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IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Stephen Dewhurst, 

Plaintiff, 

v. 

Tom Vilsack, Secretary U.S. Department of 

Agriculture; Calvin Joyner, U.S. Forest 

Service Southwest Regional Forester, 

Defendants.

No. CV-15-08265-PCT- NVW

ORDER 

 Before the Court is Plaintiff Dewhurst’s motion for summary judgment (Doc. 15), 

and Defendants Vilsack and Joyner’s cross-motion for summary judgment (Doc. 16). 

I. BACKGROUND 

 Over the course of several years, the U.S. Forest Service, under the supervision of 

defendants Tom Vilsack, Secretary of the U.S. Department of Agriculture, and Calvin 

Joyner, U.S. Forest Services Southwestern Regional Forester, has undertaken the FourForest Restoration Initiative Project (“The Project”), a systematic tree restoration project 

targeting nearly one million acres of Arizona national forests. (Doc. 18 at 1; Doc. 6, ¶ 3; 

AR-116376.)1

 

 Pursuant to the National Environmental Policy Act (NEPA), the Forest Service 

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 Citations beginning with “AR” reference the administrative record in this case. 

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must publish an environmental impact statement before undertaking any largescale 

environmental action, The Project at issue here being one such action. See 42 U.S.C. § 

4332(2)(C). Accordingly on January 25, 2011, the Forest Service published in the 

Federal Register a public notice of intent to prepare an environmental impact statement 

for The Project. (AR-116376; 76 FR 4279-81.) For approximately two years afterward, 

the Forest Service received public comments and, using the feedback it received, 

produced a Draft Environmental Impact Statement made available for notice-andcomment on March 29, 2013. (AR-116377; Environmental Impacts Statements; Notice 

of Availability, 78 Fed. Reg. 19261-01 (March 29, 2013).) After receiving more than 

1,000 individual comments over the formal sixty-day notice-and-comment period, the 

Forest Service produced a Final Environmental Impact Statement and a Draft Record of 

Decision, together detailing its plans for The Project. (AR-116378.) Both documents 

were then subject to review and objection, and the Forest Service, after receiving a total 

of nine objections, extended the objection period in order to reach resolutions on each 

one. (AR-116379.) The Forest Service conducted meetings with those who offered 

objections and subsequently published the Final Environmental Impact Statement, an 

addendum entitled “Errata and Objection Resolution Modification,” and a revised Record 

of Decision, all of which reflect the resolution of these objections. (Id.) 

 Plaintiff Stephen Dewhurst (“Dewhurst”), a university forestry professor, has been 

an outspoken public participant throughout The Project’s administrative review process. 

Among other involvement, Dewhurst submitted written comments to the Draft 

Environmental Impact Statement on May 29, 2013, submitted written objections to both 

the Final Environmental Impact Statement and Draft Record of Decision on January 20, 

2015, and participated in an objection resolution meeting with the Forest Service on 

March 18, 2015. (Doc. 6, ¶ 2.) Through these and other interactions with Forest Service 

officials, Dewhurst ultimately raised several concerns he had with The Project, in 

particular the extent to which he believed its production violated the National 

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Environmental Policy Act (NEPA) and the Collaborative Forest Landscape Restoration 

Program (CFLRP) (which itself demands compliance with the NEPA). (See, e.g., AR035695; AR-115814.) Dewhurst has continued to maintain these concerns through the 

filing of this suit. (See Docs. 1, 15, 19.) He alleges that, because of “[t]he failure of the 

Defendants to ensure implementation and compliance with the law and the rules,” he 

finds himself unable to teach his university students “how the laws and the rules are to be 

followed.” (Doc. 15 at 8.) 

 On November 9, 2015, Dewhurst filed this lawsuit claiming what appear to be 

three separate alleged violations of law resulting in injury to him.2

 First, he claims the 

Forest Service violated NEPA by unilaterally inserting a change to the project’s stated 

purpose in the Final Environmental Impact Statement’s Errata and Objection Resolution 

Modification addendum, rather than opening up the proposed change for notice and 

comment. (Doc. 1 at 3-4.) Second, Dewhurst claims the Forest Service executed a 

Record of Decision based on what he characterizes as “an unprecedented type of 

document, an Environmental Impact Statement with Errata and Objection Resolution 

Modifications,” a document he claims to be “undefined in rule, regulation, or statute.” 

(Id. at 4.) And third, Dewhurst alleges that the Final Environmental Impact Statement 

and Record of Decision did not consider “a full range of ecological restoration 

alternatives.” (Id.) Defendants filed an Answer to the complaint on February 16, 2016. 

(Doc. 6.) 

 On April 15, 2016, Dewhurst filed a motion for summary judgment. (Doc. 15.) 

Defendants filed a cross-motion for summary judgment on May 13, 2016. (Doc. 16.) 

They raise two principle arguments in support of summary judgment in their favor: first, 

that Dewhurst lacks standing, and second, that even if Dewhurst has standing, The 

 2

 Dewhurst’s complaint is vague as to the precise number and types of violations 

he alleges. It should be noted from the outset that it is the plaintiff’s responsibility to 

state all claims clearly and completely. The Court cannot be tasked with piecing together 

fragmented arguments or reading between the lines for claims not immediately apparent. 

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Project fully complies with both NEPA and the CFLRP. (Doc. 18 at 6-7.) Dewhurst 

filed a response on May 27, 2016. (Doc. 19.) 

 While it is difficult to perceive any legal defect in the Defendants’ actions, the 

Court does not reach the issue on the merits because, for the reasons set forth below, 

Dewhurst lacks standing to bring this suit. 

II. Legal Standards 

 As a general matter, the “irreducible constitutional minimum” of standing 

requires that “the plaintiff must have (1) suffered an injury in fact, (2) that is fairly 

traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed 

by a favorable judicial decision.” Spokeo Inc. v. Robins, — U.S. —, 136 S. Ct. 1540, 

1547 (2016) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)). 

Standing to enforce a federal law, however, only exists where Congress has created a 

private right of action as to that particular law. Alexander v. Sandoval, 532 U.S. 275, 286 

(2001). Since NEPA does not include a private right of action, “plaintiffs challenging an 

agency action based on NEPA must do so under the Administrative Procedure Act . . . ” 

Ashley Creek Phosphate Co. v. Norton, 420 F.3d 934, 939 (9th Cir. 2005). Thus, for 

Dewhurst to have standing to bring this suit, he must have standing under the 

Administrative Procedure Act (APA). 

 The APA grants a right of action to anyone “adversely affected or aggrieved by 

agency action within the meaning of a relevant statute . . . ” 5 U.S.C. § 702. A plaintiff 

suing under the APA, however, must also “assert an interest ‘arguably within the zone of 

interests to be protected or regulated by the statute or constitutional guarantee in 

question.’” Ranchers Cattlemen Action Legal Fund United Stockgrowers of America v. 

United States Dept. of Agric., 415 F.3d 1078, 1103 (9th Cir. 2005) (quoting Nev. Land 

Action Ass’n v. United States Forest Serv., 8 F.3d 713, 715-16 (9th Cir. 1993)). This 

requirement serves “to exclude those plaintiffs whose suits are more likely to frustrate 

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than to further statutory objectives.” Clarke v. Sec. Indus. Ass’n, 479 U.S. 388, 397 n.12 

(1987). That said, the Supreme Court has clarified that in the APA context the test for 

whether a plaintiff falls within a statute’s zone of interests “is not especially demanding.” 

Lexmark Int’l, Inc. v. Static Control Components, Inc., — U.S. —, 134 S. Ct. 1377, 1388 

(2014) (internal quotation marks omitted). The test forecloses suit “only when a 

plaintiff’s interests are so marginally related to or inconsistent with the purposes implicit 

in the statute that it cannot reasonably be assumed that Congress authorized that plaintiff 

to sue.” Id. (citing Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 

567 U.S. —, 132 S. Ct. 2199, 2210 (2012)) 

 In any case, the central purpose of NEPA is “to protect the environment, not the 

economic interests of those adversely affected by agency decisions.” Nev. Land Action 

Ass’n, 8 F.3d at 716. Thus, to fall within NEPA’s zone of interests for the purpose of 

standing, “a plaintiff must allege injury to the environment . . . ” Ranchers Cattlemen, 

415 F.3d at 1103 (emphasis added). 

III. ANALYSIS 

 Dewhurst has asserted here that the Forest Service’s actions have “placed [him] in 

a state of conflict,” which has “significantly harmed his ability to conduct his livelihood 

of explaining the laws” to his university students. (Doc. 15 at 5.) Defendants interpret 

this as asserting an economic injury (Doc. 18 at 10), which, if correct, would by itself be 

insufficient to bring him within NEPA’s zone of interests. Dewhurst contends that this 

mischaracterizes his position (Doc. 19 at 3-4), though he does not clearly articulate what 

the correct characterization is.3

 Regardless, he nowhere claims that the Defendants’ 

actions caused any actual injury to the environment. Without asserting some harm to the 

 3

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of the forests.” (Doc. 19 at 3.) But because the government had no opportunity to 

respond, neither this nor any other arguments Dewhurst raised for the first time in his 

reply brief will be considered here. 

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environment from which his alleged injuries arose, Dewhurst cannot establish standing to 

sue under NEPA. See Nev. Land Action Ass’n, 8 F.3d at 716 (“[A] NEPA claim may not 

be raised by a party with no claimed or apparent environmental interest.”) 

 Dewhurst also appears to contend that he has suffered a separate harm allegedly 

covered by the statute, namely a procedural one. In both his complaint and his motion for 

summary judgment, Dewhurst points to what he characterizes as the Forest Service’s 

failure to address “science-based ecological restoration” in its Final Environmental 

Impact Statement. (Doc. 1 at 4; Doc. 15 at 8.) Through a series of rhetorical questions, 

Dewhurst implies that as a result he has been left unable to perform his job of educating 

students on the regulation of America’s forests. (See Doc. 15 at 8.) 

 A plaintiff does not have standing to raise “only a generally available grievance 

about government,” one “claiming only harm to his and every citizen’s interest in proper 

application of the Constitution and laws . . . ” Lujan, 504 U.S. at 573. However, where a 

plaintiff has been granted a procedural right to protect his concrete interests, that plaintiff 

“can assert that right without meeting all the normal standards for redressability and 

immediacy.” Lujan, 504 U.S. at 572 n.7. For instance, plaintiffs could potentially have 

standing to enforce “the procedural requirement for a hearing prior to denial of their 

license application, or the procedural requirement for an environmental impact statement 

before a federal facility is constructed next door to them.” Id. at 572. 

 But there is an important difference between those examples and the case at hand. 

For both the license applicant and the neighbor to a proposed federal facility, the 

applicable procedural requirements are intended to guard their interests in particular: a 

hearing requirement targets license applicants for protection against erroneous denials, 

just as the requirement of issuing an environmental impact statement targets for 

protection, among others, nearby residents at risk of adverse effects. Whomever NEPA’s 

procedural requirements were designed to protect, it is abundantly clear they were not 

designed to protect educators from having to explain agency decisions to their students. 

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Explaining government actions to students is precisely what educators in a variety of 

disciplines are tasked with doing every day—even when those actions are ones they find 

perplexing. To grant Dewhurst standing here would be to give each and every educator 

in the country standing to sue the government whenever he or she finds a government 

policy decision difficult to explain. 

 Given that the true objective of NEPA is to protect the environment, Nev. Land 

Action Ass’n, 8 F.3d at 716, limiting standing solely to those alleging environmental 

injuries rightly guards against “plaintiffs whose suits are more likely to frustrate than to 

further statutory objectives,” Clarke, 479 U.S. at 397 n.12. NEPA simply grants no 

procedural right to educators, and thus the harms Dewhurst alleges here do not fall within 

the statute’s zone of interests. Accordingly, he is without standing to sue. 

IT IS THEREFORE ORDERED that Plaintiff’s motion for summary judgment 

(Doc. 15) is denied. 

IT IS FURTHER ORDERED that Defendants’ Cross-Motion for Summary 

Judgment (Doc. 16) is granted for lack of standing. 

IT IS FURTHER ORDERED that the Clerk enter judgment against Plaintiff 

Stephen Dewhurst and in favor of Defendants Tom Vilsack and Calvin Joyner, 

dismissing this action without prejudice for lack of standing and lack of jurisdiction. 

The Clerk shall terminate this case. 

Dated this 13th day of September, 2016. 

Neil V. Wake

United States District Judge 

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