Amicus Curiae Brief — Lujan v. National Wildlife Federation

No. 89-640

In the Supreme Court of the

OCTOBER TERM, 1989

MANUEL LUJAN, JR., et al., PETITIONERS

*.

NATIONAL WILDLIFE FEDERATION, RESPONDENT

On Writ of Certiorari to the

United States Court of Appeals

for the District of Columbia Circuit

BRIEF AMICI CURIAE OF THE

AMERICAN FARM BUREAU FEDERATION AND THE

WYOMING FARM BUREAU FEDERATION

IN SUPPORT OF PETITIONERS

JOHN J. RADEMACHER KATHRYN A. OBERLY

General Counsel Counsel of Record

American Farm Bureau JOHN E. MUENCH

Federation KERRY EDWARDS CORMIER

225 Touhy Avenue JEFFREY M. WINTNER

Park Ridge, Illinois 60068 Mayer, Brown & Platt

(312) 399-5732 2000 Pennsylvania Ave., N.W.

Washington, D.C. 20006

(202) 7780611

Counsel for Amici Curiae

WILSON - Eres Printing Co... Inc. - 789-0096 - WasHincron, D.C. 20001

— 1

TABLE OF CONTENTS

INTEREST OF THE AMICI CURA

INTRODUCTION AND SUMMARY OF ARGU-

111111 —— ͤ ——

I. THE COURT OF APPEALS SHOULD HAVE

II.

SUSTAINED THE DISTRICT CoURT's

GRANT OF SUMMARY JUDGMENT BE-

CAUSE RESPONDENT FAILED TO MEET

ITS BURDEN OF DEMONSTRATING THAT

IT WOULD SUFFER A DISTINCT PER-

SONAL INJURY FROM ANY DECISION OF

THE FEDERAL BUREAU OF LAND MAN-

— ———

THE COURT OF APPEALS ERRONEOUSLY

CONCLUDED THAT USE OF A SINGLE

PARCEL OF LAND SUBJECT TO A CLASSI-

FICATION TERMINATION GAVE RE.

SPONDENT STANDING TO CHALLENGE

ALL BLM CLASSIFICATION TERMINA-

TIONS AND WITHDRAWAL REVOCA-

—.— 0

CONCLUSION ............... ß

(i)

12

ii iii

TABLE OF AUTHORITIES TABLE OF AUTHORITIES—Continued

Cases: Page

Allen v. Wright, 468 U.S. 737 (198) passim Se

Anderson v. Liberty Lobby, Inc., 477 US. 242 — Ct. 4 — .

(1986) — 21 Fed. R. Civ. P. 56 . ——

Asarco, Ine. v. ‘Kadish, 109 S. Ct. 2037 (1989 — 10

Celotex Corp. v. Catrett, 477 U.S. 317 (1986) 10, 11-12

Chevron U.S.A. Ine. v. Natural Resources Defense

Council, Inc., 467 U.S. 837 (198) 20

City of Los Angeles v. Lyons, 461 U.S. 95 (1983) 5-6

Laird v. Tatum, 408 U.S. 1 (1972 21

Marbury v. Madison, 5 US. (1 Cranch) 137

(1803) 15

Matsushita Elec. Industrial Co. v. Zenith Radio

Corp., 475 U.S. 574 (1986): 10

Pacific Gas & Elec. Co. v. FPC, 506 F.2d 33 (D.C.

+ ̃ —rW—ts— 20

Schlesinger v. Reservists Committee To Stop The

War, 418 U.S. 208 (197⸗)ͥ7́%0 14, 19, 21

Sierra Club v. Morton, 405 U.S. 727 (1972) 3, 8, 9, 17-18

Simon v. Eastern Kentucky Welfare Rights Org.,

426 U.S. 26 (1976) — ...... 6, 14, 15

Singleton v. Wulff, 428 U.S. 106 (1976) — 13

UAW v. Brock, 477 U.S. 274 (198) „% 18

United States v. Richardson, 418 U.S. 166 (1974).. 14, 15,

19

United States v. Students Challenging Regulatory

Agency Procedures (SCRAP), 412 US. 669

(1973) . 8

Valley Forge ‘Christian College v. —

United for Separation of Church & State, Inc.,

454 US. 464 (1982) , 14, 15, 19, 22

Village of Arlington Heights v. Metropolitan Hous-

ing Dev. Corp., 429 U.S. 252 (1977) 13

Warth v. Seldin, 422 U.S. 490 (1975)... passim

Statutes, rules and regulations:

United States Constitution, Article II passim

Administrative Procedure Act, 5 U.S.C. § 702 6

28 U.S.C. App. 626 (Advisory Comm. Notes to

1963 Amendments to Fed. R. Civ. P. 56) 11

Ju the Supreme Court of the United States

OCTOBER TERM, 1989

No. 89-640

MANUEL LUJAN, JR., et al., PETITIONERS

v.

NATIONAL WILDLIFE FEDERATION, RESPONDENT

On Writ of Certiorari to the

United States Court of Appeals

for the District of Columbia Circuit

BRIEF AMICI CURIAE OF THE

AMERICAN FARM BUREAU FEDERATION AND THE

WYOMING FARM BUREAU FEDERATION

IN SUPPORT OF PETITIONERS

INTEREST OF THE AMICI CURIAE'

The American Farm Bureau Federation (AFBF)

is a voluntary general farm organization formed in

1919 and organized in 1920 under the General Not-

Letters from the parties consenting to the filing of this

brief have been filed with the Clerk of this Court. See Sup.

Ct. R. 37.

(1)

2

For-Profit Corporation Act of the State of Illinois.

AF BF was founded to protect, promote, and represent

the business, economic, social and educational inter-

ests of American farmers and ranchers. AFBF has

member organizations in 50 states and Puerto Rico

(including the Wyoming Farm Bureau Federation),

representing more than 3.6 million member families.

AF BF’s farmer and rancher members produce virtu-

ally every kind of agricultural commodity produced

in the United States.

The Wyoming Farm Bureau Federation (WYFB)

is a voluntary, non-profit, general farm organization

incorporated under the laws of the State of Wyoming,

representing more than 8,000 member families.

WYFB’s purpose is to represent, service, and protect

the interests of farmers and ranchers in the State of

Wyoming.

Farm Bureau members have a direct and vital in-

terest in the outcome of this case. The orderly man-

agement and use of federal lands, especially in the

western region of the United States, is of paramount

importance to member farmers and ranchers whose

private lands lie adjacent and are often tied eco-

nomically to such federal lands. Many Farm Bureau

members in the western states are adversely affected

by restrictions on federal land managers such as those

imposed by the court of appeals. Farm Bureau

members accordingly have a strong interest in en-

suring that the decisions of the federal land man-

agers with whom they must work on a daily basis are

not subjected to the uncertainty and vulnerability that

flows from permitting challenges to those decisions

to proceed simply by virtue of the claim that one

of respondent’s members uses federal land “in the

vicinity” of millions of acres of other federal land.

INTRODUCTION AND SUMMARY OF ARGUMENT

This case concerns the limitations that the doctrine

of standing and our system of separation of powers

impose on the exercise of federal judicial power. Re-

spondent’s complaint seeks judicial rescission of more

than 1,250 Bureau of Land Management (BLM) land

use decisions affecting more than 180 million acres of

land throughout the Nation; it also requests an order

compelling BLM officials to rescind all internal direc-

tives relating to such land status determinations.

The district court granted summary judgment for

petitioners because respondent failed to show that any

of its members used public land affected by any BLM

decision. Reversing, the court of appeals held that

the district court should have “presumed” that one

of respondent’s members uses an affected parcel, and

that such presumed use entitles respondent to press

its claim for intrusive injunctive relief with respect

to all post-1981 land status decisions. This ruling is

fundamentally unsound.

A. Article III requires a plaintiff seeking to in-

voke federal-court jurisdiction to enjoin agency action

to demonstrate that the challenged action threatens

him with a distinctive personal injury. Where, as

here, an environmental organization claims that gov-

ernmental action has impaired the use and enjoyment

of a natural resource, the organization must show

that its members use” that resource. Sierra Club v.

Morton, 405 U.S. 727, 735 (1972). Moreover, even

at the pleading stage, this Court has refused to sup-

ply by inference factual allegations necessary to sup-

port the plaintiff’s personal stake in the litigation.

See, e.g., Allen v. Wright, 468 U.S. 737, 758-59

(1984). The plaintiff himself must allege “specific,

1

concrete facts” showing the required injury. Wart)

v. Seldin, 422 U.S. 490, 508 (1975).

The court of appeals’ “presumed” injury theory is

utterly inconsistent with these established principles.

Beyond this, the court’s presumption cannot be recon-

ciled with the dictates of Rule 56 of the Federal Rules

of Civil Procedure, which required respondent (as the

party having the burden of proof) to adduce sufficient

evidence of injury to support a finding in its favor

at trial.

B. The court of appeals’ further ruling that the

presumed aesthetic injury from a land use decision

affecting one parcel entitles respondent to seek rescis-

sion of all BLM land status decisions rests on a fun-

damental misconception of the core purposes served

by the standing doctrine.

Implicit in the court’s decision is the notion that

standing rules serve only to ensure vigorous advocacy.

Given this minimalist view, the court’s presumptive

injury theory and its expansive conception of judicial

power are unsurprising; vigorous advocacy can be

expected from organizations like respondent. In fact,

however, “the law of Art. III standing is built on a

single basic idea—the idea of separation of powers.“

Allen, 468 U.S. at 752. For that reason, where, as

here, a plaintiff seeks the assistance of the federal

courts in its effort to reverse hundreds of separate

decisions made by the Executive Branch, “the stand-

ing inquiry requires careful judicial examination” to

determine whether the “particular plaintiff’ may

press “the particular claims asserted.” Ibid. And in

conducting this inquiry, federal courts are constrained

by the principle that federal judicial power should

only be exercised “ ‘as a necessity.’” bid. (citation

omitted).

The court of appeals’ decision conflicts with these

fundamental principles. To begin with, based on a

presumed injury from an isolated land use decision,

it permits respondent to use the federal courts as a

vehicle for attacking hundreds of BLM land status

decisions that have caused it no injury and that are

deemed advantageous by those with a direct interest

in the lands. Moreover, the sweeping relief sought

by respondent would require pervasive judicial over-

sight of the Executive’s performance of its delegated

land management functions. Under these circum-

stances, the structural values protected by the stand-

ing doctrine compel the conclusion that there is no

“necessity” for the exercise of federal judicial power

countenanced by the court of appeals in this case.

ARGUMENT

Article III of the Constitution confines the federal

judicial power to “Cases” and “Controversies.” The

requirement that a plaintiff have standing derives

directly from this express limitation. See, e. g., Allen

v. Wright, 468 U.S. 737, 751 (1984). To have stand-

ing under Article III, a “plaintiff [must] allege| ]

such a personal stake in the outcome of a contro-

versy as to warrant his invocation of federal-court

jurisdiction and to justify exercise of the court’s

remedial powers on his behalf.” Warth v. Seldin,

422 U.S. 490, 498-499 (1975) (quctation omitted

and emphasis in original).

This Court has consistently held that a plaintiff

must satisfy a three-part test in order to demon-

strate the required “personal stake.” First, it must

allege a “personal injury” that is “ ‘distinct and pal-

pable’” as opposed to ‘abstract’ or ‘conjectural’ or

‘hypothetical.’” Allen, 468 U.S. at 751 (quoting

Warth, 422 U.S. at 501, and City of Los Angeles v.

6

Lyons, 461 U.S. 95, 101-102 (1983)). Sechnd, that

injury must be “ ‘fairly’ traceable” to the allegedly

unlawful conduct of the defendant. Allen, 468 U.S.

at 751 (citation omitted); Valley Forge Christian

College v. Americans United for Separation of

Church d State, Inc., 454 U.S. 464, 471 (1982).

Finally, a favorable decision must be “likely to * * *

redress|]” the injury. Simon v. Eastern Kentucky

Welfare Rights Org., 426 U.S. 26, 38 (1976). Ac-

cord Allen, 468 U.S. at 751. Each of these elements

must be shown not by conclusory assertions but by

“specific, concrete facts.” Warth, 422 U.S. at 508.

Moreover, “(t]he idea of separation of powers

* * * underlies standing doctrine,” Allen, 468 U.S.

at 759, and the application of the standing test in a

particular case should be guided by separation of

powers considerations (id. at 761 n.26). Thus,

“[t}his Court has repeatedly held that an asserted

right to have the Government act in accordance with

law is not sufficient, standing alone, to confer juris-

diction on a federal court.” Jd. at 754.

The court of appeals’ decision manifestly disre-

gards these salutary limitations on the exercise of

federal judicial power. To begin with, the court er-

roneously presumed that respondent has a “personal

stake” in this litigation. Beyond this, the court im-

permissibly allowed respondent to use its presump-

tive aesthetic injury from a single decision affecting

a 4,500-acre tract of land to secure citizen standing

to subject to federal court supervision hundreds of

federal land use decisions affecting 180 million acres

of land.

That respondent has invoked the judicial review provi-

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

7 8

I. THE COURT OF APPEALS SHOULD HAVE SUS-

TAINED THE DISTRICT COURT'S GRANT OF

SUMMARY JUDGMENT BECAUSE RESPONDENT

FAILED TO MEET ITS BURDEN OF DEMON-

STRATING THAT IT WOULD SUFFER A DIS-

TINCT PERSONAL INJURY FROM ANY DECI-

SION OF THE FEDERAL BUREAU OF LAND

MANAGEMENT.

In an effort to establish its organizational standing

to challenge the legality of hundreds of Bureau of

Land Management (BLM) decisions affecting 180

million acres of federal land, respondent submitted

an affidavit of one of its members, Ms. Peterson,

which asserted that her “recreational use and aes-

thetic enjoyment of federal lands * * * in the vicinity

of South Pass-Green Mountain, Wyoming” are “ad-

versely affected” by a BLM decision “opening up” the

South Pass-Green Mountain area to the staking of

mining claims. Pet. App. 19la (emphasis added).

The South Pass area to which the Peterson affidavit

refers comprises 2 million acres, and the challenged

BLM decision opened only 4,500 acres to the staking

of mining claims. Id. at 17a, 34a-35a.

Because respondent’s affidavit asserted only that

she used lands “in the vicinity” of the 2 million acre

tract, and respondent introduced no evidence that she

used the small parcel to which the challenged BLM

decision related, the district court concluded that re-

spondent had failed to satisfy its burden of demon-

strating “injury in fact” from the 4,500 acre land use

decision, much less from the “hundreds of decisions

does not relieve it of its threshold obligation to meet the

standing requirements of Article III. See, e.g., Valley Forge,

454 U.S. at 487 n.24.

8

affecting 180 million acres spread over seventeen

states.“ Pet. App. 36a. The district court’s decision

was plainly correct, and the court of appeals’ er-

roneous ruling to the contrary clashes with settled

principles governing standing and summary judg-

ment in the federal courts.

A. In Sierra Club v. Morton, the Court held that

the Sierra Club had failed to establish standing to

challenge the Secretary of the Interior’s decision to

permit development of an area (Mineral King) with-

in a National Park because any “injury w[ould] be

felt directly only by those who use Mineral King“

and “[{n]owhere in the pleadings or affidavits did the

Club state that its members use Mineral King for

any purpose.” 405 U.S. 727, 735 (1972).° Sierra

Club is fatal to respondent’s standing in this case.

As the district court found, respondent made no

showing that any of its members use any parcel of

land affected by the hundreds of land use decisions

challenged by its complaint. The member affidavit on

which the court of appeals relied merely alleges use

of land “in the vicinity of” a 2 million acre tract,

only 4,500 acres (or .225%) of which was opened

to mining by the challenged BLM decision. Pet. App.

16a-17a. Respondent made no showing whatever that

Ms. Peterson uses any of the affected 4,500 acres.

Sierra Club leaves no doubt that asserted use of un-

specified land “in the vicinity” of 2 million acres

* Compare United States v. Students Challenging Regula-

tory Agency Procedures (SCRAP), 412 U.S. 669 (1973), in

which the Court held that, for purposes of a motion to dismiss,

the plaintiffs had satisfied the injury prong of the standing

test by alleging that they personally used the “natural re-

sources” that they alleged had been adversely impacted by

federal agency action. Id. at 678.

does not confer standing to challenge a land use de-

cision affecting a 4,500 acre tract within the 2 mil-

lion acre area. 405 U.S. at 734-735.

Acknowledging the insufficiency of the Peterson

affidavit on its face, the court of appeals resorted to

a “presumption” that “the 4,500 newly opened acres

included the areas that Peterson uses.” Pet. App.

17a. The court reasoned that, “unless Peterson’s

language is read to refer to the lands affected by the

Program, the affidavit is, at best, a meaningless docu-

ment.” Jbid. In other words, the affidavit must be

read to establish injury because otherwise it would

not support standing.

This Court, however, has clearly rejected the no-

tion that a federal court may presume the existence

of a constitutionally required injury. Rather, a party

seeking to invoke the federal judicial power must

allege “specific, concrete facts” that demonstrate the

required personal stake in the litigation. Warth, 422

U.S. at 508. Not surprisingly, therefore, the Court

in Sierra Club did not presume that some Club mem-

ber had used the particular tract of land that was

the subject of the challenged agency decision. Nor

did the Court in Allen presume that “there were

enough racially discriminatory private schools receiv-

ing tax exemptions in respondents’ communities for

withdrawal of those exemptions to make an appre-

ciable difference in public school integration” (Allen,

468 U.S. at 758)—even though, absent such an alle-

gation, the complaint could fairly be characterized as

a “meaningless document.”

The injury requirement serves to confine the fed-

eral courts to their legitimate judicial functions. The

notion, implicit in the court of appeals’ presumptive

10

injury theory, that standing is a “gaming device,”

Asarco, Inc. v. Kadish, 109 S. Ct. 2037, 2044 (1989)

(opinion of Kennedy, J., joined by Rehnquist, C.J.,

and Stevens and Scalia, JJ.), by which artful drafts-

men may confer the necessary personal stake on or-

ganizational bystanders simply cannot be squared

with the Article III “case or controversy” require-

ment.

B. As the Court recently observed, “[s]ummary

judgment procedure is properly regarded not as a

disfavored procedural shortcut, but rather as an in-

tegral part of the Federal Rules as a whole, which

are designed ‘to secure the just, speedy and inex-

pensive determination of every action.“ Celotex

Corp. v. Catrett, 477 U.S. 317, 327 (1986) (citation

omitted). The court of appeals clearly ignored this

admonition.

The “plain language of Rule 56(c) mandates the

entry of summary judgment * * * against a party

who fails to make a showing sufficient to establish

the existence of an element essential to that party’s

case, and on which that party will bear the burden

of proof at trial.” Celotex, 477 U.S. at 322 (emphasis

added). Thus, to avoid summary judgment, respond-

ent was obligated to “set forth specific facts” (An-

derson v. Liberty Lobby, Inc., 477 U.S. 242, 250

(1986)) that could “lead a rational trier of fact to

find” (Matsushita Elec. Industrial Co. v. Zenith

Radio Corp., 475 U.S. 574, 587 (1986)) that Ms.

Peterson “uses” the 4,500 acre tract affected by the

BLM decision. As the district court correctly held,

the Peterson affidavit by its terms provides no basis

for such a finding.

The court of appeals’ attempt to cure respondent’s

evidentiary default by presuming that it would not

11

have submitted an affidavit that failed to meet its

burden of proof frustrates “[t]he very mission of

the summary judgment procedure”—‘“to pierce the

pleadings and to assess the proof in order to see

whether there is a genuine need for trial.” 28 U.S.C.

App. 626 (Advisory Comm. Notes to 1963 Amend-

ments to Fed. R. Civ. P. 56). For, under the court of

appeals’ theory, it is the mere submission—not the

substance—of an affidavit that serves to defeat a mo-

tion for summary judgment.*

The court of appeals’ presumptive injury theory

also deprives defendants of substantial rights under

Rule 56. As this Court has noted, “Rule 56 must be

construed with due regard not only for the rights of

persons asserting claims * * * that are adequately

based in fact to have those claims * * * [adjudicated],

but also for the rights of persons opposing such claims

*The court of appeals also suggested that the Peterson

affidavit could be deemed “ambiguous regarding whether the

adversely affected lands are the ones she uses.” Pet. App. 17a.

To begin with, this characterization defies the literal terms of

the affidavit. At all events, respondent—the party bearing

the burden of proof on standing—was required to set forth

specific facts demonstrating the use by Ms. Peterson of the

affected parcel of land. If the affidavit does not show such

use (ie,, if it is ambiguous), Rule 56 mandates the entry of

summary judgment. Moreover, even if the affidavit

viewed as ambiguous regarding whether Ms. Peterson

lands within—and not simply in the vicinity of—the

acre South Pass area, it would be totally irrational for

of fact, based on the affidavit, to find that

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in the 99.775 % of

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12

* * * to demonstrate in the manner provided by the

Rule, prior to trial, that the claims * * * have no

factual basis.” Celotex, 477 U.S. at 327. Here, the

court of appeals’ utter disregard of petitioners’ rights

under Rule 56 has placed a cloud over numerous bene-

ficial land exchanges between the BLM and Farm

Bureau members—even though virtually none of those

transactions even arguably threatens the aesthetic

interests espoused by respondent.“

II. THE COURT OF APPEALS ERRONEOUSLY CON-

CLUDED THAT USE OF A SINGLE PARCEL OF

LAND SUBJECT TO A CLASSIFICATION TERMI-

NATION GAVE RESPONDENT STANDING TO

CHALLENGE ALL BLM CLASSIFICATION TERMI-

NATIONS AND WITHDRAWAL REVOCATIONS.

As shown above, respondent has no standing to

challenge the legality of the land use decision relat-

ing to the 4,500 acre tract in Wyoming. But even if

As we explained in our amicus brief in support of the peti-

tion in this case (at 7-8), many of the western members of

the Farm Bureau are neighbors to the public lands. Often

historic land ownership patterns have evolved in ways that

blocked on the 180 million acres of federal land involved in

this litigation. Almost all of those exchanges were benign

to respondent. Many exchanges, such as those to enhance

wildlife habitat, were beneficial to respondent. Nonetheless,

the court of appeals’ decision places the judiciary in the posi-

tion of supervising land exchanges in all western states based

on one persons objection to possible mining activity “in the

vicinity” of millions of acres of public land.

13

respondent’s factual submission had been sufficient to

establish use of the Wyoming parcel, there was no

warrant for the court of appeals’ further conclusion

that such use permits respondent to proceed with

litigation subjecting all BLM land use decisions to

federal court supervision. The court’s expansive con-

ception of the scope of federal judicial power deni-

grates the significance of (and the core purposes

served by) the Article III standing requirement.

A. Generalizations about standing are, of course,

necessarily imprecise. Nonetheless, the Court has

typically found standing to exist in cases where the

plaintiff is among those who are the focus of (and

directly harmed by) challenged governmental action

—even when the relief sought would not necessarily

redress the injury alleged. In Village of Arlington

Heights v. Metropolitan Housing Dev. Corp., 429 U.S.

252, 256, 261 (1977), for example, the Court held

that a developer which had contracted, contingent

upon rezoning and federal assistance, to build low-

and moderate-income housing had standing to chal-

lenge the denial of rezoning even though the re-

quested relief “would not guarantee“ that it

could proceed because it was not certain to obtain

federal subsidization. In such cases, the parties are

“classically adverse,” Singleton v. Wulff, 428 U.S.

106, 113 (1976), and the court is exercising its tra-

ditional judicial function at the behest of a plaintiff

asserting a “ ‘distinct’” personal injury. Allen, 468

U.S. at 751 (citations omitted).

By contrast, the Court has often denied standing

in cases where, as here, the plaintiff alleges he has

suffered an indirect, widely-shared injury from the

failure of governmental officials to conform to legal

standards in the performance of their duties, includ-

14

ing the regulation of (and transactions with) third

parties (“public law” suits).“ These suits do not in-

volve “classically adverse” disputes. For that reason,

while “the indirectness of the injury” alleged will not

“necessarily” result in a denial of standing, “it may

make it substantially more difficult to meet the mini-

mum requirement of Art. III.” Warth, 422 U.S. at

505. Accord Allen, 468 U.S. at 757-758; Simon, 426

U.S. at 44-45.

The Court has in fact undertaken a more vigilant

inquiry in public law actions to determine whether

the injury alleged actually exists, and whether it was

in fact caused by the challenged governmental action.

The Court’s decision in Simon is illustrative. There,

the plaintiff challenged an IRS ruling extending fav-

orable tax treatment to hospitals that provided some,

but not all, services to indigents and alleged that the

agency’s ruling would cause fewer hospitals to pro-

vide full services to the indigents whom it represented.

See, e.g., Allen, supra (parents of black public school

children did not have standing to challenge procedures by

which the IRS enforces the prohibition on tax exemptions

for racially discriminatory schools); Valley Forge, supra

(taxpayers did not have standing to challenge transfer of

federal property to a third-party) ; Simon, supra (indigent

plaintiffs did not have standing to challenge an IRS ruling

decreasing the amount of services hospitals had to provide

to the indigent in order to qualify for certain federal tax

treatment) ; United States v. Richardson, 418 U.S. 166 (1974)

(citizen taxpayer did not have standing to request that the

government be compelled to order the CIA fully to account

and report its expenditures and receipts) ; Schlesinger v. Re-

servists Committee To Stop The War, 418 U.S. 208 (1974)

(citizens had no standing to seek mandamus ordering the

Defense Department to terminate the reserve commissions of

certain Members of Congress).

15

Noting that the hospitals might decide not to supply

full services to indigents even absent the IRS ruling,

the Court denied standing, refusing to supply the in-

ferences” necessary to connect plaintiff’s asserted in-

jury with the challenged IRS action. 426 U.S. at

42-45.

The careful standing inquiry in public law actions

reflects the Court’s recognition of the special dangers

posed by such litigation to the core values protected

by the standing doctrine. As the Court recently ob-

served, “the law of Art. III standing is built on a

single basic idea—the idea of separation of powers.”

Allen, 468 U.S. at 752. The “exercise of the judicial

power * * * affects relationships between the coequal

arms of the National Government.” Valley Forge,

454 U.S. at 473. For that reason, in applying the

standing doctrine, a federal court should be guided

by “the Art. III notion that federal courts may ex-

ercise power only ‘in the last resort, and as a neces-

sity,’ * * * and only when adjudication is ‘consistent

with a system of separated powers.’” Allen, 468

U.S. at 752 (citations omitted).

In cases where the plaintiff is the direct target of

challenged governmental action, the need for the ex-

ercise of judicial power is clear, and, under Marbury

v. Madison, 5 U.S. (1 Cranch) 137 (1803), its exer-

cise is fully “consistent with a system of separated

powers.” In public law cases, by contrast, the in-

direct (and often undifferentiated) nature of the

asserted injury draws into question the necessity for

resolution of the dispute by judicial rather than “po-

litical process.” United States v. Richardson, 418

U.S. 166, 179 (1974). And where, as here, the plain-

tiff also challenges hundreds of governmental deci-

16

sions that are not causally related to its asserted

injury and seeks relief that would require pervasive

judicial supervision of the Executive’s performance

of its constitutionally-assigned functions, the exercise

of judicial power impairs—unnecessarily—the struc-

tural values underlying the standing requirement.

As demonstrated below, the court of appeals’ de-

cision is at odds with these basic principles and coun-

tenances an impermissible encroachment on the au-

thority of the Secretary of the Interior to make land

use decisions throughout the country.

B. This case plainly falls in the public law cate-

gory. Asserting its aesthetic and recreational inter-

ests, respondent challenges more than 1,250 BLM

land status changes relating to public lands compris-

ing one-thirteenth of the continental United States.

In addition to a declaration that BLM acted unlaw-

fully in connection with all of its classification and

withdrawal determinations, respondent seeks an in-

junction prohibiting the responsible federal officials

from “taking any action” inconsistent with land

status designations in effect nine years ago, ordering

those officials to reinstate the 9-year old designations

and to “rescind all directives, instructional memo-

randa, manuals, or other documents providing infor-

mation or guidance on the termination of land classi-

fications or land withdrawals.” Amended Complaint

at 16,17. The relief sought by respondent would ap-

point the federal courts “as de facto Secretary of the

Interior over 180 million acres—nearly one-fourth of

all federal lands and more than half of the public

lands managed by the Bureau of Land Management.”

Pet. App. 85a (Williams, J., concurring and dissent-

ing).

17

The sweeping nature of respondent’s challenge to

BLM’s administration of public lands called for a

rigorous application of the standing doctrine. The

district court observed that respondent’s affidavit sub-

missions (even if they had been sufficient to establish

use of specific parcels affected by a BLM land use

decision) did “not provide any basis for standing to

challenge * * * the legality of each of the 1250 or so

individual classification terminations and withdrawal

revocations.” Pet. App. 36a. The court of appeals’

contrary ruling (id. at 16a n.12), which permits

respondent—on the basis of an affidavit that at best

alleges impaired use of 4,500 acres in Wyoming—to

challenge hundreds of other land use decisions in 17

states, clashes with settled limitations on standing in

public law actions.

1. Sierra Club held that an environmental group

such as respondent has no standing to challenge gov-

ernmental action relating to a particular area unless

it demonstrates that one of its members uses the area

affected by the challenged agency action. Thus, even

if respondent had shown that one of its members uses

a parcel of land and therefore has standing to chal-

lenge the legality of a land use decision relating to

that parcel, respondent has no standing to challenge

the hundreds of BLM land status decisions from

which it has suffered no injury.

The court of appeals nonetheless concluded that the

“applicable law governing standing requires that [re-

spondent] be injured by only one” (Pet. App. 16a

n.12 (emphasis in original)) of those decisions to

secure standing to challenge the rest. Pet. App. 18a

n.13. The court relied on this Court’s observation in

Sierra Club, 405 U.S. at 740 n.15, that the “test of

18 —

injury in fact goes only to the question of standing to

obtain judicial review” and, having established stand-

ing, “the party may assert the interests of the gen-

eral public in support of his claims for equitable

relief.” The quoted language, however, stands simply

for the proposition that once a plaintiff establishes that

he has standing to challenge the legality of specific

agency action, he may then assert “the public in-

terest” in support of that challenge. Nothing in

Sierra Club even remotely suggests that standing to

challenge one agency decision confers upon a plain-

tiff an unrestricted license to challenge other agency

actions in which he has no personal stake.’

Beyond this, the court of appeals’ belief that an

organization that has standing to challenge one agency

decision may also challenge any other agency action

that may be vulnerable to attack on the same legal

theory (see Pet. App. 55a-56a) cannot be reconciled

with the settled principle that “a federal court * * *

is not the proper forum to press general complaints

about the way in which government goes about its

business.” Allen, 468 U.S. 760 (quotation omitted).

As to all of the BLM land use decisions challenged

by its complaint that have caused no harm to its

members, respondent’s status is indistinguishable

7 Equally misplaced is the court’s reliance (Pet. App. 16a

n.12) on UAW v. Brock, 477 U.S. 274 (1986), and Warth,

supra. The portions of those opinions to which the court of

appeals referred recite merely the uncontroversial proposition

that an organization need establish that only one of its mem-

bers has suffered injury in fact from the challenged action in

order to have standing itself. See 477 U.S. at 282-86; 422

U.S. at 511. Neither case suggests that the organization may

then challenge other agency actions that have caused no in-

jury to its members.

19

from that of other concerned citizens who have sought

“to employ a federal court as a forum in which to

air . . generalized grievances about the conduct of

government.’” Valley Forge, 454 U.S. at 483 (cita-

tion omitted). The Court has consistently rebuffed

those efforts. Id. at 482-83; Schlesinger v. Reservists

Committee to Stop the War, 418 U.S. 208 (1974);

Richardson, supra.

In sum, respondent cannot be permitted to use an

alleged aesthetic injury from a single land use deci-

sion as a pretext for an assault on all federal land use

decisions throughout the Nation “without draining”

the “requirements [of Article III] of meaning.” Val-

ley Forge, 454 U.S. at 482-83. The court of appeals’

decision clearly reduces the citizen standing rule to a

meaningless and easily evaded technicality.

2. Respondent’s complaint charges that the more

than 1,250 classification terminations and withdrawal

revocations that it seeks to enjoin are part of a

“program” to eliminate “protective” restrictions on

public lands. Amended Complaint / 1. 6. In its

earlier panel opinion, the court of appeals erroneously

relied on this characterization to justify relieving re-

spondent of its obligation to establish the requisite

personal stake in any land use decision that it seeks to

enjoin. See Pet. App. 55a.

To begin with, respondent’s rhetoric cannot alter

the fact that it is challenging hundreds of separate

land use decisions over the course of several years.

See Pet. 5 (explaining the process by which the dis-

tinct land use decisions were reached). There was

no single agency action—“program”—lifting the pro-

tected status of public lands throughout the nation.

Many of the classification terminations and with-

drawal] revocations initiated by BLM pursuant to

20

FLPMA do not open additional lands to the staking

of mining claims or any other activity that bears any

conceivable relation to the aesthetic interest that re-

spondent purports to espouse through this litigation.

See Pet. App. 100a-10la (Williams, J., concurring

and dissenting). Indeed, among the land use de-

cisions challenged by respondent’s complaint were

changes that “all viewed as environmentally bene-

ficial.” Pet. 8.

Thus, respondent’s “program” shetoric amounts to

nothing more than a contention that the federal

officials to whom Congress delegated the authority

to make land use decisions—see, e.g., 43 U.S.C.

$1714(a) (“the Secretary is authorized to make,

modify, extend, or revoke withdrawals” )—exercised

that responsibility in accordance with the prevailing

policy preferences in the Executive Branch. How-

ever, “an agency to which Congress has delegated

policymaking responsibilities may, within the limits

of the delegation, properly rely upon the incumbent

administration’s views of wise policy to inform its

judgments.” Chevron U.S.A. Inc. v. Natural Re-

sources Defense Council, Inc., 467 U.S. 837, 865

(1984).

Moreover, the alleged programmatic goals of fed-

eral land administrators could, at most, be described

as a “general statement of policy” not subject to

challenge under the APA because they would “not

establish a ‘binding norm’” or be “finally determi-

native of the issues or rights to which [they are]

addressed.” Pacific Gas & Elec. Co. v. FPC, 506

F.2d 33, 38 (D.C. Cir. 1974) (footnote omitted).

Only the actual classification terminations and with-

drawal revocations constitute agency action review-

able under the APA, and respondent may not circum-

21

vent the Article III injury requirement by framing

its complaint as a challenge to the purported policy

preferences of the petitioners.

More fundamentally, respondent’s sweeping chal-

lenge to the alleged BLM “program” runs afoul of the

separation of powers principles on which the standing

requirement is based. To conclude that respondent

has been injured by policy preferences of federal

land managers “would pave the way generally for

suits challenging, not specifically identifiable Govern-

ment violations of law, but the particular programs

agencies establish to carry out their legal obligations.

Such suits, even when premised on allegations of sev-

eral instances of violations of law, are rarely if ever

appropriate for federal-court adjudication.” Allen,

468 U.S. at 759-760.

Beyond this, strict adherence to standing limitations

is “especially important” in cases where, as here, “the

relief sought produces a confrontation with one of

the coordinate branches of the Government.” Schles-

inger, 418 U.S. at 222. The relief sought by respond-

ent would constitute “ ‘the federal courts as virtually

continuing monitors of the wisdom and soundness of

Executive action.’” Allen, 468 U.S. at 760 (quoting

Laird v. Tatum, 408 U.S. 1, 15 (1972)). Respondent

seeks to halt and reverse all classification termina-

tions and withdrawal revocations throughout the Na-

tion, and to rescind all internal directives and memo-

randa relating to such land use decisions. Here, as

in Allen, recognition of respondent’s standing “to seek

a restructuring” of the program allegedly “estab-

lished by the Executive Branch to fulfill its legal

duties“ would run] ] afoul of [the] structural

principle” that the “Constitution, after all, assigns

1

to the Executive Branch, and not to the Judicial

Branch, the duty to take Care that the Laws be

faithfully executed.“ Allen, 468 U.S. at 761 (cita-

tion omitted).

3. Finally, standing doctrine “reflects a due re-

gard” for those persons most affected by govern-

mental action and seeks to prevent the disruption of

mutually-advantageous arrangements by ‘bystand-

ers.“ Valley Forge, 454 U.S. at 473 (citation

omitted). Respondent’s efforts to rescind all classi-

fication terminations and withdrawal revocations

throughout seventeen states clashes with this salutary

principle.

As demonstrated by the number of amici support-

ing petitioners, those persons with a direct interest

in the lands that respondent’s members do not use

have clearly found the BLM land status changes ad-

vantageous. The interests of Farm Bureau members

alone (see note 5, supra) attest to this fact.

Nor can the court of appeals’ decision be justified

on the theory that recognition of respondents’ stand-

ing to challenge all land use decisions is necessary to

ensure that those decisions were formulated in ac-

cordance with procedural requirements. Those in fact

harmed by any land status change may seek redress.

And it is not the mission of the federal courts to en-

sure that harmless decisions are made in strict com-

pliance with abstract legal standards. Rather, “fed-

eral courts may exercise power only ‘in the last re-

sort, and as a necessity.’” Allen, 468 U.S. at 752

(citation omitted).

CONCLUSION

The judgment of the court of appeals should be

reversed.

Respectfully submitted.

JOHN J. RADEMACHER

General Counsel

American Farm Bureau

Federation

225 Touhy Avenue

Park Ridge, Illinois 60068

(312) 399-5732

March 2, 1990

KATHRYN A. OBERLY

Counsel of Record

JOHN E. MUENCH

KERRY EDWARDS CORMIER

JEFFREY M. WINTNER

Mayer, Brown & Platt

2000 Pennsylvania Ave., N.W.

Washington, D.C. 20006

(202) 7780611

Counsel for Amici Curiae