FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MONTANA ENVIRONMENTAL

INFORMATION CENTER; SIERRA

CLUB,

Plaintiffs-Appellants,

v.

TRACY STONE-MANNING, in her

official capacity as Director of the

Montana Department of

Environmental Quality,

Defendant-Appellee,

and

SPRING CREEK COAL COMPANY

LLC; GREAT NORTHERN PROPERTIES

LIMITED PARTNERSHIP; CROW TRIBE

OF INDIANS; INTERNATIONAL UNION

OF OPERATING ENGINEERS, LOCAL

400; WESTERN ENERGY COMPANY;

WESTMORELAND RESOURCES, INC.;

NATURAL RESOURCE PARTNERS

L.P.,

Intervenor-Defendants–Appellees.

No. 13-35107

D.C. No.

6:12-cv-00034-

DLC

OPINION

Appeal from the United States District Court

for the District of Montana

Dana L. Christensen, Chief District Judge, Presiding
2 MEIC V. STONE-MANNING

Argued and Submitted

May 12, 2014—Seattle, Washington

Filed September 11, 2014

Before: Diarmuid F. O’Scannlain, Andrew J. Kleinfeld,

and Marsha S. Berzon, Circuit Judges.

Opinion by Judge O’Scannlain

SUMMARY*

Environmental Law / Ripeness / Standing

The panel affirmed the dismissal for lack of subjectmatter jurisdiction of a citizen suit claiming that the Director

of the Montana Department of Environmental Quality would

violate duties imposed by the Surface Mining Control and

Reclamation Act by approving a pending application for a

mining permit.

The panel held that the plaintiffs lacked standing, and

their claims for declaratory and injunctive relief were not

ripe. The panel concluded that the plaintiffs’ alleged injury

was not imminent because, even assuming arguendo that the

Director would not do a proper cumulative hydrologic impact

assessment under the Act, the plaintiffs’ allegations did not

establish a substantial risk that the Director would grant the

permit application at all. Without deciding whether the firm

* This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
MEIC V. STONE-MANNING 3

prediction rule applied under the circumstances of this case,

the panel held that the rule’s standards for ripeness were not

met because the panel could not make a firm prediction that

the Director would grant the mining permit application.

COUNSEL

Walton D. Morris, Jr., Morris Law Office, P.C.,

Charlottesville, Virginia, argued the cause on behalf of

plaintiffs-appellants. Megan Anderson O’Reilly, Western

Environmental Law Center, Taos, New Mexico, filed the

opening brief. With her on the opening brief were Morris and

Shiloh Hernandez, Western Environmental Law Center,

Helena, Montana. Hernandez filed the reply brief. With her

on the reply brief were O’Reilly and Morris.

Dana David, Department of Environmental Quality, Helena,

Montana, argued the cause and filed the brief on behalf of

defendant-appellee.

John C. Martin, Crowell & Moring LLP, Washington, D.C.,

argued the cause on behalf of defendants-intervenorsappellees. Sherrie A. Armstrong, Crowell & Moring LLP,

Washington, D.C., filed the brief. With her on the brief were

Martin; Kristen L. Nathanson, Crowell & Moring LLP,

Washington, D.C.; Andrew C. Emrich, Holland & Hart LLP,

Greenwood Village, Colorado; Patrick R. Day, Holland &

Hart LLP, Cheyenne, Wyoming; and William W. Mercer,

Holland & Hart LLP, Billings, Montana.

Christopher B. Power, Dinsmore & Shohl LLP, Charleston,

West Virginia, filed the brief for Amicus Curiae Interstate

Mining Compact Commission, in support of the defendants-
4 MEIC V. STONE-MANNING

intervenors-appellees. With him on the brief were Robert M.

Stonestreet, Dinsmore & Shohl LLP, Charleston, West

Virginia, and Gregory E. Conrad, Interstate Mining Compact

Commission, Herndon, Virginia.

Ashley Brown, Alaska Department of Law, Anchorage,

Alaska, filed the brief for Amicus Curiae State of Alaska, in

support of defendants-intervenors-appellees. With her on the

brief was Michael C. Geraghty, Alaska Department of Law,

Anchorage, Alaska.

OPINION

O’SCANNLAIN, Circuit Judge:

Wemust decide whether a challenge to potential approval

of a surface mining permit is ripe for judicial review.

I

Montana Environmental Information Center and Sierra

Club (collectively, “MEIC”) sued Tracy Stone-Manning, the

Director of the Montana Department of Environmental

Quality, in her official capacity. MEIC claims that StoneManning will violate duties imposed by the Surface Mining

Control and Reclamation Act (“SMCRA”), 30 U.S.C.

§§ 1201–1328, by approving a pending application for Area

B of the Rosebud Mine. Invoking the statute’s citizen-suit

provision, 30 U.S.C. § 1270(a)(2), MEIC asked for

declaratory and injunctive relief.
MEIC V. STONE-MANNING 5

A

SMCRA establishes a “cooperative federalism” regime

for mining regulation. See Hodel v. Va. Surface Mining &

Reclamation Ass’n, 452 U.S. 264, 289 (1981). Under

SMCRA, Congress “offer[s] States the choice of regulating

. . . according to federal standards or having state law

pre-empted by federal regulation.” New York v. United

States, 505 U.S. 144, 167 (1992) (citing Hodel, 452 U.S. at

288); see also 30 U.S.C. § 1253.

Montana adopted a regulatory program for non-federal

lands, see Mont. Code Ann. §§ 82-4-201 to -254, with the

approval of federal authorities, 30 C.F.R. § 926.10. Montana

also “enter[ed] into a cooperative agreement with [the federal

government] to provide for State regulation of surface coal

mining and reclamation operations on Federal lands within

the State.” 30 U.S.C. § 1273(c); accord 30 C.F.R. § 926.30.

B

MEIC argued that SMCRA requires Stone-Manning to

withhold approval of any permit application until she finds

that a cumulative hydrologic impact assessment (“CHIA”)

“has been made by the regulatory authority and the proposed

operation [“of all anticipated mining in the area”] has been

designed to prevent material damage to hydrologic balance

outside permit area.” See 30 U.S.C. § 1260(b)(3). According

to MEIC, this CHIA duty “effectively impose[s]” on StoneManning three subsidiary duties to: (1) “formulate and apply

meaningful, objective material damage criteria that define the

conditions that would constitute ‘material damage to the

hydrologic balance’ outside the proposed permit area,”

(2) “include among the material damage criteria so
6 MEIC V. STONE-MANNING

formulated and applied each Montana water quality standard

applicable to each surface or groundwater resource that the

proposed mine may affect,” and (3) “rationally and

reasonably find, before approving any application for a new

or significantly revised mining permit, that the proposed

surface coal mining operation has been designed to prevent

material damage to the hydrologic balance outside the

proposed permit area.”

MEIC alleged that Stone-Manning and her predecessors

“have engaged in a pattern and practice of approving

applications for permits to conduct surface coal mining and

reclamation operations without” complying with the

subsidiary duties. This pattern purportedly shows that StoneManning will not follow SMCRA when considering

Application 184, the pending application for a permit revision

for Area B of the Rosebud Mine. MEIC asked for relief in

the form of a declaratory judgment and “[a]n order

compelling [Stone-Manning] to comply with” the subsidiary

duties.

C

In the district court, Stone-Manning moved for dismissal

under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). 

Intervenors1 moved for judgment on the pleadings under

Federal Rule of Civil Procedure 12(c). The district court

granted both motions, relying on four independently

1 The district court granted a motion to intervene filed by the Crow Tribe

of Indians, Great Northern Properties Limited Partnership, Natural

Resource Partners L.P., Spring Creek Coal LLC, Western Energy

Company, Westmoreland Resources, Inc., and International Union of

Operating Engineers, Local 400.
MEIC V. STONE-MANNING 7

sufficient reasons, including lack of ripeness.2 MEIC timely

appealed.

II

MEIC argues on appeal that the district court erred in

ruling that its claims are not ripe. It invokes the firm

prediction rule that originated in Justice O’Connor’s

concurrence in Reno v. Catholic Social Services, 509 U.S. 43,

67 (1993) (O’Connor, J., concurring in the judgment). 

Intervenors contend that MEIC lacks standing to pursue an

unripe claim. We first analyze the constitutional limitations

on federal jurisdiction and then assess the impact of the firm

prediction rule.

A

1

Article III of the Constitution limits the jurisdiction of

federal courts to “cases” and “controversies.” U.S. Const. art.

III, § 2. To enforce this constitutional limitation, the

Supreme Court has articulated numerous doctrines that

restrict the types of disputes that federal courts will entertain,

including standing and ripeness.3

2 Because oral argument has already occurred, we deny MEIC’s motion

to expedite oral argument as moot.

3 We are concerned here with the constitutional aspects of standing and

ripeness. We need not analyze prudential standing or prudential ripeness. 

See Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334, 2347 (2014)

(refusing to “resolve the continuing vitality of the prudential ripeness

doctrine”).
8 MEIC V. STONE-MANNING

Constitutional standing has three components:

[A] plaintiff must show (1) it has suffered an

“injury in fact” that is (a) concrete and

particularized and (b) actual or imminent, not

conjectural or hypothetical; (2) the injury is

fairly traceable to the challenged action of the

defendant; and (3) it is likely, as opposed to

merely speculative, that the injury will be

redressed by a favorable decision. An

association has standing to bring suit on

behalf of its members when its members

would otherwise have standing to sue in their

own right, the interests at stake are germane to

the organization’s purpose, and neither the

claim asserted nor the relief requested

requires the participation of individual

members in the lawsuit.

Friends of the Earth, Inc. v. Laidlaw Envt’l Srvs. (TOC), Inc.,

528 U.S. 167, 180–81 (2000) (citing Lujan v. Defenders of

Wildlife, 504 U.S. 555, 560–61 (1992), and Hunt v. Wash.

State Apple Adver. Comm’n, 432 U.S. 333, 343 (1977)).

A dispute is ripe in the constitutional sense if it

“present[s] concrete legal issues, presented in actual cases,

not abstractions.” Colwell v. HHS, 558 F.3d 1112, 1123 (9th

Cir. 2009) (internal quotation marks omitted). In the context

of a declaratory judgment suit, the inquiry “depends upon

‘whether the facts alleged, under all the circumstances, show

that there is a substantial controversy, between parties having

adverse legal interests, of sufficient immediacy and reality to

warrant the issuance of a declaratory judgment.’” United

States v. Braren, 338 F.3d 971, 975 (9th Cir. 2003) (quoting
MEIC V. STONE-MANNING 9

Md. Cas. Co. v. Pac. Coal & Oil Co., 312 U.S. 270, 273

(1941)).

Ripeness and standing are closely related because they

“originate from the same Article III limitation.” Susan B.

Anthony List v. Driehaus, 134 S. Ct. 2334, 2341 n.5 (2014)

(internal quotation marks omitted) (“[T]he Article III

standing and ripeness issues in this case boil down to the

same question.” (internal quotation marks omitted)); id. at

2345–46 (citing Ohio Civil Rights Comm’n v. Dayton

Christian Sch., Inc., 477 U.S. 619, 625–26 n.1 (1986), a

ripeness case, as part of a discussion of standing). As a

result, we have previously recognized that “in many cases,

ripeness coincides squarely with standing’s injury in fact

prong.” Thomas v. Anchorage Equal Rights Comm’n,

220 F.3d 1134, 1138 (9th Cir. 1999) (en banc) (“The

constitutional component of the ripeness inquiry is often

treated under the rubric of standing . . . . Indeed, because the

focus of our ripeness inquiry is primarily temporal in scope,

ripeness can be characterized as standing on a timeline.”).

2

Regardless of whether we use the verbal formulations

developed for standing or the ones developed for ripeness,

our analysis is materially unchanged.

a

MEIC asserts that its members will be harmed by mining

activity that will occur because Stone-Manning will fail to

comply with her CHIA duty. MEIC does not challenge the

approval of past applications; it challenges only the

anticipated approval of Application 184, which is currently
10 MEIC V. STONE-MANNING

pending. Because the alleged injury has not yet occurred,

MEIC is not suing over an “actual” injury. We therefore

must determine whether MEIC’s alleged injury is

“imminent.”

An injury is imminent “if the threatened injury is

‘certainly impending,’ or there is a ‘“substantial risk” that the

harm will occur.’” SBA List, 134 S. Ct. at 2341 (quoting

Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138, 1147, 1150

n.5 (2013)). MEIC emphasizes that it alleged a pattern or

practice of Stone-Manning granting applications without

doing proper CHIAs. Assuming arguendo that those

allegations establish that Stone-Manning will not do a proper

CHIA for Application 184, they do not establish a substantial

risk that Stone-Manning will grant the application at all. 

MEIC’s complaint is devoid of allegations about the

likelihood of Stone-Manning approving Application 184.4

Such omission is of crucial importance. MEIC argues

that its members will be injured by mining operations that

have not been subjected to a proper CHIA. But that mining

will occur only if Stone-Manning grants the application. 

MEIC’s complaint did not allege a “substantial risk” of harm

because it did not allege a “substantial risk” that StoneManning will approve the application.

4 MEIC alleges that the Department of Environmental Quality approved

Applications 161, 164, 166, 170, 172, 174, 175, 178, 180, and 182, but

does not allege anything about the other applications numbered between

161 and 182. We do not know whether the unmentioned applications

were approved or even whether they were similar to the mentioned ones. 

The most that we can infer, then, is that the department approved at least

ten of the twenty-two applications in that range. Such frequency, about

45 percent, does notsuffice to show a substantial risk that Stone-Manning

will approve Application 184.
MEIC V. STONE-MANNING 11

Even if we assume that MEIC can bring this suit on

behalf of its members, see Laidlaw, 528 U.S. at 181, its

members do not have standing. They have not suffered an

“actual or imminent” injury in fact. Id. at 180.

b

Analyzing the sufficiency of MEIC’s complaint under the

constitutional ripeness standard yields the same answer for

the same reasons. See Nat’l Org. for Marriage, Inc. v. Walsh,

714 F.3d 682, 688–89 & n.6 (2d Cir. 2013) (considering

ripeness and standing together because “[c]onstitutional

ripeness . . . is really just about” the injury-in-fact

requirement). Because MEIC does not allege a substantial

risk that Stone-Manning will grant the application, we cannot

characterize this dispute as “a substantial controversy . . . of

sufficient immediacy and reality to warrant the issuance of a

declaratory judgment.” Braren, 338 F.3d at 975. This

dispute is more an “abstraction[]” than an “actual case”

because the supposed injury has not materialized and may

never materialize. Colwell, 558 F.3d at 1123; see also Alcoa,

Inc. v. Bonneville Power Admin., 698 F.3d 774, 793 (9th Cir.

2012) (“We have dismissed claims that are based solely on

harms stemming from events that have not yet occurred, and

may never occur, because the plaintiffs raising such claims

have not suffered an injury that is concrete and particularized

enough to survive the standing/ripeness inquiry.” (internal

quotation marks omitted)).

B

To counter the argument that its claims are not ripe,

MEIC invokes the firm prediction rule. If the case is ripe
12 MEIC V. STONE-MANNING

under the firm prediction rule, MEIC argues, then it must also

have standing to bring the case.

1

The firm prediction rule originated in Justice O’Connor’s

concurring opinion in Catholic Social Services. In that case,

plaintiffs challenged regulations governing an “alien

legalization program.” CSS, 509 U.S. at 45. In the context of

this “benefit-conferring rule,” Justice O’Connor explained:

If it is “inevitable” that the challenged

rule will “operat[e]” to the plaintiff’s

disadvantage—if the court can make a firm

prediction that the plaintiff will apply for the

benefit, and that the agency will deny the

application by virtue of the [challenged]

rule—then there may well be a justiciable

controversy that the court may find prudent to

resolve.

CSS, 509 U.S. at 69 (O’Connor, J., concurring in the

judgment) (first alteration in original).

Although the Supreme Court did not adopt Justice

O’Connor’s standard, we did in Freedom to Travel Campaign

v. Newcomb, 82 F.3d 1431, 1436 (9th Cir. 1996) (applying

the firm prediction rule to a challenge to regulations

governing permission to travel to Cuba). See also Immigrant

Assistance Project of L.A. Cnty. Fed’n of Labor (AFL-CIO)

v. INS, 306 F.3d 842, 861–62 (9th Cir. 2002) (applying the

firm prediction rule to a challenge to INS policies and

practices governing illegal immigrants’ applications for

legalization).
MEIC V. STONE-MANNING 13

2

Without deciding whether the firm prediction rule applies

under the present circumstances, its standards are not met in

this case. We can no more make a firm prediction that StoneManning will grant the application than we can conclude that

there is a substantial risk of her doing so.

Our precedent has not determined exactly how likely an

event must be for a court to make a firm prediction that it will

occur. Nonetheless, two considerations provide some

guidance. First, Justice O’Connor, the creator of the test,

equated being able to make a firm prediction that an event

would occur with that event being “inevitable.” CSS,

509 U.S. at 69 (O’Connor, J., concurring in the judgment)

(“If it is ‘inevitable’ that the challenged rule will ‘operat[e]’

to the plaintiff’s disadvantage—if the court can make a firm

prediction that the plaintiff will apply for the benefit, and that

the agency will deny the application by virtue of the rule

. . . .” (quoting Reg’l Rail Reorganization Act Cases, 419 U.S.

102, 143 (1974))).

Second, our previous cases have made firm predictions

when the plaintiff’s injury was nearly certain. In Freedom to

Travel Campaign, for example, the challenged regulation

permitted educational travel to Cuba only if the proposed

travel plans included at least one of two defined activities. 

82 F.3d at 1436. Because the plaintiff’s “educational travel

plans include[d] neither activity and would be therefore

summarily rejected[,] its claims [were] ripe under [the firm

prediction rule].” Id. Similarly, in Immigrant Assistance

Project, we described the possibility that the government

would deny plaintiffs’ applications on any ground other than

the challenged rule as “remote.” 306 F.3d at 862.
14 MEIC V. STONE-MANNING

We cannot make a firm prediction about whether or not

Stone-Manning will grant the application. MEIC has failed

to allege that Stone-Manning’s approval is inevitable or even

particularly likely. Indeed, it includes no allegations at all

about the likelihood of Stone-ManningapprovingApplication

184.5

III

For the foregoing reasons, the district court correctly

dismissed the case for lack of subject-matter jurisdiction.6

AFFIRMED.

5 Because the issue of ripeness is dispositive, we do not address the

district court’s alternative bases for dismissal.

6 MEIC has not argued on appeal, and did not argue below, that it should

be permitted to amend its complaint to add allegations that might affect

our ripeness analysis. See Rivera v. Peri & Sons Farms, Inc., 735 F.3d

892, 901 (9th Cir. 2013) (ruling that arguments not presented in the

opening brief are waived); Reyn’s Pasta Bella, LLC v. Visa USA, Inc.,

442 F.3d 741, 749 (9th Cir. 2006) (refusing to order the district court to

allow amendment to a pleading when the party did not request leave to

amend below). Instead, it limited its argument to asking that we reverse

and remand for proceedings on the merits of its claims. We cannot do so.