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

No. 89-628 ~“ “y = ot

No. 89-640 5

WAR 1 OS

ee F. SPANIOL, JR.

IN THE

as

Supreme Court of the United States cr

OcTOBER TERM, 1989

No. 89-628

MOUNTAIN STATES LEGAL FOUNDATION, ET AL.,

Petitioners,

US.

NATIONAL WILDLIFE FOUNDATION,

Respondent.

AND

No. 89-640

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

Petitioners,

US.

NATIONAL WILDLIFE FEDERATION,

Respondent.

ON WRIT OF CERTIORARI TO THE

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

Petitions for Certiorari filed in No. 89-628 and No. 89-640 on

October 18, 1989. Petition granted in No. 89-640 on January “

16, 1990, and Petition pending in No. 89-628.

TABLE OF CONTENTS

Page

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

INTEREST OF AMICUS CURIAE .............. 2

INTRODUCTION AND PROCEDURAL

SE Pe es eo oe ea ie a aS eed oo

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

et ais ea ea ke ks ks

I. THE SEPARATION OF POWERS

DOCTRINE BARS NWF’S SUIT ......... 7

A. NWF’S SUIT DOES NOT PRESENT A

JUSTICIABLE CASE OR

ee, ee 7

B. NWF'S SUIT IMPERMISSIBLY SEEKS

REVIEW OF AN ENTIRE

GOVERNMENTAL PROGRAM ....... 14

Il. NWF FAILED TO ESTABLISH

a Re ee eee eee 16

A. NWF FAILED TO ALLEGE

RECOGNIZABLE INJURY AND USE

OF PARTICULAR LAND AFFECTED

oe 8 fay | rr 16

B. THE SCRAP DECISION DOES NOT

CONTROL IN THIS CASE ........... 18

C. THE PROGRAM CAUSES NO

UN ear esa eae h eee han ehh aed ox 19

D. THE STANDING REQUIREMENT

AND SHOWING OF INJURY ARE

NOT SATISFIED IN THIS THREE-

eg ee er a rr ae 20

il

Page

E. NONSPECIFIC ALLEGATIONS OF

INJURY IN TWO GEOGRAPHIC

AREAS CANNOT EXTEND

STANDING TO CHALLENGE THE

pAsgyl i By 8) 7 rere 22

COREA a a babe Siac crenata keane iaee 25

Amicus Curiae adopts the Appendix filed by the Fed-

eral Petitioners with their Petition for Writ of Certiorari

in Docket 89-640. References to pages in that Appendix

shall be stated as “App.” followed by the page number(s).

ili

TABLE OF AUTHORITIES CITED

Cases Page

Allen v. Wright, 468 U.S. 737 (1984)...... 8, 9, 14, 20, 21

Ashwander v. Tennessee Valley Authority, 297

ee are Ue ce ws) sie eas 14

Association of Data Processing Service Organiza-

tions, Inc., v. Camp, 397 U.S. 150 (1970)...... 15

Baltimore Gas & Electric Co. v. NRDC, 462 U.S.

eek Gk CNS ite b be kis so ves oe 16

Blum v. Yaretsky, 457 U.S. 991 (1982).......... 15

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

| ne 11-12

Defenders of Wildlife, Friends of Animals v.

Hodel, 851 F.2d 1035 (8th Cir. 1988)......... 14, 15

FCC v. WNCN Listeners Guild, 450 U.S. 582

ee Ly he Wise vw bus cbse aes 15

International Union, United Automobile, Aero-

space, and Agricultural Implement Workers of

America v. Brock, 477 U.S. 274 (1986) (“UAW

sg og SEL lS a 15, 23

Kleppe v. Sierra Club, 427 U.S. 390 (1976)...... 16

NAACP v. Secretary of Housing & Urban Dev.,

ee OE RT Se aR 7) 15

National Wildlife Federation v. Burford, 676 F.

i i OR) RS a 4

National Wildlife Federation v. Burford, 676 F.

SM, BO. os vce cece ewe ces 4

National Wildlife Federation v. Burford, 699 F.

Se Is BO wo oc cee Sa ee ase 5

National Wildlife Federation v. Burford,

835 F.2d 305 (D.C. Cir. 1987)

ee eka ek eevasean 4, 5, 6, 12, 13, 19

iv

Page

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

OR Gi, Ge BE ek we ccecseeesecccccceses 5

National Wildlife Federation v. Burford, 878

F.2d 422 (D.C. Cir. 1989)

ef og rrr yee 6, 8, 15, 21, 22, 23, 24, 25

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

Se eee. Ce SD un ache ncenecavadevnss 15

Oregon Environmental Council v. Kunzman, 817

Poe ee GE I PE ks vc ote sche deta canana 15, 16

Public Citizen v. U.S. Dept. of Justice,

U.S. ___ , 109 S. Ct. 2558, 105 L. Ed. 2d

iy Et PARR Re tena erg eet ay Aa 13

Sterra Club v. Adams, 578 F.2d 389 (D.C. Cir.

ON Cg Sa ea es bea ee ara oa We 24

Sierra Club v. Hickel, 433 F.2d 24 (9th Cir.

NS. ik 02s O2 oo oe BUR ee ea aed eabewteens 17

Sierra Club v. Morton, 405 U.S.

(the) RE ee re ee 16, 17, 20, 24

Simon v. Eastern Kentucky Welfare Rights Orga-

nization, 426 U.S. 26 (1976) ................ 19

United States v. Students Challenging Regula-

tory Agency Procedures (SCRAP), 412 US.

OEE ons 06 aw onda dees soi ee skeet 14, 16, 18, 22

Warth v. Seldin, 422 U.S. 490 (1975)........... 19, 23

Watt v. Energy Action Educational Foundation,

Ge Ws CE a ood voce wa wes eceseces 15

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

ee ER aces oy oh oe a ae eo ae nee 17, 18, 20, 21

Constitution, Statutes, Regulations, and Rules:

United States Constitution:

Es BEI Le cae ee Pope ee ne a ee s

Clean Air Act, 42 U.S.C. 7607(d).............. 10

Clean Water Act, 33 U.S.C. 1365..............

Federal Land Policy and Management Act of

PRR A Ge pt Pat) aA AAP

a ee

43 U.S.C.1732...........................

Mineral Lands Leasing Act

30 U.S.C. 201, 211, 226(a), 241(a), 261, 271,

| FOP PET eT EET PET T Cee ee ee ree

Mining and Minerals Policy Act of 1970,

a | ge ere ee errr rr

National Critical Materials Act of 1984,

SP Uh BD cs a wack eb ekecenckeces

National Environmental Policy Act of 1982,

CD Wes Ses OE ae one Secs epeieeay es

National Materials and Minerals Policy, Re-

search and Development Act of 1980,

Se A eo ea hee eee eee

Surface Management Regulations,

43 C.F.R. 3809.1-4, 3809.2..................

Other References:

Alpert, Peter, “Citizen Suits Under The Clean

Air Act: Universal Standing For The Unin-

jured Private Attorney General?”, 16 Boston

College Environmental Affairs L. Rev. 283

(SOD noe b seh ders e nase eee tae tra

American Law of Mining, Volume 5, Title XV;

Chapter 166 (2d ed. 1984)..................

vl

Coyle, Kevin, “Standing of Third Parties to

Challenge Administrative Agency Actions ,

76 Cal. L. Rev. 1061 (1968).............

H.R. Rep. No. 1163, 94th Cong., 2d Sess.

Ny hatte Pata

Public Land Law Review Commission, One

Third of The Nation's Land (1970).

Rabkin, Jeremy, Judicial Compulsions: Hou

Public Law Distorts Public Policy, (1989

Scalia, Antonin, “The Doctrine of Standing as

an Essential Element of the Separation of

Powers,” 17 Suffolk U. L. Rev. 881 (1983

Page

8

9

3

Li, 12

10

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 FOUNDATION,

Respondent.

No. 89-640

MANUEL LUJAN, JR., SECRETARY OF THE INTERIOR. 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 AMICUS CURIAE OF

AMERICAN MINING CONGRESS

2

INTEREST OF AMICUS CURIAE

American Mining Congress (a Colorado non-profit

corporation) is a trade association composed of (1) producers

of most of America’s metals, coal, and industrial and ag-

ricultural minerals; (2) manufacturers of mining and min-

eral processing machinery, equipment, and supplies; and

(3) engineering, consulting, and financial firms and insti-

tutions that serve the mining industry. Because of the wide-

ranging and negative impact of NWF'’s suit on the mining

industry, the American Mining Congress is keenly inter-

ested in the outcome of this case. This Amicus Curiae sup-

ports Secretary of the Interior Manuel Lujan, Jr., Director

of the Bureau of Land Management Cy Jamison, the De-

partment of the Interior, and Mountain States Legal Foun-

dation in this case.

INTRODUCTION AND PROCEDURAL HISTORY

The Withdrawal Review Program (“the Program”)

was mandated by Congress in the Federal Land Policy and

Management Act of 1976 (“FLPMA”). FLPMA requires the

Secretary of the Interior, by October 21, 1991, to conduct

and complete a review of withdrawals! of public lands ad-

ministered by the Bureau of Land Management (“BLM”)

and authorizes the Secretary to terminate withdrawals

(other than those made by Congress). 43 U.S.C. 1714(1).

Congress noted that administrative restrictions on public

land use had increased and there had been a failure to

examine past withdrawal actions to determine their con-

tinuing value. H.R. Rep. No. 1153, 94th Cong., 2d Sess. at

19 (1976). Accordingly, Congress established the Program

to correct this problem of excess withdrawals.

! FLPMA defines a “withdrawal” as “withholding an area of fed-

eral land from settlement, sale, location, or entry, under some or all of

the general land laws, for the purpose of limiting activities under those

laws 43 U.S.C. 1702())

3

On July 15, 1985, National Wildlife Federation

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

of the Interior claiming that under the Program the BLM

was improperly terminating more than 788 land classifi-

cation and withdrawal orders on lands administered by the

BLM. NWF complained that the termination of these orders

could interfere with the enjoyment of the lands by NWF

members. NWF prayed for immediate injunctive relief to

(1) freeze land classifications and withdrawals as of their

status on January 1, 1981 (a date four and one-half years

prior to NWF’s filing of the suit) and (2) enjoin the BLM

from taking actions inconsistent with the classifications and

withdrawals existing in 1981. Then, with the injunction in

place, NWF would have the District Court require the BLM

to repeat a multiple series of iand planning studies and

prepare an environmental impact statement (“EIS”) on each

individual land classification termination and land with-

drawal revocation, an EIS on the cumulative effect of those

actions, and an EIS on the Program itself. The effect of the

relief sought by NWF would be to perpetuate indefinitely

the withdrawals and classifications and, simultaneously, ex-

clude virtually every land use, all contrary to Congress’

purpose in establishing the Program.

The 180,000,000 acres of public land on which this

NWF suit would exclude all resource development consti-

tute 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, excluding Ha-

waii and Alaska. Most of the known domestic resources of

metallic minerals, other than iron, are situated in the west-

ern United States and there is a strong probability that the

public land areas of the West hold greater promise for future

mineral discoveries than any other region. Public Land Law

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

122 (1970).

Congress has pronounced as a national policy that

the domestic mining industry is essential to the United

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

4

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

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

If NWF succeeds in freezing all economic uses on these vast

areas of public lands, the resource base for mineral supply

to this nation will be reduced drastically. Thus, the relief

NWF seeks in this suit would be absolutely contrary to

Congressional policy and to the nation’s interests.

In support of its claim to have standing to make this

challenge, and as evidence of the extent to which its mem-

bers use this public land, NWF submitted affidavits from

two members who claimed to recreate in the vicinity of

certain public lands subject to the Program. (App.

187a-192a.) On the basis of these two affidavits, NWF

would prohibit all but environmentalist uses on the

180,000,000 acres of federal public lands in question. The

District Court initially upheld the evidence of standing as

sufficient to survive a motion to dismiss and granted the

preliminary injunction.’

The Court of Appeals, in a split decision, found that

the District Court did not abuse its discretion in granting

the preliminary injunction, Burford 1, at 327 (App.

84a--85a)3, and upheld the District Court’s finding that

enough had been alleged by NWF as to its standing to sur-

vive the motion to dismiss. Burford J, at 311-314 (App.

48a—57a). Circuit Judge Williams, however, filed a vigorous

dissent criticizing the granting of the preliminary injunc-

tion on NWF’s slim proofs.* And, in a subsequent opinion

2 National Wildlife Federation v. Burford, 676 F.Supp. 271, 277,

279 (D.D.C. 1985) (App. 119a—136a, 130a and 136a). See also National

Wildlife Federation v. Burford, 676 F.Supp. 280 (D.D.C. 1986) (App.

137a--150a).

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).

4 In his dissent Circuit Judge Wiiliams stated:

5

denying motions for rehearing, the Court of Appeals ex-

pressed its concern about the serious ramifications of this

case and the fact that it had proceeded thus far on only

cursory showings presented by NWF. Subsequently, when

the District Court undertook more deliberate consideration

of the case on cross-motions for summary judgment, it

granted judgment against NWF on the basis of lack of stand-

ing,® specifically finding that the NWF member affidavits

were insufficient.

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 [BLM].

It does so without a showing that the BLM breached any

legal requirement as to a single parcel of land. Even as-

suming 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, I dissent.

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

° The Court of Appeals noted (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. In 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

ts 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 millions of acres should not continue to rest any longer

than necessary on the foundation of a preliminary injunc-

tion which was entered on consideration of the brief affi-

davits and cursory materials presented to the court below.

844 F.2d 889, at 889 (App. 117a-118a) (D.C. Cir. 1988).

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

1988) (App. 26a—37a).

6

The Court of Appeals reversed this judgment on the

ground that since it had found there was sufficient standing

in Burford I to survive a motion to dismiss, that finding

was the law of the case even on a motion for summary

judgment. Burford II, at 432-433 (App. 18a—20a).’? The

Court of Appeals further said that, in any event, the affi-

davit of NWF member Peggy K. Peterson alone was suffi-

cient to support standing. Burford II, at 431 n. 13 (App.

18a).

From the Burford II decision, Petitions for Writ of

Certiorari were filed by Mountain States Legal Foundation,

et al., in No. 89-628 and by Manuel Lujan, et al., in No.

89-640. The Petition in No. 89-640 was granted by this

Court on January 16, 1990. Amicus Curiae is informed that,

as of the writing of this brief, the Petition in No. 89-628

remains pending.

SUMMARY OF ARGUMENT

The Court should reverse Burford II because that

opinion 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 change

national policy and exclude mining and other resource uses

on the vast areas of the public lands which are subject to

this suit. This is a political question for Congress to decide,

not a ‘case or controversy” for the courts to decide. If NWF

wishes to reshape the national policy, it must do so through

the democratic legislative and executive branches of the

government and not through the judiciary. Accordingly,

NWF's suit 1s barred by considerations more fundamental

than standing. If this Court agrees that NWF is asking the

courts to intrude on the representative branches of govern-

ment, then it is not necessary to reach the question of

? “Burford II,” the Court of Appeals opinion here under review,

is reported as National Wildlife Federation v. Burford, 878 F.2d 422 (D.C.

Cir. 1989) (App. la—25a).

7

whether the NWF member affidavits concerning standing

were sufficient.

Further, in order to grant the relief sought by NWF,

the District Court will be forced to review and administer

an entire governmental program. Administration of federal

agency programs is neither practicably nor legally the

proper use of the federal judiciary. The vastness of the public

lands requires that direction for their management be pro-

vided initially by broad programs, such as the Withdrawal

Review Program, to be implemented by individual actions

on specific land areas. If a person is injured by such a specific

action, that person 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 person.

Finally, this Court should find that the standing evi-

dence offered by NWF is defective under even the most

liberal standing cases. First, the allegations of injury by

NWFE are fatally flawed for failing to identify with partic-

ularity any lands they use which are included in the Pro-

grain, the specific other uses of those lands which would

injure the NWF members, or the lands which would be

damaged by those other uses. Second, the injury alleged by

NWF does not support standing for the over-reaching and

premature relief requested.

ARGUMENT

I. THE SEPARATION OF POWERS DOCTRINE

BARS NWF’S SUIT.

A. NWF’s Suit Does Not Present A Justiciable

Case or Controversy.

NWF's suit essentially seeks to have the judiciary

run the BLM Withdrawal Review Program in accordance

with NWF’s view of what public land policy should be. But,

it is the BLM which is charged with managing the public

lands under the principles of multiple use and which is

8

bound to make its decisions concerning public land after

considering the competing interests, as guided by the pol-

icies set forth in FLPMA and other national policies estab-

lished by Congress. 43 U.S.C. 1701, 1732. The administra-

tion of the Withdrawal Review Program by the BLM is a

political matter determined and delegated by Congress, not

a justiciable question. The separation of powers doctrine

requires the federal courts to limit their authority to jus-

ticiable questions and to refrain from the political aspects

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

Amicus Curiae submits that the separation of powers

doctrine is a concept even more fundamental than standing.

Standing focuses on whether the particular plaintiff prop-

erly brings a case within the judicial limits of Article III of

the United States Constitution. 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 realin of the leg-

islative or executive branch of the government, then the

separation of powers doctrine bars the suit. Allen, above,

at 759-760. Thus, the thresheld inquiry is whether, under

our tripartite system of government, federal courts should

undertake the case.

In Allen, at 759-760 (emphasis added), 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

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).

9

pave the way generally for suits challenging,

not specifically identifiable Government vio-

lations of 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

law, are rarely if ever appropriate for federal-

court adjudication.

The very problem this Court warned against in Allen

is the situation in this case. NWF has not complained of a

specific violation of law which has in fact harmed any of its

members. Instead, though complaining that there are gen-

eral violations of the law, NWF in reality challenges the

entire program the BLM has established to carry out the

congressionally mandated reviews of public land withdraw-

als. This Court stated that it is inappropriate to use the

judiciary to restructure the programs established by the

executive branch:

When transported in 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.”’ US Const, Art II, § 3. We could not

recognize respondents’ standing in this case

without running afoul of that structural

principle.

Allen, at 761; emphasis added.!°

10 To be sure, Congress itself is guilty of intruding upon the sep-

10

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

suit than simply an injudicious intrusion upon the proper

functions of other branches of government. When special

interest groups, such as NWF, succeed in convincing a court

to undertake review of a governmental program, they ob-

tain 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 formulation of

public policy.'!! Like all advocates, special interest groups

are not concerned with presenting to a court all relevant

considerations which should be involved in forming public

aration of powers by attempting to grant universal standing in 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. 13t5. On the subject of

these congressional intrusions it has been observed:

Justice Scalia believes that standing is ultimately related

to separation of powers concerns. The power of Congress to

expand standing is, therefore, inescapably limited. In Scal-

ia’s view, congressional approval, express or implied, to ex-

panding standing “cannot validate judicial disregard” for

the boundaries that exist between branches of government.

*s *

A universal grant of standing, even though an “ac-

quiescence” of Congress to judicial intervention, forces

courts to hear the claims of the majority because plaintiffs

need not allege palpable injuries that set themselves apart

from the general public. ... The democratic process that

inheres in the executive and legislative branches, and nct

the undemocratic process that inheres in the courts, should

resolve and protect the interests of “all-inclusive” classes of

citizens.

Alpert, “Citizen Suits Under the Clean Air Act: Universal Standing For

the Uninjured Private Attorney General?,” 16 Boston College Environ-

mental Affairs L. Rev. 283, 304-305 (1988-1989): footnotes omitted;

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).

It is important to note that here NWF is not suing on the basis of leg-

islation where Congress has attempted a universal grant of standing.

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

tion for their agenda is through the more deliberate and democratic

legislature.

11

policy. Instead, they focus primarily on presenting only the

issues which they hope will allow them to prevail in the

matter under dispute.’ The very fact that a special interest

group has convinced a court to take a case indicates that

group’s notion of public policy has caught the court's atten-

tion and, perhaps, the court has allowed itself to become a

vehicle or even a champion of the special interest group’s

view of public policy. This Court has admonished the federal

judiciary to refrain from such judicial activism. See Chevron

U.S.A. v. Natural Res. Def. Council, 467 U.S. 837, 865-866

(1984), wherein this Court stated:

Judges are not experts in the field, and are not

part of either political branch of the Govern-

ment. Courts must, in some cases, reconcile

competing political interests, but not on the

basis of the judges’ personal policy preferences.

In contrast, an agency to which Congress has

delegated policymaking responsibilities may,

within the limits of that delegation, properly

rely upon the incumbent administration's

views of wise policy to inform its judgments.

While agencies are not directly accountable to

the people, the Chief Executive is, and it is

entirely appropriate for this political branch

of the Government to make such policy choices

— resolving the competing interests which

Congress itself either inadvertently did not re-

solve, or intentionally left to be resolved by

the agency charged with the administration of

the statute in light of everyday realities.

When a challenge to an agency con-

struction of a statutory provision, fairly con-

ceptualized, really centers on the wisdom of

12 Rabkin, Jeremy, Judicial Compulsions: How Public Law Dis-

torts Public Policy, pp. 63-64, (1989

12

the agency’s policy, rather than whether it is

a reasonable choice within a gap left open by

Congress, the challenge must fail. In such a

case, federal judges — who have no constitu-

ency — havea duty to respect legitimate policy

choices made by those who do. The responsi-

bilities for assessing the wisdom of such policy

choices and resolving the struggle between

competing views of the public interest are not

judicial ones. ...

Permitting special interest groups to bring broad pol-

icy lawsuits against administrative agencies is “essentially

a means by which courts grant particular private advocates

privileged claims on the conduct of public policy.”!* In his

dissent in Burford I, Circuit Judge Williams charged that

undue influence for the environmentalists’ agenda was the

very result in this case:

The injunction . . . makes no effort to minimize

the aggregate harm to the public interests in

both environmental preservation and alter-

native 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).

Amicus Curiae submits that these concerns are very

real. If NWF succeeds in proceeding with this case, then

the ability of the BLM to make judgments based on the

many relevant policy considerations will be limited, with

undue attention being given to NWF's view. The congres-

sionally pronounced national policy that public lands should

13 Id., at 64.

13

be managed in a way which fosters domestic mining, thus,

will be thwarted. As noted in the concurring opinion of

Justice Kennedy, joined by Chief Justice Rehnquist and

Justice O'Connor, in Public Citizen v. U.S. Dept. of Justice,

___ U.S. ___., 109 S. Ct. 2558, 2573, 105 L. Ed. 2d 377

1989), maintaining the separation of powers is one of the

most vital functions of the Court. Special interest groups

still may, and properly should, pursue their political agen-

das in the political realm of government.

Another problem (which will be further discussed in

the next section of this argument) with cases such as NWF’s

is that the judiciary is asked to assume an enormous and

time-consuming task. Instead of selecting one or even sev-

eral BLM decisions resulting in some proposed activity on

land which it could precisely locate and for which it might

produce an injured member who actually used that land,

NWF attached to its Amended Complaint (paragraph 18) a

list of 788 BLM land actions, stating that its claim was not

limited to those 788 land actions. NWF neither precisely

located the lands involved in those actions for the court (a

defect noted in the Burford I dissent, at 329 and 337; App.

89a-—90a and 107a—108a), nor produced members who could

claim injury as to any of them. NWF'’s goal was to have the

court perform the work of the BLM while wearing NWF-

supplied blinders. The District Court had monumental dif-

ficulties administering the preliminary injunction during

the period it was in effect.'* Thus, the problems that arise

from suits such as NWF’s dramatically reaffirm that the

function of the judiciary must be kept separate from the

legislative and executive functions of the government.

‘* As noted at pages 7-8 of the Federal Petitioners’ brief in support

of their Petition for Certiorari (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.

14

B. NWF’s Suit Impermissibly Seeks Review of an

Entire Governmental Program.

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

satisfied the required showings for standing (discussed be-

low) and no matter what is thought of the minimal require-

ments which have been allowed to establish standing under

cases like United States v. Students Challenging Regulatory

Agency Procedures (SCRAP), 412 U.S. 669 (1973), and De-

fenders 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

because it requires the judicial administration of an entire

agency program.

This Court’s opinions in Allen, above, and Ashwander

vu. Tennessee Valley Authority, 297 U.S. 288 (1936), affirm

the rule that the nation’s courts cannot be in the business

of running governmental programs. Not only would such

involvement in the daily affairs of the federal agencies run

afoul of the separation of powers doctrine, it would also be

a ludicrous use of judicial resources. In this case NWF is

not challenging the validity of a regulation or even the

application of a regulation to a particular set of facts. In-

stead, NWF is challenging the entire Program being carried

out by the BLM on over a hundred million acres of public

land. NWF sought to control too much with too little and,

thus, by its own over-zealousness, brought a suit which

cannot properly be maintained.

NWF, in its brief responding to the Petitions for Cer-

tiorari, would have this Court believe that this suit is no

different from others where a particular federal agency ac-

tion is challenged. And, NWF cites a string of cases in foot-

note 21 of that brief claiming that those cases support the

notion that the federal courts have frequently engaged in

reviews of entire programs. Each of those cases is readily

distinguishable from this case and falls into one of the fol-

lowing categories: (1) single agency decisions (as opposed to

15

the 1,250 or so decisions in this case), (2) a single interpre-

tation of one part of an agency's mandate, (3) specific reg-

ulations, or (4) the required geographic scope of a single

EIS.'5 Thus, none of the “program review” cases relied upon

by NWF supports the claims made by NWF.

NWF's attempt to salvage its standing by relying on

NAACP v. Secretary of Housing & Urban Dev., 817 F.2d 149

(1st Cir. 1987) is likewise unavailing. In the present case,

NWF claims to be challenging a “pattern of conduct” rather

than the hundreds of separate land use decisions by the

BLM. The NAACP case did indeed allow a “pattern of con-

duct” challenge, but the focus was whether the Department

of Housing and Urban Development was meeting its sta-

tutory goal of promoting fair housing. In fact, the court in

NAACP expressly noted that the NAACP was not chal-

lenging the individual instances of agency action. Try as it

will to claim otherwise, NWF is in fact challenging the 1,250

decisions made by the BLM. Burford II, at 430-431, n.12

(App. 16a).

NWF is dissatisfied that the BLM has not made en-

vironmental concerns supreme over all other factors the

'S The cases relied upon by NWF for review of an entire govern-

mental program are: UAW v. Brock, 477 U.S. 274 (1986), interpretation

of a benefits entitlement statute; Oregon Environmental Council v. Kunz-

man, 817 F.2d 484 (9th Cir. 1987), geographic scope of an EIS; Blum v

Yaretsky, 457 U.S. 991 (1982), determination of uniform level of benefits

to be applied with respect to stated medical evaluations; Watt v. Energy

Action Educational Foundation, 454 U.S. 151 (1981), choice of compet-

itive bidding procedures under a statute requiring experimentation with

different procedures; FCC v. WNCN Listeners Guild, 450 U.S. 582 (1981),

does not address standing, pertains to an agercy policy statement; As-

sociation of Data Processing Service Organizations, Inc., v. Camp, 397

U.S. 150 (1970), single decision to allow banks to engage in a certain

business; Defenders of Wildlife, Friends of Animals v. Hodel, above, single

decision concerning exemption of projects in foreign countries from ap-

plication of federal endangered species statute; and National Wildlife

Federation v. Hodel, 839 F.2d 694 (D.C. Cir. 1988), challenge to twenty-

one regulations, with proof of standing required as to each regulation.

16

BLM by Jaw must consider. As noted in Baltimore Gas &

Electric Co. v. NRDC,462 U.S. 87, 97 (1983), the National

Environmental Policy Act of 1982, 42 U.S.C. 4321, et seq.,

(“NEPA”) requires agencies to consider environmental im-

pacts before acting, but it does not require environmental

issues to occupy the entire field.

And finally, NWF claims that Kleppe v. Sierra Club,

427 U.S. 390 (1976), aids its standing argument. Like Or-

egon Environmental Council, above, Kleppe is a challenge

to the geographic scope of an EIS. The Sierra Club wanted

to force the Interior Department to issue a regional EIS

concerning northern plains coal mining. This Court rejected

that claim on the ground that there was no proposal of

regional mining to be evaluated. Thus, Kleppe hardly offers

any support for NWF’s position in this case.

Il. NWF FAILED TO ESTABLISH STANDING.

In holding that NWF had made an allegation of in-

jury sufficient to establish standing, the Circuit Court below

relied largely on Sierra Club v. Morton, 405 U.S. 727 (1972)

and United States v. Students Challenging Regulatory

Agency Procedures (SCRAP), above (“SCRAP”). If NWF's

action did present a “case or controversy” (which it does

not), then this case presents an opportunity for this Court

to refine its holdings in Sierra Club v. Morton and SCRAP

relating to standing to sue on environmental and public

land issues.

A. NWF Failed to Allege Recognizable Injury and

Use of Particular Land Affected by BLM

Action.

With respect to the asserted use of the lands affected

by federal action, there is no relevant factual difference

between Sierra Club v. Morton, above, and the present case.

In Sierra Club v. Morton a ski area and attendant facilities

had been proposed for construction on federal lands in an

area of the Sierra Nevada mountains in California. The

17

Sierra Club alleged that it had a special interest in the

conservation and sound management of national parks and

forests and particularly of the lands on the slopes of the

Sierra Nevada mountains. See Sierra Club v. Hickel, 433

F.2d 24, 29 (9th Cir. 1970). This Court said: “Nowhere in

the pleadings or affidavits did the Club state that its mem-

bers use Mineral King [the site of the ski area] for any

purpese, much less that they use it in any way that would

be significantly affected by the proposed actions of the re-

spondents.” Sierra Club v. Morton, at 735. Here, the boiler

plate allegations in the two NWF members’ affidavits (App.

187a, 191a) that they “use the federal lands, including those

in the vicinity of” a generalized area of BLM lands from

which withdrawals had been revoked is substantially iden-

tical to the allegations in Sierra Club v. Morton. In neither

Sierra Club v. Morton nor in the present case did the plain-

tiffs make sufficient allegations that any of their members

used any of the particular lands in question. This was fatal

to standing in Sierra Club v. Morton and is fatal to standing

in the present case.

In fact, NWF has even less basis for standing in this

case than the Sierra Club had in Sierra Club v. Morton. The

Sierra Club objected to a specific proposed project (a ski

resort) on a specific area of land. In the present case, NWF

has not identified any specific proposed land use which could

cause any injury, has not identified any specific land area

which would be damaged, and has not identified any specific

land area its members use or propose to use (other than

“the federal lands”). Although this Court has broadened the

categories of injury that may be alleged in support of stand-

ing to include aesthetic, conservational, and recreational

values, this Court has not abandoned the requirement that

identifiable damage to specific lands and particular injury

to the plaintiff be alleged. Sierra Club v. Morton, at

734-735.

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

1987), involved a challenge by the Wilderness Society and

the Sierra Club to a BLM policy decision not to charge

18

submerged lands against the grant of acreage entitlements

for Alaska and Alaskan natives. In the Griles case it was

held that affidavits of members of the plaintiff groups,

wherein it was claimed that the members visited federal

lands throughout the State of Alaska, were insufficient to

support standing. The Court of Appeals reasoned that mem-

bers failed to name the specific lands they intended to visit

which would be taken out of federal ownership by the chal-

lenged BLM policy. The very same flaw in standing proof

defeats this case. NWF’s member affidavits claimed nothing

more specific than recreating “in the vicinity of” only a

relatively small part of the enormous expanses of federal

land affected by this suit.

B. The SCRAP Decision Does Not Control in

This Case.

SCRAP is clearly distinguishable from the present

case on at least two grounds. First, in SCRAP the plaintiffs

did assert that they used the lands and breathed the air

which they claimed would be damaged by an Interstate

Commerce Commission approval of a freight rate surcharge.

This Court found that the plaintiffs’ allegations were suf-

ficient to establish the “identifiable trifle” of injury neces-

sary to show standing in that case. SCRAP, at 689-690. In

the present case, however, the fact remains that NWF did

not allege that any of its members used any of the particular

lands which are subject to the Program. Therefore, not even

an identifiable trifle of injury could be alleged by NWF

members with respect to those lands subject to the Program.

Secondly, this Court held in SCRAP that a plaintiff

must allege that he will “be perceptibly harmed by the

challenged government action, not that he can imagine cir-

cumstances in which he could be affected by the agency’s

action.” SCRAP, at 688-689. In SCRAP, the freight sur-

charge could go into effect without further governmental

action and cause the events to occur which the plaintiffs

alleged would cause damage. SCRAP, at 672—674. In con-

trast, as discussed further below, the government’s actions

19

carried out under the Program cannot create any injury to

NWF. It is not unless and until the BLM takes additional

actions proposing to authorize particular uses to be carried

out on particular lands that NWF could allege injury and

then only if NWF asserts that its member¢ use those par-

ticular lands. At this stage, NWF only imagines circum-

stances in which its members would be harmed.

C. The Program Causes No Injury.

This Court has ruled that the alleged injury justi-

fying standing must be fairly traceable to the challenged

action, Simon v. Eastern Kentucky Welfare Rights Organi-

zation, 426 U.S. 26, 41 (1976), and that the standing ques-

tion bears close affinity to the question of ripeness —

whether the harm asserted has matured sufficiently to war-

rant judicial intervention, Warth v. Seldin, 422 U.S. 490,

499, n. 10 (1975). In the present case the action complained

of is the publication of withdrawal and classification revo-

cation notices in the Federal Register. This publication

merely allows the BLM to (1) consider any applications it

may receive to perniit resource uses on those lands and

(2) evaluate the coiditions under which such uses may be

carried out.

NWF is premature in seeking to enjoin the revoca-

tions because it can suffer no injury until third parties apply

for and receive authorization to carry out activities on the

.ands. Whether a land exchange will be approved, whether

BLM lands will be sold, or whether rights of way will be

issued, all lie within the discretion of the Secretary of the

Interior. 43 U.S.C. 1716(a), 1713, 1761. Similarly, mineral

leases on public lands are issued or withheld at the discre-

tion of the Secretary. 30 U.S.C. 201, 211, 226(a), 241(a), 261,

271, 281. Further, as pointed out in the dissent in Burford

I, at 339 (App. 11la—1138a), activities conducted under the

mining laws are subject to environmental review under

NEPA and (for operations disturbing more than five acres)

subject to BLM approval, both of which provide for public

20

notice and consideration of public comments.!® 43 U.S.C.

1732; 43 C.F R. 3809.1-4, 3809.2.

Until there is the further event where the BLM con-

siders the approval of a proposed land use, or at least until

an application has been made for use of some of these lands,

any allegation by NWF of injury or threatened injury is

premature. Therefore, NWF could not properly allege that

the challenged withdrawal terminations and classification

revocations in themselves cause any injury to anyone, much

less to its members, even if the members had identified and

alleged they used the lands in question.

D. The Standing Requirement and Showing of

Injury Are Not Satisfied in This Three-Party

Case.

Cases such as Sierra Club v. Morton, above, and the

present case, in which a government action allows a third

party who is not before the court to respond in a manner

that may injure the plaintiff, have been referred to as

“three-party cases.” See Wilderness Society v. Griles, above,

at 12. This Court has observed that when an alleged threat-

ened injury could result only from the action of some third

party not before the court, the indirectness of the injury

weakens the links in the chain of causation and can make

it substantially more difficult to meet the standing require-

ment. Allen, above, at 758-759.

In Allen, this Court found that it was entirely spec-

ulative whether the withdrawal of a tax exemption from

16 In addition to these management controls applying to activities

conducted pursuant to the mining laws on public lands, an entire regime

of federal and state land use and environmental permitting requirements

apply to all mineral exploration and mining operations wherever they

are conducted. Virtually all of those permitting procedures require public

notice and the opportunity for public participation in the permitting

processes. See 5 Am. L. of Mining, Chapter 166; Title XV (2d ed. 1989).

21

any particular school would cause parents and school offi-

cials to react in a way that would have an ultimate signif-

icant impact on the racial composition of public schools and,

therefore, the parents of minority school children co !d not

establish the necessary standing to challenge the tax ex-

emption. Allen, at 759. In this case, the links in the chain

of causation are even weaker because, not only would a third

party resource developer have to respond to the Program,

but any threat of injury to NWF would require the add:-

tional speculation that the BLM would also respond by ap-

proving a land use in a particular area.

The Griles decision is remarkable because it also is

a three-party case dealing with public lands decided by the

District of Columbia Circuit which reached a result opposite

of that in Burford II even though it was decided by two of

the same Circuit Judges who decided Burford IT. The Circuit

Court made the following observations in Griles:

Where the alleged injury involves access to

land in a three-party case, as in Sierra Club,

SCRAP, and the case at bar, the judgment re-

garding likelihood of injury turns on whether

the plaintiff’s future conduct will occur in the

same location as the third party’s response to

the challenged governmental action. Other-

wise, the threat of injury would be too amor-

phous or uncertain; it would be no greater for

the plaintiff than for any person simply op-

posed to the governmental action in question.

824 F.2d at 12.

In light of Griles, it must be considered whether the

Circuit Court may have reached its conclusion in Burford

II because it failed to realize that this case, like Griles, is

a three-party case in which NWF was not threatened with

any injury until a third party sought and was granted au-

thorization from BLM to conduct activities on the lands.

22

That the Burford II court failed to realize this is reflected

in the following statement by the court:

Once the lands in dispute are removed from

Government regulation or protection under

the [Withdrawal Review] Program, and made

available for private mining and other devel-

opmental uses, NWF would have no claim

against those in control of the land develop-

ment projects.

Burford II, at 429, n. 10 (App. 12a). This statement is plainly

mistaken. As noted above, the dissent in Burford I correctly

understood that, even in the case of mining, governmental

reviews and approvals are still required after the lands have

been opened to use.

NWF failed to properly allege injury in the present

case, not only because it did not allege that its members

use any of the lands in question, but also because it was

impossible to identify which of the lands in the Program

will be the subject of third-party responses (i.e., applications

for leases, permits, or plan of operation approvals) and it

was impossible to identify on which of those lands the 3LM

may consider granting approvals. In this case, actions by

third parties and then further action by the BLM are re-

quired before NWF could properly allege there would be

any injury to NWF. This is in contrast to SCRAP in which

no further action by third parties or the government was

necessary for events to occur which might injure those

plaintiffs.

E. Nonspecific Allegations of Injury in Two

Geographic Areas Cannot Extend Standing to

Challenge the Entire Program.

Even if NWF could have established standing with

respect to the two specific withdrawal revocations and clas-

sification terminations from lands in the vicinity of the

23

lands which two of its members alleged they used, this al-

legation of minimal injury in two geographic areas is cer-

tainly not strong enough to spread across the entire western

United States and envelop into this litigation some 1,250

individual withdrawal revocations and classification ter-

minations on more than 180,000,000 acres of public land.

The Court of Appeals stated that “the applicable law gov-

erning standing requires that plaintiffs be injured by only

one of the terminations” (emphasis by the court) in order

to challenge the entire Program, citing UAW v. Brock,

above, and Warth v. Seldin, above. Burford II, at 431, n. 12

(App. 16a). These cases relied upon by the Court of Appeals

clearly do not support the extension of any NWF standing

to all of the land areas and management actions involved

in the Program and in this case.

UAW v. Brock simply held that it is not necessary for

all members of an association to have standing in their own

right for the association to have standing to challenge a

Secretary of Labor policy respecting eligibility for supple-

mental state unemployment insurance benefits, so long as

some members of the UAW could show they were injured.

UAW uv. E -ck, at 284-286. In Warth v. Seldin, this Court

denied sta:uing to all of the individual and association

plaintiffs in that case, but observed in dicta that “The as-

sociation must allege that its members, or any one of them,

are suffering immediate or threatened injury as a result of

the challenged action... .” Warth v. Seldin, at 511. The issue

raised in both of those cases obviously is not an issue in

this case. The number of NWF members who can allege

they were injured is not in question in this case and no

party has contended that NWF must allege that all of its

members were injured. Therefore, neither UAW v. Brock

nor Warth v. Seldin supports the holding in Burford II that

the establishment of standing with respect to one area in-

volved in the NWF affidavit extends that standing to

hundreds of other BLM land areas and some 1,250 BLM

actions.

24

The Court of Appeals also set forth the proposition

that if the Peterson affidavit were found sufficient for stand-

ing by itself, NWF may assert the interests of the general

public with respect to the entire Program. Burford JI, at

431-432, n. 13 (App. 18a). In support of that proposition,

the court cited Sierra Club v. Morton, above, and Sierra

Club v. Adams, 578 F.2d 389 (D.C. Cir. 1978). In Sierra Club

v. Morton, this Court stated that once a plaintiff establishes

standing, he may assert the interests of the general public

in support of his claims for equitable relief. Szerra Club v.

Morton, at 740, n. 15. That statement, however, was made

with reference to an attack on a single ski resort project.

Nothing is even intimated in that case that would allow the

Sierra Club to ex:end its standing to assert the general

public interest in challenges to all other ski areas proposed

on public lands in the western United States.

Sierra Club v. Adams involved the Sierra Club at-

tempting to stop construction of a highway in the nations

of Panama and Colombia. The Sierra Club first obtained an

injunction against the United States’ participation until an

EIS was prepared and then obtained another injunction

based upon three deficiencies in the EIS. The Court of Ap-

peals simply held that once the Sierra Club established

standing with respect to one issue in the EIS (spread of hoof

and mouth disease) it could challenge other issues (effect

of the highway on Indians in Panama and Colombia) on

which the Sierra Club may not otherwise have had stand-

ing. Again, this case involved a single project and a single

area of land like Sierra Club v. Morton. It did not determine

that the Sierra Club, once having established standing with

respect to the United States’ participation in that highway,

would have standing to challenge a United States program

of participating in any other highways in South America.

Sierra Club v. Adams, therefore, provides no authority for

the conclusion reached by the Court of Appeals that, if NWF

could assert the public interest in the one area in which the

25

court said NWF had established standing, NWF could as-

sert the public interest for each of the remaining 1,250 or

so individual classification terminations and withdrawal

revocations.

CONCLUSION

The Burford II decision of the Court of Appeals for

the District of Columbia Circuit should be reversed and the

decision of the District Court for the District of Columbia

District which dismissed NWF’s suit should be reinstated.

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

Telephone (602) 381-0085

Edward M. Green

Chief Counsel

American Mining Congress

Attorneys for Amicus Curiae,

American Mining Congress

March 1990