American Mines to ask U.S. Supreme Court to settle NEPA standing dispute

January 02, 2013 | By CHRISTINA MARTIN

American Mines has relied on backcountry roads within Payette National Forest for its mining operation for decades. In 2005, the Forest Service created a new rule that required every national forest to designate roads open to motor vehicles, creating a presumption that roads were now closed unless explicitly designated otherwise. When the Forest Service issued its plan designating which roads would remain open in Payette National Forest, it relied on an inaccurate environmental impact statement, yet the plaintiffs could not challenge the plan because, according to the Ninth Circuit, they did not have standing under the National Environmental Policy Act (NEPA).

NEPA requires federal agencies to formally analyze the environmental impact of government actions when “major federal actions” would “significantly affect[] the quality of the human environment.” NEPA itself declares that its purpose is to “encourage productive and enjoyable harmony between man and his environment” and to protect the environment while “stimulat[ing] the health and welfare of man.” The law provides that economic concerns should be considered “along with” environmental and technical considerations.

Yet the Ninth Circuit has decided that someone who suffers economic damages from a government action does not have standing to challenge the action – even when the government admits its action violated NEPA. Thus, in Am. Independence Mines & Minerals Co. v. United States Dep’t of Agric., the plaintiffs (“American Mines”) were not allowed to challenge admittedly wrongful government action, because their injury occurred in the Ninth Circuit, where plaintiffs with economic interests could not challenge the government action.

Other Circuits have reached the opposite conclusion. According to the Eighth Circuit, “even purely economic interests may confer standing under NEPA” (Rosebud Sioux Tribe v. McDivitt). The DC Circuit has similarly recognized standing for plaintiffs who have economic interests, but who also have aesthetic interests because they hike in the effected area. (Mountain States Legal Found. v. Glickman).

The DC and Eigth Circuits are right.  Government agencies should be constrained to follow their own rules, and not permitted to wriggle out from the requirements of the law by arguing that the plaintiff’s concerns are motivated by profit. Why should courts have to examine motivation when the government is blatantly breaking the rules?

This is an important case and we hope that the Supreme Court grants certiorari to address the issue.  PLF has been involved in many NEPA cases over the years and is currently involved in litigation to protect economic interests under NEPA.