Amicus Curiae Brief — Lujan v. National Wildlife Federation

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No. 89-640 JOSEPH F. SPANION, JR,

CLR

In The

Supreme Court of the United States

October Term, 1989

Manuel] Lujan, Jr., Secretary of the Interior,

et al., Petitioners,

v.

National Wildlife Federation, et al,

Respondents.

On Petition For Writ of Certiorari to the

United States Court of Appeals

For the District of Columbia

AMICI CURIAE AND BRIEF OF AMICi CURIAE

NATIONAL CATTLEMEN’S ASSOCIATION, PUBLIC LANDS

COUNCIL, AMERICAN SHEEP INDUSTRY ASSOCIATION,

ROCKY MOUNTAIN OIL AND GAS ASSOCIATION, AND

INDEPENDENT PETROLEUM ASSOCIATION OF AMERICA

IN SUPPORT OF PETITIONERS

* Constance E. Brooks

John J. McFadden

Lindsay, Hart, Neil & Weiler

222 S.W.Columbia, Suite 1800

Portland, Oregon 97201

(503/226-1191

* Counsel of Record

No. 89-640

In The

| Supreme Court of the United States

October Term, 1989

Manuel Lujan, Jr., Secretary of the

Interior, et al., Petitioners,

Vv.

National Wildlife Federation, et al,

Respondents.

On Petition For Writ of Certiorari to the

United States Court of Appeals

For the District of Columbia

MOTION OF NATIONAL CATTLEMEN'S ASSOCIATION,

PUBLIC LANDS COUNCIL, AMERICAN SHEEP INDUSTRY

ASSOCIATION, ROCKY MOUNTAIN OIL AND GAS

ASSOCIATION, AND INDEPENDENT PETROLEUM ASSOCIATION

OF AMERICA FOR LEAVE TO FILE BRIEF AS AMICI

CURIAE IN SUPPORT OF PETITIONERS

2

Pursuant to this Court’s Rule 42, the National

Cattlemen’s Association (NCA), Public Lands Council

(PLC), American Sheep Industry Association (ASI),

Rocky Mountain Oil and Gas Association (RMOGA),

and the Independent Petroleum Association of America

(IPAA) respectfully request the Court for leave to file

the amicus curiae brief bound with this motion. Con-

sent letters from Petitioners and Respondents accom-

pany this filing.

The members of the amici organizations operate on

or use resources from the public lands. Litigation

concerning public land policies directly affects these

members and amici can provide this Court with a

unique perspective regarding the need for this Court to

grant Petitioners petition for a writ of certiorari.

Therefore, amici respectfully request that this Court

grant the motion for leave to file this brief amici curiae.

Respectfully submitted,

Constance E. Brooks

John J. McFadden

Lindsay, Hart, Neil & Weigler

222 S.W.Columbia, Suite 1800

Portland, Oregon 97201

No. 89-640

Oe

In The

Supreme Court of the United Stats

October Term, 1989

Manuel Lujan, Jr., Secretary of the

Interior, ef al., Petitioners,

Vv.

National Wildlife Federation, et al,

Respondents.

On Petition For Writ of Certiorari to the

United States Court of Appeals

For the District of Columbia

BRIEF OF AMICI CURIAE

NATIONAL CATTLEMEN’S ASSOCIATION, PUBLIC

Counsel for National Cattlemen's LANDS COUNCIL, AMERICAN SHEEP INDUSTRY

‘faa wary oy to —" ASSOCIATION, ROCKY MOUNTAIN OIL AND GAS ASSOCIATION

Mountain Oil end Gas Asso AND INDEPENDENT PETROLEUM ASSOCIATION OF AMERICA

ciation, and Independent IN SUPPORT OF PETITIONERS

Petroleum Association of America

TABLE OF CONTENTS

TABLE OF AUTHORITIES ................ ii

joy) je | rr re 2

oe ree eee ee ee eee 4

SUMMARY OF ARGUMENTS .............. 5

STATEMENT OF THE CASE ............... 5

REASONS FOR GRANTING THE PETITION ... 6

I THE DECISION OF THE COURT OF

APPEALS ERODES PREVIOUS

DECISIONS OF THIS COURT

LIMITING JUDICIAL REVIEW OF

AGENCY ACTION TO INSTANCES

WHEN THE LITIGANT HAS A

PERSONAL STAKE IN THE

sg ss TT TTT EEE 6

II THE POSSIBLE INCREASE IN

LAWSUITS TO STOP

DEVELOPMENT ON PUBLIC LAND

WILL ADVERSELY AFFECT AMICI

AND OTHER DEVELOPMENT

INTERESTS THAT RELY ON

ACCESS TO FEDERAL LAND .... 9

CONCLUSION

il

TABLE OF AUTHORITIES

Cases Page

Americans United for Separation of Church

and State v. United States Department of Health,

Education and Welfare, 619 F.2d 252 (1980) .... 12

Conner v. Burford, 848 F.2d 1441

DP stekiawstneweeeeeeen'’s 10

Gladstone Realtors v. Village of Bellwood,

ee ee ee 65 0c ee hows ec ccesee 7

NRDC v. Hodel, 618 F. Supp. 848

i MTD cess ceed nedcecenvece 10

NRDC v. Hughes, 454 F. Supp. 148

PPT TTT Te Te TTT eee 1]

NRDC v. Morton, 388 F. Supp. 829 (D.D.C. 1974),

aff'd 527 F.2d 1386 (D.C. Cir.)

cert. denied 427 U.S. 913 (1975) .......... 11

Sierra Club v. Morton, 405 U.S. 727 (1972) ...... 7

Sierra Club v. Watt, 608 F. Supp. 305

Pe EY EE Bodo ecd ees eeeccece 11

United States ex rel. Chapman v. Federal Power

Comm., 345 U.S. 153 (1953)

ill

United States v. Students Challenging

Regulatory Agency Procedures (SCRAP),

413 US. GED (ISTE) occ ccc ccceseccvses 7

Valley Forge Christian College v. Americans United

for the Separation of Church and State,

S56 UD. SEG CHRD cee ccc cece ccereess 7

Constitutional and Statutory Provisions

U.S. Const., art. II], § 2. 2.2... ee eee eee ees 6

Administrative Procedure Act,

So PPP rrTerEEPELeEEeeee 10

3, 4 | SPT PEPE EEE ETe 6

Twenty-five Percent Act,

By Gis cw dec eccececeseecese 10

National Forest Management Act,

16 U.S.C. § 1604(d) ... 2... eee ee ee eee 10

SP Ghee UE oc cece esecrsvccesver 10

Federal Onshore Oil and Gas Leasing Reform Act,

, - | Prrrrrrrrereerrrer 10

National Environmental Policy Act,

ee cee eh eee eee o 10

Federal Land Policy and Management Act,

GP Ghee BPRS sc ccccccsccssesvess 10

> Ue © SPD ccc ccesecesecsccevess 10

2

INTEREST OF AMICI

Amici curiae are five organizations whose members

are directly involved in the use and management of

natural resources on public lands. The members of

each organization are often affected by litigation to stop

development or economic uses of lands.

Amicus curiae National Cattiemen’s Association

(NCA) is a non-profit trade association speaking on

behalf of all segments of the nation’s beef cattle indus-

try. The membership represents approximately 230,000

professional cattlemen. The NCA’s basic purpose is to

provide the beef cattle industry with an organization

through which members work collectively to protect

their industry and to solve industry problems in the

national economy. A number of NCA members use

public land resources through livestock grazing leases or

permits and water development. These NCA members

play an active role in the management of these leases

and permits.

Amicus curiae Public Lands Council (PLC) is a non-

profit organization representing 27,000 members who

hold leases and permits to graze domestic livestock on

federal land. In the western states, the scarcity of

undeveloped private land makes public land use, either

by grazing lease or grazing permit, an essential part of

the ranch unit. PLC members actively manage these

leases and permits.

Amicus curiae American Sheep Industry Association

(ASI) is a non-profit organization representing 115,000

3

producers of wool and lamb. The association represents

its members in legislative and regulatory matters. Addi-

tionally, the ASI promotes marketing efforts with re-

search, education, and communication activities. Many

ASI members also operate on federal land under the

authority of grazing leases or permits. ASI members

also actively manage these leases or permits for produc-

tion of forage for livestock and wildlife.

Amicus curiae Rocky Mountain Oil and Gas Associa-

tion (RMOGA) is a trade association representing

hundreds of oil and gas operators, large and small, who

explore for and produce oil and natural gas throughout

the Rocky Mountain states of North Dakota, Montana,

Wyoming, Colorado, Utah, Nebraska, South Dakota,

and Idaho. The high percentage of federal lands in

RMOGA’s region gives RMOGA members a serious

interest in federal land management. Access to federal

lands to drill for oil and natural gas is fundamental to

the industry’s willingness and ability to explore for and

develop oil and gas reserves on federal lands. A

significant number of RMOGA members explore for

and produce oil and gas on federal leases.

Amicus curiae Independent Petroleum Association of

America (IPAA) represents the interests of approxi-

mately 10,000 independent oil and gas producers in the

lower 48 contiguous states. The independents drill

more than 90% of the exploratory wells in untested

areas of the United States, many of which are on fed-

eral land. IPAA members produce a third of the total

output of crude oil and natural gas in the United States

and--perhaps most important--make 80% of the sig-

4

nificant oil and natural gas discoveries in the United

States. Access to federal land for exploration and

development is also important to IPAA members.

Amici curiae have a direct interest in the question of

whether an environmental group can prove standing on

the basis of using the "vicinity of the area” that is the

subject of the lawsuit. Amici members all rely on

federal land resources for their livelihood. Amici have,

in the past, suffered economic harm from lawsuits filed

by environmental organizations attempting to prevent

development, such as oil or natural gas drilling, by

changing federal land policy. In order to defend the

decisions made by federal agencies that were challenged

in court, amici have had to intervene in these suits and

to take other legal action.

This case involves how much of a personal stake in

the controversy must advocacy organizations represent-

ing their members show before the issues can be

addressed in federal court. Given the number of

possible lawsuits and the resulting impact on public land

management policy and future use of the public lands,

this case is very important to amici members.

OPINIONS BELOW

The opinion of the court of appeals for the District

of Columpia Circuit is reported at 878 F.2d 422. The

opinion of the district court for the District of Columbia

Circuit is reported at 699 F. Supp. 327. Prior opinions

of the court of appeals for the District of Columbia

Circuit are reported, respectively, at 835 F.2d 305 and

5

844 F.2d 889, while prior opinions of the district court

for the District of Columbia Circuit are reported,

respectively at 676 F. Supp. 371 and 676 F. Supp. 280.

SUMMARY OF ARGUMENTS

1. The decision of the court of appeals reduces

the showing of interest for standing to sue below the

minimum required by the United States Constitution.

By removing the requirements that an organization show

that its members have a personal stake in this litigation,

the court of appeals permits any member of the public

to challenge agency decisions without any personal

involvement. The federal courts will be required to

adjudicate public policy issues that are best left to the

Executive Branch or Congress, becoming just another

forum for public debate.

2. This decision will likely interfere with a wide

range of economic activities on federal land, because it

permits open-ended litigation to stop development by

organizations lacking any personal interest in the case.

The erosion of the standing doctrine will encourage

public land litigation to limit development, including

livestock grazing and oil and gas drilling done by amici.

STATEMENT OF THE CASE

Amici adopt the Petitioners’ statement of the case

and incorporate it herein by reference.

6

REASONS FOR GRANTING THE PETITION

I

THE DECISION OF THE COURT OF APPEALS

ERODES PREVIOUS DECISIONS OF THIS COURT

LIMITING JUDICIAL REVIEW OF AGENCY ACTION

TO INSTANCES WHEN THE LITIGANT

HAS A PERSONAL STAKE IN THE MATTER

This is a case involving the subject matter jurisdic-

tion of the United States Federal Courts. The decision

of the court of appeals has extended the possible

interests that may have standing far beyond the limits

framed by Constitutional and prudential standards esta-

blished by this Court. This expansion will make the

federal courts a forum for public policy debates over

how the nation’s public land should be used, without

regard to whether the litigant has a real and personal

stake in the controversy. The federal courts will thus

intrude into matters already debated by the Executive

Branch in violation of the tradition of separation of

powers.

Article III of the Constitution establishes the jurisdic-

tion of the courts by limiting "judicial Power. . . to all

Cases [and]. . . Controversies." U.S. Const., art. III, §

2. The Administrative Procedure Act, 5 U.S.C. § 702,

further limits the jurisdiction of the courts in determin-

ing disputes arising out of federal agencies to persons

"suffering [a] legal wrong because of agency action, or

adversely affected or aggrieved by agency action within

the meaning of the relevant statute."

7

These limits on the power of the judiciary ensure that

the courts are not asked to perform the functions of the

Executive Branch or the Congress.

In Valley Forge Christian College v. Americans United

for the Separation of Church and State, 454 U.S. 464, 472

(1982), this Court stated that "at an irreducible mini-

mum, 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.” citing Gladstone

Realtors v. Village of Bellwood, 441 U.S. 91, 99 (1979).

In the context of public land litigation, the Court held

that merely an interest in “conservation” is not sufficient

to permit standing. Sierra Club v. Morton, 405 U.S. 727,

730 (1972). Instead, the plaintiff must be "directly

harmed." United States v. Students Challenging Regula-

tory Agency Procedures (SCRAP), 412 U.S. 669, 685

(1973).

The Respondents filed this lawsuit to oppose Peti-

tioners’ decisions to permit a wider range of lawful uses,

such as water projects and oil and gas drilling, on the

lands managed by the Bureau of Land Management

(BLM) or the Forest Service. Respondents brought this

public policy dispute into the federal courts without ever

showing that a single member actually used any part of

the 180 million acres of land involved in the case and

would be harmed by the Petitioners’ actions. Instead,

Respondents came forward with members who used

land in "the vicinity of " two tracts of BLM land several

million acres in size.

8

The decision of the court of appeals permits any

organization to litigate public land policy issues on the

basis that they use land "in the vicinity of" the area and

that the nearby land might, at some future point in

time, be developed. By sharply reducing the personal

stake required to invoke the jurisdiction of the federal

courts, the court of appeals ensures that the federal

courts will be asked to resolve issues more appropriately

left to the Executive Branch or Congress.

No case decided by this Court permits standing

when the party alleges a general injury--such as an

interest in the aesthetic and recreational use of land

"in the vicinity" of the land actually affected by agency

action. The affidavit filed in this case illustrates the

lack of a personal stake and the possible problems that

will arise if this decision is permitted to stand without

review. One of Respondents’ members claimed to use

land “in the vicinity of" a 2 million acre tract of land.*

Put into perspective, it would take one person more

than 54 years to use the land described in the affidavit,

if that individual used 100 acres a day for those 54

years. Given the number of acres involved, it is note-

worthy that Respondents could not even show that any

member ever used the land in question. Such a claimed

basis for standing makes a mockery of the requirement

. Respondent’s member filed an affidavit stating that

she used federal lands for recreation and aesthetic enjoyment -

especially those "in the vicinity of’ South Pass - Green Moun-

tain, Wyoming.” Pet. App. 3. The district court found that this

area is 2 million acres and only 2,000 acres were recently open-

ed to mineral development. Pet. App. 10.

9

for a concrete, definable, and individualized injury for

standing.

The standing doctrine requires evidence of a

personal stake in the case to ensure that the federal

court only addresses a specific dispute rather than

simply second-guessing agency policy. Here, the Res-

pondents effectively ask the federal court to assume the

role of Secretary of Interior and reverse the more than

twelve hundred or so agency decisions made over

several years’ time. This sweeping remedy should not be

considered without evidence that Respondents’ mem-

bers use of the land to be protected is more precise

than “in the vicinity of." The decision contradicts long-

standing principles established by this Court and will

undoubtedly lead to confusion in future cases.

THE POSSIBLE INCREASE IN LAWSUITS

TO STOP DEVELOPMENT ON PUBLIC LAND

WILL ADVERSELY AFFECT AMICI AND

OTHER DEVELOPMENT INTERESTS THAT

RELY ON ACCESS TO FEDERAL LAND

This case is not the first nor will it be the last one

filed by advocacy organizations to change the federal

government's land management policies.2, The number

. Many such cases have directly affected how NCA,

PLC, ASI, RMOGA, and IPAA members do business. In NRDC

(continued...)

10

of these cases and the potential to do economic harm

makes it imperative that these "representational" law-

suits involve real controversies and real people. The

Constitutional requirements of standing are an import-

ant way to ensure that litigation does not simply repeat

the public policy debates that occurred in the Depart-

ment of Interior or the Forest Service before the agency

decision was made.?

The use of public land in livestock grazing, timber

harvest, mineral development, and skiing dominates the

economies of most western states. Amici represent

2. continued)

v. Hodel, 618 F. Supp. 848 (E.D. Cal. 1985), the district court

set aside the cooperative grazing allotment management

program under which many NCA, PLC and ASI members had

signed agreements. In Conner v. Burford, 848 F.2d 1441 (9th

Cir. 1988), the district court set aside the Forest Service’s

decision to issue leases and enjoined all development. Many

RMOGA and IPAA members had leases that were challenged.

° Public participation occurs in a number of different

proceedings: rulemaking, 43 U.S.C. § 1740, 16 U.S.C. § 1613,

and 5 U.S.C. § 503, land use planning process, 43 U.S.C. §

1712(f); 16 U.S.C. § 1604(d), and under the National Environ-

mental Policy Act (NEPA), 42 U.S.C. § 4332, 40 C.F.R. § 1506.

: Under the Twenty-five Percent Act, all of the

western states receive 25% of the revenues from National Forest

land. 16 U.S.C. § 500. These revenues are from ski areas,

timber sales, livestock grazing fees, and other revenue generat-

ing activities. Under the Federal Onshore Oil and Gas Leasing

(continued...)

1]

the agriculture and oil and gas industries. Amici

members have often been affected by litigation challeng-

ing the agency decisions that enable a rancher to use

federal land to graze his livestock, to build a water

project, or that permit a company to drill for oil or

natural gas.5 Judge Williams in his dissent to an earlier

opinion of the Court of Appeals in this case acknowl-

edged the severe impacts of the preliminary injunction.

"For commercial interest holders, an investment is tied

up for an indefinite period, all chance of any return

denied. Cf. First English Evangelical Lutheran Church

v. County of Los Angeles, 482 U.S. 304 (1987)."

Amici believe that such litigation is not appropriate

as another form of public participation, unless actual

persons are adversely affected. Amici must establish

4 continued)

Reform Act, 30 U.S.C. § 191, 50% of the revenues from oil and

gas leases on National Forest and BLM land are returned to the

state. Federal lease revenues play a critical role in state and

local government finances, especially in Wyoming,New Mexico,

and Montana.

. In NRDC v. Morton, 388 F. Supp. 829 (D.D.C.

1974), aff'd 527 F.2d 1386 (D.C. Cir.) cert. denied 427 U.S. 913

(1975) the district court changed livestock grazing and retained

supervisory jurisdiction when it held that an environmental

impact statement was required. See also Sierra Club v. Watt,

608 F. Supp. 305 (E.D.Cal. 1985) (setting aside the wilderness

study area changes made by the Secretary of the Department

of Interior and enjoining development inconsistent with

wilderness study.); NRDC v. Hughes, 454 F. Supp. 148 (D.D.C.

1978) (enjoining coal leasing on federai lands until program-

matic environmental impact statement is prepared.

12

their injury when they file suit. It is equally appropriate

that environmental organizations carry the same burden

of proving a personal stake in the agency decision to be

contested. Unless the traditional standards for standing

to sue are retained by granting review of this case,

Amici are concerned that there wil! be no limits on the

number and kind of lawsuits brought. Moreover, the

federal courts will be converted into another forum for

public participation, a role they are ill-equipped to play.

Amici respectfully urge this Court to grant review.

CONCLUSION

"Standing differs from the other elements of jus-

ticiability in that it focuses primarily on the status of the

litigant, and only secondarily on the issues he wishes to

have adjudicated." Americans United for Separation of

Church and State v. United States Department of Health,

Education and Welfare, 619 F.2d 252, 254-55 (1980). As

stated in United States ex rel. Chapman v. Federal Power

Comm., 345 U.S. 153, 156 (1953), standing doctrines

have been "more or less determined by the specific

circumstances of individual situations." Here the Court

has been presented with a situation where the law of

standing needs to be further clarified.

13

Respectfully submitted,

Constance E. Brooks

John J. McFadden

Lindsay, Hart, Neil & Weigler

222 S.W.Columbia, Suite 1800

Portland, Oregon 97201

Counsel for National Cattlemen’s

Association, Public Lands Council,

American Sheep Industry, Rocky

Mountain Oil and Gas Associa-

tion, and Independent Petroleum

Association of America,