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WaterLegacy v. USDA Forest Service

United States District Court, D. Minnesota

September 30, 2019

WaterLegacy, Plaintiff,
v.
USDA Forest Service; Vicki Christiansen, in her official capacity as Chief of the USDA Forest Service; Constance Cummins, in her official capacity as Forest Supervisor of the Superior National Forest; and Poly Met Mining, Inc., Defendants. Minnesota Center for Environmental Advocacy, Center for Biological Diversity, and the W.J. McCabe Chapter of the Izaak Walton League of America, Plaintiffs,
v.
Vicki Christiansen, in her official capacity as Chief of the U.S. Forest Service; U.S. Forest Service; Sonny Perdue, in his official capacity as Secretary of Agriculture; Constance Cummins, in her official capacity as Supervisor of the Superior National Forest; and Poly Met Mining, Inc., Defendants. Save Our Sky Blue Waters, Save Lake Superior Association, and Sierra Club, Plaintiffs,
v.
United States; United States Forest Service; Vicki Christiansen, Chief of the U.S. Forest Service, in her official capacity; PolyMet Mining Corporation; and PolyMet Mining, Inc., Defendants. Center for Biological Diversity, Earthworks, and Save Our Sky Blue Waters, Plaintiffs,
v.
David Bernhardt, in his official capacity as Secretary of the U.S. Department of the Interior; U.S. Fish and Wildlife Service; Vicki Christiansen, in her official capacity as Chief of the U.S. Forest Service; U.S. Forest Service; and Poly Met Mining, Inc., Defendants.

          Paula G. Maccabee, Just Change Law Office, appeared for the plaintiff in No. 17-cv-276.

          Evan Mulholland, Minnesota Center for Environmental Advocacy, appeared for the plaintiffs in No. 17-cv-905.

          Marianne Dugan appeared for the plaintiffs in No. 17-cv-909.

          Marc D. Fink, Center for Biological Diversity, appeared for the plaintiffs in No. 17-cv-914.

          David Fuller, United States Attorney’s Office, District of Minnesota, appeared for the federal defendants in No. 17-cv-276, No. 17-cv-905, No. 17-cv-909, and No. 17-cv-914.

          Andrew Tweeten, United States Attorney’s Office, District of Minnesota, appeared for the federal defendants in No. 17-cv-276, No. 17-cv-905, No. 17-cv-909, and No. 17-cv-914.

          Shaun Pettigrew, United States Department of Justice, appeared for the federal defendants in No. 17-cv-909.

          Alison Finnegan, United States Department of Justice, appeared for the federal defendants in No. 17-cv-914.

          Jay C. Johnson, Venable LLP, appeared for Poly Met Mining, Inc., in No. 17-cv-276, No. 17-cv-905, No. 17-cv-909, and No. 17-cv-914.

          Monte A. Mills, Greene Espel PLLP, appeared for Poly Met Mining, Inc., in No. 17-cv-276, No. 17-cv-905, No. 17-cv-909, and No. 17-cv-914.

          ORDER

          JOAN N. ERICKSEN UNITED STATES DISTRICT JUDGE

         Poly Met Mining, Inc., controls the mineral rights on land located in the Superior National Forest through long-term leases. When these actions were commenced, the United States owned the surface rights to the land. Poly Met Mining seeks to build an open-pit mine on the land. The United States Forest Service refused to authorize surface mining on the land. To eliminate the conflict between Poly Met Mining’s desire to build an open-pit mine and the Forest Service’s management of the land, Poly Met Mining and the Forest Service proposed a land exchange, which is known as the NorthMet Project Land Exchange. In January 2017, the Forest Service issued a Final Record of Decision and approved the land exchange.

         Asserting violations of the Federal Land Policy and Management Act, WaterLegacy brought an action, No. 17-cv-276, against the Forest Service, the Chief of the Forest Service, and the Forest Supervisor of the Superior National Forest in January 2017. A few weeks later, WaterLegacy moved for a preliminary injunction. Poly Met Mining intervened as a defendant and moved to dismiss the action for lack of standing. Considering a litigation continency in the agreement between the Forest Service and Poly Met Mining, a representation that the Forest Service would not allow ground-disturbing activity on the federal land before the transfer of titles, and the issues raised with respect to WaterLegacy’s standing, the Court denied WaterLegacy’s motion for a preliminary injunction.

         In the meantime, three actions that relate to the NorthMet Project Land Exchange were commenced. In No. 17-cv-905, Minnesota Center for Environmental Advocacy, Center for Biological Diversity, and the W.J. McCabe Chapter of the Izaak Walton League of America brought an action against the Forest Service, the Chief of the Forest Service, the Forest Supervisor of the Superior National Forest, the Secretary of Agriculture, and Poly Met Mining for violations of the Federal Land Policy and Management Act. In No. 17-cv-909, Save Our Sky Blue Waters, Save Lake Superior Association, and Sierra Club brought an action against the United States, the Forest Service, the Chief of the Forest Service, and Poly Met Mining for violations of the Weeks Act and the National Environmental Policy Act. And in No. 17-cv-914, Center for Biological Diversity, Earthworks, and Save Our Sky Blue Waters brought an action against the Secretary of the Interior, the United States Fish and Wildlife Service, the Chief of the Forest Service, and the Forest Service for violations of the Endangered Species Act. Asserting that the plaintiffs lacked standing and that their claims were not ripe, Poly Met Mining moved to dismiss No. 17-cv-905, No. 17-cv-909, and No. 17-cv-914.

         After the United States House of Representatives passed the Superior National Forest Land Exchange Act of 2017, H.R. 3115, 115th Congress, the Court stayed the four actions pending Congress’s consideration of the Act and denied Poly Met Mining’s motions to dismiss without prejudice to their renewal. While the cases were stayed, the land exchange closed. The United States Senate did not pass the Act. After the conclusion of the 115th Congress, the Court lifted the stays.

         After the stays were lifted, Poly Met Mining renewed its motions to dismiss, and the plaintiffs in No. 17-cv-276, No. 17-cv-905, and No. 17-cv-909 moved for preliminary injunctions. The Court first considers the motions to dismiss. See Laclede Gas Co. v. St. Charles Cty., 713 F.3d 413, 416-17 (8th Cir. 2013).

         I. Motions to dismiss

         Poly Met Mining moved to dismiss the four actions on the ground that the plaintiffs lack standing under Article III of the U.S. Constitution. “An association has standing to bring suit on behalf of its members when its members would otherwise have standing to sue in their own right, the interests at stake are germane to the organization’s purpose, and neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.” Iowa League of Cities v. EPA, 711 F.3d 844, 869 (8th Cir. 2013) (quoting Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 181 (2000)). “Article III of the Constitution limits federal courts to deciding ‘Cases’ and ‘Controversies.’ For a legal dispute to qualify as a genuine case or controversy, at least one plaintiff must have standing to sue.” Dep’t of Commerce v. New York, 139 S.Ct. 2551, 2565 (2019). “To have standing, a plaintiff must ‘present an injury that is concrete, particularized, and actual or imminent; fairly traceable to the defendant’s challenged behavior; and likely to be redressed by a favorable ruling.’” Id. (quoting Davis v. Fed. Election Comm’n, 554 U.S. 724, 733 (2008)); see Iowa League of Cities, 711 F.3d at 869. “The party invoking federal jurisdiction bears the burden of establishing these elements.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992).

         “Standing is determined as of the commencement of the lawsuit.” Disability Support All. v. Heartwood Enters., LLC, 885 F.3d 543, 545 (8th Cir. 2018); see Nolles v. State Comm. for Reorg. of Sch. Dists., 524 F.3d 892, 901 (8th Cir. 2008); Steger v. Franco, Inc., 228 F.3d 889, 892 (8th Cir. 2000); Park v. Forest Serv., 205 F.3d 1034, 1038 (8th Cir. 2000) (“It seems to us that if redressability may not be established by a development that occurs after the commencement of the litigation, neither may an injury-in-fact.”). “At the pleading stage, general factual allegations of injury resulting from the defendant’s conduct may suffice, for on a motion to dismiss we ‘presum[e] that general allegations embrace those specific facts that are necessary to support the claim.’” Defenders of Wildlife, 504 U.S. at 561 (alteration in original) (quoting Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 889 (1990)); see Stalley v. Catholic Health Initiatives, 509 F.3d 517, 521 (8th Cir. 2007). “A court deciding a motion under Rule 12(b)(1) must distinguish between a ‘facial attack’ and a ‘factual attack.’” Osborn v. United States, 918 F.2d 724, 729 n.6 (8th Cir. 1990). To decide a facial attack, “the court restricts itself to the face of the pleadings, and the non-moving party receives the same protections as it would defending against a motion brought under Rule 12(b)(6).” Id. (citation omitted). “In a factual attack, the court considers matters outside the pleadings, and the non-moving party does not have the benefit of 12(b)(6) safeguards.” Carlsen v. GameStop, Inc., 833 F.3d 903, 908 (8th Cir. 2016) (quoting Osborn, 918 F.2d at 729 n.6); see Heartwood Enters., 885 F.3d at 547; cf. Faibisch v. Univ. of Minn., 304 F.3d 797, 801 (8th Cir. 2002) (“Because Faibisch’s approach would constrain the power of a court hearing a 12(b)(1) motion, we reject her contention that factual challenges arise only when a court considers matters outside the pleadings.”). Poly Met Mining’s motions present factual attacks.

         A. No. 17-cv-276 1. Complaint

         WaterLegacy commenced this action on January 30, 2017. The following paragraphs summarize its complaint.

         WaterLegacy “is a Minnesota non-profit organization founded to protect Minnesota’s water resources, wetlands, wildlife, and habitats and the communities that rely on them, particularly from the threat of copper-nickel mining in sulfide-bearing ore in Northeastern Minnesota.” Compl. ¶ 10. Many of its members live in northeastern Minnesota and use the Superior National Forest for recreational, educational, and scientific purposes. Id. One of its members “owns property in a Superior National Forest inholding a few miles cross-country from the federal land proposed to be exchanged, and watches wildlife and enjoys quietude that would be affected by the use of the federal lands for the proposed PolyMet mine.” Id. Several of WaterLegacy’s members “have canoed, waded, viewed plants and wildlife, and conducted scientific testing in the Superior National Forest on or near the federal lands proposed for exchange.” Id.

         The Forest Service is an agency within the United States Department of Agriculture. Id. ¶ 12. The Forest Service is “charged with the responsibility of managing natural resources within the national forests throughout the United States.” Id. Thomas Tidwell, the Chief of the Forest Service, is “the highest level official responsible for management actions carried out by the Forest Service - including the land exchange and process at issue herein.”[1] Id. ¶ 13. Constance Cummins is the Forest Supervisor of the Superior National Forest. Id. ¶ 14. She was the deciding officer on the Final Record of Decision, which approved the NorthMet Project Land Exchange. Id.

         The NorthMet Project Land Exchange “is a proposal to exchange 6, 650 acres of contiguous federal land in the Superior National Forest . . . for 6, 690 acres of private land in four tracts of land.” Id. ¶ 15. The Forest Service issued the Final Record of Decision on January 9, 2017. Id.

         The NorthMet Project Land Exchange “is proposed to allow [Poly Met Mining] to develop an open-pit copper-nickel mine in sulfur-bearing rock.” Id. ¶ 19. Poly Met Mining “controls mineral rights to the ore body it proposes to mine on the federal lands through long-term mineral leases. The United States owns the remainder of the property rights on the federal lands, including rights to the surface lands that would be removed to enable [Poly Met Mining] to access minerals as well as 181 acres of mineral rights on that [sic] are not part of PolyMet’s proposed open-pit mining proposed action.” Id. ¶ 20.

         “The federal lands are located adjacent to historic mining projects and are near other privately held land used for mining purposes.” Id. ¶ 21. “The federal lands proposed for the [NorthMet Project Land Exchange] and privately owned lands in the same vicinity are zoned Mining and Minerals by the City of Babbitt.” Id. ¶ 22.

         The federal land proposed for the NorthMet Project Land Exchange was purchased by the Forest Service under the authority of the Weeks Act. Id. ¶ 25. “The Forest Service has taken the position that the mineral rights that were reserved when lands were conveyed to the United States do not include the right to surface mine as proposed by [Poly Met Mining].” Id. ¶ 26. “Due to the inconsistency between National Forest management objectives and [Poly Met Mining’s] intended mining operations, in the absence of the [NorthMet Project Land Exchange] the Forest Service is not willing or able to authorize such private, surface mining operations on lands of the Superior National Forest.” Id. ¶ 27. “The Forest Service’s stated purpose and need for the [NorthMet Project Land Exchange] is to eliminate the conflict between [Poly Met Mining’s] desire to surface mine and the Forest Service ownership and management of Superior National Forest lands and avoid the potential that [Poly Met Mining] would litigate in order to secure the right to surface mine on the federal lands.” Id. ¶ 28. “No permits have been issued for the proposed [Poly Met Mining] open-pit copper-nickel mine.” Id. ¶ 30. Poly Met Mining will have to secure many state and federal permits to proceed with development of the proposed mine.[2] Id.

         The Forest Service’s approval of the NorthMet Project Land Exchange was based on an appraisal by Compass Land Consultants, Inc. Id. ¶ 31. Based on the appraisal, the Forest Service’s Final Record of Decision states that the value of the federal land is $3, 658, 000 and that the value of the non-federal land is $4, 083, 000. Id. ¶ 34. As part of the land exchange, the Forest Service proposes to pay Poly Met Mining $425, 000. Id.

         The valuation of the federal land by Compass Land Consultants “was based only on the highest and best use for ‘timber investment.’” Id. ¶ 36. “Sales comparisons were made with land only used for timber purposes.” Id. ¶ 37. The properties used for sales comparisons are in Wisconsin or Michigan. Id. Under the sales comparison approach, Compass Land Consultants valued the federal land at $615/acre. Id. ¶ 38. Compass Land Consultants also used an income approach to value the federal land at $466/acre. Id. ¶ 39. Ultimately, Compass Land Consultants appraised the federal land at $550/acre. Id.

         Compass Land Consultants identified nine sales of land in northeastern Minnesota to mining companies by private parties from 2008 to 2012. Id. ¶ 40. Prices ranged from $624/acre to $2556/acre. Id. “[N]one of these Northeastern Minnesota sales of land to mining companies by private parties and no other sales of land to mining companies by private parties were considered by the [Compass Land Consultants] appraisal in determining the reasonable highest and best use of the federal property or the market value of the federal property, and none were considered by the Forest Service in approving the [NorthMet Project Land Exchange].” Id. ¶ 41.

         WaterLegacy’s Complaint contains three claims for relief. Each invokes the Administrative Procedures Act and the Federal Land Policy and Management Act. The first claim for relief asserts a failure to establish equal value of federal and non-federal lands. The second asserts an arbitrary, capricious, and unlawful failure to consider the highest and best use of the federal land for mining. The third asserts an arbitrary, capricious, and unlawful failure to use comparable sales in determining market value. WaterLegacy sought injunctive and declaratory relief.

         2. Standing

         Poly Met Mining moved to dismiss No. 17-cv-276 on the ground that WaterLegacy lacks standing under Article III of the U.S. Constitution. Poly Met Mining asserted that WaterLegacy’s members are not injured by the land exchange because the federal land is inaccessible to the public. Any claim of injury based on the use of the federal land for the proposed mine, Poly Met Mining argued, lacked the imminence needed to establish WaterLegacy’s standing. Finally, Poly Met Mining maintained that WaterLegacy cannot fairly trace any potential injury from the proposed mine to the Forest Service’s land exchange decision.

         WaterLegacy responded that the land exchange “would effectuate immediate on-the-ground changes in ownership, management and land use that would harm the interests of [its] members.” It asserted that its members would be injured by loss of access to the federal land, by the loss of the Forest Service’s management of the federal land, by logging and construction activities, and by other activities permitted by zoning and private ownership resulting from the land exchange. WaterLegacy maintained that it “has standing based on the interests of its members who use and enjoy the subject federal lands and intend to do so in the future, which interests would be injured by the proposed PolyMet land exchange.” WaterLegacy also argued that its “standing under Article III must … be sustained in light of the intended use of the property for an open-pit copper-nickel mine.”

         The Final Record of Decision does not authorize Poly Met Mining to build a mine. It states:

A final decision on the land exchange will not authorize PolyMet’s mining proposal to occur. Other governmental entities have the responsibility and authority to make decisions related to permitting the mining project, primarily the State of Minnesota and the U.S. Army Corps of Engineers …. The Forest Service assumes no responsibility for enforcing laws, regulations or policies under the jurisdiction of other governmental agencies.

         The Final Record of Decision acknowledges “the myriad of final permitting and financial assurance specifications for mining activities on the land to be conveyed.” When it commenced suit, WaterLegacy recognized “the many state and federal permits” that Poly Met Mining still had to secure to develop the mine. To the extent WaterLegacy asserted that it has standing based on “the intended use of the property for an open-pit copper-nickel mine, ” it presented neither “an injury that is concrete, particularized, and actual or imminent” nor an injury that is “fairly traceable to the defendant’s challenged behavior.” Dep’t of Commerce, 139 S.Ct. at 2565; see Defenders of Wildlife, 504 U.S. at 560-62. Similarly, unless and until Poly Met Mining secures the permits needed to build its mine, nothing in the record indicates it intends any changes to the federal land after the land exchange that would affect those not on the property. See Summers v. Earth Island Inst., 555 U.S. 488, 494-96 (2009). The Court turns to whether WaterLegacy has standing based on the inability of its members to use the federal land after the land exchange.

         The Supreme Court has held that “environmental 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.” Laidlaw Envtl. Servs., 528 U.S. at 183; see Sierra Club v. Kimbell, 623 F.3d 549, 557 (8th Cir. 2010) (stating that “[s]tanding can be based on harms to recreational or even aesthetic interests”); Desert Citizens Against Pollution v. Bisson, 231 F.3d 1172, 1176 (9th Cir. 2000) (“The recreational or aesthetic enjoyment of federal lands is a legally protected interest whose impairment constitutes an actual, particularized harm sufficient to create an injury in fact for purposes of standing.”). “Having a ‘specific and concrete plan … to enjoy the national forests’ distinguishes a particular harm to a recreational interest from mere generalized harm. When the plaintiff is a group, this plan must belong to an identified group member, not merely to the group at large.” Ouachita Watch League v. U.S. Forest Serv., 858 F.3d 539, 542-43 (8th Cir. 2017) (alteration in original); see Summers, 555 U.S. at 494; Ecological Rights Found. v. Pac. Lumber Co., 230 F.3d 1141, 1149 (9th Cir. 2000) (“[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.”).

         The Final Record of Decision states that “[t]he federal parcel is mostly surrounded by private land, lacks public overland access and experiences little if any current recreation, hunting or gathering use.” WaterLegacy relied on affidavits and declarations of two members, Rory Scoles and Robert Tammen, to establish its standing.

         a. Scoles

         In an affidavit dated January 27, 2017, Scoles stated that he lives one mile outside of the Superior National Forest; that he hikes, camps, canoes, kayaks, snowshoes, cross-county skis, and guides back-country tours in the summer and winter; that he does these activities in the Superior National Forest near the federal land proposed for the exchange; that he “portaged [his] canoe about a mile and a half on the railroad and explored a creek to get up to where [he] could canoe the whole stretch of the Partridge River starting at the proposed PolyMet site”; that, “[o]n two occasions, [he has] canoed, hunted grouse and duck, and explored the woods on the proposed PolyMet mine site and the proposed PolyMet land exchange site”; and that “WaterLegacy helped with logistics and volunteers to support a canoe flotilla from the proposed PolyMet site to St. Paul that [his] family, and [their] neighbors, including indigenous people, led in 2012.”

         Poly Met Mining noted that Scoles did not indicate that he plans to return to the federal land proposed for exchange and that the public inaccessibility of the land “makes it impossible for WaterLegacy’s members to have the requisite ‘firm intentions.’” WaterLegacy filed a supplemental affidavit of Scoles, which is dated March 24, 2017. In it, Scoles stated that, “[i]f the proposed PolyMet land exchange site remains in the Superior National Forest and is not fenced off, graded, clear-cut or otherwise degraded as a result of the proposed PolyMet land exchange, [he] intend[s] to return to this site this coming summer and in the future to hunt, portage, canoe and otherwise enjoy the site for recreation, back wood aesthetics, and to seek food for [his] family.”

         Poly Met Mining responded that “[i]t is neither legal nor feasible for [Scoles] to visit the land being transferred to PolyMet.” Poly Met Mining stated that the railroad tracks mentioned in Scoles’ initial affidavit “are not public land”; that walking on them constitutes trespass; that Poly Met Mining “is unaware of any way to access the [federal land proposed for exchange] that does not involve either trespass on private property, potentially insurmountable obstacles, or both”; that Poly Met Mining is not aware of “anyone using water routes to access the property”; and that “[a]ny effort to create such a water route, if it were possible at all, would involve serious physical challenges, including shallow and rocky water, beaver dams, a lack of public portage routes, fallen [trees] in the water, and brush covering the water and banks.” In support, Poly Met Mining filed a declaration of Kevin Pylka, its manager of environmental permitting and compliance. Pylka attached copies of title documents to demonstrate the interest of Cliffs Erie, L.L.C., and related entities in the railroad right of way, a map that displayed surface ownership interests around the federal land proposed for exchange, and photographs of various bodies of water near the federal land.

         In a declaration that WaterLegacy filed on April 25, 2017, Scoles stated, “After scouting briefly along the rail bed on foot, my two trips to enjoy the proposed PolyMet land exchange site and the Superior National Forest area just south of the site were made by canoe, paddling up the Partridge River from land also within the Superior National Forest.” He acknowledged that “there are some places on the Partridge River where [he] had to portage.” He asserted that the pictures attached to Pylka’s declaration did not portray features that would render the areas inaccessible.

         After the stay was lifted, WaterLegacy filed a supplemental declaration of Scoles, which is dated February 11, 2019. In it, he summarized two trips to the federal land he made as of April 2017:

As of April 2017, I had taken two trips to the PolyMet land exchange site in the Superior National Forest. For each of these trips, after scouting briefly along the rail bed on foot, I enjoyed the PolyMet land exchange site and canoed on the Partridge River south of the site. I explored the woods, hunted grouse and duck, and saw a moose and her calf just south of the site near where the power line crosses the Partridge River.

         Scoles stated that he “scouted the South Branch of the Partridge River, the Partridge River, and the PolyMet land exchange site by canoe and on foot” in late summer 2017. In addition, he “guided a group to the PolyMet land exchange site” over the Labor Day weekend in 2017:

We canoed from Superior National Forest land on the South Branch of the Partridge River to the PolyMet land exchange site in one day and then returned to camp overnight at the confluence of the South Branch River and the Partridge River. Our group included elders and people with a modest level of outdoors experience, and they were quite capable of portaging over the several beaver dams on our route and navigating canoes through the large culvert beneath the railroad tracks just south of the PolyMet land exchange site to reach the site itself.

         The Court finds Scoles’s statements insufficient to establish WaterLegacy’s standing. His first affidavit, signed a few days before WaterLegacy commenced this action, described past visits to the federal land without expressing any intent to return. In his second affidavit, dated March 24, 2017, Scoles asserted his intent to return to the federal land “this coming summer and in the future.” He did not assert he had a concrete plan to return to the site when WaterLegacy commenced this action, and he did not describe how he intended to overcome legal and practical difficulties in accessing the site. See Minn. Stat. § 609.85. In his April 2017 declaration, Scoles questioned the access issues described by Pylka without asserting he had a concrete plan to return to the site when WaterLegacy sued. In his February 2019 declaration, he described visits to the site made before WaterLegacy commenced this action and visits to the site made in summer 2017. Because Scoles did not set forth a specific and concrete plan to return to the federal land when WaterLegacy commenced this action, the Court finds his statements insufficient to establish WaterLegacy’s standing.

         b. ...


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