Lujan v. National Wildlife Federation

PETITIONER:Lujan
RESPONDENT:National Wildlife Federation
LOCATION:Doby’s Motel Court

DOCKET NO.: 89-640
DECIDED BY: Rehnquist Court (1988-1990)
LOWER COURT: United States Court of Appeals for the District of Columbia Circuit

CITATION: 497 US 871 (1990)
ARGUED: Apr 16, 1990
DECIDED: Jun 27, 1990

ADVOCATES:
E. Barrett Prettyman, Jr. – Argued the cause for the petitioners
Unknown Speaker

Facts of the case

The National Wildlife Federation (NWF) challenged 1,250 land-use designations made by the federal Bureau of Land Management (BLM). NWF filed suit under section 10(e) of the Administrative Procedure Act (APA), claiming that the actions were “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” NWF argued that it had standing to sue because two of its members used public lands “in the vicinity” of lands affected by the BLM’s decisions (four other members submitted affidavits claiming that they, too, used lands close to affected areas, but the District Court ruled that the affidavits had been submitted too late).

The BLM challenged the NWF’s right to sue, and the District Court agreed. It found that the two affidavits filed in a timely manner did not show that the members had been sufficiently affected to have standing to sue. Furthermore, the court ruled that even if they had had standing to challenge those specific BLM decisions, they would not have had standing to challenge all 1,250.

On appeal, however, the D.C. Circuit Court of Appeals reversed, holding that the initial two affidavits were enough to give them standing to challenge all 1,250 decisions. Moreover, the Court ruled that the District Court had abused its discretion by refusing to consider the additional four affidavits.

Question

Does an organization representing private citizens who use public land “in the vicinity” of areas affected by Bureau of Land Management (BLM) land-use designations have standing to challenge those designations under section 10(e) of the Administrative Procedure Act? Does standing to challenge several individual BLM decision confer standing to challenge those decisions as a whole, even when the organization’s members are not affected by the bulk of the decisions?

William H. Rehnquist:

We will hear argument now in 89-460, Manuel Lujan v. National Wildlife Federation.

Mr. Roberts.

John G. Roberts, Jr.:

Thank you, Mr. Chief Justice, and may it please the Court:

This case is here on certiorari to the United States Court of Appeals for the District of Columbia Circuit.

That court held that Respondent had standing to challenge hundreds of Bureau of Land Management land orders entered over the course of several years affecting 180 million acres of public lands in 17 states.

The court concluded that a single affidavit of one of Respondent’s members, Peggy Kay Peterson, was sufficient to confer that standing.

In her affidavit Ms. Peterson claimed that she used Federal lands in the vicinity of the South Pass/Green Mountain area of Wyoming, and she claimed that she was injured by a BLM decision to open that area to the staking of mining claims.

The district court found that the area in question covered some 2 million acres, of which only 6,000 acres had ever been closed to mining, and of those 6,000 the BLM decision only opened 4,500 to the staking of mining claims.

The court noted that Peterson’s affidavit said nothing about using the 4,500 affected acres and, therefore, concluded that she had shown no injury and that Respondent, therefore, had no standing.

Harry A. Blackmun:

But she also claimed about lack of access to information, didn’t she?

John G. Roberts, Jr.:

That claim was in the Greenwalt declaration, one of the other of the three original affidavits that were submitted by Respondent.

The claim there was that the organization had standing in its own right, without regard to any injury to its particular members.

Harry A. Blackmun:

Well, it’s in your case?

John G. Roberts, Jr.:

Yes, Your Honor.

And the district court, we believe, correctly concluded that that declaration, the Greenwalt declaration, was completely conclusory and devoid of specific facts.

But more important, it’s really just Sierra Club against Morton all over again.

Harry A. Blackmun:

But the court of appeals thought otherwise?

John G. Roberts, Jr.:

With respect, Your Honor, no, it did not reach the Greenwalt declaration.

It didn’t pass on that, choosing to rest its decision entirely on the Peterson affidavit.

The district court, however, did address the Greenwalt declaration and found it, as I’ve indicated, conclusory and devoid of fact.

It is, as I’ve mentioned, the Sierra Club case all over again.

In fact, it’s… it’s helpful to compare the allegation of standing in the Sierra Club case with that in the Greenwalt declaration.

They’re really quite similar.

Each of them says our organization has experience and expertise in conservation.

We’re vitally interested in this issue.

In the Sierra Club case the affidavit said we responsibly serve and represent our members.

In the Greenwalt declaration, Ms. Greenwalt claimed that the organization needed information and public participation in order to represent their members.

But this court in the Morton case said that that sort of interest was insufficient to confer standing because it was in no way distinct from the interest any citizen could claim coming in the courthouse and saying I’m interested in this subject.

Turning back to the Peterson affidavit, what Ms. Peterson claimed was that she used land in the vicinity of this 2 million acre parcel, the South Pass/Green Mountain area of Wyoming.

The District… the D.C. Circuit on appeal presumed that she meant to say something else.

John G. Roberts, Jr.:

It presumed that she meant to say she used the 4,500 affected acres.

The reasoning was that she claimed that she was injured, claimed that she had standing, and she would only be injured and only have standing if she used the 4,500 acres and, therefore, she must have meant to say that she used those 4,500 acres.

This is exactly backwards.

Federal courts are courts of limited jurisdiction.

The presumption is that they are without jurisdiction, and the plaintiff must affirmatively prove that he has standing to invoke the power of the court.

The court of appeals presumed Peterson meant to say she used the 4,500 acres because otherwise she wouldn’t have standing.

But what Peterson said is that she was in the vicinity of this 2 million acre area, not even within the 2 million acres, just in the vicinity.

Even assuming we can place Peterson somewhere within the 2 million acres, the court of appeals had no basis for drastically narrowing the focus of her allegations on the 0.225 percent of that area that was the only area affected by the challenged decision.

William H. Rehnquist:

Mr. Roberts, does the term South Pass/Green Mountains area have some connotation in the BLM’s undertaking or was that just an area designated by Ms. Peterson?

John G. Roberts, Jr.:

No.

It’s an area that’s familiar to people in central western Wyoming.

That’s what the area is.

William H. Rehnquist:

Well, I know that, but is it anything more than just a geographical designation selected by the… by Ms. Peterson?

John G. Roberts, Jr.:

Yes, Your Honor, it is.

It is the term that the… the Bureau used in the land use planning process.

I refer the court to page 132 of the Joint Appendix, the affidavit of Jack Kelly, who’s the administrator of the area, in which he refers to the South Pass/Green Mountain area as consisting of these… these 2 million acres.

By any token, it is a vast expanse.

South Pass is some 55 miles from Green Mountain.

So, even taking the allegation as narrowly as possible on its face, what she’s referring to is essentially the equivalent of being in the vicinity of the Baltimore-Washington area.

And it’s important to remember that there’s never been any mystery about where these 4,500 acres are.

This isn’t a case where she alleged a vast area because she didn’t know where the government was affecting the lands.

Two years before her affidavit was filed the Bureau published in the Federal Register a very exact designation of the parcels comprising the 4,500 acres.

Respondent knew this.

It cited the Federal Register notice in its complaint.

Therefore, if we’re going to indulge in presumptions, the more reasonable presumption would be that if Peterson or any other of Respondent’s members could have alleged that they used those particular 4,500 acres, they would have.

But neither Peterson nor anyone else did.

Now, the court of appeals compounded its error many times over when it ruled that the Peterson affidavit conferred standing on Respondent to challenge not only the South Pass/Green Mountain order, but hundreds of other BLM orders affecting another 178 million acres of public lands throughout the West… this, despite the fact that the Peterson affidavit said nothing beyond the confines of South Pass and Green Mountain.

Respondent’s argument on this score is that it’s complaining about a program, that BLM has a program to review land classifications and land withdrawals.

In a certain sense this is true.

Such review is a very big part of what the Bureau of Land Management does.

John G. Roberts, Jr.:

But saying they have a program to review land use classifications is like saying that NASA has a program to explore space or the Department of Justice has a program to prosecute criminals.

Of course they do.

That’s what the agency does.

But it’s beside the point so far as standing is concerned.

The Respondent relies for its standing on section 10 of the Administrative Procedure Act.

That provision gives a right to judicial review to a person who is aggrieved by final agency action.

The Respondent cannot be aggrieved by the sort of program it complains about.

It may not like the way the BLM is going about its business.

It may even think that the BLM is violating the law in the way it goes about its business.

But until that program or policy culminates in a final agency action, Respondent is not aggrieved.

The final agency actions in this case are the land orders.

Sandra Day O’Connor:

Mr. Roberts, do we have to know exactly what’s challenged by the plaintiffs below in order to answer the question of standing?

John G. Roberts, Jr.:

Yes, Your Honor.

The question of standing focuses on whether this particular plaintiff can raise the particular claims in the complaint.

So it’s very important to focus on what they’re complaining about.

Sandra Day O’Connor:

Well, I suppose one of the allegations, for example, is that the reclassification requires the preparation of environmental impact statements.

John G. Roberts, Jr.:

That is one of their claims, yes.

Sandra Day O’Connor:

And, of course, if the… if Ms. Peterson did have standing and was able to argue that point, then it would have an effect nationwide, I assume.

John G. Roberts, Jr.:

Your Honor, the failure to prepare an environmental impact statement is not final agency action.

The way that that can be challenged is when the final agency action… in this case a land order… is taken, you can then go into court and say I’m affected by what the agency did, its final action.

And the wrong is that they took that action without preparing an environmental impact statement.

They weren’t fully informed as they would be if they had done that.

But it still must wait for the final agency action, and the fact that there is a… a program or policy, which is really just saying this is the way the agency goes about its work, is not enough to confer standing.

You need the concrete agency action.

And in this case it was the hundreds of land orders entered throughout the West.

Antonin Scalia:

Well, Mr. Roberts, it… it would have an effect nationwide, however, if all of the… if all of the actions taken nationwide were subject to this court of appeals rule of law.

That is to say, if the Court of Appeals of the District of Columbia Circuit were to hold that you had to make the additional publications that are alleged to have been necessary in this case, and if the District of Columbia Circuit had jurisdiction over every order issued nationwide, then presumably the government would have to comply to that… with that order and… with that view of the law unless we took cert. of the case, right?

John G. Roberts, Jr.:

Certainly true, Your Honor, but the key is the second predicate to your question.

Antonin Scalia:

I understand that.

John G. Roberts, Jr.:

If the District of Columbia Circuit had jurisdiction nationwide over all of these land orders.

Antonin Scalia:

And if it doesn’t, then… then presumably those that are challenged in the… in the District of Columbia Circuit will be governed by that rule, but the government can feel free to use its view of the law elsewhere?

John G. Roberts, Jr.:

Absolutely, and that’s… that’s not an unusual result.

It’s no different than the situation that applies, for example, when in a particular case one district court declares an act of Congress unconstitutional.

That doesn’t mean that the act cannot be enforced against other people in other districts, and obviously the government tries as quickly as possible to get the case to this Court which has nationwide jurisdiction to decide the issue, but the act is not unconstitutional across the board.

Antonin Scalia:

It’s not really harmless error for the court of appeals to say, well, we really only have this one case before us but, nonetheless, it applies to all cases?

John G. Roberts, Jr.:

Well, the court of appeals can say it, but it doesn’t apply to all cases.

It only applies to the cases of which the court of appeals has jurisdiction; and, to the extent the court of appeals writes a persuasive opinion, the reasoning of that court will presumably sway other courts when they are confronted with the particular plaintiff suffering particular injury from a particular order.

Now, these principles are particularly important in this case because these land orders are not all of one cloth.

They’re very different.

To cite just one example, 31 of the challenged land orders govern some 5 million acres of land in Montana.

There were classifications that protected that land against entry under the Homestead Act.

You couldn’t go in there and set up… your… your homestead.

In 1976, however, Congress in the Federal Land Policy Management Act repealed the Homestead Act, so these 31 classifications were essentially moot.

They protected against a threat that no longer existed.

They couldn’t… and terminating those classifications, as the BLM did, couldn’t possibly aggrieve anyone.

It was a paper transaction.

And yet, the respondent was given standing to challenge those 31 orders based on the Peterson affidavit, which of course had nothing to do with Montana at all.

Respondents’ theory on this point seems to be that they can bring within to one lawsuit all the agency actions that they think are vulnerable to the same legal theory on which they hope to prevail in the action before the court, but that has never been recognized as sufficient to confer standing–

John Paul Stevens:

May I just interrupt for a second?

It seems to me that argument goes to the merits, the 31… I mean, maybe she has no right in Montana, but if she has a right even as to 4,500 acres we don’t throw her case entirely out of court, do we?

John G. Roberts, Jr.:

–Oh, no, Your Honor.

I wouldn’t… if the Court disagrees with us and agrees with the court of appeals’ presumption approach to standing that Peterson has standing–

John Paul Stevens:

Or if there’s some other record basis for standing.

John G. Roberts, Jr.:

–Or any other record basis.

John Paul Stevens:

Then… then you lose on the only issue that’s before us here.

The fact that there are millions and millions of other acres out there somewhere doesn’t seem to me to have anything to do with the standing issue, does it?

John G. Roberts, Jr.:

I think it does, Your Honor.

The question is how far Peterson’s standing gets the National Wildlife Federation.

They have standing to challenge–

John Paul Stevens:

But if it gets… your… your position doesn’t get her one inch into the 180 million acres.

John G. Roberts, Jr.:

–That’s right.

I don’t think she–

John Paul Stevens:

Well, then why do we have to talk about anything but that one inch?

John G. Roberts, Jr.:

–Well, if… if… if the Court agrees with us that Peterson has no standing–

John Paul Stevens:

Right.

John G. Roberts, Jr.:

–and the Court agrees with us further that the supplemental affidavits were properly excluded and the Greenwalt declaration that was discussed earlier also doesn’t establish standing, then you are correct.

There’s no reason to reach whether that–

John Paul Stevens:

And if we disagree with you on any one of those three theories, then we reverse… we affirm?

John G. Roberts, Jr.:

–I think not, Your Honor.

The court of appeals gave the Federation standing for the hundreds of other land orders affecting all 178 million additional acres.

If you disagree with us as to Peterson or any of the others, the Federation has shown standing for those limited orders, those limited parcels.

The question then has to be addressed does that limited standing confer standing for the hundreds of other orders affecting the hundred–

John Paul Stevens:

And we have to sort through all of them and decide which ones–

John G. Roberts, Jr.:

–Well, that’s certainly what the trial court would have to do if the case were sent back on that basis.

John Paul Stevens:

–That’s the difference between being a trial judge and sitting here.

[Laughter]

John G. Roberts, Jr.:

But the fact of the matter is, understanding doctrine, the plaintiff has to show that he has been injured by each agency action as to which he seeks relief.

The Federation seeks relief, for example, for those 31 land orders I discussed in Montana, but they’ve not even attempted to show that they’ve been injured by those, and as I’ve indicated, I don’t think anyone could be injured by those land orders.

As the Court noted in Allen against Wright, the standing focuses on whether the particular plaintiff can raise the particular claims asserted.

The particular claim that’s asserted in this case covers the hundreds of land orders throughout the West, and yet this particular Plaintiff has shown, we think, standing as to none but, at most, standing as to the particular injury claimed in the affidavits.

Now the court of appeals’ decision in this regard giving the Federation nationwide standing based on one injury to a particular plaintiff under one land order raises the most serious separation of powers concerns because it aggregates in the district court all of the Bureau of Land Management orders since 1981, even though before that district court is one plaintiff complaining of one order.

Those types of separation of powers concerns are precisely what the standing doctrine is designed to avoid.

Turning briefly to the question of the supplemental affidavits, I’d first point out as I mentioned in response to Justice Stevens that those would certainly not end the case even if they were… should have been admitted because they go, again, only to particular plaintiffs’ particular land orders.

If the Court disagrees with us on those and if, in fact, the supplemental affidavits establish standing, it would only be to the limited parcels, the limited orders mentioned in those affidavits.

Now, the district court did not abuse its discretion in declining to admit these affidavits more than one month after the deadline set in Federal Rule of Civil Procedure 56(c) and in violation of the court order.

Respondent chose as a deliberate trial tactic over the course of several years to rest on its initial three affidavits and to resist at every turn any further development of the factual record on standing.

The district court was on the scene and aware of all the circumstances and properly exercised its discretion in refusing to reopen the factual record after the summary judgment hearing.

Antonin Scalia:

Respondent says, Mr. Roberts, that it had had no reason to believe it would need anything further until the… until the court at the last minute suddenly decided to take seriously the… the challenges to standing which hadn’t previously been… been even barely acknowledged by it.

John G. Roberts, Jr.:

Well, Your Honor, it had our motion on summary judgment specifically directed to standing.

Now, it may have been overconfident as to its standing, but our motion certainly put it on notice that we, at least, didn’t think the issue was dead.

John G. Roberts, Jr.:

And in addition, the first court of appeals opinion addressed the issue of standing in the context of a motion to dismiss.

As this Court noted in the SCRAP decision, the standards on a motion to dismiss and summary judgment, this case, are very different, so they shouldn’t have been lulled into overconfidence on the basis of the prior panel decision.

Furthermore, the district court had not seen these affidavits when it wrote its preliminary injunction decision.

This was the district court’s first opportunity to rule on standing with the affidavits before it.

Byron R. White:

Well, suppose we disagree with you and think that there was an abuse of discretion.

Do you… you don’t suggest that those additional affidavits were insufficient to establish standing?

John G. Roberts, Jr.:

Well, we don’t know, Your Honor, because we’ve never had an opportunity to take discovery on them.

For example, they claim that certain areas are… have been open to mining.

If we had an opportunity–

Byron R. White:

Well, so you… you don’t say that on their face they were deficient?

John G. Roberts, Jr.:

–Not on their face, no, Your Honor.

Byron R. White:

So… but you would say that, nevertheless, if… even if they are sufficient they relate only to the specific area that they mention?

John G. Roberts, Jr.:

Oh, absolutely.

And they cannot give standing nationwide any more than the Peterson affidavit can.

William H. Rehnquist:

Was there an effort to depose the plaintiffs in the first part of the case?

John G. Roberts, Jr.:

Yes, Your Honor.

The government… in May of ’86 they filed these three original affidavits, and the government said, well, Peterson says vicinity 2 million acres, let’s find out what she’s talking about, let’s take her deposition.

The respondent resisted that.

It said that it would be cumulative and burdensome.

And it’s difficult to understand how they can prevent the government from developing further facts on standing and then come along later on and claim a right of their own for additional facts after the hearing is over.

In addition–

Anthony M. Kennedy:

Did the… did the court sua sponte reject the supplemental affidavits, or did you interpose an objection?

John G. Roberts, Jr.:

–We… if… I’m not quite certain, Your Honor.

I believe that we objected to the submission of them in our reply.

They were attached to a legal memorandum that the respondent submitted.

My recollection is that we objected to them, but I’m not certain of that.

I noted that the district court in ruling that the affidavits were untimely and in violation of its order cited the Federal parties’ reply brief, and I believe that’s where we did object to the supplemental affidavits.

When we moved for summary judgment on standing, that was the opportunity for the respondent, if it wanted to submit additional facts, to do so.

That’s the standard practice.

The party moves for summary judgment, submits its affidavits.

John G. Roberts, Jr.:

The opposing party under Rule 56 is entitled to submit opposing affidavits prior to the date of the hearing.

Respondent deliberately chose not to do that.

It chose to rest on its original three affidavits, and in its opposition papers it claimed that those affidavits were “far more than is necessary” to establish its standing.

It was only at the hearing when it became evident that Respondent’s standing was in serious doubt that the respondent changed its tune, and something on the order of a month later submitted these supplemental factual affidavits, as the district court found, in violation of Rule 56(c) and in violation of the court’s order which requested additional memoranda.

Now, the respondent has cited no case, and we are aware of none, in which a court of appeals has held that a district court abused its discretion in excluding affidavits that it found to be untimely and in violation of the court order.

And for the reasons I’ve mentioned this would be a very curious case to be the first one.

Respondent had several years to further develop its standing allegations.

For reasons of its own it chose not to, and it can’t be given… I wouldn’t call it a second chance… a third or a fourth chance, after the hearing was over.

If this was an abuse of discretion by the trial court, it’s hard to imagine when a trial court has discretion to call an end to the development of the factual record.

John Paul Stevens:

Would you just help me out… get one fact straight in my mind again?

These were filed in the briefs after the hearing?

Is that when they were filed?

John G. Roberts, Jr.:

Yes, Your Honor.

At the hearing, the court, although it had no obligation to do so, gave the respondents another chance to submit legal arguments.

He said, I want supplemental memoranda addressed to the issue of standing.

When the respondent filed its supplemental memorandum–

John Paul Stevens:

It added these affidavits?

John G. Roberts, Jr.:

–It added these affidavits.

John Paul Stevens:

What if the respondent had submitted these affidavits at the oral hearing?

John G. Roberts, Jr.:

That also would have been too late.

The district court perhaps had discretion to continue the hearing if it wished, but under Rule 56(c) the affidavits were due prior to the date of the hearing.

John Paul Stevens:

If they’d come in a week before the hearing, they would have been timely?

John G. Roberts, Jr.:

There would be no problem if they had come in the day before the hearing, putting aside questions–

John Paul Stevens:

I had the impression they were several years late, but really they were only about six or eight weeks late.

John G. Roberts, Jr.:

–Well, they had the opportunity, in responding to our summary judgment motion.

John Paul Stevens:

During which time they apparently thought it wasn’t necessary, because they’d been winning on standing up to that point.

John G. Roberts, Jr.:

That’s right.

They could have supplemented the record any time along… several… two years, in essence, but they waited until a month after the hearing.

John Paul Stevens:

When they realized they were in trouble.

John G. Roberts, Jr.:

When they realized they were in trouble, and the principle that the court of appeals endorsed and which Respondents argue for here is just that, the principle that you can come forward with additional facts whenever you think you’re in trouble.

John G. Roberts, Jr.:

It’s a recipe, as we say in our reply brief, for interminable litigation.

Presumably it–

John Paul Stevens:

Let me ask… maybe this is a stupid question, but if there’s no standing and you throw the whole case out as of now, is that with prejudice or without prejudice?

Can they come back and file a new complaint with these new affidavits supporting standing?

John G. Roberts, Jr.:

–I think there would be a serious question of whether they’re estopped res judicata.

John Paul Stevens:

What would they be estopped for?

There was no jurisdiction in that first case.

John G. Roberts, Jr.:

But there was a determination as to their standing, and I don’t think they get a second chance to come in and try again after a determination on the merits of the standing question.

Now, if the issue is complicated, and I… and I just add–

John Paul Stevens:

What if the individual affiants were to file a case?

John G. Roberts, Jr.:

–It would be an entirely new case, and the… and the… except perhaps maybe not with respect to Peterson.

I… to be honest, I don’t think the law is developed on how you treat organizational standing and collateral estoppel in that situation.

Is Peterson estopped because her injury was the basis for the organization’s standing?

It certainly–

John Paul Stevens:

The thing that’s running through my mind, if we take a look at these other affidavits… I know you say we shouldn’t look at them… and we should conclude… say, we should conclude that it’s perfectly clear these people have standing, are we perhaps generating a new series of lawsuits by saying well, we’ll throw this case out and let these other people start all over again, as class action or some… with a different… not the National Wildlife Federation, but–

John G. Roberts, Jr.:

–Well, certainly a different organization could come in with different complaints and we’d have to deal with that in that situation.

But your objection is… is one that could be made in almost any standing case… certainly could have been made in the Sierra Club against Morton case.

I don’t think there was any serious doubt in that case that members of the Sierra Club actually used Mineral King, but they chose not to make that allegation.

The fact that another lawsuit could be brought at another time by another party on different allegations is no excuse to circumvent the standing requirements, which focus on the particular case before the Court.

John Paul Stevens:

–I assume you are being logical and saying that standing is res judicata only as to this particular order of the agency, and not nationwide?

John G. Roberts, Jr.:

To be consistent, we’d have to agree with that, yes.

I’d like to reserve the remainder of my time for rebuttal.

William H. Rehnquist:

Very well, Mr. Roberts.

Mr. Prettyman?

E. Barrett Prettyman, Jr.:

Mr. Chief Justice, and may it please the Court:

This Court has to reach and resolve two issues before it ever gets to the Peterson affidavit.

The first one, of course, is the five supplemental memoranda, and on that issue we have very respectfully suggested to the Court that it might want to dismiss the writ as improvidently granted, because what’s going on–

William H. Rehnquist:

Did you raise that point in your memorandum in opposition?

E. Barrett Prettyman, Jr.:

–No, sir.

William H. Rehnquist:

You’re aware of the rule of Oklahoma City against Tuttle, as codified in our new rules, that any point that is not… does not go to our jurisdiction that should counsel against the grant of certiorari must be raised in the memorandum in opposition?

E. Barrett Prettyman, Jr.:

I’m indeed familiar with that, Mr. Chief Justice.

I would suggest to you, however, that this kind of suggestion is the same as jurisdiction.

That is, that you can raise it at any time yourself.

We’re not making a motion or anything.

We’re just suggesting to the Court in using its discretion that it might want to get rid of this case–

William H. Rehnquist:

Well–

E. Barrett Prettyman, Jr.:

–in this fashion.

William H. Rehnquist:

–Presumably the best time for the Court to have made that decision would have been at the stage were certiorari was being granted.

That’s the reason for the rule and for the statement in Oklahoma City against Tulsa… Tuttle, that if a case doesn’t belong here, we would like to find out about it before we grant certiorari and not during the oral argument.

E. Barrett Prettyman, Jr.:

Well, the point was made about the five supplemental memoranda, and I’m merely suggesting to you that when you… when you hear the situation that you’re in at the moment, I think that it would be a case that it’s not worth this Court’s time to hear, because what you’re doing is, you’re passing in effect on the discretion of the court of appeals to rule that the district court abused its discretion in a matter of local practice.

Now what… what… these five supplemental memoranda arose in a very peculiar context–

William H. Rehnquist:

I thought they were affidavits, Mr. Prettyman–

E. Barrett Prettyman, Jr.:

–Affidavits.

They… they were.

Sandra Day O’Connor:

–Accompanying a memorandum?

E. Barrett Prettyman, Jr.:

Did I misstate?

Sandra Day O’Connor:

You said five supplemental memoranda.

E. Barrett Prettyman, Jr.:

I apologize.

Sandra Day O’Connor:

You mean the affidavits–

E. Barrett Prettyman, Jr.:

Of course I do–

Sandra Day O’Connor:

–that accompanied the memoranda.

E. Barrett Prettyman, Jr.:

–Absolutely.

They accompanied the memoranda that was filed a month after the hearing.

The hearing was July 22nd, 1988.

Up until this time, two courts for three years had told us that we had standing.

So we come to this hearing, and even at the beginning of the hearing the court tells the government lawyer that he’s probably on the wrong side of this case.

We’re feeling very comfortable.

In the middle of the hearing, the government lawyer gets up and begins reading these facts about RMPs… resource management plans… and about how they’ve completed all of these plans.

We’d alleged in our complaint that they’d only completed nine.

Their own affidavit had said they had completed 25, and all of a sudden here he’s talking about they’ve completed 50.

Antonin Scalia:

That was several years… when was their affidavit?

That… their affidavit had been some time before.

E. Barrett Prettyman, Jr.:

Exactly.

That’s the Williams affidavit.

Antonin Scalia:

How… how much before the time that they were updating it?

E. Barrett Prettyman, Jr.:

Well, the Williams affidavit was filed… September 5, 1986.

Antonin Scalia:

And the hearing was when?

E. Barrett Prettyman, Jr.:

July 22nd, 1988.

Antonin Scalia:

’76 to ’88?

E. Barrett Prettyman, Jr.:

’86.

Antonin Scalia:

’86 to ’88, so you were using figures for two years earlier?

E. Barrett Prettyman, Jr.:

We were using the last figures that they submitted.

Antonin Scalia:

Well, and–

E. Barrett Prettyman, Jr.:

And all of a sudden they arrive at the hearing and they begin updating, and then they produce this piece of paper which they say back up these new figures.

Now, they have the court… the district court’s attention now.

Sandra Day O’Connor:

–Well, Mr. Prettyman, I don’t see what that has to do with whether the Peterson affidavit gives adequate standing to the plaintiff.

I mean, there is some argument about the extent to which the government had proceeded, but it seems to me that may go to the scope of relief or something of that sort.

I don’t see why that determines whether the plaintiffs had standing.

E. Barrett Prettyman, Jr.:

Well, Your Honor, if we are correct that the district court abused its discretion in not allowing in the five affidavits and the government has just told you that at least looking at the affidavits they would concede that they are sufficient to establish standing, then we never have to reach–

Sandra Day O’Connor:

Well, what if we disagree with you and think that since the rules don’t permit post-hearing affidavits, therefore there was no abuse of discretion and we’re left with the Peterson affidavit?

E. Barrett Prettyman, Jr.:

–Well, I will move to the Peterson affidavit.

I just want to make sure you understand that you don’t get there until you do disagree with us on that point.

Now here, they say there’s a violation of Rule 56.

They violated Rule 56.

They turn up at this hearing, give the district court judge all these figures, turn in a piece of paper–

Byron R. White:

And so if they did, you did, too.

Is that it?

E. Barrett Prettyman, Jr.:

–What I’m saying is it comes with little grace for them to argue that we did–

Byron R. White:

Well, it may.

It may.

Byron R. White:

But if they did, you did, too.

E. Barrett Prettyman, Jr.:

–Well, it may be, Your Honor.

William H. Rehnquist:

The district court held you to the rule, and you say because… did you object to their factual statements and their argument?

E. Barrett Prettyman, Jr.:

No, because we thought we were going to have a chance to respond to them in supplemental affidavits.

Now this is a–

Anthony M. Kennedy:

Did you advise the court at the time of the hearing that you wished to file supplemental affidavits?

E. Barrett Prettyman, Jr.:

–He had told us that we could file supplemental memoranda.

We did not ask for supplemental affidavits.

Anthony M. Kennedy:

And so you did not advise the court at the time of hearing that there would be new factual matters?

E. Barrett Prettyman, Jr.:

That’s correct.

We were totally surprised by this piece of paper.

At the very end of the hearing the judge says we’ll mark it as an exhibit, and then suddenly it’s an exhibit and we’re confronted with it.

But since we know we’re going to be able to respond and the government is going to be able to respond to us, we didn’t think that there would be any harm.

Antonin Scalia:

Well, the government’s point had nothing to do with the standing.

I mean, it was a totally different point.

The government’s affidavit had nothing to do with the standing issue we’re talking about here, right?

E. Barrett Prettyman, Jr.:

Oh, Your Honor, but it had very much to do with RMPs, which the district court–

Antonin Scalia:

With the case.

With the case, but not with the standing issue that we’re talking about here.

E. Barrett Prettyman, Jr.:

–Well, but in ruling on standing, on throwing this out, the district court ruled on the merits on RMPs.

If you look at his opinion and you look at page 35a of his opinion and the next page, you’ll find that he’s talking about the fact that our contention about the fact that we didn’t get the hearings and so forth were all rebutted by the government’s evidence.

Antonin Scalia:

How can you rule on the merits in ruling on standing?

I–

E. Barrett Prettyman, Jr.:

That’s exactly one of my points, Your Honor, is that he should not have been ruling on the merits, but he did.

It’s in his opinion.

Antonin Scalia:

–Well, no, he didn’t.

I mean, if the case was dismissed on standing he certainly didn’t rule on the merits.

He might have said something about the merits, but it’s just not a ruling.

E. Barrett Prettyman, Jr.:

Well, Your Honor, all I can do is read his opinion, and his opinion passed on a number of points that… that would appear to be on the merits.

Antonin Scalia:

Well, yes, but we… we don’t review dicta, and if this case was dismissed on standing, you know that that’s no precedent.

E. Barrett Prettyman, Jr.:

But Your Honor, if he sets forth right here in the opinion as part of his reason for dismissing on standing certain facts that really go to the merits, it seems to me that we are entitled to say he should never have done that, that that’s part of the problem here.

Antonin Scalia:

So to rebut those affidavits.

You came in and said there’s standing, which is a totally different point.

So you’re saying there were two wrongs here.

Would it suffice to… to remedy the injustice if, in reversing the court of appeals’ decision here, our opinion said, moreover, when this goes back don’t let the government’s affidavit in, or you shouldn’t have let the government’s affidavit in?

E. Barrett Prettyman, Jr.:

No.

I think what–

Antonin Scalia:

Or you are sanctioned and reprimanded for letting… and then the inequity would be eliminated, I assume?

E. Barrett Prettyman, Jr.:

–No.

I think what you should do when you send it back is to say that go ahead and allow the defect in standing, if there is any, to be cured the way the court of appeals said that that was the practice in the District of Columbia.

Defects in the District of Columbia can be cured by supplemental affidavit.

William H. Rehnquist:

The District of Columbia doesn’t practice under the Federal Rules?

E. Barrett Prettyman, Jr.:

Of course, it does, Your Honor, but the Federal Rule does not mean that you have to file it at the hearing, because if that were true a district judge could not even have given us permission to file those affidavits afterwards, and that’s–

William H. Rehnquist:

Well, but he gave you permission to file memoranda, not affidavits.

E. Barrett Prettyman, Jr.:

–But suppose he had said you can file affidavits with your memoranda?

Under the government’s interpretation that would be a violation of Rule 56, and he couldn’t have done it.

William H. Rehnquist:

Well, maybe he couldn’t.

E. Barrett Prettyman, Jr.:

Well, Your Honor, that isn’t what the lower courts have said.

It may be that’s what this Court is going to say, but the lower courts have said that you can… that you can cure these defects and particularly in the District of Columbia.

Sandra Day O’Connor:

But that isn’t before us here.

Here you have a district court judge that did not expressly authorize the filing of supplemental affidavits and that ruled that it wouldn’t… they wouldn’t be considered.

So the question is whether that amounts to abuse of discretion.

E. Barrett Prettyman, Jr.:

The status of the case before you is that the court of appeals has ruled that it was an abuse of discretion of the district court under all of the circumstances here.

Sandra Day O’Connor:

And that question is before us?

E. Barrett Prettyman, Jr.:

That question is definitely before you, and you have to–

Sandra Day O’Connor:

Right.

So we have to look at it as… as the court of appeals should have looked at it at the time.

E. Barrett Prettyman, Jr.:

–And consider all the equities, which it did.

Absolutely.

Now the other thing that you’re going to have to face and resolve before you reverse is the problem of the standing of the Federation on its own.

E. Barrett Prettyman, Jr.:

That is a question that the court of appeals never had to reach because it–

William H. Rehnquist:

Why do we have to face it?

E. Barrett Prettyman, Jr.:

–Because if we had standing on our own, there is standing.

William H. Rehnquist:

Yes, but if… we don’t ordinarily pass on questions that the court of appeals hasn’t passed on.

If we find there’s no standing under the Peterson affidavit and that the court of appeals was wrong on the abuse of discretion point, presumably it would be open to the court of appeals on remand to consider whether there is informational standing or whatever you call it.

E. Barrett Prettyman, Jr.:

I agree with you 100 percent.

Maybe I… maybe didn’t make myself clear.

What I mean was that you should remand.

The case isn’t over.

You don’t order it dismissed for lack of standing.

You’d have to remand it back to the court of appeals, and the court of appeals would then determine whether we have standing on our own.

William H. Rehnquist:

Yes.

If we didn’t determine that, we would simply send it back, and it would be an open question?

E. Barrett Prettyman, Jr.:

Right.

That’s exactly right, Your Honor.

All right.

Now let’s get to the Peterson affidavit, finally.

First of all, it’s not 2 million acres.

The 2 million acres is Freemont and Natrona Counties.

What we’re talking about is 4,455 acres, which are the lands that were open to mining.

Now, it seems to me that one of the problems here is that–

Antonin Scalia:

What you’re talking… I don’t know what you’re talking about.

That… those are the lands that were adversely affected, in your view, by the order that you’re challenging?

E. Barrett Prettyman, Jr.:

–Correct.

Antonin Scalia:

But what’s relevant is what greater parcel were those lands contained in that were described in the affidavits, isn’t that right?

E. Barrett Prettyman, Jr.:

No.

She was not describing some greater area.

She was describing the South Pass and Green Mountain areas, and if you look–

Antonin Scalia:

And… and that describes those 4,400–

E. Barrett Prettyman, Jr.:

–Exactly.

E. Barrett Prettyman, Jr.:

The 4,400 are included within the South Pass and Green Mountain–

Antonin Scalia:

–And how many acres is the South Pass and Green Mountain area?

E. Barrett Prettyman, Jr.:

–It’s a total of approximately 150,000.

Antonin Scalia:

Okay.

E. Barrett Prettyman, Jr.:

Green Mountain is about 126,000, and the rest–

Antonin Scalia:

So it’s 4,400 acres that are somewhere in 156,000 acres?

E. Barrett Prettyman, Jr.:

–Right.

William H. Rehnquist:

Well, it’s in the vicinity of.

I mean, that’s an additional qualification.

E. Barrett Prettyman, Jr.:

I was going to address that in just a moment.

Could I just clear up this one thing?

You will see a figure of 1.2 million in the Kelly affidavit, but, believe me, that includes the Crook’s Mountain area, and it’s like a lot of the government’s figures in this case.

You can get different results.

The best we can figure from the government’s own… own evidence is 150,000 acres.

Now, all right, let me say what I think happened here, because we’re not just looking at the Peterson affidavit.

You’re looking at the record as a whole.

The government’s evidence is most important here.

Mrs. Peterson swore that she recreated in the vicinity of South Pass and Green Mountain, where the lands have been open to mining and… and this mining threatens the aesthetics and the wildlife, which in turn harms her.

Now that’s essentially what she said.

Then the government comes along and shows that, indeed, 4,455 acres were open to mining in the South Pass and Green Mountain areas, and that has resulted in 406 mining claims being filed and some operations being started, and the government also shows that the mining was not only… not only can but will… has hurt the wildlife and aesthetics in these very same areas.

I mean, I can read to you here where the government both in ’82 and in ’85 and ’86 said specifically, for example, in South Pass, these activities… they’re talking about dredging and underground tunnels for mining… have an adverse impact on crucial moose habitat, deer habitat, some elk habitat and a variety of small game species.

Improvements at campgrounds, as well as land in the immediate vicinity could either be damaged or destroyed.

This is not the government talking about–

Antonin Scalia:

In the whole 150,000 acres, Mr. Prettyman, or just–

E. Barrett Prettyman, Jr.:

–They’re talking about–

Antonin Scalia:

–in whatever particular one of the 4,400 acres that these activities were going… going on in?

E. Barrett Prettyman, Jr.:

–What they are talking about, Your Honor, is the mining in the 4,455 that’s in South Pass and Green Mountain.

Antonin Scalia:

Right.

But we don’t know where that is among–

E. Barrett Prettyman, Jr.:

Of course we know where it is.

Antonin Scalia:

–We know that it’s somewhere in those, you say, 150,000 acres.

E. Barrett Prettyman, Jr.:

Oh, I’m sorry, Your Honor.

But if you look at the–

Antonin Scalia:

In the vicinity of which this… this affiant said she recreated.

E. Barrett Prettyman, Jr.:

–Well, I’m sorry.

I respectfully disagree.

If you look in the Federal Register you can tell exactly where these places are within the 40… within the–

Antonin Scalia:

What’s relevant is not whether we can tell from the Federal Register but whether we can tell from her affidavit.

All she says is that she is in the vicinity of the 150,000 acres, and you’re telling me that the government has acknowledged that somewhere on 4,400 acres in those 156,000, all of which she may not have been near, there has been an adverse impact.

E. Barrett Prettyman, Jr.:

–No.

I’m saying that the government is talking about the exact area that she’s talking about.

William H. Rehnquist:

Well, I thought… go ahead and finish your answer to Justice Scalia.

E. Barrett Prettyman, Jr.:

The government is talking about the harm that will come to aesthetics and wildlife from the opening of the mining and where the opening of the… opening to mining occurred was in the 4,455 which she says she’s in the vicinity of.

Antonin Scalia:

It doesn’t say she’s in the vicinity of the 4,400 acres.

She says she’s in the vicinity of the 150,000… where does she say that she’s in the vicinity of the 4,400?

E. Barrett Prettyman, Jr.:

She said–

Antonin Scalia:

Read the portion of her affidavit that indicates that.

Where will we find her affidavit, Mr. Prettyman?

E. Barrett Prettyman, Jr.:

–Sure.

Yes.

Look in the petition appendix at page… the best part is 191a.

William H. Rehnquist:

191a.

Not of the joint appendix, but of the–

E. Barrett Prettyman, Jr.:

No, of the petition appendix.

William H. Rehnquist:

–the petition appendix.

What page?

191a.

E. Barrett Prettyman, Jr.:

191a and let’s take, for example, paragraph 6.

William H. Rehnquist:

Well, let’s… before we take paragraph 6 take paragraph 3.

“I use the Federal lands including those in the vicinity of the South Pass/Green Mountain area of Wyoming for recreational purposes. “

E. Barrett Prettyman, Jr.:

Right.

William H. Rehnquist:

And you say that the… the Federal lands that would be embraced within that area are no more than 150,000 acres?

E. Barrett Prettyman, Jr.:

I’m saying that the… yes, that the South Pass/Green Mountain area… you take the resource areas that encompass those.

That would be something on the order of 150,000 acres.

William H. Rehnquist:

Those are the Federal lands that are included within that area?

E. Barrett Prettyman, Jr.:

Yes, that’s right.

Now, let’s go to paragraph 6.

“My recreational use and aesthetic enjoyment of federal lands, particularly those in the vicinity of South Pass/Green Mountain, Wyoming, have been and continue to be adversely affected, in fact, by the unlawful actions. “

–she’s now talking about the terminations…

“of the Bureau and the Department. “

“In particular, the South Pass/Green Mountain area of Wyoming has been opened to the staking of the mining claims and oil and gas leasing, an action which threatens the aesthetic beauty and wildlife habitat potential of those lands. “

Now, the government’s evidence comes in and says in the South Pass/Green Mountain areas the area that has been opened to mining is 4,455 acres.

Antonin Scalia:

Suppose I said the… the Bureau is allowing mining in the United States.

My… and then I track this… my recreational use and aesthetic enjoyment of the United States is affected by that mining that has been allowed.

Would that… would that establish a standard?

E. Barrett Prettyman, Jr.:

Of course not.

There obviously has to be a good judgment here, and it’s a question–

Antonin Scalia:

But it’s… you’re saying it’s the other side of 150,000 acres?

E. Barrett Prettyman, Jr.:

–No.

What I’m saying is that… that when she says that she is using two areas that the government concedes were open to mining and the government concedes were harmed… have been harmed by the mining and that’s precisely what she says that she’s being harmed by the aesthetics and wildlife that that’s enough.

Now, obviously, if she just says I’m in the vicinity of Arizona or I’m in the vicinity of the West Coast or I’m in the vicinity of the United States, it’s not enough.

But you know, it… to parse this down so that she has to set forth each tract like you do in the Federal Register… you can’t do that with people who are swearing to this.

They don’t know… they don’t know what these tracts are.

What she’s saying is that I go up there in this area, and there’s the mining, and it’s harming me, and the government comes in and says well, yeah, we’re mining there, and we’ll tell you exactly where it is, and it is doing some harm, but you don’t have any standing.

What happened to SCRAP, for example, where the people–

William H. Rehnquist:

SCRAP… SCRAP was on a motion to dismiss.

E. Barrett Prettyman, Jr.:

–Well, nevertheless you said that it was sufficient that the people were in the area of the… Wildlife Federation.

William H. Rehnquist:

Well, SCRAP was a five… five to four opinion.

It was on a motion to dismiss, and the court said that the standard might be different on summary judgment.

E. Barrett Prettyman, Jr.:

Well, what about Japan Whaling, Your Honor, that Justice White wrote, where you’ll recall that the… the… the… they said just because the conservation group’s members enjoyed watching whaling and studying whaling that that was enough to give them standing to challenge the Secretary of Commerce’s refusal to condemn Japan for whaling.

E. Barrett Prettyman, Jr.:

I mean, that… I mean, there are all kinds of cases from this Court where… what about… what about the Brock case, for example?

International Union v. Brock.

There… you remember those were the benefits given to union members to… to… to help them against import competition.

And the Secretary of Labor there issues a policy handbook, and the union comes in… not all members of the union were affected, and not all those affected were members of the union, but the union comes in and says we represent these people.

You didn’t require that you go back and show for each union member what wage and what pay and how many hours he worked and so forth.

You said that so long as some union members were affected, even though the state agencies were making the decision in that case, that there was standing.

In Watt v. Energy Foundation, the… you remember the case where the Secretary of the Interior was… was using different bidding systems, which affected everybody differently.

All the parties were affected differently.

And you said that there was standing for California to challenge the issue of the regulations and tell him he had to follow the act even though everybody was affected differently.

I just don’t understand in the context of these other cases why this case is any different.

The… Mr. Roberts says… in effect I think what he’s saying is that a… that somebody would have to come in and show… all of our members would have to come in and show for each tract, for each little area throughout the United States that they were harmed.

That’s not… that isn’t what you all have said.

In Sierra Club v. Morton you said so long as one person can establish standing, they can represent the public interests, represent the–

Antonin Scalia:

Yes, but all the one person would have to say… I mean, all… all that would have been necessary is that paragraph 3 of the affidavit instead of saying generally I use the Federal lands, including those in the vicinity… in the vicinity of the South Pass/Green Mountain area, she could say I use the Federal land adjacent to and then just name one of the sites in this 150,000 acres that… that has been opened for mining.

That’s all she had to say.

That… that’s really not a big deal.

E. Barrett Prettyman, Jr.:

–Well, I must say I don’t see the… the difference between “in the vicinity of” and “adjacent to”.

I mean, in vicinity of seems to me–

Antonin Scalia:

No.

E. Barrett Prettyman, Jr.:

–it means around and about.

Antonin Scalia:

The difference is in the vicinity of 150,000 acres.

E. Barrett Prettyman, Jr.:

No, it’s in the vicinity–

Antonin Scalia:

And in the vicinity of or adjacent to the particular acre of those 150,000 where mining claims have been filed or that have been opened for the filing of mining claims.

That’s the difference.

E. Barrett Prettyman, Jr.:

–Well, Your Honor, it’s… it’s in the vicinity of the 4,455, and… and to say that she has to do it tract by tract is different than anything I’ve ever read in any of this Court’s opinions.

William H. Rehnquist:

But it… it’s… vaguer than that, I think, Mr. Prettyman, because the… the distance between South Pass and the Green Mountains in Wyoming is many… you know, what, 50 miles, something like that?

E. Barrett Prettyman, Jr.:

Well.

it’s… yes, it’s 50 miles.

It’s only… it’s 150 miles from her house to Green Mountain and then it’s about 185… a little bit more than that to South Pass.

She can get down there in a couple of hours.

E. Barrett Prettyman, Jr.:

That’s not in the record, but I mean she can get down there in a couple of hours.

I mean, you all… you would be requiring laymen who are hunters and fishermen to swear to something that they aren’t prepared to swear to when… when you’re going to require them to name these particular tracts that they happen to have been on.

Normally when you fish and camp and hunt you’re not on any one tract anyway; you’re around a whole area.

And if she’s being harmed by mining, which the government admits… the government concedes a mining is causing harm to aesthetics and… and the kinds of things that she does, you can’t just take her affidavit alone.

You’ve got to look at the record as a whole.

And I think… the court of appeals never had to do that because it said the Peterson affidavit is all right.

But if you’re going to look at this Peterson affidavit, you have to look at the… at the… under Rule 56 you have to look at the record as a whole.

And the record as a whole, when you throw in the government’s evidence, will show you not only that any minor lapses that she left out are filled in, but also that what she claims is going on is going on.

The government says it.

It says as late as–

Byron R. White:

Well, are you defending the court of appeals’ rationale in finding standing or not?

E. Barrett Prettyman, Jr.:

–The only thing that I… that I part company with on the court of appeals is that I don’t think they had to rely on any presumption because they–

Byron R. White:

But they did.

E. Barrett Prettyman, Jr.:

–They did because they didn’t look at the government’s evidence.

Byron R. White:

Well, they did, though, so… so they… on that basis you’re saying you concede that they were in error–

E. Barrett Prettyman, Jr.:

No.

Byron R. White:

–That they applied the wrong rule of law in deciding standing.

E. Barrett Prettyman, Jr.:

No, I’m sorry, Your Honor.

I don’t concede that they’re in error.

All I’m saying is they didn’t have to say presumption.

They could easily–

Byron R. White:

Well, they did and relied on it.

E. Barrett Prettyman, Jr.:

–If the record as it stands before this court fully supports Mrs. Peterson in every respect, where she recreated, what she saw, the harm that was done–

Byron R. White:

Well, why should we have to do all that?

If the court of appeals was wrong in… in… in arriving at its conclusion, why shouldn’t they have to do the job that you are now suggesting we should do?

E. Barrett Prettyman, Jr.:

–Well, then send it back to them and let them do it, because that’s what they were supposed to do under Rule 56, and that’s what this Court said in–

Byron R. White:

So you do part company with the court of appeals in that?

E. Barrett Prettyman, Jr.:

–Only in that one instance, that they didn’t… they didn’t–

Byron R. White:

Well, that’s a pretty big instance, isn’t it?

E. Barrett Prettyman, Jr.:

–They didn’t… no, I don’t think so, Your Honor.

E. Barrett Prettyman, Jr.:

They… they simply took an easy shortcut when I would have said to them look, look at the whole record the way you’re supposed to and you won’t even have to deal with any presumptions.

Byron R. White:

How did you argue it in the court of appeals?

Like you’re doing now?

E. Barrett Prettyman, Jr.:

I didn’t argue it in the court of appeals, Your Honor.

Byron R. White:

Well, how did… how was the case argued in the court of appeals, like you’re doing it now?

E. Barrett Prettyman, Jr.:

I must tell you in all candor, I don’t know how it was argued in the court of appeals.

Well, in… in terms of this so-called presumption, I mean I am happy to try to uphold the court of appeals on a presumption.

All I’m saying is I don’t think they had to do it.

But if… so far as they did do it, I mean if you look at Gladstone Realtors, for example… and that, incidentally, was not a motion to dismiss, that was a summary judgment case… and the Court said that the complaints were conclusory in that case, but we’re going to construe them favorably to the Village of Elwood in that case, just as I think you should do here, because after all the other side is the moving party, not us.

We’re the nonmoving party, and therefore this… these affidavits–

Anthony M. Kennedy:

What is the government’s evidence that you say showed that these activities of Peterson were definitely affected?

E. Barrett Prettyman, Jr.:

–In terms of the harm, I would refer you to Defendant intervenor’s Exhibits 7… Exhibit B of that exhibit… which has a whole lot of things in it.

It’s not… it wasn’t very well put together, but it includes the mineral report–

Anthony M. Kennedy:

I thought you said it was the government’s evidence?

E. Barrett Prettyman, Jr.:

–Yes.

That’s what I’m referring to.

Anthony M. Kennedy:

All right.

E. Barrett Prettyman, Jr.:

It includes a mineral report and a geologist’s report and so forth.

Those… and in addition to that I’d refer you to Exhibit 12 to the Kelly exhibit.

Antonin Scalia:

Excuse me, do these show that Miss Peterson was harmed?

I don’t understand what they show.

How can they show that she was hanging around these mining claims?

E. Barrett Prettyman, Jr.:

No, it doesn’t, Your Honor.

What I’ve just referred to shows that in the South Pass/Green Mountain area there is mining going on and there’s… causing it harm.

Antonin Scalia:

Oh, well that’s not controverted.

I mean, that isn’t the point.

The point is whether it was causing harm to her, whether she was using those particular areas.

E. Barrett Prettyman, Jr.:

Look at joint appendix 119, Your Honor, if I may ask you to.

Joint appendix 119?

E. Barrett Prettyman, Jr.:

Now, you see the W 6228?

Yes.

E. Barrett Prettyman, Jr.:

Action Number W 6228.

Right.

E. Barrett Prettyman, Jr.:

The areas opened, 4,455, that is South Pass/Green Mountain.

Claims located after opening, 406 claims have been after… opened after… after they opened it up, 406 mining claims were opened up, and that’s only in the period between the… prior to the injunction.

So I mean a lot of claims came in–

Anthony M. Kennedy:

But you made the statement that the government’s own evidence showed that all other lands, or substantial other lands, I interpreted your comment to mean, were affected.

This again refers just to the 4,400 acres.

E. Barrett Prettyman, Jr.:

–I didn’t mean to say that the government evidence shows that throughout the–

Anthony M. Kennedy:

We’re right back to where we’re started.

E. Barrett Prettyman, Jr.:

–throughout the United States.

I don’t understand your point, Your Honor.

This… this and other evidence shows, if I may just make myself clear, that the South Pass/Green Mountain area, the 4,455, the very area that she says she recreated in, were in fact opened to mining.

And the other evidence I have just cited shows that that area was not only opened to mining but adversely affected by mining, which is precisely what she claims, so you put together these various tidbits from the government’s evidence, which you have to do under Rule 56, and it’s clear, she recreated there, that mining was there–

Sandra Day O’Connor:

Well, the question is whether we can assume that her recreational use was on or in the 4,500 acres.

That’s the question.

E. Barrett Prettyman, Jr.:

–Well, she says “in the vicinity”.

In mean, do you… do you… does she have to say that she walked right on a particular… over a mine?

Sandra Day O’Connor:

Well, it’s a little vague.

That’s the question before us.

She doesn’t say in the vicinity of the 4,500 acres.

She says, in the vicinity of the Green Mountain/South Pass area–

E. Barrett Prettyman, Jr.:

Correct.

William H. Rehnquist:

–which is a much larger area.

Whatever… whatever lands she was talking about, she did allege that her use of those lands was adversely affected.

E. Barrett Prettyman, Jr.:

She sure did.

Yes, Your Honor.

Thank you very much.

William H. Rehnquist:

Thank you, Mr. Prettyman.

Mr. Roberts, do you have rebuttal?

William H. Rehnquist:

You have four minutes remaining.

John G. Roberts, Jr.:

Just a few brief points, Your Honor.

Byron R. White:

You don’t really contend that she must have alleged that she used the 4,500 acres in order to establish standing?

John G. Roberts, Jr.:

Well, she has to get a lot closer to the 4,500 acres–

Byron R. White:

Just answer my question.

You do not say that?

John G. Roberts, Jr.:

–I think she could well have standing if she said she camped next to one of the parcels that was opened.

That I’d be willing to concede.

Byron R. White:

Well, if… you know, if there’s a mining going on in 4,500 acres and in order to mine there are a lot of… they have to build some more roads, there’s a lot of trucks going back and forth all the time, it can certainly affect a very wide area.

John G. Roberts, Jr.:

Well, the Court–

Byron R. White:

Well, isn’t that right?

John G. Roberts, Jr.:

–Mining can affect a very large area, but a number of points: the 4,500 is not one parcel.

It’s several discrete parcels, many of which are quite small, so you wouldn’t have–

Byron R. White:

Well, that makes it even tougher for you, doesn’t it?

John G. Roberts, Jr.:

–No, I think not, Your Honor, because–

Byron R. White:

Well, they could be scattered all over that 150,000 acres, and trucks going back and forth to every one.

John G. Roberts, Jr.:

–I think Your Honor’s assuming we’re talking about some large mining operation.

Typically what’s involved here, given the size of the parcels, very small and in many cases what you call recreational miners–

Byron R. White:

How do we know that?

John G. Roberts, Jr.:

–We know it from the size of the parcels, in the first place.

Anthony M. Kennedy:

Well, are we talking about discrete mining parcels in a single area, 4,400 acres, or are we talking about 4,400 acres, sum total, scattered over 150?

John G. Roberts, Jr.:

They’re scattered well beyond the 150, Your Honor.

They are clustered–

Anthony M. Kennedy:

So even greater than the 150?

John G. Roberts, Jr.:

–It’s in the 2 million acre area.

They… they’re not dispersed evenly.

There are vast expanses of the 2 million acre area that Miss Peterson can use.

Sandra Day O’Connor:

Well, Mr. Prettyman says we should look at only 156,000 acres, I thought.

John G. Roberts, Jr.:

I don’t know where the number comes from.

The district court read South Pass/Green Mountain area to be 2 million acres, and the court of appeals also looked at it that way.

John G. Roberts, Jr.:

That was one of the things they got right.

The affidavits establish that we’re talking about a 2 million acre area.

And it’s interesting, the 150,000 doesn’t work.

It doesn’t work because if you’re talking just about Green Mountain and South Pass, that’s not where all the 4,455 are.

Some of them are elsewhere in the area.

I’d like to mention briefly… oh, and in addition–

John Paul Stevens:

May I ask just one question?

Can we tell by looking at the record if we find all the right pieces of paper where the 4,455 areas are?

John G. Roberts, Jr.:

–Absolutely, and in the Federal Register it’s… it’s listed–

John Paul Stevens:

So you agree we can look at the material your opponent described?

John G. Roberts, Jr.:

–I agree you can look at the Federal Register and see there–

Byron R. White:

Is there a map in these papers, or not?

John G. Roberts, Jr.:

–There are a variety of maps in… in–

Byron R. White:

Well, can we tell there’s… can we get the answer to Justice Stevens’ question looking at these maps?

John G. Roberts, Jr.:

–You have to know how to read the Federal Register notice.

It’s done by the township and–

Byron R. White:

Well, we can certainly read.

[Laughter]

John G. Roberts, Jr.:

–I couldn’t until I was told–

Byron R. White:

Does it tell you… does it tell you… can we plot it out on a map from what it says?

John G. Roberts, Jr.:

–Absolutely.

Absolutely, and there’s no doubt about it.

The Federal Register will give you those exact coordinates.

My brother referred you to joint appendix page 119, to classification W 6228.

Classification W 6228 covers more than 2 million acres.

It’s the South Pass/Green Mountain area.

With respect to the supplemental affidavits, the government lawyer at the hearing responded to correct reliance on some stale data in noting how far they’d gotten in the RMP process.

The court told us to mark it as an exhibit.

We did so.

It had nothing whatever to do with standing.

John G. Roberts, Jr.:

You can read the supplemental affidavits from the beginning to end.

You’ll see no mention of the RMP exhibit that the court added to the record to make sure it was not relying on stale data.

The was some discussion earlier about sending it back to the court of appeals to look through the record to see if Peterson had standing.

That’s not a court’s job.

That’s the plaintiff’s job.

They have the obligation to affirmatively establish their standing.

They failed to do so in this case.

Thank you, Your Honor.

William H. Rehnquist:

Thank you, Mr. Roberts.

The case is submitted.