Free Motion to Dismiss Party - District Court of Colorado - Colorado

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

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Filed 11/17/2006

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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. ______________________________________________________________________________ DEFENDANT'S MOTION TO DISMISS PLAINTIFF MINERAL POLICY CENTER FOR LACK OF STANDING ______________________________________________________________________________ Defendant El Paso Properties, Inc. ("El Paso"), by counsel, respectfully moves the Court pursuant to FED. R. CIV. P. 12(b)(1) to dismiss Plaintiff Mineral Policy Center for lack of standing. Plaintiffs Sierra Club and Mineral Policy Center claim that pollutants flow from El Paso's property into the Roosevelt Tunnel and thence into Cripple Creek in violation of the Clean Water Act. A bench trial is scheduled to commence on February 5, 2007. Prior to appeal, the trial court found "as a matter of law that plaintiffs have Article III standing to bring this citizen suit on behalf of themselves and their members." November 15, 2002 Order at 10. The trial court held that Plaintiffs alleged that: (1) Plaintiffs' members had suffered injuries in fact; (2) Plaintiffs' injuries were caused by El Paso's conduct; and (3) the injuries alleged were redressable. Id. at 7-10. The trial court did not consider evidence regarding whether Mineral Policy Center has members sufficient to confer associational standing under federal law.

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In a separate federal lawsuit ("the CC&V Case"), the Plaintiffs herein claimed that a third party was also liable for the alleged Roosevelt Tunnel discharge. Sierra Club v. Cripple Creek & Victor Gold Mining Co., Case No. 00-cv-2325-MSK-MEH. On April 13, 2006, the District Court in the CC&V Case entered judgment against the Plaintiffs on all claims. As relevant here, the District Court ruled that Mineral Policy Center lacked standing because the organization has no true members, and those individuals who consider themselves members "do not enjoy the essential perquisites of membership." April 13, 2006 Order in the CC&V Case at 26-28. Article III of the United States Constitution restricts the exercise of federal subject matter jurisdiction to actual cases and controversies. 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. Defenders of Wildlife, 504 U.S. 555, 560 (1992); San Juan County v. United States, 420 F.3d 1197, 1203 (10th Cir. 2005). 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) ("Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action."); see also Basso v. Utah Power & Light Co., 495 F.2d 906, 909 (10th Cir. 1974) (emphasis in original) ("A court lacking jurisdiction cannot render judgment but must dismiss the cause at any stage of the proceedings in which it becomes apparent that jurisdiction is lacking."). Even a party's concession of standing is not determinative because "parties cannot confer subject matter

DEFENDANT'S MOTION TO DISMISS PLAINTIFF MINERAL POLICY CENTER

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jurisdiction on the courts by agreement." Wilson v. Glenwood Intermountain Properties, Inc., 98 F.3d 590, 593 (10th Cir. 1996). When a defendant raises a factually-based challenge to a plaintiff's standing, the court does not "presume the truthfulness of the complaint's factual allegations," but instead "has wide discretion to allow affidavits, other documents, and a limited evidentiary hearing to resolve disputed jurisdictional facts under Rule 12(b)(1)." Holt v. United States, 46 F.3d 1000, 1003 (10th Cir. 1995). Mineral Policy Center purports to assert its claim against El Paso "on behalf of its adversely affected members." Complaint at 4. An organization has standing to bring suit on behalf of its members when: (1) its members would have standing to sue in their own right; (2) the interests at stake are germane to the organization's members; and (3) neither the claim asserted nor the relief requested requires participation of individual members in the lawsuit. Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167, 181 (2000). An organization without members can have standing if the individuals it calls members "possess all of the indicia of membership in an organization." Hunt v. Washington State Apple Advertising Comm'n, 432 U.S. 333, 344-45 (1977). Indicia of membership include the ability to elect officers, the ability to serve as an officer of the organization, and the ability to finance the organization. Id. Mineral Policy Center does not have traditional members. Indeed, Mineral Policy Center's Articles of Incorporation expressly recite that "[t]he Corporation shall have no members." See Exhibit 1 attached hereto at 5. While Mineral Policy Center's bylaws do allow
DEFENDANT'S MOTION TO DISMISS PLAINTIFF MINERAL POLICY CENTER

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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 at 6. Thus, even Mineral Policy Center's "so-called members" lack the indicia of membership required for associational standing, including the right to elect or serve as officers and the right to control the organization. Plaintiffs' counsel advised Defendant's counsel that Mineral Policy Center has not amended its Articles of Incorporation or bylaws since the District Court's April 13 ruling. Even if Mineral Policy Center had amended its organizational documents in an attempt to create standing, however, the Tenth Circuit has held that "[s]tanding is determined as of the time the action is brought." Nova Health Sys. v. Gandy, 416 F.3d 1149, 1154 (10 Cir. 2005). Insofar as Mineral Policy Center did not have members that possess the indicia of membership necessary to confer Article III standing when this case was filed in 2001, the Court must dismiss Mineral Policy Center from this case for lack of subject matter jurisdiction. El Paso also contends that this Court may apply collateral estoppel to dismiss Mineral Policy Center for lack of standing. Collateral estoppel prevents a party from re-litigating issues that were actually decided in a prior action. Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326 (1979). The Supreme Court has noted that "once an issue is actually and necessarily determined by a court of competent jurisdiction, that determination is conclusive in subsequent suits based on a different cause of action involving a party to the prior litigation." Montana v. United States,
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440 U.S. 147, 153 (1979). Collateral estoppel protects litigants from the expense and vexation of multiple lawsuits, conserves judicial resources and fosters reliance on judicial action by minimizing the possibility of inconsistent decisions. Id. at 153-54. In the Tenth Circuit, collateral estoppel applies when: (1) the issue previously decided is identical to the issue presented in the action in question; (2) the prior action was finally adjudicated on the merits; (3) the party against whom the doctrine is invoked was a party to the prior action; and (4) the party against whom the doctrine is raised had a full and fair opportunity to litigate the issue in the prior action. In Re Lombard, 739 F.2d 499, 502 (10th Cir. 1984). Collateral estoppel bars Mineral Policy Center from disputing that it lacks standing to pursue this action. Mineral Policy Center is a plaintiff in the CC&V Case. In the CC&V Case, the District Court expressly found that Mineral Policy Center lacked standing to pursue a Clean Water Act citizen's suit based upon the Roosevelt Tunnel discharge. April 13, 2006 Order in the CC&V Case at 26-28. Judge Krieger's ruling operated as a final adjudication on the merits against Mineral Policy Center. Mineral Policy Center is represented by the same legal counsel in both cases and the "members" identified by Plaintiffs in each case are identical. Mineral Policy Center had a full and fair opportunity to litigate the issue of standing in the CC&V Case and failed to prevail therein.

WHEREFORE, El Paso respectfully moves this Court pursuant to FED. R. CIV. P. 12(b)(1) & 12(h)(3) to enter an order dismissing Mineral Policy Center from this action for lack
DEFENDANT'S MOTION TO DISMISS PLAINTIFF MINERAL POLICY CENTER

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of standing. Respectfully submitted this 17 day of November, 2006.
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s/James L. Merrill_____ 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. CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing DEFENDANT'S MOTION TO DISMISS PLAINTIFF MINERAL POLICY CENTER was sent electronically via ECF this th 17 day of November, 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

DEFENDANT'S MOTION TO DISMISS PLAINTIFF MINERAL POLICY CENTER

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