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National Wildlife Fed'n v. Burford

ELR Citation: 18 ELR 20328
Nos. Nos. 86-5239, -5240, 835 F.2d 305/(D.C. Cir., 12/11/1987) Aff'd

Upholding the district court's issuance of a preliminary injunction, the court rules that §202(d) of the Federal Land Policy and Management Act (FLPMA) requires that termination of public land classifications must be consistent with resource management plans, and that §309(e) requires public participation in decisions to revoke withdrawals. Plaintiff challenged the Bureau of Land Management's (BLM's) lifting of protective restrictions on about 180 million acres of public land, arguing that BLM violated FLPMA provisions that require certain procedures to be followed before releasing land from the public reserve. The court first holds that plaintiff has standing to bring suit on behalf of its members. Plaintiff has established injury-in-fact, since it alleges that its members use the withdrawn and classified lands in question for recreational or aesthetic purposes and these uses could be threatened by mineral exploration and development. Plaintiff is not required to identify any specific member who uses a particular parcel of land covered by the agency's action; even if it were, the defect was cured by the submission of affidavits by two of plaintiff's members after the issuance of the preliminary injunction. The allegations of injury are sufficiently concrete to survive a motion to dismiss, since it is clear that the challenged agency action will affect lands used by plaintiff's members. The court holds that plaintiff is not required to show that each of its members has standing, nor must it establish standing for each tract of land to obtain relief for that tract. The court declines to rule on the issue of Rep. John Sieberling's standing, since the preliminary injunction was not based on the congressman's claim.

The court holds that the injunction does not impermissibly affect the rights and interests of absent third parties. The injunction enjoins federal defendants only, and does not invalidate existing mining claims or mineral leases. Although the injunction does affect third parties in the form of lost or delayed opportunities to purchase or use federal lands in the future, these interests are not constitutionally protected property rights. The court holds that plaintiff had no administrative avenues of review available to it, and thus was not required to exhaust its administrative remedies. FLPMA itself imposes no exhaustion requirement, and the Department of the Interior's regulations provide administrative recourse only to parties to individual classification terminations. Even if plaintiff could have appealed to the Interior Board of Land Appeals, the court holds that the district court did not abuse its discretion by not requiring exhaustion. The court holds that the doctrine of laches does not apply, since defendant-intervenor never raised the issue before the district court.

Turning to the merits, the court holds that the district court did not abuse its discretion in issuing the preliminary injunction. The court holds that plaintiff has shown a likelihood of success on its claim that BLM's termination of land classifications without first preparing management plans violated FLPMA. BLM relied on pre-FLPMA plans, and the statute and the regulations taken together indicate that the pre-FLPMA plans do not satisfy the land use planning requirements of FLPMA §202(d). The court holds that plaintiff has also shown a likelihood of success on its claim that BLM unlawfully failed to provide for public participation in connection with its revocation of land withdrawals. FLPMA §309(e) requires public participation in the "management" of public lands, and there is no evidence that withdrawal revocations are not included. BLM's provisions for public participation in the development of land use plans and in specific disposal decisions after a revocation has been made are insufficient, since the withdrawal revocation itself is a major management decision. The court holds that the lifting of protective restrictions will irreparably injure plaintiff's members. Although classification terminations and withdrawal revocations do not immediately open the lands to exploitation, any mining or leasing would cause irreparable injury to the aesthetic and natural environment. Plaintiff is not required to provide evidence for each individual tract of land, nor is it required to demonstrate that its members have already suffered irreparable injury. The court holds that the harm to third parties as a result of the injunction does not outweigh the permanent loss of aesthetic values and environmental resources that would occur absent the injunction, since the injunction does not invalidate any interests but only delays their realization while BLM adheres to the required FLPMA process. Finally, the court holds that the public interest favors the granting of the injunction.

A dissent would hold that plaintiff has not adequately demonstrated injury-in-fact to establish standing and that the district court abused its discretion in rejecting the exhaustion defense. The dissent concludes that Congress approved of BLM's use of pre-FLPMA plans that substantially conformed to §202, at least for a period of time; that it is not clear that lifting the restrictions will adversely affect environmental values; that the harm to the absent third-party holders of various interests outweighs the dubious threat to plaintiff's interests; and that the public interest does not tilt one way or the other. The dissent would also hold that BLM has satisfied the requirements of FLPMA §309(e).

[The district court decisions are published at 16 ELR 20422 and 20427. The complaint is digested at ELR PEND. LIT. 65866. Appellate briefs are digested at ELR PEND. LIT. 65935.]

Counsel for Appellants
Jacques B. Gelin
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2762

Counsel for Appellee
Eldon V.C. Greenberg, Norman L. Dean
National Wildlife Federation
1412 6th St. NW, Washington DC 20036
(202) 637-3736

Before: MIKVA and WILLIAMS, Circuit Judges, and WEIGEL,[*] Senior District Judge.