Opposition Brief — Lujan v. National Wildlife Federation

Supreme Court brief1990

Ask Donna

What actually matters in this document.

Text

In The

Supreme Court of the Unit

Supreme Court, U.S.

FILED

DEC 8 1969

JOSEPH F. SPANIOL. JR.

October Term, 1989

MOUNTAIN STATES LEGAL FOUNDATION, ET AL.,

Petitioners,

NATIONAL WILDLIFE FEDERATION,

Respondent.

o> -

MANUEL LUJAN, JR., SECRETARY

OF THE INTERIOR, ET AL.,

Petitioners,

Vv.

NATIONAL WILDLIFE FEDERATION,

Respondent.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The District of Columbia Circuit

BRIEF IN OPPOSITION FOR RESPONDENT

NATIONAL WILDLIFE FEDERATION

Katiieen C. ZIMMERMAN

Norman L. Dean, Jr."

Nationa Wri pouer Freoer ation

1400 16th Street, N.W.

Washington, D.C. 20036

(202) 797-6864

Attorneys for Respondent

National Wildlife Federation

*Counsel of Record

Cem &)) LAW ORE PRINTING. CO). ee) 22 fone

ORCA! COLLECT cd) MP) 28h

QUESTION PRESENTED

1. Whether individuals who use federal lands for recre-

ational purposes, and whose use and enjoyment of those

lands will be adversely affected as a direct result of a

government program or policy, have standing to chal-

lenge that program or policy?

PARTIES

Respondent National Wildlife Federation” accepts the

Secretary of the Interior's list of all parties to the proceed-

ing below.

* The National Wildlife Federation (NWF) is a non-profit

corporation incorporated in the District of Columbia. It has no

parent companies, subsidiaries, or affiliates in which any out-

side persons or investors might have an interest. NWF has two

“subsidianes:” National Wildlife Federation Endowment, Inc.

and Wildlife Publications, Inc., both based in Washington, D.C.

NWF also holds a majority interest in DeSoto Greetings, Inc., a

Maryland corporation. NWF has fifty-two “affiliates,” one in

each state, as well as the Virgin Islands and Puerto Rico. Each

affiliate is a non-profit environmental / conservation

organization

TABLE OF CONTENTS

Page

Teen okt ck ececncoesces i

eee ec asc cceccescesesscccccccoes ii

EEE iv

ede cac acd ecccsrcsccccscace 1

DCTP ECERERSaebecbesessccccccncccccccccccce 13

I. The Decision of the Court of Appeals is Correct

and is Consistent with This Court’s Require-

ments for Federal Standing.................... 14

A. The Court of Appeals’ Decision is Consistent

with Prior Supreme Court Precedent....... 14

B. The Court of Appeals’ Decision to Permit

Supplementation of the Record is Correct.. 20

Il. Federal Programs Are Not Immune to Challenge

Pea beeen encnceccecoscaccceces 23

A. The Court of Appeals’ Standing Decision

Does Not Violate the Separation of Powers

DUCES SSGeeh Soeccesecocccccccccccce 23

B. Standing to Challenge Government Pro-

grams Has Not Been Abolished............ 26

PR Geiiuedeccoccs PRREEESENSSES SS Ceccececes 33

TABLE OF AUTHORITIES

Page

Cases

Allen v. Wright, 468 U.S. 737 (1984) ...... 23, 26, 28, 30

Anderson v. Liberty Lobby, 477 U.S. 242 (1986)........ 19

Ashwander v. TVA, 297 U.S. 288 (1936).... 23, 26, 27, 28

Association of Data Processing Service Organizations,

Inc. v. Camp, 397 U.S. 150 (1970)..........0 0c ee uee 29

Baltimore Gas & Electric Co. v. NRDC, 462 U.S. 87

SE bdvendescddicedivessentedetevactedseusetects 24

Blum v. Yaretsky, 457 U.S. 991 (1982) .......... 0.4... 28

Bowen v. Michigan Academy of Family Physicians,

GO We Or SD ccwh vc ccnddnanedsvesavecneeede 25

Celotex Corp. v. Catrett, 477 U.S. 317 (1986).......... 20

Costello v. United States, 365 U.S. 265 (1961)......... 21

Defenders of Wildlife v. Hodel, 851 F.2d 1035 (8th Cir.

BE cos vsccunieseccencsiassencaceseaseciesébacs 29

Duke Power Co. v. Carolina Environmental Study

Group, Gnc., 458 US. SD CIGTED ... nc cccccccccccccees 27

FCC v. WNCN Listeners Guild, 450 U.S. 582 (1981)... . 29

Haitian Refugee Center v. Gracey, 809 F.2d 794 (D.C.

Cir. 1987)

Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982)... . 21

Ideal Basic Industries, Inc. v. Morton, 542 F.2d 1364

(9th Cir. 1976)

International Union, United Automobile, Aerospace

and Agricultural Implement Workers of America v.

Brock, 477 U.S. 274 (1986)............00005. 18, 19, 28

TABLE OF AUTHORITIES - Continued

Page

Japan Whaling Association v. American Cetacean Soc.,

Ge Ge Ge GE so vv ccescceccceccccscssctocececs 15

Kleppe v. Sierra Club, 427 U.S. 390 (1976)............ 30

Lewis v. Hickel, 427 F.2d 673 (9th Cir. 1970).......... 32

NAACP v. Secretary of Housing and Urban Develop-

ment, 817 F.2d 149 (Ist Cir. 1987) ................. 29

National Wildlife Federation v. Hodel, 839 F.2d 694

Ss ED. PE hse ccccccconcesescecceseesecesees 29

Oregon Environmental Council v. Kunzman, 817 F.2d

Ge Ee EE hee cde ctcciverecccsccscaneecsccs 29

Public Citizen v. U.S. Department of Justice, 109 S.

GP Be GOED cero weccccecnccqdeescspenscvoeesess 18

Scientists’ Institute for Public Information, Inc. v.

Atomic Energy Commission, 481 F.2d 1079 (1973) .... 27

Sierra Club v. Morton, 405 U.S. 727 (1972) ........ 15, 21

Simon v. Eastern Kentucky Welfare Rights Organiza-

Som, GES DB. BD GIRGe cc cccccccccscccccccvcess 21, 31

United States v. Students Challenging Regulatory

Agency Procedures, 412 U.S. 669 (1973).......... 15, 17

Valley Forge Christian College v. Americans United

for Separation of Church and State, Inc., 454 U.S.

GG GUURED o oc cccccsnecccsccasonceesevccesecesocecs 14

Warth v. Seldin, 422 U.S. 490 (1975) .......... 15, 19, 21

Watt v. Energy Action Education Foundation, 454

SD FOO QUOD ccvccccccscveccccescccccoccesees 22, 28

Webster v. Doe, 108 S. Ct. 2047 (1988) ............... 26

TABLE OF AUTHORITIES - Continued

Weinberger v. Romero-Barcelo, 456 U.S. 305 (1982)..... 33

Wilderness Society v. Griles, 824 F.2d 4 (D.C. Cir.

Sa 066 dbSeccnssctecccsubescoecsenevctesdbonced 9, 17

STATUTES, REGULATIONS, AND RULES

Administrative Procedure Act, 5 U.S.C. § 551 eft

— GO RAPPYETTTTTTTTITITTTTTI TTT TITEL ee 4

BS SEG, FS UB. © FOGG cc ccccccsccsccccscccceces 25

Federal Land Policy and Management Act,

4 UGA. & U7G8 GF OB. CIGER ccc cccccccccscccccces 1

§ 202(d), 43 U.S.C. § 1712(d).... 2... ee eee eee eee eee 2

§ 202(f), 43 U.S.C. § 1712(f).. 6. eens 8

§ 204(1), 43 U.S.C. § 17141)... 2... eee eee eee 2,4

§ 309%(e), 43 U.S.C. § 1739%e) .. 6... cee 8

§ 701(c), Pub. L. No. 94-579, 90 Stat. 2743.......... 2

National Environmental Policy Act, 42 U.S.C.

Ge GE GI, GERD cc cece cccccccccccscsccccccesucs 4

| Ye § 2 AT PPPPYTTTTICITTITI TTT TT 26

Pe Be GO Fe See Ge vc ccccccccccccccccccsccvcecess 9

Pals Gee GED Be ED co vcccccccccccncccsesvecsouseses 21

STATEMENT OF THE CASE

This action challenges specific violations of applica-

ble federal statutes in the formulation and implementa-

tion of the Department of the Interior's (Department's)

ongoing “Land Withdrawal Review Program” (Program)

under which land withdrawals and classifications have

been terminated. Withdrawals and classifications are two

mechanisms used by the Department to protect federal

lands against unwise or premature disposition and devel-

opment. Classifications and withdrawals act to protect

federal lands from disposal under the agricultural laws

(i.e., homestead, desert land entry, and Indian allotment),

from sale, from exchange, from mineral leasing, and from

location under federal mining laws. The underlying pur-

pose of classifications and withdrawals is to limit private

activities on federal lands in order to maintain the public

values of these lands, including recreation and fish and

wildlife.'

The Federal Land Policy and Management Act

(FLPMA), 43 U.S.C. § 1701 et seq. (1982), enacted in 1976,

' Contrary to the assertions of petitioners, withdrawals

and classifications do not mandate any affirmative duty on the

part of the Department. Petitioners, therefore, mislead the

Court when they suggest that the mere existence of a power

site withdrawal in the Grand Canyon requires the construction

of a dam. Secretary of the Interior’s Petition for a Writ of

Certiorari [hereinafter Gov. Br.| at 7. The withdrawals at issue

in Arizona were executed in the carly 1900's yet the Colorado

River still flows freely through the Grand Canyon. What peti-

tioners fail to mention is that the revocation of these with-

drawals opened lands immediately adjacent to Grand Canyon

National Park to private mineral development.

contains specific provisions governing the disposition of

classifications and withdrawals. See, e.g., 43 U.S.C.

§§ 1712(d), 1714(1). In addition, the savings provision of

FLPMA, Pub. L. No. 94-579, 90 Stat. 2743, provides in

Section 701(c) that “[a]ll withdrawals, reservations, classi-

fications, and designations in effect as of the date of the

approval of this Act shall remain in full force and effect

until modified under the provisions of this Act or other

applicable law.”

Between FLPMA’s enactment in 1976 and 1980, the

Department engaged primarily in completing an inven-

tory of withdrawn or classified lands. Affidavit 1B of

Frank Edwards 4 24. In 1981, however, under the direc-

tion of the new Secretary of the Interior, James G. Watt,

the Department put in motion a comprehensive program

to terminate withdrawals and classifications and to open

as amuch land as possible to commercial uses:

One of the Administration's goals is to build the

United States strategic minerals stockpile. An

important means to attaining this goal is to open

“locked-up” Federal land to mineral exploration

, and development through aggressive pursuit of

the withdrawal review program ....

Letter to Secretary of Energy James B. Edwards from

Secretary of the Interior James G. Watt (July 13, 1982)

(Plaintiff's Exhibit No. 70). New instructions were issued

to the field offices that withdrawals were to be eliminated

as quickly as possible:

Since the first of the year, substantial shifts in

oe emphasis and direction have occurred.

ore precise priorities have been established;

specific production commitments required of

the State Offices.

The new administration has stated clearly its

objective to eliminate all unnecessary with-

drawals of federal lands, opening as many acres

as possible to the operation of the mining and

mineral leasing laws.

Memorandum to the Acting Director of the Bureau of

Land Management from the Assistant Director for Lands

and Rights-of-Way (February 20, 1981) (Plaintiff's Exhibit

No. 73). Terminations of classifications and withdrawals

subsequently proceeded rapidly under the Program. By

mid-1985, the Department had terminated protective clas-

sifications and withdrawals for approximately 180 million

acres of public land. Affidavit of James Parker 4 35;

Affidavit 1A of Frank Edwards { 25 (Joint Appendix filed

in the court of appeals [hereinafter ].A.] 71).

The Program has opened many areas to commercial

development, particularly mineral exploitation, that have

important recreational, environmental, or other public

values — public values that may well be sacrificed as a

result of the Department's actions.? As the court of

appeals noted, changed uses, particularly the opening of

2 For example, the Department terminated a reclamation

withdrawal covering 34,285 acres in Utah, opening 8,360 acres

to the operation of the mining laws, 46 Fed. Reg. 7348 (January

23, 1981), despite the prospect that placer mining in the area

would have an adverse impact on two endangered species of

fish, as well as potential impacts on endangered bald eagles

and peregrine falcons. In addition, campgrounds and other

recreational sites have been opened to mining and mineral

leasing. See, e.g., 47 Fed. Reg. 11671 (March 18, 1982); 49 Fed.

Reg. 32808 (August 16, 1984).

lands to mineral exploitation, can destroy fragile natural

resources, as well as the use of natural areas for aesthetic

and recreational purposes. (Appendix to the Secretary’s

Petition for a Writ of Certiorari [hereinafter Gov. App.]

78a-79a).

In July 1985, respondent, the National Wildlife Feder-

ation (NWP), filed suit challenging the Program. In its

complaint for declaratory and injunctive relief, NWF

alleged that the Department's wholesale termination of

these protective withdrawals and classifications violated

a number of specific provisions of federal law, including

FLPMA, the National Environmental Policy Act (NEPA),

42 USC. § 4321 et seq. (1982), and the Administrative

Procedure Act (APA), 5 U.S.C. § 551 ef seq. (1982). In its

request for relief, NWF sought, among other things, the

completion of a programmatic environmental impact

statement (EIS), the promulgation of regulations govern-

ing the Program, adequate opportunities for public par-

ticipation in the Program and its activities, and the

submission of proposed actions to the Congress for

review. Amended Complaint at 16 (J.A. 37).

Simultaneously with the filing of its complaint, NWF

moved for a preliminary injunction. Federal defendants

responded by filing a motion to dismiss Count II of the

complaint on the ground that NWF lacked standing to

raise the Department's failure to submit its withdrawal

recommendations to Congress.> United States Represen-

tative John F. Seiberling then moved to intervene on

* NWP claimed in Count Il that the Department was in

violation of Section 204(1) of FLPMA, 43 U.S.C. § 1714/1), by

terminating classifications and withdrawals in eleven western

states without prior submission of a recommendation to the

. resident or to Congress.

Count Il. The district court granted the intervention of

Congressman Seiberling, confirmed his standing as wel!

as that of NWF,‘ and issued a preliminary injunction after

finding that NWF was likely to succeed on the merits of

at least two of its claims and would be irreparably

harmed in the absence of interim relief. (Gov. App. 130a).

Defendant-intervenor Mountain States Legal Founda-

tion (Mountain States) sought reconsideration of the dis-

trict court's preliminary injunction order arguing that

NWF could prove no injury to either itself or its mem-

bers. The district court rejected Mountain States’ claims

noting that “[t}his question, while challenging our juris-

diction to grant equitable relief, raises the issue of plain-

tiff’s standing to sue,” (Gov. App. 139a), and went on to

hold that “[wle continue to find irreparable injury to

plaintiff and reaffirm plaintiff's standing to bring this

action,” (id. at 139a-40a).

In anticipation of filing for summary judgment, NWF

submitted affidavits in support of the standing allega-

tions of its complaint. In both its original and its

amended complaint, NWF stated that it has over 4.5

million members, many of whom “use and enjoy the

environmental resources that will be adversely affected

by the challenged actions.” Amended Complaint 74 5, 6

(J.A. 24-25). As examples of the injuries actually suffered

* Upon Mr. Seiberling’s retirement from the Congress, the

district court ordered the substitution of Congressman Bruce F.

Vento, who succeeded Seiberling as Chairman of the Subcom-

mittee on National Parks and Public Lands, and reaffirmed his

standing. Order (June 2, 1987) ({.A. 251)

by its members, NWF submitted the affidavits of Peggy

Kay Peterson and Richard Loren Erman.

Ms. Peterson lives in Casper, Wyoming and recreates

on the federal lands in the South Pass/Green Mountain

area of Wyoming. Affidavit of Peggy Kay Peterson (April

7, 1986) 7¥ 2, 3 (Gov. App. 1901a). She states that her

“recreational use and aesthetic enjoyment” of the lands

she uses will be adversely affected by the decision to

open them “to the staking of mining claims and oil and

gas leasing” and that mining or oil and gas development

“threatens the aesthetic beauty and wildlife habitat

potential of these lands.” Id. at 74 6, 7 (Gov. App. 191a).

It is undisputed that on May 10, 1984, the Department

terminated classification order no. W-6228 and opened

4,455.06 acres of land in the South Pass/Green Mountain

area of Wyoming to the operation of the mining law. 49

Fed. Reg. 19904 (May 10, 1984).

The injury to Ms. Peterson's continued use and

enjoyment of these lands as a direct result of terminating

this classification is corroborated by the Department's

own documents. The Department's records reveal that on

the day the lands were opened, 199 mining claims were

staked. Prior to the imposition of the district court's

preliminary injunction, 406 mining claims had been

staked on these lands and four mines began operations.

Exhibit 9C to Edwards Affidavit 1C (J.A. 118). Govern-

ment counsel concedes that additional mineral develop-

ment on these South Pass/Green Mountain lands

is imminent. Transcript of Hearing (July 22, 1988)

{hereinafter Transcript) at 58 (J.A. 310).5 The draft

resource management plan prepared for this area by the

Department in 1986 acknowledges that:

liJn the Green Mountain Management Unit, ura-

nium exploration and development might cause

significant losses of crucial winter and winter/

yearly elk and muledeer ranges and in trout

abitat in the Willowcreek and Cottonwood

Creek drainages over the longterm. Elk and

trout populations may be lost entirely.

Department of the Interior, Draft Lander Resource Man-

agement Plan/EIS (1986) at 228 (Plaintiff's Exhibit No.

61).

Richard Loren Erman lives in Phoenix, Arizona and

recreates on federal lands near the Grand Canyon

National Park, the Arizona Strip, and the Kaibab National

Forest. Affidavit of Richard Loren Erman (April 1986) 44

2, 3 (Gov. App. 187a). He specifically states that his

recreational use and aesthetic enjoyment of lands in the

Arizona Strip are adversely affected by the decision of

the Department to open the lands to the staking of min-

ing claims. /d. at ¥ 6 (Gov. App. 188a). Although the

Department contends that the land is of little mineral

value, 669 mining claims have been staked on these lands

since they were opened and one notice of operations has

been filed. Exhibit 11A to Edwards Affidavit 1A (J.A. 84).

The patenting of these claims will result in the permanent

* Ms. Peterson and NWF learned during the summer of

1988 that U.S. Energy Corporation plans to develop yet another

uranium mine, in part on lands previously closed to mining by

classification order no. W-6228. Declaration of Peggy Kay

Peterson (August 28, 1988) 4 7

loss of these lands to public recreational use, including

that of Mr. Erman.

NWPF’s complaint also alleged that it is injured as an

organization by its inability: 1) to obtain information on

the Department's Program and the actions completed

under its aegis; and 2) to participate in the Department's

decisionmaking.* Amended Complaint 4 6 (J.A. 24-25). In

support of these allegations, NWF submitted the sworn

declaration of its then Vice President for Resources Con-

servation Lynn A. Greenwalt. According to Mr. Green-

walt, NWF has been denied the “opportunity to see and

use” the kind of information that would have been avail-

able had the Department completed EISs on the Program

and the actions completed under its aegis. Declaration of

Lynn A. Greenwalt (May 16, 1986) 44 2-5 (Gov. App.

193a-94a). Mr. Greenwalt also attests that, as a result,

NWF's ability to fulfill its obligations to its members who

“have contributed financially to the organization, in part,

so that they may obtain adequate representation of their

legally-protected environmental interests” has been dam-

aged. Id. at ¢ 4 (Gov. App. 194a).

On June 17, 1986, federal defendants served sub-

poenas on NWF seeking to take fifteen depositions in

eleven western states and the District of Columbia.” The

* FLPMA specifically requires public participation in the

land management decisions of the Department. See, eg. 43

U.S.C §§ 171206), 1739%e).

” The Secretary's statement of the case indicates that these

subpoenas were served following the court of appeals’ deci-

sion sustaining the preliminary injunction. Gov. Br. at 11-12

This is incorrect

admitted purpose of these depositions was to demon-

strate that NWF could not prove standing to bring this

action. NWF moved for a protective order, arguing that it

had already produced the affidavits of Ms. Peterson, Mr.

Erman, and Mr. Greenwalt proving its standing; and,

therefore, additional discovery as to this issue would be

unreasonably cumulative within the meaning of Fed. R.

Civ. P. 26(c(1). The district court agreed and issued the

requested protective order. (Gov. App. 170a).

NWF moved for summary judgment on June 23, 1986.

In their cross-motion, federal defendants again raised the

standing of NWF and Mountain States filed yet another

motion to dismiss NWF’s claims. No defendant chal-

lenged the standing of the congressional intervenor

In December 1987, the court of appeals sustained the

district court's preliminary injunction. (Gov. App. at 38a).

The majority opinion specifically held that NWF had

standing to proceed. (/d. at 56a). In his opinion concur-

ring on standing, Judge Williams applied the circuit's

criteria for p of of standing on summary judgment as set

forth in Wilderness Society v. Griles, 824 F.2d 4 (D.C. Cir.

1987), and concluded that:

the issue of standing is largely academic . . . By

the time the case was submitted to this court,

the defendants appear to have conceded the

bare minimum necessary for standing.

(Gov. App. 85a). The court of appeals denied defendants’

petitions for rehearing. (/d. at 1 16a).

Six months after the preliminary injunction was

upheld and nearly two years after the motions had been

filed, the district court heard oral argument on summary

judgment. At the close of argument on the motions, the

district court ordered the case submitted except as to

standing and requested additional memoranda from both

sides on that issue. Order (July 28, 1988) (J.A. 345). In

compliance with the district court's directive, NWF filed

a memorandum on its standing that included five supple-

mental declarations. These declarations are by members

of NWF who use federal lands that have been affected by

the Program and whose continued use and enjoyment of

those lands are threatened by the Department's actions

(Respondent's Appendix [hereinafter R.A_}).

David Doran recreates quite extensively on the fed-

eral lands near Coos Bay, Oregon. On April 24, 1984, the

Department terminated two protective withdrawals and

opened 1500 acres of land on which Mr. Doran recreates

to disposal under the public land laws. Declaration of

David Doran, ¢ 8 (R.A. 2); 49 Fed. Reg. 17502 (April 24,

1984). The Department proposes to dispose of these lands

for the “development of a marine industrial park.” Affi-

davit of Joseph |. Martyak, December 16, 1985, | 24(a)

().A. 146-47). As a result, lands which currently provide

habitat for the endangered snowy plover and peregrine

falcon, and birdwatching opportunities for Mr. Doran,

will be cleared and paved. Declaration of David Doran 4

5 (R.A. 2)

Merlin McColm resides in Elko, Newada and uses

many of the public lands in Nevada for recreation. Areas

adjacent to the Roberts and Tuscarora Mountains fre-

quented by Mr McColm have been opened to mining and

other forms of development by the Department. Declara-

tion of Merlin McColm, ¢ 7 (R.A. 5); see also 47 Fed. Reg

6851 (February 17, 1982), 47 Fed. Reg. 7236 (February 18,

1982). He has already observed the ecological damage

stemming from these actions in the form of “sedimenta-

tion from mining runoff and direct habitat destruction.”

14.8

Stephen Blomeke is an avid hunter and travels “con-

siderable distances across the state of Colorado to access

areas containing prime habitat” for game species. Decla-

ration of Stephen Blomeke, 4 5 (R.A. 8). In doing so, he

uses numerous federal campgrounds and recreation

areas. Id. Pursuant to the Department's Program, many of

these public areas have been opened to disposal and

development. /d. at 9¥ 8-10 (R.A. 8-9); see also 47 Fed.

Reg. 7414-423 (February 19, 1982). Prior to the issuance of

the injunction in this case, twenty-five mining claims

already had been staked on campgrounds frequented by

Mr. Blomeke. Exhibit 11A to Edwards Affidavit 1A (J.A.

86).

Will Ouellette lives in rural New Mexico and uses the

federal lands in the surrounding countryside on a daily

basis. Declaration of A.L. Ouellette, 99 1-5 (R.A. 11-12).

Many of the areas he uses, including the Tent Rocks

Recreation Area, have been opened to disposal and develop-

ment by the termination of protective land classifications. Id.

at ¥ 9 (R.A. 12-13). The Tent Rocks area of New Mexico is a

unique environment. “Comparable formations are found

only in Turkey.” Bureau of Land Management, Draft Rio

* According to federal defendants’ own submissions, three

mining claims have been staked on 80 acres previously pro-

tected by these withdrawals. Exhibit 11A to Edwards Affidavit

1A (J.A. 89). All three were staked the year the lands were

opened. Id. No mining claims were staked the previous two

years. Id.

Puerco Resource Management Plan and Environmental Impact

Statement at C-30 (1985) (attached as Appendix III to

Declaration of A.L. Ouellette). Yet, the Department termi-

nated the classifications that protected these lands for

public enjoyment and recreation, to the detriment of Mr.

Ouellette as well as many others.

In addition, Ms. Peterson supplemented her earlier

affidavit. In her supplemental declaration, she identifies

in detail the challenged actions responsible for her injury

and provides an example of a specific proposal to

develop a uranium mine on lands which previously had

provided Ms. Peterson with undisturbed wildlife habitats

for hiking, camping, hunting, and fishing. (R.A. 16).

In their responsive memoranda, defendants pro-

duced no evidence to contradict the statements in these

supplemental declarations.

The district court summarily rejected NWF’s supple-

mental declarations as untimely and “violative of its

order;” reversed its previous rulings on NWPF’s standing;

dismissed the entire case, including the unheard claims of

Congressman Vento; and dissolved the preliminary

injunction.

At this point, NWF appealed. A three-judge panel of

the court of appeals unanimously reversed tive holding of

the district court on three separate grounds:

(1) that the affidavits submitted by NWF in

support of its motion for summary judgment

“clearly alleged facts showing that its members

were ‘among the persons injured’ by [the

Department of the] Interior,” (Gov. App. 15a);

(2) that since these same affidavits had pro-

vided “adequate grounds for NWF to establish

irreparable harm” for a preliminary injunction,

they also demonstrated sufficient injury-in-fact

to support the test of standing, and the court of

appeals’ previous opinion upholding the prelim-

inary injunction was law of the case on this

issue, (id. at 19a); and

(3) that the equities of this case “unquestiona-

bly compel an allowance” on the part of NWF to

supplement the record to cure any alleged

defects on standing, and that NWF’s supple-

mental declarations “easily satisfy the level of

specificity needed for standing under any of the

Supreme Court's articulated tests,” (id. at 21a).

The court of appeals then remanded the case for disposi-

tion on the merits. Because it directed the district court to

address NWF’s substantive claims “with dispatch,” the

court of appeals did not reinstate the preliminary injunc-

tion. (/d. at 25a).

The petitions for certiorari filed by the Secretary and

Mountain States seek review of this decision.

—@— -

ARGUMENT

The decision of the court of appeals is correct and

does not conflict with any decision of this Court or any

federal court of appeals. Indeed, the Secretary alleges no

such conflict. Moreover, the issues raised by petitioners

are not of such exceptional importance as to justify

review by this Court, especially in light of the essentially

factual character of the petitioners’ questions for review

Accordingly, a writ of certiorari is unwarranted.

1. THE DECISION OF THE COURT OF APPEALS IS

CORRECT AND IS CONSISTENT WITH THIS

COURT’S REQUIREMENTS FOR FEDERAL

STANDING.

In two separate opinions, unanimous panels of the

court of appeals determined that NWF has standing to

pursue this litigation. This holding does not represent a

departure from existing standing law but rather falls

squarely within its tenets. Indeed, petitioners do not

charge that the holding in this case conflicts with the

decision of another court of appeals; nor can they point to

a divergence from controlling Supreme Court precedent

A. The Court of Appeals’ Decision is Consistent

with Prior Supreme Court Precedent

This Court summarized the constitutional require-

ments of standing in Valley Forge Christian College v. Amer-

icans United for Separation of Church and State, Inc., 454

U.S. 464 (1982), as follows:

at an irreducible minimum, Art. III requires the

party who invokes the court's authority to

“show that he personally has suffered some

actual or threatened injury as a result of the

putatively illegal conduct of the defendant,”

Gladstone Realtors v. Village of Bellwood, 441 U.S

91, 99 (1979), and that the injury “fairly can be

traced to the challenged action” and “is likely to

be redressed by a favorable decision,” Simon v.

Eastern Kentucky Welfare Rights Org., 426 U.S. 26,

38, 41, (1976).

ld. at 472. It is the first of these thresholds, or the “injury-

in-fact” requirement, that is at issue in the instant case

(Gov. App. 12a). Following the guidance of the Court's

prior opinions, that injury must be “distinct and palpa-

ble,” Warth v. Seldin, 422 U.S. 490, 501 (1975), yet it need

not be great; an “identifiable trifle” will suffice, United

States v. Students Challenging Regulatory Agency Procedures

(SCRAP), 412 U.S. 669, 689 n.14 (1973); and standing

extends to those who show some type of environmental

injury, id. at 686; see also Japan Whaling Association v

American Cetacean Soc., 478 U.S. 221, 231 n.4 (1986).

The requirements for establishing standing in cases

involving such environmental injury are well-settled

Thus, in Sierra Club v. Morton, 405 U.S. 727, 734 ‘1972),

this Court denied standing to the Sierra Club on its

allegation that the government's decision to permit

development in a national park would “destroy or . . . ad-

versely affect” the natural resources in the park and

would “impair... enjoyment for future generations.”

The Court acknowledged that this was a cognizable

injury but found that it did not amount to injury-in-fact

sufficient to uphold standing because the Sierra Club had

“failed to allege that it or its members would be affected

in any of their activities or pastimes by the . . . deve-

lopment.” /d. at 734-35. In SCRAP, however, the Court

found that the plaintiff organizations had alleged suffi-

cient injury to establish standing to challenge an ICC rate

increase. The plaintiffs in SCRAP asserted that their mem-

bers used “the forests, rivers, streams, mountains, and

other natural resources in the Washington Metropolitan

area” for various recreational and aesthetic purposes and

that these uses would be adversely affected by the chal-

lenged conduct. SCRAP, 412 U.S. at 678

In the instant case, NWF alleged in its complaint that

its members “use and enjoy the environmental resources

that will be adversely affected” by the challenged Pro-

gram. Amended Complaint 4 6 (J.A. 25). As evidence in

support of these allegations, NWF initially submitted the

affidavits of Ms. Peterson and Mr. Erman. Both Ms. Peter-

son and Mr. Erman, as members of NWF, state that their

“recreational use and aesthetic enjoyment” of particular

federal lands will be adversely affected by the decision to

open them “to the staking of mining claims and oil and

gas leasing” and that mining or oil and gas development

“threatens the aesthetic beauty and wildlife habitat

potential of these lands.” (Gov. App. 187a-92a). Their

affidavits use the phrase “in the vicinity” to describe in

lay terms the location of the tracts at issue.* Both Ms.

* There is no evidence in the record to support the Secre-

tary’s claims that the area of land in the vicinity of South Pass/

Green Mountain, Wyoming on which Ms. Peterson states she

recreates constitutes over two million acres. Gov. Br. at 20. Ms.

Peterson's affidavit contains no such statement. The Depart-

ment’s own documents describe the federal land holdings in

South Pass and Green Mountain as 14,000 and 126,000 acres,

respectively. Department of the Interior, Draft Lander Resource

Management Plan/EIS (1986). Ms. Peterson specifically limits

her injury only to those unique tracts of federal land within

South Pass/Green Mountain that have been opened to mining

and mineral leasing by the Department. Affidavit of Peggy Kay

Peterson at J 6 (Gov. App. 191a).

The five million acre figure for Mr. Erman’s recreational

use in the Arizona Strip is also a gross exaggeration. Gov. Br. at

9. Mr. Erman’s affidavit contains no such figure and neither

does the affidavit of G. William Lamb on which the Secretary

relies.

Peterson and Mr. Erman specifically state that they are

injured by the opening of lands they use to private min-

eral development.'°

The Secretary's attempt to distinguish SCRAP is

unavailing. Gov. Br. at 20. Like the instant case, SCRAP

was a challenge to government action with nationwide

effects. Standing to challenge an ICC freight rate increase

was founded upon individual allegations of use of the

natural resources in the Washington metropolitan area.

Similarly, NWF’s complaint alleges use of environmental

resources placed at risk by government action and NWF’s

affidavits provide direct evidence of the use of threatened

natural areas by its members.

The court of appeals correctly interpreted Ms. Peter-

son's affidavit to demonstrate that NWF’s “members

were ‘among the persons injured’ ” by the Department's

challenged actions. (Gov. App. 15a). The court of appeals

did not, as the Secretary suggests, “presume” that a

“mere claim of standing necessarily implies a factual

basis to support it.” Gov. Br. at 21. Indeed, drawing on

dicta in this Court's SCRAP decision, the District of

Columbia Circuit has adopted a stringent standard for

proof of standing at the summary judgment stage. Wilder-

ness Society v. Griles, 824 F.2d at 16. To accomplish the

required showing, NWF had to: (1) identify lands that are

If there was any doubt that Ms. Peterson uses lands

actually affected by the Department's Program to terminate

classifications and withdrawais, it was resolved by her supple-

mental declaration in which Ms. Peterson identifies the precise

classification terminations that will impair her use of federal

lands. Declaration of Peggy Kay Peterson 9 7-9 (R.A. 16-17).

affected by the challenged government action; (2) demon-

strate that third parties are likely to respond to that

government action with development activites; and (3)

identify members in specific areas that would suffer an

adverse impact from such third-party conduct. Id. at

10-12. The court of appeals reviewed the evidence con-

tained in Ms. Peterson's affidavit, as well as other evi-

dence in the record, and drew the only logical inference

available to it, 7.e., that Ms. Peterson, in fact, is injured by

the Department's actions.

Having determined that Ms. Peterson’s affidavit was

sufficient to demonstrate NWF’s standing, the court of

appeals declined to address the affidavit of Mr. Erman.!!

(Gov. App. 18a). It summarily reaffirmed its prior rejec-

tion of the argument raised by Mountain States beiow,

and resurrected by the Secretary in his petition, that NWF

must prove that it is injured by each action completed

under the auspices of the Program and on every acre of

federal land affected in order to challenge the Program

itself. (id. at 16a). The court of appeals based its rejection

of this argument upon controlling precedents of this

Court set forth in International Union, United Automobile,

"! The court of appeals also declined to discuss the injury

to the organization itself described in Mr. Greenwalt’s declara-

tion. This Court’s recent opinion in Public Citizen v. U.S.

Department of Justice, 109 S. Ct. 2558, 2563-64 (1989), however,

specifically recognizes that the denial of information or lawtul

participation constitutes injury for purposes of standing. Mr.

Greenwalt’s declaration establishes that NWF has been injured

by the denial of the kind of information normally included in

EISs prepared under NEPA. (Gov. App. 194a).

Aerospace and Agricultural Impiement Workers of America v.

Brock, 477 U.S. 274 (1986), and Warth v. Seldin, 422 US.

490.!2 (Gov. App. 55a).

In sum, there is no important question of federal law

at issue in this case that requires the intercession of the

Supreme Court. The Secretary’s petition reduces to a

dispute over the court of appeals’ interpretation of Ms.

Peterson's original affidavit. According to the Secretary,

neither Ms. Peterson nor Mr. Erman claim to use lands

actually affected by the challenged Program, only lands

“in the vicinity” and the court of appeals, therefore, mis-

interpreted Ms. Peterson’s original affidavit. Gov. Br. at

20. Under any circumstances, this alleged misreading of

Ms. Peterson’s affidavit would rarely warrant the scru-

tiny of the Supreme Court.'® In light of the clarification

'2 In the International Union case, for example, the plaintiff

labor union gained standing to challenge the Department of

Labor’s nationwide policy regarding eligibility for unemploy-

ment benefits on the basis of injury to any one of the union’s

members. International Union, United Automobile, Aerospace and

Agricultural Implement Workers of America v. Brock, 477 U.S. at

281-91.

'3 This is particularly so since, in order to review this

dispute, the Court will have to wade through the evidence

presented by both sides and determine the factual content of

NWF’s affidavits and exhibits as well as those submitted by

defendants. Moreover, in considering this question on sum-

mary judgment, the Court must, first, believe NWF’s evidence

and, second, resolve all justifiable inferences in NWF’s favor.

Anderson v. Liberty Lobby, 477 U.S. 242, 255 (1986). Even read in

a manner exceedingly favorable to defendants and unaided by

Ms. Peterson’s supplemental declaration, the phrase “in the

vicinity of” is, at most, ambiguous on the issue of whether Ms.

(Continued on following page)

provided by Ms. Peterson herself in her supplemental decla-

ration, however, the Secretary’s assertions are singularly

undeserving of the Court’s attention. In her supplemental

declaration, Ms. Peterson identifies the precise actions by the

Department that will impact her use of federal lands by

opening them to mining. She also identifies a specific pro-

posal to “mine a significant portion of the federal lands

which I| use for recreational purposes and for aesthetic enjoy-

ment.” Declaration of Peggy Kay Peterson { 7-9 (R.A. 16-17).

The court of appeals’ conclusion that Ms. Peterson, in fact, is

injured by the actions of the Department is inescapable upon

a cursory reading of this declaration.

B. The Court of Appeals’ Decision to Permit Sup-

plementation of the Record is Correct

As the court of appeals noted, “[n]o party to this

litigation seriously disputes that NWF’s supplemental

affidavits, if considered, easily satisfy the level of speci-

ficity needed for standing under any of the Supreme

Court's articulated tests.” (Gov. App. 21a). Instead, the

Secretary asks the Court to place an embargo on any

(Continued from previous page)

Peterson’s recreational use extends to lands affected by the

challenged actions. Given the presumptions established by the

summary judgment rules, this ambiguity must be resolved in

favor of Ms. Peterson and NWF. /d.

The instant case is not comparable to Celotex Corp. v.

Catrett, 477 U.S. 317 (1986). In Celotex, the plaintiff offered no

evidence whatsoever in opposition to the defendants’ motion

for summary judgment. In contrast, NWF submitted several

member affidavits, as well as the Department’s own docu-

ments, see discussion supra pp. 6-7, in support of its standing.

NWF also proffered additional evidence.

—

supplementation of the factual record on standing in a

case which has not yet gone to trial.'4 Such a holding

would be inconsistent with prior Supreme Court prece-

dent. This Court repeatedly has remanded cases to permit

supplementation of the factual allegations in support of

standing. See Havens Realty Corp. v. Coleman, 455 U.S. 363,

377-78 (1982); Simon v. Eastern Kentucky Welfare Rights

Organization, 426 U.S. 26, 55 n.6 (1976); Warth v. Seldin,

422 U.S. at 501-02; Sierra Club v. Morton, 405 U.S. at 735

n.8.

It would also be wasteful of judicial resources to

require the dismissal and re-filing of cases involving cur-

able jurisdictional defects. See Costello v. United States, 365

U.S. 265 (1961). The Department's Program is ongoing.

NWE can re-file its complaint and cure any alleged defi-

ciency on standing by submitting evidence of the con-

tinuing injury its members and the organization suffer as

the result of the Department's actions.

Moreover, to dismiss the instant case on the basis of

such a ruling would be a gross injustice. Prior to its order

'4 The Secretary’s argument that any supplementation of

the record is improper is founded on a narrow reading of Fed.

R. Civ. P. 56(c) requiring the service of summary judgment

materials “prior to the day of the hearing.” Yet, defendants

were permitted to introduce new evidence concerning the sub-

stantive merits of their case at oral argument, in violation of

the strict letter of Fed. R. Civ. P. 56(c). Transcript at 55-56, 92.

(].A. 307-08, 344). NWF should have been afforded an oppor-

tunity to respond.

Moreover, the district court requested additional submis-

sions from both sides on the standing issue only after oral

argument.

dismissing the case, the district court previously issued

three orders upholding NWF’s standing. No one chal-

lenged the standing of NWF’s co-plaintiff in the case,

Congressman Bruce F. Vento.'° The court of appeals sus-

tained the issuance of a preliminary injunction holding

that NWF had proved irreparable harm to its members.

(Gov. App. 78a). The court of appeals unanimously

upheld NWPF’s standing to bring the suit. Defendants did

not seek review of that decision. No change in either the

factual situation or this Court’s dispositions on standing

was brought to the attention of the district court. In short,

NWF had no reason to believe that its standing was still

at issue until suddenly, at the close of oral argument on

cross-motions for summary judgment, the district court

indicated that it wanted additional submissions on stand-

ing. (Gov. App. 20a). In response to the court’s request,

NWF submitted a memorandum with supporting declara-

tions. Defendants had a full opportunity to refute the

evidence in those declarations. (/d. at 21a). Under these

rather unusual circumstances, the court of appeals prop-

erly found that the district court should have permitted

NWF to submit additional evidence in support of stand-

ing prior to dismissing the case for lack of jurisdiction.

On the basis of these supplemental declarations, NWF’s

standing is irrefutable.

'S NWP’s co-plaintiff, Congressman Bruce F. Vento did not

join in NWF’s motion for summary judgment and his standing

was not addressed in the district court’s opinion dismissing the

case. If Mr. Vento has standing to pursue this litigation, then a

separate basis for NWF’s standing is unnecessary. Watt v.

Energy Action Education Foundation, 454 U.S. 151, 160 (1981).

The district court upheld the Congressman’s standing twice

prior to dismissing the case. See discussion supra pp. 4-5.

Il. FEDERAL PROGRAMS ARE NOT IMMUNE TO

CHALLENGE IN THE COURTS

Both petitioners contend that the Department’s

actions at issue in this case are somehow insulated from

judicial review. The Secretary suggests that the court of

appeals’ grant of standing in this case violates the separa-

tion of powers clause of the Constitution, but he cites no

caselaw to support this theory.'© Mountain States, citing

Ashwander v. TVA, 297 U.S. 288 (1936), and Allen v. Wright,

468 U.S. 737 (1984), alleges that this Court has precluded

challenges to government programs or policies, including

NWF’s challenge to the Department’s Land Withdrawal

Review Program. Both arguments are untenable. They

cannot be reconciled with this Court’s prior decisions on

standing.

A. The Court of Appeals’ Standing Decision Does

Not Violate the Separation of Powers Clause

The Secretary contends that this litigation will neces-

sarily transform a single district court judge into a

“national land use czar,” Gov. Br. at 22; and, therefore,

standing to challenge the Department's actions must be

denied in order to avoid a violation of the separation of

powers clause of the Constitution. This contention is

totally unfounded.

'© Indeed, as Judge Bork noted in his opinion in Haitian

Refugee Center v. Gracey, 809 F.2d 794 (D.C. Cir. 1987):

the Supreme Court has never said explicitly that the

separation of powers clause concept leads it to deny

[standing] where it otherwise might be found... .

Id. at 807.

NWF is not “seeking judicial supervision of the Sec-

retary’s entire administration, throughout the Nation, of

his duties under FLPMA.” Gov. Br. at 23. Instead, like the

plaintiffs in Baltimore Gas & Electric Co. v. NRDC, 462 U.S.

87, 97 (1983), who sought compliance with the reporting

requirements of NEPA, NWF is asking only that the

“agency conform[] with controlling statutes.” As such,

this litigation is not so “overwhelming” as the Secretary

suggests. Gov. Br. at 22. In fact, it is currently submitted

for final adjudication on cross-motions for summary

judgment.

Further, the source of the alleged violation of the

separation of powers clause cited by the Secretary is not

the court of appeals’ recent standing decision but rather

the preliminary injunction upheld by the court of appeals

nearly two years ago. The Department chose not to seek

review of that decision; perhaps because the vast majority

of the Department’s activities were unimpeded by the

injunction. As the district court made clear:

activities that would have been permitted on the

affected public lands under the previous with-

drawals and classifications prior to revocation

or termination may still take place.

(Gov. App. 146a). These same withdrawals and classifica-

tions were originated by the Department and were in

effect for decades prior to their termination. The effect of

the court’s preliminary injunction was merely to reinstate

these withdrawals and classifications.

The preliminary injunction subsequently has been

dissolved. However, in the three years it was in place,

only four individuals intervened in the case seeking an

exemption from its provisions.'7 The Department itself

never sought prior permission of the district court to

proceed with any individual management action.

In its request for permanent relief, NWF merely

prays that the Department’s actions be conducted in

accordance with statutory requirements, including, for

example, the completion of EISs under NEPA. That this

task may prove burdensome to the Department, accord-

ing to the Secretary, hardly relieves the agency of its

statutory obligations; nor does it remove the jurisdiction

of the federal courts to review NWF’s claims.'®

17 In three instances, it was the Department’s own over-

broad interpretation of the injunction that required the inter-

cession of the district court. See, e.g., Order (January 6, 1987)

(“the preliminary injunction . . . does not apply to the geother-

mal operations of the Department of Water and Power for the

City of Los Angeles . . . [and the Department] shall forthwith

vacate and set aside its suspension order .. . ”) (Gov. App.

165a-66a).

'S§ Under the APA, agency action is judicially reviewable:

except to the extent that (1) statutes preclude judicial

review; or (2) agency action is committed to agency

discretion by law.

5 U.S.C. § 701(a). Over the years, this Court has emphasized

that this is a very narrow exemption. As the Court explained in

Bowen v. Michigan Academy of Family Physicians, 476 U.S. 667

(1986), the reason for this rule is that:

[wle ordinarily presume that Congress intends the

executive to obey its statutory commands and, accor-

dingly, that it expects the courts to grant relief when

an executive agency violates such a command.

Id. at 681.

(Continued on following page)

B. Standing to Challenge Government Programs

Has Not Been Abolished

Mountain States’ suggestion that this Court essentially

has eliminated all challenges to government programs is

baseless. Neither Ashwander v. TVA, 297 U.S. 288, nor Allen v.

Wright, 468 U.S. 737, provides support for this proposition.

In Ashwander v. TVA, shareholders of the Alabama

Power Company brought a challenge to the constitutionality

of the “Tennessee Valley Authority Act in all its bearings”

based upon the execution of a single contract with the

Alabama Power Company. 297 U.S. at 325. The plaintiffs aiso

sought to have the Court issue a “decision of abstract ques-

tions as to the right of the Authority and of the Alabama

Power Company in possible contingencies.” Id. This Court

sustained the circuit court’s determination to limit the plain-

tiffs’ challenge to the validity of the contract itself, finding

that the plaintiffs’ other claims were founded “merely upon

‘assumed potential invasions’ of rights... .” Id. at 324-25

(quoting Arizona v. California, 283 U.S. 423, 462 (1931)).

The United States Court of Appeals for the District of

Columbia Circuit explained and applied Ashwander v.

(Continued from previous page)

Moreover, this is not a case like Webster v. Doe, 108 S. Ct

2047, 2052 (1988), in which the applicable statutory standard

“exudes deference” to the agency and thus “foreclosels] the

application of any meaningful judicial standard of review.” The

Secretary can make no claim that such unbridled discretion is

available to him under the applicable provisions of FLPMA

and NEPA. See, e.g., NEPA § 102, 42 U.S.C. § 4332 (“all agencies

of the Federal Government shall include . . . a detailed state-

ment... on the environmental impact of the proposed action

“)

TVA in Scientists’ Institute for Public Information, Inc. v.

Atomic Energy Commission (SIPI), 481 F.2d 1079 (1973),

commenting that Ashwander stands for the unsurprising

proposition that:

[t]raditional principles of ripeness dictate that

judicial review be reserved for problems which

are real and present, not hypothetical and

remote.

ld. at 1087 n.29.'° The court of appeals in S/P] went on to

hold that even though the liquid metal cooled fast

breeder reactor [LMFBR] program at issue in S/PI was “in

the research and development stage and no specific

implementing action which would affect the environment

had yet been taken,” the program was of sufficient “defi-

nite and concrete character” to overcome the Ashwander

concerns. Id. Thus, the distinguishing factor in SIPI was

the lack of abstract questions, not the number of pro-

posed actions, as Mountain States contends.2° Mountain

States Legal Foundation’s Petition for a Writ of Certiorari

[hereinafter MSLF Br.] at 12.

In the instant case, the challenged program also has

found sufficient “fruition in action of a definite and

‘9 Compare Duke Power v. Carolina Environmental Study

Group, 438 U.S. 59 (1978) (plaintiffs living in proximity to

proposed nuclear facilities were held to have standing to chal-

lenge the constitutionality of the Price-Anderson Act.)

20 Mountain States’ description of S/PI is simply incorrect.

The goal of the LMFBR program was to develop new nuclear

reactor technology for “widespread deployment,” not merely

to build a single facility. S/PI, 481 F.2d at 1082.

concrete character” to be ripe for review. Ashwander v.

TVA, 297 U.S. at 324. By its own admission, the Depart-

ment has already completed several hundred termina-

tions of withdrawals and classifications under the

auspices of the Program and, as a direct result, mining

claims have been staked and oil and gas leases issued.

Affidavit of Joseph J. Martyak (December 16, 1985) (J.A.

119-59). NWF need not wait until each of the Program’s

proposed activities are completed to seek review of the

Department’s legal failures regarding the formulation

and implementation of the Program.

Mountain States’ discussion of the Court’s holding in

Allen v. Wright, 468 U.S. 737, is also wrong. The case does

not support Mountain States’ sweeping statement that

this Court has eliminated standing to challenge govern-

ment programs. This Court and other federal courts have

upheld numerous legal challenges to government action

on a programmatic scale.?! As the court of appeals

21 See, e.g., International Union, United Automobile, Aerospace

and Agricultural Implement Workers of America v. Brock, 477 U.S.

at 281-91 (union had standing to pursue across-the-board chal-

lenge to Department of Labor policy on eligibility for trade

readjustment allowance benefits on the basis of injury to any

one of union’s members); Blum v. Yaretsky, 457 U.S. 991 (1982),

(Gray Panthers organization and patients in skilled nursing

facilities had standing to challenge New York State’s Medicaid

program which denied benefits to patients recommended for

transfer to facilities providing a reduced level of care); Watt

v. Energy Action Education Foundation, 454 U.S. 151 (chal-

lenge to the federal government's five-year offshore mineral

leasing program; standing upheld to seek review of the

(Continued on following page)

recognized, Mountain States’ suggestion that NWF ought

to file separate challenges to each of the hundreds of

actions completed under the Program at issue in this case,

MSLF Br. at 12, is both “unsupported by caselaw” and

“illogical.” (Gov. App. 55a-56a). NWF is challenging a

“pattern of practice embodied in the Department’s con-

duct of its Program.” (id.); see NAACP v. Secretary of

Housing and Urban Development, 817 F.2d 149, 158 (1st Cir.

1987). The mere fact that separate decision notices of each

termination were issued by the Department is irrelevant

when, as NWF alleges, each decision to terminate indi-

vidual classifications and withdrawals was guided by

(Continued from previous page)

Secretary of the Interior’s choice of bidding systems for lease

issuance); FCC v. WNCN Listeners Guild, 450 U.S. 582 (1981)

(without passing on standing, the Court heard a challenge to

the validity of an FCC policy statement that had not yet been

applied to any set of facts); Association of Data Processing Service

Organizations, Inc. v. Camp, 397 U.S 150 (1970) (sellers of data

processing services had standing to challenge a ruling of the

Comptroller of the Currency allowing national banks to pro-

vide such services); Defenders of Wildlife v. Hodel, 851 F.2d 1035

(8th Cir. 1988), (environmental organizations had standing to

challenge the Secretary of the Interior’s determination that all

federally-funded projects in foreign countries were exempt

from the consultation provisions of the Endangered Species

Act, 16 U.S.C. § 1536(a)(2) (1982)); Oregon Environmental Coun-

cil v. Kunzman, 817 F.2d 484 (9th Cir. 1987) (environmental

organizations had standing to challenge the nationwide

pesticide spraying program of the U.S. Forest Service); and

National Wildlife Federation v. Hodel, 839 F.2d 694 (D.C. Cir.

1986) (environmental organizations had standing to challenge

the national regulatory program of the federal Office of Surface

Mining).

unlawful directives at the Program level.?? It makes little

sense either for coherent management of the federal lands

or for the exigencies of the federal court system to force

multiple lawsuits challenging these same violations of

law.?3

The Court’s opinion in Allen v. Wright does not

require such an irrational result. The opinion in Allen v.

Wright holds that where a plaintiff cannot show that his

injury is “fairly traceable” to the challenged actions of a

government program, the separation of powers clause of

the Constitution prohibits a grant of standing. Id. at 761

n.26. The plaintiffs in Allen v. Wright were challenging the

tax-exempt status of racially discriminatory schools. The

22 For example, NWF is seeking the preparation of a pro-

grammatic EIS under NEPA in accordance with this Court’s

decision in Kleppe v. Sierra Club, 427 U.S. 390 (1976).

Mountain States attempts to distinguish the instant case

from Kleppe by arguing that the Program at issue will have n>

cumulative impacts. MSLF Br. at 12-13. This is a merits ques-

tion that has little bearing on NWF’s standing. Furthermore,

the Program will determine the legal status of millions of acres

of federal lands. The impact of such massive shifts in land use

will be profound. Indeed, Mountain States itself has identified

a range of environmental impacts stemming from the Program,

id.; none of which was analyzed in the context of an EIS. For

example, the Program already has opened two million acres of

land in the Colorado watershed to mineral and agricultural

development. Yet, the cumulative effects of this development

on the watershed were never considered.

23 This piecemeal litigation would provide no opportunity

for the Department to correct any generic deficiencies in the

conduct of its Program and to proceed lawfully with respect to

future actions. Instead it would require the courts to undo each

and every withdrawal and classification termination.

majority found the chain of causation between the plain-

tiffs’ injury, the diminished availability of a desegregated

education, and the defendants’ actions, the tax exemp-

tions, to be too attenuated to confer standing.

The instant case presents no similar facts. Should the

court in the instant case order the Department to prepare

EISs in compliance with the provisions of NEPA, the

Department presumably will comply with the court's

order and NWF will receive the information on environ-

mental impacts it has thus far been denied. Moreover, the

withdrawals and classifications which the Department

seeks to eliminate represent an absolute bar to specified

uses of federal lands. If the withdrawals and classifica-

tions at issue in the instant case are continued, the Court

is entitled to assume that third parties will act lawfully

and will not initiate development activities on lands that

are closed to them and that, therefore, NWF’s members’

use of those lands will not be impaired. Under these

circumstances, a determination that plaintiffs have stand-

ing is wholly proper. Simon v. Eastern Kentucky Welfare

Rights Organization, 426 U.S. at 45 n.25 (standing to chal-

lenge government action is proper where third party

conduct would have been illegal absent government

action).

Finally, Mountain States seeks to convey the impres-

sion that this case inevitably must have radical and

unusual impacts on third parties. This simply is not so.

Litigation often has impacts on individuals who are not

parties. Contrary to Mountain States’ assertions, how-

ever, the instant case need have no impact at all on those

individuals who relied on the actions of the Department

and who acquired title to federal lands prior to the filing

of NWF’s complaint. MSLF Br. at 13-15. There is no cloud

on their title. NWF has not asked the district court to

invalidate pre-existing mining claims or mineral leases or

to overturn completed sales or exchanges of previously

withdrawn lands. (Gov. App. 145a). In its request for a

preliminary injunction, NWF merely sought the preserva-

tion of the status quo by preventing the «.aking of new

mining claims, the issuance of additional mineral leases,

and the loss of additional public lands to private interests

during the pendency of this litigation. Similarly, NWF’s

request for permanent relief merely asks that the same

status quo be maintained until the Department has com-

plied with the statutory requirements for opening these

lands.

This is not a draconian request. Investment uncer-

tainty is nothing new for would-be mining claimants and

mineral leaseholders, just as it is nothing new for persons

who wish to consummate other land transactions with

the Department, or to obtain permits or other authoriza-

tions fer private activities on public lands. Such persons

hold no more than an expectancy of government largess,

with no assurance that government benefits will be

forthcoming.?4

24 See, e.g., Lewis v. Hickel, 427 F.2d 673 (9th Cir. 1970)

(rejection of land exchange based upon adoption of new regu-

lations was proper; until lands are patented, transaction consti-

tutes nothing more than a proposal under which no contract

rights arise); Winkler v. Andrus, 614 F.2d 707 (10th Cir. 1980)

(Secretary of the Interior has broad authority to cancel leases

for administrative errors); Ideal Basic Industries, Inc. v. Morton,

542 F.2d 1364 (9th Cir. 1976) (Secretary of the Interior has

(Continued on following page)

In any event, the court of appeals’ decision is inter-

locutory. There is no final decree in this case. What the

eventual outcome may be is unknown at this time. In the

interim, mere speculation about the relief that ultimately

might be granted sheuld not act as a bar to any adjudica-

tion of NWF’s claims. Full consideration of all the equi-

ties involved necessarily will precede the issuance of any

permanent injunction. Weinberger v. Romero-Barcelo, 456

U.S. 305 (1982).

CONCLUSION

For the reasons stated above, the petitions for writs

of certiorari should be denied.

Respectfully Submitted,

KATHLEEN C. ZIMMERMAN

NormMan L. Dean, Jr.*

NaTIONAL WILDUFE FEDERATION

1400 16th St., N.W

Washington, D.C. 20036

(202) 797-6864

December. 1989

*Counsel of Record

(Continued from previous page)

continuing jurisdiction with respect to public lands and he is

not estopped by principles of the finality of administrative

action from correcting an erroneous decision made by his

subordinates or predecessors).

Nos. 89-628, 89-640

In The

Supreme Court of the United States

October Term, 1989

MOUNTAIN STATES LEGAL FOUNDATION, ET AL.,

Petitioners,

NATIONAL WILDLIFE FEDERATION,

Respondent.

MANUEL LUJAN, JR., SECRETARY

OF THE INTERIOR, ET AL.,

Petitioners,

NATIONAL WILDLIFE FEDERATION,

Respondent.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The District of Columbia Circuit

APPENDIX TO BRIEF IN OPPOSITION OF

RESPONDENT NATIONAL WILDLIFE FEDERATION

—@—

App. 1

IN THE

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

NATIONAL WILDLIFE FEDERATION, )

Plaintiff, ) Civil Action

V. ) No.

ROBERT F. BURFORD, et al., . 85-2238-JHP

Defendants. )

DECLARATION OF DAVID DORAN

Declarant, DAVID DORAN, being duly sworn and

under penalty of perjury, based upon personal knowl-

edge of the following facts as specifically appears herein,

deposes and says:

1. | am a member of the National Wildlife Federation

(NWF) and its affiliate the Oregon Wildlife Federation

(OWFP).

2. I reside at 2753 N. 32nd, Springfield, Oregon 97477.

3. I frequently use the public lands, in particular, | use

the federal lands adjacent to Coos Bay located along the

south-central coast of Oregon. These lands are adminis-

tered by the Bureau of Land Management (Bureau) and

the U. S. Department of the Interior (Department).

4. My uses of these federal lands include hunting, fish-

ing, camping and hiking. | pursue these activities for

recreational purposes and aesthetic enjoyment. | hunt

both elk and black tail deer on these federal lands located

along the north spit of Coos Bay and fish off coastal areas

which are also located on, or which can only be accessed

App. 2

through, these federal lands. | derive substaintial benifits

(sic) of food and sport from such hunting and fishing.

5. lI also hike and camp on these federal lands along the

northern and southern spits of Coos Bay. From these

activities I benifit (sic) through aesthetic enjoyment of the

rich natural beauty of these lands and the interesting and

diverse species of wildlife which inhabit the Coos Bay

habitat. Several of the bird species | have viewed, such as

the snowy plover (a state listed endangered species) and

peregrine falcon, are quite rare with a substantial per-

centage of their population inhabiting the federal lands

adjacent to Coos Bay.

6. I am aware that my continued recreational and aes-

thetic enjoyment of the Coos Bay lands depends upon

their being managed by the Bureau and Department in

full compliance with the laws pertaining to the preserva-

tion and protection of the federal lands they administer.

7. lam also aware that the National Wildlife Federation

has filed a lawsuit against the Bureau and the Depart-

ment for unlawfully revoking protective land with-

drawals and unlawfully terminating protective land

classifications on the public lands pursuant to the Depart-

ment’s Land Withdrawal Review Program.

8. Among the Departmental actions challenged in the

NWF lawsuit is the decision to revoke Secretarial Orders

of December 13, 1887, and September 20, 1890, which

opened 1,558 acres of land which I use to surface entry

and mining. This revocation also made 47 acres of land

which I use available for disposal by exchange. 49 Fed.

Reg. 17502.

App. 3

9. These unlawful actions of the Bureau and the Depart-

ment adversely affect my interest in recreational use and

aesthetic enjoyment of the federal lands by opening these

lands to development activities which threaten the aes-

thetic beauty and wildlife habitat of these lands. These

actions also adversely affect my interest in seeing that the

Bureau and Department fully comply with the laws per-

taining to the preservation and protection of natural

resources on the federal lands they administer.

10. My interests are being fully and adequately reqre-

sented (sic) by the NWF in its lawsuit against the Bureau

and the Department and my above stated injuries will be

fairly redressed by a decision favorable to NWF.

I declare under penalty of perjury that the foregoing

is true and correct.

Executed on August 18, 1988.

/s/ David W. Doran

DAVID DORAN

App. 4

IN THE

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

NATIONAL WILDLIFE FEDERATION, )

ee ) Civil Action

V- ) No.

ROBERT F. BURFORD, et al., . 85-2238-JHP

)

Defendants.

DECLARATION OF MERLIN McCOLM

Declarant, MERLIN McCOLM, being duly sworn and

under penalty of perjury, based upon personal knowl-

edge of the following facts as specifically appears herein,

deposes and says:

1. I am a member of the National Wildlife Federation

(NWF).

2. I reside in Elko, Nevada. My address is P.O. Box 1362,

Elko, Nevada 89801.

3. I use the public lands extensively. in particular, I use

the federal lands administered by the Bureau of Land

Management (Bureau) and the Department of the Interior

(Department). | have used and | continue to use such

federal lands located throughout the state of Nevada and

elsewhere. Particular areas which I use frequently include

the Roberts Mountains south of Elko and the Tuscarora

Mountains and Independence Range to the northwest of

Elko.

4. My use of these public lands is for purposes of recre-

ation and aesthetic enjoyment. I hunt deer, antelope, sage

App. 5

grouse and other game species for sport and food, and

often travel to particular tracts of the above mentioned

federal lands where habitats for these species are known

to exist.

5. My recreational and aesthetic enjoyment of these

lands depends upon their being managed by the Bureau

and Department in full compliance with the laws pertain-

ing to the preservation and protection of the federal lands

they administer.

6. I am aware that the National Wildlife Federation has

filed a lawsuit against the Bureau and the Department for

unlawfully revoking protective land withdrawals and

unlawfully terminating protective land classifications on

the public lands pursuant to the Department’s Land

Withdrawal Review Program.

7. Pursuant to this unlawful Program, the Bureau and

Department has revoked withdrawals and terminated

classifications covering specific areas which I| use for the

above stated recreational and aesthetic purposes. For

example, areas adjacent to the Roberts and Tuscarora

Mountains which | use (and which have been protected

as water reserves under Executive Orders dated February

8, 1923 and November 20, 1925) have been opened to

mining and other forms of development by means of

these unlawful actions by the Bureau and Department. 47

Fed. Reg. 6851, 7236. I have since personally observed

evidence of ecological damage to these areas and others

in the form of sedimentation from mining runoff and

direct habitat destruction.

8. These unlawful actions by the Bureau and the Depart-

ment have resulted in actual injury to my recreational use

App. 6

and aesthetic enjoyment of these federal lands. By open-

ing many specific areas which I use to the staking of

mining claims, oil and gas leasing and other forms of

development, such actions injure my enjoyment of these

lands by threatening the aesthetic beauty and wildlife

habitat potential of these lands.

9. These unlawful actions of the Bureau and the Depart-

ment adversely affect my interest in recreational use and

aesthetic enjoyment of the federal lands, and adversely

affect my interest in seeing that the Bureau and Depart-

ment fully comply with the laws pertaining to the preser-

vation and protection of the federal lands and their

natural resources.

10. My interests are being fully and adequately repre-

sented by the NWF in its lawsuit against the Bureau and

the Department and my above stated injuries will be

fairly redressed by a decision favorable to NWF.

I declare under penalty of perjury that the foregoing

is true and correct.

Executed on August 16, 1988.

/s/ Merlin McColm

MERLIN McCOLM

App. 7

IN THE

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

NATIONAL WILDLIFE FEDERATION,

)

Plaintiff,

) Civil Action

* ) No.

ROBERT F. BURFORD, et al., ) — 85-2238-JHP

)

Defendants.

DECLARATION OF STEPHEN BLOMEKE

Declarant, STEPHEN BLOMEKE, being duly sworn

and under penalty of perjury, based upon personal

knowledge of the following facts as specifically appears

herein, deposes and says:

1. I am a member of the National Wildlife Federation

(NWF) and its affiliate the Colorado Wildlife Federation

(CWP).

2. I reside at 1715 Ninth Avenue, Longmont, Colorado

80501.

3. I have lived in Colorado for eight years. During that

time I have frequently used the federal lands which are

administered by the Bureau of Land Management

(Bureau) and the U.S. Department of the Interior (Depart-

ment). I currently use these federal lands located

throughout the state of Colorado and elsewhere, and |

intend to continue such frequent and widespread use into

the future.

App. 8

4. I use these federal lands for recreational purposes

and aesthetic enjoyment. My uses include hunting, fish-

ing, camping and hiking. Among the game animals | hunt

are grouse, deer, elk, antelope and ptarmigan. I fish pri-

marily trout.

5. I often travel considerable distances across the state

of Colorado to access areas containing prime habitat for

these species. In so doing, | have used and continue to

use the various campgrounds and recreation areas

located on these federal lands.

6. Because of my extensive use of these federal lands, |

have a personal interest in the management programs of

the Bureau and the Department. My continued recre-

ational and aesthetic enjoyment of these lands depends

upon their being managed by the agencies in full compli-

_ ance with the laws relating to preservation and protection

of natural resources on the public lands they administer.

7. I am aware that the National Wildlife Federation

has filed a lawsuit against the Bureau and the Depart-

ment for unlawfully revoking protective land with-

drawals and unlawfully terminating protective land

classifications on the public lands pursuant to the Depart-

ment’s Land Withdrawal Review Program.

8. I am also aware that many Public Land orders and

Secretary of the Interior orders have withdrawn specific

areas of the federal lands which I use for recreational and

aesthetic uses. These include: Public Land Order 2302 of

March 14, 1961 (Indian Peaks Campground), Public Land

Order 2553 of December 11, 1961 (Strawberry Camp-

ground), Public Land Order 2558 of December 11, 1961

(Gordon Gulch Campground, Ward Picnic Ground, Park

8 ee ee

_ °

~ oe

App. 9

Creek Recreation Area and Sheep Creek Fish Habitat

Study Area), and Public Land Order 2732 of July 19, 1962

(Buffalo Pass Campground).

9. Pursuant to the above stated Withdrawal Review Pre-

gram, the Bureau and the Department unlawfully

revoked all of the protective withdrawals which I use and

which are mentioned in paragraph 8 above. See Public

Land Order 6170, 47 Fed. Reg. 7414 et. seq. (Appendix |

attached hereto).

10. Asa result of these unlawful actions by the Bureau

and the Department, these specific federal lands which |

frequently use for the above stated recreational purposes

and aesthetic enjoyment have been opened to the staking

of mining claims and other forms of development. Such

actions injure my enjoyment of these lands by threatening

the aesthetic beauty and wildlife habitat potential of

these lands.

11. My interest in recreational use and aesthetic enjoy-

ment of the federal lands, and my interest in seeing that

the laws pertaining to the preservation and protection of

federal lands and their natural resources are complied

with, have been adversely affected by these unlawful

actions of the Bureau and the Department.

12. My interests are being fully and adequately repre-

sented by NWF in its lawsuit against the Bureau and the

Department and my above stated injuries will be fairly

redressed by a decision favorable to NWF.

App. 10°

| declare under penalty of perjury that the foregoing

is true and correct.

Executed on August __, 1988.

/s/

STEPHEN BLOMEKE

App. 11

IN THE

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

NATIONAL WILDLIFE FEDERATION, )

calla )

ean ) Civil Action

V. ) No.

ROBERT F. BURFORD, et al., . 85-2238-JHP

Defendants. )

DECLARATION OF A. L. (WILL) OUELLETTE

Declarant, A.L. (WILL) OUELLETTE, being duly

sworn and under penalty of perjury, based upon personal

knowledge of the following facts as specifically appears

herein, deposes and says:

1. | am a member of the National Wildlife Federation

(NWF) and its affiliate the New Mexico Wildlife Federa-

tion (NMWFP).

2. I reside at Star Route, Box 12, Placitas, New Mexico

87043.

3. | have used the federal lands extensively for many

years and | continue to use these lands almost on a daily

basis. In particular, | use the federal lands which are

administered by the Bureau of Land Management

(Bureau) and the U.S. Department of the Interior

(Department).

4. Areas of these federal lands which | have used and

continue to use include the Lincoln, Pecos, Cibola, Gila

and Carson National Foresis, especially the wilderness

areas associated with these forests, and adjacent lands

App. 12

managed by the Bureau. | also use federal lands adminis-

tered by the Bureau in the San Mateo Mountains, Mount

Taylor, the Florida Mountains, and the White Oaks area.

5. I use these federal lands for recreational purposes

and for aesthetic enjoyment. My uses include extended

overnight camping, backpacking, and day hiking through

the mountains, hunting, fishing, picnicing, horseback

riding, packing with horses, and driving along scenic

roads. The species | hunt include deer, barbary sheep,

bear, coyote, elk, antelope, wild turkey and ibex.

6. Another specific area which | frequently visit is the

Tent Rocks Picnic Area. My use there is mainly for

aestheic enjoyment of that area’s scenic rock formations

and other vistas.

7. My recreational and aesthetic enjoyment of the above

mentioned federal lands largely depends upon their

being managed by the Bureau and the Department in full

compliance with the laws pertaining to the preservation

and protection of the federal lands they administer.

8. I am aware that the National Wildlife Federation has

filed a lawsuit against the Bureau and the Department for

unlawfully revoking protective land withdrawals and

unlawfully terminating protective land classifications on

the public lands pursuant to the Department’s Land

Withdrawal Review Program.

9. lam also aware that the specific federal lands which |

use are among the federal lands which were protected by

the withdrawals and classifications that were revoked

and terminated under the above stated Withdrawal

Review Program. These include, but are not limited to,

App. 13

the Tent Rocks Recreation Area (protected by classifica-

tion NM 9491 of September 17, 1970, 35 Fed. Reg. 14564,

14565, unlawfully terminated by Notice of June 9, 1981, 46

Fed. Reg. 31776, 31777) (see appendices I, II, and III

attached hereto); areas of Lincoln National Forest (pro-

tected by Public Land Order No. 656 of August 15, 1950,

unlawfully revoked by Public Land Order 5827 of February

20, 1981, 46 Fed. Reg. 7339, 7340); and areas of the Gila

National Forest (protected by Secretarial Order of Octo-

ber 4, 1941, unlawfully revoked by Public Land Order 6314

of August 17, 1982, 47 Fed. Reg. 35768, 35769).

10. These unlawful actions by the Bureau and the

Department have resulted in actual injury to my recre-

ational use and aesthetic enjoyment of federal lands by

opening specific areas which | use to the staking of min-

ing claims, oil and gas leasing and development, disposal

by exchange and other uses which adversely affect the

aesthetic beauty and wildlife habitat potential of these

iands.

11. My interest in recreational use and aesthetic enjoy-

ment of the federal lands, and my interest in seeing that

the laws pertaining to the preservation and protection of

federal lands and their natural resources are complied

with, have been adversely affected by the unlawful

actions of the Bureau and the Department.

12. My above stated interests are being fully and ade-

quately represented by NWF in its lawsuit against the

Bureau and the Department and my above stated injuries

will be fairly redressed by a decision favorable to NWF.

App. 14

| declare under penalty of perjury that the foregoing

is true and correct.

Executed on August 30 , 1988.

/s/ A.L. “Will” Ouellette

A L. (WILL) OUELLETTE

App. 15

IN THE

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

NATIONAL WILDLIFE FEDERATION, )

Plaintiff,

) Civil Action

V. ) No.

ROBERT F. BURFORD, et al., ‘ 85-2238-JHP

Defendants. )

DECLARATION OF PEGGY KAY PETERSON

Declarant, PEGGY KAY PETERSON, being duly

sworn and under penalty of perjury, based upon personal

knowledge of the following facts as specifically appears

herein, deposes and says:

|. | am a member of the National Wildlife Federation

(NWFP).

2. On April 7, 1986, | executed an affidavit which was

filed in the instant civil action. | hereby incorporate that

affidavit herein in its entirety.

3. I continue to reside at 3519 Partridge Lane, Casper

Wyoming 82604.

4. I also continue to use the federal lands including

those in the vicinity of the South Pass-Green Mountain

area of Wyoming for recreational purposes and aesthetic

enjoyment as stated in my April 7, 1986, affidavit. In

particular, | use these federal lands for hiking, camping,

hunting and fishing. | primarily hunt large game includ-

ing deer and elk which are known to occupy these federal

lands.

App. 16

5. | specifically use the federal lands administered by

the Bureau and the Department which were described in

the order dated November 22, 1967, (32 Fed. Reg. 16057,

16058) classifying such lands for multiple-use manage-

ment and segregating such lands from appropriation

under the general mining laws.

6. I am aware that the above mentioned classification

was unlawfully terminated by order dated April 30, 1984,

with respect to these areas of the federal lands which |

use. 49 Fed. Reg. 19904. This action by the Bureau and

Department unlawfully removed the protection of natural

resources afforded by the classification by opening such

lands to location under the mining laws in violation of

the laws pertaining to the preservation and protection of

natural resources on the federal lands.

7. Further, | am aware that U.S. Energy Corporation has

filed a mine permit application with the Bureau and

Department, (U.S. Energy Application, TFN 2 4/86),

which includes a proposal to mine a significant portion of

the federal lands which | use for recreational purposes

and aesthetic enjoyment.

8. A substantial portion of the lands which I use and

which are included in the U.S. Energy permit application

are identical to those lands described in the classification

order mentioned in paragraph 5 above which was termi-

nated by the order mentioned in paragraph 6 above.

9. My interest in recreational use and aesthetic enjoy-

ment of these specific tracts of federal lands has been

adversely affected by the Bureau's and Department's

unlawful termination of a protective land classification.

Such action, by authorizing the U.S. Energy mine permit

App. 17

application causes substantial injury to my uses of these

federal lands by threatening the aesthetic beauty and

wildlife habitat potential of these lands.

10. My interests continue to be fully and adequately

represented by NWF in its lawsuit against the Bureau and

the Department and my interests will be fairly redressed

by a decision favorable to NWF.

I declare under penalty of perjury that the foregoing

is true and correct.

Executed on August 28th, 1988.

/s/ Peggy Kay Peterson

PEGGY KAY PETERSON

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.