11 ELR 20033 | Environmental Law Reporter | copyright © 1981 | All rights reserved

National Land for People, Inc. v. Bureau of Reclamation

No. 76-2027 (D.C. Cir. November 20, 1980)

The court affirms the lower court's order directing the Secretary of the Interior to promulgate regulations implementing the reclamation laws requiring holders of contracts for water from federal reclamation projects to sell landholdings in excess of 160 acres. Appellee argued that the lack of regulations allowed landholders to sell excess acreage at inflated prices. The court determines that the district court did not abuse its discretion in concluding that appellee was likely to prevail on the merits and enjoining the sale of excess land until the rules have been promulgated. Because the regulations cannot be promulgated prior to preparation of an environmental impact statement, however, the circuit court notes that the lower court may modify its order to permit interim sales.

Counsel for Appellee
George T. Frampton
Rogovin, Stern & Huge
1730 Rhode Island Ave. NW, Washington DC 20036
(202) 466-6464

Counsel for Appellants
Carl Strass
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2544

Robert L. McCarty
McCarty, Noone & Williams
Suite 3306, 490 L'Enfant Plaza E., Washington DC 20024
(202) 554-2955

Before Robinson, Robb, and Davis,* JJ.

[11 ELR 20033]


This cause came on to be heard on the record on appeal from the United States District Court for the District of Columbia, and was argued by counsel.

On consideration of the foregoing, it is

ORDERED and ADJUDGED by thi Ourt that, for the reasons set forth in the attached memorandum, the order of the District Court appealed from in this cause is hereby affirmed, without prejudice to further proceedings for the purpose specified in said memorandum.


Under statute facilitating reclamation of arid western lands, the Federal Government ordinarily will not provide water unconditionally to private landowners whose holdings exceed 160 acres.1 To obtain irrigation water from a federal reclamation project, [11 ELR 20034] such landowners must contract with the Department of the Interior to dispose of their excess acreage at prices "fixed by the Secretary of the Interior on the basis of [the land's] actual bona fide value at the date of appraisal without reference to the proposed construction of the irrigation works . . . ."2 Consequently, a number of landowners in various areas, including the Westlands Water District of California, have entered into recordable water contracts with the Secretary obligating them to convey their excess land within ten years at a price approved by the Secretary.

In 1975 the appellee, National Land for People, Inc., petitioned the Secretary with a request that he initiate proceedings under the Administrative Procedure Act (APA)3 aimed at formulating regulations to regulate excess-land sales. When the petition was denied, appellee began the instant litigation, asserting that the Department evaluated such sales according to informally — and allegedly improperly — adopted rules. Its members were hurt, appellee continued, because the claimed lack of adequate regulations allowed landowners to sell excess acreage at inflated prices, thereby foreclosing purchases by National Land members in the Westlands Water District.

The District Court accepted National Land's arguments. Accordingly, it granted appellee's request for a preliminary injunction,4 ordering the Secretary to initiate public rulemaking proceedings pursuant to the APA, and forbidding him from approving the sale of any excess land in Westlands Water District until the rules have been properly promulgated.5 Before the Secretary fully complied, however, the United States District Court for the Eastern District of California enjoined him from continuing with the rulemaking proceedings, pending preparation of an environmental impact statement concerning the proposed regulations.6 After several procedural developments not here relevant,7 the case reached us on appeal.

At the outset, we must emphasize the limited nature of our review. When presented with a motion for a preliminary injunction, the court must make its decision "'upon the basis of a series of estimates: the relative importance of the rights asserted and the acts sought to be enjoined, the irreparable nature of the injury allegedly flowing from denial of preliminary relief, the probability of the ultimate success or failure of the suit, the balancing of damage and convenience generally,'"8 And when, as here, a litigant has chosen to appeal from the grant or denial of the requested preliminary injunction, we normally will consider the merits only insofar as necessary to determine whether the District Court abused its discretion.9

From this perspective, we find no fault in the District Court's order. The court adequately gauged the probability of appellants' success on the questions of standing10 and applicability of the APA, the two substantive issues in the case. And we do not understand appellants to challenge the equitable balance the court struck. We accordingly affirm its injunctive order.

There is one complicating factor, however. The federal appellants tell us that because of the unexpected intervention by the District Court for the Eastern District of California, the new regulations will not be ready for issuance until July, 1981, at the earliest.11 Delay has already imposed a hardship on landowners, the federal appellants say, and they ask us to modify the injunction to permit excess-land sales to proceed in the interim.

This argument is essentially a factual one, which should be addressed to the District Court in the first instance. We therefore do not disturb the court's injunctive order at this time. Our affirmance of that order is without prejudice, however, to motions asking the court to determine whether the unanticipated delay in establishing the new regulations has disturbed the balance of equities; if so, the court may modify its order to permit the Secretary to approve interim sales of excess lands subject to such safeguards as the court in its sound discretion may devise or approve.

* Sitting by designation pursuant to 28 U.S.C. § 293(a) (1976).

1. 43 U.S.C. § 431 (1976).

2. 43 U.S.C. § 423e (1976) (emphasis added).

3. See 5 U.S.C. § 553 (1976).

4. National Land for People, Inc. v. Bureau of Reclamation, Civ. No. 76-0928 (D.D.C.), memorandum opinion and order (Aug. 9 & 13, 1976), Joint Appendix (J. App.) 272-281. The court found that National Land was likely to prevail at a trial on the merits; that its members had demonstrated that they would be irreparably harmed by denial of a preliminary injunction; that issuance of such an order would not injure their adversaries; and that the public interest would be served by the grant of a preliinary injunction. Id. (memorandum opinion) at 7, J. App. 279.

5. Id. (order) at 1, J. App. 280. The court also ordered periodic reports on steps taken to comply with its order. Id., J. App. 280.

6. County of Fresno v. Andrus, Nos. F-77-202-Civ., F-77-203-Civ., F-77-204-Civ., F-77-205-Civ., F-77-209-Civ., F-77-213-Civ. [8 ELR 20179] (E.D. Calif. Jan. 4, 1978).

7. Earlier, on the representation that rulemaking proceedings would be conducted pursuant to the APA, this court dismissed this appeal as moot. When the Secretary thereafter decided to resume approval of excess land sales, however, the court recalled its mandate and reinstated the appeal.

8. Perry v. Perry, 88 U.S. App. D.C. 337, 338, 190 F.2d 601, 602 (1951), quoting Communist Party v. McGrath, 96 F. Supp. 47, 48 (D.D.C. 1951) (concurring opinion).

9. Industrial Bank of Washington v. Tobriner, 132 U.S. App. D.C. 51, 54, 405 F.2d 1321, 1324 (1968); Young v. Motion Picture Ass'n, 112 U.S. App. D.C. 35, 37, 229 F.2d 119, 121 (1962).

10. Indeed,in light of the Supreme Court's recent decision in Bryant v. Yellen, 48 U.S.L.W. 4726 [10 ELR 20482] (June 16, 1980), the argument against standing may be doomed. See id. at 4730-4731.

11. Supplemental Brief for Federal Appellants at 11. It appears that the District Court could not have been aware of this when its order was entered.

11 ELR 20033 | Environmental Law Reporter | copyright © 1981 | All rights reserved