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Triumvirate, LLC v. Zinke

United States District Court, D. Alaska

May 1, 2018

RYAN ZINKE, in his capacity as Secretary of the Interior, et al., Defendants.


          H. Russel Holland, United States District Judge

         Motion to Dismiss

         Defendants move to dismiss plaintiff's complaint.[1] The motion to dismiss is opposed.[2] Oral argument was not requested and is not deemed necessary.


         Plaintiff is Triumvirate, LLC, d/b/a as Tordrillo Mountain Lodge. Defendants are Ryan Zinke, in his capacity as the Secretary of the Interior; the U.S. Department of Interior; the U.S. Bureau of Land Management, an agency of the U.S. Department of Interior; and Brian Steed, Deputy Director of the U.S. Bureau of Land Management, exercising authority as the Director.

         In 2012, plaintiff submitted an application to the BLM for a special recreation permit that would allow plaintiff to conduct commercial heli-skiing on lands managed by the BLM in the Tordrillo and Neacola Mountains. This region includes the Neacola Mountains Area of Critical Environmental Concern (ACEC), an area designated as such because of its scenic value.

         After plaintiff submitted its application, the BLM conducted an environmental assessment (EA) because a portion of the lands carry the ACEC designation. Plaintiff paid for half of the cost of doing the EA. In the EA, the BLM determined that plaintiff's proposed operations were consistent with the Ring of Fire Resource Management Plan, which “provides overall long-term management direction for the lands encompassed by the proposed project.”[3]

         On February 20, 2014, the BLM issued a Record of Decision and a Finding of No Significant Impact.[4] The BLM found that “[a]uthorizing the requested SRP will provide a unique recreational experience in a remote and primitive setting, consistent with the RMP/ROD goals for the Neacola ACEC . . . without compromising other resource values, specifically, the visual resources or wilderness characteristics. . . .”[5] Plaintiff's one-year special recreation permit was issued the same day. Plaintiff's permit was later extended for ten years.

         In 2016, Silverton Mountain Guides applied for a special recreation permit for heli-skiing in the Tordrillo and Neacola Mountains. “Using a Determination of NEPA Adequacy (DNA), the BLM determined that the previous EA sufficiently analyzed the potential environmental impacts. . . .”[6] In February 2017, the BLM issued a special recreation permit to Silverton Mountain Guides. Plaintiff contends that it first learned that Silverton Mountain Guides had been issued a permit when one of its helicopter pilots encountered a Silverton Mountain Guides' helicopter while flying.[7] Michael Overcast, plaintiff's owner and general manager, avers that he immediately expressed his concerns to the BLM about “stacking additional helicopter ski operators in the same terrain” because “it creates safety hazards, unnecessarily increases risk, and degrades the recreation resource.”[8]

         Overcast avers that in December 2017, he heard a rumor that the BLM may have issued a special recreation permit to Alaska Snowboard Guides (ASG) and so he contacted Stephanie Kuhns with the BLM.[9] Overcast avers that Kuhns told him there was a pending application for a permit and that he “replied that Triumvirate was opposed to the issuance of an additional helicopter ski permit [in] the area where it operates.”[10]

         On January 28, 2018, the BLM issued a Record of Decision (ROD) to grant a special recreation permit to ASG to conduct heli-skiing operations in the Tordrillo and Neacola Mountains.[11] The BLM again used a DNA to determine that the previous EA sufficiently analyzed any environmental impacts.[12] In the DNA, the BLM determined that ASG's proposed project was nearly identical to plaintiff's project, that there were no new information or circumstances to consider, and that “the direct, indirect, and cumulative effects that would result from the implementation of the new proposed action [were] similar (both quantitatively and qualitatively) to those analyzed in the existing” EA.[13] The BLM also noted that while there had been no public comment on ASG's permit application, it had “reach[ed] out to the two previously permitted guides for their opinions on the possibility of a new operator entering the same area. The original operator (Triumvirate) was vehemently opposed to allowing another operator, while the most recently permitted operator (Silverton) was not opposed to the addition of a third operator.”[14]

         On March 5, 2018, plaintiff commenced this action to challenge the BLM's issuance of a special recreation permit to ASG. In its complaint, plaintiff asserts violations of the National Environmental Policy Act (NEPA), the Federal Land Policy and Management Act (FLPMA), and the Administrative Procedures Act (APA).

         Defendants now to move to dismiss plaintiff's complaint.


         First, pursuant to Rule 12(b)(1), Federal Rules of Civil Procedure, defendants move to dismiss plaintiff's complaint on the ground that plaintiff lacks constitutional standing. “‘Because standing . . . pertain[s] to federal courts' subject matter jurisdiction, [it is] properly raised in a Rule 12(b)(1) motion to dismiss.'” Carijano v. Occidental Petroleum Corp., 643 F.3d 1216, 1227 (9th Cir. 2011) (quoting Chandler v. State Farm Mut. Auto. Ins. Co., 598 F.3d 1115, 1122 (9th Cir. 2010)). “A Rule 12(b)(1) jurisdictional attack may be facial or factual.” Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). “In a facial attack, the challenger asserts that the allegations contained in a complaint are insufficient on their face to invoke federal jurisdiction. By contrast, in a factual attack, the challenger disputes the truth of the allegations that, by themselves, would otherwise invoke federal jurisdiction.” Id. Here, defendants have made a factual attack. “In resolving a factual attack on jurisdiction, the district court may review evidence beyond the complaint without converting the motion to dismiss into a motion for summary judgment.” Id. “The court need not presume the truthfulness of the plaintiff's allegations.” Id. “The plaintiff . . . bears the burden of proof to establish standing ‘with the manner and degree of evidence required at the successive stages of the litigation.'” Wash. Envtl. Council v. Bellon, 732 F.3d 1131, 1139 (9th Cir. 2013) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992)). “‘[A]t the pleading stage, general factual allegations of injury resulting from the defendant's conduct may suffice[.]'” Id. at 1139 (quoting Lujan, 504 U.S. at 561).

         “The ‘irreducible constitutional minimum of standing' consists of three elements: the plaintiff must have (1) suffered an injury in fact; (2) that was caused by the defendant's challenged conduct; and (3) that would be redressed by the remedy the plaintiff seeks.” Desert Water Agency v. U.S. Dep't of the Interior, 849 F.3d 1250, 1253 (9th Cir. 2017) (quoting Lujan, 504 U.S. at 560-61). Defendants argue that plaintiff has not shown that it suffered an injury in fact, “the ‘[f]irst and foremost' of standing's three elements.” Spokeo, Inc. v. Robins, 136 S.Ct. 1540, 1547 (2016) (quoting Steel Co. v. Citizens for Better Environment, 523 U.S. 83, 103 (1998)).

         “A plaintiff establishes injury in fact, if he or she suffered ‘an invasion of a legally protected interest' that is ‘concrete and particularized' and ‘actual or imminent, not conjectural or hypothetical.'” Van Patten v. Vertical Fitness Group, LLC, 847 F.3d 1037, 1042 (9th Cir. 2017) (quoting Spokeo, Inc., 136 S.Ct. at 1547). The “injury must have actually occurred or must occur imminently; hypothetical, speculative or other ‘possible future' injuries do not count in the standings calculus.” Schmier v. U.S. Court of Appeals for Ninth Circuit, 279 F.3d 817, 821 (9th Cir. 2002).

         First, plaintiff alleges injury to its economic interests.[15] Overcast avers that the January 28, 2018 decision “injures Triumvirate because it authorizes more skiers and more helicopters to access the same terrain, thereby creating competition for the prime skiing locations.”[16] He further avers that “[a] significant degradation of the powder skiing recreation resource will occur” and that this will “likely result in a reduction in business viability.”[17] He avers that the January 28, 2018 “decision injures Triumvirate's operational, business, and economic interests in marketing a premium helicopter skiing experience to guests by increasing the number of third parties and helicopters that access the same terrain.”[18]

         Plaintiff points out that the Supreme “Court routinely recognizes probable economic injury resulting from [governmental actions] that alter competitive conditions as sufficient to satisfy the [Article III ‘injury-in-fact' requirement]. . . . It follows logically that any . . . petitioner who is likely to suffer economic injury as a result of [governmental action] that changes market conditions satisfies this part of the standing test.” Clinton v. City of New York, 118 S.Ct. 2091, 2100 (1998) (citation omitted). Here, plaintiff argues that it has presented evidence, in the form of Overcast's declaration, that the introduction of a third operator into the area in which plaintiff operates will harm plaintiff's economic interest. Plaintiff argues that this is sufficient to show that it has constitutional standing.

         Overcast's averments are not sufficient to establish that plaintiff has suffered an injury in fact to its economic interest. The economic harm that Overcast claims is hypothetical and speculative. Plaintiff has offered nothing to show that it is in fact suffering economic harm as a result of the January 28, 2108 decision or that it is likely to suffer such harm. It is worth noting that ASG has now had its special recreation permit for three months, but plaintiff has not offered any specific evidence that ASG is actually bringing heli-skiers to the Tordrillo and Neacola Mountains or any specific evidence as to how its economic interest has been affected because ASG has a permit to operate in the same area.

         Plaintiff also alleges that it has suffered an injury to its recreational interest.[19] Plaintiff alleges that the January 28, 2018 decision “degrades the overall quality of the powder skiing resource. . . .”[20] Overcast avers that “[p]owder snow is a finite resource that cannot be skied over and over and expect our guests to enjoy.”[21] “While ‘generalized harm' to the environment isn't enough to supply standing, the Supreme Court has emphasized that particularized harm to ‘recreational' or even ‘mere esthetic interests' is sufficient.” In re Big Thorne Project, 857 F.3d 968, 973-74 (9th Cir. 2017) (quoting Summers v. Earth Island Institute, 555 U.S. 488, 494 (2009)). Plaintiff insists that as the holder of a BLM-issued “special recreation permit”, it has a recreational interest in favorable ski conditions.

         However, “business entities generally do not have aesthetic or recreational interests, and they cannot support their standing by asserting the aesthetic or recreational interests of their employees or customers.” United States v. W. Radio Services Co., 869 F.Supp.2d 1282, 1286 n.2 (D. Or. 2012). Any recreational interest in untracked powder runs would belong to plaintiff's customers, not to plaintiff. The fact that plaintiff has a “special recreation permit” from the BLM does not change that. The permit allows plaintiff to provide heli-skiing for its customers on BLM-managed land. But, the permit does not give plaintiff any recreational interest in untracked powder runs.

         Plaintiff also alleges that its interest in human health and safety has been injured as a result of the January 28, 2018 decision because the addition of a third heli-skiing operator increases the risk of avalanches and catastrophic accidents.[22] Overcast avers that

[i]f multiple operators are stacked on the same terrain, they compete for the limited terrain that is suitable and available that day. That creates an incentive for one operator to access it before the other operator to provide the guests with untracked snow. That incentive works against efforts to minimize avalanche risk. It is difficult to build in geographic buffers from multiple operators if all may access the same limited terrain. Stacking operators in the same terrain creates the risk that one group may inadvertently ski onto terrain above a group from another operator, potentially causing an avalanche. There have been several close calls in Valdez due to this. Permitting multiple operators in the same area increases the risk of a catastrophic mid-air accident between helicopters from different operators.[23]

         Overcast further avers that

[r]ather than factor in one other operator that flies on rare occasions with a single helicopter - Silverton - Triumvirate's heli-ski guides and pilots now are faced with the wild card factor of a third operator [ASG] who plans to fly several helicopters in the Neacola and Tordrillo Mountains, creating risks, hazards, and ...

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