Opinion · Supreme Court of the United States
Lujan v. National Wildlife Federation
110 S. Ct. 3177
- Type
- Opinion
- Court
- Supreme Court of the United States
- Jurisdiction
- Federal
- Date
- 1990-06-27
- Topic
- general
holding that the summary judgment standard does not require that all ambiguities in the evidence be resolved in favor of the non-moving party | holding that plaintiffs challenged an evolving series of agency operations rather than a final agency action | holding that plaintiffs challenged an evolving series of agency operations rather than a final agency action | holding that under Rule 6(b)(1), “a post-deadline extension ... is permissible only where the failure to meet the deadline was the result of excusable neglect” | holding that the purpose of Rule 56(e) is “not to replace conclusory allegations of the complaint or answer with conclusory allegations of an affidavit” | holding that an allegation a plaintiff used land "in the vicinity" of a challenged action is insufficiently specific to ground standing | holding that an allegation a plaintiff used land “in the vicinity” of a challenged action is insufficiently specific to ground standing | holding that a plaintiff must specifically allege facts sufficient to suppox’t its assei’tion of injuiy-in-faet | holding that, when ruling on Rule 12(b) motions to dismiss, a judge must "presume[ ] that general allegations embrace the specific facts that are necessary to support the claim." (emphasis added) | holding that, when ruling on Rule 12(b) motions to dismiss, a judge must “presume[] that general allegations embrace the specific facts that are necessary to support the claim.” (emphasis added) | concluding that district court did not abuse its discretion in declining to admit affidavits on summary judgment | holding that under Rule 6(b)(1), “a post-deadline extension ... is permissible only where the failure to meet the deadline was the result of excusable neglect” | holding that the district court abused its discretion in excluding unsworn documents because the plaintiff should have been allowed to obtain a curative affidavit | holding that “to defeat a motion for summary judgment, a party cannot rest simply on the allegations in the pleadings” | holding that the summary judgment standard does not require that all ambiguities in the evidence be resolved in favor of the non-moving party | concluding that an APA plaintiff “cannot demand a general judicial review of [an agency’s] day-to-day operations.” | recognizing that APA waives sovereign immunity for suits seeking judicial review of “[a]gency action made reviewable by statute” | holding that a district court examining a nonmovant’s summary judgment evidence may not “assum[e] that general averments embrace the ‘specific facts’ needed to sustain the complaint” | holding that party opposing summary judgment does not show “genuine issue for trial” by “replac[ing] conclusory allegations of the complaint or answer with conclusory allegations of an affidavit” | holding that a plaintiff cannot challenge an agency’s entire program for wholesale correction but instead “must direct its attack against some particular ‘agency action’ that causes it harm” | holding that resolution of any factual issues of controversy in favor of the non-moving party is only prescribed where “the facts specifically averred by that party contradict facts specifically averred by the movant” | holding that an affidavit alleging general use of a two million-acre land area was not specific enough to preclude summary judgment on the issue of statutory standing where the challenged action affected only 4500 of the two million acres | concluding that assertions that an organization’s mission had been “significantly impaired,” its interests “had been injured,” and it “would be irreparably harmed” were too conclusory to establish Article III standing on summary judgment | concluding that a plaintiff “cannot seek wholesale improvement of [an agency] program by court decree” unless a plaintiff “direct[s] its attack against some particular ‘agency action’ that causes it harm” | holding that an affidavit alleging general use of a two million-acre land area was not specif
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delivered the opinion of the Court.
In this case we must decide whether respondent, the National Wildlife Federation (hereinafter respondent), is a proper party to challenge actions of the Federal Government relating to certain public lands.
H — (
Respondent filed this action in 1985 in the United States District Court for the District of Columbia against petitioners the United States Department of the Interior, the Secretary of the Interior, and the Director of the Bureau of Land Management (BLM), an agency within the Department. In its amended complaint, respondent alleged that petitioners had violated the Federal Land Policy and Management Act of 1976 (FLPMA), 90 Stat. 2744, 43 U. S. C. § 1701 et seq. (1982 ed.), the National Environmental Policy Act of 1969 (NEPA), 83 Stat. 852, 42 U. S. C. §4321 et seq., and § 10(e) of the Administrative Procedure Act (APA), 5 U. S. C. §706, in the course of administering what the complaint called the “land withdrawal review program” of the BLM. Some background information concerning that program is necessary to an understanding of this dispute.
In various enactments, Congress empowered United States citizens to acquire title to, and rights in, vast portions of federally owned land. See, e. g., Rev. Stat. §2319, 30 U. S. C. §22 et seq. (Mining Law of 1872); 41 Stat. 437, as amended, 30 U. S. C. § 181 et seq. (Mineral Leasing Act of 1920). Congress also provided means, however, for the Executive to remove public lands from the operation of these statutes. The Pickett Act, 36 Stat. 847, 43 U. S. C. § 141 (1970 ed.), repealed, 90 Stat. 2792 (1976), authorized the President “at any time in his discretion, temporarily [to] withdraw from settlement, location, sale, or entry any of the
Management of the public lands under these various laws became chaotic. The Public Land Law Review Commission,. established by Congress in 1964 to study the matter, 78 Stat. 982, determined in 1970 that “virtually all” of the country’s public domain, see Public Land Law Review Commission, One Third of the Nation’s Land 52 (1970) — about one-third of the land within the United States, see id., at 19 — had been withdrawn or classified for retention; that it was difficult to determine “the extent of existing Executive withdrawals and the degree to which withdrawals overlap each other,” id., at 52; and that there were inadequate records to show the pur
In 1976, Congress passed the FLPMA, which repealed many of the miscellaneous laws governing disposal of public land, 43 U. S. C. § 1701 et seq. (1982 ed.), and established a policy in favor of retaining public lands for multiple use management. It directed the Secretary to “prepare and maintain on a continuing basis an inventory of all public lands and their resource and other values,” § 1711(a), required land use planning for public lands, and established criteria to be used for that purpose, § 1712. It provided that existing classifications of public lands were subject to review in the land use planning process, and that the Secretary could “modify or terminate any such classification consistent with such land use plans.” § 1712(d). It also authorized the Secretary to “make, modify, extend or revoke” withdrawals. § 1714(a). Finally it directed the Secretary, within 15 years, to review withdrawals in existence in 1976 in 11 Western States, § 1714 (0( 1), and to “determine whether, and for how long, the continuation of the existing withdrawal of the lands would be, in his judgment, consistent with the statutory objectives of the programs for which the lands were dedicated and of the other relevant programs,” § 1714(0(2). The activities undertaken by the BLM to comply with these various provisions constitute what respondent’s amended complaint styles the BLM’s “land withdrawal review program,” which is the subject of the current litigation.
Pursuant to the directives of the FLPMA, petitioners engage in a number of different types of administrative action with respect to the various tracts of public land within the United States. First, the BLM conducts the review and recommends the determinations required by § 1714(0 with
Second, the Secretary revokes some withdrawals under § 204(a) of the Act, which the Office of the Solicitor has interpreted to give the Secretary the power to process proposals for revocation of withdrawals made during the “ordinary course of business.” U. S. Dept, of the Interior, Memorandum from the Office of the Solicitor, Oct. 30, 1980. These revocations are initiated in one of three manners: An agency or department holding a portion of withdrawn land that it no longer needs may file a notice of intention to relinquish the lands with the BLM. Any member of the public may file a petition requesting revocation. And in the case of lands held by the BLM, the BLM itself may initiate the revocation proposal. App. 56-57. Withdrawal revocations may be made for several reasons. Some are effected in order to permit sale of the land; some for record-clearing purposes, where the withdrawal designation has been superseded by congressional action or overlaps with another withdrawal designation; some in order to restore the land to multiple use management pursuant to § 102(a)(7) of the FLPMA, 43 U. S. C. § 1701(a)(7) (1982 ed.). App. 142-145.
Third, the Secretary engages in the ongoing process of classifying public lands, either for multiple use management, 43 CFR pt. 2420 (1988), for disposal, pt. 2430, or for other uses. Classification decisions may be initiated by petition, pt. 2450, or by the BLM itself, pt. 2460. Regulations pro
HH I — I
In its complaint, respondent averred generally that the reclassification of some withdrawn lands and the return of others to the public domain would open the lands up to mining activities, thereby destroying their natural beauty. Respondent alleged that petitioners, in the course of administering the Nation’s public lands, had violated the FLPMA by failing to “develop, maintain, and, when appropriate, revise land use plans which provide by tracts or areas for the use of the public lands,” 43 U. S. C. § 1712(a) (1982 ed.); failing to submit recommendations as to withdrawals in the 11 Western States to the President, § 1714(Z); failing to consider multiple uses for the disputed lands, § 1732(a), focusing inordinately on such uses as mineral exploitation and development; and failing to provide public notice of decisions, §§ 1701(a)(5), 1712(c)(9), 1712(f), and 1739(e). Respondent also claimed that petitioners had violated NEPA, which requires federal agencies to “include in every recommendation or report on . . . major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on . . . the environmental impact of the proposed action.” 42 U. S. C. §4332(2)(C) (1982 ed.). Finally, respondent alleged that all of the above actions were “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” and should therefore be set aside pursuant to § 10(e) of the APA, 5 U. S. C. §706. Appended to the amended complaint was a schedule of specific land-status determinations, which the complaint stated had been “taken by defendants since January 1, 1981”; each was identified by a listing in the Federal Register.
In December 1985, the District Court granted respondent’s motion for a preliminary injunction prohibiting petitioners from “[m]odifying, terminating or altering any withdrawal, classification, or other designation governing the protection
This time the Court of Appeals reversed. National Wildlife Federation v. Burford, 278 U. S. App. D. C. 320, 878 F. 2d 422 (1989). It both found the Peterson and Erman affidavits sufficient in themselves and held that it was an abuse of discretion not to consider the four additional affidavits as well.1 The Court of Appeals also concluded that
hH
A
We first address respondent’s claim that the Peterson and Erman affidavits alone suffice to establish respondent’s right to judicial review of petitioners’ actions. Respondent does not contend that either the FLPMA or NEPA provides a private right of action for violations of its provisions. Rather, respondent claims a right to judicial review under § 10(a) of the APA, which provides:
“A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.” 5 U. S. C. §702.
This provision contains two separate requirements. First, the person claiming a right to sue must identify some “agency action” that affects him in the specified fashion; it is judicial review “thereof” to which he is entitled. The meaning of “agency action” for purposes of § 702 is set forth in 5 U. S. C. §551(13), see 5 U. S. C. § 701(b)(2) (“For the purpose of this chapter . . . ‘agency action’ ha[s] the meanin[g] given ... by section 551 of this title”), which defines the term as “the whole or a part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act,” 5 U. S. C. § 551(13). When, as here, review is sought not pursuant to specific authorization in the substantive statute, but only under the general review provisions of the APA, the “agency action” in question must be “final agency action.” See 5 U. S. C. §704 (“Agency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court are subject to judicial review” (emphasis added).
B
Because this case comes to us on petitioners’ motion for summary judgment, we must assess the record under the
“When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party’s pleading, but the adverse party’s response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party.”
As we stated in Celotex Corp. v. Catrett, 477 U. S. 317 (1986), “the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Id., at 322. Where no such showing is made, “[t]he moving party is ‘entitled to a judgment as a matter of law’ because the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof.” Id., at 323.
These standards are fully applicable when a defendant moves for summary judgment, in a suit brought under § 702, on the ground that the plaintiff has failed to show that he is “adversely affected or aggrieved by agency action within the meaning of a relevant statute.” The burden is on the party seeking review under § 702 to set forth specific facts (even though they may be controverted by the Government) showing that he has satisfied its terms. Sierra Club v. Morton,
C
We turn, then, to whether the specific facts alleged in the two affidavits considered by the District Court raised a genuine issue of fact as to whether an “agency action” taken by petitioners caused respondent to be “adversely affected or aggrieved . . . within the meaning of a relevant statute.” We assume, since it has been uncontested, that the allegedly affected interests set forth in the affidavits — “recreational use and aesthetic enjoyment” — are sufficiently related to the purposes of respondent association that respondent meets the requirements of § 702 if any of its members do. Hunt v. Washington State Apple Advertising Comm’n, 432 U. S. 333 (1977).
As for the “agency action” requirement, we think that each of the affidavits can be read, as the Court of Appeals believed, to complain of a particular “agency action” as that term is defined in § 551. The parties agree that the Peterson affidavit, judging from the geographic area it describes, must refer to that one of the BLM orders listed in the appendix to the complaint that appears at 49 Fed. Reg. 19904-19905 (1984), an order captioned W-6228 and dated April 30, 1984, terminating the withdrawal classification of some 4,500 acres of land in that area. See, e. g., Brief for Petitioners 8-10. The parties also appear to agree, on the basis of similar deduction, that the Erman affidavit refers to the BLM order listed in the appendix that appears at 47 Fed. Reg. 7232-7233
We also think that whatever “adverse effect” or “aggrievement” is established by the affidavits was “within the meaning of the relevant statute” — ?:, e., met the “zone of interests” test. The relevant statute, of course, is the statute whose violation is the gravamen of the complaint — both the FLPMA and NEPA. We have no doubt that “recreational use and aesthetic enjoyment” are among the sorts of interests those statutes were specifically designed to protect. The only issue, then, is whether the facts alleged in the affidavits showed that those interests of Peterson and Erman were actually affected.
The Peterson affidavit averred:
“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 of the Bureau and the Department. In particular, the South Pass-Green Mountain area of Wyoming has been opened to the staking of mining claims and oil and gas leasing, an action which threatens the aesthetic beauty and wildlife habitat potential of these lands.” App. to Pet. for Cert. 191a.
Erman’s affidavit was substantially the same as Peterson’s, with respect to all except the area involved; he claimed use of land “in the vicinity of Grand Canyon National Park, the Arizona Strip (Kanab Plateau), and the Kaibab National Forest.” Id., at 187a.
The District Court found the Peterson affidavit inadequate for the following reasons:
“Peterson . . . claims that she uses federal lands in the vicinity of the South Pass-Green Mountain area of Wyoming for recreational purposes and for aesthetic enjoyment and that her recreational and aesthetic enjoyment*887 has been and continues to be adversely affected as the result of the decision of BLM to open it to the staking of mining claims and oil and gas leasing. . . . This decision [W-6228] opened up to mining approximately 4500 acres within a two million acre area, the balance of which, with the exception of 2000 acres, has always been open to mineral leasing and mining. . . . There is no showing that Peterson’s recreational use and enjoyment extends to the particular 4500 acres covered by the decision to terminate classification to the remainder of the two million acres affected by the termination. All she claims is that she uses lands ‘in the vicinity.’ The affidavit on its face contains only a bare allegation of injury, and fails to show specific facts supporting the affiant’s allegation.” 699 F. Supp., at 331 (emphasis in original).
The District Court found the Erman affidavit “similarly flawed.”
“The magnitude of Erman’s claimed injury stretches the imagination. . . . [T]he Arizona Strip consists of all lands in Arizona north and west of the Colorado River on approximately 5.5 million acres, an area one-eighth the size oif the State of Arizona. Furthermore, virtually the entire Strip is and for many years has been open to uranium and other metalliferous mining. The revocation of withdrawal [in Public Land Order 6156] concerned only non-metalliferous mining in the western one-third of the Arizona Strip, an area possessing no potential for non-metalliferous mining.” Id,., at 332.
The Court of Appeals disagreed with the District Court’s assessment as to the Peterson affidavit (and thus found it unnecessary to consider the Erman affidavit) for the following reason:
“If Peterson was not referring to lands in this 4500-acre affected area, her allegation of impairment to her use and enjoyment would be meaningless, or perjurious. . . .*888 [T]he trial court overlooks the fact that unless Peterson’s language is read to refer to the lands affected by the Program, the affidavit is, at best, a meaningless document.
“At a minimum, Peterson’s affidavit is ambiguous regarding whether the adversely affected lands are the ones she uses. When presented with ambiguity on a motion for summary judgment, a District Court must resolve any factual issues of controversy in favor of the non-moving party .... This means that the District Court was obliged to resolve any factual ambiguity in favor of NWF, and would have had to assume, for the purposes of summary judgment, that Peterson used the 4500 affected acres.” 278 U. S. App. D. C., at 329, 878 F. 2d, at 431.
That is not the law. In ruling upon a Rule 56 motion, “a District Court must resolve any factual issues of controversy in favor of the non-moving party” only in the sense that, where the facts specifically averred by that party contradict facts specifically averred by the movant, the motion must be denied. That is a world apart from “assuming” that general averments embrace the “specific facts” needed to sustain the complaint. As set forth above, Rule 56(e) provides that judgment “shall be entered” against the nonmoving party unless affidavits or other evidence “set forth specific facts showing that there is a genuine issue for trial.” The object of this provision is not to replace conclusory allegations of the complaint or answer with conclusory allegations of an affidavit. Cf. Anderson v. Liberty Lobby, Inc., 477 U. S. 242, 249 (1986) (“[T]he plaintiff could not rest on his allegations of a conspiracy to get to a jury without ‘any significant probative evidence tending to support the complaint’”), quoting First National Bank of Ariz. v. Cities Service Co., 391 U. S. 253, 290 (1968). Rather, the purpose of Rule 56 is to enable a party who believes there is no genuine dispute as to a specific fact essential to the other side’s case to demand at least one
At the margins there is some room for debate as to how “specific” must be the “specific facts” that Rule 56(e) requires in a particular case. But where the fact in question is the one put in issue by the §702 challenge here — whether one of respondent’s members has been, or is threatened to be, “adversely affected or aggrieved” by Government action — Rule 56(e) is assuredly not satisfied by averments which state only that one of respondent’s members uses unspecified portions of an immense tract of territory, on some portions of which mining activity has occurred or probably will occur by virtue of the governmental action. It will not do to “presume” the missing facts because without them the affidavits would not establish the injury that they generally allege. That converts the operation of Rule 56 to a circular promenade: plaintiff’s complaint makes general allegation of injury; defendant contests through Rule 56 existence of specific facts to support injury; plaintiff responds with affidavit containing general allegation of injury, which must be deemed to constitute averment of requisite specific facts since otherwise allegation of injury would be unsupported (which is precisely what defendant claims it is).
Respondent places great reliance, as did the Court of Appeals, upon our decision in United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U. S. 669 (1973). The SCRAP opinion, whose expansive expression of what would suffice for § 702 review under its particular facts has never since been emulated by this Court, is of no relevance here, since it involved not a Rule 56 motion for summary judgment but a Rule 12(b) motion to dismiss on the pleadings. The latter, unlike the former, presumes that general allegations embrace those specific facts that are necessary to support the claim. Conley v. Gibson, 355 U. S. 41, 45-46 (1957).
We turn next to the Court of Appeals’ alternative holding that the four additional member affidavits proffered by respondent in response to the District Court’s briefing order established its right to § 702 review of agency action.
A
It is impossible that the affidavits would suffice, as the Court of Appeals held, to enable respondent to challenge the entirety of petitioners’ so-called “land withdrawal review program.” That is not an “agency action” within the meaning of §702, much less a “final agency action” within the meaning of §704. The term “land withdrawal review program” (which as far as we know is not derived from any authoritative text) does not refer to a single BLM order or regulation, or even to a completed universe of particular BLM orders and regulations. It is simply the name by which petitioners have occasionally referred to the continuing (and thus constantly changing) operations of the BLM in reviewing withdrawal revocation applications and the classifications of public lands and developing land use plans as required by the FLPMA. It is no more an identifiable “agency action” — much less a “final agency action” — than a “weapons procurement program” of the Department of Defense or a “drug interdiction program” of the Drug Enforcement Administration. As the District Court explained, the “land withdrawal review program” extends to, currently at least, “1250 or so individual classification terminations and withdrawal revocations.” 699 F. Supp., at 332.2
In the present case, the individual actions of the BLM identified in the six affidavits can be regarded as rules of general applicability (a “rule” is defined in the APA as agency action of “general or particular applicability and future effect,” 5 U. S. C. §551(4) (emphasis added)) announcing, with respect to vast expanses of territory that they cover, the agency’s intent to grant requisite permission for certain activities, to decline to interfere with other activities, and to take other particular action if requested. It may well be, then, that even those individual actions will not be ripe for challenge until some further agency action or inaction more immediately harming the plaintiff occurs.3 But it is at least entirely
B
The Court of Appeals’ reliance upon the supplemental affidavits was wrong for a second reason: The District Court did not abuse its discretion in declining to admit them. Petitioners filed their motion for summary judgment in September 1986; respondent filed an opposition but did not submit any new evidentiary materials at that time. On June 27, 1988, after the case had made its way for the first time through the Court of Appeals, the District Court announced that it would hold a hearing on July 22 on “the outstanding motions for summary judgment,” which included petitioners’ motion challenging respondent’s § 702 standing. The hearing was held and, as noted earlier, the District Court issued an order directing respondent to file “a supplemental memorandum re
Respondent’s evidentiary submission was indeed untimely, both under Rule 56, which requires affidavits in opposition to a summary judgment motion to be served “prior to the day of the hearing,” Fed. Rule Civ. Proc. 56(c), and under Rule 6(d), which states more generally that “[w]hen a motion is supported by affidavit, . . . opposing affidavits may be served not later than 1 day before the hearing, unless the court permits them to be served at some other time.” Rule 6(b) sets out the proper approach in the case of late filings:
“When by these rules or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time, the court for cause shown may at any time in its discretion (1) with or without motion or notice order the period enlarged if request therefor is made before the expiration of the period originally prescribed or as extended by a previous order, or (2) 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 . . . .”
This provision not only specifically confers the “discretion” relevant to the present issue, but also provides the mecha
This last substantive obstacle is the greatest of all. The Court of Appeals presumably thought it was overcome because “the papers on which the trial court relied were two years old by the time it requested supplemental memoranda” and because “there was no indication prior to the trial court’s request that [respondent] should have doubted the adequacy of the affidavits it had already submitted.” 278 U. S. App. D. C., at 331, 878 F. 2d, at 433. We do not understand the relevance of the first point; the passage of so long a time as two years suggests, if anything, that respondent had more than the usual amount of time to prepare its response to the motion, and was more than moderately remiss in waiting until after the last moment. As to the suggestion of unfair surprise: A litigant is never justified in assuming that the court has made up its mind until the court expresses itself to that effect, and a litigant’s failure to buttress its position because of confidence in the strength of that position is always indulged in at the litigant’s own risk. In any case, whatever erroneous expectations respondent may have had were surely dispelled by the District Court’s order in June 1988 announcing that the hearing on petitioners’ motion would be held one month later. At least when that order issued, respondent was on notice that its right to sue was at issue, and that (absent proper motion) the time for filing any additional evidentiary materials was, at the latest, the day before the hearing.
V
Respondent’s final argument is that we should remand this case for the Court of Appeals to decide whether respondent may seek § 702 review of petitioners’ actions in its own right, rather than derivatively through its members. Specifically, it points to allegations in the amended complaint that petitioners unlawfully failed to publish regulations, to invite public participation, and to prepare an environmental impact statement with respect to the “land withdrawal review program” as a whole. In order to show that it is a “person . . . adversely affected or aggrieved” by these failures, it submitted to the District Court a brief affidavit (two pages in the record) by one of its vice presidents, Lynn A. Greenwalt, who stated that respondent’s mission is to “inform its members and the general public about conservation issues” and to advocate improvements in laws and administrative practices “pertaining to the protection and enhancement of federal lands,” App. to Pet. for Cert. 193a-194a; and that its ability to perform this mission has been impaired by petitioners’ failure “to provide adequate information and opportunities for public participation with respect to the Land Withdrawal Review Program.” Id., at 194a. The District Court found this affidavit insufficient to establish respondent’s right to seek judicial review, since it was “conclusory and completely devoid of specific facts.” 699 F. Supp., at 330. The Court of Appeals, having reversed the District Court on the grounds discussed above, did not address the issue.
We agree with the District Court’s disposition. Even assuming that the affidavit set forth “specific facts,” Fed. R.
“NWF’s ability to meet these obligations to its members has been significantly impaired by the failure of the Bureau of Land Management and the Department of the Interior to provide adequate information and opportunities for public participation with respect to the Land Withdrawal Review Program. These interests of NWF have been injured by the actions of the Bureau and the Department and would be irreparably harmed by the continued failure to provide meaningful opportunities for public input and access to information regarding the Land Withdrawal Review Program.” App. to Pet. for Cert. 194a.
As is evident, this is even more deficient than the Peterson and Erman affidavits, which contained geographical descriptions whereby at least an action as general as a particular classification decision could be identified as the source of the grievance. As we discussed earlier, the “land withdrawal review program” is not an identifiable action or event. With regard to alleged deficiencies in providing information and permitting public participation, as with regard to the other illegalities alleged in the complaint, respondent cannot demand a general judicial review of the BLM’s day-to-day operations. The Greenwalt affidavit, like the others, does not set forth the specific facts necessary to survive a Rule 56 motion.
For the foregoing reasons, the judgment of the Court of Appeals is reversed.
It is so ordered.
As an additional basis for its conclusion, the Court of Appeals held that the earlier panel’s finding that the Peterson and Erman affidavits were sufficient to establish respondent’s right to sue was the “law of the case.” We do not address this conclusion, as the earlier panel’s ruling does not, of course, bind this Court. Messenger v. Anderson, 225 U. S. 436, 444 (1912).
Contrary to the apparent understanding of the dissent, we do not contend that no “land withdrawal review program” exists, any more than we would contend that no weapons procurement program exists. We merely assert that it is not an identifiable “final agency action” for purposes of the APA. If there is in fact some specific order or regulation, applying some particular measure across the board to all individual classification terminations and withdrawal revocations, and if that order or regulation is final, and has become ripe for review in the manner we discuss subsequently in
Under the Secretary’s regulations, any person seeking to conduct mining operations that will “cause a cumulative surface disturbance” of five acres or more must first obtain approval of a plan of operations. 43 CFR §3809.1-4 (1988). Mining operations that cause surface disturbance of less than five acres do not require prior approval, but prior notice must be given to the district office of the BLM. § 3809.1-3. Neither approval nor notification is required only with respect to “casual use operations,” § 3809.1-2, defined as “activities ordinarily resulting in only negligible disturbance of the Federal lands and resources,” § 3809.0-5. (Activities are considered “casual” if “they do not involve the use of mechanized earth moving equipment or explosives or do not involve the use of motorized vehicles in areas designated as closed to off-road vehicles . . . .” Ibid.) Thus, before any mining use ordinarily involving more than “negligible disturbance” can take place, there must occur either agency action in response to a submitted plan or agency inaction in response to a submitted notice.
In one of the four new affidavits, Peggy Peterson, one of the original affi-ants, states that a corporation has filed a mine permit application with the BLM covering a portion of the land to which her original affidavit pertained. App. to Brief in Opposition for Respondent National Wildlife Federation 16. If that permit is granted, there is no doubt that agency action ripe for review will have occurred; nor any doubt that, in the course of an otherwise proper court challenge, affiant Peterson, and through her respondent, would be able to call into question the validity of the classification order authorizing the permit. However, before the grant of such a permit, or (when it will suffice) the filing of a notice to engage in mining
“The lands may be subject to another withdrawal of comparable scope or they may be subject to classification segregations tantamount to such a withdrawal. In that case, the lands would not be opened to the operation of the public land laws so that the removal of one of the withdrawals has no practical effect. Another reason why there may not be any change is that before the revocation occurred, the lands may have been transferred into private ownership. Consequently, the withdrawal revocation amounts to nothing more than a paper transaction .... In the alternative, a revoked withdrawal may open the lands to the operation of the public land and mineral laws. . . . Some withdrawal revocations are made without prior knowledge as to what subsequent disposition may be made of the lands. After the lands are opened, they might be transferred out of federal ownership by sale, exchange, or some other discretionary mode of disposal, not anticipated when the withdrawal was revoked. These subsequent discretionary actions require separate and independent decisionmaking that, obviously, are divorced from the prior revocation decision. Environmental and other management concerns and public participation are taken into account in relation to the post-revocation decisionmaking.” Affidavit of Frank Edwards, Aug. 18, 1985, App. 61-62.
Nothing in this is contrary to our opinion in Automobile Workers v. Brock, 477 U. S. 274 (1986), cited by the Court of Appeals. That opinion did not discuss, and the respondent Secretary of Labor did not rely upon, the requirements of 5 U. S. C. §702 and our ripeness jurisprudence in cases such as Abbott Laboratories v. Gardner, 387 U. S. 136 (1967); Gardner v. Toilet Goods Assn., Inc., 387 U. S. 167 (1967); and Toilet Goods Assn., Inc. v. Gardner, 387 U. S. 158 (1967). The only challenge made and decided, with respect to the individuals’ right to sue, relied upon 19 U. S. C. § 2311(d) (1982 ed.), which according to the Secretary of Labor made entertainment of that suit “ ‘contrary to Congress’s incorporation of
The dissent asserts that a footnote in respondent’s reply memorandum to the District Court was a “motion” within the meaning of Rule 6(b)(2), and was so obviously so that the District Court committed reversible error in failing to construe it that way. Post, at 909-910, n. 10. We cannot agree. Rule 6(b) establishes a clear distinction between “requests” and “motions,” and the one cannot be converted into the other without violating its provisions — or at least cannot be converted on the basis of such lax criteria that conversion would be not only marginally permissible but positively mandatory in the present case. Rule 6(b)(1) allows a court (“for cause shown” and “in its discretion”) to grant a “request” for an extension of time, whether the request is made “with or without motion or notice,” 'provided the request is made before the time for filing expires. After the time for filing has expired, however, the court (again “for cause shown” and “in its discretion”) may extend the time only “upon motion.” To treat all postdeadline “requests” as “motions” (if indeed any of them can be treated that way) would eliminate the distinction between predeadline and postdeadline filings that the Rule painstakingly draws. Surely the post-deadline “request,” to be even permissibly treated as a “motion,” must contain a high degree of formality and precision, putting the opposing party on notice that a motion is at issue and that he therefore ought to respond. The request here had not much of either characteristic. As for formality, it was not even made in a separate filing or in a separate appearance before the court, but was contained in a single sentence at the end of the first paragraph of one of the 18 single-spaced footnotes in a 20-page memorandum of law. Our district judges must read footnotes with new care if they are to be reversed for failing to recognize motions buried in this fashion. And as for precision, the request not only did not ask for any particular extension of time (7 days, 30 days), it did not specifically ask for an extension of time at all, but merely said that respondent “should be given adequate opportunity to supplement the record.” Even this, moreover,