|
. f '
<br />Page 13
<br />48 F. Supp. 2d 1303, *; 1999 U.S. Dist. LEXIS 7198, **;
<br />48 ERC (BNA) 1753
<br />However, even though the defendants may not
<br />submit additional evidence, the plaintiff may. This
<br />principle was recognized [*1311] in Warth Seldin,
<br />where the Supreme Court stated:
<br />For purposes of ruling on a motion to dismiss for want of
<br />standing, both the trial and reviewing courts must accept
<br />as true all material allegations of the complaint, and must
<br />construe the complaint in favor of the complaining party.
<br />At the same time, it is within the trial court's power to
<br />allow or require the plaintiff to supply, by amendment to
<br />the complaint or by affidavits, further particularized
<br />allegations of fact deemed supportive of plaintiffs
<br />standing. If, after this opportunity, the plaintiffs standing
<br />does not adequately [**20] appear from all materials of
<br />record, the complaint must be dismissed.
<br />422 U.S. 490, 501-02, 95 S. Ct. 2197, 45 L. Ed. 2d 343
<br />(1975).
<br />The Court also notes that the °zone of interests"
<br />requirement is not applicable to Plaintiff s claims under
<br />the ESA because the Supreme Court specifically found in
<br />Bennett v. Spear that citizen suit provision of the ESA
<br />(under which this lawsuit is brought) "negates the zone of
<br />interest test." 520 U.S. 154, 164, 117 S. Ct. 1154, 137 L.
<br />Ed. 2d 281 (1997). Thus, any "harm" claimed by the
<br />plaintiffs will suffice to show standing; the harm claimed
<br />need not be within the zone of interests contemplated by
<br />the statute.
<br />If the Court were only to look at the plaintiffs
<br />complaint, it would have no trouble concluding that its
<br />cryptic standing allegations have failed to meet the
<br />requirements of standing. In its Complaint, Plaintiff
<br />alleges that its members have a particularized interest in
<br />the preservation and recovery of species. (Compl. P 6.)
<br />This statement begs the question: What particularized
<br />interest is being claimed? Likewise, Plaintiff claims that
<br />if its complaint goes unaddressed, it will suffer serious
<br />adverse impacts to legally protected interests. (Compl. P
<br />8.) Again, such a statement begs the question. [**21]
<br />However, in its opposition to the federal defendants'
<br />motion to dismiss, Plaintiff has made standing a much
<br />closer question. Plaintiff attempts to satisfy the injury in
<br />fact requirement through the affidavits of Kurt S.
<br />Bucholz and William Kent Crowder, members of CSR.
<br />n4 Bucholz alleges that his water rights under Wyoming
<br />law have been injured due to restrictions imposed by the
<br />ESA and that due to the current restrictions on his water
<br />rights, he continues to be injured. (P1.'s Mem. Opp'n to
<br />Mot. to Dismiss, Ex. 2.) Crowder alleges that he is an
<br />avid outdoors-man, and on March 20, 1999, he took a
<br />trip to the Platte River in Nebraska to observe the listed
<br />species. (Pl.'s Mem. Opp'n to Mot. to Dismiss, Ex. 3.)
<br />Crowder further contends that he intends to return next
<br />year and due to the inadequate water flows which could
<br />force the extinction of the listed species, both his esthetic
<br />and recreational enjoyment will be irretrievably harmed.
<br />Id.
<br />n4 An association has standing if its members
<br />have standing to sue. See Hunt v. Washington
<br />Apple Advertising Comm'n, 432 U.S. 333, 343,
<br />53 L. Ed. 2d 383, 97 S. Ct. 2434 (1977). In its
<br />motion to dismiss Defendants argued that no
<br />associational standing could exist because CSR
<br />had no members. However, Plaintiff has produced
<br />an authentic copy of an amendment to CSR's
<br />articles of incorporation, filed two days before
<br />this lawsuit was filed, which shows that the
<br />association now has members. CSR's
<br />associational standing has not otherwise been
<br />challenged and the Court finds that such
<br />requirements are present in accordance with Hunt.
<br />**22
<br />The Court must fmd that these allegations are
<br />sufficient to show injury in fact. See Lujan, 504 U.S. at
<br />563 (stating that harm to observe an animal species, even
<br />for esthetic reasons, is a cognizabie interest for standing
<br />purposes).
<br />Regarding the second element of standing, that the
<br />injury must be fairly traceable to the challenged action,
<br />Plaintiff has met its burden. Plaintiffs Complaint
<br />generally states that the water shortages have harmed,
<br />and will continue to harm, [*1312] the listed species on
<br />the Platte River in Nebraska. Finally, Bucholz's affidavit
<br />generally states that USFS's actions have caused his
<br />water rights to be harmed. Giving the plaintiff every
<br />benefit of the doubt, the Court fmds that it has shown that
<br />the failure to implement proper vegetation and snow
<br />management techniques caused Bucholz's water rights
<br />restriction and the jeopardy to Crowder's future viewing
<br />of the listed species.
<br />As for redressability, however, the plaintiff has
<br />failed to carry its burden regarding Bucholz. There is no
<br />allegation that a favorable decision by this Court would
<br />free up Bucholz's water.
<br />As for Crowder, Plaintiff satisfies the redressability
<br />requirement at this stage. Plaintiff [**23] has submitted
<br />an abstract from the research paper of Charles F. Leaf,
<br />dated January 14, 1999. Mr. Leaf opines that
<br />environmentally sound patch-cutting techniques would
|