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Desert Citizens Against Pollution v. Bisson

ELR Citation: 31 ELR 20265
Nos. 97-55429, 231 F.3d 1172/(9th Cir., 11/06/2000)

The court holds that citizen groups have standing to sue to set aside a land exchange between the Bureau of Land Management (BLM) and a mining company that violated the Federal Land Policy and Management Act's (FLPMA's) valuation requirements. The court first holds that the groups have standing. The groups' recreational and aesthetic enjoyment of federal lands is a legally protected interest whose impairment constitutes an actual, particularized harm sufficient to create an injury-in-fact. Their challenge to FLPMA's equal-value requirement is not merely a generalized allegation of federal revenue loss at taxpayers' expense. Rather, it is an effort to ensure appropriate federal guardianship of the public lands that the groups frequent. Moreover, their claim is redressable. If the current exchange is not based on a proper valuation, it must be set aside. Whether the company and BLM would negotiate a new exchange after a proper appraisal and BLM valuation had been made, and what that new exchange would be, is sheer speculation at this stage of the proceedings. Further, the groups' claim falls within the zone of interests of FLPMA.

The court next holds that BLM arbitrarily and capriciously failed to consider landfill use as the highest and best use of the offered lands. Evidence available prior to the appraisal indicated that the selected lands were expected to be used for landfill purposes. Moreover, it was reasonably probable that the property's potential use as a landfill was physically possible, legally permissible, and financially feasible. Yet, neither the appraisal of the land nor BLM's record of decision (ROD) considered the property's use as a landfill. Instead, the appraisal and ROD concluded that the highest and best use of the land was either open space or mine support, which resulted in a flagrantly undervalued land appraisal. The court then holds that the land exchange must be set aside. The fact that the parties consummated the land exchange a day after the district court ruling is of no consequence because they were fully advised that the transaction could be set aside by later proceedings. Last, the court reverses the district court's dismissal of the groups' claim and its denial of preliminary injunction and remands the case for entry of a preliminary injunction setting aside the land exchange.

Counsel for Plaintiffs
William S. Curtiss
Earthjustice Legal Defense Fund
180 Montgomery St., Ste. 1400, San Francisco CA 94104
(415) 627-6700

Counsel for Defendants
Ellen J. Durkee
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before Boochever and Kozinski, JJ.