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NATIONAL WILDLIFE FEDN. v. BURFORD

December 4, 1985

NATIONAL WILDLIFE FEDERATION, Plaintiff,
v.
ROBERT F. BURFORD, et al., Defendants


John H. Pratt, United States District Judge.


The opinion of the court was delivered by: PRATT

JOHN H. PRATT, UNITED STATES DISTRICT JUDGE.

 Introduction

 Plaintiff, an environmental organization, brought suit against the Director of the Bureau of Land Management, the Secretary of the Interior and the Department of the Interior to challenge the lifting of protective restrictions on certain federal lands. Plaintiff's cause of action arises under the Federal Land Policy and Management Act, the National Environmental Policy Act of 1969 and the Administrative Procedure Act. The case is now before us on a motion to intervene by Congressman John F. Seiberling, defendants' motion to dismiss and plaintiff's motion for a preliminary injunction.

 Background

 This litigation focuses on defendants' termination of protective classifications and revocation of withdrawals on approximately 170 million acres of public lands since 1981. The Federal Land Policy and Management Act, 43 U.S.C. §§ 1701 et seq. (1982) (FLPMA), establishes comprehensive rules for the management of federal lands. The FLPMA includes two systems for preserving land in the public domain and thereby for protecting it from private ownership and development. "Classifications" allow the Department of the Interior to categorize lands according to their proper use. "Withdrawals" directly remove lands from private development and exploitation. Subject to certain procedural controls, the Secretary of the Interior may open land to private development by terminating the applicable classification or withdrawal. See 43 U.S.C. §§ 1712(d), 1714. Since the passage of the FLPMA in 1976, defendants have terminated classifications on 160.8 million acres of land, Parker Affidavit at para. 35, and revoked withdrawals for 20 million acres, Edwards Affidavit 1A at para. 25.

 Plaintiff contends that in lifting these restrictions, defendants improperly ignored certain requirements of the FLPMA. Among plaintiff's claims are that defendants failed to review land status actions in the context of land use planning, to submit to the President and Congress withdrawal revocation recommendations, to promulgate rules and regulations governing withdrawal revocations, to provide for public participation, and to prepare environmental impact statements. Plaintiff ultimately seeks a declaration that defendants' land withdrawal program violates applicable law and regulations; an order both reinstating all withdrawals, classifications or other designations in effect on January 1, 1981 *fn1" and enjoining defendants from taking any action inconsistent with these designations until they comply with their statutory obligations; and an order mandating that defendants rescind all directives, instructive memoranda, manuals or other documents regarding classification or withdrawal terminations until they have promulgated certain rules and regulations.

 Plaintiff now moves for a preliminary injunction. The claim for relief here is more narrow than that in the Complaint. Specifically, plaintiff requests this court, inter alia, to enjoin defendants from modifying, terminating or altering any withdrawal, classification or other land use designation in effect on January 1, 1981, *fn2" and to enjoin them from taking any action inconsistent with the 1981 status quo. It "does not seek to invalidate existing mining claims or mineral leases nor does it seek to overturn completely sales or exchanges of previously withdrawn lands." Plaintiff's Reply Memorandum at 8-9.

 In the meantime, defendants have moved to dismiss the entire action for failure to join indispensible parties, in particular the holders of mining claims and mineral leases on the disputed lands. They have also moved to dismiss Count II of the Amended Complaint, relating to failure to submit recommendations to the President and Congress, on the ground that the plaintiff lacks standing to raise this claim.

 In addition to the motion for a preliminary injunction and motion to dismiss, we have before us a motion for intervention. Congressman John F. Seiberling, Chairman of the House Subcommittee on Public Lands, seeks to intervene in this action as a plaintiff. We will address these three motions in reverse order.

 Discussion

 I. Motion for Intervention

 Congressman Seiberling's motion to intervene invokes Federal Rule of Civil Procedure 24. Because we find that Congressman Seiberling meets the requirements for permissive intervention under Rule 24(b), we do not need to reach the question of whether he also qualifies under subdivision (a).

 Rule 24(b) allows intervention "upon timely application" by a person whose claim or defense shares with the main action a common question of law or fact. Although Congressman Seiberling moved to intervene three months after the complaint was filed, we decline to hold that his motion was untimely. To begin with, the amount of time elapsed since the complaint does not itself determine timeliness. Natural Resources Defense Council v. Costle, 183 U.S. App. D.C. 11, 561 F.2d 904, 907 (D.C. Cir. 1977); Hodgson v. United Mine Workers of America, 153 U.S. App. D.C. 407, 473 F.2d 118, 129 (D.C. Cir. 1972). Instead, we must look both to the purpose for which intervention is sought and to the improbability of prejudice to those already in the case. NRDC v. Costle, 561 F.2d at 907; Hodgson, 473 F.2d at 129. Although Congressman Seiberling seeks to intervene for the full course of the litigation, we can see no possible prejudice to defendants as a result of the timing of this motion.

 Having satisfied the threshold requirement of timely application, Congressman Seiberling also meets the substantive criteria of Rule 24(b)(2). Congressman Seiberling alleges that defendants violated § 204(l) of the FLPMA, 43 U.S.C. § 1714(l), which requires submission to Congress of recommendations for land withdrawal revocations. Plaintiff raises the same claim in Count II of its Amended Complaint. As these identical allegations thus clearly show, the motion to intervene presents common questions of law or fact. *fn3"

 Defendant attempts to block intervention by arguing that Congressman Seiberling lacks the necessary injury in fact for standing. We disagree. It is not necessary to prolong this discussion with citations that injury in fact is a key requirement of standing. Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 152, 25 L. Ed. 2d 184, 90 S. Ct. 827 (1970). If Congressman Seiberling was merely complaining that defendants have not faithfully executed the law, his claim, as a generalized grievance, would not constitute injury in fact. All citizens share his interest, American Federation of Government Employees v. Pierce, 225 U.S. App. D.C. 61, 697 F.2d 303, 305 (D.C. Cir. 1982), and it is well settled that such "generalized grievances about the conduct of government" do not afford standing. Flast v. Cohen, 392 U.S. 83, 106, 20 L. Ed. 2d 947, 88 S. Ct. 1942 (1968); American Federation of Government Employees, 697 F.2d at 305.

 However, Congressman Seiberling is not seeking just to express a generalized grievance. He is suing to enforce his right as a Congressman to participate in withdrawal revocation decisions. Legislators have standing to challenge objective diminution of their influence in the legislative process. See Harrington v. Bush, 180 U.S. App. D.C. 45, 553 F.2d 190, 212 (D.C. Cir. 1977); Kennedy v. Sampson, 167 U.S. App. D.C. 192, 511 F.2d 430, 434 (D.C. Cir. 1974). In particular, executive action that nullifies a specific congressional opportunity to vote constitutes injury in fact to individual Members of Congress. See Goldwater v. Carter, 199 U.S. App. D.C. 115, 617 F.2d 697, 702 (D.C. Cir. 1979), vacated on other grounds, 444 U.S. 996, 100 S. Ct. 533, 62 L. Ed. 2d 428 (1979).

 In the present case, the FLPMA requires the President to transmit to the President of the Senate and the Speaker of the House the Secretary's recommendations for withdrawal revocations. The statute further authorizes a concurrent congressional resolution that the recommendations should not be implemented. *fn4" Defendants' bypassing of the congressional review process thus denied to Congressman Seiberling the potential opportunity to approve or reject proposals to terminate specific land withdrawals. This diminution of Congressman Seiberling's authority caused injury in fact and thus guarantees his "personal stake in the outcome of the controversy." Baker v. Carr, 369 U.S. 186, 204, 7 L. Ed. 2d 663, 82 S. Ct. 691 (1962). *fn5"

 Congressman Seiberling also fulfills the causation and redressability criteria for standing. A plaintiff must not only demonstrate injury in fact, but also show both that the injury can be traced directly to defendant's action. Allen v. Wright, 468 U.S. 737, 104 S. Ct. 3315, 3325, 82 L. Ed. 2d 556 (1984); Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 41-42, 48 L. Ed. 2d 450, 96 S. Ct. 1917 (1976), and that the relief he requests will redress the injury. Id. at 38. Mountain States Legal Foundation argues that because the statute channels the Secretary's recommendations through the President, Congressman Seiberling cannot satisfy either requirement. We reach a different conclusion. The statute allows the President no discretion. He must transmit to Congress the recommendations he receives. As a mere conduit for the Secretary's recommendations, the President does not interrupt the causal connection between defendants' actions and the lack of any reporting to Congress. Similarly, if defendants are ordered to report to the President, the mere implication that the President might withhold information from Congress and thus violate the express terms of the FLPMA does not threaten redress enough to interfere with standing.

 Accordingly, we grant the motion to intervene.

 II. Motion to Dismiss

 A. Failure to Join Indispensible Parties

 While the holders of mining claims and mineral leases are necessary parties, their absence does not compel dismissal. Defendants assert that plaintiff should have joined as defendants all third parties who hold mining claims or mineral leases to the lands at issue. Federal Rule of Civil Procedure 19 requires a two-step analysis for such compulsory joinder claims. First, the court must determine if the absent party falls within the category of persons "to be joined if feasible." Second, the court must determine whether, in equity and good conscience, the case should proceed without the third party or be dismissed. Provident Tradesmens Bank & Trust Co. v. Patterson, 390 U.S. 102, 108-09, 19 L. Ed. 2d 936, 88 S. Ct. 733 (1968); Defenders of Wildlife v. Andrus, 77 F.R.D. 448, 451 (D.D.C. 1978).

 The mining claimants and lessees meet the first requirement of compulsory joinder, as set out in Rule 19(a). They all claim an interest in the lands that are the subject of this action. See Rule 19(a)(2). In the case of the mining claimants, this interest may even ...


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