CHAPTER 4 ALL I EVER NEEDED TO KNOW ABOUT NATURAL RESOURCES LITIGATION I LEARNED FROM SISYPHUS

• Jurisdiction: United States

Natural Resources & Environmental Litigation II
(May 1996)
CHAPTER 4
ALL I EVER NEEDED TO KNOW ABOUT NATURAL RESOURCES LITIGATION I LEARNED FROM SISYPHUS
Thomas D. Lustig
National Wildlife Federation
Boulder, Colorado

Hurdles to natural resources litigation involving federal land management:

I. The joy of becoming a political target.

II. Ripeness, laches, and the shell game.

A. Attacking a land management plan, policy, or generic federal land management decision for failing to comply with some regulatory or statutory requirement may draw the defense that your grievance is not yet ripe because the government will remedy the deficiency in some subsequent analysis prior to any on-the-ground disturbance.

1. This excuse received the Supreme Court's encouragement in Lujan v. National Wildlife Federation, 497 U.S. 871, 891 (1990):

[A] regulation is not ordinarily considered the type of agency action "ripe" for judicial review under the APA until ... its factual components [have been] fleshed out [ ] by some concrete action applying the regulation to the claimant's situation in a fashion that harms or threatens to harm them. ...In the present case, the individual actions of the BLM ... can be regarded as rules of general applicability ... announcing, with respect to vast expanses of territory that they cover, the agency's intent to grant requisite permission for certain activities, to decline to interfere with other activities, and to take other particular action if requested. It may well be, then, that even those individual actions will not be ripe for challenge until some further agency action or inaction more immediately harming the plaintiff occurs.

2. But see, Idaho Conservation League v. Mumma, 956 F.2d 1508 (9th Cir. 1992). Plaintiffs' challenged a Forest Plan's decision recommending against designating numerous roadless areas for wilderness. The district court blocked the challenge on grounds the feared injury was several degrees removed from the challenged action. Concluding that the Forest Plan did not

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propose any specific development, the district court found the plaintiffs' alleged injury too speculative for standing purposes.

The Ninth Circuit reversed:

We emphasize once again that, to the extent the EIS and ROD have an impact on Congress' final decision, waiting until the Department acts on a specific project would not be an adequate remedy. Moreover, a future challenge to a particular, site-specific action would lose much force once the overall plan has been approved—especially if the challenge were premised on the view that the overall plan grew out of erroneous assumptions.

Id. at 1519.

B. However, a delay in bringing an action at the land use plan phase by instead attacking the final "implementing" decision may produce a laches defense for not having timely pursued the earlier document which the agency now claims contains whatever compliance was demanded by the statute at issue.

This is not always an insurmountable defense: Oregon Environmental Council v. Kunzman, 714 F.2d 901, 904-05 (9th Cir. 1983) (In order to determine whether a proposed action complied with NEPA, the court examined both the EA prepared for the project and the programmatic EIS to which the EA was tiered. The court held both the EA and the programmatic EIS were inadequate for failure to describe site-specific impacts and found a site-specific EIS was required by NEPA.); Manatee County v. Gorsuch, 554 F.Supp. 778, 783, 788 (M.D.Fla. 1982) (In holding that neither an EIS for a harbor-deepening project nor an EA on the dumping of dredged material adequately addressed the site-specific impacts of the dumping of dredged material on the marine environment, the court observed: "[T]he court is not limited to the review of any single environmental document, but may evaluate the entire record of the agency."); NRDC v. Administrator, ERDA, 451 F.Supp. 1245, 1258 (D.D.C.1978), modified sub nom. NRDC v. U.S. NRC, 606 F.2d 1261 (D.C.Cir.1979) (When defendants attempted to argue the impacts of a project had been addressed in a programmatic EIS the court observed: "As a general rule, the preparation of a PEIS does not obviate the necessity of preparing a particularized impact statement for individual major federal actions that are components of a subject program."); see also Ventling v. Bergland, 479 F.Supp. 174, 179-80 (D.S.D.), aff'd mem., 615 F.2d 1365 (8th Cir. 1979); NRDC v. Morton, 388 F.Supp. at 838-41.

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III. Intervention — even if necessary, is it possible?

A. Courts increasingly seemingly deny intervention on grounds "the applicant's interest is adequately represented by existing parties." Fed.R.Civ.P.2 4(a). See...