Sierra Club v. Watt

No. S 83-035 LKK (E.D. Cal. October 21, 1983)

The district court issues a preliminary injunction barring the Department of the Interior from taking any further action, except for certain specified actions, in connection with the delisting of certain tracts of land in California and Nevada that had previously been listed as wilderness study areas pursuant to § 603 of the Federal Land Policy and Management Act (FLPMA). The court first rules that plaintiffs have standing to sue. Because the outdoor areas in question are used for recreation and other purposes by the members of plaintiff organizations, and because they are situated adjacent to lands owned by plaintiff state, all plaintiffs have suffered injury in fact. The court also rules that plaintiffs have satisfied the "redressability" and "zone of interests" tests. Although the injury complained of will not be realized in a concrete sense until third parties, i.e., developers, take advantage of the delistings by commencing development projects, the court concludes that this does not impair plaintiffs' standing nor render the action unripe.

Regarding the merits of plaintiffs' claims under FLPMA, the Department had removed from the list of wilderness study areas certain tracts, known as "split estates," which include within their boundaries lands subject to leases and rights-of-way that, because they predate the enactment of FLPMA, are exempt from the Act's requirements. Plaintiffs argued that such lands cannot be delisted en masse, but must be examined and removed from the list on a case-by-case basis. Because this is an action for a preliminary injunction, the court need satisfy itself only that plaintiffs have demonstrated a combination of probable success on the merits with a threat of irreparable injury, or that the balance of harms tips sharply in plaintiffs' favor and they have shown the existence of serious issues going to the merits. Under the latter standard, the court finds that there are more than serious arguments backing plaintiffs' interpretation of § 603 of FLPMA, and that they have met their burden of proof in this respect. While an intervenor may be correct in arguing that the term "public lands," as used in FLPMA, does not encompass the disputed tracts, the court must not entertain such an argument since it was not relied upon by the Department as a basis for its decision. Plaintiffs have also shown that there is a serious question whether the Department violated the National Environmental Policy Act (NEPA) by failing to prepare an environmental impact statement on the delisting. Since the opening of the lands to more intensive use and development may lead to environmental degradation, the Department's action may have constituted a major federal action under NEPA.

The court finds that plaintiffs have also satisfied the other elements prerequisite to the issuance of preliminary relief. There is a significant risk that in the absence of an injunction the lands will be managed in a manner that impairs their wilderness characteristics irreversibly. Further, to the extent that defendants or third parties may be harmed by an injunction, that harm can be mitigated by careful design of the decree. Finally, the public interest will be promoted more by delaying action with respect to the lands than by permitting what may prove to be illegal and irrevocable misuse of them. Accordingly, the court preliminarily enjoins defendants from taking any action with respect to the disputed tracts, or permitting anyone else from taking such action, unless it was permissible prior to the delisting of the tracts.

Counsel for Plaintiffs
Laurens H. Silver
Sierra Club Legal Defense Fund, Inc.
2044 Fillmore St., San Francisco CA 94115
(415) 567-6100

Joanna Wald
Natural Resources Defense Council, Inc.
25 Kearny St., San Francisco CA 94108
(415) 421-6561

Counsel for Plaintiff-Intervenor
Craig Thompson
Office of the Attorney General
1515 K St., Suite 511, Sacramento CA 95814
(916) 445-9555

Counsel for Defendants
Robert D. Daniel, Gary B. Randall
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-5392

Counsel for Defendants-Intervenors
Ann Straw Rieck, Ronald A. Lane
Santa Fe Pacific Railroad Co.
224 S. Michigan Ave., Chicago IL 60604
(312) 427-4900

William H. Mellor III, Constance E. Brooks, Steven D. Ellis
Mountain States Legal Foundation
Suite 600, 1200 Lincoln St., Denver CO 80203
(303) 861-0244

[14 ELR 20103]

Karlton, J.:

Opinion and Order

(Preliminary Injunction)

Plaintiffs have brought this action under 28 U.S.C. § 1331 (federal question jurisdiction) and 28 U.S.C. § 1361 (mandamus), challenging certain actions of the federal defendants as violations of the Federal Land Policy and Management Act of 1976, 43 U.S.C. § 1701 et seq., the National Environmental Policy Act, 42 U.S.C. § 4321 et seq., and the Administrative Procedure Act, 5 U.S.C. § 551 et seq. The matter is before me now on cross motions for summary judgment and plaintiffs' motion for a preliminary injunction. Plaintiff-in-intervention, the State of California, and defendants-in-intervention, Santa Fe Pacific Railroad Company, Mountain States Legal Foundation, and Montezuma County, Colorado, have likewise filed motions for summary judgment on the merits of each claim. At this time the Court is prepared to rule on plaintiffs' motion for a preliminary injunction, which shall continue until the Court disposes of the motions for cross-summary judgment.

The legal standards to be applied in a request for preliminary relief such as the motion before me are well established in the Ninth Circuit. Namely, "the moving party meets its burden by demonstrating either 'a combination of probable success on the merits and the possibility of irreparable injury' or 'that serious questions are raised and the balance of hardships tips sharply in its favor.'" Wilson v. Watt, 703 F.2d 395, 399 (9th Cir. 1983), quoting Sports Form, Inc. v. United Press International, Inc., 686 F.2d 750, 753 (9th Cir. 1982). As has been repeatedly noticed by the Circuit, these principles are the extremes of a single continuum. Silson v. Watt, supra 703 F.2d, at 399. If the balance of hardships tips decidedly toward the plaintiffs, less likelihood of success on the merits is required. Nonetheless, plaintiffs must show, at an irreducible minimum, some chance of success on the merits. We also have been taught that the Court is to consider in some cases the advancement of the public interest. See Los Angeles Memorial Coliseum Commission v. National Football League, 634 F.2d 1197, 1200 (9th Cir. 1980). Informing all these decisions is the question whether or not the Court's further consideration of the matter will be rendered moot if it fails to issue a preliminary injunction. As Professors Wright and Miller put it: "Although the fundamental fairness of preventing irremediable harm to the party is an important factor on a preliminary injunction, the most compelling reason in favor of entering a Rule 62(a) order is the need to prevent the judicial process from being rendered futile by defendants' action or refusal to act." WRIGHT AND MILLER, FEDERAL PRACTICE AND PROCEDURE (1983 Pocket Supp.).

I now proceed to a brief review of the merits of plaintiffs' suit.

Because the parties are more than familiar with the events giving rise to this suit, the Court finds that a long recitation of the facts is unnecessary. For purposes of this inquiry, it is sufficient to state that the defendant, Secretary of the Interior James Watt, issued an order on December 30, 1982 in which certain categories of lands referred to as "split estates" and formerly designated as Wilderness Study Areas were eliminated from this classification, thereby also eliminating their management under the "non-impairment" standard of Section 603(c) of the Federal Land Policy and Management Act (hereinafter referred to as FLPMA), 43 U.S.C. § 1782(c). That order also delisted certain WSA's under 5,000 acres and other WSA's so classified because they were contiguous with other wilderness or wilderness study areas, some not managed by the Secretary. Subsequent instructions to State Bureau of Land Management Directors from the Secretary have clarified and refined the initial order. Plaintiffs assert that this order violated the statutes already mentioned both procedurally and substantively. I turn first to the federal defendants' contention that the plaintiffs have no Article III standing and therefore cannot maintain this suit in federal court.

At an irreducible minimum, Article III requires that a party in federal court demonstrate that he has personally suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant, and that the injury fairly can be traced to the challenged action and is likely to be redressed by a favorable decision of the Court. See Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 471 (1982); Scott v. Rosenberg, 702 F.2d 1263, 1267 (9th Cir. 1983). Turning to the case at bar, I note that plaintiffs, as environmental associations traditionally interested in the preservation of wilderness areas, have brought suit on behalf of their members, asserting that their members' aesthetic, conservation, and recreational interests are and will be adversely affected by the federal defendants' actions. An organization whose members are injured may represent those members in a proceeding for judicial review, see Sierra Club v. Morton, 405 U.S. 727, 739 [2 ELR 20192] (1972), and interests such as those here asserted are of a type sufficient to confer Article III standing. Id. at 734. As users of the Wilderness Study Areas released pursuant to the Secretary's order, those members would appear to have an adequately personal stake in this lawsuit. See Gonzales v. Gorsuch, 688 F.2d 1263, 1266 [13 ELR 20072] (9th Cir. 1982). Finally, plaintiffs' members' injuries — for instance, the development of areas formerly being studied for wilderness and the resultant harm to their environmental interests — would appear to be "fairly traceable" to the defendants' actions, although not directly so. Although it is true, as the defendants point out, that development cannot occur absent the actions of some third party, nevertheless, the probability that some third party will in fact do so does not appear to this Court to be unduly speculative.

Importantly, the Ninth Circuit has stated that where the claimed injury results from the independent action of a third party not before the Court, it is essential that plaintiffs show that their injuries will be redressable by the Court's action. I take this to be another way of testing the question of whether or not this matter is properly before the Court. Plaintiffs have requested this Court to redesignate the split estate lands affected by the Secretary's order as WSA's and to enjoin development on those lands pursuant to that order; they further request an injunction requiring the Secretary to prepare a site-specific environmental impact statement and to provide the public with notice and an opportunity to comment before implementation of his order with respect to the other lands involved. Simply put, issuance of these orders will help to preseve the wilderness study areas at issue and thus avoid the damage to the wilderness values that are central to plaintiffs' concerns.

Finally, it would appear that plaintiffs' interests lie within the "zone of interests" sought to be protected or regulated by the statutes in question. See State of California v. Block, 690 F.2d 753, 776 [13 ELR 20092] (9th Cir. 1982); City of Davis v. Coleman, 521 F.2d 661, 672 [5 ELR 20633] (9th Cir. 1975). Accordingly, for preliminary injunction purposes only and without making a final determination on the matter, I find that it is likely that plaintiffs have the Article III standing necessary to maintain their action in this Court.

The federal defendants also challenge the standing of plaintiff-in-intervention, the State of California. California has sued on behalf of its citizens who use the Wilderness Study Areas at issue and because it owns lands in proximity to the affected Wilderness Study Areas which, it alleges, may be adversely affected by the federal defendants' actions. As such, it would appear, at least at this stage, that California has standing under the same analysis articulated. See State of California v. Block, 690 F.2d 753, 776 [13 ELR 20092] (9th Cir. 1982).

Finally, the federal defendants assert that even if the plaintiffs [14 ELR 20104] have standing, their claims are nevertheless not ripe for consideration and will not be ripe until approval of a development activity on one of the affected lands occurs. The Secretary's order, however, in that it was to be "effective immediately," appears to this Court to be a final agency action within the meaning of Abbott Laboratories v. Gardner, 387 U.S. 136 (1967); see also, Pacific Gas & Electric Company v. State Energy Resources Development [Commission], U.S. , 103 S. Ct. 1713 [13 ELR 20519] (1983). The issues in the case at bar would also appear to be "fit for judicial decision" within the meaning of Abbott Laboratories, in that they apparently consist of purely legal questions. Also, hardship might well be visited upon the plaintiffs were this Court to refuse to decide the question, in that they could otherwise possibly be forced to litigate the question after harm has already occurred to the areas in question. Finally, it is apparent from the record before the Court that whatever the possibilities were under the Secretary's original order, in fact most of the land affected is to be managed for development activities. Accordingly, and again for preliminary injunction purposes only, I find that this claim is likely ultimately to be determined to be ripe.

I now turn to the specific questions. First, I will consider the FLPMA violation.

The dispute here centers on the meaning of the "grandfather clauses" of FLPMA, § 701(h), 43 U.S.C. § 1701 note and 43 U.S.C. § 1782(c). Defendants argue that these qualifications on the actions of the Secretary, undertaken to implement FLPMA generally and on the management of WSA's particularly, dictate that all split estate lands should be excluded from the WSA designation. Plaintiffs argue that such a result was not intended by Congress; rather, they posit, Congress fully intended that split estate lands be included within the Wilderness Study Inventory and that upon the assertion of a valid existing right, the Secretary would make a determination as to what the statute required with respect to that right.

Before addressing the question, I must first consider the deference to the Secretary's decision as a matter of scope of judicial review. This Court notes that under Ninth Circuit law, consistency of an agency decision determines the degree of deference due an individual determination. See McCoog v. Hegstrom, 690 F.2d 1280, 1288 (9th Cir. 1982). Thus, where the Secretary's action at least apparently represents a change from prior policy, less deference perhaps should be accorded those actions. This, in turn, depends upon whether or not a change of policy indeed occurred. I recognize that the parties dispute that, but it seems difficult for me not to say that at least the plaintiffs have made a fair ground for litigation of that question.

On the issue itself of inclusion of the split estate, the Court believes that the plaintiffs' interpretation more than raises a serious ground for litigation, in that it is not only a reasonable one, but may well be viewed as consistent with what appears at this stage to be the congressional scheme underlying FLPMA, as revealed by its provisions and its legislative history. At this stage, and certainly without the comprehensive review that deciding the merits requires, it seems unlikely that Congress intended to mandate a categorical exclusion of such a nature by virtue of the grandfather clauses. The defendants' interpretation of the statute would result in the exclusion from wilderness study of many split estate lands which may never be developed for various reasons. Given Congress' clear intent comprehensively to inventory and study public lands, as set forth in 43 U.S.C. § 1782, such an interpretation would appear to run contrary to that intent. Rather, the statute would appear to contemplate an individual determination by the Secretary regarding each assertion of preexisting rights, the applicability of the statute to those rights, and the most appropriate disposition of that assertion. In so saying, I do not in any manner depreciate Santa Fe's argument, which itself raises serious and complex questions. The question is whether plaintiffs have raised a serious challenge, and it is in that context that the Court has made the above observations.

Defendant-intervenor, Mountain States, asserts that the interpretation of the term "public lands" adopted by this Circuit in Columbia Basin Land Protection Association v. Schlesinger, 643 F.2d 585, 602 [11 ELR 20537] (9th Cir. 1981), requires this Court to rule that the provisions of FLPMA do not apply to split estate lands at all. First, the Court believes that Mountain States has conceded, as far as this case is concerned, that that determination is dicta. Even if that is not the case, it appears to this Court that this issue raises a serious question. While I do not conclusively pass on this issue, I do note that the Secretary, on the record currently before the Court, did not predicate his order on this ground. Rather, the text of the order of December 30, 1982, reveals that he acted pursuant to a decision of the Interior Board of Land Appeals, which in turn is predicated on that body's interpretation of the meaning of the grandfather clauses as applied to split estates. It would appear that the Secretary's application of the terms of FLPMA to split estates, then, is what has been tendered to this Court for review. Regardless of the merits of defendants-in-intervention's argument, Ninth Circuit law indicates that I may not consider that argument, since it appears that this is a case falling within the rule that a decision rendered by an administrative agency "must be upheld, if at all, on the same basis articulated in the order by the agency itself." See Phinpathya v. Immigration and Naturalization Service, 601 F.2d 459 (9th Cir. 1979). The court certainly does not hold that this is such a case. I simply note that whatever the sufficiency of this argument and whatever its merits, the possibility exists that it may not have to be addressed by the Court in this case. I have said "may be" at least three times to stress that the Court has not in fact been ruling on the merits at this stage.

I do not even suggest that plaintiffs will ultimately prevail. This much is clear, however: plaintiffs have demonstrated to this court that serious questions are raised with respect to this claim within the meaning of the Ninth Circuit's standard for the grant of preliminary relief.

The NEPA violation is also of the same character. The requirement of an environmental impact statement pursuant to the provisions of the National Environmental Policy Act is triggered when a federal action "may cause a significant degradation of some environmental factor." See City of Davis v. Coleman, 521 F.2d 661, 673 [5 ELR 20633] (9th Cir. 1975). See also, Foundation for North American Wild Sheep v. United States Department of Agriculture, 681 F.2d 1172, 1178 [12 ELR 20968] (9th Cir. 1982). It hardly seems farfetched to this Court to suggest that the release of certain lands, if not all the lands subject to the Secretary's order of December 30, 1982, into multiple use management, would cause a significant effect on the environment within the meaning of NEPA. While their deletion from WSA status, as defendants fairly point out, does not necessarily result in environmental degradation, the statute, as construed in the case law, does not appear to require that degree of certainty. While some of the lands may ultimately be managed for some other forms of protection, including wilderness, others may well be managed for multiple use as a result of the Secretary's action. Defendants' primary argument is that the environmental impact statement requirement does not apply to a nondiscretionary duty; their argument is that since the Secretary was acting to correct his agency's previous mistakes and since his duty to do so was nondiscretionary, NEPA's requirement did not attach. Once again, this Court takes no position as to the ultimate disposition of plaintiffs' claim; it only notes that, for purposes of a preliminary injunction, they have succeeded in raising serious questions. In this regard, the Court's previous decision in California v. Bergland, 483 F. Supp. 465 [10 ELR 20098] (E.D. Cal. 1980), aff'd in relevant part in California v. Block, 690 F.2d 753 [13 ELR 20092] (9th Cir. 1982), suggests that land planning decisions which have reasonable foreseeable adverse consequences on the environment require an EIS.

Moreover, the record before the Court at this stage of review is suggestive that much more than mere correction of a legal error was accomplished by the Secretary's order. While this Court cannot say with certainty that a major federal action took place, it can say with certainty that plaintiffs have raised this issue in a serious manner.

Because plaintiffs do not seek a preliminary injunction directing the Secretary to give the public notice and opportunity to comment on his actions at this time, the Court need not address the merits of those claims.

Having determined that plaintiffs have raised serious questions [14 ELR 20105] as to the merits of their case, it now becomes plaintiffs' burden to convince this Court that the balance of hardships tips sufficiently in their favor so that in terms of the continuum a preliminary injunction is justified. Plaintiffs argue that they will suffer great irreparable injury if an injunction does not issue, pointing to the irreversible nature of the harm done to the wilderness values of the subject lands by development activities. Quite rightly, they argue that once undertaken, the effect of such activities is likely to be irreversible or nearly so. The probability that development will indeed occur and that wilderness values will be impaired in some way is demonstrated by the fact that certain lands released from WSA status are already being managed under a multiple use standard.

Defendants argue that the development rights of third parties will be adversely affected should an injunction issue; that is, those persons not before the Court will be denied the opportunity to exploit fully those property rights to which they are entitled. This Court is not unmindful of those persons' interests. Nonetheless, it appears to the Court that a properly drafted preliminary injunction will preserve to them such rights as they may have independent of the issue of whether the Secretary's decision was lawful. Moreover, given a properly drafted order, in the process of balancing the hardships to each party, it is evident that the irreparable nature of the harm plaintiffs have demonstrated tips the scales in their favor.

Closely connected to the above-noted observations is this Court's evaluation of the public interest. It is clear that the preservation of the natural amenities of those areas ranks high on the ladder of public concerns, as is evidenced, for instance, by the comprehensive environmental statutes which the public has chosen to pass through its elected representatives, as well as by the Wilderness Act of 1964, 16 U.S.C. § 1131 et seq., and by 43 U.S.C. § 1782 itself. It is also clear that there is not an insignificant public interest in the economic gains and general beneficial effects on the economy that development activities may have, as evidenced by MUSYA and by 43 U.S.C. § 1701 and other provisions of FLPMA. Nevertheless, in determining what would best serve the public interest in this context, I am constrained to provide at least preliminary relief to the parties promoting those interests directly protected by 43 U.S.C. § 1782, which, if unprotected at this stage, will be irretrievably lost. That is to say, if the Court ultimately determines that the defendants prevail, development has only been delayed; if, on the other hand, plaintiffs prevail, in the absence of an appropriate order, the wilderness values sought to be protected may be irretrievably lost.

Accordingly, the following injunction will issue, to remain in effect during the pendency of this litigation or as modified, pursuant to the final order of this Court:

Pending further order of this Court, the Secretary and Director are restrained from ordering, directing, or allowing anyone under their authority to take any action relative to any lands which were classified or managed as WSA's prior to December 30, 1982, and which by virtue of the Secretary's order of that date and the orders and decisions implementing said order were deleted from the Wilderness Inventory, where any such action could not have been taken or would have been prohibited had the land remained in WSA status.

This order specifically does not preclude the Secretary from making individual determinations as to individual rights as defined by 43 U.S.C. § 1782(c) and § 701(h) of FLPMA, 43 U.S.C. § 1701, note, and otherwise in compliance with law.

Included within the scope of this order are lands in Nevada that were previously identified as WSA's and were removed from WSA classification by order of the BLM State Director effective June 1, 1982, as set forth in 47 Fed. Reg. 18680-81 (April 30, 1982).