Western Wood Preservers Institute v. McHugh

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
WESTERN WOOD PRESERVERS
INSTITUTE, et al.,
Plaintiffs,
Civil Action No. 12-1253 (ESH)
v.
JOHN M. McHUGH, Secretary
of the Army, et al.,
Defendants.
MEMORANDUM OPINION
Plaintiffs Western Wood Preservers Institute, Treated Wood Council, Southern Pressure
Treaters’ Association, Creosote Council, and Railway Tie Association (“plaintiffs”) sued John
M. McHugh in his official capacity as the Secretary of the Army, the United States Army Corps
of Engineers, and Rebecca Blank in her official capacity as Acting Secretary of Commerce
(“defendants” or “Corps”). Plaintiffs challenged the Corps’ approval of two regional conditions
to nationwide permits under the Clean Water Act, as well as the issuance of certain operating
procedures for activities that are regulated by that Act.
On February 27, 2013, this Court held that plaintiffs lacked standing to bring their claims,
and further dismissed certain of plaintiffs’ claims for failure to state a claim under Rule 12(b)(6).
See Western Wood Preservers Inst. v. McHugh, No. 12-cv-1253, 2013 WL 692789 (D.D.C. Feb.
27, 2013) (“WWPI I”). Plaintiffs have now moved for leave to file a Third Amended Complaint,
or, in the alternative, for reconsideration of this Court’s earlier ruling. (Mar. 20, 2013 [ECF No.
20] (“Mot.”).) For the reasons stated below, plaintiffs’ motion for reconsideration is granted in
part and denied in part, and their motion for leave to amend is denied.
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BACKGROUND
The factual background of this case was laid out in this Court’s initial ruling. See WWPI
I, 2013 WL 692789, at *1-3.
In that ruling, the Court granted defendants’ motion to dismiss plaintiffs’ complaint for
lack of standing under Rule 12(b)(1) and for failure to state a claim under Rule 12(b)(6). See id.With respect to standing, the Court first found that plaintiffs could not establish associational
standing because they had not identified a single member firm that had suffered the alleged
economic harm. Id., at *3-4. The Court further concluded that the associations themselves had
not sufficiently alleged any environmental or procedural harm and did not have prudential
standing to sue under the National Environmental Policy Act. Id., at *4-8. Finally, the Court
held that plaintiffs had failed to state a claim under the Regulatory Flexibility Act (“RFA”) and
the Endangered Species Act (“ESA”). Id., at *8-11.
Plaintiffs now seek leave to file a Third Amended Complaint with two additional
plaintiffs, both members of organizational plaintiff Western Wood Preservers Institute. (See
Mot. at 1-2.) They also seek reconsideration of the Court’s Rule 12(b)(6) dismissal of their
claims under the RFA and ESA, but do not challenge the dismissal of their claims under the
NEPA for lack of prudential standing. (See id. at 1-3 & n.1.)
ANALYSIS
I. STANDING
A. Leave to Amend
Plaintiffs seek leave to amend their complaint under Rule 15(a), which provides that
leave to amend should be freely given “when justice so requires.” Fed. R. Civ. P. 15(a)(2).
Defendants, however, insist that the Court’s order granting their motion to dismiss amounted to
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an entry of final judgment, such that plaintiffs must meet the standard under Rule 59(e) for a
motion to reconsider. (See Opposition to Plaintiffs’ Motion for Leave to File Third Amended
Complaint, May 1, 2013 [ECF No. 23] (“Opp’n”) at 1-2, 4-5.) Reconsideration under Rule 59(e)
is a “more stringent standard,” under which leave to amend “need not be granted unless the
district court finds that there is an ‘intervening change of controlling law, the availability of new
evidence, or the need to correct a clear error or prevent manifest injustice.’” Firestone v.
Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996) (quoting Nat’l Trust v. Dep’t of State, 834 F.
Supp. 453, 455 (D.D.C. 1993)).
Defendants are correct that plaintiffs must meet the higher standard of Rule 59(e) in this
instance. It is well established that “[w]here a district court is presented with a motion for leave
to amend following a dismissal, the court considers the motion for leave to amend only after
consideration of a party’s motion to amend or alter the dismissal.” DeGeorge v. United States,
521 F. Supp. 2d 35, 40-41 (D.D.C. 2007) (citing Niedermeier v. Office of Max S. Baucus, 153 F.
Supp. 2d 23, 27 (D.D.C. 2001)). Indeed, as done here, the DeGeorge Court applied that rule
notwithstanding the fact that it had previously dismissed the plaintiff’s case without prejudice.
See Order, DeGeorge v. United States, No. 04-1605 (D.D.C. Jan. 3, 2007), ECF No. 42. As in
DeGeorge, after this Court’s February 27, 2013 Order granting defendants’ motion to dismiss,
there were no remaining claims pending against defendants. Thus, the Court may only consider
plaintiffs’ motion for leave to amend if it first grants plaintiffs’ motion for reconsideration.
Because, for the reasons stated below, the Court declines to reconsider its dismissal of
plaintiffs’ complaint, it need not address the merits of plaintiffs’ motion for leave to amend.
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B. Reconsideration
In the alternative to their motion for leave to amend, plaintiffs seek reconsideration of
this Court’s ruling that they failed to establish associational standing. (See Mot. at 9-14.)
Specifically, plaintiffs claim that this Court’s requirement that they identify specific member
firms that have suffered the alleged harm is “plainly contrary to controlling D.C. Circuit and
Supreme Court precedent.” (Id. at 9.)
Plaintiffs argue that two of the cases on which defendants and this Court relied are
inapposite because they are direct appeals from administrative decisions and therefore “ha[ve] no
relevance to a civil action in district court initiated by the filing of a complaint.” (Id. at 10.)
However, the mere fact that those cases arose in a different context than this one does not
mandate a contrary outcome in this case.
Nor do the other cases plaintiffs cite render this Court’s ruling “clearly erroneous.” In
their motion, plaintiffs point to several instances where courts found it unnecessary for a plaintiff
to identify specific member firms to support associational standing at the motion to dismiss
stage. (See Mot. at 12-13.) As an initial matter, none of the cases cited bind this Court.
Moreover, there are plenty of contrary examples from other courts across the country. See, e.g.,
Nationwide Ins. Indep. Contractors Ass’n, Inc., v. Nationwide Mut. Ins. Co., No. 12-2549, 2013
WL 1875397, at *4 (3d Cir. May 3, 2013) (affirming dismissal of complaint because “[i]n order
to satisfy the first Hunt prong, associations must present ‘at least one identified member’ who
has suffered a specified harm”); Nat’l Alliance for Accessibility, Inc. v. Belk, Inc., No. 12-386,
2013 WL 1614672, at *4 (E.D.N.C. Apr. 15, 2013) (granting motion to dismiss because,
“[h]aving concluded that Payne does not have standing, and plaintiffs having specifically
identified no other members of the organization with standing to sue, National Alliance cannot
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assert associational standing”); Coal. for ICANN Transparency Inc. v. Verisign, Inc., 464 F.
Supp. 2d 948, 956 (N.D. Cal. 2006) (“CFIT’s initial complaint only alleged vague categories of
members that might suffer harm. Thus, the court found that associational standing had not been
alleged because CFIT failed to name even one member.”); Arbor Hill Concerned Citizens
Neighborhood Ass’n v. City of Albany, N.Y., 250 F. Supp. 2d 48, 56 (N.D.N.Y. 2003) (in ruling
on motion to dismiss, noted that the plaintiff “has not sufficiently plead that such injuries have
been incurred by any of its specific members so as to properly demonstrate that individual
members have suffered an injury in fact”).
Within this district, the Court is aware of one case where a plaintiff did not need to
identify any affected members by name. See Ass’n of Am. Physicians & Surgeons, Inc. v.
Sebelius, 901 F. Supp. 2d 19, 31 (D.D.C. 2012) (“[A] plaintiff need not identify the affected
members by name at the pleading stage.”). However, as defendants correctly point out, the
relevant language in that case was only dicta, since Judge Jackson ultimately found that plaintiffs
lacked standing based on their failure to establish an injury in fact. See id. at 32-34. At the same
time, two other judges in this district have agreed with this Court in requiring that such member
firms be named at the motion to dismiss stage. See Californians for Renewable Energy v. U.S.
Dep’t of Energy, 860 F. Supp. 2d 44, 48 (D.D.C. 2012) (discussing representational standing on
a motion to dismiss and noting that “the organization must name at least one member who has
suffered the requisite harm”); Common Cause v. Biden, 909 F. Supp. 2d 9, 21 n.6 (D.D.C.
2012). 1
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Plaintiffs argue that Common Cause is not relevant to this debate because the plaintiffs there
failed to respond to the defendants’ argument that they were required to name specific member
firms who had been injured. (See Mot. at 13.) However, if there was no such requirement, the
plaintiffs’ failure to address it would not have amounted to a concession that they lacked
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The mere fact that there are conflicting opinions on this issue among the various courts of
this country—and even among the judges of this court—does not render this Court’s ruling
“clearly erroneous,” as required to survive a motion to reconsider under Rule 59(e). Nor have
plaintiffs even attempted to argue that there has been an “intervening change of controlling law”
or that there is any newly-available evidence that should compel this Court to reach a different
conclusion. Thus, the Court concludes that reconsideration of its earlier ruling on standing is not
warranted in this instance.
II. FAILURE TO STATE A CLAIM
Plaintiffs also seek reconsideration of three of the claims that this Court denied with
prejudice for failure to state a claim.
A. RFA Claims
Plaintiffs seek reconsideration of the Court’s dismissal of claims 7 and 12 under the RFA
(re-pled as claims 6 and 10 in the proposed Third Amended Complaint) for failure to state a
claim under Rule 12(b)(6), arguing that the addition of new plaintiff Western Wood Structures,
Inc. remedies the previous pleading deficiencies. (See Mot. at 5-6.)
However, those claims were also dismissed for lack of associational standing, see WWPI
I, 2013 WL 692789, at *8, and the Court has already denied plaintiffs’ motion for
reconsideration with respect to associational standing. (See supra Section I.) Because the Court
has denied plaintiffs’ request for leave to amend their complaint, it need not rule on any
arguments that relate to new additions in the amended complaint. If plaintiffs re-file their
complaint with additional plaintiffs, the Court can consider whether those plaintiffs may bring a
claim under the RFA at that time.
associational standing. Thus, Judge Sullivan’s ruling that the plaintiffs in Common Cause lacked
associational standing further bolsters this Court’s conclusion.
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B. ESA Claim Against the NMFS
Plaintiffs also seek reconsideration of the Court’s dismissal of claim 10 against the
NMFS under the ESA (re-pled as claim 9) for failure to state a claim under Rule 12(b)(6). (See
Mot. at 6-9.)
As an initial matter, those claims were also dismissed for lack of associational standing,
see WWPI I, 2013 WL 692789, at *10, and the Court has already denied plaintiffs’ motion for
reconsideration with respect to associational standing. (See supra Section I.) Thus, plaintiffs
will not be permitted to amend their complaint and proceed on this claim. Nevertheless, the
Court will go on to consider the merits of plaintiffs’ request for reconsideration of claim 10 to
clarify whether they may attempt to re-plead this claim in a new lawsuit.
In addition to a lack of standing, plaintiffs’ ESA claim against the NMFS was also
dismissed for failure to state a claim under Rule 12(b)(6). See WWPI I, 2013 WL 692789, at
*10. The Court noted that “the only question the NMFS was charged with answering in its
biological opinion was whether [the SLOPES IV procedures]—addressing projects that did not
use treated wood—would harm any endangered species.” Id. Thus, plaintiffs could not establish
that the NMFS had failed to consider “the best scientific and commercial data available” by
failing to consider guidelines on the use of treated wood. Id.Plaintiffs now seek reconsideration of that opinion on two grounds. First, they argue that
by considering the Biological Opinion itself, this Court improperly converted the Rule 12(b)(6)
motion into a motion for summary judgment without following the procedures set out in Rule
12(d). (See Mot. at 6-7.) The Court declines to reconsider its previous opinion on this basis,
because it is well established that in ruling upon a motion to dismiss, “[t]he Court may consider
‘the facts alleged in the complaint, documents attached as exhibits or incorporated by reference
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in the complaint,’ or ‘documents upon which the plaintiff’s complaint necessarily relies even if
the document is produced not by [the parties].’” Attakora v. District of Columbia, No. 12-1413,
2013 WL 1899783, at *3 (D.D.C. May 8, 2013) (quoting Ward v. D.C. Dep’t of Youth Rehab.
Servs., 768 F. Supp. 2d 117, 119 (D.D.C. 2011)). Although plaintiffs may not have expressly
used the phrase “incorporated by reference” to describe the Biological Opinion in their
complaint, there can be no doubt that their complaint “necessarily relies” on it, as they quote
from and discuss it extensively. (See, e.g., Second Amended Complaint, Oct. 3, 2012 [ECF No.
12-1] (“Second Am. Compl.”) ¶¶ 21-25.)
However, plaintiffs also seek reconsideration on the grounds that this Court misconstrued
their claim. Plaintiffs’ complaint—in both its Second and Third Amended iterations—alleges
that “the NMFS biological opinion on the SLOPES IV procedures violated NMFS’ obligation in
16 U.S.C. § 1536(a)(2) to “use the best scientific and commercial data available.” (Second Am.
Compl. ¶ 75; Proposed Third Amended Complaint, May. 20, 2013 [ECF No. 20-1] (“Third Am.
Compl.”) ¶ 74.) Specifically, plaintiffs complain that the NMFS disregarded its own guidelines
on the use of treated wood by “ban[ning] all treated wood from . . . in-water or over-water
structures in Oregon that are subject to the SLOPES IV procedures.” (Second Am. Compl. ¶ 75;
Third Am. Compl. ¶ 74.) This Court previously understood those allegations to relate to the
NMFS’ overall conclusion that the SLOPES IV procedures were not likely to jeopardize any
threatened or endangered species or their habitats. With that understanding, the Court concluded
that plaintiffs’ complaint did not state a claim under ESA. See WWPI I, 2013 WL 692789, at
*10.
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Although plaintiffs’ briefing remains murky at best on this issue, the Court now
understands that plaintiffs intend these allegations to relate specifically to the Incidental Take
Statement included within the Biological Opinion. In their motion, plaintiffs explained that:
The issue in this case[] arises from the ESA provision requiring that when, as
here, NMFS concludes that a proposed agency action is not like[ly] to jeopardize
any listed species, NMFS must issue an ‘incidental take statement’ authorizing
incidental take for the action, including reasonable and prudent measures to
minimize take, and nondiscretionary terms and conditions that the Federal action
agency must comply with to carry out the reasonable and prudent measures.
(Mot. at 7.) Here, as part of the Incidental Take Statement, the NMFS imposed a
nondiscretionary term and condition specifying that “‘[f]or each action with a general
construction element, the Corps will apply design criteria 1 through 10 and 11 through 27 as
enforceable permit conditions or as final project specifications.’” (Mot. at 8 (quoting Biological
Opinion [ECF No. 15-3] at 106).) In other words, the NMFS’ Incidental Take Statement
imposed an obligation on the agency requiring it to enforce the various design criteria in the
SLOPES IV procedures, including the prohibition on treated wood. Plaintiffs’ claim against the
NMFS is apparently focused on that independent action, which they allege was done without
consideration of “the best scientific and commercial data available,” as required by the ESA.
With this understanding, the Court agrees that plaintiffs have stated a claim under the
ESA. The Supreme Court has expressly noted that a “Biological Opinion and accompanying
Incidental Take Statement alter the legal regime to which the action agency is subject,
authorizing it to take the endangered species if (but only if) it complies with the prescribed
conditions.” Bennett v. Spear, 520 U.S. 154, 178 (1997). Thus, insofar as the NMFS made its
own independent determination of which terms and conditions to apply to the SLOPES IV
procedures, that determination “has direct and appreciable legal consequences” that can form the
basis of a claim under the APA. Id. The Court will therefore grant plaintiffs’ motion for
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reconsideration with respect to the Court’s dismissal with prejudice of claim 10 against the
NMFS for failure to state a claim under Rule 12(b)(6). However, because that claim remains
dismissed without prejudice for lack of associational standing, it cannot be resurrected by means
of the proposed amended complaint. Plaintiffs must re-file the claim in a new case with
adequate allegations regarding the injuries suffered by their member firms. 2
CONCLUSION
For the foregoing reasons, plaintiffs’ motion for reconsideration is granted in part and
denied in part, and plaintiffs’ Motion for Leave to File a Third Amended Complaint is denied. A
separate Order accompanies this Memorandum Opinion.
/s/
ELLEN SEGAL HUVELLE
United States District Judge
Date: July 22, 2013
2
The parties also disagree as to whether plaintiffs’ proposed claim 9 (previously claim 10)
against the Corps under the ESA is barred by the notice requirement of the ESA’s citizen-suit
provision (See Opp’n at 13-16; Plaintiffs’ Reply in Support of Their Motion for Leave to File a
Third Amended Complaint, May 17, 2013 [ECF No. 26] at 15.) However, because the Court has
denied plaintiffs’ request for leave to amend their complaint (see supra Section I), it need not
rule on any arguments that relate to new additions in the amended complaint. If plaintiffs re-file
their complaint with additional plaintiffs, the Court can consider at that time whether those
plaintiffs may bring a claim under the ESA against the Corps.
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