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<br />48 F. Supp. 2d 1303, *; 1999 U.S. Dist. LEXIS 7198, **;
<br />48 ERC (BNA) 1753
<br />Supreme Court dismissed the Sierra Club's claims
<br />because they were not ripe. See id. at 1673.
<br />The Supreme Court had three grounds for fmding
<br />that the case was not ripe. These reasons and the Court's
<br />analysis are instructive and reveal substantial problems
<br />with the case at bar. Looking to the two factors
<br />enunciated above, Justice Breyer first noted that to
<br />withhold the court's consideration would not cause
<br />"hardship" to the parties. See id. at 1670. The provisions
<br />of the Forest Plan the Sierra Club challenged did not
<br />create adverse effects of a strictly legal kind, "that is, the
<br />effects of [**28] a sort that traditionally would have
<br />qualified as hann." Id. The Forest Plan did not
<br />"command anyone to do anything or to refrain from
<br />doing anything; they [did] not grant, withhold, or modify
<br />any formal legal license, power or authority; they [did]
<br />not subject anyone to civil or criminal liability; they [did]
<br />not create legal rights or obligations." Id. Further, the
<br />Supreme Court found that because the Forest Service had
<br />to follow certain procedures before a site could be
<br />logged, the Sierra Club could bring an action when the
<br />harm was more imminent. See id.
<br />Second, the Supreme Court found that from the
<br />agency's perspective, immediate judicial review at the
<br />lawfulness of logging and clearcutting could hinder
<br />agency efforts to refine its policies through revision or
<br />through application of the plan in practice. See id. at
<br />1671.
<br />Third, from the court's perspective, review of the Sierra
<br />Club's claims regarding logging and clearcutting now
<br />would require time-consuming judicial consideration of
<br />the details of an elaborate, technically based plan, which
<br />predicts consequences that may affect many different
<br />parcels of land in a variety of ways and which effects
<br />[**29] themselves change over time. ... All this is to say
<br />that further factual development would 'significantly
<br />advance our ability to deal with the legal issues present'
<br />and would 'aid us in their resolution.'
<br />Id. at 1671-72 (quoting, in part, Duke Power Co. v.
<br />Carolina Environmental Study Group, Inc., 438 U.S. 59,
<br />82, 57 L. Ed. 2d 595, 98 S. Ct. 2620 (1978)). As the
<br />Court will explain, these same considerations compel
<br />finding that this case is not ripe for judicial resolution.
<br />[*1314] But before the Court compares Ohio
<br />Forestry to the instant case, a few additional facts worthy
<br />of consideration must be discussed. n7 The Intervenors
<br />have pointed out, and this Court tends to agree, that the
<br />main concern of the Plaintiff in this case is not the
<br />endangered species in the Platte River Basin, but in fact
<br />is the exercise of CSR's members' water rights along the
<br />Platte River that are currently restricted by the ESA.
<br />Indeed, it was not until March 20, 1999, that CSR got
<br />one of its members to attempt to observe the endangered
<br />species on the Platte River in Nebraska. Obviously, this
<br />was a sham attempt to show "harm."
<br />n7 The Tenth Circuit has expressly
<br />recognized that a motion to dismiss on ripeness
<br />gounds is a motion pursuant to 12(b)(1) and facts
<br />outside the pleadings may be considered. See SK
<br />Finance SA v. Board of County Comm'rs, 126
<br />F.3d 1272, 1275 (IOth Cir. 1997).
<br />**30
<br />Further, on July 1, 1997, the United States Secretary
<br />of the Interior, and the Governors of Colorado,
<br />Wyoming, and Nebraska, entered into a cooperative
<br />agreement establishing a comprehensive study of the
<br />endangered species dependent on the Platte River.
<br />(Interv.'s Mem. in Supp. of Mot. to Dismiss, Ex. A.) This
<br />agreement is known as the Platte River Endangered
<br />Species Partnership. The Deparhnent of Interior and the
<br />three participating states have established a budget of $
<br />2.9 million per year for the three years anticipated for the
<br />study. In addition to the governmental participants, many
<br />interested parties have participated in the Partnership. To
<br />date, the Partnership has conducted 11 public meetings in
<br />Nebraska, Wyoming, and Colorado, with nearly 500
<br />attendees.
<br />Finally, USFS is currently revising the Medicine
<br />Bow Forest Plan. This detailed process will be completed
<br />in 2001.
<br />Given these facts, the Court sees many similarities
<br />between this case and Ohio Foresriy. First, although this
<br />case is brought under the guise of the ESA, this case is
<br />really about the Forest Plan currently in place in the
<br />Medicine Bow. One need only look at CSR's complaint
<br />to recognize this. Second, although [**31] this case is
<br />brought under the ESA, this case is really about CSR's
<br />members' water rights along the Platte River. CSR's
<br />members are really concerned with their ability to sell
<br />their water. As such, while the fact that this case is
<br />brought under the ESA normally would distinguish the
<br />harms between these two cases, that is not the case here
<br />because these cases are, at their core, both about
<br />challenging forest plans. n8 When one accepts this
<br />general proposition, the plaintiff will not suffer hardship
<br />if the Court fails to address their concerns in this lawsuit.
<br />The plaintiff can go through the proper channels
<br />designed to solve the problem in this case, the
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