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NATIONAL WILDLIFE FEDN. v. MORTON

May 2, 1975

NATIONAL WILDLIFE FEDERATION, Plaintiff,
v.
Rogers C. B. MORTON, in his official capacity as Secretary, United States Department of the Interior, et al., Defendants


William B. Jones, District Judge.


The opinion of the court was delivered by: JONES

WILLIAM B. JONES, District Judge.

 This is an action challenging regulations of the Bureau of Land Management (hereinafter "BLM") governing the use of off-road vehicles (ORV) on public lands administered by that agency. Jurisdiction is founded upon certain sections of the Administrative Procedure Act, viz, 5 U.S.C. §§ 701-706, 28 U.S.C. § 1331(a), and § 1361 of 28 U.S.C.

 I. BACKGROUND

 On February 8, 1972, the President, noting that the widespread and rapidly increasing use of off-road vehicles "-- often for legitimate purposes but also in frequent conflict with wise land and resource management practices, environmental values, and other types of recreational activity -- has demonstrated the need for a unified Federal policy toward the use of such vehicles on the public land," issued Executive Order 11644. 3 C.F.R. p. 332 (1974). The Order directs various "agency heads" (defined to include the Secretary of Interior) to create an administrative framework within which designation of the "specific areas and trails on public lands on which the use of off-road vehicles may be permitted, and areas in which the use of off-road vehicles may not be permitted" would be made, and to set a date by which such designations shall be completed. The Order sets forth various environmental criteria to be employed in determining designations and further requires each agency head to ensure adequate opportunity for public participation both in the promulgation of the regulations and in the actual designation of areas and trails.

 On April 15, 1974, land designation regulations were issued for public lands under the administration of BLM. 39 Fed.Reg. 13612 (April 15, 1974). These regulations not only prescribed the procedure and criteria to be employed in designating areas and trails; they went one step further, declaring that all public land not restricted or closed to ORV use "remain open to off-road vehicle use and are hereby designated as open use areas and trails except that restrictions and closures regarding the use of public lands that result from authority other than part 6290 shall not be affected by the open use designation of this paragraph." 43 C.F.R. § 6292.2(a) (1974).

 Plaintiff alleges that these regulations fail to meet the requirements of Executive Order 11644 in the following respects:

 
(a) The regulations designate all BLM administered land (with the exception of those few areas previously closed or restricted) as open to off-road vehicle use without regard to the criteria for evaluating these lands prescribed by Executive Order 11644;
 
(b) The regulations fail to provide for public participation in the designation of BLM administered lands as required by Executive Order 11644;
 
(c) The regulations fail to set a date for completing the designation of BLM administered lands under the criteria of Executive Order 11644;
 
(d) The regulations fail to require that all BLM administered lands be evaluated for suitability for off-road vehicle use under the Executive Order's criteria;
 
(e) The regulations fail to adopt the specific criteria for evaluating BLM administered lands prescribed by Executive Order 11644.

 Complaint, para. 13. In addition, plaintiff alleges that the regulations and their environmental impact statement fail to comply with both substantive and procedural requirements of the National Environmental Policy Act of 1969 (NEPA). 42 U.S.C. § 4321 et seq.

 Plaintiff seeks: (1) a declaration that the regulations governing the use of off-road vehicles on public lands under the administration of BLM fail to meet the requirements of Executive Order No. 11644 and Section 102(1) of NEPA; (2) a declaration that these regulations were promulgated without due consideration of alternatives as required by Sections 102(2)(C)(iii) and 102(2)(D) of NEPA; and (3) an order directing the defendants to issue, after consideration of alternatives as required by NEPA, regulations which meet the requirements of Executive Order 11644 and Section 102(1) of NEPA.

 The matter is presently before the Court on cross-motions for summary judgment on these issues. In addition, plaintiff's standing to bring this action has been challenged. Being a threshold issue, this final question will be resolved initially.

 II. STANDING

 In Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 90 S. Ct. 827, 25 L. Ed. 2d 184 (1970) and Barlow v. Collins, 397 U.S. 159, 90 S. Ct. 832, 25 L. Ed. 2d 192 (1970), the Supreme Court articulated a three-pronged test for standing in actions challenging administrative actions. The first hurdle is the "case or controversy" test of "whether the plaintiff alleges that the challenged action has caused him injury in fact, economic or otherwise." Association of Data Processing Service Organizations, Inc. v. Camp, supra, 397 U.S. at 152, 90 S. Ct. at 829. The second test is "whether the interest sought to be protected by the complainant is arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question." Id. at 153, 90 S. Ct. at 831. The final question is whether judicial review of the administrative action has been precluded by express statutory language. *fn1" See also Arnold Tours, Inc. v. Camp, 400 U.S. 45, 91 S. Ct. 158, 27 L. Ed. 2d 179 (1970); Higginbotham v. Barrett, 473 F.2d 745 (5th Cir. 1973); Constructores Civiles de Centroamerica, (CONCICA) v. Hannah, 148 U.S.App.D.C. 159, 459 F.2d 1183 (1972). Defendants herein direct their arguments to the first prong of this test, asserting that plaintiff does not have standing because it cannot demonstrate "injury in fact." *fn2"

 Discussing the requirement of "injury in fact" in Sierra Club v. Morton, 405 U.S. 727, 738, 92 S. Ct. 1361, 1367, 31 L. Ed. 2d 636 (1972), the Supreme Court stated:

 
The trend of cases arising under the APA and other statutes authorizing judicial review of federal agency actions has been toward recognizing that injuries other than economic harm are sufficient to bring a person within the meaning of the statutory language and toward discarding the notion that an injury that is widely shared is ipso facto not an injury sufficient to provide the basis for judicial review. We noted this development with approval in Data Processing, 397 U.S. at 154, 90 S. Ct. at 830, in saying that the interest alleged to have been injured 'may reflect "aesthetic, conservational, and recreational" as well as economic values.'

 It is then noted, however, that "a mere 'interest in a problem,' no matter how long-standing the interest and no matter how qualified the organization is in evaluating the problem, is not sufficient by itself to render the organization 'adversely affected' or 'aggrieved' within the meaning of the APA." Id. at 739, 92 S. Ct. at 1368. Consequently, the Court held that the Sierra Club, which alleged no injury to itself or its members but brought its action to enjoin development in the Mineral Valley of the Sequoia National Forest on the theory of its being a "public" lawsuit, lacked standing absent an allegation of particularized injury.

 In United States v. SCRAP, supra, an action challenging certain rail rate increases authorized by the Interstate Commerce Commission on the ground that the Commission had failed to include a detailed environmental impact statement as required by Section 102(2)(C) of NEPA, 42 U.S.C. § 4332(2)(C), the complaint was fashioned in such a manner as to cure the deficiencies detailed by the Supreme Court in Sierra Club. Specifically, plaintiff's complaint alleged "that their members used the forests, streams, mountains, and other resources in the Washington metropolitan area for camping, hiking, fishing, and sight-seeing, and that this use was disturbed by the adverse environmental impact caused by the nonuse of recyclable goods brought about by a rate increase on these commodities." United States v. SCRAP, supra, 412 U.S. at 685, 93 S. Ct. at 2415. Comparing these allegations with those found in Sierra Club, the Court found, "Here, by contrast, the appellees claimed that the specific and allegedly illegal action of the Commission would directly harm them in their use of the natural resources of the Washington Metropolitan area." Id. at 687, 93 S. Ct. at 2416. The Court cautioned:

 
Of course, pleadings must be something more than an ingenious academic exercise in the conceivable. A plaintiff must allege that he has been or will in fact be perceptibly harmed by the challenged agency action, not that he can imagine circumstances in which he could be affected by the agency's action. And it is equally clear that the allegations must be true and capable of proof at trial.

 Id. at 688-689, 93 S. Ct. at 2416. However, it held that the complaint alleged facts sufficient to withstand a motion to dismiss based on lack of standing. *fn3"

 In Minnesota Public Interest Research Group v. Butz, supra, a nonprofit corporation sought temporary and permanent injunctive relief against logging in the Boundary Waters Canoe Area (BWCA) of Minnesota until the Forest Service complied with the requirements of NEPA. There, the Eighth Circuit, sitting en banc, stated:

 
MPIRG has shown that some of its members use the BWCA for wilderness recreational opportunities it affords. It has demonstrated an effect upon wilderness qualities of the BWCA from logging operations. This suffices to show that its members have suffered or will suffer the requisite injury in fact to support standing. MPIRG may represent its injured members in a proceeding for judicial review. Sierra Club v. Morton, 405 U.S. 727, 739, 92 S. Ct. 1361, 31 L. Ed. 2d 636 (1972). We therefore agree with the District Court that MPIRG has standing to litigate the questions presented.

 498 F.2d at 1324. See also Life of the Land v. Brinegar, 485 F.2d 460, 463 n. 2 (9th Cir. 1973), cert. denied, 414 U.S. 1052, 94 S. Ct. 558, 38 L. Ed. 2d 341 (1973).

 The complaint here alleges, in paragraph 2, that many of plaintiff's "individual members and member clubs use and enjoy the land, air, water, historic, archaeological and aesthetic resources of the 452 million acres of public lands administered by BLM." The same paragraph continues: "The widespread and increasing use of off-road vehicles on these lands is in frequent conflict with the use and enjoyment of these lands and resources by NWF's members and member clubs." These allegations are supported by the uncontroverted, sworn statement of Thomas L. Kimball, Executive Vice President of NWF. Affidavit of Thomas L. Kimball, Executive Vice President, National Wildlife Federation, dated November 18, 1974. Alleging and proving, as it has, particularized and direct injury to its members as a ...


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