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DESERT CITIZENS AGAINST POLLUTION v. BISSON

January 30, 1997

DESERT CITIZENS AGAINST POLLUTION, SIERRA CLUB and DESERT PROTECTIVE COUNCIL, Plaintiffs,
v.
HENRI R. BISSON, TERRY A. REED, MICHAEL DOMBECK, and UNITED STATES BUREAU OF LAND MANAGEMENT, Defendants, and GOLD FIELDS MINING CORP. and ARID OPERATIONS INC., Intervenors.



The opinion of the court was delivered by: BREWSTER

 On January 17, 1997, the above captioned matter came on regularly for hearing upon Plaintiffs' motion for a preliminary injunction. Upon due consideration of the moving and responding papers and the arguments of counsel at hearing, the Court hereby concludes that Plaintiffs lack standing, and therefore the Court DISMISSES Plaintiffs' case for want of jurisdiction. Alternatively, should it be found that the Court has jurisdiction, the Court hereby DENIES Plaintiffs' motion for preliminary injunction.

 I. BACKGROUND

 A. Procedural and Factual Background

 B. The Proposed Mesquite Regional Landfill

 The Mesquite Regional Landfill is a project sponsored by Gold Fields Mining Corporation, Western Waste Industries and Southern Pacific Environmental Systems, who have jointly engaged Arid Operations, Inc., a subsidiary of Gold Fields, to develop and operate the landfill on their behalf. The project includes plans for an above-ground landfill that would dispose of municipal solid waste shipped by rail from urban areas in Southern California. The landfill is intended to contain ultimately 600,000,000 tons of garbage. The project has a 100-year life expectancy, with over $ 500,000,000 expected to be spent on the project in the first 20 years. During the same 20 year period, the County expects to derive more than $ 100,000,000 in "host fees" from the operation of the landfill.

 The land exchange that forms the basis of the project would allow Gold Fields to acquire federal property currently managed by the BLM. Of the 4,245 acres included as the planned site, approximately 1,745.47 acres or 40% is federal land ("selected lands"). To allow the project to materialize, the BLM has approved the trade of the selected lands in return for six parcels of private property totaling 2,642.17 acres ("offered lands"). According to the ROD, in total, the selected lands are appraised at $ 610,914.50 ($ 350.00 per acre), and the offered lands at $ 609,995.40. The $ 919.10 difference in value is to be paid in cash by Gold Fields to the United States.

 The ROD represents the BLM's final action on the package of approvals necessary for the Mesquite Regional Landfill project. The ROD announces a joint decision by the El Centro Resource Area Manager and the Desert District Manager to approve and complete the land exchange.

 II. DISCUSSION

 A. Standards of Law

 In the Ninth Circuit, the test for granting a preliminary injunction has been formulated as requiring the plaintiff to show either: (1) a combination of probable success on the merits and the possibility of irreparable injury, or (2) that serious questions have been raised and the balance tips sharply in its favor. Dollar Rent-A-Car v. Travelers Indem. Co., 774 F.2d 1371, 1374-75 (9th Cir. 1985); Hoopa Valley Tribe v. Christie, 812 F.2d 1097, 1102 (9th Cir. 1986).

 However, before this Court reaches the merits of the preliminary injunction motion, it must determine whether the Plaintiffs have standing to bring this action. In order to establish standing, a "plaintiff must allege [1] personal injury [2] fairly traceable to the defendant's allegedly unlawful conduct [3] likely to be redressed by the requested relief. Allen v. Wright, 468 U.S. 737, 751, 82 L. Ed. 2d 556, 104 S. Ct. 3315 (1984). Additionally, in cases seeking review of an administrative decision under the Administrative Procedure Act (APA), 5 U.S.C. 701-706 (1988), prudential limitations must also be addressed by showing that, in this case, the Plaintiffs are within the "zone of interests" sought to be protected by the Federal Land Policy and Management Act (FLPMA).

 B. Standing Analysis

 In order to determine if the Plaintiffs have standing to bring this action, it is important to review the applicable statutory and regulatory provisions at issue in this case as well as the alleged violations of these statutes and regulations that Plaintiffs claim entitle them to relief.

 1. FLPMA

 In the Federal Lands Policy and Management Act of 1976 (FLPMA), Congress declared a national policy that "the public lands be retained in Federal ownership, unless as a result of the land use planning procedure provided for in this Act, it is determined that disposal of a particular parcel will serve the national interest." 43 U.S.C. § 1701(a)(1). Consistent with that over-arching policy, Section 206 of the FLPMA authorizes the Secretary of the Interior to dispose of public lands by exchange when certain conditions are satisfied. First, the Secretary must "determine[] that the public interest will be well served by making that exchange," after taking certain factors into consideration. 43 U.S.C. § 1716(a). Second, the Secretary must also specifically find "that the values and objectives which Federal lands . . . to be conveyed may serve if retained in Federal ownership are not more than the values of the non-Federal lands . . . and the public objectives they could serve if acquired." Id. Finally, the "values of the lands exchanged by the Secretary under this Act . . . shall be equal" or made equal by a limited cash payment. 43 U.S.C. § 1716(b). To assure that the public will receive value in any exchange of federal lands, Section 206(d) of the FLPMA specifically directs that the Secretary "shall" obtain and consider an appraisal of the affected lands' market value. 43 U.S.C. § 1716(d).

 2. BLM Land Exchange Regulations

 The BLM's regulations implementing the requirements of Section 206 for land exchanges are found in 43 C.F.R. Part 2200. These regulations provide that no decision by the Bureau to approve a proposed exchange may be made until completion of the necessary documentation, which includes the appraisal mandated by Section 206. 43 C.F.R. § 2201.7-1(a). That appraisal must determine the "market value" of the affected lands, based on the "highest and best use" of the appraised property, and estimate its market value "as if in private ownership and available for sale in the open market." 43 C.F.R. § 2201.3-2(a)(1)-(2). The regulations provide definitions for both "market value" and "highest and best use." *fn1" The report documenting the appraisal must, in addition, set forth certain supporting information specified in 43 C.F.R. § 2201.3-3, including "an analysis of "highest and best use" and a "description of comparable sales, including a description of all relevant physical, legal and economic factors." 43 C.F.R. § 2201-3.3(d), (g).

 Each appraisal report that is not prepared by the BLM staff must then be reviewed by another qualified appraiser and a written review report prepared that documents the conclusions of the review. 43 C.F.R. § 2201.3-4. The reviewing appraiser is not required to independently verify any of the information or assumptions upon which the original appraisal was based, but the review appraiser has a duty to determine whether the appraisal report "reasonably estimates the probable market value of the land appraised." 43 C.F.R. § 2201-3.4(b)(3).

 It is the BLM's alleged failure to properly comply with these regulations that forms the basis for Plaintiffs' claims. More specifically, Plaintiffs allege that the BLM's approval of the land exchange did not comply with Section 206(a) of the FLPMA which requires the BLM to assure that the market value of the selected lands be equal to the value of the private offered lands and cash given in trade because the BLM failed to consider factors essential to determining the market value of those public lands. In particular, Plaintiffs contend that the BLM failed to consider the possibility that the selected lands could be most valuable for use as a landfill, and thus concluded that the exchange was equal without considering a fundamental aspect of market value.

 Additionally, Plaintiffs contend that the BLM's failure to consider whether the appraisal of the selected lands should be updated given that the appraisals of the selected lands were prepared in June and August 1994 and BLM's approval did not come until February 1996 was arbitrary and capricious.

 3. The Standard of Review under the APA

 The Administrative Procedure Act (APA) provides for judicial review of the actions taken by "each authority of the Government of the United States," except where review is otherwise barred by statute or the action is "committed to agency discretion by law." 5 U.S.C. § 701. The applicable standard for that review ...


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