Amicus Curiae Brief — Mountain States Legal Foundation v. National Wildlife Federation

iin”

No. 89-628 ~ Supreme Court, U.S.

No. 89-640 ~ FILED

In THE DEC 7 7989

Supreme Court of the United Shated "CuK

OcTOBER TERM, 1989

No. 89-628

MOUNTAIN STATES LEGAL FOUNDATION, ET AL.,

Petitioners,

US.

NATIONAL WILDLIFE FEDERATION,

Respondent.

AND

No. 89-640

MANUEL LUJAN, JR., SECRETARY OF THE INTERIOR, ET AL.,

Petitioners,

US.

NATIONAL WILDLIFE FEDERATION,

Respondent.

UNITED STATES COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA CIRCUIT

BRIEF AMICUS CURIAE OF

AMERICAN MiNING CONGRESS

JERRY L. HAGGARD

Counsel of Record

GERRIE APKER KURTZ

APKER, APKER, HAGGARD & KURTZ, PC

2111 East Highland Ave., Suite 230

Phoenix, Arizona 85016

Telephone (602) 381-0085

EDWARD M. GREEN

Chief Counsel

American Mining Congress

Attorneys for Amicus Curiae,

American Mining Congress

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES CITED.............. il

eS Ue Seay aes eka A aKee Ks 1

INTEREST OF AMICUS CURIAE .............. 4

SUMMARY OF ARGUMENT .................. 5

Po, ARIE re or re ree ee Sere ee 6

A. NWF'S SUIT SHOULD BE DISMISSED

AS NOT JUSTICIABLE BECAUSE IT

ASKS THE COURT TO IGNORE THE

SEPARATION OF POWERS

oo er eee ere ee 6

B. NWF’S SUIT FAILS UNDER THE

MOST LIBERAL OF STANDING

NE 6046555 5b She PEST ONT h ae ads 8 13

of eee TE TEP TE CT eT eR E CT Tere 16

Amicus Curiae adopts the Appendix filed by the Fed-

eral Petitioners in Docket 89-640. References to pages in

that Appendix shall be stated as “App.” followed by the page

number(s).

il

TABLE OF AUTHORITIES CITED

Cases Page

Allen v. Wright, 468 U.S. 737 (1984)........... 7, 8

Chevron U.S.A. v. Natural Res. Def. Council,

QT Ue Te Ce a kc anne ea eee eee 10

Defenders of Wiidlife, Friends of Animals v.

Hodel, 851 F.2d £035 (8th Cir. 1988) ......... 6

National Wildlife Federation v. Burford, 676 F.

Sue. Bik CERAM RO. 6 ccc cawucnanscees 2,4

National Wildlife Federation v. Burford, 676 F.

ae. Biew CURE Des cbc ch vecndoeeesus 2

National Wildlife Federation v. Burford, 699 F.

sage. Gar (AERC. BRB). wc osc cdcheuns aes 3

National Wildlife Federation v. Burford, 835 F.2d

Se TEAR. Sa SE) Ae cw ace caneseekue 2, 3, 10, 11, 12

National Wildlife Federation v. Burford, 844 F.2d

ee CEs. SG Be ok ne wc aes eee 3,13

National Wildlife Federation v. Burford, 878 F.2d

Se CE. Se Te on cn xn once neee eee 3, 4, 5, 7, 13

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

Gre GER. GR Ts ks ns vasa ee eee 13

United States v. Students Challenging Regula-

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

GO CAPE 6k ohh o4e 2 o a ee eee 6, 11

Warth v. Seldin, 422 U.S. 490 (1975)........... 13

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

COE. Deeds on dks akeeeneelae eee 14

Constitution, Statutes, Regulations and Rules:

United States Constitution:

MOI TE iy ks kek ok do dae bee eee

Clean Air Act, 42 U.S.C. 7607(d)..............

Clean Water Act, 33 U.S.C. 13865..............

ili

Page

Federal Land Policy and Management Act of

1976,

DR UMNO EID 5 snc bccccesnccsnncees

ee a din bh ees bh aoa e

Mining and Minerals Policy Act of 1970,

SR ga ra 4

National Critical Materials Act of 1984,

ce es ck cca ws eess cee ws 4

National Materials and Minerals Policy,

Research and Development Act of 1980,

conse ceca ddnncss sews 4

Other References:

Alpert, Peter, Citizen Suits Under The Clean Air

Act: Universal Standing For The Uninjured

Private Attorney General?, 16 Boston College

Environmental Affairs L. Rev. 283

ts as Wag awa w 4a ce 0 4 8 6 60 8's 9, 11

Coyle, Kevin, Standing of Third Parties to Chal-

lenge Administrative Agency Actions, 76 Cal.

a 7

Public Land Law Review Commission, One

Third of the Nation’s Land (1970) ........... 4,5

Rabkin, Jeremy, Judicial Compulsions: How

Public Law Distorts Public Policy, (1989) ..... 10, 11

Scalia, Anthony, The Doctrine of Standing as an

Essential Element of the Separation of Powers,

17 Suffolk U. L. Rev. 881 (1983)............. 9

No. 89-628

No. 89-640

In THE

Supreme Court of the United States

OCTOBER TERM, 1989

No. 89-628

MOUNTAIN STATES LEGAL FOUNDATION, ET AL.,

Petitioners,

US.

NATIONAL WILDLIFE FEDERATION,

Respondent.

AND

No. 89-640

MANUEL LUJAN, JR., SECRETARY OF THE INTERIOR, ET AL.,

Petitioners,

US.

NATIONAL WILDLIFE FEDERATION,

Respondent.

ON PETITIONS FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA CIRCUIT

BRIEF AMICUS CURIAE OF

AMERICAN MINING CONGRESS

INTRODUCTION

On July 15, 1985, the National Wildlife Federation

(‘NWF’) filed a suit against the United States Department

of the Interior complaining that the Bureau of Land Man-

agement (“BLM”) was improperly terminating a multitude

2

of land classification and withdrawal orders on lands ad-

ministered by the BLM, and claiming that the termination

of these orders would result in disposal or development of

vast acreages of public lands. NWF asked for immediate

injunctive relief to (1) freeze land classifications and with-

drawals as of their status on January 1, 1981 (some four

and one-half years earlier) and (2) enjoin the BLM from

taking actions inconsistent with the then existing classifi-

cations and withdrawals. In essence, NWF seeks to reorder

an entire government program. !

Battlelines were drawn immediately around the

standing issue. In support of its standing to bring the suit,

NWF submitted only the thinnest of evidence and, on the

basis of this, sought to prohibit uses on more than

180,000,000 acres of federal public lands. The District Court

initially upheld the evidence of standing as sufficient to

survive a motion to dismiss and granted the preliminary

injunction.

On appeal, the Court of Appeals, in a split decision,

upheld the District Court’s finding that enough had been

alleged by NWF as to its standing to survive the motion to

dismiss (Burford I at 312-314; App. 48a—57a)* and that the

| National Wildlife Federation v. Burford, 676 F. Supp. 271 (D.D.C

1985) (App. 119a—136a). See also National Wildlife Federation v. Burford,

676 F. Supp. 280 (D.D.C. 1986) (App. 137a—150a).

2 National Wildlife Federation v. Burford, 676 F. Supp. 271, supra,

at 277 and 279 (App. 130a and 136a).

3 “Burford I”, the first opinion of the Court of Appeals in this case,

is reported as National Wildlife Federation v. Burford, 835 F.2d 305 (D.C

Cir. 1987) (App. 38a—115a). A vigorous dissent by Circuit Judge Williams

in Burford I criticized the granting of the preliminary injunction on the

weak proofs offered in support of standing:

The majority today upholds a district judge's self-

appointment 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

3

District Court did not abuse its discretion in granting the

preliminary injunction (Burford I at 327; App. 84a—85a).‘

Later, the District Court undertook consideration of the case

on cross-motions for summary judgment and granted judg-

ment against NWF on the basis of lack of standing.® The

Court of Appeals reversed this judgment on the grounds

that it had already found sufficient standing in Burford I

and that was now the law of the case. (Burford II at 432—433;

App. 18a—20a).® It is from Burford II that the present Pe-

titions for Writ of Certiorari were filed.

of Land Management (“BLM”). It does so without a showing

that the BLM breached any legal requirement as to a single

parcel of land. Even assuming such a breach, the record is

barren of any hint that it was material or likely to harm

plaintiffs’ interests — much less irreparably. Unable to

sanction such a judicial usurpation of power, | dissent.

835 F.2d at 327 (App. 85a).

* The Court of Appeals denied the motion for rehearing urged

after its Burford I decision in National Wildlife Federation v. Burford,

844 F.2d 889 (D.C. Cir. 1988). There the Court of Appeals noted (at page

889; App. 117a—118a; emphasis added):

It has been over two years since the preliminary injunction

was issued. As we stated in our opinion, “[t)his is a serious

case with serious implications.” 835 F.2d at 327. We noted

then, and continue to believe, that some of the criticisms of

the breadth and scope of the preliminary injunction offered

in the vigorous dissent are not without force. Jn addition,

we are aware that the district court injunction has placed on

“hold” for over two years a complex governmental effort to

review and adjust its classifications of vast tracts of land. It

is also beyond dispute that countless parties are affected by

the uncertainties associated with the unsettled status of these

lands. For these reasons, we believe that the disposition of

these miilions of acres should not continue to rest any longer

than necessary on the foundation of a preliminary injunc-

tion which was entered on consideration cf the brief affi-

davits and cursory materials presented to the court below

5 National Wildlife Federation v. Burford, 699 F. Supp. 327 (D.D.C

1988) (App. 26a—37a).

6 “Burford II,” the Court of Appeals opinion of which review is

4

Amicus Curiae American Mining Congress, with the

permission of all parties in both petition dockets, files this

Brief in support of both of those Petitions.

INTERESTS OF AMICUS CURIAE

The American Mining Congress is a non-profit cor-

poration of the State of Colorado, which serves as a trade

association composed of (1) producers of most of America’s

metals, coal, and industrial and agricultural minerals;

(2) manufacturers of mining and mineral processing ma-

chinery, equipment, and supplies; and (3) engineering and

consulting firms and financial institutions that serve the

mining industry.

Congress has repeatedly pronounced as a national

policy that the domestic mining industry is essential to the

country’s security and prosperity, 30 U.S.C. 21a, 1602-1605,

1801(a), and that the public lands should be managed in a

manner to implement that policy, 43 U.S.C. 1701(a)(12). It

appears to Amicus Curiae that NWF harbors a different

view, that mining activity on public lands is contrary to the

nation’s interests. That view certainly was the essence of

NWF’s demand for the prelimimary injunction.’

The 180,000,000 acres of land which is subject to this

suit constitutes more than one-half of all lands administered

by the BLM and forty-four percent of all lands owned by

the federal government in the western United States, ex-

cluding Hawaii and Alaska. Most of the known domestic

resources of metallic mierals, other than iron, are situated

in the West and there is a strong probability that the public

land areas of the West hold greater promise for future min-

eral discoveries than any other region. Public Land Law

sought by these Petitions, is reported as National Wildlife Federation v.

Burford, 878 F.2d 422 (D.C. Cir. 1989) (App. la—25a).

? See National Wildlife Federation v. Burford, 676 F. Supp. 271,

supra, at 279 (App. 135a).

5

Review Commission, One Third of the Nation's Land, 121,

122 (1970).

Already the mining industry's mineral exploration

activities in the western United States have been affected

by this case, just by virtue of the suit having been filed and

then by the issuance of the preliminary injunction. If NWF

ultimately prevails in imposing its views on the BLM, the

public lands available for mineral supply will be reduced

drastically. The mining industry (and the resulting benefits

to the prosperity and security of the nation) is largely de-

pendent upon public land mineral resources. Thus, Amicus

Curiae is keenly interested in the outcome of this case.

SUMMARY OF ARGUMENT

The Court should grant certiorari }ecause the Bur-

ford II opinion of the Court of Appeals, in upholding NWF's

claim of standing, ignores the constitutional limits on the

role of the federal judiciary. The essence of this dispute is

whether NWF should be permitted to use the federal courts

to mold the national policy to reflect NWF'’s privately held

opinion that all of the public lands which are subject to this

suit shou!d be protected from mining. This is a political

question for Congress to decide, not a “case or controversy’

for the courts to decide. If NWF wishes to proceed with its

quest, it should do so by bringing its “argument to Congress

and the executive branch of the government. Accordingly,

Amicus Curiae respectfully submits, this suit is barred by

considerations more fundamental than the issue of stand-

ing. If this Court agrees that NWF is asking the courts to

intrude on the representative branches of government, then

it is not necessary to reach the question of whether NWF

“lined up enough ducks” on the standing issue.

Furthermore, this Court will find, as is pointed out

in the briefs filed by the Petitioners, that the standing show-

ings offered by NWF are defective under even the most

liberal cases.

6

And, finally, to resolve the concerns of NWF, the Dis-

trict Court will be forced to review and administer an entire

governmental program rather than to carry out a proper

function of the courts: determining the propriety of a par-

ticular federal agency action. NWF’s goal in forcing the

program review is to impose on the country its narrow view

of the public good. The very fact that this suit was filed has

disrupted the BLM’s conduct of its business, as well as the

business of third parties, such as those in the mining in-

dustry, which cannot operate without stability in the gov-

ernment’s programs and policies concerning public lands.

Review of federal agency programs is not the proper use of

the federal judiciary.

ARGUMENT

A. NWF’s Suit Should be Dismissed as Not

Justiciable Because it Asks the Court to Ignore

the Separation of Powers Doctrine.

No matter what is thought of NWF’s claims to have

satisfied the required showings for standing and no matter

what is thought of the minimal requirements to establish

standing under cases like United States v. Students Chal-

lenging Regulatory Agency Procedures (SCRAP), 412 U.S.

669 (1973), and Defenders of Wildlife, Friends of Animals

v. Hodel, 851 F.2d 1035 (8th Cir. 1988), this case is outside

of the universe of cases that may properly be undertaken

by the federal courts. This case involves an entire govern-

mental program. Congress established that program in

1976 by requiring the Secretary of the Interior to review

the withdrawals of the public lands at question in this case

to determine which withdrawals should be continued or

revoked, and authorized the Secretary to terminate those

administratively created withdrawals which are no longer

needed. Congress placed the deadline for the completion of

this withdrawal review program at October 22, 1991.

43 U.S.C. 1714()).

ba na

7

This withdrawal review program is a political matter,

not a justiciable question. The separation of powers doctrine

requires the federal courts to limit their authority to jus-

ticiable questions and keep out of the political aspects of

government.® Allen v. Wright, 468 U.S. 737 (1984).

It is submitted that the separation of powers doctrine

is not a standing concept.’ Standing focuses on whether the

particular plaintiff properly brings a case within the judi-

cial limits of Article III. The separation of powers doctrine,

though also rooted in Article III, focuses on the justiciability

of the issue. If, in order to satisfy the plaintiff, the federal

court must encroach upon the realm of the legislative and/

or executive branches of the government, then the sepa-

ration of powers doctrine bars the suit. Allen v. Wright,

supra, at 759. Whether it is labelled a question of standing

or not, the essential and underlying inquiry is, under our

system of the separation of powers, should the courts un-

dertake the case.

In Allen v. Wright, supra, 759-60, this Court stated:

The idea of separation of powers that underlies

standing doctrine explains why our cases pre-

clude the conclusion that the respondents’ al-

leged injury “fairly can be traced to the chal-

lenged action”... . That conclusion would pave

the way generally for suits challenging, not

specifically identifiable Government viola-

tions of the law, but the particular programs

agencies establish to carry out their legal ob-

ligations. Such suits, even when premised on

allegations of several instances of violations of

8 This issue was raised before the Court of Appeals, but is not

squarely addressed in the Burford II decision.

9 An analysis of this principle is provided in Coyle, Standing of

Third Parties to Challenge Administrative Agency Actions, 76 Cal. L.

Rev. 1061, 1091-1093 (1988

8

the law, are rarely if ever appropriate for

federal-court adjudication.

(Emphasis added.)

The very situation this Court in Allen warned

against is the situation in this case. NWF has not com-

plained of a specific violation of law which has in fact

harmed one of its members. Instead, though complaining

that there are general violations of the law, NWF in reality

wants to halt an entire governmental program.

In language which is verbatim applicable to this case,

this Court in Allen said:

When transported into the Art III context, [the

principle that government be granted the wid-

est latitude in the dispatch of its own internal

affairs], grounded as it is in the idea of sepa-

ration of powers, counsels against recognizing

standing in a case brought, not to enforce spe-

cific legal obligations whose violation works a

direct harm, but to seek a restructuring of the

apparatus established by the Executive

Branch to fulfill its legal duties. The Consti-

tution, after all, assigns to the Executive

Branch, and not to the Judicial Branch, the

duty to “take Care that the laws be faithfully

executed.” U.S. Const., Art. II, § 3. We could

not recognize respondents’ standing in this case

without running afoul of that structural

principle.

468 U.S. at 761; emphasis added.

The intrusion upon the separation of powers has been

extended further by Congress itself broadening the role of

the judiciary by attempting to grant universal standing in

a

9

some environmental legislation, such as in the Clean Air

Act, 42 U.S.C. 7607(d), and in the Clean Water Act, 33

U.S.C. 1365. The following observations have been made

about Congress purporting to grant standing beyond the

bounds of the Constitution:

Justice Scalia believes that standing is ulti-

mately related to separation of powers con-

cerns. The power of the Congress to expand

standing is, therefore, inescapably limited. In

Scalia’s view, congressional approval, express

or implied, to expanding standing “cannot val-

idate judicial disregard” for the boundaries

that exist between branches of government.

** *

A universal grant of standing, even

_ though an “acquiescence” of Congress to judi-

cial intervention, forces courts to hear the

claims of the majority because plaintiffs need

not allege palpable injuries that set them-

selves apart from the general public. ... The

democratic process that inheres in the execu-

tive and legislative branches, and not the

undemocratic process that inheres in the

courts, should resolve and protect the interests

_ of “all-inclusive” classes of citizens.!°

In this case, NWF is not suing on the basis of legislation

where Congress made a universal grant of standing. It

should be readily apparent, therefore, that if special interest

10 Alpert, Citizen Suits Under the Clean Air Act: Universal Stand-

ing For The Uninjured Private Attorney General?, 16 Boston College

Environmental Affairs L. Rev. 283, 304-305 (1988-19839); footnotes omit-

ted; referring to Justice Scalia’s The Doctrine of Standing as an Essential

Element of the Separation of Powers, 17 Suffolk U. L. Rev. 881 (1983).

10

groups should not be allowed to distort the judiciary’s role

even where Congress has “authorized” it by granting uni-

versal standing, then special interest groups should cer-

tainly not be allowed to do so by cases such as this one

without congressional encouragement.

More harm is done by allowing actions such as NWF’s

suit than simply an injudicious stepping on the toes of other

branches of government. It has been observed that when

special interest groups, such as NWF, succeed in convincing

a court to undertake review of a governmental program,

they obtain an inappropriate advantage in terms of greater

clout and more attention than is warranted vis-a-vis all the

other interests which should be considered in the formu-

lation of public policy.!! This is because special interest

advocates are not primarily concerned with presenting all

of the issues for the court to decide. Instead, they are pri-

marily concerned, like anyone else contemplating a lawsuit,

with presenting only the issues which will allow them to

prevail in the matter under dispute. The very fact the spe-

cial interest group has convinced the court to take the case

indicates that group’s notion of public policy has caught the

court's attention and, perhaps, the court has allowed itself

to become a vehicle or even a champion of the special inter-

est group’s view of public policy. (Jeremy Rabkin, Judicial

Compulsions: How Public Law Distorts Public Policy, pp.

63-64, (1989).)!2 Rabkin states that permitting the special

interest group lawsuits against administrative agencies is

“essentially a means by which courts grant particular pri-

vate advocates privileged claims on the conduct of public

policy.” Rabkin, supra, at 64.!°

11 The proper forum for special interest groups to demand atten-

tion for their agenda is through the more deliberate and democratic

legislature.

12 This Court has admonished the federal judiciary to refrain from

such judicial activism. Chevron U.S.A. v. Naturai Res. Def. Council, 467

U.S. 837 (1984).

13 In his dissent in Burford I, Circuit Judge Williams charged that

11

Further, Rabkin submits, when special interest

groups are able to intimidate administrative agencies with

threats of lawsuits, then the administrative agencies are

inordinately influenced in their policy decisions by the

promptings and complaints of these advocacy groups. And,

if lawsuits proceed, then the advocacy groups can invoke

legalistic rationales to protect their preferred policies from

reconsideration or adjustment over time. (Rabkin, at 63-64

and 270.)

Amicus Curiae submits that the concerns expressed

by Rabkin are very real. If NWF is successful in proceeding

with this case, then the ability of the BLM to make judg-

ments based on the many relevant policy considerations will

be limited, with undue attention being given to NWF’s view.

The national policy to manage public lands in a manner

which fosters the domestic mining industry is, thus,

thwarted.

The existence of cases in which claims such as NWF'’s

have been allowed to proceed without strict insistence on

meeting the constitutional and traditional requirements for

a “case or controversy’'4 does not force this Court or any

federal court to further extend that ill-advised practice to

the extent sought by NWF in this case.'© Special interest

undue influence for the environmentalists’ agenda was the very result

in this case:

The injunction ... makes no effort to minimize the aggre-

gate harm to the public interests in both environmental

preservation and alternative activities: the district court

has allowed environmental interests, however weak and

however trivially they may be at risk as to particular tracts,

to sweep the other interests off the board.

835 F.2d at 340 (App. 114a—-115a).

14 For example, the United States v. SCRAP case, supra.

15 Some legal commentators have observed that the courts are

taking a more critical look at standing cases. For example, see Alpert,

supra, at 305.

12

groups may still, and properly should, pursue their agenda

in the political realm of government.

This case exemplifies a third mischief that springs

from involving the courts in the administration of govern-

mental programs. Here, the already overburdened judiciary

is being asked to assume an enormous and time-consuming

task which, constitutionally, the judiciary should avoid. The

task NWF asked the District Court to undertake was awe-

some. NWF’s goal was not to challenge indentified

“wrongs,” but, rather, was to have the Court perform the

work of the BLM while wearing NWF-supplied blinders.

Instead of selecting one or even several BLM classification

or withdrawal decisions on land which it could precisely

locate and for which it might produce an injured member

who recreated on that land, NWF challenged the entire

withdrawal review program by including hundreds of Fed-

eral Register notices of BLM actions (NWF’s Amended Com-

plaint, paragraph 18) and neither precisely located them

for the Court (Burford I at 329 and 337; App. 89a—90a and

107a—108a), nor produced members who could claim injury.

As the case progressed, NWF was forced to concede that

some of the listed actions were environment enhancing even

in NWF'’s view. (Burford I at 337; App. 108a). And as pointed

out in the briefs filed by the Petitioners, the District Court

had monumental difficulties during the period the prelim-

inary injunction was in effect.!6

And there is a fourth mischief in these suits that is

particularly apparent in this case. Allowing an entire pro-

gram to be challenged reduces, if not nullifies, the ability

‘6 As noted at pages 7-8 of the Petition filed by the federal Peti-

tioners in Docket 89-640, several modifications of the preliminary

injunction were necessitated to limit its original scope. In at least one

instance, NWF itself was constrained to ask for relief. Congress, at the

behest of affected parties, legislated other limits on the effect of the

preliminary injunction.

13

of third parties to conduct their business with the govern-

ment. The mining industry is dependent on its statutory

right to explore for and produce minerals on public lands.

Until the industry knows reliabiy what will become of the

BLM’s classification and withdrawal review programs, the

mining industry cannot risk the huge monetary invest-

ments necessary to conduct mining activities. If, as Con-

gress has declared, the national policy favors an orderly

domestic mining program, then the mining industry must

be allowed to rely on governmental programs. (See the

statement of the Court of Appeals quoted at footnote 4,

supra, wherein that court recognized the disruption caused

to the ability of third parties to conduct business.)

B. NWF’s Suit Fails Under the Most Liberal of

Standing Cases.

Standing jurisprudence is a highly case-specific

endeavor, turning on the precise allegations of the parties

seeking relief. National Wildlife Federation v. Hodel, 839

F.2d 694, 703-704 (D.C. Cir. 1988). The courts have devel-

oped guidelines for the case-by-case testing of standing

issues. First, the suit must meet the “case or controversy”

requirement of Article III of the Constitution. Warth v. Sel-

din, 422 U.S. 490 (1975); NWF v. Hodel, supra. Second, the

suit must survive self-imposed “prudential limits” on the

courts’ powers. Warth, supra; NWF v. Hodel, supra.

Even though these same constitutional and pruden-

tial tests underlie virtually all the many federal court pro-

nouncements on standing, the pronounce ents are hard to

reconcile. But, Amicus Curiae suggests, there is no need in

this case to attempt to reconcile the “conservative” standing

cases with the “liberal” ones. The Petitioners have pointed

out in their briefs that NWF’s showing of standing failed

to meet even the most liberal of the standing decisions.

Amicus Curiae, however, wishes to bring to this

Court's attention that there is a case, also decided by the

14

District of Columbia Circuit, which is substantively irrec-

oncilable with the present case. See Wilderness Society v.

Griles, 824 F.2d 4 (D.C. Cir. 1987). That case involved a

challenge by the Wilderness Society and the Sierra Club to

a BLM policy decision not to charge submerged lands

against the grant of acreage entitlements for Alaska and

Alaskan natives. In fact. Griles was decided by some of the

same Circuit Judges who decided Burford II. In the Griles

case, however, it was held that affidavits of Society mem-

bers, in which it was claimed that the members visited

federal lands throughout the State of Alaska, were insuf-

ficient to support standing. The Court of Appeals reasoned

that members failed to name specific lands they intended

to visit which lands would be taken out of federal ownership

by the challenged BLM policy.

The very same flaw in standing proof defeats this

case. NWF’s member affidavits claimed nothing more spe-

cific than recreating “in the vicinity of” only some of the

enormous expanses of federal land affected by this suit.

They did not point to specific tracts which would be opened

to other users, thereby injuring the members’ enjoyment of

the environment undisturbed. This Court is often asked to

grant certiorari to resolve a conflict in decisions between

Circuits. Here, certiorari should be granted to resolve a

conflict within a Circuit.

Despite all the procedural entanglements and prob-

lems over what standard of review was to be applied at any

particular stage of this case, what happened here is rela-

tively simple: NWF tested the limits of a claim to standing.

The District Court found that NWF pushed too far. The

Court of Appeals, misled by a notion of law of the case,

reversed. Unfortunately, in addition to announcing that the

appeal was decided on the basis of law of the case, the Court

of Appeals, in a published opinion, made lengthy comments

to the effect that the Court would countenance standing

proofs even as thin as NWF’s. Even if these comments are

viewed as dicta, they will necessarily confuse the law of

standing. The wisdom of this Court is called upon to instruct

15

the Court of Appeals, and, indeed, all federal courts, that

the courts of this nation should not be in the business of

reviewing entire public programs, especially where the

activities claimed by the plaintiff's members are located no

more precisely than “in the vicinity” of a few of the huge

tracts of federal land they seek to preserve.

The vastness of the public lands requires that direc-

tion for their management be provided initially by broad

programs, such as the withdrawal review program, to be

implemented by individual actions on specific land areas.

If a party is injured by such a specific action, that party

may have standing to seek redress in the courts for that

action, but not for the entire program guiding other actions

which do not affect that party.

16

CONCLUSION

The Petitions for Writ of Certiorari should be

granted.

Respectfully submitted,

Jerry L. Haggard,

Counsel of Record

Gerrie Apker Kurtz

APKER, APKER, HAGGARD &

KURTZ, P.C.

2111 East Highland Ave., Suite 230

Phoenix, Arizona 85016

Edward M. Green, Chief Counsel

American Mining Congress

Attorneys for Amicus Curiae,

American Mining Congress

December 1989