Free Response to Motion - District Court of Colorado - Colorado

Case 1:01-cv-02163-BNB-MEH

Document 222

Filed 12/11/2006

Page 1 of 7

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 01-cv-2163-BNB-MEH SIERRA CLUB and MINERAL POLICY CENTER, Plaintiffs, vs. EL PASO PROPERTIES, INC., Defendant. ______________________________________________________________________________ EL PASO'S RESPONSE TO PLAINTIFFS' MOTION FOR RULING ON STANDING ______________________________________________________________________________ Plaintiffs seek a ruling that Mineral Policy Center may remain a party to this lawsuit based on the Sierra Club's standing. Plaintiffs' Motion at 1-2. Plaintiffs seek to avoid the standing inquiry because: (a) Mineral Policy Center's own governing documents prove that it does not possess standing; and (b) the District Court has already ruled against Mineral Policy Center on the identical issue in a separate proceeding. However, this Court has a constitutional duty to ensure that a party that invokes federal court jurisdiction has standing. Despite Plaintiffs' assertions, the standing inquiry need not consume substantial court, attorney or party resources. I. The jurisdictional requirement of standing is mandatory. It is well established that a plaintiff must have standing to maintain a lawsuit. Standing implicates subject matter jurisdiction and federal courts cannot exercise jurisdiction over a putative plaintiff's claim unless that plaintiff has standing. U.S. Const. Art. III, § 2; Lujan v.

Case 1:01-cv-02163-BNB-MEH

Document 222

Filed 12/11/2006

Page 2 of 7

Defenders of Wildlife, 504 U.S. 555, 560 (1992); San Juan County v. United States, 420 F.3d 1197, 1203 (10th Cir. 2005). The Supreme Court has made clear that "[t]hose who do not possess Article III standing may not litigate as suitors in the Courts of the United States." Valley Forge College v. Americans United for Separation of Church and State, 454 U.S. 464, 475-476 (1982). The Tenth Circuit has recognized that "standing to invoke the power of the federal courts is not a mere technical hoop through which every plaintiff must pass, but rather is part of the basic charter promulgated by the Framers of the Constitution." State of Utah v. Babbitt, 137 F.3d 1193, 1202 (10th Cir. 1998). Moreover, "principles of constitutional governance mandate strict compliance with the standing requirement." Id. In support of their motion, Plaintiffs rely on cases holding that once standing has been established for one plaintiff, the Court need not inquire into the standing of other parties. Plaintiffs' Motion at 4-6. Not surprisingly, all but one of the cases cited by Plaintiffs are appellate decisions.1 Standing is a mixed question of law and fact. Trial courts are better equipped to decide questions of standing because they can consider testimony and evidence firsthand. Appellate courts primarily decide questions of law and defer to factual findings of trial courts. While it makes sense that an appellate court would decline to consider a standing challenge when one party has standing, the district court's role includes that of being a gatekeeper to the federal judiciary. This Court has an obligation to consider the question of

1

Plaintiffs cite only one district court decision, Beartooth Alliance v. Crowne Butte Mines, 904 F.Supp. 1168 (D.Mt. 1995). In that case, the trial court declined to inquire into the standing of six parties, for judicial economy reasons, where the standing of three parties had already been established. Id. at 1171.

EL PASO'S RESPONSE TO PLAINTIFFS' MOTION FOR RULING ON STANDING Sierra Club, et al. v. El Paso Properties, Inc. 01-cv-2163-BNB-MEH Page 2

Case 1:01-cv-02163-BNB-MEH

Document 222

Filed 12/11/2006

Page 3 of 7

standing where, as here, undisputed evidence is before it to support a challenge. None of the cases relied on by Plaintiffs involved circumstances similar to those presented here. The Mineral Policy Center's Articles of Incorporation expressly recite that "[t]he Corporation shall have no members." See Exhibit 1 to El Paso's Motion at 5. While Mineral Policy Center's bylaws do allow the Board of Directors to "designate as members those persons (individuals or entities) who have made contributions or grants to the Corporation," the bylaws also provide that "[s]uch so-called members shall not be entitled to vote or to participate in the management of the Corporation's affairs." See Exhibit 2 to El Paso's Motion at 6. The evidence supporting El Paso's standing challenge is the Mineral Policy Center's own official governing documents as filed with the District of Columbia. II. The issue has already been decided in a factually identical case. Less than one year ago, District Court Judge Marcia Krieger entered an order finding that Mineral Policy Center has no true members, and that individuals who consider themselves members "do not enjoy the essential perquisites of membership." April 13, 2006 Order in CC&V Case at 26-28. The factual issue presented in each case is identical: whether pollutants from the El Paso shaft are discharged into Cripple Creek via the Roosevelt Tunnel. Mineral Policy Center identifies the same witnesses and evidence to prove standing in this case and the C&V Case. Exhibit 1 attached hereto contains the standing arguments presented by Plaintiffs in the CC&V case for comparison with the pleadings here. The issue of Mineral Policy Center's standing has already been finally determined by the United States District Court for the District

EL PASO'S RESPONSE TO PLAINTIFFS' MOTION FOR RULING ON STANDING Sierra Club, et al. v. El Paso Properties, Inc. 01-cv-2163-BNB-MEH Page 3

Case 1:01-cv-02163-BNB-MEH

Document 222

Filed 12/11/2006

Page 4 of 7

of Colorado, and issue preclusion bars Plaintiffs from challenging that determination. One of the central purposes of issue preclusion is to foster reliance on judicial action by minimizing the possibility of inconsistent decisions. Montana v. United States, 440 U.S. 147, 153-54 (1979). Issue preclusion bars a party from relitigating an issue once it has suffered an adverse determination on the issue, even if the issue arises when the party is pursuing or defending against a different claim. Park Lake Resources, LLC v. U.S. Dept. of Agriculture, 378 F.3d 1133, 1136 (10th Cir. 2004). The United States Supreme Court has held that a litigant who was not a party to the first case may nonetheless use issue preclusion against a party who lost on the decided issue in the first case. Allen v. McCurry, 449 U.S. 90, 94-95 (1980); 46 Am. Jur.2d Judgments § 491. The credibility of the judicial system will be undermined if this Court makes a standing adjudication in conflict with Judge Krieger's. Plaintiffs seek to relitigate, with different testimony, factual and legal claims that have already been rejected by this District Court. Issue preclusion seeks to prevent precisely the situation presented here. In both cases, Mineral Policy Center has asserted that the Roosevelt Tunnel discharge harms its interest in protecting the environment. Plaintiffs' Motion at 7; Exhibit 1 at 9-10. An organization has standing on its own behalf if it meets the standing requirements that apply to individuals. Havens Realty Corp. v. Coleman, 455 U.S. 363, 378-379 (1982). In order to have standing, Mineral Policy Center itself must have suffered an "injury in fact" that is concrete and particularized and actual or imminent, and not conjectural or hypothetical. Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167, 181 (2000).

EL PASO'S RESPONSE TO PLAINTIFFS' MOTION FOR RULING ON STANDING Sierra Club, et al. v. El Paso Properties, Inc. 01-cv-2163-BNB-MEH Page 4

Case 1:01-cv-02163-BNB-MEH

Document 222

Filed 12/11/2006

Page 5 of 7

Mineral Policy Center's Articles of Incorporation do not identify protecting the environment as a purpose or interest of the organization. The Articles of Incorporation indicate that the mission of the Mineral Policy Center includes conducting research, serving as a clearinghouse for information, and sponsoring educational activities. See Exhibit 1 to Plaintiffs' Motion at 1-2. Plaintiffs have alleged no facts explaining how the seasonal flow of water from the Roosevelt Tunnel into Cripple Creek in Teller County, Colorado, directly injures Mineral Policy Center, an education and research group based in Washington, D.C. III. The standing inquiry need not be burdensome. Plaintiffs complain that the standing inquiry "will likely consume substantial Court, party, and attorney resources." Plaintiffs' Motion at 7. El Paso presently expects that its evidence on standing will consume less than fifteen minutes of court time. The burdensome presentation of evidence will apparently come from the Plaintiffs, who suggest they may call five witnesses to contradict the Mineral Policy Center's own governing documents in their efforts to establish membership or sufficient indicia of membership to confer standing. Plaintiffs' Motion at 7 & 9. Plaintiffs offer no justification for calling multiple witnesses to testify to the same facts, and El Paso respectfully suggests an evidentiary hearing, if one is even needed, should consume minimal time. Plaintiffs offer no reason why they cannot streamline their presentation to one standing witness whom they believe will testify to facts sufficient to support the exercise of federal jurisdiction.

EL PASO'S RESPONSE TO PLAINTIFFS' MOTION FOR RULING ON STANDING Sierra Club, et al. v. El Paso Properties, Inc. 01-cv-2163-BNB-MEH Page 5

Case 1:01-cv-02163-BNB-MEH

Document 222

Filed 12/11/2006

Page 6 of 7

Lack of subject matter jurisdiction, including lack of standing, can be raised at any time in the judicial process. FED. R. CIV. P. 12(h)(3). This Court has a constitutional duty to inquire into Mineral Policy Center's standing when it becomes aware of facts that suggest a lack of standing. WHEREFORE, El Paso respectfully requests that this Court enter an order dismissing Mineral Policy Center from this action for lack of standing. Respectfully submitted this 11th day of December, 2006.

s/Stephen D. Harris____________ James L. Merrill, #9466 Stephen D. Harris, #24178 Michael J. Gustafson, #37364 MERRILL, ANDERSON, & HARRIS, LLC 20 Boulder Crescent Colorado Springs, CO 80903-3300 Telephone: (719) 633-4421 Facsimile: (719) 633-4759 Counsel for El Paso Properties, Inc.

EL PASO'S RESPONSE TO PLAINTIFFS' MOTION FOR RULING ON STANDING Sierra Club, et al. v. El Paso Properties, Inc. 01-cv-2163-BNB-MEH Page 6

Case 1:01-cv-02163-BNB-MEH

Document 222

Filed 12/11/2006

Page 7 of 7

CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing EL PASO'S RESPONSE TO PLAINTIFFS' MOTION FOR RULING ON STANDING was sent electronically via ECF this 11th day of December, 2006, to the following: John M. Barth, Esq. Attorney at Law Post Office Box 409 Hygiene, Colorado 80533 Roger Flynn, Esq. Jeffrey C. Parsons, Esq. 2260 Baseline Road, Suite 101A Boulder, Colorado 80302

s/Sarah D. White_____________ Sarah D. White, Legal Assistant

EL PASO'S RESPONSE TO PLAINTIFFS' MOTION FOR RULING ON STANDING Sierra Club, et al. v. El Paso Properties, Inc. 01-cv-2163-BNB-MEH Page 7