UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA F I L E D

OREGONIANS FOR FLOODPLAIN ) SEP 2 1 2018

PRoTECTIoN, er al.,

Clerk, U.S. Dlstrict & Bankruptcy

' ' f rthe DistrictofCo|umbia
Plalntlffs, Courts o

v. Civil Action No. 17-cv-1179 (RJL)

THE U.S. DEPARTMENT OF
COMMERCE, et al.,

Defendant. :
MEM()R NDUM OPINION

(seprember Ll 2018) [Dkts ## 18, 27]

\./\/\/\_/VVV\/\/

Before the Court is a motion to dismiss by defendants for lack of subject matter
jurisdiction under Fed. R. Civ. P. lZ(b)(l), and plaintiffs’ motion to strike defendants’
notice of supplemental facts. Defs.’ Mot. to Dismiss [Dkt # 18] (“Defs.’ l\/lot.”); Pls.’ Mot.
to Strike [Dkt # 27] (“Pls.’ Mot.”). In these motions, the parties dispute Whether or not
plaintiffs have standing to challenge the Federal Emergency l\/lanagement Agency’s
(“FEMA”) implementation of the National Marine Fisheries Service’s (“NMFS”)
reasonable and prudent alternative (“RPA"’) to FEMA’s administration of the National
Flood lnsurance Program (“NFIP”) in Oregon. Upon due consideration of the parties’
pleadings, the relevant law, and the entire record herein, I find that plaintiffs lack standing
to bring this suit and, accordingly, defendants’ motion to dismiss [Dkt # lS] is GRANTED,

plaintiffs’ motion to strike [Dkt # 27] is DENIED, and the case is DISMISSED.

BACKGROUND

Plaintiffs bring this suit against the U.S. Department of Commerce (“DOC”), the
National l\/larine Fisheries Service (“NMFS”), and the Federal Emergency l\/lanagement
Agency (“FEl\/IA”), challenging the implementation of Nl\/lFS’s reasonable and prudent
alternative (“RPA”) to FEl\/lA’s administration of the National Flood lnsurance Program
(“NFlP”) in participating Oregon communities Plaintiffs allege violations of the
Endangered Species Act (ESA), 16 U.S.C. § 1536(a)(2) (2012), 50 C.F.R. §§ 402.02,
402.14(g)-(h) (2018), the Administrative Procedure Act (APA), 5 U.S.C. §§ 701-706
(2012), and the Nation'al Environmental Policy Act (NEPA), 42 U.S.C. § 4332(2) (2012),
40 C.F.R. §§ 1502.14, 1508.9(b) (_2018). See Compl. [D'kt#l:| 111192-127.

A. Regulatory Landscape

FEl\/IA has administered the National Flood lnsurance Program (“NFIP”) since
1968. 42 U.S.C. § 4001 et seq.l Under the NFIP, Congress authorized the director of
FEl\/l/-\ to carry out a “program Which Will enable interested persons to purchase insurance
against loss resulting from physical damage to or loss of real property or personal property
related thereto arising from any flood occurring in the United States.” 42 U.S.C. § 4011(a)
(2012). lmportantly, FEl\/lA’s authority under the program is limited. See Defs.’ Mot. at
3 (citing 42 U.S.C. § 4022(a)(1) (2012); 44 C.F.R. § 60.1(a) (2018)). Congress provided

that “[t]he Director shall make flood insurance available in Only those States or areas”

 

l The NFlP vvas subsequently modified in 1983 (Pub. L. 98-181, Title lV, § 451(d)(l), (2)),
1994 (Pub. L. 103-325, Title V, § 555(a)), 2004 (Pub. L. 108-264, Title l, § 105(a)), and
2012 (Pub. L. 112-141).

which he has determined have (1) evidenced a “positive interest” in securing flood
insurance under the NFIP and (2) implemented adequate land use or Control measures Ia’.
(emphasis added). Those States or areas are, for purposes of the statute, described as
“participating coinmunities.” Id. As such, flood insurance is only available in
communities that have adopted floodplain management criteria consistent with FEl\/lA’s
regulations 42 U.S.C. § 4022(a)(1); 44 C.F.R. § 60.1(a). Property owners in those
“participating communities” are able to go through FEl\/lA to purchase insurance protection
against floodingl FEl\/IA itself therefore has no actual land use authority under the statute;
it is merely authorized to administer the NFIP and to set minimum floodplain management
criteria. See 44 C.F.R. § 60.1-.26.

The National Environmental Policy Act imposes procedural requirements on federal
agencies to consider the environmental impact of certain federal actions prior to making
decisions, through the generation of an Environmental Assessment (“EA”) and, if
determined to be necessary by the agency, an Environmental lmpact Statement (“EIS”).
42 U.S.C. § 4321 el seq. (“NEI)A”). Where the agency determines that an EIS is not
required, it must issue a “finding of no significant impact” (“FONSI”), explaining why its
action will not have a significant impact on the human environment See 40 C.F.R. §§
1501.4(e),1508.13(2018).

Where there is a concern that its actions may jeopardize endangered species, FEl\/IA
_like other action agencies_may seek either an informal or formal consultation with
NMFS or FWS under Section 7(a)(2) of the ESA. 16 U.S.C. § 1536(a)(2). A formal ESA

consultation requires the consulting agencies to evaluate FEl\/l/~\’s proposed actions so as

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to determine whether they are likely to “jeopardize the continued existence of any
endangered species or threatened species or result in the destruction or adverse
modification of habitat of such species which is determined by the Secretary...to be
critical. . .” [d. To that effect, Nl\/lFS or FWS will issue a Biological Opinion advising the
requesting agency whether its actions will result in any adverse effects Where listed
species are likely to be jeopardized or critical habitat is likely to be destroyed or adversely
modified, NMFS recommends “reasonable and prudent alternatives”_actions that are
constituent with the intended purpose of the action, within the agency’s authority to
implement, economically and technologically feasible, and will avoid jeopardy and/or
adverse modification of critical habitat. 50 C.F.R. § 402.02. FEl\/lA then has a period of
time to implement the Nl\/lFS’s recommendations under the RPAs.
B. Procedural History

This case does not arise from FEl\/IA’s ordinary administration of the Nl"`lP, but
from a private settlement between FEl\/lA and environmental groups in July 2010. See c
Compl. 11 60; Defs.’ l\/lot. Exhibit 2, Settlement Agreement, Aua,’ub()n Soc ’y 0fP0/”lla)m,' v.
FEMA, Case No. 3:09-cv-729-HA (D. Or.) (hereinafter “Settlement Agreement”) 111[ 1, 2.
Pursuant to the terms of that settlement, on August 15, 2012, FEl\/lA agreed to initiate
formal Section 7 consultation with Nl\/IFS regarding the implementation of the NFIP in the
State of Oregon. See Settlement Agreement 11 2. Specifically, FEl\/lA requested review of
its Program Level Bl`OlOgl`cczl Assessmentfor the chz‘l`ona[ Floocz’plal`n lnsurance Program
Oregon Stale (“Biological Assessment”). Compl. il 61.

On April 24, 2016, after four years of drafting its own Biological Opinion pursuant

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to Section 7, see Defs.’ Mot. Exh. 3, Endange/”ea’ S/)ecz'es Acl ('ESA) Section 7('¢;)(2)
Jeopamfv and Desl'rzictz'on 0)” Adverse Moa’g'/chlll`on QfCFl'tz'Cal Habl,`lat [)’1`010§1`€¢1[ Opi)il`on
(“Biological Opinion”), NMFS issued findings on the impact ofthe NFIP in Oregon on 17
ESA-listed anadromous fish species and the Southern Resident killer whale, and
determined that FEl\/lA’s administration of the NFlP in Oregon would jeopardize 16 of
those species. Compl. 11 62. Consequently, Nl\/lFS recommended that FEl\/lA adopt a
reasonable and prudent alternative (“RPA”) to its proposed implementation of the NFIP.
[d. il 63.2

The RPA is broken down into six elements. ]c!. Element 1 directs FEl\/IA to notify
participating NFIP communities in Oregon about Nl\/lFS’s conclusions. [d. Element 2
directs it to implement “lnterim Measures” in advance of fully implementing the RPAs.
Ia’. Element 3 directs FEl\/lA to revise its mapping protocols under the NFIP to account for
erosion prone areas. ld. Element 4 directs FEl\/lA to modify its floodplain management
criteria to adopt an “ESA performance standard.” Ia’. Element 5 directs FEl\/IA to collect
data from NFIP participating communities and to use that data to document the
environmental impacts of floodplain development ld. And, finally, Element 6 directs
FEMA to enforce the new floodplain management criteria in NFIP communities ld.

Nl\/IFS originally suggested staggered deadlines for implementation of the

substantive elements: Elements 2 and 5 and Sub-elements 3.A and 3.E by l\/larch 15, 2018,

 

2 Nl\/IFS issued a clarification and errata to the RPA on January 24, 2017. See Defs.’ l\/lot.
at 12, n. 2.

Element 4 by January 1,2019, Sub-elements 3.13, 3.1), 3.1"`, and 3.G by September 15, 2019,
and January 1, 2021 for any components of the RPA that require regulatory revisions.
NMFS called for full compliance by September 1, 2024. See Compl. il 64; Defs.’ l\/lot. at
13-14; Biological Opinion (Defs.’ l\/lot. Ex. 3) at 277.

ln keeping with Element 1, FEl\/IA issued notice letters to participating communities
on June 13, 2016. Compl. il 85. However, FEl\/IA has expressed some concerns over its
legal authority to implement certain aspects of the RPA, id. il 75 (citing FEl\/I/~\ letters to
Nl\/lFS), and is still in the process of developing an implementation plan for the other RPA
elements. ]d. 111[ 86-91.

Plaintiffs brought suit on June 15, 2017, alleging injury arising from Nl\/ll?`S’s
issuance and FEl\/lA’s application of the RPA, which plaintiffs allege is outside the scope
of FEl\/lA’s authority under the NFIP and could constrain the implementation of the NFIP
in participating Oregon communities.

This case is now before me upon consideration of defendants’ motion to dismiss,
which was filed September 8, 2017. Subsequent to the briefing on the motion to dismiss,
defendants filed a supplemental notice of facts with this Court representing that, at the
earliest, a final implementation plan for the RPA would not be adopted until August 2018
if FEl\/IA issues a Finding of No Significant lmpact (“FONSI”) and an Environmental
Assessment (“EA”). See Def`s.’ Notice of Suppl. Facts [Dkt # 25] at 2. lfFEl\/IA instead
determines that a full Environmental lmpact Statement (“EIS”) and Record of Decision
(“ROD”) are required, defendants state that FEl\/IA will likely not adopt a final

implementation plan until March 2019. See id. FEl\/lA notified Nl\/IFS ofthis anticipated

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delay on February 1, 2018. See i`cl.

Plaintiffs have moved to strike defendants’ notice of supplemental facts, arguing
among other things that it presents facts immaterial to this Court’s review of the motion to
dismiss. See generally Pls.’ l\/lot. Given the overlapping and potentially dispositive issues
in these two motions, 1 will address both herein.

STANDARD OF REVIEW

On a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1), a
complaint must be dismissed for lack of subject matter jurisdiction if the action is not a
“case” or “controversy” under Article 111 ofthe Constitution. Valley Forge Chrlstian C()ll.
v. Ams. United/for Sepamti`o)i ofChm”c/i & State, [nc., 454 U.S. 464, 471 (1982). “Three
inter-related judicial doctrines_standing, mootness, and ripeness, ensure that federal

7

courts assert jurisdiction only over ‘|'_c]ases’ and ‘[c]ontroversies” consistent with their
constitutional authority under Article 111. Worl'li v. Jac/csoii, 451 F.3d 854, 855 (D.C. Cir.
2006).

Standing under Article 111 requires that “plaintiff[s] must have (1) suffered an injury
in fact, (2) that is fairly traceable to the challenged conduct ofthe defendant[s:|, and (3) that
is likely to be redressed by a favorable judicial decision.” Spokeo, ]iic. v. Robi')is, 136 S.
Ct. 1540, 1547 (2016) (citingLujan v. Defenclers ofWila’li'fe, 504 U.S. 555, 560-61 (1992));
see also Monsamo CO. v. Geerston Seed Fa)”ms, 561 U.S. 139, 149 (2010); Frienc/S Ofthe
Eartli, Inc. v. Lal`cllaw Envl'l. Servs., 528 U.S. 167, 180-81 (2000).

lrrespective of whether or not plaintiffs have alleged an injury that is cognizable

under Article 111, the doctrine of ripeness prevents courts from “entangling themselves in

7

abstract disagreements over administrative policies” absent an “administrative decision
[that] has been formalized and its effects felt in a concrete way by the challenging parties”
Abbolt Lal)S v. Garclrier, 387 U.S. 136, 148-49 (1967); see also Verzeri`a)i Caslm) Resort,
L.L.C. v. E.E.O.C., 409 F.3d 359, 364 (D.C. Cir. 2005) (“ln ascertaining whether a suit is
ripe, courts must balance the plaintist interest in prompt consideration of allegedly
unlawful agency action against the agency’s interest in crystalliziiig its policy before that
policy is subjected to judicial review and the court’s interests in avoiding unnecessary
adjudication and in deciding issues in a concrete setting.”). These are the jurisdictional
principles that 1 must apply to plaintiffs’ claims in this case.
ANALYSIS

I. Plaintiffs Lack Article IlI Standing to Bring This Challenge to FEMA’s
Implementation of the RPA

All of plaintiffs’ claims essentially boil down to this: the RPA is ultra vires and
arbitrary and capricious Plaintiffs allege a number of grounds requiring me to order Nl\/lFS
to withdraw the RPA and enjoin FEl\/lA’s implementation For one, plaintiffs allege that
Nl\/[FS did not adequately consider relevant factors in performing its Section 7 analysis
under the ESA, see Compl. 1111 92-97 (Counts 1 and 2), and relied on an incorrect baseline,
see id. il 99 (Count 3). Plaintiffs further allege that the RPA, as written, “impose[s] on
FEl\/IA requirements that exceed FEl\/IA’s legal authority andjurisdiction.” See id. il 109
(Count 4). And finally, plaintiffs allege that FEl\/lA’s implementation of the RPA would
constitute a defacto rulemaking in violation of NEPA, 42 U.S.C. § 4321, and the APA, 5

U.S.C. § 500, because plaintiffs have had no opportunity to participate in notice and

comment See ia’. 1le 115-127 (Counts 5 and 6). Unfortunately for plaintiffs, their
allegations ofharin do not get very far because they fail at the injury prong of the Article
111 standing analysis How so?

First, plaintiffs do not allege any substantive injury. To be sure, plaintiffs state that
“NFIP participating community members are being coerced to limit development within
their floodplains by the Biological Opinion and FEl\/lA’s current and ongoing
implementation of the RPA,” z`a’. jj ll, but they fail to back that up with examples of any
specific limitations on development or indeed any changes to FEl\/lA’s policy on
development whatsoever.

As to any procedural inj ury, plaintiffs cannot show that FEl\/lA’s implementation of
the RPA “will cause a distinct risk to a particularized interest of the plaintif`.” Florl`a'a
Aaa’ul)on Soc ’y v. Be)itsen, 94 F.3d 658, 664 (D.C. Cir. 1996) (en banc); See also l'a'. at 670
(holding that environinentalists did not establish an injury resulting from defendant’s
actions because of“the presence and number of third party links in the causal chain”). lt
is true that plaintiffs may demonstrate standing in certain circumstances by alleging
procedural, as well as substantive, injuries, where “[t]he procedural...is tied to their
respective members’ concrete aesthetic and recreational interests.” See Wi`lalEarth
Guara’z`ans v. Jewell, 73 8 F.3d 298, 305 (D.C. Cir. 2013) (explaining that organizations had
standing to challenge the procedural inadequacy of a decision where the local pollution
that caused their members’ aesthetic injuries followed inexorably from the government’s
decision). Yet “the requirement of injury in fact is a hard floor of Article 111 jurisdiction

that cannot be removed by statute.” Icl. at 305 (citing Sammers v. Eartli lslaria' ]risl., 555

9

U.S. 488, 497 (2009)) (internal quotation marks omitted). ln other words, °‘zi procedural
right in vacuo. . .is insufficient to create Article 111 standing.” Szmimers, 555 U.S. at 496.

Plaintiffs’ concerns for how the administration of NFlP will change if FEl\/IA
implements the RPA and if FEl\/lA’s implementation of the RPA constitutes a de facto
amendment of 44 C.F.R. § 60.3(a)(2) do not rise to the level ofa cognizable injury-in-fact.
And until FEMA issues either a ROD or an li`ElS, the Court has no basis upon which to
instruct Nl\/IFS or FEl\/lA to act differently Accordingly, absent an injury-in-fact to date,
plaintiffs lack the necessary standing to proceed with this suit as to all of their claims

ll. Plaintiffs’ Challenge to FElVIA’s lmplementation of the RPA is not Ripe

For the same reasons, plaintiffs’ challenge to FEl\/l/-\’s implementation of the RPA
(Counts 5 and 6) is also not ripe.' For a claim to be ripe under Article 111, the plaintiff must
establish constitutional minima akin to that ofstanding by showing an injury-in-fact. Nat'l
Treasary Emp. Uni`ori v. United States, 101 F.3d 1423, 1427 (D.C. Cir. 1996) (“Ripeness,
while often spoken of as ajusticiability doctrine distinct from standing, in fact shares the
constitutional requirement of standing that an injury in fact be certainly impending.”); see
also Wyo. Oal'a’oor Courzcz'l v. U.S. Forest Service, 165 F.3d 43, 50 (D.C. Cir. 1999)
(explaining that a future threat to resources was not ripe unless and until the definitive
leases were issued).

As such, allegations ofpossible future injury do not satisfy these requirements This
injury in fact must be “certainly impending.” Wyo. Oul'a’oor Coancz`l, 165 F.3d at 48
(quoting Nat'l Treasary Emp. Union, 101 F.3d at 1427). To determine ifa challenge to an

administrative action is ripe for review, the Court must consider three factors: “(l) whether

10

delayed review would cause hardship to the plaintiffs; (2) whether judicial intervention
would inappropriately interfere with further administrative action; and (_3) whether the
courts would benefit from further factual development of the issues presented.” Ohi`o
Forestry Ass ’rz v. Si`erra Clul), 523 U.S. 726, 733 (1998); see also l/eriel'l'ari Casl`no Resort,
L.L.C. v. E.E.O.C., 409 F.3d 359, 364 (D.C. Cir. 2005) (characterizing these as two factors:
“[1] the fitness of the issues for judicial decision and [2] the hardship to the parties of
withholding court consideration”).

Applying these factors here further militates against adjudication of plaintiffs’
alleged injury at this tiine. As made clear in defendants’ notice of supplemental facts,
FEl\/IA has not yet even begun implementing the RPA aside from sending notice letters to
participating communities on June 13, 2016. Defs.’ Notice ofSuppl. Facts at 2. Plaintiffs
insist that this Court should not credit the supplemental evidence defendants have presented
to show the delayed implementation of the RPA, arguing instead that plaintiffs’ claims
against FEMA “are not premised on FEl\/lA’s implementation of the RPA,” Pls.’ l\/lot. at
1-2, but on the “procedural injury...resulting from FEMA’s unlawful de facto
rulemaking.” la’. at 3. 1 disagree

Here, the “biological assessinent” issued by FEl\/l/-\ cannot be considered a defaclo
rulemaking because defendants have expressly acknowledged that it is riolfl`nal. See Defs.’
l\/lem. in Opp’n. of l\/lot. to Strike [Dkt # 28] at 3; Defs’ l\/lot. at 30~32. 1ndeed, plaintiffs
concede that defendants have yet to issue a FONSI (or alternatively, a ROD)_the next
step in the well-established rulemaking process Pls.’ l\/lem. in Opp’n. to Defs.’ Mot. to

Disiniss [Dkt #19] at 25. And it is the law of our Circuit that the issuance of a ROD or

11

FONSI would be necessary to constitute final agency action. See, e.g., Stancl Up for
Calz'for/il'a./ v. U.S. Depl. of]rzler[or, 298 F. Supp. 3d 136, 151 (D.C. Cir. 2018) (dismissing
plaintiffs jurisdictional arguments because the “Record of Decision was final...”);
Cz`lizerls Ass ’ii ofGeorgefown v. Fed. Avi`al'i`orl Aclml`)i., 886 F.3d 130, 137 (D.C. Cir. 2018)
(finding that the FONSl/ROD was the FAA’s final decision because it “marked the
consummation of the agency’s decision making process and was a source of legal
consequences”); Gov’t ofProvz`rice ofManilol)a v. Zz`rike, 849 F.3d 1111, 1115 (D.C. Cir.
2017) (determining that the “issuance of a ROD constitutes final agency action” making
plaintiffs claim ripe for review). Plaintiffs have cited no authority to the contrary.3

For all of these reasons the Court would clearly “benefit from further factual
development of the issues presented” and to interfere before issuance of FEl\/l/-\’s final
agency action would “inappropriately interfere with further administrative action.” O/iz`o
Foresl'ry Ass’ri, 523 U.S. at 735. As for whether delayed review will cause irreparable
harm to the plaintiffs, it will not. See la’. The bottom line is thus clear: plaintiffs have not
alleged to date any ongoing, concrete injury arising from FEl\/lA’s implementation of the

RPA.4

 

3 lndeed, our Circuit has “repeatedly held that agency action is not final if the adverse
effects of the action depend ‘on the contingency of future administrative action.”’ R/iea
Laria, liic. v. Dep’l ofLal)or, 824 F.3d 1023_, 1032 (D.C. Cir. 2016) (internal citations
omitted).

4 Finally, 1 disagree with plaintiffs’ assertion that “[r]eliance on facts outside the complaint
to challenge standing is impermissible.” Pls.’ l\/lot. at 3. lndeed, on a motion to dismiss
under Rule 12(b)(1), “[a] defendant may make a factual attack on the Court’s subject matter
jurisdiction as opposed to a facial attack based solely on the complaint.” Fz'nca Sam‘a
Elerza, 873 F. Supp. 2d at 368. Where defendants mount a factual attack on j urisdiction_
as they do herei“no presumption of truthfulness applies to the factual allegations” in

12

Considering the supplemental facts submitted by defendants which anticipate a
delay until 2019 to fully implement the RPA, 1 find that Claims 5 and 6 are also not ripe,
thus furnishing an independent basis for dismissal of these two claims

CONCLUSION

Thus, for all of the foregoing reasons, plaintiffs’ l\/lotion to Strike [Dkt # 27] is
DENIED, defendant’s Motion to Dismiss [Dkt # 18] is GRANTED, and the case is
DISMISSED for lack of standing and ripeness An Order consistent with this decision

accompanies this Memorandum Opinion.

 

 

United States l istrict Judge

 

plaintiffs’ complaint Rz`chara’s v. Duke Univ., 480 F. Supp. 2d 222, 232 (D.D.C. 2007)
(quoting th'o Nat’l Li'fe lns. Co. v. United States, 922 F.2d 320, 325 (6th Cir. 1990)). 1
am therefore “not obliged to accept [plaintiffs’] allegations as true and may examine
evidence to the contrary and reach [my] own conclusion on the matter.” Finca Santa Eleria,
lnc., 873 F. Supp. 2d at 368 (quoting 5B Charles Alan Wright & Arthur Miller, Federal
Practz`ce and Procedure.' Civz'l § 1350, 159-198 (3d ed. 2004)). For these reasons, 1 deny
plaintiffs’ motion to strike defendants’ notice of supplemental facts

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