Respondents Brief — Lujan v. National Wildlife Federation

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QUESTIONS PRESENTED

PARTIES TO THE

PROCEEDINGS

TABLE OF CONTENTS

QUESTIONS PRESENTED I

, PARTIES TO THE PROCEEDINGS ii

TABLE OF AUTHORITIES

PERTINENT CONSTITUTIONAL AND STATU-

TORY PROVISIONS ]

STATEMENT |

SUMMARY OF ARGUMENT 14

ARGUMENT 16

I. THE WRIT SHOULD BE DISMISSED AS [M-

PROVIDENTLY GRANTED 16

Il. ALTERNATIVELY, NWF HAS STA NDING

IN ITS REPRESENTATIONAL CAPACITY 25

A. The Peterson Affidavit 26

B. The Erman Affidavit 36

lil. ALTERNATIVELY, THE CASE SHOULD BE

REMANDED FOR A DETERMINATION

AS TO WHETHER NWF ESTABLISHED

STANDING ON ITS OWN ACCOUNT 1?

CONCLUSION "45

TABLE OF AUTHORITIES

Cases:

Page

ASARCO, Inc. Vv. Kadish, 109 8. Ct. 2037 (1989) 22

Action Alliance of Senior Citizens Vv. Heckler, 789

F.2d 931 (D.C. Cir. 1986) 42

Alghanim Vv. Boeing Co., 477 F.2d 143 (9th Cir.

1973) 18

Allen Vv. Wright, 468 U.S. 737 (1984) 40

Anderson Y¥. Liberty Lobby, Inc., 477 U.S. 242

(1986) 40

Arlington Heights v. Metropolitan Housing Dev.

Corp., 429 U.S. 252 (1977) 25

Association of Data Processing Serv. Orgs. V.

Camp, 397 U.S. 150 (1970) 24, 28, 41

Baker v. Carr, 369 U.S. 186 (1962) 25, 41

Bender Vv. Williamsport Area School Dist., 475 U.S.

534 (1986) 33

Bowen V. Kendrick, 108 8. Ct. 2562 (1988) 25

Brobst v. Columbus Servs. Int'l, 761 F.2d 148 (3d

Cir. 1985), cert. denied, {08 S. Ct. 777 (1988) 18

Buckley Vv. Valeo, 424 U.S. 1 (1976) 25

Cady Vv. Morton, 527 F.2d 786 (9th Cir. 1975) 42

Celotex Corp. Vv. Catrett, 477 U.S. 317 (1986) _ 17, 27, 39

Childers Vv. Jose ph, 842? F.2d 689 (3d Cir. 1988) 9()

Cia. Petrolera Caribe, Ine. Vv. Arco Caribbean,

Inc., 754 F.2d 404 (1st Cir. 1985) 19

Clarke Vv. Sec. Indus. Ass'n, 479 U.S. 388 (1987) 41

Coalition for the Env't Vv. Volpe, 504 F.2d 156

(8th Cir. 1974) 31

Committee for Consideration of Jones Falla Sew-

age Sys. V. Train, 539 F.2d 1006 (4th Cir. 1978) 31

Concerne d 4 hout Tridé nt V. Rumeafe ld, 555 F.2d

817 (D.C. Cir. 1976) 31

DKT Memorial Fund. Ltd. v. Agency for Int'l

Dev., 810 F.2d 1236 (D.C. Cir. 1987) 17

Duke Power Co. ¥. Carolina Envtl. Study Group,

Ine., 438 U.S. 59 (1978) 28, 32, 41

Escambia County ¥Vv. MeMillan, 466 U.S. 48

(1984) 15

rec . WNON Listeners Guild, 450 U.S. 582

(1981) 24

TABLE OF AUTHORITIES—Continued

FW PBS, Inc. Vv. Dallas, 110 8. Ct. 596 (1990)

Fisher Vv. United States, 328 U.S. 463 (1946)

Flast Vv. Cohen, 392 U.S. 83 (1968)

Franchise Tax Bd. of Calif. v. Alean Aluminum

Ltd., 110 8. Ct. 661 (1990)

Frazier V. Heebe, 482 U.S. 641 (1987)

Gladstone, Realtors v. Bellwood, 441 U.S. 91

(1979) 18, 27, 40,

Glen Eden Hosp. Vv. Blne Cross & Blue Shield, 740

F.2d 428 (6th Cir. 1984)

Griffin Vv. United States, 8336 U.S. 704 (1949)

Havens Realty Corp. V. Coleman, 455 U.S. 3638

»*

(1982) 18, 28, 41,

Health Researeh Group V. Kennedy, 82 F.R.D. 21

(D.D.C. 1979)

Hunt Vv. Washinaton State Apple Adve rhising

Comm'n, 482 US. 333 (1977) 25, 26, 40,

In ve Ruffalo, 390 US. 544 (1968)

International Brotherhood of Elec. Workers \

Hecller, 481 U.S. 851 (1987)

International Union Vv. Brock, 477 US. 24

(1986) 2

J. Truett Payne Co. Vv. Chrysler Motors Covrp., 45

U.S. 557 (1981)

Kissinacr Vv. Reporters Comm. for Freedam of the

Press, 445 U.S. 136 (1980)

Kleppe Vv. Sierva Club, 427 U.S. 390 (1976)

Lewis Vv. Continental Bank, Corp., 58 U.S.L.W. 4330

(U.S. Mar. 5, 1990)

Link Vv. Wabash R.R., 3870 U.S. 626 (1962)

Miller ¥. United States, 8357 U.S. 801 (1958)

Moor Vv. Texas & NO. RR. 297 U.S. 101 (1986)

Munoz-Mendoza Vv. Pievee, 711 F.2d 421 (1st Cir

19R3)

National Ova. for the Reform of Marijvana Lan

V. United States Dep't of State, 452 F. Supp

12776 (DDC. LOTR)

National Wildlife Fed'n ¥. Hodel, 839 F.2d 694

(lf Cir, TORR)

Pave

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IN THE

Supreme Court of the United States

OCTOBER TERM, 1989

No. 89-640

MANUEL LUJAN, JR., SECRETARY OF THE

INTERIOR, et al.,

Petitioners,

Vv.

NATIONAL WILDLIFE FEDERATION,

Respondent.

On Writ of Certiorari to the United States Court of Appeals

for the District of Columbia Circuit

BRIEF FOR RESPONDENT

CONSTITUTIONAL AND STATUTORY PROVISIONS

In addition to Article III, Section 2 of the Constitution

and the Administrative Procedure Act, 5 U.S.C. § 702,

cited by the Government, the following statutory and reg-

ulatory provisions are cited in this brief and included in

Appendix A for the convenience of the Court: The Na-

tional Environmental Policy Act, 42 U.S.C. § 433212)

(Ci; the Federal Land Policy and Management Act,

43 U.S.C. $$ 1701 (ai (2), (ai (3), (ai (7); 1702¢e), (dd,

(j); 1712¢ai, (di, (f+: 1714¢a), (1); 1732(a'; 1739

(e}; 1740; Pub. L. No. 94-579, § 70lic); 43 C.F.R.

S$ 1601.0-5'k), .0-6.

STATEMENT

This action seeks judicial review of the environmental

impact of a single federal program, the ongoing “Land

Withdrawal Review Program” (Program) of the United

States Department of the Interior (Government ).' Under

this Program, the Government terminated or revoked re-

strictions on approximately 180 million acres of federal

land between 1981 and mid-1985, and thereby opened the

land for commercial uses, including mining and mineral

exploitation. Although the trial court issued a prelim-

inary injunction in 1985, the injunction was subsequently

vacated by the court on November 4, 1988, and the Pro-

gram ‘with its consequent environmental impact) thus

continues unimpeded today.

In July 1985, respondent, the National Wildlife Fed-

eration (NWF), filed suit challenging the Program as

violative of the Federal Land Policy and Management

Act (FLPMA), 43 U.S.C. $$ 1701 et seg. (1982), the

National Environmental Policy Act (NEPA), 42 U.S.C.

<$ 4321 ef seq. (1982), and the Administrative Procedure

Act ‘APA}, 5 U.S.C. ££ 551 et seg. (1982). In its

amended complaint filed August 19, 1985, NWF stated

that it had over 4.5 million members and supporters and

alleged that:

NWF and its members are suffering and will con-

tinue to suffer injury in fact as a result of the chal-

lenged actions. Members of NWF use and enjoy the

environmental resources that will be adversely af-

fected by the challenged actions. They regularly use

these resources for fishing. hunting, bird and wildlife

watching, canoeing and boating, hiking, camping,

and other similar activities. These persons’ use and

enjoyment of these resources will be irreparably in-

jured if the defendants are permitted to terminate

protective land use restrictions and thereby open up

public lands to exploration, development, and dis-

posal, without the development of land use plans,

without prior preparation of adequate environmental

impact statements, and without compliance with ap-

'The Government disputes that the Program is a program and

characterizes it as “hundreds of executive branch decisions.” Ptrs.

Br. 2. But see p. 23 n.36, infra.

plicable laws, regulations, and procedures. Among

other things, the challenged actions will adversely

affect plaintiff and its members by destroying fish

and wildlife habitat, and by impairing natural

beauty. [JA 12.*}

NWF also alleged that the Government had violated the

law, and had injured both NWF and its members, by

denying them information about the Program and an

opportunity to participate in decision-making relating to

the Program. JA 12.

NWF appended as Exhibit A to the amended complaint

a list of 814 examples of land status actions, including

terminations of land classifications and land withdraw-

ais,’ taken by the Government pursuant to the challenged

Program since January 1, 1981. JA 25-50.

Congress enacted FLPMA in 1976 in a comprehensive

effort to rewrite the law of federal lands. The Act pro-

vides in Section 701‘c) that “|al]ll withdrawals, reserva-

tions, classifications, and designations in effect as of the

“JA” refers to the Joint Appendix in this Court, “Pet. App.”

to the Appendix to the Government's petition for a writ of cer-

tiorari, “Oppcert. App.” to the Appendix to NWF’s brief in oppo-

sition, “Ct. App. JA” to the Joint Appendix before the Court of

Appeals, “ER” to the Excerpt of Record in the Court of Appeals.

“Tr.” to the transcript of a hearing in the District Court, and

“Def.-Int. Ex.” to an exhibit introduced by defendant-intervenor

Mountain States Legal Foundation. While some affidavits, and

some exhibits to affidavits, are set forth in the Joint Appendix,

the Appendix to the petition, and the Appendix to the brief in oppo-

sition, others are not. Thus, “1B Edwards Aff. Ex. 21B” refers to

Exhibit 21BR to the Edwards affidavit marked 1B: while the 1B

Edwards aMdavit appears in the Joint Appendix (JA 87), Exhibi:

21B to that affidavit does not.

3“Classifications” designate public lands for retention in fed-

eral ownership. See 48 U.S.C. $215f. “Withdrawals” remove or

segregate designated land otherwise in the public domain, and

thus exempt it from the application of one or more federal disposal

laws. See 43 U.S.C. §$1702(j). The District Court found that

withdrawals and classifications represent “the only absolute shield

against private exploitation of ‘hese federal lands.” Pet. App.

134a.

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.” Pub. L. No. 94-579,

$ 701(c), 90 Stat. 2743 (1976).

Between FLPMA’s enactment in 1976 and 1980, the

Government engaged primarily in completing an inven-

tory of withdrawn or classified lands. JA 91-93. In

1981, however, the Government began a comprehensive

program to terminate withdrawals and classifications “to

open ‘locked-up’ Federal land to mineral exploration and

development through aggressive pursuit of the with-

drawal review program.” Pi, Ex. 70. The Bureau of

Land Management (BLM) issued new instructions to its

field offices to eliminate withdrawals as quickly as pos-

sible:

The new administration has stated clearly its ob-

jective to eliminate all unnecessary withdrawals of

_Federal lands, opening as many acres as possible to

the operation of the mining and mineral leasing laws.

[Pl. Ex. 73.]

A new guidance manual setting forth “Program Direc-

tion” and “Program Priorities” was issued. 1B Edwards

Aff. Ex. 21B. Terminations of withdrawals and classifi-

cations subsequently proceeded rapidly under the Pro-

gram. By mid-1985, the Government had terminated pro-

tective classifications and withdrawals for approximately

180 million acres of public land. JA 51-54, 65, 103;

Parker Aff., par. 35.

The Program thus opened many millions of acres of

public land to commercial development, particularly min-

eral exploitation, that have important recreational, en-

vironmental, or other public values. For example, the

Government terminated a reclamation withdrawal cov-

ering 34,285 acres in Utah, opening 8,360 acres to the

operation of the mining laws, 46 Fed. Reg. 7,348 (1981),

despite the prospect that mining would have an adverse

impact on two endangered species of fish, as well as po-

tential impacts on endangered bald eagles and peregrine

falcons. Pl. Ex. 74. In addition, campgrounds and other

recreational sites have been opened to mining and min-

eral leasing. Ser, e.g., 49 Fed. Reg. 32,808 (1984); 47

Fed. Reg. 11,671 (1982).

The Government’s evidence showed that the opening of

lands through terminations even prior to the issuance of

the injunction in 1985 had resulted in the staking of over

7,000 mining claims and 91 operating mines,‘ that over

eight million acres had been opened to mineral leasing,”

and that 1,000 or more leases had been issued, with

several hundred more pending. Parker Aff., par. 44.

The Government’s ongoing Land Withdrawal Review

Program will be dispositive ultimately of the future

status of nearly 250 million acres of federal land. JA

92, 99. Yet the Government prepared no environmental!

impact statement (EIS) prior to implementing the Pro-

gram, despite NEPA’s requirement, 42 U.S.C. § 4332/2)

(Ci, that every major federal action “significantly af-

fecting the quality of the human environment” must be

preceded by an EIS. NWF, in Count IV of its amended

complaint, JA 18-19, sought compliance with this law.

Recognizing the potentially far-reaching effect of the

disposition of federal lands under FLPMA, Congres:

enacted key provisions requiring land use plans. Thus,

FLPMA provides that

the national! interest will best be realized if the

public lands and their resources are periodically and

systematically inventoried and their present and fu-

ture use is projected through a land use planning

process. [43 U.S.C. § 1701 (a) (2).]

That broad policy is made specific in Section 202 of the

Act with the requirement that land use plans “shall be

developed for the public lands regardless of whether such

lands previously have been classified, withdrawn, set

aside, or otherwise designated for one or more uses.” 43

*Ct. App. JA 162-163; JA 72, par. 33; JA 108, par. 23.

* JA 66-67, par. 26; JA 104, par. 20.

1S.C. $1712(a'. See also 43 U.S.C. $$ 1701 (a) (3), 1712

‘a; Pb L. No. 94-579, § 701(c), 90 Stat. 2743. The

Government’s regulations define the land use plans re-

quired by FLPMA as “Resources Management Plans

(RMPs). 43 C.F.R. § 1601.0-5(k) (1989). At the time

the lawsuit was filed, the Government had completed only

nine of more than 100 required RMPs. Pl. Ex. 4. Count

I of NWF’s amended complaint challenged the Govern-

ment’s decision to proceed with its Program in the ab-

sence of the required land use plans. JA 15-16."

NWF also sought to ensorce other provisions of

FLPMA:

—_The Act requires the Government to submit recom-

mendations regarding the revocation of withdrawals to

the President and to Congress prior to opening the lands.

43 U.S.C. § 171411); see also Pub. L. No. 94-579, $701

(ec), 90 Stat. 2743. The Government has readily admitted

that not one of the terminated withdrawals covering al-

most 20 millions acres of federal land has been sub-

mitted under this review provision. Tr. (Sept. 16, 1985!

22 Count II of the amended complaint challenged this

failure. JA 16-17.’

6 Rather than preparing RMPs, the Government relied on “Man-

agement Framework Plans,” which do not meet the requirements

established for RMPs. The District Court found in 1985 that

the Government's “reliance on ‘Management Framework Plans

(MFPs) is misplaced and does not satisfy the statutory expecta-

tions of ‘land use plans.’” Pet. App. 132a.

7 The Government moved to dismiss Count II for lack of standing.

The District Court granted the intervention of United States Rep-

resentative John F. Seiberling on Count II, confirmed his stand-

ing, and upon Congressman Seiberling’s retirement from Congress,

allowed the substitution of Congressman Bruce F. Vento, Seiber-

ling’s successor as Chairman of the Subcommittee on National

Parks and Public Lands, and reaffirmed his standing. Order of

June 2. 1987. Congressman Vento withdrew his separate appeal

after the 1989 unanimous Court of Appeals ruling that NWF had

stauding, since where one plaintiff has standing, courts do not

generally consider whether other plaintiffs also have standing.

[Continued }

—FLPMA requires the Government to provide oppor-

tunities for meaningful public participation in “the prep-

aration and execution of plans and programs for, and the

management of, the public lands.” 43 U.S.C. $ 1739/(e);

see also 43 U.S.C. §$ 1701(a)(5), 1712(f), 1702(d).

Count VII of NWF’s amended complaint challenged the

Government’s failure to provide public participation in

the Program and in the actions completed under its aeg:s.

JA 20-21.* The District Court found that “[djespite the

statutory command, {the Government] ha!s| failed to

provide for public participation in [its] withdrawal revo-

cation decisions.” Pet. App. 133a.

—FLPMA requires that the Secretary of the Interior

“with respect to the public lands sha// promulgate rules

and regulations to carry out the purposes of this Act and

other laws applicable to the public lands.” 43 U.S.C.

$ 1740 (emphasis added); see also APA, 5 U.S.C. § 553.

Count V of NWF’s amended complaint challenged the

7 [Continued ]

Watt v. Energy Action Educ. Found., 454 U.S. 151, 160 (1981);

see Pet. App. 130a.

‘For example, under NEPA the Government is required affirm-

atively to solicit comments on any draft EIS “from those persons

or organizations who may be interested or affected.” 40 C.F.R.

§ 1503.1(a) (4) (1989). Since no EISs were prepared, NWF was

afforded no opportunity to comment on the potential environmental

consequences of a federal Program affecting millions of acres of

federal land.

Nor did the Government provide any other opportunities for

public participation in the development and execution of the

Program. It failed to adopt regulations governing the Program

in accordance with the notice and comment provisions of the

APA, 5 U.S.C. $553. Under existing planning regulations, the

Government was required to, but did not, publish draft plans for

public comment as well as complete EISs on resource planning

areas. 43 C.F.R. § 1610.2(f) (3) (1989). FLPMA also specifically

requires, 43 U.S.C. $$ 1701(a)(5), 1739, opportunities for public in-

volvement in all land management decisions. Yet no notice of pro-

posed withdrawal and classification terminations was provided to the

public. Govt’s Responses to Plaintiff's 2d Set of Interrogatories

No. 1(f).

Government’s failure to promulgate these regulations to

guide implementation of the Program. JA 19-20.’

Evidence presented by the Government itself demon-

strated that if the statutory and regulatory scheme had

been followed, the results of the land withdrawal review

process almost certainly would have been different.

Affidavits showed, for example, that before termina-

tions were completed, the Government created not EISs

but in some instances Environmental Assessments

(“EAs”), which were not available for public comment

and each of which was, in part, “to determine whether

an EIS is required” '’; did not use RMPs but rather

MFPs "'; did not publish notice to the world in the Fed-

eral Register but rather in some instances carried out

selective telephone calls, personal interviews, town meet-

ings, workshops, and the like; and did not work from

regulations but rather from a series of internal manuals.

instructional memoranda, directives, and brochures.”

These affidavits also showed that when it was later

brought to the Government’s attention that certain ter-

minations would adversely impact scenic resources or fish

and wildlife habitat, the terminations often had to be re-

vised."' It was NWF’s position that if the Government

*In addition, Count III of the amended complaint attacked the

Government’s failure to follow FLPMA’s requirement, 43 U.S.C.

$$ 1732(a), 1702(c), that public lands be managed in accordance

with principles of multiple use and sustained vield, JA 17, and

Count VII challenged the Government’s failure to follow applicable

regulations in carrying out its Program. JA 21. Count VI, JA 20.

was subsequently withdrawn.

10 JA 63 (emphasis added); see also JA 60-61, 135, 193-194.

11 JA 125, 126-137, 179-194; see n.6, supra.

12 JA 127, 129, 134, 137-139, 183, 194.

8 JA 57, 59, 60, 88, 91-95, 102, 126-127, 182-184, 187-189, 190,

192-193.

"JA 134, 136-137.

had followed the congressional command, these adverse

impacts would have become clear at the outset, rather

than in a selective and haphazard fashion after the ter-

minations had already occurred, and would have pre-

vented terminations across the board.

Thus, in its request for permanent relief, NWF sought,

among other things, the completion of the required EISs,

the promulgation of regulations governing the Program,

adequate notice about, and opportunities for public par-

ticipation in, the Program, and the submission of pro-

posed actions to the Congress and the President for re-

view. JA 22.

To demonstrate the injuries actually suffered by its

members, NWF submitted in April 1986 the affidavits of

Peggy Kay Peterson and Richard Loren Erman. Pet.

App. 187a-192a. In their affidavits which are dealt with

more fully in the Argument below, both Peterson and

Erman alleged that they used the federal lands adversely

impacted by the Government’s Program. They both gave

specific examples of areas in the vicinity of which they

recreated, areas which had been opened to mining by the

Program, areas where the aesthetic beauty and wildlife

habitat had been threatened, and areas where their own

recreational use and aesthetic enjoyment had been ad-

versely affected by the Government’s Program. They also

wore that their interest in participating in decisions af-

fecting the preservation and protection of these lands had

been adversely impacted by the Government’s failure to

provide proper notices and opportunities to participate.

Id.°

In June 1986, the Government served subpoenas on NWF,

seeking to take 15 depositions in 11 western states and the District

of Columbia. The admitted purpose of these depositions was to

demonstrate that NWF could not prove standing to bring this

action. NWF moved for a protective order, arguing that its affi-

davits demonstrated its standing and, therefore, additional dis-

covery 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. Pet. App. 170a.

As noted, NWF’s complaint had also alleged that it

was injured in its own right, as an organization, by its

inability: (1) to obtain information on the Govern-

ment’s Program and the actions completed under its

aegis, and (2) to participate in the Government’s

decision-making. JA 12. In support of these allegations,

NWF submitted in May 1986 the sworn declaration ' of

Lynn A. Greenwalt, then its Vice President for Re-

sources Conservation. Pet. App. 193a.

Greenwalt’s declaration, also discussed in more detail

below, demonstrated how NWF had been injured in its

own right, as opposed to in its representational capacity.

NWF had been deprived of vital information about, and

an opportunity to participate in, the decisions regarding

the Program, and it would be financially harmed by its

inability to carry out the tasks its members paid it to

perform. Pet. App. 193a-194a.

Upon finding that NWF was likely to succeed on the

merits, the District Court enjoined the Government’s Pro-

gram in December, 1985. Pet. App. 13la, 184a.

NWF moved for summary judgment on June 23, 1986.

In its cross-motion filed in September 1986, the Govern-

ment raised the standing issue in regard to the entire

amended complaint.’?

In December 1987, the Court of Appeals sustained the

District Court’s preliminary injunction, noting that

the affidavits [of Peterson and Erman] specifically

identify locations where | NWF’s|] members’ interests

are threatened by the [Government’s] actions in lift-

ing restrictions on mining and other forms of nat-

ural resource exploitation. Indeed, according to the

{Government|, mineral claims have already been

16“ Affidavit” and “declaration” are sometimes hereinafter used

interchangeably. See 28 U.S.C. § 1746.

‘7 No defendant challenged the standing of the congressional

intervenor.

staked in an area in which one member uses and

enjoys the resources. [{Pet. App. 80a.]

Judge Williams, concurring with the panel’s opinion on

the standing issue, applied a summary judgment standard

but nevertheless conciuded that

the issue of standing is largely academic. * * * By

the time the case was submitted to this court, the de-

fendants appear to have conceded the bare minimum

necessary for standing. | Pet. App. 85a.'"*]

On July 22, 1988, the District Court heard oral argu-

ment on both motions for summary judgment. ER 138.

At the close of argument, the District Court ordered the

case submitted except as to standing and requested addi-

tional memoranda from both sides on that issue. ER 119,

227-228. NFW filed a memorandum on its standing that

included five supplemental affidavits. Oppeert. App. 1-17.

These declarations were made by members of NWF who

use specific federal lands in five Western states that have

been affected by the Program and whose continued use

and enjoyment of those lands are thereby threatened.

NWF member David Doran’s declaration details his ex-

tensive recreational activities on the federal lands near

Coos Bay, Oregon. On April 24, 1984, pursuant to the

Program, the Government terminated two protective with-

drawals and opened to disposal under the public land laws

over 1500 acres of land on which Deran recreates. Opp-

cert. App. 2; 49 Fed. Reg. 17,502 (1984). The Govern-

ment proposes to dispose of these lands for the “develop-

ment of a marine industrial park.” Ct. App. JA 145-147.

As a result, lands which currently provide habitat for the

endangered snowy plover and peregrine falcon, and pro-

vide birdwatching opportunities for Doran, will be cleared

and paved. Oppcert. App. 2.

NWF member Merlin McCo'm resides in Elko, Nevada,

and uses many public lands in Nevada for recreation.

'SIn April 1988, the Court of Appeals denied petitions for re-

hearing. Pet. App. 116a.

Areas adjacent to the Roberts and Tuscarora Mountains

frequented by him have been opend to mining and other

forms of development under the Prozram. Oppcert. App.

5; see also, 47 Fed. Reg. 7,236 (1982); 47 Fed. Reg. 6,851

(1982). lie has already observed the ecological damage

stemming from these actions in the form of “sedimenta-

tion from mining runoff and direct habitat destruction.”

Oppeert. App. 5."”

NWF member Stephen B!omeke is an avid hunter and

trave's “considerable distances across the state of Colo-

rado to access areas containing prime habitat” for game

species. Oppeert. App. 8. In doing so, he uses numerous

federal campgrounds and recreation areas. Jd. Pursuant

to the Government’s Program, many of these public areas

have been opened to disposal and development. /d. at 8-10;

see also 47 Fed. Reg. 7,414-23 (1982). Prior to the is-

suance of the now-vacated injunction in this case, 25 min-

inz claims already had been staked on campgrounds fre-

quented by Blomeke. JA 8&2.

NWF member Will Ouellette lives in rural New Mexico

and uses the federal lands in the surrounding countryside

almost on a daily basis. Oppcert. App. 11-13. Many of

the areas he uses, including the Tent Rocks Recreation

Area, have been opened to disposal and development by the

termination of protective land classifications. Jd. at 12-

13. The Tent Rocks area of New Mexico is a unique

environment. “Comparable formations are found only in

Turkey.” *’ Yet the Government terminated the classifi-

cations that protected these lands for public enjoyment

' According to Government submissions, three mining claims

have been staked on 80 acres previously protected by these with-

drawals. JA 82. All three were staked the year the lands were

opened, and no claims were staked the previous two years. Id.

““Bureau of Land Management, Praft Rie Puerco Resource

Management Plan and Environmental Impact Statement at C-30

(1985) (attached as App. HII to Ouellette Declaration, Oppcert.

App. 11).

and recreation, to the detriment of Ouellette as well as

many others.

In addition, NWF member Peterson supplemented her

earlier affidavit and identified in detail the challenged

actions responsible for her injury. She provided an ex-

ample of a specific proposal to develop a uranium mine

on lands which previously had provided her with wildlife

habitats for hiking, camping, hunting, and fishing. Opp-

cert. App. 15-17.

On November 4, 1989, the District Court summarily

rejected NWF’s supplemental affidavits as untimely, re-

versed its previous rulings on NWF’s standing, granted

summary judgment to the Government on the issue of

standing, dissolved the preliminary injunction, and dis-

missed the entire case, including the unheard claims of

Congressman Vento. Pet. App. 26a-37a, 158a.

NWF appealed. A three-judge panel of the Court of

Appeals unanimously reversed the holding of the District

Court on three separate and alternative grounds:

(1) the affidavits initially 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 Government, Pet. App.

15a;

(2) because these same affidavits had provided “ade-

quate grounds for NWF to establish irreparable

harm” for a preliminary injunction, they also dem-

onstrated sufficient injury-in-fact to meet the test

of standing, so that the Court of Appeals’ previous

opinion upholding the preliminary injunction estab-

lished the law of the case on this issue, id. at 19a,

24a; and

(3) “|tlhe law of this circuit” allowed NWF to

file the supplement affidavits, and it was an abuse

of discretion for the District Court to refuse the

filing in light of the ccuities of the case; NWF’s

supplemental declarations “easily satisfy the level of

specificity needed for standing under any of the Su-

preme Court’s articulated tests.” Jd. 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 found it unnecessary to reinstate the

preliminary injunction. /d. at 24a-25a. Thus, at this time,

the Government's Program is proceeding apace,“' without

an EIS, the regulations mandated by Congress, complete

RMPs, meaningful public participation, or the statutory

referrals to Congress and the President.

SUMMARY OF ARGUMENT

The decision below is fully consistent with that court’s

practices concerning proof of standing and with this

Court’s precedents on the substantive requirements for

standing.

1. The decision rests on a ground so unimportant and

noncontroversial that we respectfully submit that the

Court should dismiss the writ as improvidently granted.

As an independent basis for its holding, the Court of Ap-

peals determined that the District Court had abused its

discretion in refusing to consider respondent’s supple-

mental affidavits, which “easily satisfy the level of spe-

cificity for standing under any of the Supreme Court’s

articulated tests.” Pet. App. 2la. The decision that the

District Court abused its discretion was based on the D.C.

Cireuit’s longstanding practice of allowing supplementa-

tion of the record where standing questions are raised,

and vindicated the interests of fundamental fairness where

the Government itself submitted supp!emental evidence on

the standing question and the District Court had requested

an additional filing. There are no special and important

reasons for this Court to review the determination that,

in these circumstances, the District Court abused its dis-

cretion, and accordingly the writ should be dismissed.

“! See ¢.g., 55 Fed. Reg. 4,838 (1990); 55 Fed. Reg. 2.886 (1990).

Alternatively, the Court should affirm the judgment

below because the Court of Appeals correctly determined

that the District Court abused its discretion.

The Government will not be harmed by such a dismissal

or affirmance on the alternative ground. Indeed, because

the injunction originally issued by the District Court is

no longer in effect, the Government’s Prozram continues

unimpeded. A dismissal or affirmance will operate only to

remand the legal issues to the lower courts for determina-

tion.

2. Alternatively, the Court of Appeals was correct in

upho'ding respondent's standing on the basis of the evi-

dence in the record at the time of the District Court’s de-

cision. NWF’s representational standing was established

by the Peterson and Erman affidavits read together with

the Government’s own evidence. The record as a whole

plainly demonstrates that these NWF members recreated

in areas that were illegally opened to commercial inter-

ests, including mining, and that their use and enjoyment

of these lands were thereby adversely affected. This

Court’s cases require no more.

3. Finally, NWF submits that it has standing on its

own account, quite apart from its representational stand-

ing considered below. Because of its alternative holdings,

the Court of Appeals did not reach this question. At a

minimum, the case should be remanded to the Court of

Appeals for its finding in the first instance as to whether

NWF has standing in its own right.

ARGUMENT

I. THE WRIT SHOULD BE DISMISSED AS IMPROVI-

DENTLY GRANTED

NWF respectfully submits that the writ of certiorari

should be dismissed as improvidently granted.

The Court of Appeals reversed the District Court on

three separate and distinct grounds.”* If any of them were

proper, the judgment would have to be affirmed. See, ¢.¢.,

The Monrosa Vv. Carbon Black Export, Inc., 359 U.S. 180

(1959).

One of these independent grounds was that the District

Court had improperly refused to consider the five supple-

mental affidavits filed by NWF in response to the Dis-

trict Court’s request for supplemental memoranda on the

standing issue. “The law of this circuit,” the court held,

allows the plaintiff to supplement the record to cure al-

leged defects in standing. Pet. App. 2la. The court

pointed out that “{n]o party to this litigation seriously

disputes that NWF’s supplemental affidavits, if consid-

ered, easily satisfy the level of specificity for standing

under any of the Supreme Court’s articulated tests.” /d.**

Therefore, the court held, the District Court had abused

its discretion in refusing to allow NWF to supplement the

record with affidavits that demonstrate beyond question

standing on behalf of NWF’s members and, thus, on be

half of NWF.

*2 The Court of Appeals repeatedly made clear that these were

alterna‘ive holdings, any one of which justified reversal. Pet. App.

18a, 20a, 21a (“Thus, even if the original affidavits were insufficient

and even if we assume that this court's |prior! decision * * * did

not decide the issue, these supplemental affidavits offer enough detail

to establish NWF's standing”), 2ia.

“8 The Acting Solicitor Goneral states that the Government con-

tested the sufficiency of these affidavits before the Court of Appeals.

Ptrs. Br. 10 n 230. It is significant, however, that he does not do so

before this Court. Nor could he. As set forth in the Statement,

svpra, these offidavits were specific, and their contents were largely

corroborated by the Government's own evidence.

1. This Court has recoznized that federal courts have

the inherent power to “manage their own affairs so as to

achieve the orderly and expeditious disposition of cases.”

Link Vv. Wabash R.R., 370 U.S. 626, 630-631 (1962) .°'

They may also declare the law peculiar to their own juris-

dictions, usually without interference by this Court.”

Here, the D.C. Circuit has exercised its inherent powers

and declared that under the well-established law of the

Circuit,” it was an abuse of discretion for the District

Court to refuse to consider these affidavits.

Moreover, even if this were not a matter of local prac-

tice, the decision below fully accords with the spirit of

**In Link, this Court upheld the local practice of dismissing

complaints for lack of prosecution without providing prior notice

and hearing. See also 28 U.S.C. §$ 2071 (granting federal courts

power to prescribe rules consistent with Acts of Congress and

this Court’s rules); Fed. R. Civ. P. 83 (establishing District Courts’

power to issue rules); Frazier v. Heebe, 482 US. 641, 645 (1987);

quoting In re Ruffalo, 390 U.S. 544, 554 (1968) (White, J., con-

curring) (citation omitted) (lower courts have discretion to adopt

local rules that are necessary to carry out the conduct of business

so long as those rules are consistent with “ ‘the principles of right

and justice’ ”’).

25“This Court has lone expressed its reluctance to review de-

cisions of the courts of the District fof Columbia]! involving mat-

ters of peculiarly local concern, absent a constitutional claim or a

problem of general federal law of nationwide application. See, e..,

Griffin Vv. United States, 336 U.S. 701, 717-718 (1949); Fisher v.

United States, 328 U.S. 463, 4176 (1916). See also Miller v. United

States, 357 U.S. 301, 306 (1958).” Pernell v. Southall Realty, 416

U.S. 363, 366 (1974). See also Selvage vy. Collins, 58 U.S.L.W. 4221,

4222 (US. Feb. 21, 1990) ; Celotex Corp. v. Catrett, 477 U.S. 317,

327 (1986).

“6 See National Wildlife Fed'n v. Hodel, 8839 F.2d 694, 703 (D.C.

Cir. 1988); Wilderness Soe'y Vv. Griles, 824 F.2d 4, 17 n.10 (DC.

Cir. 1987); Phillips Petroleum Co. Vv. FERC, 792 F.2d 1165, 1169

(D.C. Cir. 1986); Health Research Group v. Kennedy, 82 F.R.D. 21,

28 & nll (D.D.C. 1979). See elsa DKT Memorial Fund, Ltd. vy.

Agency for Int'l Dev., 810 F.2d 1236, 1239 (D.C. Cir. 1987) (grant-

ing plaintiff's motion to amend its complaint to cure allezed defect

in standing where plaintiff moved to amend during oral argument).

this Court’s rulings**’ and with those of other lower

courts.°"

2. Perhaps most importantly, the Government improp-

erly invokes Rule 56 for the proposition that NWF was

too late in filing the five additional affidavits after the

“7 See Gladstone, Realtors v. Bellwood, 441 U.S. 91, 112-113

n.25 (1979) (District Court permitted to allow amendment of com-

plaint by parties who did not reside within the neighborhood

where harm was done); see also Havens Realty Corp. v. Coleman,

455 U.S. 363, 377-379 (1982) (plaintiffs allowed on remand to make

more definite allegations in complaint relating to injury): see also

id. at 382-383 (Powell, J., concurring); Gladstone, Realtors, 441

U.S. at 114-115 & n.31; Warth v. Seldin, 422 U.S. 490, 501 (1975)

(trial court can allow plaintiff to supply, by amendment to com-

plaint or affidavits. further particularized allegations as to stand-

ing); United States v. Students Challenging Regulatory Agency

Procedures (SCRAP), 412 U.S. 669, 689-690 n.15 (1973) (doubts

about standing can be resolved by motions for more definite state-

ments and further evidence); Sierra Club v. Morton, 405 U.S. 727.

735-36 n.&8 (1972) (plaintiff can seek in District Court to amend

its complaint to show use of areas where harm occurred), In fact,

even in a mootness context, this Court has recently indicated that

an affidavit submitted after argument in this Court could be con-

sidered, with appropriate controverting submissions by opposing

parties, in the Court of Appeals or in the District Court after re-

mand. Lewis vy. Continental Bark Corp., 58 U.S.L.W. 4330. 4332-22

(U.S. Mar. 5, 1990).

** Courts of Appeals that have considered supplemental affidavits

outside the standing context have held that a trial court may not

dispose of a case on summary judgment without giving each party

an opportunity to submit their respective supporting and answer-

ing affidavits, and to supplement them if need be. E.q., Probst v.

Columbus Servs. Int'l, 761 F.2d 148, 154 (3d Cir. 1985). cert.

denied, 108 S. Ct. 777 (1988); Alghanim v. Boeing Co., 477 F.2d

143 (9th Cir. 1973).

Several trial courts have addressed the supplemental affidavit

issue in the standing context. See, e.g., Sierra Club vy. Marsh,

701 F. Supp. 886, 903 (D. Me. 1988) (refusing to convert motion

to dismiss into motion for summary judgment where court was

not satisfied that all parties had presented pertinent materials on

standing); Shekman v. Democratic Org. 560 F. Supp. 863, 865

n.2 (N.D. Til. 1983) (defendant's contention that plaintiff lacked

standing was mooted by plaintiff's supplemental affidavit).

July 22, 1988 hearing before the District Court. Ptrs. Br.

39-40. What the Government fails to tell the Court is that

at the hearing itself, without prior notice to NWF, the

Government introduced a five-page exhibit detailing the

status of various RMPs for areas in the 11 affected States,

including the Arizona Strip and the Green Mountain area

already addressed by NWF, and the Coos Bay, Oregon

area subsequently addressed by one of the five affidavits.*

Thus, two points are evident. First, the Government

cannot complain about an alleged tardiness under Rule 56

when it violated the Rule itself under its own interpreta-

tion. It would be wholly unfair—and in fact a violation

of fundamental rights—for the Government to spring this

evidence on NWF at the hearing and then prevent it from

filine counter-evidence. In Cia. Petrolera Caribe, Inc. Vv.

Arco Caribbean, Inc., 754 F.2d 404, 410 (1st Cir. 1985),

a case directly on point, the First Circuit held that while

the trial court had discretion to admit supplemental affi-

davits, it abused its discretion in allowing one party to

submit supplemental affidavits on the day of the hearing

while denying the same opportunity to the other.

Second, the District Court itself invited additional sub-

missions. It is quite true that the court referred to sup-

plemental “memoranda,” ER 227-28; see also ER 110,

but in light of the fluid state of the record, with the Gov-

ernment filing data even at the hearing itself, it was not

unreasonab'e, particu'arly in light of the law in the Cir-

cuit, to interpret this order as permitting the submission

of additional affidavits.

Although a District Court does have, under Fed. R.

Civ. P. 56, “‘a measure of discretion in determining

whether [a] summary judgment motion is ripe for resolu-

** The Government's exhibit, reproduced as Appendix B to this

brief, was merked as Federal Exhibit 1 and made a part of the

record. ER 228. The Government wrote counsel for NWF under

date of July 22, 1988: “As directed by the Court, I am providing

you with a copy of the exhibit s:l mitted to the court by the Gov-

ernment on July 22, 1988”—-that is, that same day.

tion,” *” that discretion also can be abused.” Here,

NWF’s affidavits were not out of time in light of the

Government’s own filing that was itself out of time.

3. There are here no “special and important reasons”

for this Court to review the Court of Appeals’ treatment

of the particular circumstances under which the District

Court refused to consider supplemental affidavits in sup-

port of standing. See Sup. Ct. R. 10.

It has been this Court’s longstanding practice to dis-

miss certiorari when it becomes apparent that the case

turns upon review of a question which “would be of no

importance save to the litigants themselves.” * This case

depends solely on the scope of a trial court’s authority

under particular factual circumstances and under D.C.

Cireuit practice. The decision below was expressly based

on the “equities of this case.” Pet. App. 21a. In reaching

that decision, the Circuit Court considered the Govern-

ment’s opportunity to refute the supplemental affidavits:

and the fact that prior to the trial court’s request for

supplemental memoranda, NWF had no reason to doubt

the adequacy of the affidavits it had already submitted.

To review the Court of Appeals’ decision, this Court would

first have to revisit these issues and thereby decide ques-

“ Childers V. Joseph, 84° F.2d 689, 693-694 n.3 (3d Cir. 1988),

quoting Sames v. Gable, 732 F.2d 49, 51 (3d Cir. 1984).

*! Glen Eden Hosp. v. Blue Cross & Blue Shield, 740 F.2d 423,

428 (6th Cir. 1981); Sam Wong & Son, Inc., v. New York Merc.

Erch., 735 F.2d 653, 678 (2d Cir. 1984); Sames, 732 F.2d at 51-52.

= Rudolph V. United States, 370 U.S. 269, 270 (1962). Thus.

the Court has dismissed certiorari when it appeared that rather

than presenting a constitutional issue, the case turned on “the

Vv. Tevas & NO. R.R., 297 US. 101. 105 (1936); ef. Rudolph, 370

U.S. at 270 (dismissing certiorari where case turned on Court of

Appeals’ findings of ultimate fact); Southern Power Co. ¥. North

Cerolina Pub. Serv. Co., 263 US. 508, 509 (1924) (dismissing

certiorari where the controverted question was primarily a question

of fact).

tions that are of interest only to the parties to this litiga-

tion.

A dismissal of the writ would be particularly appro-

priate in this case, where the Government seeks no re-

versal of established law, or of such cases as SCRAP. Nor

does it ask the Court to promulgate a new rule or a new

approach in regard to standing. It merely questions the

application of controlling law to the particular facts of

this case.

Although “law of the case’’—the Court of Appeals’ sec-

ond ground of reversal—-may not technically apply at this

stage of the proceeding because this Court remains free

to determine standing for itself, there is a large element

of potential unfairness at play here. On a number of oc-

casions prior to the July 22, 1988 hearing, the courts

below either specifically held that NWF had standing or

assumed that it did.** When the Government attempted

to take discovery on the issue, NWF opposed it solely on

the ground that it had already submitted sufficient evi-

dence on standing, and the District Court agreed. Pet.

App. 170a. If the District Court had thought standing

was a live issue, it would have permitted discovery. NWF

filed the additional affidavits as soon as it learned at the

*8 For example, the Government originally challenged standing

only in regard to a single count in the amended complaint. See

Pet. App. 130a. Later, on February 10, 1986, the District Court, in

denying a Covernment motion to reconsider the entry of a pre-

liminary injunction, “reaffirm[ed] plaintiff’s standing to bring this

action.” Pet. App. 140a. On July 14, 1986, the District Court

quashed Government subpoenas designed to test some aspects of

NWF’s standing. Pet. App. 170a. And on December 11, 1987

(as amended, December 15, 1987), the Court of Appeals specifically

held that NWF had standing because the Peterson affidavit demon-

strated irreparable harm to NWF. Pet. App. 38a, 48a-57a.

July 22 hearing that the District Court was seriously

questioning standing for the first time.”

In summary, the petition should be dismissed as im-

providently granted because a_ separate, alternative

ground for the ruling below is peculiarly one for a lower

court to decide and to which this Court should pay defer-

ence. In the alternative, the Court should affirm the

decision below as a correct application of general law to

the facts of this case.

4. No harm will come to federal interests from such

a dismissal or affirmance on this alternative ground. Both

in its facts and in its argument, the Government leads

this Court to believe that irreparable injury will befall

such interests if the decision below is not reversed. In

fact, no injury of any kind to federal interests will fol-

low.** The injunction originally issued by the District

Court is no longer in effect, see Pet. App. 24a-25a, 158a,

and the efficacy of that injunction is not before the Court.

The Government is free to pursue—and, in fact, is pursu-

ing—its Program of terminations, and federal lands

continue to be cpened to mining and other commercial

interests. A remand for a trial on the merits would not

in any way disturb the status quo; it would only allow

the District Court to determine, finally, whether the Gov-

evrment has violated and is continuing to violate the law

in its Land Withdrawal Review Program, or whether that

Program can proceed apace.

The District Court on remand does nof, as the Gov-

ernment says, have to become involved in hundreds of in-

“4In fact, it is not too late for the Government to pursue dis-

covery now, if the Court were to find it necessary to remand the

case. Cf. Wilderness Soec’y Vv. Griles, 824 F.2d at 20-21.

*° Moreover, we would respectfully remind the Court that stand-

ing “in no wav denends on the merits of the [claim|.”. ASARCO,

Inc. v. Kadish, 109 S. Ct. 2037, 2049 (1989), quoting Warth, 422

U.S. at 500.

dividual decisions. NWF is not challenging these deci-

sions individually. The terminations were all completed

pursuant to what the Government itself, time and again,

has denominated as a single “Program.” “* The Court of

Appeals held that it was a single Program. Pet. App.

55a-56a. It is this Program, not the individual orders,

that NWF is challenging.

NWF simply seeks to reinstate prior agency decisions

until the statutorily-mandated procedure has been fol-

lowed. For example, if, as NWF contends and as the

District Court held, Pet. App. 132a, FLPMA mandates

RMPs as a matter of law precisely because of the addi-

tional information and findings, including EISs, required

in RMPs, the District Court need never decide whether

some other form of documentation met some unprescribed

“equivalency” test.** Similarly, the District Court need

only decide whether the Act requires that Congress and

the President be notified before a program of termina-

tions goes into effect, because clearly no such notification

took place here. And further, the District Court must

decide whether the Act requires public notice of, and the

opportunity for participation in, the Program, and

whether those requirements were met—not as to each

parcel of land but for the Program as a whole. As the

36 Pl], Exs. 1, 2, 3, 11, 17, 20, 70; 1B Edwards Aff. Ex. 21B;

1C Edward Aff. Ex. 8, JA 51.

37 Moreover, this record shows that MFPs do not set forth all

of the information contained in RMPs. JA 193-194. In fact, the

inadequacy of MFPs is established by the Government’s own re-

ports: e.g., General Accounting Office Report, The Bureau of Land

Management's Efforts to Identify Land for Disposal (April 18,

1985), at 15; Office of Technology Assessment, Environmental Pro-

tection in the Federal Coal Leasing Program (1984), at 44, 56, 70,

72, 74-75, 78; General Accounting Office, Minerals Management at

the Department of the Interior Needs Coordination and Organiza-

tion (EMD 81-53, June 5, 1981), at 56; American Society of Plan-

ning Officials, Improving the Bureau of Land Management Planning

Process (May 1979), at 5-7, 8-13, 26.

District Court put it in 1985: NWF seeks to enforce “full

compliance with the laws governing management of the

public lands.” Pet. App. 144a.

These are purely legal decisions, followed by narrow

and relatively simple factual conclusions.** Even the

Acting Solicitor General concedes that a federal court

may “articulate a ratio decidendi that would have prece-

dential implications for similar disputes.” Ptrs. Br. 35.

That is precisely what we seek here. There is nothing

site-specific about the legal rulings being sought. Nor

are they appropriate for decision now, but only after

remand. The situation is thus comparable to that in Jn-

ternational Union v. Brock, 477 U.S. 247, 287 (1986),

where this Court found that the Secretary of Labor and

the Court of Appeals had both misconstrued petitioners’

claims:

Neither these claims nor the relief sought required

the District Court to consider the individual cireum-

stances of any aggrieved UAW member. The suit

raises a pure question of law: whether the Secretary

properly interpreted the Trade Act’s TRA eligibility

provisions. | *"]

For similar reasons, NWF need not demonstrate on

remand that its members have standing in each of the

areas covered by each classification and withdrawal termi-

nation. Such a result would run directly counter to this

88 The Government conceded to the District Court that “the same

procedures” were used throughout the 17 states, ER 208, and that

court held in 1985 that “The essence of plaintiff’s claim is legal:

The exercise of agency discretion and expertise and the develon.

ment of a factual record would not be helpful or necessary to

decide this legal issue.” Pet. App. 142a. The legal issue remains

the same today.

39 For other examples of programmatic attacks, see Watt v.

Energy Action Found. 454 U.S. 151; FCC v. WNCN Listeners

Guild, 450 U.S. 582 (1981); Kleppe v. Sierra Club, 427 U.S. 290

(1976); Association of Data Processing Serv. Orgs. v. Camp, 297

U.S. 150 (1970).

Court’s decisions.” Since NWF attacks the Program,

and one or more of its members has been injured in a site

where the Program is being carried out, that is all that

will be required.

Il. ALTERNATIVELY, NWF HAS STANDING IN ITS

REPRESENTATIONAL CAPACITY

Even if the Court were to disagree with the analysis

above, NWF has standing in this case, and the judgment

below should be affirmed on that basis.

The Argument portion of the Government’s brief reads

as though Peterson is the plaintiff respondent here. To

the contrary, the plaintiff respondent—the party whose

standing is at issue-—-is NWF. As an association, NWF

can have standing on either a representational basis, or

on its own. Hunt v. Washington State Apple Advertising

Comm'n, 432 U.S. 333, 343, 345 (1977); Warth, 422 US.

at 511. Here, NWF has both.

The Court of Appeals correctly held, Pet. App. 19a, that

the first Peterson affidavit alone was sufficient to support

the representational standing of NWF, which need only

show that any one of its members is suffering injury."

Other evidence—specifically, the Erman affidavit, Pet.

App. 187a, read together with the Government’s own sub-

missions—further proves NWF’s standing.

An association can sue in a representational capacity on

behalf of its members so long as its members would

” E.g., Brock, 477 U.S. at 281-287; Warth, 422 U.S. at 490;

Trafficante V. Metropolitan Life Ins. Co., 409 U.S. 205, 206, 209-212

(1972); Sierra Club v. Merton, 405 U.S. at 737, 740 n.15.

41 Bowen v. Kendrick, 108 S. Ct. 2562, 2580 n.15 (1988); Watt

v. Energy Action Edue. Found., 454 U.S. at 160; Arlington Heights

v. Metropolitan Housing Dev. Corp., 429 US. 252, 264 & nd

(1977): Buckley v. Valeo, 424 U.S. 1, 12 (1976); Warth, 422 US.

at 511 (an “association must allege that its members, or any one

of them, are suffering immediate cr threatened injury”); Baker v.

Carr, 369 U.S. 186, 204 n.23 (1962).

otherwise have standing to sue, the interests it seeks to

protect are germane to the association’s purposes, and

the participation of individual members is not required.

Brock, 477 U.S. at 281-282, 286-288; Hunt, 432 U.S. at

343; Warth, 422 U.S. at 511.

There can be no question but that the last two of these

requirements have been met, and the Government does

not argue otherwise.** Therefore, the sole issue on repre-

sentational standing is whether this record sufficiently

shows that one or more NWF members have standing—

that is, whether NWF has demonstrated that a single

member is suffering a personal injury fairly traceable to

the Government’s challenged conduct.** Here, this injury

has been shown by both Peterson and Erman.

A. The Peterson affidavit.

The Government attempts to isolate the Peterson affi-

davit from all other evidence in the case and then selec-

tively cites only a few phrases from it. But that is not

how standing is determined, particularly at the summary

judgment stage. As this Court has admonished, the entire

42 The interests NWF was founded and chartered to protect—the

public interest in safeguarding wildlife habitats and in protecting

the recreational value and aesthetic beauty of federal lands from

desecration—are precisely the ones at issue here. In addition, a

cornerstone of NWF’s representational activity is to gather and

disseminate the very information the Government has failed to

create. Finally, the District Court did not rule, and the Govern-

ment does not claim, that NWF’s 4.5 million members and sup-

porters are necessary parties to this suit.

48 The injury must also be redressable by the relief sought. That

requirement is not in question here. If the District Court ulti-

mately rules in favor of NWF, its order will largely remedy the

harm already done to NWF and its members, obviate the harm

that still threatens them, and provide NWF with participation and

with the information it needs to carry out its legitimate functions.

See Public Citizen v. U.S. Dep't of Justice, 109 S. Ct. 2558, 2564

(1989).

record must be considered. Celotex Corp. 477 U.S. at

324; see also Glads'one, Realtors, 441 U.S. at 109 n.22;

Fed. R. Civ P. 56(c). In this case, the 2eterson affidavit

was sufficient but, in addition, the Government itself

proved through its own submissions that Peterson and

other NWF members enjoy standing.

The Peterson affidavit, Pet. App. 190a, specifically re-

ferred to the instant lawsuit, which Peterson correctly

described as having been brought to contest the “unlawful

terminat|ion of] protective land use classifications and

other withdrawals on federal lands pursuant to [the

Government’s] Land Withdrawal Review Program.” Par.

5. Peterson alleged that her interests had been adversely

affected by these “unlawful actions,” par. 6, and thus

made clear that the events and the harm described in her

affidavit related to the Government’s terminations—that

is, that the lands affected by such terminations were the

lands about which she was complaining. She pointed out,

for example, that berore terminating withdrawals and

classifications, the Government had failed to provide

notice and opportunity for public involvement, thereby

depriving her of the opportunity to participate in manage-

ment decisions, as she had done with the draft Lander,

Wyoming RMP. Pars. 4, 8."

Peterson’s affidavit demonstrates that it was not simply

as a member of the general public that she was harmed.

Instead, Peterson actually used these lands for recrea-

tional purposes and enjoyed their aesthetics. Par. 3.

Peterson asserted that her “recreational use and aesthe*ic

enjoyment” depended upon management and enhancement

by the Government, par. 4, and had therefore been ad-

versely affected by the Government’s unlawful actions.

Par. 6. These adverse effects, she said, would be re-

dressed by a favorable decision in the case. Par. 9.

44 See n.56, infra.

45 Parties have standing to protect not only their economic inter-

ests but their aesthetic, conservational and recreational interests

Peterson then gave a specific example of adverse im-

pact—an example that placed her squarely within the

area affected. She alleged that she particularly used lands

in the vicinity of South Pass-Green Mountain, Wyoming,

an area the Government has “opened to the staking of

mining claims and oil and gas leasing.” Par. 6. This

opening, she claimed, “threatens the aesthetic beauty

and wildlife habitat potential of these lands,” id.,—the

very characteristics on which her enjoyment of the land

depended.

The Government has totally confused the situation in

regard to the South Pass-Green Mountain areas by its

repeated references to two million acres. E.q., Ptrs. Br.

3(). 33. 35. Its own evidence demonstrates that it had

previously designated for retention as public lands some

two million acres in Fremont and Natrona Counties,

Wyoming before the terminations began. (These two

million acres included lands in the South Pass and Green

Mountain areas as well as other lands.) However, the

Government closed only about 6000 of the two million

acres to mining and mineral leasing. These 6000 acres

were in the South Pass-Green Mountains areas. The

Government thereafter terminated—or opened to mining

and to oil and gas development—4455 of the 6000 acres.

Def.-Int. Ex. 7, p. 2; JA 132-133.

In this context, it is clear that Peterson was referring

to the 4455 acres when she swore that she used the South

Pass-Green Mountain areas and was injured by the un-

lawful terminations. Her affidavit directly tied her to the

unlawful “terminating,” par. 5, to the Government's pro-

posal “to terminate classifications and other withdraw-

als,” par. 8, and to the Government’s failure to “pre-

as well. Havens Realty Corp., 455 U.S. at 879 & n.20; Valley Forge

Christian College Vv. Americans United for Separation of Church &

State, Inc., 454 U.S. 464, 486 (1982): Duke Power Co. v. Carolina

Enrt!. Study Group, Inc., 438 U.S. 59, 73-74 & n.18 (1978); SCRAP,

412 U.S. at 687; Camp, 397 U.S. at 154.

serv{e] and protect{]” these particular federal lands.

Pars. 4, 7, 8, 9. She further referred to the South Pass-

Green Mountain area “opened” to mining, par. 6, which

can only mean the 4455 acres—the area opened to

mining.

The Government makes too much of Peterson’s allega-

tion that she recreated “in the vicinity of” the South

Pass and Green Mountain areas.

First, a specific pass is named “South Pass” and a spe-

cific mountain is called “Green Mountain”, but the lands

at issue here are those surrounding, or in the vicinity of,

these particular spots, as the Government’s own evidence

shows. F.q., JA 124. Peterson was not attempting to

locate herself in the bottom of the pass or on top of the

mountain, so it is not surprising that she would desig-

nate the affected lands which she uses as “in the vicinity

of” these particularized places.

The Government can hardly feign confusion over what

these lands are, or contend that they have not been im-

pacted by terminations. In response to NWF’s request

for the Administrative Record of Classifications and

Withdrawals, the Government produced on November 4,

1985, case file No. W6228, the file on the South Pass-

Green Mountain area. JA 132. Government affidavits

and exhibits speak repeatedly of the South Pass and Green

Mountain areas,“ or “the Green Mountain-South Pass

area.” E.q., JA 137. According to the Government, the

South Pass area is “an important recreation area” where

people come to fish, hunt and camp, JA 124, and the

Green Mountain area is “noteworthy” for, among other

things, its deer, elk herds and recreation. Jd. The

Government’s evidence is replete with references to po-

tential adverse impacts on campgrounds, fish, and wild-

46 One Government affiant not only described these areas, JA 123-

124, but recited how the decisions were made to revoke withdrawals

and classifications on them because of uranium and mining inter-

ests. E.q., JA 132-137.

life habitats in these areas, as well as on visual or scenic

resources there.”

Second, the harm that comes from mining—whether

it be for oil, gas, uranium, silver, gold, copper, zine or

agate—is not localized. Landscapes are obscured for great

distances; fugitive dust is created and goes where the

wind goes; contaminated water flows for miles; blasting

violates noise levels, causes wildlife to move, and affects

wildlife mating habits over great distances; and cyanide

poured over heap leach piles after strip-mining kills fish

far downstream.* So even if Peterson’s affidavit were

17 E.g., JA 133-134, 136-137; Pl. Ex. 61 at 228; Def.-Int. Ex. 7;