ELR Citation: ELR 20422
No(s). 85-2238 (D.D.C. Dec 4, 1985)

In a motion for a preliminary injunction, the court rules that §202(d) of the Federal Land Policy and Management Act (FLPMA) requires that termination of public and classifications must be consistent with resource management plans, and that §309(e) requires public participation in decisions to revoke withdrawals. The court first grants the motion of Rep. John Seiberling (D-Ohio), Chair of the House Subcommittee on Public Lands, to intervene in the action udner Federal Rule of Civil Procedure (FRCP) 24(b), the rule governing permissive intervention. The court rules that Congressman Seiberling's motion was timely within the meaning of FRCP 24(b). Although he filed the motion three months after plaintiff filed its complaint, defendants have suffered no injury as a result. The congressman satisfied the requirements of FRCP 24(b)(2) that the motion to intervene present common questions of law and fact to the main action. The court then holds that Congressman Seiberling has satisfied the criteria for standing. He has established injury-in-fact since he is suing to enforce his right as a representative of Congress to participate in public land withdrawal revocation decisions, a right that has been denied to him by defendants' failure to submit to Congress its withdrawal revocation recommendations. He has also satisfied the causation and redressability requirements, even though FLPMA requires the recommendations to be made to the president, because FLPMA does not give the president discretion as to whether or not to send on the recommendations to Congress.

Turning to defendants' motion to dismiss, the court rules that the holders of mining claims and mineral leases on the lands in question meet the requirements of compulsory joinder set out in FRCP 19(a), but declines to dismiss the case. The mining claimants and lessees claim interests in the lands that are the subject of the case. Disposition of the action without them could adversely affect their ability to protect these interests, since an injunction could prevent them from pursuing their claims or developing the land. Although one intervenor already participating in the case represents a group of lessees, this does not insure adequate representation of the claims of others. The court concludes, however, that this potential harm is uncertain and is outweighed by the harm caused plaintiff by dismissal. Plaintiff would effectively be denied any forum in which it could litigate if the motion were granted, because of the geographical dispersal of the parties. The exception to compulsory joinder applying to the enforcement of public rights also argues against joinder in this case. Although the Supreme Court case establishing this exception concerned issues where the absent parties' interests were being advanced, subsequent courts have applied the exception where the third parties' interests could be adversely affected. The court declines to consider defendants' argument that plaintiff, an environmental group, has not established standing on its claim that defendant violated a duty to report to the president and Congress, ruling that Congressman Seiberling's standing is sufficient to prevent the complaint from being dismissed.

The court holds that plaintiff has satisfied all the criteria required for it to issue a preliminary injunction. It first holds that plaintiff has demonstrated it is likely to succeed on the merits on its claims that BLM has illegally terminated land classifications and revoked withdrawals. FLPMA requires that public land classifications be terminated pursuant to land use plans, codified in BLM's regulations as Resource Management Plans (RMPs), yet BLM has terminated classifications without having completed the RMP process. The pre-FLPMA Management Framework Plans relied upon by BLM may adhere to FLPMA's general principles but are not the equipment of the required RMPs. The court rules that §202(d) does not apply to withdrawal revocations, however, since they are not mentioned in the section and are separated from classificationactions in the statute. It then rules that withdrawal revocations do involve public lands "management" subject to the notice-and-comment requirements of FLPMA §309(e) and that BLM has failed to provide opportunity for notice and comment. With respect to the other injunction criteria, the court concludes that permitting any mining or leasing may cause irreparable harm to the aesthetic and natural environment, that harm to third parties as a result of the preliminary injunction will not be substantial, and that he public interest favors injunction given FLPMA's expressed policy of retention of the public lands.

[The court issued a stay of its injunction on December 16, 1985, which it reinstituted on February 10, 1986, 16 ELR 20427.]

Counsel for Plaintiff
Norman L. Dean
National Wildlife Federation
1412 16th St. NW, Washington DC 20036
(202) 637-3736

Counsel for Defendants
Pauline Milius
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-3797