author: KEETON, District Judge.

text:
    Leon S. TAYLOR, Plaintiff, v. John O. MARSH, Secretary of the Army, Defendant.
    Civ. A. No. 82-3421-K.
    United States District Court, D. Massachusetts.
    Dec. 30, 1985.
    Krokidas & Bluestein, Boston, Mass., Myles Jacobson, David Weingarten, for plaintiff.
    Regional Gen. Counsel, U.S. Dept., of The Army, Boston, Mass., Asst. U.S. Atty., Karen Green, for defendant.
   Memorandum and Order

KEETON, District Judge.

Plaintiff brought this action in federal court alleging that defendant had discriminated against him because of his age, in violation of 29 U.S.C. § 633a(a). The action was filed in November 1982. In October 1984, defendant moved to amend his answer and to dismiss. Both the proposed amended answer and the motion to dismiss contend that plaintiff did not exhaust his administrative remedies because he failed to take the final administrative step of appealing the decision of the Director of Equal Opportunity of the Department of the Army to the Equal Employment Opportunity Commission (“EEOC”) Board of Review and Appeals.

At the conference held on November 8, 1984, the court stated that it would defer ruling on the motion to dismiss while plaintiff pursued the final administrative step. Defendant agreed to waive any objection of untimeliness in the administrative appeal. Plaintiff thereafter filed his administrative appeal. Because of the considerable time which the administrative appeal will require, however, plaintiff has expressed his wish to go forward with this action, notwithstanding the pending appeal. I must therefore now consider the merits of defendant’s argument that the case must be dismissed because plaintiff has failed to exhaust his administrative remedies.

I.

Under 29 U.S.C. § 633a, a federal employee with a complaint of age discrimination may proceed either by filing a civil action in a federal district court after having given the EEOC at least thirty days notice of his or her intent to sue, 29 U.S.C. § 633a(c), § 633a(d), or by filing a complaint with the EEOC, 29 U.S.C. § 633a(b). An employee who has chosen the second alternative still has recourse to a civil action, although the statute does not specify at what stage or after what time he or she may file in district court. See 29 U.S.C. § 633a.

In this instance plaintiff chose initially to pursue his administrative remedies. He first filed a formal complaint of discrimination with the Army on March 17, 1981. The United States Army Civilian Appellate Review Agency recommended in August 1981, that the Army deny plaintiff’s age discrimination claim. On March 3, 1982, an EEOC examiner held a hearing on plaintiff’s claim. He also recommended a finding of no discrimination.

On September 7, 1982, the Director of Equal Employment of the Department of the Army notified plaintiff by letter that he had decided to adopt the recommended finding of the EEOC examiner that there had been no discrimination. The letter continued,

This letter constitutes the agency’s final decision on the matter about which you complained. If you are not satisfied with this decision, your appeal rights are as follows:
a. You may file a civil action in an appropriate United States District Court.
b. You may appeal to the Equal Employment Opportunity Commission within 20 calendar days of receipt of this decision____

After receipt of this decision, plaintiff filed the present action in federal court. In his answer, defendant admitted that “plaintiff has exhausted all administrative procedures required by law.” Two years after the commencement of this action, in October 1984, defendant sought to amend his answer to include an allegation that plaintiff had failed to exhaust his administrative remedies. Defendant also moved at that time for dismissal on the basis of non-exhaustion.

II.

In the context of a statutory scheme other than that under consideration in this case, the Supreme Court held that the exhaustion requirement was comprised of two elements, one “waivable” and one “not waivable.” In Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), the Supreme Court concluded that § 405 of the Social Security Act required that, in order for a federal court to have subject matter jurisdiction, a claim must have been presented to the Social Security Administration. Because this requirement was jurisdictional, the Court deemed it “non-waivable.” 424 U.S. at 328, 96 S.Ct. at 899. The Court concluded that the requirement that all administrative remedies need have been exhausted before an action was filed was, however, not jurisdictional and could be “waived.” Id.

The instant case involves a different statutory scheme than that considered in Mathews v. Eldridge. I conclude, nonetheless, that by analogy the distinction between the waivable and non-waivable elements of exhaustion has some applicability to this case. There is no particular exhaustion requirement explicitly made by 29 U.S.C. § 633a. Courts in attempting to construe consistently the several provisions of that section have assumed that there must be some limit on a complainant’s ability to file a civil action where he or she has chosen to begin the administrative process. See Limongelli v. Postmaster General, 707 F.2d 368, 373 (9th Cir.1983); Purtill v. Harris, 658 F.2d 134, 138 (3d Cir.1981), cert. denied, 462 U.S. 1131, 103 S.Ct. 3110, 77 L.Ed.2d 1365 (1983). Nothing in the purposes identified by these courts for imposing such limitations, however, impels the conclusion that there must be complete exhaustion before a civil suit may be filed.

For example, the court in Purtill v. Harris, in dismissing an action filed by a plaintiff shortly after he had commenced an administrative complaint, reasoned,

Allowing a plaintiff to abandon the administrative remedies he has initiated would tend to frustrate the ability of the agency to deal with complaints. All participants would know that at any moment an impatient complainant could take his claim to court and abort the administrative proceedings. Moreover, such a course would unnecessarily burden courts with cases that otherwise might be terminated successfully by mediation and conciliation.

658 F.2d at 138.

The concerns identified in Purtill warrant restraining a complainant from filing a civil action before the administrative process which he or she initiated has had an opportunity to reach some resolution. Those concerns do not necessarily require, however, that where the administrative process has resulted in a determination, the determination be tested to the last step of administrative recourse before a judicial resolution is pursued. In the instant case, plaintiff did not abandon the administrative proceedings, but filed in federal court only after he had been informed that the Agency had reached a final decision and that it would be appropriate for plaintiff to so file.

I conclude that the purposes of the statute and its scheme of administrative and judicial remedies will not be undermined by a rule that fails to require that every administrative step have been pursued in every instance. I conclude, therefore, that consistently with the purposes of 29 U.S.C. § 633a, a claimant may in some instances be excused from certain elements of administrative exhaustion.

Having concluded that the failure to follow every administrative step is not necessarily fatal to a civil action under § 633a, I conclude further that in this case defendant, by his actions, has excused plaintiff from the requirement that he take the final step of appeal to the EEOC.

In Mathews v. Eldridge, the Supreme Court cast the excuse from administrative exhaustion in terms of “waiver.” The Court concluded that, in that case, the defendant had waived the exhaustion requirement. At least as applied to this case, however, it is not quite accurate to say that the defendant “waived” the requirement that plaintiff exhaust his administrative remedies.

A waiver is the intentional relinquishment of a known right. The defendant in this case did not know at the time of the September 7, 1982, letter, or at the time his answer was filed in this action, that plaintiff had failed to exhaust his administrative remedies. Therefore, defendant did not intentionally waive a known right that plaintiff be required to do so. Defendant thus did not “waive” the exhaustion requirement.

The analogy to Mathews v. Eldridge is nonetheless apt, however, because defendant by his actions has rendered plaintiff excused from the exhaustion requirement not by “waiver” in the strict sense of “voluntary relinquishment of known right,” but by reason of what has been aptly called an “election.”

Professor John Ewart in his writings on the distinction between waiver and election identified election as the choice of one of two or more courses each of which has distinct legal consequences. J. Ewart, Waiver Distributed Among the Departments: Election, Estoppel, Contract, Release, 7-9, 84-87 (with an Introduction by Roscoe Pound 1917). Having chosen a particular course, a party is then foreclosed from pursuing any other course, even if at the time of his choice the party was not aware of the consequences.

Professor Ewart explained this aspect of election, that a party is bound by the consequences of his choice even though he may not have known them at the time the choice was made, by means of the following example:

we may take as illustrative ... the case of a landlord who knew that a sub-lease had been executed but was unaware that, for that reason, he had a right to elect to terminate the lease. If under those circumstances he should receive, or demand, or distrain for rent subsequently falling due, he would be held to have elected to continue the tenancy; and his election would be irreversible notwithstanding his lack of knowledge.

Id. at 75. See also id. at 85-86.

Although courts have not adopted Professor Ewart’s terminology, his observation that waiver has been used in very different senses is apt. Some confusion, which may have affected the course of the present litigation, may be avoided by distinguishing between “waiver” in the sense of “voluntary relinquishment of known right” (“strict waiver”) and “waiver” in the sense that Professor Ewart calls “election” (“waiver by election”).

In this case, the defendant notified plaintiff by letter on September 7, 1982, that a “final decision” had been reached and that he could proceed to federal court. The defendant also admitted in his answer, and did not deny for two years after commencement of the action, that plaintiff had exhausted his administrative remedies. By these acts, defendant “elected” not to require plaintiff to exhaust his administrative remedies even though defendant did not knowingly and intentionally waive the requirement. Having elected not to require exhaustion, defendant is now foreclosed from imposing such a requirement.

III.

In conclusion, there is no persuasive reason to dismiss the action for failure to exhaust administrative remedies in this case where the Agency has made a determination which it, at least at one time, considered and represented as “final” and where defendant failed to raise any exhaustion problem until two years after the beginning of the action.

It is ORDERED:

Defendant’s Motion to Dismiss is denied.


source: Caselaw Access Project

license: Public Domain

text:
    NATURAL RESOURCES DEFENSE COUNCIL, INC., et al., Plaintiffs, v. Donald P. HODEL, as Secretary of the United States Department of the Interior, et al., Defendants.
    Civ. No. R-84-13-ECR.
    United States District Court, D. Nevada.
    Dec. 30, 1985.

      David B. Edelson, Johanna H. Wald, Natural Resources Defense Council, Inc., Laurens H. Silver, San Francisco, Cal., for plaintiffs.
    F. Henry Habicht II, Asst. Atty. Gen., Wells Burgess, Land & Natural Resources Div., U.S. Dept, of Justice, Washington, D.C., William A. Maddox, U.S. Atty., Shirley Smith, Asst. U.S. Atty., Reno, Nev., for defendants.
   MEMORANDUM

JAMES M. BURNS, District Judge, Sitting by Designation.

This is a complex case of first impression, brought by environmental organizations seeking to overturn certain decisions made by the Bureau of Land Management (BLM) relating to livestock grazing on public lands in the Reno, Nevada area. The plaintiffs challenge the BLM’s land use plan as being in conflict with Congressional statutory mandates, and as being arbitrary and capricious as a matter of administrative law. They also raise a variety of challenges to BLM’s environmental impact statement which purports to evaluate its proposed plan in comparison to other alternatives.

I have considered each of the many arguments raised by plaintiffs in this case in painstaking detail. The sheer size of the record, the complexity of the arguments, and the lack of useful precedent in many areas of the case have made this a perplexing chore for me. As a result, I have spent an extraordinary amount of time in reviewing, researching, and trying to decide these issues in a legally correct and fair way. Many of the complaints raised by plaintiffs have factual merit and suggest the possibility of either bad management or insensitivity to certain environmental concerns on the part of the BLM. But in the final analysis, I have concluded that these complaints do not give rise to causes of action sufficient to allow this court to intervene in the BLM’s grazing programs in the manner sought by plaintiffs. To do otherwise would ultimately require this court to adopt the opinion of one expert over that of another, or to adopt one theory of range management over another. While I may not personally approve of some of the actions taken by the BLM, (in the sense that if I were the “rangemaster” I might as well have produced a different plan) I am powerless to substitute my judgment for that of the BLM in these matters. Such would be the inescapable result of the position urged by plaintiffs. For this reason I grant defendants’ motion for summary judgment and deny the plaintiffs’ cross motion.

BACKGROUND

The BLM manages some 171 million acres of federal lands in 11 western states. Responsibility for managing these lands was vested in the BLM initially by the Taylor Grazing Act of 1934, now codified at 43 U.S.C. § 315 et seq. The supervision of livestock grazing on these lands is a principal activity of the BLM. The BLM lands are divided for grazing purposes into districts, and subdivided into planning areas, such as the “Reno Planning Area” which is the subject of this action. The Reno Planning Area encompasses an overall area of just over 5 million acres, about 700,000 of which are under BLM supervision. (A.R. V: 494). The planning areas are further divided into grazing allotments, for which the BLM issues grazing permits or licenses.

In 1974 the BLM prepared a single, programmatic Environmental Impact Statement (EIS) to cover its entire grazing program. That EIS was declared to be inadequate by the U.S. District Court for the District of Columbia in Natural Resources Defense Council v. Morton, 388 F.Supp. 829 (D.D.C.1974), affirmed 527 F.2d 1386 (D.C.Cir.1976). The court found that the program-wide EIS “does not provide the detailed analysis of local geographic conditions necessary for the decision-maker to determine what course of action is appropriate under the circumstances.” Id., 388 F.Supp. at 838-39.

Subsequent to the NRDC v. Morton decisions Congress enacted comprehensive legislation intended to guide the BLM’s management of public lands, including those used for grazing. The Federal Land Policy and Management Act of 1976 (FLPMA), 43 U.S.C. §§ 1701-1782 gave the BLM organic authority and set out both general and specific policies and guidelines to be applied by the agency. The Public Rangeland Improvements Act (PRIA), 43 U.S.C. §§ 1901-1908, supplemented and refined FLPMA’s range management provisions, and authorized funding for specific on-the-ground range improvements designed to reverse the widespread downward trend in range conditions.

Pursuant to the decision in NRDC v. Morton and the new statutes, the BLM undertook steps in the late 1970s to lay the groundwork for a comprehensive grazing management plan and EIS for the Reno area. The agency began gathering inventory data, listing the available resources in portions of the planning area. Agency specialists then began preparation of the Management Framework Plan (MFP), which is accomplished in three stages pursuant to agency regulations.2 At the first stage, or MFP I, individual planning recommendations were compiled and explained or justified based on substantive law or agency policies. At the next stage, MFP II, the agency attempted to identify and analyze resource conflicts between the various recommendations or uses. The MFP thus acts as a preliminary land use plan, striking some sort of balance among the competing pressures on the resources available. The MFP II for the Reno Planning Area was completed in mid-1981.

The MFP II then served as the “proposed action” within a draft EIS which was issued in July, 1982. The draft EIS (“DEIS”) attempts to compare the “proposed action” with three other alternatives in terms of their environmental, economic, and social consequences. The plaintiffs herein took advantage of the opportunity to comment on the DEIS, and pointed out numerous perceived shortcomings. After purportedly considering these objections and considering the alternatives outlined, the BLM issued a Final Environmental Impact Statement (FEIS) which essentially incorporated the DEIS, and summarized the alternatives and predictions in tables. Also included were some minor corrections and copies of comments received relating to the DEIS. The “proposed action” was then adopted as the MFP III, or final land use plan for grazing in the Reno planning area on December 21, 1982.

The plaintiffs protested the adoption of the MFP III as a final agency action, first to the state BLM director, and then to the Director of the BLM. These protests were denied in all material respects. This lawsuit was then filed, in which plaintiffs challenge the adequacy of the EIS, as well as the substantive decision, the MFP III, as being contrary to law and applicable regulations. Plaintiffs’ arguments will be discussed in approximately the same order as presented in their motion for summary judgment.

ANALYSIS

7. Violations of NEPA

A. MFP Decision Preceded EIS Process

In this argument, contained principally at pp. 20-22 of plaintiffs’ memorandum in support of motion for summary judgment, plaintiffs contend that the BLM had actually decided on its intended course of action before preparing an EIS and actually considering the alternatives. They contend that by predetermining the course of action to be taken, the BLM essentially reduced the process required by the National Environmental Policy Act, 42 U.S.C. § 4321 et seq. (1970), to the level of a meaningless, after-the-fact exercise.

“The purpose of NEPA is to assure that federal agencies are fully aware of the impact of their decision on the environment.” Friends of the Endangered Species v. Jantzen, 760 F.2d 976, 985 (9th Cir.1985). Plaintiffs are thus correct in asserting, in theory, that preparation and consideration of an EIS should precede the adoption of the actual federal action proposed. State of California v. Bergland, 483 F.Supp. 465, 479 (E.D.Cal.1980), affirmed in part State of California v. Block, 690 F.2d 753 (9th Cir.1982). It does not follow, however, that an agency cannot formulate a proposed action, or even decide that it wishes to take the, proposed action, before preparation of an EIS. Indeed, agency regulations contemplate the selection of a preferred course of action prior to completion and filing of the DEIS. 43 C.F.R. § 1601.5-F (1982). NEPA demands only that the agency follow certain procedural steps in evaluating the consequences of its action, and that the EIS itself comply with the general purposes of NEPA, by providing decision-makers with an analysis of the environmental effects of a proposed action, and to provide the public with such information and an opportunity to participate in gathering information. Citizens for a Better Henderson v. Hodel, 768 F.2d 1051, 1056 (9th Cir.1985).

There is no contention in this case that the BLM did not observe the procedural requirements of NEPA, in terms of the timing of its public announcements or the like. Moreover, there is no contention that the BLM implemented its proposed action prior to completion of the NEPA process. (Indeed, if one accepts the characterizations of the MFP III advanced by plaintiffs, the planned action involved virtually no change over the status quo, at least for the first several years of the plan period.) Rather, plaintiffs argue, in effect, that the BLM had decided that it liked the MFP III approach before it completed the NEPA/EIS process. In an ideal world, perhaps, agencies should refrain from any sort of policy decision until all environmental consequences have been fully analyzed. And perhaps the BLM can be validly criticized for operating in such a fashion in this case. But such policy-making criticisms do not rise to the level of NEPA violations, and none of the cases cited by plaintiffs so hold. I respectfully decline to indulge in the sort of administrative mind-reading that would be required under the theory advocated by plaintiffs in this section of their argument.

B. EIS Fails to Analyze Specific Proposals or Alternatives

This section of the plaintiffs’ NEPA argument contains many sub-arguments, some of. which overlap with substantive challenges made to the MFP III plan itself. Generally, this section of plaintiffs’ argument is addressed at the lack of specificity in the EIS as to both the proposed action (the MFP III) as well as the alternatives presented. At this point it would be helpful to briefly summarize the nature of the proposed action.

The MFP II first categorized each of the approximately 55 grazing allotments in the Reno Area into one of three categories, based on an evaluation of each allotment’s resources, potential, trend, and other factors outlined in Appendix K to the DEIS. The three categories are Maintenance (“M”), Improvement (“I”), and Custodial (“C”). Although the criteria are quite detailed, the basic features of the categories are as follows. In “M” allotments, the BLM feels that ecological conditions are adequate or improving, that present management policies are satisfactory, and no drastic changes are required over the status quo. In “I” allotments, the ecological condition is fair to poor, with a downward trend, there is the potential for improvement based on economically feasible measures, and present practices are not adequate to meet long term objectives. In “C” allotments, conditions are viewed as stable, but potential for improved productivity is limited, and there is little likelihood of cost-effective improvement.

The central feature of the MFP (which is the “proposed action” in the EIS) is to focus BLM efforts on the. “I” category allotments. The plan calls for initially maintaining existing grazing levels for a period of about 5 years, and addressing problems on the “I” allotments through range improvements, grazing systems, and consultation with affected parties. This consultation and joint decision-making process is called Coordinated Resource Management and Planning, or CRMP in BLM jargon. (See DEIS at p. 1-16, A.R. VII: 804). The MFP also calls for further monitoring of the allotments so that adjustments in grazing levels, if necessary, can be undertaken at a later date. In the long term (beyond 5 years) the BLM plans to reduce grazing in the Reno Area by 30% (for livestock) and 20% overall (including all grazing species). (FEIS p. 8, A.R. VI: 634).

With this brief explanation of the proposed action clearly understood, we may thus proceed to analyze the EIS which evaluates it and its alternatives. In examining plaintiffs’ specific arguments relating to the EIS, it is also important to remember the court’s standard of review. As indicated above, the court’s review under NEPA is basically two-tiered. The court first determines whether the procedural requirements of NEPA have been satisfied, and secondly whether the EIS fulfills the policies required by NEPA. Citizens for a Better Henderson v. Hodel, 768 F.2d at 1056. In evaluating the adequacy of the EIS under this second level, it must be remembered that the scope of the EIS is largely determined by the scope of the proposed action itself and the rule of reason. Courts, in construing NEPA do not throw the rule of reason overboard. Thus, where the proposed action is vast in scope, covering a large project or program, NEPA’s policy will obviously demand more from the EIS in the way of specificity and range of alternatives than where the proposed action is more modest in its scale. See California v. Bergland, 483 F.Supp. 465, 473 (E.D.Cal.1980). “Judicial review of the range of alternatives considered by an agency is governed by a ‘rule of reason’ that requires an agency to set forth only those alternatives necessary to permit a ‘reasonable choice.’ ” California v. Block, 690 F.2d 753, 767 (9th Cir.1982), quoting Save Lake Washington v. Frank, 641 F.2d 1330, 1334 (9th Cir.1981). Keeping this standard of review in mind, as well as the scope of the proposed action, I now turn to the specific challenges raised by plaintiffs.

1. A Proper Grazing EIS Must Allocate Forage on Each Allotment

The general thrust of this argument is that the EIS must contain specific information as to each grazing allotment in the Reno planning area. Plaintiffs complain that the proposed action does not really describe specific, on-the-ground actions to be taken, but merely categorizes the allotments, and proposes that the BLM’s main efforts will be focused on the “I” allotments. They point out, through their experts, that the basic components of range management are numbers of livestock, seasons of use, forage utilization levels, and grazing systems. (Plaintiffs’ Memo in Support of Summary Judgment at p. 22). They further reason that because BLM regulations require each grazing permit to specify in detail the utilization level for each grazing allotment, a grazing EIS must contain an allotment-by-allotment specification of how the BLM proposes to permit grazing under the MFP as well as under each alternative.

When fully considered, plaintiffs’ argument here emerges as really a complaint against the vagueness of the MFP itself, and not so much as an indictment of the EIS under NEPA principles. The legality of the MFP, of course, is challenged separately by plaintiffs and is discussed in depth infra. It is true that the proposed action does not promise any specific measures will be taken by any particular dates. As described in the DEIS at p. 1-4, the BLM intends to “continue to monitor”, begin CRMP, propose possible adjustments in livestock levels, implement Allotment Management Plans (AMPS), and to implement grazing systems. All of these actions are, to some extent, hypothetical. The DEIS clearly explains the assumptions (DEIS at pp. 3-1, 2; A.R. VII: 839-40), including the assumption that the BLM will have the funding to carry out the specific actions eventually required under the MFP. Nevertheless, because the scope of the EIS is determined by the scope of the proposed action, it is unreasonable to expect the EIS to analyze possible actions in greater detail than is possible given the tentative nature of the MFP itself.

An EIS of the specificity sought by plaintiffs is also unreasonable on another ground. Basically, plaintiffs want the EIS to spell out stocking levels for each of the 55 or so allotments both in the near term, and in the long term, and under each of the four (and preferably more) alternatives. Plaintiffs are really seeking an EIS for each allotment. A document addressing the ecological and other impacts for each set of permutations of stocking levels would be a completely unmanageable undertaking. Under the “rule of reason” analysis discussed in California v. Block, supra, such a request must be denied.

Plaintiffs argue that the decision of the District of Columbia court in NRDC v. Morton, 388 F.Supp. 829 (D.D.C.1974) requires localized EIS’s with the detail they seek, namely specific proposals and alternatives to govern each gracing allotment under the BLM’s jurisdiction. I do not read the case that way. Indeed, Judge Flannery was careful to note in his opinion that “Plaintiffs do not ask that impact statements be filed for every license or permit issued or renewed by the BLM.” Id., 388 F.Supp. at 838. He repeated the same caution later in his opinion, 388 F.Supp. at 841. He clearly indicated that it was to be within the discretion of the BLM to determine whether it wished to address the effects of gracing permits individually or in groups, on a district-wide basis. Id. The court stressed that the important consideration was that “the actual environmental effects of particular permits or groups of permits in specific areas” be addressed. Id. The EIS does that in the Reno planning area, and is consistent with the language of NRDC v. Morton.

2. Range of Alternatives Addressed is Inadequate

Plaintiffs make a number of sub-arguments in this section of their motion. The first is that the four alternatives presented in the EIS do not constitute a wide enough range of alternatives. Plaintiffs observe that, in the short run, three of the alternatives studied are identical in the amount of forage allocated to livestock. Only one alternative, the so-called “resource protection alternative”, calls for any reduction in livestock grazing within the first five years. And even under that alternative, only the “I” allotments would be affected; grazing levels would remain the same on “M” and “C” allotments. (The “resource protection alternative” also involved some wild horse removal; see DEIS Table 1; A.R. VII: 770).

In analyzing these contentions it is worthwhile to repeat the basic principles of NEPA law that have already been mentioned. First, the scope of alternatives required to be analyzed is determined by the scale of the proposed action. See California v. Block, 690 F.2d at 767. Second, the range of alternatives must be weighed against the underlying purposes of NEPA: allowing a reasoned choice by the decision-maker and allowing informed participation by the public. Citizens for a Better Henderson v. Hodel, 768 F.2d at 1056; see Kilroy v. Ruckelshaus, 738 F.2d 1448, 1454 (9th Cir.1985) (EIS need not consider alternatives remote from reality.)

Plaintiffs rely heavily on comparisons drawn between the facts of this case and California v. Block. In the latter case the Ninth Circuit largely affirmed the district court’s conclusion that the range of alternatives discussed was not broad enough. In that case a number of alternatives for classification of wilderness areas were discussed, but the overall range of results under the various alternatives was narrow: only 34% of the total area was allocated to wilderness under the most liberal of the alternatives. Plaintiffs attempt to analogize this case to California v. Block both in terms of the number of alternatives discussed, and in terms of the range of results discussed. (The most liberal alternative in this case contemplates only a 30% reduction in total forage consumption in the short term.) I find these arguments unpersuasive.

The scope of the program in California v. Block was enormous in its consequences compared with the proposed action in this case. The program in California v. Block involved classification of some 62 million acres of roadless land for. wilderness or other purposes, including decisions that could potentially be irreversible if development were allowed to proceed on erstwhile roadless areas. In this case the BLM proposed only a very modest departure from the status quo, as described earlier in this opinion. The land mass involved here is only about 1% of the amount of acreage at issue in Block. The MFP calls for ongoing adjustments in grazing levels through the CRMP process, to prevent damage as conditions warrant. Plaintiffs are correct in observing that three of the alternatives studied call for the same level of livestock use in the short run. They also correctly note that there is a “spread” of only about 30 percent in forage consumption among all alternatives. Nevertheless, I do not view these features as fatal under a “rule of reason” standard, given the nature of the proposed action in this case.

Plaintiffs make similar arguments about the long-term figures used in EIS. They observe that forage levels are only mentioned in summary fashion, and are not explained or analyzed in terms of grazing permits on an allotment-by-allotment basis. The long-term forage levels are, to some extent, arbitrary since they depend on successful installation of the range improvements and grazing systems foreseen by the MFP. Nevertheless, they represent an acceptable range of alternatives, given the vagueness of the MFP itself.

Plaintiffs also attack the narrow range of forage allocations even under the summary figures used in the EIS. The percentage of forage allocated to livestock falls within a narrow range of 24%, as between the lowest and highest alternatives discussed. (FEIS at 8; A.R. VI: 634). This numerical figure, however, is not significant in the abstract. As revealed in the DEIS, the economic impacts on the ranching community would be significant in both the short-term and long-term aspects of the “resource protection” alternative. (DEIS at 3-23, 24; A.R. VII: 861-62). NEPA should not be read as to require alternatives even more extreme both in terms of monetary losses and job losses. Further, as the allowable amount of grazing is decreased, the value of the permits are also decreased, thus further reducing the funds available to the BLM to pay for the necessary physical range improvements, which are essential parts of all alternatives analyzed (except the No Action alternative.) Thus, while it is possible that the BLM could have analyzed an alternative plan allowing less grazing than any of the others indicated, it likely would not address the deteriorating range condition as effectively as the mix of choices set out in the EIS, particularly in the “resource protection” alternative.

Plaintiffs further complain that the environmental consequences of the four alternatives used evidences an inadequate range of options. They observe that the EIS predicts the same gross ecological changes (in terms of changes in condition class) under three of the four alternatives (“proposed action,” “maximization of livestock,” and “resource protection.”) (DEIS at 5-29, 5-40; A.R. VII: 899, 910). Again, this coincidence means little in the abstract. The four alternatives reflected a range of difference in management emphasis (A.R. VII: 770-71), cost (A.R. VII: 772, 778), public acceptance (A.R. VII: 779), and total allocated forage (A.R. VII: 770). The fact that the alternatives have similar outcomes by some criteria does not, by itself, establish a NEPA violation.

Plaintiffs finally argue, in this section of their motion, that the BLM was under an obligation to at least consider an alternative that attempts to redress the overall poor quality of the rangeland in the planning area. They point out that under all alternatives nearly half of the Reno area will remain in poor condition, and that “there will be continued overuse of unprotected riparian habitat' by livestock and/or wild horses causing a decline in vegetation quality." DEIS 3-25; A.R. VII: 863. They further contend that this failure to address the possibility of more aggressive measures to improve the conditions generally constitutes a violation of Council of Environmental Quality (CEQ) regulations and the agency's substantive mandates.

Once again it bears repeating that alternatives must be viewed under a “rule of reason” and are to be measured against the scope of the proposed action. In this instance the proposed action is rather limited in scope, as are the alternatives. But the alternatives are reasonable ones, and do represent some improvement in overall land quality values over the long run. The “resource protection” alternative may not go as far as plaintiff would wish in remedying range conditions, but it is not reasonable to expect any feasible program to return all portions of the Reno area to their prehistoric native condition. Moreover, the fact that much of the area is expected to remain in “poor” condition does not have any implications for the type of management. The “poor” label refers only to the condition of the land relative to its “climax” ecological state, which is only a hypothetical and theoretical condition for most of the public land under BLM supervision. See DEIS at 5-21; A.R. VII: 891.

The fact that lands' may be in a state below that of their aboriginal pristine condition is content neutral for policy purposes. The important characteristic is whether the lands are producing at or near their capacity, under multiple-use/sustained yield principles, as required by FLPMA and PRIA. See 43 U.S.C. §§ 1712(c), 1903(b). This includes productivity for livestock uses, which inherently involves a retreat from the land’s native condition or ecological climax state. Thus the arguments raised by plaintiffs in this regard, while factually correct, do not represent NEPA violations. “Poor” ecological condition, as that term is used by the BLM, does not necessarily mean that management decisions or reasonable alternatives thereto have not accommodated the competing pressures on public lands, or that insufficient attention is being paid to environmental values.

3. EIS Should Have Considered a No-Grazing Alternative

Plaintiffs here argue that the BLM’s internal policies, as well as CEQ regulations, required the BLM to include in the EIS an alternative analyzing the effects of a complete ban on livestock grazing within the Reno area. I find this argument lacks merit.

This argument must be evaluated against the historical background of the Reno planning area, and against the regulations and case authorities that discuss the scope of alternatives that must be included for an EIS to be valid. First, it is an indisputable fact that livestock grazing has been going on in the Reno planning area, on public lands, for more than a century. (A.R. X: 1377). For better or worse, production of forage for livestock use is at least an important priority in the overall resource picture of this area. Cf. DEIS at 2-17-20; A.R. VII: 824-27. Second, the mandate of Congress in PRIA was that livestock use was to continue as an important use of public lands; they should be managed to maximize productivity for livestock and other specified uses. 43 U.S.C. § 1903. Third, NEPA does not require examination of alternatives that are so speculative, contrary to law, or economically catastrophic as to be beyond the realm of feasibility. Kilroy v. Ruckelshaus, 738 F.2d 1448, 1454 (9th Cir.1985); California v. Block, 690 F.2d 753, 767 (9th Cir.1982). The complete abandonment of grazing in the Reno planning area is practically unthinkable as a policy choice; it would involve monetary losses to the ranching community alone of nearly 4 million dollars and 290 jobs (DEIS at 2-20; A.R. VII: 827), not to mention unquantifiable social impacts, (see DEIS at 2-22; A.R. VII: 829). Of course, compared with the economy of the Reno area as a whole, ranching plays only a negligible role. Nevertheless, eliminating all grazing would have extreme impacts on this small community. A “no grazing” policy is simply not a “reasonable alternative” for this particular area. Citizens For A Better Henderson v. Hodel, 768 F.2d 1051, 1057 (9th Cir.1985).

A “no grazing” alternative is also not required by CEQ regulations that refer to a “no action” alternative, 40 C.F.R. § 1502.-14(d). The “action” that is proposed in this case is the MFP. As previously summarized, the MFP involves maintaining present livestock levels, continued monitoring, installation of. range improvements, and improvement on those 10 or 11 allotments singled out for special attention. The “no action” alternative studied in the EIS is the correct “no action” alternative, as contemplated by the CEQ regulations, namely continuation of the status quo ante, in the absence of any of the proposed actions. “No action” in my opinion is certainly not, in this context, a complete reversal or abolition of a historical pattern of use over 100 years old.

Plaintiffs point to various informal agency memoranda and policy statements in their memorandum (PP. 37-38) indicating that the BLM would normally include a “no grazing” alternative in EISs. However, these promises are not enacted as agency regulations and the Bureau is legally free to change its mind, depending on how the political “wind blows” in Nevada and in the nation as a whole. See Dahl v. Clark, 600 F.Supp. 585 at 590 (D.Nev.1984).

In sum, “no grazing” is not the same as the “no action” alternative suggested by the CEQ regulations, nor is it such a manifestly “reasonable” alternative that the court can require its inclusion in the EIS as a matter of NEPA law. Although the BLM certainly could have included and studied it as an option, as it had earlier said it would, the failure to do so is not grounds for intervention by this court.

4. Failure to Include Estimates of Carrying Capacity in EIS

Here again plaintiffs attack a lack of specificity in the EIS, this time concerning the absence of site-specific estimates of grazing capacity. Plaintiffs first observe that grazing permits are required to specify “the kind and number of livestock, the period(s) of use, the allotment(s) to be used, and the amount of use, in animal' unit months, that can be made. ...” 43 C.F.R. § 4120.2-l(a) (1982). The same regulation provides that authorized use may not exceed the livestock grazing capacity, given the objectives established for the allotment. Id. The same requirements are presently codified at 43 C.F.R. § 4130.6-l(a) (1984). Plaintiffs next observe that limiting the number of animals allowed to graze is one of the essential techniques of range management. They further reason that because NEPA and CEQ regulations require the EIS to contain all information necessary for informed decision-making and public participation, the EIS must contain the same detailed information as the BLM is required to put in its grazing permits. This conclusion does not follow.

The “proposed action” (as well as the “no action” and “maximization of livestock”) alternatives each propose to continue previous levels of authorized livestock use. (DEIS at V.; A.R. VII: 770). Although the gross figure is not broken down by allotments, it is necessarily true that the figure (43,973 AUMs) represents the BLM’s estimated grazing capacity for the entire Reno area. This is true because it represents the total of all of the allotments’ authorized livestock use, none of which may individually exceed capacity under current regulations. Because existing regulations assure that authorized grazing will not exceed carrying capacity, none of the alternatives analyzed will result in the “vegetative destruction and overall resource deterioration” that plaintiffs fear. Although the BLM will have to use site-specific data in adjusting livestock levels through the CRMP process under the MFP, it does not necessarily follow that such data must be analyzed in the EIS, in precisely the same detail. Again, the specificity of the EIS is governed by the proposed action; the EIS is not an administrative blueprint designed to allow the public to second-guess every possible future decision that the agency may have to make.

5. EIS Does Not Adequately Describe the Proposed Action

[13] This argument really seems to be an elaboration of previous contentions, complaining about the lack of specificity in the EIS. The plaintiffs contend that the EIS must “accurately describe the ‘federal action’ being taken.” California v. Block, 690 F.2d at 761. Plaintiffs seem to feel that the EIS does not fully explain why the proposed action (at that stage, the MFP II) reached the compromises and tradeoffs that it did. (See plaintiffs’ memo at p. 45).

It is true that the DEIS does not explicitly detail the BLM’s underlying reasoning, or forthrightly explain at any one place why the proposed action is felt to be superi- or to the other alternatives. This is perhaps confusing to the casual reader, who might observe that the proposed action is possibly more expensive than the “resource protection” alternative (DEIS p. xiii; A.R. VII: 778), results in less livestock grazing in the long run (DEIS p. v; A.R. VII: 770), and less overall improvement in ecological condition. (DEIS p. 3-25; A.R. 863). Nevertheless, after a thorough and painstaking review of the EIS the reader understands that there are so many different tradeoffs and permutations of tradeoffs involved that no single explanation could fully justify every aspect of the MFP. The reader is left only with the impression that the BLM took its best cut at addressing the areas that it felt were in the most immediate need. It is also clear that subjective factors came into play, including the BLM’s obvious desire to maintain for ranchers, what it describes (romantically perhaps) as a “preferred lifestyle.” (DEIS p. 3-23, 2-22; A.R. VI: 829, 861.) I believe that the DEIS adequately conveys to anyone who reads it in depth the reasons for (and the tradeoffs behind) the proposed action.I. ****

I. The MFP Allows Continued Resource Deterioration, Contrary to Statute

[14] In this section of the case, plaintiffs argue that the' BLM has violated a number of statutory and regulatory provisions in its management of the Reno area. They argue that substantive mandates require the BLM to curb overgrazing, and to take affirmative actions to remedy past degradation of public rangelands. They conclude that because the BLM has not taken strong enough action in these matters that this court should intervene, overturning the MFP and directing the agency to take steps more in line with plaintiffs’ interpretations of the law.

Although plaintiffs’ brief glosses over this point, it is important to remember that the procedural vehicle being used to challenge the MFP and the BLM’s practices generally is the Administrative Procedures Act, 5 U.S.C. § 706. (Nee Complaint ¶ 43). In reviewing an agency decision, such as the MFP, the Ninth Circuit applies the standard set forth in § 706(2)(A): whether the administrative action was “arbitrary, capricious, an abuse of discretion or otherwise not in accordance with the law.” Garrett v. Lehman, 751 F.2d 997, 999 n. 1 (9th Cir.1985). Courts are obliged to give deference to the interpretation of a statute by the agency charged with administering it. Chevron, U.S.A. v. Natural Resources Defense Council, 467 U.S. 837, 104 S.Ct. 2778, 2782, 81 L.Ed.2d 694 (1984). Nevertheless, courts are the final authorities on issues of statutory construction. “We must reject administrative constructions that are inconsistent with the statutory mandate or that frustrate the policy that Congress sought to implement.” Southern California Edison Co. v. Federal Energy Regulatory Commission, 770 F.2d 779, 782 (9th Cir.1985).

Of particular relevance to the standard of review in this case is Perkins v. Bergland, 608 F.2d 803 (9th Cir.1979). In that ease, two grazing permittees challenged the Forest Service’s decision regarding the appropriate grazing levels on their allotments. Judge Goodwin’s opinion rejected the contention that the general policies and objectives contained in the statute (the Multiple-Use Sustained-Yield Act of 1960, 16 U.S.C. §§ 528 et seq.) supplied useful standards for a court to apply on judicial review under the Administrative Procedure Act. The court concluded that “only very narrow review is appropriate” for such decisions, namely whether the methodology used by the agency was “irrational.” Elaborating further, the court said that to carry this burden the “contesting party must show that there is virtually no evidence in the record to support the agency’s methodology in gathering and evaluating the data.” Perkins v. Bergland, 608 F.2d at 806, 807.

Attempting to keep these principles of review in mind, we may now approach the plaintiffs’ challenges to the MFP and the decisions surrounding it.

A. BLM Has Failed to Curtail Overgrazing

Plaintiffs first correctly point to the legislative histories of the Taylor Grazing Act, FLPMA, and PRIA, to demonstrate Congress’ general concern about overgrazing by livestock, and to indicate that reductions in livestock levels were one of the methods mentioned by Congress to prevent further deterioration of rangelands. Plaintiffs then cite portions of the record, including the DEIS, which indicate that there has been overuse of some portions of the Reno area by livestock. {See plaintiffs’ memo in support of summary judgment at pp. 48-51). The conclusion plaintiffs say should then follow is that BLM has violated the law, and that the relatively modest improvements predicted from the MFP are insufficient to comply with the statutory mandates.

The facts established by the enormous record in this case do show that there has been overgrazing in the Reno area, but that in only four allotments could it be conclusively determined that the overgrazing was due to livestock use. (Supplemental Affidavit of Edward Spang 11 5). On eight allotments the overuse could have resulted from a combination of livestock, deer, and wild horses; on the three remaining allotments there was no livestock grazing whatsoever. Thus, overgrazing due to livestock was not endemic to the entire Reno area.

A second important point to note in this context is that even where overgrazing is found to exist, the remedy is not necessarily the immediate removal of livestock. I give due weight to the proposition put forth by defendants’ experts that other methods, such as vegetation manipulation and seeding, fencing, water development, or other range improvements or grazing systems may serve to address problems of selective overgrazing without a mandatory reduction in livestock use. {See Heady and Spang affidavits passim.) While reductions in AUMS for livestock may be one accepted method of addressing range deterioration, as recognized by Congress {see 43 U.S.C. § 1903(b)), it is not the only method.

A third important point here concerns the quality of data available to the BLM for making livestock management decisions. Although this issue will be discussed in more detail below, the BLM reached the decision that in order to defend its actions against attack from ranching interests it would need a solid data base upon which to ground livestock reduction orders. The wisdom of this decision is supported in part by such cases as Dahl v. Clark, 600 F.Supp. 585 (D.Nev.1984) and Perkins v. Bergland, 608 F.2d 803, 807 (9th Cir.1979). As explained by defendants’ experts, in order for the BLM to be certain of the proper livestock carrying capacity of a given allotment the agency must have: 1) actual use data (what kinds of animals grazed where and for how long), 2) how much vegetation has been consumed (utilization data), and 3) the overall effect of the specified grazing (trend). {See Spang Affidavit p. 11). The BLM said it lacked the first type of data for much of the Reno area and felt (at least after 1981) that in its absence it should refrain from immediate changes in livestock numbers, and concentrate its efforts on other techniques of range management.

Plaintiffs claim that the BLM is allowing overgrazing to continue. In reality, however, their complaint is with the methods selected by the BLM to allocate the resources within its control. Rather than immediate reductions in livestock numbers, the BLM chose to install range improvements and grazing systems on the areas (“I” allotments) that the BLM says are in need of the greatest attention. Moreover, the MFP does call for a significant reduction in livestock numbers, although this is to take place over a longer period of time than plaintiffs insist on. (DEIS at p. v; A.R. VII: 770). Finally, the MFP is predicted to bring about an overall improvement in the rated quality of many of the allotments. (DEIS at ix; A.R. VII: 774). In sum, it is not entirely certain that the BLM has allowed continued overgrazing or deterioration of resources, in violation of statutory mandates.

B. PRIA Claims: Rangeland Improvement

The converse argument is also put forward by plaintiffs in this section of their case, namely that the BLM is violating the affirmative mandates of PRIA by failing to assure the improvement of the public rangelands. As noted immediately above, however, the MFP does result in limited improvements in overall ecological and forage conditions in the Reno area. Plaintiffs characterize the BLM’s management as “do nothing”, but in reality it appears that the real argument is that the BLM does not do what plaintiffs want, namely redress range conditions through immediate reduction or elimination of livestock grazing.

It must be noted that it is yet too early for a court to evaluate a claim that the BLM has not complied with its own plan, or that it has not taken the steps promised in the MFP. The plan refers to various range improvements that are expected to remedy selective overgrazing, but does not provide a timetable for their installation. If it did appear after five or more years’ time under the MFP that BLM was not taking even the limited steps promised thereunder, then a request for relief (injunctive or perhaps even mandamus) would seem likely to meet little, if any, judicial reluctance to order performance of the planned improvements and livestock reductions. However, I do not understand plaintiffs to be making such arguments, which would be premature at this time.

Plaintiffs argue that FLPMA and PRIA provide “standards” against which the court can determine whether the MFP is “arbitrary, capricious or contrary to law.” The declarations of policy and goals in 43 U.S.C. §§ 1701(a), 1732, 1901, 1903 and ancillary provisions contain only broad expressions of concern and desire for improvement. They are general clauses and phrases which “can hardly be considered concrete limits upon agency discretion. Rather, it is language which ‘breathes discretion at every pore.’ ” Perkins v. Bergland, 608 F.2d at 806, quoting Strickland v. Morton, 519 F.2d 467, 469 (9th Cir. 1975). Although I might privately agree with plaintiffs that a more aggressive approach to range improvement would be environmentally preferable, or might even be closer to what Congress had in mind, the Ninth Circuit has made it plain that “the courts are not at liberty to break the tie choosing one theory of range management as superior to another.” Perkins v. Bergland, 608 F.2d at 807. The modest plans adopted by the BLM for dealing with range conditions in the Reno area are not “irrational” and thus cannot be disturbed by the court.

III. The MFP’s Failure to Allocate Forage Violates FLPMA and PRIA

The real question posed in this section of the case is what are BLM land use plans supposed to look like? That is, what kind of detail must the MFP contain to qualify as a legitimate land use plan re-quired by Congress? FLPMA and PRIA refer to the importance of land use planning in several places. See 43 U.S.C. §§ 1701(a)(2), 1712, 1732(a), 1901(b). But nowhere in the statutes did Congress describe in detail what sort of information must be included in a land use plan.

Some light on the Congressional intent emanates from the legislative history of FLPMA. In describing Section 202 of the Act (43 U.S.C. § 1712) the House Report notes:

The term “land use planning” is not defined in bill because it is a term now in general usage and permits a large variety of techniques and procedures and various alternatives. The Committee is well acquainted with the land use planning systems of the Bureau of Land Management and the Forest Service and has found them to be consistent with the objectives, of H.R. 13777. Both systems treat land use planning as dynamic and subject to change with changing conditions and values.

H.R. 94-1163 p. 5, 94th Cong.2d Sess. (1976), reprinted in 1976 U.S.Code Cong. & Ad.News pp. 6175, 6179. The BLM regulations in effect at that time called for District Managers to determine the “grazing capacity” of each unit or area, and to determine the proper seasons of use for allotments. 43 C.F.R. § 4111.3-l(a) (1976). The regulations also prohibited grazing in excess of capacity, as they do today. See 43 C.F.R. § 4115.2-l(e)(3) (1976). However, no regulations at that time governed long term planning of the type contemplated by FLPMA. It is therefore a reasonable assumption that Congress intended the BLM to continue its practice of setting grazing capacity at the permit-decision stage, and that land use planning (as required by 43 U.S.C. § 1712) deal with broader issues. These broader issues might include long-term resource conflicts, long-term range trends, planning of range improvements, and concentrating the BLM’s limited resources on certain key areas.

This is the type of planning adopted by the BLM in this case. Clearly, the agency will continue to set grazing capacity on an on-going basis when it issues or renews grazing permits or licenses. A land use plan need not encompass every localized decision that must be made in the foreseeable future. Indeed, the legislative history indicates that Congress recognized “land use planning as dynamic and subject to change with changing conditions and values.” H.R. 94-1163 p. 5, 1976 U.S.Code Cong. & Ad.News p. 6179, supra.

The present BLM regulations cited by plaintiffs do not compel a contrary interpretation. That plans are “designed to guide and control future management decisions,” 43 C.F.R. § 1601.0-4 (1984) does not mean that the plan itself must contain the future decisions. Similarly, that a plan should contain “allowable resource uses ... and related levels of production or use to be maintained,” “resource condition goals and objectives,” “program constraints and general management practices” and so on, 43 C.F.R. § 1601.0-5(k) (1984), does not necessarily mean that the plan itself must allocate forage on each individual allotment for each year of the planning period. The MFP does set overall limits on grazing. BLM district managers know that overall use by livestock and by other consumers must not exceed the limits set in the Proposed Action alternative in the DEIS, (DEIS, p. 8; A.R. VI: 634). They know that after the first five years they must begin reducing livestock AUMs to meet the 30,618 level they have set as a long term goal, and that total consumption must not exceed 59,344 AUMs for all species. If they fail to take these long term limits into account in issuing grazing permits after the first five years of the plan then they may be liable to an enforcement action by plaintiffs, or others with a similarly deep concern for the environment.

The MFP also contains detail regarding miles of fencing, water troughs, wells, gabions, pipelines, cattleguards, etc. (See DEIS at vii; A.R. VII: 772). The proposed action also requires implementation of Allotment Management Plans on the “I” category allotments. These sorts of broad, objective-oriented statements seem to be the proper material for land use planning. They are concrete enough to permit the public (including plaintiffs) and Congress to know what the BLM intends to do with its grazing lands, what improvements are needed, and a very rough timetable for their implementation. FLPMA and PRIA demand no more. The type of “planning” envisioned by plaintiffs, wherein the plan would effectively contain allotment management plans for each unit in the Reno area, allocating forage to each consumer species for each of the next ten years or more, is not a plan. It is an administrative straight-jacket which eliminates the room for any flexibility to meet changing conditions. In the absence of more directive legislation, or mandate from my appellate superiors, I will not command such a requirement. It is not up to me to legislate any more than it is up to me to administer.

IV. Failure to Utilize Available Resource Data

In this section of the case plaintiffs challenge the BLM’s decision to eschew the use of available inventory and monitoring data for purposes of setting grazing levels on the various allotments in the Reno area. This argument is based on the APA, and seeks to reverse the BLM’s policy decision in this area as being arbitrary, capricious, and contrary to law. 5 U.S.C. § 706(2)(A).

To begin with, much of the importance of this argument is rendered moot by the above discussion. Although the BLM is required to determine grazing capacity at the time it issues grazing permits and prepares Allotment Management Plans, this opinion has found that such determinations are not essential to a valid land use plan (MFP). It similarly follows that if such specifications are not essential to a valid area wide land use plan (MFP), they do not need to be included in an EIS that evaluates the plan and compares it to other alternatives. Nevertheless, a brief discussion will demonstrate why this contention lacks merit on its own.

Defendant’s memorandum in support of summary judgment (pp. 30-37) and the affidavits of defendants’ experts submitted in support of the motion, are persuasive in refuting the notion that there is such a thing as an a priori “carrying capacity” or grazing capacity for any one piece of land. Consider a hypothetical allotment which could support 100 head of cattle in one year, and not show signs of downward trend. However, in the following year, depending on only one variable such as climate the same allotment could perhaps support only 80 head. Cf. Hinsdale Livestock Co. v. United States, 501 F.Supp. 773, 777 (D.Mont.1980). Conversely, with the addition of certain range improvements that would improve dispersal of the livestock on the allotment, the same parcel could in the following year perhaps support 120 head without signs of deterioration. Each of these permutations could be further affected by other variables such as usage by wild horses, or mule deer, precipitation or temperature patterns, seeding, encroachment of inferior types of forage, changes in seasons of use, and so on. See Burkhardt Affidavit at pp. 3-4, 6-7; Supplemental Burkhardt Affidavit at pp. 2-4. Unrealistic, then, is plaintiffs’ theory that there is a fixed and immutable level of acceptable livestock use that can be administratively determined for years into the future.

It is true that around the time the MFP was being formulated the BLM had accumulated a substantial body of inventory and trend data regarding the condition of the Reno planning area. One major source of this data was the Soil Vegetation Inventory Method (SVIM) of determining range condition. As described in the first Spang Affidavit (and at other places in the record), SVIM essentially involved sampling a number of small plots of ground (about 9 square feet), so as to learn the number of plant species and thus the vegetation condition and carrying capacity of the entire allotment through the use of a sophisticated computer program. As indicated in the DEIS at p. 5-23 (A.R. VII: 893) the SVIM data was not ultimately used by the BLM because it yielded inconsistent results. The meaning of these inconsistencies was explained by the BLM’s experts, as being due in part to an insufficient number of samples, errors in identifying plant species, and assumptions built into the model. See Spang Affidavit at pp. 4-9. Essentially, the SVIM results were not accurate, when compared with what BLM staff knew to be the case on various allotments.

Although the BLM had trend data for most of the area, such data alone is not useful for setting livestock grazing levels because a declining trend can be due to a wide number of factors, only one of which is overuse by livestock. Further, although the BLM had some utilization data (showing how much forage was consumed in a given plot), it was not able to conclusively determine actual use by livestock. The actual use by real numbers of cattle is not always the same as the authorized use contained in permits. See Spang Affidavit p. 11.

Because of these and other difficulties, the BLM decided to revamp its methodology of setting grazing levels, based primarily on continued monitoring over longer periods of time, and not based on one-point-in-time studies such as SVIM. A new monitoring system for Nevada was developed by a joint task force and was adopted in 1981. (A.R. IX: 58). It is a coincidence that this change in methodology took place around the time that Mr. Watt became Secretary of the Interior, and the ultimate result of the decision was the continuation of existing grazing levels in the Reno area. But there is no direct evidence in this record that the change in methodology was primarily prompted by a political decision to postpone any adjustments in allocation that would adversely affect ranching interests.

In this connection, plaintiffs rely heavily on Dahl v. Clark, 600 F.Supp. 585 (D.Nev. 1984). In that case plaintiffs were holders of grazing permits who sought a writ of mandamus to compel the BLM to reduce the number of wild horses being allowed to graze on their allotments. The BLM defended on the ground that the data which had been accumulated for at least the last 10 years preceding 1981 (and the conclusions drawn from that data) were unreliable and could not be used to accurately determine range conditions. That case was tried to the court in a lengthy proceeding held in Elko, at which numerous range experts and witnesses were examined concerning the allegations of range deterioration. Evidence was also presented regarding a decision by then Secretary of the Interior James Watt, directing the BLM to change its methodology of evaluating range conditions, and to keep livestock and wild horse levels at the 1981 level while new studies were being carried out. Id., 600 F.Supp. at 589, 590.

After hearing all the testimony in that case and weighing the credibility of the evidence, my brother Judge Reed found, as to those particular allotments, that the decision to ignore the findings of all prior studies was arbitrary and not in compliance with the Wild Horse Act, 16 U.S.C. § 1333(b), and BLM regulations. Id., 600 F.Supp. at 592-93. Despite that conclusion, however, he denied the relief sought on the merits. The reason for this was that the court was unable to extract from the statutes or regulations any clear standard or numbers by which to measure the appropriate reductions in wild horse use. Id., 600 F.2d at 595-96.

I have reached a similar conclusion in this case, although my route has been different. If it were possible to glean more precise standards from the statutes or regulations, against which these policy decisions could be measured, then I might be more able to discern a pattern of illegal or arbitrary conduct, and to fashion appropriate relief. That is not the case before me. The Ninth Circuit has cautioned that a “trial court must refrain from entering that fray if it turns out that the [plaintiffs’] position would require a choice between experts.” Perkins v. Bergland, 608 F.2d at 807. The administrative record in this case does at least contain plausible support for defendants’ position that existing monitoring data for the Reno area was not reliable for purposes of setting fixed grazing levels. While the BLM probably could have made defensible livestock adjustments where their data showed overutilization, poor range condition, and downward trend, this court cannot say it was “irrational” for them to refrain from doing so without the sort of monitoring data they desired. At this point, judicial inquiry is at an end. Id.

Defendants’ response to plaintiffs’ motion for summary judgment also contains other arguments to distinguish the holding in Dahl from this case. {See defendants’ memorandum at pp. 18-20.) The only additional point that deserves mention here is the fact that Dahl involved a full scale trial, in which the court was able to make useful credibility judgments about the opinions of purported experts and the weight of the evidence generally. No such trial was sought by either side in this case, at least by the time the instant motions were ready for submission. In this procedural posture I am frankly unable to attempt the fine evaluation and weighing that would even bring me close to deciding that the BLM’s decision was irrational. Based on the record before me, there seems to be a “rational” explanation for the Secretary’s decision regarding monitoring data. Whether it was the best decision, or the only logical decision, is a matter for academic and political debate. It is not a “fray” that I may enter, absent direction from the Court of Appeals.

CONCLUSION

This was an extremely difficult and technical case, and both sides are to be commended for the high quality of lawyerly effort expended in attempting to guide the court through a largely uncharted legal minefield. The complexity also explains, in large part, the length of time taken to resolve these issues. For any undue delay in issuing this ruling I hereby express my keen regret.

After considerable thought and deliberation, I have come to the conclusion that the role plaintiffs would have me play in this controversy is an unworkable one. Plaintiffs are understandably upset at what they view to be a lopsided and ecologically insensitive pattern of management of public lands at the hands of the BLM, a subject explored at length by many commentators. Congress attempted to remedy this situation through FLPMA, PRIA and other acts, but it has done so with only the broadest sorts of discretionary language, which does not provide helpful standards by which a court can readily adjudicate agency compliance.

Boiled down and stripped of legalese this is a case in which plaintiffs ask me to become — and defendants urge me not to become — the rangemaster for about 700,-000 acres of federal lands in western Nevada. For some reason, over the past 15 years or so, I and many of my Article III colleagues have become or have been implored to become forestmasters (Miller v. Mallery, 410 F.Supp. 1283 (D.Or.1976)), roadmasters (Ventling v. Bergland, 479 F.Supp. 174 (D.S.D.1979)), schoolmasters (Anderson v. Central Point School District, 554 F.Supp. 600 (D.Or.1982)), fish-masters (Washington Trotters Association v. Kreps, 466 F.Supp. 309 (W.D.Wash. 1979)), prisonmasters, (Capps v. Atiyeh, 495 F.Supp. 802 (D.Or.1980), 559 F.Supp. 894 (D.Or.1982), watermasters (Sierra Club v. Andrus, 610 F.2d 581 (9th Cir. 1979)), and the like. This trend has not escaped the notice and criticism of academic commentators.

That criticism has been based upon observations which include lack of training and expertise, lack of time, lack of staff assistance, and similar conditions. At bottom, however, the primary reason for the large scale intrusion of the judiciary into the governance of our society has been an inability or unwillingness of the first two branches of our governments — both state and federal — to fashion solutions for significant societal, environmental, and economic problems in America. Frankly, I see little likelihood that the legislative and executive branches will take the statutory (and occasional constitutional) steps which would at least slow, if not reverse, this trend. Fortunately, for reasons set out in this opinion which (to me) are legally correct, I am able to resist the invitation to become western Nevada’s rangemaster.

Plaintiffs’ motion for summary judgment is denied in its entirety, and defendants’ motion for summary judgment is granted. The action will be dismissed. The clerk will enter judgment accordingly. No costs to either side.

IT IS SO ORDERED.

      . An excellent capsule history of the BLM’s management (or mismanagement) of grazing on public lands is contained in the opinion of Judge Ramirez in Natural Resources Defense Council, Inc. v. Hodel, 618 F.Supp. 848, 855-86 (E.D.Cal.1985). For more comprehensive academic treatment see The Law of Public Rangeland Management II: The Commons and the Taylor Act, 13 Envtl.L. 1 (1982).

      . References to the Administrative Record will be by the Volume number followed by page number in the overall record, thus A.R. V: 494 would be Volume 5, page 494. When appropriate, other page references within certain documents, such as the Draft Environmental Impact Statement (DEIS) will be added for the convenience of the reviewing court.

      . The planning process is outlined in 43 C.F.R. § 1601.5 (1982), presently recodified with revisions at 43 C.F.R. § 1610.4 (1984).

      . Judge Reed, at page 590, seems to have been faithful to Justice Frankfurter’s dictum in Watts v. State of Indiana (1949), 338 U.S. 49 at 52, 69 5. Ct. 1347 at 1349, 93 L.Ed. 1801 that we "should not be ignorant as judges of what we know as men [and women].”

      . Leaping to that sort of conclusion from premises such as these is an exercise in which I decline to take part unless and until I am told by the Court of Appeals or the Supreme Court that I must.

      . The "in depth" reading mentioned here may involve some reading "between the lines" of the DEIS. Why the agency would propose a course of action that can, with little effort, be seriously criticized as being more expensive, resulting in less long-run environmental improvement, and even less grazing in the long run can only be the source of speculation to the outsider. Certainly one obvious explanation is that the BLM performed an administrative policy pirouette under the baton of Secretary Watt around 1981, essentially deciding to postpone any grazing reductions indefinitely. See Dahl v. Clark, 600 F.Supp. 585, 589 (D.Nev.1984), discussed in more detail infra.

      . I do not mean to suggest from this language that because the agency is given discretion to determine a preferred approach to range management, it implies there is "no law to apply" within the meaning of Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 410, 91 S.Ct. 814, 820, 28 L.Ed.2d 136 (1971). Such a conclusion would mean that there is no judicial review at all. City of Santa Clara v. Andrus, 572 F.2d 660, 666 (9th Cir.1978). However, we know from FLPMA that judicial review is indeed available for this type of decision, albeit under a narrow standard. Perkins v. Bergland, 608 F.2d at 807. Further, I emphasize that given the result attached here, I have simply assumed that parties withstanding may seek judicial review under PRIA, Pub.L. 95-514, §§ 2(b) and 4(b), 43 U.S.C. §§ 1901(b) and 1903(b); 43 U.S.C. § 1701(a)(6).

      . This litigation has brought forth a confounding number of acronyms such as FLPMA, PRIA, SVIM, URA, AMP, and CRMP (pronounced either "cramp," "crimp,” or “crump") and MFP (which I assure the reader is unpronounceable.)

      . See, e.g. D. Horowitz, The Courts and Social Policy (1977); The Role of the Courts in American Society, Ch. 3, Council on the Role of the Courts (1984, West Pub. Co.)


author: CAFFREY, Chief Judge.

text:
    Hortensia de ALLENDE, et al., Plaintiffs, v. George P. SHULTZ, et al., Defendants.
    Civ. A. No. 83-3984-C.
    United States District Court, D. Massachusetts.
    Dec. 31, 1985.
    Rabinowitz, Boudin, Standard Krinsky & Lieberman, Leonard B. Boudin, New York City, Allan R. Rosenberg, Putnam, Bell & Russell, Boston, Mass., for plaintiffs.
    William P. Joyce, Asst. U.S. Atty., Boston, Mass., Robert L. Bombaugh, Thomas W. Hussey, David V. Bernal, Office of Immigration Litigation, Civ. Div., U.S. Dept, of Justice, Washington, D.C., for defendants.
   MEMORANDUM

CAFFREY, Chief Judge.

This is an action for declaratory and injunctive relief in which the plaintiffs challenge the defendants’ refusal to grant a temporary visa to Hortensia de Allende, wife of the slain Chilean President, Salvatore Allende. The case is now before the Court on the defendants’ motion to dismiss for mootness. For the reasons stated below, the defendants’ motion should be denied.

The following facts of record are taken as true for purposes of this ruling. The plaintiffs are Hortensia de Allende, various professors at institutions of higher learning in the Boston area, The Boston Area Council on Latin America, a non-profit voluntary association concerned with civil liberties in Latin America and relations between the United States and Latin American countries, and the Northern California Ecumenical Council, a council of eighteen Protestant denominational bodies serving Northern California. The defendants are George P. Schultz, Secretary of State of the United States, William French Smith, Attorney General of the United States, and Alan C. Nelson, Commissioner of the Immigration and Naturalization Service of the United States. Each of the defendants is being sued in his official capacity.

In January of 1983 plaintiff Northern California Ecumenical Council invited Mrs. Allende to visit San Francisco in March of 1983 to celebrate International Women’s Week. Following this invitation, Mrs. Allende received formal invitations to speak to and meet with other groups and institutions, including the Committee on Social Justice of the Roman Catholic Archdiocese of San Francisco and Stanford University. The subjects upon which Mrs. Allende intended to speak included human rights in Chile and the plight of women living in exile from Chile.

In February of 1983, after receiving these invitations, Mrs. Allende applied to the United States Embassy in Mexico City for an entry visa. On March 3, Mrs. Allende’s application for a visa was denied on the basis of § 212(a)(27) of the Immigration and-Nationality Act, 8 U.S.C. § 1182(a)(27). Section 212(a)(27) provides, in pertinent part:

(a) Except as otherwise, provided in this chapter, the following classes of aliens shall be ineligible to receive visas and shall be excluded from admission to the United States: ____
(27) Aliens who the consular officer or the Attorney General knows or has reason to believe seek to enter the United States ... to engage in activities which would be prejudicial to the public interest

In August of 1983 plaintiff John Womack, Jr., on behalf of plaintiff Boston Area Council on Latin America, whose official representatives included plaintiffs Womack, Kennedy, and Smith, invited Mrs. Allende to appear in Boston to discuss the current situation in Chile and the United States’ involvement in Latin American affairs. She accepted the invitation. The local plaintiffs planned to arrange a speaking engagement for Mrs. Allende in the Boston area which would be open to scholars and students of Latin America as well as the public. In addition, these plaintiffs contemplated a smaller group meeting between Mrs. Allende and interested scholars.

The plaintiffs seek a declaratory ruling that the defendants’ refusal to grant Mrs. Allende an entry visa in 1983 was not authorized by Section (a)(27) of the Act. In the alternative, the plaintiffs seek a declaration that if Section (a)(27) is construed to authorize the defendants’ refusal to grant Mrs. Allende an entry visa, then Section (a)(27) violates the free speech, associational, and religious guarantees of the First Amendment and infringes upon the liberties guaranteed by the due process clause of the First Amendment. In a memorandum and order, dated April 1, 1985, 605 F.Supp. 1220 (1985), this Court denied the defendants’ motion to dismiss or, in the alternative, for summary judgment and ruled that this Court does have subject matter jurisdiction to entertain this action, and that the plaintiffs have standing to bring it. In ruling that the plaintiffs have standing to bring this action, I relied upon the Supreme Court’s explicit recognition in Kleindienst v. Mandel, 408 U.S. 753, 92 S.Ct. 2576, 33 L.Ed.2d 683 (1972), that First Amendment rights are implicated in the Government’s refusal to grant a visa to an alien with whom American citizens wish to speak.

In the April 1985 decision, this Court also rejected the defendants’ contention that they had presented legally adequate reasons for the Government’s refusal to grant Mrs. Allende a visa. The defendants prof-erred two reasons for the denial of Mrs. Allende’s visa application pursuant to Section (a)(27): (1) that Mrs. Allende is a member of two organizations affiliated with the Communist Party of the Soviet Union, and (2) that the Government determined that her admission to the United States “for the purpose and during the period specified in the application would have been prejudicial to the conduct of the foreign affairs of the United States.” For reasons not relevant to this decision, I ruled that Mrs. Allende’s membership in organizations affiliated with the Communist Party of the Soviet Union was not a ground for exclusion of Mrs. Allende under Section (a)(27) and that the Government’s claim that Mrs. Allende was excluded because her activities would be prejudicial to the public interest was conelusory and, therefore, an inadequate reason for exclusion. Although this Court acknowledged its limited authority to review the Executive branch’s decision to exclude an alien pursuant to Section (a)(27), it ruled that the Government must provide some factual basis for its conclusion that the excluded alien’s activities would be prejudicial to the public interest.

On September 5,1985 Mrs. Allende again submitted an application for a nonimmigrant visa to the United States consular officers in Mexico City. She sought a “multiple entry” visa for the purpose of attending and giving lectures for an eighteen day period beginning December 2, 1985 and for further visits to the United States in 1986. The consular officers in Mexico City informed Mrs. Allende that a visa would be issued for her December trip only. The defendants now argue that because that single entry visa has been granted, this case is moot.

The test, broadly stated, whether a case presents an actual controversy within the meaning of the Declaratory Judgment Act is whether there is a “substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.” Preiser v. Newkirk, 422 U.S. 395, 402, 95 S.Ct. 2330, 2334, 45 L.Ed.2d 272 (1975), citing Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273, 61 S.Ct. 510, 512, 85 L.Ed. 826 (1941). The defendants do not dispute that an actual controversy existed prior to the Government’s granting of a single entry visa to Mrs. Allende for December 1985. The defendants’ position is that because the Government granted the December 1985 visa, this case is moot.

In County of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 1383, 59 L.Ed.2d 642 (1979) the Supreme Court said that a court’s

jurisdiction, properly acquired, may abate if the case becomes moot because
(1) it can be said with assurance that ‘there is no reasonable expectation ... ’ that the alleged violation will recur, [citation omitted], and
(2) interim relief or events have completely and irrevocably eradicated the effects of the alleged violation, [citations omitted].
When both conditions are satisfied it may be said that the case is moot because neither party has a legally cognizable interest in the final determination of the underlying questions of fact and law.

The Supreme Court in Davis also emphasized that “[t]he burden of demonstrating mootness ‘is a heavy one’ [citation omitted].” Id. .

The nature of the plaintiffs’ action and the relief sought are important to the mootness issue. The plaintiffs, contrary to the defendants’ contentions, are not merely seeking an order compelling the defendants to grant Mrs. Allende the visa that was denied her on March 3, 1983; rather, they are seeking a declaration that the defendants’ policy of applying Section (a)(27) to any past or future visa applications by Mrs. Allende in the manner which they applied Section (a)(27) to her 1983 application is unlawful. Therefore, it is the defendants’ policy of applying Section (a)(27) to Mrs. Allende that plaintiffs contend is illegal, not just the defendants’ isolated denial of Mrs. Allende’s 1983 visa application. The plaintiffs’ position is that the defendants cannot deny Mrs. Allende a visa while giving as the only reason for the denial that Mrs. Allende’s activities would be, in the words of Section (a)(27), “prejudicial to the public interest.” The plaintiffs argue that the defendants’ real reason for denying Mrs. Allende a visa was that she continues to be critical of the Administration’s Latin American policies.

I rule that the defendants have failed to carry their heavy burden with respect to the first criteria of the Davis test; it cannot be said with assurance that there is no reasonable expectation that the Government will not apply Section (a)(27) to Mrs. Allende in the future in the same way that it did in 1983. The defendants have maintained throughout the course of this litigation that the Government’s application of Section (a)(27) to Mrs. Allende and its subsequent exclusion of her without providing a “facially legitimate and bona fide” reason, Kleindienst v. Mandel, 408 U.S. 753, 770, 92 S.Ct. 2576, 2585, 33 L.Ed.2d 683 (1972), was proper. If Mrs. Allende applies for another visa in the spring of 1986, which the record reveals to be her present intention, there is a reasonable expectation that the Government will again exclude her on the basis of Section (a)(27) without prof-erring a “legitimate and bona fide” reason.

Further support for the plaintiffs’ position that this case is not moot is found in a case involving strikingly similar facts decided by the Supreme Court in 1974, five years before the Davis decision. In Super Tire Engineering Co. v. McCorkle, 416 U.S. 115, 94 S.Ct. 1694, 40 L.Ed.2d 1 (1974), employers of workers on strike challenged the state policy which made strikers eligible for public assistance through state welfare programs. The action, which sought injunctive and declaratory relief, was initiated during a strike against the employers. Before the case was tried, the labor dispute was settled and the strike ended. Nonetheless, the Supreme Court held that the case was not moot. The Court recognized that the state policy of providing benefits to striking workers “by its continuing and brooding presence, casts what may well be a substantial adverse effect on the interests” of the employers. Super Tire Engineering Co., 416 U.S. at 122, 94 S.Ct. at 1698.

In Super Tire Engineering Co., it was the state policy to provide benefits adversely affecting the rights of the employers which prompted the Court to hold that the case was not moot. Here, it is the policy of the defendants to apply Section (a)(27) to Mrs. Allende which is challenged by the plaintiffs. That policy immediately and directly affects the plaintiffs’ rights and interests because its existence directly affects the plaintiffs’ ability to plan and ultimately engage in activities protected by the First Amendment.

Even if the Government’s grant of a limited visa to Mrs. Allende for December of 1985 has eliminated the existence of an actual controversy for that period, this case nonetheless presents an issue “capable of repetition, yet evading review.” Gomes v. Rhode Island Interscholastic League, 604 F.2d 733, 736 (1st Cir.1979). To show that a case presents the type of issue which is “capable of repetition, yet evading review,” it is “sufficient ... that the litigant show the existence of an immediate and definite governmental action or policy that has adversely affected and continues to affect a present interest.” Super Tire Engineering Co., 416 U.S. at 125-126, 94 S.Ct. at 1699-1700.

The Court has said that the “important ingredient” in eases containing issues “capable of repetition, yet evading review” is “governmental action directly affecting, and continuing to affect, the behavior of citizens in our society.” Super Tire Engineering Co., 416 U.S. at 126, 94 S.Ct. at 1700. The plaintiffs have alleged the existence of a “governmental action or policy” which they maintain unlawfully and adversely affected their First Amendment right to hear Mrs. Allende speak and to meet with her in 1983 and which presently affects their ability to schedule lectures and conferences for the near future.

In Weinstein v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 348, 46 L.Ed.2d 350 (1975) (per curiam), the Supreme Court said that in thé absence of a class action, the capable of repetition, yet evading review doctrine is limited to situations where two elements combine: “(1) the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there was a reasonable expectation that the same complaining party would be subjected to the same action again.” The second element is clearly satisfied in this case. The defendants have not retreated from their position that their exclusion of Mrs. Allende under Section (a)(27) in 1983 was lawful and that they are under no obligation to give, in support of the exclusion, more than a conclusory statement that Mrs. Allende’s activities would have been “prejudicial to the public interest.” It is reasonable, therefore, to expect that Mrs. Allende will be subjected to the same action again when next she applies for a visa.

I also rule that the first criteria of the Weinstein test is satisfied in this case. The defendants’ position is that this case is moot because Mrs. Allende has been granted a single entry visa. The defendants also maintain that absent a current visa application, the plaintiffs’ claims are not justiciable. If that is so, the defendants could continuously evade review of the plaintiffs’ claims by partially or wholly granting visas to Mrs. Allende whenever the plaintiffs bring an action. The defendants would in that way be able to frustrate the plaintiffs’ exercise of their First Amendment rights while evading the Court’s review. Such a result is the type of result that the “capable of repetition, yet evading review doctrine” was intended to prevent.

Order accordingly.

      . John Womack, Jr., the head of the Department of History at Harvard University; Duncan Kennedy, Professor of Law at Harvard Law School; Jack Spence, Professor of Political Science at the University of Massachusetts in Boston; Brian Smith, Professor of Political Science at the Massachusetts Institute of Technology. Each of these professors is a citizen of the United States, resident in, and a citizen of the State of Massachusetts.