Lujan v. National Wildlife Federation/Dissent Blackmun

by Harry Blackmun

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. ^[1] Similarly, the record furnishes ample support for NWF's contention that mining activities can be expected to cause severe environmental damage to the affected lands. ^[2] The District Court held, however, that the Federation had not adequately identified particular members who were harmed by the consequences of the Government's actions. Although two of NWF's members expressly averred that their recreational activities had been impaired, the District Court concluded that these affiants had not identified with sufficient precision the particular sites on which their injuries occurred. The majority, like the District Court, holds that the averments of Peterson and Erman were insufficiently specific to withstand a motion for summary judgment. Although these affidavits were not models of precision, I believe that they were adequate at least to create a genuine issue of fact as to the organization's injury.

As the Court points out, the showing (whether as to standing or the merits) required to overcome a motion for summary judgment is more extensive than that required in the context of a motion to dismiss. The principal difference is that in the former context evidence is required, while in the latter setting the litigant may rest upon the allegations of his complaint. See Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986) (Federal Rule of Civil Procedure 56(e) "requires the nonmoving party to go beyond the pleadings"). In addition, Rule 56(e) requires that the party opposing summary judgment "must set forth specific facts showing that there is a genuine issue for trial" (emphasis added). Thus, Courts of Appeals have reiterated that "conclusory" allegations unsupported by "specific" evidence will be insufficient to establish a genuine issue of fact. ^[3]

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 actions of the Bureau and the Department." App. to Pet. for Cert. 188a (Erman affidavit), 191a (Peterson affidavit). The question, it should be emphasized, is not whether the NWF has proved that it has standing to bring this action, but simply whether the materials before the District Court established "that there is a genuine issue for trial," see Rule 56(e), concerning the Federation's standing. In light of the principle that "[o]n summary judgment the inferences to be drawn from the underlying facts contained in [evidentiary] materials must be viewed in the light most favorable to the party opposing the motion," United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962), I believe that the evidence before the District Court raised a genuine factual issue as to NWF's standing to sue.

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. ^[4] Peterson's assertion that her use and enjoyment of federal lands have been adversely affected by the agency's decision to permit more extensive mining is, as the Court of Appeals stated, National Wildlife Federation v. Burford, 278 U.S.App.D.C. 320, 329, 878 F.2d 422, 431 (1989), "meaningless, or perjurious" if the lands she uses do not include those harmed by mining undertaken pursuant to termination order W-6228. ^[5] To read particular assertions within the affidavit in light of the document as a whole is, as the majority might put it, "a world apart" from "presuming" facts that are neither stated nor implied simply because without them the plaintiff would lack standing. The Peterson and Erman affidavits doubtless could have been more artfully drafted, but they definitely were sufficient to withstand the federal parties' summary judgment motion.

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. ^[6] The court's decision abruptly derailed the Federation's lawsuit after three years of proceedings involving massive time and expense. The District Court and Court of Appeals both had concluded that NWF's claims were sufficiently substantial to warrant the entry of a nationwide injunction. Whatever the ultimate merits of the Federation's claims, litigation of this magnitude should not be aborted on technical grounds if that result legitimately can be avoided. The majority's approach reflects an insufficient appreciation both of the realities of complex litigation and of the admonition that the Federal Rules of Civil Procedure "shall be construed to secure the just, speedy, and inexpensive determination of every action." Rule 1.

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. ^[7] Once the District Court's power to accept untimely affidavits is recognized, the question whether that power should be exercised in a particular instance must be answered by reference to the explanation for the litigant's omission and the purposes the Rules are designed to serve. In my view, NWF showed adequate cause for its failure to file the supplemental affidavits prior to the hearing. Moreover, the organization's untimely filing in no way disserved the purposes of Rule 56(c), and the federal parties suffered no prejudice as a consequence of the delay. Under these circumstances, I believe that the District Court's refusal to consider these submissions constituted an abuse of discretion.

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 (D.C.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 its members, officers, employees, agents, servants, or attorneys shall be permitted until subsequent order of this court, if any." App. to Pet. for Cert. 170a-171a. When the District Court's grant of a preliminary injunction was subjected to appellate review, the Court of Appeals concluded that the Peterson and Erman affidavits "provide a concrete indication that the Federation's members use specific lands covered by the agency's Program and will be adversely affected by the agency's actions." National Wildlife Federation v. Burford, 266 U.S.App.D.C. 241, 249, 835 F.2d 305, 313 (1987). ^[8] The majority's statement that "a litigant is never justified in assuming that the court has made up its mind until the court expresses itself to that effect," ante, at 897, is therefore simply irrelevant to the present case: The District Court and the Court of Appeals repeatedly had indicated that the Federation had offered sufficient evidence of its standing.

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 the Federation. The principal submission of the federal parties relevant to the hearing was the Defendants' Memorandum in Opposition to Plaintiff's Motion for Summary Judgment and in Support of Defendants' Motion for Summary Judgment and/or for Dissolution of the Preliminary Injunction Issued on February 10, 1986; that memorandum was filed on September 12, 1986. This 86-page memorandum included only 91/2 pages devoted to standing, and half of that discussion set forth the federal parties' claim that no broad programmatic challenge could succeed even if the Peterson and Erman affidavits adequately alleged injury from Government decisions as to particular tracts of land. Moreover, even the attack on the Peterson and Erman affidavits did not purport to show that summary judgment for the federal parties should be entered on the ground that the Federation lacked standing. Rather, the federal parties argued principally that summary judgment for NWF would be inappropriate because a genuine factual dispute existed as to the Federation's standing to sue. See Defendants' Memorandum, at 45-47. In fact, the 86-page memorandum included only two sentences arguing that the federal parties should be awarded summary judgment on standing grounds. Id., at 11-12, 85. The District Court's decision to schedule a hearing on the parties' cross-motions for summary judgment provided no hint that previous assurances concerning standing were open to reconsideration. ^[9]

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 of the adjudicative process to encourage litigants to reargue questions previously settled in their favor. In my view, NWF established sufficient cause for its failure to submit the supplemental affidavits prior to the hearing. ^[10] Moreover, the District Court's refusal to consider the additional submissions in this case did not significantly advance the interests that Rule 56(c) is designed to serve. The Rule requires that affidavits in opposition to a motion for summary judgment must be served "prior to the day of hearing." The Courts of Appeals consistently have recognized, however, that "Rule 56 does not necessarily contemplate an oral hearing. Rather, 10-day advance notice to the adverse party that the motion and all materials in support of or in opposition to the motion will be taken under advisement by the trial court as of a certain day satisfies the notice and hearing dictates of Rule 56." Moore v. Florida, 703 F.2d 516, 519 (CA11 1983). ^[11] Rule 56(c)'s requirement that a summary judgment motion be filed 10 days in advance of a scheduled hearing serves to ensure that the nonmoving party is afforded adequate notice of the motion. Similarly, the requirement that opposing affidavits be submitted prior to the day of the hearing reflects the fact that the district court may rule on the summary judgment motion at the hearing or at any time thereafter; submission of affidavits prior to that day is thus essential if the moving party is to be assured the opportunity to respond at a time when a response is meaningful. The requirement also allows the district court to establish a deadline by which time all evidence and arguments must be submitted; thereafter, the court may deliberate with the assurance that no subsequent filings will alter the terms of the dispute.

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. ^[12] NWF's supplemental affidavits, filed on August 22 as an attachment to its legal memorandum, were submitted at a time when the federal parties had ample opportunity to respond. (Indeed, the opportunity to respond here-10 days-was far greater than would have been the case if NWF had filed (timely) affidavits the day before the hearing and no supplemental briefing had been allowed.) The affidavits, moreover, were filed well before the time when the case was to be taken under advisement. The record in this case is voluminous, currently filling six large boxes; consideration of five more affidavits would not have added significantly to the complexity of the issues before the District Court. Under these circumstances, submission of the supplemental affidavits neither disserved the purposes of the Rule nor prejudiced the federal parties in any respect.

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. ^[13] Similarly, the Court today fails to assess the District Court's action by reference to the excuse for NWF's untimely filing or the absence of prejudice to the federal parties. The District Court and today's majority fail to recognize the guiding principle of the Federal Rules of Civil Procedure, the principle that procedural rules should be construed pragmatically, so as to ensure the just and efficient resolution of legal disputes. Some provisions of the Rules strip the district courts of discretion, and the courts have no choice but to enforce these requirements with scrupulous precision. ^[14] But where the Rules expressly confer a range of discretion, a district court may abuse its authority by refusing to take account of equitable concerns, even where its action violates no express command. In my view, such an abuse of discretion occurred here.

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." ^[15] In one sense, of course, there is no question that a "program" exists. Everyone associated with this lawsuit recognizes that the BLM, over the past decade, has attempted to develop and implement a comprehensive scheme for the termination of classifications and withdrawals. The real issue is whether the actions and omissions that NWF contends are illegal are themselves part of a plan or policy. For example: If the agency had published a regulation stating that an environmental impact statement (EIS) should never be developed prior to the termination of a classification or withdrawal, NWF could challenge the regulation (which would constitute an "agency action"). If the reviewing court then held that the statute required a pretermination EIS, the relief (invalidation of the rule) would directly affect tracts other than the ones used by individual affiants. At the other extreme, if the applicable BLM regulation stated that an EIS must be developed, and NWF alleged that the administrator in charge of South Pass/Green Mountain had inexplicably failed to develop one, NWF should not be allowed (on the basis of the Peterson affidavit) to challenge a termination in Florida on the ground that an administrator there made the same mistake.

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 of the District Court to entertain the suit, I would allow the District Court to address the question on remand. ^[16]

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.

Notes

1. Prior to the District Court's entry of the preliminary injunction, 406 mining claims had been staked in the South Pass-Green Mountain area alone. App. 119. An exhibit filed by the federal parties indicated that over 7,200 claims had been filed in 12 Western States. Exh. 1 to Affidavit of Joseph Martyak (Apr. 11, 1986).
2. A Bureau of Land Management (BLM) draft of a Resource Management Plan/Environmental Impact Statement for the Lander, Wyo., Resource Area stated: "In the Green Mountain Management Unit . . . significant long-term impacts to elk and mule deer herds could occur from habitat losses caused by oil and gas activities over the next 60 years. . . . In the South Pass Management Unit, significant acreages of lodgepole pine forest and aspen conifer woodland habitat types could be disturbed, which would cause significant long-term impacts to moose and elk. . . . If gold mining activities continued to erode these high-value habitats, trout fisheries, the Lander moose herd, the beaver pond ecosystems, and the populations of many other wildlife species would suffer significant cumulative negative effects." Draft RMP/EIS pp. 226-228 (Exh. 3 to Defendant-Intervenors' Reply to Plaintiff's Opposition to Defendants' Motions for Stay Pending Appeal (May 14, 1986)).
3. See, e.g., May v. Department of Air Force, 777 F.2d 1012, 1016 (CA5 1985); First Commodity Traders, Inc. v. Heinold Commodities, Inc., 766 F.2d 1007, 1011 (CA7 1985); Maldonado v. Ramirez, 757 F.2d 48, 51 (CA3 1985); Galindo v. Precision American Corp., 754 F.2d 1212, 1216 (CA5 1985).
4. See, e.g., App. 123-139 (declaration of Jack Kelly).
5. The areas harmed or threatened by mining and associated activities may extend well beyond the precise location where mining occurs. See n. 2, supra.
6. Five supplemental affidavits were filed. The first was submitted by Peggy Kay Peterson, in clarification of her earlier affidavit: "A substantial portion of the lands which I use . . . are identical to those lands" newly opened to mining in the South Pass-Green Mountain area. Peterson Supplemental Affidavit, App. in No. 88-5397 (CADC), p. 356. Ms. Peterson also asserted that "U.S. Energy Corporation has filed a mine permit application with the Bureau and Department, (U.S. Energy Application, TFN 2 4/86), which includes a proposal to mine a significant portion of the federal lands which I use for recreational purposes and aesthetic enjoyment." Id., at 355-356. The other affiants were NWF members David Doran, Merlin McColm, Stephen Blomeke, and Will Ouellette. These individuals identified termination orders that had opened to mining particular tracts of land used by the affiants for recreation and aesthetic enjoyment.
7. Rule 56(c) provides that when a motion for summary judgment is filed, the "adverse party prior to the day of hearing may serve opposing affidavits." Under Rule 56(e), the district court "may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits." Rule 6(d) states: "When 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." The district court's authority to permit service "at some other time" is governed in turn by Rule 6(b), which provides that when an act is required to be performed by a specified time, the district court may "upon motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect." See 4A C. Wright & A. Miller, Federal Practice and Procedure § 1165, p. 475 (2d ed. 1987) (Rule 6(b) "gives the court extensive flexibility to modify the fixed time periods found throughout the rules, whether the enlargement is sought before or after the actual termination of the allotted time").
8. The Court of Appeals' discussion of standing occurred in the context of a motion to dismiss and therefore, by itself, might not assure NWF that it had made a sufficient showing to withstand a motion for summary judgment. But the Court of Appeals, like the District Court before it, also held that the Federation's showing of injury, as reflected in the Peterson and Erman affidavits, provided an adequate basis for a preliminary injunction. As the second Court of Appeals panel concluded, "the burden of establishing irreparable harm to support a request for a preliminary injunction is, if anything, at least as great as the burden of resisting a summary judgment motion on the ground that the plaintiff cannot demonstrate 'injury-in-fact.' " National Wildlife Federation v. Burford, 278 U.S.App.D.C. 320, 330, 878 F.2d 422, 432 (1989) (emphasis omitted). When the first panel affirmed the District Court's entry of a preliminary injunction, Judge Williams' separate opinion, concurring and dissenting, stated that "the specificity required for standing allegations to secure a preliminary injunction will normally be no less than that required on a motion for summary judgment." 266 U.S.App.D.C., at 264, 835 F.2d, at 328.
9. At the hearing itself Fred R. Disheroon, the federal parties' attorney, argued at length on other points before turning to the issue of standing. He began that portion of his argument by observing that "perhaps the court doesn't want to hear me argue standing, but I think it is imperative that I address that in the context of this case." Tr. of Motions Hearing 43 (July 22, 1988).
10. The supplemental affidavits were submitted as an attachment to the supplemental legal memorandum on standing requested by the District Court. At the time of their submission, NWF stated only that "NWF now has submitted declarations on behalf of other members of NWF who have been injured by the challenged actions of federal defendants." Plaintiff National Wildlife Federation's Statement of Points and Authorities in Support of Its Standing To Proceed 18, n. 21 (Aug. 22, 1988). However, in its reply memorandum on the issue, NWF addressed the contention of the federal parties and the defendant-intervenor that the affidavits should be ignored as untimely filed. NWF stated: "Plaintiff heretofore, has relied on the court's previous rulings on NWF's standing. In its motion for a protective order against additional discovery, NWF argued that its standing had already been proven on the basis of the affidavits of Mr. Greenwalt, Ms. Peterson, and Mr. Erman. The court agreed and entered the requested protective order. If the court intends to reverse its prior ruling, then NWF respectfully requests that it should be given adequate opportunity to supplement the record." Plaintiff National Wildlife Federation's Reply Memorandum in Support of Its Standing To Proceed 17, n. 16 (Sept. 14, 1988). The Federation also noted that Circuit precedent permitted the filing of supplemental affidavits on standing issues, even on appeal. Ibid., citing National Wildlife Federation v. Hodel, 268 U.S.App.D.C. 15, 24, 839 F.2d 694, 703 (1988). NWF offered the further explanation: "Ms. Peterson has supplemented her affidavit to include new information regarding a mine application which has been filed by U.S. Energy Corporation that includes a proposal to mine lands within the area of South Pass/Green Mountain previously closed to mining. For the record, NWF initially was told by officials of the Bureau of Land Management that the U.S. Energy mine application did not include any lands covered by the court's preliminary injunction. Otherwise, NWF would have supplemented Ms. Peterson's affidavit earlier." Reply memorandum, at 12-13, n. 13.
11. Accord, Allied Chemical Corp. v. Mackay, 695 F.2d 854, 856 (CA5 1983) ("Rule 56(c) does not require an oral hearing in open court. Rather, it contemplates notice to the party opposing the motion and an adequate opportunity to respond to the movant's arguments"); Bratt v. International Business Machines Corp., 785 F.2d 352, 363 (CA1 1986).
12. The District Court subsequently established a schedule for the supplemental briefing. NWF was requested to file its opening memorandum by August 22, 1988; the federal parties and intervenors were to file memoranda in opposition by September 1; and NWF's reply was due by September 14. Order of July 27, 1988.
13. The District Court mentioned these affidavits in a single footnote: "Plaintiff, in addition to its memorandum filed August 22, 1988 has submitted additional evidentiary material, including declarations from four of its members. These submissions are untimely and in violation of our Order. We decline to consider them. See Federal Defendants' Reply to Plaintiff's Statement of Points and Authorities in Support of Its Standing to Proceed, at 1 n. 1." National Wildlife Federation v. Burford, 699 F.Supp. 327, 328-329, n. 3 (D.C.1988).
14. Rule 6(b), for example, which generally gives the district court broad authority to grant enlargements of time, establishes the limitation that the court "may not extend the time for taking any action under Rules 50(b) and (c)(2), 52(b), 59(b), (d) and (e), 60(b), and 74(a), except to the extent and under the conditions stated in them."
15. The term "withdrawal review program" repeatedly has been used in BLM documents. See, e.g., Plaintiff's Exhs. 1, 3, 10, 11, 15, 18, 19 (filed July 15, 1985). At oral argument on the cross-motions for summary judgment, counsel for the federal parties acknowledged: "It is true, BLM referred to this review process as a land withdrawal review program." Tr. of Motion Hearing 40 (July 22, 1988). Counsel went on to say, "but I suggest that using a word, calling it a program, doesn't make a program in the sense that it is being challenged here." Ibid. That assertion, though inelegant, seems essentially correct: An agency's terminology is not decisive in determining whether an alleged illegality is systemic or site-specific.
16. The majority also suggests that the agency actions challenged in this suit may not be ripe for review. See ante, at 891-893. Since the issue of ripeness has not been briefed or argued in this Court, nor passed on by the courts below, I need not address it. I do note, however, that at the outset of this case the federal parties made precisely the opposite argument, asserting that a preliminary injunction should be denied on the ground that NWF's claims were barred by laches. The federal parties contended: "The Federation offers no explanation why, despite its detailed knowledge of BLM's revocation and termination activities, it has waited so long to institute litigation." Defendants' Memorandum in Opposition to Plaintiff's Motion for Preliminary Injunction 26 (Aug. 22, 1985).

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.