United States District Court, D. Alaska
RUSSEL HOLLAND UNITED STATES DISTRICT JUDGE
for Leave to File Amended Complaint
moves for leave to file an amended complaint. This motion is
opposed.Oral argument was requested but is not
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
2014, the BLM issued plaintiff a special recreation permit
that allows plaintiff to conduct commercial heli-skiing on
lands managed by the BLM in the Tordrillo and Neacola
Mountains. Plaintiff's permit was later extended for ten
February 2017, the BLM issued a special recreation permit to
Silverton Mountain Guides for heli-skiing in the Tordrillo
and Neacola Mountains, and in January 2018, the BLM issued a
special recreation permit to the Alaska Snowboard Guides
(ASG) for heli-skiing in the Tordrillo and Neacola Mountains.
March 5, 2018, plaintiff commenced this action to challenge
the BLM's issuance of a special recreation permit to ASG.
In its complaint, plaintiff asserted violations of the
National Environmental Policy Act (NEPA), the Federal Land
Policy and Management Act (FLPMA), and the Administrative
Procedures Act (APA). Defendants moved to dismiss
plaintiff's NEPA and APA claims, and on May 1, 2018, the
court granted the motion in part and denied it in
part. The court denied the motion as to the
issue of constitutional standing, finding that although
plaintiff did not have any recreational interest that could
be injured, plaintiff had adequately alleged injury to its
health and safety and procedural interests. The court granted
the motion to dismiss, however, as to the issue of whether
plaintiff had prudential standing to bring its NEPA claims,
finding that plaintiff's interest in human health and
safety did not fall within NEPA's zone of interests,
which also meant that its procedural interest did not fall
within NEPA's zone of interests. “Given the nature of
plaintiff's permitted activity, and the human health and
safety basis for plaintiff's NEPA claims, the court
conclude[d] that any attempt at amendment of plaintiff's
complaint would be futile.”As a result, plaintiff's
NEPA claims were dismissed with prejudice. The motion to
dismiss was also granted as to plaintiff's stand-alone
APA claim and this claim was dismissed with
9, 2018, plaintiff filed the instant motion. Plaintiff seeks
leave to amend its complaint to add two individual
plaintiffs, Michael Overcast and Steven Hall. Overcast is
“an owner and the General Manager of” plaintiff,
and Hall is a helicopter ski guide who works for
plaintiff. Overcast and Hall seek to assert NEPA and
FLMPA claims against defendants.
moves to amend pursuant to Rule 15(a)(2) of the Federal Rules
of Civil Procedure. “Rule 15(a) is very liberal and
leave to amend ‘shall be freely given when justice so
requires.'” AmerisourceBergen Corp. v.
Dialysist West, Inc., 465 F.3d 946, 951 (9th Cir. 2006)
(quoting Bowles v. Reade, 198 F.3d 752, 757 (9th
Cir. 1999)). The “court considers the following five
factors to assess whether to grant leave to amend: ‘(1)
bad faith, (2) undue delay, (3) prejudice to the opposing
party, (4) futility of amendment; and (5) whether plaintiff
has previously amended [its] complaint.'” In re
Western States Wholesale Natural Gas Antitrust Litig.,
715 F.3d 716, 738 (9th Cir. 2013) (quoting Allen v. City
of Beverly Hills, 911 F.2d 367, 373 (9th Cir. 1990)). Of
these factors, “prejudice to the opposing party . . .
carries the greatest weight.” Eminence Capital, LLC
v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003).
“Absent prejudice, or a strong showing of any of the
remaining . . . factors, there exists a presumption
under Rule 15(a) in favor of granting leave to amend.”
do not contend that plaintiff is acting in bad faith in
seeking to amend, and this is plaintiff's first request
to amend its complaint. There has also not been any undue
delay here. Plaintiff filed its original complaint six days
after it first learned that the BLM had issued a permit to
ASG and moved for leave to amend less than two weeks after
the court issued its order on defendants' motion to
dismiss. Although, as defendants point out, Overcast and Hall
could have been plaintiffs in this action from the outset,
any delay by plaintiff in attempting to add them as
plaintiffs has been slight, and not undue.
prejudice, defendants “‘bear the burden of
showing prejudice[.]'” Eminence Capital,
316 F.3d at 1052 (quoting DCD Programs, Ltd. v.
Leighton, 833 F.2d 183, 186-87 (9th Cir. 1987)).
Defendants argue that they will suffer prejudice if plaintiff
is allowed to file its proposed amended complaint because
adding Overcast, Hall and the NEPA claims “would
greatly change the parties' positions in the action, and
require the assertion of new defenses.” Phoenix
Solutions, Inc. v. Sony Electronics, Inc., 637 F.Supp.2d
683, 690 (N.D. Cal. 2009). Defendants also argue that
allowing plaintiff to amend to add Overcast, Hall, and the
NEPA claims means that they will have to relitigate claims
that have already been dismissed with prejudice.
that defendants have not yet filed an answer, allowing
plaintiff to amend would not require the assertion of new
defenses. Moreover, the merits of the NEPA claims have not
yet been litigated. All the court has decided is that
plaintiff did not have prudential standing to bring NEPA
claims. This case is in the early stages of development and
allowing plaintiff to amend will not prejudice defendants.
question then becomes whether allowing plaintiff to amend
would be futile. “‘Futility alone can justify the
denial of a motion to amend.'” Johnson v.
Buckley, 356 F.3d 1067, 1077 (9th Circ. 2004) (quoting
Nunes v. Ashcroft, 348 F.3d 815, 818 (9th Cir.
2003)). The parties' arguments as to whether amendment
would be futile focus on whether Overcast and Hall would have
Article III and prudential standing to bring NEPA claims.
‘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 v. Defenders of Wildlife, 504 U.S. 555, 560-61
(1992)). “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. v. Robins, 136 S.Ct. 1540, 1547
first argues that Overcast's and Hall's declarations
establish that their recreational interests have been
injured. A plaintiff can make such a showing by alleging use
of the affected area and that “‘the aesthetic and
recreational values of the area will be lessened by the
challenged activity.'” Ecological Rights
Foundation v. Pacific Lumber Co., 230 F.3d 1141, 1149
(9th Cir. 2000) (quoting Friends of the Earth, Inc. v.
Laidlaw Environmental Services (TOC), Inc., 528 U.S.
182-183 (2000)). Both Overcast and Hall aver that they use
the affected area. Both aver that they flew and skied in
the affected area in 2018 and that they plan to do so again
in 2019. Both also aver that the BLM's
decision to issue a special recreation permit to ASG has
injured their recreational interests because it has increased
the risks involved in using the area and because it has
diminished the availability of untracked snow. More
specifically, Overcast avers that twice in the 2018 season
that recently ended, he had to leave the area where he was
planning to ski because ASG was using it. Similarly,
Hall avers that twice this past season he had to avoid
terrain that he was going to ski because ASG was already
there. Plaintiff insists that this is
sufficient to show that Overcast and Hall have suffered
injury in fact to their recreational interests.
however, argue that the court's finding that plaintiff
lacked Article III standing to assert recreational injuries
bars plaintiff from seeking to amend its complaint to add
Overcast and Hall in order to cure this jurisdictional
problem. Defendants cite to Summit Office Park, Inc. v.
U.S. Steel Corporation, 639 F.2d 1278 (5th Cir. 1981),
in support. There, Summit's antitrust suit, brought on
behalf of itself and a putative class, was dismissed on
motion for summary judgment because an intervening Supreme
Court case held that indirect purchasers, which Summit was,
could not bring antitrust claims. Id. at 1280-81.
Right before the district court dismissed Summit's
complaint, Summit moved to amend its complaint to add two new
plaintiffs “who purported to be direct
purchasers.” Id. at 1281. The district court
denied Summit's motion to amend, and Summit appealed.
Id. The Fifth Circuit held that the district court
properly denied Summit's motion to amend because
“the original plaintiff was left with no cause of
action upon which it could recover as the result of an
intervening Supreme Court decision. There was no way in which
the plaintiff could properly amend the complaint to give it a
cause of action.” Id. at 1282. Defendants
argue that similarly here, the court has already held that
plaintiff does not have any recreational interest that could
be injured and thus there is no way plaintiff could properly
amend its complaint to add plaintiffs who could assert such
an injury. Defendants insists that “Rule 15 . . .
do[es] not allow a party to amend to create jurisdiction
where none actually existed.” Federal Recovery
Services, Inc. v. United States, 72 F.3d 447, 453 (5th
Cir. 1995) (citation omitted); see also, Lans v.
Gateway 2000, Inc., 84 F.Supp.2d 112, 116 (D.D.C. 1999)
(“when a plaintiff never had standing to assert a claim
against the defendant, plaintiff may not substitute a new
plaintiff, a new defendant, or a new claim for the purpose of
creating jurisdiction”); MAO-MSO Recovery II, LLC
v. Boehringer Ingelheim Pharmaceuticals, Inc., 281
F.Supp.3d 1309, 1316 (S.D. Fla. 2017) (“the original
Plaintiffs have failed to show that they have standing.
Accordingly, Plaintiffs lack standing to amend the complaint
to add new Plaintiffs who do have standing”); Lopez