Norton

The issue we address is whether Ashley Creek Phosphate Company has standing to bring this action under the National Environmental Policy Act (“NEPA”). Ashley Creek has no environmental stake in the phosphate mining project at issue, which is some 250 miles from the phosphate Ashley Creek controls. Indeed, its only interest is an economic one: if the project does not go forward, Ashley Creek speculates that it might become an alternate supplier of phosphate. Because it has shown neither an injury in fact nor an interest within the zone of interests protected by section 102(2)(C) of NEPA, 1 Ashley Creek lacks standing to bring this NEPA challenge.

ProCedural And Factual Background

Agrium Conda Phosphate Operations manufactures phosphate-based fertilizer at the Conda Phosphate Processing Plant (“the Plant”) near Soda Springs, Idaho. Agrium historically has obtained phosphate for the Plant from the Rasmussen Ridge Mine, which is about twelve miles from the Plant. With the Rasmussen Ridge Mine nearing depletion, Agrium began exploring alternate sources of phosphate in the late 1990s.

One option that Agrium initially considered was to supply the Plant with phosphate from deposits…

concurring in part and concurring in the judgment:

I concur in the judgment and Part I of the opinion of the court. Because Ashley Creek has failed to establish constitutional standing, I would leave for another day deciding whether the prudential standing doctrine forecloses any plaintiff asserting a purely economic injury from bringing suit under § 102 of NEPA. Compare Court Op., supra at 938 (“The injury in fact prong [of the Article III standing analysis] is determinative of this appeal.”) with Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26 , 39 n. 19, 96 S.Ct. 1917 , 48 L.Ed.2d 450 (1976) (determination that petitioners lacked constitutional standing rendered consideration of the “zone of interest” test unnecessary).

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ASHLEY CREEK PHOSPHATE CO., 

Plaintiff-Appellant, v. No. 04-35640 GALE NORTON, Secretary, United States Department of the Interior;  D.C. No.

CV-03-00499-BLW

NU-WEST INDUSTRIES, INC., dba:

OPINION

Agrium Conda Phosphate Operations, Defendants-Appellees.  Appeal from the United States District Court for the District of Idaho B. Lynn Winmill, District Judge, Presiding

Argued and Submitted June 7, 2005—Seattle, Washington

Filed August 22, 2005

Before: Warren J. Ferguson, Robert R. Beezer, and M. Margaret McKeown, Circuit Judges.

Opinion by Judge McKeown; Partial Concurrence and Partial Dissent by Judge Beezer

11075 11078 ASHLEY CREEK PHOSPHATE v. NORTON

COUNSEL

E. Craig Smay, E. Craig Smay, P.C., Salt Lake City, Utah, for the appellant.

Zach C. Miller, Davis Graham & Stubbs, Denver, Colorado, for the appellees.

Robert C. Grisham, Assistant United States Attorney, Boise, Idaho, for the appellees.

OPINION

McKEOWN, Circuit Judge:

The issue we address is whether Ashley Creek Phosphate Company has standing to bring this action under the National…