Amicus Curiae Brief — Lujan v. National Wildlife Federation

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In the Supreme Court of the United States

OcTosper Term, 1989

MANUEL LUJAN, Jr., SECRETARY OF THE INTERIOR,

ET AL., PETITIONERS

Vv.

NATIONAL WILDLIFE FEDERATION, ET AL

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

JOINT APPENDIX

KATHLEEN C. ZIMMERMAN JOHN G. ROBERTS, JR

NORMAN L. DEAN Acting Solicuor General

National Wildlife Federation Depariment of Justice

1400 16th Street, NW Washington, D.C. 20530

Washington, D.C. 20036 (202) 633-2217

(202) 797-6864 Counsel for Petitioners

Counsel for Responuent

ee neni eeeeeeeeeeeeneemeeeeeeentemeeeeneeseerieeeememmmeemeeemeesemememeeend

PETITION FOR WRIT OF CERTIORARI

FILED OCTOBER 18, 1989

CERTIORARI GRANTED JANUARY 16, 1990

BEST AVAILABLE COPY

In the Supreme Court of the United States

OctToser Term, 1989

No. 89-640

Manvet Lujan, Je., SECRETARY OF THE INTERIOR,

ET AL., PETITIONERS

NATIONAL WILDLIFE FEDERATION, ET Al

ON WRIT OF CERTIORARI

10 THE UNITED STATES COURT OF APPEALS

POR THE DISTRICT OF COLUMBIA CIRCUIT

INDEX*

Page

Chronological List of Relevant Docket Entries . . . l

ED cc cc cccccceicéecececes 10

Excerpts from Record

BLM Withdrawal Review Program ......... Si

Altidavu 1 A of Frank Edwards ............ $5

Exhibits to the | A Edwards Affidavit ....... 74

Attidavu 1 B of Frank Edwards ............ 87

Altidavu 1 C of Frank Edwards ............ 97

Exhibits to the | C Edwards Affidavit ....... 109

Declaration of G. William Lamb ........... 120

* The opmmom of the court of appeals and the opmmons of the

district Court are pruned in the append, to the petition for writ of cer-

than and have not been reproduced here.

THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

INDEX — Continued: Page

Declaration of Jack Kelly .............-. : ne 85-2238

Declaration No. 2 of Vincent J. Hecker ...... 140

Declaration No. 3 of Vincent J. Hecker ...... 157 |

Declaration of David C. Wilhams .......... 178 NATIONAL WILDLIFE FEDERATION

Order allowing certioram .... ~~... 6... 66+ 195 .

BURFORD, ET AL.

RELEVANT DOCKET ENTRIES

DATE NR PROCEEDINGS

(15/85 1 COMPLAINT; * * *.

7/15/85 2 MOTION ot plif for preliminary injunc-

fom © 2°.

8/19/85 7 AMENDED COMPLAINT.

9/16/85 23 ORDER permitting the Mountain States

Legal Foundation and the Minerals

Exploration Coalition, Inc. to in-

lervene as party defts.

12/4/85 50 ORDER granting plitt.’s motion for a

preliminary injunction; enjoining

defits. from taking certain action; en-

jomming certain persons holding in-

ierests in lands that were the subject of

Classification terminations or with-

drawal revocations since 1-1-81 from

taking certain action; directing defts.

to publish this order in the Federal

ty in the amount of one Hundred

dollars ($100); * * *.

(1)

DATE NR

12/4/85 51

12/4/85 52

12/16/85 56

12/16785 59

2/10/86 84

2/10/86 86

3/7/86 101

PROCEEDINGS

ORDER denying defts.’ motion to

dismiss.

ORDER granting the motion to inter-

vene of Congressman Sieberling.

MOTION by deft-intervenors Mountain

States Legal Foundation, et al. for

reconsideration of preliminary injunc-

tion, and denial of motion to dismiss,

or in the alternative, to amend the

judgment to certify the issue of non

joinder to the Court of Appeals under

28 U.S.C. § 1292(b).

MOTION by defts. to amend, Recon-

sider and Clarify the Court’s Order of

12/4/85.

ORDER denying the motions by the

federal defts. and by deft.-intervenor

Mountain States Legal Foundation for

reconsideration, and by deft.-inter-

venor to amend the judgment to cer-

tify the issue to the Court of Appeals.

ORDER granting pltf’s motion for a

preliminary injunction; enjoining

defts. from taking certain action;

directing publication of this order in

the Federal Register; setting injunc-

tion security in the amount of $100.00

*_* *

ORDER filed 3/6/86 granting the mo-

tion to intervene of the Trust for

Public Land for the limited purpose of

determining whether proposed land

DATE

‘na

‘11/86

(14/86

15/86

23/86

113

114

116

119

146

149

PROCEEDINGS

exchange is prohibited under Court’s

order of 2-10-86; directing that the

federal defts. issuance of a patent with

respect to the land exchange is not ex-

empt under terms of the order.

NOTICE of appeal by Mountain States

Legal Foundation from order entered

2/10/86; * * *.

NOTIC E of appeal by Federal deft.

trom order entered 2/10/86; * * *.

ANSWER of deft-intervenors Mountain

States Legal Foundation and Mineral

Exploration Coalition, Inc., to pliffs

amended complaint for Declaratory

and Injunctive relief.

ORDER filed 4/14/86 granting the

Trust for Public Lands intervention

lor the full course of this proceeding.

ANSWER by defts. to complaint of

John F. Seiberling, pltff-intervenor.

ANSWER by defts. to pliffs amended

complaint.

ANSWERS by pliff. to deft-intervenors

first set of imterrogatories (resub-

mitted); Declaration of Lynn A,

Greenwalt; * * *,

NOTICE by plttf. of filing; affidavits of

Peegy Kay Peterson and Richard

Loren Erman.

ORDER filed 5/22/86 denying the mo-

lions for stay of the preliminary in-

junction,

DATE

6/9/86

6/23/86

7/1/86

7/15/86

9/5/86

9/12/86

11/26/86

12/31/86

151

152

153

165

167

178

197

228

233

PROCEEDINGS

NOTICE by deft to take the deposition

of Richard L. Erman.

NOTICE by deft to take the deposition

of Lynn A. Greenwalt.

NOTICE by deft to take the deposition

of Peggy K. Peterson.

MOTION by pltf. for summary judg-

mem; °° °.

MOTION by pltf. to quash and for a

protective order; * * *.

ORDER filed 7/14/86 granting pltff's

motion to quash and for a protective

order. °

MOTION by defts-intervenors’ to dis-

miss or alternatively for judgment on

the pleadings; * * *.

MOTION by defts for summary judg-

ment and/or for dissolution of the

preliminary injunction issued

2/10/86; memorandum in opposition

to plif’s motion for summary judg-

ment and in support of deft’s motion

for summary judgment; * * *.

ORDER filed 11/25/86 amending this

Court’s Order of February 10, 1986, to

add a new subparagraph (f) to

paragraph 3 of that Order.

ORDER directing that the preliminary

injunction entered on 12/4/85 as

amended on 2/10/86 does not apply to

the Geothermal Operations of Cali-

fornia Energy Co. Inc; the Bureau of

DATE

1/6/87

6/3/87

4/11/88

PROCEEDINGS

Land Management shall forthwith

vacate and set aside ils suspension

order of 4/22/86.

ORDER that the preliminary injunction

entered on 12-4-85, as amended on

2/10/86 does not apply to the

Geothermal operations of the Dept. of

Water and Power for the City of LA;

The Bureau of Land Management

shall forthwith vacate and set aside its

suspension order of 4-22-86.

MEMORANDUM ORDER denying

LADWP’s motion for declaratory and

other relief regarding the Haiwee/

Franklin land exchange.

ORDER (filed 6/2/87) directing that

Congressman Bruce F. Vento, Chair-

man ot the Subcommittee on National

Parks and Public Lands, is substituted

as pltt-intervenor in this action; * * *,.

ORDER filed 4/8/88 granting motion

of dett’s to amend the court's order of

2 10/86, as amended by the court’s

order of 11/25/86; directing that sub-

paragraph (t) of para 3 of the court's

order of 2/19/86, as amended by the

court's order of 11/25/86 is amended

to read; (3) nothing in this order shall

be construed to prohibit or affect: (1)

the Secretary of Interior or his

designee(s) trom complying with the

statutory obligations imposed on him

by Sec. 3 of Pub. L. No. 99-542

DATE

4/29/88

7/29/88

8/22/88

11/8/88

PROCEEDINGS

(10/27/86), sec. 104 of Pub L. No.

99-950 (10/30/86), Sections 4(a), 4(b),

6 and 7 of Pub. L. No. 99-632

(11/7/86), Section 12(h) of Pub. L.

No. 99-606 (11/6/86) and the last two

unnumbered paragraphs under the

heading of “Administrative Provi-

sions” in that portion of House Jomt

Resolution 395, Pub. L. No. 100-202,

containing the 1988 Fiscal year ap-

propriations for the Bureau of Land

Management. a

253 CERTIFIED copy of Judgment trom

USCA dated 12-11-87 Attirming

Judgemem of USDC.

274. ORDER filed 7/28/88 that pitt. tile any

opposition to detts’ supplemental

memorandum in support of the mo-

tion for summary judement by

8/1/88; plif. to file by 8/22/88 sup-

plemental memorandum regarding the

issue Of its standing to proceed; detts.

and intervenors opposition to be tiled

by 9/1/88; plit’s. response to be fi J

by 9/14/88.

278 STATEMENT by plif. of P&A’s in sup-

port of its standing to proceed; attach-

ment.

303 ORDER filed 11/4/88 vacating the

court's granting of preliminary imjunc-

lion; granting motion of detendant’s

for summary judgment; case dis-

missed.

DATE

11/14/88

304

313

322

PROCEEDINGS

NOTICE OF APPEAL by plaintiff

National Wildlife Federation from

order entered 11/8/88.

NOTICE OF APPEAL by plit-inter-

venor CONGRESSMAN BRUCE F.

VENTO from order entered on

11/8/88;

CERTIFIED copy of Judgment from

USCA dated 6/20/89 REVERSING

Judgment of USDC and REMAND-

ING case to USDC for further pro-

ceedings in accordance with the

Opinion.

)

UNITED STATES COURT OF APPEALS

FOR THE

DISTRICT OF COLUMBIA CIRCUIT

86-5239

Naronar Wu o1trt FEDERATION

}

Roser! F. BURFORD, ET AL, APPELLANTS

RELEVANT DOCKET ENTRIES

DATE FILING — PROCEEDINGS

4/24/86 Copy of notice of appeal and docket

entries from Clerk, DO

12/11/87 Opinion for the Court filed by Circun

Judge Mikva

12/11/87 Opinion concurring im part and dissent

ing in part filed by Circun Judge

Willams

12/11/87 judemem by this Court that the judg

ment of the District Court appealed

from im these causes ts hereby af

firmed, in accordance with Opimon

for the court tiled herem date

4/29/88 Per Curiam order denying petitions tor

rehearing, with memorandum al

tached

UNITED STATES COURT OF APPEALS

FOR THE

DISTRICT OF COLUMBIA CIRCUIT

BR-5397

NATIONAL WILDLIFE FEDERATION

ROBERT F. BURFORD. ET AL... APPELLANTS

RELEVANT DOCKET ENTRIES

PATE FILING, — PROCEEDINGS

12/02/88 Copy of notice of appeal and docket

entries trom Clerk, Dest. Ct.

6 20/89 Opimon tor the Court tiled by Circun

Judee Edwards

6 20) 8Y ludement by this Court that the judg.

mem of the district court appealed

lrom im this matter ts reversed and the

case is remanded, m accordance with

the Opimon tor the Court tiled herem

this date

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Civil Action No. 85-2238

NATIONAL WILDLIFE FEDERATION,

1412 16TH Srreer, N.W.

WasnHinoTton, D.C. 20036

(202) 797-6800, PLAINTIFE

Vv.

Rospert F. BuRFORD,

Director, BUREAU OF LAND MANAGEMENT,

UNiTeD STATES DEPARTMENT OF THE INTERIOR,

18TH AND C Srreers, N.W.,

WasHINGTON, D.C. 20240

(202) 343-1100,

DONALD P. Hopet,

SECRETARY OF THE INTERIOR,

UNireD STATES DEPARTMENT OF THE INTERIOR

18rH AND C Srreers, N.W.

WasHINGToN, D.C, 20240

(202) 343-1100,

AND

Unirep STATES DEPARTMENT OF THE INTERIOR

18rH AND C Srreers, N.W.

WasHinoTon, D.C. 20240

(262) 343-1100, DEFENDANTS

(Filed Aug. 19, 1985]

AMENDED COMPLAINT FOR DECLARATORY AND

INJUNCTIVE RELIEF

INTRODUCTION

1. This case challenges the Department of the Interior's

conduct of its “land withdrawal review program.” Under

that program, the defendants have revoked withdrawals in-

volving over 170 million acres of public lands. Another 50

million acres remain to be reviewed. This suit alleges, among

other things, that the defendant's land withdrawal review

program unlawfully fails to require analysis of proposed

withdrawal revocations in land use plans and environmen-

tal impact statements, is being conducted without regula-

tions, fails to provide for public participation in decision-

making, and fails to provide for Congressional and

Presidential review of proposed withdrawal revocations.

2. This suit is brought under provisions of the National

Environmental Policy Act of 1969, 42 U.S.C. §§ 4321 ef

seq.; the Federal Land Policy and Management Act, 43

U.S.C. $§ 1701 ef seq.; and the Administrative Procedure

Act, 5 U.S.C. §§ S51 ef seq.

JURISDICTION

3. This Court has jurisdiction of this action under 28

U.S.C. § 133l(a) (federal question jurisdiction) and 28

U.S.C. § 1346 (suits against agencies and officers of the

United States).

4. The claims raised in this suit arise under provisions

of the National Cavironmental Policy Act of 1969 (NEPA),

42 U.S.C. §§ 4321 e¢ seg.; the Federal Land Policy and

Management Act (FLPMA), 43 U.S.C. §§ 1701 ef seg.; and

the Administrative Procedure Act (APA), 5 U.S.C. §§ S51

et seq. The relief sought is authorized by 28 U.S.C. § 2201

(declaratory judgments) and 28 U.S.C. § 2202 (injunctive

relief). Venue is proper in this Court under 28 U.S.C.

§ 1391(e). There is a present and actual controversy between

the parties to this action.

PARTIES

S. Plaintiff National Wildlife Federation (NWF) has

over 4.5 million members and supporters and is the nation’s

largest non-profit private conservation organization. Incor-

porated under the laws of the District of C olumbia in 1939,

NWF is dedicated to the wise use and management of the

nation’s natural resources. NWF has affiliate organizations

and individual members in each of the $0 states and the

District of Columbia.

6. NWF and its members are suffering and will continue

to suffer injury in fact as a result of the challenged actions.

Members of NWF use and enjoy the environmental re-

sources that will be adversely affected by the challenged ac-

tions. They regularly use these resources for fishing, hunt-

ing, bird and wildlife watching, canoeing and boating, hik-

ing, 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 protec:

tive land use restrictions and thereby open up public lands

to exploration, development, and disposal, without the

development of land use plans, without prior preparation

of adequate environmental impact statements, and without

compliance with applicable laws, regulations, and pro-

cedures. Among other things, the challenged actions will

adversely affect plaintiff and its members by destroying tish

and wildlife habitat, and by impairing natural beauty. Fur-

ther, NWF and its members suffer injury in that they have

been and continue to be denied information on the poten.

tial impacts of, and alternatives to, defendants’ actions and

have been denied the opportunity to participate in defend.

ants’ decision-making. Further N‘WF and its members have

suffered injury by reason of their elected representatives,

including the President of the United States and members

of Congress, having been denied the opportunity and

responsibility to participate in defendants’ decision-making.

7. Plaintiff and its members are within the zone of in-

terests sought to be protected by the Federal Land Policy

and Management Act, the National Environmental Policy

Act, and the Administrative Procedure Act.

8. Defendant, Donald P. Hodel is the Secretary of

defendant United States Department of the Interior and ts

charged by law and regulations with the responsibility of

administering and enforcing the Federal Land Policy and

Management Act and complying with the provisions of the

National Environmental Policy Act and the Administrative

Procedure Act. He is sued in his official capacity.

9. Defendant Robert F. Burford is the Director of the

Bureau of Land Management. Defendant Burford is

charged by law and regulations with the responsibility for

managing the public lands in compliance with the Federal

Land Policy and Management Act, the National Environ-

mental Policy Act, and the Administrative Procedure Act.

He is sued ir his official capacity.

10. Defendam, United States Department of the In-

terior, including therein the Bureau of Land Management,

is a department and agency of the United States.

11. Plaintiff has made several attempts to resolve the

claims raised in this Complaint. On August 14, 1984, plain-

tiff delivered a letter to Secretary Clark setting forth plain-

tiff’s claims. On January 29, 1985, plaintiff delivered a let-

ter to defendant Hodel substantially setting forth these

claims again. On April 2, 1985, plaintiff delivered a letter

to defendant Burford setting forth these same claims in ad-

ditional detail. On April 22, 1985, representatives of the

plaintiff met with defendant Burford and members of his

staff to discuss these claims. Additional meetings between

representatives of both plaintiff and defendants were held

on June 5, 1985, and June 19, 1985. Considerable corre-

spondence has been exchanged between the parties. How-

ever, no resolution of this case has been achieved as a result

of these efforts.

THE WITHDRAWAL REVIEW PROGRAM

12. Land classifications created under the now expired

Classification and Multiple Use Act, 43 U.S.C. §§ I411 ef

seq. (1964), and other federal statutes protect substantial

areas of public lands from various types of commercial use

and disposal. These land classifications have been included

in defendants [sic] land withdrawal review program as they

are “withdrawals” within the meaning of Section 103)j) of

the Federal Land Management and Policy Act, 43 U.S.C.

§ 1702{)).

13. Similarly, other land withdrawals created by ad-

ministrative action segregate areas of public land for some

uses and prohibit others. These, too, have been included

in defendants’ land withdrawal review program as provid-

ed in Section 204(a) and (1) of FLPMA, 43 U.S.C. § 1714fa)

and (1)

14. Section 701(c) of the Federal Land Policy and Man-

agement Act provides that all land withdrawals and land

classifications “in effect as of the date of approval of this

Act shall remain in full force and effect until modified under

the provisions of this Act ” 43 USC. § DOME)

Sometime after the passage of FLPMA, defendants created

a Withdrawal Review Program. The purpose of this pro-

gram is to review and eliminate use restrictions which limit

access to public lands, including land withdrawals and land

classifications.

1S. Under the Withdrawal Review Program, defendants

have terminated and continue to terminate land classift-

cations affecting million [sic] acres of public lands. As of

May 1985, land classifications on 152.9 million acres of

public lands had been terminated by the defendants.

16. Under the Withdrawal Review Program, defendants

have terminated and continue to terminate other land with-

drawals affecting millions of acres of public lands. As of

May 1985, defendants had terminated such land withdrawals

on 20.6 million acres.

17. As of May 1985, defendants have submitted to the

Office of Management and Budget recommendations for

additional withdrawal revocations on public lands totalling

34 million acres. As of May 1985, approximately 15 million

additional acres remain to be reviewed under the Land With-

drawal Review Program.

18. Attached to this Complaint as Exhibit A is a list of

788 land status actions, including terminations of land

classifications and other land withdrawals, taken by de-

fendants since January |, 1981. This list is not intended to

be inclusive. Upon information and belief, defendants have

taken other such land status actions pursuant to the With-

drawal Review Program or other programs and continue

to take such actions.

COUNT I

19. Pursuani to Section 202 of the Federal Land Policy

~ and Management Act, land use plans shall be developed for

the public lands. 43 U.S.C. § 1712. Pursuant to regulations

contained at 43 C.F.R. 1600, the land use plan to be

developed pursuant to the Act is a “Resource Management

Plan.”

20. Defendants have completed Resource Management

Plans for only 9 of more than 200 identified resource areas

on the public lands. |

21. The land use status actions enumerated in Exhibit

A were completed without prior preparation of the land use

plans required by FLPMA.

22. On information and belief, other land withdrawals,

including land classifications, have been terminated by

defendants without prior preparation of the land use plans

required by FLPMA.

23. Defendants’ failure to prepare Resource Manage-

ment Plans prior to commencement of the land status ac-

tions enumerated in Exhibit A, or other terminations of land

withdrawals, including land classifications, is a violation

of defendants’ duties under Sections 102(a)(3), 202(d) and

701(c) of the Federal Land Policy and Management Act (43

U.S.C. §§ 1701(ay(3), 1712(d), 1701(c)), and is arbitrary,

capricious, an abuse of discretion, and otherwise not in

accordance with law. 5 U.S.C. § 706(2).

COUNT I

24. Section 204(1) of the Federal Land Policy and

Management Act provides that the defendants shall review

land withdrawals existing in the States of Arizona, Cali-

fornia, Colorado, Idaho, Montana, Nevada, New Mexico,

Oregon, Utah, Washington, and Wyoming, determine

whether continuation of these withdrawals is appropriate,

and then report these recommendations to the President

and, through the President, to the Congress.

25. Defendants have completed the land status actions

enumerated in Exhibit A without prior submission of a

recommendation to the President or the Congress.

26. Upon information and belief, defendants have ter-

minated land withdrawals, including land classifications,

other than those listed in Exhibit A, on lands within the

western states enumerated in Section 204(1), without prior

submission of a recommendation to the President or the

Congress.

27. Defendants’ failure to submit a recommendation to

the President and the Congress prior to taking the land

status actions enumerated in Exhibit A or other termina-

tions of land classifications or land withdrawals is a viola-

tion of defendants’ duties under Sections 204(1) and 701(c)

of the Federal Land Policy and Management Act (43 U.S.C.

§$§ 1714(1), 1701(c)), and is arbitrary, capricious, an abuse

of discretion, and otherwise not in accordance with law.

§ U.S.C. § 706(2).

COUNT lll

28. Pursuant to Section 302 of the Federal Land Policy

and Management Act, defendants are required to manage

the public lands according to principles of multiple use and

sustained yield.

29. “Multiple use” is defined by Section 103(c) of the

Federal Land Policy and Management Act (43 U.S.C.

§ 1702(c)) to mean:

a combination of balanced and diverse resources uses

that takes into account the long-term needs of future

generations for renewable and nonrenewable resources,

including, but not limited to, recreation, range, timber,

minerals, watershed, wildlife and fish, and natural

scenic, scientific and historical values; and harmonious

and coordinated management of the various resources

without permanent impairment of the productivity of

the land and the quality of the environment with con-

sideration being given to the relative values of the

resources and not necessarily to the combination of uses

that will give the greatest economic return or the

greatest unit Output,

including “the use of some land for less than all of the

resources.”

30. The Withdrawal Review Program emphasizes the

availability of public lands for limited purposes, including

mineral exploration and development, rather than multi-

ple use as defined by the Act. In reliance on this program,

defendants have opened millions of acres of public lands

to mineral exploration and development.

31. Detendants’ failure to adequately consider multiple

uses of the lands reviewed under the Withdrawal Review

Program constitutes a violation of defendants’ duties under

Sections 102(a)(7) and 302 of the Federal Land Policy and

Management Act (43 U.S.C. §§ 1701(a)(7), 1732), and is

arbitrary, capricious, an abuse of discretion, and otherwise

not in accordance with law. 5 U.S.C. § 706(2).

COUNT IV

32. Section 102(2)(c) of the National Environmental

Policy Act (NEPA) requires all federal agencies, including

detendant United States Department of the Interior, to

“[iJnclude in every recommendation or report on . . . ma-

jor Federal actions significantly affecting the quality of the

human environment, a detailed statement [commonly re-

ferred to as an environmental impact statement or EIS} by

the responsible official on . . . the environmental impact

of the proposed action. . . .” This provision imposes a man-

datory duty upon the defendants to prepare an environ-

mental impact statement on each individual land classifica-

tion termination and land withdrawal revocation, on the

cumulative effects of these actions, and on the Withdrawal

Review Program itself.

33. Upon information and belief, defendants have not

prepared environmental impact statements on the With-

drawal Review Program or any of its components including

the land status actions enumerated in Exhibit A.

34. Defendants’ failure to prepare such environmental

impact statements in compliance with the Council on En-

vironmental Quality’s NEPA regulations (40 C.F.R.

§§ 1500, ef seq.) and the Department of the Interior NEPA

procedures and regulations is a violation of defendants’

duties under the National Environmental Policy Act, and

is arbitrary, capricious, an abuse of discretion, and other-

wise not in accordance with law. 5 U.S.C. § 706.

COUNT V

35. Section 310 of the Federal Land Policy and Man-

agement Act [sic] 43 U.S.C. § 1740), the Administrative

Procedure Act, and the regulations adopted thereunder, re-

quire the defendants to promulgate rules and regulations

implementing the land management objectives of the Federal

Land Management and Policy Act.

36. Defendants have not promulgated regulations gov-

erning the revocation of withdrawals, including the termina-

tion of land classifications.

37. Defendants’ failure to promulgate rules and regula-

tions governing termination of land classifications and land

withdrawals prior to taking such actions is a violation of

defendants’ duties under the Federal Land Policy and Man-

agement Act and the Administrative Procedure Act and is

arbitrary, capricious, an abuse of discretion, and otherwise

not in accordance with law. § U.S.C. § 706.

38. Alternatively, Section $53 of the Administrative

Procedure Act (§ U.S.C. § 553) requires Federal agencies

to promulgate regulations only after the public has been

given notice and been afforded a reasonable opportunity

to comment On proposed regulations.

39. No regulations regarding terminations of land with-

drawals, including land classifications, undertaken pursuant

to the Federal Land Management and Policy Act have been

promulgated by defendants in accordance with the notice

and comment provisions of the Administrative Procedure

Act.

40. Defendants have instead issued various directives,

instructional memoranda, manuals, and other documents

providing information and guidance to defendants’

employees and-agents on the manner in which the land

withdrawal review program should be conducted. The public

was afforded no opportunity for comment on these docu-

ments.

41. Defendants’ issuance of various documents consti-

tuting de facto regulations regarding land classification and

land withdrawal terminations without public notice and op-

portunity for public comment is a violation of defendants’

duties under the Administrative Procedure Act, and ts ar-

bitrary, capricious, an abuse of discretion, and otherwise

not in accordance with law. § U.S.C. § S551, ef seq.

COUNT VI

42. On information and belief, defendants’ decisions to

terminate land classifications and land withdrawals, in-

cluding those enumerated in Exhibit A, are not justified by

the administrative record and are therefore in violation of

the Administrative Procedure Act, and are arbitrary,

capricious, an abuse of discretion, and otherwise not in ac-

cordance with law. § U.S.C. § 706(2).

COUNT Vil

43. Defendants have provided no opportunity for public

comment on, or other public participation or involvement

in, their decisions regarding the Land Withdrawal Review

Program.

44. For the land use status actions enumerated in Ex-

hibit A, no notice of proposed action was published in the

Federal Register prior to the actior being taken. No public

comment was invited or considered.

45. Upon information and belief, defendants have ter-

minated other withdrawals, including land classifications,

without providing an opportunity for meaningful public par-

ticipation. No notices of proposed action were published.

No public comment was invited.

46. Defendants’ failure to provide for public participa-

tion in the development of the Withdrawal Review Proeram,

in the land use status actions enumerated in Exhibit A and

other terminations of land classifications and other land

withdrawals is a violation of defendants’ duties under Sec-

tions 102(aX5), 202(cM9), 202(f), and 30%e) of the Federal

Land Policy and Management Act (43 U.S.C. §§ 1701(aX5),

1712cM9), 1712¢f), 1739e)) and of the Administrative Pro-

cedure Act, and the regulations promulgated thereunder,

and is arbitrary, capricious, an abuse of discretion and

otherwise not in accordance with law. 5 U.S.C. § 706.

COUNT Sill

47. On information and belief, defendants’ decisions to -

terminate land classifications and other land withdrawals,

including those enumerated in Exhibit A, were not done in

compliance with applicable regulations. Among other

things, defendants’ actions were not determined to be in con-

tormity with the approved Resource Management Plans as

required by 43 CFR § 1610.5-3 (1984), and where no ap-

plicable Resource Management Plan had been approved,

defendants’ actions were not supported by conformance

determinations or other required documentation pursuant

to 43 CFR § 1610.8 (1984).

48. Defendants’ termination of land withdrawals, in-

cluding land classifications, absent compliance with ap-

plicable regulations violated the defendants’ duties pursuant

to those regulations, the Federal Land Policy and Manage-

ment Act, and the Administrative Procedure Act, and was

arbitrary, capricious, an abuse of discretion, and otherwise

not in accordance with law. 5 U.S.C. § 706.

PRAYER FOR RELIEF

Plaintiff respectfully requests that this Court:

(a) Adjudge and declare that defendants’ Land With-

drawal Review program has been conducted in violation of

applicable law and regulations.

(b) Enjoin the defendants from taking any action in-

consistent with any withdrawal, classification, or other

designation governing the use of public lands that was in

effect on January 1, 1981, until such time as the defend-

ants evaluate such actions in land use plans and environ-

mental impact statements, submit such proposed actions to

the President and Congress for review, and otherwise fully

comply with applicable law and regulations. Among other

things, the defendants should be enjoined from issuing

leases; approving licences, mining plans, or plans of opera-

tions; selling, exchanging or otherwise disposing of land or

interests in land; or granting easements or rights-of-way.

tions and other land withdrawals which were in existence

on January 1, 1981, until such time as the defendants

evaluate such actions in land use plans and environmental

impact statements, submit such proposed actions to the

President and Congress for review, and otherwise fully

comply with applicable law and regulations;

(d) Order that defendants rescind all directives, instruc-

tional memoranda, manuals, or other documents providing

information or guidance on the termination of land classi-

fications or land withdrawals until such time as they have

promulgated rules and regulations in accordance with ap-

plicable law and regulations; :

(e) Grant the plaintiff its costs, disbursements, and at-

torneys fees; and

(f) Issue such other relief as the Court deems just and

proper.

Respectfully submitted,

/s/ [SIGNATURE ILLEGIBLE]

NORMAN L. DEAN, Jr.

KATHLEEN C. ZIMMERMAN

National Wildlife Federation

1412 16th Street, N.W.

Washington, D.C. 20036

(202) 797-6817

Attorneys for Plaintiff

National Wildlife Federation

Dated: August 19, 1985

CERTIFICATE OF SERVICE

| hereby certify that on August 19, 1985, I delivered a

copy of the Amended Complaint for Declaratory and In-

junctive Relief to Susan Cook and Pauline Milius, United

States Department of Justice, LOth Street and Constitution

Avenue, N.W., Washington, D.C.

s By [SIGNATURE ILLEGIBLE}

NORMAN L. DEAN, JR.

National Wildlife Federation

1412 16th Street, N.W.

Washington, D.C. 20036

(202) 797-6817

Attorney for Plaintuft

EXHIBIT A

National Wildlife Federation v.

Burford

Land Withdrawal Review Actions Published in

Federal Register Citation

46 Federal Register 1734 (01/07/81)

46 Federal Register 2048 (01/08/81)

46 Federal Register 2046 (01/08/81)

46 Federal Register 2047 (01/08/81)

46 Federal Register 6942 (01/22/81)

46 Federal Register 6944 (01/22/81)

46 Federal Register 6947 (01/22/81)

46 Federal Register 6948 (01/22/81)

46 Federal Register 6946 (01/22/81)

46 Federal Register 6946 (01/22 81)

46 Federal Register 6945 (01/22 81)

46 Federal Register 6943 (01 22 81)

46 Federal Register 6943 (O01 22 81)

46 Federal Register 6944 (01 22 81)

46 Federal Register

7340 (O01

7341 (01

7345 (01

7346 (01

7343 (01

7343 (Ol

7345 (O01

7341 (Ol

7339 (Ol

7347 (Ol

7344 (01

81)

SI)

81)

$1)

SI)

$1)

State

the Federal Register Since January 1, 1981 (Revised)

Acres

Affected

60.00

43307.09

418.18

640.00

690.00

160.00

80.00

42.77

40.00

80.00

40.00

80.00

440.00

40.00

6.24

80.00

289.28

680.00

1040.00

80.00

840.00

$0.00

320.00

40 00

1360.00

8000

$3654.00

7S 00

1635.00

EXHIBIT A — Continued

. Federal Register Citation

46 Federal Register 7340 (01/23/81)

46 Federal Register 7348 (01/23/81)

46 Federal Register 7346 (01/23/81)

46 Federal Register 7345 (01/23/81)

46 Federal Register 7343 (01/23/81)

46 Federal Register 7338 (01/23/81)

46 Federal Register 7342 (01/23/81)

46 Federal Register 7341 (01/23/81)

46 Federal Register 7347 (01/23/81)

46 Federal Register 7348 (01/23/81)

46 Federal Register 7349 (01/23/81)

46 Federal Register 7348 (01/23/81)

46 Federal Register 7347 (01/23/81)

46 Federal Register 7342 (01/23/81)

46 Federal Register 8520 (01/27/81)

46 Federal Register 9585 (01/29/81)

46 Federal Register 14016 (02/25/81)

46 Federal Register

14016 (02/25/81)

14189 (02/26/81)

15216 (03/04/81)

16137 (03/11/81)

18793 (03/26/81)

21836 (04/14/81)

23819 (04/28/81)

26564 (05/13/81)

27773 (05/20/81)

46 Federal Register 27651 (05/21/81)

46 Federal Register 27652 (05/21/81)

46 Federal Register 27653 (05/21/81)

46 Federal Register 28166 (05/26/81)

State

Acres

Affected

140.00

9398.92

123.56

40.00

200.00

320.00

2302.91

160.00

120.00

200.00

4273.73

142.2]

34265 .00

160.00

46.53

120.00

15.54

120.00

3917.39

4943.50

242.40

7144.00

3790.66

125.28

237.80

4456048 .00

764.28

39231.37

78328.00

24.86

17.50

1280.00

EXHIBIT A — Continued

. Federal Register Citation

46 Federal Register 28163 (05/26/81)

46 Federal Register 28164 (05/26/81)

46 Federal Register 28165 (05/26/81)

46 Federal Register 28167 (05/26/81)

46 Federal Register 28417 (05/27/81)

46 Federal Register 28404 (05/27/81)

46 Federal Register 28416 (05/27/81)

46 Federal Register 28406 (05/27/81)

46 Federal Register 28416 (05/27/81)

46 Federal Register 28406 (05/27/81)

46 Federal Register 28416 (05/27/81)

46 Federal Register

28405 (05/27/81)

28418 (05/27/81)

28406 (05/27/81)

28414 (05/27/81)

28415 (05/27/81)

28410 (05/27/81)

28415 (05/27/81)

28411 (05/27/81)

28414 (05/27/81)

28409 (05/27/81)

28413 (05/27/81)

28409 (05/27/81)

28413 (05/27/81)

28412 (05/27/81)

28415 (05/27/81)

28411 (05/27/81)

State

- Acres

Affected

21993.30

32245.51

40.00

200.00

12.51

30.00

11124.03

80.00

2543.45

60.00

68 .66

120.00

272.00

850.77

44.99

160.00

313080.00

40.00

4.92

4280.00

77.31

275.11

400.00

80.00

240.00

60.00

2600.00

120.00

130.00

40.00

116.12

519.69

No.

EXHIBIT A — Continued

Federal Register Citation

46 Federal Register 28413 (05/27/81)

46 Federal Register 28411 (05/27/81)

46 Federal Register 28418 (05/27/81)

46 Federal Register 28517 (05/27/81)

46 Federal Register 28417 (05/27/81)

46 Federal Register 28517 (05/27/81)

46 Federal Register

28404 (05/27/81)

28412 (05/27/81)

28410 (05/27/81)

28517 (05/27/81)

28407 (05/27/81)

28414 (05/27/81)

28405 (05/27/81)

28515 (05/27/81)

28406 (05/27/81)

28408 (05/27/81)

28410 (05/27/81)

28414 (05/27/81)

28412 (05/27/81)

28652 (05/28/81)

28754 (05/28/81)

28656 (05/28/81)

28651 (05/28/81)

28655 (05/28/81)

28654 (05/28/81)

28655 (05/28/81)

28652 (05/28/81)

28655 (05/28/81)

28854 (05/29/81)

28852 (05/29/81)

28854 (05/29/81)

State

Acres

Affected

360.00

160.00

605.52

920000 .00

125.91

605200.00

21998.87

40.00

50.00

123115.00

160.00

40.00

40.02

1079.00

240.00

73732.00

635.54

60.00

40.00

903.93

1053000.00

160.00

673.25

240.00

1027.83

160.00

240.00

15285.00

2080.00

185.00

195.88

640.00

No.

129

130

131

132

133

134

135

136

137

138

139

140

141

142

143

144

145

146

147

148

149

150

151]

152

153

154

155

156

157

158

159

160

EXHIBIT A — Continued

Federal Register Citation

46 Federal Register 28853 (05/29/81)

46 Federal Register 28854 (05/29/81)

46 Federal Register 28858 (05/29/81)

46 Federal Register 28854 (05/29/81)

46 Federal Register 28857 (05/29/81)

46 Federal Register 28855 (05/29/81)

46 Federal Register 28857 (05/29/81)

46 Federal Register 28852 (05/29/81)

46 Federal Register 28953 (05/29/81)

46 Federal Register 28851 (05/29/81)

46 Federal Register 28855 (05/29/81)

46 Federal Register 28857 (05/29/81)

46 Federal Register 28953 (05/29/81)

46 Federal Register 29263 (06/01/81)

46 Federal Register 29510 (06/03/81)

46 Federal Register 29710 (06/03/81)

46 Federal Register 29939 (06/04/81)

46 Federal Register 29938 (06/04 81)

46 Federal Register 29939 (06/0481)

46 Federal Register 29939 (06/04 81)

46 Federal Register 31776 (06/17/81)

46 Federal Register 31776 (06/17 81)

46 Federal Register 31892 (06/18/81)

46 Federal Register 31947 (06.18 81)

46 Federal Register 31947 (06/18 81)

46 Federal Register 31892 (06 18 81)

46 Federal Register 31893 (06 18 81)

46 Federal Register 31892 (06 18 81)

State

Acres

Affected

650.50

16.47

77.22

339.89

39.94

40.00

160.00

4132.15

9177.00

163.34

2113.42

40.00

121.00

40.62

284.28

10985.22

80.00

40.00

599.50

8.17

239.04

400.00

19627.78

96069 OU

1445 108.00

20.00

5516.52

31841.69

77.70

120.00

139.81

No.

161

162

163

164

165

166

167

168

169

170

171

172

173

174

175

176

177

178

179

180

181

182

183

184

185

186

187

188

189

190

19]

192

EXHIBIT A — Continued

Federal Register Citation

46 Federal Register 31893 (06/18/81)

46 Federal Register 31894 (06/18/81)

46 Federal Register 31895 (06/18/81)

46 Federal Register 31947 (06/18/81)

46 Federal Register 35504 (07/09/81)

46 Federal Register 35507 (07/09/81)

46 Federal Register 35510 (07/09/81)

46 Federal Register 35509 (07/09/81)

46 Federal Register 35508 (07/09/81)

46 Federal Register 35509 (07/09/81)

46 Federal Register 35503 (07/09/81)

46 Federal Register 35508 (07/09/81)

46 Federal Register 35504 (07/09/81)

46 Federal Register 35509 (07/09/81)

46 Federal Register 35510 (07/09/81)

46 Federal Register 35507 (07/09/81)

46 Federal Register 35504 (07/09/81)

46 Federal Register 39480 (08/03/81)

46 Federal Register 39683 (08/04/81)

46 Federal Register 42199 (08/19/81)

46 Federal Register 42921 (08/25/81)

46 Federal Register 43508 (08/28/81)

46 Federal Register 43886 (09/01/81)

46 Federal Register 44983 (09/09/81)

46 Federal Register 44984 (09/09/81)

State

Acres

Affected

40.00

60.00

236.54

240.00

1500.00

0.40

189657.00

80.00

240.00

40.00

156.17

160.35

100.16

3559.79

374193.00

6165.37

1577.38

240.00

213.86

11.21

5.00

50967 .00

310600.00

114.00

1220.98

1731.71

298.00

3.79

120.00

80.00

ite the

’

E\NHIBIET A— Continued

Federal Reeister Citation

46 Federal Revister 45137 (09/10/81)

46 Federal Register 45132 (09/10/81)

46 Federal Register 45131 (09/10/81)

46 bFederal Register 45131 (09/10/81)

46 Federal Register 45611 (09/14/81)

46 Federal Register 45819 (09/15/81)

46 Federal Register 46134 (09/17/81)

46 Federal Register 46409 (09/18/81)

46 Federal Register 48670 (10/02/81)

46 Federal Register 48671 (10/0281)

46 Federal Register 48670 (10/02. 81)

46 Federal Register 48670 (10/02/81)

46 Federal Register 48667 (10 02 81)

46 Federal Register 48667 (10 02 381)

46 bederal Register 48668 (10 02 81)

46 Federal Register 48676 (10 02 81)

46 bederal Register 48676 (10 02 81)

46 Federal Register 48672 (10/02 81)

46 Federal Register 48674 (10 02 S81)

46 Federal Register 48667 (10 02 81)

46 Federal Register 48675 (10 02 81)

46 Federal Register 48668 (10 02 81)

46 Federal Register 48666 (10 02 381)

46 Federal Register 48672 (10 02 81)

46 Federal Register 48673 (10 02 81)

46 Federal Register 48669 (10 02 381)

46 Federal Register 48674 (10 02 81)

46 Federal Register 48669 (10 02 S81)

46 Federal Register 48675 (10 02 81)

46 Federal Register 48669 (10 02 ST)

46 bederal Register 48998 (10 05 81)

Stale

NII

Nil

NMI

nD)

N\I

N11

lcres

V/fected

1000.00

217624.26

60.00

155.38

45.62

19657.53

2367.16

132000.00

664.48

40.00

320.90

40.00

3848.69

$5.25

1680.00

2393.49

131.95

1360.00

680.00)

157.48

662.89

95.20

200.00

239.94

40.00

112.00

400.00

200.17

30.00

1.00

1277.62

160.00

No.

225

226

227

228

229

230

231

232

233

234

235

236

237

238

239

240

241

242

243

244

245

246

247

248

249

250

251

252

253

254

255

256

EXHIBIT A— Continued

Federal Register Citation

46 Federal Register 49649 (10/07/81)

46 Federal Register 49868 (10/08/81)

46 Federal Register 49871 (10/08/81)

46 Federal Register 49869 (10/08/81)

46 Federal Register 49871 (10/08/81)

46 Federal Register 49872 (10/08/81)

46 Federal Register 49874 (10/08/81)

46 Federal Register 49873 (10/08/81)

46 Federal Register 49872 (10/08/81)

46 Federal Register 49874 (10/08/81)

46 Federal Register 49873 (10/08/81)

46 Federal Register 49875 (10/08/81)

46 Federal Register 49872 (10/08/81)

46 Federal Register 49875 (10/08/81)

46 Federal Register 49876 (10/08/81)

46 Federal Register 49875 (10/08/81)

46 Federal Register 49876 (10/08/81)

46 Federal Register 49877 (10/08/81)

46 Federal Register 49876 (10/08/81)

46 Federal Register 50541 (10/14/81)

46 Federal Register 50857 (10/15/81)

46 Federal Register 51050 (10/16/81)

46 Federal Register 51246 (10/19/81)

46 Federal Register 52039 (10/23/81)

46 Federal Register 53164 (10/28/81)

46 Federal Register 53162 (10/28/81)

46 Federal Register 53164 (10/28/81)

State

Acres

Affected

10521657.00

3484.00

4000.00

$0.00

240.00

7949.00

56.00

80.00

150.00

179.31

1080.00

759.90

1459.56

390.86

187.46

360.00

226.98

5.50

40.00

80.13

7451.38

77.51

600.00

5.00

750000 .00

467902 .68

1.25

12.56

40.00

3370.00

34.00

0.24

No.

257

258

259

260

261

262

263

264

265

266

267

268

269

270

271

272

273

274

275

276

277

278

279

280

281

282

283

284

285

286

287

288

EXHIBIT A—Continued

Federal Register Citation

46 Federal Register 53165 (10/28/81)

46 Federal Register 53166 (10/28/81)