UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

___________________________________ 

 ) 

C.L. “BUTCH” OTTER, in his official) 

Capacity as Governor of the State ) 

of Idaho, et al., ) 

 ) 

Plaintiffs, ) 

) 

v. ) Case No. 15-cv-1566 (EGS) 

 ) 

S.M.R. JEWELL, in her official ) 

Capacity as Secretary of the ) 

United States Department of the ) 

Interior, et al., ) 

 ) 

Federal Defendants ) 

 ) 

THE WILDERNESS SOCIETY, et al., ) 

 ) 

 Intervenor-Defendants ) 

___________________________________) 

MEMORANDUM OPINION 

Plaintiffs Butch Otter, in his official capacity as the 

Governor of Idaho, and the Idaho State Legislature, bring this 

action pursuant to Section 702 of Administrative Procedure Act 

(“APA”), seeking review of certain final agency decisions of the 

federal defendants,1 contending that they are contrary to the 

 

1 The federal defendants are S.M.R. Jewell, in her official 

capacity, Secretary, U.S. Department of the Interior; Janice 

Schneider, in her official capacity, Assistant Secretary for 

Land and Minerals Management; Neil Kornze, in his official 

capacity, Director of the Bureau of Land Management; U.S. Bureau 

of Land Management; Thomas J. Vilsack, in his official capacity, 

Secretary, U.S. Department of Agriculture; Thomas L. Tidwell, in 
2

National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321 et 

seq., the Federal Land Policy and Management Act (“FLPMA”), 43 

U.S.C. §§ 1701 et seq., and the National Forest Management Act 

(“NFMA”), 16 U.S.C. § 1600 et seq. See Compl., ECF No. 1 ¶ 10. 

Pending before the Court are the parties’ motion and crossmotions for summary judgment, in which the federal defendants 

argue, among other things, that this Court lacks subject matter 

jurisdiction because plaintiffs do not have standing to bring 

their claims pursuant to Article III of the U.S. Constitution. 

Upon consideration of the motion and cross-motions, the 

responses and replies thereto, the applicable law, and for the 

reasons stated below, the Court concludes that it lacks subject 

matter jurisdiction over plaintiffs’ claims, and therefore 

cannot reach the merits of those claims, because plaintiffs have 

failed to meet their burden of demonstrating that they have 

suffered an injury-in-fact as a result of the agency action.2

Therefore, plaintiffs’ motion for summary judgment is DENIED, 

federal defendants’ cross-motion for summary judgment is 

 

his official capacity, Chief of the U.S. Forest Service; and 

United States Forest Service. 

2 Even if plaintiffs had demonstrated that they have standing to 

bring their claims, their claims are not ripe for review 

substantially for the reasons articulated by the federal 

defendants. 
3

GRANTED, and intervenor-defendants’ cross-motion for summary 

judgment is DENIED as moot.3 

I. BACKGROUND 

This case is before this Court as related to the Courtapproved agreements between environmental advocacy groups and 

the Fish and Wildlife Service (“FWS”) in 2010 to settle multidistrict litigation. See In re ESA Section 4 Deadline Litig.—MDL 

No. 2156, Misc. Action No. 10-377 (D.D.C.2010). The agreements 

require FWS to determine by certain deadlines whether to list a 

number of species as endangered or threatened under the 

Endangered Species Act (“ESA”), or find that listing these 

species is not warranted. Misc. Action No. 10-377, ECF No. 42. 

Relevant to the case currently before the Court, FWS was 

required to make a listing decision regarding the Sage-Grouse by 

September 30, 2015. Misc. Action No. 10-377, ECF No. 56. 

In anticipation of the need to make that decision, the 

Bureau of Land Management (“BLM”) and the Forest Service 

“undertook a land use planning effort of unprecedented scope 

[that] was designed to amend or revise the existing regulatory 

 

3Intervenor-defendants Wilderness Society, National Audubon 

Society, National Wildlife Federation, and Earthworks did not 

challenge plaintiffs’ Article III Standing, nor did Amicus 

Owyhee County, Idaho; Public Lands Council; and National 

Cattlemen’s Beef Association address standing. Therefore, the 

Court does not reach the arguments on the merits made by those 

parties.
4

mechanisms—federal land use plans—to provide enforceable 

conservation measures and management objectives to protect and 

improve Sage-Grouse habitat.” Federal Defs.’ Combined Mem. in 

Supp. of Cross-Mot. for Summ. J., ECF No. 56 at 16-17. The 

planning effort, which involved federal land in ten western 

states, spanned four years and included the participation of 

members of the public and numerous state and federal entities, 

including the State of Idaho. Id. at 17; Mem. in Supp. of Mot. 

for Prelim. Inj., ECF No. 15-1 at 17-18. Idaho’s participation 

included, among other things, the submission of one of the 

alternative plans for consideration by BLM and the Forest 

Service. Federal Defs.’ Combined Mem. in Supp. of Cross-Mot. for 

Summ. J., ECF No. 56 at 19; Mem. in Supp. of Mot. for Prelim. 

Inj., ECF No. 15-1 at 18-19, 21-22. That plan was not adopted as 

the final agency decision although federal defendants state that 

several aspects of the Idaho plan were included in the final 

agency decision. Federal Defs.’ Combined Mem. in Supp. of CrossMot. for Summ. J., ECF No. 56 at 25. Plaintiffs ask this Court 

to set aside, vacate, and remand the final decision, 

specifically the land use plan amendment and supporting 

Environmental Impact Statement (“EIS”) for the Idaho and 
5

Southwestern Montana sub-region (“IDMT Plan” or “plan”),4 as 

contrary to law. 

II. Standard of Review 

 “Summary judgment is the proper mechanism for deciding, as a 

matter of law, whether an agency action is supported by the 

administrative record and consistent with the APA standard of 

review, which requires a reviewing court to ‘hold unlawful and 

set aside agency action, findings, and conclusions found to be . 

. . arbitrary, capricious, an abuse of discretion, or otherwise 

not in accordance with the law.” UPMC v. Sebelius, 793 F.Supp.2d 

62, 67 (D.D.C.2011). Due to the limited role of a court in 

reviewing the administrative record, the typical summary 

judgment standards set forth in Rule 56(c) are not applicable. 

Stuttering Found. of America v. Springer, 498 F.Supp.2d 203, 207 

(D.D.C.2007)(internal citation omitted). Rather, “[u]nder the 

APA, it is the role of the agency to resolve factual issues to 

arrive at a decision that is supported by the administrative 

record, whereas ‘the function of the district court is to 

determine whether or not as a matter of law the evidence in the 

administrative record permitted the agency to make the decision 

it did.’” Id. (quoting Occidental Eng’g Co. v. INS, 753 F.2d 

766, 769-70 (9th Cir.1985)). A reviewing court will “hold 

 

4 Plaintiffs refer to the final agency decision at issue as the 

Idaho Land Use Planning Amendments (“Idaho LUPA”). 
6

unlawful and set aside agency action, findings, and conclusions 

found to be . . . arbitrary, capricious, an abuse of discretion, 

or otherwise not in accordance with the law.” Ludlow v. Mabus, 

793 F.Supp.2d 352, 354 (D.D.C.2001) (quoting 5 U.S.C. § 

706(2)(A)). 

III. Analysis 

A. Standing 

“Article III of the Constitution limits the jurisdiction of 

the federal courts to ‘Cases’ and ‘Controversies.’” Susan B. 

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

U.S. Const., art. III, § 2). “‘One element of the case-orcontroversy requirement’ is that plaintiffs ‘must establish that 

they have standing to sue.’” Clapper v. Amnesty Int’l USA, 133 

S. Ct. 1138, 1146 (2013) (quoting Raines v. Byrd, 521 U.S. 811, 

818 (1997)). The standing requirement “serves to prevent the 

judicial process from being used to usurp the powers of the 

political branches.” Id. To establish standing, “a plaintiff 

must show (1) an ‘injury in fact,’ (2) a sufficient ‘causal 

connection between the injury and the conduct complained of,’ 

and (3) a ‘likel[ihood]’ that the injury ‘will be redressed by a 

favorable decision.’” Susan B. Anthony List, 134 S. Ct. at 2341 

(quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 

(1992)). The injury-in-fact requirement is only satisfied when 

an injury is “‘concrete and particularized’ and ‘actual or 
7

imminent, not conjectural or hypothetical.’” Id. (quoting Lujan, 

504 U.S. at 560). 

“The party invoking federal jurisdiction bears the burden 

of establishing these elements.” Lujan, 504 U.S. at 561 

(internal citations omitted). “Since they are not mere pleading 

requirements but rather an indispensable part of the plaintiff's 

case, each element must be supported in the same way as any 

other matter on which the plaintiff bears the burden of proof, 

i.e., with the manner and degree of evidence required at the 

successive stages of the litigation.” Id. “In response to a 

summary judgment motion . . . the plaintiff . . . must set forth 

by affidavit or other evidence specific facts, Fed.Rule 

Civ.Proc. 56(e), which for purposes of the summary judgment 

motion will be taken to be true.” Id. (internal quotation marks 

omitted). “[A]t summary judgment a court will not ‘presume’ the 

missing facts necessary to establish an element of standing.” 

Swanson Group Mfg. LLC v. Jewell, 790 F.3d 235, 240 

(D.C.Cir.2015) (quoting Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 

871, 889 (1990)). 

Although “states are ‘entitled to special solicitude in our 

standing analysis’ . . . . [they are not] exempt from the burden 

of establishing a concrete and particularized injury in fact.” 

Coal. for Responsible Regulation Inc. v. EPA, 684 F.3d 102, 148 

(D.C.Cir.2012)(quoting Massachusetts v. E.P.A., 549 U.S. 497, 
8

522 (2007)); see also State of West Virginia v. U.S. Department 

of Health and Human Services, 145 F.Supp.3d 94, 101 

(2015)(reasoning that states “too must allege a cognizable 

injury-in-fact to establish standing”). 

Here, federal defendants dispute that plaintiffs have 

satisfied the injury-in-fact requirement necessary to 

demonstrate standing. The Court agrees. 

1. Plaintiffs have failed to demonstrate that they have 

suffered an injury-in-fact as a result of the binding 

standards and self-implementing aspects of the IDMT 

Plan 

In support of their argument that they have standing to 

bring their claims, plaintiffs state that the purpose of the 

IDMT Plan was to make mandatory, binding changes to land use, 

and that as a result of these changes, certain “immediate 

decisions” went into effect upon its adoption. Pls.’ Combined 

Reply in Supp. of Mot. for Summ. J., ECF No. 58 at 13. These 

“immediate decisions” include “allocation of lands as open or 

closed for salable mineral sales, lands open with stipulations 

for oil and gas leasing, and OHV [Off Highway Vehicle] area 

designations.” Id. Plaintiffs then assert that because deviating 

from the standards set forth in the IDMT Plan would require a 

site-specific forest plan amendment, “there is no legal ability 

to change challenged standards in the interim between the 

pendency of this action and when a later, site-specific activity 
9

is undertaken.” Id. Plaintiffs conclude that they are 

challenging binding standards for third-party activity and 

assert that federal defendants cannot contend that the plan is 

merely a planning level document because of the selfimplementing aspects of the plan. Id. at 14. 

Federal defendants reply that they do not dispute that the 

plan is intended to be implemented in the future, nor that it 

contains binding standards. Federal Defs.’ Reply in Supp. of 

Cross-Mot. for Summ. J., ECF No. 62 at 8. That said, federal 

defendants assert that until there is a specific implementation 

decision, there is no injury to plaintiffs’ claimed interests. 

Id. at 9; Federal Defs.’ Combined Mem. in Supp. of Cross-Mot. 

for Summ. J., ECF No. 56 at 37 (citing Fed. Forest Res. Coal. v. 

Vilsack, 100 F.Supp.3d at 46 for the proposition that “plaintiff 

lacks standing when challenged rule or plan does not implement 

site-specific decision”).5 Federal defendants dispute that any of 

the “immediate decisions” provide a basis for a cognizable 

injury-in-fact, pointing out that plaintiffs “merely speculate 

that those immediate decisions will somehow affect revenues owed 

 

5 Plaintiffs distinguish Fed. Forest Res. Coal. v. Vilsack, 100 

F.Supp.3d. 121 (D.D.C.2015) from the circumstances in this case 

because the binding standards in the IDMF Plan are distinct from 

the ‘amalgamation of first principles’ at issue in Fed. Forest 

Res. Coal. Pls.’ Combined Reply in Supp. of Mot. for Summ. J., 

ECF No. 58 at 13. However, it is not necessary for the Court to 

address this issue because plaintiffs have failed to provide any 

facts in support of their injury-in-fact.
10

to the State.” Id. at 9-10. In sum, according to federal 

defendants, “[p]laintiffs’ allegations of harm flowing from the 

certainty of the plans are unsupported by facts, speculative and 

conclusory.” Id. 

Plaintiffs bear the burden of demonstrating that they 

“suffered an injury in fact—an invasion of a legally protected 

interest which is (a) concrete and particularized, and (b) 

actual or imminent, not conjectural or hypothetical.” Lujan, 504 

U.S. at 561 (internal quotations omitted). At the summary 

judgment stage, plaintiffs must “set forth by affidavit or other 

evidence specific facts” supporting the alleged injury-in-fact. 

Id.(internal quotations omitted). Based on the record before the 

Court, plaintiffs have failed to meet this burden because they 

set forth no facts at all to support their argument that the 

binding standards and self-implementing aspects of the plan have 

caused them injuries. See Pls.’ Combined Reply in Supp. of Mot. 

for Summ. J., ECF No. 58 at 13-14. Plaintiffs’ citations to the 

Administrative Record support their point that the plan contains 

binding standards. Id. at 14. Plaintiffs do not, however, set 

forth any specific facts to demonstrate an injury-in-fact as a 

result of the binding standards and self-implementing aspects of 

the IDMT Plan. 

 
11

2. Plaintiffs have failed to demonstrate that they have 

suffered an injury-in-fact to Governor Otter’s ability 

to carry out his constitutional responsibilities 

Next, plaintiffs argue that the mandatory standards set 

forth in the plan “directly impede, impair and injure Governor 

Otter’s ability to carry out his constitutional responsibilities 

as chief executive of Idaho, which is a cognizable injury-infact.” Pls.’ Combined Reply in Supp. of Mot. for Summ. J., ECF 

No. 58 at 14-15. Plaintiffs assert that because of the interest 

states have as sovereigns in creating and enforcing a legal 

code, they “may have standing based on (1) federal assertions of 

authority to regulate matters they believe they control, (2) 

federal preemption of state law, and (3) federal interference 

with the enforcement of state law, at least where the state 

statute at issue regulate[s] behavior or provide[s] for the 

administration of a state program.” Pls.’ Combined Reply in 

Supp. of Mot. for Summ. J., ECF No. 58 at 15 (quoting Texas v. 

United States, 809 F.3d 134, 153 (5th Cir.2015), as revised (Nov. 

25, 2015), aff’d by an equally divided Court, 136 S.Ct. 2271, 

2272 (2016)). Plaintiffs argue that “[i]njury to Idaho’s 

sovereign authority over wildlife management” is a cognizable 

injury-in-fact because, pursuant to Idaho Code § 36-103, the 

wild animals within the borders of the state are owned by the 

state in its sovereign capacity. Pls.’ Combined Reply in Supp. 

of Mot. for Summ. J., ECF No. 58 at 14-15. 
12

Federal defendants acknowledge that “[s]tates can have 

standing to challenge federal actions that allegedly infringe on 

state sovereignty or police powers in certain circumstances, 

such as where federal law impairs the enforceability of an 

existing state law or directly regulates a state officer’s 

official duties.” Federal Defs.’ Reply in Supp. of Cross-Mot. 

for Summ. J., ECF No. 62 at 11 (citing Arpaio v. Obama, 27 

F.Supp.3d, 185, 201-02 (D.D.C. 2014)). Those circumstances are 

not present here, according to federal defendants, because at 

issue is “a federal land use plan, promulgated pursuant to valid 

delegations of federal power vested in the federal government by 

the Constitution, which applies only to federal property and 

will be implemented by federal officials.” Id. at 11-12. Federal 

defendants agree that the State of Idaho has police powers over 

the wildlife on state lands, noting that the IDMT Plan neither 

regulates Sage-Grouse nor infringes on the State’s authority to 

manage wildlife on its own land.6 Id. at 13. 

The Court finds plaintiffs’ legal support for standing 

based on injury to state sovereignty to be unpersuasive. In 

Texas v. United States, which constitutes persuasive authority 

 

6 The Court agrees with federal defendants’ observation that the 

cases cited by plaintiffs which stand for the proposition that 

States have police powers over the wildlife within their borders 

do not provide legal support for their theory of standing based 

on state sovereignty. 
13

for this Court, the Court of Appeals for the Fifth Circuit found 

that the State of Texas had standing to sue because it had 

demonstrated that it “would incur significant costs in issuing 

driver’s licenses to DAPA [Deferred Action for Parents of 

Americans and Lawful Permanent Residents] beneficiaries.” 809 

F.3d at 155. This circumstance, which concerns the financial 

impact of federal action on a program wholly within the purview 

of state law—specifically the issuance of state driver’s 

licenses—is clearly distinguishable from the circumstance in 

this case, which, as explained by federal defendants, concerns 

“a federal land use plan, promulgated pursuant to valid 

delegations of federal power vested in the federal government by 

the Constitution, which applies only to federal property and 

will be implemented by federal officials.” Federal Defs.’ Reply 

in Supp. of Cross-Mot. for Summ. J., ECF No. 62 at 11-12. Nor 

does plaintiffs’ reliance on Alaska v. U.S. Dep’t of Transp., 

868 F.3d 441, 443 (D.C.Cir.1989) help their cause as the injury 

alleged in that case was federal preemption of state law, which 

has not been alleged in this case. 

 In Arpaio, Chief Judge Howell of this Court rejected a 

county sheriff’s standing to sue in his official capacity based 

on a theory similar to the “spill-over” effect theory advanced 

by Governor Otter and the Idaho State Legislature here. See 

infra Section III.A.3. Sheriff Arpaio alleged that federal 
14

immigration policies “inhibit[ed] his ability to perform his 

official functions as the Sheriff of Maricopa County” and 

“adversely affected and harmed his office’s finances, workload, 

and interfere[d] with the conduct of his duties.” 27 F.Supp.3d 

at 200. The Court acknowledged that if federal law directly 

regulated a state officer’s official duties it would present a 

question distinct from that before the Court: “the challenged 

[federal] programs do not regulate the official conduct of the 

plaintiff but merely regulate the conduct of federal immigration 

officials in the exercise of their official duties.” Id. at 202. 

This is analogous to the circumstance in this case, which again 

concerns “a federal land use plan . . . which applies only to 

federal property and will be implemented by federal officials.” 

Federal Defs.’ Reply in Supp. of Cross-Mot. for Summ. J., ECF 

No. 62 at 11-12. 

Even if there was legal precedent for plaintiffs’ theory of 

injury to state sovereignty, based on the record before the 

Court, plaintiffs have failed to meet their burden of 

demonstrating that they “suffered an injury in fact—an invasion 

of a legally protected interest which is (a) concrete and 

particularized, and (b) actual or imminent, not conjectural or 

hypothetical . . . set forth by affidavit or other evidence 

specific facts” supporting the alleged injury-in-fact. Lujan, 

504 U.S. at 561 (internal quotations omitted). The three 
15

declarations plaintiffs cite to demonstrate injury-in-fact to 

Governor Otter’s ability to carry out his constitutional 

responsibilities merely speculate about various injuries that 

may result from the implementation of the IDMT Plan. None 

provide factual support demonstrating any concrete and 

particularized, and actual or imminent injury as a result of the 

IDMT Plan. See Otter Decl., ECF No. 17, ¶¶ 6, 12-47, 48-54 

(alleging generalized injuries to Governor’s and State’s ability 

to execute constitutional duties); Moore Decl., ECF No. 22, ¶¶ 

23-25 (describing how certain changes to the IDMT Plan were not 

justified and were made without soliciting or considering 

Idaho’s comments); Schultz Decl. ECF No. 19, ¶¶ 5-7, 9 

(estimating losses to state revenue resulting from non-surface 

occupancy restrictions and listing general impacts that “may” 

result from the IDMT Plan). 

3. Plaintiffs have failed to demonstrate that they have 

suffered an injury-in-fact as a result of “spillover” 

effects of the IDMT Plan on state and privately owned 

lands 

Next, plaintiffs argue that their injury includes: (1) the 

“spillover effects of federal management onto surrounding stateand privately- owned lands” which are “intermixed in a checkerboard pattern” and across which Sage-Grouse freely range; (2) 

lost state revenue from bonuses and royalties from oil and gas 

production on federal land as a result of the no surface 
16

occupancy (NSO) restrictions in the [Sagebrush Focal Areas]” and 

(3) an increase in the risk of wildfires on federal land, which 

will spread to adjacent state land. Pls.’ Combined Reply in 

Supp. of Mot. for Summ. J., ECF No. 58 at 17. 

Federal defendants respond that plaintiffs’ allegations are 

are conclusory and lack factual support and that none of the 

“spillover effects” demonstrate an injury-in-fact. Federal 

Defs.’ Reply in Supp. of Cross-Mot. for Summ. J., ECF No. 62 at 

14. 

Again, however, plaintiffs have failed to meet their burden 

of demonstrating that they “suffered an injury in fact—an 

invasion of a legally protected interest which is (a) concrete 

and particularized, and (b) actual or imminent, not conjectural 

or hypothetical . . . set forth by affidavit or other evidence 

specific facts” supporting the alleged injury-in-fact. Lujan, 

504 U.S. at 561 (internal quotations omitted). The five 

declarations plaintiffs cite to demonstrate injury-in-fact as a 

result of spill-over effects of the IDMT Plan fail to provide 

factual support demonstrating any concrete and particularized, 

and actual or imminent injury. See Schultz Decl. ECF No. 19, ¶¶ 

5-7, 9 (estimating losses to state revenue resulting from nonsurface occupancy restrictions and listing general impacts that 

“may” result from the IDMT Plan); Chatburn Decl., ECF No. 20, ¶¶ 

18-20 (declaring that the China Mountain wind energy project was 
17

“effectively jettisoned” when work on the Environmental Impact 

Statement for that project was deferred until the IDMT Plan 

process was finalized and that the IDMT Plan “continue[s] the 

federal government’s pattern, to date, of refusing to permit or 

significantly delaying the development of utility scale, 

renewable energy projects . . . [and also] undermin[ing] the 

necessity of predictability in Western energy siting processes);7

Brackett Decl., ECF No. 24, ¶ 9 (declaring that the IDMT Plan 

will result in an exacerbated wildfire risk); Bedke Decl., ECF 

No. 21, ¶¶ 6-7, 13 (declaring that the threat of wildfires will 

be exacerbated and that the State’s sovereign authority to 

manage wildlife within its borders is undermined by the IDMT 

Plan); Gould Decl., ECF No. 23, ¶¶ 10-11, 16-17(declaring a 

potentially dramatic impact on Idaho’s livestock industries and 

local economies, expecting value of state leases to be impacted, 

describing expected impacts on members of Idaho’s livestock 

industry who utilize public grazing allotments).8

 

7 Moreover, the Court notes that the decision to defer work on the 

EIS for the China Mountain wind energy project was a separate 

agency decision that is not being challenged in this case. 

8 The Court agrees with federal defendants that plaintiffs’ 

fourth argument—that “agency actions are not immune to judicial 

review simply because they are labelled ‘plans’”, see Pls.’ 

Combined Reply in Supp. of Mot. for Summ. J., ECF No. 58 at 17, 

is more relevant to ripeness than standing. Clearly, the IDMT 

Plan is not immune to judicial review as long as the plaintiff 

can demonstrate: “(1) an ‘injury in fact,’ (2) a sufficient 

‘causal connection between the injury and the conduct complained 

of,’ and (3) a ‘likel[ihood]’ that the injury ‘will be redressed 
18

IV. CONCLUSION 

For the reasons stated above, plaintiffs’ motion for 

summary judgment is DENIED, federal defendants’ cross-motion for 

summary judgment is GRANTED, and intervenor-defendants’ crossmotion for summary judgment is DENIED as moot. An appropriate 

order accompanies this Memorandum Opinion. 

Signed: Emmet G. Sullivan 

 United States District Judge 

 January 5, 2017 

 

by a favorable decision.’” Susan B. Anthony List, 134 S. Ct. at 

2341 (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-

61 (1992)). As explained above, plaintiffs here have failed to 

demonstrate that they have suffered an injury-in-fact as a 

result of the adoption of the plan.