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Case 3:12-cv-08042-DGC Document 27 Filed 06/01/12 Page 1 of 24

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IGNACIA S. MORENO
Assistant Attorney General
Environment and Natural Resources Division
U.S. Department of Justice
DOMINIKA TARCZYNSKA, Trial Attorney
New York Bar No. 4431573
JOHN S. MOST, Trial Attorney
Virginia Bar No. 27176
Natural Resources Section
P.O. Box 7611
Washington, D.C. 20044-7611
(202) 305-0447 (Tarczynska)
(202) 616-3353 (Most)
(202) 305-0506 (fax)
DOMINIKA.TARCZYNSKA@USDOJ.GOV
JOHN.MOST@USDOJ.GOV
Counsel for Defendants

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IN THE UNITED STATES DISTRICT COURT


FOR THE DISTRICT OF ARIZONA
PRESCOTT DIVISION

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NORTHWEST MINING
ASSOCIATION,

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Plaintiff,

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v.
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KEN SALAZAR, SECRETARY


OF THE INTERIOR, et al.,

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Defendants.

Case No. 3:12-cv-08042-DGC


DEFENDANTS MOTION TO DISMISS
AND MEMORANDUM IN SUPPORT

Case 3:12-cv-08042-DGC Document 27 Filed 06/01/12 Page 2 of 24

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TABLE OF CONTENTS
DEFENDANTS MOTION TO DISMISS ........................................................................... 1

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DEFENDANTS MEMORANDUM OF LAW .................................................................... 1

INTRODUCTION ................................................................................................................. 1

LEGAL BACKGROUND ..................................................................................................... 4

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A.
B.

Mining Law of 1872 ........................................................................................ 4


Federal Land Policy and Management Act .................................................... 5

FACTUAL BACKGROUND ............................................................................................... 6


A.
B.

The Affected Lands ......................................................................................... 6


Administrative and Judicial Proceedings ........................................................ 6

STANDARD OF REVIEW................................................................................................... 8

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ARGUMENT ........................................................................................................................ 9
I.

Plaintiffs Claims Fail to Establish an Article III Case or


Controversy ..................................................................................................... 10

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A.

By failing to identify member-held mining claims,


Plaintiff has not alleged facts essential to show
standing as to any count ....................................................................... 10

B.

Plaintiff is not harmed by the unexercised legislative


veto provision and thus fails to establish Article III
standing as to its Seventh Claim ......................................................... 13

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Plaintiff fails to demonstrate that its claims are ripe............................ 16

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II.

Plaintiffs NEPA Claims Fail to Demonstrate Prudential Standing ............... 17

CONCLUSION ..................................................................................................................... 21

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Case 3:12-cv-08042-DGC Document 27 Filed 06/01/12 Page 3 of 24

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DEFENDANTS MOTION TO DISMISS


Pursuant to Fed. R. Civ. P. 12(b)(1), Defendants respectfully move to dismiss the

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Complaint in this action, Dkt. 1 (Mar. 6, 2012), due to lack of subject-matter

jurisdiction. Plaintiff has not met its burden of demonstrating Article III standing or

ripeness, or prudential standing, as explained in the following memorandum.

DEFENDANTS MEMORANDUM OF LAW

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INTRODUCTION

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The Mining Law of 1872 (Mining Law), authorizes citizens to locate mining

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claims on federal lands that are open to exploration upon discovery of valuable

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mineral deposits and compliance with applicable legal requirements.

Chrisman v.

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Miller, 197 U.S. 313, 322-23 (1905). Section 204(c)(1) of the Federal Land Policy and

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Management Act of 1976 (FLPMA) authorizes the Secretary of the Interior to

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withdraw lands from settlement, sale, location, or entry under the general land laws

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(including the Mining Law), in order to maintain other public values in the area. 43

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U.S.C. 1702(j), 1712(e)(3), 1714(c)(1).


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The Northwest Mining Association (NWMA or the association), claiming to

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represent the interests of members it declines to identify, challenges the Secretarys

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recent exercise of this Section 204(c)(1) authority. It asks the Court in a seven-count

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complaint to invalidate the Secretarys decision to withdraw from location and entry
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under the Mining Law approximately one million acres of public and National Forest

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System lands in the Grand Canyon watershed (collectively, Federal lands), for twenty

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years, subject to valid existing rights. See Record of Decision (ROD) at 1 (Jan. 9,

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Case 3:12-cv-08042-DGC Document 27 Filed 06/01/12 Page 4 of 24

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2012) (attached herewith as Ex. 1). The first claim for relief asserts that the Secretarys
exercise of his withdrawal authority was unlawful under FLPMA and the

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Administrative Procedure Act (APA). The second claim asserts that the withdrawal

violates both the National Environmental Policy Act, 42 U.S.C. 4321 et seq.

(NEPA) and the National Forest Management Act, 16 U.S.C. 1701 et seq.

(NFMA), while the third through sixth Claims allege additional NEPA violations.

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The seventh claim asserts that the Secretarys withdrawal authority is inoperative

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because the statutory source for that authority contains an allegedly unconstitutional

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and unseverable legislative veto provision. Based on these supposed infirmities but

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without identifying any affected mining claimants the association asks that the

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decision be set aside.

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The Court should decline and instead dismiss the action for lack of subject-

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matter jurisdiction because the complaint fails to identify imminent harm to the legally

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protected interests of any NWMA member and because it fails to identify harm suffered

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by the association itself. Instead the complaint generally asserts that the decision will
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substantially hinder mineral exploration and development by preventing location of

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new claims and slowing or preventing development of valid existing rights. Compl.

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58(c); see also id. 48 (referring to costly and unnecessary delays). However,

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nowhere in the complaint does Plaintiff claim that anyones legally protected interests
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are harmed by the outcomes Plaintiff predicts. The Complaint also asserts that, but for

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the withdrawal, NWMAs members would seek to locate additional claims, id. 8,

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but does so without asserting that this circumstance harms either the association or a

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member. Based on these scant allegations, which at best would allow the Court to infer
the required harm, Plaintiff declares that NWMAs members and the association itself

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have suffered injury in fact . . . . Id. 55. However, in the absence of an allegation

that a specified member is personally threatened, none of these allegations has meaning.

See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 n.1 (1992). The challenged

decision precludes further location and entry on the withdrawn lands for twenty years,

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but the complaint does not identify anyone who is interested in locating additional

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mining claims nor, for that matter, does it identify any person or entity injured by

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supposedly costly delay. Consequently, all seven counts should be dismissed.

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Even if Plaintiff were to amend the complaint by identifying a member with a

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mining claim, the fact remains that Plaintiff still cannot identify a member presently

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seeking authorization for surface-disturbing work which would trigger the delay of

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which Plaintiff complains. As a result, the vaguely alleged injuries are not actual or

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imminent for purposes of standing, nor are they ripe within the meaning of Article III.

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Finally, should the Court conclude Plaintiff has properly alleged an Article III
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case or controversy, it should nonetheless dismiss the NEPA counts in the second

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through sixth claims for relief because Plaintiff lacks prudential standing to bring

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these claims. The alleged harm costly delay is economic in nature and thus falls

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outside the zone of interests that NEPA, an environmental statute, protects.


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For these and additional reasons set out below, Defendants respectfully request

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that the Court dismiss the complaint for lack of an Article III case or controversy and

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that it dismiss the NEPA count for lack of prudential standing.

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LEGAL BACKGROUND

A. Mining Law of 1872

The Mining Law of 1872, 30 U.S.C. 22-54, made public lands available to

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American citizens for the purpose of mining valuable mineral deposits . . . . United

States v. Coleman, 390 U.S. 599, 602 (1968); Cameron v. United States, 252 U.S. 450,

460 (1920); 30 U.S.C. 22. It authorizes citizens to locate valid mining claims upon

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discovery of valuable mineral deposits and compliance with applicable legal

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requirements. Chrisman, 197 U.S. at 322-23. As long as lands remain open to

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location and entry, a citizen may locate a mining claim. See 43 C.F.R. Part 3832. 1

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Before conducting most extractive mining activities, operators must obtain

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approval of a plan of operations, either from the Forest Service (Service), 36 C.F.R.

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228.4, or from the Bureau of Land Management (BLM). 43 C.F.R. 3809.11,

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3809.412.

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examination before processing a proposed plan or allowing notice-level operations. 2

On withdrawn lands, the surface-managing agency conducts a mineral

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See 43 C.F.R. 3809.100 (BLM-managed public land); May 31, 2012 Declaration
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Mining claimants often locate claims before making a discovery, to protect their
interests as against rival claimants while working to make the physical exposure
required to establish a valid claim. This act of pre-discovery location gives the mining
claimant the right of pedis possessio, as against other claimants. See Union Oil Co. v.
Smith, 249 U.S. 337, 346-47 (1919). However, only upon discovery of a valuable
mineral deposit is a mining claim valid and enforceable against the United States. Id. at
348-49; Hafen v. United States, 30 Fed. Cl. 470, 473 (1994). A valid claim affords its
holder the right to possess, occupy, and extract minerals from federal lands. 30 U.S.C.
26; Mineral Policy Ctr. v. Norton, 292 F. Supp. 2d 30, 47 (D.D.C. 2003).

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The term "notice" or "notice-level" operations in this brief refers both to operations
under a "notice" under the BLM's regulations at 43 C.F.R. 3809.300 and to a "notice
of intent" filed under the Forest Service's regulations at 36 C.F.R. 228.4.

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(Decl.) of Rody Cox 6, 7 (Ex. 2) (same); May 31, 2012 Decl. of Thomas Mutz
5, 6 (Ex. 3) (National Forest System Lands). A mineral examination determines the

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validity of a mining claim; that is, whether the claimant had discovered a valuable

mineral deposit at the time of withdrawal which continues to date. See United States v.

Pass Minerals, Inc., 168 IBLA 115, 122 (2006). If the mineral examination concludes

there has been no discovery, BLM, either on its own or on behalf of the surface-

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managing agency, institutes a contest proceeding to have the mining claims declared
invalid. See 43 C.F.R. 4.451-1; Ex. 2 at 8; Ex. 3 at 6.
B. Federal Land Policy and Management Act
Section 204(c) of FLPMA authorizes the Secretary to withdraw lands from the

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operation of the general land laws, including the Mining Law, 43 U.S.C. 1714(a), in

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order to, inter alia, maintain other public values in the area. Id. 1702(j). Such

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withdrawals are made subject to valid existing rights. Id. 1701 Note, Pub. L. 94-579

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701; see also 43 U.S.C. 1714. This authority extends not only to lands managed by

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BLM, but also to lands managed by other federal agencies. Id. 1702(j) (defining
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withdrawal authority as applying to Federal land); id. 1714(i) (authorizing the

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Secretary to withdraw lands administered by another agency only with the agencys

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consent). FLMPA contains a severability provision, which requires that if any of the

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acts provisions are held invalid, the remainder of the Act and the application thereof,
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shall not be affected thereby. 43 U.S.C. 1701 Note, Pub. L. No. 94-579, 707.

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FACTUAL BACKGROUND
A. The Affected Lands

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The lands withdrawn consist principally of three parcels, two managed primarily

by BLM (the north and east parcels on the Kanab Plateau, north of the Grand Canyon,

consisting of 684,449 acres) and one located on the Kaibab National Forest, south of

the park (the south parcel, consisting of 322,096 acres). Ex. 1 at 4-7, 8 (Map 1).

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Uranium is a mineral locatable under the Mining Law, see 43 C.F.R. 3830.11,

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3830.12(a), and has occurred in northern Arizona as pipe-shaped breccia bodies,

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generally no more than 300 feet in diameter and extending as far as 2,000 feet below

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the surface. Ex. 1 at 2. Uranium exploration and mining began in northern Arizona in

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the 1940s and 1950s and, following significant price increases, expanded in the 1970s.

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From 1978 to 1992, prospectors drilled more than 900 exploratory holes in the

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withdrawal area. Id. By the early 1990s, six of seven uranium mines in the withdrawn

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area had produced over 1.5 million tons of uranium. Id. More recently, price spikes

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spurred renewed interest in mining, as prospectors located thousands of new mining


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claims in the mid-2000s. Id. at 3. This demand generated concern about impacts on the

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natural, cultural, and social resources of the Grand Canyon watershed. Id.

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B. Administrative and Judicial Proceedings

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In July 2009, upon application of BLM, the Secretary proposed the withdrawal
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and the Department gave public notice thereof. See 74 Fed. Reg. 35,887-01 (July 21,

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2009). Its purpose was to protect the Grand Canyon watershed from adverse effects of

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locatable hardrock mineral exploration and mining. Id. at 35,887. By operation of

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law, the notice segregated the lands from location and entry for a period of two years.
Id.; see also 43 U.S.C. 1714(b)(1). BLM then commenced analysis of the proposal,

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including environmental analysis under NEPA. 74 Fed. Reg. at 35,887.

In February 2011, the Environmental Protection Agency (EPA) published a

notice of availability of a draft environmental impact statement (DEIS), which

initiated a 45-day comment period. 76 Fed. Reg. 9575 (Feb. 18, 2011). BLM later

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extended the comment period to 75 days. 76 Fed. Reg. 19,772 (Apr. 8, 2011). Given

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the complexity of issues and volume of comments received, it became apparent the

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effort could not be completed during the two-year segregation. Consequently, the

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Secretary, under FLPMAs broad grant of emergency authority, see 43 U.S.C.

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1714(e), 43 C.F.R. 2310.5, issued Public Land Order 7773, withdrawing the lands

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for an additional 6 months, to January 20, 2012. 76 Fed. Reg. 37,826-01 (Jun. 28,

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2011). This preserved the status quo as the agency completed decision making. Id.

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The Secretary also announced he was directing BLM to identify Alternative B in the

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DEIS (i.e., full withdrawal) as the preferred alternative in the Final EIS.

See

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http://www.doi.gov/news/pressreleases/Secretary-Salazars-Remarks-from-Mather-Point-at-the-Rim-of-the-GrandCanyon.cfm

(last checked May 29, 2012).

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In October 2011, EPA published a notice of availability of the Final EIS

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(FEIS). 76 Fed. Reg. 66,925-02 (Oct. 28, 2011). Among other things, the FEIS

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responded to over a quarter million comments, FEIS at 5-6 to 5-320, 3 and identified the

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The eight-chapter FEIS and its eleven appendices are available online at
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portions of the FEIS are also available at Dkt. 18-1 (beginning at ECF page 8 of 368).
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proposed withdrawal as the preferred alternative. Id. at 2-30; see also 40 C.F.R.
1502.14(e) (requiring agencies to identify preferred alternative in a final EIS);

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Natural Res. Def. Council, Inc. v. Hodel, 819 F.2d 927, 929-30 (9th Cir. 1987). On

January 9, 2012, the Secretary selected the preferred alternative, and signed the ROD

and a Public Land Order implementing it. Compl. 53; 77 Fed. Reg. 2563-01 (Jan. 18,

2012). The withdrawal does not eliminate the agencies authority to acknowledge

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notices or to approve mining plans of operation under 43 C.F.R. subpart 3809 (BLM)

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and 36 C.F.R. Part 228, Subpart A (National Forest Service), but so long as the lands

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remain withdrawn, the agencies would conduct mineral examinations before processing

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any such requests, in order to verify claim validity. Ex. 2, 6, 7; Ex. 3, 5, 6.

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Plaintiff commenced this litigation on March 6, 2012. Dkt. 1. As noted, the complaint
identifies no NWMA member who has ever sought surface-use authorization.
STANDARD OF REVIEW
Jurisdiction is a threshold issue that must be addressed before considering the

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merits of a case. Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94-96 (1998);
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McCarthy W. Constructors, Inc. v. Phoenix Resort Corp., 951 F.2d 1137, 1140 (9th Cir.

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1991). The burden of proving subject matter jurisdiction rests with plaintiff, the party

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invoking the federal courts jurisdiction. Thompson v. McCombe, 99 F.3d 352, 353

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(9th Cir. 1996). Federal courts are courts of limited jurisdiction, and are presumed to
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lack jurisdiction unless a plaintiff establishes its existence. Kokkonen v. Guardian Life

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Ins. Co. of Am., 511 U.S. 375, 377 (1994). The plaintiff must allege in his pleading

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the facts essential to show jurisdiction. McNutt v. Gen. Motors Acceptance Corp., 298
U.S. 178, 189 (1936); see also Legal Aid Soc. of Alameda Cnty. v. Brennan, 608 F.2d

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1319, 1333 n.26 (9th Cir. 1979) (To invoke federal jurisdiction, plaintiffs must allege

facts adequate to confer standing) (citations omitted). If the Court finds it lacks

subject matter jurisdiction, it must dismiss the action. Fed. R. Civ. P. 12(h)(3).

Defects in subject matter jurisdiction may be raised at any time, by the parties

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or by the court on its own motion, and may never be waived. Cripps v. Life Ins. Co. of

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N. Am., 980 F.2d 1261, 1264 (9th Cir. 1992) (citation omitted). Pursuant to Rule

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12(b)(1), a party may move to dismiss a claim based on lack of subject-matter

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jurisdiction. Fed. R. Civ. P. 12(b)(1). On such a motion, a party may attach materials

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outside the pleadings to prove jurisdictional matters. See, e.g., McCarthy v. United

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States, 850 F.2d 558, 560 (9th Cir. 1988) (when considering a motion to dismiss . . .

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[the] court is not restricted to the face of the pleadings, but may review any evidence . .

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. to resolve factual disputes concerning the existence of jurisdiction.). Consideration

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of such evidence does not convert the motion to one for summary judgment. Biotics
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Research Corp. v. Heckler, 710 F.2d 1375, 1379 (9th Cir. 1983).
ARGUMENT
Federal courts are presumed to lack jurisdiction unless the plaintiff establishes its

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existence, Kokkonen, 511 U.S. at 377, which plaintiff must do affirmatively and
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clearly. FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 231 (1990). This includes

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demonstrating Article III and prudential standing, Natl Credit Union Administration v.

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First National Bank & Trust Co., 522 U.S. 479, 488 (1998), as well as ripeness. Warth

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v. Seldin, 422 U.S. 490, 516 (1975) (affirming dismissal of organizations complaint
that failed to show injury to a member of sufficient immediacy and ripeness . . .).

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Here, Plaintiff has not satisfied these requirements as to any of its claims. Accordingly,
the Complaint should be dismissed.
I. Plaintiffs Claims Fail to Establish an Article III Case or Controversy.

A. By failing to identify member-held mining claims, Plaintiff has not


alleged facts essential to show standing as to any count.

In order to establish Article III standing, a plaintiff must show that: (1) he has

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suffered an injury-in-fact to a legally protected interest that is both concrete and

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particularized and actual or imminent, as opposed to conjectural or hypothetical;

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(2) there is a causal connection between the injury and the conduct complained of;

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and (3) it is likely not merely speculative that [his] injury will be redressed by

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a favorable decision. Defenders of Wildlife, 504 U.S. at 560-61 (citations omitted).

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An association has standing to bring suit on behalf of its members when they would

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otherwise have standing to sue in their own right, when the interests at stake are

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germane to the organizations purpose, and when neither the claim asserted nor the

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relief requested requires the participation of individual members in the lawsuit. Hunt v.

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Wash. State Apple Advertising Comm'n, 432 U.S. 333, 343 (1977). To seek injunctive

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relief, a party must establish a present injury or an actual and imminent not

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conjectural threat of future injury. Summers v. Earth Island Inst., 555 U.S. 488,

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493 (2009). Such injury must be present at the commencement of the litigation.

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Davis v. Fed. Election Commn, 554 U.S. 724, 732 (2008) (citation omitted).

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One important reason to require a showing of imminent and concrete injury is


that it provides the essential dimension of [factual] specificity to a case. Schlesinger

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v. Reservists Comm. to Stop the War, 418 U.S. 208, 221 (1974). In addition, it assures

that legal questions will be resolved, not in the rarified atmosphere of a debating

society, but in a concrete factual context conducive to a realistic appreciation of the

consequences of judicial action, Valley Forge Christian Coll. v. Ams. United for

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Separation of Church and State, Inc., 454 U.S. 464, 472 (1982)).
The complaint in this case does not achieve these purposes.

Construing it

generously in Plaintiffs favor, it implies the protected legal interests of unspecified


NWMA members will be harmed in two ways. First, the decision will substantially

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hinder continued mineral exploration and development by preventing location of new

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claims and slowing or preventing development of valid existing rights, Compl.

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58(c); and second, but for the withdrawal, NWMAs members would seek to locate

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additional claims. Id. 8. Notably, Plaintiff fails to assert, in any affirmative manner,

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that the impediments they fear would harm the legally protected interests of a NWMA
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member. Even if the complaint clearly and affirmatively stated that members would

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be harmed by the impediments Plaintiff predicts, this is still inadequate, because

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Plaintiff must specifically identify at least one member so affected. Summers, 555 U.S.

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at 498 (plaintiff-organizations must make specific allegations establishing that at least


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one identified member had suffered or would suffer harm); W. Watersheds Project v.

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Kraayenbrink, 620 F.3d 1187, 1197 (9th Cir. 2010) (same); see also Chamber of

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Commerce v. EPA, 642 F.3d 192, 199 (D.C. Cir. 2011) (it is not enough to aver that

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unidentified members have been injured). The complaint therefore does not satisfy the
first prong of the standing inquiry. It also does not satisfy Plaintiffs obligation to

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allege the facts essential to show jurisdiction. McNutt, 298 U.S. at 189; Legal Aid
Soc. of Alameda Cnty, 608 F.2d at 1333 n.26. 4

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Further, should the Plaintiff amend its complaint to specifically identify member
mining claimants, this too would be inadequate to confer standing. No decision, statute,

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or regulation prevents Plaintiffs members from pursuing the administrative avenues

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they could have pursued before withdrawal. Such members are free to follow the

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appropriate agencys requirements for obtaining surface-use authorization. The

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complaint does not allege that any member has done so and, consequently, Plaintiff

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fails to demonstrate the imminent injury Article III requires.

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The imminence requirement is a safeguard that ensures the existence of a case or

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controversy. If a member were to submit a proposed plan or notice, the appropriate

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agency would conduct a validity determination. See Ex. 1 at 6. But even if a validity

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determination were, in a given case, to cause the predicted delay, Plaintiff has not
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identified a single member who has sought surface-use authorization, and thus has not

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identified any member who will suffer the injury alleged.

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Despite the complaints numerous NEPA claims, Plaintiff also does not assert injury
to any aesthetic, recreational or environmental interests. Rather, Plaintiff identifies
only interests of an economic nature, specifically, costly delay. Although Plaintiff
also asserts that the withdrawal prevents the development of valid existing rights,
Compl. 58(c), this reasoning is circular and plainly in error. The withdrawal, by its
own terms, is made subject to valid existing rights, Ex. 1 at 2, as FLPMA itself requires.
See 43 U.S.C. 1701 Note (h). Consequently, the withdrawal cannot prevent
development of such rights, nor does it purport to, and thus the allegation is inadequate
to support Article III standing.

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In sum, Plaintiff identifies no member who holds a mining claim or who has
chosen to engage in these administrative processes, yet it asks the Court to set aside the

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withdrawal based on the delay caused by such processes. The Court should not do so.

An injury is not imminent if it is based on speculati[on] that [government] officials

will take harmful actions, because such conjecture gives no assurance that the

asserted injury is . . . certainly impending. DaimlerChrslyer Corp. v. Cuno, 547 U.S.

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332, 344-45 (2006). At present, Plaintiff has not alleged, and cannot allege except by

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conjecture, facts sufficient to demonstrate injury to a member that is certainly

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impending. Defenders of Wildlife, 504 U.S. at 564 n.2 (citation omitted). For these

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reasons, Plaintiff lacks Article III standing and the Complaint should be dismissed.

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B. Plaintiff is not harmed by the unexercised legislative veto provision and


thus fails to establish Article III standing as to its Seventh Claim.
The seventh claim for relief may also be dismissed on Article III grounds for the

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additional reason that Plaintiff is not harmed by the unexercised legislative veto

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provision which it claims is unconstitutional.

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withdrawal is unlawful because the entirety of subsection 204(c) of FLPMA is

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The seventh claim contends the

unconstitutional. Compl. 133 (asserting violation of Article Is Presentment Clause),

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141 (asserting that the veto provision is not severable and therefore all of section 204(c)
and not just section 204(c)(1) is unconstitutional).
Plaintiff cites Immigration and Naturalization Service v. Chadha, 462 U.S. 919
(1983), in arguing that action by Congress of a legislative character, that is, action that

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alter[s] the legal rights, duties and relations of persons, is subject to the Presentment

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Clause. Compl. 130, 131 (citing Chadha, 462 U.S. at 952, 954). However, the
unexercised veto provision here has had no effect on legal rights, duties, and relations.

In Chadha, plaintiff challenged a provision in section 244 of the Immigration

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and Nationality Act, 8 U.S.C. 1254(c)(2), that permitted either House of Congress to

veto a decision of the Attorney General (or his delegee) suspending deportation of an

alien in certain circumstances. Chadha, 462 U.S. at 958-59. The court found the

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provision unconstitutional for violating the Bicameralism and Presentment Clauses of

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Article I, and severed it from the remainder of section 244, which survived. Thus, the

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suspension became effective again, and Chadha was allowed to remain in the United

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States. If the veto provision had been upheld, he would have been subject to immediate

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deportation.

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Importantly, the legislative veto provision in Chadha was actually exercised,

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resulting in direct and substantial harm to the plaintiff. By contrast, the veto provision

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here was not exercised. Thus, Plaintiff challenges it only in the abstract. See United

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States v. City of Yonkers, 592 F. Supp. 570, 576 (S.D.N.Y. 1984) (defendants lack
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standing to complain of the mere presence in the Act of a legislative veto provision

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which has not been exercised to their detriment). In fact, if Congress had exercised the

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provision, it would have if anything advanced Plaintiffs objectives in this litigation. 5

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We note that the court in Mueller Optical Co. v. EEOC, 743 F.2d 380 (6th Cir. 1984)
25 rejected a contention that an unexercised legislative veto precluded standing, but the
case is factually distinct. In Mueller, plaintiff had been served with subpoenas
26 requiring representatives to appear before an agency and produce documents. Neither
27 the association nor its members are under a comparable compulsion here. To the
contrary, neither has sought to engage at all in the available administrative processes.
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Case 3:12-cv-08042-DGC Document 27 Filed 06/01/12 Page 17 of 24

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Notably, the Chadha court rejected a standing challenge, concluding that


plaintiff had demonstrated injury in fact and a substantial likelihood that the judicial

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relief requested will prevent or redress the claimed injury. Id. at 936 (quoting Duke

Power Co. v. Carolina Envtl. Study Grp., 438 U.S. 59, 79 (1978)).

provision violates the Constitution, and is severable, the Supreme Court explained,

If the veto

the deportation order [would] be cancelled. Id. The Ninth Circuits earlier decision

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in the case, affirmed by the Supreme Court, reached a similar conclusion:

that

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Chadhas claim was specific and concrete. Chadha v. INS, 634 F.2d 408, 418 (9th

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Cir. 1980). As the Ninth Circuit stated, Chadhas injury

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stems directly from the operation of the statute he challenges . . . .


[H]e presents a specific instance of injury flowing directly from the
statute's operation. In a separation of powers claim, this type of
concrete injury is sufficient for standing purposes. [Buckley v.
Valeo, 424 U.S. 1, 12 n.10 (1976) (per curiam)].

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Id. Plaintiff cannot point to a similar injury here because the veto provision it

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14

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challenges was never exercised. The purported injury cannot possibly have resulted

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from the statutes operation. Moreover, the veto provision here purports to terminate an
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existing withdrawal, not to effectuate it. Plaintiff is no more particularly harmed by the

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provision than any other citizen who objects to the mere existence of a legislative veto.

22

Finally, Plaintiff unfairly dismisses FLPMAs severability provision by arguing

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that Congress would not have granted the Secretary authority to make withdrawals of
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5,000 acres or greater if it could not also retain a legislative veto. The severability

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provision creates a presumption that Congress intended unaffected provisions to survive

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Case 3:12-cv-08042-DGC Document 27 Filed 06/01/12 Page 18 of 24

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a partial judicial invalidation. Because Plaintiff has not rebutted the presumption, the
Court should

refrain from invalidating more of [a] statute than is necessary . . . . [W]henever


an act of Congress contains unobjectionable provisions separable from those
found to be unconstitutional, it is the duty of th[e] court to so declare, and to
maintain the act in so far as it is valid.

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Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 684 (1987) (quoting Regan v. Time, Inc.,

468 U.S. 641, 652 (1984) and El Paso & Ne. Ry. Co. v. Gutierrez, 215 U.S. 87, 96

(1909)).

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Thus, [u]nless it is evident that the Legislature would not have enacted

those provisions which are within its power, independently of that which is not, the

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invalid part may be dropped if what is left is fully operative as a law. Id. (quoting

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Buckley v. Valeo, 424 U.S. 1, 108 (1976)) (emphasis added); Chadha, 462 U.S. at 931-

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32; Minority Television Project v. Fed. Commc'ns Commn, 767 F.3d 869, 882 (9th Cir.

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2012).

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For these additional reasons, the Seventh Claim should be dismissed.

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C. Plaintiff fails to demonstrate that its claims are ripe.

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The ripeness doctrine prevent[s] the courts, through avoidance of premature

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adjudication, from entangling themselves in abstract disagreements over administrative

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policies, and . . . protect[s] the agencies from judicial interference until an

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administrative decision has been formalized and its effects felt in a concrete way by the

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challenging parties. Abbott Labs. v. Gardner, 387 U.S. 136, 148-49 (1967). A case is

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not ripe for judicial review . . . until the scope of the controversy has been reduced to

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more manageable proportions, and its factual components fleshed out, by some concrete

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Case 3:12-cv-08042-DGC Document 27 Filed 06/01/12 Page 19 of 24

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action applying the regulation to the claimants situation in a fashion that harms or
threatens to harm him. Lujan v. Natl Wildlife Fedn, 497 U.S. 871, 891 (1990).

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In deciding whether an issue is ripe, a court must evaluate both the fitness of

the issues for judicial decision and the hardship to the parties of withholding court

consideration. Abbott Labs., 387 U.S. at 149; see also Ohio Forestry Assn v. Sierra

Club, 523 U.S. 726, 733 (1998). Here, the first prong of the Abbott test strongly

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counsels that the Court decline involvement. As noted, NWMA makes no allegation

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that a member has sought surface-use authorization, nor for that matter has it even

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identified any member mining claimants. If a NWMA member were to seek surface-

12

use authorization and trigger a mineral examination, then the appropriate agency would

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act and the effects of the decision might be felt in a concrete way. Abbott Labs., 387
U.S. at 148. At this juncture, meaningful judicial review is possible.
For all these reasons, the Court should dismiss the Complaint because it fails to
establish a justiciable case or controversy under Article III.

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II. Plaintiffs NEPA Claims Fail to Demonstrate Prudential Standing.

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Assuming Plaintiff could establish Article III standing and ripeness, it

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nonetheless lacks prudential standing to bring NEPA claims challenging the withdrawal

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decision because its alleged interests fall outside the environmental zone of interests

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protected by NEPA. Nev. Land Action Assn v. U.S. Forest Serv., 8 F.3d 713, 716 (9th
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Cir. 1993); see also Ashley Creek Phosphate Co. v. Norton, 420 F.3d 934, 939-40 (9th

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Cir. 2005). As explained above, Plaintiffs allegations of injury are exceedingly vague,

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but even if those allegations are construed generously, it is evident that what Plaintiff

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Case 3:12-cv-08042-DGC Document 27 Filed 06/01/12 Page 20 of 24

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complains of is the economic consequences of the withdrawal on its members the


costly and unnecessary delays in developing valid existing mining rights, Compl. 48

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(emphasis added), id. 58, and the inability to locate additional mining claims, id. 8.

Such economic interests are outside the zone of interests protected by NEPA.

It is well-established that [t]he purpose of NEPA is to protect the environment, not the

economic interests of those adversely affected by agency decisions. Nev. Land Action,

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8 F.3d at 716. Thus, a plaintiff who asserts purely economic injuries does not have

10

standing to challenge an agency action under NEPA. Ashley Creek, 420 F.3d at 940

11

(quoting Nev. Land Action, 8 F.3d at 716); see also Ranchers Cattleman v. U.S. Dept

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of Agric., 415 F.3d 1078, 1103 (9th Cir. 2005) (plaintiff must allege injury to the

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environment; economic injury will not suffice.); W. Radio Servs. Co. v. Espy, 79 F.3d

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896, 903 (9th Cir. 1996); Port of Astoria v. Hodel, 595 F.2d 467, 475 (9th Cir. 1979)

16

(holding that pecuniary losses and frustrated financial expectations that are not

17

coupled with environmental considerations are outside of NEPAs zone of interests

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and are not sufficient to establish standing).


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Plaintiff has not even attempted to link[] [its members] pecuniary interest in

21

mineral resource development to the physical environment or to an environmental

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interest contemplated by NEPA. Am. Independence Mines & Minerals Co. v. U.S.

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Dept of Agric., 733 F. Supp. 2d 1241, 1262 (D. Idaho 2010) (holding that mining
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25

companys interests were purely economic and outside the NEPA zone of interests).

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Plaintiff also has not demonstrated injury to its members aesthetic, recreational, or

27

environmental interests, and thus allowing Plaintiff to assert such claims is more likely

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Case 3:12-cv-08042-DGC Document 27 Filed 06/01/12 Page 21 of 24

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to frustrate than to further [NEPAs] objectives. Clarke v. Sec. Indus. Assn, 479 U.S.
388, 397 n.12 (1987). It would be difficult for Plaintiff to make such allegations

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4

because the withdrawal limits, rather than increases, mining development thereby

enhancing environmental interests. See Idaho Farm Bureau Fedn v. Babbitt, 900 F.

Supp. 1349, 1356 (D. Idaho 1995) ([agricultural organization] . . . cannot possibly

establish that the area of the river and the water in which they recreate or aesthetically

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9

enjoyed will be destroyed or harmed by the listing of the snails [under the Endangered

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Species Act].). At their core, Plaintiffs NEPA claims allege that BLMs

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environmental analysis was inadequate because it failed to consider information

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showing the feasibility of alternatives that allowed for more mining, see Compl. 80-

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14

84, 97-101, 110, 112, 118, 123, and because it incorrectly assessed the economic

15

impact of a withdrawal, id. 91. Given the nature of these allegations, it is clear

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NEPAs environmental objectives would not be furthered by allowing Plaintiff to

17

pursue its NEPA claims. See Wyoming v. U.S. Dept of the Interior, 674 F.3d 1220,

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1237 (10th Cir. 2012) (holding that State and county, which alleged injury because the
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20

National Park Service could have promulgated a rule allowing more snowmobiles into

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Grand Teton without adverse environmental effects, lacked standing because NEPA

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does not protect against such an injury) (emphasis added).

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Plaintiffs vague assertion that one of NWMAs purposes as a trade organization


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25

is to promote economic opportunity and environmentally responsible mining and that

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its principles include the protection of human health, the natural environment, and a

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prosperous economy, Compl. 5-6, do not bring the claims within the zone of

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Case 3:12-cv-08042-DGC Document 27 Filed 06/01/12 Page 22 of 24

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interests protected by NEPA. See Am. Independence Mines, 733 F. Supp. 2d at 1251
(finding plaintiffs who asserted intention to mine in a fashion that minimizes and/or

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4

mitigates and remediates environmental impact lacked standing to bring NEPA

claims). Plaintiff may not use ostensibly environmental concerns to mask its purely

economic interests. City of Williams v. Dombeck, No. 00CV66, 2000 WL 33675559, at

*3 (D.D.C. Aug. 17, 2000) (rejecting argument that plan to develop a model,

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9

environmentally-sustainable, gateway community on outskirts of Grand Canyon

10

National Park creates a cognizable environmental interest under NEPA). It is clear that

11

NWMAs ultimate interest is in the economic benefits derived from extracting

12

minerals from the land; this interest is not systematically aligned with NEPAs

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14

purpose, to prevent or eliminate damage to the environment. Cal. Forestry Assn v.

15

Thomas, 936 F. Supp. 13, 22 (D.D.C. 1996) (rejecting timber companies purported

16

environmental interest in a healthy forest because their ultimate interest is to

17

maximize the number of trees harvested) (quoting 42 U.S.C. 4321). Because its

18

organizational interests are at their core economic, NWMA lacks prudential standing to
19
20

bring NEPA claims on behalf of its members. See Ranchers Cattlemen, 415 F.3d at

21

1104 (association representing cattle producers lacked associational standing to bring

22

NEPA claims because there was no connection between the associations purposes and

23

environmental interests); see also Friends of the Earth, Inc. v. Laidlaw Envtl. Servs.,
24
25

528 U.S. 167, 181 (2000) (an organization can only bring an action on behalf of its

26

members if the interests at stake are germane to the organization's purpose).

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28

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Case 3:12-cv-08042-DGC Document 27 Filed 06/01/12 Page 23 of 24

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In sum, the Court should dismiss the third through sixth claims and those
portions of the second claim that are based on alleged NEPA violations because

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4

Plaintiff has failed to establish prudential standing.


CONCLUSION

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For the foregoing reasons, Defendants respectfully request that the Court dismiss
the complaint for lack of a justiciable case or controversy and that it also dismiss all

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NEPA claims for lack of prudential standing.


Dated: June 1, 2012
Respectfully Submitted,
IGNACIA S. MORENO,
Assistant Attorney General
Environment and Natural Resources Division
/s/ John S. Most
JOHN S. MOST, Trial Attorney
Virginia Bar, No. 27176
DOMINIKA TARCZYNSKA, Trial Attorney
New York Bar, No. 4431573
Natural Resources Section
P.O. Box 7611
Washington, D.C. 20044-7611
(202) 305-0447(Tarczynska)
202-616-3353 (Most)
202-305-0506 (fax)
DOMINIKA.TARCZYNSKA@USDOJ.GOV
JOHN.MOST@USDOJ.GOV

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Counsel for Defendants


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Case 3:12-cv-08042-DGC Document 27 Filed 06/01/12 Page 24 of 24

CERTIFICATE OF SERVICE

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I hereby certify that I have caused the foregoing to be served upon counsel of
record through the Courts electronic service system (ECF/CM).
Dated: June 1, 2012
/s/ John S. Most
Counsel for Federal Defendants

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