Lujan v. Nat'l Wildlife Fed'nAnnotate this Case
497 U.S. 871 (1990)
U.S. Supreme Court
Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871 (1990)
Lujan v. National Wildlife Federation
Argued April 16, 1990
Decided June 27, 1990
497 U.S. 871
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE DISTRICT OF COLUMBIA CIRCUIT
The National Wildlife Federation (hereinafter respondent) filed this action in the District Court against petitioners, the Director of the Bureau of Land Management (BLM) and other federal parties, alleging that, in various respects, they had violated the Federal Land Policy and Management Act of 1976 (FLPMA) and the National Environmental Policy Act of 1969 (NEPA) in the course of administering the BLM's "land withdrawal review program," and that the complained-of actions should be set aside because they were "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law" within the meaning of § 10(e) of the Administrative Procedure Act (APA), 5 U.S.C. § 706. Under the program, petitioners make various types of decisions affecting the status of public lands and their availability for private uses such as mining, a number of which decisions were listed in an appendix to the complaint. The court granted petitioners' motion for summary judgment under Federal Rule of Civil Procedure 56, holding that respondent lacked standing to seek judicial review of petitioners' actions under the APA, § 702. The court ruled that affidavits by two of respondent's members, Peterson and Erman, claiming use of public lands "in the vicinity" of lands covered by two of the listed decisions, were insufficient to confer standing as to those particular decisions, and that, even if they had been adequate for that limited purpose, they could not support respondent's attempted APA challenge to each of the 1,250 or so individual actions effected under the program. The court rejected as untimely four more member affidavits pertaining to standing, which were submitted after argument on the summary judgment motion and in purported response to the District Court's postargument request for additional briefing. The Court of Appeals reversed, holding that the Peterson and Erman affidavits were sufficient in themselves, that it was an abuse of discretion not to consider the four additional affidavits, and that standing to challenge the individual decisions conferred standing to challenge all such decisions.
1. The Peterson and Erman affidavits are insufficient to establish respondent's § 702 entitlement to judicial review as "[a] person . . .
adversely affected or aggrieved by agency action within the meaning of a relevant statute." Pp. 497 U. S. 882-889.
(a) To establish a right to relief under § 702, respondent must satisfy two requirements. First, it must show that it has been affected by some "agency action," as defined in § 551(13). See § 701(b)(2). Since neither the FLPMA nor NEPA provides a private right of action, the "agency action" in question must also be "final agency action" under § 704. Second, respondent must prove that it is "adversely affected or aggrieved" by that action "within the meaning of a relevant statute," which requires a showing that the injury complained of falls within the "zone of interests" sought to be protected by the FLPMA and NEPA. Cf. Clarke v. Securities Industry Assn.,479 U. S. 388, 479 U. S. 396-397. Pp. 497 U. S. 882-883.
(b) When a defendant moves for summary judgment on the ground that the plaintiff has failed to establish a right to relief under 702, the burden is on the plaintiff, under Rule 56(e), to set forth specific facts (even though they may be controverted by the defendant) showing that there is a genuine issue for trial. Cf. Celotex Corp. v. Catrett,477 U. S. 317, 477 U. S. 322. Where no such showing is made, the defendant is entitled to judgment as a matter of law. Id. at 477 U. S. 323. Pp. 497 U. S. 883-885.
(c) The specific facts alleged in the two affidavits do not raise a genuine issue of fact as to whether respondent has a right to relief under § 702. It may be assumed that the allegedly affected interests set forth in the affidavits -- "recreational use and aesthetic enjoyment" -- are sufficiently related to respondent's purposes that respondent meets § 702's requirements if any of its members do. Moreover, each affidavit can be read to complain of a particular "agency action" within § 551's meaning; and whatever "adverse effect" or "aggrievement" is established by the affidavits meets the "zone of interests" test, since "recreational use and aesthetic enjoyment" are among the sorts of interests that the FLPMA and NEPA are designed to protect. However, there has been no showing that those interests of Peterson and Erman were actually "affected" by petitioners' actions, since the affidavits alleged only that the affiants used unspecified lands "in the vicinity of" immense tracts of territory, only on some portions of which, the record shows, mining activity has occurred or probably will occur by virtue of the complained-of actions. The Court of Appeals erred in ruling that the District Court had to presume specific facts sufficient to support the general allegations of injury to the affiants, since such facts are essential to sustaining the complaint and, under Rule 56(e), had to be set forth by respondent. United States v. Students Challenging Regulatory Agency Procedures (SCRAP),412 U. S. 669, distinguished. Pp. 497 U. S. 885-889.
2. Respondent's four additional member affidavits did not establish its right to § 702 review. Pp. 497 U. S. 890-898.
(a) The affidavits are insufficient to enable respondent to challenge the entirety of petitioners' "land withdrawal review program." That term does not refer to a single BLM order or regulation, or even to a completed universe of particular BLM orders and regulations, but is simply the name by which petitioners have occasionally referred to certain continuing (and thus constantly changing) BLM operations regarding public lands, which currently extend to about 1,250 individual decisions and presumably will include more actions in the future. Thus, the program is not an identifiable "agency action" within § 702's meaning, much less a "final agency action" under § 704. Absent an explicit congressional authorization to correct the administrative process on a systemic level, agency action is not ordinarily considered "ripe" for judicial review under the APA until the scope of the controversy has been reduced to manageable proportions, and its factual components fleshed out, by concrete action that harms or threatens to harm the complainant. It may well be, due to the scope of the "program," that the individual BLM actions identified in the affidavits will not be "ripe" for challenge until some further agency action or inaction more immediately harming respondent occurs. But it is entirely certain that the flaws in the entire "program" cannot be laid before the courts for wholesale correction under the APA simply because one of them that is ripe for review adversely affects one of respondent's members. Respondent must seek such programmatic improvements from the BLM or Congress. Pp. 497 U. S. 890-894.
(b) The District Court did not abuse its discretion in declining to admit the supplemental affidavits. Since the affidavits were filed in response to the court's briefing order following the summary judgment hearing, they were untimely under, inter alia, Rule 6(d), which provides that "opposing affidavits may be served not later than 1 day before the hearing." Although Rule 6(b) allows a court, "in its discretion," to extend any filing deadline "for cause shown," a post-deadline extension must be "upon motion made," and is permissible only where the failure to meet the deadline "was the result of excusable neglect." Here, respondent made no motion for extension, nor any showing of "cause." Moreover, the failure to timely file did not result from "excusable neglect," since the court's order setting the hearing on the summary judgment motion put respondent on notice that its right to sue was at issue, and that (absent proper motion) the time for filing additional evidentiary materials was, at the latest, the day before the hearing. Even if the court could have overcome these obstacles to admit the affidavits, it was not compelled, in exercising its discretion, to do so. Pp. 497 U. S. 894-898.
3. Respondent is not entitled to seek § 702 review of petitioners' actions in its own right. The brief affidavit submitted to the District Court to show that respondent's ability to fulfill its informational and advocacy functions was "adversely affected" by petitioners' alleged failure to provide adequate information and opportunities for public participation with respect to the land withdrawal review program fails to identify any particular "agency action" that was the source of respondent's alleged injuries, since that program is not an identifiable action or event. Thus, the affidavit does not set forth the specific facts necessary to survive a Rule 56 motion. Pp. 497 U. S. 898-899.
278 U.S.App.D.C. 320, 878 F.2d 422, reversed.
SCALIA, J., delivered the opinion of the Court, in which REHNQUIST C.J., and WHITE, O'CONNOR, and KENNEDY, JJ., joined. BLACKMUN, J., filed a dissenting opinion, in which BRENNAN, MARSHALL, and STEVENS, JJ., joined, post, p. 497 U. S. 900.
JUSTICE SCALIA 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.
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
public lands of the United States . . . and reserve the same for water-power sites, irrigation, classification of lands, or other public purposes. . . ."
Acting under this and under the Taylor Grazing Act of 1934, ch. 865, 48 Stat. 1269, as amended, 43 U.S.C. § 315f, which gave the Secretary of the Interior authority to "classify" public lands as suitable for either disposal or federal retention and management, President Franklin Roosevelt withdrew all unreserved public land from disposal until such time as they were classified. Exec.Order No. 6910, Nov. 26, 1934; Exec.Order No. 6964, Feb. 5, 1935. In 1936, Congress amended § 7 of the Taylor Grazing Act to authorize the Secretary of the Interior "to examine and classify any lands" withdrawn by these orders and by other authority as "more valuable or suitable" for other uses
"and to open such lands to entry, selection, or location for disposal in accordance with such classification under applicable public land laws."
49 Stat.1976, 43 U.S.C. § 315f (1982 ed.). The amendment also directed that
"[s]uch lands shall not be subject to disposition, settlement, or occupation until after the same have been classified and opened to entry."
Ibid. The 1964 classification and multiple use Act, 78 Stat. 986, 43 U.S.C. §§ 1411-1418 (1970 ed.) (expired 1970), gave the Secretary further authority to classify lands for the purpose of either disposal or retention by the Federal Government.
Management of the public lands under these various laws became chaotic. The Public Land Law Review Commission, established by Congress in 1964 to study the matter, 78 Stat. 982, determined in 1970 that "virtually all" of the country's public domain, see Public Land Law Review Commission, One Third of the Nation's Land 52 (1970) -- about one-third of the land within the United States, see id. at 19 -- had been withdrawn or classified for retention; that it was difficult to determine "the extent of existing Executive withdrawals and the degree to which withdrawals overlap each other," id. at 52; and that there were inadequate records to show the purposes
of withdrawals and the permissible public uses. Ibid. Accordingly, it recommended that
"Congress should provide for a careful review of (1) all Executive withdrawals and reservations, and (2) BLM retention and disposal classifications under the Classification and Multiple Use Act of 1964."
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 (1)(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(1)(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, the 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(1) with
respect to withdrawals in 11 western States. The law requires the Secretary to
"report his recommendations to the President, together with statements of concurrence or nonconcurrence submitted by the heads of the departments or agencies which administer the lands;"
the President must in turn submit this report to the Congress, together with his recommendation "for action by the Secretary, or for legislation." § 1714(1)(2). The Secretary has submitted a number of reports to the President in accordance with this provision.
Second, the Secretary revokes some withdrawals under § 204(a) of the Act, which the Office of the Solicitor has interpreted to give the Secretary the power to process proposals for revocation of withdrawals made during the "ordinary course of business." U.S. Dept. of the Interior, Memorandum from the Office of the Solicitor, Oct. 30, 1980. These revocations are initiated in one of three manners: an agency or department holding a portion of withdrawn land that it no longer needs may file a notice of intention to relinquish the lands with the BLM. Any member of the public may file a petition requesting revocation. And in the case of lands held by the BLM, the BLM itself may initiate the revocation proposal. App. 56-57. Withdrawal revocations may be made for several reasons. Some are effected in order to permit sale of the land; some for record-clearing purposes, where the withdrawal designation has been superseded by congressional action or overlaps with another withdrawal designation; some in order to restore the land to multiple use management pursuant to § 102(a)(7) of the FLPMA, 43 U.S.C. § 1701(a)(7) (1982 ed.). App. 142-145.
Third, the Secretary engages in the ongoing process of classifying public lands, either for multiple-use management, 43 CFR pt. 2420 (1988), for disposal, pt. 2430, or for other uses. Classification decisions may be initiated by petition, pt. 2450, or by the BLM itself, pt. 2460. Regulations promulgated
by the Secretary prescribe the procedures to be followed in the case of each type of classification determination.
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(1); 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
of lands in the public domain that was in effect on January 1, 1981,"
and from "[t]aking any action inconsistent" with any such withdrawal, classification, or designation. App. to Pet. for Cert. 185a. In a subsequent order, the court denied petitioners' motion under Rule 12(b) of the Federal Rules of Civil Procedure to dismiss the complaint for failure to demonstrate standing to challenge petitioners' actions under the APA, 5 U.S.C. § 702. App. to Pet. for Cert. 183a. The Court of Appeals affirmed both orders. National Wildlife Federation v. Burford, 266 U.S.App.D.C. 241, 835 F.2d 305 (1987). As to the motion to dismiss, the Court of Appeals found sufficient to survive the motion the general allegation in the amended complaint that respondent's members used environmental resources that would be damaged by petitioners' actions. See id. at 248, 835 F.2d at 312. It held that this allegation, fairly read along with the balance of the complaint, both identified particular land-status actions that respondent sought to challenge -- since at least some of the actions complained of were listed in the complaint's appendix of Federal Register references -- and asserted harm to respondent's members attributable to those particular actions. Id. at 249, 835 F.2d at 313. To support the latter point, the Court of Appeals pointed to the affidavits of two of respondent's members, Peggy Kay Peterson and Richard Erman, which claimed use of land "in the vicinity" of the land covered by two of the listed actions. Thus, the Court of Appeals concluded, there was
"concrete indication that [respondent's] members use specific lands covered by the agency's Program and will be adversely affected by the agency's actions,"
and the complaint was "sufficiently specific for purposes of a motion to dismiss." Ibid. On petitions for rehearing, the Court of Appeals stood by its denial of the motion to dismiss, and directed the parties and the District Court "to proceed with this litigation with dispatch." National Wildlife Federation v. Burford, 269 U.S.App.D.C. 271, 272, 844 F.2d 889, 890 (1988).
Back before the District Court, petitioners again claimed, this time by means of a motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure (which motion had been outstanding during the proceedings before the Court of Appeals), that respondent had no standing to seek judicial review of petitioners' actions under the APA. After argument on this motion, and in purported response to the court's postargument request for additional briefing, respondent submitted four additional member affidavits pertaining to the issue of standing. The District Court rejected them as untimely, vacated the injunction, and granted the Rule 56 motion to dismiss. It noted that neither its earlier decision nor the Court of Appeals' affirmance controlled the question, since both pertained to a motion under Rule 12(b). It found the Peterson and Erman affidavits insufficient to withstand the Rule 56 motion, even as to judicial review of the particular classification decisions to which they pertained. And even if they had been adequate for that limited purpose, the court said, they could not support respondent's attempted APA challenge to "each of the 1250 or so individual classification terminations and withdrawal revocations" effected under the land withdrawal review program. National Wildlife Federation v. Burford, 699 F.Supp. 327, 332 (DC 1988).
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. [Footnote 1] The Court of Appeals also concluded that
standing to challenge individual classification and withdrawal decisions conferred standing to challenge all such decisions under the land withdrawal review program. We granted certiorari. 493 U.S. 1042 (1990).
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)).
Second, the party seeking review under § 702 must show that he has "suffer[ed] legal wrong" because of the challenged agency action, or is "adversely affected or aggrieved" by that action "within the meaning of a relevant statute." Respondent does not assert that it has suffered "legal wrong," so we need only discuss the meaning of "adversely affected or aggrieved . . . within the meaning of a relevant statute." As an original matter, it might be thought that one cannot be "adversely affected or aggrieved within the meaning" of a statute unless the statute in question uses those terms (or terms like them) -- as some pre-APA statutes in fact did when conferring rights of judicial review. See, e.g., Federal Communications Act of 1934, § 402(b)(2), 48 Stat. 1093, as amended, 47 U.S.C. § 402(b)(6) (1982 ed.). We have long since rejected that interpretation, however, which would have made the judicial review provision of the APA no more than a restatement of preexisting law. Rather, we have said that, to be "adversely affected or aggrieved . . . within the meaning" of a statute, the plaintiff must establish that the injury he complains of (his aggrievement, or the adverse effect upon him) falls within the "zone of interests" sought to be protected by the statutory provision whose violation forms the legal basis for his complaint. See Clarke v. Securities Industry Assn.,479 U. S. 388, 479 U. S. 396-397 (1987). Thus, for example, the failure of an agency to comply with a statutory provision requiring "on the record" hearings would assuredly have an adverse effect upon the company that has the contract to record and transcribe the agency's proceedings; but since the provision was obviously enacted to protect the interests of the parties to the proceedings, and not those of the reporters, that company would not be "adversely affected within the meaning" of the statute.
Because this case comes to us on petitioners' motion for summary judgment, we must assess the record under the
standard set forth in Rule 56 of the Federal Rules of Civil Procedure. Rule 56(c) states that a party is entitled to summary judgment in his favor
"if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law."
Rule 56(e) further provides:
"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 477 U. S. 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 477 U. S. 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,
"regardless of whether the moving party accompanies its summary judgment motion with affidavits, the motion may, and should, be granted so long as whatever is before the district court demonstrates that the standard for the entry of summary judgment, as set forth in Rule 56(c), is satisfied."
477 U.S. at 477 U. S. 323.
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
(1982), an order captioned Public Land Order 6156 and dated February 18, 1982.
We also think that whatever "adverse effect" or "aggrievement" is established by the affidavits was "within the meaning of the relevant statute" -- i.e., met the "zone of interests" test. The relevant statute, of course, is the statute whose violation is the gravamen of the complaint -- both the FLPMA and NEPA. We have no doubt that "recreational use and aesthetic enjoyment" are among the sorts of interests those statutes were specifically designed to protect. The only issue, then, is whether the facts alleged in the affidavits showed that those interests of Peterson and Erman were actually affected.
The Peterson affidavit averred:
"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 Kanab 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
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 of 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 nonmetalliferous 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. . . .
[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 nonmoving 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, 477 U. S. 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, 391 U. S. 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
sworn averment of that fact before the lengthy process of litigation continues.
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, 355 U. S. 45-46 (1957).
We turn next to the Court of Appeals' alternative holding that the four additional member affidavits proffered by respondent in response to the District Court's briefing order established its right to § 702 review of agency action.
It is impossible that the affidavits would suffice, as the Court of Appeals held, to enable respondent to challenge the entirety of petitioners' so-called "land withdrawal review program." That is not an "agency action" within the meaning of § 702, much less a "final agency action" within the meaning of § 704. The term "land withdrawal review program" (which as far as we know is not derived from any authoritative text) does not refer to a single BLM order or regulation, or even to a completed universe of particular BLM orders and regulations. It is simply the name by which petitioners have occasionally referred to the continuing (and thus constantly changing) operations of the BLM in reviewing withdrawal revocation applications and the classifications of public lands and developing land use plans as required by the FLPMA. It is no more an identifiable "agency action" -- much less a "final agency action" -- than a "weapons procurement program" of the Department of Defense or a "drug interdiction program" of the Drug Enforcement Administration. As the District Court explained, the "land withdrawal review program" extends to, currently at least, "1250 or so individual classification terminations and withdrawal revocations." 699 F.Supp. at 332. [Footnote 2]
Respondent alleges that violation of the law is rampant within this program -- failure to revise land use plans in proper fashion, failure to submit certain recommendations to Congress, failure to consider multiple use, inordinate focus upon mineral exploitation, failure to provide required public notice, failure to provide adequate environmental impact statements. Perhaps so. But respondent cannot seek wholesale improvement of this program by court decree, rather than in the offices of the Department or the halls of Congress, where programmatic improvements are normally made. Under the terms of the APA, respondent must direct its attack against some particular "agency action" that causes it harm. Some statutes permit broad regulations to serve as the "agency action," and thus to be the object of judicial review directly, even before the concrete effects normally required for APA review are felt. Absent such a provision, however, a regulation is not ordinarily considered the type of agency action "ripe" for judicial review under the APA until the scope of the controversy has been reduced to more manageable proportions, and its factual components fleshed out, by some concrete action applying the regulation to the claimant's situation in a fashion that harms or threatens to harm him. (The major exception, of course, is a substantive rule which, as a practical matter, requires the plaintiff to adjust his conduct immediately. Such agency action is "ripe" for review at once, whether or not explicit statutory review apart from the APA is provided. See Abbott Laboratories v. Gardner,387 U. S. 136, 387 U. S. 152-154 (1967); Gardner v. Toilet Goods Assn., Inc.,387 U. S. 167, 387 U. S. 171-173 (1967). Cf. 387 U. S. S. 892