18 ELR 20857 | Environmental Law Reporter | copyright © 1988 | All rights reserved

National Wildlife Federation v. Burford

Nos. 86-5239; 86-5240 (D.C. Cir. April 29, 1988)

The court denies petitions for rehearing of its ruling that § 202(d) of the Federal Land Policy and Management Act requires that termination of public land classifications be consistent with resource management plans and that § 309(e) requires public participation in decisions to revoke withdrawals. Noting that the preliminary injunction has been in effect for more than two years, the court issues its mandate forthwith and directs the district court to proceed with the litigation.

[The earlier decisions from this litigation appear at 16 ELR 20422, 20427, and 18 ELR 20328.]

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

Counsel for Appellants
Roger J. Marzulla, Acting Ass't Attorney General
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2000

Constance E. Brooks
Mountain States Legal Foundation
1200 Lincoln St., Suite 600, Denver CO 80203
(303) 861-0244

Before: MIKVA, and WILLIAMS, Circuit Judges; WEIGEL,[*] Senior District Judge, United States District Court for the Northern District of California

[18 ELR 20857]


Upon consideration of the petitions for rehearing of the federal appellants and of Mountain States Legal Foundation it is

ORDERED, by the Court, that the petitions are denied, and it is

FURTHER ORDERED, by the Court, sua sponte, that the Clerk is directed to issue the mandate in these cases forthwith.

A memorandum of the Court is attached.

Per Curiam


PER CURIAM: On December 4, 1985, the district court issued a preliminary injunction enjoining the Director of the Bureau of Land Management, the Secretary of the Interior, and the Department of the Interior from reclassifying or revoking restrictions on 180 million acres of public lands located in 17 states. The details of that injunction as well as the underlying litigation and the contentions of the parties have been summarized in the earlier opinion of this court upholding the district court injunction. See National Wildlife Federation v. Burford, 835 F.2d 305 (D.C. Cir. 1987). Appellants filed petitions for rehearing and suggestions for rehearing en banc, which are currently pending before this court.

It has been over two years since the preliminary injunction was issued. As we stated in our opinion, "[t]his is a serious case with serious implications." 835 F.2d at 327. We noted then, and continue to believe, that some of the criticisms of the breadth and scope of the preliminary injunction offered in the vigorous dissent are not without force. In addition, we are aware that the district court injunction has placed on "hold" for over two years a complex governmental effort to review and adjust its classifications of vast tracts of land. It is also beyond dispute that countless parties are affected by the uncertainties associated with the unsettled status of these lands. For these reasons, we believe that the disposition of these millions of acres should not continue to rest any longer than necessary on the foundation of a preliminary injunction which was entered on consideration of the brief affidavits and cursory materials presented to the court below.

While this case continues to pend in our court, the district court has not gone forward with plenary consideration of the merits. The court hereby denies the petitions for rehearing and issues its mandate forthwith with directions to the parties and the district court to proceed with this litigation with dispatch.

It is so ordered.

* Sitting by designation pursuant to 28 U.S.C. 294(d).

18 ELR 20857 | Environmental Law Reporter | copyright © 1988 | All rights reserved