.S.C. § 4331. NEPA does not require any particular substantive results. Rather, it is a procedural statute designed to "insure a fully informed and well-considered decision." Vt. Yankee Nuclear Power Corp. v. Natural Res. Def. Council, Inc., 435 U.S. 519, 558, 98 S.Ct. 1197, 1219 (1978); see also Baltimore Gas Elec. Co. v. Natural Res. Def. Council, Inc., 462 U.S. 87, 97, 103 S.Ct. 2246, 2252 (1983) (describing NEPA's twin aims of requiring an agency to consider all aspects of the environmental impact of a proposed decision and ensuring that the agency informs the public that it has taken environmental concerns into account in its decisionmaking process); Muckleshoot Indian Tribe v. United States Forest Serv., 177 F.3d 800, 814 (9th Cir. 1999) ("NEPA `does not mandate particular results,' but `simply provides the necessary process' to ensure that federal agencies take a `hard look' at the environmental consequences of their actions."). "[B]y focusing the agency's attention on the environmental consequences of a proposed project, NEPA ensures that important effects will not be overlooked or underestimated only to be discovered after resources have been committed or the die otherwise cast." Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349, 109 S.Ct. 1835, 1845 (1989). Public comment and input into the review process is an important aspect of NEPA. 40 C.F.R. § 1503.1(a)(4), 1506.6; California v. Block, 690 F.2d 753, 770-71 (9th Cir. 1982).
NEPA requires federal agencies to prepare an environmental impact statement ("EIS") for major federal actions that significantly affect the quality of the human environment. 42 U.S.C. § 4332(2)(C). In addition to the provisions in NEPA regarding the content of an EIS, the Council on Environmental Quality ("CEQ"), created pursuant to NEPA, has promulgated regulations pertaining to the content, format, and timing for preparation of an EIS. See 40 C.F.R. Part 1502. If the agency determines that the proposed action is one which does not categorically require an EIS under the agency's procedures, the agency must prepare an Environmental Assessment ("EA"). 40 C.F.R. § 1501.4(a), (b); Nat'l Parks Conservation Ass'n v. Babbitt, 241 F.3d 722, 730 (9th Cir. 2001). An EA is a "concise public document" which must "include brief discussions of the need for the proposal, of alternatives . . ., of the environmental impacts of the proposed action and alternatives, and a listing of agencies and persons consulted." 40 C.F.R. § 1508.9. If after preparing the EA the agency determines that the proposed action will significantly affect the environment, it must prepare an EIS.Southwest Williamson County Cmty. Ass'n, Inc. v. Slater, 243 F.3d 270, 274 n. 3 (6th Cir. 2001); Nat'l Parks Conservation Ass'n, 241 F.3d at 730. Otherwise, the agency must issue a Finding of No Significant Impact. 40 C.F.R. § 1501.4(e); 1508.9(a)(1).
The agency may choose to prepare an EA even if it determines that the proposed action is one which normally does not require an EA or an EIS. 40 C.F.R. § 1501.3(b); 1501.4(a)(2).
The CEQ regulations direct federal agencies to establish procedures for identifying "categorical exclusions" to NEPA requirements, defined as "a category of actions which do not individually or cumulatively have a significant effect on the human environment and which have been found to have no such effect in procedures adopted by [the] Federal agency." 40 C.F.R. § 1507.3, 1508.4. If a proposed action falls within a categorical exclusion, the agency need not prepare an EA or an EIS. 40 C.F.R. § 1508.4; Heartwood, Inc. v. United States Forest Serv., 230 F.3d 947, 949-50 (7th Cir. 2000). The regulations also require an agency to establish exceptions to categorical exclusions for "extraordinary circumstances in which a normally excluded action may have a significant environmental effect." 40 C.F.R. § 1508.4.
Pursuant to the CEQ regulations, the Forest Service adopted procedures implementing NEPA's requirements, including a list of categorical exclusions and extraordinary circumstances determining when an EA or EIS will be required. Those procedures were published and made available for public comment in the Federal Register on April 29, 1991, and again on September 18, 1992, see 56 Fed. Reg. 19718, Part II (April 29, 1991); 57 Fed. Reg. 43180 (September 18, 1992), and are included in the Forest Service's Environmental Handbook ("FSH 1909.15"). See Rhodes v. Johnson, 153 F.3d 785, 788 (7th Cir. 1998). III. Standard of Review
Defendants, citing Southwest Center for Biological Diversity v. United States Forest Service, 100 F.3d 1443 (9th Cir. 1996), contend that the Environmental Handbook was never published in the Federal Register. However, after reviewing Southwest Center for Biological Diversity, this Court believes that the court in that case erroneously concluded that the Environmental Handbook does not have the independent force and effect of law because it was not published in the Federal Register. That court relied on Western Radio Services Co. v. Espy, 79 F.3d 896 (9th Cir. 1996), which involved a different Forest Service handbook that had not been issued as a regulation in the Code of Federal Regulations or published in the federal Register. See Id. at 900-901. Because the provisions of the Environmental Handbook were published in the Federal Register, this Court agrees with the Seventh Circuit's conclusion that the provisions in the Environmental Handbook at issue in this case are binding regulations. See Rhodes, 153 F.3d at 788-89.
Summary judgment is appropriate if there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56. Material facts are facts which are defined by substantive law and are necessary to apply the law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510 (1986). A dispute is genuine if a reasonable jury could return judgment for the non-moving party. Id.
The court must draw all inferences in a light most favorable to the non-moving party, but may grant summary judgment when "the record taken as a whole could not lead a rational trier of fact to find for the non-moving party." Agristor Financial Corp. v. Van Sickle, 967 F.2d 233, 236 (6th Cir. 1992) (quoting Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356 (1986)).
IV. Discussion
Defendants contend that they are entitled to summary judgment because Heartwood lacks Article III standing under NEPA. Standing lies at the heart of this Court's subject matter jurisdiction. TCG Detroit v. City of Dearborn, 206 F.3d 618, 622 (6th Cir. 2000); Nat'l Rifle Ass'n of Am. v. Magaw, 132 F.3d 272, 279 (6th Cir. 1997) (citing Allen v. Wright, 468 U.S. 737, 750, 104 S.Ct. 3315, 3324 (1984)). In order to establish Article III standing, a plaintiff must show the following:
First, the plaintiff must have suffered an "injury in fact" — an invasion of a legally protected interest which is (a) concrete and particularized, and (b) "actual or imminent, not `conjectural' or `hypothetical.'" Second, there must be a causal connection between the injury and the conduct complained of — the injury has to be "fairly . . . trace[able] to the challenged action of the defendant, and not . . . th[e] result [of] the independent action of some third party not before the court." Third, it must be "likely," as opposed to merely "speculative," that the injury will be "redressed by a favorable decision."Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 2136 (1992) (internal citations omitted). Defendants' standing challenge focuses upon the injury in fact requirement.
Heartwood contends that it has established standing because it has presented evidence showing that its members use the area of the Forest that will be affected by the projects and will thus suffer injury to their interest in aesthetic or recreational enjoyment of the affected area. In addition, Heartwood claims that its members have suffered an informational injury as a result of the Forest Service's failure to prepare an EA. Defendants do not assert that the other standing requirements are lacking, and the Court, based upon its review of the pleadings and papers filed by the parties, determines that those requirements (fairly traceable and likely to be redressed) are present.
Defendants do not challenge Heartwood's standing on prudential grounds, i.e., whether the interests Heartwood seeks to protect are within the zone of interests protected by NEPA. See Cent. S.D. Coop. Grazing Dist. v. Sec'y of the United States Dep't of Agric., No. 00-3567, 2001 WL 1111471, at *3 (8th Cir. Sept. 24, 2001). The Court concludes that Heartwood has prudential standing because it is an organization concerned with the protection of the environment, which implicates NEPA's core concerns.
In order to demonstrate injury under NEPA, a plaintiff cannot simply rely upon injury to the environment in general; rather, the plaintiff must show that he has or will suffer some individualized, concrete harm as a result of a violation of the statute. Defenders of Wildlife, 504 U.S. at 573 n. 8, 112 S.Ct. at 2143 n. 8. A plaintiff "must somehow differentiate himself from the mass of people who may find the conduct of which he complains to be objectionable only in an abstract sense."Friends of the Earth v. Gaston Copper Recycling Corp., 204 F.3d 149, 156 (4th Cir. 2000). This requirement fulfills Article III's case or controversy requirement by ensuring that suit is brought by a plaintiff facing an injury to a concrete interest to protect rather than "a roving environmental ombudsman seeking to right environmental wrongs wherever he might find them." Id. at 157.
The Supreme Court has held that in the context of environmental laws such as NEPA, "plaintiffs adequately allege injury in fact when they aver 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 Envtl. Servs., 528 U.S. 167, 183, 120 S.Ct. 693, 705 (2000) (quoting Sierra Club v. Morton, 405 U.S. 727, 735, 92 S.Ct. 1361, 1366 (1972)). In Ecological Rights Foundation v. Pacific Lumber Co., 230 F.3d 1141 (9th Cir. 2000), the court stated:
Under Laidlaw . . . an individual can establish "injury in fact" by showing a connection to the area of concern sufficient to make credible the contention that the persons's future life will be less enjoyable — that he or she really has or will suffer in his or her degree of aesthetic or recreational satisfaction — if the area in question remains or becomes environmentally degraded. . . .
. . . .[A] person who uses an area for recreational purposes does not have to show that he or she lives particularly nearby to establish an injury-in-fact due to possible or feared environmental degradation. Repeated recreational use itself, accompanied by a credible allegation of desired future use, can be sufficient, even if relatively infrequent, to demonstrate that environmental degradation of the area is injurious to that person.Id. at 1149. Some courts have reduced the injury in fact requirement under NEPA to a two-part test requiring the plaintiff to show: (1) that by failing to comply with NEPA the agency created or increased the risk of actual, threatened, or imminent or environmental harm; and (2) the failure to comply has increased the risk of environmental harm to a concrete interest of the plaintiff as shown by either a "geographical nexus to, or actual use of the site of the agency action." Comm. to Save the Rio Hondo v. Lucero, 102 F.3d 445, 449 (10th Cir. 1996).
In support of standing, Heartwood offers affidavits from three of its members. The first member, Andrew Laird, lives in Stockbridge, Michigan. Laird states that he has used HMNF for a variety of activities, including hiking, wildlife viewing, and canoeing, and has visited HMNF 2-3 times a year since moving back to Michigan three years ago. (Laird Decl. ¶¶ 3, 4, Pl.'s Br. Supp. Ex.3.) Laird also states that he is a recording artist and trained botanist and has spent time in the Forest identifying plants and recording bird songs and other nature sounds. (Id. ¶ 4.) Laird has "canoed on the portion of the Manistee River where management activities have been proposed[,] . . . camped in the area which is proposed for the management activities, and hiked through areas in the region of decision." (Id. ¶¶ 6, 7.) According to Laird, the proposed projects will affect his use and enjoyment of the Forest by causing noise pollution and disturbing habitats of rare species. (Id. ¶¶ 5, 8.) Laird states that "I would like to come up [to the forest] . . . and make more wildlife recordings, but I don't known when or where the activities will be taking place." (Id. ¶ 9.)
Mark Donham, the second member, states that he resides in Brookport, Illinois. (Donham Decl. ¶ 5, Pl.'s Br. Supp. Ex. 3.) Donham states that he has visited Michigan on several occasions for personal and professional reasons and has used HMNF during those visits. In particular, Donham alleges that he has visited the Sleeping Bear Dunes area on Lake Michigan, stayed at motels in or near Manistee, and "used the very area subject to this project." (Id.) Donham states that the projects will affect his use of the Forest because observing prescribed burn or mowed areas detracts from his enjoyment of the natural environment. (Id. ¶ 6.)
The third affidavit is from member Murray Daily, who lives in Lake Orion, Michigan. Daily states that his family owns a cabin about one hour north of the project area and that he has been using the area for many years. (Daily Decl. ¶ 6, attached to Pl.'s Mot. to File Additional Standing Decl.) Daily states that he has used areas of HMNF all around the vicinity of his cabin, including the project area, and has camped, hiked, or driven through most of the area in the vicinity of the project area. (Id. ¶ 7.) In addition, Daily affirms that during his visits to the Forest he likes to observe various species of trees and animals and that his enjoyment of the Forest in its natural state would be diminished by changes in wildlife or if his viewing of burned or altered areas of the Forest. (Id. ¶¶ 8, 9.)
Defendants contend that Heartwood lacks standing under the Supreme Court's decisions in Lujan v. National Wildlife Federation, 497 U.S. 871, 110 S.Ct. 3177 (1990), and Lujan v. Defenders of Wildlife, 504 U.S. 555, 112 S.Ct. 2130 (1992). In National Wildlife Federation, an environmental organization filed suit challenging the Bureau of Land Management's ("BLM") "land withdrawal review program" under the Federal Land Management Act of 1976 and NEPA. The BLM program involved approximately 1,250 individual classification terminations and withdrawal revocations of federal lands, some of which would result in opening up lands to mining activities. In response to the defendants' motion for summary judgment on the issue of standing, the plaintiff offered affidavits of its members for the purpose of demonstrating that the decisions of the BLM affected the individual interests of the plaintiff's members. One affiant stated that she used lands "in the vicinity" of an area opened to mineral leasing and mining, which constituted only 4500 acres of a two million acre area. The second affiant made similar "in the vicinity" allegations regarding use of land located within a very large tract of land. The Court held that although the affidavits established harm that met the "zone of interest" test, they were insufficient to demonstrate that the plaintiff's members would suffer injury as a result of the government's actions because the allegations were too general. 497 U.S. at 886-87, 110 S.Ct. at 3187-88. In rejecting the court of appeals' reasoning that the "in the vicinity" statement in the first affidavit must have included land within the 4500 acre area and that any ambiguity should have been resolved in favor of the plaintiff (the non-moving party), the Supreme Court observed that for purposes of a summary judgment motion, an affidavit must contain specific facts demonstrating injury:
At the margins there is some room for debate as to how "specific" must be the "specific facts" that Rule 56(e) requires in a particular case. But where the fact in question is . . . whether one of respondent's members has been, or is threatened to be, "adversely affected or aggrieved" by Government action — Rule 56(e) is assuredly not satisfied by averments which state only that one of respondent's members uses unspecified portions of an immense tract of territory, on some portions of which mining activity has occurred or probably will occur by virtue of the governmental action. It will not do to "presume" the missing facts because without them the affidavits would not establish the injury that they generally allege. That converts the operation of Rule 56 to a circular promenade: plaintiff's complaint makes general allegation of injury; defendant contests through Rule 56 existence of specific facts to support injury; plaintiff responds with affidavit containing general allegation of injury, which must be deemed to constitute averment of requisite specific facts since otherwise allegation of injury would be unsupported (which is precisely what defendant claims it is).Id. at 889, 110 S.Ct. at 3189.
In Defenders of Wildlife, the plaintiffs filed suit seeking a declaration that a rule adopted by the Secretary of the Department of the Interior requiring consultation with respect to endangered or threatened species only for actions taken in the United States or on the high seas was contrary to the Endangered Species Act of 1973. To establish standing, the plaintiffs alleged injury as a result of activities occurring abroad which were funded by the United States and tended to increase the rate of extinction of endangered and threatened species. However, the Court noted that the plaintiffs would still have to show that one or more of their members would be directly affected by the government's actions apart from any special interest in the subject, i.e., threats to the particular species. Defenders of Wildlife, 504 U.S. at 563, 112 S.Ct. at 2137-38. Two members submitted affidavits in which they stated that they had visited foreign countries (Egypt and Sri Lanka) where the United States was involved in projects affecting endangered species and had observed or attempted to observe those endangered species. Id. at 563, 112 S.Ct. at 2138. The members also stated that they intended to return to those counties in the future to observe those species, but they did not give any specifics about their plans to do so. The Court held that the affidavits were insufficient to show a likelihood of future harm because "[s]uch `some day' intentions — without any description of concrete plans, or indeed even any specification of when the some day will be — do not support a finding of the `actual or imminent' injury that our cases require." Id. at 564, 112 S.Ct. at 2138.
The Court concludes that the statements in the affidavits offered by Heartwood about use of "the project area" or use of "the area which is the subject of this lawsuit" are similar to the "in the vicinity" statements in National Wildlife Federation. The common characteristic of this case and National Wildlife Federation is an action or actions involving small, discrete areas of a very large tract of land. The projects in this case will occur on 86 of the 531,000 acres of land within HMNF, representing only .02% of the total land space. The Supreme Court made it very clear in National Wildlife Federation that when faced with a motion for summary judgment on the issue of standing, a plaintiff must do more than assert generalized allegations in an affidavit which could conceivably demonstrate use of the affected land; rather, a plaintiff must set forth specific facts showing injury from use of the affected land. See People for the Ethical Treatment of Animals v. Dep't of Health Human Servs., 917 F.2d 15, 17 (9th Cir. 1990) (stating that "Rule 56(e) is not satisfied by averments which state only that the declarant uses unspecified portions of a large metropolitan area, on some portions of which hazardous substances might be transported or disposed"). The affidavits before the Court do not meet that requirement. Donham states in his affidavit that he has "used the area which is the subject to this lawsuit," which includes HMNF. (Donham Aff. ¶ 5.) The only specifics Donham provides are that he has visited the Sleeping Bear Dunes area on Lake Michigan and has stayed in motel rooms in and around Manistee. Neither of these areas is located in or near the project areas, as shown on the map submitted by Defendants. (Defs.' Br. Supp. Ex. 1.) Moreover, nothing in the affidavit indicates concrete future plans by Donham to use the actual project area. The Laird affidavit contains more specific details, yet does not contain any details showing past or future planned use of the project areas. Laird states that he has canoed on the portion of the Manistee River where management activities have been proposed, has "camped in the area which is proposed for the management activities," and has "hiked through areas in the region of decision". (Laird Aff. ¶¶ 6,7.) Laird identifies particular locations within the Forest at which he has canoed or camped, such as between Tippy Dam Road and the City of Manistee, between the Hodenpyl Dam to the Coates Highway bridge, and the Hodenpyl Pond. However, the Court has no idea of the proximity of these locations to the project areas, and Heartwood has not cited any evidence in the record from which the Court could conclude that Laird is likely to encounter the project areas through his use of the Forest. Dailey's affidavit presents the same problems because it contains general averments regarding use of lands and rivers "in the area", in "areas of the [HMNF] all around the vicinity of [his] cabin (which, the Court notes, is located one hour north of the project areas), including the project area", and "in the northeastern part of the [Forest]." (Dailey Aff. ¶¶ 6, 7.) Like Laird, Daily describes some specific locations of his activities within HMNF but, as with Laird's affidavit, this Court has no way of determining whether Dailey's past and, more importantly, future activities, will occur in or near the project areas. "[A] plaintiff claiming injury from environmental damage must use the area affected by the challenged activity and not an area roughly `in the vicinity' of it." Defenders of Wildlife, 504 U.S. at 565-66, 112 S.Ct. at 2139.
Defendants assert that Laird's statements in his affidavit do not show that has or will come within ten miles of the project areas and that Dailey's statements show that he has not come within a four-mile radius of the project areas. (Defs.' Br. Supp. at 12; Defs.' Reply Br. at 4.) Heartwood has not contested these statements.
Heartwood contends that the proof of injury in this case is more specific than the proof of injury in National Wildlife Federation because they are not asserting use of all 500,000 acres in the Forest, but rather the same northeastern corner of the Forest where the projects will occur. While it is true that courts take a "flexible approach" to determining injury in environmental cases, Ecological Rights Found., 230 F.3d at 1150, a plaintiff must still "show a connection to the area of concern sufficient to make credible the contention that the person's future life will be less enjoyable . . . if the area in question remains or becomes environmentally degraded." Id. at 1149. In a case such as this where the action in question will affect a very small part of a vast amount of land, an allegation of use of land "in the vicinity" or "in the same area" does not suffice to establish actual injury because it does not provide a factual basis to conclude that the affiant will suffer an actual injury to his or her recreational or aesthetic values by, for example, viewing the effects of the action on the environment. Cf.Cantrell v. City of Long Beach, 241 F.3d 674, 680 (9th Cir. 2001) (birdwatchers who viewed birds from area in and around naval station demonstrated injury to a concrete and particularized interest with respect to future use of the naval station). In contrast, where the action alleged to cause the injury will affect a large area or has general application to a large area (for example, adoption of a particular rule or policy), more generalized allegations of use may suffice. See Salmon River Concerned Citizens v. Robertson, 32 F.3d 1346, 1352-55 (9th Cir. 1994) (allegations by plaintiff's members that they lived in or visited the national forest in Region 5 were sufficient to establish standing with respect to use of herbicides in connection with a reforestation program covering approximately six million acres); Ind. Forest Alliance Inc. v. United States Forest Serv., No. NA99-0214-C-H/G, 2001 WL 912751, at *1 n. 1 (S.D.Ind. July 5, 2001) (finding the plaintiffs' allegations that they "use[d] the Forest for hiking, camping, and birding" were sufficient to establish standing with respect to the maintenance of 947 "forest openings" in the Hoosier National Forest).
Heartwood places substantial reliance upon the Supreme Court's recent decision in Friends of the Earth, Inc. v. Laidlaw Environmental Services, Inc., 528 U.S. 167, 120 S.Ct. 693 (2000), a case involving the citizen-suit provisions under the Clean Water Act. Heartwood correctly notes that the Court found the plaintiff had standing where, among other things, one of its members had canoed approximately forty miles downstream from the source of the pollution. Id. at 183, 120 S.Ct. at 705. Other members who lived or asserted a desire to camp, fish, or swim several miles downstream from the source of the pollution also adequately established injury in fact. Id. at 181-82, 120 S.Ct. at 704-05. Friends of the Earth is distinguishable from this case because each of the plaintiff's members, even those living or desiring to recreate several miles from the source of the pollution, was able to establish injury in fact by showing some plausible, direct contact with the polluted river in a physical or sensory manner. See Comm. to Save the Rio Hondo, 102 F.3d at 450-51 (finding that affiants who lived downstream from and used the same watershed as a ski area established injury in fact because they would be expected to suffer from decreased water quality as a result of summertime use of the ski area). Heartwood's members have not made such a showing here.
Heartwood also points out that it need not establish actual use of the specific land included in the project area, but instead may show injury through a geographical nexus to the areas directly affected because the effects of the projects would extend beyond the physical boundaries of the project area. For example, Heartwood asserts that noise, smoke, sedimentation, and harmful effects on endangered species will transcend the boundaries of the project area and impact the same watershed and the same wildlife used and observed by its members. The Court agrees with Heartwood that generally injury can be established by impacts beyond the immediate area of activity. However, Heartwood has failed to point to specific evidence in the record showing that the projects are reasonably certain to produce the effects claimed by Heartwood and its members.Cent. S.W. Servs., Inc. v. United States EPA, 220 F.3d 683, 700 (5th Cir. 2000) (holding that the affidavit of a Sierra Club member did not establish standing for the organization to challenge the EPA's final rule for storage and disposal of PCB's where the affiant failed to present any facts substantiating his concern "that PCB bulk product waste disposed of in his town's landfill may leach from the landfill and somehow enter the town's water supply").
Heartwood also contends that it has standing because it has suffered an informational injury as a consequence of the Forest Service's improper use of a categorical exclusion, i.e., it was denied information about the projects which should have been included in an EA. This Court has not found any case from the Supreme Court or the Sixth Circuit addressing whether "informational injury" may suffice to meet Article III's standing requirements in a NEPA case. The concept of "informational injury" in NEPA cases has received the most attention by the United States Court of Appeals for the District of Columbia. In Competitive Enterprise Institute v. National Highway Traffic Safety Administration, 901 F.2d 107 (D.C. Cir. 1990), for example, the court stated that "[a]llegations of injury to an organization's ability to disseminate information may be deemed sufficiently particular for standing purposes where that information is essential to the injured organization's activities, and where the lack of the information will render those activities infeasible." Id. at 122. In Foundation on Economic Trends v. Lyng, 943 F.2d 79 (D.C. Cir. 1991), the court examined the basis of its earlier decisions regarding informational injury and concluded, "Despite the general statements in our decisions , . . . we have never sustained an organization's standing in a NEPA case solely on the basis of `informational injury,' that is, damage to the organization's interest in disseminating the environmental data an impact statement could be expected to contain."Id. at 84. Although it cited other grounds for determining that the plaintiff organization did not have standing, the court observed that allowing informational injury to supply the basis for Article III standing in a NEPA case would be contrary to established Supreme Court precedent requiring more than a mere interest in an environmental problem to confer standing because any plaintiff, whether organization or individual, could meet the standing requirement by simply alleging a need for the information for environmental purposes. Id. at 84-85.
Heartwood cites Federal Election Commission v. Akins, 524 U.S. 11, 118 S.Ct. 1777 (1998), as supporting a claim of informational injury. InAkins, several plaintiffs filed a complaint against the Federal Election Commission ("FEC") alleging that an organization was a "political committee" under the Federal Election Campaign Act of 1971 and, therefore, was subject to the registration and reporting requirements of that act. The FEC argued that among other things, the plaintiffs lacked standing because they could not show that they suffered an injury in fact. The Court rejected the argument, stating:
The "injury in fact" that respondents have suffered consists of their inability to obtain information — lists of AIPAC donors (who are, according to AIPAC, its members), and campaign-related contributions and expenditures — that, on respondents' view of the law, the statute requires that AIPAC make public. There is no reason to doubt their claim that the information would help them (and others to whom they would communicate it) to evaluate candidates for public office, especially candidates who received assistance from AIPAC, and to evaluate the role that AIPAC's financial assistance might play in a specific election.Id. at 21, 118 S.Ct. at 1784. The Court also rejected the FEC's assertion that the plaintiffs lacked standing because the lawsuit presented only a "generalized grievance" similar to those in other cases which were held insufficient to give rise to a "concrete interest" for standing purposes. The Court acknowledged that the plaintiffs' claim involved harm that was common to all or at least a large class of citizens but held that the harm was sufficiently concrete: "We conclude that, similarly, the informational injury at issue here, directly related to voting, the most basic of political rights, is sufficiently concrete and specific such that the fact that it is widely shared does not deprive Congress of constitutional power to authorize its vindication in the federal courts." Id. at 24-25, 118 S.Ct. at 1786.
The Court rejects Heartwood's reliance on Akins because its holding is narrowly focused upon the widely held fundamental right of voting and the lack of information was claimed to be injurious to that right. Akins distinguished the injury in that case from the more common situation where the interest alleged to have been injured is widely shared and abstract, "for example, injury to the interest in seeing that the law is obeyed." Id. at 24, 118 S.Ct. at 1786. This case fits that description because Heartwood's alleged injury, i.e., lack of information as a result of the Forest Service's failure to prepare an EA, is really injury to its interest in seeing that Defendants complied with the requirements of NEPA. This type of injury insufficient to confer standing. See Michigan v. United States, 994 F.2d 1197, 1203-04 (6th Cir. 1993) (rejecting Michigan's argument that insisting on the appropriate implementation of NEPA is enough to confer Article III standing). Moreover, the Court declines to give Akins the expansive holding Heartwood urges because to do so would undermine the Supreme Court's holdings in cases such asNational Wildlife Federation, Defenders of Wildlife, and Friends of the Earth that environmental plaintiffs must demonstrate concrete and particularized harm to have standing. As noted in Lyng, allowing "informational injury" alone to support standing in NEPA cases would effectively eliminate any standing requirement, because standing could be denied only to "an organization foolish enough to allege that it wanted the information for reasons having nothing to do with the environment." Lyng, 943 F.2d at 84. See also Atl. States Legal Found. v. Babbitt, 140 F. Supp.2d 185, 194 (N.D.N.Y. 2001) ("[I]t is clear that the notion of informational harm, without more, does not confer standing in a NEPA case as it is inconsistent with the requirement of establishing concrete and particularized harm. To hold otherwise would allow organizational plaintiffs . . . to undermine the established principals of standing in NEPA cases by simply requesting that an agency prepare an EIS" (citation omitted)).
Heartwood also cites a footnote in Heartwood, Inc. v. United States Forest Service, 230 F.3d 947 (7th Cir. 2000), as support for its informational injury argument. The Seventh Circuit stated in that footnote, "We find Heartwood's argument as to `informational' injury compelling as well." Id. at 952 n. 5. This Court is not persuaded by the Seventh Circuit's statements in that footnote for several reasons. First, the court had already concluded that Heartwood established injury in fact through the affidavits of its members, and the discussion regarding informational injury was merely dicta. See id. at 951-52. Second, nowhere in the footnote does the court state that standing may be established solely through informational injury. In fact, the court referred to "stakeholders" or "interested parties" as having a need for information. Finally, the court cited Akins without any analysis or discussion of why that case would apply in the NEPA setting and without considering the implications Akins would have on established standing principles in environmental cases.
Conclusion
For the foregoing reasons, Defendants' motion for summary judgment will be granted on the grounds that Heartwood lacks standing, and Heartwood's motion for summary judgment will be denied.An Order consistent with this Opinion will be entered.
ORDER
In accordance with the Opinion filed on this date,
IT IS HEREBY ORDERED that Defendants' Cross-Motion for Summary Judgment (docket no. 19) is GRANTED on the grounds that Plaintiff lacks standing.
IT IS FURTHER ORDERED that Plaintiff's Motion for Summary Judgment (docket no. 16) is DENIED.
This case is closed.