Desert Citizens Against Pollution v. Bisson, 97-55429

• Decision Date: 06 November 2000
• Docket Number: No. 97-55429,97-55429
• Citation: 231 F.3d 1172
• Parties: (9th Cir. 2000) DESERT CITIZENS AGAINST POLLUTION; SIERRA CLUB; DESERT PROTECTIVE COUNCIL, Plaintiffs-Appellants, v. HENRI R. BISSON; TERRY A. REED; MICHAEL DOMBECK; BUREAU OF LAND MANAGEMENT, Defendants-Appellees, and GOLD FIELDS MINING CORPORATION; ARID OPERATIONS INCORPORATED, Intervenors-Defendants-Appellees
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1172

231 F.3d 1172 (9th Cir. 2000)

DESERT CITIZENS AGAINST POLLUTION; SIERRA CLUB; DESERT PROTECTIVE COUNCIL, Plaintiffs-Appellants, v. HENRI R. BISSON; TERRY A. REED; MICHAEL DOMBECK; BUREAU OF LAND MANAGEMENT, Defendants-Appellees, and GOLD FIELDS MINING CORPORATION; ARID OPERATIONS INCORPORATED, Intervenors-Defendants-Appellees.

No. 97-55429

U.S. Court of Appeals for the Ninth Circuit

Argued and Submitted June 4, 1998

Filed November 6, 2000

[Copyrighted Material Omitted] William S. Curtiss, Earthjustice Legal Defense Fund, San Francisco, California, for the appellants.

Ellen J. Durkee, Attorney, Environment & Natural Resources Division, Department of Justice, Washington, D.C., for the appellees.

Charles L. Kaiser, Davis, Graham & Stubbs, Denver, Colorado, for the intervenors.

Appeal from the United States District Court for the Southern District of California;Rudi M. Brewster, District Judge, Presiding D.C. No. CV-96-02011-RMB/ JFSS

Before: Procter Hug, Jr., Chief Judge, Robert Boochever and Alex Kozinski, Circuit Judges.

HUG, Chief Judge:

We review the district court's rulings on an action brought by three environmental organizations under the Federal Land Policy and Management Act ("FLPMA"), 43 U.S.C.S 1701 et. seq. Desert Citizens Against Pollution, Sierra Club, and Desert Protective Council (collectively, "Desert Citizens") challenge a decision by the Bureau of Land Management ("BLM") to enter into a land exchange with intervenors Gold Fields Mining Corporation and its subsidiary, Arid Operations, Inc. ("Gold Fields"). The companies plan to construct a landfill on the federal lands in Imperial County, California which are subject to the exchange ("selected lands"). Desert Citizens alleges that by relying on an outdated appraisal that undervalued the federal lands, BLM failed to comply with Section 206(b) of FLPMA, which requires that the lands involved in an exchange be of equal market value or that the exchange be made equal through cash payment. 43 U.S.C. S 1716(b).¹ The district court dismissed the action on the ground that Desert Citizens lacked standing, and in the alternative, denied Desert Citizens' motion for a preliminary injunction. We have jurisdiction under 28 U.S.C.S 1291 and S 1292(a)(1), and we reverse the judgment of the district court.

I. Factual Background

The land exchange at issue in this case involves BLM's transfer of approximately 1,745 acres of federal land in Imperial County appraised at $610,914 to Gold Fields. Gold Fields plans to use this land in conjunction with the proposed Mesquite Regional Landfill. In return, BLM acquired from Gold Fields 2,642 acres with an appraised value of $609,995 and $919 in cash. The private property transferred to the government includes land in the Santa Rosa Mountains Wilderness and National Scenic Areas in Riverside County, and the Little Chuckwalla Mountains Wilderness Area in Imperial County ("offered lands").

BLM's Record of Decision ("ROD") approving the exchange relied on a June 1994 appraisal conducted by the private firm of Nichols & Gaston. Nichols & Gaston determined the highest and best use for the selected lands to be "open space" or "mine support," which involves the storage of overburden and waste from mining operations. The determination of highest and best use was based primarily on the fact that the selected lands were located in proximity to the Mesquite Mine, owned by Gold Fields.

On April 27, 1992, two years before Nichols & Gaston appraised the land for mine support purposes, Gold Fields' subsidiary submitted an application to Imperial County to construct the Mesquite Regional Landfill on lands that included the 1,745 acres of federal land. Gold Fields concurrently proposed acquiring the 1,745 acres by the land exchange with BLM that is the subject of this suit. According to the Environmental Impact Statement ("EIS") for the landfill project, the Mesquite Mine is expected to go out of business on or before 2008.

Desert Citizens initially pursued administrative remedies. Upon dismissal of the action by BLM's State Director, the environmental groups jointly appealed to the Interior Board of Land Appeals ("IBLA") and petitioned for a stay pending appeal. IBLA rejected the consolidated appeals and the request for the stay. Desert Citizens brought the instant case under the Administrative Procedure Act ("APA"), 5 U.S.C. S 551 et. seq., in November 1996, alleging that group members used and enjoyed the federal lands selected for exchange. The complaint also alleged that the land exchange was arbitrary, capricious and an abuse of BLM's discretion and exceeded the statutory limitations on BLM's authority to exchange public lands under FLPMA. Desert Citizens requested, among other relief, that the ROD approving the exchange be declared unlawful and set aside by the district court. In addition, the complaint requested preliminary injunctive relief prohibiting BLM and Gold Fields from taking any further steps to complete the exchange based on the ROD.

The district court dismissed the action on the ground that Desert Citizens lacked standing, and in the alternative, denied the motion for a preliminary injunction. The day after the district court entered judgment, BLM and the private parties consummated the land exchange. The selected lands have now been conveyed to Gold Fields and the offered lands have been conveyed to the United States.

II. Standard of Review

The district court's dismissal based on standing is reviewed de novo. Johns v. County of San Diego , 114 F.3d 874, 876 (9th Cir. 1997); Whitmore v. Federal Election Comm'n, 68 F.3d 1212, 1214 (9th Cir. 1995).

The order denying preliminary injunctive relief is reviewed to determine whether the district court abused its discretion or based its decision on an erroneous legal standard or clearly erroneous findings of fact. Miller ex. rel. NLRB v. California Pacific Med. Ctr., 19 F.3d 449, 455 (9th Cir. 1994) (en banc); Stanley v. University of Southern California, 13 F.3d 1313, 1319 (9th Cir. 1994).

III. Standing

The district court determined that Desert Citizens' alleged injury failed to meet the requirements for standing because the complaint alleged an environmental injury without challenging the government's compliance with an environmental statute. The court also reasoned that Desert Citizens' allegation of BLM's noncompliance with FLPMA's equal-value provisions only constituted an attack on the way federal money is spent, making Desert Citizens' injury indistinguishable from that of other taxpayers and therefore insufficiently particularized to confer standing. The court further determined that there was no causal connection between the injury alleged and the purported under-valuation.

Desert Citizens alleges that its members currently use and enjoy the federal lands at the proposed landfill site for recreational, aesthetic, and scientific purposes. Desert Citizens contends that the land exchange will prevent them from using and enjoying these lands, which are the subject of the transfer to Gold Fields.²

The Supreme Court enumerated the requirements for Article III standing in Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992):

First, the plaintiff must have suffered an injury in fact -an invasion of a legally-protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical. Second, there must be a causal connection between the injury and the conduct complained of -the injury must be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court. Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.

Id. at 560-61 (internal citations and quotations omitted).

A. Injury in Fact

Desert Citizens has suffered an injury in fact. The recreational or aesthetic enjoyment of federal lands is a legally protected interest whose impairment constitutes an actual, particularized harm sufficient to create an injury in fact for purposes of standing. See Sierra Club v. Morton , 405 U.S. 727, 734 (1972). Desert Citizens met the formal requirements of Sierra Club by alleging that its members make use of the federal lands that are the subject of the transfer to Gold Fields. See id. at 735.³ We have held repeatedly that environmental and aesthetic injuries constitute injuries in fact for standing purposes. See, e.g., Mount Graham Red Squirrel v. Espy, 986 F.2d 1568, 1581-82 (9th Cir. 1993) (extinction of species whose observation in the wild provided plaintiffs scientific, recreational and aesthetic enjoyment conferred requisite injury for standing purposes); Fund for Animals, Inc. v. Lujan, 962 F.2d 1391, 1396 (9th Cir. 1992) (diminished opportunity for Fund members to view the northern bison herd in Yellowstone established standing to challenge the National Park Service's 1990 bison management plan); Alaska Fish & Wildlife Fed'n and Outdoor Council, Inc. v. Dunkle, 829 F.2d 933, 937 (9th Cir. 1987) (decrease in number of migratory birds resulting from a permissive hunting policy injured "those who wish to hunt, photograph, observe, or carry out scientific studies on the migratory birds").

The district court constructed a novel rule by stating that injuries of an environmental or aesthetic nature can be shown only where plaintiffs allege noncompliance with an environmental statute or regulation. Applying this type of categorical rule runs counter to precedent recognizing that standing "is a highly case-specific endeavor, turning on the precise allegations of the parties seeking relief." National Wildlife Fed'n v. Hodel, 839 F.2d 694, 703-04 (D.C. Cir. 1988). Nothing in our jurisprudence requires citation of a so-called "environmental" statute as a prerequisite to standing. Standing is based upon the nature of the injury alleged and whether a favorable...