In this case we must decide whether respondent, the National Wildlife Federation (hereinafter respondent), is a proper party to challenge actions of the Federal Government relating to certain public lands.
Respondent filed this action in 1985 in the United States District Court for the District of Columbia against petitioners the United States Department of the Interior, the Secretary of the Interior, and the Director of the Bureau of Land Management (BLM), an agency within the Department. In its amended complaint, respondent alleged that petitioners had violated the Federal Land Policy and Management Act of 1976 (FLPMA), 90 Stat. 2744, 43 U. S. C. § 1701 et seq. (1982 ed.), the National Environmental Policy Act of 1969 (NEPA), 83 Stat. 852, 42 U. S. C. § 4321 et seq., and § 10(e) of the Administrative Procedure Act (APA), 5 U. S. C. § 706, in the course of administering what the complaint called the "land withdrawal review program" of the BLM. Some background information concerning that program is necessary to an understanding of this dispute.
In various enactments, Congress empowered United States citizens to acquire title to, and rights in, vast portions of federally owned land. See, e. g., Rev. Stat. §2319, 30 U. S. C. § 22 et seq. (Mining Law of 1872); 41 Stat. 437, as amended, 30 U. S. C. § 181 et seq. (Mineral Leasing Act of 1920). Congress also provided means, however, for the Executive to remove public lands from the operation of these statutes. The Pickett Act, 36 Stat. 847, 43 U. S. C. § 141 (1970 ed.), repealed, 90 Stat. 2792 (1976), authorized the President "at any time in his discretion, temporarily [to] withdraw from settlement, location, sale, or entry any of the
Management of the public lands under these various laws became chaotic. The Public Land Law Review Commission, established by Congress in 1964 to study the matter, 78 Stat. 982, determined in 1970 that "virtually all" of the country's public domain, see Public Land Law Review Commission, One Third of the Nation's Land 52 (1970)—about one-third of the land within the United States, see id., at 19—had been withdrawn or classified for retention; that it was difficult to determine "the extent of existing Executive withdrawals and the degree to which withdrawals overlap each other," id., at 52; and that there were inadequate records to show the purposes
In 1976, Congress passed the FLPMA, which repealed many of the miscellaneous laws governing disposal of public land, 43 U. S. C. § 1701 et seq. (1982 ed.), and established a policy in favor of retaining public lands for multiple use management. It directed the Secretary to "prepare and maintain on a continuing basis an inventory of all public lands and their resource and other values," § 1711(a), required land use planning for public lands, and established criteria to be used for that purpose, § 1712. It provided that existing classifications of public lands were subject to review in the land use planning process, and that the Secretary could "modify or terminate any such classification consistent with such land use plans." § 1712(d). It also authorized the Secretary to "make, modify, extend or revoke" withdrawals. § 1714(a). Finally it directed the Secretary, within 15 years, to review withdrawals in existence in 1976 in 11 Western States, § 1714 (l)(1), and to "determine whether, and for how long, the continuation of the existing withdrawal of the lands would be, in his judgment, consistent with the statutory objectives of the programs for which the lands were dedicated and of the other relevant programs," § 1714(l)(2). The activities undertaken by the BLM to comply with these various provisions constitute what respondent's amended complaint styles the BLM's "land withdrawal review program," which is the subject of the current litigation.
Pursuant to the directives of the FLPMA, petitioners engage in a number of different types of administrative action with respect to the various tracts of public land within the United States. First, the BLM conducts the review and recommends the determinations required by § 1714(l) with
Second, the Secretary revokes some withdrawals under § 204(a) of the Act, which the Office of the Solicitor has interpreted to give the Secretary the power to process proposals for revocation of withdrawals made during the "ordinary course of business." U. S. Dept. of the Interior, Memorandum from the Office of the Solicitor, Oct. 30, 1980. These revocations are initiated in one of three manners: An agency or department holding a portion of withdrawn land that it no longer needs may file a notice of intention to relinquish the lands with the BLM. Any member of the public may file a petition requesting revocation. And in the case of lands held by the BLM, the BLM itself may initiate the revocation proposal. App. 56-57. Withdrawal revocations may be made for several reasons. Some are effected in order to permit sale of the land; some for record-clearing purposes, where the withdrawal designation has been superseded by congressional action or overlaps with another withdrawal designation; some in order to restore the land to multiple use management pursuant to § 102(a)(7) of the FLPMA, 43 U. S. C. § 1701(a)(7) (1982 ed.). App. 142-145.
Third, the Secretary engages in the ongoing process of classifying public lands, either for multiple use management, 43 CFR pt. 2420 (1988), for disposal, pt. 2430, or for other uses. Classification decisions may be initiated by petition, pt. 2450, or by the BLM itself, pt. 2460. Regulations promulgated
In its complaint, respondent averred generally that the re-classification of some withdrawn lands and the return of others to the public domain would open the lands up to mining activities, thereby destroying their natural beauty. Respondent alleged that petitioners, in the course of administering the Nation's public lands, had violated the FLPMA by failing to "develop, maintain, and, when appropriate, revise land use plans which provide by tracts or areas for the use of the public lands," 43 U. S. C. § 1712(a) (1982 ed.); failing to submit recommendations as to withdrawals in the 11 Western States to the President, § 1714(l); failing to consider multiple uses for the disputed lands, § 1732(a), focusing inordinately on such uses as mineral exploitation and development; and failing to provide public notice of decisions, §§ 1701(a)(5), 1712(c)(9), 1712(f), and 1739(e). Respondent also claimed that petitioners had violated NEPA, which requires federal agencies to "include in every recommendation or report on. . . major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on ... the environmental impact of the proposed action." 42 U. S. C. § 4332(2)(C) (1982 ed.). Finally, respondent alleged that all of the above actions were "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law," and should therefore be set aside pursuant to § 10(e) of the APA, 5 U. S. C. § 706. Appended to the amended complaint was a schedule of specific land-status determinations, which the complaint stated had been "taken by defendants since January 1, 1981"; each was identified by a listing in the Federal Register.
In December 1985, the District Court granted respondent's motion for a preliminary injunction prohibiting petitioners from "[m]odifying, terminating or altering any withdrawal, classification, or other designation governing the protection
This time the Court of Appeals reversed. National Wildlife Federation v. Burford, 278 U. S. App. D. C. 320, 878 F.2d 422 (1989). It both found the Peterson and Erman affidavits sufficient in themselves and held that it was an abuse of discretion not to consider the four additional affidavits as well.
We first address respondent's claim that the Peterson and Erman affidavits alone suffice to establish respondent's right to judicial review of petitioners' actions. Respondent does not contend that either the FLPMA or NEPA provides a private right of action for violations of its provisions. Rather, respondent claims a right to judicial review under § 10(a) of the APA, which provides:
This provision contains two separate requirements. First, the person claiming a right to sue must identify some "agency action" that affects him in the specified fashion; it is judicial review "thereof" to which he is entitled. The meaning of "agency action" for purposes of § 702 is set forth in 5 U. S. C. § 551(13), see 5 U. S. C. § 701(b)(2) ("For the purpose of this chapter . . . `agency action' ha[s] the meanin[g] given ... by section 551 of this title"), which defines the term as "the whole or a part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act," 5 U. S. C. § 551(13). When, as here, review is sought not pursuant to specific authorization in the substantive statute, but only under the general review provisions of the APA, the "agency action" in question must be "final agency action." See 5 U. S. C. § 704 ("Agency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court are subject to judicial review" (emphasis added).
Because this case comes to us on petitioners' motion for summary judgment, we must assess the record under the
As we stated in Celotex Corp. v. Catrett, 477 U.S. 317 (1986), "the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Id., at 322. Where no such showing is made, "[t]he moving party is `entitled to a judgment as a matter of law' because the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof." Id., at 323.
These standards are fully applicable when a defendant moves for summary judgment, in a suit brought under § 702, on the ground that the plaintiff has failed to show that he is "adversely affected or aggrieved by agency action within the meaning of a relevant statute." The burden is on the party seeking review under § 702 to set forth specific facts (even though they may be controverted by the Government) showing that he has satisfied its terms. Sierra Club v. Morton,
We turn, then, to whether the specific facts alleged in the two affidavits considered by the District Court raised a genuine issue of fact as to whether an "agency action" taken by petitioners caused respondent to be "adversely affected or aggrieved ... within the meaning of a relevant statute." We assume, since it has been uncontested, that the allegedly affected interests set forth in the affidavits — "recreational use and aesthetic enjoyment"—are sufficiently related to the purposes of respondent association that respondent meets the requirements of § 702 if any of its members do. Hunt v. Washington State Apple Advertising Comm'n, 432 U.S. 333 (1977).
As for the "agency action" requirement, we think that each of the affidavits can be read, as the Court of Appeals believed, to complain of a particular "agency action" as that term is defined in § 551. The parties agree that the Peterson affidavit, judging from the geographic area it describes, must refer to that one of the BLM orders listed in the appendix to the complaint that appears at 49 Fed. Reg. 19904-19905 (1984), an order captioned W-6228 and dated April 30, 1984, terminating the withdrawal classification of some 4,500 acres of land in that area. See, e. g., Brief for Petitioners 8-10. The parties also appear to agree, on the basis of similar deduction, that the Erman affidavit refers to the BLM order listed in the appendix that appears at 47 Fed. Reg. 7232-7233
We also think that whatever "adverse effect" or "aggrievement" is established by the affidavits was "within the meaning of the relevant statute"—i. e., met the "zone of interests" test. The relevant statute, of course, is the statute whose violation is the gravamen of the complaint — both the FLPMA and NEPA. We have no doubt that "recreational use and aesthetic enjoyment" are among the sorts of interests those statutes were specifically designed to protect. The only issue, then, is whether the facts alleged in the affidavits showed that those interests of Peterson and Erman were actually affected.
The Peterson affidavit averred:
Erman's affidavit was substantially the same as Peterson's, with respect to all except the area involved; he claimed use of land "in the vicinity of Grand Canyon National Park, the Arizona Strip (Kanab Plateau), and the Kaibab National Forest." Id., at 187a.
The District Court found the Peterson affidavit inadequate for the following reasons:
The District Court found the Erman affidavit "similarly flawed."
The Court of Appeals disagreed with the District Court's assessment as to the Peterson affidavit (and thus found it unnecessary to consider the Erman affidavit) for the following reason:
That is not the law. In ruling upon a Rule 56 motion, "a District Court must resolve any factual issues of controversy in favor of the non-moving party" only in the sense that, where the facts specifically averred by that party contradict facts specifically averred by the movant, the motion must be denied. That is a world apart from "assuming" that general averments embrace the "specific facts" needed to sustain the complaint. As set forth above, Rule 56(e) provides that judgment "shall be entered" against the nonmoving party unless affidavits or other evidence "set forth specific facts showing that there is a genuine issue for trial." The object of this provision is not to replace conclusory allegations of the complaint or answer with conclusory allegations of an affidavit. Cf. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986) ("[T]he plaintiff could not rest on his allegations of a conspiracy to get to a jury without `any significant probative evidence tending to support the complaint'"), quoting First National Bank of Ariz. v. Cities Service Co., 391 U.S. 253, 290 (1968). Rather, the purpose of Rule 56 is to enable a party who believes there is no genuine dispute as to a specific fact essential to the other side's case to demand at least one
At the margins there is some room for debate as to how "specific" must be the "specific facts" that Rule 56(e) requires in a particular case. But where the fact in question is the one put in issue by the § 702 challenge here — whether one of respondent's members has been, or is threatened to be, "adversely affected or aggrieved" by Government action — Rule 56(e) is assuredly not satisfied by averments which state only that one of respondent's members uses unspecified portions of an immense tract of territory, on some portions of which mining activity has occurred or probably will occur by virtue of the governmental action. It will not do to "presume" the missing facts because without them the affidavits would not establish the injury that they generally allege. That converts the operation of Rule 56 to a circular promenade: plaintiff's complaint makes general allegation of injury; defendant contests through Rule 56 existence of specific facts to support injury; plaintiff responds with affidavit containing general allegation of injury, which must be deemed to constitute averment of requisite specific facts since otherwise allegation of injury would be unsupported (which is precisely what defendant claims it is).
Respondent places great reliance, as did the Court of Appeals, upon our decision in United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669 (1973). The SCRAP opinion, whose expansive expression of what would suffice for § 702 review under its particular facts has never since been emulated by this Court, is of no relevance here, since it involved not a Rule 56 motion for summary judgment but a Rule 12(b) motion to dismiss on the pleadings. The latter, unlike the former, presumes that general allegations embrace those specific facts that are necessary to support the claim. Conley v. Gibson, 355 U.S. 41, 45-46 (1957).
We turn next to the Court of Appeals' alternative holding that the four additional member affidavits proffered by respondent in response to the District Court's briefing order established its right to § 702 review of agency action.
It is impossible that the affidavits would suffice, as the Court of Appeals held, to enable respondent to challenge the entirety of petitioners' so-called "land withdrawal review program." That is not an "agency action" within the meaning of § 702, much less a "final agency action" within the meaning of § 704. The term "land withdrawal review program" (which as far as we know is not derived from any authoritative text) does not refer to a single BLM order or regulation, or even to a completed universe of particular BLM orders and regulations. It is simply the name by which petitioners have occasionally referred to the continuing (and thus constantly changing) operations of the BLM in reviewing withdrawal revocation applications and the classifications of public lands and developing land use plans as required by the FLPMA. It is no more an identifiable "agency action"—much less a "final agency action"—than a "weapons procurement program" of the Department of Defense or a "drug interdiction program" of the Drug Enforcement Administration. As the District Court explained, the "land withdrawal review program" extends to, currently at least, "1250 or so individual classification terminations and withdrawal revocations." 699 F. Supp., at 332.
In the present case, the individual actions of the BLM identified in the six affidavits can be regarded as rules of general applicability (a "rule" is defined in the APA as agency action of "general or particular applicability and future effect," 5 U. S. C. § 551(4) (emphasis added)) 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.
The Court of Appeals' reliance upon the supplemental affidavits was wrong for a second reason: The District Court did not abuse its discretion in declining to admit them. Petitioners filed their motion for summary judgment in September 1986; respondent filed an opposition but did not submit any new evidentiary materials at that time. On June 27, 1988, after the case had made its way for the first time through the Court of Appeals, the District Court announced that it would hold a hearing on July 22 on "the outstanding motions for summary judgment," which included petitioners' motion challenging respondent's § 702 standing. The hearing was held and, as noted earlier, the District Court issued an order directing respondent to file "a supplemental memorandum regarding
Respondent's evidentiary submission was indeed untimely, both under Rule 56, which requires affidavits in opposition to a summary judgment motion to be served "prior to the day of the hearing," Fed. Rule Civ. Proc. 56(c), and under Rule 6(d), which states more generally that "[w]hen a motion is supported by affidavit, . . . opposing affidavits may be served not later than 1 day before the hearing, unless the court permits them to be served at some other time." Rule 6(b) sets out the proper approach in the case of late filings:
This provision not only specifically confers the "discretion" relevant to the present issue, but also provides the mechanism
This last substantive obstacle is the greatest of all. The Court of Appeals presumably thought it was overcome because "the papers on which the trial court relied were two years old by the time it requested supplemental memoranda" and because "there was no indication prior to the trial court's request that [respondent] should have doubted the adequacy of the affidavits it had already submitted." 278 U. S. App. D. C., at 331, 878 F. 2d, at 433. We do not understand the relevance of the first point; the passage of so long a time as two years suggests, if anything, that respondent had more than the usual amount of time to prepare its response to the motion, and was more than moderately remiss in waiting until after the last moment. As to the suggestion of unfair surprise: A litigant is never justified in assuming that the court has made up its mind until the court expresses itself to that effect, and a litigant's failure to buttress its position because of confidence in the strength of that position is always indulged in at the litigant's own risk. In any case, whatever erroneous expectations respondent may have had were surely dispelled by the District Court's order in June 1988 announcing that the hearing on petitioners' motion would be held one month later. At least when that order issued, respondent was on notice that its right to sue was at issue, and that (absent proper motion) the time for filing any additional evidentiary materials was, at the latest, the day before the hearing.
Respondent's final argument is that we should remand this case for the Court of Appeals to decide whether respondent may seek § 702 review of petitioners' actions in its own right, rather than derivatively through its members. Specifically, it points to allegations in the amended complaint that petitioners unlawfully failed to publish regulations, to invite public participation, and to prepare an environmental impact statement with respect to the "land withdrawal review program" as a whole. In order to show that it is a "person ... adversely affected or aggrieved" by these failures, it submitted to the District Court a brief affidavit (two pages in the record) by one of its vice presidents, Lynn A. Greenwalt, who stated that respondent's mission is to "inform its members and the general public about conservation issues" and to advocate improvements in laws and administrative practices "pertaining to the protection and enhancement of federal lands," App. to Pet. for Cert. 193a-194a; and that its ability to perform this mission has been impaired by petitioners' failure "to provide adequate information and opportunities for public participation with respect to the Land Withdrawal Review Program." Id., at 194a. The District Court found this affidavit insufficient to establish respondent's right to seek judicial review, since it was "conclusory and completely devoid of specific facts." 699 F. Supp., at 330. The Court of Appeals, having reversed the District Court on the grounds discussed above, did not address the issue.
We agree with the District Court's disposition. Even assuming that the affidavit set forth "specific facts," Fed. R.
As is evident, this is even more deficient than the Peterson and Erman affidavits, which contained geographical descriptions whereby at least an action as general as a particular classification decision could be identified as the source of the grievance. As we discussed earlier, the "land withdrawal review program" is not an identifiable action or event. With regard to alleged deficiencies in providing information and permitting public participation, as with regard to the other illegalities alleged in the complaint, respondent cannot demand a general judicial review of the BLM's day-to-day operations. The Greenwalt affidavit, like the others, does not set forth the specific facts necessary to survive a Rule 56 motion.
* * *
For the foregoing reasons, the judgment of the Court of Appeals is reversed.
It is so ordered.
JUSTICE BLACKMUN, with whom JUSTICE BRENNAN, JUSTICE MARSHALL, and JUSTICE STEVENS join, dissenting.
In my view, the affidavits of Peggy Kay Peterson and Richard Loren Erman, in conjunction with other record evidence before the District Court on the motions for summary judgment, were sufficient to establish the standing of the National Wildlife Federation (Federation or NWF) to bring this suit. I also conclude that the District Court abused its discretion by refusing to consider supplemental affidavits filed after the hearing on the parties' cross-motions for summary judgment. I therefore would affirm the judgment of the Court of Appeals.
The Federation's asserted injury in this case rested upon its claim that the Government actions challenged here would lead to increased mining on public lands; that the mining would result in damage to the environment; and that the recreational opportunities of NWF's members would consequently be diminished. Abundant record evidence supported the Federation's assertion that on lands newly opened for mining, mining in fact would occur.
The requirement that evidence be submitted is satisfied here: The Federation has offered the sworn statements of two of its members. There remains the question whether the allegations in these affidavits were sufficiently precise to satisfy the requirements of Rule 56(e). The line of demarcation between "specific" and "conclusory" allegations is hardly a bright one. But, to my mind, the allegations contained in the Peterson and Erman affidavits, in the context of the record as a whole, were adequate to defeat a motion for summary judgment. These affidavits, as the majority acknowledges, were at least sufficiently precise to enable Bureau of Land Management (BLM) officials to identify the particular termination orders to which the affiants referred. See ante, at 885-886. And the affiants averred that their "recreational use and aesthetic enjoyment of federal lands . . . have been and continue to be adversely affected in fact by the unlawful
No contrary conclusion is compelled by the fact that Peterson alleged that she uses federal lands "in the vicinity of South Pass-Green Mountain, Wyoming," App. to Pet. for Cert. 191a, rather than averring that she uses the precise tract that was recently opened to mining. The agency itself has repeatedly referred to the "South Pass-Green Mountain area" in describing the region newly opened to mining.
I also conclude that the District Court abused its discretion in refusing to consider the supplemental affidavits filed by NWF after the hearing on the summary judgment motion.
That a requirement is "technical" does not, of course, mean that it need not be obeyed. And an appeal to the "spirit" of the Federal Rules is an insufficient basis for ignoring the import of their text. If the Rules imposed an absolute deadline for the submission of evidentiary materials, the District Court could not be faulted for strictly enforcing that deadline, even though the result in a particular case might be unfortunate. But, as the Court acknowledges, the Rules expressly permit the District Court to exercise discretion in deciding whether affidavits in opposition to a summary judgment motion may be submitted after the hearing.
The Federal Rules require that affidavits in opposition to a motion ordinarily must be served at least one day prior to the hearing; the Rules provide, however, that the affidavits may be filed at a later time "where the failure to act was the result of excusable neglect." Rule 6(b); see n. 7, supra. Prior to the July 22, 1988, hearing on the parties' cross-motions for summary judgment, NWF had been assured repeatedly that its prior submissions were sufficient to establish its standing to sue. In its memorandum opinion granting the Federation's motion for a preliminary injunction, the District Court stated: "We continue to find irreparable injury to plaintiff and reaffirm plaintiff's standing to bring this action." National Wildlife Federation v. Burford, 676 F.Supp. 280, 281 (DC 1986).
Later that year the federal parties sought additional discovery on the question of standing. NWF sought to quash discovery, arguing that "[t]he Court should bar any additional discovery on this issue because (1) it has already found that plaintiff has standing; (2) plaintiff has already produced affidavits which demonstrate standing and therefore any additional discovery would be unreasonably cumulative, duplicative, burdensome and expensive within the meaning of Rule 26(c)(1); and (3) contrary to the government defendants' apparent theory, plaintiff need not demonstrate injury as to each and every action that is part of the program." Memorandum of Points and Authorities in Support of Plaintiff's Motion To Quash and for a Protective Order 5-6 (July 1, 1986). In the alternative, NWF argued that if additional discovery on standing was to be ordered, it should be confined to the requirement that a limited number of additional affidavits be submitted. Id., at 22. The District Court, on July 14, 1986, granted in full the Federation's motion to quash and ordered "that no further discovery of plaintiff or
Nor did the District Court's order of June 27, 1988, scheduling a motion hearing for the following July 22, place NWF on notice that its claim of standing might be reconsidered. That order made clear that the hearing would consider the summary judgment motions of both the federal parties and
Certainly the Federation could have submitted additional evidentiary materials in support of its claim of standing, even though it had no reason to believe that further submissions were necessary. But it would hardly enhance the efficiency
These are pressing concerns when the hearing on a summary judgment motion represents the parties' last opportunity to set forth their legal arguments. In the present case, however, the District Court concluded the July 22, 1988, hearing by requesting supplemental briefing on the issue of standing.
The District Court discussed none of these factors in explaining its refusal to consider the supplemental affidavits. Indeed, the District Court offered no justification at all for its action beyond the assertion that the affidavits were untimely.
In Part IV-A, ante, at 890-894, the majority sets forth a long and abstract discussion of the scope of relief that might have been awarded had the Federation made a sufficient showing of injury from environmental damage to a particular tract of land. Since the majority concludes in other portions of its opinion that the Federation lacks standing to challenge any of the land-use decisions at issue here, it is not clear to me why the Court engages in the hypothetical inquiry contained in Part IV-A. In any event, I agree with much of the Court's discussion, at least in its general outline. The Administrative Procedure Act permits suit to be brought by any person "adversely affected or aggrieved by agency action." 5 U. S. C. § 702. In some cases the "agency action" will consist of a rule of broad applicability; and if the plaintiff prevails, the result is that the rule is invalidated, not simply that the court forbids its application to a particular individual. Under these circumstances a single plaintiff, so long as he is injured by the rule, may obtain "programmatic" relief that affects the rights of parties not before the court. On the other hand, if a generally lawful policy is applied in an illegal manner on a particular occasion, one who is injured is not thereby entitled to challenge other applications of the rule.
Application of these principles to the instant case does not turn on whether, or how often, the Bureau's land-management policies have been described as a "program."
The majority, quoting the District Court, characterizes the Bureau's land management program as "`1250 or so individual classification terminations and withdrawal revocations.'" Ante, at 890; see National Wildlife Federation v. Burford, 699 F.Supp. 327, 332 (DC 1988). The majority offers no argument in support of this conclusory assertion, and I am far from certain that the characterization is an accurate one. Since this issue bears on the scope of the relief ultimately to be awarded should the plaintiff prevail, rather than on the jurisdiction
Since I conclude that the Peterson and Erman affidavits provided sufficient evidence of NWF's standing to withstand a motion for summary judgment, and that the District Court abused its discretion by refusing to consider the Federation's supplemental affidavits, I would affirm the judgment of the Court of Appeals. I respectfully dissent.
Briefs of amici curiae urging affirmance were filed for the State of California et al. by John K. Van de Kamp, Attorney General of California, Andrea Sheridan Ordin, Chief Assistant Attorney General, and Craig C. Thompson, Susan L. Durbin, Clifford L. Rechtschaffen, and Nilda M. Mesa, Deputy Attorney Generals, and for the Attorneys General for their respective States as follows: Robert A. Butterworth of Florida, Lacy H. Thornburg of North Carolina, Anthony J. Celebrezze, Jr., of Ohio, Jeffrey L. Amestoy of Vermont, and Joseph B. Meyer of Wyoming; and for the Wilderness Society et al. by Bruce J. Ennis, Jr.
In one of the four new affidavits, Peggy Peterson, one of the original affiants, states that a corporation has filed a mine permit application with the BLM covering a portion of the land to which her original affidavit pertained. App. to Brief in Opposition for Respondent National Wildlife Federation 16. If that permit is granted, there is no doubt that agency action ripe for review will have occurred; nor any doubt that, in the course of an otherwise proper court challenge, affiant Peterson, and through her respondent, would be able to call into question the validity of the classification order authorizing the permit. However, before the grant of such a permit, or (when it will suffice) the filing of a notice to engage in mining activities, or (when only "negligible disturbance" will occur) actual mining of the land, it is impossible to tell where or whether mining activities will occur. Indeed, it is often impossible to tell from a classification order alone whether mining activities will even be permissible. As explained in the uncontested affidavit of the BLM's Assistant Director of Land Resources:
"The lands may be subject to another withdrawal of comparable scope or they may be subject to classification segregations tantamount to such a withdrawal. In that case, the lands would not be opened to the operation of the public land laws so that the removal of one of the withdrawals has no practical effect. Another reason why there may not be any change is that before the revocation occurred, the lands may have been transferred into private ownership. Consequently, the withdrawal revocation amounts to nothing more than a paper transaction .... In the alternative, a revoked withdrawal may open the lands to the operation of the public land and mineral laws.... Some withdrawal revocations are made without prior knowledge as to what subsequent disposition may be made of the lands. After the lands are opened, they might be transferred out of federal ownership by sale, exchange, or some other discretionary mode of disposal, not anticipated when the withdrawal was revoked. These subsequent discretionary actions require separate and independent decisionmaking that, obviously, are divorced from the prior revocation decision. Environmental and other management concerns and public participation are taken into account in relation to the post-revocation decisionmaking." Affidavit of Frank Edwards, Aug. 18, 1985, App. 61-62.
A BLM Mineral Report issued June 17, 1982, concluded that mining and associated activities "could have an adverse impact on crucial moose habitat, deer habitat, some elk habitat, and a variety of small game and bird species. Improvements at campgrounds, as well as land in the immediate vicinity, could either be damaged or destroyed. These activities could make it difficult for the BLM to manage the forest production and harvesting in the South Pass area. Historical and cultural resources which have and have not been identified could be either damaged or destroyed." Defendant-Intervenors' Exh. 7 (attached as Appendix 1 to Plaintiff National Wildlife Federation's Statement of Points and Authorities in Support of Its Standing To Proceed (Aug. 22, 1988)).
The federal parties do not concede that the supplemental affidavits established with certainty the Federation's standing; they contend that further discovery might show the affiants' allegations to be untrue. The federal parties do concede, however, that the supplemental affidavits were not facially deficient. Tr. of Oral Arg. 19.
Along with its Reply Memorandum, NWF submitted an additional filing entitled Plaintiff National Wildlife Federation's Memorandum in Opposition to Defendant-Intervenors' Motion To Strike Plaintiff's Supplementation of the Record (Sept. 14, 1988). That filing stated: "For the reasons stated in [the reply memorandum] at page 17, n. 16, plaintiff requests that defendant-intervenors' motion to strike be denied." (In light of this separate submission, addressed solely to the question whether the supplemental affidavits should be considered, and expressly referring to n. 16 of the reply memorandum, it is difficult to fathom the Court's assertion that NWF's request was "buried" in the Federation's filings. See ante, at 896-897, n. 5.) This separate filing, in conjunction with the reply memorandum, satisfied Rule 6(b)'s requirement that the request for enlargement of time be made "upon motion." Though neither of these filings was expressly denominated a "motion," they met the requirements of Rule 7(b): They were submitted in writing, were signed by counsel, "state[d] with particularity the grounds therefor," and unambiguously "set forth the relief. . . sought." See Campos v. LeFevre, 825 F.2d 671, 676 (CA2 1987) ("[N]o particular form of words is necessary to render a filing a `motion.' Any submission signed by a party that may fairly be read as a request to the district court to exercise its discretionary powers . . . should suffice"), cert. denied, 484 U.S. 1014 (1988); Smith v. Danyo, 585 F.2d 83, 86 (CA3 1978) ("Rule 7(b) requires no more than that . . . a motion `state with particularity the grounds' upon which it is based. Plainly, an affidavit which is filed to obtain an order disqualifying a judge satisfies the requirements of Rule 7(b). . . . The . . . failure to type in the word `motion' above the word `affidavit' in no way detracts from the notice which the affidavit gave of the nature of the application"). Cf. Snyder v. Smith, 736 F.2d 409, 419 (CA7) ("The Federal Rules are to be construed liberally so that erroneous nomenclature in a motion does not bind a party at his peril"), cert. denied, 469 U.S. 1037 (1984); Miller v. Transamerican Press, Inc., 709 F.2d 524, 527 (CA9 1983) ("The court will construe [a motion], however styled, to be the type proper for the relief requested"); 2A J. Moore & J. Lucas, Moore's Federal Practice ¶ 7.05, pp. 7-16 to 7-17 (1989) ("[I]t is the motion's substance, and not merely its linguistic form, that determines its nature and legal effect").
I also decline to address the adequacy of the affidavit submitted by Lynn Greenwalt, since the Court of Appeals did not pass on that issue.