Kettle Range Conservation Group v. United States Bureau of Land Management

concurring:

I concur fully in the per curiam opinion. I write only to expand on one important point.

This is one of those cases in which the trial courts’ and the court of appeals’ preliminary decisions as to whether to grant injunctive relief pendente lite, including stays, is determinative of the ultimate outcome of the litigation. In such cases, judges must be particularly sensitive to the practical consequences *1088 of their initial action or inaction, not only because of the effect on the transactions involved, but because of the need to ensure that the court does not inadvertently lose its ability to enforce an important Congressional mandate. In this case, a substantial part of the land was transferred on the day after the district court initially denied a preliminary injunction, before a stay could be obtained from this court; and most of the remainder of the disputed property was transferred just before the district court’s scheduled hearing on the permanent injunction — the hearing at which that court determined that the government’s underlying conduct violated NEPA.

Whether or not the government’s actions in this case served to deprive the courts of the ability to…

Kettle Range Conservation Group and Inland Empire Public Lands Council (together, Kettle Range) seek emergency relief pending their appeal from the district court’s partial grant and partial denial of a permanent injunction. The partial injunction bars the Bureau of Land Management (BLM) from completing a sweeping exchange of public for private lands until it has fully complied with the requirements of the National Environmental Policy Act (NEPA). The district court declined, however, to take the more important — from a practical standpoint — action that Kettle Range had sought: it refused to rescind, pending BLM’s compliance with NEPA, the contract between the BLM and defendant-intervenor, Clearwater Land Exchange (Clearwater), pursuant to which over 90% of the government’s land involved in the exchange had already been transferred to private parties.

The district court determined that, without the joinder of the private entities that now had title to the land, it could not fashion a more equitable remedy or afford greater relief. It is this decision from which Kettle Range appeals. The BLM has not appealed the district court’s finding that the' agency violated NEPA by pursuing…