878 F.2d 422 (D.C. Cir. 1989), 88-5397, National Wildlife Federation v. Burford

Docket Nº:88-5397, 88-5291.
Citation:878 F.2d 422
Party Name:NATIONAL WILDLIFE FEDERATION, Appellant, v. Robert F. BURFORD, et al. NATIONAL WILDLIFE FEDERATION v. Robert F. BURFORD, et al. Appeal of ASARCO INCORPORATED, Applicant for Intervention.
Case Date:June 20, 1989
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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



Robert F. BURFORD, et al.



Robert F. BURFORD, et al.

Appeal of ASARCO INCORPORATED, Applicant for Intervention.

Nos. 88-5397, 88-5291.

United States Court of Appeals, District of Columbia Circuit.

June 20, 1989

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Argued March 21, 1989.

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Appeals from the United States District Court for the District of Columbia (Civil Action No. 85-02238).

Eldon V.C. Greenberg, with whom Kathleen C. Zimmerman and Norman L. Dean, Jr., Washington, D.C., were on the brief, for appellant in No. 88-5397.

Jacques B. Gelin, Atty., Dept. of Justice, Washington, D.C., with whom Donald A. Carr, Acting Asst. Atty. Gen., Robert L. Klarquist and Fred R. Disheroon, Attys., Dept. of Justice, Washington, D.C., were on the brief, for appellees in No. 88-5397.

Jerry L. Haggard, Phoenix, Ariz., of the bar of Arizona, pro hac vice, by special leave of Court, with whom Nancy C. Shea, Washington, D.C., and H. Barry Holt, Phoenix, Ariz., were on the brief, for appellants in No. 88-5291.

Kathleen C. Zimmerman, Washington, D.C., for appellee in No. 88-5291.

Eric Twelker, Denver, Colo., also entered an appearance for appellees, in No. 88-5397.

Bruce J. Ennis, David W. Ogden and David A. Handzo, Washington, D.C., were on the brief of amicus curiae The Wilderness Soc. urging reversal, in No. 88-5397.

Before EDWARDS and RUTH BADER GINSBURG, Circuit Judges, and KAUFMAN, [*] Senior Judge.

Opinion for the Court filed by Circuit Judge HARRY T. EDWARDS.

HARRY T. EDWARDS, Circuit Judge:

In July 1985, appellant National Wildlife Federation ("NWF" or "Federation"), a nonprofit natural resources conservation and education association with over 4.5 million members, brought suit to challenge a Department of Interior ("Interior" or "Department") decision to reclassify the status of approximately 180 million acres of public land. The present appeals involve two decisions arising out of NWF's suit. First, on November 4, 1988--after extended preliminary proceedings, including the issuance of a preliminary injunction enjoining Interior's challenged activity, which was upheld by this court in National Wildlife Federation v. Burford, ("Burford I "), 835 F.2d 305 (D.C.Cir.1987), and various actions by the trial court amending the original injunction--the District Court granted Interior's motion for summary judgment on the ground that NWF lacked standing. NWF now appeals from that decision. Second, ASARCO, Inc. ("ASARCO"), a producer of nonferrous metals, appeals the District Court's denial of its motion to intervene. The District Court so

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ruled because it found ASARCO's motion to be untimely filed. 1

On the first appeal, No. 88-5397, we adhere to the holding of the court in Burford I that NWF "has alleged injury in fact sufficient to establish standing to pursue its ... claims against the Department," 835 F.2d at 314, and we conclude that the record before us is more than adequate to allow NWF to survive a motion for summary judgment on standing. Therefore, we reverse the judgment of the District Court and remand for a determination on the merits. 2

On the second appeal, No. 88-5291, we reverse the District Court's denial of ASARCO's motion to intervene with respect to one of ASARCO's claims, because we find that the motion was timely filed. We remand this portion of the case to the District Court to allow it to consider whether ASARCO's intervention is presently warranted.


    1. Standing of the National Wildlife Federation

      NWF filed suit under the Federal Land Policy and Management Act ("FLPMA"), 43 U.S.C. Secs. 1701 et seq. (1982); the National Environmental Policy Act of 1969 ("NEPA"), 42 U.S.C. Secs. 4321 et seq. (1982); and the Administrative Procedure Act ("APA"), 5 U.S.C. Secs. 551 et seq. (1982), challenging Interior's ongoing "Land Withdrawal Review Program" ("Program"). The Program primarily involves the termination of land "withdrawals" and "classifications," the two main vehicles through which Interior establishes and implements land use planning for millions of acres of federal public lands. "Classifications" allow Interior to categorize lands for specific usage, and frequently designate public lands for retention, thereby segregating them from the scope of various land disposal laws. "Withdrawals" directly remove designated public lands from disposal under the general land laws. The Program is implemented by the Bureau of Land Management ("BLM"), a subagency of Interior.

      Pursuant to the Program, the Department, relying on its authority under the FLPMA, 3 lifted protective restrictions from nearly 180 million acres of federal land located in seventeen states. According to the Assistant Director of Land Resources for the BLM, over thirteen million acres of public lands that previously were closed to some or all types of mining are now open to be mined by private parties as a result of these classification and withdrawal terminations, see Affidavits of BLM Assistant Director Frank Edwards, Joint Appendix ("J.A.") 75, 102-03, and another eight million acres are now open for mineral leasing, Burford I, 835 F.2d at 324-25. Hundreds of leases and sales have already been effectuated or are pending for mining, mineral leasing, agricultural, commercial, and other proposed developmental uses. See id.

      NWF filed suit challenging the Program on July 15, 1985, simultaneously moving for preliminary injunctive relief. On December 4, 1985, the District Court granted NWF's motion for a preliminary injunction, enjoining Interior from issuing any new "withdrawal revocations" or "classification terminations" and from engaging in any activities inconsistent with extant withdrawals and terminations. National Wildlife Federation v. Burford, 676 F.Supp.

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      271 (D.D.C.1985). 4

      On December 11, 1987, a panel of this court affirmed the District Court's grant of preliminary relief. See Burford I, supra. This court first addressed preliminary matters such as standing, the effect on absent third parties, and exhaustion, see 835 F.2d at 310-18, and concluded "that the Federation has alleged facts that demonstrate that the actions of the Department threaten to harm the cognizable interests of the Federation's members. Consequently, we find that the Federation has alleged injury in fact sufficient to establish standing to pursue its two FLPMA claims against the Department." Id. at 314. Passing to the merits, the court in Burford I held that the Federation had satisfied the burden of proof necessary to sustain a preliminary injunction. Conceding that this was a "close" case, id. at 319, the court nevertheless held that the District Court had not abused its discretion in finding that NWF had shown a likelihood of success on the merits, see id. at 327. 5

      Following this court's remand in Burford I, and during subsequent pre-trial proceedings before the District Court, NWF complained of the same specific injury from the Program's reclassifications that it had cited in its motion for the preliminary injunction. First, NWF claimed that its many members who "use and enjoy the environmental resources that will be adversely affected by the challenged actions" would be deprived of such use by the development of these lands. Brief for Appellant NWF at 10. Second, NWF complained that the organization and its members had been injured by being denied "information on the potential impacts of defendants' actions" as well as "the opportunity to participate in defendants' decision-making." Id. In support of these complaints, NWF resubmitted to the trial court the affidavits of two of its members, Peggy K. Peterson, see J.A. 209, and Richard L. Erman, see J.A. 205, and the sworn declaration of its Vice-President for Resources Conservation, Lynn A. Greenwalt, see J.A. 212. Two of these same affidavits had been ruled sufficient to establish standing for the purposes of a preliminary injunction by both the District Court itself and by this court in Burford I.

      Both sides moved for summary judgment; the matter was extensively briefed and oral argument was heard on the motions on July 22, 1988. After oral argument, the District Court directed both sides to submit additional memoranda by August 22, 1988, on the issue of NWF's standing to bring suit. Both parties complied with this order, but the trial court then declined to consider certain of the additional material submitted by the Federation. The court stated that it found these submissions, which included "declarations from four of its members," to be "evidentiary material," submitted "in addition to [NWF's] memorandum filed August 22, 1988." Because it found these submissions to be "untimely and in violation of our Order," it "decline[d] to consider them." National Wildlife Federation v. Burford, 699 F.Supp. 327 (1988), reprinted in J.A. 367, 370 n. 3 [hereinafter "Memorandum Opinion"].

      In the same Memorandum Opinion, issued on November 4, 1988, the District Court also dismissed the case for lack of standing and lifted the preliminary injunction. The court acknowledged that NWF had established standing in the prior proceedings before the court of appeals because "the issue of standing arose in the posture of defendant's motion to dismiss."

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      Memorandum Opinion, J.A. 370. On a motion to dismiss, the trial court reasoned, an appellate court had to assume the complaint's allegations to be true and had to construe them in a light most favorable to the organization. See id. (citing Burford I, 835 F.2d at 312; Warth v. Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 2206, 45 L.Ed.2d 343 (1975)). The District Court opined that Supreme Court and subsequent D.C. Circuit precedent mandated that more specific injury-in-fact must be shown to sustain standing on a motion for summary judgment than to sustain standing on a motion...

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