United States District Court, D. Montana, Great Falls Division
Morris United States District Court Judge
Wildearth Guardians (“Wildearth”) challenges the
alleged failure of the Department of Transportation
(“DOT”) and the Pipeline Hazardous Material
Safety Administration (“PHMSA”) to comply with
the Mineral Leasing Act's (“MLA”) directive
that all oil and gas pipelines on federal lands receive at
least one inspection annually. (Doc. 1). Federal Defendants
have moved to dismiss the complaint for lack of subject
matter jurisdiction and failure to state a claim pursuant to
Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). (Doc.
18). Federal Defendants argue also that Wildearth lacks
standing under Article III to bring its claim. (Doc. 19 at
requires that “[p]eriodically, but at least once a
year, the Secretary of the Department of Transportation shall
cause the examination of all pipelines and associated
facilities on Federal lands and shall cause the prompt
reporting of any potential leaks or safety problems.”
30 U.S.C. § 185(w)(3) (emphasis added). Congress later
enacted the Pipeline Safety Act of 1979 (“PSA”).
49 U.S.C. § 60101, et seq. The PSA gives the Secretary
of Transportation regulatory and enforcement authority to
take actions to protect the public against risks to life and
property posed by pipeline transportation and pipeline
facilities. Congress specifically declined to remove from DOT
the duty to cause the annual inspection of pipelines that
cross federal lands when it amended the MLA, despite
DOT's requests. (Doc. 23, at 2-3). The legislative
history notes that “the committee struck out th[e]
provision that would have removed what is now
185(w)(3).” (Doc. 23 at 3).
subsequently delegated this non-discretionary duty to cause
the examination of all pipelines on federal lands to PHMSA.
See 49 C.F.R. § 1.97(a)(1). Wildearth asserts that PHMSA
has failed to comply for at least six years with what the MLA
requires - action causing the annual examination of all
pipelines on federal lands. (Docs. 1 at ¶ 3; 23 at 17).
The MLA expressly compels PHMSA, pursuant to DOT's
delegation, to cause the inspection of all oil and gas
pipelines on federal lands. 30 U.S.C. § 185(w)(3).
alleges that PHMSA's existing inspection regulations
allegedly do not appear to encompass all oil and gas
pipelines that cross federal lands. See 49 U.S.C. §
60101(a)(21)-(22); 49 C.F.R. §§ 192.3, 195.2. For
example, the annual inspection requirements do not seem to
include non-regulated rural gas gathering lines, some rural
regulated gas gathering lines, oil flow lines, and certain
oil gathering and transmission lines outside of high
consequence areas. 49 C.F.R. §§ 192.8, 192.9,
192.705, 192.706, 195.1(b), 195.11, 195.12. Wildearth asserts
that PHMSA's failure to cause the inspection of these
pipelines constitutes agency inaction. Wildearth brings this
action pursuant to the APA's “failure to act”
provision set forth at 5 U.S.C. § 706(1).
Defendants dispute the notion that Wildearth's claim
challenges PHMSA's inaction. Federal Defendants contend
that Wildearth's complaint actually challenges
PHMSA's current PSA regulations for being
out-of-compliance with the MLA. Federal Defendants argue that
the court of appeals possesses exclusive jurisdiction over
Wildearth's suit. Congress provided that a person who
seeks to challenge a regulation prescribed under the PSA, or
an order issued under the PSA, “may apply for review of
the regulation or order by filing a petition for
review” in a court of appeals. 49 U.S.C. §
60119(a)(1); (Doc. 19 at 18-19). Federal Defendants further
contend that the eighty-nine-day time limit for seeking a
review of a PHMSA regulation or order bars Wildearth's
Court will address first whether Wildearth has standing under
Article III to bring its claim. The Court next will address
whether Wildearth presents a valid “failure to
act” claim pursuant to the APA. The Court finally will
analyze Federal Defendants' argument that the Court lacks
subject matter jurisdiction to hear Wildearth's claim.
Court must assume at this stage that all allegations in
Wildearth's complaint are true and draw reasonable
inferences in its favor. Wolfe v. Strankman, 392
F.3d 358, 362 (9th Cir. 2004). An injury must be
“concrete, particularized, and actual and
imminent” in order to establish Article III standing.
Martin v. City of Boise, 902 F.3d 1031, 1040 (9th
Cir. 2018). The injury must be “fairly traceable to the
challenged action” and be “redressable by a
favorable ruling.” Id. In this manner Article
III limits the federal judicial power “to those
disputes which confine federal courts to a role consistent
with a system of separated powers and which are traditionally
thought to be capable of resolution through the judicial
process.” Flast v. Cohen, 392 U.S. 83, 96
an injury to be particularized, it must affect the plaintiff
in a personal and individual way.” Spokeo, Inc. v.
Robins, __U.S.__, 136 S.Ct. 1540, 1548 (2016).
Environmental cases prove no different and thus require an
injury to the plaintiff, not to the environment. Id.
At the pleadings stage, however, “general factual
allegations of injury resulting from the defendant's
conduct may suffice.” Lujan v. Defs. of
Wildlife, 504 U.S. 555, 561 (1992). The Court may
“presume that general allegations embrace those
specific facts that are necessary to support the
claim.” Oregon v. Legal Serv. Corp., 552 F.3d
965, 969 (9th Cir. 2009). Environmental plaintiffs
“adequately allege injury in fact when they aver that
they use the affected area and are persons for whom the
aesthetic and recreational values of the area will be
lessened by the challenged activity.” Id.
Defendants claim that Wildearth fails to allege a
particularized injury that fairly can be traced to PHMSA.
(Doc. 19 at 29-30). Federal Defendants characterize
Wildearth's injury as simply aesthetic. Id. at
29. Federal Defendants assert that Wildearth must associate
an alleged injury complaining of certain “sights,
sounds, and smells” with particular leaking or rusted
pipelines. Id. at 30-31. Federal Defendants argue
that Wildearth must allege that at least one pipeline causing
the particular “sights, sounds, and smells” must
be a “flow, gathering, or transmission pipeline”
and prove “PHMSA's regulations do not require
annual examinations for that pipeline.” Id. at
alleges that its members can see, hear, and smell leaking
pipelines while recreating on public lands. (Doc. 1 at ¶
17-21). These leaks and smells allegedly decrease
Wildearth's members recreational enjoyment and cause them
concerns related to potential health impacts as a result of
exposure to leaking pipelines. Id. Wildearth alleges
that its injury arises from PHMSA's failure to cause the
inspection of all oil and gas pipelines as the MLA requires.
Id. (citing 30 U.S.C. § 185(w)(3)).
purposes of ruling on a motion to dismiss for want of
standing, ” the Court “must accept as true all
material allegations of the complaint, and must construe the
complaint in favor of the [plaintiff].” Warth v.
Seldin, 422 U.S. 490, 501 (1975). The Court determines
at this stage in the proceedings that the Wildearth alleges a
sufficiently particularized injury. Wildearth alleges that
its members “use the affected area” and the
associated smells and sounds impact its members “in an
individual way.” Spokeo Inc., 136 S.Ct. at 1548. The
Court further presumes that the general allegations in
Wildearth's complaint embraces those specific facts
necessary to support Wildearth's complaint. Legal Servs.
Corp., 552 F.3d at 969.
alleged injury proves “fairly traceable to the
challenged action.” Martin, 902 F.3d at 1040. Wildearth
alleges that its injury stems from PHMSA's failure to
cause the annual inspection of all oil and gas pipelines as
the MLA requires. 30 U.S.C. § 185(w)(3). Wildearth has
provided specific examples of visits to five locations on
public lands where members observed oil and gas pipelines
that are subject to the MLA's inspection requirement.
(Doc. 1 at ¶ 17). Wildearth alleges, in effect, that if
PHMSA were to cause the annual inspection of all oil and gas
pipelines under the purview of the MLA, the offensive sounds
and smells would not exist.
redressability of Wildearth's alleged injury remains an
issue for this Court. Wildearth seeks what amounts to
mandamus relief to comply with the MLA. See 28 U.S.C. §
1361. The Court's decision on redressability of
Wildearth's alleged injury turns on whether it possesses