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Supreme Court Must Hear “Only Enviros May Sue” Case

   By William Perry Pendley, President and Chief Operating Officer of Mountain States Legal Foundation

A 118-year-old nonprofit, non-partisan mining trade association with thousands of members has urged the Supreme Court of the United States to hear a case decided by the U.S. Court of Appeals for the Ninth Circuit.  The Northwest Mining Association (NWMA) of Spokane, Washington filed a friend of the court brief in support of a petition for writ of certiorari filed by American Independence Mines and Minerals Company and Ivy Minerals, Inc.  The mining companies own claims in the Payette National Forest in Idaho, but the U.S. Forest Service issued a new policy under which roads used by the companies to travel to and from their claims are deemed "closed unless open."  In response to their lawsuit, an Idaho federal district court and the Ninth Circuit held that they lacked standing because the economic interest they asserted was not in the "zone of interest" of the federal statute whose implementation they challenged.

"The National Environmental Policy Act is not an 'environmental' law that serves only the interests of self-proclaimed environmentalists, but is a procedural statute whose illegal application may be challenged by all affected adversely," said William Perry Pendley of Mountain States Legal Foundation (MSLF); MSLF represents the NWMA.  "The Ninth Circuit is wrong."

In 2005, the Forest Service promulgated a new Travel Management Rule, which required each national forest to designate which specific roads within the forest are open to travel.  Previously, the Payette National Forest had a policy of allowing travel on all roads that were not specifically closed; the Travel Management Rule replaced the "open unless closed" policy with a "closed unless open" policy.

The Payette National Forest proposed a travel management plan to specify the roads open for travel.  To comply with the National Environmental Policy Act (NEPA)-which requires federal agencies to analyze major federal actions that significantly affect the quality of the human environment-Payette issued a draft Environmental Impact Statement (DEIS) to analyze the proposed plan and various alternatives to that plan.  Although all NEPA studies must include a "no action" alternative, the Payette DEIS "no action" alternative did not keep open all roads that were open prior to 2005.  The mining companies noted the deficiency to the Forest Service, but the agency did not correct the error in its Final EIS (FEIS), and then issued a record of decision implementing an alternatives analyzed in the FEIS. 

After an unsuccessful administrative appeal, the companies sued.  The district court dismissed the case in 2010; in 2012, the Ninth Circuit affirmed and denied rehearing.  In January 2013, the companies filed their petition.    

Mountain States Legal Foundation, created in 1977, is a nonprofit, public-interest legal foundation dedicated to individual liberty, the right to own and use property, limited and ethical government, and the free enterprise system.  Its offices are in suburban Denver, Colorado.

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