Conservation Law Foundation v. Harper

• Decision Date: 29 May 1984
• Docket Number: Civ. A. No. 82-2899-C.
• Citation: 587 F. Supp. 357
• Parties: CONSERVATION LAW FOUNDATION OF NEW ENGLAND, INC., et al., Plaintiffs, v. Edwin HARPER, et al., Defendants.
• Court: U.S. District Court — District of Massachusetts

587 F. Supp. 357

CONSERVATION LAW FOUNDATION OF NEW ENGLAND, INC., et al., Plaintiffs, v. Edwin HARPER, et al., Defendants.

Civ. A. No. 82-2899-C.

United States District Court, D. Massachusetts.

May 29, 1984.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Conservation Law Foundation of New England, Inc., Peter Shelley, Boston, Mass., for plaintiffs.

Patti Saris and Paul Johnson, Asst. U.S. Attys., Boston, Mass., for defendants.

MEMORANDUM

CAFFREY, Chief Judge.

This is a civil action in which plaintiffs seek declaratory and injunctive relief for alleged violations of the National Environmental Policy Act, 42 U.S.C. §§ 4321 et seq. ("NEPA"), and of various other federal statutes. Plaintiffs invoke this Court's jurisdiction under 28 U.S.C. §§ 1331, 1361 and 2201. The case is now before the Court on defendants' motion to dismiss.

For purposes of a motion to dismiss, all averments of the plaintiffs' complaint are taken as true. Jenkins v. McKeithen, 395 U.S. 411, 421, 89 S.Ct. 1843, 1848, 23 L.Ed.2d 404 (1969); O'Brien v. DiGrazia, 544 F.2d 543, 545 (1st Cir.1976), cert. denied sub nom. O'Brien v. Jordan, 431 U.S. 914, 97 S.Ct. 2173, 53 L.Ed.2d 223 (1977). A court should not allow a motion to dismiss "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957).

Plaintiffs are numerous conservation and environmental organizations including, among others, the Conservation Law Foundation of New England, Inc., Save the Bay, and the National Resources Defense Council, Inc. The complaint states that members of the plaintiff groups use the lands allegedly affected by defendants' activities for environmental, conservation and aesthetic activities.

Defendants include Edwin Harper, Gerald Carmen, Edwin Meese, James Baker, David Stockman, William Clark, Martin Feldstein, and Bruce Selfon, in their official capacities as members of the Property Review Board (PRB). President Reagan created the PRB by Executive Order No. 12348, 47 Fed.Reg. 8547 (1982), "in order to improve management of Federal real property." The PRB is empowered among other things to "develop and review Federal real property acquisition, utilization, and disposal policies with respect to their relationship to other Federal policies"; to advise the Administrator of General Services with regard to identifying and promptly disposing of non-essential real property holdings; and to "establish for each Executive agency annually the target amount of its real property holdings to be identified as excess." Id.

Other defendants are James Watt, Secretary of the Department of Interior; John Block, Secretary of the Department of Agriculture; Robert Burford, Director of the Bureau of Land Management; Max Paterson, Chief of the United States Forest Service; and Donald Regan, Secretary of the Treasury Department.

Plaintiffs claim that defendants have developed a "comprehensive new program administered by the Property Review Board and carried out by the other defendants" to change dramatically the federal government's disposal of public property. They allege that the PRB and other defendants "have begun to carry out their new duties and implement a massive new program of land sales."

Under this "program," the PRB would direct a concerted effort to improve Federal asset management and to dispose of unneeded Federal property. The program allegedly calls for discontinuance of free land transfers to Federal agencies and the "phasing out" of discounted and no-cost conveyances to state and local governments. It allegedly requires that conveyances to state and local governments be made "as a rule ... only at fair market value," with limited exceptions. Excess properties will be offered for sale first to state and local governments. If state and local governments are unwilling to pay fair market value, the properties will be offered for sale to the general public. Proceeds from such sales would be used "to begin retiring the national debt."

Plaintiffs allege that defendants expect the program to generate receipts of $1.3 billion in fiscal year 1983, and over $4.25 billion in fiscal years 1984-1987. Plaintiffs allege that, by comparison, GSA receipts from sales of surplus real property amounted to approximately $60 million a year prior to implementation of the program.

The complaint alleges that defendants have never held an administrative public hearing, or a public rulemaking proceeding, nor have they undertaken any "evaluation of the vast environmental consequences of this new program." Plaintiffs allege that, despite this, defendants have begun to implement the program by identifying and selling large amounts of federal property.

NEPA

In Count I, plaintiffs allege that defendants have failed to prepare "an adequate environmental assessment or any other document analyzing the environmental effects of their program as required by NEPA and its implementing regulations."

Defendants challenge plaintiffs' standing to sue under NEPA. To establish standing plaintiffs must allege that the challenged activity will cause them "injury in fact," that the injury "fairly can be traced to the challenged action," and that the injury is likely to be redressed by a favorable decision. Valley Forge Christian College v. Americans United for Separation of Church and State, Inc. ("Valley Forge"), 454 U.S. 464, 472, 102 S.Ct. 752, 758, 70 L.Ed.2d 700 (1982). The alleged injury must also be to an interest arguably within the zone of interests to be protected by NEPA. Id. at 475, 102 S.Ct. at 760. Moreover, plaintiffs' mere "organizational interest" in the environment is not sufficient to establish standing. Sierra Club v. Morton, 405 U.S. 727, 738-40, 92 S.Ct. 1361, 1367-68, 31 L.Ed.2d 636 (1972). Plaintiffs must show that they personally have suffered actual or threatened injury from defendants' allegedly illegal activity. Valley Forge, 454 U.S. at 473, 102 S.Ct. at 759.

NEPA is designed to force decision-makers to consider the environmental effects of their activities and to weigh them against the benefits of their actions. It operates directly "to influence the decision-making process." Commonwealth of Massachusetts v. Watt, 716 F.2d 946, 952 (1st Cir.1983). Accordingly, "when a decision to which NEPA obligations attach is made without the informed environmental consideration that NEPA requires, the harm that NEPA intends to prevent has been suffered." Id.

Plaintiffs in this case allege that their members use public lands for recreational activities and aesthetic enjoyment. They allege that defendants will sell or cause the sale of those public lands without observing NEPA's procedural requirements. They claim that sales of those lands will reduce the amount of public land available for their recreational and aesthetic enjoyment, and will adversely affect their continued use of the land. I rule that those allegations are sufficient to establish an "injury in fact." Moreover, I rule that plaintiffs' recreational use and aesthetic enjoyment of the land fall within the zone of interests to be protected by NEPA. The statute itself states that it is the responsibility of the federal government "to use all practicable means, ... to assure for all Americans safe, healthful, productive, and esthetically and culturally pleasing surroundings and to attain the widest range of beneficial uses of the environment...." 42 U.S.C. § 4331(b)(2), (3). Finally, an order of this Court enjoining defendants to comply with NEPA procedures would provide a complete remedy for plaintiffs' alleged injury. For those reasons, I rule that plaintiffs have standing to assert claims under NEPA.

NEPA requires "all agencies of the Federal Government" to prepare a detailed statement regarding the environmental impact of any proposal for "major Federal action significantly affecting the quality of the human environment." 42 U.S.C. § 4332(2). Defendants argue that the PRB is not an "agency" subject to the requirements of NEPA.

Because the statute does not define the term "agency," courts have looked for guidance to the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 551 et seq. See Commonwealth of Puerto Rico v. Muskie, 507 F.Supp. 1035, 1057 (D.P.R.1981) vacated on other grounds, 668 F.2d 611 (1st Cir.1981). The APA defines an "agency" as "each authority of the Government of the United States, whether or not it is within or subject to review by another agency." 5 U.S.C. § 551(1). The Court of Appeals for the District of Columbia has ruled that the "APA apparently confers agency status on any administrative unit with substantial independent authority in the exercise of specific functions." Soucie v. David, 448 F.2d 1067, 1073 (D.C.Cir. 1971). Judge McGowan of that Court wrote in Washington Research Project, Inc. v. HEW, 504 F.2d 238, 248 (D.C.Cir.), cert. denied, 421 U.S. 963, 95 S.Ct. 1951, 44 L.Ed.2d 450 (1974), that "the important consideration is whether the governmental unit has any authority in law to make decisions." A court should inquire, therefore, whether the governmental unit has substantial authority to act with the sanction of the government behind it. See generally Lee Construction Co., Inc. v. Federal Reserve Bank of Richmond, 558 F.Supp. 165, 172-76 (D.Md.1982).

Whether the PRB in fact has sufficient authority to constitute it an agency under NEPA is a question of fact to be answered by examining the PRB in its particular governmental context. Washington Research Project, Inc. v. HEW, 504 F.2d at 246-47. Plaintiffs have alleged facts tending to show that the PRB possesses broad power, whether formal or informal, to control the sale or other disposition of public property. I rule that, for the purposes of this motion, those allegations are sufficient to bring the PRB within the scope of NEPA.

Plaintiffs...