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NATIONAL WILDLIFE FEDN. v. BURFORD

November 4, 1988

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



The opinion of the court was delivered by: PRATT

 JOHN H. PRATT, UNITED STATES DISTRICT JUDGE.

 This case, which concerns the status of approximately 180 million acres of public land, was first filed on July 15, 1985, more than three years ago. A brief summary of the ensuing proceedings is appropriate.

 On December 11, 1987, the Court of Appeals for this Circuit in a lengthy split opinion (Judge Williams dissenting), affirmed this court's grant of preliminary relief. National Wildlife Federation v. Burford, 266 U.S. App. D.C. 241, 835 F.2d 305 (D.C. Cir. 1987) (" Burford "). It first addressed certain preliminary matters such as the challenge to plaintiff's standing, the effect on absent third parties, plaintiff's failure to exhaust its administrative remedies, and laches. Burford, 835 F.2d at 310-18. Passing to the merits, the Court held that the plaintiff had met the conventional criteria for the grant of preliminary relief and sustained the injunction. It conceded that it was a "close case" but held that this court did not abuse its discretion in holding that the plaintiff had shown a likelihood of success on the merits. Id. at 319, 327.

 On April 29, 1988, in a brief slip opinion, the Appellate Court denied defendants' petition for a rehearing. National Wildlife Federation v. Burford, 269 U.S App. D.C. 271, 844 F.2d 889 (D.C. Cir. 1988) (per curiam). It noted the seriousness of the case and its belief that "some of the criticisms of the breadth and scope of the preliminary injunction offered in the vigorous dissent are not without force." Id. at 889. Commenting on the far-reaching effect of this court's action in placing the status of vast tracts of land on "hold" and the confusion arising from this unsettled state of affairs, it expressed its belief "that the disposition of these millions of acres should not continue to rest any longer than necessary on the foundation of a preliminary injunction which was entered on consideration of the brief affidavits and cursory materials presented to the court below." Id. (emphasis supplied). We were directed to proceed with this litigation "with dispatch." Id. This admonition was repeated by the Court of Appeals as recently as November 1, 1988, when it denied the defendants' emergency motion for a stay pending appeal. National Wildlife Federation v. Burford, No. 88-5291, slip op. (D.C. Cir. Nov. 1, 1988) (per curiam).

 Present Posture

 At issue is plaintiff's application for a permanent injunction. Pending before the Court are the motion of the defendants to dismiss and motions for summary judgment submitted by both parties. The matter had been extensively briefed. *fn2" Argument was held on July 22, 1988, at the conclusion of which the parties were directed to submit additional memoranda on the issue of plaintiff's standing to bring this suit. Transcript of July 22, 1988 at 91-2. All parties have responded. *fn3"

 In its opinion the Court of Appeals, after applying the "injury in fact" analysis required by Section 702 of the Administrative Procedure Act, concluded that based on the allegations of the complaint, "the Federation has alleged facts sufficient to establish injury in fact to its members." Burford, 835 F.2d at 312. In so doing, it pointed out that it had to assume that the allegations of the complaint were true and must be construed in the light most favorable to the organization. Id. (citing Warth v. Seldin, 422 U.S. 490, 501, 45 L. Ed. 2d 343, 95 S. Ct. 2197 (1975)). More importantly, the issue of standing arose in the posture of defendant's motion to dismiss, which affected the degree of factual specificity required to be shown in order to establish the likelihood of personal injury to plaintiff's members. This distinction was emphasized in SCRAP,4 where a suit alleging injury to members based on their use and enjoyment of natural resources was held by the Supreme Court sufficient to survive a motion to dismiss. At the same time, the highest Court acknowledged that, on a motion for summary judgment, the plaintiff might have to show injury with greater specificity. See SCRAP, 412 U.S. at 689 & n.15. Our Court of Appeals has more recently spelled out the importance of this distinction. See Wilderness Society v. Griles, 262 U.S. App. D.C. 277, 824 F.2d 4, 16-17 (D.C. Cir. 1987) (Plaintiff's failure to show specificity of injury in response to defendant's motion for summary judgment precludes their standing, but case was reversed to permit plaintiff an opportunity for further discovery on this issue). *fn5" The Court's affirmance of standing in the instant case must therefore be read in the context of the procedural posture of the case when that Court considered this issue. The dissenting opinion, while observing that "at this point in the proceeding the issue of standing is largely academic" and that "the defendants appear to have conceded the bare minimum necessary for standing," emphasized that the "specificity required for standing allegations to secure a preliminary injunction will normally be no less than that required on a motion for summary judgment." Burford, 835 F.2d at 327-28 (Williams, J., concurring and dissenting). This is because plaintiff's burden of showing likelihood of success on the merits presupposes a preliminary finding that plaintiff has standing. See id. at 328. In light of the foregoing, we turn now to reconsider our earlier finding that plaintiff has standing to pursue this litigation. Plaintiff predicates its claim of standing on two types of injury, informational or procedural injury to it as an organization and environmental harm to its members, both caused by defendants' administration of the Land Withdrawal Review Program. *fn6" Plaintiff's Memorandum in Support of Standing at 2.

 Admittedly, the decisions on standing are not a model of consistency. However, it is generally agreed that, in order to satisfy the "case or controversy" requirement of the Constitution and Section 702 of the Administrative Procedure Act, the plaintiff must both plead and prove that it or its members have suffered some actual or threatened injury as the result of defendants' allegedly unlawful conduct. These requirements have been summarized by the Supreme Court in Valley Forge Christian College v. Americans United for the Separation of Church and State, 454 U.S. 464, 472, 70 L. Ed. 2d 700, 102 S. Ct. 752 (1982), as follows:

 
at an irreducible minimum, Art. III requires the party who invokes the court's authority to "show that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant," Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 99, 60 L. Ed. 2d 66, 99 S. Ct. 1601 (1979), and that the injury "fairly can be traced to the challenged action" and "is likely to be redressed by a favorable decision," Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 38, 41, 48 L. Ed. 2d 450, 96 S. Ct. 1917 (1976).

 It is not disputed that an organization may have standing to bring suit on behalf of its members. *fn7" Plaintiff's claim of injury to it as an organization rests upon its alleged inability 1) to obtain information as to the federal defendants' Land Withdrawal Review Program and the actions completed under such program, and 2) to participate in the federal defendants' decision making. It claims that it, as an organization, is entitled "to see and use" the kind of information that would have been available had the federal defendants completed environmental impact statements. Plaintiff's Statement in Support of Standing at 2-3. In sole support of this position, plaintiff has submitted the declaration of Lynn Greenwall, its Vice President for Resources Conservation. An analysis of the Greenwall declaration shows, after a description of the plaintiff's organization and the nature and size of its membership, the plaintiff's educational program to inform its members concerning conservation issues and their financial support for this purpose, a bare claim that plaintiff's ability to meet the obligations to its members

 
has been significantly impaired by the failure of the Bureau of Land Management and the Department of Interior to provide adequate information and public participation with ...

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