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Ouachita Watch League v. Henry

United States District Court, E.D. Arkansas, Western Division

October 6, 2014

OUACHITA WATCH LEAGUE, et al., PLAINTIFFS,
v.
JUDITH L. HENRY, et al., DEFENDANTS. THE OZARK SOCIETY, PLAINTIFF,
v.
THE UNITED STATES FOREST SERVICE, et al., DEFENDANTS

Page 923

For Ouachita Watch League, Newton County Wildlife Association, Shawn Porter, G Thomas McKinney, David Reagan, Susan Gateley, Robert B Leflar individually and as natural parent and guardian of Sarah Helen Leflar, a minor other Sarah Helen Leflar, Sarah May Leflar individually and as natural parent and guardian of Sarah Helen Leflar, a minor, Kimberly Ison, John Ison, Billy Lindsey, Carol Lindsey, James Mitchell, Ruth Mitchell, John Lawrence Poff, Plaintiffs (4:11-cv-00425-KGB): Richard H. Mays, Richard Mays Law Firm, PLLC, Heber Springs, AR.

For Ozark Society, Consol Plaintiff (4:11-cv-00425-KGB): Ross Noland, Samuel E. Ledbetter, LEAD ATTORNEY, McMath Woods, P.A., Little Rock, AR.

For Judith L Henry, Forest Supervisor, Ozark-St. Francis National Forests, Defendant (4:11-cv-00425-KGB): Richard M. Pence, Jr., LEAD ATTORNEY, U.S. Attorney's Office, Little Rock, AR; Romney S. Philpott, U.S. Department of Justice-Environmental Enforcement, Washington, DC; Ruth Ann Storey, Tyler G. Welti, U.S. Department of Justice, Environment & Natural Resources Division, Washington, DC.

For United States Forest Service, Defendant (4:11-cv-00425-KGB): Richard M. Pence, Jr., LEAD ATTORNEY, U.S. Attorney's Office, Little Rock, AR; Romney S. Philpott, LEAD ATTORNEY, U.S. Department of Justice-Environmental Enforcement, Environmental and Natural Resources Division, Washington, DC; Ruth Ann Storey, U.S. Department of Justice, Environment & Natural Resources Division, Washington, DC.

For Department of Agriculture, Department of Interior, Bureau of Land Management, Department of Defense, United States Army Corps of Engineers, Little Rock District, United States Department of the Army, Defendants (4:11-cv-00425-KGB): Romney S. Philpott, U.S. Department of Justice-Environmental Enforcement, Washington, DC; Ruth Ann Storey, U.S. Department of Justice, Environment & Natural Resources Division, Washington, DC.

For Bureau of Land Management, John Lyon, Dr., in his official capacity as Eastern States Director, Bureau of Land Management, Bruce Dawson, in his official capacity as Eastern States Field Manager, Bureau of Land Management, Consol Defendants (4:11-cv-00425-KGB): Richard M. Pence, Jr., LEAD ATTORNEY, U.S. Attorney's Office, Little Rock, AR; Romney S. Philpott, U.S. Department of Justice-Environmental Enforcement, Washington, DC; Ruth Ann Storey, U.S. Department of Justice, Environment & Natural Resources Division, Washington, DC.

For Ozark Society, Plaintiff (4:11-cv-00782-KGB): Ross Noland, Samuel E. Ledbetter, McMath Woods, P.A., Little Rock, AR.

For United States Forest Service, Judith Henry, in her official capacity as Forest Supervisor, Ozark-St. Francis National Forest, Bureau of Land Management, John Lyon Dr., in his official capacity as Eastern States Director, Bureau of Land Management, Bruce Dawson, in his official capacity as Eastern States Field Manager, Bureau of Land Management, Defendants (4:11-cv-00782-KGB): Ruth Ann Storey, LEAD ATTORNEY, U.S. Department of Justice-Environment & Natural Resource, Environment & Natural Resources Division, Washington, DC; Richard M. Pence, Jr., U.S. Attorney's Office-Little Rock, Little Rock, AR; Romney S. Philpott, U.S. Department of Justice-Environmental Enforcement, Washington, DC.

ORDER

Page 924

Kristine G. Baker, United States District Judge.

In the above consolidated cases, the Ouachita Watch League et al. (collectively,

Page 925

" OWL" ) and the Ozark Society (" OS" ) each challenge the United States Forest Service (" Forest Service" ), Bureau of Land Management (" BLM" ), and other federal defendants' management of natural gas resources on the Ozark-St. Francis National Forest (the " Forest" ) and Greers Ferry Lake (the " Lake" ). Prior to consolidation, the defendants filed separate motions to dismiss for lack of jurisdiction and failure to state a claim upon which relief may be granted in each of the cases ( Ouachita Watch League v. Henry ( OWL ), 4:11-cv-00425 KGB, Dkt. No. 20; Ozark Society v. U.S. Forest Serv. ( OS ), 4:11-cv-00782 KGB, Dkt. No. 30). Following consolidation, the Court ordered the parties to complete the briefing on defendants' motions to dismiss ( OWL, Dkt. No. 53; OS, Dkt. No. 72). All parties have filed several briefs regarding the motions ( OWL, Dkt. Nos. 63, 64, 65, 66; OS, Dkt. Nos. 41, 56). For the reasons below, the Court grants in part and denies in part defendants' motions to dismiss.

I. Factual Background

The Forest Service issued the first Land and Resource Management Plan (" LRMP" or " Plan" ) for the Forest in 1986. In 2005, after completing a new environmental impact statement (" EIS" ), the Forest Service issued a revised LRMP intended to govern the Forest through 2015. The 2005 LRMP determined which lands would be available for oil and gas leasing in the Forest and the stipulations that would apply.

At the time the 2005 LRMP was completed, a 2004 Reasonably Foreseeable Development Scenario (" RFDS" ), prepared bye the BLM, estimated that 10 to 15 new wells might be drilled in the Forest over the next 10-year period. In 2007, apparently due to increased development activity and interest in the Forest, the Forest supervisor requested an updated RFDS from the BLM. In 2008, the BLM issued a new RFDS predicting the potential for 1,730 wells in the Forest.

In 2010, the Forest Service prepared a Changed Conditions Analysis (" CCA" ) and a Supplemental Information Report (" SIR" ) analyzing the relevance of the 2008 RFDS's prediction. In the SIR, the Forest supervisor found that " the existing plan direction is adequate to address the effects anticipated from the new RFD[S], and that a correction, supplement, or revision to the Revised Forest Plan's Final Environmental Impact Statement will not be necessary" ( OWL, Dkt. No. 1-1, at 34).

The Lake is a water project located on the Little Red River in central Arkansas. The U.S. Army Corps of Engineers (" Corps" ) operates the water project and owns some mineral rights underneath the Lake, which allows the BLM to consider including Corps-owned parcels in future mineral lease sales, subject to stipulations and restrictions the Corps might demand.

II. Legal Standard

Defendants argue that OWL and OS's claims must be dismissed either for lack of jurisdiction under Federal Rule of Civil Procedure 12(b)(1) or for failure to state a claim upon which relief may be granted under Rule 12(b)(6). A motion to dismiss under Rule 12(b)(1) challenges the Court's subject matter jurisdiction to hear the case. A court has broad authority to decide its own right to hear a case, and it can consider matters outside of the pleadings when deciding a " factual attack" under Rule 12(b)(1). Osborn v. United States, 918 F.2d 724, 729 n.6 (8th Cir. 1990); see Ozark Society v. Melcher, 229 F.Supp.2d 896, 902 (E.D. Ark. 2002) (explaining that a " factual attack" challenges the existence of subject matter jurisdiction in fact, irrespective of the pleadings).

Page 926

Further, when the defendant makes a " factual attack," it is the plaintiff's burden to establish that jurisdiction exists, and " no presumptive truthfulness attaches to the plaintiff's allegations." Osborn, 918 F.2d at 730 (quoting Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977)). In other words, the non-moving party does not have the benefit of Rule 12(b)(6) safeguards in a factual attack. Id. at 729 n.6.

To survive a motion to dismiss under Rule 12(b)(6), " a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell A. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). A claim is facially plausible " when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (citing Twombly, 550 U.S. at 556). " While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the 'grounds' of his 'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555 (alteration in original) (citations omitted). " When ruling on a motion to dismiss [under Rule 12(b)(6)], the district court must accept the allegations contained in the complaint as true and all reasonable inferences from the complaint must be drawn in favor of the nonmoving party." Young v. City of St. Charles, 244 F.3d 623, 627 (8th Cir. 2001).

Because the Court determines below that, based on the circumstances and controlling law, defendants only make arguments under Rule 12(b)(6), the Court applies the 12(b)(6) standard to the entirety of defendants' motions to dismiss. Despite previously denying the motions to dismiss without prejudice so that the administrative record could be completed because it appeared that defendants had made arguments under Rule 12(b)(1) ( OWL, Dkt. No. 50; OS, Dkt. No. 70), to resolve the pending motions, the Court only considers the pleadings and factual allegations contained therein, accepts those factual allegations as true, and draws all reasonable inferences from the complaints in favor of OWL and OS. The Court declines to convert defendants' motions to dismiss into motions for summary judgment under Federal Rule of Civil Procedure 12(d). See Gorog v. Best Buy Co., Inc., 760 F.3d ...


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