Loading...
HomeMy WebLinkAboutSubmittal-Richard Alayon-Blue Lagoon Condo Assoc. Easement Issue Case LawSubmitted into the public record for item(s) P2.1 . on 12/13/2018 , City Clerk BLUE LAGOON CONDOMINIUM ASSOCIATION EASEMENT ISSUE —1861.2 2018 Blue Lagoon City Commission Hearing :ase Law - \ (\kos& N\0 ,n � U�) t �.a o co ss � o�, CJ► \ e (J, ,►i Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk BLUE LAGOON CONDOMINIUM ASSOCIATION EASEMENT ISSUE —1861.2 2018 Blue Lagoon City Commission Hearing Case Law 4b56-S4.m,���s\)\(\ki(41°A,-U\vt �.o,�ossocl Lok.stomAm.�S Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk Save Homosassa River Alliance, Inc. v. Citrus County, Fla., 2 So.3d 329 (2008) 33 Fla. L. Weekly D2490 KeyCite Yellow Flag - Negative Treatment Distinguished by Martin County Conservation Alliance v. Martin County, F1a.App. 1 Dist., June 21, 2010 2 So.3d 329 District Court of Appeal of Florida, Fifth District. SAVE the HOMOSASSA RIVER ALLIANCE, INC., et al., Appellant, v. CITRUS COUNTY, FLORIDA, et al., Appellee. No. 5D07-2545• Oct. 24, 2008. Rehearing Denied Feb. 19, 2009. Synopsis Background: Environmental group and area landowners brought action against county and property owner, challenging county's approval of property owner's application to build residential buildings on property adjacent to river, which was essential manatee habitat. The Circuit Court, Citrus County, Charles M. Harris, Senior Judge, dismissed action for lack of standing. Plaintiffs appealed. [Holding:] The District Court of Appeal, Griffin, J., held that plaintiffs had standing to bring action. Reversed and remanded. Pleus, J., filed dissenting opinion. West Headnotes (9) 111 Zoning and Planning Comprehensive or general plan A "local comprehensive land use plan" is a statutorily mandated legislative plan to control and direct the use and development of property within a county or municipality; the plan is WESTLAW 121 131 141 likened to a constitution for all future development within the governmental boundary. West's F.S.A. § 163.3167. Cases that cite this headnote Zoning and Planning Right of Review; Standing As a remedial statute, statute that enlarges class of persons with standing to challenge development order as inconsistent with local comprehensive land use plan is to be liberally construed to advance the intended remedy. West's F.S.A. § 163.3215. Cases that cite this headnote Zoning and Planning Right of Review; Standing The purpose of statute governing standing to appeal and challenge the consistency of a development order with a local comprehensive land use plan is to liberalize standing. West's F.S.A. § 163.3215. Cases that cite this headnote Zoning and Planning Right of Review; Standing A person's standing to bring a challenge under statute governing actions challenging a local government's development order as being inconsistent with local comprehensive land use plan depends on (1) whether the interests the person alleges are protected or furthered by the local government comprehensive plan, if so, (2) whether those interests exceed in degree the general interest in community good shared by all persons, and (3) whether the interests will Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk Save Homosassa River Alliance, Inc. v. Citrus County, Fla., 2 So.3d 329 (2008) 33 Fla. L. Weekly D2490 151 161 be adversely affected by the challenged decision. West's F.S.A. § 163.3215(2, 3). 2 Cases that cite this headnote Zoning and Planning 6-Right of Review; Standing Under statute governing standing regarding actions challenging a local government's development order as being inconsistent with local comprehensive land use plan, requirement that a person must allege an interest that exceeds "in degree the general interest in community good shared by all persons" simply means that a party must allege that they have an interest that is something more than a general interest in community well being. West's F.S.A. § 163.3215(2). Cases that cite this headnote Zoning and Planning 0-Permits, certificates, and approvals Environmental group and area landowners had standing to bring action challenging county's approval of property owner's application to build residential buildings on property adjacent to river as being inconsistent with local comprehensive land use plan; group sought to protect river from problems associated with improper and ineffective storm water management systems, overpopulation of lands adjacent to river, and destruction of wetlands surrounding river, and group and landowners all had direct and demonstrated concern for protection of interests furthered by comprehensive plan that would be adversely affected by allowing development that violated plan. West's F.S.A. § 163.3215(2, 3). Cases that cite this headnote 171 I8I 191 Zoning and Planning Right of Review; Standing The "greater -in -degree" part of the test for standing to bring action challenging a local government's development order as being inconsistent with local comprehensive land use plan self -evidently would be met if the plaintiff is an adjacent property owner. West's F.S.A. § 163.3215(2). 1 Cases that cite this headnote Zoning and Planning .-Right of Review; Standing Statutory test for standing to bring action challenging a local government's development order as being inconsistent with local comprehensive land use plan is directed to the quality of the interest of the person seeking standing; there is no requirement of a unique harm relative to the general population. West's F.S.A. § 163.3215(2, 3). Cases that cite this headnote Zoning and Planning �-Dismissal Dismissal of second amended complaint for lack of standing was required to be without prejudice rather than with prejudice in action challenging county's approval of property owner's application to build residential buildings on property adjacent to river as being inconsistent with local comprehensive land use plan; plaintiffs had not abused privilege to amend. West's F.S.A. § 163.3215(2, 3). Cases that cite this headnote Attorneys and Law Firms Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk Save Homosassa River Alliance, Inc. v. Citrus County, Fla., 2 So.3d 329 (2008) 33 Fla. L. Weekly D2490 Homosassa Redevelopment Area to provide for a 10 foot step back of the second story over the first story. j) Require all development in the Old Homosassa Redevelopment Area to further the character and vision provided for Old Homosassa and to be compatible with existing structures in the area. k) Prohibit the development or expansion of general commercial uses within Old Homosassa. The complaint then alleges that the proposed development is inconsistent with the Plan, because it: a) Allows for the expansion of R-2 residential dwelling units in the coastal high hazard area. b) Allows for the construction of three (3) story over parking residential structures in the coastal high hazard area. c) Allows for the construction of structures that are not compatible with the character and vision of Old Homosassa. d) Allows for the construction of four (4) residential structures which do not provide for a step back of stories. e) Allows for increases in residential dwellings in the coastal high hazard area. f) Allows for the expansion or development of new commercial uses within Old Homosassa. g) Allows for the development of residential uses upon lands designated as GNC within Old Homosassa. The trial court's order indicates that it dismissed Plaintiffs' Second Amended Complaint because it found that Plaintiffs had failed to sufficiently allege that their interests were adversely "affected by the project in a way not experienced by the general population." Additionally, the trial court's order adopted the "nexus" argument of Resort and the County, ruling that "there must be some nexus between the alleged evil of the challenged action and the adverse [e]ffect claimed." WESTLAW *336 Controlling Law 111 "A local comprehensive land use plan is a statutorily mandated legislative plan to control and direct the use and development of property within a county or municipality. The plan is likened to a constitution for all future development within the governmental boundary." Machado v. Musgrove, 519 So.2d 629, 631-32 (Fla. 3d DCA 1987) (citations omitted). See also § 163.3167, Fla. Stat. (2007). Once a comprehensive plan has been adopted pursuant to the Local Government Comprehensive Planning and Land Development Regulation Act, "all development undertaken by, and all actions taken in regard to development orders by, governmental agencies in regard to land covered by such plan" must be consistent with that plan. § 163.3194(1)(a), Fla. Stat. (2007); see also § 163.3164(7), Fla. Stat. (2007). 121 131 Prior to 1985, common law governed a third party's standing to intervene to challenge a development order as inconsistent with the governing comprehensive plan. See Parker v. Leon County, 627 So.2d 476, 479 (F1a.1993), Citizens Growth Mgmt. Coal., Inc. v. City of W. Palm Beach, 450 So.2d 204, 206-08 (F1a.1984). The common law rule provided that, in order to have standing to challenge a land use decision, a party had to possess a legally recognized right that would be adversely affected by the decision or suffer special damages different in kind from that suffered by the community as a whole. Putnam County Envtl. Council, Inc. v. Bd. of County Comm'rs, 757 So.2d 590, 592-93 (Fla. 5th DCA 2000); Citizens Growth Mgmt. Coal., Inc., 450 So.2d at 206. In 1985, the Florida Legislature reacted to the Supreme Court's 1984 decision in Citizens Growth Management that the common law rules of standing applied to the Growth Management Act by enacting section 163.3215, Florida Statutes.6 Its stated purpose was "to ensure the standing for any person who 'will suffer an adverse effect to an interest protected ... by the ... comprehensive plan.' " Parker, 627 So.2d at 479 (citing § 163.3215(2), Fla. Stat. (1985)); see also Edu. Dev. Ctr., Inc. v. Palm Beach County, 751 So.2d 621, 623 (Fla. 4th DCA 1999) (section 163.3215 is a remedial statute in that it "enlarged the class of persons with standing to challenge a development order as inconsistent with the comprehensive plan"). As a remedial statute, section 163.3215 is to "be liberally construed to advance the intended remedy...." Edu. Dev. Ctr., Inc., 751 So.2d at 623; see also Dunlap v. Orange County, 971 So.2d 171, 174 (Fla. 5th DCA 2007). There is no doubt that the purpose of the adoption of section 163.3215 was to liberalize standing in this context. See City of Ft. Myers v. Splitt, 988 So.2d 28 (Fla. 2d DCA 2008). 14i In part, section 163.3215(3), Florida Statutes (2007), Submitted into the public record for item(s) PZ.1 on 12/13/2018 , City Clerk Save Homosassa River Alliance, Inc. v. Citrus County, Fla., 2 So.3d 329 (2008) 33 Fla. L. Weekly D2490 provides: Any aggrieved or adversely affected party may maintain a de novo action for declaratory, injunctive, or other relief against any local government to challenge any decision of such local government granting or denying an application for, or to prevent such local government from taking any action on, a development order, as defined in s. 163.3164, which materially alters the use or density or intensity of use on a particular piece of property which is not consistent with the comprehensive plan adopted under this part. *337 Further, section 163.3215(2), Florida Statutes (2007), provides: As used in this section, the term "aggrieved or adversely affected party" means any persons'] or local government that will suffer an adverse effect to an interest protected or furthered by the local government comprehensive plan, including interests related to health and safety, police and fire protection service systems, densities or intensities of development, transportation facilities, health care facilities, equipment or services, and environmental or natural resources. The alleged adverse interest may be shared in common with other members of the community at large but must exceed in degree the general interest in community good shared by all persons. The term includes the owner, developer, or applicant for a development order. WESTLAW (Emphasis added). Thus, a person's standing to bring a challenge under section 163.3215(3) depends on (1) whether the interests the person alleges are "protected or furthered by the local government comprehensive plan"; if so, (2) whether those interests "exceed in degree the general interest in community good shared by all persons"; and (3) whether the interests will be adversely affected by the challenged decision. See § 163.3215(2), Fla. Stat. (2007); see also Fla. Rock Props. v. Keyser, 709 So.2d 175, 177 (Fla. 5th DCA 1998). 151 There is nothing obscure about the statutory language requiring a person seeking standing to allege an interest that "[exceeds] in degree the general interest in community good shared by all persons" to establish standing. It simply means that a party must allege that they have an interest that is something more than "a general interest in community well being." See Keyser, 709 So.2d at 1778; see also Stranahan House, Inc. v. City of Fort Lauderdale, 967 So.2d 427, 434 (Fla. 4th DCA 2007).9 The statute does not say that a party must be harmed to a greater degree than the general public. Not surprisingly, the case law assumes that an organization has an interest that is greater than "the general interest in community well being" when the organization's primary purpose includes protecting the particular interest that they allege will be adversely affected by the comprehensive plan violation. See Stranahan House, Inc., 967 So.2d at 434. The old common law test was so narrowly drawn that there often was no means of redress for a comprehensive plan violation. The expanded statutory test eliminates *338 "gadfly" litigation, yet gives oversight to the segment of the public that is most likely to be knowledgeable about the interest at stake and committed to its protection. The statute expressly identifies by multiple examples the kinds of interests the legislature intended to protect: As used in this section, the term "aggrieved or adversely affected party" means any person or local government that will suffer an adverse effect to an interest protected or furthered by the local government comprehensive plan, including interests related to health and safety, police and fire protection service systems, densities or intensities of development, transportation facilities, health care facilities, equipment or services, and environmental or natural resources. § 163.3215(2), Fla. Stat. (2007) (emphasis added). Application of the statutory test is illustrated by comparing two of the leading cases previously decided by this court. In Keyser, Timothy Keyser had filed a lawsuit Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk Save Homosassa River Alliance, Inc. v. Citrus County, Fla., 2 So.3d 329 (2008) 33 Fla. L. Weekly D2490 challenging the decision of the Putnam County Commission to rezone a 509 acre parcel of Florida Rock Properties' land from agricultural to mining. This Court held that Keyser's allegation that the Commission's decision "would adversely affect his quality of life by its negative impact upon wildlife populations and habitats in Putnam County" was insufficient to establish standing. 709 So.2d at 177. In explaining why the allegation was insufficient, this Court said, "Keyser never demonstrated any specific injury, only that the county would not be as bucolic as it once was. Keyser is a citizen with an interest in the environment and nothing more." Id. In Putnam County Environmental Council, Inc., a company owned a piece of land adjacent to the Etoniah Creek State Forest, which was zoned for agricultural use. The company and the local school board "applied for a special exception to the county's comprehensive plan to allow the construction of a regional middle school complex on" the company's property. 757 So.2d at 591. The application was approved, and the Putnam County Environmental Council ["PCEC"] subsequently filed a complaint, seeking to enforce Putnam County's comprehensive plan pursuant to chapter 163. The trial court concluded that PCEC lacked standing to challenge the order under section 163.3215 and dismissed the action on that basis. It its complaint, PCEC alleged that its "primary organizational purposes and activities include the study and protection of natural resources and the advocacy of sound land use and growth management policies affecting the environment"; that its officers and members had "initiated and facilitated the original public acquisition of the Etoniah Creek State Forest"; and that "[a] substantial number of [its] members, along with non-members who participate in PCEC-sponsored activities, use the Etoniah Creek State Forest for recreational and educational purposes." Putnam County Envtl. Council, Inc., 757 So.2d at 592. Additionally, PCEC alleged: The use allowed under the special exception will adversely affect PCEC's use and its members' use of the adjacent Etoniah Creek State Forest as natural resource area. The use of the subject parcel for a school will adversely impact the ability of the Division of Forestry to use controlled burns to manage the adjacent state forest. Without controlled burns, habitat for a variety of species in the Etoniah Creek State Forest will be reduced or eliminated, thus adversely affecting the ability of PCEC, its members, and others who participate in *339 PCEC-sponsored activities to observe or study those species. Also, without controlled burns, much of the forest will become overgrown with understory species, thus adversely affecting the ability of PCEC, its members, and others who participate in PCEC-sponsored activities to access and hike portions of Etoniah Creek State Forest. Furthermore, the physical presence of a school plant as well as the increased traffic and the activity, lights, and noise associated with a school facility, athletic fields, parking lots, and school bands are incompatible with Etoniah Creek State Forest's nature -based recreation and will discourage and interfere with the ability of wide-ranging species such as the black bear to reach or remain in the state forest. This will adversely affect the ability of PCEC, its members, and others who participate in PCEC-sponsored activities to observe or study those species.... Id. j6i In holding that PCEC had made sufficient allegations to establish standing, this Court said: WESTLAW [H]ere PCEC's complaint alleged specific injuries that PCEC would suffer if a middle school complex was constructed on Roberts' property, including the destruction of the habitat of species being studied by PCEC members and the elimination of PCEC members' access to the forest and the forest's creatures by the overgrowth of the forest. The diminution of species being studied by the group is a harm particular to PCEC, making PCEC more than just a group with amorphous "environmental concerns." Accordingly, the Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk Save Homosassa River Alliance, Inc. v. Citrus County, Fla., 2 So.3d 329 (2008) 33 Fla. L. Weekly D2490 allegations set forth in PCEC's complaint are sufficient to demonstrate the requisite level of interest. PCEC's involvement in the original acquisition of the land for use as a state forest and its continued, active connection with that state forest further demonstrate an interest greater than that which all persons share in the community good. Id. at 593-94. 171 On appeal, Plaintiffs begin with the premise that the trial court's dismissal order was based on the trial court's view that in order to have standing to mount a section 163.3215 challenge, the plaintiff must own real property adjacent to or very near the parcel at issue. It is true that there is much in the appealed order to suggest that was the court's view. We do not believe the court's analysis to be quite so narrow, however. It does appear that the trial court had difficulty envisioning how the "greater -in -degree" part of the statutory test for standing could be met if the plaintiff did not own adjacent real property. The "greater -in -degree" part of the test self -evidently would be met if the plaintiff is an adjacent property owner. Everyone else has to figure out how to surmount the tag -line test in Keyser,10 i.e., how to be "something more" than just a "citizen with an interest in the environment." The County contends that Plaintiffs' complaint lacks "facts sufficient to establish that the impact upon their educational efforts, enjoyment of the outdoors and use of government services is to a greater degree than others with the community," and that Plaintiffs have failed to establish precisely how the alleged comprehensive plan violations, which relate to increased height and density, would impact their interests *340 (i.e. their educational efforts, enjoyment of the outdoors and use of government services) to any greater degree than the Old Homosassa community as a whole. In its separate Answer Brief, Resort similarly asserts that Plaintiffs failed to specifically identify an "adverse interest or impact that" they "could expect to occur due to [its] proposed hotel expansion" and failed to show that their "interests are adversely affected in a way not experienced by the general population." 181 Plaintiffs contend that the trial court's dismissal should be reversed because they have alleged concrete and specific adverse interests that exceed in degree the general interest in community good shared by all. Plaintiffs maintain that it is not necessary for them to show that they will suffer a unique harm and reject the appellees' position as being outside the express language WESTLAW and intent of the statute. We agree with Plaintiffs that the statutory test is directed to the quality of the interest of the person seeking standing; there is no requirement of a unique harm relative to the general population. The allegations of the Second Amended Complaint amply demonstrate that each of the plaintiffs has an interest that is greater than "a general interest in community good shared by all persons." The allegations show that the Plaintiffs all have a direct and demonstrated concern for the protection of the interests furthered by the comprehensive plan that would be adversely affected by allowing a development that violates the plan. An interpretation of the statute that requires harm different in degree from other citizens would eviscerate the statute and ignore its remedial purpose. It drags the statute back to the common law test. The statute is designed to remedy the governmental entity's failure to comply with the established comprehensive plan, and, to that end, it creates a category of persons able to prosecute the claim. The statute is not designed to redress damage to particular plaintiffs. To engraft such a "unique harm" limitation onto the statute would make it impossible in most cases to establish standing and would leave counties free to ignore the plan because each violation of the plan in isolation usually does not uniquely harm the individual plaintiff. Rather, the statute simply requires a citizen/plaintiff to have a particularized interest of the kind contemplated by the statute, not a legally protectable right. 191 In sum, we conclude that the Second Amended Complaint adequately alleges Plaintiffs' standing to challenge the County's alleged failure to comply with its comprehensive plan in approving Resort's project." We accordingly reverse and remand for further proceedings. REVERSED and REMANDED. SAWAYA, J., concurs. PLEUS, J., dissents, with opinion. PLEUS, J., dissenting. I dissent. The able and sage trial judge understood the case law and applied it properly. He correctly dismissed this case with prejudice for lack of standing because the plaintiffs repeatedly failed to allege any adverse effects, impact or harm they would suffer from the proposed Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk .�sry L Save Homosassa River Alliance, Inc. v. Citrus County, Fla., 2 So.3d 329 (2008) 33 Fla. L. Weekly D2490 development that was unique to them. Without it being unique to them, their interest cannot exceed in degree the general interest in the community good shared by all persons. The majority opinion eviscerates the "adverse *341 effect" element of the standing requirement in subsection 163.3215(2), Florida Statutes, and stands in direct conflict with the case law interpreting that statute. Subsection 163.3215(2) defines an "aggrieved or adversely affected party" as "any person or local government which will suffer an adverse effect to an interest furthered by the local government comprehensive plan...." (Emphasis added). It further states that "[t]he alleged adverse interest may be shared in common with other members of the community at large but must exceed in degree the general interest in community good shared by all persons." (Emphasis added). The cases discussing this section have uniformly interpreted it as requiring factual allegations that plaintiffs will suffer adverse effects and that those adverse effects will be greater than those suffered by the community at large. See Dunlap v. Orange County, 971 So.2d 171 (Fla. 5th DCA 2007); Stranahan House, Inc. v. City of Fort Lauderdale, 967 So.2d 427 (Fla. 4th DCA 2007); Payne v. City of Miami, 927 So.2d 904 (Fla. 3d DCA 2005); Edgewater Beach Owners Ass 'n, Inc. v. Walton County, 833 So.2d 215 (Fla. 1st DCA 2002), receded from on other grounds, Bay Point Club, Inc. v. Bay County, 890 So.2d 256 (Fla. 1st DCA 2004); Putnam County Envtl. Council, Inc. v. Bd. of County Comm'rs, 757 So.2d 590, 592-93 (Fla. 5th DCA 2000) Florida Rock Props. v. Keyser, 709 So.2d 175, 177 (Fla. 5th DCA 1998); Pichette v. City of N. Miami, 642 So.2d 1165 (Fla. 3d DCA 1994); Sw. Ranches Homeowners Ass 'n, Inc. v. Broward County, 502 So.2d 931 (Fla. 4th DCA 1987). Florida Rock, in my view, is a correct analysis of the statute. It tells us two things. Owning real property in the vicinity of the rezoning, and being concerned about the effects of the rezoning, is not sufficient to confer jurisdiction. The rezoning must have a specific impact or involve some harm on or to the property owner or his property. For example, in Dunlap, this Court concluded that the plaintiffs had standing in part because "as owners of property fronting the lake on which Country Lake Estates is being developed, their interests will be affected by M/I Homes' boat ramp construction to an extent which is greater than those held by general members of the community who do not own such lake -front property." 971 So.2d at 175. WESTLAW In Stranahan House, the Fourth District held that the plaintiff sufficiently pled an adverse effect by alleging that as the adjoining property owner, Stranahan House would be negatively affected by "increased traffic and the activity, lights, alteration of Stranahan's enjoyment of light and air, the visual and audio pollution caused by the development and the effect of the shadow cast over the Stranahan property at certain times of the year." 967 So.2d at 433-34. In Payne, the Third District found that the plaintiffs had sufficiently alleged that they would suffer "adverse effects, exceeding the general interests shared by the community at large," by alleging they would suffer specific injuries to their ability to conduct business along the river due to depletion of available sites for marine industrial use by the conversion of industrial land to residential and commercial uses. 927 So.2d at 909. In Edgewater Beach, the First District found that the plaintiff homeowners association demonstrated standing at trial by testifying that an adjacent proposed development would block members' ocean views, thereby reducing their property values, and it would place their recreational facilities in shade until noon. 833 So.2d at 220. *342 In Putnam County Envtl. Council, this Court held that the plaintiff organization sufficiently alleged adverse effects by asserting "specific injuries" it would suffer, including destruction of the habitat of species its members studied and elimination of members' access to the forest and its creatures by overgrowth from discontinuation of controlled burns. 757 So.2d at 593. This Court concluded that such alleged adverse effects were "particular" to the plaintiff organization, making it more than just a group with amorphous environmental concerns. Id. In Florida Rock, this Court held that the plaintiff lacked standing because he failed to show that he would suffer an adverse effect or specific injury from the proposed development. Although the plaintiff alleged generally that the proposed development would "affect his quality of life" and that the County would not be as bucolic as it once was, this Court noted that the alleged injury should be "unique" and "specific" to the plaintiff. It further instructed, "Had Keyser lived adjacent to the property, and had he been able to show a specific impact the zoning change would have upon him or his property, he would have standing." 709 So.2d at 177. In Pichette, the Third District affirmed a summary judgment for lack of standing because the plaintiffs failed to demonstrate that they would be affected by "noise, L Save Homosassa River Alliance, Inc. v. Citrus County, Fla., 2 So.3d 329 (2008) 33 Fla. L. Weekly D2490 traffic impact, land value diminution, or and any other respect by the proposed zoning ordinance." 642 So.2d at 1166. In Southwest Ranches, the Fourth District held that the plaintiffs sufficiently alleged standing by asserting that they were a group of landowners who would be directly affected by a proposed adjacent landfill's pollution, flooding and deterioration of the potable water supply. 502 So.2d at 934-35. In the instant case, the plaintiffs failed to allege that they would suffer any adverse effect from the proposed development, much less any that would affect them to a greater degree than the community at large. The complaint alleges that the individual plaintiffs will suffer harm because the proposed development will increase demands on the potable water, sewer, traffic, evacuation, police and infrastructure systems. Simply alleging that development will increase demands on various resources does not equate to an adverse effect on an individual plaintiff. Instead, the complaint must allege ultimate facts showing how or why increased demands will result in adverse impacts to the plaintiffs. See Fla. R. Civ. P. 1.110(b) (requiring a "short and plain statement of ultimate facts showing pleader is entitled to relief'); Williams v. Howard, 329 So.2d 277 (F1a.1976) (noting that a "bare assertion" that one's legal rights will be affected, without alleging how or why, is not sufficient to establish standing to file a declaratory judgment action). For example, will the increased numbers of people and demands arising from the proposed development degrade the plaintiffs' water quality? Will they reduce the plaintiffs' access to potable water? Will they increase the price plaintiffs pay for potable water? Will they reduce plaintiffs' access to fishing, boating and other activities in the Homosassa River? Will they cause increased response times from police and fire to plaintiffs' residences? Will they prevent plaintiffs from timely evacuating in an emergency? And, if so, how are any of these adverse effects suffered by the plaintiffs to a greater degree than the community at large? The complaint fails to allege any ultimate facts demonstrating that the plaintiffs will suffer adverse effects, much less adverse effects greater than the community at large. *343 The complaint also alleges that the Alliance and the individual plaintiffs will be adversely affected because their "investment of resources and volunteer activities" to protect the river, educate the public and encourage responsible development will be "for naught" if the County continues to allow development that is inconsistent with the Comprehensive Plan. A similar WESTLAW Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk argument was soundly rejected by the United States Supreme Court in Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972), a case this Court followed in Florida Rock. There, the Sierra Club had attempted to establish standing under a similar statutory requirement in the Administrative Procedure Act that it allege an "adverse effect." Discussing the purpose for this requirement, the Court stated: The requirement that a party seeking review must allege facts showing that he is himself adversely affected does not insulate executive action from judicial review, nor does it prevent any public interests from being protected through the judicial process. It does serve as at least a rough attempt to put the decision as to whether review will be sought in the hands of those who have a direct stake in the outcome. That goal would be undermined were we to construe the APA to authorize judicial review at the behest of organizations or individuals who seek to do no more than vindicate their own value preferences through the judicial process. Id. at 1368-69 (footnote omitted; emphasis added). In this case, the majority concludes without any supporting analysis that the plaintiffs sufficiently allege that they will be "adversely affected by allowing a development that violates the plan." The majority's conclusion suffers from the same fatal flaw as the complaint itself —it is unsupported by any allegations of ultimate facts showing how or why the alleged violations will adversely affect the plaintiffs, and do so to a greater degree than the community at large. More troubling is the majority's contradictory statement that a showing of harm is not required at all. It states: Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk 1440., Save Homosassa River Alliance, Inc. v. Citrus County, Fla., 2 So.3d 329 (2008) 33 Fla. L. Weekly D2490 An interpretation of the statute that requires harm different in degree from other citizens would eviscerate the statute and ignore its remedial purpose. It drags the statute back to the common law test. The Statute is designed to remedy the governmental entity's failure to comply with the established comprehensive plan, and, to that end, it creates a category of persons able to prosecute the claim. The statute is not designed to redress damage to particular plaintiffs. To engraft such a "unique harm" limitation onto the statute would make it impossible in most cases to establish standing and would leave counties free to ignore the plan because each violation of the plan in isolation usually does not harm the individual plaintiff. Rather, the statute simply requires a citizen/plaintiff to have a particularized interest of the kind contemplated by the statute, not a legally protectable right. This analysis is incorrect. By interpreting the statute as requiring only a particularized interest and not a particularized harm, it contravenes the plain language of the statute and conflicts with prior case law from this and other districts. It also leads to the danger described by the Supreme Court in Morton, as follows: It is clear that an organization whose members are injured may represent those members in a proceeding for judicial review. See, e.g., NAACP v. Button, 371 U.S. 415, 428, 83 S.Ct. 328, 335, 9 L.Ed.2d 405. But a mere "interest in a problem," no matter how longstanding *344 the interest and no matter how qualified the organization is in evaluating the problem, is not sufficient by itself to render the organization "adversely affected" or WESTLAW "aggrieved" within the meaning of the APA. The Sierra Club is a large and long-established organization, with a historic commitment to the cause of protecting our Nation's natural heritage from man's depredations. But if a "special interest" in this subject were enough to entitle the Sierra Club to commence this litigation, there would appear to be no objective basis upon which to disallow a suit by any other bona fide "special interest" organization however small or short-lived. And if any group with a bona fide "special interest" could initiate such litigation, it is difficult to perceive why any individual citizen with the same bona fide special interest would not also be entitled to do so. Id. at 739-40, 92 S.Ct. 1361. As discussed above, Florida case law clearly requires more concrete injury than that alleged by the Plaintiffs. On this point the U.S. Supreme Court has previously recognized the requirement of an injury is specific —it requires a "concrete and particularized" injury in fact which "must affect the plaintiff in a personal and individual way," does not allow legal redress for any imaginable injury, and is not "an ingenious academic exercise in the conceivable." Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 566, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). In Lujan, Justice Scalia expressed doubts that the Defenders of Wildlife had alleged sufficient injury to demonstrate standing, simply because a person's aesthetic viewing of a particular species in a particular area of the world was in danger of becoming less pleasurable. Id. at 566, 112 S.Ct. 2130. This argument is "pure speculation and fantasy." Id. To be sure, the Court opined that if a person could show they were observing a threatened species in a particular area of the world and that specific area was threatened, it was "plausible —though it goes to the outermost limit of plausibility" that such a person might have standing. Id. In this case, although the aesthetic viewing argument expressed by the Plaintiffs in this case stretches plausibility for the same reasons, it is somewhat closer to satisfying the constitutional requirement of standing because of Plaintiffs' demonstrated proximity. However, there is an additional problem with Plaintiffs' argument. Submitted into the public record for item(s) PZ.1 on 12/13/2018 , City Clerk Save Homosassa River Alliance, Inc. v. Citrus County, Fla., 2 So.3d 329 (2008) 33 Fla. L. Weekly D2490 To demonstrate such an injury, the party seeking redress must state "specific facts" demonstrating "that one or more of respondents' members would thereby be directly affected" by the challenged action. Id. at 563, 112 S.Ct. 2130. This was not accomplished here. Plaintiffs' bare -bones allegations that the increases in density will affect their use of the river is, without more, "pure speculation and fantasy" and is insufficient to show the requisite actual, concrete injury. Because the Second Amended Complaint was fatally defective, the trial judge did not abuse his discretion in dismissing it with prejudice. The standard for reviewing a lower court's dismissal with prejudice is abuse of discretion. Sonny Boy, L.L.C. v. Asnani, 879 So.2d 25, 28-29 (Fla. 5th DCA 2004). Refusal to allow amendment of a pleading constitutes an abuse of discretion unless it clearly appears that allowing the amendment would prejudice the opposing party, the privilege to amend has been abused, or amendment would be futile. Id. While amendments should generally be liberally granted so that cases may be concluded on their merits, "there is an equally compelling obligation on the court to see to it that the end of all litigation be finally reached." Price v. Morgan, 436 So.2d 1116, 1122 (Fla. 5th DCA 1983). *345 Thus, "a trial judge in the exercise of sound discretion may deny further amendments where a case has progressed to a point that liberality ordinarily to be indulged has diminished." Id. The trial court's order denying motion for rehearing demonstrates that dismissal with prejudice was appropriate in this case because further amendment would be futile and would cause prejudice to the defendants. It states: After extensive argument on the defendant's and intervenor's motions to dismiss plaintiffs' Amended Complaint at which time it was thoroughly explained why the facts urged by plaintiffs did not meet the requirements for standing, the court dismissed plaintiffs' complaint but with leave to amend. Although the court inquired at that hearing what additional facts plaintiffs might be able to allege on amendment, plaintiffs' counsel objected to "going outside the record" and insisted that the court rule on the four corners of the complaint. The court gave plaintiffs the benefit of the doubt that they might have additional facts bearing on standing that could be alleged and permitted an amendment. Plaintiffs' second amended complaint also failed to allege sufficient facts showing that plaintiffs were any more affected by the challenged action of the County Commission than any other member of the community. WESTIAW And this is understandable. Plaintiffs cannot invent facts. They now live no closer to the project so that its noise affects them and the shadows case by the buildings still does not fall on plaintiffs' property. Although there was no contention before the County Commission that the project would affect the quality of the water in the Homosassa River, plaintiffs are unable to allege any greater right to the river than the general public. And although the number of units may permit some growth in the area and the buildings may not be consistent with the character of Old Homosassa, these allegations affect all of the citizens in Old Homosassa equally. When delay will prevent the construction of an approved but undesired development, then one may win by losing if the losing process is sufficiently long. In this case, it has been long enough. Plaintiffs have had ample opportunity to show standing if they could. Further delay will not help them. The plaintiffs in this case made three attempts to plead standing and they failed. "Generally three ineffective attempts to state the same cause of action are enough." Henry P. Trawick, Jr., Florida Practice and Procedure § 14-3 at 267 (2007-08 ed.). Most trial judges use the "three strikes and you're out" standard. The record amply demonstrates that the plaintiffs were incapable of pleading sufficient ultimate facts to confer standing. As the trial court noted above, at the hearing on the First Amended Complaint, the court asked the plaintiffs' attorney what additional facts could be alleged and she objected to going "outside the record." Nevertheless, the court entered an order explaining why the complaint was deficient and gave the plaintiffs an opportunity to allege additional ultimate facts. The plaintiffs then filed the Second Amended Complaint, which was also deficient. At the hearing on the motion to dismiss that complaint, plaintiffs' counsel candidly stated: [W]e wouldn't have the second amended complaint, had they not filed a motion to dismiss. What they have been successful in doing is creating —you know, basically making sure that we have a non -assailable complaint once it's time for the matter to be fmally resolved, because *346 we have now had two opportunities to dot Submitted into the public record for item(s) PZ.1 on 12/13/2018 , City Clerk L Save Homosassa River Alliance, Inc. v. Citrus County, Fla., 2 So.3d 329 (2008) 33 Fla. L. Weekly D2490 all the I's and cross all the T's after they have alleged we missed some of those. At no time, either in their motion for rehearing or in this appeal, have the plaintiffs demonstrated what further amendment would be made if given another opportunity to amend. See Price, 436 So.2d at 1122 (noting that appellants failed to demonstrate what further amendment could be made if given the opportunity). Based on the trial judge's reasoning and the record facts supporting it, the plaintiffs have failed to prove that he abused his discretion in dismissing the case with prejudice. To conclude otherwise, as the majority does, is simply to ignore the appellate standard which we are bound to follow. I feel compelled to add the following observations from my experience in this area of the law. No doubt the plaintiffs in this case are honest, sincere people who care deeply about the future of the Homosassa River. My remarks about certain so-called "environmentalists gadflies" should not be interpreted as a reference to them. Footnotes 1 2 3 4 5 6 7 The opinion of Judge Griffin will be cited and used to open the floodgates to the environmental gadflies of the world. They will file spurious complaints which challenge rezoning on the basis that it violates the comprehensive plan. Local government will be hampered in doing what it is supposed to do. Property rights will be trampled by the delays. People who disagree with local decisions will find solace in the judicial branch by virtue of this Court's new-found authority which opens the courthouse door to attempts to overturn the decisions of local, duly -elected officials. Every gadfly with some amorphous environmental agenda, and enough money to pay a filing fee, will be anointed with status simply because the gadfly wants to "protect the planet." The environmental gadfly will win every time, not on the merits, but because, in the words of the trial judge, "[w]hen delay will prevent the construction of an approved but undesired development, then one may win by losing if the losing process is sufficiently long." For those who respect property rights, look out! All Citations 2 So.3d 329, 33 Fla. L. Weekly D2490 Resort's site is designated on the County's generalized future land use map, ("GFLUM"), as CL, Low Intensity Coastal Lakes, which allows a maximum density of one (1) unit per 20 acres, is located in Flood Plain A-11, and is located in the Coastal High Hazard Zone. Specifically, the County and Resort assert in their motion: There exists no allegations within the complaint that establish how the height of the building or the net increase in units will adversely impact the Alliance' [sic] educational purpose or interest in the manatee, Bitters ability to fish in the river, Rendueles' ability to bicycle through Old Homosassa, or Watkins' ability to walk down the streets in Old Homosassa. The canal that Rendueles' property is on is part of the Homosassa River system and opens to the River at Resort's site. Plaintiffs assert that the water system that the individual plaintiffs would share with Resort had "expressed concems regarding the volume of water it will be able to supply because of [Resort's] project demands." The Old Homosassa Redevelopment Area Plan is incorporated into the County's Land Development Code as section 4680. The action underlying this appeal was brought pursuant to section 163.3215(3), Florida Statutes. Section 163.3164(17), Florida Statutes (2007), provides that, as used in the Local Govemment Comprehensive Planning and Land Development Regulation Act, "[p]erson means an individual, corporation, govemmental agency, business trust, estate, trust, partnership, association, two or more persons having a joint or common interest, or any other legal entity." WESTLAW Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk Save Homosassa River Alliance, Inc. v. Citrus County, Fla., 2 So.3d 329 (2008) 33 Fla. L. Weekly D2490 8 9 10 11 In Florida Rock Properties, 709 So.2d at 177, this Court wrote: "[K]eyser's standing to challenge the Board's zoning decision depends on (1) whether the personal and professional interests he alleged are 'protected or furthered by' Putnam County's comprehensive plan; if so, (2) whether those interests are greater than the general interest in community well being; and (3) whether the interests are or will be adversely affected by the challenged zoning decision." (Emphasis added). In Stranahan House, Inc., 967 So.2d at 434, the Fourth District wrote: Stranahan and Friends meet the test for standing outlined in Florida Rock Properties v. Keyser, 709 So.2d 175, 177 (Fla. 5th DCA 1998). The interests alleged are protected by the City's comprehensive plan, they are greater than the general interest in community well-being, and the interests will be adversely affected by the development. (Emphasis added). "Keyser is a citizen with an interest in the environment and nothing more." 709 So.2d at 177. As for the trial court's denial of Plaintiffs' request to further amend the complaint in light of the dismissal, Plaintiffs had not abused the privilege to amend. Accordingly, the trial court also erred in dismissing Plaintiffs' complaint "with prejudice." End of Document © 2018 Thomson Reuters. No claim to original U.S. Government Works. WESTLAW Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk L Save Homosassa River Alliance, Inc. v. Citrus County, Fla., 2 So.3d 329 (2008) 33 Fla. L. Weekly D2490 KeyCite Yellow Flag - Negative Treatment Distinguished by Martin County Conservation Alliance v. Martin County, Fla.App. I Dist., June 21, 2010 2 S0.3d 329 District Court of Appeal of Florida, Fifth District. SAVE the HOMOSASSA RIVER ALLIANCE, INC., et al., Appellant, v. CITRUS COUNTY, FLORIDA, et al., Appellee. No. 5D07-2545. Oct. 24, 2008. Rehearing Denied Feb. 1.9, 2009. Synopsis Background: Environmental group and area landowners brought action against county and property owner, challenging county's approval of property owner's application to build residential buildings on property adjacent to river, which was essential manatee habitat. The Circuit Court, Citrus County, Charles M. Harris, Senior Judge, dismissed action for lack of standing. Plaintiffs appealed. [Holding:] The District Court of Appeal, Griffin, J., held that plaintiffs had standing to bring action. Reversed and remanded. Pleus, J., filed dissenting opinion. West Headnotes (9) It1 Zoning and Planning Comprehensive or general plan A "local comprehensive land use plan" is a statutorily mandated legislative plan to control and direct the use and development of property within a county or municipality; the plan is WESTLAW likened to a constitution for all future development within the governmental boundary. West's F.S.A. § 163.3167. Cases that cite this headnote 121 Zoning and Planning .Right of Review; Standing 131 141 As a remedial statute, statute that enlarges class of persons with standing to challenge development order as inconsistent with local comprehensive land use plan is to be liberally construed to advance the intended remedy. West's F.S.A. § 163.3215. Cases that cite this headnote Zoning and Planning 4.*Right of Review; Standing The purpose of statute governing standing to appeal and challenge the consistency of a development order with a local comprehensive land use plan is to liberalize standing. West's F.S.A. § 163.3215. Cases that cite this headnote Zoning and Planning .Right of Review; Standing A person's standing to bring a challenge under statute governing actions challenging a local government's development order as being inconsistent with local comprehensive land use plan depends on (1) whether the interests the person alleges are protected or furthered by the local government comprehensive plan, if so, (2) whether those interests exceed in degree the general interest in community good shared by all persons, and (3) whether the interests will Save Homosassa River Alliance, Inc. v. Citrus County, Fla., 2 So.3d 329 (2008) 33 Fla. L. Weekly D2490 151 161 be adversely affected by the challenged decision. West's F.S.A. § 163.3215(2, 3). 2 Cases that cite this headnote Zoning and Planning ..'Right of Review; Standing Under statute governing standing regarding actions challenging a local government's development order as being inconsistent with local comprehensive land use plan, requirement that a person must allege an interest that exceeds "in degree the general interest in community good shared by all persons" simply means that a party must allege that they have an interest that is something more than a general interest in community well being. West's F.S.A. § 163.3215(2). Cases that cite this headnote Zoning and Planning Permits, certificates, and approvals Environmental group and area landowners had standing to bring action challenging county's approval of property owner's application to build residential buildings on property adjacent to river as being inconsistent with local comprehensive land use plan; group sought to protect river from problems associated with improper and ineffective storm water management systems, overpopulation of lands adjacent to river, and destruction of wetlands surrounding river, and group and landowners all had direct and demonstrated concern for protection of interests furthered by comprehensive plan that would be adversely affected by allowing development that violated plan. West's F.S.A. § 163.3215(2, 3). Cases that cite this headnote WESTLAW 171 181 191 Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk Zoning and Planning • Right of Review; Standing The "greater -in -degree" part of the test for standing to bring action challenging a local government's development order as being inconsistent with local comprehensive land use plan self -evidently would be met if the plaintiff is an adjacent property owner. West's F.S.A. § 163.3215(2). 1 Cases that cite this headnote Zoning and Planning • Right of Review; Standing Statutory test for standing to bring action challenging a local government's development order as being inconsistent with local comprehensive land use plan is directed to the quality of the interest of the person seeking standing; there is no requirement of a unique harm relative to the general population. West's F.S.A. § 163.3215(2, 3). Cases that cite this headnote Zoning and Planning • Dismissal Dismissal of second amended complaint for lack of standing was required to be without prejudice rather than with prejudice in action challenging county's approval of property owner's application to build residential buildings on property adjacent to river as being inconsistent with local comprehensive land use plan; plaintiffs had not abused privilege to amend. West's F.S.A. § 163.3215(2, 3). Cases that cite this headnote Attorneys and Law Firms Save Homosassa River Alliance, Inc. v. Citrus County, Fla., 2 So.3d 329 (2008) 33 Fla. L. Weekly D2490 *331 Denise A. Lyn, of Denise A. Lyn, P.A., Inverness, for Appellant. Michele Lieberman, of Law Office of Michele L. Lieberman, LL, Inverness, for Appellee. Carl A. Bertoch, Crystal River, for Intervenor, Homosassa Riverside Resort, LLC. Opinion GRIFFIN, J. Save the Homosassa River Alliance, Inc., James Bitter, Rosemary Rendueles, and Priscilla Watkins [collectively "Plaintiffs"] appeal the trial court's order dismissing, with prejudice, their suit against Citrus County, Florida ["County"] and Homosassa River Resort, LLC ["Resort"] on the ground that they lack standing. Resort owns property adjacent to the Homosassa River ["River"] in Old Homosassa, Florida. The Homosassa River is an Outstanding Florida Waterway and an essential manatee habitat.' There are two buildings on Resort's site, containing fifteen residential condominium units. Resort applied to the County for a land development code atlas amendment "to allow the development and redevelopment of 87 condominium dwelling units, retail space, amenities and parking" on this property. The project would result in the construction of four four-story residential structures. On July 11, 2006, Citrus County's Board of County Commissioners enacted Ordinance No. 2006—A13, which approved Resort's application and amended the County's land development code to reflect the approval. Plaintiff Alliance is a not -for -profit corporation "committed to the preservation and conservation of environmentally sensitive lands and the wildlife in and around the Homosassa River and in Old Homosassa, Florida." Plaintiffs Bitter, Rendueles, and Watkins are individuals who own property in the area. On August 10, 2006, Plaintiffs filed this suit against the County, pursuant to section 163.3215, challenging the County's approval of Resort's application on the ground that it is inconsistent with the County's Comprehensive Land Use Plan, Citrus County Ordinance No. 89-04, as amended. On November 9, 2006, before the initial complaint was served on the County, Plaintiffs filed an Amended Complaint. Resort was allowed to intervene in the dispute and the County filed a motion to dismiss, arguing that the Plaintiffs had failed to plead sufficient facts to establish WESTLAW Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk standing. The trial court agreed and dismissed Plaintiffs' complaint, with twenty days to amend. *332 Plaintiffs filed their Second Amended Complaint against both the County and Resort, to which the County and Resort responded by filing a joint motion to dismiss. In their joint motion to dismiss, the County and Resort alleged that Plaintiffs had failed to establish standing because they had not sufficiently alleged (1) "any interest that exceeds in degree that of the general community," (2) "harm to such interests over and above that of their neighbors," or (3) "any nexus between the alleged comprehensive plan violations and the interests of the parties.'" The trial court heard arguments on the County and Resort's joint motion. At the hearing, Resort and the County essentially reiterated the points they had raised in their written motion and urged that the dismissal of the Second Amended Complaint be with prejudice. Plaintiffs argued that section 163.3215 gave affected citizens significantly enhanced standing to challenge the consistency of development decisions and that their allegations were sufficient to establish standing under this liberalized standard. On about July 2, 2007, the trial court dismissed the Second Amended Complaint with prejudice, concluding that Plaintiffs had failed to sufficiently allege that their interests were adversely affected by the project in a way not experienced by the general population and because of insufficient "nexus" allegations. The trial court observed that "[t]here are no allegations that the county -approved plan permits improper runoff into the river or that the proposed development will itself (other than by adding people to the mix) adversely affect the quality of water or access to the river." Additionally, the trial court noted that "[t]here is no indication that residents living in this proposed project would add any more burden to the streets, storm drainage, river crowding, etc. than residents living elsewhere in the city." Plaintiffs filed a motion for rehearing on July 11, 2007. In the motion for rehearing, Plaintiffs asserted that the trial court's analysis was not within the statute. They also objected that the trial court's dismissal "with prejudice" at that stage of the proceedings was premature and contrary to the existing case law. The trial court concluded that Plaintiffs had been given "ample opportunity to show standing if they could" and that they would not be helped by further delay. The trial court denied Plaintiffs' motion for rehearing. Submitted into the public record for item(s) PZ.1 . on 12/ 13% 2018 , City Clerk L Save Homosassa River Alliance, Inc. v. Citrus County, Fla., 2 So.3d 329 (2008) 33 Fla. L. Weekly D2490 The Second Amended Complaint Plaintiffs' Second Amended Complaint contains lengthy allegations in support of their standing to bring this suit. The complaint begins by introducing each of the plaintiffs (Alliance, Bitter, Rendueles, and Watkins). Alliance is a not -for -profit corporation committed to the preservation of the lands and the wildlife in and around the Homosassa River and Old Homosassa, Florida. The complaint explains that the group has "embarked on a specific and focused course" to protect the River from problems associated with improper and ineffective storm water management systems, overpopulation of the lands adjacent to the River, destruction of wetlands surrounding the River, degradation of the River's water quality, and excessive boat traffic upon the River. The group conducts *333 seminars to educate the area's residents about the River and how to preserve it. One of the Alliance's main objectives has been "the orderly development and preservation of the character of Old Homosassa." Members of the group use the River for both educational and recreational purposes; have invested substantial effort and funds to protect and preserve the River and its endangered manatees; and have served on the Old Homosassa Area Redevelopment Plan steering committee. The complaint alleges that Bitter is an active Alliance member who owns property about three miles from Resort's site. He is conscious of governmental actions that affect the health of the Homosassa River and participates actively in public conversations regarding development of the area. Bitter fishes in the River, frequently boats along it, and often visits its shores "to admire the beauty and wonder of the River and its wildlife." Additionally, Bitter receives potable water from the Homosassa Special Water District, fire protection from the County's fire department, police protection from the County's Sheriffs Department, and emergency services by Nature Coast EMS. Finally, it is alleged that in the event of a natural disaster or a threat of a natural disaster, Bitter would have to evacuate his property via West Fishbowl Drive, which is a two-lane road in Homosassa. "West Fishbowl Drive .., is along the evacuation route for [Resort's] property...." Rendueles owns canal -front real property less than a mile from Resort's site.' Rendueles worked on the County's Old Homosassa Overlay steering committee and actively participated during the County's public hearings on Resort's application. Additionally, it is alleged that WESTLAW Rendueles "enjoys the beauty of nature by traveling down the Homosassa River and walking and bicycling along the streets in Old Homosassa." She often visits the River's shores "to admire the beauty and wonder of the River and its wildlife." Rendueles receives potable water from the Homosassa Special Water District, fire protection from the County's fire department, police protection from the County's Sheriff's Department, and emergency services by Nature Coast EMS. In the event of a natural disaster or a threat of a natural disaster, Rendueles would evacuate her property via W. Yulee Drive, which is a two-lane road in Homosassa. Watkins owns real property within Homosassa, Florida. She participates in Alliance's activities and actively participated during the County's public hearings on Resort's application. Watkins frequently kayaks on the River; bicycles along W. Halls River Road and W. Fishbowl Drive; and enjoys walking down Old Homosassa's uncrowded streets and roads. Watkins receives potable water from the Homosassa Special Water District, sewer services from Citrus County, fire protection from the County's fire department, police protection from the County's Sheriff's Department, and emergency services by Nature Coast EMS. In the event of a natural disaster or a threat of a natural disaster, Watkins would evacuate her property via W. Halls River Road, a two-lane road in Homosassa, which is along the evacuation route for Resort's property. Plaintiffs allege that "[b]ecause of the County's adoption of a development order which is inconsistent with its adopted Comprehensive Plan[,] [Plaintiffs] will suffer an adverse effect to their interests *334 furthered by the local government comprehensive plan...." In paragraph 27, Plaintiffs generally list protected interests that they claim will be adversely affected by the County's approval. Specifically, Plaintiffs allege: The Alliance and Property Owners, including the members of the corporation, will suffer adverse effects to interests protected or furthered by the adopted Plan, as amended, including but not limited to their property interests, their interest in protecting and maintaining the existing water quality of the Homosassa River, their interest in protecting the endangered Manatees, their Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk Save Homosassa River Alliance, Inc. v. Citrus County, Fla., 2 So.3d 329 (2008) 33 Fla. L. Weekly D2490 interest in sufficient water and wastewater infrastructure, their interests in efficient and equitable distribution of land uses in the area, their interests in reasonable investment -backed expectations in their area, their interests in land use, their interests in preserving the character of Old Homosassa, their interests related to health and safety, including the safety and efficiency of recreation facilities and streets, police and fire protection, densities or intensities of development, including the compatibility of adjacent land uses, their interest in environmental or natural resources and their interest in wetland preservation. In paragraphs 9 through 12, Plaintiffs allege how the harm they would each suffer "exceeds the harm caused to the public in general." With regard to Alliance, Plaintiffs allege: 12). Alliance will be harmed to a degree that exceeds the harm caused to the public in general because of the Alliance's investment of resources and volunteer activities to protect the health and welfare of the Homosassa River and to encourage environmentally sound development practices around the Homosassa River. Its tireless efforts to educate the public and to encourage clean and environmentally sound development will be for naught if the County continues to allow development that is inconsistent with the goals and objectives of its Comprehensive Plan. With respect to each of the individual plaintiffs, Plaintiffs allege that Resort's proposed development activities would increase the number of people in the area and, WESTL.AW accordingly, increase demands relating to public services, evacuation, traffic, and infrastructure.' It is alleged that, given their proximity to "the project and given [their] use of the same water system, roadway system ... waterway system," and in the case of Watkins, sewer system, "[Plaintiffs] will suffer harm to a greater degree than that of the public in general." Plaintiffs additionally allege that Bitter would "be harmed to a degree that exceeds the harm caused to the public in general" because of his participation in the local government process and his volunteer efforts to preserve and protect the River; that Rendueles would "be harmed to a degree that exceeds the harm caused to the public in general" due to her proximity to the development, her location in the Coastal High Hazard Area, and her location within the Old Homosassa Redevelopment Area; and that Watkins would "be harmed to a degree that exceeds the harm caused to the public in general" because of her proximity to the development, her location within the Coastal High Hazard Area, her use of the River, and her active use of the roads and streets within Old Homosassa. *335 Finally, the complaint contains allegations concerning the interests the comprehensive plan is intended to protect and how Resort's proposed project is inconsistent with the plan. Plaintiffs allege that the plan's provisions are intended to: a) Preserve, protect, and restore County's natural resources.... b) Protect and maintain the water quality of the ... Homosassa ... [River].... c) Provide the GFLUM be recognized as the primary document used by County in land use regulation and in guiding future growth. e) Provide that where County's LDC5 conflicts with or overlaps other regulations, whichever imposes the more stringent restrictions shall prevail. f) Limit residential structures in the coastal high hazard area to two (2) stories. g) Prohibit the expansion of R-2 occupancies in the coastal high hazard area. h) Limit structures in the Old Homosassa Redevelopment Area to two (2) stories over the first living floor. i) Require all structures constructed in the Old c. Save Homosassa River Alliance, Inc. v. Citrus County, Fla., 2 So.3d 329 (2008) 33 Fla. L. Weekly D2490 Homosassa Redevelopment Area to provide for a 10 foot step back of the second story over the first story. j) Require all development in the Old Homosassa Redevelopment Area to further the character and vision provided for Old Homosassa and to be compatible with existing structures in the area. k) Prohibit the development or expansion of general commercial uses within Old Homosassa. The complaint then alleges that the proposed development is inconsistent with the Plan, because it: a) Allows for the expansion of R-2 residential dwelling units in the coastal high hazard area. b) Allows for the construction of three (3) story over parking residential structures in the coastal high hazard area. c) Allows for the construction of structures that are not compatible with the character and vision of Old Homosassa. d) Allows for the construction of four (4) residential structures which do not provide for a step back of stories. e) Allows for increases in residential dwellings in the coastal high hazard area. f) Allows for the expansion or development of new commercial uses within Old Homosassa. g) Allows for the development of residential uses upon lands designated as GNC within Old Homosassa. The trial court's order indicates that it dismissed Plaintiffs' Second Amended Complaint because it found that Plaintiffs had failed to sufficiently allege that their interests were adversely "affected by the project in a way not experienced by the general population." Additionally, the trial court's order adopted the "nexus" argument of Resort and the County, ruling that "there must be some nexus between the alleged evil of the challenged action and the adverse [e]ffect claimed." WESTIAW Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk *336 Controlling Law 111 "A local comprehensive land use plan is a statutorily mandated legislative plan to control and direct the use and development of property within a county or municipality. The plan is likened to a constitution for all future development within the governmental boundary." Machado v. Musgrove, 519 So.2d 629, 631-32 (Fla. 3d DCA 1987) (citations omitted). See also § 163.3167, Fla. Stat. (2007). Once a comprehensive plan has been adopted pursuant to the Local Government Comprehensive Planning and Land Development Regulation Act, "all development undertaken by, and all actions taken in regard to development orders by, governmental agencies in regard to land covered by such plan" must be consistent with that plan. § 163.3194(1)(a), Fla. Stat. (2007); see also § 163.3164(7), Fla. Stat. (2007). 121 131 Prior to 1985, common law governed a third party's standing to intervene to challenge a development order as inconsistent with the governing comprehensive plan. See Parker v. Leon County, 627 So.2d 476, 479 (F1a.1993), Citizens Growth Mgmt. Coal., Inc. v. City of W. Palm Beach, 450 So.2d 204, 206-08 (F1a.1984). The common law rule provided that, in order to have standing to challenge a land use decision, a party had to possess a legally recognized right that would be adversely affected by the decision or suffer special damages different in kind from that suffered by the community as a whole. Putnam County Envtl. Council, Inc. v. Bd. of County Comm'rs, 757 So.2d 590, 592-93 (Fla. 5th DCA 2000); Citizens Growth Mgmt. Coal., Inc., 450 So.2d at 206. In 1985, the Florida Legislature reacted to the Supreme Court's 1984 decision in Citizens Growth Management that the common law rules of standing applied to the Growth Management Act by enacting section 163.3215, Florida Statutes.6 Its stated purpose was "to ensure the standing for any person who 'will suffer an adverse effect to an interest protected ... by the ... comprehensive plan.' " Parker, 627 So.2d at 479 (citing § 163.3215(2), Fla. Stat. (1985)); see also Edu. Dev. Ctr., Inc. v. Palm Beach County, 751 So.2d 621, 623 (Fla. 4th DCA 1999) (section 163.3215 is a remedial statute in that it "enlarged the class of persons with standing to challenge a development order as inconsistent with the comprehensive plan"). As a remedial statute, section 163.3215 is to "be liberally construed to advance the intended remedy...." Edu. Dev. Ctr., Inc., 751 So.2d at 623; see also Dunlap v. Orange County, 971 So.2d 171, 174 (Fla. 5th DCA 2007). There is no doubt that the purpose of the adoption of section 163.3215 was to liberalize standing in this context. See City of Ft. Myers v. Splitt, 988 So.2d 28 (Fla. 2d DCA 2008). 141 In part, section 163.3215(3), Florida Statutes (2007), Submitted into the public record for item(s) PZ.1 on 12/13/2018 , City Clerk Save Homosassa River Alliance, Inc. v. Citrus County, Fla., 2 So.3d 329 (2008) 33 Fla. L. Weekly D2490 'ft.- provides: Any aggrieved or adversely affected party may maintain a de novo action for declaratory, injunctive, or other relief against any local government to challenge any decision of such local government granting or denying an application for, or to prevent such local government from taking any action on, a development order, as defined in s. 163.3164, which materially alters the use or density or intensity of use on a particular piece of property which is not consistent with the comprehensive plan adopted under this part. *337 Further, section 163.3215(2), Florida Statutes (2007), provides: As used in this section, the term "aggrieved or adversely affected party" means any personun or local government that will suffer an adverse effect to an interest protected or furthered by the local government comprehensive plan, including interests related to health and safety, police and fire protection service systems, densities or intensities of development, transportation facilities, health care facilities, equipment or services, and environmental or natural resources. The alleged adverse interest may be shared in common with other members of the community at large but must exceed in degree the general interest in community good shared by all persons. The term includes the owner, developer, or applicant for a development order. WESTLAW (Emphasis added). Thus, a person's standing to bring a challenge under section 163.3215(3) depends on (1) whether the interests the person alleges are "protected or furthered by the local government comprehensive plan"; if so, (2) whether those interests "exceed in degree the general interest in community good shared by all persons"; and (3) whether the interests will be adversely affected by the challenged decision. See § 163.3215(2), Fla. Stat. (2007); see also Fla. Rock Props. v. Keyser, 709 So.2d 175, 177 (Fla. 5th DCA 1998). 151 There is nothing obscure about the statutory language requiring a person seeking standing to allege an interest that "[exceeds] in degree the general interest in community good shared by all persons" to establish standing. It simply means that a party must allege that they have an interest that is something more than "a general interest in community well being." See Keyser, 709 So.2d at 1778; see also Stranahan House, Inc. v. City of Fort Lauderdale, 967 So.2d 427, 434 (Fla. 4th DCA 2007).9 The statute does not say that a party must be harmed to a greater degree than the general public. Not surprisingly, the case law assumes that an organization has an interest that is greater than "the general interest in community well being" when the organization's primary purpose includes protecting the particular interest that they allege will be adversely affected by the comprehensive plan violation. See Stranahan House, Inc., 967 So.2d at 434. The old common law test was so narrowly drawn that there often was no means of redress for a comprehensive plan violation. The expanded statutory test eliminates *338 "gadfly" litigation, yet gives oversight to the segment of the public that is most likely to be knowledgeable about the interest at stake and committed to its protection. The statute expressly identifies by multiple examples the kinds of interests the legislature intended to protect: As used in this section, the term "aggrieved or adversely affected party" means any person or local government that will suffer an adverse effect to an interest protected or furthered by the local government comprehensive plan, including interests related to health and safety, police and fire protection service systems, densities or intensities of development, transportation facilities, health care facilities, equipment or services, and environmental or natural resources. § 163.3215(2), Fla. Stat. (2007) (emphasis added). Application of the statutory test is illustrated by comparing two of the leading cases previously decided by this court. In Keyser, Timothy Keyser had filed a lawsuit Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk Save Homosassa River Alliance, inc. v. Citrus County, Fia., 2 So.3d 329 (2008) 33 Fla. L. Weekly D2490 challenging the decision of the Putnam County Commission to rezone a 509 acre parcel of Florida Rock Properties' land from agricultural to mining. This Court held that Keyser's allegation that the Commission's decision "would adversely affect his quality of life by its negative impact upon wildlife populations and habitats in Putnam County" was insufficient to establish standing. 709 So.2d at 177. In explaining why the allegation was insufficient, this Court said, "Keyser never demonstrated any specific injury, only that the county would not be as bucolic as it once was. Keyser is a citizen with an interest in the environment and nothing more." Id. In Putnam County Environmental Council, Inc., a company owned a piece of land adjacent to the Etoniah Creek State Forest, which was zoned for agricultural use. The company and the local school board "applied for a special exception to the county's comprehensive plan to allow the construction of a regional middle school complex on" the company's property. 757 So.2d at 591. The application was approved, and the Putnam County Environmental Council ["PCEC"] subsequently filed a complaint, seeking to enforce Putnam County's comprehensive plan pursuant to chapter 163. The trial court concluded that PCEC lacked standing to challenge the order under section 163.3215 and dismissed the action on that basis. It its complaint, PCEC alleged that its "primary organizational purposes and activities include the study and protection of natural resources and the advocacy of sound land use and growth management policies affecting the environment"; that its officers and members had "initiated and facilitated the original public acquisition of the Etoniah Creek State Forest"; and that "[a] substantial number of [its] members, along with non-members who participate in PCEC-sponsored activities, use the Etoniah Creek State Forest for recreational and educational purposes." Putnam County Envtl. Council, Inc., 757 So.2d at 592. Additionally, PCEC alleged: The use allowed under the special exception will adversely affect PCEC's use and its members' use of the adjacent Etoniah Creek State Forest as natural resource area. The use of the subject parcel for a school will adversely impact the ability of the Division of Forestry to use controlled burns to manage WESTLAW the adjacent state forest. Without controlled burns, habitat for a variety of species in the Etoniah Creek State Forest will be reduced or eliminated, thus adversely affecting the ability of PCEC, its members, and others who participate in *339 PCEC-sponsored activities to observe or study those species. Also, without controlled burns, much of the forest will become overgrown with understory species, thus adversely affecting the ability of PCEC, its members, and others who participate in PCEC-sponsored activities to access and hike portions of Etoniah Creek State Forest. Furthermore, the physical presence of a school plant as well as the increased traffic and the activity, lights, and noise associated with a school facility, athletic fields, parking lots, and school bands are incompatible with Etoniah Creek State Forest's nature -based recreation and will discourage and interfere with the ability of wide-ranging species such as the black bear to reach or remain in the state forest. This will adversely affect the ability of PCEC, its members, and others who participate in PCEC-sponsored activities to observe or study those species.... Id. 161 In holding that PCEC had made sufficient allegations to establish standing, this Court said: [H]ere PCEC's complaint alleged specific injuries that PCEC would suffer if a middle school complex was constructed on Roberts' property, including the destruction of the habitat of species being studied by PCEC members and the elimination of PCEC members' access to the forest and the forest's creatures by the overgrowth of the forest. The diminution of species being studied by the group is a harm particular to PCEC, making PCEC more than just a group with amorphous "environmental concerns." Accordingly, the Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk Save Homosassa River Alliance, Inc. v. Citrus County, Fla., 2 So.3d 329 (2008) 33 Fla. L. Weekly D2490 allegations set forth in PCEC's complaint are sufficient to demonstrate the requisite level of interest. PCEC's involvement in the original acquisition of the land for use as a state forest and its continued, active connection with that state forest further demonstrate an interest greater than that which all persons share in the community good. Id. at 593-94. ill On appeal, Plaintiffs begin with the premise that the trial court's dismissal order was based on the trial court's view that in order to have standing to mount a section 163.3215 challenge, the plaintiff must own real property adjacent to or very near the parcel at issue. It is true that there is much in the appealed order to suggest that was the court's view. We do not believe the court's analysis to be quite so narrow, however. It does appear that the trial court had difficulty envisioning how the "greater -in -degree" part of the statutory test for standing could be met if the plaintiff did not own adjacent real property. The "greater -in -degree" part of the test self -evidently would be met if the plaintiff is an adjacent property owner. Everyone else has to figure out how to surmount the tag -line test in Keyser,10 i.e., how to be *r "something more" than just a "citizen with an interest in the environment." The County contends that Plaintiffs' complaint lacks "facts sufficient to establish that the impact upon their educational efforts, enjoyment of the outdoors and use of government services is to a greater degree than others with the community," and that Plaintiffs have failed to establish precisely how the alleged comprehensive plan violations, which relate to increased height and density, would impact their interests *340 (i.e. their educational efforts, enjoyment of the outdoors and use of government services) to any greater degree than the Old Homosassa community as a whole. In its separate Answer Brief, Resort similarly asserts that Plaintiffs failed to specifically identify an "adverse interest or impact that" they "could expect to occur due to [its] proposed hotel expansion" and failed to show that their "interests are adversely affected in a way not experienced by the general population." 181 Plaintiffs contend that the trial court's dismissal should be reversed because they have alleged concrete and specific adverse interests that exceed in degree the general interest in community good shared by all. Plaintiffs maintain that it is not necessary for them to show that they will suffer a unique harm and reject the appellees' position as being outside the express language WESTE.AW and intent of the statute. We agree with Plaintiffs that the statutory test is directed to the quality of the interest of the person seeking standing; there is no requirement of a unique harm relative to the general population. The allegations of the Second Amended Complaint amply demonstrate that each of the plaintiffs has an interest that is greater than "a general interest in community good shared by all persons." The allegations show that the Plaintiffs all have a direct and demonstrated concern for the protection of the interests furthered by the comprehensive plan that would be adversely affected by allowing a development that violates the plan. An interpretation of the statute that requires harm different in degree from other citizens would eviscerate the statute and ignore its remedial purpose. It drags the statute back to the common law test. The statute is designed to remedy the governmental entity's failure to comply with the established comprehensive plan, and, to that end, it creates a category of persons able to prosecute the claim. The statute is not designed to redress damage to particular plaintiffs. To engraft such a "unique harm" limitation onto the statute would make it impossible in most cases to establish standing and would leave counties free to ignore the plan because each violation of the plan in isolation usually does not uniquely harm the individual plaintiff. Rather, the statute simply requires a citizen/plaintiff to have a particularized interest of the kind contemplated by the statute, not a legally protectable right. 191 In sum, we conclude that the Second Amended Complaint adequately alleges Plaintiffs' standing to challenge the County's alleged failure to comply with its comprehensive plan in approving Resort's project." We accordingly reverse and remand for further proceedings. REVERSED and REMANDED. SAWAYA, J., concurs. PLEUS, J., dissents, with opinion. PLEUS, J., dissenting. I dissent. The able and sage trial judge understood the case law and applied it properly. He correctly dismissed this case with prejudice for lack of standing because the plaintiffs repeatedly failed to allege any adverse effects, impact or harm they would suffer from the proposed Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk L Save Homosassa River Alliance, Inc. v. Citrus County, Fla., 2 So.3d 329 (2008) 33 Fla. L. Weekly D2490 development that was unique to them. Without it being unique to them, their interest cannot exceed in degree the general interest in the community good shared by all persons. The majority opinion eviscerates the "adverse *341 effect" element of the standing requirement in subsection 163.3215(2), Florida Statutes, and stands in direct conflict with the case law interpreting that statute. Subsection 163.3215(2) defines an "aggrieved or adversely affected party" as "any person or local government which will suffer an adverse effect to an interest furthered by the local government comprehensive plan...." (Emphasis added). It further states that "[t]he alleged adverse interest may be shared in common with other members of the community at large but must exceed in degree the general interest in community good shared by all persons." (Emphasis added). The cases discussing this section have uniformly interpreted it as requiring factual allegations that plaintiffs will suffer adverse effects and that those adverse effects will be greater than those suffered by the community at large. See Dunlap v. Orange County, 971 So.2d 171 (Fla. 5th DCA 2007); Stranahan House, Inc. v. City of Fort Lauderdale, 967 So.2d 427 (Fla. 4th DCA 2007); Payne v. City of Miami, 927 So.2d 904 (Fla. 3d DCA 2005); Edgewater Beach Owners Ass 'n, Inc. v. Walton County, 833 So.2d 215 (Fla. 1st DCA 2002), receded from on other grounds, Bay Point Club, Inc. v. Bay County, 890 So.2d 256 (Fla. 1st DCA 2004); Putnam County Envtl. Council, Inc. v. Bd. of County Comm'rs, 757 So.2d 590, 592-93 (Fla. 5th DCA 2000) Florida Rock Props. v. Keyser, 709 So.2d 175, 177 (Fla. 5th DCA 1998); Pichette v. City of N. Miami, 642 So.2d 1165 (Fla. 3d DCA 1994); Sw. Ranches Homeowners Ass 'n, Inc. v. Broward County, 502 So.2d 931 (Fla. 4th DCA 1987). Florida Rock, in my view, is a correct analysis of the statute. It tells us two things. Owning real property in the vicinity of the rezoning, and being concerned about the effects of the rezoning, is not sufficient to confer jurisdiction. The rezoning must have a specific impact or involve some harm on or to the property owner or his property. For example, in Dunlap, this Court concluded that the plaintiffs had standing in part because "as owners of property fronting the lake on which Country Lake Estates is being developed, their interests will be affected by M/I Homes' boat ramp construction to an extent which is greater than those held by general members of the community who do not own such lake -front property." 971 So.2d at 175. WESTLAW In Stranahan House, the Fourth District held that the plaintiff sufficiently pled an adverse effect by alleging that as the adjoining property owner, Stranahan House would be negatively affected by "increased traffic and the activity, lights, alteration of Stranahan's enjoyment of light and air, the visual and audio pollution caused by the development and the effect of the shadow cast over the Stranahan property at certain times of the year." 967 So.2d at 433-34. In Payne, the Third District found that the plaintiffs had sufficiently alleged that they would suffer "adverse effects, exceeding the general interests shared by the community at large," by alleging they would suffer specific injuries to their ability to conduct business along the river due to depletion of available sites for marine industrial use by the conversion of industrial land to residential and commercial uses. 927 So.2d at 909. In Edgewater Beach, the First District found that the plaintiff homeowners association demonstrated standing at trial by testifying that an adjacent proposed development would block members' ocean views, thereby reducing their property values, and it would place their recreational facilities in shade until noon. 833 So.2d at 220. *342 In Putnam County Envtl. Council, this Court held that the plaintiff organization sufficiently alleged adverse effects by asserting "specific injuries" it would suffer, including destruction of the habitat of species its members studied and elimination of members' access to the forest and its creatures by overgrowth from discontinuation of controlled burns. 757 So.2d at 593. This Court concluded that such alleged adverse effects were "particular" to the plaintiff organization, making it more than just a group with amorphous environmental concerns. Id. In Florida Rock, this Court held that the plaintiff lacked standing because he failed to show that he would suffer an adverse effect or specific injury from the proposed development. Although the plaintiff alleged generally that the proposed development would "affect his quality of life" and that the County would not be as bucolic as it once was, this Court noted that the alleged injury should be "unique" and "specific" to the plaintiff. It further instructed, "Had Keyser lived adjacent to the property, and had he been able to show a specific impact the zoning change would have upon him or his property, he would have standing." 709 So.2d at 177. In Pichette, the Third District affirmed a summary judgment for lack of standing because the plaintiffs failed to demonstrate that they would be affected by "noise, Submitted into the public record for item(s) PZ.1 on 12/13/2018 , City Clerk Save Homosassa River Alliance, Inc. v. Citrus County, Fla., 2 So.3d 329 (2008) 33 Fla. L. Weekly D2490 Ctraffic impact, land value diminution, or and any other respect by the proposed zoning ordinance." 642 So.2d at 1166. law In Southwest Ranches, the Fourth District held that the plaintiffs sufficiently alleged standing by asserting that they were a group of landowners who would be directly affected by a proposed adjacent landfill's pollution, flooding and deterioration of the potable water supply. 502 So.2d at 934-35. In the instant case, the plaintiffs failed to allege that they would suffer any adverse effect from the proposed development, much less any that would affect them to a greater degree than the community at large. The complaint alleges that the individual plaintiffs will suffer harm because the proposed development will increase demands on the potable water, sewer, traffic, evacuation, police and infrastructure systems. Simply alleging that development will increase demands on various resources does not equate to an adverse effect on an individual plaintiff. Instead, the complaint must allege ultimate facts showing how or why increased demands will result in adverse impacts to the plaintiffs. See Fla. R. Civ. P. 1.110(b) (requiring a "short and plain statement of ultimate facts showing pleader is entitled to relief'); Williams v. Howard, 329 So.2d 277 (F1a.1976) (noting that a "bare assertion" that one's legal rights will be affected, without alleging how or why, is not sufficient to establish standing to file a declaratory judgment action). For example, will the increased numbers of people and demands arising from the proposed development degrade the plaintiffs' water quality? Will they reduce the plaintiffs' access to potable water? Will they increase the price plaintiffs pay for potable water? Will they reduce plaintiffs' access to fishing, boating and other activities in the Homosassa River? Will they cause increased response times from police and fire to plaintiffs' residences? Will they prevent plaintiffs from timely evacuating in an emergency? And, if so, how are any of these adverse effects suffered by the plaintiffs to a greater degree than the community at large? The complaint fails to allege any ultimate facts demonstrating that the plaintiffs will suffer adverse effects, much less adverse effects greater than the community at large. *343 The complaint also alleges that the Alliance and the individual plaintiffs will be adversely affected because their "investment of resources and volunteer activities" to protect the river, educate the public and encourage responsible development will be "for naught" if the County continues to allow development that is inconsistent with the Comprehensive Plan. A similar WESTLAW argument was soundly rejected by the United States Supreme Court in Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972), a case this Court followed in Florida Rock. There, the Sierra Club had attempted to establish standing under a similar statutory requirement in the Administrative Procedure Act that it allege an "adverse effect." Discussing the purpose for this requirement, the Court stated: The requirement that a party seeking review must allege facts showing that he is himself adversely affected does not insulate executive action from judicial review, nor does it prevent any public interests from being protected through the judicial process. It does serve as at least a rough attempt to put the decision as to whether review will be sought in the hands of those who have a direct stake in the outcome. That goal would be undermined were we to construe the APA to authorize judicial review at the behest of organizations or individuals who seek to do no more than vindicate their own value preferences through the judicial process. Id. at 1368-69 (footnote omitted; emphasis added). In this case, the majority concludes without any supporting analysis that the plaintiffs sufficiently allege that they will be "adversely affected by allowing a development that violates the plan." The majority's conclusion suffers from the same fatal flaw as the complaint itself —it is unsupported by any allegations of ultimate facts showing how or why the alleged violations will adversely affect the plaintiffs, and do so to a greater degree than the community at large. More troubling is the majority's contradictory statement that a showing of harm is not required at all. It states: Submitted into the public record for item(s) PZ.i on 12/13/2018 , City Clerk Save Homosassa River Alliance, Inc. v. Citrus County, Fla., 2 So.3d 329 (2008) 33 Fla. L. Weekly D2490 An interpretation of the statute that requires harm different in degree from other citizens would eviscerate the statute and ignore its remedial purpose. It drags the statute back to the common law test. The Statute is designed to remedy the governmental entity's failure to comply with the established comprehensive plan, and, to that end, it creates a category of persons able to prosecute the claim. The statute is not designed to redress damage to particular plaintiffs. To engraft such a "unique harm" limitation onto the statute would make it impossible in most cases to establish standing and would leave counties free to ignore the plan because each violation of the plan in isolation usually does not harm the individual plaintiff. Rather, the statute simply requires a citizen/plaintiff to have a particularized interest of the kind contemplated by the statute, not a legally protectable right. This analysis is incorrect. By interpreting the statute as requiring only a particularized interest and not a particularized harm, it contravenes the plain language of the statute and conflicts with prior case law from this and other districts. It also leads to the danger described by the Supreme Court in Morton, as follows: It is clear that an organization whose members are injured may represent those members in a proceeding for judicial review. See, e.g., NAACP v. Button, 371 U.S. 415, 428, 83 S.Ct. 328, 335, 9 L.Ed.2d 405. But a mere "interest in a problem," no matter how longstanding *344 the interest and no matter how qualified the organization is in evaluating the problem, is not sufficient by itself to render the organization "adversely affected" or WESTLAW "aggrieved" within the meaning of the APA. The Sierra Club is a large and long-established organization, with a historic commitment to the cause of protecting our Nation's natural heritage from man's depredations. But if a "special interest" in this subject were enough to entitle the Sierra Club to commence this litigation, there would appear to be no objective basis upon which to disallow a suit by any other bona fide "special interest" organization however small or short-lived. And if any group with a bona fide "special interest" could initiate such litigation, it is difficult to perceive why any individual citizen with the same bona fide special interest would not also be entitled to do so. Id. at 739-40, 92 S.Ct. 1361. As discussed above, Florida case law clearly requires more concrete injury than that alleged by the Plaintiffs. On this point the U.S. Supreme Court has previously recognized the requirement of an injury is specific —it requires a "concrete and particularized" injury in fact which "must affect the plaintiff in a personal and individual way," does not allow legal redress for any imaginable injury, and is not "an ingenious academic exercise in the conceivable." Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 566, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). In Lujan, Justice Scalia expressed doubts that the Defenders of Wildlife had alleged sufficient injury to demonstrate standing, simply because a person's aesthetic viewing of a particular species in a particular area of the world was in danger of becoming less pleasurable. Id. at 566, 112 S.Ct. 2130. This argument is "pure speculation and fantasy." Id. To be sure, the Court opined that if a person could show they were observing a threatened species in a particular area of the world and that specific area was threatened, it was "plausible —though it goes to the outermost limit of plausibility" that such a person might have standing. Id. In this case, although the aesthetic viewing argument expressed by the Plaintiffs in this case stretches plausibility for the same reasons, it is somewhat closer to satisfying the constitutional requirement of standing because of Plaintiffs' demonstrated proximity. However, there is an additional problem with Plaintiffs' argument. Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk Save Homosassa River Alliance, Inc. v. Citrus County, Fla., 2 So.3d 329 (2008) 33 Fla. L. Weekly D2490 To demonstrate such an injury, the party seeking redress must state "specific facts" demonstrating "that one or more of respondents' members would thereby be directly affected" by the challenged action. Id. at 563, 112 S.Ct. 2130. This was not accomplished here. Plaintiffs' bare -bones allegations that the increases in density will affect their use of the river is, without more, "pure speculation and fantasy" and is insufficient to show the requisite actual, concrete injury. Because the Second Amended Complaint was fatally defective, the trial judge did not abuse his discretion in dismissing it with prejudice. The standard for reviewing a lower court's dismissal with prejudice is abuse of discretion. Sonny Boy, L.L.C. v. Asnani, 879 So.2d 25, 28-29 (Fla. 5th DCA 2004). Refusal to allow amendment of a pleading constitutes an abuse of discretion unless it clearly appears that allowing the amendment would prejudice the opposing party, the privilege to amend has been abused, or amendment would be futile. Id. While amendments should generally be liberally granted so that cases may be concluded on their merits, "there is an equally compelling obligation on the court to see to it that the end of all litigation be finally reached." Price v. Morgan, 436 So.2d 1116, 1122 (Fla. 5th DCA 1983). *345 Thus, "a trial judge in the exercise of sound discretion may deny further amendments where a case has progressed to a point that liberality ordinarily to be indulged has diminished." Id. The trial court's order denying motion for rehearing demonstrates that dismissal with prejudice was appropriate in this case because further amendment would be futile and would cause prejudice to the defendants. It states: After extensive argument on the defendant's and intervenor's motions to dismiss plaintiffs' Amended Complaint at which time it was thoroughly explained why the facts urged by plaintiffs did not meet the requirements for standing, the court dismissed plaintiffs' complaint but with leave to amend. Although the court inquired at that hearing what additional facts plaintiffs might be able to allege on amendment, plaintiffs' counsel objected to "going outside the record" and insisted that the court rule on the four corners of the complaint. The court gave plaintiffs the benefit of the doubt that they might have additional facts bearing on standing that could be alleged and permitted an amendment. Plaintiffs' second amended complaint also failed to allege sufficient facts showing that plaintiffs were any more affected by the challenged action of the County Commission than any other member of the community. WESTLAW And this is understandable. Plaintiffs cannot invent facts. They now live no closer to the project so that its noise affects them and the shadows case by the buildings still does not fall on plaintiffs' property. Although there was no contention before the County Commission that the project would affect the quality of the water in the Homosassa River, plaintiffs are unable to allege any greater right to the river than the general public. And although the number of units may permit some growth in the area and the buildings may not be consistent with the character of Old Homosassa, these allegations affect all of the citizens in Old Homosassa equally. When delay will prevent the construction of an approved but undesired development, then one may win by losing if the losing process is sufficiently long. In this case, it has been long enough. Plaintiffs have had ample opportunity to show standing if they could. Further delay will not help them. The plaintiffs in this case made three attempts to plead standing and they failed. "Generally three ineffective attempts to state the same cause of action are enough." Henry P. Trawick, Jr., Florida Practice and Procedure § 14-3 at 267 (2007-08 ed.). Most trial judges use the "three strikes and you're out" standard. The record amply demonstrates that the plaintiffs were incapable of pleading sufficient ultimate facts to confer standing. As the trial court noted above, at the hearing on the First Amended Complaint, the court asked the plaintiffs' attorney what additional facts could be alleged and she objected to going "outside the record." Nevertheless, the court entered an order explaining why the complaint was deficient and gave the plaintiffs an opportunity to allege additional ultimate facts. The plaintiffs then filed the Second Amended Complaint, which was also deficient. At the hearing on the motion to dismiss that complaint, plaintiffs' counsel candidly stated: [W]e wouldn't have the second amended complaint, had they not filed a motion to dismiss. What they have been successful in doing is creating —you know, basically making sure that we have a non -assailable complaint once it's time for the matter to be finally resolved, because *346 we have now had two opportunities to dot Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk Save Homosassa River Alliance, Inc. v. Citrus County, Fla., 2 So.3d 329 (2008) 33 Fla. L. Weekly D2490 all the I's and cross all the T's after they have alleged we missed some of those. At no time, either in their motion for rehearing or in this appeal, have the plaintiffs demonstrated what further amendment would be made if given another opportunity to amend. See Price, 436 So.2d at 1122 (noting that appellants failed to demonstrate what further amendment could be made if given the opportunity). Based on the trial judge's reasoning and the record facts supporting it, the plaintiffs have failed to prove that he abused his discretion in dismissing the case with prejudice. To conclude otherwise, as the majority does, is simply to ignore the appellate standard which we are bound to follow. I feel compelled to add the following observations from my experience in this area of the law. No doubt the plaintiffs in this case are honest, sincere people who care deeply about the future of the Homosassa River. My remarks about certain so-called "environmentalists gadflies" should not be interpreted as a reference to them. Footnotes 2 3 4 5 6 7 The opinion of Judge Griffin will be cited and used to open the floodgates to the environmental gadflies of the world. They will file spurious complaints which challenge rezoning on the basis that it violates the comprehensive plan. Local government will be hampered in doing what it is supposed to do. Property rights will be trampled by the delays. People who disagree with local decisions will find solace in the judicial branch by virtue of this Court's new-found authority which opens the courthouse door to attempts to overturn the decisions of local, duly -elected officials. Every gadfly with some amorphous environmental agenda, and enough money to pay a filing fee, will be anointed with status simply because the gadfly wants to "protect the planet." The environmental gadfly will win every time, not on the merits, but because, in the words of the trial judge, "[w]hen delay will prevent the construction of an approved but undesired development, then one may win by losing if the losing process is sufficiently long." For those who respect property rights, look out! All Citations 2 So.3d 329, 33 Fla. L. Weekly D2490 Resort's site is designated on the County's generalized future land use map, ("GFLUM"), as CL, Low Intensity Coastal Lakes, which allows a maximum density of one (1) unit per 20 acres, is located in Flood Plain A-11, and is located in the Coastal High Hazard Zone. Specifically, the County and Resort assert in their motion: There exists no allegations within the complaint that establish how the height of the building or the net increase in units will adversely impact the Alliance' [sic] educational purpose or interest in the manatee, Bitter's ability to fish in the river, Rendueles' ability to bicycle through Old Homosassa, or Watkins' ability to walk down the streets in Old Homosassa. The canal that Rendueles' property is on is part of the Homosassa River system and opens to the River at Resort's site. Plaintiffs assert that the water system that the individual plaintiffs would share with Resort had "expressed concems regarding the volume of water it will be able to supply because of [Resorts] project demands." The Old Homosassa Redevelopment Area Plan is incorporated into the County's Land Development Code as section 4680. The action underlying this appeal was brought pursuant to section 163.3215(3), Florida Statutes. Section 163.3164(17), Florida Statutes (2007), provides that, as used in the Local Government Comprehensive Planning and Land Development Regulation Act, "[p]erson means an individual, corporation, govemmental agency, business trust, estate, trust, partnership, association, two or more persons having a joint or common interest, or any other legal entity." WESTLAW Save Homosassa River Alliance, Inc. v. Citrus County, Fla., 2 So.3d 329 (2008) 33 Fla. L. Weekly D2490 9 10 11 In Florida Rock Properties, 709 So.2d at 177, this Court wrote: Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk "[K]eyser's standing to challenge the Board's zoning decision depends on (1) whether the personal and professional interests he alleged are 'protected or furthered by' Putnam County's comprehensive plan; if so, (2) whether those interests are greater than the general interest in community well being; and (3) whether the interests are or will be adversely affected by the challenged zoning decision." (Emphasis added). In Stranahan House, Inc., 967 So.2d at 434, the Fourth District wrote: Stranahan and Friends meet the test for standing outlined in Florida Rock Properties v. Keyser, 709 So.2d 175, 177 (Fla. 5th DCA 1998). The interests alleged are protected by the City's comprehensive plan, they are greater than the general interest in community well-being, and the interests will be adversely affected by the development. (Emphasis added). "Keyser is a citizen with an interest in the environment and nothing more." 709 So.2d at 177. As for the trial court's denial of Plaintiffs' request to further amend the complaint in light of the dismissal, Plaintiffs had not abused the privilege to amend. Accordingly, the trial court also erred in dismissing Plaintiffs' complaint "with prejudice." End of Document © 2018 Thomson Reuters. No claim to original U.S. Government Works. WESTLAW • Submitted into the public record for item(s) PZ.1 on 12/13/2018 , City Clerk Save Homosassa River Alliance, Inc. v. Citrus County, Fla., 2 So.3d 329 (2008) 33 Fla. L. Weekly D2490 KeyCite Yellow Flag - Negative Treatment Distinguished by Martin County Conservation Alliance v. Martin County, Fla.App. 1 Dist., June 21, 2010 2 So.3d 329 District Court of Appeal of Florida, Fifth District. SAVE the HOMOSASSA RIVER ALLIANCE, INC., et al., Appellant, v. CITRUS COUNTY, FLORIDA, et al., Appellee. No. 007-2545. Oct. 24, 2008. Rehearing Denied Feb. 19, 2009. Synopsis Background: Environmental group and area landowners brought action against county and property owner, challenging county's approval of property owner's application to build residential buildings on property adjacent to river, which was essential manatee habitat. The Circuit Court, Citrus County, Charles M. Harris, Senior Judge, dismissed action for lack of standing. Plaintiffs appealed. [Holding:] The District Court of Appeal, Griffin, J., held that plaintiffs had standing to bring action. Reversed and remanded. Pleus, J., filed dissenting opinion. West Headnotes (9) 111 Zoning and Planning Comprehensive or general plan A "local comprehensive land use plan" is a statutorily mandated legislative plan to control and direct the use and development of property within a county or municipality; the plan is WESTLAW 121 131 141 likened to a constitution for all future development within the governmental boundary. West's F.S.A. § 163.3167. Cases that cite this headnote Zoning and Planning ...Right of Review; Standing As a remedial statute, statute that enlarges class of persons with standing to challenge development order as inconsistent with local comprehensive land use plan is to be liberally construed to advance the intended remedy. West's F.S.A. § 163.3215. Cases that cite this headnote Zoning and Planning ..*Right of Review; Standing The purpose of statute governing standing to appeal and challenge the consistency of a development order with a local comprehensive land use plan is to liberalize standing. West's F.S.A. § 163.3215. Cases that cite this headnote Zoning and Planning Right of Review; Standing A person's standing to bring a challenge under statute governing actions challenging a local government's development order as being inconsistent with local comprehensive land use plan depends on (1) whether the interests the person alleges are protected or furthered by the local government comprehensive plan, if so, (2) whether those interests exceed in degree the general interest in community good shared by all persons, and (3) whether the interests will Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk Save Homosassa River Alliance, Inc. v. Citrus County, Fla., 2 So.3d 329 (2008) 33 Fla. L. Weekly D2490 151 161 be adversely affected by the challenged decision. West's F.S.A. § 163.3215(2, 3). 2 Cases that cite this headnote Zoning and Planning .Right of Review; Standing Under statute governing standing regarding actions challenging a local government's development order as being inconsistent with local comprehensive land use plan, requirement that a person must allege an interest that exceeds "in degree the general interest in community good shared by all persons" simply means that a party must allege that they have an interest that is something more than a general interest in community well being. West's F.S.A. § 163.3215(2). Cases that cite this headnote Zoning and Planning .Permits, certificates, and approvals Environmental group and area landowners had standing to bring action challenging county's approval of property owner's application to build residential buildings on property adjacent to river as being inconsistent with local comprehensive land use plan; group sought to protect river from problems associated with improper and ineffective storm water management systems, overpopulation of lands adjacent to river, and destruction of wetlands surrounding river, and group and landowners all had direct and demonstrated concern for protection of interests furthered by comprehensive plan that would be adversely affected by allowing development that violated plan. West's F.S.A. § 163.3215(2, 3). Cases that cite this headnote WESTLAW 171 181 191 Zoning and Planning .....Right of Review; Standing The "greater -in -degree" part of the test for standing to bring action challenging a local government's development order as being inconsistent with local comprehensive land use plan self -evidently would be met if the plaintiff is an adjacent property owner. West's F.S.A. § 163.3215(2). 1 Cases that cite this headnote Zoning and Planning .Right of Review; Standing Statutory test for standing to bring action challenging a local government's development order as being inconsistent with local comprehensive land use plan is directed to the quality of the interest of the person seeking standing; there is no requirement of a unique harm relative to the general population. West's F.S.A. § 163.3215(2, 3). Cases that cite this headnote Zoning and Planning .Dismissal Dismissal of second amended complaint for lack of standing was required to be without prejudice rather than with prejudice in action challenging county's approval of property owner's application to build residential buildings on property adjacent to river as being inconsistent with local comprehensive land use plan; plaintiffs had not abused privilege to amend. West's F.S.A. § 163.3215(2, 3). Cases that cite this headnote Attorneys and Law Firms Save Homosassa River Alliance, Inc. v. Citrus County, Fla., 2 So.3d 329 (2008) 33 Fla. L. Weekly D2490 *331 Denise A. Lyn, of Denise A. Lyn, P.A., Inverness, for Appellant. Michele Lieberman, of Law Office of Michele L. Lieberman, LL, Inverness, for Appellee. Carl A. Bertoch, Crystal River, for Intervenor, Homosassa Riverside Resort, LLC. Opinion GRIFFIN, J. Save the Homosassa River Alliance, Inc., James Bitter, Rosemary Rendueles, and Priscilla Watkins [collectively "Plaintiffs"] appeal the trial court's order dismissing, with prejudice, their suit against Citrus County, Florida ["County"] and Homosassa River Resort, LLC ["Resort"] on the ground that they lack standing. Resort owns property adjacent to the Homosassa River ["River"] in Old Homosassa, Florida. The Homosassa River is an Outstanding Florida Waterway and an essential manatee habitat.' There are two buildings on Resort's site, containing fifteen residential condominium units. Resort applied to the County for a land development code atlas amendment "to allow the development and redevelopment of 87 condominium dwelling units, retail space, amenities and parking" on this property. The project would result in the construction of four four-story residential structures. On July 11, 2006, Citrus County's Board of County Commissioners enacted Ordinance No. 2006—A13, which approved Resort's application and amended the County's land development code to reflect the approval. Plaintiff Alliance is a not -for -profit corporation "committed to the preservation and conservation of environmentally sensitive lands and the wildlife in and around the Homosassa River and in Old Homosassa, Florida." Plaintiffs Bitter, Rendueles, and Watkins are individuals who own property in the area. On August 10, 2006, Plaintiffs filed this suit against the County, pursuant to section 163.3215, challenging the County's approval of Resort's application on the ground that it is inconsistent with the County's Comprehensive Land Use Plan, Citrus County Ordinance No. 89-04, as amended. On November 9, 2006, before the initial complaint was served on the County, Plaintiffs filed an Amended Complaint. Resort was allowed to intervene in the dispute and the County filed a motion to dismiss, arguing that the Plaintiffs had failed to plead sufficient facts to establish WESTLAW Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk standing. The trial court agreed and dismissed Plaintiffs' complaint, with twenty days to amend. *332 Plaintiffs filed their Second Amended Complaint against both the County and Resort, to which the County and Resort responded by filing a joint motion to dismiss. In their joint motion to dismiss, the County and Resort alleged that Plaintiffs had failed to establish standing because they had not sufficiently alleged (1) "any interest that exceeds in degree that of the general community," (2) "harm to such interests over and above that of their neighbors," or (3) "any nexus between the alleged comprehensive plan violations and the interests of the parties.'" The trial court heard arguments on the County and Resort's joint motion. At the hearing, Resort and the County essentially reiterated the points they had raised in their written motion and urged that the dismissal of the Second Amended Complaint be with prejudice. Plaintiffs argued that section 163.3215 gave affected citizens significantly enhanced standing to challenge the consistency of development decisions and that their allegations were sufficient to establish standing under this liberalized standard. On about July 2, 2007, the trial court dismissed the Second Amended Complaint with prejudice, concluding that Plaintiffs had failed to sufficiently allege that their interests were adversely affected by the project in a way not experienced by the general population and because of insufficient "nexus" allegations. The trial court observed that "[t]here are no allegations that the county -approved plan permits improper runoff into the river or that the proposed development will itself (other than by adding people to the mix) adversely affect the quality of water or access to the river." Additionally, the trial court noted that "[t]here is no indication that residents living in this proposed project would add any more burden to the streets, storm drainage, river crowding, etc. than residents living elsewhere in the city." Plaintiffs filed a motion for rehearing on July 11, 2007. In the motion for rehearing, Plaintiffs asserted that the trial court's analysis was not within the statute. They also objected that the trial court's dismissal "with prejudice" at that stage of the proceedings was premature and contrary to the existing case law. The trial court concluded that Plaintiffs had been given "ample opportunity to show standing if they could" and that they would not be helped by further delay. The trial court denied Plaintiffs' motion for rehearing. Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk Save Homosassa River Alliance, Inc. v. Citrus County, Fla., 2 So.3d 329 (2008) 33 Fla. L. Weekly D2490 The Second Amended Complaint Plaintiffs' Second Amended Complaint contains lengthy allegations in support of their standing to bring this suit. The complaint begins by introducing each of the plaintiffs (Alliance, Bitter, Rendueles, and Watkins). Alliance is a not -for -profit corporation committed to the preservation of the lands and the wildlife in and around the Homosassa River and Old Homosassa, Florida. The complaint explains that the group has "embarked on a specific and focused course" to protect the River from problems associated with improper and ineffective storm water management systems, overpopulation of the lands adjacent to the River, destruction of wetlands surrounding the River, degradation of the River's water quality, and excessive boat traffic upon the River. The group conducts *333 seminars to educate the area's residents about the River and how to preserve it. One of the Alliance's main objectives has been "the orderly development and preservation of the character of Old Homosassa." Members of the group use the River for both educational and recreational purposes; have invested substantial effort and funds to protect and preserve the River and its endangered manatees; and have served on the Old Homosassa Area Redevelopment Plan steering committee. The complaint alleges that Bitter is an active Alliance member who owns property about three miles from Resort's site. He is conscious of governmental actions that affect the health of the Homosassa River and participates actively in public conversations regarding development of the area. Bitter fishes in the River, frequently boats along it, and often visits its shores "to admire the beauty and wonder of the River and its wildlife." Additionally, Bitter receives potable water from the Homosassa Special Water District, fire protection from the County's fire department, police protection from the County's Sheriffs Department, and emergency services by Nature Coast EMS. Finally, it is alleged that in the event of a natural disaster or a threat of a natural disaster, Bitter would have to evacuate his property via West Fishbowl Drive, which is a two-lane road in Homosassa. "West Fishbowl Drive ... is along the evacuation route for [Resort's] property...." Rendueles owns canal -front real property less than a mile from Resort's site? Rendueles worked on the County's Old Homosassa Overlay steering committee and actively participated during the County's public hearings on Resort's application. Additionally, it is alleged that WESTLAW Rendueles "enjoys the beauty of nature by traveling down the Homosassa River and walking and bicycling along the streets in Old Homosassa." She often visits the River's shores "to admire the beauty and wonder of the River and its wildlife." Rendueles receives potable water from the Homosassa Special Water District, fire protection from the County's fire department, police protection from the County's Sheriff's Department, and emergency services by Nature Coast EMS. In the event of a natural disaster or a threat of a natural disaster, Rendueles would evacuate her property via W. Yulee Drive, which is a two-lane road in Homosassa. Watkins owns real property within Homosassa, Florida. She participates in Alliance's activities and actively participated during the County's public hearings on Resort's application. Watkins frequently kayaks on the River; bicycles along W. Halls River Road and W. Fishbowl Drive; and enjoys walking down Old Homosassa's uncrowded streets and roads. Watkins receives potable water from the Homosassa Special Water District, sewer services from Citrus County, fire protection from the County's fire department, police protection from the County's Sheriff's Department, and emergency services by Nature Coast EMS. In the event of a natural disaster or a threat of a natural disaster, Watkins would evacuate her property via W. Halls River Road, a two-lane road in Homosassa, which is along the evacuation route for Resort's property. Plaintiffs allege that "[b]ecause of the County's adoption of a development order which is inconsistent with its adopted Comprehensive Plan[,] [Plaintiffs] will suffer an adverse effect to their interests *334 furthered by the local government comprehensive plan...." In paragraph 27, Plaintiffs generally list protected interests that they claim will be adversely affected by the County's approval. Specifically, Plaintiffs allege: The Alliance and Property Owners, including the members of the corporation, will suffer adverse effects to interests protected or furthered by the adopted Plan, as amended, including but not limited to their property interests, their interest in protecting and maintaining the existing water quality of the Homosassa River, their interest in protecting the endangered Manatees, their Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk Save Homosassa River Alliance, Inc. v. Citrus County, Fla., 2 So.3d 329 (2008) 33 Fla. L. Weekly D2490 interest in sufficient water and wastewater infrastructure, their interests in efficient and equitable distribution of land uses in the area, their interests in reasonable investment -backed expectations in their area, their interests in land use, their interests in preserving the character of Old Homosassa, their interests related to health and safety, including the safety and efficiency of recreation facilities and streets, police and fire protection, densities or intensities of development, including the compatibility of adjacent land uses, their interest in environmental or natural resources and their interest in wetland preservation. In paragraphs 9 through 12, Plaintiffs allege how the harm they would each suffer "exceeds the harm caused to the public in general." With regard to Alliance, Plaintiffs allege: 12). Alliance will be harmed to a degree that exceeds the harm caused to the public in general because of the Alliance's investment of resources and volunteer activities to protect the health and welfare of the Homosassa River and to encourage environmentally sound development practices around the Homosassa River. Its tireless efforts to educate the public and to encourage clean and environmentally sound development will be for naught if the County continues to allow development that is inconsistent with the goals and objectives of its Comprehensive Plan. With respect to each of the individual plaintiffs, Plaintiffs IL allege that Resort's proposed development activities would increase the number of people in the area and, WESTLAW accordingly, increase demands relating to public services, evacuation, traffic, and infrastructure.` It is alleged that, given their proximity to "the project and given [their] use of the same water system, roadway system ... waterway system," and in the case of Watkins, sewer system, "[Plaintiffs] will suffer harm to a greater degree than that of the public in general." Plaintiffs additionally allege that Bitter would "be harmed to a degree that exceeds the harm caused to the public in general" because of his participation in the local government process and his volunteer efforts to preserve and protect the River; that Rendueles would "be harmed to a degree that exceeds the harm caused to the public in general" due to her proximity to the development, her location in the Coastal High Hazard Area, and her location within the Old Homosassa Redevelopment Area; and that Watkins would "be harmed to a degree that exceeds the harm caused to the public in general" because of her proximity to the development, her location within the Coastal High Hazard Area, her use of the River, and her active use of the roads and streets within Old Homosassa. *335 Finally, the complaint contains allegations concerning the interests the comprehensive plan is intended to protect and how Resort's proposed project is inconsistent with the plan. Plaintiffs allege that the plan's provisions are intended to: a) Preserve, protect, and restore County's natural resources.... b) Protect and maintain the water quality of the ... Homosassa ... [River].... c) Provide the GFLUM be recognized as the primary document used by County in land use regulation and in guiding future growth. e) Provide that where County's LDC conflicts with or overlaps other regulations, whichever imposes the more stringent restrictions shall prevail. f) Limit residential structures in the coastal high hazard area to two (2) stories. g) Prohibit the expansion of R-2 occupancies in the coastal high hazard area. h) Limit structures in the Old Homosassa Redevelopment Area to two (2) stories over the first living floor. i) Require all structures constructed in the Old Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk 4,„ Save Homosassa River Alliance, Inc. v. Citrus County, Fla., 2 So.3d 329 (2008) 33 Fla. L. Weekly D2490 Homosassa Redevelopment Area to provide for a 10 foot step back of the second story over the first story. j) Require all development in the Old Homosassa Redevelopment Area to further the character and vision provided for Old Homosassa and to be compatible with existing structures in the area. k) Prohibit the development or expansion of general commercial uses within Old Homosassa. The complaint then alleges that the proposed development is inconsistent with the Plan, because it: a) Allows for the expansion of R-2 residential dwelling units in the coastal high hazard area. b) Allows for the construction of three (3) story over parking residential structures in the coastal high hazard area. c) Allows for the construction of structures that are not compatible with the character and vision of Old Homosassa. d) Allows for the construction of four (4) residential structures which do not provide for a step back of stories. e) Allows for increases in residential dwellings in the coastal high hazard area. f) Allows for the expansion or development of new commercial uses within Old Homosassa. g) Allows for the development of residential uses upon lands designated as GNC within Old Homosassa. The trial court's order indicates that it dismissed Plaintiffs' Second Amended Complaint because it found that Plaintiffs had failed to sufficiently allege that their interests were adversely "affected by the project in a way not experienced by the general population." Additionally, the trial court's order adopted the "nexus" argument of Resort and the County, ruling that "there must be some nexus between the alleged evil of the challenged action and the adverse [e]ffect claimed." WESTLAW *336 Controlling Law 1'1 "A local comprehensive land use plan is a statutorily mandated legislative plan to control and direct the use and development of property within a county or municipality. The plan is likened to a constitution for all future development within the governmental boundary." Machado v. Musgrove, 519 So.2d 629, 631-32 (Fla. 3d DCA 1987) (citations omitted). See also § 163.3167, Fla. Stat. (2007). Once a comprehensive plan has been adopted pursuant to the Local Government Comprehensive Planning and Land Development Regulation Act, "all development undertaken by, and all actions taken in regard to development orders by, governmental agencies in regard to land covered by such plan" must be consistent with that plan. § 163.3194(1)(a), Fla. Stat. (2007); see also § 163.3164(7), Fla. Stat. (2007). 121 131 Prior to 1985, common law governed a third party's standing to intervene to challenge a development order as inconsistent with the governing comprehensive plan. See Parker v. Leon County, 627 So.2d 476, 479 (F1a.1993), Citizens Growth Mgmt. Coal., Inc. v. City of W. Palm Beach, 450 So.2d 204, 206-08 (F1a.1984). The common law rule provided that, in order to have standing to challenge a land use decision, a party had to possess a legally recognized right that would be adversely affected by the decision or suffer special damages different in kind from that suffered by the community as a whole. Putnam County Envtl. Council, Inc. v. Bd. of County Comm'rs, 757 So.2d 590, 592-93 (Fla. 5th DCA 2000); Citizens Growth Mgmt. Coal., Inc., 450 So.2d at 206. In 1985, the Florida Legislature reacted to the Supreme Court's 1984 decision in Citizens Growth Management that the common law rules of standing applied to the Growth Management Act by enacting section 163.3215, Florida Statutes.6 Its stated purpose was "to ensure the standing for any person who 'will suffer an adverse effect to an interest protected ... by the ... comprehensive plan.' " Parker, 627 So.2d at 479 (citing § 163.3215(2), Fla. Stat. (1985)); see also Edu. Dev. Ctr., Inc. v. Palm Beach County, 751 So.2d 621, 623 (Fla. 4th DCA 1999) (section 163.3215 is a remedial statute in that it "enlarged the class of persons with standing to challenge a development order as inconsistent with the comprehensive plan"). As a remedial statute, section 163.3215 is to "be liberally construed to advance the intended remedy...." Edu. Dev. Ctr., Inc., 751 So.2d at 623; see also Dunlap v. Orange County, 971 So.2d 171, 174 (Fla. 5th DCA 2007). There is no doubt that the purpose of the adoption of section 163.3215 was to liberalize standing in this context. See City of Ft. Myers v. Splitt, 988 So.2d 28 (Fla. 2d DCA 2008). 141 In part, section 163.3215(3), Florida Statutes (2007), Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk Save Homosassa River Alliance, Inc. v. Citrus County, Fla., 2 So.3d 329 (2008) 33 Fla. L. Weekly D2490 provides: Any aggrieved or adversely affected party may maintain a de novo action for declaratory, injunctive, or other relief against any local government to challenge any decision of such local government granting or denying an application for, or to prevent such local government from taking any action on, a development order, as defined in s. 163.3164, which materially alters the use or density or intensity of use on a particular piece of property which is not consistent with the comprehensive plan adopted under this part. *337 Further, section 163.3215(2), Florida Statutes (2007), provides: As used in this section, the term "aggrieved or adversely affected party" means any personil or local government that will suffer an adverse effect to an interest protected or furthered by the local government comprehensive plan, including interests related to health and safety, police and fire protection service systems, densities or intensities of development, transportation facilities, health care facilities, equipment or services, and environmental or natural resources. The alleged adverse interest may be shared in common with other members of the community at large but must exceed in degree the general interest in community good shared by all persons. The term includes the owner, developer, or applicant for a development order. WESTLAW c (Emphasis added). Thus, a person's standing to bring a challenge under section 163.3215(3) depends on (1) whether the interests the person alleges are "protected or furthered by the local government comprehensive plan"; if so, (2) whether those interests "exceed in degree the general interest in community good shared by all persons"; and (3) whether the interests will be adversely affected by the challenged decision. See § 163.3215(2), Fla. Stat. (2007); see also Fla. Rock Props. v. Keyser, 709 So.2d 175, 177 (Fla. 5th DCA 1998). 151 There is nothing obscure about the statutory language requiring a person seeking standing to allege an interest that "[exceeds] in degree the general interest in community good shared by all persons" to establish standing. It simply means that a party must allege that they have an interest that is something more than "a general interest in community well being." See Keyser, 709 So.2d at 1778; see also Stranahan House, Inc. v. City of Fort Lauderdale, 967 So.2d 427, 434 (Fla. 4th DCA 2007).9 The statute does not say that a party must be harmed to a greater degree than the general public. Not surprisingly, the case law assumes that an organization has an interest that is greater than "the general interest in community well being" when the organization's primary purpose includes protecting the particular interest that they allege will be adversely affected by the comprehensive plan violation. See Stranahan House, Inc., 967 So.2d at 434. The old common law test was so narrowly drawn that there often was no means of redress for a comprehensive plan violation. The expanded statutory test eliminates *338 "gadfly" litigation, yet gives oversight to the segment of the public that is most likely to be knowledgeable about the interest at stake and committed to its protection. The statute expressly identifies by multiple examples the kinds of interests the legislature intended to protect: As used in this section, the term "aggrieved or adversely affected party" means any person or local government that will suffer an adverse effect to an interest protected or furthered by the local government comprehensive plan, including interests related to health and safety, police and fire protection service systems, densities or intensities of development, transportation facilities, health care facilities, equipment or services, and environmental or natural resources. § 163.3215(2), Fla. Stat. (2007) (emphasis added). Application of the statutory test is illustrated by comparing two of the leading cases previously decided by this court. In Keyser, Timothy Keyser had filed a lawsuit Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk Save Homosassa River Alliance, Inc. v. Citrus County, Fla., 2 So.3d 329 (2008) 33 Fla. L. Weekly D2490 challenging the decision of the Putnam County Commission to rezone a 509 acre parcel of Florida Rock Properties' land from agricultural to mining. This Court held that Keyser's allegation that the Commission's decision "would adversely affect his quality of life by its negative impact upon wildlife populations and habitats in Putnam County" was insufficient to establish standing. 709 So.2d at 177. In explaining why the allegation was insufficient, this Court said, "Keyser never demonstrated any specific injury, only that the county would not be as bucolic as it once was. Keyser is a citizen with an interest in the environment and nothing more." Id. In Putnam County Environmental Council, Inc., a company owned a piece of land adjacent to the Etoniah Creek State Forest, which was zoned for agricultural use. The company and the local school board "applied for a special exception to the county's comprehensive plan to allow the construction of a regional middle school complex on" the company's property. 757 So.2d at 591. The application was approved, and the Putnam County Environmental Council ["PCEC"] subsequently filed a complaint, seeking to enforce Putnam County's comprehensive plan pursuant to chapter 163. The trial court concluded that PCEC lacked standing to challenge the order under section 163.3215 and dismissed the action on that basis. It its complaint, PCEC alleged that its "primary organizational purposes and activities include the study and protection of natural resources and the advocacy of sound land use and growth management policies affecting the environment"; that its officers and members had "initiated and facilitated the original public acquisition of the Etoniah Creek State Forest"; and that "[a] substantial number of [its] members, along with non-members who participate in PCEC-sponsored activities, use the Etoniah Creek State Forest for recreational and educational purposes." Putnam County Envtl. Council, Inc., 757 So.2d at 592. Additionally, PCEC alleged: The use allowed under the special exception will adversely affect PCEC's use and its members' use of the adjacent Etoniah Creek State Forest as natural resource area. The use of the subject parcel for a school will adversely impact the ability of the Division of Forestry to use controlled burns to manage WESTLAW the adjacent state forest. Without controlled burns, habitat for a variety of species in the Etoniah Creek State Forest will be reduced or eliminated, thus adversely affecting the ability of PCEC, its members, and others who participate in *339 PCEC-sponsored activities to observe or study those species. Also, without controlled burns, much of the forest will become overgrown with understory species, thus adversely affecting the ability of PCEC, its members, and others who participate in PCEC-sponsored activities to access and hike portions of Etoniah Creek State Forest. Furthermore, the physical presence of a school plant as well as the increased traffic and the activity, lights, and noise associated with a school facility, athletic fields, parking lots, and school bands are incompatible with Etoniah Creek State Forest's nature -based recreation and will discourage and interfere with the ability of wide-ranging species such as the black bear to reach or remain in the state forest. This will adversely affect the ability of PCEC, its members, and others who participate in PCEC-sponsored activities to observe or study those species.... Id. 161 In holding that PCEC had made sufficient allegations to establish standing, this Court said: [H]ere PCEC's complaint alleged specific injuries that PCEC would suffer if a middle school complex was constructed on Roberts' property, including the destruction of the habitat of species being studied by PCEC members and the elimination of PCEC members' access to the forest and the forest's creatures by the overgrowth of the forest. The diminution of species being studied by the group is a harm particular to PCEC, making PCEC more than just a group with amorphous "environmental concerns." Accordingly, the Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk L Save Homosassa River Alliance, Inc. v. Citrus County, Fla., 2 So.3d 329 (2008) 33 Fla. L. Weekly D2490 allegations set forth in PCEC's complaint are sufficient to demonstrate the requisite level of interest. PCEC's involvement in the original acquisition of the land for use as a state forest and its continued, active connection with that state forest further demonstrate an interest greater than that which all persons share in the community good. Id. at 593-94. 171 On appeal, Plaintiffs begin with the premise that the trial court's dismissal order was based on the trial court's view that in order to have standing to mount a section 163.3215 challenge, the plaintiff must own real property adjacent to or very near the parcel at issue. It is true that there is much in the appealed order to suggest that was the court's view. We do not believe the court's analysis to be quite so narrow, however. It does appear that the trial court had difficulty envisioning how the "greater -in -degree" part of the statutory test for standing could be met if the plaintiff did not own adjacent real property. The "greater -in -degree" part of the test self -evidently would be met if the plaintiff is an adjacent property owner. Everyone else has to figure out how to surmount the tag -line test in Keyser,10 i.e., how to be "something more" than just a "citizen with an interest in the environment." The County contends that Plaintiffs' complaint lacks "facts sufficient to establish that the impact upon their educational efforts, enjoyment of the outdoors and use of government services is to a greater degree than others with the community," and that Plaintiffs have failed to establish precisely how the alleged comprehensive plan violations, which relate to increased height and density, would impact their interests *340 (i.e. their educational efforts, enjoyment of the outdoors and use of government services) to any greater degree than the Old Homosassa community as a whole. In its separate Answer Brief, Resort similarly asserts that Plaintiffs failed to specifically identify an "adverse interest or impact that" they "could expect to occur due to [its] proposed hotel expansion" and failed to show that their "interests are adversely affected in a way not experienced by the general population." 181 Plaintiffs contend that the trial court's dismissal should be reversed because they have alleged concrete and specific adverse interests that exceed in degree the general interest in community good shared by all. Plaintiffs maintain that it is not necessary for them to show that they will suffer a unique harm and reject the appellees' position as being outside the express language WESTLAW and intent of the statute. We agree with Plaintiffs that the statutory test is directed to the quality of the interest of the person seeking standing; there is no requirement of a unique harm relative to the general population. The allegations of the Second Amended Complaint amply demonstrate that each of the plaintiffs has an interest that is greater than "a general interest in community good shared by all persons." The allegations show that the Plaintiffs all have a direct and demonstrated concern for the protection of the interests furthered by the comprehensive plan that would be adversely affected by allowing a development that violates the plan. An interpretation of the statute that requires harm different in degree from other citizens would eviscerate the statute and ignore its remedial purpose. It drags the statute back to the common law test. The statute is designed to remedy the governmental entity's failure to comply with the established comprehensive plan, and, to that end, it creates a category of persons able to prosecute the claim. The statute is not designed to redress damage to particular plaintiffs. To engraft such a "unique harm" limitation onto the statute would make it impossible in most cases to establish standing and would leave counties free to ignore the plan because each violation of the plan in isolation usually does not uniquely harm the individual plaintiff. Rather, the statute simply requires a citizen/plaintiff to have a particularized interest of the kind contemplated by the statute, not a legally protectable right. 191 In sum, we conclude that the Second Amended Complaint adequately alleges Plaintiffs' standing to challenge the County's alleged failure to comply with its comprehensive plan in approving Resort's project." We accordingly reverse and remand for further proceedings. REVERSED and REMANDED. SAWAYA, J., concurs. PLEUS, J., dissents, with opinion. PLEUS, J., dissenting. I dissent. The able and sage trial judge understood the case law and applied it properly. He correctly dismissed this case with prejudice for lack of standing because the plaintiffs repeatedly failed to allege any adverse effects, impact or harm they would suffer from the proposed Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk L Save Homosassa River Alliance, Inc. v. Citrus County, Fla., 2 So.3d 329 (2008) 33 Fla. L. Weekly D2490 development that was unique to them. Without it being unique to them, their interest cannot exceed in degree the general interest in the community good shared by all persons. The majority opinion eviscerates the "adverse *341 effect" element of the standing requirement in subsection 163.3215(2), Florida Statutes, and stands in direct conflict with the case law interpreting that statute. Subsection 163.3215(2) defines an "aggrieved or adversely affected party" as "any person or local government which will suffer an adverse effect to an interest furthered by the local government comprehensive plan...." (Emphasis added). It further states that "[t]he alleged adverse interest may be shared in common with other members of the community at large but must exceed in degree the general interest in community good shared by all persons." (Emphasis added). The cases discussing this section have uniformly interpreted it as requiring factual allegations that plaintiffs will suffer adverse effects and that those adverse effects will be greater than those suffered by the community at large. See Dunlap v. Orange County, 971 So.2d 171 (Fla. 5th DCA 2007); Stranahan House, Inc. v. City of Fort Lauderdale, 967 So.2d 427 (Fla. 4th DCA 2007); Payne v. City of Miami, 927 So.2d 904 (Fla. 3d DCA 2005); Edgewater Beach Owners Ass'n, Inc. v. Walton County, 833 So.2d 215 (Fla. 1st DCA 2002), receded from on other grounds, Bay Point Club, Inc. v. Bay County, 890 So.2d 256 (Fla. 1st DCA 2004); Putnam County Envtl. Council, Inc. v. Bd. of County Comm'rs, 757 So.2d 590, 592-93 (Fla. 5th DCA 2000) Florida Rock Props. v. Keyser, 709 So.2d 175, 177 (Fla. 5th DCA 1998); Pichette v. City of N. Miami, 642 So.2d 1165 (Fla. 3d DCA 1994); Sw. Ranches Homeowners Ass'n, Inc. v. Broward County, 502 So.2d 931 (Fla. 4th DCA 1987). Florida Rock, in my view, is a correct analysis of the statute. It tells us two things. Owning real property in the vicinity of the rezoning, and being concerned about the effects of the rezoning, is not sufficient to confer jurisdiction. The rezoning must have a specific impact or involve some harm on or to the property owner or his property. For example, in Dunlap, this Court concluded that the plaintiffs had standing in part because "as owners of property fronting the lake on which Country Lake Estates is being developed, their interests will be affected by M/I Homes' boat ramp construction to an extent which is greater than those held by general members of the community who do not own such lake -front property." 971 So.2d at 175. WESTLAW In Stranahan House, the Fourth District held that the plaintiff sufficiently pled an adverse effect by alleging that as the adjoining property owner, Stranahan House would be negatively affected by "increased traffic and the activity, lights, alteration of Stranahan's enjoyment of light and air, the visual and audio pollution caused by the development and the effect of the shadow cast over the Stranahan property at certain times of the year." 967 So.2d at 433-34. In Payne, the Third District found that the plaintiffs had sufficiently alleged that they would suffer "adverse effects, exceeding the general interests shared by the community at large," by alleging they would suffer specific injuries to their ability to conduct business along the river due to depletion of available sites for marine industrial use by the conversion of industrial land to residential and commercial uses. 927 So.2d at 909. In Edgewater Beach, the First District found that the plaintiff homeowners association demonstrated standing at trial by testifying that an adjacent proposed development would block members' ocean views, thereby reducing their property values, and it would place their recreational facilities in shade until noon. 833 So.2d at 220. *342 In Putnam County Envtl. Council, this Court held that the plaintiff organization sufficiently alleged adverse effects by asserting "specific injuries" it would suffer, including destruction of the habitat of species its members studied and elimination of members' access to the forest and its creatures by overgrowth from discontinuation of controlled burns. 757 So.2d at 593. This Court concluded that such alleged adverse effects were "particular" to the plaintiff organization, making it more than just a group with amorphous environmental concerns. Id. In Florida Rock, this Court held that the plaintiff lacked standing because he failed to show that he would suffer an adverse effect or specific injury from the proposed development. Although the plaintiff alleged generally that the proposed development would "affect his quality of life" and that the County would not be as bucolic as it once was, this Court noted that the alleged injury should be "unique" and "specific" to the plaintiff. It further instructed, "Had Keyser lived adjacent to the property, and had he been able to show a specific impact the zoning change would have upon him or his property, he would have standing." 709 So.2d at 177. In Pichette, the Third District affirmed a summary judgment for lack of standing because the plaintiffs failed to demonstrate that they would be affected by "noise, Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk Save Homosassa River Alliance, Inc. v. Citrus County, Fla., 2 So.3d 329 (2008) 33 Fla. L. Weekly D2490 'lbw, traffic impact, land value diminution, or and any other respect by the proposed zoning ordinance." 642 So.2d at 1166. In Southwest Ranches, the Fourth District held that the plaintiffs sufficiently alleged standing by asserting that they were a group of landowners who would be directly affected by a proposed adjacent landfill's pollution, flooding and deterioration of the potable water supply. 502 So.2d at 934-35. In the instant case, the plaintiffs failed to allege that they would suffer any adverse effect from the proposed development, much less any that would affect them to a greater degree than the community at large. The complaint alleges that the individual plaintiffs will suffer harm because the proposed development will increase demands on the potable water, sewer, traffic, evacuation, police and infrastructure systems. Simply alleging that development will increase demands on various resources does not equate to an adverse effect on an individual plaintiff. Instead, the complaint must allege ultimate facts showing how or why increased demands will result in adverse impacts to the plaintiffs. See Fla. R. Civ. P. 1.110(b) (requiring a "short and plain statement of ultimate facts showing pleader is entitled to relief"); Williams v. Howard, 329 So.2d 277 (F1a.1976) (noting that a "bare assertion" that one's legal rights will be affected, without alleging how or why, is not sufficient to establish standing to file a declaratory judgment action). For example, will the increased numbers of people and demands arising from the proposed development degrade the plaintiffs' water quality? Will they reduce the plaintiffs' access to potable water? Will they increase the price plaintiffs pay for potable water? Will they reduce plaintiffs' access to fishing, boating and other activities in the Homosassa River? Will they cause increased response times from police and fire to plaintiffs' residences? Will they prevent plaintiffs from timely evacuating in an emergency? And, if so, how are any of these adverse effects suffered by the plaintiffs to a greater degree than the community at large? The complaint fails to allege any ultimate facts demonstrating that the plaintiffs will suffer adverse effects, much less adverse effects greater than the community at large. *343 The complaint also alleges that the Alliance and the individual plaintiffs will be adversely affected because their "investment of resources and volunteer activities" to protect the river, educate the public and encourage responsible development will be "for naught" if the County continues to allow development that is inconsistent with the Comprehensive Plan. A similar WESTLAW argument was soundly rejected by the United States Supreme Court in Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972), a case this Court followed in Florida Rock. There, the Sierra Club had attempted to establish standing under a similar statutory requirement in the Administrative Procedure Act that it allege an "adverse effect." Discussing the purpose for this requirement, the Court stated: The requirement that a party seeking review must allege facts showing that he is himself adversely affected does not insulate executive action from judicial review, nor does it prevent any public interests from being protected through the judicial process. It does serve as at least a rough attempt to put the decision as to whether review will be sought in the hands of those who have a direct stake in the outcome. That goal would be undermined were we to construe the APA to authorize judicial review at the behest of organizations or individuals who seek to do no more than vindicate their own value preferences through the judicial process. Id. at 1368-69 (footnote omitted; emphasis added). In this case, the majority concludes without any supporting analysis that the plaintiffs sufficiently allege that they will be "adversely affected by allowing a development that violates the plan." The majority's conclusion suffers from the same fatal flaw as the complaint itself —it is unsupported by any allegations of ultimate facts showing how or why the alleged violations will adversely affect the plaintiffs, and do so to a greater degree than the community at large. More troubling is the majority's contradictory statement that a showing of harm is not required at all. It states: Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk Save Homosassa River Alliance, Inc. v. Citrus County, Fla., 2 So.3d 329 (2008) 33 Fla. L. Weekly D2490 An interpretation of the statute that requires harm different in degree from other citizens would eviscerate the statute and ignore its remedial purpose. It drags the statute back to the common law test. The Statute is designed to remedy the governmental entity's failure to comply with the established comprehensive plan, and, to that end, it creates a category of persons able to prosecute the claim. The statute is not designed to redress damage to particular plaintiffs. To engraft such a "unique harm" limitation onto the statute would make it impossible in most cases to establish standing and would leave counties free to ignore the plan because each violation of the plan in isolation usually does not harm the individual plaintiff. Rather, the statute simply requires a citizen/plaintiff to have a particularized interest of the kind contemplated by the statute, not a legally protectable right. This analysis is incorrect. By interpreting the statute as requiring only a particularized interest and not a particularized harm, it contravenes the plain language of the statute and conflicts with prior case law from this and other districts. It also leads to the danger described by the Supreme Court in Morton, as follows: It is clear that an organization whose members are injured may represent those members in a proceeding for judicial review. See, e.g., NAACP v. Button, 371 U.S. 415, 428, 83 S.Ct. 328, 335, 9 L.Ed.2d 405. But a mere "interest in a problem," no matter how longstanding *344 the interest and no matter how qualified the organization is in evaluating the problem, is not sufficient by itself to render the organization "adversely affected" or WESTLAW "aggrieved" within the meaning of the APA. The Sierra Club is a large and long-established organization, with a historic commitment to the cause of protecting our Nation's natural heritage from man's depredations. But if a "special interest" in this subject were enough to entitle the Sierra Club to commence this litigation, there would appear to be no objective basis upon which to disallow a suit by any other bona fide "special interest" organization however small or short-lived. And if any group with a bona fide "special interest" could initiate such litigation, it is difficult to perceive why any individual citizen with the same bona fide special interest would not also be entitled to do so. Id. at 739-40, 92 S.Ct. 1361. As discussed above, Florida case law clearly requires more concrete injury than that alleged by the Plaintiffs. On this point the U.S. Supreme Court has previously recognized the requirement of an injury is specific —it requires a "concrete and particularized" injury in fact which "must affect the plaintiff in a personal and individual way," does not allow legal redress for any imaginable injury, and is not "an ingenious academic exercise in the conceivable." Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 566, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). In Lujan, Justice Scalia expressed doubts that the Defenders of Wildlife had alleged sufficient injury to demonstrate standing, simply because a person's aesthetic viewing of a particular species in a particular area of the world was in danger of becoming less pleasurable. Id. at 566, 112 S.Ct. 2130. This argument is "pure speculation and fantasy." Id. To be sure, the Court opined that if a person could show they were observing a threatened species in a particular area of the world and that specific area was threatened, it was "plausible —though it goes to the outermost limit of plausibility" that such a person might have standing. Id. In this case, although the aesthetic viewing argument expressed by the Plaintiffs in this case stretches plausibility for the same reasons, it is somewhat closer to satisfying the constitutional requirement of standing because of Plaintiffs' demonstrated proximity. However, there is an additional problem with Plaintiffs' argument. Save Homosassa River Alliance, Inc. v. Citrus County, Fla., 2 So.3d 329 (2008) 33 Fla. L. Weekly D2490 To demonstrate such an injury, the party seeking redress must state "specific facts" demonstrating "that one or more of respondents' members would thereby be directly affected" by the challenged action. Id. at 563, 112 S.Ct. 2130. This was not accomplished here. Plaintiffs' bare -bones allegations that the increases in density will affect their use of the river is, without more, "pure speculation and fantasy" and is insufficient to show the requisite actual, concrete injury. Because the Second Amended Complaint was fatally defective, the trial judge did not abuse his discretion in dismissing it with prejudice. The standard for reviewing a lower court's dismissal with prejudice is abuse of discretion. Sonny Boy, L.L.C. v. Asnani, 879 So.2d 25, 28-29 (Fla. 5th DCA 2004). Refusal to allow amendment of a pleading constitutes an abuse of discretion unless it clearly appears that allowing the amendment would prejudice the opposing party, the privilege to amend has been abused, or amendment would be futile. Id. While amendments should generally be liberally granted so that cases may be concluded on their merits, "there is an equally compelling obligation on the court to see to it that the end of all litigation be finally reached." Price v. Morgan, 436 So.2d 1116, 1122 (Fla. 5th DCA 1983). *345 Thus, "a trial judge in the exercise of sound discretion may deny further amendments where a case has progressed to a point that liberality ordinarily to be indulged has diminished." Id. The trial court's order denying motion for rehearing demonstrates that dismissal with prejudice was appropriate in this case because further amendment would be futile and would cause prejudice to the defendants. It states: After extensive argument on the defendant's and intervenor's motions to dismiss plaintiffs' Amended Complaint at which time it was thoroughly explained why the facts urged by plaintiffs did not meet the requirements for standing, the court dismissed plaintiffs' complaint but with leave to amend. Although the court inquired at that hearing what additional facts plaintiffs might be able to allege on amendment, plaintiffs' counsel objected to "going outside the record" and insisted that the court rule on the four corners of the complaint. The court gave plaintiffs the benefit of the doubt that they might have additional facts bearing on standing that could be alleged and permitted an amendment. Plaintiffs' second amended complaint also failed to allege sufficient facts showing that plaintiffs were any more affected by the challenged action of the County Commission than any other member of the community. WESTLAW c Submitted into the public record for item(s) PZ.1 . on 12/1312018 , City Clerk And this is understandable. Plaintiffs cannot invent facts. They now live no closer to the project so that its noise affects them and the shadows case by the buildings still does not fall on plaintiffs' property. Although there was no contention before the County Commission that the project would affect the quality of the water in the Homosassa River, plaintiffs are unable to allege any greater right to the river than the general public. And although the number of units may permit some growth in the area and the buildings may not be consistent with the character of Old Homosassa, these allegations affect all of the citizens in Old Homosassa equally. When delay will prevent the construction of an approved but undesired development, then one may win by losing if the losing process is sufficiently long. In this case, it has been long enough. Plaintiffs have had ample opportunity to show standing if they could. Further delay will not help them. The plaintiffs in this case made three attempts to plead standing and they failed. "Generally three ineffective attempts to state the same cause of action are enough." Henry P. Trawick, Jr., Florida Practice and Procedure § 14-3 at 267 (2007-08 ed.). Most trial judges use the "three strikes and you're out" standard. The record amply demonstrates that the plaintiffs were incapable of pleading sufficient ultimate facts to confer standing. As the trial court noted above, at the hearing on the First Amended Complaint, the court asked the plaintiffs' attorney what additional facts could be alleged and she objected to going "outside the record." Nevertheless, the court entered an order explaining why the complaint was deficient and gave the plaintiffs an opportunity to allege additional ultimate facts. The plaintiffs then filed the Second Amended Complaint, which was also deficient. At the hearing on the motion to dismiss that complaint, plaintiffs' counsel candidly stated: [W]e wouldn't have the second amended complaint, had they not filed a motion to dismiss. What they have been successful in doing is creating —you know, basically making sure that we have a non -assailable complaint once it's time for the matter to be finally resolved, because *346 we have now had two opportunities to dot Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk Save Homosassa River Alliance, Inc. v. Citrus County, Fla., 2 So.3d 329 (2008) 33 Fla. L. Weekly D2490 all the I's and cross all the T's after they have alleged we missed some of those. At no time, either in their motion for rehearing or in this appeal, have the plaintiffs demonstrated what further amendment would be made if given another opportunity to amend. See Price, 436 So.2d at 1122 (noting that appellants failed to demonstrate what further amendment could be made if given the opportunity). Based on the trial judge's reasoning and the record facts supporting it, the plaintiffs have failed to prove that he abused his discretion in dismissing the case with prejudice. To conclude otherwise, as the majority does, is simply to ignore the appellate standard which we are bound to follow. I feel compelled to add the following observations from my experience in this area of the law. No doubt the plaintiffs in this case are honest, sincere people who care deeply about the future of the Homosassa River. My remarks about certain so-called "environmentalists gadflies" should not be interpreted as a reference to them. Footnotes 2 3 4 5 6 7 The opinion of Judge Griffin will be cited and used to open the floodgates to the environmental gadflies of the world. They will file spurious complaints which challenge rezoning on the basis that it violates the comprehensive plan. Local government will be hampered in doing what it is supposed to do. Property rights will be trampled by the delays. People who disagree with local decisions will find solace in the judicial branch by virtue of this Court's new-found authority which opens the courthouse door to attempts to overturn the decisions of local, duly -elected officials. Every gadfly with some amorphous environmental agenda, and enough money to pay a filing fee, will be anointed with status simply because the gadfly wants to "protect the planet." The environmental gadfly will win every time, not on the merits, but because, in the words of the trial judge, "[w]hen delay will prevent the construction of an approved but undesired development, then one may win by losing if the losing process is sufficiently long." For those who respect property rights, look out! All Citations 2 So.3d 329, 33 Fla. L. Weekly D2490 Resort's site is designated on the County's generalized future land use map, ("GFLUM"), as CL, Low Intensity Coastal Lakes, which allows a maximum density of one (1) unit per 20 acres, is located in Flood Plain A-11, and is located in the Coastal High Hazard Zone. Specifically, the County and Resort assert in their motion: There exists no allegations within the complaint that establish how the height of the building or the net increase in units will adversely impact the Alliance' [sic] educational purpose or interest in the manatee, Bitters ability to fish in the river, Rendueles' ability to bicycle through Old Homosassa, or Watkins' ability to walk down the streets in Old Homosassa. The canal that Rendueles' property is on is part of the Homosassa River system and opens to the River at Resort's site. Plaintiffs assert that the water system that the individual plaintiffs would share with Resort had "expressed concems regarding the volume of water it will be able to supply because of [Resort's] project demands." The Old Homosassa Redevelopment Area Plan is incorporated into the County's Land Development Code as section 4680. The action underlying this appeal was brought pursuant to section 163.3215(3), Florida Statutes. Section 163.3164(17), Florida Statutes (2007), provides that, as used in the Local Government Comprehensive Planning and Land Development Regulation Act, "[p]erson means an individual, corporation, govemmental agency, business trust, estate, trust, partnership, association, two or more persons having a joint or common interest, or any other legal entity." WESTLAW Save Homosassa River Alliance, Inc. v. Citrus County, Fla., 2 So.3d 329 (2008) 33 Fla. L. Weekly D2490 9 10 11 In Florida Rock Properties, 709 So.2d at 177, this Court wrote: Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk "[K]eyser's standing to challenge the Board's zoning decision depends on (1) whether the personal and professional interests he alleged are 'protected or furthered by' Putnam County's comprehensive plan; if so, (2) whether those interests are greater than the general interest in community well being; and (3) whether the interests are or will be adversely affected by the challenged zoning decision." (Emphasis added). In Stranahan House, Inc., 967 So.2d at 434, the Fourth District wrote: Stranahan and Friends meet the test for standing outlined in Florida Rock Properties v. Keyser, 709 So.2d 175, 177 (Fla. 5th DCA 1998). The interests alleged are protected by the City's comprehensive plan, they are greater than the general interest in community well-being, and the interests will be adversely affected by the development. (Emphasis added). "Keyser is a citizen with an interest in the environment and nothing more." 709 So.2d at 177. As for the trial court's denial of Plaintiffs' request to further amend the complaint in Tight of the dismissal, Plaintiffs had not abused the privilege to amend. Accordingly, the trial court also erred in dismissing Plaintiffs' complaint "with prejudice." End of Document © 2018 Thomson Reuters. No claim to original U.S. Government Works. WEST LAW 1 Submitted into the public record for item(s) PZ.1 on 12/13/2018 , City Clerk • Save Homosassa River Alliance, Inc. v. Citrus County, Fla., 2 So.3d 329 (2008) 33 Fla. L. Weekly D2490 KeyCite Yellow Flag - Negative Treatment Distinguished by Martin County Conservation Alliance v. Martin County, F1a.App. 1 Dist., June 21, 2010 2 S0.3d 329 District Court of Appeal of Florida, Fifth District. SAVE the HOMOSASSA RIVER ALLIANCE, INC., et al., Appellant, v. CITRUS COUNTY, FLORIDA, et al., Appellee. No. 5Do7-2545• Oct. 24, 2008. Rehearing Denied Feb. 19, 2009. Synopsis Background: Environmental group and area landowners brought action against county and property owner, challenging county's approval of property owner's application to build residential buildings on property adjacent to river, which was essential manatee habitat. The Circuit Court, Citrus County, Charles M. Harris, Senior Judge, dismissed action for lack of standing. Plaintiffs appealed. [Holding:] The District Court of Appeal, Griffin, J., held that plaintiffs had standing to bring action. Reversed and remanded. Pleus, J., filed dissenting opinion. West Headnotes (9) ui Zoning and Nanning "Comprehensive or general plan A "local comprehensive land use plan" is a statutorily mandated legislative plan to control and direct the use and development of property within a county or municipality; the plan is WESTLAW 121 131 141 likened to a constitution for all future development within the governmental boundary. West's F.S.A. § 163.3167. Cases that cite this headnote Zoning and Planning "Right of Review; Standing As a remedial statute, statute that enlarges class of persons with standing to challenge development order as inconsistent with local comprehensive land use plan is to be liberally construed to advance the intended remedy. West's F.S.A. § 163.3215. Cases that cite this headnote Zoning and Nanning 4'Right of Review; Standing The purpose of statute governing standing to appeal and challenge the consistency of a development order with a local comprehensive land use plan is to liberalize standing. West's F.S.A. § 163.3215. Cases that cite this headnote Zoning and Planning "Right of Review; Standing A person's standing to bring a challenge under statute governing actions challenging a local government's development order as being inconsistent with local comprehensive land use plan depends on (1) whether the interests the person alleges are protected or furthered by the local government comprehensive plan, if so, (2) whether those interests exceed in degree the general interest in community good shared by all persons, and (3) whether the interests will Save Homosassa River Alliance, Inc. v. Citrus County, Fla., 2 So.3d 329 (2008) 33 Fla. L. Weekly D2490 151 161 be adversely affected by the challenged decision. West's F.S.A. § 163.3215(2, 3). 2 Cases that cite this headnote Zoning and Planning ...Right of Review; Standing Under statute governing standing regarding actions challenging a local government's development order as being inconsistent with local comprehensive land use plan, requirement that a person must allege an interest that exceeds "in degree the general interest in community good shared by all persons" simply means that a party must allege that they have an interest that is something more than a general interest in community well being. West's F.S.A. § 163.3215(2). Cases that cite this headnote Zoning and Planning .:.Permits, certificates, and approvals Environmental group and area landowners had standing to bring action challenging county's approval of property owner's application to build residential buildings on property adjacent to river as being inconsistent with local comprehensive land use plan; group sought to protect river from problems associated with improper and ineffective storm water management systems, overpopulation of lands adjacent to river, and destruction of wetlands surrounding river, and group and landowners all had direct and demonstrated concern for protection of interests furthered by comprehensive plan that would be adversely affected by allowing development that violated plan. West's F.S.A. § 163.3215(2, 3). Cases that cite this headnote WESTLAW 171 181 191 Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk Zoning and Planning .—Right of Review; Standing The "greater -in -degree" part of the test for standing to bring action challenging a local government's development order as being inconsistent with local comprehensive land use plan self -evidently would be met if the plaintiff is an adjacent property owner. West's F.S.A. § 163.3215(2). 1 Cases that cite this headnote Zoning and Planning ...Right of Review; Standing Statutory test for standing to bring action challenging a local government's development order as being inconsistent with local comprehensive land use plan is directed to the quality of the interest of the person seeking standing; there is no requirement of a unique harm relative to the general population. West's F.S.A. § 163.3215(2, 3). Cases that cite this headnote Zoning and Planning Dismissal Dismissal of second amended complaint for lack of standing was required to be without prejudice rather than with prejudice in action challenging county's approval of property owner's application to build residential buildings on property adjacent to river as being inconsistent with local comprehensive land use plan; plaintiffs had not abused privilege to amend. West's F.S.A. § 163.3215(2, 3). Cases that cite this headnote Attorneys and Law Firms Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk Save Homosassa River Alliance, Inc. v. Citrus County, Fla., 2 So.3d 329 (2008) 33 Fla. L. Weekly D2490 *331 Denise A. Lyn, of Denise A. Lyn, P.A., Inverness, for Appellant. Michele Lieberman, of Law Office of Michele L. Lieberman, LL, Inverness, for Appellee. Carl A. Bertoch, Crystal River, for Intervenor, Homosassa Riverside Resort, LLC. Opinion GRIFFIN, J. Save the Homosassa River Alliance, Inc., James Bitter, Rosemary Rendueles, and Priscilla Watkins [collectively "Plaintiffs"] appeal the trial court's order dismissing, with prejudice, their suit against Citrus County, Florida ["County"] and Homosassa River Resort, LLC ["Resort"] on the ground that they lack standing. Resort owns property adjacent to the Homosassa River ["River"] in Old Homosassa, Florida. The Homosassa River is an Outstanding Florida Waterway and an essential manatee habitat.' There are two buildings on Resort's site, containing fifteen residential condominium units. Resort applied to the County for a land development code atlas amendment "to allow the development and redevelopment of 87 condominium dwelling units, retail space, amenities and parking" on this property. The project would result in the construction of four four-story residential structures. On July 11, 2006, Citrus County's Board of County Commissioners enacted Ordinance No. 2006—A13, which approved Resort's application and amended the County's land development code to reflect the approval. Plaintiff Alliance is a not -for -profit corporation "committed to the preservation and conservation of environmentally sensitive lands and the wildlife in and around the Homosassa River and in Old Homosassa, Florida." Plaintiffs Bitter, Rendueles, and Watkins are individuals who own property in the area. On August 10, 2006, Plaintiffs filed this suit against the County, pursuant to section 163.3215, challenging the County's approval of Resort's application on the ground that it is inconsistent with the County's Comprehensive Land Use Plan, Citrus County Ordinance No. 89-04, as amended. On November 9, 2006, before the initial complaint was served on the County, Plaintiffs filed an Amended Complaint. Resort was allowed to intervene in the dispute and the County filed a motion to dismiss, arguing that the Plaintiffs had failed to plead sufficient facts to establish WESTLAW standing. The trial court agreed and dismissed Plaintiffs' complaint, with twenty days to amend. *332 Plaintiffs filed their Second Amended Complaint against both the County and Resort, to which the County and Resort responded by filing a joint motion to dismiss. In their joint motion to dismiss, the County and Resort alleged that Plaintiffs had failed to establish standing because they had not sufficiently alleged (1) "any interest that exceeds in degree that of the general community," (2) "harm to such interests over and above that of their neighbors," or (3) "any nexus between the alleged comprehensive plan violations and the interests of the parties."2 The trial court heard arguments on the County and Resort's joint motion. At the hearing, Resort and the County essentially reiterated the points they had raised in their written motion and urged that the dismissal of the Second Amended Complaint be with prejudice. Plaintiffs argued that section 163.3215 gave affected citizens significantly enhanced standing to challenge the consistency of development decisions and that their allegations were sufficient to establish standing under this liberalized standard. On about July 2, 2007, the trial court dismissed the Second Amended Complaint with prejudice, concluding that Plaintiffs had failed to sufficiently allege that their interests were adversely affected by the project in a way not experienced by the general population and because of insufficient "nexus" allegations. The trial court observed that "[t]here are no allegations that the county -approved plan permits improper runoff into the river or that the proposed development will itself (other than by adding people to the mix) adversely affect the quality of water or access to the river." Additionally, the trial court noted that "[t]here is no indication that residents living in this proposed project would add any more burden to the streets, storm drainage, river crowding, etc. than residents living elsewhere in the city." Plaintiffs filed a motion for rehearing on July 11, 2007. In the motion for rehearing, Plaintiffs asserted that the trial court's analysis was not within the statute. They also objected that the trial court's dismissal "with prejudice" at that stage of the proceedings was premature and contrary to the existing case law. The trial court concluded that Plaintiffs had been given "ample opportunity to show standing if they could" and that they would not be helped by further delay. The trial court denied Plaintiffs' motion for rehearing. L Save Homosassa River Alliance, Inc. v. Citrus County, Fla., 2 So.3d 329 (2008) 33 Fla. L. Weekly D2490 The Second Amended Complaint Plaintiffs' Second Amended Complaint contains lengthy allegations in support of their standing to bring this suit. The complaint begins by introducing each of the plaintiffs (Alliance, Bitter, Rendueles, and Watkins). Alliance is a not -for -profit corporation committed to the preservation of the lands and the wildlife in and around the Homosassa River and Old Homosassa, Florida. The complaint explains that the group has "embarked on a specific and focused course" to protect the River from problems associated with improper and ineffective storm water management systems, overpopulation of the lands adjacent to the River, destruction of wetlands surrounding the River, degradation of the River's water quality, and excessive boat traffic upon the River. The group conducts *333 seminars to educate the area's residents about the River and how to preserve it. One of the Alliance's main objectives has been "the orderly development and preservation of the character of Old Homosassa." Members of the group use the River for both educational and recreational purposes; have invested substantial effort and funds to protect and preserve the River and its endangered manatees; and have served on the Old Homosassa Area Redevelopment Plan steering committee. The complaint alleges that Bitter is an active Alliance member who owns property about three miles from Resort's site. He is conscious of governmental actions that affect the health of the Homosassa River and participates actively in public conversations regarding development of the area. Bitter fishes in the River, frequently boats along it, and often visits its shores "to admire the beauty and wonder of the River and its wildlife." Additionally, Bitter receives potable water from the Homosassa Special Water District, fire protection from the County's fire department, police protection from the County's Sheriff's Department, and emergency services by Nature Coast EMS. Finally, it is alleged that in the event of a natural disaster or a threat of a natural disaster, Bitter would have to evacuate his property via West Fishbowl Drive, which is a two-lane road in Homosassa. "West Fishbowl Drive ... is along the evacuation route for [Resort's] property...." Rendueles owns canal -front real property less than a mile from Resort's site! Rendueles worked on the County's Old Homosassa Overlay steering committee and actively participated during the County's public hearings on Resort's application. Additionally, it is alleged that WESTLAW Submitted into the public record for item(s) PZ.1 . on 12j13/2018 , City Clerk Rendueles "enjoys the beauty of nature by traveling down the Homosassa River and walking and bicycling along the streets in Old Homosassa." She often visits the River's shores "to admire the beauty and wonder of the River and its wildlife." Rendueles receives potable water from the Homosassa Special Water District, fire protection from the County's fire department, police protection from the County's Sheriff's Department, and emergency services by Nature Coast EMS. In the event of a natural disaster or a threat of a natural disaster, Rendueles would evacuate her property via W. Yulee Drive, which is a two-lane road in Homosassa. Watkins owns real property within Homosassa, Florida. She participates in Alliance's activities and actively participated during the County's public hearings on Resort's application. Watkins frequently kayaks on the River; bicycles along W. Halls River Road and W. Fishbowl Drive; and enjoys walking down Old Homosassa's uncrowded streets and roads. Watkins receives potable water from the Homosassa Special Water District, sewer services from Citrus County, fire protection from the County's fire department, police protection from the County's Sheriff's Department, and emergency services by Nature Coast EMS. In the event of a natural disaster or a threat of a natural disaster, Watkins would evacuate her property via W. Halls River Road, a two-lane road in Homosassa, which is along the evacuation route for Resort's property. Plaintiffs allege that "[b]ecause of the County's adoption of a development order which is inconsistent with its adopted Comprehensive Plan[,] [Plaintiffs] will suffer an adverse effect to their interests *334 furthered by the local government comprehensive plan...." In paragraph 27, Plaintiffs generally list protected interests that they claim will be adversely affected by the County's approval. Specifically, Plaintiffs allege: The Alliance and Property Owners, including the members of the corporation, will suffer adverse effects to interests protected or furthered by the adopted Plan, as amended, including but not limited to their property interests, their interest in protecting and maintaining the existing water quality of the Homosassa River, their interest in protecting the endangered Manatees, their • Save Homosassa River Alliance, Inc. v. Citrus County, Fla., 2 So.3d 329 (2008) 33 Fla. L. Weekly D2490 interest in sufficient water and wastewater infrastructure, their interests in efficient and equitable distribution of land uses in the area, their interests in reasonable investment -backed expectations in their area, their interests in land use, their interests in preserving the character of Old Homosassa, their interests related to health and safety, including the safety and efficiency of recreation facilities and streets, police and fire protection, densities or intensities of development, including the compatibility of adjacent land uses, their interest in environmental or natural resources and their interest in wetland preservation. In paragraphs 9 through 12, Plaintiffs allege how the harm they would each suffer "exceeds the harm caused to the public in general." With regard to Alliance, Plaintiffs allege: 12). Alliance will be harmed to a degree that exceeds the harm caused to the public in general because of the Alliance's investment of resources and volunteer activities to protect the health and welfare of the Homosassa River and to encourage environmentally sound development practices around the Homosassa River. Its tireless efforts to educate the public and to encourage clean and environmentally sound development will be for naught if the County continues to allow development that is inconsistent with the goals and objectives of its Comprehensive Plan. With respect to each of the individual plaintiffs, Plaintiffs kir allege that Resort's proposed development activities would increase the number of people in the area and, WEST LAW Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk accordingly, increase demands relating to public services, evacuation, traffic, and infrastructure.' It is alleged that, given their proximity to "the project and given [their] use of the same water system, roadway system ... waterway system," and in the case of Watkins, sewer system, "[Plaintiffs] will suffer harm to a greater degree than that of the public in general." Plaintiffs additionally allege that Bitter would "be harmed to a degree that exceeds the harm caused to the public in general" because of his participation in the local government process and his volunteer efforts to preserve and protect the River; that Rendueles would "be harmed to a degree that exceeds the harm caused to the public in general" due to her proximity to the development, her location in the Coastal High Hazard Area, and her location within the Old Homosassa Redevelopment Area; and that Watkins would "be harmed to a degree that exceeds the harm caused to the public in general" because of her proximity to the development, her location within the Coastal High Hazard Area, her use of the River, and her active use of the roads and streets within Old Homosassa. *335 Finally, the complaint contains allegations concerning the interests the comprehensive plan is intended to protect and how Resort's proposed project is inconsistent with the plan. Plaintiffs allege that the plan's provisions are intended to: a) Preserve, protect, and restore County's natural resources.... b) Protect and maintain the water quality of the ... Homosassa ... [River].... c) Provide the GFLUM be recognized as the primary document used by County in land use regulation and in guiding future growth. e) Provide that where County's LDC5 conflicts with or overlaps other regulations, whichever imposes the more stringent restrictions shall prevail. f) Limit residential structures in the coastal high hazard area to two (2) stories. g) Prohibit the expansion of R-2 occupancies in the coastal high hazard area. h) Limit structures in the Old Homosassa Redevelopment Area to two (2) stories over the first living floor. i) Require all structures constructed in the Old Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk Save Homosassa River Alliance, Inc. v. Citrus County, Fla., 2 So.3d 329 (2008) 33 Fla. L. Weekly D2490 Homosassa Redevelopment Area to provide for a 10 foot step back of the second story over the first story. j) Require all development in the Old Homosassa Redevelopment Area to further the character and vision provided for Old Homosassa and to be compatible with existing structures in the area. k) Prohibit the development or expansion of general commercial uses within Old Homosassa. The complaint then alleges that the proposed development is inconsistent with the Plan, because it: a) Allows for the expansion of R-2 residential dwelling units in the coastal high hazard area. b) Allows for the construction of three (3) story over parking residential structures in the coastal high hazard area. c) Allows for the construction of structures that are not compatible with the character and vision of Old Homosassa. d) Allows for the construction of four (4) residential structures which do not provide for a step back of stories. e) Allows for increases in residential dwellings in the coastal high hazard area. f) Allows for the expansion or development of new commercial uses within Old Homosassa. g) Allows for the development of residential uses upon lands designated as GNC within Old Homosassa. The trial court's order indicates that it dismissed Plaintiffs' Second Amended Complaint because it found that Plaintiffs had failed to sufficiently allege that their interests were adversely "affected by the project in a way not experienced by the general population." Additionally, the trial court's order adopted the "nexus" argument of Resort and the County, ruling that "there must be some nexus between the alleged evil of the challenged action and the adverse [e]ffect claimed." WESTLAW *336 Controlling Law III "A local comprehensive land use plan is a statutorily mandated legislative plan to control and direct the use and development of property within a county or municipality. The plan is likened to a constitution for all future development within the governmental boundary." Machado v. Musgrove, 519 So.2d 629, 631-32 (Fla. 3d DCA 1987) (citations omitted). See also § 163.3167, Fla. Stat. (2007). Once a comprehensive plan has been adopted pursuant to the Local Government Comprehensive Planning and Land Development Regulation Act, "all development undertaken by, and all actions taken in regard to development orders by, governmental agencies in regard to land covered by such plan" must be consistent with that plan. § 163.3194(1)(a), Fla. Stat. (2007); see also § 163.3164(7), Fla. Stat. (2007). 121 131 Prior to 1985, common law governed a third party's standing to intervene to challenge a development order as inconsistent with the governing comprehensive plan. See Parker v. Leon County, 627 So.2d 476, 479 (F1a.1993), Citizens Growth Mgmt. Coal., Inc. v. City of W. Palm Beach, 450 So.2d 204, 206-08 (F1a.1984). The common law rule provided that, in order to have standing to challenge a land use decision, a party had to possess a legally recognized right that would be adversely affected by the decision or suffer special damages different in kind from that suffered by the community as a whole. Putnam County Envtl. Council, Inc. v. Bd. of County Comm 'rs, 757 So.2d 590, 592-93 (Fla. 5th DCA 2000); Citizens Growth Mgmt. Coal., Inc., 450 So.2d at 206. In 1985, the Florida Legislature reacted to the Supreme Court's 1984 decision in Citizens Growth Management that the common law rules of standing applied to the Growth Management Act by enacting section 163.3215, Florida Statutes.6 Its stated purpose was "to ensure the standing for any person who 'will suffer an adverse effect to an interest protected ... by the ... comprehensive plan.' " Parker, 627 So.2d at 479 (citing § 163.3215(2), Fla. Stat. (1985)); see also Edu. Dev. Ctr., Inc. v. Palm Beach County, 751 So.2d 621, 623 (Fla. 4th DCA 1999) (section 163.3215 is a remedial statute in that it "enlarged the class of persons with standing to challenge a development order as inconsistent with the comprehensive plan"). As a remedial statute, section 163.3215 is to "be liberally construed to advance the intended remedy...." Edu. Dev. Ctr., Inc., 751 So.2d at 623; see also Dunlap v. Orange County, 971 So.2d 171, 174 (Fla. 5th DCA 2007). There is no doubt that the purpose of the adoption of section 163.3215 was to liberalize standing in this context. See City of Ft. Myers v. Splitt, 988 So.2d 28 (Fla. 2d DCA 2008). 141 In part, section 163.3215(3), Florida Statutes (2007), Save Homosassa River Alliance, Inc. v. Citrus County, Fla., 2 So.3d 329 (2008) 33 Fla. L. Weekly D2490 l*.. provides: Any aggrieved or adversely affected party may maintain a de novo action for declaratory, injunctive, or other relief against any local govennment to challenge any decision of such local government granting or denying an application for, or to prevent such local government from taking any action on, a development order, as defined in s. 163.3164, which materially alters the use or density or intensity of use on a particular piece of property which is not consistent with the comprehensive plan adopted under this part. *337 Further, section 163.3215(2), Florida Statutes (2007), provides: As used in this section, the term "aggrieved or adversely affected party" means any person'?1 or local government that will suffer an adverse effect to an interest protected or furthered by the local government comprehensive plan, including interests related to health and safety, police and fire protection service systems, densities or development, facilities, health equipment or intensities of transportation care facilities, services, and environmental or natural resources. The alleged adverse interest may be shared in common with other members of the community at large but must exceed in degree the general interest in community good shared by all persons. The term includes the owner, developer, or applicant for a development order. WESTLAW Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk (Emphasis added). Thus, a person's standing to bring a challenge under section 163.3215(3) depends on (1) whether the interests the person alleges are "protected or furthered by the local government comprehensive plan"; if so, (2) whether those interests "exceed in degree the general interest in community good shared by all persons"; and (3) whether the interests will be adversely affected by the challenged decision. See § 163.3215(2), Fla. Stat. (2007); see also Fla. Rock Props. v. Keyser, 709 So.2d 175, 177 (Fla. 5th DCA 1998). 151 There is nothing obscure about the statutory language requiring a person seeking standing to allege an interest that "[exceeds] in degree the general interest in community good shared by all persons" to establish standing. It simply means that a party must allege that they have an interest that is something more than "a general interest in community well being." See Keyser, 709 So.2d at 1778; see also Stranahan House, Inc. v. City of Fort Lauderdale, 967 So.2d 427, 434 (Fla. 4th DCA 2007).9 The statute does not say that a party must be harmed to a greater degree than the general public. Not surprisingly, the case law assumes that an organization has an interest that is greater than "the general interest in community well being" when the organization's primary purpose includes protecting the particular interest that they allege will be adversely affected by the comprehensive plan violation. See Stranahan House, Inc., 967 So.2d at 434. The old common law test was so narrowly drawn that there often was no means of redress for a comprehensive plan violation. The expanded statutory test eliminates *338 "gadfly" litigation, yet gives oversight to the segment of the public that is most likely to be knowledgeable about the interest at stake and committed to its protection. The statute expressly identifies by multiple examples the kinds of interests the legislature intended to protect: As used in this section, the term "aggrieved or adversely affected party" means any person or local government that will suffer an adverse effect to an interest protected or furthered by the local government comprehensive plan, including interests related to health and safety, police and fire protection service systems, densities or intensities of development, transportation facilities, health care facilities, equipment or services, and environmental or natural resources. § 163.3215(2), Fla. Stat. (2007) (emphasis added). Application of the statutory test is illustrated by comparing two of the leading cases previously decided by this court. In Keyser, Timothy Keyser had filed a lawsuit Submitted into the public record for item(s) PZ.1 on 12/13/2018 , City Clerk Save Homosassa River Alliance, Inc. v. Citrus County, Fla., 2 So.3d 329 (2008) 33 Fla. L. Weekly D2490 +d.. challenging the decision of the Putnam County Commission to rezone a 509 acre parcel of Florida Rock Properties' land from agricultural to mining. This Court held that Keyser's allegation that the Commission's decision "would adversely affect his quality of life by its negative impact upon wildlife populations and habitats in Putnam County" was insufficient to establish standing. 709 So.2d at 177. In explaining why the allegation was insufficient, this Court said, "Keyser never demonstrated any specific injury, only that the county would not be as bucolic as it once was. Keyser is a citizen with an interest in the environment and nothing more." Id. In Putnam County Environmental Council, Inc., a company owned a piece of land adjacent to the Etoniah Creek State Forest, which was zoned for agricultural use. The company and the local school board "applied for a special exception to the county's comprehensive plan to allow the construction of a regional middle school complex on" the company's property. 757 So.2d at 591. The application was approved, and the Putnam County Environmental Council ["PCEC"] subsequently filed a complaint, seeking to enforce Putnam County's comprehensive plan pursuant to chapter 163. The trial court concluded that PCEC lacked standing to challenge the order under section 163.3215 and dismissed the action on that basis. It its complaint, PCEC alleged that its "primary organizational purposes and activities include the study and protection of natural resources and the advocacy of sound land use and growth management policies affecting the environment"; that its officers and members had "initiated and facilitated the original public acquisition of the Etoniah Creek State Forest"; and that "[a] substantial number of [its] members, along with non-members who participate in PCEC-sponsored activities, use the Etoniah Creek State Forest for recreational and educational purposes." Putnam County Envtl. Council, Inc., 757 So.2d at 592. Additionally, PCEC alleged: The use allowed under the special exception will adversely affect PCEC's use and its members' use of the adjacent Etoniah Creek State Forest as natural resource area. The use of the subject parcel for a school will adversely impact the ability of the Division of Forestry to use controlled burns to manage WESTLAW the adjacent state forest. Without controlled burns, habitat for a variety of species in the Etoniah Creek State Forest will be reduced or eliminated, thus adversely affecting the ability of PCEC, its members, and others who participate in *339 PCEC-sponsored activities to observe or study those species. Also, without controlled burns, much of the forest will become overgrown with understory species, thus adversely affecting the ability of PCEC, its members, and others who participate in PCEC-sponsored activities to access and hike portions of Etoniah Creek State Forest. Furthermore, the physical presence of a school plant as well as the increased traffic and the activity, lights, and noise associated with a school facility, athletic fields, parking lots, and school bands are incompatible with Etoniah Creek State Forest's nature -based recreation and will discourage and interfere with the ability of wide-ranging species such as the black bear to reach or remain in the state forest. This will adversely affect the ability of PCEC, its members, and others who participate in PCEC-sponsored activities to observe or study those species.... Id. 16] In holding that PCEC had made sufficient allegations to establish standing, this Court said: [H]ere PCEC's complaint alleged specific injuries that PCEC would suffer if a middle school complex was constructed on Roberts' property, including the destruction of the habitat of species being studied by PCEC members and the elimination of PCEC members' access to the forest and the forest's creatures by the overgrowth of the forest. The diminution of species being studied by the group is a harm particular to PCEC, making PCEC more than just a group with amorphous "environmental concerns." Accordingly, the Save Homosassa River Alliance, Inc. v. Citrus County, Fla., 2 So.3d 329 (2008) 33 Fla. L. Weekly D2490 allegations set forth in PCEC's complaint are sufficient to demonstrate the requisite level of interest. PCEC's involvement in the original acquisition of the land for use as a state forest and its continued, active connection with that state forest further demonstrate an interest greater than that which all persons share in the community good. Id. at 593-94. 171 On appeal, Plaintiffs begin with the premise that the trial court's dismissal order was based on the trial court's view that in order to have standing to mount a section 163.3215 challenge, the plaintiff must own real property adjacent to or very near the parcel at issue. It is true that there is much in the appealed order to suggest that was the court's view. We do not believe the court's analysis to be quite so narrow, however. It does appear that the trial court had difficulty envisioning how the "greater -in -degree" part of the statutory test for standing could be met if the plaintiff did not own adjacent real property. The "greater -in -degree" part of the test self -evidently would be met if the plaintiff is an adjacent property owner. Everyone else has to figure out how to surmount the tag -line test in Keyser,1 ° i.e., how to be "something more" than just a "citizen with an interest in the environment." The County contends that Plaintiffs' complaint lacks "facts sufficient to establish that the impact upon their educational efforts, enjoyment of the outdoors and use of government services is to a greater degree than others with the community," and that Plaintiffs have failed to establish precisely how the alleged comprehensive plan violations, which relate to increased height and density, would impact their interests *340 (i.e. their educational efforts, enjoyment of the outdoors and use of government services) to any greater degree than the Old Homosassa community as a whole. In its separate Answer Brief, Resort similarly asserts that Plaintiffs failed to specifically identify an "adverse interest or impact that" they "could expect to occur due to [its] proposed hotel expansion" and failed to show that their "interests are adversely affected in a way not experienced by the general population." (8] Plaintiffs contend that the trial court's dismissal should be reversed because they have alleged concrete and specific adverse interests that exceed in degree the general interest in community good shared by all. Plaintiffs maintain that it is not necessary for them to show that they will suffer a unique harm and reject the appellees' position as being outside the express language WESTI_AW Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk and intent of the statute. We agree with Plaintiffs that the statutory test is directed to the quality of the interest of the person seeking standing; there is no requirement of a unique harm relative to the general population. The allegations of the Second Amended Complaint amply demonstrate that each of the plaintiffs has an interest that is greater than "a general interest in community good shared by all persons." The allegations show that the Plaintiffs all have a direct and demonstrated concern for the protection of the interests furthered by the comprehensive plan that would be adversely affected by allowing a development that violates the plan. An interpretation of the statute that requires harm different in degree from other citizens would eviscerate the statute and ignore its remedial purpose. It drags the statute back to the common law test. The statute is designed to remedy the governmental entity's failure to comply with the established comprehensive plan, and, to that end, it creates a category of persons able to prosecute the claim. The statute is not designed to redress damage to particular plaintiffs. To engraft such a "unique harm" limitation onto the statute would make it impossible in most cases to establish standing and would leave counties free to ignore the plan because each violation of the plan in isolation usually does not uniquely harm the individual plaintiff. Rather, the statute simply requires a citizen/plaintiff to have a particularized interest of the kind contemplated by the statute, not a legally protectable right. 191 In sum, we conclude that the Second Amended Complaint adequately alleges Plaintiffs' standing to challenge the County's alleged failure to comply with its comprehensive plan in approving Resort's project." We accordingly reverse and remand for further proceedings. REVERSED and REMANDED. SAWAYA, J., concurs. PLEUS, J., dissents, with opinion. PLEUS, J., dissenting. I dissent. The able and sage trial judge understood the case law and applied it properly. He correctly dismissed this case with prejudice for lack of standing because the plaintiffs repeatedly failed to allege any adverse effects, impact or harm they would suffer from the proposed Save Homosassa River Alliance, Inc. v. Citrus County, Fla., 2 So.3d 329 (2008) 33 Fla. L. Weekly D2490 development that was unique to them. Without it being unique to them, their interest cannot exceed in degree the general interest in the community good shared by all persons. The majority opinion eviscerates the "adverse *341 effect" element of the standing requirement in subsection 163.3215(2), Florida Statutes, and stands in direct conflict with the case law interpreting that statute. Subsection 163.3215(2) defines an "aggrieved or adversely affected party" as "any person or local government which will suffer an adverse effect to an interest furthered by the local government comprehensive plan...." (Emphasis added). It further states that "[t]he alleged adverse interest may be shared in common with other members of the community at large but must exceed in degree the general interest in community good shared by all persons." (Emphasis added). The cases discussing this section have uniformly interpreted it as requiring factual allegations that plaintiffs will suffer adverse effects and that those adverse effects will be greater than those suffered by the community at large. See Dunlap v. Orange County, 971 So.2d 171 (Fla. 5th DCA 2007); Stranahan House, Inc. v. City of Fort Lauderdale, 967 So.2d 427 (Fla. 4th DCA 2007); Payne v. City of Miami, 927 So.2d 904 (Fla. 3d DCA 2005); Edgewater Beach Owners Ass 'n, Inc. v. Walton County, 833 So.2d 215 (Fla. 1st DCA 2002), receded from on other grounds, Bay Point Club, Inc. v. Bay County, 890 So.2d 256 (Fla. 1st DCA 2004); Putnam County Envtl. Council, Inc. v. Bd. of County Comm 'rs, 757 So.2d 590, 592-93 (Fla. 5th DCA 2000) Florida Rock Props. v. Keyser, 709 So.2d 175, 177 (Fla. 5th DCA 1998); Pichette v. City of N. Miami, 642 So.2d 1165 (Fla. 3d DCA 1994); Sw. Ranches Homeowners Ass 'n, Inc. v. Broward County, 502 So.2d 931 (Fla. 4th DCA 1987). Florida Rock, in my view, is a correct analysis of the statute. It tells us two things. Owning real property in the vicinity of the rezoning, and being concerned about the effects of the rezoning, is not sufficient to confer jurisdiction. The rezoning must have a specific impact or involve some harm on or to the property owner or his property. For example, in Dunlap, this Court concluded that the plaintiffs had standing in part because "as owners of property fronting the lake on which Country Lake Estates is being developed, their interests will be affected by M/I Homes' boat ramp construction to an extent which is greater than those held by general members of the community who do not own such lake -front property." 971 So.2d at 175. WESTLAW Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk In Stranahan House, the Fourth District held that the plaintiff sufficiently pled an adverse effect by alleging that as the adjoining property owner, Stranahan House would be negatively affected by "increased traffic and the activity, lights, alteration of Stranahan's enjoyment of light and air, the visual and audio pollution caused by the development and the effect of the shadow cast over the Stranahan property at certain times of the year." 967 So.2d at 433-34. In Payne, the Third District found that the plaintiffs had sufficiently alleged that they would suffer "adverse effects, exceeding the general interests shared by the community at large," by alleging they would suffer specific injuries to their ability to conduct business along the river due to depletion of available sites for marine industrial use by the conversion of industrial land to residential and commercial uses. 927 So.2d at 909. In Edgewater Beach, the First District found that the plaintiff homeowners association demonstrated standing at trial by testifying that an adjacent proposed development would block members' ocean views, thereby reducing their property values, and it would place their recreational facilities in shade until noon. 833 So.2d at 220. *342 In Putnam County Envtl. Council, this Court held that the plaintiff organization sufficiently alleged adverse effects by asserting "specific injuries" it would suffer, including destruction of the habitat of species its members studied and elimination of members' access to the forest and its creatures by overgrowth from discontinuation of controlled burns. 757 So.2d at 593. This Court concluded that such alleged adverse effects were "particular" to the plaintiff organization, making it more than just a group with amorphous environmental concerns. Id. In Florida Rock, this Court held that the plaintiff lacked standing because he failed to show that he would suffer an adverse effect or specific injury from the proposed development. Although the plaintiff alleged generally that the proposed development would "affect his quality of life" and that the County would not be as bucolic as it once was, this Court noted that the alleged injury should be "unique" and "specific" to the plaintiff. It further instructed, "Had Keyser lived adjacent to the property, and had he been able to show a specific impact the zoning change would have upon him or his property, he would have standing." 709 So.2d at 177. In Pichette, the Third District affirmed a summary judgment for lack of standing because the plaintiffs failed to demonstrate that they would be affected by "noise, L Save Homosassa River Alliance, Inc. v. Citrus County, Fla., 2 So.3d 329 (2008) 33 Fla. L. Weekly D2490 traffic impact, land value diminution, or and any other respect by the proposed zoning ordinance." 642 So.2d at 1166. In Southwest Ranches, the Fourth District held that the plaintiffs sufficiently alleged standing by asserting that they were a group of landowners who would be directly affected by a proposed adjacent landfill's pollution, flooding and deterioration of the potable water supply. 502 So.2d at 934-35. In the instant case, the plaintiffs failed to allege that they would suffer any adverse effect from the proposed development, much less any that would affect them to a greater degree than the community at large. The complaint alleges that the individual plaintiffs will suffer harm because the proposed development will increase demands on the potable water, sewer, traffic, evacuation, police and infrastructure systems. Simply alleging that development will increase demands on various resources does not equate to an adverse effect on an individual plaintiff. Instead, the complaint must allege ultimate facts showing how or why increased demands will result in adverse impacts to the plaintiffs. See Fla. R. Civ. P. 1.110(b) (requiring a "short and plain statement of ultimate facts showing pleader is entitled to relief'); Williams v. Howard, 329 So.2d 277 (F1a.1976) (noting that a "bare assertion" that one's legal rights will be affected, without alleging how or why, is not sufficient to establish standing to file a declaratory judgment action). For example, will the increased numbers of people and demands arising from the proposed development degrade the plaintiffs' water quality? Will they reduce the plaintiffs' access to potable water? Will they increase the price plaintiffs pay for potable water? Will they reduce plaintiffs' access to fishing, boating and other activities in the Homosassa River? Will they cause increased response times from police and fire to plaintiffs' residences? Will they prevent plaintiffs from timely evacuating in an emergency? And, if so, how are any of these adverse effects suffered by the plaintiffs to a greater degree than the community at large? The complaint fails to allege any ultimate facts demonstrating that the plaintiffs will suffer adverse effects, much less adverse effects greater than the community at large. *343 The complaint also alleges that the Alliance and the individual plaintiffs will be adversely affected because their "investment of resources and volunteer activities" to protect the river, educate the public and encourage responsible development will be "for naught" if the County continues to allow development that is inconsistent with the Comprehensive Plan. A similar WESTLAW Submitted into the public record for item(s) PZ.1 on 12/13/2018 , City Clerk argument was soundly rejected by the United States Supreme Court in Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972), a case this Court followed in Florida Rock. There, the Sierra Club had attempted to establish standing under a similar statutory requirement in the Administrative Procedure Act that it allege an "adverse effect." Discussing the purpose for this requirement, the Court stated: The requirement that a party seeking review must allege facts showing that he is himself adversely affected does not insulate executive action from judicial review, nor does it prevent any public interests from being protected through the judicial process. It does serve as at least a rough attempt to put the decision as to whether review will be sought in the hands of those who have a direct stake in the outcome. That goal would be undermined were we to construe the APA to authorize judicial review at the behest of organizations or individuals who seek to do no more than vindicate their own value preferences through the judicial process. Id. at 1368-69 (footnote omitted; emphasis added). In this case, the majority concludes without any supporting analysis that the plaintiffs sufficiently allege that they will be "adversely affected by allowing a development that violates the plan." The majority's conclusion suffers from the same fatal flaw as the complaint itself —it is unsupported by any allegations of ultimate facts showing how or why the alleged violations will adversely affect the plaintiffs, and do so to a greater degree than the community at large. More troubling is the majority's contradictory statement that a showing of harm is not required at all. It states: Save Homosassa River Alliance, Inc. v. Citrus County, Fla., 2 So.3d 329 (2008) 33 Fla. L. Weekly D2490 An interpretation of the statute that requires harm different in degree from other citizens would eviscerate the statute and ignore its remedial purpose. It drags the statute back to the common law test. The Statute is designed to remedy the governmental entity's failure to comply with the established comprehensive plan, and, to that end, it creates a category of persons able to prosecute the claim. The statute is not designed to redress damage to particular plaintiffs. To engraft such a "unique harm" limitation onto the statute would make it impossible in most cases to establish standing and would leave counties free to ignore the plan because each violation of the plan in isolation usually does not harm the individual plaintiff. Rather, the statute simply requires a citizen/plaintiff to have a particularized interest of the kind contemplated by the statute, not a legally protectable right. This analysis is incorrect. By interpreting the statute as requiring only a particularized interest and not a particularized harm, it contravenes the plain language of the statute and conflicts with prior case law from this and other districts. It also leads to the danger described by the Supreme Court in Morton, as follows: It is clear that an organization whose members are injured may represent those members in a proceeding for judicial review. See, e.g., NAACP v. Button, 371 U.S. 415, 428, 83 S.Ct. 328, 335, 9 L.Ed.2d 405. But a mere "interest in a problem," no matter how longstanding *344 the interest and no matter how qualified the organization is in evaluating the problem, is not sufficient by itself to render the organization "adversely affected" or WESTLAW Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk "aggrieved" within the meaning of the APA. The Sierra Club is a large and long-established organization, with a historic commitment to the cause of protecting our Nation's natural heritage from man's depredations. But if a "special interest" in this subject were enough to entitle the Sierra Club to commence this litigation, there would appear to be no objective basis upon which to disallow a suit by any other bona fide "special interest" organization however small or short-lived. And if any group with a bona fide "special interest" could initiate such litigation, it is difficult to perceive why any individual citizen with the same bona fide special interest would not also be entitled to do so. Id. at 739-40, 92 S.Ct. 1361. As discussed above, Florida case law clearly requires more concrete injury than that alleged by the Plaintiffs. On this point the U.S. Supreme Court has previously recognized the requirement of an injury is specific —it requires a "concrete and particularized" injury in fact which "must affect the plaintiff in a personal and individual way," does not allow legal redress for any imaginable injury, and is not "an ingenious academic exercise in the conceivable." Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 566, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). In Lujan, Justice Scalia expressed doubts that the Defenders of Wildlife had alleged sufficient injury to demonstrate standing, simply because a person's aesthetic viewing of a particular species in a particular area of the world was in danger of becoming less pleasurable. Id. at 566, 112 S.Ct. 2130. This argument is "pure speculation and fantasy." Id. To be sure, the Court opined that if a person could show they were observing a threatened species in a particular area of the world and that specific area was threatened, it was "plausible —though it goes to the outermost limit of plausibility" that such a person might have standing. Id. In this case, although the aesthetic viewing argument expressed by the Plaintiffs in this case stretches plausibility for the same reasons, it is somewhat closer to satisfying the constitutional requirement of standing because of Plaintiffs' demonstrated proximity. However, there is an additional problem with Plaintiffs' argument. Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk Save Homosassa River Alliance, Inc. v. Citrus County, Fla., 2 So.3d 329 (2008) 33 Fla. L. Weekly D2490 To demonstrate such an injury, the party seeking redress must state "specific facts" demonstrating "that one or more of respondents' members would thereby be directly affected" by the challenged action. Id. at 563, 112 S.Ct. 2130. This was not accomplished here. Plaintiffs' bare -bones allegations that the increases in density will affect their use of the river is, without more, "pure speculation and fantasy" and is insufficient to show the requisite actual, concrete injury. Because the Second Amended Complaint was fatally defective, the trial judge did not abuse his discretion in dismissing it with prejudice. The standard for reviewing a lower court's dismissal with prejudice is abuse of discretion. Sonny Boy, L.L.C. v. Asnani, 879 So.2d 25, 28-29 (Fla. 5th DCA 2004). Refusal to allow amendment of a pleading constitutes an abuse of discretion unless it clearly appears that allowing the amendment would prejudice the opposing party, the privilege to amend has been abused, or amendment would be futile. Id. While amendments should generally be liberally granted so that cases may be concluded on their merits, "there is an equally compelling obligation on the court to see to it that the end of all litigation be finally reached." Price v. Morgan, 436 So.2d 1116, 1122 (Fla. 5th DCA 1983). *345 Thus, "a trial judge in the exercise of sound discretion may deny further amendments where a case has progressed to a point that liberality ordinarily to be indulged has diminished." Id. The trial court's order denying motion for rehearing demonstrates that dismissal with prejudice was appropriate in this case because further amendment would be futile and would cause prejudice to the defendants. It states: After extensive argument on the defendant's and intervenor's motions to dismiss plaintiffs' Amended Complaint at which time it was thoroughly explained why the facts urged by plaintiffs did not meet the requirements for standing, the court dismissed plaintiffs' complaint but with leave to amend. Although the court inquired at that hearing what additional facts plaintiffs might be able to allege on amendment, plaintiffs' counsel objected to "going outside the record" and insisted that the court rule on the four comers of the complaint. The court gave plaintiffs the benefit of the doubt that they might have additional facts bearing on standing that could be alleged and permitted an amendment. Plaintiffs' second amended complaint also failed to allege sufficient facts showing that plaintiffs were any more affected by the challenged action of the County Commission than any other member of the community. WESTLAW And this is understandable. Plaintiffs cannot invent facts. They now live no closer to the project so that its noise affects them and the shadows case by the buildings still does not fall on plaintiffs' property. Although there was no contention before the County Commission that the project would affect the quality of the water in the Homosassa River, plaintiffs are unable to allege any greater right to the river than the general public. And although the number of units may permit some growth in the area and the buildings may not be consistent with the character of Old Homosassa, these allegations affect all of the citizens in Old Homosassa equally. When delay will prevent the construction of an approved but undesired development, then one may win by losing if the losing process is sufficiently long. In this case, it has been long enough. Plaintiffs have had ample opportunity to show standing if they could. Further delay will not help them. The plaintiffs in this case made three attempts to plead standing and they failed. "Generally three ineffective attempts to state the same cause of action are enough." Henry P. Trawick, Jr., Florida Practice and Procedure § 14-3 at 267 (2007-08 ed.). Most trial judges use the "three strikes and you're out" standard. The record amply demonstrates that the plaintiffs were incapable of pleading sufficient ultimate facts to confer standing. As the trial court noted above, at the hearing on the First Amended Complaint, the court asked the plaintiffs' attomey what additional facts could be alleged and she objected to going `outside the record." Nevertheless, the court entered an order explaining why the complaint was deficient and gave the plaintiffs an opportunity to allege additional ultimate facts. The plaintiffs then filed the Second Amended Complaint, which was also deficient. At the hearing on the motion to dismiss that complaint, plaintiffs' counsel candidly stated: [W]e wouldn't have the second amended complaint, had they not filed a motion to dismiss. What they have been successful in doing is creating —you know, basically making sure that we have a non -assailable complaint once it's time for the matter to be finally resolved, because *346 we have now had two opportunities to dot Save Homosassa River Alliance, Inc. v. Citrus County, Fla., 2 So.3d 329 (2008) 33 Fla. L. Weekly D2490 all the I's and cross all the T's after they have alleged we missed some of those. At no time, either in their motion for rehearing or in this appeal, have the plaintiffs demonstrated what further amendment would be made if given another opportunity to amend. See Price, 436 So.2d at 1122 (noting that appellants failed to demonstrate what further amendment could be made if given the opportunity). Based on the trial judge's reasoning and the record facts supporting it, the plaintiffs have failed to prove that he abused his discretion in dismissing the case with prejudice. To conclude otherwise, as the majority does, is simply to ignore the appellate standard which we are bound to follow. I feel compelled to add the following observations from my experience in this area of the law. No doubt the plaintiffs in this case are honest, sincere people who care deeply about the future of the Homosassa River. My remarks about certain so-called "environmentalists gadflies" should not be interpreted as a reference to them. Footnotes 2 3 4 5 6 7 Submitted into the public record for item(s) PZ.1 , on 12/13/2018 , City Clerk The opinion of Judge Griffin will be cited and used to open the floodgates to the environmental gadflies of the world. They will file spurious complaints which challenge rezoning on the basis that it violates the comprehensive plan. Local government will be hampered in doing what it is supposed to do. Property rights will be trampled by the delays. People who disagree with local decisions will find solace in the judicial branch by virtue of this Court's new-found authority which opens the courthouse door to attempts to overturn the decisions of local, duly -elected officials. Every gadfly with some amorphous environmental agenda, and enough money to pay a filing fee, will be anointed with status simply because the gadfly wants to "protect the planet." The environmental gadfly will win every time, not on the merits, but because, in the words of the trial judge, "[w]hen delay will prevent the construction of an approved but undesired development, then one may win by losing if the losing process is sufficiently long." For those who respect property rights, look out! All Citations 2 So.3d 329, 33 Fla. L. Weekly D2490 Resort's site is designated on the County's generalized future land use map, ("GFLUM"), as CL, Low Intensity Coastal Lakes, which allows a maximum density of one (1) unit per 20 acres, is located in Flood Plain A-11, and is located in the Coastal High Hazard Zone. Specifically, the County and Resort assert in their motion: There exists no allegations within the complaint that establish how the height of the building or the net increase in units will adversely impact the Alliance' [sic] educational purpose or interest in the manatee, Bitters ability to fish in the river, Rendueles' ability to bicycle through Old Homosassa, or Watkins' ability to walk down the streets in Old Homosassa. The canal that Rendueles' property is on is part of the Homosassa River system and opens to the River at Resort's site. Plaintiffs assert that the water system that the individual plaintiffs would share with Resort had "expressed concems regarding the volume of water it will be able to supply because of [Resorts] project demands." The Old Homosassa Redevelopment Area Plan is incorporated into the County's Land Development Code as section 4680. The action underlying this appeal was brought pursuant to section 163.3215(3), Florida Statutes. Section 163.3164(17), Florida Statutes (2007), provides that, as used in the Local Government Comprehensive Planning and Land Development Regulation Act, "[p]erson means an individual, corporation, govemmental agency, business trust, estate, trust, partnership, association, two or more persons having a joint or common interest, or any other legal entity." WESTLAW Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk Save Homosassa River Alliance, Inc. v. Citrus County, Fla., 2 So.3d 329 (2008) 33 Fla. L. Weekly D2490 '441Wir 8 9 10 11 In Florida Rock Properties, 709 So.2d at 177, this Court wrote: "[K]eyser's standing to challenge the Board's zoning decision depends on (1) whether the personal and professional interests he alleged are 'protected or furthered by' Putnam County's comprehensive plan; if so, (2) whether those interests are greater than the general interest in community well being; and (3) whether the interests are or will be adversely affected by the challenged zoning decision." (Emphasis added). In Stranahan House, Inc., 967 So.2d at 434, the Fourth District wrote: Stranahan and Friends meet the test for standing outlined in Florida Rock Properties v. Keyser, 709 So.2d 175, 177 (Fla. 5th DCA 1998). The interests alleged are protected by the City's comprehensive plan, they are greater than the general interest in community well-being, and the interests will be adversely affected by the development. (Emphasis added). "Keyser is a citizen with an interest in the environment and nothing more." 709 So.2d at 177. As for the trial court's denial of Plaintiffs' request to further amend the complaint in light of the dismissal, Plaintiffs had not abused the privilege to amend. Accordingly, the trial court also erred in dismissing Plaintiffs' complaint "with prejudice." End of Document © 2018 Thomson Reuters. No claim to original U.S. Government Works. WESTLAW Save Homosassa River Alliance, Inc. v. Citrus County, Fla., 2 So.3d 329 (2008) 33 Fla. L. Weekly D2490 KeyCite Yellow Flag - Negative Treatment Distinguished by Martin County Conservation Alliance v. Martin County, F1a.App. 1 Dist., June 21, 2010 2 S0.3d 329 District Court of Appeal of Florida, Fifth District. SAVE the HOMOSASSA RIVER ALLIANCE, INC., et al., Appellant, v. CITRUS COUNTY, FLORIDA, et al., Appellee. No. 5D07-2545• Oct. 24, 2008. Rehearing Denied Feb. 19, 2009. Synopsis Background: Environmental group and area landowners brought action against county and property owner, challenging county's approval of property owner's application to build residential buildings on property adjacent to river, which was essential manatee habitat. The Circuit Court, Citrus County, Charles M. Harris, Senior Judge, dismissed action for lack of standing. Plaintiffs appealed. [Holding:] The District Court of Appeal, Griffin, J., held that plaintiffs had standing to bring action. Reversed and remanded. Pleus, J., filed dissenting opinion. West Headnotes (9) 1t1 Zoning and Planning .'Comprehensive or general plan A "local comprehensive land use plan" is a statutorily mandated legislative plan to control and direct the use and development of property within a county or municipality; the plan is WESTLAW 121 131 141 Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk likened to a constitution for all future development within the governmental boundary. West's F.S.A. § 163.3167. Cases that cite this headnote Zoning and Planning Right of Review; Standing As a remedial statute, statute that enlarges class of persons with standing to challenge development order as inconsistent with local comprehensive land use plan is to be liberally construed to advance the intended remedy. West's F.S.A. § 163.3215. Cases that cite this headnote Zoning and Planning Right of Review; Standing The purpose of statute governing standing to appeal and challenge the consistency of a development order with a local comprehensive land use plan is to liberalize standing. West's F.S.A. § 163.3215. Cases that cite this headnote Zoning and Planning ®—Right of Review; Standing A person's standing to bring a challenge under statute governing actions challenging a local government's development order as being inconsistent with local comprehensive land use plan depends on (1) whether the interests the person alleges are protected or furthered by the local government comprehensive plan, if so, (2) whether those interests exceed in degree the general interest in community good shared by all persons, and (3) whether the interests will Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk 06, Save Homosassa River Alliance, Inc. v. Citrus County, Fla., 2 So.3d 329 (2008) 33 Fla. L. Weekly D2490 151 161 be adversely affected by the challenged decision. West's F.S.A. § 163.3215(2, 3). 2 Cases that cite this headnote Zoning and Planning ii .Right of Review; Standing Under statute governing standing regarding actions challenging a local government's development order as being inconsistent with local comprehensive land use plan, requirement that a person must allege an interest that exceeds "in degree the general interest in community good shared by all persons" simply means that a party must allege that they have an interest that is something more than a general interest in community well being. West's F.S.A. § 163.3215(2). Cases that cite this headnote Zoning and Planning u.Pern its, certificates, and approvals Environmental group and area landowners had standing to bring action challenging county's approval of property owner's application to build residential buildings on property adjacent to river as being inconsistent with local comprehensive land use plan; group sought to protect river from problems associated with improper and ineffective storm water management systems, overpopulation of lands adjacent to river, and destruction of wetlands surrounding river, and group and landowners all had direct and demonstrated concern for protection of interests furthered by comprehensive plan that would be adversely affected by allowing development that violated plan. West's F.S.A. § 163.3215(2, 3). Cases that cite this headnote 171 181 191 Zoning and Planning -Right of Review; Standing The "greater -in -degree" part of the test for standing to bring action challenging a local government's development order as being inconsistent with local comprehensive land use plan self -evidently would be met if the plaintiff is an adjacent property owner. West's F.S.A. § 163.3215(2). 1 Cases that cite this headnote Zoning and Planning Right of Review; Standing Statutory test for standing to bring action challenging a local government's development order as being inconsistent with local comprehensive land use plan is directed to the quality of the interest of the person seeking standing; there is no requirement of a unique harm relative to the general population. West's F.S.A. § 163.3215(2, 3). Cases that cite this headnote Zoning and Planning ee.Dismissal Dismissal of second amended complaint for lack of standing was required to be without prejudice rather than with prejudice in action challenging county's approval of property owner's application to build residential buildings on property adjacent to river as being inconsistent with local comprehensive land use plan; plaintiffs had not abused privilege to amend. West's F.S.A. § 163.3215(2, 3). Cases that cite this headnote Attorneys and Law Firms WESTLAW Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk Save Homosassa River Alliance, Inc. v. Citrus County, Fla., 2 So.3d 329 (2008) 33 Fla. L. Weekly D2490 *331 Denise A. Lyn, of Denise A. Lyn, P.A., Inverness, for Appellant. Michele Lieberman, of Law Office of Michele L. Lieberman, LL, Inverness, for Appellee. Carl A. Bertoch, Crystal River, for Intervenor, Homosassa Riverside Resort, LLC. Opinion GRIFFIN, J. Save the Homosassa River Alliance, Inc., James Bitter, Rosemary Rendueles, and Priscilla Watkins [collectively "Plaintiffs"] appeal the trial court's order dismissing, with prejudice, their suit against Citrus County, Florida ["County"] and Homosassa River Resort, LLC ["Resort"] on the ground that they lack standing. Resort owns property adjacent to the Homosassa River ["River"] in Old Homosassa, Florida. The Homosassa River is an Outstanding Florida Waterway and an essential manatee habitat) There are two buildings on Resort's site, containing fifteen residential condominium units. Resort applied to the County for a land development code atlas amendment "to allow the development and redevelopment of 87 condominium dwelling units, retail space, amenities and parking" on this property. The project would result in the construction of four four-story residential structures. On July 11, 2006, Citrus County's Board of County Commissioners enacted Ordinance No. 2006—A13, which approved Resort's application and amended the County's land development code to reflect the approval. Plaintiff Alliance is a not -for -profit corporation "committed to the preservation and conservation of environmentally sensitive lands and the wildlife in and around the Homosassa River and in Old Homosassa, Florida." Plaintiffs Bitter, Rendueles, and Watkins are individuals who own property in the area. On August 10, 2006, Plaintiffs filed this suit against the County, pursuant to section 163.3215, challenging the County's approval of Resort's application on the ground that it is inconsistent with the County's Comprehensive Land Use Plan, Citrus County Ordinance No. 89-04, as amended. On November 9, 2006, before the initial complaint was served on the County, Plaintiffs filed an Amended Complaint. Resort was allowed to intervene in the dispute and the County filed a motion to dismiss, arguing that the Plaintiffs had failed to plead sufficient facts to establish WESTI.AW standing. The trial court agreed and dismissed Plaintiffs' complaint, with twenty days to amend. *332 Plaintiffs filed their Second Amended Complaint against both the County and Resort, to which the County and Resort responded by filing a joint motion to dismiss. In their joint motion to dismiss, the County and Resort alleged that Plaintiffs had failed to establish standing because they had not sufficiently alleged (1) "any interest that exceeds in degree that of the general community," (2) "harm to such interests over and above that of their neighbors," or (3) "any nexus between the alleged comprehensive plan violations and the interests of the parties."' The trial court heard arguments on the County and Resort's joint motion. At the hearing, Resort and the County essentially reiterated the points they had raised in their written motion and urged that the dismissal of the Second Amended Complaint be with prejudice. Plaintiffs argued that section 163.3215 gave affected citizens significantly enhanced standing to challenge the consistency of development decisions and that their allegations were sufficient to establish standing under this liberalized standard. On about July 2, 2007, the trial court dismissed the Second Amended Complaint with prejudice, concluding that Plaintiffs had failed to sufficiently allege that their interests were adversely affected by the project in a way not experienced by the general population and because of insufficient "nexus" allegations. The trial court observed that "[t]here are no allegations that the county -approved plan permits improper runoff into the river or that the proposed development will itself (other than by adding people to the mix) adversely affect the quality of water or access to the river." Additionally, the trial court noted that "[t]here is no indication that residents living in this proposed project would add any more burden to the streets, storm drainage, river crowding, etc. than residents living elsewhere in the city." Plaintiffs filed a motion for rehearing on July 11, 2007. In the motion for rehearing, Plaintiffs asserted that the trial court's analysis was not within the statute. They also objected that the trial court's dismissal "with prejudice" at that stage of the proceedings was premature and contrary to the existing case law. The trial court concluded that Plaintiffs had been given "ample opportunity to show standing if they could" and that they would not be helped by further delay. The trial court denied Plaintiffs' motion for rehearing. Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk L Save Homosassa River Alliance, Inc. v. Citrus County, Fla., 2 So.3d 329 (2008) 33 Fla. L. Weekly D2490 The Second Amended Complaint Plaintiffs' Second Amended Complaint contains lengthy allegations in support of their standing to bring this suit. The complaint begins by introducing each of the plaintiffs (Alliance, Bitter, Rendueles, and Watkins). Alliance is a not -for -profit corporation committed to the preservation of the lands and the wildlife in and around the Homosassa River and Old Homosassa, Florida. The complaint explains that the group has "embarked on a specific and focused course" to protect the River from problems associated with improper and ineffective storm water management systems, overpopulation of the lands adjacent to the River, destruction of wetlands surrounding the River, degradation of the River's water quality, and excessive boat traffic upon the River. The group conducts *333 seminars to educate the area's residents about the River and how to preserve it. One of the Alliance's main objectives has been "the orderly development and preservation of the character of Old Homosassa." Members of the group use the River for both educational and recreational purposes; have invested substantial effort and funds to protect and preserve the River and its endangered manatees; and have served on the Old Homosassa Area Redevelopment Plan steering committee. The complaint alleges that Bitter is an active Alliance member who owns property about three miles from Resort's site. He is conscious of governmental actions that affect the health of the Homosassa River and participates actively in public conversations regarding development of the area. Bitter fishes in the River, frequently boats along it, and often visits its shores "to admire the beauty and wonder of the River and its wildlife." Additionally, Bitter receives potable water from the Homosassa Special Water District, fire protection from the County's fire department, police protection from the County's Sheriffs Department, and emergency services by Nature Coast EMS. Finally, it is alleged that in the event of a natural disaster or a threat of a natural disaster, Bitter would have to evacuate his property via West Fishbowl Drive, which is a two-lane road in Homosassa. "West Fishbowl Drive ... is along the evacuation route for [Resort's] property...." Rendueles owns canal -front real property less than a mile from Resort's site.' Rendueles worked on the County's Old Homosassa Overlay steering committee and actively participated during the County's public hearings on Resort's application. Additionally, it is alleged that WESTLAW Rendueles "enjoys the beauty of nature by traveling down the Homosassa River and walking and bicycling along the streets in Old Homosassa." She often visits the River's shores "to admire the beauty and wonder of the River and its wildlife." Rendueles receives potable water from the Homosassa Special Water District, fire protection from the County's fire department, police protection from the County's Sheriff's Department, and emergency services by Nature Coast EMS. In the event of a natural disaster or a threat of a natural disaster, Rendueles would evacuate her property via W. Yulee Drive, which is a two-lane road in Homosassa. Watkins owns real property within Homosassa, Florida. She participates in Alliance's activities and actively participated during the County's public hearings on Resort's application. Watkins frequently kayaks on the River; bicycles along W. Halls River Road and W. Fishbowl Drive; and enjoys walking down Old Homosassa's uncrowded streets and roads. Watkins receives potable water from the Homosassa Special Water District, sewer services from Citrus County, fire protection from the County's fire department, police protection from the County's Sheriff's Department, and emergency services by Nature Coast EMS. In the event of a natural disaster or a threat of a natural disaster, Watkins would evacuate her property via W. Halls River Road, a two-lane road in Homosassa, which is along the evacuation route for Resort's property. Plaintiffs allege that "[b]ecause of the County's adoption of a development order which is inconsistent with its adopted Comprehensive Plan[,] [Plaintiffs] will suffer an adverse effect to their interests *334 furthered by the local government comprehensive plan...." In paragraph 27, Plaintiffs generally list protected interests that they claim will be adversely affected by the County's approval. Specifically, Plaintiffs allege: The Alliance and Property Owners, including the members of the corporation, will suffer adverse effects to interests protected or furthered by the adopted Plan, as amended, including but not limited to their property interests, their interest in protecting and maintaining the existing water quality of the Homosassa River, their interest in protecting the endangered Manatees, their 'Drk Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk Save Homosassa River Alliance, Inc. v. Citrus County, Fla., 2 So.3d 329 (2008) 33 Fla. L. Weekly D2490 interest in sufficient water and wastewater infrastructure, their interests in efficient and equitable distribution of land uses in the area, their interests in reasonable investment -backed expectations in their area, their interests in land use, their interests in preserving the character of Old Homosassa, their interests related to health and safety, including the safety and efficiency of recreation facilities and streets, police and fire protection, densities or intensities of development, including the compatibility of adjacent land uses, their interest in environmental or natural resources and their interest in wetland preservation. In paragraphs 9 through 12, Plaintiffs allege how the harm they would each suffer "exceeds the harm caused to the public in general." With regard to Alliance, Plaintiffs allege: 12). Alliance will be harmed to a degree that exceeds the harm caused to the public in general because of the Alliance's investment of resources and volunteer activities to protect the health and welfare of the Homosassa River and to encourage environmentally sound development practices around the Homosassa River. Its tireless efforts to educate the public and to and sound encourage clean environmentally development will be for naught if the County continues to allow development that is inconsistent with the goals and objectives of its Comprehensive Plan. With respect to each of the individual plaintiffs, Plaintiffs allege that Resort's proposed development activities would increase the number of people in the area and, WESTLAIN accordingly, increase demands relating to public services, evacuation, traffic, and infrastructure.' It is alleged that, given their proximity to "the project and given [their] use of the same water system, roadway system ... waterway system," and in the case of Watkins, sewer system, "[Plaintiffs] will suffer harm to a greater degree than that of the public in general." Plaintiffs additionally allege that Bitter would "be harmed to a degree that exceeds the harm caused to the public in general" because of his participation in the local government process and his volunteer efforts to preserve and protect the River; that Rendueles would "be harmed to a degree that exceeds the harm caused to the public in general" due to her proximity to the development, her location in the Coastal High Hazard Area, and her location within the Old Homosassa Redevelopment Area; and that Watkins would "be harmed to a degree that exceeds the harm caused to the public in general" because of her proximity to the development, her location within the Coastal High Hazard Area, her use of the River, and her active use of the roads and streets within Old Homosassa. *335 Finally, the complaint contains allegations concerning the interests the comprehensive plan is intended to protect and how Resort's proposed project is inconsistent with the plan. Plaintiffs allege that the plan's provisions are intended to: a) Preserve, protect, and restore County's natural resources.... b) Protect and maintain the water quality of the ... Homosassa ... [River].... c) Provide the GFLUM be recognized as the primary document used by County in land use regulation and in guiding future growth. e) Provide that where County's LDC conflicts with or overlaps other regulations, whichever imposes the more stringent restrictions shall prevail. f) Limit residential structures in the coastal high hazard area to two (2) stories. g) Prohibit the expansion of R-2 occupancies in the coastal high hazard area. h) Limit structures in the Old Homosassa Redevelopment Area to two (2) stories over the first living floor. i) Require all structures constructed in the Old Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk Save Homosassa River Alliance, Inc. v. Citrus County, Fla., 2 So.3d 329 (2008) 33 Fla. L. Weekly D2490 Homosassa Redevelopment Area to provide for a 10 foot step back of the second story over the first story. j) Require all development in the Old Homosassa Redevelopment Area to further the character and vision provided for Old Homosassa and to be compatible with existing structures in the area. k) Prohibit the development or expansion of general commercial uses within Old Homosassa. The complaint then alleges that the proposed development is inconsistent with the Plan, because it: a) Allows for the expansion of R-2 residential dwelling units in the coastal high hazard area. b) Allows for the construction of three (3) story over parking residential structures in the coastal high hazard area. c) Allows for the construction of structures that are not compatible with the character and vision of Old Homosassa. d) Allows for the construction of four (4) residential structures which do not provide for a step back of stories. e) Allows for increases in residential dwellings in the coastal high hazard area. f) Allows for the expansion or development of new commercial uses within Old Homosassa. g) Allows for the development of residential uses upon lands designated as GNC within Old Homosassa. The trial court's order indicates that it dismissed Plaintiffs' Second Amended Complaint because it found that Plaintiffs had failed to sufficiently allege that their interests were adversely "affected by the project in a way not experienced by the general population." Additionally, the trial court's order adopted the "nexus" argument of Resort and the County, ruling that "there must be some nexus between the alleged evil of the challenged action and the adverse [e]ffect claimed." WESTLAW *336 Controlling Law 111 "A local comprehensive land use plan is a statutorily mandated legislative plan to control and direct the use and development of property within a county or municipality. The plan is likened to a constitution for all future development within the governmental boundary." Machado v. Musgrove, 519 So.2d 629, 631-32 (Fla. 3d DCA 1987) (citations omitted). See also § 163.3167, Fla. Stat. (2007). Once a comprehensive plan has been adopted pursuant to the Local Government Comprehensive Planning and Land Development Regulation Act, "all development undertaken by, and all actions taken in regard to development orders by, governmental agencies in regard to land covered by such plan" must be consistent with that plan. § 163.3194(1)(a), Fla. Stat. (2007); see also § 163.3164(7), Fla. Stat. (2007). 121 131 Prior to 1985, common law governed a third parry's standing to intervene to challenge a development order as inconsistent with the governing comprehensive plan. See Parker v. Leon County, 627 So.2d 476, 479 (F1a.1993), Citizens Growth Mgmt. Coal., Inc. v. City of W. Palm Beach, 450 So.2d 204, 206-08 (Fla.1984). The common law rule provided that, in order to have standing to challenge a land use decision, a party had to possess a legally recognized right that would be adversely affected by the decision or suffer special damages different in kind from that suffered by the community as a whole. Putnam County Envtl. Council, Inc. v. Bd. of County Comm'rs, 757 So.2d 590, 592-93 (Fla. 5th DCA 2000); Citizens Growth Mgmt. Coal., Inc., 450 So.2d at 206. In 1985, the Florida Legislature reacted to the Supreme Court's 1984 decision in Citizens Growth Management that the common law rules of standing applied to the Growth Management Act by enacting section 163.3215, Florida Statutes.6 Its stated purpose was "to ensure the standing for any person who 'will suffer an adverse effect to an interest protected ... by the ... comprehensive plan.' " Parker, 627 So.2d at 479 (citing § 163.3215(2), Fla. Stat. (1985)); see also Edu. Dev. Ctr., Inc. v. Palm Beach County, 751 So.2d 621, 623 (Fla. 4th DCA 1999) (section 163.3215 is a remedial statute in that it "enlarged the class of persons with standing to challenge a development order as inconsistent with the comprehensive plan"). As a remedial statute, section 163.3215 is to "be liberally construed to advance the intended remedy...." Edu. Dev. Ctr., Inc., 751 So.2d at 623; see also Dunlap v. Orange County, 971 So.2d 171, 174 (Fla. 5th DCA 2007). There is no doubt that the purpose of the adoption of section 163.3215 was to liberalize standing in this context. See City of Ft. Myers v. Splitt, 988 So.2d 28 (Fla. 2d DCA 2008). 141 In part, section 163.3215(3), Florida Statutes (2007), Save Homosassa River Alliance, Inc. v. Citrus County, Fla., 2 So.3d 329 (2008) 33 Fla. L. Weekly D2490 CV provides: Any aggrieved or adversely affected party may maintain a de novo action for declaratory, injunctive, or other relief against any local government to challenge any decision of such local government granting or denying an application for, or to prevent such local government from taking any action on, a development order, as defined in s. 163.3164, which materially alters the use or density or intensity of use on a particular piece of property which is not consistent with the comprehensive plan adopted under this part. *337 Further, section 163.3215(2), Florida Statutes (2007), provides: As used in this section, the term "aggrieved or adversely affected party" means any person'' or local government that will suffer an adverse effect to an interest protected or furthered by the local government comprehensive plan, including interests related to health and safety, police and fire protection service systems, densities or intensities of development, transportation facilities, health care facilities, equipment or services, and environmental or natural resources. The alleged adverse interest may be shared in common with other members of the community at large but must exceed in degree the general interest in community good shared by all persons. The term includes the owner, developer, or applicant for a development order. Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk (Emphasis added). Thus, a person's standing to bring a challenge under section 163.3215(3) depends on (1) whether the interests the person alleges are "protected or furthered by the local government comprehensive plan"; if so, (2) whether those interests "exceed in degree the general interest in community good shared by all persons"; and (3) whether the interests will be adversely affected by the challenged decision. See § 163.3215(2), Fla. Stat. (2007); see also Fla. Rock Props. v. Keyser, 709 So.2d 175, 177 (Fla. 5th DCA 1998). 151 There is nothing obscure about the statutory language requiring a person seeking standing to allege an interest that "[exceeds] in degree the general interest in community good shared by all persons" to establish standing. It simply means that a party must allege that they have an interest that is something more than "a general interest in community well being." See Keyser, 709 So.2d at 177'; see also Stranahan House, Inc. v. City of Fort Lauderdale, 967 So.2d 427, 434 (Fla. 4th DCA 2007).9 The statute does not say that a party must be harmed to a greater degree than the general public. Not surprisingly, the case law assumes that an organization has an interest that is greater than "the general interest in community well being" when the organization's primary purpose includes protecting the particular interest that they allege will be adversely affected by the comprehensive plan violation. See Stranahan House, Inc., 967 So.2d at 434. The old common law test was so narrowly drawn that there often was no means of redress for a comprehensive plan violation. The expanded statutory test eliminates *338 "gadfly" litigation, yet gives oversight to the segment of the public that is most likely to be knowledgeable about the interest at stake and committed to its protection. The statute expressly identifies by multiple examples the kinds of interests the legislature intended to protect: As used in this section, the term "aggrieved or adversely affected party" means any person or local government that will suffer an adverse effect to an interest protected or furthered by the local government comprehensive plan, including interests related to health and safety, police and fire protection service systems, densities or intensities of development, transportation facilities, health care facilities, equipment or services, and environmental or natural resources. § 163.3215(2), Fla. Stat. (2007) (emphasis added). Application of the statutory test is illustrated by comparing two of the leading cases previously decided by this court. In Keyser, Timothy Keyser had filed a lawsuit WESTLAW Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk Save Homosassa River Alliance, Inc. v. Citrus County, Fla., 2 So.3d 329 (2008) 33 Fla. L. Weekly D2490 challenging the decision of the Putnam County Commission to rezone a 509 acre parcel of Florida Rock Properties' land from agricultural to mining. This Court held that Keyser's allegation that the Commission's decision "would adversely affect his quality of life by its negative impact upon wildlife populations and habitats in Putnam County" was insufficient to establish standing. 709 So.2d at 177. In explaining why the allegation was insufficient, this Court said, "Keyser never demonstrated any specific injury, only that the county would not be as bucolic as it once was. Keyser is a citizen with an interest in the environment and nothing more." Id. In Putnam County Environmental Council, Inc., a company owned a piece of land adjacent to the Etoniah Creek State Forest, which was zoned for agricultural use. The company and the local school board "applied for a special exception to the county's comprehensive plan to allow the construction of a regional middle school complex on" the company's property. 757 So.2d at 591. The application was approved, and the Putnam County Environmental Council ["PCEC"] subsequently filed a complaint, seeking to enforce Putnam County's comprehensive plan pursuant to chapter 163. The trial court concluded that PCEC lacked standing to challenge the order under section 163.3215 and dismissed the action on that basis. It its complaint, PCEC alleged that its "primary organizational purposes and activities include the study and protection of natural resources and the advocacy of sound land use and growth management policies affecting the environment"; that its officers and members had "initiated and facilitated the original public acquisition of the Etoniah Creek State Forest"; and that "[a] substantial number of [its] members, along with non-members who participate in PCEC-sponsored activities, use the Etoniah Creek State Forest for recreational and educational purposes." Putnam County Envtl. Council, Inc., 757 So.2d at 592. Additionally, PCEC alleged: The use allowed under the special exception will adversely affect PCEC's use and its members' use of the adjacent Etoniah Creek State Forest as natural resource area. The use of the subject parcel for a school will adversely impact the ability of the Division of Forestry to use controlled burns to manage the adjacent state forest. Without controlled burns, habitat for a variety of species in the Etoniah Creek State Forest will be reduced or eliminated, thus adversely affecting the ability of PCEC, its members, and others who participate in *339 PCEC-sponsored activities to observe or study those species. Also, without controlled bums, much of the forest will become overgrown with understory species, thus adversely affecting the ability of PCEC, its members, and others who participate in PCEC-sponsored activities to access and hike portions of Etoniah Creek State Forest. Furthermore, the physical presence of a school plant as well as the increased traffic and the activity, lights, and noise associated with a school facility, athletic fields, parking lots, and school bands are incompatible with Etoniah Creek State Forest's nature -based recreation and will discourage and interfere with the ability of wide-ranging species such as the black bear to reach or remain in the state forest. This will adversely affect the ability of PCEC, its members, and others who participate in PCEC-sponsored activities to observe or study those species.... Id. 161 In holding that PCEC had made sufficient allegations to establish standing, this Court said: [H]ere PCEC's complaint alleged specific injuries that PCEC would suffer if a middle school complex was constructed on Roberts' property, including the destruction of the habitat of species being studied by PCEC members and the elimination of PCEC members' access to the forest and the forest's creatures by the overgrowth of the forest. The diminution of species being studied by the group is a harm particular to PCEC, making PCEC more than just a group with amorphous "environmental concerns." Accordingly, the WEST LAW Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk Save Homosassa River Alliance, Inc. v. Citrus County, Fla., 2 So.3d 329 (2008) 33 Fla. L. Weekly D2490 allegations set forth in PCEC's complaint are sufficient to demonstrate the requisite level of interest. PCEC's involvement in the original acquisition of the land for use as a state forest and its continued, active connection with that state forest further demonstrate an interest greater than that which all persons share in the community good. Id. at 593-94. 171 On appeal, Plaintiffs begin with the premise that the trial court's dismissal order was based on the trial court's view that in order to have standing to mount a section 163.3215 challenge, the plaintiff must own real property adjacent to or very near the parcel at issue. It is true that there is much in the appealed order to suggest that was the court's view. We do not believe the court's analysis to be quite so narrow, however. It does appear that the trial court had difficulty envisioning how the "greater -in -degree" part of the statutory test for standing could be met if the plaintiff did not own adjacent real property. The "greater -in -degree" part of the test self -evidently would be met if the plaintiff is an adjacent property owner. Everyone else has to figure out how to surmount the tag -line test in Keyser,10 i.e., how to be Now "something more" than just a "citizen with an interest in the environment." The County contends that Plaintiffs' complaint lacks "facts sufficient to establish that the impact upon their educational efforts, enjoyment of the outdoors and use of government services is to a greater degree than others with the community," and that Plaintiffs have failed to establish precisely how the alleged comprehensive plan violations, which relate to increased height and density, would impact their interests *340 (i.e. their educational efforts, enjoyment of the outdoors and use of government services) to any greater degree than the Old Homosassa community as a whole. In its separate Answer Brief, Resort similarly asserts that Plaintiffs failed to specifically identify an "adverse interest or impact that" they "could expect to occur due to [its] proposed hotel expansion" and failed to show that their "interests are adversely affected in a way not experienced by the general population." 18J Plaintiffs contend that the trial court's dismissal should be reversed because they have alleged concrete and specific adverse interests that exceed in degree the general interest in community good shared by all. Plaintiffs maintain that it is not necessary for them to show that they will suffer a unique harm and reject the appellees' position as being outside the express language WESTLAW and intent of the statute. We agree with Plaintiffs that the statutory test is directed to the quality of the interest of the person seeking standing; there is no requirement of a unique harm relative to the general population. The allegations of the Second Amended Complaint amply demonstrate that each of the plaintiffs has an interest that is greater than "a general interest in community good shared by all persons." The allegations show that the Plaintiffs all have a direct and demonstrated concern for the protection of the interests furthered by the comprehensive plan that would be adversely affected by allowing a development that violates the plan. An interpretation of the statute that requires harm different in degree from other citizens would eviscerate the statute and ignore its remedial purpose. It drags the statute back to the common law test. The statute is designed to remedy the governmental entity's failure to comply with the established comprehensive plan, and, to that end, it creates a category of persons able to prosecute the claim. The statute is not designed to redress damage to particular plaintiffs. To engraft such a "unique harm" limitation onto the statute would make it impossible in most cases to establish standing and would leave counties free to ignore the plan because each violation of the plan in isolation usually does not uniquely harm the individual plaintiff. Rather, the statute simply requires a citizen/plaintiff to have a particularized interest of the kind contemplated by the statute, not a legally protectable right. 191 In sum, we conclude that the Second Amended Complaint adequately alleges Plaintiffs' standing to challenge the County's alleged failure to comply with its comprehensive plan in approving Resort's project." We accordingly reverse and remand for further proceedings. REVERSED and REMANDED. SAWAYA, J., concurs. PLEUS, J., dissents, with opinion. PLEUS, J., dissenting. I dissent. The able and sage trial judge understood the case law and applied it properly. He correctly dismissed this case with prejudice for lack of standing because the plaintiffs repeatedly failed to allege any adverse effects, impact or harm they would suffer from the proposed Submitted into the public record for item(s) PZ.1 on 12/13/2018 , City Clerk Save Homosassa River Alliance, Inc. v. Citrus County, Fla., 2 So.3d 329 (2008) 33 Fla. L. Weekly D2490 development that was unique to them. Without it being unique to them, their interest cannot exceed in degree the general interest in the community good shared by all persons. The majority opinion eviscerates the "adverse *341 effect" element of the standing requirement in subsection 163.3215(2), Florida Statutes, and stands in direct conflict with the case law interpreting that statute. Subsection 163.3215(2) defines an "aggrieved or adversely affected party" as "any person or local government which will suffer an adverse effect to an interest furthered by the local government comprehensive plan...." (Emphasis added). It further states that "[t]he alleged adverse interest may be shared in common with other members of the community at large but must exceed in degree the general interest in community good shared by all persons." (Emphasis added). The cases discussing this section have uniformly interpreted it as requiring factual allegations that plaintiffs will suffer adverse effects and that those adverse effects will be greater than those suffered by the community at large. See Dunlap v. Orange County, 971 So.2d 171 (Fla. 5th DCA 2007); Stranahan House, Inc. v. City of Fort Lauderdale, 967 So.2d 427 (Fla. 4th DCA 2007); Payne v. City of Miami, 927 So.2d 904 (Fla. 3d DCA 2005); Edgewater Beach Owners Ass 'n, Inc. v. Walton County, 833 So.2d 215 (Fla. 1st DCA 2002), receded from on other grounds, Bay Point Club, Inc. v. Bay County, 890 So.2d 256 (Fla. 1st DCA 2004); Putnam County Envtl. Council, Inc. v. Bd. of County Comm'rs, 757 So.2d 590, 592-93 (Fla. 5th DCA 2000) Florida Rock Props. v. Keyser, 709 So.2d 175, 177 (Fla. 5th DCA 1998); Pichette v. City of N. Miami, 642 So.2d 1165 (Fla. 3d DCA 1994); Sw. Ranches Homeowners Ass'n, Inc. v. Broward County, 502 So.2d 931 (Fla. 4th DCA 1987). Florida Rock, in my view, is a correct analysis of the statute. It tells us two things. Owning real property in the vicinity of the rezoning, and being concerned about the effects of the rezoning, is not sufficient to confer jurisdiction. The rezoning must have a specific impact or involve some harm on or to the property owner or his property. For example, in Dunlap, this Court concluded that the plaintiffs had standing in part because "as owners of property fronting the lake on which Country Lake Estates is being developed, their interests will be affected by WI Homes' boat ramp construction to an extent which is greater than those held by general members of the community who do not own such lake -front property." 971 So.2d at 175. WESTLAW In Stranahan House, the Fourth District held that the plaintiff sufficiently pled an adverse effect by alleging that as the adjoining property owner, Stranahan House would be negatively affected by "increased traffic and the activity, lights, alteration of Stranahan's enjoyment of light and air, the visual and audio pollution caused by the development and the effect of the shadow cast over the Stranahan property at certain times of the year." 967 So.2d at 433-34. In Payne, the Third District found that the plaintiffs had sufficiently alleged that they would suffer "adverse effects, exceeding the general interests shared by the community at large," by alleging they would suffer specific injuries to their ability to conduct business along the river due to depletion of available sites for marine industrial use by the conversion of industrial land to residential and commercial uses. 927 So.2d at 909. In Edgewater Beach, the First District found that the plaintiff homeowners association demonstrated standing at trial by testifying that an adjacent proposed development would block members' ocean views, thereby reducing their property values, and it would place their recreational facilities in shade until noon. 833 So.2d at 220. *342 In Putnam County Envtl. Council, this Court held that the plaintiff organization sufficiently alleged adverse effects by asserting "specific injuries" it would suffer, including destruction of the habitat of species its members studied and elimination of members' access to the forest and its creatures by overgrowth from discontinuation of controlled burns. 757 So.2d at 593. This Court concluded that such alleged adverse effects were "particular" to the plaintiff organization, making it more than just a group with amorphous environmental concerns. Id. In Florida Rock, this Court held that the plaintiff lacked standing because he failed to show that he would suffer an adverse effect or specific injury from the proposed development. Although the plaintiff alleged generally that the proposed development would "affect his quality of life" and that the County would not be as bucolic as it once was, this Court noted that the alleged injury should be "unique" and "specific" to the plaintiff. It further instructed, "Had Keyser lived adjacent to the property, and had he been able to show a specific impact the zoning change would have upon him or his property, he would have standing." 709 So.2d at 177. In Pichette, the Third District affirmed a summary judgment for lack of standing because the plaintiffs failed to demonstrate that they would be affected by "noise, Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk Save Homosassa River Alliance, Inc. v. Citrus County, Fla., 2 So.3d 329 (2008) 33 Fla. L. Weekly D2490 —. traffic impact, land value diminution, or and any other respect by the proposed zoning ordinance." 642 So.2d at 1166. L In Southwest Ranches, the Fourth District held that the plaintiffs sufficiently alleged standing by asserting that they were a group of landowners who would be directly affected by a proposed adjacent landfill's pollution, flooding and deterioration of the potable water supply. 502 So.2d at 934-35. In the instant case, the plaintiffs failed to allege that they would suffer any adverse effect from the proposed development, much less any that would affect them to a greater degree than the community at large. The complaint alleges that the individual plaintiffs will suffer harm because the proposed development will increase demands on the potable water, sewer, traffic, evacuation, police and infrastructure systems. Simply alleging that development will increase demands on various resources does not equate to an adverse effect on an individual plaintiff. Instead, the complaint must allege ultimate facts showing how or why increased demands will result in adverse impacts to the plaintiffs. See Fla. R. Civ. P. 1.110(b) (requiring a "short and plain statement of ultimate facts showing pleader is entitled to relief"); Williams v. Howard, 329 So.2d 277 (F1a.1976) (noting that a "bare assertion" that one's legal rights will be affected, without alleging how or why, is not sufficient to establish standing to file a declaratory judgment action). For example, will the increased numbers of people and demands arising from the proposed development degrade the plaintiffs' water quality? Will they reduce the plaintiffs' access to potable water? Will they increase the price plaintiffs pay for potable water? Will they reduce plaintiffs' access to fishing, boating and other activities in the Homosassa River? Will they cause increased response times from police and fire to plaintiffs' residences? Will they prevent plaintiffs from timely evacuating in an emergency? And, if so, how are any of these adverse effects suffered by the plaintiffs to a greater degree than the community at large? The complaint fails to allege any ultimate facts demonstrating that the plaintiffs will suffer adverse effects, much less adverse effects greater than the community at large. *343 The complaint also alleges that the Alliance and the individual plaintiffs will be adversely affected because their "investment of resources and volunteer activities" to protect the river, educate the public and encourage responsible development will be "for naught" if the County continues to allow development that is inconsistent with the Comprehensive Plan. A similar WESTLAW argument was soundly rejected by the United States Supreme Court in Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972), a case this Court followed in Florida Rock. There, the Sierra Club had attempted to establish standing under a similar statutory requirement in the Administrative Procedure Act that it allege an "adverse effect." Discussing the purpose for this requirement, the Court stated: The requirement that a party seeking review must allege facts showing that he is himself adversely affected does not insulate executive action from judicial review, nor does it prevent any public interests from being protected through the judicial process. It does serve as at least a rough attempt to put the decision as to whether review will be sought in the hands of those who have a direct stake in the outcome. That goal would be undermined were we to construe the APA to authorize judicial review at the behest of organizations or individuals who seek to do no more than vindicate their own value preferences through the judicial process. Id. at 1368-69 (footnote omitted; emphasis added). In this case, the majority concludes without any supporting analysis that the plaintiffs sufficiently allege that they will be "adversely affected by allowing a development that violates the plan." The majority's conclusion suffers from the same fatal flaw as the complaint itself —it is unsupported by any allegations of ultimate facts showing how or why the alleged violations will adversely affect the plaintiffs, and do so to a greater degree than the community at large. More troubling is the majority's contradictory statement that a showing of harm is not required at all. It states: Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk Save Homosassa River Alliance, Inc. v. Citrus County, Fla., 2 So.3d 329 (2008) 33 Fla. L. Weekly D2490 An interpretation of the statute that requires harm different in degree from other citizens would eviscerate the statute and ignore its remedial purpose. It drags the statute back to the common law test. The Statute is designed to remedy the governmental entity's failure to comply with the established comprehensive plan, and, to that end, it creates a category of persons able to prosecute the claim. The statute is not designed to redress damage to particular plaintiffs. To engraft such a "unique harm" limitation onto the statute would make it impossible in most cases to establish standing and would leave counties free to ignore the plan because each violation of the plan in isolation usually does not harm the individual plaintiff. Rather, the statute simply requires a citizen/plaintiff to have a particularized interest of the kind contemplated by the statute, not a legally protectable right. This analysis is incorrect. By interpreting the statute as requiring only a particularized interest and not a particularized harm, it contravenes the plain language of the statute and conflicts with prior case law from this and other districts. It also leads to the danger described by the Supreme Court in Morton, as follows: It is clear that an organization whose members are injured may represent those members in a proceeding for judicial review. See, e.g., NAACP v. Button, 371 U.S. 415, 428, 83 S.Ct. 328, 335, 9 L.Ed.2d 405. But a mere "interest in a problem," no matter how longstanding *344 the interest and no matter how qualified the organization is in evaluating the problem, is not sufficient by itself to render the organization "adversely affected" or "aggrieved" within the meaning of the APA. The Sierra Club is a large and long-established organization, with a historic commitment to the cause of protecting our Nation's natural heritage from man's depredations. But if a "special interest" in this subject were enough to entitle the Sierra Club to commence this litigation, there would appear to be no objective basis upon which to disallow a suit by any other bona fide "special interest" organization however small or short-lived. And if any group with a bona fide "special interest" could initiate such litigation, it is difficult to perceive why any individual citizen with the same bona fide special interest would not also be entitled to do so. Id. at 739-40, 92 S.Ct. 1361. As discussed above, Florida case law clearly requires more concrete injury than that alleged by the Plaintiffs. On this point the U.S. Supreme Court has previously recognized the requirement of an injury is specific —it requires a "concrete and particularized" injury in fact which "must affect the plaintiff in a personal and individual way," does not allow legal redress for any imaginable injury, and is not "an ingenious academic exercise in the conceivable." Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 566, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). In Lujan, Justice Scalia expressed doubts that the Defenders of Wildlife had alleged sufficient injury to demonstrate standing, simply because a person's aesthetic viewing of a particular species in a particular area of the world was in danger of becoming less pleasurable. Id. at 566, 112 S.Ct. 2130. This argument is "pure speculation and fantasy." Id. To be sure, the Court opined that if a person could show they were observing a threatened species in a particular area of the world and that specific area was threatened, it was "plausible —though it goes to the outermost limit of plausibility" that such a person might have standing. Id. In this case, although the aesthetic viewing argument expressed by the Plaintiffs in this case stretches plausibility for the same reasons, it is somewhat closer to satisfying the constitutional requirement of standing because of Plaintiffs' demonstrated proximity. However, there is an additional problem with Plaintiffs' argument. WESTLAW Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk Save Homosassa River Alliance, Inc. v. Citrus County, Fla., 2 So.3d 329 (2008) 33 Fla. L. Weekly D2490 *�- To demonstrate such an injury, the party seeking redress must state "specific facts" demonstrating "that one or more of respondents' members would thereby be directly affected" by the challenged action. Id. at 563, 112 S.Ct. 2130. This was not accomplished here. Plaintiffs' bare -bones allegations that the increases in density will affect their use of the river is, without more, "pure speculation and fantasy" and is insufficient to show the requisite actual, concrete injury. L Because the Second Amended Complaint was fatally defective, the trial judge did not abuse his discretion in dismissing it with prejudice. The standard for reviewing a lower court's dismissal with prejudice is abuse of discretion. Sonny Boy, L.L.C. v. Asnani, 879 So.2d 25, 28-29 (Fla. 5th DCA 2004). Refusal to allow amendment of a pleading constitutes an abuse of discretion unless it clearly appears that allowing the amendment would prejudice the opposing party, the privilege to amend has been abused, or amendment would be futile. Id. While amendments should generally be liberally granted so that cases may be concluded on their merits, "there is an equally compelling obligation on the court to see to it that the end of all litigation be finally reached." Price v. Morgan, 436 So.2d 1116, 1122 (Fla. 5th DCA 1983). *345 Thus, "a trial judge in the exercise of sound discretion may deny further amendments where a case has progressed to a point that liberality ordinarily to be indulged has diminished." Id. The trial court's order denying motion for rehearing demonstrates that dismissal with prejudice was appropriate in this case because further amendment would be futile and would cause prejudice to the defendants. It states: After extensive argument on the defendant's and intervenor's motions to dismiss plaintiffs' Amended Complaint at which time it was thoroughly explained why the facts urged by plaintiffs did not meet the requirements for standing, the court dismissed plaintiffs' complaint but with leave to amend. Although the court inquired at that hearing what additional facts plaintiffs might be able to allege on amendment, plaintiffs' counsel objected to "going outside the record" and insisted that the court rule on the four corners of the complaint. The court gave plaintiffs the benefit of the doubt that they might have additional facts bearing on standing that could be alleged and permitted an amendment. Plaintiffs' second amended complaint also failed to allege sufficient facts showing that plaintiffs were any more affected by the challenged action of the County Commission than any other member of the community. WESTLAW And this is understandable. Plaintiffs cannot invent facts. They now live no closer to the project so that its noise affects them and the shadows case by the buildings still does not fall on plaintiffs' property. Although there was no contention before the County Commission that the project would affect the quality of the water in the Homosassa River, plaintiffs are unable to allege any greater right to the river than the general public. And although the number of units may permit some growth in the area and the buildings may not be consistent with the character of Old Homosassa, these allegations affect all of the citizens in Old Homosassa equally. When delay will prevent the construction of an approved but undesired development, then one may win by losing if the losing process is sufficiently long. In this case, it has been long enough. Plaintiffs have had ample opportunity to show standing if they could. Further delay will not help them. The plaintiffs in this case made three attempts to plead standing and they failed. "Generally three ineffective attempts to state the same cause of action are enough." Henry P. Trawick, Jr., Florida Practice and Procedure § 14-3 at 267 (2007-08 ed.). Most trial judges use the "three strikes and you're out" standard. The record amply demonstrates that the plaintiffs were incapable of pleading sufficient ultimate facts to confer standing. As the trial court noted above, at the hearing on the First Amended Complaint, the court asked the plaintiffs' attorney what additional facts could be alleged and she objected to going `outside the record." Nevertheless, the court entered an order explaining why the complaint was deficient and gave the plaintiffs an opportunity to allege additional ultimate facts. The plaintiffs then filed the Second Amended Complaint, which was also deficient. At the hearing on the motion to dismiss that complaint, plaintiffs' counsel candidly stated: [W]e wouldn't have the second amended complaint, had they not filed a motion to dismiss. What they have been successful in doing is creating —you know, basically making sure that we have a non -assailable complaint once it's time for the matter to be finally resolved, because *346 we have now had two opportunities to dot Save Homosassa River Alliance, Inc. v. Citrus County, Fla., 2 So.3d 329 (2008) 33 Fla. L. Weekly D2490 all the I's and cross all the T's after they have alleged we missed some of those. At no time, either in their motion for rehearing or in this appeal, have the plaintiffs demonstrated what further amendment would be made if given another opportunity to amend. See Price, 436 So.2d at 1122 (noting that appellants failed to demonstrate what further amendment could be made if given the opportunity). Based on the trial judge's reasoning and the record facts supporting it, the plaintiffs have failed to prove that he abused his discretion in dismissing the case with prejudice. To conclude otherwise, as the majority does, is simply to ignore the appellate standard which we are bound to follow. I feel compelled to add the following observations from my experience in this area of the law. No doubt the plaintiffs in this case are honest, sincere people who care deeply about the future of the Homosassa River. My remarks about certain so-called "environmentalists gadflies" should not be interpreted as a reference to them. Footnotes 2 3 4 5 6 7 Submitted into the public record for item(s)_ PZ.1 on 12/13/2018 , City Clerk The opinion of Judge Griffin will be cited and used to open the floodgates to the environmental gadflies of the world. They will file spurious complaints which challenge rezoning on the basis that it violates the comprehensive plan. Local government will be hampered in doing what it is supposed to do. Property rights will be trampled by the delays. People who disagree with local decisions will find solace in the judicial branch by virtue of this Court's new-found authority which opens the courthouse door to attempts to overturn the decisions of local, duly -elected officials. Every gadfly with some amorphous environmental agenda, and enough money to pay a filing fee, will be anointed with status simply because the gadfly wants to "protect the planet." The environmental gadfly will win every time, not on the merits, but because, in the words of the trial judge, "[w]hen delay will prevent the construction of an approved but undesired development, then one may win by losing if the losing process is sufficiently long." For those who respect property rights, look out! All Citations 2 So.3d 329, 33 Fla. L. Weekly D2490 Resort's site is designated on the County's generalized future land use map, ("GFLUM"), as CL, Low Intensity Coastal Lakes, which allows a maximum density of one (1) unit per 20 acres, is located in Flood Plain A-11, and is located in the Coastal High Hazard Zone. Specifically, the County and Resort assert in their motion: There exists no allegations within the complaint that establish how the height of the building or the net increase in units will adversely impact the Alliance' [sic] educational purpose or interest in the manatee, Bitters ability to fish in the river, Rendueles' ability to bicycle through Old Homosassa, or Watkins' ability to walk down the streets in Old Homosassa. The canal that Rendueles' property is on is part of the Homosassa River system and opens to the River at Resort's site. Plaintiffs assert that the water system that the individual plaintiffs would share with Resort had "expressed concerns regarding the volume of water it will be able to supply because of [Resort's] project demands." The Old Homosassa Redevelopment Area Plan is incorporated into the County's Land Development Code as section 4680. The action underlying this appeal was brought pursuant to section 163.3215(3), Florida Statutes. Section 163.3164(17), Florida Statutes (2007), provides that, as used in the Local Govemment Comprehensive Planning and Land Development Regulation Act, "[p]erson means an individual, corporation, govemmental agency, business trust, estate, trust, partnership, association, two or more persons having a joint or common interest, or any other legal entity." WESTLAW Save Homosassa River Alliance, Inc. v. Citrus County, Fla.. 2 So.3d 329 (2008) 33 Fla. L. Weekly D2490 NIIIF 8 In Florida Rock Properties, 709 So.2d at 177, this Court wrote: 9 10 11 Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk "[K]eyser's standing to challenge the Board's zoning decision depends on (1) whether the personal and professional interests he alleged are 'protected or furthered by' Putnam County's comprehensive plan; if so, (2) whether those interests are greater than the general interest in community well being; and (3) whether the interests are or will be adversely affected by the challenged zoning decision." (Emphasis added). In Stranahan House, Inc., 967 So.2d at 434, the Fourth District wrote: Stranahan and Friends meet the test for standing outlined in Florida Rock Properties v. Keyser, 709 So.2d 175, 177 (Fla. 5th DCA 1998). The interests alleged are protected by the City's comprehensive plan, they are greater than the general interest in community well-being, and the interests will be adversely affected by the development. (Emphasis added). "Keyser is a citizen with an interest in the environment and nothing more." 709 So.2d at 177. As for the trial court's denial of Plaintiffs' request to further amend the complaint in light of the dismissal, Plaintiffs had not abused the privilege to amend. Accordingly, the trial court also erred in dismissing Plaintiffs' complaint "with prejudice." End of Document _ Pdc c.iarm crigra S. Government Works. Save Homosassa River Alliance, Inc. v. Citrus County, Fla., 2 So.3d 329 (2008) 33 Fla. L. Weekly D2490 provides: Any aggrieved or adversely affected party may maintain a de novo action for declaratory, injunctive, or other relief against any local government to challenge any decision of such local government granting or denying an application for, or to prevent such local government from taking any action on, a development order, as defined in s. 163.3164, which materially alters the use or density or intensity of use on a particular piece of property which is not consistent with the comprehensive plan adopted under this part. *337 Further, section 163.3215(2), Florida Statutes (2007), provides: As used in this section, the term "aggrieved or adversely affected party" means any person's1 or local government that will suffer an adverse effect to an interest protected or furthered by the local government comprehensive plan, including interests related to health and safety, police and fire protection service systems, densities or intensities of development, transportation facilities, health care facilities, equipment or services, and environmental or natural resources. The alleged adverse interest may be shared in common with other members of the community at large but must exceed in degree the general interest in community good shared by all persons. The term includes the owner, developer, or applicant for a development order. WESTLAW Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk (Emphasis added). Thus, a person's standing to bring a challenge under section 163.3215(3) depends on (1) whether the interests the person alleges are "protected or furthered by the local government comprehensive plan"; if so, (2) whether those interests "exceed in degree the general interest in community good shared by all persons"; and (3) whether the interests will be adversely affected by the challenged decision. See § 163.3215(2), Fla. Stat. (2007); see also Fla. Rock Props. v. Keyser, 709 So.2d 175, 177 (Fla. 5th DCA 1998). 151 There is nothing obscure about the statutory language requiring a person seeking standing to allege an interest that "[exceeds] in degree the general interest in community good shared by all persons" to establish standing. It simply means that a party must allege that they have an interest that is something more than "a general interest in community well being." See Keyser, 709 So.2d at 1778; see also Stranahan House, Inc. v. City of Fort Lauderdale, 967 So.2d 427, 434 (Fla. 4th DCA 2007).9 The statute does not say that a party must be harmed to a greater degree than the general public. Not surprisingly, the case law assumes that an organization has an interest that is greater than "the general interest in community well being" when the organization's primary purpose includes protecting the particular interest that they allege will be adversely affected by the comprehensive plan violation. See Stranahan House, Inc., 967 So.2d at 434. The old common law test was so narrowly drawn that there often was no means of redress for a comprehensive plan violation. The expanded statutory test eliminates *338 "gadfly" litigation, yet gives oversight to the segment of the public that is most likely to be knowledgeable about the interest at stake and committed to its protection. The statute expressly identifies by multiple examples the kinds of interests the legislature intended to protect: As used in this section, the term "aggrieved or adversely affected party" means any person or local government that will suffer an adverse effect to an interest protected or furthered by the local government comprehensive plan, including interests related to health and safety, police and fire protection service systems, densities or intensities of development, transportation facilities, health care facilities, equipment or services, and environmental or natural resources. § 163.3215(2), Fla. Stat. (2007) (emphasis added). Application of the statutory test is illustrated by comparing two of the leading cases previously decided by this court. In Keyser, Timothy Keyser had filed a lawsuit Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk Save Homosassa River Alliance, Inc. v. Citrus County, Fla., 2 So.3d 329 (2008) 33 Fla. L. Weekly D2490 challenging the decision of the Putnam County Commission to rezone a 509 acre parcel of Florida Rock Properties' land from agricultural to mining. This Court held that Keyser's allegation that the Commission's decision "would adversely affect his quality of life by its negative impact upon wildlife populations and habitats in Putnam County" was insufficient to establish standing. 709 So.2d at 177. In explaining why the allegation was insufficient, this Court said, "Keyser never demonstrated any specific injury, only that the county would not be as bucolic as it once was. Keyser is a citizen with an interest in the environment and nothing more." Id. In Putnam County Environmental Council, Inc., a company owned a piece of land adjacent to the Etoniah Creek State Forest, which was zoned for agricultural use. The company and the local school board "applied for a special exception to the county's comprehensive plan to allow the construction of a regional middle school complex on" the company's property. 757 So.2d at 591. The application was approved, and the Putnam County Environmental Council ["PCEC"] subsequently filed a complaint, seeking to enforce Putnam County's comprehensive plan pursuant to chapter 163. The trial court concluded that PCEC lacked standing to challenge the order under section 163.3215 and dismissed the action on that basis. It its complaint, PCEC alleged that its "primary organizational purposes and activities include the study and protection of natural resources and the advocacy of sound land use and growth management policies affecting the environment"; that its officers and members had "initiated and facilitated the original public acquisition of the Etoniah Creek State Forest"; and that "[a] substantial number of [its] members, along with non-members who participate in PCEC-sponsored activities, use the Etoniah Creek State Forest for recreational and educational purposes." Putnam County Envtl. Council, Inc., 757 So.2d at 592. Additionally, PCEC alleged: The use allowed under the special exception will adversely affect PCEC's use and its members' use of the adjacent Etoniah Creek State Forest as natural resource area. The use of the subject parcel for a school will adversely impact the ability of the Division of Forestry to use controlled burns to manage the adjacent state forest. Without controlled burns, habitat for a variety of species in the Etoniah Creek State Forest will be reduced or eliminated, thus adversely affecting the ability of PCEC, its members, and others who participate in *339 PCEC-sponsored activities to observe or study those species. Also, without controlled burns, much of the forest will become overgrown with understory species, thus adversely affecting the ability of PCEC, its members, and others who participate in PCEC-sponsored activities to access and hike portions of Etoniah Creek State Forest. Furthermore, the physical presence of a school plant as well as the increased traffic and the activity, lights, and noise associated with a school facility, athletic fields, parking lots, and school bands are incompatible with Etoniah Creek State Forest's nature -based recreation and will discourage and interfere with the ability of wide-ranging species such as the black bear to reach or remain in the state forest. This will adversely affect the ability of PCEC, its members, and others who participate in PCEC-sponsored activities to observe or study those species.... Id. 161 In holding that PCEC had made sufficient allegations to establish standing, this Court said: [H]ere PCEC's complaint alleged specific injuries that PCEC would suffer if a middle school complex was constructed on Roberts' property, including the destruction of the habitat of species being studied by PCEC members and the elimination of PCEC members' access to the forest and the forest's creatures by the overgrowth of the forest. The diminution of species being studied by the group is a harm particular to PCEC, making PCEC more than just a group with amorphous "environmental concerns." Accordingly, the WESTLAW Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk Save Homosassa River Alliance, Inc. v. Citrus County, Fla., 2 So.3d 329 (2008) 33 Fla. L. Weekly D2490 allegations set forth in PCEC's complaint are sufficient to demonstrate the requisite level of interest. PCEC's involvement in the original acquisition of the land for use as a state forest and its continued, active connection with that state forest further demonstrate an interest greater than that which all persons share in the community good. Id. at 593-94. (71 On appeal, Plaintiffs begin with the premise that the trial court's dismissal order was based on the trial court's view that in order to have standing to mount a section 163.3215 challenge, the plaintiff must own real property adjacent to or very near the parcel at issue. It is true that there is much in the appealed order to suggest that was the court's view. We do not believe the court's analysis to be quite so narrow, however. It does appear that the trial court had difficulty envisioning how the "greater -in -degree" part of the statutory test for standing could be met if the plaintiff did not own adjacent real property. The "greater -in -degree" part of the test self -evidently would be met if the plaintiff is an adjacent property owner. Everyone else has to figure out how to surmount the tag -line test in Keyser,10 i.e., how to be "something more" than just a "citizen with an interest in the environment." The County contends that Plaintiffs' complaint lacks "facts sufficient to establish that the impact upon their educational efforts, enjoyment of the outdoors and use of government services is to a greater degree than others with the community," and that Plaintiffs have failed to establish precisely how the alleged comprehensive plan violations, which relate to increased height and density, would impact their interests *340 (i.e. their educational efforts, enjoyment of the outdoors and use of government services) to any greater degree than the Old Homosassa community as a whole. In its separate Answer Brief, Resort similarly asserts that Plaintiffs failed to specifically identify an "adverse interest or impact that" they "could expect to occur due to [its] proposed hotel expansion" and failed to show that their "interests are adversely affected in a way not experienced by the general population." j81 Plaintiffs contend that the trial court's dismissal should be reversed because they have alleged concrete and specific adverse interests that exceed in degree the general interest in community good shared by all. Plaintiffs maintain that it is not necessary for them to show that they will suffer a unique harm and reject the appellees' position as being outside the express language and intent of the statute. We agree with Plaintiffs that the statutory test is directed to the quality of the interest of the person seeking standing; there is no requirement of a unique harm relative to the general population. The allegations of the Second Amended Complaint amply demonstrate that each of the plaintiffs has an interest that is greater than "a general interest in community good shared by all persons." The allegations show that the Plaintiffs all have a direct and demonstrated concern for the protection of the interests furthered by the comprehensive plan that would be adversely affected by allowing a development that violates the plan. An interpretation of the statute that requires harm different in degree from other citizens would eviscerate the statute and ignore its remedial purpose. It drags the statute back to the common law test. The statute is designed to remedy the governmental entity's failure to comply with the established comprehensive plan, and, to that end, it creates a category of persons able to prosecute the claim. The statute is not designed to redress damage to particular plaintiffs. To engraft such a "unique harm" limitation onto the statute would make it impossible in most cases to establish standing and would leave counties free to ignore the plan because each violation of the plan in isolation usually does not uniquely harm the individual plaintiff. Rather, the statute simply requires a citizen/plaintiff to have a particularized interest of the kind contemplated by the statute, not a legally protectable right. 191 In sum, we conclude that the Second Amended Complaint adequately alleges Plaintiffs' standing to challenge the County's alleged failure to comply with its comprehensive plan in approving Resort's project." We accordingly reverse and remand for further proceedings. REVERSED and REMANDED. SAWAYA, J., concurs. PLEUS, J., dissents, with opinion. PLEUS, J., dissenting. I dissent. The able and sage trial judge understood the case law and applied it properly. He correctly dismissed this case with prejudice for lack of standing because the plaintiffs repeatedly failed to allege any adverse effects, impact or harm they would suffer from the proposed WESTLAW Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk Save Homosassa River Alliance, Inc. v. Citrus County, Fla., 2 So.3d 329 (2008) 33 Fla. L. Weekly D2490 development that was unique to them. Without it being unique to them, their interest cannot exceed in degree the general interest in the community good shared by all persons. The majority opinion eviscerates the "adverse *341 effect" element of the standing requirement in subsection 163.3215(2), Florida Statutes, and stands in direct conflict with the case law interpreting that statute. Subsection 163.3215(2) defines an "aggrieved or adversely affected party" as "any person or local government which will suffer an adverse effect to an interest furthered by the local government comprehensive plan...." (Emphasis added). It further states that "[t]he alleged adverse interest may be shared in common with other members of the community at large but must exceed in degree the general interest in community good shared by all persons." (Emphasis added). The cases discussing this section have uniformly interpreted it as requiring factual allegations that plaintiffs will suffer adverse effects and that those adverse effects will be greater than those suffered by the community at large. See Dunlap v. Orange County, 971 So.2d 171 (Fla. 5th DCA 2007); Stranahan House, Inc. v. City of Fort Lauderdale, 967 So.2d 427 (Fla. 4th DCA 2007); Payne v. City of Miami, 927 So.2d 904 (Fla. 3d DCA 2005); Edgewater Beach Owners Ass 'n, Inc. v. Walton County, 833 So.2d 215 (Fla. 1st DCA 2002), receded from on other grounds, Bay Point Club, Inc. v. Bay County, 890 So.2d 256 (Fla. 1st DCA 2004); Putnam County Envtl. Council, Inc. v. Bd. of County Comm 'rs, 757 So.2d 590, 592-93 (Fla. 5th DCA 2000) Florida Rock Props. v. Keyser, 709 So.2d 175, 177 (Fla. 5th DCA 1998); Pichette v. City of N. Miami, 642 So.2d 1165 (Fla. 3d DCA 1994); Sw. Ranches Homeowners Ass'n, Inc. v. Broward County, 502 So.2d 931 (Fla. 4th DCA 1987). Florida Rock, in my view, is a correct analysis of the statute. It tells us two things. Owning real property in the vicinity of the rezoning, and being concerned about the effects of the rezoning, is not sufficient to confer jurisdiction. The rezoning must have a specific impact or involve some harm on or to the property owner or his property. For example, in Dunlap, this Court concluded that the plaintiffs had standing in part because "as owners of property fronting the lake on which Country Lake Estates is being developed, their interests will be affected by M/I Homes' boat ramp construction to an extent which is greater than those held by general members of the community who do not own such lake -front property." 971 So.2d at 175. In Stranahan House, the Fourth District held that the plaintiff sufficiently pled an adverse effect by alleging that as the adjoining property owner, Stranahan House would be negatively affected by "increased traffic and the activity, lights, alteration of Stranahan's enjoyment of light and air, the visual and audio pollution caused by the development and the effect of the shadow cast over the Stranahan property at certain times of the year." 967 So.2d at 433-34. In Payne, the Third District found that the plaintiffs had sufficiently alleged that they would suffer "adverse effects, exceeding the general interests shared by the community at large," by alleging they would suffer specific injuries to their ability to conduct business along the river due to depletion of available sites for marine industrial use by the conversion of industrial land to residential and commercial uses. 927 So.2d at 909. In Edgewater Beach, the First District found that the plaintiff homeowners association demonstrated standing at trial by testifying that an adjacent proposed development would block members' ocean views, thereby reducing their property values, and it would place their recreational facilities in shade until noon. 833 So.2d at 220. *342 In Putnam County Envtl. Council, this Court held that the plaintiff organization sufficiently alleged adverse effects by asserting "specific injuries" it would suffer, including destruction of the habitat of species its members studied and elimination of members' access to the forest and its creatures by overgrowth from discontinuation of controlled burns. 757 So.2d at 593. This Court concluded that such alleged adverse effects were "particular" to the plaintiff organization, making it more than just a group with amorphous environmental concerns. Id. In Florida Rock, this Court held that the plaintiff lacked standing because he failed to show that he would suffer an adverse effect or specific injury from the proposed development. Although the plaintiff alleged generally that the proposed development would "affect his quality of life" and that the County would not be as bucolic as it once was, this Court noted that the alleged injury should be `unique" and "specific" to the plaintiff. It further instructed, "Had Keyser lived adjacent to the property, and had he been able to show a specific impact the zoning change would have upon him or his property, he would have standing." 709 So.2d at 177. In Pichette, the Third District affirmed a summary judgment for lack of standing because the plaintiffs failed to demonstrate that they would be affected by "noise, WESTLAW kir Save Homosassa River Alliance, Inc. v. Citrus County, Fla., 2 So.3d 329 (2008) 33 Fla. L. Weekly D2490 traffic impact, land value diminution, or and any other respect by the proposed zoning ordinance." 642 So.2d at 1166. In Southwest Ranches, the Fourth District held that the plaintiffs sufficiently alleged standing by asserting that they were a group of landowners who would be directly affected by a proposed adjacent landfill's pollution, flooding and deterioration of the potable water supply. 502 So.2d at 934-35. In the instant case, the plaintiffs failed to allege that they would suffer any adverse effect from the proposed development, much less any that would affect them to a greater degree than the community at large. The complaint alleges that the individual plaintiffs will suffer harm because the proposed development will increase demands on the potable water, sewer, traffic, evacuation, police and infrastructure systems. Simply alleging that development will increase demands on various resources does not equate to an adverse effect on an individual plaintiff. Instead, the complaint must allege ultimate facts showing how or why increased demands will result in adverse impacts to the plaintiffs. See Fla. R. Civ. P. 1.110(b) (requiring a "short and plain statement of ultimate facts showing pleader is entitled to relief'); Williams v. Howard, 329 So.2d 277 (F1a.1976) (noting that a "bare assertion" that one's legal rights will be affected, without alleging how or why, is not sufficient to establish standing to file a declaratory judgment action). For example, will the increased numbers of people and demands arising from the proposed development degrade the plaintiffs' water quality? Will they reduce the plaintiffs' access to potable water? Will they increase the price plaintiffs pay for potable water? Will they reduce plaintiffs' access to fishing, boating and other activities in the Homosassa River? Will they cause increased response times from police and fire to plaintiffs' residences? Will they prevent plaintiffs from timely evacuating in an emergency? And, if so, how are any of these adverse effects suffered by the plaintiffs to a greater degree than the community at large? The complaint fails to allege any ultimate facts demonstrating that the plaintiffs will suffer adverse effects, much less adverse effects greater than the community at large. *343 The complaint also alleges that the Alliance and the individual plaintiffs will be adversely affected because their "investment of resources and volunteer activities" to protect the river, educate the public and encourage responsible development will be "for naught" if the County continues to allow development that is inconsistent with the Comprehensive Plan. A similar Submitted into the public record for item(s) PZ.1 on 12/13/2018 , City Clerk argument was soundly rejected by the United States Supreme Court in Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972), a case this Court followed in Florida Rock. There, the Sierra Club had attempted to establish standing under a similar statutory requirement in the Administrative Procedure Act that it allege an "adverse effect." Discussing the purpose for this requirement, the Court stated: The requirement that a party seeking review must allege facts showing that he is himself adversely affected does not insulate executive action from judicial review, nor does it prevent any public interests from being protected through the judicial process. It does serve as at least a rough attempt to put the decision as to whether review will be sought in the hands of those who have a direct stake in the outcome. That goal would be undermined were we to construe the APA to authorize judicial review at the behest of organizations or individuals who seek to do no more than vindicate their own value preferences through the judicial process. Id. at 1368-69 (footnote omitted; emphasis added). In this case, the majority concludes without any supporting analysis that the plaintiffs sufficiently allege that they will be "adversely affected by allowing a development that violates the plan." The majority's conclusion suffers from the same fatal flaw as the complaint itself —it is unsupported by any allegations of ultimate facts showing how or why the alleged violations will adversely affect the plaintiffs, and do so to a greater degree than the community at large. More troubling is the majority's contradictory statement that a showing of harm is not required at all. It states: WESTLAW Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk Save Homosassa River Alliance, Inc. v. Citrus County, Fla., 2 So.3d 329 (2008) 33 Fla. L. Weekly D2490 An interpretation of the statute that requires harm different in degree from other citizens would eviscerate the statute and ignore its remedial purpose. It drags the statute back to the common law test. The Statute is designed to remedy the governmental entity's failure to comply with the established comprehensive plan, and, to that end, it creates a category of persons able to prosecute the claim. The statute is not designed to redress damage to particular plaintiffs. To engraft such a "unique harm" limitation onto the statute would make it impossible in most cases to establish standing and would leave counties free to ignore the plan because each violation of the plan in isolation usually does not harm the individual plaintiff. Rather, the statute simply requires a citizen/plaintiff to have a particularized interest of the kind contemplated by the statute, not a legally protectable right. This analysis is incorrect. By interpreting the statute as requiring only a particularized interest and not a particularized harm, it contravenes the plain language of the statute and conflicts with prior case law from this and other districts. It also leads to the danger described by the Supreme Court in Morton, as follows: It is clear that an organization whose members are injured may represent those members in a proceeding for judicial review. See, e.g., NAACP v. Button, 371 U.S. 415, 428, 83 S.Ct. 328, 335, 9 L.Ed.2d 405. But a mere "interest in a problem," no matter how longstanding *344 the interest and no matter how qualified the organization is in evaluating the problem, is not sufficient by itself to render the organization "adversely affected" or WESTLA "aggrieved" within the meaning of the APA. The Sierra Club is a large and long-established organization, with a historic commitment to the cause of protecting our Nation's natural heritage from man's depredations. But if a "special interest" in this subject were enough to entitle the Sierra Club to commence this litigation, there would appear to be no objective basis upon which to disallow a suit by any other bona fide "special interest" organization however small or short-lived. And if any group with a bona fide "special interest" could initiate such litigation, it is difficult to perceive why any individual citizen with the same bona fide special interest would not also be entitled to do so. Id. at 739-40, 92 S.Ct. 1361. As discussed above, Florida case law clearly requires more concrete injury than that alleged by the Plaintiffs. On this point the U.S. Supreme Court has previously recognized the requirement of an injury is specific —it requires a "concrete and particularized" injury in fact which "must affect the plaintiff in a personal and individual way," does not allow legal redress for any imaginable injury, and is not "an ingenious academic exercise in the conceivable." Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 566, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). In Lujan, Justice Scalia expressed doubts that the Defenders of Wildlife had alleged sufficient injury to demonstrate standing, simply because a person's aesthetic viewing of a particular species in a particular area of the world was in danger of becoming less pleasurable. Id. at 566, 112 S.Ct. 2130. This argument is "pure speculation and fantasy." Id. To be sure, the Court opined that if a person could show they were observing a threatened species in a particular area of the world and that specific area was threatened, it was "plausible —though it goes to the outermost limit of plausibility" that such a person might have standing. Id. In this case, although the aesthetic viewing argument expressed by the Plaintiffs in this case stretches plausibility for the same reasons, it is somewhat closer to satisfying the constitutional requirement of standing because of Plaintiffs' demonstrated proximity. However, there is an additional problem with Plaintiffs' argument. L Save Homosassa River Alliance, Inc. v. Citrus County, Fla., 2 So.3d 329 (2008) 33 Fla. L. Weekly D2490 To demonstrate such an injury, the party seeking redress must state "specific facts" demonstrating "that one or more of respondents' members would thereby be directly affected" by the challenged action. Id. at 563, 112 S.Ct. 2130. This was not accomplished here. Plaintiffs' bare -bones allegations that the increases in density will affect their use of the river is, without more, "pure speculation and fantasy" and is insufficient to show the requisite actual, concrete injury. Because the Second Amended Complaint was fatally defective, the trial judge did not abuse his discretion in dismissing it with prejudice. The standard for reviewing a lower court's dismissal with prejudice is abuse of discretion. Sonny Boy, L.L.C. v. Asnani, 879 So.2d 25, 28-29 (Fla. 5th DCA 2004). Refusal to allow amendment of a pleading constitutes an abuse of discretion unless it clearly appears that allowing the amendment would prejudice the opposing party, the privilege to amend has been abused, or amendment would be futile. Id. While amendments should generally be liberally granted so that cases may be concluded on their merits, "there is an equally compelling obligation on the court to see to it that the end of all litigation be finally reached." Price v. Morgan, 436 So.2d 1116, 1122 (Fla. 5th DCA 1983). *345 Thus, "a trial judge in the exercise of sound discretion may deny further amendments where a case has progressed to a point that liberality ordinarily to be indulged has diminished." Id. The trial court's order denying motion for rehearing demonstrates that dismissal with prejudice was appropriate in this case because further amendment would be futile and would cause prejudice to the defendants. It states: After extensive argument on the defendant's and intervenor's motions to dismiss plaintiffs' Amended Complaint at which time it was thoroughly explained why the facts urged by plaintiffs did not meet the requirements for standing, the court dismissed plaintiffs' complaint but with leave to amend. Although the court inquired at that hearing what additional facts plaintiffs might be able to allege on amendment, plaintiffs' counsel objected to "going outside the record" and insisted that the court rule on the four corners of the complaint. The court gave plaintiffs the benefit of the doubt that they might have additional facts bearing on standing that could be alleged and permitted an amendment. Plaintiffs' second amended complaint also failed to allege sufficient facts showing that plaintiffs were any more affected by the challenged action of the County Commission than any other member of the community. WESTLAW Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk And this is understandable. Plaintiffs cannot invent facts. They now live no closer to the project so that its noise affects them and the shadows case by the buildings still does not fall on plaintiffs' property. Although there was no contention before the County Commission that the project would affect the quality of the water in the Homosassa River, plaintiffs are unable to allege any greater right to the river than the general public. And although the number of units may permit some growth in the area and the buildings may not be consistent with the character of Old Homosassa, these allegations affect all of the citizens in Old Homosassa equally. When delay will prevent the construction of an approved but undesired development, then one may win by losing if the losing process is sufficiently long. In this case, it has been long enough. Plaintiffs have had ample opportunity to show standing if they could. Further delay will not help them. The plaintiffs in this case made three attempts to plead standing and they failed. "Generally three ineffective attempts to state the same cause of action are enough." Henry P. Trawick, Jr., Florida Practice and Procedure § 14-3 at 267 (2007-08 ed.). Most trial judges use the "three strikes and you're out" standard. The record amply demonstrates that the plaintiffs were incapable of pleading sufficient ultimate facts to confer standing. As the trial court noted above, at the hearing on the First Amended Complaint, the court asked the plaintiffs' attorney what additional facts could be alleged and she objected to going "outside the record." Nevertheless, the court entered an order explaining why the complaint was deficient and gave the plaintiffs an opportunity to allege additional ultimate facts. The plaintiffs then filed the Second Amended Complaint, which was also deficient. At the hearing on the motion to dismiss that complaint, plaintiffs' counsel candidly stated: [W]e wouldn't have the second amended complaint, had they not filed a motion to dismiss. What they have been successful in doing is creating —you know, basically making sure that we have a non -assailable complaint once it's time for the matter to be finally resolved, because *346 we have now had two opportunities to dot Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk Igraw Save Homosassa River Alliance, Inc. v. Citrus County, Fla., 2 So.3d 329 (2008) 33 Fla. L. Weekly D2490 all the I's and cross all the T's after they have alleged we missed some of those. At no time, either in their motion for rehearing or in this appeal, have the plaintiffs demonstrated what further amendment would be made if given another opportunity to amend. See Price, 436 So.2d at 1122 (noting that appellants failed to demonstrate what further amendment could be made if given the opportunity). Based on the trial judge's reasoning and the record facts supporting it, the plaintiffs have failed to prove that he abused his discretion in dismissing the case with prejudice. To conclude otherwise, as the majority does, is simply to ignore the appellate standard which we are bound to follow. I feel compelled to add the following observations from my experience in this area of the law. No doubt the plaintiffs in this case are honest, sincere people who care deeply about the future of the Homosassa River. My remarks about certain so-called "environmentalists gadflies" should not be interpreted as a reference to them. Footnotes 1 2 3 4 5 6 7 The opinion of Judge Griffin will be cited and used to open the floodgates to the environmental gadflies of the world. They will file spurious complaints which challenge rezoning on the basis that it violates the comprehensive plan. Local government will be hampered in doing what it is supposed to do. Property rights will be trampled by the delays. People who disagree with local decisions will find solace in the judicial branch by virtue of this Court's new-found authority which opens the courthouse door to attempts to overturn the decisions of local, duly -elected officials. Every gadfly with some amorphous environmental agenda, and enough money to pay a filing fee, will be anointed with status simply because the gadfly wants to "protect the planet." The environmental gadfly will win every time, not on the merits, but because, in the words of the trial judge, "[w]hen delay will prevent the construction of an approved but undesired development, then one may win by losing if the losing process is sufficiently long." For those who respect property rights, look out! All Citations 2 So.3d 329, 33 Fla. L. Weekly D2490 Resort's site is designated on the County's generalized future land use map, ("GFLUM"), as CL, Low Intensity Coastal Lakes, which allows a maximum density of one (1) unit per 20 acres, is located in Flood Plain A-11, and is located in the Coastal High Hazard Zone. Specifically, the County and Resort assert in their motion: There exists no allegations within the complaint that establish how the height of the building or the net increase in units will adversely impact the Alliance' [sic] educational purpose or interest in the manatee, Bitter's ability to fish in the river, Rendueles' ability to bicycle through Old Homosassa, or Watkins' ability to walk down the streets in Old Homosassa. The canal that Rendueles' property is on is part of the Homosassa River system and opens to the River at Resort's site. Plaintiffs assert that the water system that the individual plaintiffs would share with Resort had "expressed concems regarding the volume of water it will be able to supply because of [Resort's] project demands." The Old Homosassa Redevelopment Area Plan is incorporated into the County's Land Development Code as section 4680. The action underlying this appeal was brought pursuant to section 163.3215(3), Florida Statutes. Section 163.3164(17), Florida Statutes (2007), provides that, as used in the Local Govemment Comprehensive Planning and Land Development Regulation Act, "[p]erson means an individual, corporation, govemmental agency, business trust, estate, trust, partnership, association, two or more persons having a joint or common interest, or any other legal entity." WESTLAW Save Homosassa River Alliance, Inc. v. Citrus County, Fla., 2 So.3d 329 (2008) 33 Fla. L. Weekly D2490 'New 8 iftw 9 10 11 In Florida Rock Properties, 709 So.2d at 177, this Court wrote: Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk "[K]eyser's standing to challenge the Board's zoning decision depends on (1) whether the personal and professional interests he alleged are 'protected or furthered by' Putnam County's comprehensive plan; if so, (2) whether those interests are greater than the general interest in community well being; and (3) whether the interests are or will be adversely affected by the challenged zoning decision." (Emphasis added). In Stranahan House, Inc., 967 So.2d at 434, the Fourth District wrote: Stranahan and Friends meet the test for standing outlined in Florida Rock Properties v. Keyser, 709 So.2d 175, 177 (Fla. 5th DCA 1998). The interests alleged are protected by the City's comprehensive plan, they are greater than the general interest in community well-being, and the interests will be adversely affected by the development. (Emphasis added). "Keyser is a citizen with an interest in the environment and nothing more." 709 So.2d at 177. As for the trial court's denial of Plaintiffs' request to further amend the complaint in light of the dismissal, Plaintiffs had not abused the privilege to amend. Accordingly, the trial court also erred in dismissing Plaintiffs' complaint "with prejudice." End of Document © 2018 Thomson Reuters. No claim to original U.S. Government Works. WESTLAW Save Homosassa River Alliance, Inc. v. Citrus County, Fla., 2 So.3d 329 (2008) 33 Fla. L. Weekly D2490 Ntrr Pt KeyCite Yellow Flag - Negative Treatment Distinguished by Martin County Conservation Alliance v. Martin County, F1a.App. 1 Dist., June 21,2010 2 S0.3d 329 District Court of Appeal of Florida, Fifth District. SAVE the HOMOSASSA RIVER ALLIANCE, INC., et al., Appellant, v. CITRUS COUNTY, FLORIDA, et al., Appellee. No. 5D07-2545. Oct. 24, 2008. Rehearing Denied Feb. 19, 2009. Synopsis Background: Environmental group and area landowners brought action against county and property owner, challenging county's approval of property owner's application to build residential buildings on property adjacent to river, which was essential manatee habitat. The Circuit Court, Citrus County, Charles M. Harris, Senior Judge, dismissed action for lack of standing. Plaintiffs appealed. [Holding:] The District Court of Appeal, Griffin, J., held that plaintiffs had standing to bring action. Reversed and remanded. Pleus, J., filed dissenting opinion. West Headnotes (9) 111 Zoning and Planning ...Comprehensive or general plan A "local comprehensive land use plan" is a statutorily mandated legislative plan to control and direct the use and development of property within a county or municipality; the plan is 121 131 141 Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk likened to a constitution for all future development within the governmental boundary. West's F.S.A. § 163.3167. Cases that cite this headnote Zoning and Planning ...Right of Review; Standing As a remedial statute, statute that enlarges class of persons with standing to challenge development order as inconsistent with local comprehensive land use plan is to be liberally construed to advance the intended remedy. West's F.S.A. § 163.3215. Cases that cite this headnote Zoning and Planning ...Right of Review; Standing The purpose of statute governing standing to appeal and challenge the consistency of a development order with a local comprehensive land use plan is to liberalize standing. West's F.S.A. § 163.3215. Cases that cite this headnote Zoning and Planning ...Right of Review; Standing A person's standing to bring a challenge under statute governing actions challenging a local government's development order as being inconsistent with local comprehensive land use plan depends on (1) whether the interests the person alleges are protected or furthered by the local government comprehensive plan, if so, (2) whether those interests exceed in degree the general interest in community good shared by all persons, and (3) whether the interests will WESTLAW Save Homosassa River Alliance, Inc. v. Citrus County, Fla., 2 So.3d 329 (2008) 33 Fla. L. Weekly D2490 I51 161 be adversely affected by the challenged decision. West's F.S.A. § 163.3215(2, 3). 2 Cases that cite this headnote Zoning and Planning Right of Review; Standing Under statute governing standing regarding actions challenging a local government's development order as being inconsistent with local comprehensive land use plan, requirement that a person must allege an interest that exceeds "in degree the general interest in community good shared by all persons" simply means that a party must allege that they have an interest that is something more than a general interest in community well being. West's F.S.A. § 163.3215(2). Cases that cite this headnote Zoning and Planning Permits, certificates, and approvals Environmental group and area landowners had standing to bring action challenging county's approval of property owner's application to build residential buildings on property adjacent to river as being inconsistent with local comprehensive land use plan; group sought to protect river from problems associated with improper and ineffective storm water management systems, overpopulation of lands adjacent to river, and destruction of wetlands surrounding river, and group and landowners all had direct and demonstrated concern for protection of interests furthered by comprehensive plan that would be adversely affected by allowing development that violated plan. West's F.S.A. § 163.3215(2, 3). Cases that cite this headnote WESTLAW 171 181 191 Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk Zoning and Planning Right of Review; Standing The "greater -in -degree" part of the test for standing to bring action challenging a local government's development order as being inconsistent with local comprehensive land use plan self -evidently would be met if the plaintiff is an adjacent property owner. West's F.S.A. § 163.3215(2). 1 Cases that cite this headnote Zoning and Planning ...Right of Review; Standing Statutory test for standing to bring action challenging a local government's development order as being inconsistent with local comprehensive land use plan is directed to the quality of the interest of the person seeking standing; there is no requirement of a unique harm relative to the general population. West's F.S.A. § 163.3215(2, 3). Cases that cite this headnote Zoning and Planning *.Dismissal Dismissal of second amended complaint for lack of standing was required to be without prejudice rather than with prejudice in action challenging county's approval of property owner's application to build residential buildings on property adjacent to river as being inconsistent with local comprehensive land use plan; plaintiffs had not abused privilege to amend. West's F.S.A. § 163.3215(2, 3). Cases that cite this headnote Attorneys and Law Firms Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk Save Homosassa River Alliance, Inc. v. Citrus County, Fla., 2 So.3d 329 (2008) 33 Fla. L. Weekly D2490 *331 Denise A. Lyn, of Denise A. Lyn, P.A., Inverness, for Appellant. Michele Lieberman, of Law Office of Michele L. Lieberman, LL, Inverness, for Appellee. Carl A. Bertoch, Crystal River, for Intervenor, Homosassa Riverside Resort, LLC. Opinion GRIFFIN, J. Save the Homosassa River Alliance, Inc., James Bitter, Rosemary Rendueles, and Priscilla Watkins [collectively "Plaintiffs"] appeal the trial court's order dismissing, with prejudice, their suit against Citrus County, Florida ["County"] and Homosassa River Resort, LLC ["Resort"] on the ground that they lack standing. Resort owns property adjacent to the Homosassa River ["River"] in Old Homosassa, Florida. The Homosassa River is an Outstanding Florida Waterway and an essential manatee habitat.' There are two buildings on Resort's site, containing fifteen residential condominium units. Resort applied to the County for a land development code atlas amendment "to allow the development and redevelopment of 87 condominium dwelling units, retail space, amenities and parking" on this property. The project would result in the construction of four four-story residential structures. On July 11, 2006, Citrus County's Board of County Commissioners enacted Ordinance No. 2006—A13, which approved Resort's application and amended the County's land development code to reflect the approval. Plaintiff Alliance is a not -for -profit corporation "committed to the preservation and conservation of environmentally sensitive lands and the wildlife in and around the Homosassa River and in Old Homosassa, Florida." Plaintiffs Bitter, Rendueles, and Watkins are individuals who own property in the area. On August 10, 2006, Plaintiffs filed this suit against the County, pursuant to section 163.3215, challenging the County's approval of Resort's application on the ground that it is inconsistent with the County's Comprehensive Land Use Plan, Citrus County Ordinance No. 89-04, as amended. On November 9, 2006, before the initial complaint was served on the County, Plaintiffs filed an Amended Complaint. Resort was allowed to intervene in the dispute and the County filed a motion to dismiss, arguing that the Plaintiffs had failed to plead sufficient facts to establish WESTLAW standing. The trial court agreed and dismissed Plaintiffs' complaint, with twenty days to amend. *332 Plaintiffs filed their Second Amended Complaint against both the County and Resort, to which the County and Resort responded by filing a joint motion to dismiss. In their joint motion to dismiss, the County and Resort alleged that Plaintiffs had failed to establish standing because they had not sufficiently alleged (1) "any interest that exceeds in degree that of the general community," (2) "harm to such interests over and above that of their neighbors," or (3) "any nexus between the alleged comprehensive plan violations and the interests of the parties."2 The trial court heard arguments on the County and Resort's joint motion. At the hearing, Resort and the County essentially reiterated the points they had raised in their written motion and urged that the dismissal of the Second Amended Complaint be with prejudice. Plaintiffs argued that section 163.3215 gave affected citizens significantly enhanced standing to challenge the consistency of development decisions and that their allegations were sufficient to establish standing under this liberalized standard. On about July 2, 2007, the trial court dismissed the Second Amended Complaint with prejudice, concluding that Plaintiffs had failed to sufficiently allege that their interests were adversely affected by the project in a way not experienced by the general population and because of insufficient "nexus" allegations. The trial court observed that "[t]here are no allegations that the county -approved plan permits improper runoff into the river or that the proposed development will itself (other than by adding people to the mix) adversely affect the quality of water or access to the river." Additionally, the trial court noted that "[t]here is no indication that residents living in this proposed project would add any more burden to the streets, storm drainage, river crowding, etc. than residents living elsewhere in the city." Plaintiffs filed a motion for rehearing on July 11, 2007. In the motion for rehearing, Plaintiffs asserted that the trial court's analysis was not within the statute. They also objected that the trial court's dismissal "with prejudice" at that stage of the proceedings was premature and contrary to the existing case law. The trial court concluded that Plaintiffs had been given "ample opportunity to show standing if they could" and that they would not be helped by further delay. The trial court denied Plaintiffs' motion for rehearing. ' rl Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk Save Homosassa River Alliance, Inc. v. Citrus County, Fla., 2 So.3d 329 (2008) 33 Fla. L. Weekly D2490 The Second Amended Complaint Plaintiffs' Second Amended Complaint contains lengthy allegations in support of their standing to bring this suit. The complaint begins by introducing each of the plaintiffs (Alliance, Bitter, Rendueles, and Watkins). Alliance is a not -for -profit corporation committed to the preservation of the lands and the wildlife in and around the Homosassa River and Old Homosassa, Florida. The complaint explains that the group has "embarked on a specific and focused course" to protect the River from problems associated with improper and ineffective storm water management systems, overpopulation of the lands adjacent to the River, destruction of wetlands surrounding the River, degradation of the River's water quality, and excessive boat traffic upon the River. The group conducts *333 seminars to educate the area's residents about the River and how to preserve it. One of the Alliance's main objectives has been "the orderly development and preservation of the character of Old Homosassa." Members of the group use the River for both educational and recreational purposes; have invested substantial effort and funds to protect and preserve the River and its endangered manatees; and have served on the Old Homosassa Area Redevelopment Plan steering committee. The complaint alleges that Bitter is an active Alliance member who owns property about three miles from Resort's site. He is conscious of governmental actions that affect the health of the Homosassa River and participates actively in public conversations regarding development of the area. Bitter fishes in the River, frequently boats along it, and often visits its shores "to admire the beauty and wonder of the River and its wildlife." Additionally, Bitter receives potable water from the Homosassa Special Water District, fire protection from the County's fire department, police protection from the County's Sheriff's Department, and emergency services by Nature Coast EMS. Finally, it is alleged that in the event of a natural disaster or a threat of a natural disaster, Bitter would have to evacuate his property via West Fishbowl Drive, which is a two-lane road in Homosassa. "West Fishbowl Drive ... is along the evacuation route for [Resort's] property...." Rendueles owns canal -front real property less than a mile from Resort's site.' Rendueles worked on the County's Old Homosassa Overlay steering committee and actively participated during the County's public hearings on Resort's application. Additionally, it is alleged that WESTLAW Rendueles "enjoys the beauty of nature by traveling down the Homosassa River and walking and bicycling along the streets in Old Homosassa." She often visits the River's shores "to admire the beauty and wonder of the River and its wildlife." Rendueles receives potable water from the Homosassa Special Water District, fire protection from the County's fire department, police protection from the County's Sheriff's Department, and emergency services by Nature Coast EMS. In the event of a natural disaster or a threat of a natural disaster, Rendueles would evacuate her property via W. Yulee Drive, which is a two-lane road in Homosassa. Watkins owns real property within Homosassa, Florida. She participates in Alliance's activities and actively participated during the County's public hearings on Resort's application. Watkins frequently kayaks on the River; bicycles along W. Halls River Road and W. Fishbowl Drive; and enjoys walking down Old Homosassa's uncrowded streets and roads. Watkins receives potable water from the Homosassa Special Water District, sewer services from Citrus County, fire protection from the County's fire department, police protection from the County's Sheriff's Department, and emergency services by Nature Coast EMS. In the event of a natural disaster or a threat of a natural disaster, Watkins would evacuate her property via W. Halls River Road, a two-lane road in Homosassa, which is along the evacuation route for Resort's property. Plaintiffs allege that "[b]ecause of the County's adoption of a development order which is inconsistent with its adopted Comprehensive Plan[,] [Plaintiffs] will suffer an adverse effect to their interests *334 furthered by the local government comprehensive plan...." In paragraph 27, Plaintiffs generally list protected interests that they claim will be adversely affected by the County's approval. Specifically, Plaintiffs allege: The Alliance and Property Owners, including the members of the corporation, will suffer adverse effects to interests protected or furthered by the adopted Plan, as amended, including but not limited to their property interests, their interest in protecting and maintaining the existing water quality of the Homosassa River, their interest in protecting the endangered Manatees, their Save Homosassa River Alliance, Inc. v. Citrus County, Fla., 2 So.3d 329 (2008) 33 Fla. L. Weekly D2490 interest in sufficient water and wastewater infrastructure, their interests in efficient and equitable distribution of land uses in the area, their interests in reasonable investment -backed expectations in their area, their interests in land use, their interests in preserving the character of Old Homosassa, their interests related to health and safety, including the safety and efficiency of recreation facilities and streets, police and fire protection, densities or intensities of development, including the compatibility of adjacent land uses, their interest in environmental or natural resources and their interest in wetland preservation. In paragraphs 9 through 12, Plaintiffs allege how the harm they would each suffer "exceeds the harm caused to the public in general." With regard to Alliance, Plaintiffs allege: 12). Alliance will be harmed to a degree that exceeds the harm caused to the public in general because of the Alliance's investment of resources and volunteer activities to protect the health and welfare of the Homosassa River and to encourage environmentally sound development practices around the Homosassa River. Its tireless efforts to educate the public and to encourage clean and environmentally sound development will be for naught if the County continues to allow development that is inconsistent with the goals and objectives of its Comprehensive Plan. With respect to each of the individual plaintiffs, Plaintiffs allege that Resort's proposed development activities would increase the number of people in the area and, Submitted into the public record for item(s) P7.1 . on 12/13/2018 , City Clerk accordingly, increase demands relating to public services, evacuation, traffic, and infrastructure.' It is alleged that, given their proximity to "the project and given [their] use of the same water system, roadway system ... waterway system," and in the case of Watkins, sewer system, "[Plaintiffs] will suffer harm to a greater degree than that of the public in general." Plaintiffs additionally allege that Bitter would "be harmed to a degree that exceeds the harm caused to the public in general" because of his participation in the local government process and his volunteer efforts to preserve and protect the River; that Rendueles would "be harmed to a degree that exceeds the harm caused to the public in general" due to her proximity to the development, her location in the Coastal High Hazard Area, and her location within the Old Homosassa Redevelopment Area; and that Watkins would "be harmed to a degree that exceeds the harm caused to the public in general" because of her proximity to the development, her location within the Coastal High Hazard Area, her use of the River, and her active use of the roads and streets within Old Homosassa. *335 Finally, the complaint contains allegations concerning the interests the comprehensive plan is intended to protect and how Resort's proposed project is inconsistent with the plan. Plaintiffs allege that the plan's provisions are intended to: a) Preserve, protect, and restore County's natural resources.... b) Protect and maintain the water quality of the ... Homosassa ... [River].... c) Provide the GFLUM be recognized as the primary document used by County in land use regulation and in guiding future growth. e) Provide that where County's LDC` conflicts with or overlaps other regulations, whichever imposes the more stringent restrictions shall prevail. f) Limit residential structures in the coastal high hazard area to two (2) stories. g) Prohibit the expansion of R-2 occupancies in the coastal high hazard area. h) Limit structures in the Old Homosassa Redevelopment Area to two (2) stories over the first living floor. i) Require all structures constructed in the Old WESTLAW Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk Save Homosassa River Alliance, Inc. v. Citrus County, Fla., 2 So.3d 329 (2008) 33 Fla. L. Weekly D2490 Homosassa Redevelopment Area to provide for a 10 foot step back of the second story over the first story. j) Require all development in the Old Homosassa Redevelopment Area to further the character and vision provided for Old Homosassa and to be compatible with existing structures in the area. k) Prohibit the development or expansion of general commercial uses within Old Homosassa. The complaint then alleges that the proposed development is inconsistent with the Plan, because it: a) Allows for the expansion of R-2 residential dwelling units in the coastal high hazard area. b) Allows for the construction of three (3) story over parking residential structures in the coastal high hazard area. c) Allows for the construction of structures that are not compatible with the character and vision of Old Homosassa. d) Allows for the construction of four (4) residential structures which do not provide for a step back of stories. e) Allows for increases in residential dwellings in the coastal high hazard area. f) Allows for the expansion or development of new commercial uses within Old Homosassa. g) Allows for the development of residential uses upon lands designated as GNC within Old Homosassa. The trial court's order indicates that it dismissed Plaintiffs' Second Amended Complaint because it found that Plaintiffs had failed to sufficiently allege that their interests were adversely "affected by the project in a way not experienced by the general population." Additionally, the trial court's order adopted the "nexus" argument of Resort and the County, ruling that "there must be some nexus between the alleged evil of the challenged action and the adverse [e]ffect claimed." *336 Controlling Law 111 "A local comprehensive land use plan is a statutorily mandated legislative plan to control and direct the use and development of property within a county or municipality. The plan is likened to a constitution for all future development within the governmental boundary." Machado v. Musgrove, 519 So.2d 629, 631-32 (Fla. 3d DCA 1987) (citations omitted). See also § 163.3167, Fla. Stat. (2007). Once a comprehensive plan has been adopted pursuant to the Local Government Comprehensive Planning and Land Development Regulation Act, "all development undertaken by, and all actions taken in regard to development orders by, governmental agencies in regard to land covered by such plan" must be consistent with that plan. § 163.3194(1)(a), Fla. Stat. (2007); see also § 163.3164(7), Fla. Stat. (2007). 121 131 Prior to 1985, common law governed a third party's standing to intervene to challenge a development order as inconsistent with the governing comprehensive plan. See Parker v. Leon County, 627 So.2d 476, 479 (F1a.1993), Citizens Growth Mgmt. Coal., Inc. v. City of W. Palm Beach, 450 So.2d 204, 206-08 (F1a.1984). The common law rule provided that, in order to have standing to challenge a land use decision, a party had to possess a legally recognized right that would be adversely affected by the decision or suffer special damages different in kind from that suffered by the community as a whole. Putnam County Envtl. Council, Inc. v. Bd. of County Comm'rs, 757 So.2d 590, 592-93 (Fla. 5th DCA 2000); Citizens Growth Mgmt. Coal., Inc., 450 So.2d at 206. In 1985, the Florida Legislature reacted to the Supreme Court's 1984 decision in Citizens Growth Management that the common law rules of standing applied to the Growth Management Act by enacting section 163.3215, Florida Statutes.6 Its stated purpose was "to ensure the standing for any person who 'will suffer an adverse effect to an interest protected ... by the ... comprehensive plan.' " Parker, 627 So.2d at 479 (citing § 163.3215(2), Fla. Stat. (1985)); see also Edu. Dev. Ctr., Inc. v. Palm Beach County, 751 So.2d 621, 623 (Fla. 4th DCA 1999) (section 163.3215 is a remedial statute in that it "enlarged the class of persons with standing to challenge a development order as inconsistent with the comprehensive plan"). As a remedial statute, section 163.3215 is to "be liberally construed to advance the intended remedy...." Edu. Dev. Ctr., Inc., 751 So.2d at 623; see also Dunlap v. Orange County, 971 So.2d 171, 174 (Fla. 5th DCA 2007). There is no doubt that the purpose of the adoption of section 163.3215 was to liberalize standing in this context. See City of Ft. Myers v. Splitt, 988 So.2d 28 (Fla. 2d DCA 2008). 141 In part, section 163.3215(3), Florida Statutes (2007), WESTLAW Nom- Save Homosassa River Alliance, Inc. v. Citrus County, Fla., 2 So.3d 329 (2008) 33 Fla. L. Weekly D2490 provides: Any aggrieved or adversely affected party may maintain a de novo action for declaratory, injunctive, or other relief against any local government to challenge any decision of such local government granting or denying an application for, or to prevent such local government from taking any action on, a development order, as defined in s. 163.3164, which materially alters the use or density or intensity of use on a particular piece of property which is not consistent with the comprehensive plan adopted under this part. *337 Further, section 163.3215(2), Florida Statutes (2007), provides: As used in this section, the term "aggrieved or adversely affected party" means any persont71 or local government that will suffer an adverse effect to an interest protected or furthered by the local government comprehensive plan, including interests related to health and safety, police and fire protection service systems, densities or intensities of development, transportation facilities, health care facilities, equipment or services, and environmental or natural resources. The alleged adverse interest may be shared in common with other members of the community at large but must exceed in degree the general interest in community good shared by all persons. The term includes the owner, developer, or applicant for a development order. Submitted into the public record for item(s) PZ.1 on 12/13/2018 , City Clerk (Emphasis added). Thus, a person's standing to bring a challenge under section 163.3215(3) depends on (1) whether the interests the person alleges are "protected or furthered by the local government comprehensive plan"; if so, (2) whether those interests "exceed in degree the general interest in community good shared by all persons"; and (3) whether the interests will be adversely affected by the challenged decision. See § 163.3215(2), Fla. Stat. (2007); see also Fla. Rock Props. v. Keyser, 709 So.2d 175, 177 (Fla. 5th DCA 1998). 151 There is nothing obscure about the statutory language requiring a person seeking standing to allege an interest that "[exceeds] in degree the general interest in community good shared by all persons" to establish standing. It simply means that a party must allege that they have an interest that is something more than "a general interest in community well being." See Keyser, 709 So.2d at 1779; see also Stranahan House, Inc. v. City of Fort Lauderdale, 967 So.2d 427, 434 (Fla. 4th DCA 2007).9 The statute does not say that a party must be harmed to a greater degree than the general public. Not surprisingly, the case law assumes that an organization has an interest that is greater than "the general interest in community well being" when the organization's primary purpose includes protecting the particular interest that they allege will be adversely affected by the comprehensive plan violation. See Stranahan House, Inc., 967 So.2d at 434. The old common law test was so narrowly drawn that there often was no means of redress for a comprehensive plan violation. The expanded statutory test eliminates *338 "gadfly" litigation, yet gives oversight to the segment of the public that is most likely to be knowledgeable about the interest at stake and committed to its protection. The statute expressly identifies by multiple examples the kinds of interests the legislature intended to protect: As used in this section, the term "aggrieved or adversely affected party" means any person or local government that will suffer an adverse effect to an interest protected or furthered by the local government comprehensive plan, including interests related to health and safety, police and fire protection service systems, densities or intensities of development, transportation facilities, health care facilities, equipment or services, and environmental or natural resources. § 163.3215(2), Fla. Stat. (2007) (emphasis added). Application of the statutory test is illustrated by comparing two of the leading cases previously decided by this court. In Keyser, Timothy Keyser had filed a lawsuit WEST LAW Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk Save Homosassa River Alliance, Inc. v. Citrus County, Fla., 2 So.3d 329 (2008) 33 Fla. L. Weekly D2490 challenging the decision of the Putnam County Commission to rezone a 509 acre parcel of Florida Rock Properties' land from agricultural to mining. This Court held that Keyser's allegation that the Commission's decision "would adversely affect his quality of life by its negative impact upon wildlife populations and habitats in Putnam County" was insufficient to establish standing. 709 So.2d at 177. In explaining why the allegation was insufficient, this Court said, "Keyser never demonstrated any specific injury, only that the county would not be as bucolic as it once was. Keyser is a citizen with an interest in the environment and nothing more." Id. In Putnam County Environmental Council, Inc., a company owned a piece of land adjacent to the Etoniah Creek State Forest, which was zoned for agricultural use. The company and the local school board "applied for a special exception to the county's comprehensive plan to allow the construction of a regional middle school complex on" the company's property. 757 So.2d at 591. The application was approved, and the Putnam County Environmental Council ["PCEC"] subsequently filed a complaint, seeking to enforce Putnam County's comprehensive plan pursuant to chapter 163. The trial court concluded that PCEC lacked standing to challenge the order under section 163.3215 and dismissed the action on that basis. It its complaint, PCEC alleged that its "primary organizational purposes and activities include the study and protection of natural resources and the advocacy of sound land use and growth management policies affecting the environment"; that its officers and members had "initiated and facilitated the original public acquisition of the Etoniah Creek State Forest"; and that "[a] substantial number of [its] members, along with non-members who participate in PCEC-sponsored activities, use the Etoniah Creek State Forest for recreational and educational purposes." Putnam County Envtl. Council, Inc., 757 So.2d at 592. Additionally, PCEC alleged: The use allowed under the special exception will adversely affect PCEC's use and its members' use of the adjacent Etoniah Creek State Forest as natural resource area. The use of the subject parcel for a school will adversely impact the ability of the Division of Forestry to use controlled bums to manage the adjacent state forest. Without controlled burns, habitat for a variety of species in the Etoniah Creek State Forest will be reduced or eliminated, thus adversely affecting the ability of PCEC, its members, and others who participate in *339 PCEC-sponsored activities to observe or study those species. Also, without controlled bums, much of the forest will become overgrown with understory species, thus adversely affecting the ability of PCEC, its members, and others who participate in PCEC-sponsored activities to access and hike portions of Etoniah Creek State Forest. Furthermore, the physical presence of a school plant as well as the increased traffic and the activity, lights, and noise associated with a school facility, athletic fields, parking lots, and school bands are incompatible with Etoniah Creek State Forest's nature -based recreation and will discourage and interfere with the ability of wide-ranging species such as the black bear to reach or remain in the state forest. This will adversely affect the ability of PCEC, its members, and others who participate in PCEC-sponsored activities to observe or study those species.... Id. 161 In holding that PCEC had made sufficient allegations to establish standing, this Court said: WESTLAW [H]ere PCEC's complaint alleged specific injuries that PCEC would suffer if a middle school complex was constructed on Roberts' property, including the destruction of the habitat of species being studied by PCEC members and the elimination of PCEC members' access to the forest and the forest's creatures by the overgrowth of the forest. The diminution of species being studied by the group is a harm particular to PCEC, making PCEC more than just a group with amorphous "environmental concerns." Accordingly, the Save Homosassa River Alliance, Inc. v. Citrus County, Fla., 2 So.3d 329 (2008) 33 Fla. L. Weekly D2490 Nor allegations set forth in PCEC's complaint are sufficient to demonstrate the requisite level of interest. PCEC's involvement in the original acquisition of the land for use as a state forest and its continued, active connection with that state forest further demonstrate an interest greater than that which all persons share in the community good. Id. at 593-94. 171 On appeal, Plaintiffs begin with the premise that the trial court's dismissal order was based on the trial court's view that in order to have standing to mount a section 163.3215 challenge, the plaintiff must own real property adjacent to or very near the parcel at issue. It is true that there is much in the appealed order to suggest that was the court's view. We do not believe the court's analysis to be quite so narrow, however. It does appear that the trial court had difficulty envisioning how the "greater -in -degree" part of the statutory test for standing could be met if the plaintiff did not own adjacent real property. The "greater -in -degree" part of the test self -evidently would be met if the plaintiff is an adjacent property owner. Everyone else has to figure out how to surmount the tag -line test in Keyser,1° i.e., how to be ,.. "something more" than just a "citizen with an interest in the environment." The County contends that Plaintiffs' complaint lacks "facts sufficient to establish that the impact upon their educational efforts, enjoyment of the outdoors and use of government services is to a greater degree than others with the community," and that Plaintiffs have failed to establish precisely how the alleged comprehensive plan violations, which relate to increased height and density, would impact their interests *340 (i.e. their educational efforts, enjoyment of the outdoors and use of government services) to any greater degree than the Old Homosassa community as a whole. In its separate Answer Brief, Resort similarly asserts that Plaintiffs failed to specifically identify an "adverse interest or impact that" they "could expect to occur due to [its] proposed hotel expansion" and failed to show that their "interests are adversely affected in a way not experienced by the general population." 181 Plaintiffs contend that the trial court's dismissal should be reversed because they have alleged concrete and specific adverse interests that exceed in degree the general interest in community good shared by all. Plaintiffs maintain that it is not necessary for them to show that they will suffer a unique harm and reject the appellees' position as being outside the express language WESTLAW Submitted into the public record for item(s) P7.1 . on 12/13/2018 , City Clerk and intent of the statute. We agree with Plaintiffs that the statutory test is directed to the quality of the interest of the person seeking standing; there is no requirement of a unique harm relative to the general population. The allegations of the Second Amended Complaint amply demonstrate that each of the plaintiffs has an interest that is greater than "a general interest in community good shared by all persons." The allegations show that the Plaintiffs all have a direct and demonstrated concern for the protection of the interests furthered by the comprehensive plan that would be adversely affected by allowing a development that violates the plan. An interpretation of the statute that requires harm different in degree from other citizens would eviscerate the statute and ignore its remedial purpose. It drags the statute back to the common law test. The statute is designed to remedy the governmental entity's failure to comply with the established comprehensive plan, and, to that end, it creates a category of persons able to prosecute the claim. The statute is not designed to redress damage to particular plaintiffs. To engraft such a "unique harm" limitation onto the statute would make it impossible in most cases to establish standing and would leave counties free to ignore the plan because each violation of the plan in isolation usually does not uniquely harm the individual plaintiff. Rather, the statute simply requires a citizen/plaintiff to have a particularized interest of the kind contemplated by the statute, not a legally protectable right. 191 In sum, we conclude that the Second Amended Complaint adequately alleges Plaintiffs' standing to challenge the County's alleged failure to comply with its comprehensive plan in approving Resort's project." We accordingly reverse and remand for further proceedings. REVERSED and REMANDED. SAWAYA, J., concurs. PLEUS, J., dissents, with opinion. PLEUS, J., dissenting. I dissent. The able and sage trial judge understood the case law and applied it properly. He correctly dismissed this case with prejudice for lack of standing because the plaintiffs repeatedly failed to allege any adverse effects, impact or harm they would suffer from the proposed Submitted into the public record for item(s) PZ.1 on 12/13/2018 , City Clerk L Save Homosassa River Alliance, Inc. v. Citrus County, Fla., 2 So.3d 329 (2008) 33 Fla. L. Weekly D2490 development that was unique to them. Without it being unique to them, their interest cannot exceed in degree the general interest in the community good shared by all persons. The majority opinion eviscerates the "adverse *341 effect" element of the standing requirement in subsection 163.3215(2), Florida Statutes, and stands in direct conflict with the case law interpreting that statute. Subsection 163.3215(2) defines an "aggrieved or adversely affected party" as "any person or local government which will suffer an adverse effect to an interest furthered by the local government comprehensive plan...." (Emphasis added). It further states that "[t]he alleged adverse interest may be shared in common with other members of the community at large but must exceed in degree the general interest in community good shared by all persons." (Emphasis added). The cases discussing this section have uniformly interpreted it as requiring factual allegations that plaintiffs will suffer adverse effects and that those adverse effects will be greater than those suffered by the community at large. See Dunlap v. Orange County, 971 So.2d 171 (Fla. 5th DCA 2007); Stranahan House, Inc. v. City of Fort Lauderdale, 967 So.2d 427 (Fla. 4th DCA 2007); Payne v. City of Miami, 927 So.2d 904 (Fla. 3d DCA 2005); Edgewater Beach Owners Ass 'n, Inc. v. Walton County, 833 So.2d 215 (Fla. 1st DCA 2002), receded from on other grounds, Bay Point Club, Inc. v. Bay County, 890 So.2d 256 (Fla. 1st DCA 2004); Putnam County Envtl. Council, Inc. v. Bd. of County Comm'rs, 757 So.2d 590, 592-93 (Fla. 5th DCA 2000) Florida Rock Props. v. Keyser, 709 So.2d 175, 177 (Fla. 5th DCA 1998); Pichette v. City of N. Miami, 642 So.2d 1165 (Fla. 3d DCA 1994); Sw. Ranches Homeowners Ass 'n, Inc. v. Broward County, 502 So.2d 931 (Fla. 4th DCA 1987). Florida Rock, in my view, is a correct analysis of the statute. It tells us two things. Owning real property in the vicinity of the rezoning, and being concerned about the effects of the rezoning, is not sufficient to confer jurisdiction. The rezoning must have a specific impact or involve some harm on or to the property owner or his property. For example, in Dunlap, this Court concluded that the plaintiffs had standing in part because "as owners of property fronting the lake on which Country Lake Estates is being developed, their interests will be affected by MII llomes' boat ramp construction to an extent which is greater than those held by general members of the community who do not own such lake -front property." 971 So.2d at 175. WESTLAW In Stranahan House, the Fourth District held that the plaintiff sufficiently pled an adverse effect by alleging that as the adjoining property owner, Stranahan House would be negatively affected by "increased traffic and the activity, lights, alteration of Stranahan's enjoyment of light and air, the visual and audio pollution caused by the development and the effect of the shadow cast over the Stranahan property at certain times of the year." 967 So.2d at 433-34. In Payne, the Third District found that the plaintiffs had sufficiently alleged that they would suffer "adverse effects, exceeding the general interests shared by the community at large," by alleging they would suffer specific injuries to their ability to conduct business along the river due to depletion of available sites for marine industrial use by the conversion of industrial land to residential and commercial uses. 927 So.2d at 909. In Edgewater Beach, the First District found that the plaintiff homeowners association demonstrated standing at trial by testifying that an adjacent proposed development would block members' ocean views, thereby reducing their property values, and it would place their recreational facilities in shade until noon. 833 So.2d at 220. *342 In Putnam County Envtl. Council, this Court held that the plaintiff organization sufficiently alleged adverse effects by asserting "specific injuries" it would suffer, including destruction of the habitat of species its members studied and elimination of members' access to the forest and its creatures by overgrowth from discontinuation of controlled burns. 757 So.2d at 593. This Court concluded that such alleged adverse effects were "particular" to the plaintiff organization, making it more than just a group with amorphous environmental concerns. Id. In Florida Rock, this Court held that the plaintiff lacked standing because he failed to show that he would suffer an adverse effect or specific injury from the proposed development. Although the plaintiff alleged generally that the proposed development would "affect his quality of life" and that the County would not be as bucolic as it once was, this Court noted that the alleged injury should be "unique" and "specific" to the plaintiff. It further instructed, "Had Keyser lived adjacent to the property, and had he been able to show a specific impact the zoning change would have upon him or his property, he would have standing." 709 So.2d at 177. In Pichette, the Third District affirmed a summary judgment for lack of standing because the plaintiffs failed to demonstrate that they would be affected by "noise, Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk Save Homosassa River Alliance, Inc. v. Citrus County, Fla., 2 So.3d 329 (2008) 33 Fla. L. Weekly D2490 c traffic impact, land value diminution, or and any other respect by the proposed zoning ordinance." 642 So.2d at 1166. In Southwest Ranches, the Fourth District held that the plaintiffs sufficiently alleged standing by asserting that they were a group of landowners who would be directly affected by a proposed adjacent landfill's pollution, flooding and deterioration of the potable water supply. 502 So.2d at 934-35. In the instant case, the plaintiffs failed to allege that they would suffer any adverse effect from the proposed development, much less any that would affect them to a greater degree than the community at large. The complaint alleges that the individual plaintiffs will suffer harm because the proposed development will increase demands on the potable water, sewer, traffic, evacuation, police and infrastructure systems. Simply alleging that development will increase demands on various resources does not equate to an adverse effect on an individual plaintiff. Instead, the complaint must allege ultimate facts showing how or why increased demands will result in adverse impacts to the plaintiffs. See Fla. R. Civ. P. 1.110(b) (requiring a "short and plain statement of ultimate facts showing pleader is entitled to relief'); Williams v. Howard, 329 So.2d 277 (F1a.1976) (noting that a "bare assertion" that one's legal rights will be affected, without alleging how or why, is not sufficient to establish standing to file a declaratory judgment action). For example, will the increased numbers of people and demands arising from the proposed development degrade the plaintiffs' water quality? Will they reduce the plaintiffs' access to potable water? Will they increase the price plaintiffs pay for potable water? Will they reduce plaintiffs' access to fishing, boating and other activities in the Homosassa River? Will they cause increased response times from police and fire to plaintiffs' residences? Will they prevent plaintiffs from timely evacuating in an emergency? And, if so, how are any of these adverse effects suffered by the plaintiffs to a greater degree than the community at large? The complaint fails to allege any ultimate facts demonstrating that the plaintiffs will suffer adverse effects, much less adverse effects greater than the community at large. *343 The complaint also alleges that the Alliance and the individual plaintiffs will be adversely affected because their "investment of resources and volunteer activities" to protect the river, educate the public and encourage responsible development will be "for naught" if the County continues to allow development that is inconsistent with the Comprehensive Plan. A similar argument was soundly rejected by the United States Supreme Court in Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972), a case this Court followed in Florida Rock. There, the Sierra Club had attempted to establish standing under a similar statutory requirement in the Administrative Procedure Act that it allege an "adverse effect." Discussing the purpose for this requirement, the Court stated: The requirement that a party seeking review must allege facts showing that he is himself adversely affected does not insulate executive action from judicial review, nor does it prevent any public interests from being protected through the judicial process. It does serve as at least a rough attempt to put the decision as to whether review will be sought in the hands of those who have a direct stake in the outcome. That goal would be undermined were we to construe the APA to authorize judicial review at the behest of organizations or individuals who seek to do no more than vindicate their own value preferences through the judicial process. Id. at 1368-69 (footnote omitted; emphasis added). In this case, the majority concludes without any supporting analysis that the plaintiffs sufficiently allege that they will be "adversely affected by allowing a development that violates the plan." The majority's conclusion suffers from the same fatal flaw as the complaint itself —it is unsupported by any allegations of ultimate facts showing how or why the alleged violations will adversely affect the plaintiffs, and do so to a greater degree than the community at large. More troubling is the majority's contradictory statement that a showing of harm is not required at all. It states: WESTLAW rks Save Homosassa River Alliance, Inc. v. Citrus County, Fla., 2 So.3d 329 (2008) 33 Fla. L. Weekly D2490 An interpretation of the statute that requires harm different in degree from other citizens would eviscerate the statute and ignore its remedial purpose. It drags the statute back to the common law test. The Statute is designed to remedy the governmental entity's failure to comply with the established comprehensive plan, and, to that end, it creates a category of persons able to prosecute the claim. The statute is not designed to redress damage to particular plaintiffs. To engraft such a "unique harm" limitation onto the statute would make it impossible in most cases to establish standing and would leave counties free to ignore the plan because each violation of the plan in isolation usually does not harm the individual plaintiff. Rather, the statute simply requires a citizen/plaintiff to have a particularized interest of the kind contemplated by the statute, not a legally protectable right. This analysis is incorrect. By interpreting the statute as requiring only a particularized interest and not a particularized harm, it contravenes the plain language of the statute and conflicts with prior case law from this and other districts. It also leads to the danger described by the Supreme Court in Morton, as follows: It is clear that an organization whose members are injured may represent those members in a proceeding for judicial review. See, e.g., NAACP v. Button, 371 U.S. 415, 428, 83 S.Ct. 328, 335, 9 L.Ed.2d 405. But a mere "interest in a problem," no matter how longstanding *344 the interest and no matter how qualified the organization is in evaluating the problem, is not sufficient by itself to render the organization "adversely affected" or WESTLAW Submitted into the public record for item(s) PZ.1 on 12032Oiis City Clerk "aggrieved" within the meaning of the APA. The Sierra Club is a large and long-established organization, with a historic commitment to the cause of protecting our Nation's natural heritage from man's depredations. But if a "special interest" in this subject were enough to entitle the Sierra Club to commence this litigation, there would appear to be no objective basis upon which to disallow a suit by any other bona fide "special interest" organization however small or short-lived. And if any group with a bona fide "special interest" could initiate such litigation, it is difficult to perceive why any individual citizen with the same bona fide special interest would not also be entitled to do so. Id. at 739-40, 92 S.Ct. 1361. As discussed above, Florida case law clearly requires more concrete injury than that alleged by the Plaintiffs. On this point the U.S. Supreme Court has previously recognized the requirement of an injury is specific —it requires a "concrete and particularized" injury in fact which "must affect the plaintiff in a personal and individual way," does not allow legal redress for any imaginable injury, and is not "an ingenious academic exercise in the conceivable." Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 566, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). In Lujan, Justice Scalia expressed doubts that the Defenders of Wildlife had alleged sufficient injury to demonstrate standing, simply because a person's aesthetic viewing of a particular species in a particular area of the world was in danger of becoming less pleasurable. Id. at 566, 112 S.Ct. 2130. This argument is "pure speculation and fantasy." Id. To be sure, the Court opined that if a person could show they were observing a threatened species in a particular area of the world and that specific area was threatened, it was "plausible —though it goes to the outermost limit of plausibility" that such a person might have standing. Id. In this case, although the aesthetic viewing argument expressed by the Plaintiffs in this case stretches plausibility for the same reasons, it is somewhat closer to satisfying the constitutional requirement of standing because of Plaintiffs' demonstrated proximity. However, there is an additional problem with Plaintiffs' argument. Save Homosassa River Alliance, Inc. v. Citrus County, Fla., 2 So.3d 329 (2008) 33 Fla. L. Weekly D2490 'wrTo demonstrate such an injury, the party seeking redress must state "specific facts" demonstrating "that one or more of respondents' members would thereby be directly affected" by the challenged action. Id. at 563, 112 S.Ct. 2130. This was not accomplished here. Plaintiffs' bare -bones allegations that the increases in density will affect their use of the river is, without more, "pure speculation and fantasy" and is insufficient to show the requisite actual, concrete injury. NimP Because the Second Amended Complaint was fatally defective, the trial judge did not abuse his discretion in dismissing it with prejudice. The standard for reviewing a lower court's dismissal with prejudice is abuse of discretion. Sonny Boy, L.L.C. v. Asnani, 879 So.2d 25, 28-29 (Fla. 5th DCA 2004). Refusal to allow amendment of a pleading constitutes an abuse of discretion unless it clearly appears that allowing the amendment would prejudice the opposing party, the privilege to amend has been abused, or amendment would be futile. Id. While amendments should generally be liberally granted so that cases may be concluded on their merits, "there is an equally compelling obligation on the court to see to it that the end of all litigation be finally reached." Price v. Morgan, 436 So.2d 1116, 1122 (Fla. 5th DCA 1983). *345 Thus, "a trial judge in the exercise of sound discretion may deny further amendments where a case has progressed to a point that liberality ordinarily to be indulged has diminished." Id. The trial court's order denying motion for rehearing demonstrates that dismissal with prejudice was appropriate in this case because further amendment would be futile and would cause prejudice to the defendants. It states: After extensive argument on the defendant's and intervenor's motions to dismiss plaintiffs' Amended Complaint at which time it was thoroughly explained why the facts urged by plaintiffs did not meet the requirements for standing, the court dismissed plaintiffs' complaint but with leave to amend. Although the court inquired at that hearing what additional facts plaintiffs might be able to allege on amendment, plaintiffs' counsel objected to "going outside the record" and insisted that the court rule on the four corners of the complaint. The court gave plaintiffs the benefit of the doubt that they might have additional facts bearing on standing that could be alleged and permitted an amendment. Plaintiffs' second amended complaint also failed to allege sufficient facts showing that plaintiffs were any more affected by the challenged action of the County Commission than any other member of the community. Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk And this is understandable. Plaintiffs cannot invent facts. They now live no closer to the project so that its noise affects them and the shadows case by the buildings still does not fall on plaintiffs' property. Although there was no contention before the County Commission that the project would affect the quality of the water in the Homosassa River, plaintiffs are unable to allege any greater right to the river than the general public. And although the number of units may permit some growth in the area and the buildings may not be consistent with the character of Old Homosassa, these allegations affect all of the citizens in Old Homosassa equally. When delay will prevent the construction of an approved but undesired development, then one may win by losing if the losing process is sufficiently long. In this case, it has been long enough. Plaintiffs have had ample opportunity to show standing if they could. Further delay will not help them. The plaintiffs in this case made three attempts to plead standing and they failed. "Generally three ineffective attempts to state the same cause of action are enough." Henry P. Trawick, Jr., Florida Practice and Procedure § 14-3 at 267 (2007-08 ed.). Most trial judges use the "three strikes and you're out" standard. The record amply demonstrates that the plaintiffs were incapable of pleading sufficient ultimate facts to confer standing. As the trial court noted above, at the hearing on the First Amended Complaint, the court asked the plaintiffs' attorney what additional facts could be alleged and she objected to going "outside the record." Nevertheless, the court entered an order explaining why the complaint was deficient and gave the plaintiffs an opportunity to allege additional ultimate facts. The plaintiffs then filed the Second Amended Complaint, which was also deficient. At the hearing on the motion to dismiss that complaint, plaintiffs' counsel candidly stated: [W]e wouldn't have the second amended complaint, had they not filed a motion to dismiss. What they have been successful in doing is creating —you know, basically making sure that we have a non -assailable complaint once it's time for the matter to be finally resolved, because *346 we have now had two opportunities to dot WESTLAW Save Homosassa River Alliance, Inc. v. Citrus County, Fla., 2 So.3d 329 (2008) 33 Fla. L. Weekly D2490 all the I's and cross all the T's after they have alleged we missed some of those. At no time, either in their motion for rehearing or in this appeal, have the plaintiffs demonstrated what further amendment would be made if given another opportunity to amend. See Price, 436 So.2d at 1122 (noting that appellants failed to demonstrate what further amendment could be made if given the opportunity). Based on the trial judge's reasoning and the record facts supporting it, the plaintiffs have failed to prove that he abused his discretion in dismissing the case with prejudice. To conclude otherwise, as the majority does, is simply to ignore the appellate standard which we are bound to follow. I feel compelled to add the following observations from my experience in this area of the law. No doubt the plaintiffs in this case are honest, sincere people who care deeply about the future of the Homosassa River. My remarks about certain so-called "environmentalists gadflies" should not be interpreted as a reference to them. Footnotes 2 3 4 5 6 7 Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk The opinion of Judge Griffin will be cited and used to open the floodgates to the environmental gadflies of the world. They will file spurious complaints which challenge rezoning on the basis that it violates the comprehensive plan. Local government will be hampered in doing what it is supposed to do. Property rights will be trampled by the delays. People who disagree with local decisions will find solace in the judicial branch by virtue of this Court's new-found authority which opens the courthouse door to attempts to overturn the decisions of local, duly -elected officials. Every gadfly with some amorphous environmental agenda, and enough money to pay a filing fee, will be anointed with status simply because the gadfly wants to "protect the planet." The environmental gadfly will win every time, not on the merits, but because, in the words of the trial judge, "[w]hen delay will prevent the construction of an approved but undesired development, then one may win by losing if the losing process is sufficiently long." For those who respect property rights, look out! All Citations 2 So.3d 329, 33 Fla. L. Weekly D2490 Resort's site is designated on the County's generalized future land use map, ("GFLUM"), as CL, Low Intensity Coastal Lakes, which allows a maximum density of one (1) unit per 20 acres, is located in Flood Plain A-11, and is located in the Coastal High Hazard Zone. Specifically, the County and Resort assert in their motion: There exists no allegations within the complaint that establish how the height of the building or the net increase in units will adversely impact the Alliance' [sic] educational purpose or interest in the manatee, Bitter's ability to fish in the river, Rendueles' ability to bicycle through Old Homosassa, or Watkins' ability to walk down the streets in Old Homosassa. The canal that Rendueles' property is on is part of the Homosassa River system and opens to the River at Resort's site. Plaintiffs assert that the water system that the individual plaintiffs would share with Resort had "expressed concems regarding the volume of water it will be able to supply because of [Resort's] project demands." The Old Homosassa Redevelopment Area Plan is incorporated into the County's Land Development Code as section 4680. The action underlying this appeal was brought pursuant to section 163.3215(3), Florida Statutes. Section 163.3164(17), Florida Statutes (2007), provides that, as used in the Local Govemment Comprehensive Planning and Land Development Regulation Act, "[p]erson means an individual, corporation, govemmental agency, business trust, estate, trust, partnership, association, two or more persons having a joint or common interest, or any other legal entity." WESTLAW e 8 9 Save Homosassa River Alliance, Inc. v. Citrus County, Fla., 2 So.3d 329 (2008) 33 Fla. L. Weekly D2490 10 11 In Florida Rock Properties, 709 So.2d at 177, this Court wrote: Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk "[K]eyser's standing to challenge the Board's zoning decision depends on (1) whether the personal and professional interests he alleged are 'protected or furthered by' Putnam County's comprehensive plan; if so, (2) whether those interests are greater than the general interest in community well being; and (3) whether the interests are or will be adversely affected by the challenged zoning decision." (Emphasis added). In Stranahan House, Inc., 967 So.2d at 434, the Fourth District wrote: Stranahan and Friends meet the test for standing outlined in Florida Rock Properties v. Keyser, 709 So.2d 175, 177 (Fla. 5th DCA 1998). The interests alleged are protected by the City's comprehensive plan, they are greater than the general interest in community well-being, and the interests will be adversely affected by the development. (Emphasis added). "Keyser is a citizen with an interest in the environment and nothing more." 709 So.2d at 177. As for the trial court's denial of Plaintiffs' request to further amend the complaint in Tight of the dismissal, Plaintiffs had not abused the privilege to amend. Accordingly, the trial court also erred in dismissing Plaintiffs' complaint "with prejudice." End of Document © 2018 Thomson Reuters. No claim to original U.S. Government Works. WESTLAW 1 Save Homosassa River Alliance, Inc. v. Citrus County, Fla., 2 So.3d 329 (2008) 33 Fla. L. Weekly D2490 KeyCite Yellow Flag - Negative Treatment Distinguished by Martin County Conservation Alliance v. Martin County, F1a.App. 1 Dist., June 21, 2010 2 So.3d 329 District Court of Appeal of Florida, Fifth District. SAVE the HOMOSASSA RIVER ALLIANCE, INC., et al., Appellant, v. CITRUS COUNTY, FLORIDA, et al., Appellee. No. 5D07-2545 • Oct. 24, 2008. Rehearing Denied Feb. 19, 2009. Synopsis Background: Environmental group and area landowners brought action against county and property owner, challenging county's approval of property owner's application to build residential buildings on property adjacent to river, which was essential manatee habitat. The Circuit Court, Citrus County, Charles M. Harris, Senior Judge, dismissed action for lack of standing. Plaintiffs appealed. [Holding:] The District Court of Appeal, Griffin, J., held that plaintiffs had standing to bring action. Reversed and remanded. Pleus, J., filed dissenting opinion. West Headnotes (9) 111 Zoning and Planning o'*.Comprehensive or general plan A "local comprehensive land use plan" is a statutorily mandated legislative plan to control and direct the use and development of property within a county or municipality; the plan is 121 131 141 Submitted into the public record for item(s) PZ.1 on 12/13/2018 , City Clerk likened to a constitution for all future development within the governmental boundary. West's F.S.A. § 163.3167. Cases that cite this headnote Zoning and Planning *-*Right of Review; Standing As a remedial statute, statute that enlarges class of persons with standing to challenge development order as inconsistent with local comprehensive land use plan is to be liberally construed to advance the intended remedy. West's F.S.A. § 163.3215. Cases that cite this headnote Zoning and Planning 410-*Right of Review; Standing The purpose of statute governing standing to appeal and challenge the consistency of a development order with a local comprehensive land use plan is to liberalize standing. West's F.S.A. § 163.3215. Cases that cite this headnote Zoning and Planning *Right of Review; Standing A person's standing to bring a challenge under statute governing actions challenging a local government's development order as being inconsistent with local comprehensive land use plan depends on (1) whether the interests the person alleges are protected or furthered by the local government comprehensive plan, if so, (2) whether those interests exceed in degree the general interest in community good shared by all persons, and (3) whether the interests will WESTLAW Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk Save Homosassa River Alliance, Inc. v. Citrus County, Fla., 2 So.3d 329 (2008) 33 Fla. L. Weekly D2490 151 161 be adversely affected by the challenged decision. West's F.S.A. § 163.3215(2, 3). 2 Cases that cite this headnote Zoning and Planning -Right of Review; Standing Under statute governing standing regarding actions challenging a local government's development order as being inconsistent with local comprehensive land use plan, requirement that a person must allege an interest that exceeds "in degree the general interest in community good shared by all persons" simply means that a party must allege that they have an interest that is something more than a general interest in community well being. West's F.S.A. § 163.3215(2). Cases that cite this headnote Zoning and Planning ...Permits, certificates, and approvals Environmental group and area landowners had standing to bring action challenging county's approval of property owner's application to build residential buildings on property adjacent to river as being inconsistent with local comprehensive land use plan; group sought to protect river from problems associated with improper and ineffective storm water management systems, overpopulation of lands adjacent to river, and destruction of wetlands surrounding river, and group and landowners all had direct and demonstrated concern for protection of interests furthered by comprehensive plan that would be adversely affected by allowing development that violated plan. West's F.S.A. § 163.3215(2, 3). Cases that cite this headnote 171 181 191 Zoning and Planning .-Right of Review; Standing The "greater -in -degree" part of the test for standing to bring action challenging a local government's development order as being inconsistent with local comprehensive land use plan self -evidently would be met if the plaintiff is an adjacent property owner. West's F.S.A. § 163.3215(2). 1 Cases that cite this headnote Zoning and Planning ...Right of Review; Standing Statutory test for standing to bring action challenging a local government's development order as being inconsistent with local comprehensive land use plan is directed to the quality of the interest of the person seeking standing; there is no requirement of a unique harm relative to the general population. West's F.S.A. § 163.3215(2, 3). Cases that cite this headnote Zoning and Planning i-Dismissal Dismissal of second amended complaint for lack of standing was required to be without prejudice rather than with prejudice in action challenging county's approval of property owner's application to build residential buildings on property adjacent to river as being inconsistent with local comprehensive land use plan; plaintiffs had not abused privilege to amend. West's F.S.A. § 163.3215(2, 3). Cases that cite this headnote Attorneys and Law Firms WESTLAW n s 1 Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk Save Homosassa River Alliance, Inc. v. Citrus County, Fla., 2 So.3d 329 (2008) 33 Fla. L. Weekly D2490 *331 Denise A. Lyn, of Denise A. Lyn, P.A., Inverness, for Appellant. Michele Lieberman, of Law Office of Michele L. Lieberman, LL, Inverness, for Appellee. Carl A. Bertoch, Crystal River, Homosassa Riverside Resort, LLC. Opinion GRIFFIN, J. for Intervenor, Save the Homosassa River Alliance, Inc., James Bitter, Rosemary Rendueles, and Priscilla Watkins [collectively "Plaintiffs"] appeal the trial court's order dismissing, with prejudice, their suit against Citrus County, Florida ["County"] and Homosassa River Resort, LLC ["Resort"] on the ground that they lack standing. Resort owns property adjacent to the Homosassa River ["River"] in Old Homosassa, Florida. The Homosassa River is an Outstanding Florida Waterway and an essential manatee habitat.' There are two buildings on Resort's site, containing fifteen residential condominium units. Resort applied to the County for a land development code atlas amendment "to allow the development and redevelopment of 87 condominium dwelling units, retail space, amenities and parking" on this property. The project would result in the construction of four four-story residential structures. On July 11, 2006, Citrus County's Board of County Commissioners enacted Ordinance No. 2006—A13, which approved Resort's application and amended the County's land development code to reflect the approval. Plaintiff Alliance is a not -for -profit corporation "committed to the preservation and conservation of environmentally sensitive lands and the wildlife in and around the Homosassa River and in Old Homosassa, Florida." Plaintiffs Bitter, Rendueles, and Watkins are individuals who own property in the area. On August 10, 2006, Plaintiffs filed this suit against the County, pursuant to section 163.3215, challenging the County's approval of Resort's application on the ground that it is inconsistent with the County's Comprehensive Land Use Plan, Citrus County Ordinance No. 89-04, as amended. On November 9, 2006, before the initial complaint was served on the County, Plaintiffs filed an Amended Complaint. Resort was allowed to intervene in the dispute and the County filed a motion to dismiss, arguing that the Plaintiffs had failed to plead sufficient facts to establish standing. The trial court agreed and dismissed Plaintiffs' complaint, with twenty days to amend. *332 Plaintiffs filed their Second Amended Complaint against both the County and Resort, to which the County and Resort responded by filing a joint motion to dismiss. In their joint motion to dismiss, the County and Resort alleged that Plaintiffs had failed to establish standing because they had not sufficiently alleged (1) "any interest that exceeds in degree that of the general community," (2) "harm to such interests over and above that of their neighbors," or (3) "any nexus between the alleged comprehensive plan violations and the interests of the parties.'" The trial court heard arguments on the County and Resort's joint motion. At the hearing, Resort and the County essentially reiterated the points they had raised in their written motion and urged that the dismissal of the Second Amended Complaint be with prejudice. Plaintiffs argued that section 163.3215 gave affected citizens significantly enhanced standing to challenge the consistency of development decisions and that their allegations were sufficient to establish standing under this liberalized standard. On about July 2, 2007, the trial court dismissed the Second Amended Complaint with prejudice, concluding that Plaintiffs had failed to sufficiently allege that their interests were adversely affected by the project in a way not experienced by the general population and because of insufficient "nexus" allegations. The trial court observed that "[t]here are no allegations that the county -approved plan permits improper runoff into the river or that the proposed development will itself (other than by adding people to the mix) adversely affect the quality of water or access to the river." Additionally, the trial court noted that "[t]here is no indication that residents living in this proposed project would add any more burden to the streets, storm drainage, river crowding, etc. than residents living elsewhere in the city." Plaintiffs filed a motion for rehearing on July 11, 2007. In the motion for rehearing, Plaintiffs asserted that the trial court's analysis was not within the statute. They also objected that the trial court's dismissal "with prejudice" at that stage of the proceedings was premature and contrary to the existing case law. The trial court concluded that Plaintiffs had been given "ample opportunity to show standing if they could" and that they would not be helped by further delay. The trial court denied Plaintiffs' motion for rehearing. WESTLAW Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk L Save Homosassa River Alliance, Inc. v. Citrus County, Fla., 2 So.3d 329 (2008) 33 Fla. L. Weekly D2490 The Second Amended Complaint Plaintiffs' Second Amended Complaint contains lengthy allegations in support of their standing to bring this suit. The complaint begins by introducing each of the plaintiffs (Alliance, Bitter, Rendueles, and Watkins). Alliance is a not -for -profit corporation committed to the preservation of the lands and the wildlife in and around the Homosassa River and Old Homosassa, Florida. The complaint explains that the group has "embarked on a specific and focused course" to protect the River from problems associated with improper and ineffective storm water management systems, overpopulation of the lands adjacent to the River, destruction of wetlands surrounding the River, degradation of the River's water quality, and excessive boat traffic upon the River. The group conducts *333 seminars to educate the area's residents about the River and how to preserve it. One of the Alliance's main objectives has been "the orderly development and preservation of the character of Old Homosassa." Members of the group use the River for both educational and recreational purposes; have invested substantial effort and funds to protect and preserve the River and its endangered manatees; and have served on the Old Homosassa Area Redevelopment Plan steering committee. The complaint alleges that Bitter is an active Alliance member who owns property about three miles from Resort's site. He is conscious of governmental actions that affect the health of the Homosassa River and participates actively in public conversations regarding development of the area. Bitter fishes in the River, frequently boats along it, and often visits its shores "to admire the beauty and wonder of the River and its wildlife." Additionally, Bitter receives potable water from the Homosassa Special Water District, fire protection from the County's fire department, police protection from the County's Sheriffs Department, and emergency services by Nature Coast EMS. Finally, it is alleged that in the event of a natural disaster or a threat of a natural disaster, Bitter would have to evacuate his property via West Fishbowl Drive, which is a two-lane road in Homosassa. "West Fishbowl Drive ... is along the evacuation route for [Resort's] property...." Rendueles owns canal -front real property less than a mile from Resort's site: Rendueles worked on the County's Old Homosassa Overlay steering committee and actively participated during the County's public hearings on Resort's application. Additionally, it is alleged that WESTI.AW Rendueles "enjoys the beauty of nature by traveling down the Homosassa River and walking and bicycling along the streets in Old Homosassa." She often visits the River's shores "to admire the beauty and wonder of the River and its wildlife." Rendueles receives potable water from the Homosassa Special Water District, fire protection from the County's fire department, police protection from the County's Sheriff's Department, and emergency services by Nature Coast EMS. In the event of a natural disaster or a threat of a natural disaster, Rendueles would evacuate her property via W. Yulee Drive, which is a two-lane road in Homosassa. Watkins owns real property within Homosassa, Florida. She participates in Alliance's activities and actively participated during the County's public hearings on Resort's application. Watkins frequently kayaks on the River; bicycles along W. Halls River Road and W. Fishbowl Drive; and enjoys walking down Old Homosassa's uncrowded streets and roads. Watkins receives potable water from the Homosassa Special Water District, sewer services from Citrus County, fire protection from the County's fire department, police protection from the County's Sheriff's Department, and emergency services by Nature Coast EMS. In the event of a natural disaster or a threat of a natural disaster, Watkins would evacuate her property via W. Halls River Road, a two-lane road in Homosassa, which is along the evacuation route for Resort's property. Plaintiffs allege that "[b]ecause of the County's adoption of a development order which is inconsistent with its adopted Comprehensive Plan[,] [Plaintiffs] will suffer an adverse effect to their interests *334 furthered by the local government comprehensive plan...." In paragraph 27, Plaintiffs generally list protected interests that they claim will be adversely affected by the County's approval. Specifically, Plaintiffs allege: The Alliance and Property Owners, including the members of the corporation, will suffer adverse effects to interests protected or furthered by the adopted Plan, as amended, including but not limited to their property interests, their interest in protecting and maintaining the existing water quality of the Homosassa River, their interest in protecting the endangered Manatees, their Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk Save Homosassa River Alliance, Inc. v. Citrus County, Fla., 2 So.3d 329 (2008) 33 Fla. L. Weekly D2490 interest in sufficient water and wastewater infrastructure, their interests in efficient and equitable distribution of land uses in the area, their interests in reasonable investment -backed expectations in their area, their interests in land use, their interests in preserving the character of Old Homosassa, their interests related to health and safety, including the safety and efficiency of recreation facilities and streets, police and fire protection, densities or intensities of development, including the compatibility of adjacent land uses, their interest in environmental or natural resources and their interest in wetland preservation. In paragraphs 9 through 12, Plaintiffs allege how the harm they would each suffer "exceeds the harm caused to the public in general." With regard to Alliance, Plaintiffs allege: 12). Alliance will be harmed to a degree that exceeds the harm caused to the public in general because of the Alliance's investment of resources and volunteer activities to protect the health and welfare of the Homosassa River and to encourage environmentally sound development practices around the Homosassa River. Its tireless efforts to educate the public and to encourage clean and environmentally sound development will be for naught if the County continues to allow development that is inconsistent with the goals and objectives of its Comprehensive Plan. With respect to each of the individual plaintiffs, Plaintiffs allege that Resort's proposed development activities would increase the number of people in the area and, WESTLAW accordingly, increase demands relating to public services, evacuation, traffic, and infrastructure.' It is alleged that, given their proximity to "the project and given [their] use of the same water system, roadway system ... waterway system," and in the case of Watkins, sewer system, "[Plaintiffs] will suffer harm to a greater degree than that of the public in general." Plaintiffs additionally allege that Bitter would "be harmed to a degree that exceeds the harm caused to the public in general" because of his participation in the local government process and his volunteer efforts to preserve and protect the River; that Rendueles would "be harmed to a degree that exceeds the harm caused to the public in general" due to her proximity to the development, her location in the Coastal High Hazard Area, and her location within the Old Homosassa Redevelopment Area; and that Watkins would "be harmed to a degree that exceeds the harm caused to the public in general" because of her proximity to the development, her location within the Coastal High Hazard Area, her use of the River, and her active use of the roads and streets within Old Homosassa. *335 Finally, the complaint contains allegations concerning the interests the comprehensive plan is intended to protect and how Resort's proposed project is inconsistent with the plan. Plaintiffs allege that the plan's provisions are intended to: a) Preserve, protect, and restore County's natural resources.... b) Protect and maintain the water quality of the ... Homosassa ... [River].... c) Provide the GFLUM be recognized as the primary document used by County in land use regulation and in guiding future growth. e) Provide that where County's LDC` conflicts with or overlaps other regulations, whichever imposes the more stringent restrictions shall prevail. f) Limit residential structures in the coastal high hazard area to two (2) stories. g) Prohibit the expansion of R-2 occupancies in the coastal high hazard area. h) Limit structures in the Old Homosassa Redevelopment Area to two (2) stories over the first living floor. i) Require all structures constructed in the Old r Save Homosassa River Alliance, Inc. v. Citrus County, Fla., 2 So.3d 329 (2008) 33 Fla. L. Weekly D2490 Homosassa Redevelopment Area to provide for a 10 foot step back of the second story over the first story. j) Require all development in the Old Homosassa Redevelopment Area to further the character and vision provided for Old Homosassa and to be compatible with existing structures in the area. k) Prohibit the development or expansion of general commercial uses within Old Homosassa. The complaint then alleges that the proposed development is inconsistent with the Plan, because it: a) Allows for the expansion of R-2 residential dwelling units in the coastal high hazard area. b) Allows for the construction of three (3) story over parking residential structures in the coastal high hazard area. c) Allows for the construction of structures that are not compatible with the character and vision of Old Homosassa. d) Allows for the construction of four (4) residential structures which do not provide for a step back of stories. e) Allows for increases in residential dwellings in the coastal high hazard area. f) Allows for the expansion or development of new commercial uses within Old Homosassa. g) Allows for the development of residential uses upon lands designated as GNC within Old Homosassa. The trial court's order indicates that it dismissed Plaintiffs' Second Amended Complaint because it found that Plaintiffs had failed to sufficiently allege that their interests were adversely "affected by the project in a way not experienced by the general population." Additionally, the trial court's order adopted the "nexus" argument of Resort and the County, ruling that "there must be some nexus between the alleged evil of the challenged action and the adverse [e]ffect claimed." WESTLAW Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk *336 Controlling Law 111 "A local comprehensive land use plan is a statutorily mandated legislative plan to control and direct the use and development of property within a county or municipality. The plan is likened to a constitution for all future development within the governmental boundary." Machado v. Musgrove, 519 So.2d 629, 631-32 (Fla. 3d DCA 1987) (citations omitted). See also § 163.3167, Fla. Stat. (2007). Once a comprehensive plan has been adopted pursuant to the Local Government Comprehensive Planning and Land Development Regulation Act, "all development undertaken by, and all actions taken in regard to development orders by, governmental agencies in regard to land covered by such plan" must be consistent with that plan. § 163.3194(1)(a), Fla. Stat. (2007); see also § 163.3164(7), Fla. Stat. (2007). 121 131 Prior to 1985, common law governed a third parry's standing to intervene to challenge a development order as inconsistent with the governing comprehensive plan. See Parker v. Leon County, 627 So.2d 476, 479 (F1a.1993), Citizens Growth Mgmt. Coal., Inc. v. City of W. Palm Beach, 450 So.2d 204, 206-08 (F1a.1984). The common law rule provided that, in order to have standing to challenge a land use decision, a party had to possess a legally recognized right that would be adversely affected by the decision or suffer special damages different in kind from that suffered by the community as a whole. Putnam County Envtl. Council, Inc. v. Bd. of County Comm'rs, 757 So.2d 590, 592-93 (Fla. 5th DCA 2000); Citizens Growth Mgmt. Coal., Inc., 450 So.2d at 206. In 1985, the Florida Legislature reacted to the Supreme Court's 1984 decision in Citizens Growth Management that the common law rules of standing applied to the Growth Management Act by enacting section 163.3215, Florida Statutes.' Its stated purpose was "to ensure the standing for any person who 'will suffer an adverse effect to an interest protected ... by the ... comprehensive plan.' " Parker, 627 So.2d at 479 (citing § 163.3215(2), Fla. Stat. (1985)); see also Edu. Dev. Ctr., Inc. v. Palm Beach County, 751 So.2d 621, 623 (Fla. 4th DCA 1999) (section 163.3215 is a remedial statute in that it "enlarged the class of persons with standing to challenge a development order as inconsistent with the comprehensive plan"). As a remedial statute, section 163.3215 is to "be liberally construed to advance the intended remedy...." Edu. Dev. Ctr., Inc., 751 So.2d at 623; see also Dunlap v. Orange County, 971 So.2d 171, 174 (Fla. 5th DCA 2007). There is no doubt that the purpose of the adoption of section 163.3215 was to liberalize standing in this context. See City of Ft. Myers v. Splitt, 988 So.2d 28 (Fla. 2d DCA 2008). 141 In part, section 163.3215(3), Florida Statutes (2007), Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk L Save Homosassa River Alliance, Inc. v. Citrus County, Fla., 2 So.3d 329 (2008) 33 Fla. L. Weekly D2490 provides: Any aggrieved or adversely affected party may maintain a de novo action for declaratory, injunctive, or other relief against any local government to challenge any decision of such local government granting or denying an application for, or to prevent such local government from taking any action on, a development order, as defined in s. 163.3164, which materially alters the use or density or intensity of use on a particular piece of property which is not consistent with the comprehensive plan adopted under this part. *337 Further, section 163.3215(2), Florida Statutes (2007), provides: As used in this section, the term "aggrieved or adversely affected party" means any person or local government that will suffer an adverse effect to an interest protected or furthered by the local government comprehensive plan, including interests related to health and safety, police and fire protection service systems, densities or intensities of development, transportation facilities, health care facilities, equipment or services, and environmental or natural resources. The alleged adverse interest may be shared in common with other members of the community at large but must exceed in degree the general interest in community good shared by all persons. The term includes the owner, developer, or applicant for a development order. (Emphasis added). Thus, a person's standing to bring a challenge under section 163.3215(3) depends on (1) whether the interests the person alleges are "protected or furthered by the local government comprehensive plan"; if so, (2) whether those interests "exceed in degree the general interest in community good shared by all persons"; and (3) whether the interests will be adversely affected by the challenged decision. See § 163.3215(2), Fla. Stat. (2007); see also Fla. Rock Props. v. Keyser, 709 So.2d 175, 177 (Fla. 5th DCA 1998). 151 There is nothing obscure about the statutory language requiring a person seeking standing to allege an interest that "[exceeds] in degree the general interest in community good shared by all persons" to establish standing. It simply means that a party must allege that they have an interest that is something more than "a general interest in community well being." See Keyser, 709 So.2d at 177s; see also Stranahan House, Inc. v. City of Fort Lauderdale, 967 So.2d 427, 434 (Fla. 4th DCA 2007).9 The statute does not say that a party must be harmed to a greater degree than the general public. Not surprisingly, the case law assumes that an organization has an interest that is greater than "the general interest in community well being" when the organisation's primary purpose includes protecting the particular interest that they allege will be adversely affected by the comprehensive plan violation. See Stranahan House, Inc., 967 So.2d at 434. The old common law test was so narrowly drawn that there often was no means of redress for a comprehensive plan violation. The expanded statutory test eliminates *338 "gadfly" litigation, yet gives oversight to the segment of the public that is most likely to be knowledgeable about the interest at stake and committed to its protection. The statute expressly identifies by multiple examples the kinds of interests the legislature intended to protect: As used in this section, the term "aggrieved or adversely affected party" means any person or local government that will suffer an adverse effect to an interest protected or furthered by the local government comprehensive plan, including interests related to health and safety, police and fire protection service systems, densities or intensities of development, transportation facilities, health care facilities, equipment or services, and environmental or natural resources. § 163.3215(2), Fla. Stat. (2007) (emphasis added). Application of the statutory test is illustrated by comparing two of the leading cases previously decided by this court. In Keyser, Timothy Keyser had filed a lawsuit WESTLAW r so r Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk Save Homosassa River Alliance, Inc. v. Citrus County, Fla., 2 So.3d 329 (2008) 33 Fla. L. Weekly D2490 challenging the decision of the Putnam County Commission to rezone a 509 acre parcel of Florida Rock Properties' land from agricultural to mining. This Court held that Keyser's allegation that the Commission's decision "would adversely affect his quality of life by its negative impact upon wildlife populations and habitats in Putnam County" was insufficient to establish standing. 709 So.2d at 177. In explaining why the allegation was insufficient, this Court said, "Keyser never demonstrated any specific injury, only that the county would not be as bucolic as it once was. Keyser is a citizen with an interest in the environment and nothing more." Id. In Putnam County Environmental Council, Inc., a company owned a piece of land adjacent to the Etoniah Creek State Forest, which was zoned for agricultural use. The company and the local school board "applied for a special exception to the county's comprehensive plan to allow the construction of a regional middle school complex on" the company's property. 757 So.2d at 591. The application was approved, and the Putnam County Environmental Council ["PCEC"] subsequently filed a complaint, seeking to enforce Putnam County's comprehensive plan pursuant to chapter 163. The trial court concluded that PCEC lacked standing to challenge the order under section 163.3215 and dismissed the action on that basis. It its complaint, PCEC alleged that its "primary organizational purposes and activities include the study and protection of natural resources and the advocacy of sound land use and growth management policies affecting the environment"; that its officers and members had "initiated and facilitated the original public acquisition of the Etoniah Creek State Forest"; and that "[a] substantial number of [its] members, along with non-members who participate in PCEC-sponsored activities, use the Etoniah Creek State Forest for recreational and educational purposes." Putnam County Envtl. Council, Inc., 757 So.2d at 592. Additionally, PCEC alleged: The use allowed under the special exception will adversely affect PCEC's use and its members' use of the adjacent Etoniah Creek State Forest as natural resource area. The use of the subject parcel for a school will adversely impact the ability of the Division of Forestry to use controlled burns to manage the adjacent state forest. Without controlled burns, habitat for a variety of species in the Etoniah Creek State Forest will be reduced or eliminated, thus adversely affecting the ability of PCEC, its members, and others who participate in *339 PCEC-sponsored activities to observe or study those species. Also, without controlled burns, much of the forest will become overgrown with understory species, thus adversely affecting the ability of PCEC, its members, and others who participate in PCEC-sponsored activities to access and hike portions of Etoniah Creek State Forest. Furthermore, the physical presence of a school plant as well as the increased traffic and the activity, lights, and noise associated with a school facility, athletic fields, parking lots, and school bands are incompatible with Etoniah Creek State Forest's nature -based recreation and will discourage and interfere with the ability of wide-ranging species such as the black bear to reach or remain in the state forest. This will adversely affect the ability of PCEC, its members, and others who participate in PCEC-sponsored activities to observe or study those species.... Id. 161 In holding that PCEC had made sufficient allegations to establish standing, this Court said: [H]ere PCEC's complaint alleged specific injuries that PCEC would suffer if a middle school complex was constructed on Roberts' property, including the destruction of the habitat of species being studied by PCEC members and the elimination of PCEC members' access to the forest and the forest's creatures by the overgrowth of the forest. The diminution of species being studied by the group is a harm particular to PCEC, making PCEC more than just a group with amorphous "environmental concerns." Accordingly, the WESTL.AW 8 01 Save Homosassa River Alliance, Inc. v. Citrus County, Fla., 2 So.3d 329 (2008) 33 Fla. L. Weekly D2490 allegations set forth in PCEC's complaint are sufficient to demonstrate the requisite level of interest. PCEC's involvement in the original acquisition of the land for use as a state forest and its continued, active connection with that state forest further demonstrate an interest greater than that which all persons share in the community good. Id. at 593-94. 171 On appeal, Plaintiffs begin with the premise that the trial court's dismissal order was based on the trial court's view that in order to have standing to mount a section 163.3215 challenge, the plaintiff must own real property adjacent to or very near the parcel at issue. It is true that there is much in the appealed order to suggest that was the court's view. We do not believe the court's analysis to be quite so narrow, however. It does appear that the trial court had difficulty envisioning how the "greater -in -degree" part of the statutory test for standing could be met if the plaintiff did not own adjacent real property. The "greater -in -degree" part of the test self -evidently would be met if the plaintiff is an adjacent property owner. Everyone else has to figure out how to surmount the tag -line test in Keyser,10 i.e., how to be "something more" than just a "citizen with an interest in the environment." The County contends that Plaintiffs' complaint lacks "facts sufficient to establish that the impact upon their educational efforts, enjoyment of the outdoors and use of government services is to a greater degree than others with the community," and that Plaintiffs have failed to establish precisely how the alleged comprehensive plan violations, which relate to increased height and density, would impact their interests *340 (i.e. their educational efforts, enjoyment of the outdoors and use of government services) to any greater degree than the Old Homosassa community as a whole. In its separate Answer Brief, Resort similarly asserts that Plaintiffs failed to specifically identify an "adverse interest or impact that" they "could expect to occur due to [its] proposed hotel expansion" and failed to show that their "interests are adversely affected in a way not experienced by the general population." 181 Plaintiffs contend that the trial court's dismissal should be reversed because they have alleged concrete and specific adverse interests that exceed in degree the general interest in community good shared by all. Plaintiffs maintain that it is not necessary for them to show that they will suffer a unique harm and reject the appellees' position as being outside the express language Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk and intent of the statute. We agree with Plaintiffs that the statutory test is directed to the quality of the interest of the person seeking standing; there is no requirement of a unique harm relative to the general population. The allegations of the Second Amended Complaint amply demonstrate that each of the plaintiffs has an interest that is greater than "a general interest in community good shared by all persons." The allegations show that the Plaintiffs all have a direct and demonstrated concern for the protection of the interests furthered by the comprehensive plan that would be adversely affected by allowing a development that violates the plan. An interpretation of the statute that requires harm different in degree from other citizens would eviscerate the statute and ignore its remedial purpose. It drags the statute back to the common law test. The statute is designed to remedy the governmental entity's failure to comply with the established comprehensive plan, and, to that end, it creates a category of persons able to prosecute the claim. The statute is not designed to redress damage to particular plaintiffs. To engraft such a "unique harm" limitation onto the statute would make it impossible in most cases to establish standing and would leave counties free to ignore the plan because each violation of the plan in isolation usually does not uniquely harm the individual plaintiff. Rather, the statute simply requires a citizen/plaintiff to have a particularized interest of the kind contemplated by the statute, not a legally protectable right. (91 In sum, we conclude that the Second Amended Complaint adequately alleges Plaintiffs' standing to challenge the County's alleged failure to comply with its comprehensive plan in approving Resort's project." We accordingly reverse and remand for further proceedings. REVERSED and REMANDED. SAWAYA, J., concurs. PLEUS, J., dissents, with opinion. PLEUS, J., dissenting. I dissent. The able and sage trial judge understood the case law and applied it properly. He correctly dismissed this case with prejudice for lack of standing because the plaintiffs repeatedly failed to allege any adverse effects, impact or harm they would suffer from the proposed WESTLAW r Now- L Save Homosassa River Alliance, Inc. v. Citrus County, Fla., 2 So.3d 329 (2008) 33 Fla. L. Weekly D2490 development that was unique to them. Without it being unique to them, their interest cannot exceed in degree the general interest in the community good shared by all persons. The majority opinion eviscerates the "adverse *341 effect" element of the standing requirement in subsection 163.3215(2), Florida Statutes, and stands in direct conflict with the case law interpreting that statute. Subsection 163.3215(2) defines an "aggrieved or adversely affected party" as "any person or local government which will suffer an adverse effect to an interest furthered by the local government comprehensive plan...." (Emphasis added). It further states that "[t]he alleged adverse interest may be shared in common with other members of the community at large but must exceed in degree the general interest in community good shared by all persons." (Emphasis added). The cases discussing this section have uniformly interpreted it as requiring factual allegations that plaintiffs will suffer adverse effects and that those adverse effects will be greater than those suffered by the community at large. See Dunlap v. Orange County, 971 So.2d 171 (Fla. 5th DCA 2007); Stranahan House, Inc. v. City of Fort Lauderdale, 967 So.2d 427 (Fla. 4th DCA 2007); Payne v. City of Miami, 927 So.2d 904 (Fla. 3d DCA 2005); Edgewater Beach Owners Ass'n, Inc. v. Walton County, 833 So.2d 215 (Fla. 1st DCA 2002), receded from on other grounds, Bay Point Club, Inc. v. Bay County, 890 So.2d 256 (Fla. 1st DCA 2004); Putnam County Envtl. Council, Inc. v. Bd. of County Comm 'rs, 757 So.2d 590, 592-93 (Fla. 5th DCA 2000) Florida Rock Props. v. Keyser, 709 So.2d 175, 177 (Fla. 5th DCA 1998); Pichette v. City of N. Miami, 642 So.2d 1165 (Fla. 3d DCA 1994); Sw. Ranches Homeowners Ass'n, Inc. v. Broward County, 502 So.2d 931 (Fla. 4th DCA 1987). Florida Rock, in my view, is a correct analysis of the statute. It tells us two things. Owning real property in the vicinity of the rezoning, and being concerned about the effects of the rezoning, is not sufficient to confer jurisdiction. The rezoning must have a specific impact or involve some harm on or to the property owner or his property. For example, in Dunlap, this Court concluded that the plaintiffs had standing in part because "as owners of property fronting the lake on which Country Lake Estates is being developed, their interests will be affected by M/I Homes' boat ramp construction to an extent which is greater than those held by general members of the community who do not own such lake -front property." 971 So.2d at 175. Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk In Stranahan House, the Fourth District held that the plaintiff sufficiently pled an adverse effect by alleging that as the adjoining property owner, Stranahan House would be negatively affected by "increased traffic and the activity, lights, alteration of Stranahan's enjoyment of light and air, the visual and audio pollution caused by the development and the effect of the shadow cast over the Stranahan property at certain times of the year." 967 So.2d at 433-34. In Payne, the Third District found that the plaintiffs had sufficiently alleged that they would suffer "adverse effects, exceeding the general interests shared by the community at large," by alleging they would suffer specific injuries to their ability to conduct business along the river due to depletion of available sites for marine industrial use by the conversion of industrial land to residential and commercial uses. 927 So.2d at 909. In Edgewater Beach, the First District found that the plaintiff homeowners association demonstrated standing at trial by testifying that an adjacent proposed development would block members' ocean views, thereby reducing their property values, and it would place their recreational facilities in shade until noon. 833 So.2d at 220. *342 In Putnam County Envtl. Council, this Court held that the plaintiff organization sufficiently alleged adverse effects by asserting "specific injuries" it would suffer, including destruction of the habitat of species its members studied and elimination of members' access to the forest and its creatures by overgrowth from discontinuation of controlled burns. 757 So.2d at 593. This Court concluded that such alleged adverse effects were "particular" to the plaintiff organization, making it more than just a group with amorphous environmental concerns. Id. In Florida Rock, this Court held that the plaintiff lacked standing because he failed to show that he would suffer an adverse effect or specific injury from the proposed development. Although the plaintiff alleged generally that the proposed development would "affect his quality of life" and that the County would not be as bucolic as it once was, this Court noted that the alleged injury should be "unique" and "specific" to the plaintiff. It further instructed, "Had Keyser lived adjacent to the property, and had he been able to show a specific impact the zoning change would have upon him or his property, he would have standing." 709 So.2d at 177. In Pichette, the Third District affirmed a summary judgment for lack of standing because the plaintiffs failed to demonstrate that they would be affected by "noise, ESTLAW Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk Save Homosassa River Alliance, Inc. v. Citrus County, Fla., 2 So.3d 329 (2008) 33 Fla. L. Weekly D2490 'vow traffic impact, land value diminution, or and any other respect by the proposed zoning ordinance." 642 So.2d at 1166. In Southwest Ranches, the Fourth District held that the plaintiffs sufficiently alleged standing by asserting that they were a group of landowners who would be directly affected by a proposed adjacent landfill's pollution, flooding and deterioration of the potable water supply. 502 So.2d at 934-35. In the instant case, the plaintiffs failed to allege that they would suffer any adverse effect from the proposed development, much less any that would affect them to a greater degree than the community at large. The complaint alleges that the individual plaintiffs will suffer harm because the proposed development will increase demands on the potable water, sewer, traffic, evacuation, police and infrastructure systems. Simply alleging that development will increase demands on various resources does not equate to an adverse effect on an individual plaintiff. Instead, the complaint must allege ultimate facts showing how or why increased demands will result in adverse impacts to the plaintiffs. See Fla. R. Civ. P. 1.110(b) (requiring a "short and plain statement of ultimate facts showing pleader is entitled to relief'); Williams v. Howard, 329 So.2d 277 (F1a.1976) (noting that a "bare assertion" that one's legal rights will be affected, without alleging how or why, is not sufficient to establish standing to file a declaratory judgment action). For example, will the increased numbers of people and demands arising from the proposed development degrade the plaintiffs' water quality? Will they reduce the plaintiffs' access to potable water? Will they increase the price plaintiffs pay for potable water? Will they reduce plaintiffs' access to fishing, boating and other activities in the Homosassa River? Will they cause increased response times from police and fire to plaintiffs' residences? Will they prevent plaintiffs from timely evacuating in an emergency? And, if so, how are any of these adverse effects suffered by the plaintiffs to a greater degree than the community at large? The complaint fails to allege any ultimate facts demonstrating that the plaintiffs will suffer adverse effects, much less adverse effects greater than the community at large. *343 The complaint also alleges that the Alliance and the individual plaintiffs will be adversely affected because their "investment of resources and volunteer activities" to protect the river, educate the public and encourage responsible development will be "for naught" if the County continues to allow development that is inconsistent with the Comprehensive Plan. A similar WESTLAW on argument was soundly rejected by the United States Supreme Court in Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972), a case this Court followed in Florida Rock. There, the Sierra Club had attempted to establish standing under a similar statutory requirement in the Administrative Procedure Act that it allege an "adverse effect." Discussing the purpose for this requirement, the Court stated: The requirement that a party seeking review must allege facts showing that he is himself adversely affected does not insulate executive action from judicial review, nor does it prevent any public interests from being protected through the judicial process. It does serve as at least a rough attempt to put the decision as to whether review will be sought in the hands of those who have a direct stake in the outcome. That goal would be undermined were we to construe the APA to authorize judicial review at the behest of organizations or individuals who seek to do no more than vindicate their own value preferences through the judicial process. Id. at 1368-69 (footnote omitted; emphasis added). In this case, the majority concludes without any supporting analysis that the plaintiffs sufficiently allege that they will be "adversely affected by allowing a development that violates the plan." The majority's conclusion suffers from the same fatal flaw as the complaint itself —it is unsupported by any allegations of ultimate facts showing how or why the alleged violations will adversely affect the plaintiffs, and do so to a greater degree than the community at large. More troubling is the majority's contradictory statement that a showing of harm is not required at all. It states: rH Submitted into the public record for item(s) PZ.1 on 12/13/2018 , City Clerk Save Homosassa River Alliance, Inc. v. Citrus County, Fla., 2 So.3d 329 (2008) 33 Fla. L. Weekly D2490 An interpretation of the statute that requires harm different in degree from other citizens would eviscerate the statute and ignore its remedial purpose. It drags the statute back to the common law test. The Statute is designed to remedy the governmental entity's failure to comply with the established comprehensive plan, and, to that end, it creates a category of persons able to prosecute the claim. The statute is not designed to redress damage to particular plaintiffs. To engraft such a "unique harm" limitation onto the statute would make it impossible in most cases to establish standing and would leave counties free to ignore the plan because each violation of the plan in isolation usually does not harm the individual plaintiff. Rather, the statute simply requires a citizen/plaintiff to have a particularized interest of the kind contemplated by the statute, not a legally protectable right. This analysis is incorrect. By interpreting the statute as requiring only a particularized interest and not a particularized harm, it contravenes the plain language of the statute and conflicts with prior case law from this and other districts. It also leads to the danger described by the Supreme Court in Morton, as follows: It is clear that an organization whose members are injured may represent those members in a proceeding for judicial review. See, e.g., NAACP v. Button, 371 U.S. 415, 428, 83 S.Ct. 328, 335, 9 L.Ed.2d 405. But a mere "interest in a problem," no matter how longstanding *344 the interest and no matter how qualified the organization is in evaluating the problem, is not sufficient by itself to render the organization "adversely affected" or WESTLAW "aggrieved" within the meaning of the APA. The Sierra Club is a large and long-established organization, with a historic commitment to the cause of protecting our Nation's natural heritage from man's depredations. But if a "special interest" in this subject were enough to entitle the Sierra Club to commence this litigation, there would appear to be no objective basis upon which to disallow a suit by any other bona fide "special interest" organization however small or short-lived. And if any group with a bona fide "special interest" could initiate such litigation, it is difficult to perceive why any individual citizen with the same bona fide special interest would not also be entitled to do so. Id. at 739-40, 92 S.Ct. 1361. As discussed above, Florida case law clearly requires more concrete injury than that alleged by the Plaintiffs. On this point the U.S. Supreme Court has previously recognized the requirement of an injury is specific —it requires a "concrete and particularized" injury in fact which "must affect the plaintiff in a personal and individual way," does not allow legal redress for any imaginable injury, and is not "an ingenious academic exercise in the conceivable." Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 566, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). In Lujan, Justice Scalia expressed doubts that the Defenders of Wildlife had alleged sufficient injury to demonstrate standing, simply because a person's aesthetic viewing of a particular species in a particular area of the world was in danger of becoming less pleasurable. Id. at 566, 112 S.Ct. 2130. This argument is "pure speculation and fantasy." Id. To be sure, the Court opined that if a person could show they were observing a threatened species in a particular area of the world and that specific area was threatened, it was "plausible —though it goes to the outermost limit of plausibility" that such a person might have standing. Id. In this case, although the aesthetic viewing argument expressed by the Plaintiffs in this case stretches plausibility for the same reasons, it is somewhat closer to satisfying the constitutional requirement of standing because of Plaintiffs' demonstrated proximity. However, there is an additional problem with Plaintiffs' argument. Save Homosassa River Alliance, Inc. v. Citrus County, Fla.. 2 So.3d 329 (2008) 33 Fla. L. Weekly D2490 To demonstrate such an injury, the party seeking redress must state "specific facts" demonstrating "that one or more of respondents' members would thereby be directly affected" by the challenged action. Id. at 563, 112 S.Ct. 2130. This was not accomplished here. Plaintiffs' bare -bones allegations that the increases in density will affect their use of the river is, without more, "pure speculation and fantasy" and is insufficient to show the requisite actual, concrete injury. Because the Second Amended Complaint was fatally defective, the trial judge did not abuse his discretion in dismissing it with prejudice. The standard for reviewing a lower court's dismissal with prejudice is abuse of discretion. Sonny Boy, L.L.C. v. Asnani, 879 So.2d 25, 28-29 (Fla. 5th DCA 2004). Refusal to allow amendment of a pleading constitutes an abuse of discretion unless it clearly appears that allowing the amendment would prejudice the opposing party, the privilege to amend has been abused, or amendment would be futile. Id. While amendments should generally be liberally granted so that cases may be concluded on their merits, "there is an equally compelling obligation on the court to see to it that the end of all litigation be finally reached." Price v. Morgan, 436 So.2d 1116, 1122 (Fla. 5th DCA 1983). *345 Thus, "a trial judge in the exercise of sound discretion may deny further amendments where a case has progressed to a point that liberality ordinarily to be indulged has diminished." Id. The trial court's order denying motion for rehearing demonstrates that dismissal with prejudice was appropriate in this case because further amendment would be futile and would cause prejudice to the defendants. It states: After extensive argument on the defendant's and intervenor's motions to dismiss plaintiffs' Amended Complaint at which time it was thoroughly explained why the facts urged by plaintiffs did not meet the requirements for standing, the court dismissed plaintiffs' complaint but with leave to amend. Although the court inquired at that hearing what additional facts plaintiffs might be able to allege on amendment, plaintiffs' counsel objected to "going outside the record" and insisted that the court rule on the four corners of the complaint. The court gave plaintiffs the benefit of the doubt that they might have additional facts bearing on standing that could be alleged and permitted an amendment. Plaintiffs' second amended complaint also failed to allege sufficient facts showing that plaintiffs were any more affected by the challenged action of the County Commission than any other member of the community. Submitted into the public record for item(s) PZ•1 on 12/13/2018 , City Clerk And this is understandable. Plaintiffs cannot invent facts. They now live no closer to the project so that its noise affects them and the shadows case by the buildings still does not fall on plaintiffs' property. Although there was no contention before the County Commission that the project would affect the quality of the water in the Homosassa River, plaintiffs are unable to allege any greater right to the river than the general public. And although the number of units may permit some growth in the area and the buildings may not be consistent with the character of Old Homosassa, these allegations affect all of the citizens in Old Homosassa equally. When delay will prevent the construction of an approved but undesired development, then one may win by losing if the losing process is sufficiently long. In this case, it has been long enough. Plaintiffs have had ample opportunity to show standing if they could. Further delay will not help them. The plaintiffs in this case made three attempts to plead standing and they failed. "Generally three ineffective attempts to state the same cause of action are enough." Henry P. Trawick, Jr., Florida Practice and Procedure § 14-3 at 267 (2007-08 ed.). Most trial judges use the "three strikes and you're out" standard. The record amply demonstrates that the plaintiffs were incapable of pleading sufficient ultimate facts to confer standing. As the trial court noted above, at the hearing on the First Amended Complaint, the court asked the plaintiffs' attorney what additional facts could be alleged and she objected to going "outside the record." Nevertheless, the court entered an order explaining why the complaint was deficient and gave the plaintiffs an opportunity to allege additional ultimate facts. The plaintiffs then filed the Second Amended Complaint, which was also deficient. At the hearing on the motion to dismiss that complaint, plaintiffs' counsel candidly stated: [W]e wouldn't have the second amended complaint, had they not filed a motion to dismiss. What they have been successful in doing is creating you know, basically making sure that we have a non -assailable complaint once it's time for the matter to be finally resolved, because *346 we have now had two opportunities to dot 1 Save Homosassa River Alliance, Inc. v. Citrus County, Fla., 2 So.3d 329 (2008) 33 Fla. L. Weekly D2490 *331 Denise A. Lyn, of Denise A. Lyn, P.A., Inverness, for Appellant. Michele Lieberman, of Law Office of Michele L. Lieberman, LL, Inverness, for Appellee. Carl A. Bertoch, Crystal River, for Intervenor, Homosassa Riverside Resort, LLC. Opinion GRIFFIN, J. Save the Homosassa River Alliance, Inc., James Bitter, Rosemary Rendueles, and Priscilla Watkins [collectively "Plaintiffs"] appeal the trial court's order dismissing, with prejudice, their suit against Citrus County, Florida ["County"] and Homosassa River Resort, LLC ["Resort"] on the ground that they lack standing. Resort owns property adjacent to the Homosassa River ["River"] in Old Homosassa, Florida. The Homosassa River is an Outstanding Florida Waterway and an essential manatee habitat.' There are two buildings on Resort's site, containing fifteen residential condominium units. Resort applied to the County for a land development code atlas amendment "to allow the development and redevelopment of 87 condominium dwelling units, retail space, amenities and parking" on this property. The project would result in the construction of four four-story residential structures. On July 11, 2006, Citrus County's Board of County Commissioners enacted Ordinance No. 2006—A13, which approved Resort's application and amended the County's land development code to reflect the approval. Plaintiff Alliance is a not -for -profit corporation "committed to the preservation and conservation of environmentally sensitive lands and the wildlife in and around the Homosassa River and in Old Homosassa, Florida." Plaintiffs Bitter, Rendueles, and Watkins are individuals who own property in the area. On August 10, 2006, Plaintiffs filed this suit against the County, pursuant to section 163.3215, challenging the County's approval of Resort's application on the ground that it is inconsistent with the County's Comprehensive Land Use Plan, Citrus County Ordinance No. 89-04, as amended. On November 9, 2006, before the initial complaint was served on the County, Plaintiffs filed an Amended Complaint. Resort was allowed to intervene in the dispute and the County filed a motion to dismiss, arguing that the Plaintiffs had failed to plead sufficient facts to establish WESTLAW Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk standing. The trial court agreed and dismissed Plaintiffs' complaint, with twenty days to amend. *332 Plaintiffs filed their Second Amended Complaint against both the County and Resort, to which the County and Resort responded by filing a joint motion to dismiss. In their joint motion to dismiss, the County and Resort alleged that Plaintiffs had failed to establish standing because they had not sufficiently alleged (1) "any interest that exceeds in degree that of the general community," (2) "harm to such interests over and above that of their neighbors," or (3) "any nexus between the alleged comprehensive plan violations and the interests of the parties."' The trial court heard arguments on the County and Resort's joint motion. At the hearing, Resort and the County essentially reiterated the points they had raised in their written motion and urged that the dismissal of the Second Amended Complaint be with prejudice. Plaintiffs argued that section 163.3215 gave affected citizens significantly enhanced standing to challenge the consistency of development decisions and that their allegations were sufficient to establish standing under this liberalized standard. On about July 2, 2007, the trial court dismissed the Second Amended Complaint with prejudice, concluding that Plaintiffs had failed to sufficiently allege that their interests were adversely affected by the project in a way not experienced by the general population and because of insufficient "nexus" allegations. The trial court observed that "[t]here are no allegations that the county -approved plan permits improper runoff into the river or that the proposed development will itself (other than by adding people to the mix) adversely affect the quality of water or access to the river." Additionally, the trial court noted that "[t]here is no indication that residents living in this proposed project would add any more burden to the streets, storm drainage, river crowding, etc. than residents living elsewhere in the city." Plaintiffs filed a motion for rehearing on July 11, 2007. In the motion for rehearing, Plaintiffs asserted that the trial court's analysis was not within the statute. They also objected that the trial court's dismissal "with prejudice" at that stage of the proceedings was premature and contrary to the existing case law. The trial court concluded that Plaintiffs had been given "ample opportunity to show standing if they could" and that they would not be helped by further delay. The trial court denied Plaintiffs' motion for rehearing. Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk Save Homosassa River Alliance, Inc. v. Citrus County, Fla., 2 So.3d 329 (2008) 33 Fla. L. Weekly D2490 The Second Amended Complaint Plaintiffs' Second Amended Complaint contains lengthy allegations in support of their standing to bring this suit. The complaint begins by introducing each'of the plaintiffs (Alliance, Bitter, Rendueles, and Watkins). Alliance is a not -for -profit corporation committed to the preservation of the lands and the wildlife in and around the Homosassa River and Old Homosassa, Florida. The complaint explains that the group has "embarked on a specific and focused course" to protect the River from problems associated with improper and ineffective storm water management systems, overpopulation of the lands adjacent to the River, destruction of wetlands surrounding the River, degradation of the River's water quality, and excessive boat traffic upon the River. The group conducts *333 seminars to educate the area's residents about the River and how to preserve it. One of the Alliance's main objectives has been "the orderly development and preservation of the character of Old Homosassa." Members of the group use the River for both educational and recreational purposes; have invested substantial effort and funds to protect and preserve the River and its endangered manatees; and have served on the Old Homosassa Area Redevelopment Plan steering committee. The complaint alleges that Bitter is an active Alliance member who owns property about three miles from Resort's site. He is conscious of governmental actions that affect the health of the Homosassa River and participates actively in public conversations regarding development of the area. Bitter fishes in the River, frequently boats along it, and often visits its shores "to admire the beauty and wonder of the River and its wildlife." Additionally, Bitter receives potable water from the Homosassa Special Water District, fire protection from the County's fire department, police protection from the County's Sheriff's Department, and emergency services by Nature Coast EMS. Finally, it is alleged that in the event of a natural disaster or a threat of a natural disaster, Bitter would have to evacuate his property via West Fishbowl Drive, which is a two-lane road in Homosassa. "West Fishbowl Drive ... is along the evacuation route for [Resort's] property...." Rendueles owns canal -front real property less than a mile from Resort's site.' Rendueles worked on the County's Old Homosassa Overlay steering committee and actively participated during the County's public hearings on Resort's application. Additionally, it is alleged that Rendueles "enjoys the beauty of nature by traveling down the Homosassa River and walking and bicycling along the streets in Old Homosassa." She often visits the River's shores "to admire the beauty and wonder of the River and its wildlife." Rendueles receives potable water from the Homosassa Special Water District, fire protection from the County's fire department, police protection from the County's Sheriffs Department, and emergency services by Nature Coast EMS. In the event of a natural disaster or a threat of a natural disaster, Rendueles would evacuate her property via W. Yulee Drive, which is a two-lane road in Homosassa. Watkins owns real property within Homosassa, Florida. She participates in Alliance's activities and actively participated during the County's public hearings on Resort's application. Watkins frequently kayaks on the River; bicycles along W. Halls River Road and W. Fishbowl Drive; and enjoys walking down Old Homosassa's uncrowded streets and roads. Watkins receives potable water from the Homosassa Special Water District, sewer services from Citrus County, fire protection from the County's fire department, police protection from the County's Sheriffs Department, and emergency services by Nature Coast EMS. In the event of a natural disaster or a threat of a natural disaster, Watkins would evacuate her property via W. Halls River Road, a two-lane road in Homosassa, which is along the evacuation route for Resort's property. Plaintiffs allege that "[b]ecause of the County's adoption of a development order which is inconsistent with its adopted Comprehensive Plan[,] [Plaintiffs] will suffer an adverse effect to their interests *334 furthered by the local government comprehensive plan...." In paragraph 27, Plaintiffs generally list protected interests that they claim will be adversely affected by the County's approval. Specifically, Plaintiffs allege: The Alliance and Property Owners, including the members of the corporation, will suffer adverse effects to interests protected or furthered by the adopted Plan, as amended, including but not limited to their property interests, their interest in protecting and maintaining the existing water quality of the Homosassa River, their interest in protecting the endangered Manatees, their WESTLAW m sor Submitted into the K is record for item(s) _ .1 . on 12/13/2018 , City Clerk • Save Homosassa River Alliance, Inc. v. Citrus County, Fla., 2 So.3d 329 (2008) 33 Fla. L. Weekly D2490 interest in sufficient water and wastewater infrastructure, their interests in efficient and equitable distribution of land uses in the area, their interests in reasonable investment -backed expectations in their area, their interests in land use, their interests in preserving the character of Old Homosassa, their interests related to health and safety, including the safety and efficiency of recreation facilities and streets, police and fire protection, densities or intensities of development, including the compatibility of adjacent land uses, their interest in environmental or natural resources and their interest in wetland preservation. In paragraphs 9 through 12, Plaintiffs allege how the harm they would each suffer "exceeds the harm caused to the public in general." With regard to Alliance, Plaintiffs allege: 12). Alliance will be harmed to a degree that exceeds the harm caused to the public in general because of the Alliance's investment of resources and volunteer activities to protect the health and welfare of the Homosassa River and to encourage environmentally sound development practices around the Homosassa River. Its tireless efforts to educate the public and to encourage clean and environmentally sound development will be for naught if the County continues to allow development that is inconsistent with the goals and objectives of its Comprehensive Plan. With respect to each of the individual plaintiffs, Plaintiffs lbw allege that Resort's proposed development activities would increase the number of people in the area and, accordingly, increase demands relating to public services, evacuation, traffic, and infrastructure.' It is alleged that, given their proximity to "the project and given [their] use of the same water system, roadway system ... waterway system," and in the case of Watkins, sewer system, "[Plaintiffs] will suffer harm to a greater degree than that of the public in general." Plaintiffs additionally allege that Bitter would "be harmed to a degree that exceeds the harm caused to the public in general" because of his participation in the local government process and his volunteer efforts to preserve and protect the River; that Rendueles would "be harmed to a degree that exceeds the harm caused to the public in general" due to her proximity to the development, her location in the Coastal High Hazard Area, and her location within the Old Homosassa Redevelopment Area; and that Watkins would "be harmed to a degree that exceeds the harm caused to the public in general" because of her proximity to the development, her location within the Coastal High Hazard Area, her use of the River, and her active use of the roads and streets within Old Homosassa. *335 Finally, the complaint contains allegations concerning the interests the comprehensive plan is intended to protect and how Resort's proposed project is inconsistent with the plan. Plaintiffs allege that the plan's provisions are intended to: a) Preserve, protect, and restore County's natural resources.... b) Protect and maintain the water quality of the ... Homosassa ... [River].... c) Provide the GFLUM be recognized as the primary document used by County in land use regulation and in guiding future growth. e) Provide that where County's LDC conflicts with or overlaps other regulations, whichever imposes the more stringent restrictions shall prevail. f) Limit residential structures in the coastal high hazard area to two (2) stories. g) Prohibit the expansion of R-2 occupancies in the coastal high hazard area. h) Limit structures in the Old Homosassa Redevelopment Area to two (2) stories over the first living floor. i) Require all structures constructed in the Old WESTLAW Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk Save Homosassa River Alliance, Inc. v. Citrus County, Fla., 2 So.3d 329 (2008) 33 Fla. L. Weekly D2490 Homosassa Redevelopment Area to provide for a 10 foot step back of the second story over the first story. j) Require all development in the Old Homosassa Redevelopment Area to further the character and vision provided for Old Homosassa and to be compatible with existing structures in the area. k) Prohibit the development or expansion of general commercial uses within Old Homosassa. The complaint then alleges that the proposed development is inconsistent with the Plan, because it: a) Allows for the expansion of R-2 residential dwelling units in the coastal high hazard area. b) Allows for the construction of three (3) story over parking residential structures in the coastal high hazard area. c) Allows for the construction of structures that are not compatible with the character and vision of Old Homosassa. d) Allows for the construction of four (4) residential structures which do not provide for a step back of stories. e) Allows for increases in residential dwellings in the coastal high hazard area. f) Allows for the expansion or development of new commercial uses within Old Homosassa. g) Allows for the development of residential uses upon lands designated as GNC within Old Homosassa. The trial court's order indicates that it dismissed Plaintiffs' Second Amended Complaint because it found that Plaintiffs had failed to sufficiently allege that their interests were adversely "affected by the project in a way not experienced by the general population." Additionally, the trial court's order adopted the "nexus" argument of Resort and the County, ruling that "there must be some nexus between the alleged evil of the challenged action and the adverse [e]ffect claimed." WESTLAW *336 Controlling Law "1I "A local comprehensive land use plan is a statutorily mandated legislative plan to control and direct the use and development of property within a county or municipality. The plan is likened to a constitution for all future development within the governmental boundary." Machado v. Musgrove, 519 So.2d 629, 631-32 (Fla. 3d DCA 1987) (citations omitted). See also § 163.3167, Fla. Stat. (2007). Once a comprehensive plan has been adopted pursuant to the Local Government Comprehensive Planning and Land Development Regulation Act, "all development undertaken by, and all actions taken in regard to development orders by, governmental agencies in regard to land covered by such plan" must be consistent with that plan. § 163.3194(1)(a), Fla. Stat. (2007); see also § 163.3164(7), Fla. Stat. (2007). 121 131 Prior to 1985, common law governed a third party's standing to intervene to challenge a development order as inconsistent with the governing comprehensive plan. See Parker v. Leon County, 627 So.2d 476, 479 (F1a.1993), Citizens Growth Mgmt. Coal., Inc. v. City of W. Palm Beach, 450 So.2d 204, 206-08 (F1a.1984). The common law rule provided that, in order to have standing to challenge a land use decision, a party had to possess a legally recognized right that would be adversely affected by the decision or suffer special damages different in kind from that suffered by the community as a whole. Putnam County Envtl. Council, Inc. v. Bd. of County Comm'rs, 757 So.2d 590, 592-93 (Fla. 5th DCA 2000); Citizens Growth Mgmt. Coal., Inc., 450 So.2d at 206. In 1985, the Florida Legislature reacted to the Supreme Court's 1984 decision in Citizens Growth Management that the common law rules of standing applied to the Growth Management Act by enacting section 163.3215, Florida Statutes.' Its stated purpose was "to ensure the standing for any person who 'will suffer an adverse effect to an interest protected ... by the ... comprehensive plan.' " Parker, 627 So.2d at 479 (citing § 163.3215(2), Fla. Stat. (1985)); see also Edu. Dev. Ctr., Inc. v. Palm Beach County, 751 So.2d 621, 623 (Fla. 4th DCA 1999) (section 163.3215 is a remedial statute in that it "enlarged the class of persons with standing to challenge a development order as inconsistent with the comprehensive plan"). As a remedial statute, section 163.3215 is to "be liberally construed to advance the intended remedy...." Edu. Dev. Ctr., Inc., 751 So.2d at 623; see also Dunlap v. Orange County, 971 So.2d 171, 174 (Fla. 5th DCA 2007). There is no doubt that the purpose of the adoption of section 163.3215 was to liberalize standing in this context. See City of Ft. Myers v. Splitt, 988 So.2d 28 (Fla. 2d DCA 2008). 141 In part, section 163.3215(3), Florida Statutes (2007), rks Save Homosassa River Alliance, Inc. v. Citrus County, Fla., 2 So.3d 329 (2008) 33 Fla. L. Weekly D2490 1. provides: Niirwr Any aggrieved or adversely affected party may maintain a de novo action for declaratory, injunctive, or other relief against any local government to challenge any decision of such local government granting or denying an application for, or to prevent such local government from taking any action on, a development order, as defined in s. 163.3164, which materially alters the use or density or intensity of use on a particular piece of property which is not consistent with the comprehensive plan adopted under this part. *337 Further, section 163.3215(2), Florida Statutes (2007), provides: As used in this section, the term "aggrieved or adversely affected party" means any personm or local government that will suffer an adverse effect to an interest protected or furthered by the local government comprehensive plan, including interests related to health and safety, police and fire protection service systems, densities or intensities of development, transportation facilities, health care facilities, equipment or services, and environmental or natural resources. The alleged adverse interest may be shared in common with other members of the community at large but must exceed in degree the general interest in community good shared by all persons. The term includes the owner, developer, or applicant for a development order. Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk (Emphasis added). Thus, a person's standing to bring a challenge under section 163.3215(3) depends on (1) whether the interests the person alleges are "protected or furthered by the local government comprehensive plan"; if so, (2) whether those interests "exceed in degree the general interest in community good shared by all persons"; and (3) whether the interests will be adversely affected by the challenged decision. See § 163.3215(2), Fla. Stat. (2007); see also Fla. Rock Props. v. Keyser, 709 So.2d 175, 177 (Fla. 5th DCA 1998). 151 There is nothing obscure about the statutory language requiring a person seeking standing to allege an interest that "[exceeds] in degree the general interest in community good shared by all persons" to establish standing. It simply means that a party must allege that they have an interest that is something more than "a general interest in community well being." See Keyser, 709 So.2d at 177i; see also Stranahan House, Inc. v. City of Fort Lauderdale, 967 So.2d 427, 434 (Fla. 4th DCA 2007).' The statute does not say that a party must be harmed to a greater degree than the general public. Not surprisingly, the case law assumes that an organization has an interest that is greater than "the general interest in community well being" when the organization's primary purpose includes protecting the particular interest that they allege will be adversely affected by the comprehensive plan violation. See Stranahan House, Inc., 967 So.2d at 434. The old common law test was so narrowly drawn that there often was no means of redress for a comprehensive plan violation. The expanded statutory test eliminates *338 "gadfly" litigation, yet gives oversight to the segment of the public that is most likely to be knowledgeable about the interest at stake and committed to its protection. The statute expressly identifies by multiple examples the kinds of interests the legislature intended to protect: As used in this section, the term "aggrieved or adversely affected party" means any person or local government that will suffer an adverse effect to an interest protected or furthered by the local government comprehensive plan, including interests related to health and safety, police and fire protection service systems, densities or intensities of development, transportation facilities, health care facilities, equipment or services, and environmental or natural resources. § 163.3215(2), Fla. Stat. (2007) (emphasis added). Application of the statutory test is illustrated by comparing two of the leading cases previously decided by this court. In Keyser, Timothy Keyser had filed a lawsuit WESTLAW T Submitted into the public record for item(s) 112.1 . on 12/13/2018 , City Clerk Save Homosassa River Alliance, Inc. v. Citrus County, Fla., 2 So.3d 329 (2008) 33 Fla. L. Weekly D2490 challenging the decision of the Putnam County Commission to rezone a 509 acre parcel of Florida Rock Properties' land from agricultural to mining. This Court held that Keyser's allegation that the Commission's decision "would adversely affect his quality of life by its negative impact upon wildlife populations and habitats in Putnam County" was insufficient to establish standing. 709 So.2d at 177. In explaining why the allegation was insufficient, this Court said, "Keyser never demonstrated any specific injury, only that the county would not be as bucolic as it once was. Keyser is a citizen with an interest in the environment and nothing more." Id. In Putnam County Environmental Council, Inc., a company owned a piece of land adjacent to the Etoniah Creek State Forest, which was zoned for agricultural use. The company and the local school board "applied for a special exception to the county's comprehensive plan to allow the construction of a regional middle school complex on" the company's property. 757 So.2d at 591. The application was approved, and the Putnam County Environmental Council ["PCEC"] subsequently filed a complaint, seeking to enforce Putnam County's comprehensive plan pursuant to chapter 163. The trial court concluded that PCEC lacked standing to challenge the order under section 163.3215 and dismissed the action on that basis. It its complaint, PCEC alleged that its "primary organizational purposes and activities include the study and protection of natural resources and the advocacy of sound land use and growth management policies affecting the environment"; that its officers and members had "initiated and facilitated the original public acquisition of the Etoniah Creek State Forest"; and that "[a] substantial number of [its] members, along with non-members who participate in PCEC-sponsored activities, use the Etoniah Creek State Forest for recreational and educational purposes." Putnam County Envtl. Council, Inc., 757 So.2d at 592. Additionally, PCEC alleged: The use allowed under the special exception will adversely affect PCEC's use and its members' use of the adjacent Etoniah Creek State Forest as natural resource area. The use of the subject parcel for a school will adversely impact the ability of the Division of Forestry to use controlled burns to manage WESTLAW -nso the adjacent state forest. Without controlled burns, habitat for a variety of species in the Etoniah Creek State Forest will be reduced or eliminated, thus adversely affecting the ability of PCEC, its members, and others who participate in *339 PCEC-sponsored activities to observe or study those species. Also, without controlled burns, much of the forest will become overgrown with understory species, thus adversely affecting the ability of PCEC, its members, and others who participate in PCEC-sponsored activities to access and hike portions of Etoniah Creek State Forest. Furthermore, the physical presence of a school plant as well as the increased traffic and the activity, lights, and noise associated with a school facility, athletic fields, parking lots, and school bands are incompatible with Etoniah Creek State Forest's nature -based recreation and will discourage and interfere with the ability of wide-ranging species such as the black bear to reach or remain in the state forest. This will adversely affect the ability of PCEC, its members, and others who participate in PCEC-sponsored activities to observe or study those species.... Id. 161 In holding that PCEC had made sufficient allegations to establish standing, this Court said: [H]ere PCEC's complaint alleged specific injuries that PCEC would suffer if a middle school complex was constructed on Roberts' property, including the destruction of the habitat of species being studied by PCEC members and the elimination of PCEC members' access to the forest and the forest's creatures by the overgrowth of the forest. The diminution of species being studied by the group is a harm particular to PCEC, making PCEC more than just a group with amorphous "environmental concerns." Accordingly, the W rk . Save Homosassa River Alliance, Inc. v. Citrus County, Fla., 2 So.3d 329 (2008) 33 Fla. L. Weekly D2490 allegations set forth in PCEC's complaint are sufficient to demonstrate the requisite level of interest. PCEC's involvement in the original acquisition of the land for use as a state forest and its continued, active connection with that state forest further demonstrate an interest greater than that which all persons share in the community good. Id. at 593-94. 171 On appeal, Plaintiffs begin with the premise that the trial court's dismissal order was based on the trial court's view that in order to have standing to mount a section 163.3215 challenge, the plaintiff must own real property adjacent to or very near the parcel at issue. It is true that there is much in the appealed order to suggest that was the court's view. We do not believe the court's analysis to be quite so narrow, however. It does appear that the trial court had difficulty envisioning how the "greater -in -degree" part of the statutory test for standing could be met if the plaintiff did not own adjacent real property. The "greater -in -degree" part of the test self -evidently would be met if the plaintiff is an adjacent property owner. Everyone else has to figure out how to surmount the tag -line test in Keyser,1 ° i.e., how to be "something more" than just a "citizen with an interest in the environment." The County contends that Plaintiffs' complaint lacks "facts sufficient to establish that the impact upon their educational efforts, enjoyment of the outdoors and use of government services is to a greater degree than others with the community," and that Plaintiffs have failed to establish precisely how the alleged comprehensive plan violations, which relate to increased height and density, would impact their interests *340 (i.e. their educational efforts, enjoyment of the outdoors and use of government services) to any greater degree than the Old Homosassa community as a whole. In its separate Answer Brief, Resort similarly asserts that Plaintiffs failed to specifically identify an "adverse interest or impact that" they "could expect to occur due to [its] proposed hotel expansion" and failed to show that their "interests are adversely affected in a way not experienced by the general population." 181 Plaintiffs contend that the trial court's dismissal should be reversed because they have alleged concrete and specific adverse interests that exceed in degree the general interest in community good shared by all. Plaintiffs maintain that it is not necessary for them to show that they will suffer a unique harm and reject the appellees' position as being outside the express language • WESTLAW Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk and intent of the statute. We agree with Plaintiffs that the statutory test is directed to the quality of the interest of the person seeking standing; there is no requirement of a unique harm relative to the general population. The allegations of the Second Amended Complaint amply demonstrate that each of the plaintiffs has an interest that is greater than "a general interest in community good shared by all persons." The allegations show that the Plaintiffs all have a direct and demonstrated concern for the protection of the interests furthered by the comprehensive plan that would be adversely affected by allowing a development that violates the plan. An interpretation of the statute that requires harm different in degree from other citizens would eviscerate the statute and ignore its remedial purpose. It drags the statute back to the common law test. The statute is designed to remedy the governmental entity's failure to comply with the established comprehensive plan, and, to that end, it creates a category of persons able to prosecute the claim. The statute is not designed to redress damage to particular plaintiffs. To engraft such a "unique harm" limitation onto the statute would make it impossible in most cases to establish standing and would leave counties free to ignore the plan because each violation of the plan in isolation usually does not uniquely harm the individual plaintiff. Rather, the statute simply requires a citizen/plaintiff to have a particularized interest of the kind contemplated by the statute, not a legally protectable right. (91 In sum, we conclude that the Second Amended Complaint adequately alleges Plaintiffs' standing to challenge the County's alleged failure to comply with its comprehensive plan in approving Resort's project." We accordingly reverse and remand for further proceedings. REVERSED and REMANDED. SAWAYA, J., concurs. PLEUS, J., dissents, with opinion. PLEUS, J., dissenting. I dissent. The able and sage trial judge understood the case law and applied it properly. He correctly dismissed this case with prejudice for lack of standing because the plaintiffs repeatedly failed to allege any adverse effects, impact or harm they would suffer from the proposed Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk Save Homosassa River Alliance, Inc. v. Citrus County, Fla., 2 So.3d 329 (2008) 33 Fla. L. Weekly D2490 development that was unique to them. Without it being unique to them, their interest cannot exceed in degree the general interest in the community good shared by all persons. The majority opinion eviscerates the "adverse *341 effect" element of the standing requirement in subsection 163.3215(2), Florida Statutes, and stands in direct conflict with the case law interpreting that statute. Subsection 163.3215(2) defines an "aggrieved or adversely affected party" as "any person or local government which will suffer an adverse effect to an interest furthered by the local government comprehensive plan...." (Emphasis added). It further states that "[t]he alleged adverse interest may be shared in common with other members of the community at large but must exceed in degree the general interest in community good shared by all persons." (Emphasis added). The cases discussing this section have uniformly interpreted it as requiring factual allegations that plaintiffs will suffer adverse effects and that those adverse effects will be greater than those suffered by the community at large. See Dunlap v. Orange County, 971 So.2d 171 (Fla. 5th DCA 2007); Stranahan House, Inc. v. City of Fort Lauderdale, 967 So.2d 427 (Fla. 4th DCA 2007); Payne v. City of Miami, 927 So.2d 904 (Fla. 3d DCA 2005); Edgewater Beach Owners Ass'n, Inc. v. Walton County, 833 So.2d 215 (Fla. 1st DCA 2002), receded from on other grounds, Bay Point Club, Inc. v. Bay County, 890 So.2d 256 (Fla. 1st DCA 2004); Putnam County Envtl. Council, Inc. v. Bd. of County Comm'rs, 757 So.2d 590, 592-93 (Fla. 5th DCA 2000) Florida Rock Props. v. Keyser, 709 So.2d 175, 177 (Fla. 5th DCA 1998); Pichette v. City of N. Miami, 642 So.2d 1165 (Fla. 3d DCA 1994); Sw. Ranches Homeowners Ass'n, Inc. v. Broward County, 502 So.2d 931 (Fla. 4th DCA 1987). Florida Rock, in my view, is a correct analysis of the statute. It tells us two things. Owning real property in the vicinity of the rezoning, and being concerned about the effects of the rezoning, is not sufficient to confer jurisdiction. The rezoning must have a specific impact or involve some harm on or to the property owner or his property. For example, in Dunlap, this Court concluded that the plaintiffs had standing in part because "as owners of property fronting the lake on which Country Lake Estates is being developed, their interests will be affected by M/I Homes' boat ramp construction to an extent which is greater than those held by general members of the community who do not own such lake -front property." 971 So.2d at 175. In Stranahan House, the Fourth District held that the plaintiff sufficiently pled an adverse effect by alleging that as the adjoining property owner, Stranahan House would be negatively affected by "increased traffic and the activity, lights, alteration of Stranahan's enjoyment of light and air, the visual and audio pollution caused by the development and the effect of the shadow cast over the Stranahan property at certain times of the year." 967 So.2d at 433-34. In Payne, the Third District found that the plaintiffs had sufficiently alleged that they would suffer "adverse effects, exceeding the general interests shared by the community at large," by alleging they would suffer specific injuries to their ability to conduct business along the river due to depletion of available sites for marine industrial use by the conversion of industrial land to residential and commercial uses. 927 So.2d at 909. In Edgewater Beach, the First District found that the plaintiff homeowners association demonstrated standing at trial by testifying that an adjacent proposed development would block members' ocean views, thereby reducing their property values, and it would place their recreational facilities in shade until noon. 833 So.2d at 220. *342 In Putnam County Envtl. Council, this Court held that the plaintiff organization sufficiently alleged adverse effects by asserting "specific injuries" it would suffer, including destruction of the habitat of species its members studied and elimination of members' access to the forest and its creatures by overgrowth from discontinuation of controlled burns. 757 So.2d at 593. This Court concluded that such alleged adverse effects were "particular" to the plaintiff organization, making it more than just a group with amorphous environmental concerns. Id. In Florida Rock, this Court held that the plaintiff lacked standing because he failed to show that he would suffer an adverse effect or specific injury from the proposed development. Although the plaintiff alleged generally that the proposed development would "affect his quality of life" and that the County would not be as bucolic as it once was, this Court noted that the alleged injury should be "unique" and "specific" to the plaintiff. It further instructed, "Had Keyser lived adjacent to the property, and had he been able to show a specific impact the zoning change would have upon him or his property, he would have standing." 709 So.2d at 177. In Pichette, the Third District affirmed a summary judgment for lack of standing because the plaintiffs failed to demonstrate that they would be affected by "noise, WESTLAW 31 io t sot ' )rks. Submitted into the public record for itern(s) PZ.1 on 12/13/2018 , City Clerk Save Homosassa River Alliance, Inc. v. Citrus County, Fla., 2 So.3d 329 (2008) 33 Fla. L. Weekly D2490 'vim, traffic impact, land value diminution, or and any other respect by the proposed zoning ordinance." 642 So.2d at 1166. L In Southwest Ranches, the Fourth District held that the plaintiffs sufficiently alleged standing by asserting that they were a group of landowners who would be directly affected by a proposed adjacent landfill's pollution, flooding and deterioration of the potable water supply. 502 So.2d at 934-35. In the instant case, the plaintiffs failed to allege that they would suffer any adverse effect from the proposed development, much less any that would affect them to a greater degree than the community at large. The complaint alleges that the individual plaintiffs will suffer harm because the proposed development will increase demands on the potable water, sewer, traffic, evacuation, police and infrastructure systems. Simply alleging that development will increase demands on various resources does not equate to an adverse effect on an individual plaintiff. Instead, the complaint must allege ultimate facts showing how or why increased demands will result in adverse impacts to the plaintiffs. See Fla. R. Civ. P. 1.110(b) (requiring a "short and plain statement of ultimate facts showing pleader is entitled to relief'); Williams v. Howard, 329 So.2d 277 (F1a.1976) (noting that a "bare assertion" that one's legal rights will be affected, without alleging how or why, is not sufficient to establish standing to file a declaratory judgment action). For example, will the increased numbers of people and demands arising from the proposed development degrade the plaintiffs' water quality? Will they reduce the plaintiffs' access to potable water? Will they increase the price plaintiffs pay for potable water? Will they reduce plaintiffs' access to fishing, boating and other activities in the Homosassa River? Will they cause increased response times from police and fire to plaintiffs' residences? Will they prevent plaintiffs from timely evacuating in an emergency? And, if so, how are any of these adverse effects suffered by the plaintiffs to a greater degree than the community at large? The complaint fails to allege any ultimate facts demonstrating that the plaintiffs will suffer adverse effects, much less adverse effects greater than the community at large. *343 The complaint also alleges that the Alliance and the individual plaintiffs will be adversely affected because their "investment of resources and volunteer activities" to protect the river, educate the public and encourage responsible development will be "for naught" if the County continues to allow development that is inconsistent with the Comprehensive Plan. A similar argument was soundly rejected by the United States Supreme Court in Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972), a case this Court followed in Florida Rock. There, the Sierra Club had attempted to establish standing under a similar statutory requirement in the Administrative Procedure Act that it allege an "adverse effect." Discussing the purpose for this requirement, the Court stated: The requirement that a party seeking review must allege facts showing that he is himself adversely affected does not insulate executive action from judicial review, nor does it prevent any public interests from being protected through the judicial process. It does serve as at least a rough attempt to put the decision as to whether review will be sought in the hands of those who have a direct stake in the outcome. That goal would be undermined were we to construe the APA to authorize judicial review at the behest of organizations or individuals who seek to do no more than vindicate their own value preferences through the judicial process. Id. at 1368-69 (footnote omitted; emphasis added). In this case, the majority concludes without any supporting analysis that the plaintiffs sufficiently allege that they will be "adversely affected by allowing a development that violates the plan." The majority's conclusion suffers from the same fatal flaw as the complaint itself —it is unsupported by any allegations of ultimate facts showing how or why the alleged violations will adversely affect the plaintiffs, and do so to a greater degree than the community at large. More troubling is the majority's contradictory statement that a showing of harm is not required at all. It states: WESTLAW 1 is Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk Save Homosassa River Alliance, Inc. v. Citrus County, Fla., 2 So.3d 329 (2008) 33 Fla. L. Weekly D2490 An interpretation of the statute that requires harm different in degree from other citizens would eviscerate the statute and ignore its remedial purpose. It drags the statute back to the common law test. The Statute is designed to remedy the governmental entity's failure to comply with the established comprehensive plan, and, to that end, it creates a category of persons able to prosecute the claim. The statute is not designed to redress damage to particular plaintiffs. To engraft such a "unique harm" limitation onto the statute would make it impossible in most cases to establish standing and would leave counties free to ignore the plan because each violation of the plan in isolation usually does not harm the individual plaintiff. Rather, the statute simply requires a citizen/plaintiff to have a particularized interest of the kind contemplated by the statute, not a legally protectable right. This analysis is incorrect. By interpreting the statute as requiring only a particularized interest and not a particularized harm, it contravenes the plain language of the statute and conflicts with prior case law from this and other districts. It also leads to the danger described by the Supreme Court in Morton, as follows: It is clear that an organization whose members are injured may represent those members in a proceeding for judicial review. See, e.g., NAACP v. Button, 371 U.S. 415, 428, 83 S.Ct. 328, 335, 9 L.Ed.2d 405. But a mere "interest in a problem," no matter how longstanding *344 the interest and no matter how qualified the organization is in evaluating the problem, is not sufficient by itself to render the organization "aditersahtaf*ted" or WESTL.AW tomsc "aggrieved" within the meaning of the APA. The Sierra Club is a large and long-established organization, with a historic commitment to the cause of protecting our Nation's natural heritage from man's depredations. But if a "special interest" in this subject were enough to entitle the Sierra Club to commence this litigation, there would appear to be no objective basis upon which to disallow a suit by any other bona fide "special interest" organization however small or short-lived. And if any group with a bona fide "special interest" could initiate such litigation, it is difficult to perceive why any individual citizen with the same bona fide special interest would not also be entitled to do so. Id. at 739-40, 92 S.Ct. 1361. As discussed above, Florida case law clearly requires more concrete injury than that alleged by the Plaintiffs. On this point the U.S. Supreme Court has previously recognized the requirement of an injury is specific —it requires a "concrete and particularized" injury in fact which "must affect the plaintiff in a personal and individual way," does not allow legal redress for any imaginable injury, and is not "an ingenious academic exercise in the conceivable." Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 566, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). In Lujan, Justice Scalia expressed doubts that the Defenders of Wildlife had alleged sufficient injury to demonstrate standing, simply because a person's aesthetic viewing of a particular species in a particular area of the world was in danger of becoming less pleasurable. Id. at 566, 112 S.Ct. 2130. This argument is "pure speculation and fantasy." Id. To be sure, the Court opined that if a person could show they were observing a threatened species in a particular area of the world and that specific area was threatened, it was "plausible —though it goes to the outermost limit of plausibility" that such a person might have standing. Id. In this case, although the aesthetic viewing argument expressed by the Plaintiffs in this case stretches plausibility for the same reasons, it is somewhat closer to satisfying the constitutional requirement of standing because of Plaintiffs' demonstrated proximity. However, there is an additional problem with Plaintiffs' argument. t 'orl Submitted into the public record for item(s) PZ.1 on 12/13/2018 , City Clerk Save Homosassa River Alliance, Inc. v. Citrus County, Fla., 2 So.3d 329 (2008) 33 Fla. L. Weekly D2490 To demonstrate such an injury, the party seeking redress must state "specific facts" demonstrating "that one or more of respondents' members would thereby be directly affected" by the challenged action. Id. at 563, 112 S.Ct. 2130. This was not accomplished here. Plaintiffs' bare -bones allegations that the increases in density will affect their use of the river is, without more, "pure speculation and fantasy" and is insufficient to show the requisite actual, concrete injury. Because the Second Amended Complaint was fatally defective, the trial judge did not abuse his discretion in dismissing it with prejudice. The standard for reviewing a lower court's dismissal with prejudice is abuse of discretion. Sonny Boy, L.L.C. v. Asnani, 879 So.2d 25, 28-29 (Fla. 5th DCA 2004). Refusal to allow amendment of a pleading constitutes an abuse of discretion unless it clearly appears that allowing the amendment would prejudice the opposing party, the privilege to amend has been abused, or amendment would be futile. Id. While amendments should generally be liberally granted so that cases may be concluded on their merits, "there is an equally compelling obligation on the court to see to it that the end of all litigation be finally reached." Price v. Morgan, 436 So.2d 1116, 1122 (Fla. 5th DCA 1983). *345 Thus, "a trial judge in the exercise of sound discretion may deny further amendments where a case has progressed to a point that liberality ordinarily to be indulged has diminished." Id. The trial court's order denying motion for rehearing demonstrates that dismissal with prejudice was appropriate in this case because further amendment would be futile and would cause prejudice to the defendants. It states: After extensive argument on the defendant's and intervenor's motions to dismiss plaintiffs' Amended Complaint at which time it was thoroughly explained why the facts urged by plaintiffs did not meet the requirements for standing, the court dismissed plaintiffs' complaint but with leave to amend. Although the court inquired at that hearing what additional facts plaintiffs might be able to allege on amendment, plaintiffs' counsel objected to "going outside the record" and insisted that the court rule on the four corners of the complaint. The court gave plaintiffs the benefit of the doubt that they might have additional facts bearing on standing that could be alleged and permitted an amendment. Plaintiffs' second amended complaint also failed to allege sufficient facts showing that plaintiffs were any more affected by the challenged action of the County Commission than any other member of the community. And this is understandable. Plaintiffs cannot invent facts. They now live no closer to the project so that its noise affects them and the shadows case by the buildings still does not fall on plaintiffs' property. Although there was no contention before the County Commission that the project would affect the quality of the water in the Homosassa River, plaintiffs are unable to allege any greater right to the river than the general public. And although the number of units may permit some growth in the area and the buildings may not be consistent with the character of Old Homosassa, these allegations affect all of the citizens in Old Homosassa equally. When delay will prevent the construction of an approved but undesired development, then one may win by losing if the losing process is sufficiently long. In this case, it has been long enough. Plaintiffs have had ample opportunity to show standing if they could. Further delay will not help them. The plaintiffs in this case made three attempts to plead standing and they failed. "Generally three ineffective attempts to state the same cause of action are enough." Henry P. Trawick, Jr., Florida Practice and Procedure § 14-3 at 267 (2007-08 ed.). Most trial judges use the "three strikes and you're out" standard. The record amply demonstrates that the plaintiffs were incapable of pleading sufficient ultimate facts to confer standing. As the trial court noted above, at the hearing on the First Amended Complaint, the court asked the plaintiffs' attorney what additional facts could be alleged and she objected to going "outside the record." Nevertheless, the court entered an order explaining why the complaint was deficient and gave the plaintiffs an opportunity to allege additional ultimate facts. The plaintiffs then filed the Second Amended Complaint, which was also deficient. At the hearing on the motion to dismiss that complaint, plaintiffs' counsel candidly stated: WESTLAW [W]e wouldn't have the second amended complaint, had they not filed a motion to dismiss. What they have been successful in doing is creating —you know, basically making sure that we have a non -assailable complaint once it's time for the matter to be fmally resolved, because *346 we have now had two opportunities to dot Submitted into the public record for item(s) PZ.1 • on 12/13/2018 , City Clerk Save Homosassa River Alliance, Inc. v. Citrus County, Fla., 2 So.3d 329 (2008) 33 Fla. L. Weekly D2490 all the I's and cross all the T's after they have alleged we missed some of those. At no time, either in their motion for rehearing or in this appeal, have the plaintiffs demonstrated what further amendment would be made if given another opportunity to amend. See Price, 436 So.2d at 1122 (noting that appellants failed to demonstrate what further amendment could be made if given the opportunity). Based on the trial judge's reasoning and the record facts supporting it, the plaintiffs have failed to prove that he abused his discretion in dismissing the case with prejudice. To conclude otherwise, as the majority does, is simply to ignore the appellate standard which we are bound to follow. I feel compelled to add the following observations from my experience in this area of the law. No doubt the plaintiffs in this case are honest, sincere people who care deeply about the future of the Homosassa River. My remarks about certain so-called "environmentalists gadflies" should not be interpreted as a reference to them. Footnotes 2 3 4 5 6 7 The opinion of Judge Griffin will be cited and used to open the floodgates to the environmental gadflies of the world. They will file spurious complaints which challenge rezoning on the basis that it violates the comprehensive plan. Local government will be hampered in doing what it is supposed to do. Property rights will be trampled by the delays. People who disagree with local decisions will find solace in the judicial branch by virtue of this Court's new-found authority which opens the courthouse door to attempts to overtum the decisions of local, duly -elected officials. Every gadfly with some amorphous environmental agenda, and enough money to pay a filing fee, will be anointed with status simply because the gadfly wants to "protect the planet." The environmental gadfly will win every time, not on the merits, but because, in the words of the trial judge, "[w]hen delay will prevent the construction of an approved but undesired development, then one may win by losing if the losing process is sufficiently long." For those who respect property rights, look out! All Citations 2 So.3d 329, 33 Fla. L. Weekly D2490 Resort's site is designated on the County's generalized future land use map, ("GFLUM"), as CL, Low Intensity Coastal Lakes, which allows a maximum density of one (1) unit per 20 acres, is located in Flood Plain A-11, and is located in the Coastal High Hazard Zone. Specifically, the County and Resort assert in their motion: There exists no allegations within the complaint that establish how the height of the building or the net increase in units will adversely impact the Alliance' [sic] educational purpose or interest in the manatee, Bitter's ability to fish in the river, Rendueles' ability to bicycle through Old Homosassa, or Watkins' ability to walk down the streets in Old Homosassa. The canal that Rendueles' property is on is part of the Homosassa River system and opens to the River at Resort's site. Plaintiffs assert that the water system that the individual plaintiffs would share with Resort had "expressed concems regarding the volume of water it will be able to supply because of [Resort's] project demands." The Old Homosassa Redevelopment Area Plan is incorporated into the County's Land Development Code as section 4680. The action underlying this appeal was brought pursuant to section 163.3215(3), Florida Statutes. Section 163.3164(17), Florida Statutes (2007), provides that, as used in the Local Govemment Comprehensive Planning and Land Development Regulation Act, "[p]erson means an individual, corporation, govemmental agency, business trust, estate, trust, partnership, association, two or more persons having a joint or common interest, or any other legal entity." WESTLAW 1 ( orRE Save Homosassa River Alliance, Inc. v. Citrus County, Fla., 2 So.3d 329 (2008) 33 Fla. L. Weekly D2490 8 9 10 11 In Florida Rock Properties, 709 So.2d at 177, this Court wrote: Submitted into the public record for item(s) PZ.1 on 12/13/2018 , City Clerk "[K]eyser's standing to challenge the Board's zoning decision depends on (1) whether the personal and professional interests he alleged are 'protected or furthered by' Putnam County's comprehensive plan; if so, (2) whether those interests are greater than the general interest in community well being; and (3) whether the interests are or will be adversely affected by the challenged zoning decision." (Emphasis added). In Stranahan House, Inc., 967 So.2d at 434, the Fourth District wrote: Stranahan and Friends meet the test for standing outlined in Florida Rock Properties v. Keyser, 709 So.2d 175, 177 (Fla. 5th DCA 1998). The interests alleged are protected by the City's comprehensive plan, they are greater than the general interest in community well-being, and the interests will be adversely affected by the development. (Emphasis added). "Keyser is a citizen with an interest in the environment and nothing more." 709 So.2d at 177. As for the trial court's denial of Plaintiffs' request to further amend the complaint in Tight of the dismissal, Plaintiffs had not abused the privilege to amend. Accordingly, the trial court also erred in dismissing Plaintiffs' complaint "with prejudice." End of Document © 2018 Thomson Reuters. No claim to original U.S. Government Works. WESTLAW C` • Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk Florida Rock Properties v. Keyser, 709 So.2d 175 (1998) 23 Fla. L. Weekly D874 KeyCite Yellow Flag - Negative Treatment Distinguished by Save Homosassa River Alliance, Inc. v. Citrus County, Fla., Fla.App. 5 Dist., October 24, 2008 709 So.2d 175 District Court of Appeal of Florida, Fifth District. FLORIDA ROCK PROPERTIES, et al., Appellants, v. Timothy KEYSER, Appellee. No. 96-3307. April 3, 1998. Synopsis Following county's rezoning of mining company's land from agriculture to mining, without requiring 25 percent set -aside to protect native vegetation, owner of land and business in the county sought declaratory judgment challenging rezoning. The Circuit Court, Putnam County, Stephen L. Boyles, J., quashed decision, and mining company appealed. The District Court of Appeal, Thompson, J., held that plaintiff lacked standing. Reversed and remanded. W. Sharp, J., filed dissenting opinion. West Headnotes (2) 111 Zoning and Planning 4-Right of Review; Standing Zoning and Planning "Private persons Property ownership alone is insufficient to establish standing to enforce county comprehensive development plan. West's F.S.A. § 163.3215(1, 2). 3 Cases that cite this headnote 121 Zoning and Planning Q.-Modification or amendment Owner of land and business in county who had interest in environment lacked standing to challenge county's rezoning of mining company's land from agriculture to mining, without requiring 25 percent set -aside to protect native vegetation, absent showing that rezoning would have specific impact on him or his property. West's F.S.A. § 163.3215(1, 2). 7 Cases that cite this headnote Attorneys and Law Firms *176 John A. DeVault, III, and Jane A. Lester, of Bedell, Dittmar, DeVault, Pillans & Coxe, P.A., Jacksonville, and Edward E. Hedstrom, P.A., Palatka, for Appellants. Michael W. Woodward, of Keyser & Woodward, P.A., Interlachen, for Appellee. Opinion THOMPSON, Judge. Florida Rock Properties, Inc, and Florida Rock Industries, Inc. (collectively "Florida Rock") appeal from a declaratory final judgment which quashed the decision of the Putnam County Commission ("the Board") to rezone a 509-acre parcel of Florida Rock's land from agriculture to mining. Although several issues are raised, one is dispositive: Timothy Keyser, who filed the lawsuit seeking the declaratory judgment, is not an aggrieved party pursuant to section 163.3215, Florida Statutes. Therefore, he had no standing to appeal the decision of the Board to the circuit court. Florida Rock owns approximately 6,700 acres of land in Putnam County and mines approximately 1,800 acres. The remaining land is zoned and currently used for agriculture. Florida Rock sought to rezone an additional two parcels, 509 acres, from agriculture to mining. The Board approved the rezoning without requiring a 25 percent set -aside to preserve native vegetation as mandated by the county's comprehensive plan.' WESTLAW iomso rk Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk C Florida Rock Properties v. Keyser, 709 So.2d 175 (1998) 23 Fla. L. Weekly D874 In his verified complaint for declaratory relief to quash the Board's decision, Keyser alleged that he was an "aggrieved or adversely affected person" as defined in section 163.3215, Florida Statutes. He alleged the following facts to establish his standing: (1) he owns land in Putnam County approximately 10 miles from Florida Rock's 509-acre site; (2) he operates a law business in Putnam County and occasionally represents conservationists; (3) he has maintained a life-long interest in wildlife and environmental protection matters as part of his civic duties; (4) the failure to require the 25 percent set -aside to protect native vegetation would affect his quality of life. The court found that Keyser had standing because his "exceptional personal and professional interests, efforts, and activities in conservation, wildlife and environmental protection matters were proven" and would be adversely affected by the Board's decision "to a greater degree than ... other members of the community." Section 163.3215, Florida Statutes, (1995) reads: 163.3215 Standing to enforce local comprehensive plans through development orders.- (1) Any aggrieved or adversely affected party may maintain an action for injunctive or other relief against any local government to prevent such local government from taking any action on a development order, as defined in s. 163.3164, which materially alters the use or density or intensity *177 of use on a particular piece of property that is not consistent with the comprehensive plan adopted under this part. (2) "Aggrieved or adversely affected party" means any person or local government which will suffer an adverse effect to an interest protected or furthered by the local government comprehensive plan, including interests related to health and safety, police and fire protection service systems, densities or intensities of development, transportation facilities, health care facilities, equipment or services, or environmental or natural resources. The alleged adverse interest may be shared in common with other members of the community at large, but shall exceed in degree the general interest in community good shared by all persons. (Emphasis added.) Therefore, Keyser's standing to challenge the Board's zoning decision depends on (1) whether the personal and professional interests he alleged are "protected or furthered by" Putnam County's comprehensive plan; if so, (2) whether those interests are greater than the general interest in community well being; and (3) whether the interests are or will be adversely affected by the challenged zoning decision. 111 j21 First, property ownership alone is insufficient to show a person is one "who will suffer an adverse effect to an interest protected or furthered by" the plan. See Parker v. Leon County, 627 So.2d 476 (F1a.1993). Thus, the fact that Keyser owns land in Putnam is insufficient to establish standing. He does not live adjacent to Florida Rock's property. He does not claim that he will be adversely impacted by noise, increased traffic or noxious fumes from Florida Rock's property. He merely alleges ownership of land. There is no showing that Keyser will suffer an adverse effect. See White v. Metropolitan Dade County, 563 So.2d 117 (Fla. 3d DCA 1990) (holding that citizens of Dade County had no standing to challenge the construction of tennis courts on land which had a deed restriction to keep the land for a park in perpetuity or the land would revert to the owner). Had Keyser lived adjacent to the property, and had he been able to show a specific impact the zoning change would have upon him or his property, he would have standing. Southwest Ranches Homeowners Ass 'n, Inc. v. Broward County, 502 So.2d 931 (Fla. 4th DCA), rev. denied, 511 So.2d 999 (F1a.1987). Second, the fact that Keyser owns a business in the county does not confer standing upon him. He generally argues that the inability to counsel clients effectively in land use matters will be created because the Board issued the order. We find nothing unique about Keyser's inability to counsel his clients that would make him an aggrieved party. Each time a legislative body changes a statute or ordinance, a lawyer is in doubt as to the advice to give his client. That is the nature of a lawyer's practice. Moreover, professional interests are not among the interests the comprehensive plan protects. See § 163.3215(2), Fla. Stat. (1995). Keyser's strongest but most problematic argument is that the zoning decision of the Board would adversely affect his quality of life by its negative impact upon wildlife populations and habitats in Putnam County. In Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972), the United States Supreme Court held that judicial review must "be sought in the hands of those who have a direct stake in the outcome." Section 163.3215 does not specify or explain the degree to which the protected interest must be affected, but, case law is helpful. In Southwest Ranches Homeowners Ass 'n, Inc., supra, the court held that property owners adjacent to a proposed development would have standing and a group of concerned citizens with a general interest would not. 502 So.2d at 934. Keyser never demonstrated any specific WESTLAW ri Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk L Florida Rock Properties v. Keyser, 709 So.2d 175 (1998) 23 Fla. L. Weekly D874 injury, only that the county would not be as bucolic as it once was. Keyser is a citizen with an interest in the environment and nothing more. Accordingly, we reverse the decision of the circuit court and remand for disposition consistent with this opinion. REVERSED and REMANDED. DAUKSCH, J., concurs. W. SHARP, J., dissents with opinion. *178 W. SHARP, Judge, dissenting. I respectfully disagree with the majority opinion's conclusion that Keyser lacks standing to challenge the rezoning decision rendered by Putnam County. Based on the trial court's findings and this record, I conclude that Keyser established sufficient facts to give him standing pursuant to section 163.3215, Florida Statutes. The trial court ruled Keyser had standing because his "exceptional personal and professional interests, efforts and activities in conservation, wildlife and environmental protection were proven," and because he would be adversely affected by this decision to a greater degree than other members of the community. Thus I would affirm the trial court's determination that Florida Rock's proposed mining operation is "new development," on which a 25% reservation of land to protect native vegetation is required pursuant to the Putnam County Comprehensive Planning and Land Development Act. Section 163.3215 was enacted in 1985 as part of the Growth Management Act. This section addresses standing as follows: 163.3215. Standing to enforce local comprehensive plans through development orders. (1) Any aggrieved or adversely affected party may maintain an action for injunctive or other relief against any local government to prevent such local government from taking any action on a development order, as defined in s. 163.3164, which materially alters the use or density or intensity of use on a particular piece of property that is not consistent with the comprehensive plan adopted under this part. (2) "Aggrieved or adversely affected party" means any person or local government which will suffer an adverse effect to an interest protected or furthered by the local government comprehensive plan, including interests related to health and safety, police and fire protection service systems, densities or intensities of development, transportation facilities, health care facilities, equipment or services, or environmental or natural resources. The alleged adverse interest may be shared in common with other members of the community at large, but shall exceed in degree the general interest in community good shared by all persons. In this case, Florida Rock applied to the Putnam County Planning Commission to rezone a 509-acre parcel of its land from agriculture to mining. Florida Rock owns 6,700 acres in Putnam county, of which the 509 acres is a part. Florida Rock expects to mine the 509 acres at a rate of 10 to 12 acres a year. Under the Comprehensive Plan, the rezoning arguably required a 25% set aside to preserve native vegetation) The applicability of the set -aside provision to Florida Rock's proposal to mine the 509-acre parcel and whether it constituted "new development" were disputed issues in this case. Although Keyser owns real estate in Putnam County located five to ten miles away from the 509 acres, he relied on his extensive personal and professional interest and activities in environmental and conservation issues to give him standing in this law suit. One of the reasons Keyser moved to Putnam County was because of its extensive wildlife habitat and population. For many years Keyser has been active in a conservation organization and has served as its president or chairman of the board and has served on other board positions in both national and state conservation organizations. Keyser is an attorney and does environmental and land use law. He has represented at no fee or low fee many different neighborhood and conservation organizations on the national, state and regional level on a variety of issues from protecting the Everglades to restoring Lake Apopka to protecting neighborhoods from inappropriate zoning. Keyser attended at least four hearings on this rezoning matter. He attended the first hearing before the Planning Commission, listened to presentations of both sides and then spoke as an interested citizen at that Commission meeting. Keyser was quite surprised by the action of the Planning Commission *179 (in favor of rezoning without the set aside) and appealed that decision to the Board of County Commissioners. Keyser was required to fill out paper work, and pay a filing fee. He also argued his appeal before the Board of County Commissioners. The Board did not make a decision at that time and WESTLAW 2( "" 11 Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk Florida Rock Properties v. Keyser, 709 So.2d 175 (1998) 23 Fla. L. Weekly D874 instead directed its attorney to review the statute and the comprehensive plan provisions and to make a recommendation to the Board. The county attorney made a recommendation that favored Keyser's appeal. At first the Board seemed to favor that recommendation but ultimately voted against it and in favor of the rezoning, without the set aside. Keyser then proceeded to petition the Board of County Commissioners for remand or denial of the rezoning. This evidence appears sufficient to me to support the trial court's determination that Keyser was an aggrieved or adversely affected party under section 163.3215. His interest in the environment and protection of wildlife and its habitat greatly exceeds that of the members of the public in general. To deny him standing in this case because he does not own real estate adjoining the land being rezoned which may be adversely affected, pocketbook wise, appears to me to be so restrictive that we will find ourselves back where we were in the Save Sand Key2 case where intangible values stand for naught; Footnotes 1 1 2 only property interests count. As demonstrated by this case, because one party owns such a vast tract of land, in fact there may be no adjoining landowners sufficiently "affected" to challenge the rezoning of part of it, under the restrictive view of standing taken by the majority opinion. Indeed, unless something more than ownership of adjacent land can give a person standing to challenge a rezoning, I will have to agree with the second district in Save Sand Key that interests in the environment, in wildlife and its habitat "may be enjoyed by all, yet none may protect it." 281 So.2d at 574. All Citations 709 So.2d 175, 23 Fla. L. Weekly D874 Policy E.1.3.6 of the county's comprehensive plan requires the 25 percent set -aside on all new development on sites of 50 acres or more. The policy reads: The County shall protect environmentally sensitive areas and native vegetative communities as follows: A. The County shall require new development, as defined in Section 380.04, FS, on sites of 50 acres or more to preserve a minimum of 25 percent of the existing native vegetation on the site.... Policy E 1.3.6A of the Comprehensive Plan requires a set aside on all new development on sites of 50 acres or more. Save Sand Key, Inc. v. United States Steel Corp., 281 So.2d 572 (Fla. 2d DCA 1973), reversed, 303 So.2d 9 (FIa.1974). End of Document © 2018 Thomson Reuters. No claim to original U.S. Government Works. WESTLAW Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk Brynwood Condominium, Inc. v. Harbour Club Villas..., 436 So.2d 1080 (1983) 436 So.2d 1080 District Court of Appeal of Florida, Third District. BRYNWOOD CONDOMINIUM, INC., Appellant, v. HARBOUR CLUB VILLAS CONDOMINIUM ASSOCIATION and Quayside Associates, Ltd., Appellees. No. 82-1592. Sept. 6, 1983. Synopsis After condominium association achieved settlement in amount of $3 million in connection with action challenging zoning variances made in favor of real estate project, intervenor condominium association filed amended complaint for intervention, seeking to receive portion of settlement proceeds, injunction, and other general relief. The Circuit Court, Dade County, Jack M. Turner, J., granted motion to dismiss amended complaint in intervention, and intervenor appealed. The District Court of Appeal held that, as intervenor failed to appeal original zoning decision, did not allege that it was objector in zoning proceeding, and did not claim to have contributed to legal fund with plaintiffs who challenged original zoning decision, trial court did not err in dismissing with prejudice intervenor's amended complaint. Affirmed. West Headnotes (1) [11 Parties Interest in Subject of Action in General Where intervenor failed to appeal original zoning decision, did not allege that it was objector in zoning proceeding, and did not claim to have contributed to legal fund with plaintiffs who challenged original zoning decision, and zoning action was not instituted as class action, trial court did not err in dismissing with prejudice intervenor's amended complaint WESTLAW seeking to receive portion of settlement proceeds, injunction, and other general relief. West's F.S.A. RCP Rules 1.220, 1.230. 1 Cases that cite this headnote Attorneys and Law Firms *1081 Shalle Stephen Fine, Coral Gables, for appellant. Lapidus & Stettin and Richard Lapidus, Miami, Ress, Gomez, Rosenberg and Howland and Sheldon Rosenberg, North Miami, for appellees. Before BARKDULL, HUBBART and DANIEL S. PEARSON, JJ. Opinion PER CURIAM. The Metropolitan Dade County Commission (Commission) authorized zoning variances in favor of Quayside, a real estate project. Two condominium associations, the Villas and the Shores, as well as certain individuals residing within 500 feet of Quayside, or within the nearby geographic area, joined together to fight the zoning variance. Representatives of these groups met with the law firm of Williams, Salomon, Kanner, Damian, Weissler & Brooks to commence legal proceedings for the purpose of appealing and having declared void the decision of the Commission. Their attorney appeared before the Commission and ultimately filed appeals with the circuit court and this court. These suits were instituted solely in the name of the Villas and the Shores with none of the individual residents named as plaintiffs. Prior to the determination of the appeal by this court, the Villas and the Shores independently settled with Quayside. The Villas' settlement was in the amount of $3,000,000. Quayside agreed to indemnify the Villas from any and all claims by persons not members of the Villas, who had contributed to the legal fees incurred in prosecuting the action and who might claim that the Villas should not have settled. The settlements resulted in the dismissal of the appeal and foreclosed any possibility that the individuals could obtain relief. Submitted into the public record for item(s) PZ.1 on 12/13/2018 , City Clerk tipt Brynwood Condominium, Inc. v. Harbour Club Villas..., 436 So.2d 1080 (1983) Those individuals thereafter filed a seven -count complaint against the Villas, Shores, Quayside, and the lawyers. An appeal from dismissal of their complaint was reversed by this court in McIntosh v. Harbour Club Villas Condominium Association, 421 So.2d 10 (Fla. 3d DCA 1982).' During the progress of that cause in the trial court [McIntosh v. Harbour Club Villas Condominium Association, supra ] the appellant herein, Brynwood, intervened in the proceedings, not in recognition of the plaintiff therein,' and by their second amended complaint for intervention sought to receive a portion of the settlement proceeds, an injunction, and other general relief. Following argument the trial court granted a motion to dismiss the second amended complaint in intervention with prejudice.' We affirm. *1082 The initial proceeding in the circuit court was a certiorari proceeding pursuant to the applicable Metropolitan ordinance to review a zoning decision by the appropriate county authorities. Those persons who brought the initial appeal represented only themselves and they had a right to dismiss their litigation. If the intervenor was aggrieved by the zoning decision, it had a right to appeal. This it did not do. Brynwood did not allege that it was an objector in the zoning proceedings. It did not claim to have contributed to the legal fund. If Brynwood felt that it was an aggrieved party by the Footnotes 1 2 3 county's action in granting the zoning variance it should have sought appropriate review, if it had the requisite standing, as it contends. The original appeal was not prosecuted as a class action nor could it have been certified as a class action. Compare: Brown v. Wainwright, 392 So.2d 1327 (F1a.1981); Wags Transportation System, Inc., v. City of Miami Beach, 88 So.2d 751 (F1a.1956); State v. Purdy, 242 So.2d 498 (Fla. 3d DCA 1971); Kearney v. Saline, 208 So.2d 650 (Fla. 1st DCA 1968); Rule 1.220 Florida Rules of Civil Procedure. Class actions are normally instituted in a trial court and not in an appellate court. Therefore, we find the appellant's contention that it should recover herein on the basis that it is a member of a class, to be without merit. The other contentions advanced *1083 by Brynwood are also found to be without merit. Accordingly, the order dismissing the second amended complaint in intervention with prejudice is hereby affirmed. Affirmed. All Citations 436 So.2d 1080 Certain companion cases were also heard by this court. See Williams v. Harbour Club Villas Condominium Association, Inc., 436 So.2d 233 (Fla. 3d DCA 1983); Quayside Associates, Ltd., v. Harbour Club Villas Condominium, Inc., 419 So.2d 678 (Fla. 3d DCA 1982). Rule 1.230 FIa.R.Civ.P. Anyone claiming an interest in pending litigation may at any time be permitted to assert his right by intervention, but the intervention shall be in subordination to, and in recognition of, the propriety of the main proceeding, unless otherwise ordered by the court in its discretion. THIS CAUSE coming on to be heard before me, the undersigned Judge of the above entitled Court, on Motion to Dismiss filed by HARBOUR CLUB VILLAS CONDOMINIUM ASSOCIATION and QUAYSIDE ASSOCIATES, LTD., said motion being directed to the Second Amended Complaint in Intervention of BRYNWOOD CONDOMINIUM, INC., and the Court being duly advised and having heard argument of counsel, having examined the memoranda of law presented by the parties, finds as follows: 1. The Second Amended Complaint in Intervention filed by BRYNWOOD CONDOMINIUM, INC., basically seeks relief on grounds that HARBOUR CLUB VILLAS, et al, undertook to appeal a zoning decision granting certain variances to QUAYSIDE ASSOCIATES, LTD., for the construction of a high-rise project adjacent to HARBOUR CLUB VILLAS. HARBOUR CLUB VILLAS CONDOMINIUM ASSOCIATIONS, SHORES CONDOMINIUM ASSOCIATION, BISCAYNE PARK HOMEOWNERS ASSOCIATION, AUDUBON SOCIETY and others, and not BRYNWOOD CONDOMINIUM, INC., contributed to a fund and hired an attorney, Gary Brooks, to challenge the zoning variances granted by the Metropolitan Dade County Commission and to take all necessary appellate steps. The petition for common law certiorari taken by the technical appellant, HARBOUR CLUB VILLAS CONDOMINIUM ASSOCIATION, after the Circuit Court -Appellate division denied relief, was settled after oral argument but before the Third District Court of Appeal had ruled. HARBOUR CLUB VILLAS CONDOMINIUM and QUAYSIDE ASSOCIATES, LTD. signed a settlement agreement whereby HARBOUR CLUB VILLAS CONDOMINIUM ASSOCIATION received WESTLAW Brynwood Condominium, Inc. v. Harbour Club Villas..., 436 So.2d 1080 (1983) Submitted into the public record for item(s) PZ.1 on 12/13/2018 , City Clerk three million dollars ($3,000,000.00). 2. BRYNWOOD CONDOMINIUM INC., Second Amended Complaint in intervention seeks to set aside the zoning variances granted to QUAYSIDE ASSOCIATES, LTD., or to participate in the three million dollars ($3,000,000.00) settlement monies. HARBOUR CLUB VILLAS and QUAYSIDE ASSOCIATES, LTD., move to dismiss the Second Amended Complaint in Intervention on the grounds: (1) the zoning issues and appeal were settled; (2) the appeal filed by HARBOUR CLUB VILLAS was not brought as a certified class action; (3) BRYNWOOD had no standing to contest the zoning issue and was not entitled to share in the settlement proceeds as a third party beneficiary. 3. In order to challenge the zoning variances afforded to QUAYSIDE, BRYNWOOD would have to allege that they suffered special damages different in kind, rather than different in degree, from those suffered by the community as a whole. Skaggs -Albertson P., Inc. v. Michaels [Michels] Belle. B. L. [BI.] P., 322 [332] So.2d 113 (Fla. 2d DCA 1976); Skaggs -Albertson v. ABC Liquors, Inc., 363 So.2d 1082 (FIa.1978). Because the Second Amended Complaint in Intervention does not allege special damages, BRYNWOOD had no right to challenge the original zoning and has no right here to claim an interest in the settlement proceeds. 4. Here, under the allegations of the Second Amended Complaint in Intervention, BRYNWOOD would not and does not have any right to bring the prior litigation. BRYNWOOD, unable to assert the doctrine of virtual representation, could not have been affected by the prior zoning litigation. The settlement of that litigation did not affect its rights. It has no rights to share in the proceeds of the settlement. Treasure Salvors, Inc. v. Unidentified Wrecked, etc., 599 [459] F.Supp. 607 [507] (S.D.FIa.1978), aff'd, State of Florida, Department of State v. Treasure Salvors, Inc., 621 F.2d 1340 (5th Cir.1980). 5. The Second Amended Complaint in Intervention fails to state a cause of action on a third party beneficiary theory. In order to fall within the third party rule, the contract must show a clear intent and purpose to benefit a specific third person. Marianna Lime Product, Co. v. McKay [109 Fla. 275], 147 So.2d 264 (FIa.1937 [1933] ): 11 FIa.Jur.2d, Contracts, Section 155 and cases cited therein. BRYNWOOD was not an intended beneficiary of the settlement agreement. Chevy Lake, Inc. v. Kreace [Kearce], 26 So.2d 434 (FIa.1946). UPON the above, it is ORDERED that the Motion to dismiss filed by QUAYSIDE ASSOCIATES, LTD., and HARBOUR CLUB VILLAS CONDOMINIUM ASSOCIATION, be and the same is hereby granted. BRYNWOOD CONDOMINIUM, INC.'s Second Amended Complaint in Intervention is dismissed with prejudice. End of Document © 2018 Thomson Reuters. No claim to original U.S. Government Works. WESTLAW Submitted into the public record for item(s) PZ.1 on 12/13/2018 , City Clerk Brynwood Condominium, Inc. v. Harbour Club Villas..., 436 So.2d 1080 (1983) 436 So.2d io8o District Court of Appeal of Florida, Third District. BRYNWOOD CONDOMINIUM, INC., Appellant, v. HARBOUR CLUB VILLAS CONDOMINIUM ASSOCIATION and Quayside Associates, Ltd., Appellees. No. 82-1592. Sept. 6, 1983. Synopsis After condominium association achieved settlement in amount of $3 million in connection with action challenging zoning variances made in favor of real estate project, intervenor condominium association filed amended complaint for intervention, seeking to receive portion of settlement proceeds, injunction, and other general relief. The Circuit Court, Dade County, Jack M. Turner, J., granted motion to dismiss amended complaint in intervention, and intervenor appealed. The District Court of Appeal held that, as intervenor failed to appeal original zoning decision, did not allege that it was objector in zoning proceeding, and did not claim to have contributed to legal fund with plaintiffs who challenged original zoning decision, trial court did not err in dismissing with prejudice intervenor's amended complaint. Affirmed. West Headnotes (1) 111 Parties -Interest in Subject of Action in General Where intervenor failed to appeal original zoning decision, did not allege that it was objector in zoning proceeding, and did not claim to have contributed to legal fund with plaintiffs who challenged original zoning decision, and zoning action was not instituted as class action, trial court did not err in dismissing with prejudice intervenor's amended complaint seeking to receive portion of settlement proceeds, injunction, and other general relief. West's F.S.A. RCP Rules 1.220, 1.230. 1 Cases that cite this headnote Attorneys and Law Firms *1081 Shalle Stephen Fine, Coral Gables, for appellant. Lapidus & Stettin and Richard Lapidus, Miami, Ress, Gomez, Rosenberg and Howland and Sheldon Rosenberg, North Miami, for appellees. Before BARKDULL, HUBBART and DANIEL S. PEARSON, JJ. Opinion PER CURIAM. The Metropolitan Dade County Commission (Commission) authorized zoning variances in favor of Quayside, a real estate project. Two condominium associations, the Villas and the Shores, as well as certain individuals residing within 500 feet of Quayside, or within the nearby geographic area, joined together to fight the zoning variance. Representatives of these groups met with the law firm of Williams, Salomon, Kanner, Damian, Weissler & Brooks to commence legal proceedings for the purpose of appealing and having declared void the decision of the Commission. Their attorney appeared before the Commission and ultimately filed appeals with the circuit court and this court. These suits were instituted solely in the name of the Villas and the Shores with none of the individual residents named as plaintiffs. Prior to the determination of the appeal by this court, the Villas and the Shores independently settled with Quayside. The Villas' settlement was in the amount of $3,000,000. Quayside agreed to indemnify the Villas from any and all claims by persons not members of the Villas, who had contributed to the legal fees incurred in prosecuting the action and who might claim that the Villas should not have settled. The settlements resulted in the dismissal of the appeal and foreclosed any possibility that the individuals could obtain relief. WESTLAW Brynwood Condominium, Inc. v. Harbour Club Villas..., 436 So.2d 1080 (1983) Those individuals thereafter filed a seven -count complaint against the Villas, Shores, Quayside, and the lawyers. An appeal from dismissal of their complaint was reversed by this court in McIntosh v. Harbour Club Villas Condominium Association, 421 So.2d 10 (Fla. 3d DCA 1982).' During the progress of that cause in the trial court [McIntosh v. Harbour Club Villas Condominium Association, supra ] the appellant herein, Brynwood, intervened in the proceedings, not in recognition of the plaintiff therein,' and by their second amended complaint for intervention sought to receive a portion of the settlement proceeds, an injunction, and other general relief. Following argument the trial court granted a motion to dismiss the second amended complaint in intervention with prejudice.` We affirm. *1082 The initial proceeding in the circuit court was a certiorari proceeding pursuant to the applicable Metropolitan ordinance to review a zoning decision by the appropriate county authorities. Those persons who brought the initial appeal represented only themselves and they had a right to dismiss their litigation. If the intervenor was aggrieved by the zoning decision, it had a right to appeal. This it did not do. Brynwood did not allege that it was an objector in the zoning proceedings. It did not claim to have contributed to the legal fund. If Brynwood felt that it was an aggrieved party by the Footnotes 1 2 3 Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk county's action in granting the zoning variance it should have sought appropriate review, if it had the requisite standing, as it contends. The original appeal was not prosecuted as a class action nor could it have been certified as a class action. Compare: Brown v. Wainwright, 392 So.2d 1327 (F1a.1981); Wags Transportation System, Inc., v. City of Miami Beach, 88 So.2d 751 (F1a.1956); State v. Purdy, 242 So.2d 498 (Fla. 3d DCA 1971); Kearney v. Saline, 208 So.2d 650 (Fla. 1st DCA 1968); Rule 1.220 Florida Rules of Civil Procedure. Class actions are normally instituted in a trial court and not in an appellate court. Therefore, we find the appellant's contention that it should recover herein on the basis that it is a member of a class, to be without merit. The other contentions advanced *1083 by Brynwood are also found to be without merit. Accordingly, the order dismissing the second amended complaint in intervention with prejudice is hereby affirmed. Affirmed. All Citations 436 So.2d 1080 Certain companion cases were also heard by this court. See Williams v. Harbour Club Villas Condominium Association, Inc., 436 So.2d 233 (Fla. 3d DCA 1983); Quayside Associates, Ltd., v. Harbour Club Villas Condominium, Inc., 419 So.2d 678 (Fla. 3d DCA 1982). Rule 1.230 FIa.R.Civ.P. Anyone claiming an interest in pending litigation may at any time be permitted to assert his right by intervention, but the intervention shall be in subordination to, and in recognition of, the propriety of the main proceeding, unless otherwise ordered by the court in its discretion. THIS CAUSE coming on to be heard before me, the undersigned Judge of the above entitled Court, on Motion to Dismiss filed by HARBOUR CLUB VILLAS CONDOMINIUM ASSOCIATION and QUAYSIDE ASSOCIATES, LTD., said motion being directed to the Second Amended Complaint in Intervention of BRYNWOOD CONDOMINIUM, INC., and the Court being duly advised and having heard argument of counsel, having examined the memoranda of law presented by the parties, finds as follows: 1. The Second Amended Complaint in Intervention filed by BRYNWOOD CONDOMINIUM, INC., basically seeks relief on grounds that HARBOUR CLUB VILLAS, et al., undertook to appeal a zoning decision granting certain variances to QUAYSIDE ASSOCIATES, LTD., for the construction of a high-rise project adjacent to HARBOUR CLUB VILLAS. HARBOUR CLUB VILLAS CONDOMINIUM ASSOCIATIONS, SHORES CONDOMINIUM ASSOCIATION, BISCAYNE PARK HOMEOWNERS ASSOCIATION, AUDUBON SOCIETY and others, and not BRYNWOOD CONDOMINIUM, INC., contributed to a fund and hired an attorney, Gary Brooks, to challenge the zoning variances granted by the Metropolitan Dade County Commission and to take all necessary appellate steps. The petition for common law certiorari taken by the technical appellant, HARBOUR CLUB VILLAS CONDOMINIUM ASSOCIATION, after the Circuit Court -Appellate division denied relief, was settled after oral argument but before the Third District Court of Appeal had ruled. HARBOUR CLUB VILLAS CONDOMINIUM and QUAYSIDE ASSOCIATES, LTD. signed a settlement agreement whereby HARBOUR CLUB VILLAS CONDOMINIUM ASSOCIATION received WESTCAW son 1 Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk Brynwood Condominium, Inc. v. Harbour Club Villas..., 436 So.2d 1080 (1983) three million dollars ($3,000,000.00). 2. BRYNWOOD CONDOMINIUM INC., Second Amended Complaint in intervention seeks to set aside the zoning variances granted to QUAYSIDE ASSOCIATES, LTD., or to participate in the three million dollars ($3,000,000.00) settlement monies. HARBOUR CLUB VILLAS and QUAYSIDE ASSOCIATES, LTD., move to dismiss the Second Amended Complaint in Intervention on the grounds: (1) the zoning issues and appeal were settled; (2) the appeal filed by HARBOUR CLUB VILLAS was not brought as a certified class action; (3) BRYNWOOD had no standing to contest the zoning issue and was not entitled to share in the settlement proceeds as a third party beneficiary. 3. In order to challenge the zoning variances afforded to QUAYSIDE, BRYNWOOD would have to allege that they suffered special damages different in kind, rather than different in degree, from those suffered by the community as a whole. Skaggs -Albertson P., Inc. v. Michaels [Michels] Belle. B. L. [BI.] P., 322 [332] So.2d 113 (Fla. 2d DCA 1976); Skaggs -Albertson v. ABC Liquors, Inc., 363 So.2d 1082 (FIa.1978). Because the Second Amended Complaint in Intervention does not allege special damages, BRYNWOOD had no right to challenge the original zoning and has no right here to claim an interest in the settlement proceeds. 4. Here, under the allegations of the Second Amended Complaint in Intervention, BRYNWOOD would not and does not have any right to bring the prior litigation. BRYNWOOD, unable to assert the doctrine of virtual representation, could not have been affected by the prior zoning litigation. The settlement of that litigation did not affect its rights. It has no rights to share in the proceeds of the settlement. Treasure Salvors, Inc. v. Unidentified Wrecked, etc., 599 [459] F.Supp. 607 [507] (S.D.FIa.1978), affd, State of Florida, Department of State v. Treasure Salvors, Inc., 621 F.2d 1340 (5th Cir.1980). 5. The Second Amended Complaint in Intervention fails to state a cause of action on a third party beneficiary theory. In order to fall within the third party rule, the contract must show a clear intent and purpose to benefit a specific third person. Marianna Lime Product, Co. v. McKay [109 Fla. 275], 147 So.2d 264 (FIa.1937 [1933] ): 11 Fla.Jur.2d, Contracts, Section 155 and cases cited therein. BRYNWOOD was not an intended beneficiary of the settlement agreement. Cherry Lake, Inc. v. Kreace [Kearce], 26 So.2d 434 (FIa.1946). UPON the above, it is ORDERED that the Motion to dismiss filed by QUAYSIDE ASSOCIATES, LTD., and HARBOUR CLUB VILLAS CONDOMINIUM ASSOCIATION, be and the same is hereby granted. BRYNWOOD CONDOMINIUM, INC.'s Second Amended Complaint in Intervention is dismissed with prejudice. End of Document © 2018 Thomson Reuters. No claim to original U.S. Govemment Works. WESTLAW oe Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk Brynwood Condominium, Inc. v. Harbour Club Villas..., 436 So.2d 1080 (1983) 436 So.2d io8o District Court of Appeal of Florida, Third District. BRYNWOOD CONDOMINIUM, INC., Appellant, v. HARBOUR CLUB VILLAS CONDOMINIUM ASSOCIATION and Quayside Associates, Ltd., Appellees. No. 82-1592. Sept. 6,1983. Synopsis After condominium association achieved settlement in amount of $3 million in connection with action challenging zoning variances made in favor of real estate project, intervenor condominium association filed amended complaint for intervention, seeking to receive portion of settlement proceeds, injunction, and other general relief. The Circuit Court, Dade County, Jack M. Turner, J., granted motion to dismiss amended complaint in intervention, and intervenor appealed. The District Court of Appeal held that, as intervenor failed to appeal original zoning decision, did not allege that it was objector in zoning proceeding, and did not claim to have contributed to legal fund with plaintiffs who challenged original zoning decision, trial court did not err in dismissing with prejudice intervenor's amended complaint. Affirmed. West Headnotes (1) ft] Parties 4-Interest in Subject of Action in General Where intervenor failed to appeal original zoning decision, did not allege that it was objector in zoning proceeding, and did not claim to have contributed to legal fund with plaintiffs who challenged original zoning decision, and zoning action was not instituted as class action, trial court did not err in dismissing with prejudice intervenor's amended complaint WESTLAW seeking to receive portion of settlement proceeds, injunction, and other general relief. West's F.S.A. RCP Rules 1.220, 1.230. 1 Cases that cite this headnote Attorneys and Law Firms *1081 Shalle Stephen Fine, Coral Gables, for appellant. Lapidus & Stettin and Richard Lapidus, Miami, Ress, Gomez, Rosenberg and Howland and Sheldon Rosenberg, North Miami, for appellees. Before BARKDULL, HUBBART and DANIEL S. PEARSON, JJ. Opinion PER CURIAM. The Metropolitan Dade County Commission (Commission) authorized zoning variances in favor of Quayside, a real estate project. Two condominium associations, the Villas and the Shores, as well as certain individuals residing within 500 feet of Quayside, or within the nearby geographic area, joined together to fight the zoning variance. Representatives of these groups met with the law firm of Williams, Salomon, Kanner, Damian, Weissler & Brooks to commence legal proceedings for the purpose of appealing and having declared void the decision of the Commission. Their attorney appeared before the Commission and ultimately filed appeals with the circuit court and this court. These suits were instituted solely in the name of the Villas and the Shores with none of the individual residents named as plaintiffs. Prior to the determination of the appeal by this court, the Villas and the Shores independently settled with Quayside. The Villas' settlement was in the amount of $3,000,000. Quayside agreed to indemnify the Villas from any and all claims by persons not members of the Villas, who had contributed to the legal fees incurred in prosecuting the action and who might claim that the Villas should not have settled. The settlements resulted in the dismissal of the appeal and foreclosed any possibility that the individuals could obtain relief. c. Brynwood Condominium, Inc. v. Harbour Club Villas..., 436 So.2d 1080 (1983) Those individuals thereafter filed a seven -count complaint against the Villas, Shores, Quayside, and the lawyers. An appeal from dismissal of their complaint was reversed by this court in McIntosh v. Harbour Club Villas Condominium Association, 421 So.2d 10 (Fla. 3d DCA 1982).' During the progress of that cause in the trial court [McIntosh v. Harbour Club Villas Condominium Association, supra ] the appellant herein, Brynwood, intervened in the proceedings, not in recognition of the plaintiff therein,2 and by their second amended complaint for intervention sought to receive a portion of the settlement proceeds, an injunction, and other general relief. Following argument the trial court granted a motion to dismiss the second amended complaint in intervention with prejudice.' We affirm. *1082 The initial proceeding in the circuit court was a certiorari proceeding pursuant to the applicable Metropolitan ordinance to review a zoning decision by the appropriate county authorities. Those persons who brought the initial appeal represented only themselves and they had a right to dismiss their litigation. If the intervenor was aggrieved by the zoning decision, it had a right to appeal. This it did not do. Brynwood did not allege that it was an objector in the zoning proceedings. It did not claim to have contributed to the legal fund. If Brynwood felt that it was an aggrieved party by the Footnotes 2 3 Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk county's action in granting the zoning variance it should have sought appropriate review, if it had the requisite standing, as it contends. The original appeal was not prosecuted as a class action nor could it have been certified as a class action. Compare: Brown v. Wainwright, 392 So.2d 1327 (F1a.1981); Wags Transportation System, Inc., v. City of Miami Beach, 88 So.2d 751 (F1a.1956); State v. Purdy, 242 So.2d 498 (Fla. 3d DCA 1971); Kearney v. Saline, 208 So.2d 650 (Fla. 1st DCA 1968); Rule 1.220 Florida Rules of Civil Procedure. Class actions are normally instituted in a trial court and not in an appellate court. Therefore, we find the appellant's contention that it should recover herein on the basis that it is a member of a class, to be without merit. The other contentions advanced *1083 by Brynwood are also found to be without merit. Accordingly, the order dismissing the second amended complaint in intervention with prejudice is hereby affirmed. Affirmed. All Citations 436 So.2d 1080 Certain companion cases were also heard by this court. See Williams v. Harbour Club Villas Condominium Association, Inc., 436 So.2d 233 (Fla. 3d DCA 1983); Quayside Associates, Ltd., v. Harbour Club Villas Condominium, Inc., 419 So.2d 678 (Fla. 3d DCA 1982). Rule 1.230 FIa.R.Civ.P. Anyone claiming an interest in pending litigation may at any time be permitted to assert his right by intervention, but the intervention shall be in subordination to, and in recognition of, the propriety of the main proceeding, unless otherwise ordered by the court in its discretion. THIS CAUSE coming on to be heard before me, the undersigned Judge of the above entitled Court, on Motion to Dismiss filed by HARBOUR CLUB VILLAS CONDOMINIUM ASSOCIATION and QUAYSIDE ASSOCIATES, LTD., said motion being directed to the Second Amended Complaint in Intervention of BRYNWOOD CONDOMINIUM, INC., and the Court being duly advised and having heard argument of counsel, having examined the memoranda of law presented by the parties, finds as follows: 1. The Second Amended Complaint in Intervention filed by BRYNWOOD CONDOMINIUM, INC., basically seeks relief on grounds that HARBOUR CLUB VILLAS, et al., undertook to appeal a zoning decision granting certain variances to QUAYSIDE ASSOCIATES, LTD., for the construction of a high-rise project adjacent to HARBOUR CLUB VILLAS. HARBOUR CLUB VILLAS CONDOMINIUM ASSOCIATIONS, SHORES CONDOMINIUM ASSOCIATION, BISCAYNE PARK HOMEOWNERS ASSOCIATION, AUDUBON SOCIETY and others, and not BRYNWOOD CONDOMINIUM, INC., contributed to a fund and hired an attorney, Gary Brooks, to challenge the zoning variances granted by the Metropolitan Dade County Commission and to take all necessary appellate steps. The petition for common law certiorari taken by the technical appellant, HARBOUR CLUB VILLAS CONDOMINIUM ASSOCIATION, after the Circuit Court -Appellate division denied relief, was settled after oral argument but before the Third District Court of Appeal had ruled. HARBOUR CLUB VILLAS CONDOMINIUM and QUAYSIDE ASSOCIATES, LTD. signed a settlement agreement whereby HARBOUR CLUB VILLAS CONDOMINIUM ASSOCIATION received WESTI_AW Submitted into the public record for item(s)_PZ.1 on 12/13/2018 , City Clerk Brynwood Condominium, Inc. v. Harbour Club Villas..., 436 So.2d 1080 (1983) three million dollars ($3,000,000.00). 2. BRYNWOOD CONDOMINIUM INC., Second Amended Complaint in intervention seeks to set aside the zoning variances granted to QUAYSIDE ASSOCIATES, LTD., or to participate in the three million dollars ($3,000,000.00) settlement monies. HARBOUR CLUB VILLAS and QUAYSIDE ASSOCIATES, LTD., move to dismiss the Second Amended Complaint in Intervention on the grounds: (1) the zoning issues and appeal were settled; (2) the appeal filed by HARBOUR CLUB VILLAS was not brought as a certified class action; (3) BRYNWOOD had no standing to contest the zoning issue and was not entitled to share in the settlement proceeds as a third party beneficiary. 3. In order to challenge the zoning variances afforded to QUAYSIDE, BRYNWOOD would have to allege that they suffered special damages different in kind, rather than different in degree, from those suffered by the community as a whole. Skaggs -Albertson P., Inc. v. Michaels [Michels] Belle. B. L. (BI.] P., 322 [332] So.2d 113 (Fla. 2d DCA 1976); Skaggs -Albertson v. ABC Liquors, Inc., 363 So.2d 1082 (FIa.1978). Because the Second Amended Complaint in Intervention does not allege special damages, BRYNWOOD had no right to challenge the original zoning and has no right here to claim an interest in the settlement proceeds. 4. Here, under the allegations of the Second Amended Complaint in Intervention, BRYNWOOD would not and does not have any right to bring the prior litigation. BRYNWOOD, unable to assert the doctrine of virtual representation, could not have been affected by the prior zoning litigation. The settlement of that litigation did not affect its rights. It has no rights to share in the proceeds of the settlement. Treasure Salvors, Inc. v. Unidentified Wrecked, etc., 599 [459] F.Supp. 607 [507] (S.D.FIa.1978), affd, State of Florida, Department of State v. Treasure Salvors, Inc., 621 F.2d 1340 (5th Cir.1980). 5. The Second Amended Complaint in Intervention fails to state a cause of action on a third party beneficiary theory. In order to fall within the third party rule, the contract must show a clear intent and purpose to benefit a specific third person. Marianna Lime Product, Co. v. McKay [109 Fla. 275], 147 So.2d 264 (FIa.1937 [1933] ): 11 FIa.Jur.2d, Contracts, Section 155 and cases cited therein. BRYNWOOD was not an intended beneficiary of the settlement agreement. Cherry Lake, Inc. v. Kreace (Kearce], 26 So.2d 434 (FIa.1946). UPON the above, it is ORDERED that the Motion to dismiss filed by QUAYSIDE ASSOCIATES, LTD., and HARBOUR CLUB VILLAS CONDOMINIUM ASSOCIATION, be and the same is hereby granted. BRYNWOOD CONDOMINIUM, INC.'s Second Amended Complaint in Intervention is dismissed with prejudice. End of Document © 2018 Thomson Reuters. No claim to original U.S. Govemment Works. WESTLAW obi Brynwood Condominium, Inc. v. Harbour Club Villas..., 436 So.2d 1080 (1983) 436 So.2d io80 District Court of Appeal of Florida, Third District. BRYNWOOD CONDOMINIUM, INC., Appellant, v. HARBOUR CLUB VILLAS CONDOMINIUM ASSOCIATION and Quayside Associates, Ltd., Appellees. No. 82-1592. Sept. 6, 1983. Synopsis After condominium association achieved settlement in amount of $3 million in connection with action challenging zoning variances made in favor of real estate project, intervenor condominium association filed amended complaint for intervention, seeking to receive portion of settlement proceeds, injunction, and other general relief. The Circuit Court, Dade County, Jack M. Turner, J., granted motion to dismiss amended complaint in intervention, and intervenor appealed. The District Court of Appeal held that, as intervenor failed to appeal original zoning decision, did not allege that it was objector in zoning proceeding, and did not claim to have contributed to legal fund with plaintiffs who challenged original zoning decision, trial court did not err in dismissing with prejudice intervenor's amended complaint. Affirmed. West Headnotes (1) [11 Parties ..+Interest in Subject of Action in General Where intervenor failed to appeal original zoning decision, did not allege that it was objector in zoning proceeding, and did not claim to have contributed to legal fund with plaintiffs who challenged original zoning decision, and zoning action was not instituted as class action, trial court did not err in dismissing with prejudice intervenor's amended complaint Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk seeking to receive portion of settlement proceeds, injunction, and other general relief. West's F.S.A. RCP Rules 1.220, 1.230. 1 Cases that cite this headnote Attorneys and Law Firms *1081 Shalle Stephen Fine, Coral Gables, for appellant. Lapidus & Stettin and Richard Lapidus, Miami, Ress, Gomez, Rosenberg and Howland and Sheldon Rosenberg, North Miami, for appellees. Before BARKDULL, HUBBART and DANIEL S. PEARSON, JJ. Opinion PER CURIAM. The Metropolitan Dade County Commission (Commission) authorized zoning variances in favor of Quayside, a real estate project. Two condominium associations, the Villas and the Shores, as well as certain individuals residing within 500 feet of Quayside, or within the nearby geographic area, joined together to fight the zoning variance. Representatives of these groups met with the law firm of Williams, Salomon, Kanner, Damian, Weissler & Brooks to commence legal proceedings for the purpose of appealing and having declared void the decision of the Commission. Their attorney appeared before the Commission and ultimately filed appeals with the circuit court and this court. These suits were instituted solely in the name of the Villas and the Shores with none of the individual residents named as plaintiffs. Prior to the determination of the appeal by this court, the Villas and the Shores independently settled with Quayside. The Villas' settlement was in the amount of $3,000,000. Quayside agreed to indemnify the Villas from any and all claims by persons not members of the Villas, who had contributed to the legal fees incurred in prosecuting the action and who might claim that the Villas should not have settled. The settlements resulted in the dismissal of the appeal and foreclosed any possibility that the individuals could obtain relief. WESTLAW Submitted into the public record for item(s)_ PZ.1 . on 12/13/2018 , City Clerk Brynwood Condominium, Inc. v. Harbour Club Villas..., 436 So.2d 1080 (1983) Those individuals thereafter filed a seven -count complaint against the Villas, Shores, Quayside, and the lawyers. An appeal from dismissal of their complaint was reversed by this court in McIntosh v. Harbour Club Villas Condominium Association, 421 So.2d 10 (Fla. 3d DCA 1982).' During the progress of that cause in the trial court [McIntosh v. Harbour Club Villas Condominium Association, supra ] the appellant herein, Brynwood, intervened in the proceedings, not in recognition of the plaintiff therein,' and by their second amended complaint for intervention sought to receive a portion of the settlement proceeds, an injunction, and other general relief. Following argument the trial court granted a motion to dismiss the second amended complaint in intervention with prejudice.' We affirm. *1082 The initial proceeding in the circuit court was a certiorari proceeding pursuant to the applicable Metropolitan ordinance to review a zoning decision by the appropriate county authorities. Those persons who brought the initial appeal represented only themselves and they had a right to dismiss their litigation. If the intervenor was aggrieved by the zoning decision, it had a right to appeal. This it did not do. Brynwood did not allege that it was an objector in the zoning proceedings. It did not claim to have contributed to the legal fund. If Brynwood felt that it was an aggrieved party by the Footnotes 2 3 county's action in granting the zoning variance it should have sought appropriate review, if it had the requisite standing, as it contends. The original appeal was not prosecuted as a class action nor could it have been certified as a class action. Compare: Brown v. Wainwright, 392 So.2d 1327 (F1a.1981); Wags Transportation System, Inc., v. City of Miami Beach, 88 So.2d 751 (F1a.1956); State v. Purdy, 242 So.2d 498 (Fla. 3d DCA 1971); Kearney v. Saline, 208 So.2d 650 (Fla. 1st DCA 1968); Rule 1.220 Florida Rules of Civil Procedure. Class actions are normally instituted in a trial court and not in an appellate court. Therefore, we find the appellant's contention that it should recover herein on the basis that it is a member of a class, to be without merit. The other contentions advanced *1083 by Brynwood are also found to be without merit. Accordingly, the order dismissing the second amended complaint in intervention with prejudice is hereby affirmed. Affirmed. All Citations 436 So.2d 1080 Certain companion cases were also heard by this court. See Williams v. Harbour Club Villas Condominium Association, Inc., 436 So.2d 233 (Fla. 3d DCA 1983); Quayside Associates, Ltd., v. Harbour Club Villas Condominium, Inc., 419 So.2d 678 (Fla. 3d DCA 1982). Rule 1.230 Fla.R.Civ.P. Anyone claiming an interest in pending litigation may at any time be permitted to assert his right by intervention, but the intervention shall be in subordination to, and in recognition of, the propriety of the main proceeding, unless otherwise ordered by the court in its discretion. THIS CAUSE coming on to be heard before me, the undersigned Judge of the above entitled Court, on Motion to Dismiss filed by HARBOUR CLUB VILLAS CONDOMINIUM ASSOCIATION and QUAYSIDE ASSOCIATES, LTD., said motion being directed to the Second Amended Complaint in Intervention of BRYNWOOD CONDOMINIUM, INC., and the Court being duly advised and having heard argument of counsel, having examined the memoranda of law presented by the parties, finds as follows: 1. The Second Amended Complaint in Intervention filed by BRYNWOOD CONDOMINIUM, INC., basically seeks relief on grounds that HARBOUR CLUB VILLAS, et al., undertook to appeal a zoning decision granting certain variances to QUAYSIDE ASSOCIATES, LTD., for the construction of a high-rise project adjacent to HARBOUR CLUB VILLAS. HARBOUR CLUB VILLAS CONDOMINIUM ASSOCIATIONS, SHORES CONDOMINIUM ASSOCIATION, BISCAYNE PARK HOMEOWNERS ASSOCIATION, AUDUBON SOCIETY and others, and not BRYNWOOD CONDOMINIUM, INC., contributed to a fund and hired an attorney, Gary Brooks, to challenge the zoning variances granted by the Metropolitan Dade County Commission and to take all necessary appellate steps. The petition for common law certiorari taken by the technical appellant, HARBOUR CLUB VILLAS CONDOMINIUM ASSOCIATION, after the Circuit Court -Appellate division denied relief, was settled after oral argument but before the Third District Court of Appeal had ruled. HARBOUR CLUB VILLAS CONDOMINIUM and QUAYSIDE ASSOCIATES, LTD. signed a settlement agreement whereby HARBOUR CLUB VILLAS CONDOMINIUM ASSOCIATION received WEST LAW 4.0 Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk Brynwood Condominium, Inc. v. Harbour Club Villas..., 436 So.2d 1080 (1983) three million dollars ($3,000,000.00). 2. BRYNWOOD CONDOMINIUM INC., Second Amended Complaint in intervention seeks to set aside the zoning variances granted to QUAYSIDE ASSOCIATES, LTD., or to participate in the three million dollars ($3,000,000.00) settlement monies. HARBOUR CLUB VILLAS and QUAYSIDE ASSOCIATES, LTD., move to dismiss the Second Amended Complaint in Intervention on the grounds: (1) the zoning issues and appeal were settled; (2) the appeal filed by HARBOUR CLUB VILLAS was not brought as a certified class action; (3) BRYNWOOD had no standing to contest the zoning issue and was not entitled to share in the settlement proceeds as a third party beneficiary. 3. In order to challenge the zoning variances afforded to QUAYSIDE, BRYNWOOD would have to allege that they suffered special damages different in kind, rather than different in degree, from those suffered by the community as a whole. Skaggs -Albertson P., Inc. v. Michaels [Michels] Belle. B. L. (BK.] P., 322 [332] So.2d 113 (Fla. 2d DCA 1976); Skaggs -Albertson v. ABC Liquors, Inc., 363 So.2d 1082 (FIa.1978). Because the Second Amended Complaint in Intervention does not allege special damages, BRYNWOOD had no right to challenge the original zoning and has no right here to claim an interest in the settlement proceeds. 4. Here, under the allegations of the Second Amended Complaint in Intervention, BRYNWOOD would not and does not have any right to bring the prior litigation. BRYNWOOD, unable to assert the doctrine of virtual representation, could not have been affected by the prior zoning litigation. The settlement of that litigation did not affect its rights. It has no rights to share in the proceeds of the settlement. Treasure Salvors, Inc. v. Unidentified Wrecked, etc., 599 [459] F.Supp. 607 [507] (S.D.FIa.1978), affd, State of Florida, Department of State v. Treasure Salvors, Inc., 621 F.2d 1340 (5th Cir.1980). 5. The Second Amended Complaint in Intervention fails to state a cause of action on a third party beneficiary theory. In order to fall within the third party rule, the contract must show a clear intent and purpose to benefit a specific third person. Marianna Lime Product, Co. v. McKay [109 Fla. 275], 147 So.2d 264 (FIa.1937 [1933] ): 11 FIa.Jur.2d, Contracts, Section 155 and cases cited therein. BRYNWOOD was not an intended beneficiary of the settlement agreement. Cherry Lake, Inc. v. Kreace (Kearce], 26 So.2d 434 (FIa.1946). UPON the above, it is ORDERED that the Motion to dismiss filed by QUAYSIDE ASSOCIATES, LTD., and HARBOUR CLUB VILLAS CONDOMINIUM ASSOCIATION, be and the same is hereby granted. BRYNWOOD CONDOMINIUM, INC.'s Second Amended Complaint in Intervention is dismissed with prejudice. End of Document © 2018 Thomson Reuters. No claim to original U.S. Government Works. WESTLAW L Submitted into the public record for item(s) ! 1 on 12/13/2018 , City Clerk Brynwood Condominium, Inc. v. Harbour Club Villas..., 436 So.2d 1080 (1983) 436 So.2d io8o District Court of Appeal of Florida, Third District. BRYNWOOD CONDOMINIUM, INC., Appellant, v. HARBOUR CLUB VILLAS CONDOMINIUM ASSOCIATION and Quayside Associates, Ltd., Appellees. No. 82-1592. Sept. 6, 1983. Synopsis After condominium association achieved settlement in amount of $3 million in connection with action challenging zoning variances made in favor of real estate project, intervenor condominium association filed amended complaint for intervention, seeking to receive portion of settlement proceeds, injunction, and other general relief. The Circuit Court, Dade County, Jack M. Turner, J., granted motion to dismiss amended complaint in intervention, and intervenor appealed. The District Court of Appeal held that, as intervenor failed to appeal original zoning decision, did not allege that it was objector in zoning proceeding, and did not claim to have contributed to legal fund with plaintiffs who challenged original zoning decision, trial court did not err in dismissing with prejudice intervenor's amended complaint. Affirmed. West Headnotes (1) [1] Parties oi+Interest in Subject of Action in General Where intervenor failed to appeal original zoning decision, did not allege that it was objector in zoning proceeding, and did not claim to have contributed to legal fund with plaintiffs who challenged original zoning decision, and zoning action was not instituted as class action, trial court did not err in dismissing with prejudice intervenor's amended complaint WESTLAW seeking to receive portion of settlement proceeds, injunction, and other general relief. West's F.S.A. RCP Rules 1.220, 1.230. 1 Cases that cite this headnote Attorneys and Law Firms *1081 Shalle Stephen Fine, Coral Gables, for appellant. Lapidus & Stettin and Richard Lapidus, Miami, Ress, Gomez, Rosenberg and Howland and Sheldon Rosenberg, North Miami, for appellees. Before BARKDULL, HUBBART and DANIEL S. PEARSON, JJ. Opinion PER CURIAM. The Metropolitan Dade County Commission (Commission) authorized zoning variances in favor of Quayside, a real estate project. Two condominium associations, the Villas and the Shores, as well as certain individuals residing within 500 feet of Quayside, or within the nearby geographic area, joined together to fight the zoning variance. Representatives of these groups met with the law firm of Williams, Salomon, Kanner, Damian, Weissler & Brooks to commence legal proceedings for the purpose of appealing and having declared void the decision of the Commission. Their attorney appeared before the Commission and ultimately filed appeals with the circuit court and this court. These suits were instituted solely in the name of the Villas and the Shores with none of the individual residents named as plaintiffs. Prior to the determination of the appeal by this court, the Villas and the Shores independently settled with Quayside. The Villas' settlement was in the amount of $3,000,000. Quayside agreed to indemnify the Villas from any and all claims by persons not members of the Villas, who had contributed to the legal fees incurred in prosecuting the action and who might claim that the Villas should not have settled. The settlements resulted in the dismissal of the appeal and foreclosed any possibility that the individuals could obtain relief. Brynwood Condominium, Inc. v. Harbour Club Villas..., 436 So.2d 1080 (1983) Those individuals thereafter filed a seven -count complaint against the Villas, Shores, Quayside, and the lawyers. An appeal from dismissal of their complaint was reversed by this court in McIntosh v. Harbour Club Villas Condominium Association, 421 So.2d 10 (Fla. 3d DCA 1982).' During the progress of that cause in the trial court [McIntosh v. Harbour Club Villas Condominium Association, supra ] the appellant herein, Brynwood, intervened in the proceedings, not in recognition of the plaintiff therein,2 and by their second amended complaint for intervention sought to receive a portion of the settlement proceeds, an injunction, and other general relief. Following argument the trial court granted a motion to dismiss the second amended complaint in intervention with prejudice.' We affirm. *1082 The initial proceeding in the circuit court was a certiorari proceeding pursuant to the applicable Metropolitan ordinance to review a zoning decision by the appropriate county authorities. Those persons who brought the initial appeal represented only themselves and they had a right to dismiss their litigation. If the intervenor was aggrieved by the zoning decision, it had a right to appeal. This it did not do. Brynwood did not allege that it was an objector in the zoning proceedings. It did not claim to have contributed to the legal fund. If Brynwood felt that it was an aggrieved party by the Footnotes 1 2 3 Submitted into the public record for item(s) PZ.1 on 12/1312018 City Clerk county's action in granting the zoning variance it should have sought appropriate review, if it had the requisite standing, as it contends. The original appeal was not prosecuted as a class action nor could it have been certified as a class action. Compare: Brown v. Wainwright, 392 So.2d 1327 (F1a.1981); Wags Transportation System, Inc., v. City of Miami Beach, 88 So.2d 751 (F1a.1956); State v. Purdy, 242 So.2d 498 (Fla. 3d DCA 1971); Kearney v. Saline, 208 So.2d 650 (Fla. 1st DCA 1968); Rule 1.220 Florida Rules of Civil Procedure. Class actions are normally instituted in a trial court and not in an appellate court. Therefore, we find the appellant's contention that it should recover herein on the basis that it is a member of a class, to be without merit. The other contentions advanced *1083 by Brynwood are also found to be without merit. Accordingly, the order dismissing the second amended complaint in intervention with prejudice is hereby affirmed. Affirmed. All Citations 436 So.2d 1080 Certain companion cases were also heard by this court. See Williams v. Harbour Club Villas Condominium Association, Inc., 436 So.2d 233 (Fla. 3d DCA 1983); Quayside Associates, Ltd., v. Harbour Club Villas Condominium, Inc., 419 So.2d 678 (Fla. 3d DCA 1982). Rule 1.230 FIa.R.Civ.P. Anyone claiming an interest in pending litigation may at any time be permitted to assert his right by intervention, but the intervention shall be in subordination to, and in recognition of, the propriety of the main proceeding, unless otherwise ordered by the court in its discretion. THIS CAUSE coming on to be heard before me, the undersigned Judge of the above entitled Court, on Motion to Dismiss filed by HARBOUR CLUB VILLAS CONDOMINIUM ASSOCIATION and QUAYSIDE ASSOCIATES, LTD., said motion being directed to the Second Amended Complaint in Intervention of BRYNWOOD CONDOMINIUM, INC., and the Court being duly advised and having heard argument of counsel, having examined the memoranda of law presented by the parties, finds as follows: 1. The Second Amended Complaint in Intervention filed by BRYNWOOD CONDOMINIUM, INC., basically seeks relief on grounds that HARBOUR CLUB VILLAS, et al., undertook to appeal a zoning decision granting certain variances to QUAYSIDE ASSOCIATES, LTD., for the construction of a high-rise project adjacent to HARBOUR CLUB VILLAS. HARBOUR CLUB VILLAS CONDOMINIUM ASSOCIATIONS, SHORES CONDOMINIUM ASSOCIATION, BISCAYNE PARK HOMEOWNERS ASSOCIATION, AUDUBON SOCIETY and others, and not BRYNWOOD CONDOMINIUM, INC., contributed to a fund and hired an attorney, Gary Brooks, to challenge the zoning variances granted by the Metropolitan Dade County Commission and to take all necessary appellate steps. The petition for common law certiorari taken by the technical appellant, HARBOUR CLUB VILLAS CONDOMINIUM ASSOCIATION, after the Circuit Court -Appellate division denied relief, was settled after oral argument but before the Third District Court of Appeal had ruled. HARBOUR CLUB VILLAS CONDOMINIUM and QUAYSIDE ASSOCIATES, LTD. signed a settlement agreement whereby HARBOUR CLUB VILLAS CONDOMINIUM ASSOCIATION received WESTLAW Brynwood Condominium, Inc. v. Harbour Club Villas..., 436 So.2d 1080 (1983) three million dollars ($3,000,000.00). 2. BRYNWOOD CONDOMINIUM INC., Second Amended Complaint in intervention seeks to set aside the zoning variances granted to QUAYSIDE ASSOCIATES, LTD., or to participate in the three million dollars ($3,000,000.00) settlement monies. HARBOUR CLUB VILLAS and QUAYSIDE ASSOCIATES, LTD., move to dismiss the Second Amended Complaint in Intervention on the grounds: (1) the zoning issues and appeal were settled; (2) the appeal filed by HARBOUR CLUB VILLAS was not brought as a certified class action; (3) BRYNWOOD had no standing to contest the zoning issue and was not entitled to share in the settlement proceeds as a third party beneficiary. 3. In order to challenge the zoning variances afforded to QUAYSIDE, BRYNWOOD would have to allege that they suffered special damages different in kind, rather than different in degree, from those suffered by the community as a whole. Skaggs -Albertson P., Inc. v. Michaels [Michels] Belle. B. L. (BI.] P., 322 [332] So.2d 113 (Fla. 2d DCA 1976); Skaggs -Albertson v. ABC Liquors, Inc., 363 So.2d 1082 (FIa.1978). Because the Second Amended Complaint in Intervention does not allege special damages, BRYNWOOD had no right to challenge the original zoning and has no right here to claim an interest in the settlement proceeds. 4. Here, under the allegations of the Second Amended Complaint in Intervention, BRYNWOOD would not and does not have any right to bring the prior litigation. BRYNWOOD, unable to assert the doctrine of virtual representation, could not have been affected by the prior zoning litigation. The settlement of that litigation did not affect its rights. It has no rights to share in the proceeds of the settlement. Treasure Salvors, Inc. v. Unidentified Wrecked, etc., 599 [459] F.Supp. 607 [507] (S.D.FIa.1978), affd, State of Florida, Department of State v. Treasure Salvors, Inc., 621 F.2d 1340 (5th Cir.1980). 5. The Second Amended Complaint in Intervention fails to state a cause of action on a third party beneficiary theory. In order to fall within the third party rule, the contract must show a clear intent and purpose to benefit a specific third person. Marianna Lime Product, Co. v. McKay [109 Fla. 275], 147 So.2d 264 (FIa.1937 [1933] ): 11 FIa.Jur.2d, Contracts, Section 155 and cases cited therein. BRYNWOOD was not an intended beneficiary of the settlement agreement. Cherry Lake, Inc. v. Kreace (Kearce], 26 So.2d 434 (FIa.1946). UPON the above, it is ORDERED that the Motion to dismiss filed by QUAYSIDE ASSOCIATES, LTD., and HARBOUR CLUB VILLAS CONDOMINIUM ASSOCIATION, be and the same is hereby granted. BRYNWOOD CONDOMINIUM, INC.'s Second Amended Complaint in Intervention is dismissed with prejudice. End of Document © 2018 Thomson Reuters. No claim to original U.S. Government Works. WEST LAW w Brynwood Condominium, Inc. v. Harbour Club Villas..., 436 So.2d 1080 (1983) 436 So.2d 1080 District Court of Appeal of Florida, Third District. BRYNWOOD CONDOMINIUM, INC., Appellant, v. HARBOUR CLUB VILLAS CONDOMINIUM ASSOCIATION and Quayside Associates, Ltd., Appellees. No. 82-1592. Sept. 6,1983. Synopsis After condominium association achieved settlement in amount of $3 million in connection with action challenging zoning variances made in favor of real estate project, intervenor condominium association filed amended complaint for intervention, seeking to receive portion of settlement proceeds, injunction, and other general relief. The Circuit Court, Dade County, Jack M. Turner, J., granted motion to dismiss amended complaint in intervention, and intervenor appealed. The District Court of Appeal held that, as intervenor failed to appeal original zoning decision, did not allege that it was objector in zoning proceeding, and did not claim to have contributed to legal fund with plaintiffs who challenged original zoning decision, trial court did not err in dismissing with prejudice intervenor's amended complaint. Affirmed. West Headnotes (1) [1] Parties Interest in Subject of Action in General Where intervenor failed to appeal original zoning decision, did not allege that it was objector in zoning proceeding, and did not claim to have contributed to legal fund with plaintiffs who challenged original zoning decision, and zoning action was not instituted as class action, trial court did not err in dismissing with prejudice intervenor's amended complaint Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk seeking to receive portion of settlement proceeds, injunction, and other general relief. West's F.S.A. RCP Rules 1.220, 1.230. 1 Cases that cite this headnote Attorneys and Law Firms *1081 Shalle Stephen Fine, Coral Gables, for appellant. Lapidus & Stettin and Richard Lapidus, Miami, Ress, Gomez, Rosenberg and Howland and Sheldon Rosenberg, North Miami, for appellees. Before BARKDULL, HUBBART and DANIEL S. PEARSON, JJ. Opinion PER CURIAM. The Metropolitan Dade County Commission (Commission) authorized zoning variances in favor of Quayside, a real estate project. Two condominium associations, the Villas and the Shores, as well as certain individuals residing within 500 feet of Quayside, or within the nearby geographic area, joined together to fight the zoning variance. Representatives of these groups met with the law firm of Williams, Salomon, Kanner, Damian, Weissler & Brooks to commence legal proceedings for the purpose of appealing and having declared void the decision of the Commission. Their attorney appeared before the Commission and ultimately filed appeals with the circuit court and this court. These suits were instituted solely in the name of the Villas and the Shores with none of the individual residents named as plaintiffs. Prior to the determination of the appeal by this court, the Villas and the Shores independently settled with Quayside. The Villas' settlement was in the amount of $3,000,000. Quayside agreed to indemnify the Villas from any and all claims by persons not members of the Villas, who had contributed to the legal fees incurred in prosecuting the action and who might claim that the Villas should not have settled. The settlements resulted in the dismissal of the appeal and foreclosed any possibility that the individuals could obtain relief. WEST LAW L. Brynwood Condominium, Inc. v. Harbour Club Villas..., 436 So.2d 1080 (1983) Those individuals thereafter filed a seven -count complaint against the Villas, Shores, Quayside, and the lawyers. An appeal from dismissal of their complaint was reversed by this court in McIntosh v. Harbour Club Villas Condominium Association, 421 So.2d 10 (Fla. 3d DCA 1982).' During the progress of that cause in the trial court [McIntosh v. Harbour Club Villas Condominium Association, supra ] the appellant herein, Brynwood, intervened in the proceedings, not in recognition of the plaintiff therein,' and by their second amended complaint for intervention sought to receive a portion of the settlement proceeds, an injunction, and other general relief. Following argument the trial court granted a motion to dismiss the second amended complaint in intervention with prejudice.' We affirm. *1082 The initial proceeding in the circuit court was a certiorari proceeding pursuant to the applicable Metropolitan ordinance to review a zoning decision by the appropriate county authorities. Those persons who brought the initial appeal represented only themselves and they had a right to dismiss their litigation. If the intervenor was aggrieved by the zoning decision, it had a right to appeal. This it did not do. Brynwood did not allege that it was an objector in the zoning proceedings. It did not claim to have contributed to the legal fund. If Brynwood felt that it was an aggrieved party by the Footnotes 1 2 3 Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk county's action in granting the zoning variance it should have sought appropriate review, if it had the requisite standing, as it contends. The original appeal was not prosecuted as a class action nor could it have been certified as a class action. Compare: Brown v. Wainwright, 392 So.2d 1327 (Fla.1981); Wags Transportation System, Inc., v. City of Miami Beach, 88 So.2d 751 (F1a.1956); State v. Purdy, 242 So.2d 498 (Fla. 3d DCA 1971); Kearney v. Saline, 208 So.2d 650 (Fla. 1st DCA 1968); Rule 1.220 Florida Rules of Civil Procedure. Class actions are normally instituted in a trial court and not in an appellate court. Therefore, we fmd the appellant's contention that it should recover herein on the basis that it is a member of a class, to be without merit. The other contentions advanced *1083 by Brynwood are also found to be without merit. Accordingly, the order dismissing the second amended complaint in intervention with prejudice is hereby affirmed. Affirmed. All Citations 436 So.2d 1080 Certain companion cases were also heard by this court. See Williams v. Harbour Club Villas Condominium Association, Inc., 436 So.2d 233 (Fla. 3d DCA 1983); Quayside Associates, Ltd., v. Harbour Club Villas Condominium, Inc., 419 So.2d 678 (Fla. 3d DCA 1982). Rule 1.230 FIa.R.Civ.P. Anyone claiming an interest in pending litigation may at any time be permitted to assert his right by intervention, but the intervention shall be in subordination to, and in recognition of, the propriety of the main proceeding, unless otherwise ordered by the court in its discretion. THIS CAUSE coming on to be heard before me, the undersigned Judge of the above entitled Court, on Motion to Dismiss filed by HARBOUR CLUB VILLAS CONDOMINIUM ASSOCIATION and QUAYSIDE ASSOCIATES, LTD., said motion being directed to the Second Amended Complaint in Intervention of BRYNWOOD CONDOMINIUM, INC., and the Court being duly advised and having heard argument of counsel, having examined the memoranda of law presented by the parties, finds as follows: 1. The Second Amended Complaint in Intervention filed by BRYNWOOD CONDOMINIUM, INC., basically seeks relief on grounds that HARBOUR CLUB VILLAS, et al., undertook to appeal a zoning decision granting certain variances to QUAYSIDE ASSOCIATES, LTD., for the construction of a high-rise project adjacent to HARBOUR CLUB VILLAS. HARBOUR CLUB VILLAS CONDOMINIUM ASSOCIATIONS, SHORES CONDOMINIUM ASSOCIATION, BISCAYNE PARK HOMEOWNERS ASSOCIATION, AUDUBON SOCIETY and others, and not BRYNWOOD CONDOMINIUM, INC., contributed to a fund and hired an attomey, Gary Brooks, to challenge the zoning variances granted by the Metropolitan Dade County Commission and to take all necessary appellate steps. The petition for common law certiorari taken by the technical appellant, HARBOUR CLUB VILLAS CONDOMINIUM ASSOCIATION, after the Circuit Court -Appellate division denied relief, was settled after oral argument but before the Third District Court of Appeal had ruled. HARBOUR CLUB VILLAS CONDOMINIUM and QUAYSIDE ASSOCIATES, LTD. signed a settlement agreement whereby HARBOUR CLUB VILLAS CONDOMINIUM ASSOCIATION received WESTLAW Brynwood Condominium, Inc. v. Harbour Club Villas..., 436 So.2d 1080 (1983) Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk three million dollars ($3,000,000.00). 2. BRYNWOOD CONDOMINIUM INC., Second Amended Complaint in intervention seeks to set aside the zoning variances granted to QUAYSIDE ASSOCIATES, LTD., or to participate in the three million dollars ($3,000,000.00) settlement monies. HARBOUR CLUB VILLAS and QUAYSIDE ASSOCIATES, LTD., move to dismiss the Second Amended Complaint in Intervention on the grounds: (1) the zoning issues and appeal were settled; (2) the appeal filed by HARBOUR CLUB VILLAS was not brought as a certified class action; (3) BRYNWOOD had no standing to contest the zoning issue and was not entitled to share in the settlement proceeds as a third party beneficiary. 3. In order to challenge the zoning variances afforded to QUAYSIDE, BRYNWOOD would have to allege that they suffered special damages different in kind, rather than different in degree, from those suffered by the community as a whole. Skaggs -Albertson P., Inc. v. Michaels [Michels] Belle. B. L. (Bl.] P., 322 [332] So.2d 113 (Fla. 2d DCA 1976); Skaggs -Albertson v. ABC Liquors, Inc., 363 So.2d 1082 (FIa.1978). Because the Second Amended Complaint in Intervention does not allege special damages, BRYNWOOD had no right to challenge the original zoning and has no right here to claim an interest in the settlement proceeds. 4. Here, under the allegations of the Second Amended Complaint in Intervention, BRYNWOOD would not and does not have any right to bring the prior litigation. BRYNWOOD, unable to assert the doctrine of virtual representation, could not have been affected by the prior zoning litigation. The settlement of that litigation did not affect its rights. It has no rights to share in the proceeds of the settlement. Treasure Salvors, Inc. v. Unidentified Wrecked, etc., 599 [459] F.Supp. 607 [507] (S.D.FIa.1978), affd, State of Florida, Department of State v. Treasure Salvors, Inc., 621 F.2d 1340 (5th Cir.1980). 5. The Second Amended Complaint in Intervention fails to state a cause of action on a third party beneficiary theory. In order to fall within the third party rule, the contract must show a clear intent and purpose to benefit a specific third person. Marianna Lime Product, Co. v. McKay [109 Fla. 275], 147 So.2d 264 (FIa.1937 [1933] ): 11 FIa.Jur.2d, Contracts, Section 155 and cases cited therein. BRYNWOOD was not an intended beneficiary of the settlement agreement. Chevy Lake, Inc. v. Kreace (Kearce], 26 So.2d 434 (FIa.1946). UPON the above, it is ORDERED that the Motion to dismiss filed by QUAYSIDE ASSOCIATES, LTD., and HARBOUR CLUB VILLAS CONDOMINIUM ASSOCIATION, be and the same is hereby granted. BRYNWOOD CONDOMINIUM, INC.'s Second Amended Complaint in Intervention is dismissed with prejudice. End of Document © 2018 Thomson Reuters. No claim to original U.S. Govemment Works. WESTLAW / Brynwood Condominium, Inc. v. Harbour Club Villas..., 436 So.2d 1080 (1983) 436 So.2d 1080 District Court of Appeal of Florida, Third District. Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk BRYNWOOD CONDOMINIUM, INC., Appellant, v. HARBOUR CLUB VILLAS CONDOMINIUM ASSOCIATION and Quayside Associates, Ltd., Appellees. No. 82-1592. Sept. 6, 1983. Synopsis After condominium association achieved settlement in amount of $3 million in connection with action challenging zoning variances made in favor of real estate project, intervenor condominium association filed amended complaint for intervention, seeking to receive portion of settlement proceeds, injunction, and other general relief. The Circuit Court, Dade County, Jack M. Turner, J., granted motion to dismiss amended complaint in intervention, and intervenor appealed. The District Court of Appeal held that, as intervenor failed to appeal original zoning decision, did not allege that it was objector in zoning proceeding, and did not claim to have contributed to legal fund with plaintiffs who challenged original zoning decision, trial court did not err in dismissing with prejudice intervenor's amended complaint. Affirmed. West Headnotes (1) [1l Parties 'Interest in Subject of Action in General Where intervenor failed to appeal original zoning decision, did not allege that it was objector in zoning proceeding, and did not claim to have contributed to legal fund with plaintiffs who challenged original zoning decision, and zoning action was not instituted as class action, trial court did not err in dismissing with prejudice intervenor's amended complaint WESTLAW seeking to receive portion of settlement proceeds, injunction, and other general relief. West's F.S.A. RCP Rules 1.220, 1.230. 1 Cases that cite this headnote Attorneys and Law Firms *1081 Shalle Stephen Fine, Coral Gables, for appellant. Lapidus & Stettin and Richard Lapidus, Miami, Ress, Gomez, Rosenberg and Howland and Sheldon Rosenberg, North Miami, for appellees. Before BARKDULL, HUBBART and DANIEL S. PEARSON, JJ. Opinion PER CURIAM. The Metropolitan Dade County Commission (Commission) authorized zoning variances in favor of Quayside, a real estate project. Two condominium associations, the Villas and the Shores, as well as certain individuals residing within 500 feet of Quayside, or within the nearby geographic area, joined together to fight the zoning variance. Representatives of these groups met with the law firm of Williams, Salomon, Kanner, Damian, Weissler & Brooks to commence legal proceedings for the purpose of appealing and having declared void the decision of the Commission. Their attorney appeared before the Commission and ultimately filed appeals with the circuit court and this court. These suits were instituted solely in the name of the Villas and the Shores with none of the individual residents named as plaintiffs. Prior to the determination of the appeal by this court, the Villas and the Shores independently settled with Quayside. The Villas' settlement was in the amount of $3,000,000. Quayside agreed to indemnify the Villas from any and all claims by persons not members of the Villas, who had contributed to the legal fees incurred in prosecuting the action and who might claim that the Villas should not have settled. The settlements resulted in the dismissal of the appeal and foreclosed any possibility that the individuals could obtain relief. Brynwood Condominium, Inc. v. Harbour Club Villas..., 436 So.2d 1080 (1983) Those individuals thereafter filed a seven -count complaint against the Villas, Shores, Quayside, and the lawyers. An appeal from dismissal of their complaint was reversed by this court in McIntosh v. Harbour Club Villas Condominium Association, 421 So.2d 10 (Fla. 3d DCA 1982).' During the progress of that cause in the trial court [McIntosh v. Harbour Club Villas Condominium Association, supra ] the appellant herein, Brynwood, intervened in the proceedings, not in recognition of the plaintiff therein,' and by their second amended complaint for intervention sought to receive a portion of the settlement proceeds, an injunction, and other general relief. Following argument the trial court granted a motion to dismiss the second amended complaint in intervention with prejudice.' We affirm. *1082 The initial proceeding in the circuit court was a certiorari proceeding pursuant to the applicable Metropolitan ordinance to review a zoning decision by the appropriate county authorities. Those persons who brought the initial appeal represented only themselves and they had a right to dismiss their litigation. If the intervenor was aggrieved by the zoning decision, it had a right to appeal. This it did not do. Brynwood did not allege that it was an objector in the zoning proceedings. It did not claim to have contributed to the legal fund. If Brynwood felt that it was an aggrieved party by the Footnotes 2 3 Submitted into the public record for item(s) PZ.1 on 12/13/2018 , City Clerk county's action in granting the zoning variance it should have sought appropriate review, if it had the requisite standing, as it contends. The original appeal was not prosecuted as a class action nor could it have been certified as a class action. Compare: Brown v. Wainwright, 392 So.2d 1327 (F1a.1981); Wags Transportation System, Inc., v. City of Miami Beach, 88 So.2d 751 (F1a.1956); State v. Purdy, 242 So.2d 498 (Fla. 3d DCA 1971); Kearney v. Saline, 208 So.2d 650 (Fla. 1st DCA 1968); Rule 1.220 Florida Rules of Civil Procedure. Class actions are normally instituted in a trial court and not in an appellate court. Therefore, we find the appellant's contention that it should recover herein on the basis that it is a member of a class, to be without merit. The other contentions advanced *1083 by Brynwood are also found to be without merit. Accordingly, the order dismissing the second amended complaint in intervention with prejudice is hereby affirmed. Affirmed. All Citations 436 So.2d 1080 Certain companion cases were also heard by this court. See Williams v. Harbour Club Villas Condominium Association, Inc., 436 So.2d 233 (Fla. 3d DCA 1983); Quayside Associates, Ltd., v. Harbour Club Villas Condominium, Inc., 419 So.2d 678 (Fla. 3d DCA 1982). Rule 1.230 FIa.R.Civ.P. Anyone claiming an interest in pending litigation may at any time be permitted to assert his right by intervention, but the intervention shall be in subordination to, and in recognition of, the propriety of the main proceeding, unless otherwise ordered by the court in its discretion. THIS CAUSE coming on to be heard before me, the undersigned Judge of the above entitled Court, on Motion to Dismiss filed by HARBOUR CLUB VILLAS CONDOMINIUM ASSOCIATION and QUAYSIDE ASSOCIATES, LTD., said motion being directed to the Second Amended Complaint in Intervention of BRYNWOOD CONDOMINIUM, INC., and the Court being duly advised and having heard argument of counsel, having examined the memoranda of law presented by the parties, finds as follows: 1. The Second Amended Complaint in Intervention filed by BRYNWOOD CONDOMINIUM, INC., basically seeks relief on grounds that HARBOUR CLUB VILLAS, et al., undertook to appeal a zoning decision granting certain variances to QUAYSIDE ASSOCIATES, LTD., for the construction of a high-rise project adjacent to HARBOUR CLUB VILLAS. HARBOUR CLUB VILLAS CONDOMINIUM ASSOCIATIONS, SHORES CONDOMINIUM ASSOCIATION, BISCAYNE PARK HOMEOWNERS ASSOCIATION, AUDUBON SOCIETY and others, and not BRYNWOOD CONDOMINIUM, INC., contributed to a fund and hired an attorney, Gary Brooks, to challenge the zoning variances granted by the Metropolitan Dade County Commission and to take all necessary appellate steps. The petition for common law certiorari taken by the technical appellant, HARBOUR CLUB VILLAS CONDOMINIUM ASSOCIATION, after the Circuit Court -Appellate division denied relief, was settled after oral argument but before the Third District Court of Appeal had ruled. HARBOUR CLUB VILLAS CONDOMINIUM and QUAYSIDE ASSOCIATES, LTD. signed a settlement agreement whereby HARBOUR CLUB VILLAS CONDOMINIUM ASSOCIATION received WESTLAW Brynwood Condominium, Inc. v. Harbour Club Villas..., 436 So.2d 1080 (1983) Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk three million dollars ($3,000,000.00). 2. BRYNWOOD CONDOMINIUM INC., Second Amended Complaint in intervention seeks to set aside the zoning variances granted to QUAYSIDE ASSOCIATES, LTD., or to participate in the three million dollars ($3,000,000.00) settlement monies. HARBOUR CLUB VILLAS and QUAYSIDE ASSOCIATES, LTD., move to dismiss the Second Amended Complaint in Intervention on the grounds: (1) the zoning issues and appeal were settled; (2) the appeal filed by HARBOUR CLUB VILLAS was not brought as a certified class action; (3) BRYNWOOD had no standing to contest the zoning issue and was not entitled to share in the settlement proceeds as a third party beneficiary. 3. In order to challenge the zoning variances afforded to QUAYSIDE, BRYNWOOD would have to allege that they suffered special damages different in kind, rather than different in degree, from those suffered by the community as a whole. Skaggs -Albertson P., Inc. v. Michaels (Michels] Belle. 8. L. (BI.J P., 322 [332] So.2d 113 (Fla. 2d DCA 1976); Skaggs Albertson v. ABC Liquors, Inc., 363 So.2d 1082 (FIa.1978). Because the Second Amended Complaint in Intervention does not allege special damages, BRYNWOOD had no right to challenge the original zoning and has no right here to claim an interest in the settlement proceeds. 4. Here, under the allegations of the Second Amended Complaint in Intervention, BRYNWOOD would not and does not have any right to bring the prior litigation. BRYNWOOD, unable to assert the doctrine of virtual representation, could not have been affected by the prior zoning litigation. The settlement of that litigation did not affect its rights. It has no rights to share in the proceeds of the settlement. Treasure Salvors, Inc. v. Unidentified Wrecked, etc., 599 [459] F.Supp. 607 [507] (S.D.FIa.1978), affd, State of Florida, Department of State v. Treasure Salvors, Inc., 621 F.2d 1340 (5th Cir.1980). 5. The Second Amended Complaint in Intervention fails to state a cause of action on a third party beneficiary theory. In order to fall within the third party rule, the contract must show a clear intent and purpose to benefit a specific third person. Marianna Lime Product, Co. v. McKay [109 Fla. 275], 147 So.2d 264 (FIa.1937 [1933] ): 11 FIa.Jur.2d, Contracts, Section 155 and cases cited therein. BRYNWOOD was not an intended beneficiary of the settlement agreement. Cherry Lake, Inc. v. Kreace (KearceJ, 26 So.2d 434 (FIa.1946). UPON the above, it is ORDERED that the Motion to dismiss filed by QUAYSIDE ASSOCIATES, LTD., and HARBOUR CLUB VILLAS CONDOMINIUM ASSOCIATION, be and the same is hereby granted. BRYNWOOD CONDOMINIUM, INC.'s Second Amended Complaint in Intervention is dismissed with prejudice. End of Document © 2018 Thomson Reuters. No claim to original U.S. Government Works. WESTLAW Brynwood Condominium, Inc. v. Harbour Club Villas..., 436 So.2d 1080 (1983) 436 So.2d 1080 District Court of Appeal of Florida, Third District. BRYNWOOD CONDOMINIUM, INC., Appellant, v. HARBOUR CLUB VILLAS CONDOMINIUM ASSOCIATION and Quayside Associates, Ltd., Appellees. No. 82-1592. Sept. 6,1983. Synopsis After condominium association achieved settlement in amount of $3 million in connection with action challenging zoning variances made in favor of real estate project, intervenor condominium association filed amended complaint for intervention, seeking to receive portion of settlement proceeds, injunction, and other general relief. The Circuit Court, Dade County, Jack M. Turner, J., granted motion to dismiss amended complaint in intervention, and intervenor appealed. The District Court of Appeal held that, as intervenor failed to appeal original zoning decision, did not allege that it was objector in zoning proceeding, and did not claim to have contributed to legal fund with plaintiffs who challenged original zoning decision, trial court did not err in dismissing with prejudice intervenor's amended complaint. Affirmed. West Headnotes (1) [1] Parties 'Interest in Subject of Action in General Where intervenor failed to appeal original zoning decision, did not allege that it was objector in zoning proceeding, and did not claim to have contributed to legal fund with plaintiffs who challenged original zoning decision, and zoning action was not instituted as class action, trial court did not err in dismissing with prejudice intervenor's amended complaint Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk seeking to receive portion of settlement proceeds, injunction, and other general relief. West's F.S.A. RCP Rules 1.220, 1.230. 1 Cases that cite this headnote Attorneys and Law Firms *1081 Shalle Stephen Fine, Coral Gables, for appellant. Lapidus & Stettin and Richard Lapidus, Miami, Ress, Gomez, Rosenberg and Howland and Sheldon Rosenberg, North Miami, for appellees. Before BARKDULL, HUBBART and DANIEL S. PEARSON, JJ. Opinion PER CURIAM. The Metropolitan Dade County Commission (Commission) authorized zoning variances in favor of Quayside, a real estate project. Two condominium associations, the Villas and the Shores, as well as certain individuals residing within 500 feet of Quayside, or within the nearby geographic area, joined together to fight the zoning variance. Representatives of these groups met with the law firm of Williams, Salomon, Kanner, Damian, Weissler & Brooks to commence legal proceedings for the purpose of appealing and having declared void the decision of the Commission. Their attorney appeared before the Commission and ultimately filed appeals with the circuit court and this court. These suits were instituted solely in the name of the Villas and the Shores with none of the individual residents named as plaintiffs. Prior to the determination of the appeal by this court, the Villas and the Shores independently settled with Quayside. The Villas' settlement was in the amount of $3,000,000. Quayside agreed to indemnify the Villas from any and all claims by persons not members of the Villas, who had contributed to the legal fees incurred in prosecuting the action and who might claim that the Villas should not have settled. The settlements resulted in the dismissal of the appeal and foreclosed any possibility that the individuals could obtain relief. WESTLAW Brynwood Condominium, Inc. v. Harbour Club Villas..., 436 So.2d 1080 (1983) Those individuals thereafter filed a seven -count complaint against the Villas, Shores, Quayside, and the lawyers. An appeal from dismissal of their complaint was reversed by this court in McIntosh v. Harbour Club Villas Condominium Association, 421 So.2d 10 (Fla. 3d DCA 1982).' During the progress of that cause in the trial court [McIntosh v. Harbour Club Villas Condominium Association, supra ] the appellant herein, Brynwood, intervened in the proceedings, not in recognition of the plaintiff therein,' and by their second amended complaint for intervention sought to receive a portion of the settlement proceeds, an injunction, and other general relief. Following argument the trial court granted a motion to dismiss the second amended complaint in intervention with prejudice.' We affirm. *1082 The initial proceeding in the circuit court was a certiorari proceeding pursuant to the applicable Metropolitan ordinance to review a zoning decision by the appropriate county authorities. Those persons who brought the initial appeal represented only themselves and they had a right to dismiss their litigation. If the intervenor was aggrieved by the zoning decision, it had a right to appeal. This it did not do. Brynwood did not allege that it was an objector in the zoning proceedings. It did not claim to have contributed to the legal fund. If Brynwood felt that it was an aggrieved party by the Footnotes 2 3 Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk county's action in granting the zoning variance it should have sought appropriate review, if it had the requisite standing, as it contends. The original appeal was not prosecuted as a class action nor could it have been certified as a class action. Compare: Brown v. Wainwright, 392 So.2d 1327 (F1a.1981); Wags Transportation System, Inc., v. City of Miami Beach, 88 So.2d 751 (F1a.1956); State v. Purdy, 242 So.2d 498 (Fla. 3d DCA 1971); Kearney v. Saline, 208 So.2d 650 (Fla. 1st DCA 1968); Rule 1.220 Florida Rules of Civil Procedure. Class actions are normally instituted in a trial court and not in an appellate court. Therefore, we find the appellant's contention that it should recover herein on the basis that it is a member of a class, to be without merit. The other contentions advanced *1083 by Brynwood are also found to be without merit. Accordingly, the order dismissing the second amended complaint in intervention with prejudice is hereby affirmed. Affirmed. All Citations 436 So.2d 1080 Certain companion cases were also heard by this court. See Williams v. Harbour Club Villas Condominium Association, Inc., 436 So.2d 233 (Fla. 3d DCA 1983); Quayside Associates, Ltd., v. Harbour Club Villas Condominium, Inc., 419 So.2d 678 (Fla. 3d DCA 1982). Rule 1.230 FIa.R.Civ.P. Anyone claiming an interest in pending litigation may at any time be permitted to assert his right by intervention, but the intervention shall be in subordination to, and in recognition of, the propriety of the main proceeding, unless otherwise ordered by the court in its discretion. THIS CAUSE coming on to be heard before me, the undersigned Judge of the above entitled Court, on Motion to Dismiss filed by HARBOUR CLUB VILLAS CONDOMINIUM ASSOCIATION and QUAYSIDE ASSOCIATES, LTD., said motion being directed to the Second Amended Complaint in Intervention of BRYNWOOD CONDOMINIUM, INC., and the Court being duly advised and having heard argument of counsel, having examined the memoranda of law presented by the parties, finds as follows: 1. The Second Amended Complaint in Intervention filed by BRYNWOOD CONDOMINIUM, INC., basically seeks relief on grounds that HARBOUR CLUB VILLAS, et al., undertook to appeal a zoning decision granting certain variances to QUAYSIDE ASSOCIATES, LTD., for the construction of a high-rise project adjacent to HARBOUR CLUB VILLAS. HARBOUR CLUB VILLAS CONDOMINIUM ASSOCIATIONS, SHORES CONDOMINIUM ASSOCIATION, BISCAYNE PARK HOMEOWNERS ASSOCIATION, AUDUBON SOCIETY and others, and not BRYNWOOD CONDOMINIUM, INC., contributed to a fund and hired an attorney, Gary Brooks, to challenge the zoning variances granted by the Metropolitan Dade County Commission and to take all necessary appellate steps. The petition for common law certiorari taken by the technical appellant, HARBOUR CLUB VILLAS CONDOMINIUM ASSOCIATION, after the Circuit Court -Appellate division denied relief, was settled after oral argument but before the Third District Court of Appeal had ruled. HARBOUR CLUB VILLAS CONDOMINIUM and QUAYSIDE ASSOCIATES, LTD. signed a settlement agreement whereby HARBOUR CLUB VILLAS CONDOMINIUM ASSOCIATION received Brynwood Condominium, Inc. v. Harbour Club Villas..., 436 So.2d 1080 (1983) Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk three million dollars ($3,000,000.00). 2. BRYNWOOD CONDOMINIUM INC., Second Amended Complaint in intervention seeks to set aside the zoning variances granted to QUAYSIDE ASSOCIATES, LTD., or to participate in the three million dollars ($3,000,000.00) settlement monies. HARBOUR CLUB VILLAS and QUAYSIDE ASSOCIATES, LTD., move to dismiss the Second Amended Complaint in Intervention on the grounds: (1) the zoning issues and appeal were settled; (2) the appeal filed by HARBOUR CLUB VILLAS was not brought as a certified class action; (3) BRYNWOOD had no standing to contest the zoning issue and was not entitled to share in the settlement proceeds as a third party beneficiary. 3. In order to challenge the zoning variances afforded to QUAYSIDE, BRYNWOOD would have to allege that they suffered special damages different in kind, rather than different in degree, from those suffered by the community as a whole. Skaggs -Albertson P., Inc. v. Michaels [Michels) Belle. B. L. (BI.) P., 322 [332] So.2d 113 (Fla. 2d DCA 1976); Skaggs -Albertson v. ABC Liquors, Inc., 363 So.2d 1082 (FIa.1978). Because the Second Amended Complaint in Intervention does not allege special damages, BRYNWOOD had no right to challenge the original zoning and has no right here to claim an interest in the settlement proceeds. 4. Here, under the allegations of the Second Amended Complaint in Intervention, BRYNWOOD would not and does not have any right to bring the prior litigation. BRYNWOOD, unable to assert the doctrine of virtual representation, could not have been affected by the prior zoning litigation. The settlement of that litigation did not affect its rights. It has no rights to share in the proceeds of the settlement. Treasure Salvors, Inc. v. Unidentified Wrecked, etc., 599 [459] F.Supp. 607 [507] (S.D.FIa.1978), affd, State of Florida, Department of State v. Treasure Salvors, Inc., 621 F.2d 1340 (5th Cir.1980). 5. The Second Amended Complaint in Intervention fails to state a cause of action on a third party beneficiary theory. In order to fall within the third party rule, the contract must show a clear intent and purpose to benefit a specific third person. Marianna Lime Product, Co. v. McKay [109 Fla. 275], 147 So.2d 264 (FIa.1937 [1933] ): 11 FIa.Jur.2d, Contracts, Section 155 and cases cited therein. BRYNWOOD was not an intended beneficiary of the settlement agreement. Cherry Lake, Inc. v. Kreace (Kearce], 26 So.2d 434 (FIa.1946). UPON the above, it is ORDERED that the Motion to dismiss filed by QUAYSIDE ASSOCIATES, LTD., and HARBOUR CLUB VILLAS CONDOMINIUM ASSOCIATION, be and the same is hereby granted. BRYNWOOD CONDOMINIUM, INC.'s Second Amended Complaint in Intervention is dismissed with prejudice. End of Document 2018 Thomson Reuters. No claim to original U.S. Government Works. WESTLAW Brynwood Condominium, Inc. v. Harbour Club Villas..., 436 So.2d 1080 (1983) 436 So.2d i080 District Court of Appeal of Florida, Third District. BRYNWOOD CONDOMINIUM, INC., Appellant, v. HARBOUR CLUB VILLAS CONDOMINIUM ASSOCIATION and Quayside Associates, Ltd., Appellees. No. 82-1592. Sept. 6, 1983. Synopsis After condominium association achieved settlement in amount of $3 million in connection with action challenging zoning variances made in favor of real estate project, intervenor condominium association filed amended complaint for intervention, seeking to receive portion of settlement proceeds, injunction, and other general relief. The Circuit Court, Dade County, Jack M. Turner, J., granted motion to dismiss amended complaint in intervention, and intervenor appealed. The District Court of Appeal held that, as intervenor failed to appeal original zoning decision, did not allege that it was objector in zoning proceeding, and did not claim to have contributed to legal fund with plaintiffs who challenged original zoning decision, trial court did not err in dismissing with prejudice intervenor's amended complaint. Affirmed. West Headnotes (1) [1) Parties 4'Interest in Subject of Action in General Where intervenor failed to appeal original zoning decision, did not allege that it was objector in zoning proceeding, and did not claim to have contributed to legal fund with plaintiffs who challenged original zoning decision, and zoning action was not instituted as class action, trial court did not err in dismissing with prejudice intervenor's amended complaint WESTLAW Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk seeking to receive portion of settlement proceeds, injunction, and other general relief. West's F.S.A. RCP Rules 1.220, 1.230. 1 Cases that cite this headnote Attorneys and Law Firms *1081 Shalle Stephen Fine, Coral Gables, for appellant. Lapidus & Stettin and Richard Lapidus, Miami, Ress, Gomez, Rosenberg and Howland and Sheldon Rosenberg, North Miami, for appellees. Before BARKDULL, HUBBART and DANIEL S. PEARSON, JJ. Opinion PER CURIAM. The Metropolitan Dade County Commission (Commission) authorized zoning variances in favor of Quayside, a real estate project. Two condominium associations, the Villas and the Shores, as well as certain individuals residing within 500 feet of Quayside, or within the nearby geographic area, joined together to fight the zoning variance. Representatives of these groups met with the law firm of Williams, Salomon, Kanner, Damian, Weissler & Brooks to commence legal proceedings for the purpose of appealing and having declared void the decision of the Commission. Their attorney appeared before the Commission and ultimately filed appeals with the circuit court and this court. These suits were instituted solely in the name of the Villas and the Shores with none of the individual residents named as plaintiffs. Prior to the determination of the appeal by this court, the Villas and the Shores independently settled with Quayside. The Villas' settlement was in the amount of $3,000,000. Quayside agreed to indemnify the Villas from any and all claims by persons not members of the Villas, who had contributed to the legal fees incurred in prosecuting the action and who might claim that the Villas should not have settled. The settlements resulted in the dismissal of the appeal and foreclosed any possibility that the individuals could obtain relief. Brynwood Condominium, Inc. v. Harbour Club Villas..., 436 So.2d 1080 (1983) Those individuals thereafter filed a seven -count complaint against the Villas, Shores, Quayside, and the lawyers. An appeal from dismissal of their complaint was reversed by this court in McIntosh v. Harbour Club Villas Condominium Association, 421 So.2d 10 (Fla. 3d DCA 1982).' During the progress of that cause in the trial court [McIntosh v. Harbour Club Villas Condominium Association, supra ] the appellant herein, Brynwood, intervened in the proceedings, not in recognition of the plaintiff therein,2 and by their second amended complaint for intervention sought to receive a portion of the settlement proceeds, an injunction, and other general relief. Following argument the trial court granted a motion to dismiss the second amended complaint in intervention with prejudice.' We affirm. *1082 The initial proceeding in the circuit court was a certiorari proceeding pursuant to the applicable Metropolitan ordinance to review a zoning decision by the appropriate county authorities. Those persons who brought the initial appeal represented only themselves and they had a right to dismiss their litigation. If the intervenor was aggrieved by the zoning decision, it had a right to appeal. This it did not do. Brynwood did not allege that it was an objector in the zoning proceedings. It did not claim to have contributed to the legal fund. If Brynwood felt that it was an aggrieved party by the Footnotes 2 3 Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk county's action in granting the zoning variance it should have sought appropriate review, if it had the requisite standing, as it contends. The original appeal was not prosecuted as a class action nor could it have been certified as a class action. Compare: Brown v. Wainwright, 392 So.2d 1327 (F1a.1981); Wags Transportation System, Inc., v. City of Miami Beach, 88 So.2d 751 (F1a.1956); State v. Purdy, 242 So.2d 498 (Fla. 3d DCA 1971); Kearney v. Saline, 208 So.2d 650 (Fla. 1st DCA 1968); Rule 1.220 Florida Rules of Civil Procedure. Class actions are normally instituted in a trial court and not in an appellate court. Therefore, we find the appellant's contention that it should recover herein on the basis that it is a member of a class, to be without merit. The other contentions advanced *1083 by Brynwood are also found to be without merit. Accordingly, the order dismissing the second amended complaint in intervention with prejudice is hereby affirmed. Affirmed. All Citations 436 So.2d 1080 Certain companion cases were also heard by this court. See Williams v. Harbour Club Villas Condominium Association, Inc., 436 So.2d 233 (Fla. 3d DCA 1983); Quayside Associates, Ltd., v. Harbour Club Villas Condominium, Inc., 419 So.2d 678 (Fla. 3d DCA 1982). Rule 1.230 FIa.R.Civ.P. Anyone claiming an interest in pending litigation may at any time be permitted to assert his right by intervention, but the intervention shall be in subordination to, and in recognition of, the propriety of the main proceeding, unless otherwise ordered by the court in its discretion. THIS CAUSE coming on to be heard before me, the undersigned Judge of the above entitled Court, on Motion to Dismiss filed by HARBOUR CLUB VILLAS CONDOMINIUM ASSOCIATION and QUAYSIDE ASSOCIATES, LTD., said motion being directed to the Second Amended Complaint in Intervention of BRYNWOOD CONDOMINIUM, INC., and the Court being duly advised and having heard argument of counsel, having examined the memoranda of law presented by the parties, finds as follows: 1. The Second Amended Complaint in Intervention filed by BRYNWOOD CONDOMINIUM, INC., basically seeks relief on grounds that HARBOUR CLUB VILLAS, et al., undertook to appeal a zoning decision granting certain variances to QUAYSIDE ASSOCIATES, LTD., for the construction of a high-rise project adjacent to HARBOUR CLUB VILLAS. HARBOUR CLUB VILLAS CONDOMINIUM ASSOCIATIONS, SHORES CONDOMINIUM ASSOCIATION, BISCAYNE PARK HOMEOWNERS ASSOCIATION, AUDUBON SOCIETY and others, and not BRYNWOOD CONDOMINIUM, INC., contributed to a fund and hired an attorney, Gary Brooks, to challenge the zoning variances granted by the Metropolitan Dade County Commission and to take all necessary appellate steps. The petition for common law certiorari taken by the technical appellant, HARBOUR CLUB VILLAS CONDOMINIUM ASSOCIATION, after the Circuit Court -Appellate division denied relief, was settled after oral argument but before the Third District Court of Appeal had ruled. HARBOUR CLUB VILLAS CONDOMINIUM and QUAYSIDE ASSOCIATES, LTD. signed a settlement agreement whereby HARBOUR CLUB VILLAS CONDOMINIUM ASSOCIATION received WESTLAW tav Brynwood Condominium, Inc. v. Harbour Club Villas..., 436 So.2d 1080 (1983) Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk three million dollars ($3,000,000.00). 2. BRYNWOOD CONDOMINIUM INC., Second Amended Complaint in intervention seeks to set aside the zoning variances granted to QUAYSIDE ASSOCIATES, LTD., or to participate in the three million dollars ($3,000,000.00) settlement monies. HARBOUR CLUB VILLAS and QUAYSIDE ASSOCIATES, LTD., move to dismiss the Second Amended Complaint in Intervention on the grounds: (1) the zoning issues and appeal were settled; (2) the appeal filed by HARBOUR CLUB VILLAS was not brought as a certified class action; (3) BRYNWOOD had no standing to contest the zoning issue and was not entitled to share in the settlement proceeds as a third party beneficiary. 3. In order to challenge the zoning variances afforded to QUAYSIDE, BRYNWOOD would have to allege that they suffered special damages different in kind, rather than different in degree, from those suffered by the community as a whole. Skaggs -Albertson P., Inc. v. Michaels [Michels] Belle. B. L. (BI.] P., 322 [332] So.2d 113 (Fla. 2d DCA 1976); Skaggs -Albertson v. ABC Liquors, Inc., 363 So.2d 1082 (FIa.1978). Because the Second Amended Complaint in Intervention does not allege special damages, BRYNWOOD had no right to challenge the original zoning and has no right here to claim an interest in the settlement proceeds. 4. Here, under the allegations of the Second Amended Complaint in Intervention, BRYNWOOD would not and does not have any right to bring the prior litigation. BRYNWOOD, unable to assert the doctrine of virtual representation, could not have been affected by the prior zoning litigation. The settlement of that litigation did not affect its rights. It has no rights to share in the proceeds of the settlement. Treasure Salvors, Inc. v. Unidentified Wrecked, etc., 599 [459] F.Supp. 607 [507] (S.D.FIa.1978), aft'd, State of Florida, Department of State v. Treasure Salvors, Inc., 621 F.2d 1340 (5th Cir.1980). 5. The Second Amended Complaint in Intervention fails to state a cause of action on a third party beneficiary theory. In order to fall within the third party rule, the contract must show a clear intent and purpose to benefit a specific third person. Marianna Lime Product, Co. v. McKay [109 Fla. 275], 147 So.2d 264 (FIa.1937 [1933] ): 11 FIa.Jur.2d, Contracts, Section 155 and cases cited therein. BRYNWOOD was not an intended beneficiary of the settlement agreement. Cherry Lake, Inc. v. Kreace (Kearce], 26 So.2d 434 (FIa.1946). UPON the above, it is ORDERED that the Motion to dismiss filed by QUAYSIDE ASSOCIATES, LTD., and HARBOUR CLUB VILLAS CONDOMINIUM ASSOCIATION, be and the same is hereby granted. BRYNWOOD CONDOMINIUM, INC.'s Second Amended Complaint in Intervention is dismissed with prejudice. End of Document © 2018 Thomson Reuters. No claim to original U.S. Government Works. WESTLAW Heatherwood Community Homeowners Ass'n, Inc. v. Florida..., 629 So.2d 928 (1993) 18 Fla. L. Weekly D2545 629 So.2d 928 District Court of Appeal of Florida, Fifth District. HEATHERWOOD COMMUNITY HOMEOWNERS ASSOC., INC., Appellant, v. FLORIDA ROCK INDUSTRIES, INC., etc., et al., Appellees. No. 93-67. Dec. 3, 1993. Rehearing Denied Jan. 20, 1994. Synopsis Homeowners' association sought to intervene in mining company's action against county to declare void an amendment to land use plan which would prevent mining on land owned by company. The Circuit Court, Citrus County, William F. Edwards, J., denied intervention. Association appealed. The District Court of Appeal, Rainwater, T., Associate Judge, held that association was not entitled to intervene since the only possible adverse effect that judgment could have on association would be to require it to be involved in representing its position in new hearings on amendment. Affirmed. West Headnotes (2) 11l 121 Parties Interest in subject of action in general General rule of intervention allows party to intervene where intervenor will either gain or lose by direct legal operation and effect of judgment. Cases that cite this headnote Zoning and Planning WESTLAW Submitted into the public record for item(s) PZ.1 on 12/13/2018 , City Clerk Intervention and new parties Association of homeowners whose property was adjacent to that of mining company was not entitled to intervene in action by company against county to declare void an amendment to land use plan which would prevent mining on land owned by company; only possible adverse effect that judgment could have on association would be to require it to be involved in representing its position in new hearings on amendment, and such interest would not support intervention. 1 Cases that cite this headnote Attorneys and Law Firms *929 Mary Ellen Shoemaker, Inverness, for appellant. Clark A. Stillwell, Brannen, Stillwell & Perrin, P.A., Inverness, for appellee Florida Rock Industries, Inc. No appearance for appellee, Citrus County. Opinion RAINWATER, T., Associate Judge. The Heatherwood Community Homeowners Association ["Heatherwood"] sought to intervene below in a declaratory judgment action filed by appellee, Florida Rock Industries, Inc. ["Florida Rock"], against Citrus County, challenging the validity of a Comprehensive Plan Amendment that prevented mining on certain property owned by Florida Rock. Florida Rock's complaint against Citrus County requested the court to declare an amendment to the County's Comprehensive Land Use Plan void ab initio on the ground that the amendment was instituted in violation of the Florida Sunshine Law. Additionally, Florida Rock alleged that the Citrus County commissioners engaged in illegal and improper ex parte communications with the general public relative to the amendment. Heatherwood sought intervention based on the following: the association consisted of homeowners whose property cs, Heatherwood Community Homeowners Ass'n, Inc. v. Florida..., 629 So.2d 928 (1993) 18 Fla. L. Weekly D2545 was adjacent to Florida Rock's property, and the property owners would be adversely affected by the trial court's granting the relief requested, because Florida Rock intended to mine within 200 feet of the homeowners' property. Florida Rock argued that Heatherwood's complaint for intervention relied on unsupported factual and conclusionary allegations of irreparable harm as a result of the potential invalidity on procedural grounds of the proposed Comprehensive Land Use Plan Amendment. Heatherwood has no claim to a lien upon the property as the litigation only involves issues of procedural defects in the county's Comprehensive Plan Amendment process. 111 121 The general rule of intervention allows a party to intervene where the intervenor will either gain or lose by the direct legal operation and effect of the judgment. Although Heatherwood was intensively involved in the original amendment process, there is no direct and immediate interest which the Interveners have in this Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk action. Furthermore, Heatherwood does not stand to gain or lose by the direct legal operation and effect of the judgment in this action. As in the case of Grimes v. Walton County, 591 So.2d 1091 (Fla. 1st DCA 1992), the only possible adverse effect that a judgment by the trial court could have on Heatherwood would be to require it to be involved in representing its position in new hearings on the amendment. This is not the kind of interest that will support intervention. AFFIRMED. GRIFFIN and THOMPSON, JJ., concur. All Citations 629 So.2d 928, 18 Fla. L. Weekly D2545 End of Document © 2018 Thomson Reuters. No claim to original U.S. Government Works. WESTLAW Heatherwood Community Homeowners Ass'n, Inc. v. Florida..., 629 So.2d 928 (1993) 18 Fla. L. Weekly D2545 629 So.2d 928 District Court of Appeal of Florida, Fifth District. HEATHERWOOD COMMUNITY HOMEOWNERS ASSOC., INC., Appellant, v. FLORIDA ROCK INDUSTRIES, INC., etc., et al., Appellees. No. 93-67. Dec. 3, 1993. Rehearing Denied Jan. 20, 1994. Synopsis Homeowners' association sought to intervene in mining company's action against county to declare void an amendment to land use plan which would prevent mining on land owned by company. The Circuit Court, Citrus County, William F. Edwards, J., denied intervention. Association appealed. The District Court of Appeal, Rainwater, T., Associate Judge, held that association was not entitled to intervene since the only possible adverse effect that judgment could have on association would be to require it to be involved in representing its position in new hearings on amendment. Affirmed. West Headnotes (2) II] Parties 6—Interest in subject of action in general General rule of intervention allows party to intervene where intervenor will either gain or lose by direct legal operation and effect of judgment. Cases that cite this headnote 1 2J Zoning and Planning WESTLAW Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk Intervention and new parties Association of homeowners whose property was adjacent to that of mining company was not entitled to intervene in action by company against county to declare void an amendment to land use plan which would prevent mining on land owned by company; only possible adverse effect that judgment could have on association would be to require it to be involved in representing its position in new hearings on amendment, and such interest would not support intervention. 1 Cases that cite this headnote Attorneys and Law Firms *929 Mary Ellen Shoemaker, Inverness, for appellant. Clark A. Stillwell, Brannen, Stillwell & Perrin, P.A., Inverness, for appellee Florida Rock Industries, Inc. No appearance for appellee, Citrus County. Opinion RAINWATER, T., Associate Judge. The Heatherwood Community Homeowners Association ["Heatherwood"] sought to intervene below in a declaratory judgment action filed by appellee, Florida Rock Industries, Inc. ["Florida Rock"], against Citrus County, challenging the validity of a Comprehensive Plan Amendment that prevented mining on certain property owned by Florida Rock. Florida Rock's complaint against Citrus County requested the court to declare an amendment to the County's Comprehensive Land Use Plan void ab initio on the ground that the amendment was instituted in violation of the Florida Sunshine Law. Additionally, Florida Rock alleged that the Citrus County commissioners engaged in illegal and improper ex parte communications with the general public relative to the amendment. Heatherwood sought intervention based on the following: the association consisted of homeowners whose property Heatherwood Community Homeowners Ass'n, Inc. v. Florida..., 629 So.2d 928 (1993) 18 Fla. L. Weekly D2545 was adjacent to Florida Rock's property, and the property owners would be adversely affected by the trial court's granting the relief requested, because Florida Rock intended to mine within 200 feet of the homeowners' property. Florida Rock argued that Heatherwood's complaint for intervention relied on unsupported factual and conclusionary allegations of irreparable harm as a result of the potential invalidity on procedural grounds of the proposed Comprehensive Land Use Plan Amendment. Heatherwood has no claim to a lien upon the property as the litigation only involves issues of procedural defects in the county's Comprehensive Plan Amendment process. lil 121 The general rule of intervention allows a party to intervene where the intervenor will either gain or lose by the direct legal operation and effect of the judgment. Although Heatherwood was intensively involved in the original amendment process, there is no direct and immediate interest which the intervenors have in this End of Document © 2018 Thomson Reuters. No claim to original U.S. Government Works. Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk action. Furthermore, Heatherwood does not stand to gain or lose by the direct legal operation and effect of the judgment in this action. As in the case of Grimes v. Walton County, 591 So.2d 1091 (Fla. 1st DCA 1992), the only possible adverse effect that a judgment by the trial court could have on Heatherwood would be to require it to be involved in representing its position in new hearings on the amendment. This is not the kind of interest that will support intervention. AFFIRMED. WESTLAW GRIFFIN and THOMPSON, JJ., concur. All Citations 629 So.2d 928, 18 Fla. L. Weekly D2545 Heatherwood Community Homeowners Ass'n, Inc. v. Florida..., 629 So.2d 928 (1993) 18 Fla. L. Weekly D2545 629 So.2d 928 District Court of Appeal of Florida, Fifth District. HEATHERWOOD COMMUNITY HOMEOWNERS ASSOC., INC., Appellant, v. FLORIDA ROCK INDUSTRIES, INC., etc., et al., Appellees. No. 93-67. Dec. 3, 1993. Rehearing Denied Jan. 2o, 1994. Synopsis Homeowners' association sought to intervene in mining company's action against county to declare void an amendment to land use plan which would prevent mining on land owned by company. The Circuit Court, Citrus County, William F. Edwards, J., denied intervention. Association appealed. The District Court of Appeal, Rainwater, T., Associate Judge, held that association was not entitled to intervene since the only possible adverse effect that judgment could have on association would be to require it to be involved in representing its position in new hearings on amendment. Affirmed. West Headnotes (2) 111 Parties ip.Interest in subject of action in general General rule of intervention allows party to intervene where intervenor will either gain or lose by direct legal operation and effect of judgment. Cases that cite this headnote 121 Zoning and Planning WESTLAW Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk -Intervention and new parties Association of homeowners whose property was adjacent to that of mining company was not entitled to intervene in action by company against county to declare void an amendment to land use plan which would prevent mining on land owned by company; only possible adverse effect that judgment could have on association would be to require it to be involved in representing its position in new hearings on amendment, and such interest would not support intervention. 1 Cases that cite this headnote Attorneys and Law Firms *929 Mary Ellen Shoemaker, Inverness, for appellant. Clark A. Stillwell, Brannen, Stillwell & Perrin, P.A., Inverness, for appellee Florida Rock Industries, Inc. No appearance for appellee, Citrus County. Opinion RAINWATER, T., Associate Judge. The Heatherwood Community Homeowners Association ["Heatherwood"] sought to intervene below in a declaratory judgment action filed by appellee, Florida Rock Industries, Inc. ["Florida Rock"], against Citrus County, challenging the validity of a Comprehensive Plan Amendment that prevented mining on certain property owned by Florida Rock. Florida Rock's complaint against Citrus County requested the court to declare an amendment to the County's Comprehensive Land Use Plan void ab initio on the ground that the amendment was instituted in violation of the Florida Sunshine Law. Additionally, Florida Rock alleged that the Citrus County commissioners engaged in illegal and improper ex parte communications with the general public relative to the amendment. Heatherwood sought intervention based on the following: the association consisted of homeowners whose property cw, Heatherwood Community Homeowners Ass'n, Inc. v. Florida..., 629 So.2d 928 (1993) 18 Fla. L. Weekly D2545 was adjacent to Florida Rock's property, and the property owners would be adversely affected by the trial court's granting the relief requested, because Florida Rock intended to mine within 200 feet of the homeowners' property. Florida Rock argued that Heatherwood's complaint for intervention relied on unsupported factual and conclusionary allegations of irreparable harm as a result of the potential invalidity on procedural grounds of the proposed Comprehensive Land Use Plan Amendment. Heatherwood has no claim to a lien upon the property as the litigation only involves issues of procedural defects in the county's Comprehensive Plan Amendment process. 111 121 The general rule of intervention allows a party to intervene where the intervenor will either gain or lose by the direct legal operation and effect of the judgment. Although Heatherwood was intensively involved in the original amendment process, there is no direct and immediate interest which the intervenors have in this End of Document © 2018 Thomson Reuters. No claim to original U.S. Government Works. Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk action. Furthermore, Heatherwood does not stand to gain or lose by the direct legal operation and effect of the judgment in this action. As in the case of Grimes v. Walton County, 591 So.2d 1091 (Fla. 1st DCA 1992), the only possible adverse effect that a judgment by the trial court could have on Heatherwood would be to require it to be involved in representing its position in new hearings on the amendment. This is not the kind of interest that will support intervention. AFFIRMED. GRIFFIN and THOMPSON, JJ., concur. All Citations 629 So.2d 928, 18 Fla. L. Weekly D2545 WESTLAW t Heatherwood Community Homeowners Ass'n, Inc. v. Florida..., 629 So.2d 928 (1993) 18 Fla. L. Weekly D2545 629 So.2d 928 District Court of Appeal of Florida, Fifth District. HEATHERWOOD COMMUNITY HOMEOWNERS ASSOC., INC., Appellant, v. FLORIDA ROCK INDUSTRIES, INC., etc., et al., Appellees. No. 93-67. Dec. 3, 1993. Rehearing Denied Jan. 20, 1994. Synopsis Homeowners' association sought to intervene in mining company's action against county to declare void an amendment to land use plan which would prevent mining on land owned by company. The Circuit Court, Citrus County, William F. Edwards, J., denied intervention. Association appealed. The District Court of Appeal, Rainwater, T., Associate Judge, held that association was not entitled to intervene since the only possible adverse effect that judgment could have on association would be to require it to be involved in representing its position in new hearings on amendment. Affirmed. West Headnotes (2) 1"1 Parties Interest in subject of action in general General rule of intervention allows party to intervene where intervenor will either gain or lose by direct legal operation and effect of judgment. Cases that cite this headnote 121 Zoning and Planning WESTLAW Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk Intervention and new parties Association of homeowners whose property was adjacent to that of mining company was not entitled to intervene in action by company against county to declare void an amendment to land use plan which would prevent mining on land owned by company; only possible adverse effect that judgment could have on association would be to require it to be involved in representing its position in new hearings on amendment, and such interest would not support intervention. 1 Cases that cite this headnote Attorneys and Law Firms *929 Mary Ellen Shoemaker, Inverness, for appellant. Clark A. Stillwell, Brannen, Stillwell & Perrin, P.A., Inverness, for appellee Florida Rock Industries, Inc. No appearance for appellee, Citrus County. Opinion RAINWATER, T., Associate Judge. The Heatherwood Community Homeowners Association ["Heatherwood"] sought to intervene below in a declaratory judgment action filed by appellee, Florida Rock Industries, Inc. ["Florida Rock"], against Citrus County, challenging the validity of a Comprehensive Plan Amendment that prevented mining on certain property owned by Florida Rock. Florida Rock's complaint against Citrus County requested the court to declare an amendment to the County's Comprehensive Land Use Plan void ab initio on the ground that the amendment was instituted in violation of the Florida Sunshine Law. Additionally, Florida Rock alleged that the Citrus County commissioners engaged in illegal and improper ex parte communications with the general public relative to the amendment. Heatherwood sought intervention based on the following: the association consisted of homeowners whose property 1 Heatherwood Community Homeowners Ass'n, Inc. v. Florida..., 629 So.2d 928 (1993) 18 Fla. L. Weekly D2545 was adjacent to Florida Rock's property, and the property owners would be adversely affected by the trial court's granting the relief requested, because Florida Rock intended to mine within 200 feet of the homeowners' property. Florida Rock argued that Heatherwood's complaint for intervention relied on unsupported factual and conclusionary allegations of irreparable harm as a result of the potential invalidity on procedural grounds of the proposed Comprehensive Land Use Plan Amendment. Heatherwood has no claim to a lien upon the property as the litigation only involves issues of procedural defects in the county's Comprehensive Plan Amendment process. l�l tZl The general rule of intervention allows a party to intervene where the intervenor will either gain or lose by the direct legal operation and effect of the judgment. Although Heatherwood was intensively involved in the original amendment process, there is no direct and immediate interest which the intervenors have in this Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk action. Furthermore, Heatherwood does not stand to gain or lose by the direct legal operation and effect of the judgment in this action. As in the case of Grimes v. Walton County, 591 So.2d 1091 (Fla. 1st DCA 1992), the only possible adverse effect that a judgment by the trial court could have on Heatherwood would be to require it to be involved in representing its position in new hearings on the amendment. This is not the kind of interest that will support intervention. AFFIRMED. GRIFFIN and THOMPSON, JJ., concur. All Citations 629 So.2d 928, 18 Fla. L. Weekly D2545 End of Document © 2018 Thomson Reuters. No claim to original U.S. Government Works. WESTLAW Heatherwood Community Homeowners Ass'n, Inc. v. Florida..., 629 So.2d 928 (1993) 18 Fla. L. Weekly D2545 629 So.2d 928 District Court of Appeal of Florida, Fifth District. HEATHERWOOD COMMUNITY HOMEOWNERS ASSOC., INC., Appellant, v. FLORIDA ROCK INDUSTRIES, INC., etc., et al., Appellees. No. 93-67. Dec. 3, 1993. Rehearing Denied Jan. 20, 1994. Synopsis Homeowners' association sought to intervene in mining company's action against county to declare void an amendment to land use plan which would prevent mining on land owned by company. The Circuit Court, Citrus County, William F. Edwards, J., denied intervention. Association appealed. The District Court of Appeal, Rainwater, T., Associate Judge, held that association was not entitled to intervene since the only possible adverse effect that judgment could have on association would be to require it to be involved in representing its position in new hearings on amendment. Affirmed. West Headnotes (2) Ill Parties Interest in subject of action in general General rule of intervention allows party to intervene where intervenor will either gain or lose by direct legal operation and effect of judgment. Cases that cite this headnote Izj Zoning and Planning WESTLAW ._ Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk 0-Intervention and new parties Association of homeowners whose property was adjacent to that of mining company was not entitled to intervene in action by company against county to declare void an amendment to land use plan which would prevent mining on land owned by company; only possible adverse effect that judgment could have on association would be to require it to be involved in representing its position in new hearings on amendment, and such interest would not support intervention. 1 Cases that cite this headnote Attorneys and Law Firms *929 Mary Ellen Shoemaker, Inverness, for appellant. Clark A. Stillwell, Brannen, Stillwell & Perrin, P.A., Inverness, for appellee Florida Rock Industries, Inc. No appearance for appellee, Citrus County. Opinion RAINWATER, T., Associate Judge. The Heatherwood Community Homeowners Association ["Heatherwood"] sought to intervene below in a declaratory judgment action filed by appellee, Florida Rock Industries, Inc. ["Florida Rock"], against Citrus County, challenging the validity of a Comprehensive Plan Amendment that prevented mining on certain property owned by Florida Rock. Florida Rock's complaint against Citrus County requested the court to declare an amendment to the County's Comprehensive Land Use Plan void ab initio on the ground that the amendment was instituted in violation of the Florida Sunshine Law. Additionally, Florida Rock alleged that the Citrus County commissioners engaged in illegal and improper ex parte communications with the general public relative to the amendment. Heatherwood sought intervention based on the following: the association consisted of homeowners whose property Heatherwood Community Homeowners Ass'n, Inc. v. Florida..., 629 So.2d 928 (1993) 18 Fla. L. Weekly D2545 was adjacent to Florida Rock's property, and the property owners would be adversely affected by the trial court's granting the relief requested, because Florida Rock intended to mine within 200 feet of the homeowners' property. Florida Rock argued that Heatherwood's complaint for intervention relied on unsupported factual and conclusionary allegations of irreparable harm as a result of the potential invalidity on procedural grounds of the proposed Comprehensive Land Use Plan Amendment. Heatherwood has no claim to a lien upon the property as the litigation only involves issues of procedural defects in the county's Comprehensive Plan Amendment process. 111 121 The general rule of intervention allows a party to intervene where the intervenor will either gain or lose by the direct legal operation and effect of the judgment. Although Heatherwood was intensively involved in the original amendment process, there is no direct and immediate interest which the intervenors have in this End of Document © 2018 Thomson Reuters. No claim to original U.S. Government Works. Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk action. Furthermore, Heatherwood does not stand to gain or lose by the direct legal operation and effect of the judgment in this action. As in the case of Grimes v. Walton County, 591 So.2d 1091 (Fla. 1st DCA 1992), the only possible adverse effect that a judgment by the trial court could have on Heatherwood would be to require it to be involved in representing its position in new hearings on the amendment. This is not the kind of interest that will support intervention. AFFIRMED. GRIFFIN and THOMPSON, JJ., concur. All Citations 629 So.2d 928, 18 Fla. L. Weekly D2545 WESTLAW Heatherwood Community Homeowners Ass'n, Inc. v. Florida..., 629 So.2d 928 (1993) 18 Fla. L. Weekly D2545 629 So.2d 928 District Court of Appeal of Florida, Fifth District. HEATHERWOOD COMMUNITY HOMEOWNERS ASSOC., INC., Appellant, v. FLORIDA ROCK INDUSTRIES, INC., etc., et al., Appellees. No. 93-67. Dec. 3, 1993. Rehearing Denied Jan. 20, 1994. Synopsis Homeowners' association sought to intervene in mining company's action against county to declare void an amendment to land use plan which would prevent mining on land owned by company. The Circuit Court, Citrus County, William F. Edwards, J., denied intervention. Association appealed. The District Court of Appeal, Rainwater, T., Associate Judge, held that association was not entitled to intervene since the only possible adverse effect that judgment could have on association would be to require it to be involved in representing its position in new hearings on amendment. Affirmed. West Headnotes (2) 121 Parties Interest in subject of action in general General rule of intervention allows party to intervene where intervenor will either gain or lose by direct legal operation and effect of judgment. Cases that cite this headnote Zoning and Planning WESTLAW Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk Intervention and new parties Association of homeowners whose property was adjacent to that of mining company was not entitled to intervene in action by company against county to declare void an amendment to land use plan which would prevent mining on land owned by company; only possible adverse effect that judgment could have on association would be to require it to be involved in representing its position in new hearings on amendment, and such interest would not support intervention. 1 Cases that cite this headnote Attorneys and Law Firms *929 Mary Ellen Shoemaker, Inverness, for appellant. Clark A. Stillwell, Brannen, Stillwell & Perrin, P.A., Inverness, for appellee Florida Rock Industries, Inc. No appearance for appellee, Citrus County. Opinion RAINWATER, T., Associate Judge. The Heatherwood Community Homeowners Association ["Heatherwood"] sought to intervene below in a declaratory judgment action filed by appellee, Florida Rock Industries, Inc. ["Florida Rock"], against Citrus County, challenging the validity of a Comprehensive Plan Amendment that prevented mining on certain property owned by Florida Rock. Florida Rock's complaint against Citrus County requested the court to declare an amendment to the County's Comprehensive Land Use Plan void ab initio on the ground that the amendment was instituted in violation of the Florida Sunshine Law. Additionally, Florida Rock alleged that the Citrus County commissioners engaged in illegal and improper ex parte communications with the general public relative to the amendment. Heatherwood sought intervention based on the following: the association consisted of homeowners whose property Heatherwood Community Homeowners Ass'n, Inc. v. Florida..., 629 So.2d 928 (1993) 18 Fla. L. Weekly D2545 was adjacent to Florida Rock's property, and the property owners would be adversely affected by the trial court's granting the relief requested, because Florida Rock intended to mine within 200 feet of the homeowners' property. Florida Rock argued that Heatherwood's complaint for intervention relied on unsupported factual and conclusionary allegations of irreparable harm as a result of the potential invalidity on procedural grounds of the proposed Comprehensive Land Use Plan Amendment. Heatherwood has no claim to a lien upon the property as the litigation only involves issues of procedural defects in the county's Comprehensive Plan Amendment process. (11 121 The general rule of intervention allows a party to intervene where the intervenor will either gain or lose by the direct legal operation and effect of the judgment. Although Heatherwood was intensively involved in the original amendment process, there is no direct and immediate interest which the intervenors have in this End of Document © 2018 Thomson Reuters. No claim to original U.S. Govemment Works. Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk WESTLAW action. Furthermore, Heatherwood does not stand to gain or lose by the direct legal operation and effect of the judgment in this action. As in the case of Grimes v. Walton County, 591 So.2d 1091 (Fla. 1st DCA 1992), the only possible adverse effect that a judgment by the trial court could have on Heatherwood would be to require it to be involved in representing its position in new hearings on the amendment. This is not the kind of interest that will support intervention. AFFIRMED. GRIFFIN and THOMPSON, JJ., concur. All Citations 629 So.2d 928, 18 Fla. L. Weekly D2545 Heatherwood Community Homeowners Ass'n, Inc. v. Florida..., 629 So.2d 928 (1993) 18 Fla. L. Weekly D2545 629 So.2d 928 District Court of Appeal of Florida, Fifth District. HEATHERWOOD COMMUNITY HOMEOWNERS ASSOC., INC., Appellant, v. FLORIDA ROCK INDUSTRIES, INC., etc., et al., Appellees. No. 93-67. Dec. 3, 1993. Rehearing Denied Jan. 20, 1994. Synopsis Homeowners' association sought to intervene in mining company's action against county to declare void an amendment to land use plan which would prevent mining on land owned by company. The Circuit Court, Citrus County, William F. Edwards, J., denied intervention. Association appealed. The District Court of Appeal, Rainwater, T., Associate Judge, held that association was not entitled to intervene since the only possible adverse effect that judgment could have on association would be to require it to be involved in representing its position in new hearings on amendment. Affirmed. West Headnotes (2) 111 Parties io-Interest in subject of action in general General rule of intervention allows party to intervene where intervenor will either gain or lose by direct legal operation and effect of judgment. Cases that cite this headnote 12J Zoning and Planning WESTLAW Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk '.Intervention and new parties Association of homeowners whose property was adjacent to that of mining company was not entitled to intervene in action by company against county to declare void an amendment to land use plan which would prevent mining on land owned by company; only possible adverse effect that judgment could have on association would be to require it to be involved in representing its position in new hearings on amendment, and such interest would not support intervention. 1 Cases that cite this headnote Attorneys and Law Firms *929 Mary Ellen Shoemaker, Inverness, for appellant. Clark A. Stillwell, Brannen, Stillwell & Perrin, P.A., Inverness, for appellee Florida Rock Industries, Inc. No appearance for appellee, Citrus County. Opinion RAINWATER, T., Associate Judge. The Heatherwood Community Homeowners Association ["Heatherwood"] sought to intervene below in a declaratory judgment action filed by appellee, Florida Rock Industries, Inc. ["Florida Rock"], against Citrus County, challenging the validity of a Comprehensive Plan Amendment that prevented mining on certain property owned by Florida Rock. Florida Rock's complaint against Citrus County requested the court to declare an amendment to the County's Comprehensive Land Use Plan void ab initio on the ground that the amendment was instituted in violation of the Florida Sunshine Law. Additionally, Florida Rock alleged that the Citrus County commissioners engaged in illegal and improper ex parte communications with the general public relative to the amendment. Heatherwood sought intervention based on the following: the association consisted of homeowners whose property 4w Heatherwood Community Homeowners Ass'n, Inc. v. Florida..., 629 So.2d 928 (1993) 18 Fla. L. Weekly D2545 was adjacent to Florida Rock's property, and the property owners would be adversely affected by the trial court's granting the relief requested, because Florida Rock intended to mine within 200 feet of the homeowners' property. Florida Rock argued that Heatherwood's complaint for intervention relied on unsupported factual and conclusionary allegations of irreparable harm as a result of the potential invalidity on procedural grounds of the proposed Comprehensive Land Use Plan Amendment. Heatherwood has no claim to a lien upon the property as the litigation only involves issues of procedural defects in the county's Comprehensive Plan Amendment process. 111 121 The general rule of intervention allows a party to intervene where the intervenor will either gain or lose by the direct legal operation and effect of the judgment. Although Heatherwood was intensively involved in the original amendment process, there is no direct and immediate interest which the intervenors have in this End of Document © 2018 Thomson Reuters. No claim to original U.S. Government Works. Submitted into the public record for item(s) PZ.1 . on 12/13/2018 City Clerk action. Furthermore, Heatherwood does not stand to gain or lose by the direct legal operation and effect of the judgment in this action. As in the case of Grimes v. Walton County, 591 So.2d 1091 (Fla. 1st DCA 1992), the only possible adverse effect that a judgment by the trial court could have on Heatherwood would be to require it to be involved in representing its position in new hearings on the amendment. This is not the kind of interest that will support intervention. AFFIRMED. GRIFFIN and THOMPSON, JJ., concur. All Citations 629 So.2d 928, 18 Fla. L. Weekly D2545 WESTLAW Ntorsp- 4.„ Heatherwood Community Homeowners Ass'n, Inc. v. Florida..., 629 So.2d 928 (1993) 18 Fla. L. Weekly D2545 was adjacent to Florida Rock's property, and the property owners would be adversely affected by the trial court's granting the relief requested, because Florida Rock intended to mine within 200 feet of the homeowners' property. Florida Rock argued that Heatherwood's complaint for intervention relied on unsupported factual and conclusionary allegations of irreparable harm as a result of the potential invalidity on procedural grounds of the proposed Comprehensive Land Use Plan Amendment. Heatherwood has no claim to a lien upon the property as the litigation only involves issues of procedural defects in the county's Comprehensive Plan Amendment process. 111 121 The general rule of intervention allows a party to intervene where the intervenor will either gain or lose by the direct legal operation and effect of the judgment. Although Heatherwood was intensively involved in the original amendment process, there is no direct and immediate interest which the intervenors have in this End of Document © 2018 Thomson Reuters. No claim to original U.S. Government Works. Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk action. Furthermore, Heatherwood does not stand to gain or lose by the direct legal operation and effect of the judgment in this action. As in the case of Grimes v. Walton County, 591 So.2d 1091 (Fla. 1st DCA 1992), the only possible adverse effect that a judgment by the trial court could have on Heatherwood would be to require it to be involved in representing its position in new hearings on the amendment. This is not the kind of interest that will support intervention. AFFIRMED. WESTLAW GRIFFIN and THOMPSON, JJ., concur. All Citations 629 So.2d 928, 18 Fla. L. Weekly D2545 Heatherwood Community Homeowners Ass'n, Inc. v. Florida..., 629 So.2d 928 (1993) 18 Fla. L. Weekly D2545 629 So.2d 928 District Court of Appeal of Florida, Fifth District. HEATHERWOOD COMMUNITY HOMEOWNERS ASSOC., INC., Appellant, v. FLORIDA ROCK INDUSTRIES, INC., etc., et al., Appellees. No. 93-67. Dec. 3, 1993. Rehearing Denied Jan. 20, 1994. Synopsis Homeowners' association sought to intervene in mining company's action against county to declare void an amendment to land use plan which would prevent mining on land owned by company. The Circuit Court, Citrus County, William F. Edwards, J., denied intervention. Association appealed. The District Court of Appeal, Rainwater, T., Associate Judge, held that association was not entitled to intervene since the only possible adverse effect that judgment could have on association would be to require it to be involved in representing its position in new hearings on amendment. Affirmed. West Headnotes (2) 111 12) Parties Interest in subject of action in general General rule of intervention allows party to intervene where intervenor will either gain or lose by direct legal operation and effect of judgment. Cases that cite this headnote Zoning and Planning WESTLAW Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk Intervention and new parties Association of homeowners whose property was adjacent to that of mining company was not entitled to intervene in action by company against county to declare void an amendment to land use plan which would prevent mining on land owned by company; only possible adverse effect that judgment could have on association would be to require it to be involved in representing its position in new hearings on amendment, and such interest would not support intervention. 1 Cases that cite this headnote Attorneys and Law Firms *929 Mary Ellen Shoemaker, Inverness, for appellant. Clark A. Stillwell, Brannen, Stillwell & Perrin, P.A., Inverness, for appellee Florida Rock Industries, Inc. No appearance for appellee, Citrus County. Opinion RAINWATER, T., Associate Judge. The Heatherwood Community Homeowners Association ["Heatherwood"] sought to intervene below in a declaratory judgment action filed by appellee, Florida Rock Industries, Inc. ["Florida Rock"], against Citrus County, challenging the validity of a Comprehensive Plan Amendment that prevented mining on certain property owned by Florida Rock. Florida Rock's complaint against Citrus County requested the court to declare an amendment to the County's Comprehensive Land Use Plan void ab initio on the ground that the amendment was instituted in violation of the Florida Sunshine Law. Additionally, Florida Rock alleged that the Citrus County commissioners engaged in illegal and improper ex parte communications with the general public relative to the amendment. Heatherwood sought intervention based on the following: the association consisted of homeowners whose property Heatherwood Community Homeowners Ass'n, Inc. v. Florida..., 629 So.2d 928 (1993) 18 Fla. L. Weekly D2545 was adjacent to Florida Rock's property, and the property owners would be adversely affected by the trial court's granting the relief requested, because Florida Rock intended to mine within 200 feet of the homeowners' property. Florida Rock argued that Heatherwood's complaint for intervention relied on unsupported factual and conclusionary allegations of irreparable harm as a result of the potential invalidity on procedural grounds of the proposed Comprehensive Land Use Plan Amendment. Heatherwood has no claim to a lien upon the property as the litigation only involves issues of procedural defects in the county's Comprehensive Plan Amendment process. 111 121 The general rule of intervention allows a party to intervene where the intervenor will either gain or lose by the direct legal operation and effect of the judgment. Although Heatherwood was intensively involved in the original amendment process, there is no direct and immediate interest which the intervenors have in this End of Document © 2018 Thomson Reuters. No claim to original U.S. Government Works. Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk action. Furthermore, Heatherwood does not stand to gain or lose by the direct legal operation and effect of the judgment in this action. As in the case of Grimes v. Walton County, 591 So.2d 1091 (Fla. 1st DCA 1992), the only possible adverse effect that a judgment by the trial court could have on Heatherwood would be to require it to be involved in representing its position in new hearings on the amendment. This is not the kind of interest that will support intervention. AFFIRMED. GRIFFIN and THOMPSON, JJ., concur. All Citations 629 So.2d 928, 18 Fla. L. Weekly D2545 WESTLAW City of Ft. Myers v. Splitt, 988 So.2d 28 (2008) 33 Fla. L. Weekly D1673 988 So.2d 28 District Court of Appeal of Florida, Second District. CITY OF FORT MYERS, a Florida municipal corporation, Petitioner, v. Virginia SPLITT, individually, Caloosahatchee River Citizens Association, Inc., a Florida not for profit corporation, Responsible Growth Management Coalition, Inc., a Florida not for profit corporation, Environmental Confederation of Southwest Florida, Inc., a Florida not for profit corporation, and Throgmartin Riverfront Corporation, a Florida corporation, Respondents. No. 2D07-5469. June 27, 2008. Rehearing Denied Aug. 21, 2008. Synopsis Background: Individual and two organizations filed petition for writ of certiorari, challenging three city ordinances relating to a proposed planned unit development (PUD) adjacent to a park. The Twentieth Judicial Circuit Court, Lee County, sitting in its appellate capacity, quashed one of the ordinances. City filed petition for writ of certiorari. Holdings: The District Court of Appeal, Canady, J., held that: 1i1 standing requirements in statute governing challenges to the consistency of a development order with a comprehensive plan did not apply, and 121 trial court could not evaluate standing on the basis of allegations in the certiorari petition. Petition granted, order quashed in part. West Headnotes (8) WESTLAW 111 121 131 141 Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk Certiorari 0.-Scope and extent of review in general In a second -tier certiorari proceeding with respect to a quasi-judicial decision of a local governmental entity, the district court's review of the circuit court's judgment is limited to whether the circuit court afforded procedural due process and applied the correct law. U.S.C.A. Const.Amend. 14. Cases that cite this headnote Certiorari -Scope and extent of review in general On second -tier certiorari review a district court is simply deciding whether the lower court departed from the essential requirements of law. Cases that cite this headnote Certiorari 411w-Determination and disposition of cause The appellate court has no power in exercising its jurisdiction in certiorari to enter a judgment on the merits of the controversy under consideration nor to direct the entry of any particular order or judgment. Cases that cite this headnote Zoning and Planning 0-Private persons Under the "special damages" standard for evaluating standing to enforce a valid zoning ordinance, an individual does not have standing to sue unless he can show special damages peculiar to himself differing in kind as distinguished from damages differing in degree City of Ft. Myers v. Splitt, 988 So.2d 28 (2008) 33 Fla. L. Weekly D1673 151 161 171 suffered by the community as a whole. Cases that cite this headnote Zoning and Planning ...Right of Review; Standing Statute governing challenges to the consistency of a development order with a comprehensive plan, which granted standing to any person with an adverse interest that exceeded in degree the general interest shared by all persons, did not apply to challenge by individual and two organizations to city ordinances relating to a proposed planned unit development (PUD) adjacent to a park, where individual and organizations voluntarily dismissed their claim for a determination that the ordinances were inconsistent with city's comprehensive plan. West's F.S.A. § 163.3215(2, 3). 2 Cases that cite this headnote Zoning and Planning 4-Right of Review; Standing Trial court in certiorari proceeding challenging city ordinances relating to proposed planned unit development (PUD) adjacent to a park could not evaluate petitioners' standing on the basis of their allegations in the certiorari petition, but rather court's review was limited to the record of the underlying city proceedings. Cases that cite this headnote Certiorari .-Scope and Extent in General The rule in certiorari proceedings is that the reviewing court's consideration shall be confined strictly and solely to the record of proceedings by the agency or board on which 181 Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk the questioned Cases that cite order is based. this headnote Certiorari Persons Entitled The rule that the reviewing court's consideration in certiorari cases shall be confined strictly and solely to the record of proceedings by the agency or board on which the questioned order is based controls the determination of the factual basis establishing standing to initiate a certiorari proceeding in the circuit court. Cases that cite this headnote Attorneys and Law Firms *30 Nancy E. Stroud and Gary K. Oldehoff of Lewis, Stroud and Deutsch, P.L., Boca Raton, and Grant W. Alley, City Attorney, Fort Myers, for Petitioner. Andrew W.J. Dickman of Andrew Dickman, P.A., Naples, for Respondents Virginia Splitt, Caloosahatchee River Citizens Association, Inc., and Responsible Growth Management Coalition, Inc. No Appearance for Respondents Environmental Confederation of Southwest Florida, Inc., and Throgmartin Riverfront Corporation. Opinion CANADY, Judge. In this certiorari proceeding initiated by the City of Fort Myers, we consider whether the circuit court applied the wrong law regarding standing in issuing a writ of certiorari quashing an ordinance adopted by the City. For the reasons we explain, we conclude that the City is entitled to relief. WESTLAW City of Ft. Myers v. Splitt, 988 So.2d 28 (2008) 33 Fla. L. Weekly D1673 I. Background The respondents here, Virginia Splitt, Caloosahatchee River Citizens Association, Inc., and Responsible Growth Management Coalition, Inc. (referred to hereafter collectively as Mrs. Splitt et al.), appeared in the course of proceedings before the City related to a proposed planned unit development (PUD) for a multiuse project known as "The Vue" to be located on riverfront lands adjacent to Centennial Park. The interest asserted by Mrs. Splitt et al. in the proceedings before the City related primarily to their concerns regarding the public enjoyment of Centennial Park. At the hearings before the City, Mrs. Splitt personally only argued (1) that a tree had been planted in the park in memory of her husband and she did not want it moved and (2) that no part of the park should be turned over to private enterprise. The Caloosahatchee River Citizens Association argued in turn that it was concerned that people who purchased condominiums in the buildings which were part of the PUD would object to noise and traffic from festivals held in the park. The Association also asserted that it was "echoing" the objections raised by other citizens. The Association did not specify which objections it was adopting, but the objections made related to (1) the size of the PUD, (2) the fact that people would complain about noise and traffic, (3) increases in intensity and density, (4) elimination of public use of the land since the park would be in the backyard of the condominium purchasers, (5) overburdening of the city's street system, and (6) overburdening of the wastewater treatment system. The Responsible Growth Management Coalition objected only on the basis of the size of the PUD and the fact that city garbage trucks would have to use access roads to pick up the trash at the PUD. Mrs. Splitt et al. filed a certiorari petition in the circuit court challenging three ordinances adopted by the City concerning "The Vue" PUD project. Initially, Mrs. Splitt et al. also filed a declaratory judgment action seeking a determination that the ordinances were inconsistent with the City's comprehensive plan. That action was, however, voluntarily dismissed. The thrust of the certiorari petition was that the ordinances did not comply with the PUD criteria and other requirements applicable under the City's zoning ordinances. The circuit court denied the petition with respect to two of the challenged ordinances but granted it with respect to the third ordinance, ordinance 3366, which was adopted January 11, 2007. *31 In the circuit court, the City challenged the standing of Mrs. Splitt et al. on the ground that they had failed to establish in the record of the proceedings before the City that they had standing under the "special damages" standing test articulated in Renard v. Dade County, 261 WESTLAW Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk So.2d 832, 837 (F1a.1972), for challenges seeking to enforce valid zoning ordinances. Mrs. Splitt et al. conceded that the Renard standard was applicable but contended that the allegations of their petition were sufficient to establish their standing under Renard. The circuit court concluded, however, that the question of standing was governed not by the Renard standard but by the provisions of section 163.3215, Florida Statutes (2006), regarding challenges to the consistency of a development order with a comprehensive plan. Based on the application of section 163.3215, the circuit court determined that -according to the allegations of their petition in the circuit court -Mrs. Splitt et al. had the requisite standing. The City now contends that the circuit court's decision granting relief with respect to ordinance 3366 should be quashed because the circuit court applied the wrong law with respect to the test for standing and thus departed from the essential requirements of law. The City also contends that the circuit court applied the wrong law by not requiring that the facts establishing standing appear in the record of the proceedings before the City. II. Analysis Both parties acknowledge that the decision of the City at issue here was a quasi-judicial decision rather than a legislative decision and thus subject to challenge in the circuit court by way of certiorari. See Park of Commerce Assocs. v. City of Delray Beach, 636 So.2d 12 (F1a.1994). A. Standard of Review Ili 121 In a second -tier certiorari proceeding with respect to a quasi-judicial decision of a local governmental entity, the district court's review of the circuit court's judgment is limited to " '[1] whether the circuit court afforded procedural due process and [2] applied the correct law.' " Broward County v. G.B.V. Intl, Ltd., 787 So.2d 838, 843 (F1a.2001) (alterations in original) (quoting City of Deerfield Beach v. Vaillant, 419 So.2d 624, 626 (F1a.1982)). In utilizing this two-part standard, a district court is simply "deciding whether the lower court `departed from the essential requirements of law.' " Id. at City of Ft. Myers v. Splitt, 988 So.2d 28 (2008) 33 Fla. L. Weekly D1673 843 n. 16 (quoting Haines City Cmty. Dev. v. Heggs, 658 So.2d 523, 530 (F1a.1995)). 131 " 'The appellate court has no power in exercising its jurisdiction in certiorari to enter a judgment on the merits of the controversy under consideration nor to direct the [entry of] any particular order or judgment.' " G.B. V. Intl, Ltd., 787 So.2d at 844 (quoting Tamiami Trail Tours v. R.R. Comm'n, 128 Fla. 25, 174 So. 451, 454 (1937) (on rehearing)). B. The Applicable Law of Standing The section 163.3215 standard for standing applied by the trial court govems de novo challenges to "the consistency of a development order with a comprehensive plan." § 163.3215(1). Under the statute, "[a]ny aggrieved or adversely affected party may maintain a de novo action for declaratory, injunctive, or other relief" with regard to "a development order ... which materially alters the use or density or intensity of use on a particular piece of property which is not consistent with the comprehensive plan." § 163.3215(3). The statute defines "aggrieved or adversely affected party" to mean *32 any person or local government that will suffer an adverse effect to an interest protected or furthered by the local government comprehensive plan, including interests related to health and safety, police and fire protection service systems, densities or intensities of development, transportation facilities, health care facilities, equipment or services, and environmental or natural resources. The alleged adverse interest may be shared in common with other members of the community at large but must exceed in degree the general interest in community good shared by all persons. The term includes the owner, developer, WESTLAW Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk or applicant for a development order. § 163.3215(2) (emphasis added). 141 The Renard standard for "standing to enforce a valid zoning ordinance" requires a showing of "special damages." 261 So.2d at 837. The "special damages" rule is derived from "the law of public nuisance." Id. at 835 (citing Boucher v. Novotny, 102 So.2d 132 (F1a.1958)). Under this standard, an individual does not have standing to sue unless he can show " `special damages peculiar to himself differing in kind as distinguished from damages differing in degree suffered by the community as a whole.' " Renard, 261 So.2d at 835 (quoting Boucher, 102 So.2d at 135). It has repeatedly been acknowledged that the standing provisions of section 163.3215 were adopted to liberalize the standing requirements that would otherwise be applicable. See Parker v. Leon County, 627 So.2d 476, 479 (F1a.1993); Stranahan House, Inc. v. City of Fort Lauderdale, 967 So.2d 427, 433 (Fla. 4th DCA 2007); Payne v. City of Miami, 927 So.2d 904, 907 (Fla. 3d DCA 2005); PinecrestLakes, Inc. v. Shidel, 795 So.2d 191, 200 (Fla. 4th DCA 2001); Putnam County Envtl. Council, Inc. v. Bd. of County Comm'rs, 757 So.2d 590, 593 (Fla. 5th DCA 2000); Sw. Ranches Homeowners Ass v. Broward County, 502 So.2d 931, 935 (Fla. 4th DCA 1987). The difference between the section 163.3215 standard and the Renard special damages test is immediately apparent. Under section 163.3215(2), standing may be based on the showing of an adverse effect on an interest that "exceed[s] in degree the general interest in community good shared by all persons." (Emphasis added.) The more restrictive Renard standard requires a showing of special damages " `differing in kind as distinguished from damages differing in degree suffered by the community as a whole.' " 261 So.2d at 835 (emphasis added) (quoting Boucher, 102 So.2d at 135). 151 Here, Mrs. Splitt et al. voluntarily abandoned any comprehensive plan consistency challenge to the ordinance. Once they did so, Mrs. Splitt et al. were foreclosed from obtaining the advantage of the more liberal standing provisions applicable under section 163.3215. In determining the standing issue on the basis of section 163.3215, the circuit court failed to apply the correct law. City of Ft. Myers v. Splitt, 988 So.2d 28 (2008) 33 Fla. L. Weekly D1673 C. Determining Standing in Certiorari Proceedings 161 171 181 The circuit court similarly failed to apply the correct law when it determined the standing issue on the basis of the allegations of Mrs. Splitt et al. in their certiorari petition rather than on the basis of the record made in the proceedings before the City. "[T]he well [-]established rule applicable to ... certiorari proceedings[s][is] that the reviewing court's consideration shall be confined strictly and solely to the record of proceedings by the agency or board on which the questioned order is based." Dade County v. Marca, S.A., 326 So.2d 183, 184 (F1a.1976). This *33 rule controls the determination of the factual basis establishing standing to initiate a certiorari proceeding in the circuit court. See Battaglia Fruit Co. v. City of Maitland, 530 So.2d 940, 943 (Fla. 5th DCA 1988) (holding that where city as certiorari petitioner failed to establish the basis for city's standing in the record of the county zoning proceedings, "the circuit court departed from the essential requirements of law in not dismissing the City's petition for lack of standing"). D. Prejudicial Error We reject any suggestion that Mrs. Splitt et al. had standing even under the more restrictive requirements of Renard and that the circuit court's failure to apply the correct law therefore was harmless error. Standing under the Renard special damages test is typically based on Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk some impact on the litigant's interest as an owner of property. See, e.g., Kagan v. West, 677 So.2d 905, 908 (Fla. 4th DCA 1996); Pichette v. City of N. Miami, 642 So.2d 1165, 1165-66 (Fla. 3d DCA 1994); State ex rel. Gardner v. Sailboat Key, Inc., 306 So.2d 616, 618 (Fla. 3d DCA 1974). There is no warrant for concluding that if the circuit court had applied the correct law, it would have determined that Mrs. Splitt et al. established their standing under the special damages test. III. Conclusion Because the circuit court applied the wrong law, we grant the City's petition for certiorari. The order of the circuit court is quashed to the extent that it granted relief with respect to ordinance 3366. Petition granted; order quashed in part. FULMER and VILLANTI, JJ., Concur. All Citations 988 So.2d 28, 33 Fla. L. Weekly D1673 End of Document © 2018 Thomson Reuters. No claim to original U.S. Government Works. WESTLAW City of Ft. Myers v. Splitt, 988 So.2d 28 (2008) 33 Fla. L. Weekly D1673 988 So.2d 28 District Court of Appeal of Florida, Second District. CITY OF FORT MYERS, a Florida municipal corporation, Petitioner, v. Virginia SPLITT, individually, Caloosahatchee River Citizens Association, Inc., a Florida not for profit corporation, Responsible Growth Management Coalition, Inc., a Florida not for profit corporation, Environmental Confederation of Southwest Florida, Inc., a Florida not for profit corporation, and Throgmartin Riverfront Corporation, a Florida corporation, Respondents. No. 2D07-5469. June 27, 2008. Rehearing Denied Aug. 21, 2008. Synopsis Background: Individual and two organizations filed petition for writ of certiorari, challenging three city ordinances relating to a proposed planned unit development (PUD) adjacent to a park. The Twentieth Judicial Circuit Court, Lee County, sitting in its appellate capacity, quashed one of the ordinances. City filed petition for writ of certiorari. Holdings: The District Court of Appeal, Canady, J., held that: [i1 standing requirements in statute governing challenges to the consistency of a development order with a comprehensive plan did not apply, and [21 trial court could not evaluate standing on the basis of allegations in the certiorari petition. Petition granted, order quashed in part. 46, West Headnotes (8) WESTLAW 111 121 [31 141 Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk Certiorari gii..Scope and extent of review in general In a second -tier certiorari proceeding with respect to a quasi-judicial decision of a local governmental entity, the district court's review of the circuit court's judgment is limited to whether the circuit court afforded procedural due process and applied the correct law. U.S.C.A. Const.Amend. 14. Cases that cite this headnote Certiorari .-Scope and extent of review in general On second -tier certiorari review a district court is simply deciding whether the lower court departed from the essential requirements of law. Cases that cite this headnote Certiorari 4-Determination and disposition of cause The appellate court has no power in exercising its jurisdiction in certiorari to enter a judgment on the merits of the controversy under consideration nor to direct the entry of any particular order or judgment. Cases that cite this headnote Zoning and Planning 6—Private persons Under the "special damages" standard for evaluating standing to enforce a valid zoning ordinance, an individual does not have standing to sue unless he can show special damages peculiar to himself differing in kind as distinguished from damages differing in degree City of Ft. Myers v. Splitt, 988 So.2d 28 (2008) 33 Fla. L. Weekly D1673 151 161 171 suffered by the community as a whole. Cases that cite this headnote Zoning and Planning it -Right of Review; Standing Statute governing challenges to the consistency of a development order with a comprehensive plan, which granted standing to any person with an adverse interest that exceeded in degree the general interest shared by all persons, did not apply to challenge by individual and two organizations to city ordinances relating to a proposed planned unit development (PUD) adjacent to a park, where individual and organizations voluntarily dismissed their claim for a determination that the ordinances were inconsistent with city's comprehensive plan. West's F.S.A. § 163.3215(2, 3). 2 Cases that cite this headnote Zoning and Planning 4-Right of Review; Standing Trial court in certiorari proceeding challenging city ordinances relating to proposed planned unit development (PUD) adjacent to a park could not evaluate petitioners' standing on the basis of their allegations in the certiorari petition, but rather court's review was limited to the record of the underlying city proceedings. Cases that cite this headnote Certiorari ii-Scope and Extent in General The rule in certiorari proceedings is that the reviewing court's consideration shall be confined strictly and solely to the record of proceedings by the agency or board on which 181 Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk the questioned order is based. Cases that cite this headnote Certiorari Persons Entitled The rule that the reviewing court's consideration in certiorari cases shall be confined strictly and solely to the record of proceedings by the agency or board on which the questioned order is based controls the determination of the factual basis establishing standing to initiate a certiorari proceeding in the circuit court. Cases that cite this headnote Attorneys and Law Firms *30 Nancy E. Stroud and Gary K. Oldehoff of Lewis, Stroud and Deutsch, P.L., Boca Raton, and Grant W. Alley, City Attorney, Fort Myers, for Petitioner. Andrew W.J. Dickman of Andrew Dickman, P.A., Naples, for Respondents Virginia Splitt, Caloosahatchee River Citizens Association, Inc., and Responsible Growth Management Coalition, Inc. No Appearance for Respondents Environmental Confederation of Southwest Florida, Inc., and Throgmartin Riverfront Corporation. Opinion CANADY, Judge. In this certiorari proceeding initiated by the City of Fort Myers, we consider whether the circuit court applied the wrong law regarding standing in issuing a writ of certiorari quashing an ordinance adopted by the City. For the reasons we explain, we conclude that the City is entitled to relief. WESTLAW City of Ft. Myers v. Splitt, 988 So.2d 28 (2008) 33 Fla. L. Weekly D1673 I. Background The respondents here, Virginia Splitt, Caloosahatchee River Citizens Association, Inc., and Responsible Growth Management Coalition, Inc. (referred to hereafter collectively as Mrs. Splitt et al.), appeared in the course of proceedings before the City related to a proposed planned unit development (PUD) for a multiuse project known as "The Vue" to be located on riverfront lands adjacent to Centennial Park. The interest asserted by Mrs. Splitt et al. in the proceedings before the City related primarily to their concerns regarding the public enjoyment of Centennial Park. At the hearings before the City, Mrs. Splitt personally only argued (1) that a tree had been planted in the park in memory of her husband and she did not want it moved and (2) that no part of the park should be turned over to private enterprise. The Caloosahatchee River Citizens Association argued in turn that it was concerned that people who purchased condominiums in the buildings which were part of the PUD would object to noise and traffic from festivals held in the park. The Association also asserted that it was "echoing" the objections raised by other citizens. The Association did not specify which objections it was adopting, but the objections made related to (1) the size of the PUD, (2) the fact that people would complain about noise and traffic, (3) increases in intensity and density, (4) elimination of public use of the land since the park would be in the backyard of the condominium purchasers, (5) overburdening of the city's street system, and (6) overburdening of the wastewater treatment system. The Responsible Growth Management Coalition objected only on the basis of the size of the PUD and the fact that city garbage trucks would have to use access roads to pick up the trash at the PUD. Mrs. Splitt et al. filed a certiorari petition in the circuit court challenging three ordinances adopted by the City concerning "The Vue" PUD project. Initially, Mrs. Splitt et al. also filed a declaratory judgment action seeking a determination that the ordinances were inconsistent with the City's comprehensive plan. That action was, however, voluntarily dismissed. The thrust of the certiorari petition was that the ordinances did not comply with the PUD criteria and other requirements applicable under the City's zoning ordinances. The circuit court denied the petition with respect to two of the challenged ordinances but granted it with respect to the third ordinance, ordinance 3366, which was adopted January 11, 2007. *31 In the circuit court, the City challenged the standing of Mrs. Splitt et al. on the ground that they had failed to establish in the record of the proceedings before the City that they had standing under the "special damages" standing test articulated in Renard v. Dade County, 261 WESTLAW Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk So.2d 832, 837 (F1a.1972), for challenges seeking to enforce valid zoning ordinances. Mrs. Splitt et al. conceded that the Renard standard was applicable but contended that the allegations of their petition were sufficient to establish their standing under Renard. The circuit court concluded, however, that the question of standing was governed not by the Renard standard but by the provisions of section 163.3215, Florida Statutes (2006), regarding challenges to the consistency of a development order with a comprehensive plan. Based on the application of section 163.3215, the circuit court determined that -according to the allegations of their petition in the circuit court -Mrs. Splitt et al. had the requisite standing. The City now contends that the circuit court's decision granting relief with respect to ordinance 3366 should be quashed because the circuit court applied the wrong law with respect to the test for standing and thus departed from the essential requirements of law. The City also contends that the circuit court applied the wrong law by not requiring that the facts establishing standing appear in the record of the proceedings before the City. II. Analysis Both parties acknowledge that the decision of the City at issue here was a quasi-judicial decision rather than a legislative decision and thus subject to challenge in the circuit court by way of certiorari. See Park of Commerce Assocs. v. City of Delray Beach, 636 So.2d 12 (F1a.1994). A. Standard of Review 111 121 In a second -tier certiorari proceeding with respect to a quasi-judicial decision of a local governmental entity, the district court's review of the circuit court's judgment is limited to " [1] whether the circuit court afforded procedural due process and [2] applied the correct law.' " Broward County v. G.B.V. Int'l, Ltd., 787 So.2d 838, 843 (F1a.2001) (alterations in original) (quoting City of Deerfield Beach v. Vaillant, 419 So.2d 624, 626 (F1a.1982)). In utilizing this two-part standard, a district court is simply "deciding whether the lower court `departed from the essential requirements of law.' " Id. at City of Ft. Myers v. Splitt, 988 So.2d 28 (2008) 33 Fla. L. Weekly D1673 843 n. 16 (quoting Haines City Cmty. Dev. v. Heggs, 658 So.2d 523, 530 (F1a.1995)). 131 " 'The appellate court has no power in exercising its jurisdiction in certiorari to enter a judgment on the merits of the controversy under consideration nor to direct the [entry of] any particular order or judgment.' " G.B.V. Intl, Ltd., 787 So.2d at 844 (quoting Tamiami Trail Tours v. R.R. Comm 'n, 128 Fla. 25, 174 So. 451, 454 (1937) (on rehearing)). B. The Applicable Law of Standing The section 163.3215 standard for standing applied by the trial court governs de novo challenges to "the consistency of a development order with a comprehensive plan." § 163.3215(1). Under the statute, "[a]ny aggrieved or adversely affected party may maintain a de novo action for declaratory, injunctive, or other relief' with regard to "a development order ... which materially alters the use or density or intensity of use on a particular piece of property which is not consistent with the comprehensive plan." § 163.3215(3). The statute defines "aggrieved or adversely affected party" to mean *32 any person or local government that will suffer an adverse effect to an interest protected or furthered by the local government comprehensive plan, including interests related to health and safety, police and fire systems, densities or intensities of development, transportation facilities, health care facilities, equipment or services, and environmental or natural resources. The alleged adverse interest may be shared in common with other members of the community at large but must exceed in degree the general interest in community good shared by all persons. The term includes the owner, developer, protection service WESTLAW Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk or applicant for a development order. § 163.3215(2) (emphasis added). 141 The Renard standard for "standing to enforce a valid zoning ordinance" requires a showing of "special damages." 261 So.2d at 837. The "special damages" rule is derived from "the law of public nuisance." Id. at 835 (citing Boucher v. Novotny, 102 So.2d 132 (F1a.1958)). Under this standard, an individual does not have standing to sue unless he can show " `special damages peculiar to himself differing in kind as distinguished from damages differing in degree suffered by the community as a whole.' " Renard, 261 So.2d at 835 (quoting Boucher, 102 So.2d at 135). It has repeatedly been acknowledged that the standing provisions of section 163.3215 were adopted to liberalize the standing requirements that would otherwise be applicable. See Parker v. Leon County, 627 So.2d 476, 479 (F1a.1993); Stranahan House, Inc. v. City of Fort Lauderdale, 967 So.2d 427, 433 (Fla. 4th DCA 2007); Payne v. City of Miami, 927 So.2d 904, 907 (Fla. 3d DCA 2005); Pinecrest Lakes, Inc. v. Shidel, 795 So.2d 191, 200 (Fla. 4th DCA 2001); Putnam County Envtl. Council, Inc. v. Bd. of County Comm 'rs, 757 So.2d 590, 593 (Fla. 5th DCA 2000); Sw. Ranches Homeowners Ass 'n v. Broward County, 502 So.2d 931, 935 (Fla. 4th DCA 1987). The difference between the section 163.3215 standard and the Renard special damages test is immediately apparent. Under section 163.3215(2), standing may be based on the showing of an adverse effect on an interest that "exceed[s] in degree the general interest in community good shared by all persons." (Emphasis added.) The more restrictive Renard standard requires a showing of special damages " `differing in kind as distinguished from damages differing in degree suffered by the community as a whole.' " 261 So.2d at 835 (emphasis added) (quoting Boucher, 102 So.2d at 135). j51 Here, Mrs. Splitt et al. voluntarily abandoned any comprehensive plan consistency challenge to the ordinance. Once they did so, Mrs. Splitt et al. were foreclosed from obtaining the advantage of the more liberal standing provisions applicable under section 163.3215. In determining the standing issue on the basis of section 163.3215, the circuit court failed to apply the correct law. City of Ft. Myers v. Splitt, 988 So.2d 28 (2008) 33 Fla. L. Weekly D1673 C. Determining Standing in Certiorari Proceedings 161 171 181 The circuit court similarly failed to apply the correct law when it determined the standing issue on the basis of the allegations of Mrs. Splitt et al. in their certiorari petition rather than on the basis of the record made in the proceedings before the City. "[T]he well [-]established rule applicable to ... certiorari proceedings[s][is] that the reviewing court's consideration shall be confined strictly and solely to the record of proceedings by the agency or board on which the questioned order is based." Dade County v. Marca, S.A., 326 So.2d 183, 184 (F1a.1976). This *33 rule controls the determination of the factual basis establishing standing to initiate a certiorari proceeding in the circuit court. See Battaglia Fruit Co. v. City of Maitland, 530 So.2d 940, 943 (Fla. 5th DCA 1988) (holding that where city as certiorari petitioner failed to establish the basis for city's standing in the record of the county zoning proceedings, "the circuit court departed from the essential requirements of law in not dismissing the City's petition for lack of standing"). D. Prejudicial Error We reject any suggestion that Mrs. Splitt et al had standing even under the more restrictive requirements of Renard and that the circuit court's failure to apply the correct law therefore was harmless error. Standing under the Renard special damages test is typically based on End of Document © 2018 Thomson Reuters. No claim to original U.S. Government Works. Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk some impact on the litigant's interest as an owner of property. See, e.g., Kagan v. West, 677 So.2d 905, 908 (Fla. 4th DCA 1996); Pichette v. City of N. Miami, 642 So.2d 1165, 1165-66 (Fla. 3d DCA 1994); State ex rel. Gardner v. Sailboat Key, Inc., 306 So.2d 616, 618 (Fla. 3d DCA 1974). There is no warrant for concluding that if the circuit court had applied the correct law, it would have determined that Mrs. Splitt et al. established their standing under the special damages test. III. Conclusion Because the circuit court applied the wrong law, we grant the City's petition for certiorari. The order of the circuit court is quashed to the extent that it granted relief with respect to ordinance 3366. Petition granted; order quashed in part. FULMER and VILLANTI, JJ., Concur. All Citations 988 So.2d 28, 33 Fla. L. Weekly D1673 WESTLAW City of Ft. Myers v. Splitt, 988 So.2d 28 (2008) 33 Fla. L. Weekly D1673 988 So.2d 28 District Court of Appeal of Florida, Second District. CITY OF FORT MYERS, a Florida municipal corporation, Petitioner, v. Virginia SPLITT, individually, Caloosahatchee River Citizens Association, Inc., a Florida not for profit corporation, Responsible Growth Management Coalition, Inc., a Florida not for profit corporation, Environmental Confederation of Southwest Florida, Inc., a Florida not for profit corporation, and Throgmartin Riverfront Corporation, a Florida corporation, Respondents. No. 2D07-5469• June 27, 2008. Rehearing Denied Aug. 21, 2008. Synopsis Background: Individual and two organizations filed petition for writ of certiorari, challenging three city ordinances relating to a proposed planned unit development (PUD) adjacent to a park. The Twentieth Judicial Circuit Court, Lee County, sitting in its appellate capacity, quashed one of the ordinances. City filed petition for writ of certiorari. Holdings: The District Court of Appeal, Canady, J., held that: 1l1 standing requirements in statute governing challenges to the consistency of a development order with a comprehensive plan did not apply, and [2) trial court could not evaluate standing on the basis of allegations in the certiorari petition. Petition granted, order quashed in part. West Headnotes (8) 111 121 131 141 Submitted into the public record for items) PZ.1 . on 12/13/2018 , City Clerk Certiorari Scope and extent of review in general In a second -tier certiorari proceeding with respect to a quasi-judicial decision of a local governmental entity, the district court's review of the circuit court's judgment is limited to whether the circuit court afforded procedural due process and applied the correct law. U.S.C.A. Const.Amend. 14. Cases that cite this headnote Certiorari Scope and extent of review in general On second -tier certiorari review a district court is simply deciding whether the lower court departed from the essential requirements of law. Cases that cite this headnote Certiorari Determination and disposition of cause The appellate court has no power in exercising its jurisdiction in certiorari to enter a judgment on the merits of the controversy under consideration nor to direct the entry of any particular order or judgment. Cases that cite this headnote Zoning and Planning Private persons Under the "special damages" standard for evaluating standing to enforce a valid zoning ordinance, an individual does not have standing to sue unless he can show special damages peculiar to himself differing in kind as distinguished from damages differing in degree WESTLAW City of Ft. Myers v. Splitt, 988 So.2d 28 (2008) 33 Fla. L. Weekly D1673 151 161 171 suffered by the community as a whole. Cases that cite this headnote Zoning and Planning 0.-Right of Review; Standing Statute governing challenges to the consistency of a development order with a comprehensive plan, which granted standing to any person with an adverse interest that exceeded in degree the general interest shared by all persons, did not apply to challenge by individual and two organizations to city ordinances relating to a proposed planned unit development (PUD) adjacent to a park, where individual and organizations voluntarily dismissed their claim for a determination that the ordinances were inconsistent with city's comprehensive plan. West's F.S.A. § 163.3215(2, 3). 2 Cases that cite this headnote Zoning and Planning Right of Review; Standing Trial court in certiorari proceeding challenging city ordinances relating to proposed planned unit development (PUD) adjacent to a park could not evaluate petitioners' standing on the basis of their allegations in the certiorari petition, but rather court's review was limited to the record of the underlying city proceedings. Cases that cite this headnote Certiorari 0.-Scope and Extent in General The rule in certiorari proceedings is that the reviewing court's consideration shall be confined strictly and solely to the record of proceedings by the agency or board on which WESTLAW 181 Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk the questioned order is based. Cases that cite this headnote Certiorari 0.+Persons Entitled The rule that the reviewing court's consideration in certiorari cases shall be confined strictly and solely to the record of proceedings by the agency or board on which the questioned order is based controls the determination of the factual basis establishing standing to initiate a certiorari proceeding in the circuit court. Cases that cite this headnote Attorneys and Law Firms *30 Nancy E. Stroud and Gary K. Oldehoff of Lewis, Stroud and Deutsch, P.L., Boca Raton, and Grant W. Alley, City Attorney, Fort Myers, for Petitioner. Andrew W.J. Dickman of Andrew Dickman, P.A., Naples, for Respondents Virginia Splitt, Caloosahatchee River Citizens Association, Inc., and Responsible Growth Management Coalition, Inc. No Appearance for Respondents Environmental Confederation of Southwest Florida, Inc., and Throgmartin Riverfront Corporation. Opinion CANADY, Judge. In this certiorari proceeding initiated by the City of Fort Myers, we consider whether the circuit court applied the wrong law regarding standing in issuing a writ of certiorari quashing an ordinance adopted by the City. For the reasons we explain, we conclude that the City is entitled to relief. City of Ft. Myers v. Splitt, 988 So.2d 28 (2008) 33 Fla. L. Weekly D1673 I. Background The respondents here, Virginia Splitt, Caloosahatchee River Citizens Association, Inc., and Responsible Growth Management Coalition, Inc. (referred to hereafter collectively as Mrs. Splitt et al.), appeared in the course of proceedings before the City related to a proposed planned unit development (PUD) for a multiuse project known as "The Vue" to be located on riverfront lands adjacent to Centennial Park. The interest asserted by Mrs. Splitt et al. in the proceedings before the City related primarily to their concerns regarding the public enjoyment of Centennial Park. At the hearings before the City, Mrs. Splitt personally only argued (1) that a tree had been planted in the park in memory of her husband and she did not want it moved and (2) that no part of the park should be turned over to private enterprise. The Caloosahatchee River Citizens Association argued in turn that it was concerned that people who purchased condominiums in the buildings which were part of the PUD would object to noise and traffic from festivals held in the park. The Association also asserted that it was "echoing" the objections raised by other citizens. The Association did not specify which objections it was adopting, but the objections made related to (1) the size of the PUD, (2) the fact that people would complain about noise and traffic, (3) increases in intensity and density, (4) elimination of public use of the land since the park would be in the backyard of the condominium purchasers, (5) overburdening of the city's street system, and (6) overburdening of the wastewater treatment system. The Responsible Growth Management Coalition objected only on the basis of the size of the PUD and the fact that city garbage trucks would have to use access roads to pick up the trash at the PUD. Mrs. Splitt et al. filed a certiorari petition in the circuit court challenging three ordinances adopted by the City concerning "The Vue" PUD project. Initially, Mrs. Splitt et al. also filed a declaratory judgment action seeking a determination that the ordinances were inconsistent with the City's comprehensive plan. That action was, however, voluntarily dismissed. The thrust of the certiorari petition was that the ordinances did not comply with the PUD criteria and other requirements applicable under the City's zoning ordinances. The circuit court denied the petition with respect to two of the challenged ordinances but granted it with respect to the third ordinance, ordinance 3366, which was adopted January 11, 2007. *31 In the circuit court, the City challenged the standing of Mrs. Splitt et al. on the ground that they had failed to establish in the record of the proceedings before the City that they had standing under the "special damages" standing test articulated in Renard v. Dade County, 261 WESTLAW Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk So.2d 832, 837 (F1a.1972), for challenges seeking to enforce valid zoning ordinances. Mrs. Splitt et al. conceded that the Renard standard was applicable but contended that the allegations of their petition were sufficient to establish their standing under Renard. The circuit court concluded, however, that the question of standing was governed not by the Renard standard but by the provisions of section 163.3215, Florida Statutes (2006), regarding challenges to the consistency of a development order with a comprehensive plan. Based on the application of section 163.3215, the circuit court determined that -according to the allegations of their petition in the circuit court -Mrs. Splitt et al. had the requisite standing. The City now contends that the circuit court's decision granting relief with respect to ordinance 3366 should be quashed because the circuit court applied the wrong law with respect to the test for standing and thus departed from the essential requirements of law. The City also contends that the circuit court applied the wrong law by not requiring that the facts establishing standing appear in the record of the proceedings before the City. II. Analysis Both parties acknowledge that the decision of the City at issue here was a quasi-judicial decision rather than a legislative decision and thus subject to challenge in the circuit court by way of certiorari. See Park of Commerce Assocs. v. City of Delray Beach, 636 So.2d 12 (F1a.1994). A. Standard of Review DI 121 In a second -tier certiorari proceeding with respect to a quasi-judicial decision of a local governmental entity, the district court's review of the circuit court's judgment is limited to " '[1] whether the circuit court afforded procedural due process and [2] applied the correct law.' " Broward County v. G.B.V. Intl, Ltd., 787 So.2d 838, 843 (F1a.2001) (alterations in original) (quoting City of Deerfield Beach v. Vaillant, 419 So.2d 624, 626 (F1a.1982)). In utilizing this two-part standard, a district court is simply "deciding whether the lower court `departed from the essential requirements of law.' " Id. at City of Ft. Myers v. Splitt, 988 So.2d 28 (2008) 33 Fla. L. Weekly D1673 843 n. 16 (quoting Haines City Cmty. Dev. v. Heggs, 658 So.2d 523, 530 (F1a.1995)). 131 " 'The appellate court has no power in exercising its jurisdiction in certiorari to enter a judgment on the merits of the controversy under consideration nor to direct the [entry of] any particular order or judgment.' " G.B.V. Intl, Ltd., 787 So.2d at 844 (quoting Tamiami Trail Tours v. R.R. Comm'n, 128 Fla. 25, 174 So. 451, 454 (1937) (on rehearing)). B. The Applicable Law of Standing The section 163.3215 standard for standing applied by the trial court governs de novo challenges to "the consistency of a development order with a comprehensive plan." § 163.3215(1). Under the statute, "[a]ny aggrieved or adversely affected party may maintain a de novo action for declaratory, injunctive, or other relief' with regard to "a development order ... which materially alters the use or density or intensity of use on a particular piece of property which is not consistent with the comprehensive plan." § 163.3215(3). The statute defines "aggrieved or adversely affected party" to mean *32 any person or local government that will suffer an adverse effect to an interest protected or furthered by the local government comprehensive plan, including interests related to health and safety, police and fire protection service systems, densities or intensities of development, transportation facilities, health care facilities, equipment or services, and environmental or natural resources. The alleged adverse interest may be shared in common with other members of the community at large but must exceed in degree the general interest in community good shared by all persons. The term includes the owner, developer, W ESTLAW Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk or applicant for a development order. § 163.3215(2) (emphasis added). 141 The Renard standard for "standing to enforce a valid zoning ordinance" requires a showing of "special damages." 261 So.2d at 837. The "special damages" rule is derived from "the law of public nuisance." Id. at 835 (citing Boucher v. Novotny, 102 So.2d 132 (F1a.1958)). Under this standard, an individual does not have standing to sue unless he can show " `special damages peculiar to himself differing in kind as distinguished from damages differing in degree suffered by the community as a whole.' " Renard, 261 So.2d at 835 (quoting Boucher, 102 So.2d at 135). It has repeatedly been acknowledged that the standing provisions of section 163.3215 were adopted to liberalize the standing requirements that would otherwise be applicable. See Parker v. Leon County, 627 So.2d 476, 479 (F1a.1993); Stranahan House, Inc. v. City of Fort Lauderdale, 967 So.2d 427, 433 (Fla. 4th DCA 2007); Payne v. City of Miami, 927 So.2d 904, 907 (Fla. 3d DCA 2005); Pinecrest Lakes, Inc. v. Shidel, 795 So.2d 191, 200 (Fla. 4th DCA 2001); Putnam County Envtl. Council, Inc. v. Bd. of County Comm 'rs, 757 So.2d 590, 593 (Fla. 5th DCA 2000); Sw. Ranches Homeowners Ass v. Broward County, 502 So.2d 931, 935 (Fla. 4th DCA 1987). The difference between the section 163.3215 standard and the Renard special damages test is immediately apparent. Under section 163.3215(2), standing may be based on the showing of an adverse effect on an interest that "exceed[s] in degree the general interest in community good shared by all persons." (Emphasis added.) The more restrictive Renard standard requires a showing of special damages " `differing in kind as distinguished from damages differing in degree suffered by the community as a whole.' " 261 So.2d at 835 (emphasis added) (quoting Boucher, 102 So.2d at 135). 151 Here, Mrs. Splitt et al. voluntarily abandoned any comprehensive plan consistency challenge to the ordinance. Once they did so, Mrs. Splitt et al. were foreclosed from obtaining the advantage of the more liberal standing provisions applicable under section 163.3215. In determining the standing issue on the basis of section 163.3215, the circuit court failed to apply the correct law. City of Ft. Myers v. Splitt, 988 So.2d 28 (2008) 33 Fla. L. Weekly D1673 C. Determining Standing in Certiorari Proceedings 161 171 181 The circuit court similarly failed to apply the correct law when it determined the standing issue on the basis of the allegations of Mrs. Splitt et al. in their certiorari petition rather than on the basis of the record made in the proceedings before the City. "[T]he well [-]established rule applicable to ... certiorari proceedings[s][is] that the reviewing court's consideration shall be confined strictly and solely to the record of proceedings by the agency or board on which the questioned order is based." Dade County v. Marca, S.A., 326 So.2d 183, 184 (F1a.1976). This *33 rule controls the determination of the factual basis establishing standing to initiate a certiorari proceeding in the circuit court. See Battaglia Fruit Co. v. City of Maitland, 530 So.2d 940, 943 (Fla. 5th DCA 1988) (holding that where city as certiorari petitioner failed to establish the basis for city's standing in the record of the county zoning proceedings, "the circuit court departed from the essential requirements of law in not dismissing the City's petition for lack of standing"). D. Prejudicial Error We reject any suggestion that Mrs. Splitt et al. had standing even under the more restrictive requirements of Renard and that the circuit court's failure to apply the correct law therefore was harmless error. Standing under the Renard special damages test is typically based on Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk some impact on the litigant's interest as an owner of property. See, e.g., Kagan v. West, 677 So.2d 905, 908 (Fla. 4th DCA 1996); Pichette v. City of N. Miami, 642 So.2d 1165, 1165-66 (Fla. 3d DCA 1994); State ex rel. Gardner v. Sailboat Key, Inc., 306 So.2d 616, 618 (Fla. 3d DCA 1974). There is no warrant for concluding that if the circuit court had applied the correct law, it would have determined that Mrs. Splitt et al. established their standing under the special damages test. III. Conclusion Because the circuit court applied the wrong law, we grant the City's petition for certiorari. The order of the circuit court is quashed to the extent that it granted relief with respect to ordinance 3366. Petition granted; order quashed in part. FULMER and VILLANTI, JJ., Concur. All Citations 988 So.2d 28, 33 Fla. L. Weekly D1673 End of Document © 2018 Thomson Reuters. No claim to original U.S. Government Works. WESTLAW City of Ft. Myers v. Splitt, 988 So.2d 28 (2008) 33 Fla. L. Weekly D1673 988 So.2d 28 District Court of Appeal of Florida, Second District. CITY OF FORT MYERS, a Florida municipal corporation, Petitioner, v. Virginia SPLITT, individually, Caloosahatchee River Citizens Association, Inc., a Florida not for profit corporation, Responsible Growth Management Coalition, Inc., a Florida not for profit corporation, Environmental Confederation of Southwest Florida, Inc., a Florida not for profit corporation, and Throgmartin Riverfront Corporation, a Florida corporation, Respondents. No. 2D07-5469 June 27, 2008. Rehearing Denied Aug. 21, 2008. Synopsis Background: Individual and two organizations filed petition for writ of certiorari, challenging three city ordinances relating to a proposed planned unit development (PUD) adjacent to a park. The Twentieth Judicial Circuit Court, Lee County, sitting in its appellate capacity, quashed one of the ordinances. City filed petition for writ of certiorari. Holdings: The District Court of Appeal, Canady, J., held that: {ll standing requirements in statute governing challenges to the consistency of a development order with a comprehensive plan did not apply, and 12] trial court could not evaluate standing on the basis of allegations in the certiorari petition. Petition granted, order quashed in part. 46 West Headnotes (8) WESTLAW 111 121 131 141 Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk Certiorari Scope and extent of review in general In a second -tier certiorari proceeding with respect to a quasi-judicial decision of a local governmental entity, the district court's review of the circuit court's judgment is limited to whether the circuit court afforded procedural due process and applied the correct law. U.S.C.A. Const.Amend. 14. Cases that cite this headnote Certiorari Scope and extent of review in general On second -tier certiorari review a district court is simply deciding whether the lower court departed from the essential requirements of law. Cases that cite this headnote Certiorari Determination and disposition of cause The appellate court has no power in exercising its jurisdiction in certiorari to enter a judgment on the merits of the controversy under consideration nor to direct the entry of any particular order or judgment. Cases that cite this headnote Zoning and Planning Private persons Under the "special damages" standard for evaluating standing to enforce a valid zoning ordinance, an individual does not have standing to sue unless he can show special damages peculiar to himself differing in kind as distinguished from damages differing in degree City of Ft. Myers v. Splitt, 988 So.2d 28 (2008) 33 Fla. L. Weekly D1673 151 161 171 suffered by the community as a whole. Cases that cite this headnote Zoning and Planning .-Right of Review; Standing Statute governing challenges to the consistency of a development order with a comprehensive plan, which granted standing to any person with an adverse interest that exceeded in degree the general interest shared by all persons, did not apply to challenge by individual and two organizations to city ordinances relating to a proposed planned unit development (PUD) adjacent to a park, where individual and organizations voluntarily dismissed their claim for a determination that the ordinances were inconsistent with city's comprehensive plan. West's F.S.A. § 163.3215(2, 3). 2 Cases that cite this headnote Zoning and Planning ...Right of Review; Standing Trial court in certiorari proceeding challenging city ordinances relating to proposed planned unit development (PUD) adjacent to a park could not evaluate petitioners' standing on the basis of their allegations in the certiorari petition, but rather court's review was limited to the record of the underlying city proceedings. Cases that cite this headnote Certiorari 4 -Scope and Extent in General The rule in certiorari proceedings is that the reviewing court's consideration shall be confined strictly and solely to the record of proceedings by the agency or board on which WESTLAW 181 Submitted into the public record for item(s) P7.1 . on 12/13/2018 , City Clerk the questioned order is based. Cases that cite this headnote Certiorari I...Persons Entitled The rule that the reviewing court's consideration in certiorari cases shall be confined strictly and solely to the record of proceedings by the agency or board on which the questioned order is based controls the determination of the factual basis establishing standing to initiate a certiorari proceeding in the circuit court. Cases that cite this headnote Attorneys and Law Firms *30 Nancy E. Stroud and Gary K. Oldehoff of Lewis, Stroud and Deutsch, P.L., Boca Raton, and Grant W. Alley, City Attorney, Fort Myers, for Petitioner. Andrew W.J. Dickman of Andrew Dickman, P.A., Naples, for Respondents Virginia Splitt, Caloosahatchee River Citizens Association, Inc., and Responsible Growth Management Coalition, Inc. No Appearance for Respondents Environmental Confederation of Southwest Florida, Inc., and Throgmartin Riverfront Corporation. Opinion CANADY, Judge. In this certiorari proceeding initiated by the City of Fort Myers, we consider whether the circuit court applied the wrong law regarding standing in issuing a writ of certiorari quashing an ordinance adopted by the City. For the reasons we explain, we conclude that the City is entitled to relief. City of Ft. Myers v. Splitt, 988 So.2d 28 (2008) 33 Fla. L. Weekly D1673 I. Background The respondents here, Virginia Splitt, Caloosahatchee River Citizens Association, Inc., and Responsible Growth Management Coalition, Inc. (referred to hereafter collectively as Mrs. Splitt et al.), appeared in the course of proceedings before the City related to a proposed planned unit development (PUD) for a multiuse project known as "The Vue" to be located on riverfront lands adjacent to Centennial Park. The interest asserted by Mrs. Splitt et al. in the proceedings before the City related primarily to their concerns regarding the public enjoyment of Centennial Park. At the hearings before the City, Mrs. Splitt personally only argued (1) that a tree had been planted in the park in memory of her husband and she did not want it moved and (2) that no part of the park should be turned over to private enterprise. The Caloosahatchee River Citizens Association argued in turn that it was concerned that people who purchased condominiums in the buildings which were part of the PUD would object to noise and traffic from festivals held in the park. The Association also asserted that it was "echoing" the objections raised by other citizens. The Association did not specify which objections it was adopting, but the objections made related to (1) the size of the PUD, (2) the fact that people would complain about noise and traffic, (3) increases in intensity and density, (4) elimination of public use of the land since the park would be in the backyard of the condominium purchasers, (5) overburdening of the city's street system, and (6) overburdening of the wastewater treatment system. The Responsible Growth Management Coalition objected only on the basis of the size of the PUD and the fact that city garbage trucks would have to use access roads to pick up the trash at the PUD. Mrs. Splitt et al. filed a certiorari petition in the circuit court challenging three ordinances adopted by the City concerning "The Vue" PUD project. Initially, Mrs. Splitt et al. also filed a declaratory judgment action seeking a determination that the ordinances were inconsistent with the City's comprehensive plan. That action was, however, voluntarily dismissed. The thrust of the certiorari petition was that the ordinances did not comply with the PUD criteria and other requirements applicable under the City's zoning ordinances. The circuit court denied the petition with respect to two of the challenged ordinances but granted it with respect to the third ordinance, ordinance 3366, which was adopted January 11, 2007. *31 In the circuit court, the City challenged the standing of Mrs. Splitt et al. on the ground that they had failed to establish in the record of the proceedings before the City that they had standing under the "special damages" standing test articulated in Renard v. Dade County, 261 WESTLAW Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk So.2d 832, 837 (F1a.1972), for challenges seeking to enforce valid zoning ordinances. Mrs. Splitt et al. conceded that the Renard standard was applicable but contended that the allegations of their petition were sufficient to establish their standing under Renard. The circuit court concluded, however, that the question of standing was governed not by the Renard standard but by the provisions of section 163.3215, Florida Statutes (2006), regarding challenges to the consistency of a development order with a comprehensive plan. Based on the application of section 163.3215, the circuit court determined that -according to the allegations of their petition in the circuit court -Mrs. Splitt et al. had the requisite standing. The City now contends that the circuit court's decision granting relief with respect to ordinance 3366 should be quashed because the circuit court applied the wrong law with respect to the test for standing and thus departed from the essential requirements of law. The City also contends that the circuit court applied the wrong law by not requiring that the facts establishing standing appear in the record of the proceedings before the City. II. Analysis Both parties acknowledge that the decision of the City at issue here was a quasi-judicial decision rather than a legislative decision and thus subject to challenge in the circuit court by way of certiorari. See Park of Commerce Assocs. v. City of Delray Beach, 636 So.2d 12 (F1a.1994). A. Standard of Review Ill 121 In a second -tier certiorari proceeding with respect to a quasi-judicial decision of a local governmental entity, the district court's review of the circuit court's judgment is limited to " `[1] whether the circuit court afforded procedural due process and [2] applied the correct law.' " Broward County v. G.B.V. Intl, Ltd., 787 So.2d 838, 843 (F1a.2001) (alterations in original) (quoting City of Deerfield Beach v. Vaillant, 419 So.2d 624, 626 (F1a.1982)). In utilizing this two-part standard, a district court is simply "deciding whether the lower court `departed from the essential requirements of law.' " Id. at City of Ft. Myers v. Splitt, 988 So.2d 28 (2008) 33 Fla. L. Weekly D1673 843 n. 16 (quoting Haines City Cmty. Dev. v. Heggs, 658 So.2d 523, 530 (F1a.1995)). j31 " 'The appellate court has no power in exercising its jurisdiction in certiorari to enter a judgment on the merits of the controversy under consideration nor to direct the [entry of) any particular order or judgment.' " G.B.Y. Int'1, Ltd., 787 So.2d at 844 (quoting Tamiami Trail Tours v. R.R. Comm'n, 128 Fla. 25, 174 So. 451, 454 (1937) (on rehearing)). B. The Applicable Law of Standing The section 163.3215 standard for standing applied by the trial court governs de novo challenges to "the consistency of a development order with a comprehensive plan." § 163.3215(1). Under the statute, "[a]ny aggrieved or adversely affected party may maintain a de novo action for declaratory, injunctive, or other relief' with regard to "a development order ... which materially alters the use or density or intensity of use on a particular piece of property which is not consistent with the comprehensive plan." § 163.3215(3). The statute defines "aggrieved or adversely affected party" to mean *32 any person or local government that will suffer an adverse effect to an interest protected or furthered by the local government comprehensive plan, including interests related to health and safety, police and fire protection service systems, densities or intensities of development, transportation facilities, health care facilities, equipment or services, and environmental or natural resources. The alleged adverse interest may be shared in common with other members of the community at large but must exceed in degree the general interest in community good shared by all persons. The term includes the owner, developer, WESTLAW Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk or applicant for a development order. § 163.3215(2) (emphasis added). 141 The Renard standard for "standing to enforce a valid zoning ordinance" requires a showing of "special damages." 261 So.2d at 837. The "special damages" rule is derived from "the law of public nuisance." Id. at 835 (citing Boucher v. Novotny, 102 So.2d 132 (F1a.1958)). Under this standard, an individual does not have standing to sue unless he can show " `special damages peculiar to himself differing in kind as distinguished from damages differing in degree suffered by the community as a whole.' " Renard, 261 So.2d at 835 (quoting Boucher, 102 So.2d at 135). It has repeatedly been acknowledged that the standing provisions of section 163.3215 were adopted to liberalize the standing requirements that would otherwise be applicable. See Parker v. Leon County, 627 So.2d 476, 479 (F1a.1993); Stranahan House, Inc. v. City of Fort Lauderdale, 967 So.2d 427, 433 (Fla. 4th DCA 2007); Payne v. City of Miami, 927 So.2d 904, 907 (Fla. 3d DCA 2005); Pinecrest Lakes, Inc. v. Shidel, 795 So.2d 191, 200 (Fla. 4th DCA 2001); Putnam County Envtl. Council, Inc. v. Bd. of County Comm'rs, 757 So.2d 590, 593 (Fla. 5th DCA 2000); Sw. Ranches Homeowners Ass 'n v. Broward County, 502 So.2d 931, 935 (Fla. 4th DCA 1987). The difference between the section 163.3215 standard and the Renard special damages test is immediately apparent. Under section 163.3215(2), standing may be based on the showing of an adverse effect on an interest that "exceed[s] in degree the general interest in community good shared by all persons." (Emphasis added.) The more restrictive Renard standard requires a showing of special damages " differing in kind as distinguished from damages differing in degree suffered by the community as a whole.' " 261 So.2d at 835 (emphasis added) (quoting Boucher, 102 So.2d at 135). 151 Here, Mrs. Splitt et al. voluntarily abandoned any comprehensive plan consistency challenge to the ordinance. Once they did so, Mrs. Splitt et al. were foreclosed from obtaining the advantage of the more liberal standing provisions applicable under section 163.3215. In determining the standing issue on the basis of section 163.3215, the circuit court failed to apply the correct law. City of Ft. Myers v. Splitt, 988 So.2d 28 (2008) 33 Fla. L. Weekly D1673 C. Determining Standing in Certiorari Proceedings j61 171 181 The circuit court similarly failed to apply the correct law when it determined the standing issue on the basis of the allegations of Mrs. Splitt et al. in their certiorari petition rather than on the basis of the record made in the proceedings before the City. "[T]he well [-]established rule applicable to ... certiorari proceedings[s][is] that the reviewing court's consideration shall be confined strictly and solely to the record of proceedings by the agency or board on which the questioned order is based." Dade County v. Marca, S.A., 326 So.2d 183, 184 (F1a.1976). This *33 rule controls the determination of the factual basis establishing standing to initiate a certiorari proceeding in the circuit court. See Battaglia Fruit Co. v. City of Maitland, 530 So.2d 940, 943 (Fla. 5th DCA 1988) (holding that where city as certiorari petitioner failed to establish the basis for city's standing in the record of the county zoning proceedings, "the circuit court departed from the essential requirements of law in not dismissing the City's petition for lack of standing"). D. Prejudicial Error We reject any suggestion that Mrs. Splitt et al. had standing even under the more restrictive requirements of Renard and that the circuit court's failure to apply the correct law therefore was harmless error. Standing under the Renard special damages test is typically based on Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk some impact on the litigant's interest as an owner of property. See, e.g., Kagan v. West, 677 So.2d 905, 908 (Fla. 4th DCA 1996); Pichette v. City of N. Miami, 642 So.2d 1165, 1165-66 (Fla. 3d DCA 1994); State ex rel. Gardner v. Sailboat Key, Inc., 306 So.2d 616, 618 (Fla. 3d DCA 1974). There is no warrant for concluding that if the circuit court had applied the correct law, it would have determined that Mrs. Splitt et al. established their standing under the special damages test. III. Conclusion Because the circuit court applied the wrong law, we grant the City's petition for certiorari. The order of the circuit court is quashed to the extent that it granted relief with respect to ordinance 3366. Petition granted; order quashed in part. FULMER and VILLANTI, JJ., Concur. All Citations 988 So.2d 28, 33 Fla. L. Weekly D1673 End of Document © 2018 Thomson Reuters. No claim to original U.S. Government Works. WESTLAW City of Ft. Myers v. Sp{itt, 988 So.2d 28 (2008) 33 Fla. L. Weekly D1673 988 So.2d 28 District Court of Appeal of Florida, Second District. CITY OF FORT MYERS, a Florida municipal corporation, Petitioner, v. Virginia SPLITT, individually, Caloosahatchee River Citizens Association, Inc., a Florida not for profit corporation, Responsible Growth Management Coalition, Inc., a Florida not for profit corporation, Environmental Confederation of Southwest Florida, Inc., a Florida not for profit corporation, and Throgmartin Riverfront Corporation, a Florida corporation, Respondents. No. 2Do7-5469• June 27, 2008. Rehearing Denied Aug. 21, 2008. Synopsis Background: Individual and two organizations filed petition for writ of certiorari, challenging three city ordinances relating to a proposed planned unit development (PUD) adjacent to a park. The Twentieth Judicial Circuit Court, Lee County, sitting in its appellate capacity, quashed one of the ordinances. City filed petition for writ of certiorari. Holdings: The District Court of Appeal, Canady, J., held that: [I1 standing requirements in statute governing challenges to the consistency of a development order with a comprehensive plan did not apply, and 12] trial court could not evaluate standing on the basis of allegations in the certiorari petition. Petition granted, order quashed in part. lbar West Headnotes (8) WESTLAW 111 121 [31 141 Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk Certiorari Scope and extent of review in general In a second -tier certiorari proceeding with respect to a quasi-judicial decision of a local governmental entity, the district court's review of the circuit court's judgment is limited to whether the circuit court afforded procedural due process and applied the correct law. U.S.C.A. Const.Amend. 14. Cases that cite this headnote Certiorari *-Scope and extent of review in general On second -tier certiorari review a district court is simply deciding whether the lower court departed from the essential requirements of law. Cases that cite this headnote Certiorari ®—Determination and disposition of cause The appellate court has no power in exercising its jurisdiction in certiorari to enter a judgment on the merits of the controversy under consideration nor to direct the entry of any particular order or judgment. Cases that cite this headnote Zoning and Planning ®—Private persons Under the "special damages" standard for evaluating standing to enforce a valid zoning ordinance, an individual does not have standing to sue unless he can show special damages peculiar to himself differing in kind as distinguished from damages differing in degree City of Ft. Myers v. Splitt, 988 So.2d 28 (2008) 33 Fla. L. Weekly D1673 151 161 171 suffered by the community as a whole. Cases that cite this headnote Zoning and Planning 6.-Right of Review; Standing Statute governing challenges to the consistency of a development order with a comprehensive plan, which granted standing to any person with an adverse interest that exceeded in degree the general interest shared by all persons, did not apply to challenge by individual and two organizations to city ordinances relating to a proposed planned unit development (PUD) adjacent to a park, where individual and organizations voluntarily dismissed their claim for a determination that the ordinances were inconsistent with city's comprehensive plan. West's F.S.A. § 163.3215(2, 3). 2 Cases that cite this headnote Zoning and Planning 46Right of Review; Standing Trial court in certiorari proceeding challenging city ordinances relating to proposed planned unit development (PUD) adjacent to a park could not evaluate petitioners' standing on the basis of their allegations in the certiorari petition, but rather court's review was limited to the record of the underlying city proceedings. Cases that cite this headnote Certiorari 66Scope and Extent in General The rule in certiorari proceedings is that the reviewing court's consideration shall be confined strictly and solely to the record of proceedings by the agency or board on which WESTLAW 181 Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk the questioned order is based. Cases that cite this headnote Certiorari Persons Entitled The rule that the reviewing court's consideration in certiorari cases shall be confined strictly and solely to the record of proceedings by the agency or board on which the questioned order is based controls the determination of the factual basis establishing standing to initiate a certiorari proceeding in the circuit court. Cases that cite this headnote Attorneys and Law Firms *30 Nancy E. Stroud and Gary K. Oldehoff of Lewis, Stroud and Deutsch, P.L., Boca Raton, and Grant W. Alley, City Attorney, Fort Myers, for Petitioner. Andrew W.J. Dickman of Andrew Dickman, P.A., Naples, for Respondents Virginia Splitt, Caloosahatchee River Citizens Association, Inc., and Responsible Growth Management Coalition, Inc. No Appearance for Respondents Environmental Confederation of Southwest Florida, Inc., and Throgmartin Riverfront Corporation. Opinion CANADY, Judge. In this certiorari proceeding initiated by the City of Fort Myers, we consider whether the circuit court applied the wrong law regarding standing in issuing a writ of certiorari quashing an ordinance adopted by the City. For the reasons we explain, we conclude that the City is entitled to relief. City of Ft. Myers v. Splitt, 988 So.2d 28 (2008) 33 Fla. L. Weekly D1673 I. Background The respondents here, Virginia Splitt, Caloosahatchee River Citizens Association, Inc., and Responsible Growth Management Coalition, Inc. (referred to hereafter collectively as Mrs. Splitt et al.), appeared in the course of proceedings before the City related to a proposed planned unit development (PUD) for a multiuse project known as "The Vue" to be located on riverfront lands adjacent to Centennial Park. The interest asserted by Mrs. Splitt et al. in the proceedings before the City related primarily to their concerns regarding the public enjoyment of Centennial Park. At the hearings before the City, Mrs. Splitt personally only argued (1) that a tree had been planted in the park in memory of her husband and she did not want it moved and (2) that no part of the park should be turned over to private enterprise. The Caloosahatchee River Citizens Association argued in turn that it was concerned that people who purchased condominiums in the buildings which were part of the PUD would object to noise and traffic from festivals held in the park. The Association also asserted that it was "echoing" the objections raised by other citizens. The Association did not specify which objections it was adopting, but the objections made related to (1) the size of the PUD, (2) the fact that people would complain about noise and traffic, (3) increases in intensity and density, (4) elimination of public use of the land since the park would be in the backyard of the condominium purchasers, (5) overburdening of the city's street system, and (6) overburdening of the wastewater treatment system. The Responsible Growth Management Coalition objected only on the basis of the size of the PUD and the fact that city garbage trucks would have to use access roads to pick up the trash at the PUD. Mrs. Splitt et al. filed a certiorari petition in the circuit court challenging three ordinances adopted by the City concerning "The Vue" PUD project. Initially, Mrs. Splitt et al. also filed a declaratory judgment action seeking a determination that the ordinances were inconsistent with the City's comprehensive plan. That action was, however, voluntarily dismissed. The thrust of the certiorari petition was that the ordinances did not comply with the PUD criteria and other requirements applicable under the City's zoning ordinances. The circuit court denied the petition with respect to two of the challenged ordinances but granted it with respect to the third ordinance, ordinance 3366, which was adopted January 11, 2007. *31 In the circuit court, the City challenged the standing of Mrs. Splitt et al. on the ground that they had failed to establish in the record of the proceedings before the City that they had standing under the "special damages" standing test articulated in Renard v. Dade County, 261 WESTLAW Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk So.2d 832, 837 (F1a.1972), for challenges seeking to enforce valid zoning ordinances. Mrs. Splitt et al. conceded that the Renard standard was applicable but contended that the allegations of their petition were sufficient to establish their standing under Renard. The circuit court concluded, however, that the question of standing was governed not by the Renard standard but by the provisions of section 163.3215, Florida Statutes (2006), regarding challenges to the consistency of a development order with a comprehensive plan. Based on the application of section 163.3215, the circuit court determined that -according to the allegations of their petition in the circuit court -Mrs. Splitt et al. had the requisite standing. The City now contends that the circuit court's decision granting relief with respect to ordinance 3366 should be quashed because the circuit court applied the wrong law with respect to the test for standing and thus departed from the essential requirements of law. The City also contends that the circuit court applied the wrong law by not requiring that the facts establishing standing appear in the record of the proceedings before the City. II. Analysis Both parties acknowledge that the decision of the City at issue here was a quasi-judicial decision rather than a legislative decision and thus subject to challenge in the circuit court by way of certiorari. See Park of Commerce Assocs. v. City of Delray Beach, 636 So.2d 12 (F1a.1994). A. Standard of Review 121 In a second -tier certiorari proceeding with respect to a quasi-judicial decision of a local governmental entity, the district court's review of the circuit court's judgment is limited to " 11] whether the circuit court afforded procedural due process and [2] applied the correct law.' " Broward County v. G.B.V. Intl, Ltd., 787 So.2d 838, 843 (F1a.2001) (alterations in original) (quoting City of Deerfield Beach v. Valliant, 419 So.2d 624, 626 (F1a.1982)). In utilizing this two-part standard, a district court is simply "deciding whether the lower court `departed from the essential requirements of law.' " Id. at 1 City of Ft. Myers v. Splitt, 988 So.2d 28 (2008) 33 Fla. L. Weekly D1673 843 n. 16 (quoting Haines City Cmty. Dev. v. Heggs, 658 So.2d 523, 530 (F1a.1995)). j31 " 'The appellate court has no power in exercising its jurisdiction in certiorari to enter a judgment on the merits of the controversy under consideration nor to direct the [entry of] any particular order or judgment.' " G.B.V. Intl, Ltd., 787 So.2d at 844 (quoting Tamiami Trail Tours v. R.R. Comm 'n, 128 Fla. 25, 174 So. 451, 454 (1937) (on rehearing)). B. The Applicable Law of Standing The section 163.3215 standard for standing applied by the trial court governs de novo challenges to "the consistency of a development order with a comprehensive plan." § 163.3215(1). Under the statute, "[a]ny aggrieved or adversely affected party may maintain a de novo action for declaratory, injunctive, or other relief" with regard to "a development order ... which materially alters the use or density or intensity of use on a particular piece of property which is not consistent with the comprehensive plan." § 163.3215(3). The statute defines "aggrieved or adversely affected party" to mean *32 any person or local government that will suffer an adverse effect to an interest protected or furthered by the local government comprehensive plan, including interests related to health and safety, police and fire protection service systems, densities or intensities of development, transportation facilities, health care facilities, equipment or services, and environmental or natural resources. The alleged adverse interest may be shared in common with other members of the community at large but must exceed in degree the general interest in community good shared by all persons. The term includes the owner, developer, WESTLAW Submitted into the public J L__ •.___I_\ record IUf ll. 1!1�5) Y2.1 on 12/13/2018 , City Clerk or applicant for a development order. § 163.3215(2) (emphasis added). 141 The Renard standard for "standing to enforce a valid zoning ordinance" requires a showing of "special damages." 261 So.2d at 837. The "special damages" rule is derived from "the law of public nuisance." Id. at 835 (citing Boucher v. Novotny, 102 So.2d 132 (F1a.1958)). Under this standard, an individual does not have standing to sue unless he can show " `special damages peculiar to himself differing in kind as distinguished from damages differing in degree suffered by the community as a whole.' " Renard, 261 So.2d at 835 (quoting Boucher, 102 So.2d at 135). It has repeatedly been acknowledged that the standing provisions of section 163.3215 were adopted to liberalize the standing requirements that would otherwise be applicable. See Parker v. Leon County, 627 So.2d 476, 479 (F1a.1993); Stranahan House, Inc. v. City of Fort Lauderdale, 967 So.2d 427, 433 (Fla. 4th DCA 2007); Payne v. City of Miami, 927 So.2d 904, 907 (Fla. 3d DCA 2005); Pinecrest Lakes, Inc. v. Shidel, 795 So.2d 191, 200 (Fla. 4th DCA 2001); Putnam County Envtl. Council, Inc. v. Bd. of County Comm 'rs, 757 So.2d 590, 593 (Fla. 5th DCA 2000); Sw. Ranches Homeowners Ass 'n v. Broward County, 502 So.2d 931, 935 (Fla. 4th DCA 1987). The difference between the section 163.3215 standard and the Renard special damages test is immediately apparent. Under section 163.3215(2), standing may be based on the showing of an adverse effect on an interest that "exceed[s] in degree the general interest in community good shared by all persons." (Emphasis added.) The more restrictive Renard standard requires a showing of special damages " `differing in kind as distinguished from damages differing in degree suffered by the community as a whole.' " 261 So.2d at 835 (emphasis added) (quoting Boucher, 102 So.2d at 135). 151 Here, Mrs. Splitt et al. voluntarily abandoned any comprehensive plan consistency challenge to the ordinance. Once they did so, Mrs. Splitt et al. were foreclosed from obtaining the advantage of the more liberal standing provisions applicable under section 163.3215. In determining the standing issue on the basis of section 163.3215, the circuit court failed to apply the correct law. City of Ft. Myers v. Splitt, 988 So.2d 28 (2008) 33 Fla. L. Weekly D1673 C. Determining Standing in Certiorari Proceedings j61 171 181 The circuit court similarly failed to apply the correct law when it determined the standing issue on the basis of the allegations of Mrs. Splitt et al. in their certiorari petition rather than on the basis of the record made in the proceedings before the City. "[T]he well [-]established rule applicable to ... certiorari proceedings[s][is] that the reviewing court's consideration shall be confined strictly and solely to the record of proceedings by the agency or board on which the questioned order is based." Dade County v. Marca, S.A., 326 So.2d 183, 184 (F1a.1976). This *33 rule controls the determination of the factual basis establishing standing to initiate a certiorari proceeding in the circuit court. See Battaglia Fruit Co. v. City of Maitland, 530 So.2d 940, 943 (Fla. 5th DCA 1988) (holding that where city as certiorari petitioner failed to establish the basis for city's standing in the record of the county zoning proceedings, "the circuit court departed from the essential requirements of law in not dismissing the City's petition for lack of standing"). D. Prejudicial Error We reject any suggestion that Mrs. Splitt et al. had standing even under the more restrictive requirements of Renard and that the circuit court's failure to apply the correct law therefore was harmless error. Standing under the Renard special damages test is typically based on Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk some impact on the litigant's interest as an owner of property. See, e.g., Kagan v. West, 677 So.2d 905, 908 (Fla. 4th DCA 1996); Pichette v. City of N. Miami, 642 So.2d 1165, 1165-66 (Fla. 3d DCA 1994); State ex rel. Gardner v. Sailboat Key, Inc., 306 So.2d 616, 618 (Fla. 3d DCA 1974). There is no warrant for concluding that if the circuit court had applied the correct law, it would have determined that Mrs. Splitt et al. established their standing under the special damages test. III. Conclusion Because the circuit court applied the wrong law, we grant the City's petition for certiorari. The order of the circuit court is quashed to the extent that it granted relief with respect to ordinance 3366. Petition granted; order quashed in part. FULMER and VILLANTI, JJ., Concur. All Citations 988 So.2d 28, 33 Fla. L. Weekly D1673 End of Document © 2018 Thomson Reuters. No claim to original U.S. Government Works. WEST LAW 11' City of Ft. Myers v. Splitt, 988 So.2d 28 (2008) 33 Fla. L. Weekly D1673 988 So.2d 28 District Court of Appeal of Florida, Second District. CITY OF FORT MYERS, a Florida municipal corporation, Petitioner, v. Virginia SPLITT, individually, Caloosahatchee River Citizens Association, Inc., a Florida not for profit corporation, Responsible Growth Management Coalition, Inc., a Florida not for profit corporation, Environmental Confederation of Southwest Florida, Inc., a Florida not for profit corporation, and Throgmartin Riverfront Corporation, a Florida corporation, Respondents. No. 2Do7-5469. June 27, 2008. Rehearing Denied Aug. 21, 2008. Synopsis Background: Individual and two organizations filed petition for writ of certiorari, challenging three city ordinances relating to a proposed planned unit development (PUD) adjacent to a park. The Twentieth Judicial Circuit Court, Lee County, sitting in its appellate capacity, quashed one of the ordinances. City filed petition for writ of certiorari. Holdings: The District Court of Appeal, Canady, J., held that: Ell standing requirements in statute governing challenges to the consistency of a development order with a comprehensive plan did not apply, and txl trial court could not evaluate standing on the basis of allegations in the certiorari petition. Petition granted, order quashed in part. 4420. West Headnotes (8) WESTLAW 111 121 131 141 Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk Certiorari -Scope and extent of review in general In a second -tier certiorari proceeding with respect to a quasi-judicial decision of a local governmental entity, the district court's review of the circuit court's judgment is limited to whether the circuit court afforded procedural due process and applied the correct law. U.S.C.A. Const.Amend. 14. Cases that cite this headnote Certiorari •-Scope and extent of review in general On second -tier certiorari review a district court is simply deciding whether the lower court departed from the essential requirements of law. Cases that cite this headnote Certiorari .-Determination and disposition of cause The appellate court has no power in exercising its jurisdiction in certiorari to enter a judgment on the merits of the controversy under consideration nor to direct the entry of any particular order or judgment. Cases that cite this headnote Zoning and Planning Private persons Under the "special damages" standard for evaluating standing to enforce a valid zoning ordinance, an individual does not have standing to sue unless he can show special damages peculiar to himself differing in kind as distinguished from damages differing in degree City of Ft. Myers v. Splitt, 988 So.2d 28 (2008) 33 Fla. L. Weekly D1673 151 161 171 suffered by the community as a whole. Cases that cite this headnote Zoning and Planning -Right of Review; Standing Statute governing challenges to the consistency of a development order with a comprehensive plan, which granted standing to any person with an adverse interest that exceeded in degree the general interest shared by all persons, did not apply to challenge by individual and two organizations to city ordinances relating to a proposed planned unit development (PUD) adjacent to a park, where individual and organizations voluntarily dismissed their claim for a determination that the ordinances were inconsistent with city's comprehensive plan. West's F.S.A. § 163.3215(2, 3). 2 Cases that cite this headnote Zoning and Planning 0-Right of Review; Standing Trial court in certiorari proceeding challenging city ordinances relating to proposed planned unit development (PUD) adjacent to a park could not evaluate petitioners' standing on the basis of their allegations in the certiorari petition, but rather court's review was limited to the record of the underlying city proceedings. Cases that cite this headnote Certiorari 4-Scope and Extent in General The rule in certiorari proceedings is that the reviewing court's consideration shall be confined strictly and solely to the record of proceedings by the agency or board on which WESTLAW 181 Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk the questioned order is based. Cases that cite this headnote Certiorari 0.Persons Entitled The rule that the reviewing court's consideration in certiorari cases shall be confined strictly and solely to the record of proceedings by the agency or board on which the questioned order is based controls the determination of the factual basis establishing standing to initiate a certiorari proceeding in the circuit court. Cases that cite this headnote Attorneys and Law Firms *30 Nancy E. Stroud and Gary K. Oldehoff of Lewis, Stroud and Deutsch, P.L., Boca Raton, and Grant W. Alley, City Attorney, Fort Myers, for Petitioner. Andrew W.J. Dickman of Andrew Dickman, P.A., Naples, for Respondents Virginia Splitt, Caloosahatchee River Citizens Association, Inc., and Responsible Growth Management Coalition, Inc. No Appearance for Respondents Environmental Confederation of Southwest Florida, Inc., and Throgmartin Riverfront Corporation. Opinion CANADY, Judge. In this certiorari proceeding initiated by the City of Fort Myers, we consider whether the circuit court applied the wrong law regarding standing in issuing a writ of certiorari quashing an ordinance adopted by the City. For the reasons we explain, we conclude that the City is entitled to relief. City of Ft. Myers v. Splitt, 988 So.2d 28 (2008) 33 Fla. L. Weekly D1673 I. Background The respondents here, Virginia Splitt, Caloosahatchee River Citizens Association, Inc., and Responsible Growth Management Coalition, Inc. (referred to hereafter collectively as Mrs. Splitt et al.), appeared in the course of proceedings before the City related to a proposed planned unit development (PUD) for a multiuse project known as "The Vue" to be located on riverfront lands adjacent to Centennial Park. The interest asserted by Mrs. Splitt et al. in the proceedings before the City related primarily to their concerns regarding the public enjoyment of Centennial Park. At the hearings before the City, Mrs. Splitt personally only argued (1) that a tree had been planted in the park in memory of her husband and she did not want it moved and (2) that no part of the park should be turned over to private enterprise. The Caloosahatchee River Citizens Association argued in turn that it was concerned that people who purchased condominiums in the buildings which were part of the PUD would object to noise and traffic from festivals held in the park. The Association also asserted that it was "echoing" the objections raised by other citizens. The Association did not specify which objections it was adopting, but the objections made related to (1) the size of the PUD, (2) the fact that people would complain about noise and traffic, (3) increases in intensity and density, (4) elimination of public use of the land since the park would be in the backyard of the condominium purchasers, (5) overburdening of the city's street system, and (6) overburdening of the wastewater treatment system. The Responsible Growth Management Coalition objected only on the basis of the size of the PUD and the fact that city garbage trucks would have to use access roads to pick up the trash at the PUD. Mrs. Splitt et al. filed a certiorari petition in the circuit court challenging three ordinances adopted by the City concerning "The Vue" PUD project. Initially, Mrs. Splitt et al. also filed a declaratory judgment action seeking a determination that the ordinances were inconsistent with the City's comprehensive plan. That action was, however, voluntarily dismissed. The thrust of the certiorari petition was that the ordinances did not comply with the PUD criteria and other requirements applicable under the City's zoning ordinances. The circuit court denied the petition with respect to two of the challenged ordinances but granted it with respect to the third ordinance, ordinance 3366, which was adopted January 11, 2007. *31 In the circuit court, the City challenged the standing of Mrs. Splitt et al. on the ground that they had failed to establish in the record of the proceedings before the City that they had standing under the "special damages" standing test articulated in Renard v. Dade County, 261 WESTLAW Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk So.2d 832, 837 (F1a.1972), for challenges seeking to enforce valid zoning ordinances. Mrs. Splitt et al. conceded that the Renard standard was applicable but contended that the allegations of their petition were sufficient to establish their standing under Renard. The circuit court concluded, however, that the question of standing was governed not by the Renard standard but by the provisions of section 163.3215, Florida Statutes (2006), regarding challenges to the consistency of a development order with a comprehensive plan. Based on the application of section 163.3215, the circuit court determined that -according to the allegations of their petition in the circuit court -Mrs. Splitt et al. had the requisite standing. The City now contends that the circuit court's decision granting relief with respect to ordinance 3366 should be quashed because the circuit court applied the wrong law with respect to the test for standing and thus departed from the essential requirements of law. The City also contends that the circuit court applied the wrong law by not requiring that the facts establishing standing appear in the record of the proceedings before the City. II. Analysis Both parties acknowledge that the decision of the City at issue here was a quasi-judicial decision rather than a legislative decision and thus subject to challenge in the circuit court by way of certiorari. See Park of Commerce Assocs. v. City of Delray Beach, 636 So.2d 12 (F1a.1994). A. Standard of Review Ill 121 In a second -tier certiorari proceeding with respect to a quasi-judicial decision of a local governmental entity, the district court's review of the circuit court's judgment is limited to " 11] whether the circuit court afforded procedural due process and [2] applied the correct law.' " Broward County v. G.B.V. Int'1, Ltd., 787 So.2d 838, 843 (F1a.2001) (alterations in original) (quoting City of Deerfield Beach v. Vaillant, 419 So.2d 624, 626 (F1a.1982)). In utilizing this two-part standard, a district court is simply "deciding whether the lower court `departed from the essential requirements of law.' " Id. at City of Ft. Myers v. Splitt, 988 So.2d 28 (2008) 33 Fla. L. Weekly D1673 843 n. 16 (quoting Haines City Cmty. Dev. v. Heggs, 658 So.2d 523, 530 (F1a.1995)). 131 " 'The appellate court has no power in exercising its jurisdiction in certiorari to enter a judgment on the merits of the controversy under consideration nor to direct the [entry of] any particular order or judgment.' " G.B.Y. Int'l, Ltd., 787 So.2d at 844 (quoting Tamiami Trail Tours v. R.R. Comm'n, 128 Fla. 25, 174 So. 451, 454 (1937) (on rehearing)). B. The Applicable Law of Standing The section 163.3215 standard for standing applied by the trial court governs de novo challenges to "the consistency of a development order with a comprehensive plan." § 163.3215(1). Under the statute, "[a]ny aggrieved or adversely affected party may maintain a de novo action for declaratory, injunctive, or other relief' with regard to "a development order ... which materially alters the use or density or intensity of use on a particular piece of property which is not consistent with the comprehensive plan." § 163.3215(3). The statute defines "aggrieved or adversely affected party" to mean *32 any person or local government that will suffer an adverse effect to an interest protected or furthered by the local government comprehensive plan, including interests related to health and safety, police and fire protection service systems, densities or intensities of development, transportation facilities, health care facilities, equipment or services, and environmental or natural resources. The alleged adverse interest may be shared in common with other members of the community at large but must exceed in degree the general interest in community good shared by all persons. The term includes the owner, developer, WESTLAW Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk or applicant for a development order. § 163.3215(2) (emphasis added). 141 The Renard standard for "standing to enforce a valid zoning ordinance" requires a showing of "special damages." 261 So.2d at 837. The "special damages" rule is derived from "the law of public nuisance." Id. at 835 (citing Boucher v. Novotny, 102 So.2d 132 (F1a.1958)). Under this standard, an individual does not have standing to sue unless he can show " `special damages peculiar to himself differing in kind as distinguished from damages differing in degree suffered by the community as a whole.' " Renard, 261 So.2d at 835 (quoting Boucher, 102 So.2d at 135). It has repeatedly been acknowledged that the standing provisions of section 163.3215 were adopted to liberalize the standing requirements that would otherwise be applicable. See Parker v. Leon County, 627 So.2d 476, 479 (F1a.1993); Stranahan House, Inc. v. City of Fort Lauderdale, 967 So.2d 427, 433 (Fla. 4th DCA 2007); Payne v. City of Miami, 927 So.2d 904, 907 (Fla. 3d DCA 2005); Pinecrest Lakes, Inc. v. Shidel, 795 So.2d 191, 200 (Fla. 4th DCA 2001); Putnam County Envtl. Council, Inc. v. Bd. of County Comm 'rs, 757 So.2d 590, 593 (Fla. 5th DCA 2000); Sw. Ranches Homeowners Ass 'n v. Broward County, 502 So.2d 931, 935 (Fla. 4th DCA 1987). The difference between the section 163.3215 standard and the Renard special damages test is immediately apparent. Under section 163.3215(2), standing may be based on the showing of an adverse effect on an interest that "exceed[s] in degree the general interest in community good shared by all persons." (Emphasis added.) The more restrictive Renard standard requires a showing of special damages " `differing in kind as distinguished from damages differing in degree suffered by the community as a whole.' " 261 So.2d at 835 (emphasis added) (quoting Boucher, 102 So.2d at 135). 151 Here, Mrs. Splitt et al. voluntarily abandoned any comprehensive plan consistency challenge to the ordinance. Once they did so, Mrs. Splitt et al. were foreclosed from obtaining the advantage of the more liberal standing provisions applicable under section 163.3215. In determining the standing issue on the basis of section 163.3215, the circuit court failed to apply the correct law. 1.111161 kr City of Ft. Myers v. Splitt, 988 So.2d 28 (2008) 33 Fla. L. Weekly D1673 C. Determining Standing in Certiorari Proceedings j61 171 181 The circuit court similarly failed to apply the correct law when it determined the standing issue on the basis of the allegations of Mrs. Splitt et al. in their certiorari petition rather than on the basis of the record made in the proceedings before the City. "[T]he well [-]established rule applicable to ... certiorari proceedings[s][is] that the reviewing court's consideration shall be confined strictly and solely to the record of proceedings by the agency or board on which the questioned order is based." Dade County v. Marca, S.A., 326 So.2d 183, 184 (F1a.1976). This *33 rule controls the determination of the factual basis establishing standing to initiate a certiorari proceeding in the circuit court. See Battaglia Fruit Co. v. City of Maitland, 530 So.2d 940, 943 (Fla. 5th DCA 1988) (holding that where city as certiorari petitioner failed to establish the basis for city's standing in the record of the county zoning proceedings, "the circuit court departed from the essential requirements of law in not dismissing the City's petition for lack of standing"). D. Prejudicial Error We reject any suggestion that Mrs. Splitt et al. had standing even under the more restrictive requirements of Renard and that the circuit court's failure to apply the correct law therefore was harmless error. Standing under the Renard special damages test is typically based on Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk some impact on the litigant's interest as an owner of property. See, e.g., Kagan v. West, 677 So.2d 905, 908 (Fla. 4th DCA 1996); Pichette v. City of N. Miami, 642 So.2d 1165, 1165-66 (Fla. 3d DCA 1994); State ex rel. Gardner v. Sailboat Key, Inc., 306 So.2d 616, 618 (Fla. 3d DCA 1974). There is no warrant for concluding that if the circuit court had applied the correct law, it would have determined that Mrs. Splitt et al. established their standing under the special damages test. III. Conclusion Because the circuit court applied the wrong law, we grant the City's petition for certiorari. The order of the circuit court is quashed to the extent that it granted relief with respect to ordinance 3366. Petition granted; order quashed in part. FULMER and VILLANTI, JJ., Concur. All Citations 988 So.2d 28, 33 Fla. L. Weekly D1673 End of Document © 2018 Thomson Reuters. No claim to original U.S. Government Works. WESTLAW City of Ft. Myers v. Splitt, 988 So.2d 28 (2008) 33 Fla. L. Weekly D1673 988 So.2d 28 District Court of Appeal of Florida, Second District. CITY OF FORT MYERS, a Florida municipal corporation, Petitioner, v. Virginia SPLITT, individually, Caloosahatchee River Citizens Association, Inc., a Florida not for profit corporation, Responsible Growth Management Coalition, Inc., a Florida not for profit corporation, Environmental Confederation of Southwest Florida, Inc., a Florida not for profit corporation, and Throgmartin Riverfront Corporation, a Florida corporation, Respondents. No. 2D07-5469. June 27, 2008. Rehearing Denied Aug. 21, 2008. Synopsis Background: Individual and two organizations filed petition for writ of certiorari, challenging three city ordinances relating to a proposed planned unit development (PUD) adjacent to a park. The Twentieth Judicial Circuit Court, Lee County, sitting in its appellate capacity, quashed one of the ordinances. City filed petition for writ of certiorari. Holdings: The District Court of Appeal, Canady, J., held that: Eli standing requirements in statute governing challenges to the consistency of a development order with a comprehensive plan did not apply, and [�] trial court could not evaluate standing on the basis of allegations in the certiorari petition. Petition granted. order quashed in part. West Headnotes (8) WESTLAW n1 121 131 141 Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk Certiorari 4—Scope and extent of review in general In a second -tier certiorari proceeding with respect to a quasi-judicial decision of a local governmental entity, the district court's review of the circuit court's judgment is limited to whether the circuit court afforded procedural due process and applied the correct law. U.S.C.A. Const.Amend. 14. Cases that cite this headnote Certiorari .-Scope and extent of review in general On second -tier certiorari review a district court is simply deciding whether the lower court departed from the essential requirements of law. Cases that cite this headnote Certiorari 8—Determination and disposition of cause The appellate court has no power in exercising its jurisdiction in certiorari to enter a judgment on the merits of the controversy under consideration nor to direct the entry of any particular order or judgment. Cases that cite this headnote Zoning and Planning Private persons Under the "special damages" standard for evaluating standing to enforce a valid zoning ordinance, an individual does not have standing to sue unless he can show special damages peculiar to himself differing in kind as distinguished from damages differing in degree City of Ft. Myers v. Splitt, 988 So.2d 28 (2008) 33 Fla. L. Weekly D1673 151 161 171 suffered by the community as a whole. Cases that cite this headnote Zoning and Planning 6-Right of Review; Standing Statute governing challenges to the consistency of a development order with a comprehensive plan, which granted standing to any person with an adverse interest that exceeded in degree the general interest shared by all persons, did not apply to challenge by individual and two organizations to city ordinances relating to a proposed planned unit development (PUD) adjacent to a park, where individual and organizations voluntarily dismissed their claim for a determination that the ordinances were inconsistent with city's comprehensive plan. West's F.S.A. § 163.3215(2, 3). 2 Cases that cite this headnote Zoning and Planning 6-Right of Review; Standing Trial court in certiorari proceeding challenging city ordinances relating to proposed planned unit development (PUD) adjacent to a park could not evaluate petitioners' standing on the basis of their allegations in the certiorari petition, but rather court's review was limited to the record of the underlying city proceedings. Cases that cite this headnote Certiorari 4-Scope and Extent in General The rule in certiorari proceedings is that the reviewing court's consideration shall be confined strictly and solely to the record of proceedings by the agency or board on which WESTLAW 181 Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk the questioned order is based. Cases that cite this headnote Certiorari -Persons Entitled The rule that the reviewing court's consideration in certiorari cases shall be confined strictly and solely to the record of proceedings by the agency or board on which the questioned order is based controls the determination of the factual basis establishing standing to initiate a certiorari proceeding in the circuit court. Cases that cite this headnote Attorneys and Law Firms *30 Nancy E. Stroud and Gary K. Oldehoff of Lewis, Stroud and Deutsch, P.L., Boca Raton, and Grant W. Alley, City Attorney, Fort Myers, for Petitioner. Andrew W.J. Dickman of Andrew Dickman, P.A., Naples, for Respondents Virginia Splitt, Caloosahatchee River Citizens Association, Inc., and Responsible Growth Management Coalition, Inc. No Appearance for Respondents Environmental Confederation of Southwest Florida, Inc., and Throgmartin Riverfront Corporation. Opinion CANADY, Judge. In this certiorari proceeding initiated by the City of Fort Myers, we consider whether the circuit court applied the wrong law regarding standing in issuing a writ of certiorari quashing an ordinance adopted by the City. For the reasons we explain, we conclude that the City is entitled to relief. City of Ft. Myers v. Splitt, 988 So.2d 28 (2008) 33 Fla. L. Weekly D1673 I. Background The respondents here, Virginia Splitt, Caloosahatchee River Citizens Association, Inc., and Responsible Growth Management Coalition, Inc. (referred to hereafter collectively as Mrs. Splitt et al.), appeared in the course of proceedings before the City related to a proposed planned unit development (PUD) for a multiuse project known as "The Vue" to be located on riverfront lands adjacent to Centennial Park. The interest asserted by Mrs. Splitt et al. in the proceedings before the City related primarily to their concerns regarding the public enjoyment of Centennial Park. At the hearings before the City, Mrs. Splitt personally only argued (1) that a tree had been planted in the park in memory of her husband and she did not want it moved and (2) that no part of the park should be turned over to private enterprise. The Caloosahatchee River Citizens Association argued in turn that it was concemed that people who purchased condominiums in the buildings which were part of the PUD would object to noise and traffic from festivals held in the park. The Association also asserted that it was "echoing" the objections raised by other citizens. The Association did not specify which objections it was adopting, but the objections made related to (1) the size of the PUD, (2) the fact that people would complain about noise and traffic, (3) increases in intensity and density, (4) elimination of public use of the land since the park would be in the backyard of the condominium purchasers, (5) overburdening of the city's street system, and (6) overburdening of the wastewater treatment system. The Responsible Growth Management Coalition objected only on the basis of the size of the PUD and the fact that city garbage trucks would have to use access roads to pick up the trash at the PUD. Mrs. Splitt et al. filed a certiorari petition in the circuit court challenging three ordinances adopted by the City concerning "The Vue" PUD project. Initially, Mrs. Splitt et al. also filed a declaratory judgment action seeking a determination that the ordinances were inconsistent with the City's comprehensive plan. That action was, however, voluntarily dismissed. The thrust of the certiorari petition was that the ordinances did not comply with the PUD criteria and other requirements applicable under the City's zoning ordinances. The circuit court denied the petition with respect to two of the challenged ordinances but granted it with respect to the third ordinance, ordinance 3366, which was adopted January 11, 2007. *31 In the circuit court, the City challenged the standing of Mrs. Splitt et al. on the ground that they had failed to establish in the record of the proceedings before the City that they had standing under the "special damages" standing test articulated in Renard v. Dade County, 261 WESTLAW Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk So.2d 832, 837 (F1a.1972), for challenges seeking to enforce valid zoning ordinances. Mrs. Splitt et al. conceded that the Renard standard was applicable but contended that the allegations of their petition were sufficient to establish their standing under Renard. The circuit court concluded, however, that the question of standing was governed not by the Renard standard but by the provisions of section 163.3215, Florida Statutes (2006), regarding challenges to the consistency of a development order with a comprehensive plan. Based on the application of section 163.3215, the circuit court determined that -according to the allegations of their petition in the circuit court -Mrs. Splitt et al. had the requisite standing. The City now contends that the circuit court's decision granting relief with respect to ordinance 3366 should be quashed because the circuit court applied the wrong law with respect to the test for standing and thus departed from the essential requirements of law. The City also contends that the circuit court applied the wrong law by not requiring that the facts establishing standing appear in the record of the proceedings before the City. II. Analysis Both parties acknowledge that the decision of the City at issue here was a quasi-judicial decision rather than a legislative decision and thus subject to challenge in the circuit court by way of certiorari. See Park of Commerce Assocs. v. City of Delray Beach, 636 So.2d 12 (F1a.1994). A. Standard of Review " 1 j21 In a second -tier certiorari proceeding with respect to a quasi-judicial decision of a local governmental entity, the district court's review of the circuit court's judgment is limited to " `[1] whether the circuit court afforded procedural due process and [2] applied the correct law.' " Broward County v. G.B.V. Int'l, Ltd., 787 So.2d 838, 843 (F1a.2001) (alterations in original) (quoting City of Deerfield Beach v. Vaillant, 419 So.2d 624, 626 (F1a.1982)). In utilizing this two-part standard, a district court is simply "deciding whether the lower court `departed from the essential requirements of law.' " Id. at City of Ft. Myers v. Splitt, 988 So.2d 28 (2008) 33 Fla. L. Weekly D1673 843 n. 16 (quoting Haines City Cmty. Dev. v. Heggs, 658 So.2d 523, 530 (F1a.1995)). j3! " 'The appellate court has no power in exercising its jurisdiction in certiorari to enter a judgment on the merits of the controversy under consideration nor to direct the [entry of] any particular order or judgment.' " G.B. V. Int'1, Ltd., 787 So.2d at 844 (quoting Tamiami Trail Tours v. R.R. Comm'n, 128 Fla. 25, 174 So. 451, 454 (1937) (on rehearing)). B. The Applicable Law of Standing The section 163.3215 standard for standing applied by the trial court governs de novo challenges to "the consistency of a development order with a comprehensive plan." § 163.3215(1). Under the statute, "[a]ny aggrieved or adversely affected party may maintain a de novo action for declaratory, injunctive, or other relief' with regard to "a development order ... which materially alters the use or density or intensity of use on a particular piece of property which is not consistent with the comprehensive plan." § 163.3215(3). The statute defines "aggrieved or adversely affected party" to mean *32 any person or local government that will suffer an adverse effect to an interest protected or furthered by the local government comprehensive plan, including interests related to health and safety, police and fire protection service systems, densities or intensities of development, transportation facilities, health care facilities, equipment or services, and environmental or natural resources. The alleged adverse interest may be shared in common with other members of the community at large but must exceed in degree the general interest in community good shared by all persons. The term includes the owner, developer, WESTLAW Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk or applicant for a development order. § 163.3215(2) (emphasis added). 141 The Renard standard for "standing to enforce a valid zoning ordinance" requires a showing of "special damages." 261 So.2d at 837. The "special damages" rule is derived from "the law of public nuisance." Id. at 835 (citing Boucher v. Novotny, 102 So.2d 132 (F1a.1958)). Under this standard, an individual does not have standing to sue unless he can show " `special damages peculiar to himself differing in kind as distinguished from damages differing in degree suffered by the community as a whole.' " Renard, 261 So.2d at 835 (quoting Boucher, 102 So.2d at 135). It has repeatedly been acknowledged that the standing provisions of section 163.3215 were adopted to liberalize the standing requirements that would otherwise be applicable. See Parker v. Leon County, 627 So.2d 476, 479 (F1a.1993); Stranahan House, Inc. v. City of Fort Lauderdale, 967 So.2d 427, 433 (Fla. 4th DCA 2007); Payne v. City of Miami, 927 So.2d 904, 907 (Fla. 3d DCA 2005); Pinecrest Lakes, Inc. v. Shidel, 795 So.2d 191, 200 (Fla. 4th DCA 2001); Putnam County Envtl. Council, Inc. v. Bd. of County Comm'rs, 757 So.2d 590, 593 (Fla. 5th DCA 2000); Sw. Ranches Homeowners Ass 'n v. Broward County, 502 So.2d 931, 935 (Fla. 4th DCA 1987). The difference between the section 163.3215 standard and the Renard special damages test is immediately apparent. Under section 163.3215(2), standing may be based on the showing of an adverse effect on an interest that "exceed[s] in degree the general interest in community good shared by all persons." (Emphasis added.) The more restrictive Renard standard requires a showing of special damages " `differing in kind as distinguished from damages differing in degree suffered by the community as a whole.' " 261 So.2d at 835 (emphasis added) (quoting Boucher, 102 So.2d at 135). 151 Here, Mrs. Splitt et al. voluntarily abandoned any comprehensive plan consistency challenge to the ordinance. Once they did so, Mrs. Splitt et al. were foreclosed from obtaining the advantage of the more liberal standing provisions applicable under section 163.3215. In determining the standing issue on the basis of section 163.3215, the circuit court failed to apply the correct law. City of Ft. Myers v. Splitt, 988 So.2d 28 (2008) 33 Fla. L. Weekly D1673 C. Determining Standing in Certiorari Proceedings 161 171 181 The circuit court similarly failed to apply the correct law when it determined the standing issue on the basis of the allegations of Mrs. Splitt et al. in their certiorari petition rather than on the basis of the record made in the proceedings before the City. "[T]he well [-]established rule applicable to ... certiorari proceedings[s][is] that the reviewing court's consideration shall be confined strictly and solely to the record of proceedings by the agency or board on which the questioned order is based." Dade County v. Marca, S.A., 326 So.2d 183, 184 (F1a.1976). This *33 rule controls the determination of the factual basis establishing standing to initiate a certiorari proceeding in the circuit court. See Battaglia Fruit Co. v. City of Maitland, 530 So.2d 940, 943 (Fla. 5th DCA 1988) (holding that where city as certiorari petitioner failed to establish the basis for city's standing in the record of the county zoning proceedings, "the circuit court departed from the essential requirements of law in not dismissing the City's petition for lack of standing"). D. Prejudicial Error We reject any suggestion that Mrs. Splitt et al. had standing even under the more restrictive requirements of Renard and that the circuit court's failure to apply the correct law therefore was harmless error. Standing under the Renard special damages test is typically based on Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk some impact on the litigant's interest as an owner of property. See, e.g., Kagan v. West, 677 So.2d 905, 908 (Fla. 4th DCA 1996); Pichette v. City of N. Miami, 642 So.2d 1165, 1165-66 (Fla. 3d DCA 1994); State ex rel. Gardner v. Sailboat Key, Inc., 306 So.2d 616, 618 (Fla. 3d DCA 1974). There is no warrant for concluding that if the circuit court had applied the correct law, it would have determined that Mrs. Splitt et al. established their standing under the special damages test. III. Conclusion Because the circuit court applied the wrong law, we grant the City's petition for certiorari. The order of the circuit court is quashed to the extent that it granted relief with respect to ordinance 3366. Petition granted; order quashed in part. FULMER and VILLANTI, JJ., Concur. All Citations 988 So.2d 28, 33 Fla. L. Weekly D1673 End of Document © 2018 Thomson Reuters. No claim to original U.S. Government Works. WESTLAW City of Ft. Myers v. Splitt, 988 So.2d 28 (2008) 33 Fla. L. Weekly D1673 988 So.2d 28 District Court of Appeal of Florida, Second District. CITY OF FORT MYERS, a Florida municipal corporation, Petitioner, v. Virginia SPLIT'', individually, Caloosahatchee River Citizens Association, Inc., a Florida not for profit corporation, Responsible Growth Management Coalition, Inc., a Florida not for profit corporation, Environmental Confederation of Southwest Florida, Inc., a Florida not for profit corporation, and Throgmartin Riverfront Corporation, a Florida corporation, Respondents. No. 2D07-5469. June 27, 2008. Rehearing Denied Aug. 21, 2008. Synopsis Background: Individual and two organizations filed petition for writ of certiorari, challenging three city ordinances relating to a proposed planned unit development (PUD) adjacent to a park. The Twentieth Judicial Circuit Court, Lee County, sitting in its appellate capacity, quashed one of the ordinances. City filed petition for writ of certiorari. Holdings: The District Court of Appeal, Canady, J., held that: [1] standing requirements in statute governing challenges to the consistency of a development order with a comprehensive plan did not apply, and [21 trial court could not evaluate standing on the basis of allegations in the certiorari petition. Petition granted, order quashed in part. West Headnotes (8) WESTLAW 111 121 131 141 Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk Certiorari -Scope and extent of review in general In a second -tier certiorari proceeding with respect to a quasi-judicial decision of a local governmental entity, the district court's review of the circuit court's judgment is limited to whether the circuit court afforded procedural due process and applied the correct law. U.S.C.A. Const.Amend. 14. Cases that cite this headnote Certiorari '-Scope and extent of review in general On second -tier certiorari review a district court is simply deciding whether the lower court departed from the essential requirements of law. Cases that cite this headnote Certiorari -Determination and disposition of cause The appellate court has no power in exercising its jurisdiction in certiorari to enter a judgment on the merits of the controversy under consideration nor to direct the entry of any particular order or judgment. Cases that cite this headnote Zoning and Planning Private persons Under the "special damages" standard for evaluating standing to enforce a valid zoning ordinance, an individual does not have standing to sue unless he can show special damages peculiar to himself differing in kind as distinguished from damages differing in degree City of Ft. Myers v. Splitt, 988 So.2d 28 (2008) 33 Fla. L. Weekly D1673 151 161 171 suffered by the community as a whole. Cases that cite this headnote Zoning and Planning ...Right of Review; Standing Statute governing challenges to the consistency of a development order with a comprehensive plan, which granted standing to any person with an adverse interest that exceeded in degree the general interest shared by all persons, did not apply to challenge by individual and two organizations to city ordinances relating to a proposed planned unit development (PUD) adjacent to a park, where individual and organizations voluntarily dismissed their claim for a determination that the ordinances were inconsistent with city's comprehensive plan. West's F.S.A. § 163.3215(2, 3). 2 Cases that cite this headnote Zoning and Planning .-Right of Review; Standing Trial court in certiorari proceeding challenging city ordinances relating to proposed planned unit development (PUD) adjacent to a park could not evaluate petitioners' standing on the basis of their allegations in the certiorari petition, but rather court's review was limited to the record of the underlying city proceedings. Cases that cite this headnote Certiorari .-Scope and Extent in General The rule in certiorari proceedings is that the reviewing court's consideration shall be confined strictly and solely to the record of proceedings by the agency or board on which WESTLAW 181 Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk the questioned order is based. Cases that cite this headnote Certiorari .-Persons Entitled The rule that the reviewing court's consideration in certiorari cases shall be confined strictly and solely to the record of proceedings by the agency or board on which the questioned order is based controls the determination of the factual basis establishing standing to initiate a certiorari proceeding in the circuit court. Cases that cite this headnote Attorneys and Law Firms *30 Nancy E. Stroud and Gary K. Oldehoff of Lewis, Stroud and Deutsch, P.L., Boca Raton, and Grant W. Alley, City Attorney, Fort Myers, for Petitioner. Andrew W.J. Dickman of Andrew Dickman, P.A., Naples, for Respondents Virginia Splitt, Caloosahatchee River Citizens Association, Inc., and Responsible Growth Management Coalition, Inc. No Appearance for Respondents Environmental Confederation of Southwest Florida, Inc., and Throgmartin Riverfront Corporation. Opinion CANADY, Judge. In this certiorari proceeding initiated by the City of Fort Myers, we consider whether the circuit court applied the wrong law regarding standing in issuing a writ of certiorari quashing an ordinance adopted by the City. For the reasons we explain, we conclude that the City is entitled to relief. City of Ft. Myers v. Splitt, 988 So.2d 28 (2008) 33 Fla. L. Weekly D1673 1. Background The respondents here, Virginia Splitt, Caloosahatchee River Citizens Association, Inc., and Responsible Growth Management Coalition, Inc. (referred to hereafter collectively as Mrs. Splitt et al.), appeared in the course of proceedings before the City related to a proposed planned unit development (PUD) for a multiuse project known as "The Vue" to be located on riverfront lands adjacent to Centennial Park. The interest asserted by Mrs. Splitt et al. in the proceedings before the City related primarily to their concerns regarding the public enjoyment of Centennial Park. At the hearings before the City, Mrs. Splitt personally only argued (1) that a tree had been planted in the park in memory of her husband and she did not want it moved and (2) that no part of the park should be turned over to private enterprise. The Caloosahatchee River Citizens Association argued in turn that it was concerned that people who purchased condominiums in the buildings which were part of the PUD would object to noise and traffic from festivals held in the park. The Association also asserted that it was "echoing" the objections raised by other citizens. The Association did not specify which objections it was adopting, but the objections made related to (1) the size of the PUD, (2) the fact that people would complain about noise and traffic, (3) increases in intensity and density, (4) elimination of public use of the land since the park would be in the backyard of the condominium purchasers, (5) overburdening of the city's street system, and (6) overburdening of the wastewater treatment system. The Responsible Growth Management Coalition objected only on the basis of the size of the PUD and the fact that city garbage trucks would have to use access roads to pick up the trash at the PUD. Mrs. Splitt et al. filed a certiorari petition in the circuit court challenging three ordinances adopted by the City concerning "The Vue" PUD project. Initially, Mrs. Splitt et al. also filed a declaratory judgment action seeking a determination that the ordinances were inconsistent with the City's comprehensive plan. That action was, however, voluntarily dismissed. The thrust of the certiorari petition was that the ordinances did not comply with the PUD criteria and other requirements applicable under the City's zoning ordinances. The circuit court denied the petition with respect to two of the challenged ordinances but granted it with respect to the third ordinance, ordinance 3366, which was adopted January 11, 2007. *31 In the circuit court, the City challenged the standing of Mrs. Splitt et al. on the ground that they had failed to establish in the record of the proceedings before the City that they had standing under the "special damages" standing test articulated in Renard v. Dade County, 261 Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk So.2d 832, 837 (F1a.1972), for challenges seeking to enforce valid zoning ordinances. Mrs. Splitt et al. conceded that the Renard standard was applicable but contended that the allegations of their petition were sufficient to establish their standing under Renard. The circuit court concluded, however, that the question of standing was governed not by the Renard standard but by the provisions of section 163.3215, Florida Statutes (2006), regarding challenges to the consistency of a development order with a comprehensive plan. Based on the application of section 163.3215, the circuit court determined that -according to the allegations of their petition in the circuit court -Mrs. Splitt et al. had the requisite standing. The City now contends that the circuit court's decision granting relief with respect to ordinance 3366 should be quashed because the circuit court applied the wrong law with respect to the test for standing and thus departed from the essential requirements of law. The City also contends that the circuit court applied the wrong law by not requiring that the facts establishing standing appear in the record of the proceedings before the City. 11. Analysis Both parties acknowledge that the decision of the City at issue here was a quasi-judicial decision rather than a legislative decision and thus subject to challenge in the circuit court by way of certiorari. See Park of Commerce Assocs. v. City of Delray Beach, 636 So.2d 12 (F1a.1994). A. Standard of Review 111 121 In a second -tier certiorari proceeding with respect to a quasi-judicial decision of a local governmental entity, the district court's review of the circuit court's judgment is limited to " `[1] whether the circuit court afforded procedural due process and [2] applied the correct law.' " Broward County v. G.B.V. Int'l, Ltd., 787 So.2d 838, 843 (F1a.2001) (alterations in original) (quoting City of Deerfield Beach v. Vaillant, 419 So.2d 624, 626 (F1a.1982)). In utilizing this two-part standard, a district court is simply "deciding whether the lower court `departed from the essential requirements of law.' " Id. at WESTLAW City of Ft. Myers v. Splitt, 988 So.2d 28 (2008) 33 Fla. L. Weekly D1673 843 n. 16 (quoting Haines City Cmty. Dev. v. Heggs, 658 So.2d 523, 530 (F1a.1995)). 131 " 'The appellate court has no power in exercising its jurisdiction in certiorari to enter a judgment on the merits of the controversy under consideration nor to direct the [entry of] any particular order or judgment.' " G.B.Y. Int'1, Ltd., 787 So.2d at 844 (quoting Tamiami Trail Tours v. R.R. Comm'n, 128 Fla. 25, 174 So. 451, 454 (1937) (on rehearing)). B. The Applicable Law of Standing The section 163.3215 standard for standing applied by the trial court governs de novo challenges to "the consistency of a development order with a comprehensive plan." § 163.3215(1). Under the statute, "[a]ny aggrieved or adversely affected party may maintain a de novo action for declaratory, injunctive, or other relief' with regard to "a development order ... which materially alters the use or density or intensity of use on a particular piece of property which is not consistent with the comprehensive plan." § 163.3215(3). The statute defines "aggrieved or adversely affected party" to mean *32 any person or local government that will suffer an adverse effect to an interest protected or furthered by the local government comprehensive plan, including interests related to health and safety, police and fire protection service systems, densities or intensities of development, transportation facilities, health care facilities, equipment or services, and environmental or natural resources. The alleged adverse interest may be shared in common with other members of the community at large but must exceed in degree the general interest in community good shared by all persons. The term includes the owner, developer, Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk or applicant for a development order. § 163.3215(2) (emphasis added). 141 The Renard standard for "standing to enforce a valid zoning ordinance" requires a showing of "special damages." 261 So.2d at 837. The "special damages" rule is derived from "the law of public nuisance." Id. at 835 (citing Boucher v. Novotny, 102 So.2d 132 (F1a.1958)). Under this standard, an individual does not have standing to sue unless he can show " `special damages peculiar to himself differing in kind as distinguished from damages differing in degree suffered by the community as a whole.' " Renard, 261 So.2d at 835 (quoting Boucher, 102 So.2d at 135). It has repeatedly been acknowledged that the standing provisions of section 163.3215 were adopted to liberalize the standing requirements that would otherwise be applicable. See Parker v. Leon County, 627 So.2d 476, 479 (F1a.1993); Stranahan House, Inc. v. City of Fort Lauderdale, 967 So.2d 427, 433 (Fla. 4th DCA 2007); Payne v. City of Miami, 927 So.2d 904, 907 (Fla. 3d DCA 2005); Pinecrest Lakes, Inc. v. Shidel, 795 So.2d 191, 200 (Fla. 4th DCA 2001); Putnam County Envtl. Council, Inc. v. Bd. of County Comm'rs, 757 So.2d 590, 593 (Fla. 5th DCA 2000); Sw. Ranches Homeowners Ass 'n v. Broward County, 502 So.2d 931, 935 (Fla. 4th DCA 1987). The difference between the section 163.3215 standard and the Renard special damages test is immediately apparent. Under section 163.3215(2), standing may be based on the showing of an adverse effect on an interest that "exceed[s] in degree the general interest in community good shared by all persons." (Emphasis added.) The more restrictive Renard standard requires a showing of special damages " `differing in kind as distinguished from damages differing in degree suffered by the community as a whole.' " 261 So.2d at 835 (emphasis added) (quoting Boucher, 102 So.2d at 135). 151 Here, Mrs. Splitt et al. voluntarily abandoned any comprehensive plan consistency challenge to the ordinance. Once they did so, Mrs. Splitt et al. were foreclosed from obtaining the advantage of the more liberal standing provisions applicable under section 163.3215. In determining the standing issue on the basis of section 163.3215, the circuit court failed to apply the correct law. WESTLAW City of Ft. Myers v. Splitt, 988 So.2d 28 (2008) 33 Fla. L. Weekly D1673 C. Determining Standing in Certiorari Proceedings 161 171 181 The circuit court similarly failed to apply the correct law when it determined the standing issue on the basis of the allegations of Mrs. Splitt et al. in their certiorari petition rather than on the basis of the record made in the proceedings before the City. "[T]he well [-]established rule applicable to ... certiorari proceedings[s]Lis] that the reviewing court's consideration shall be confined strictly and solely to the record of proceedings by the agency or board on which the questioned order is based." Dade County v. Marca, S.A., 326 So.2d 183, 184 (F1a.1976). This *33 rule controls the determination of the factual basis establishing standing to initiate a certiorari proceeding in the circuit court. See Battaglia Fruit Co. v. City of Maitland, 530 So.2d 940, 943 (Fla. 5th DCA 1988) (holding that where city as certiorari petitioner failed to establish the basis for city's standing in the record of the county zoning proceedings, "the circuit court departed from the essential requirements of law in not dismissing the City's petition for lack of standing"). D. Prejudicial Error We reject any suggestion that Mrs. Splitt et al. had standing even under the more restrictive requirements of Renard and that the circuit court's failure to apply the correct law therefore was harmless error. Standing under the Renard special damages test is typically based on Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk some impact on the litigant's interest as an owner of property. See, e.g., Kagan v. West, 677 So.2d 905, 908 (Fla. 4th DCA 1996); Pichette v. City of N. Miami, 642 So.2d 1165, 1165-66 (Fla. 3d DCA 1994); State ex rel. Gardner v. Sailboat Key, Inc., 306 So.2d 616, 618 (Fla. 3d DCA 1974). There is no warrant for concluding that if the circuit court had applied the correct law, it would have determined that Mrs. Splitt et al. established their standing under the special damages test. II1. Conclusion Because the circuit court applied the wrong law, we grant the City's petition for certiorari. The order of the circuit court is quashed to the extent that it granted relief with respect to ordinance 3366. Petition granted; order quashed in part. FULMER and VILLANTI, JJ., Concur. All Citations 988 So.2d 28, 33 Fla. L. Weekly D1673 End of Document © 2018 Thomson Reuters. No claim to original U.S. Government Works. WESTLAW !' City of Ft. Myers v. Splitt, 988 So.2d 28 (2008) 33 Fla. L. Weekly D1673 988 So.2d 28 District Court of Appeal of Florida, Second District. CITY OF FORT MYERS, a Florida municipal corporation, Petitioner, v. Virginia SPLITT, individually, Caloosahatchee River Citizens Association, Inc., a Florida not for profit corporation, Responsible Growth Management Coalition, Inc., a Florida not for profit corporation, Environmental Confederation of Southwest Florida, Inc., a Florida not for profit corporation, and Throgmartin Riverfront Corporation, a Florida corporation, Respondents. No. 2D07-5469. June 27, 2008. Rehearing Denied Aug. 21, 2008. Synopsis Background: Individual and two organizations filed petition for writ of certiorari, challenging three city ordinances relating to a proposed planned unit development (PUD) adjacent to a park. The Twentieth Judicial Circuit Court, Lee County, sitting in its appellate capacity, quashed one of the ordinances. City filed petition for writ of certiorari. Holdings: The District Court of Appeal, Canady, J., held that: Ell standing requirements in statute governing challenges to the consistency of a development order with a comprehensive plan did not apply, and [21 trial court could not evaluate standing on the basis of allegations in the certiorari petition. Petition granted, order quashed in part. West Headnotes (8) WESTLAW (tj 12] 131 141 Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk Certiorari ...Scope and extent of review in general In a second -tier certiorari proceeding with respect to a quasi-judicial decision of a local governmental entity, the district court's review of the circuit court's judgment is limited to whether the circuit court afforded procedural due process and applied the correct law. U.S.C.A. Const.Amend. 14. Cases that cite this headnote Certiorari Scope and extent of review in general On second -tier certiorari review a district court is simply deciding whether the lower court departed from the essential requirements of law. Cases that cite this headnote Certiorari Determination and disposition of cause The appellate court has no power in exercising its jurisdiction in certiorari to enter a judgment on the merits of the controversy under consideration nor to direct the entry of any particular order or judgment. Cases that cite this headnote Zoning and Planning 4-Private persons Under the "special damages" standard for evaluating standing to enforce a valid zoning ordinance, an individual does not have standing to sue unless he can show special damages peculiar to himself differing in kind as distinguished from damages differing in degree City of Ft. Myers v. Splitt, 988 So.2d 28 (2008) 33 Fla. L. Weekly D1673 151 161 171 suffered by the community as a whole. Cases that cite this headnote Zoning and Planning Right of Review; Standing Statute governing challenges to the consistency of a development order with a comprehensive plan, which granted standing to any person with an adverse interest that exceeded in degree the general interest shared by all persons, did not apply to challenge by individual and two organizations to city ordinances relating to a proposed planned unit development (PUD) adjacent to a park, where individual and organizations voluntarily dismissed their claim for a determination that the ordinances were inconsistent with city's comprehensive plan. West's F.S.A. § 163.3215(2, 3). 2 Cases that cite this headnote Zoning and Planning Right of Review; Standing Trial court in certiorari proceeding challenging city ordinances relating to proposed planned unit development (PUD) adjacent to a park could not evaluate petitioners' standing on the basis of their allegations in the certiorari petition, but rather court's review was limited to the record of the underlying city proceedings. Cases that cite this headnote Certiorari Scope and Extent in General The rule in certiorari proceedings is that the reviewing court's consideration shall be confined strictly and solely to the record of proceedings by the agency or board on which WESTLAW 181 Submitted into the public record for item(s) P2.1 . on 12/13/2018 , City Clerk the questioned order is based. Cases that cite this headnote Certiorari Persons Entitled The rule that the reviewing court's consideration in certiorari cases shall be confined strictly and solely to the record of proceedings by the agency or board on which the questioned order is based controls the determination of the factual basis establishing standing to initiate a certiorari proceeding in the circuit court. Cases that cite this headnote Attorneys and Law Firms *30 Nancy E. Stroud and Gary K. Oldehoff of Lewis, Stroud and Deutsch, P.L., Boca Raton, and Grant W. Alley, City Attorney, Fort Myers, for Petitioner. Andrew W.J. Dickman of Andrew Dickman, P.A., Naples, for Respondents Virginia Splitt, Caloosahatchee River Citizens Association, Inc., and Responsible Growth Management Coalition, Inc. No Appearance for Respondents Environmental Confederation of Southwest Florida, Inc., and Throgmartin Riverfront Corporation. Opinion CANADY, Judge. In this certiorari proceeding initiated by the City of Fort Myers, we consider whether the circuit court applied the wrong law regarding standing in issuing a writ of certiorari quashing an ordinance adopted by the City. For the reasons we explain, we conclude that the City is entitled to relief. L City of Ft. Myers v. Splitt, 988 So.2d 28 (2008) 33 Fla. L. Weekly D1673 I. Background The respondents here, Virginia Splitt, Caloosahatchee River Citizens Association, Inc., and Responsible Growth Management Coalition, Inc. (referred to hereafter collectively as Mrs. Splitt et al.), appeared in the course of proceedings before the City related to a proposed planned unit development (PUD) for a multiuse project known as "The Vue" to be located on riverfront lands adjacent to Centennial Park. The interest asserted by Mrs. Splitt et al. in the proceedings before the City related primarily to their concerns regarding the public enjoyment of Centennial Park. At the hearings before the City, Mrs. Splitt personally only argued (1) that a tree had been planted in the park in memory of her husband and she did not want it moved and (2) that no part of the park should be turned over to private enterprise. The Caloosahatchee River Citizens Association argued in turn that it was concerned that people who purchased condominiums in the buildings which were part of the PUD would object to noise and traffic from festivals held in the park. The Association also asserted that it was "echoing" the objections raised by other citizens. The Association did not specify which objections it was adopting, but the objections made related to (1) the size of the PUD, (2) the fact that people would complain about noise and traffic, (3) increases in intensity and density, (4) elimination of public use of the land since the park would be in the backyard of the condominium purchasers, (5) overburdening of the city's street system, and (6) overburdening of the wastewater treatment system. The Responsible Growth Management Coalition objected only on the basis of the size of the PUD and the fact that city garbage trucks would have to use access roads to pick up the trash at the PUD. Mrs. Splitt et al. filed a certiorari petition in the circuit court challenging three ordinances adopted by the City concerning "The Vue" PUD project. Initially, Mrs. Splitt et al. also filed a declaratory judgment action seeking a determination that the ordinances were inconsistent with the City's comprehensive plan. That action was, however, voluntarily dismissed. The thrust of the certiorari petition was that the ordinances did not comply with the PUD criteria and other requirements applicable under the City's zoning ordinances. The circuit court denied the petition with respect to two of the challenged ordinances but granted it with respect to the third ordinance, ordinance 3366, which was adopted January 11, 2007. *31 In the circuit court, the City challenged the standing of Mrs. Splitt et al. on the ground that they had failed to establish in the record of the proceedings before the City that they had standing under the "special damages" standing test articulated in Renard v. Dade County, 261 Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk So.2d 832, 837 (F1a.1972), for challenges seeking to enforce valid zoning ordinances. Mrs. Splitt et al. conceded that the Renard standard was applicable but contended that the allegations of their petition were sufficient to establish their standing under Renard. The circuit court concluded, however, that the question of standing was governed not by the Renard standard but by the provisions of section 163.3215, Florida Statutes (2006), regarding challenges to the consistency of a development order with a comprehensive plan. Based on the application of section 163.3215, the circuit court determined that -according to the allegations of their petition in the circuit court -Mrs. Splitt et al. had the requisite standing. The City now contends that the circuit court's decision granting relief with respect to ordinance 3366 should be quashed because the circuit court applied the wrong law with respect to the test for standing and thus departed from the essential requirements of law. The City also contends that the circuit court applied the wrong law by not requiring that the facts establishing standing appear in the record of the proceedings before the City. II. Analysis Both parties acknowledge that the decision of the City at issue here was a quasi-judicial decision rather than a legislative decision and thus subject to challenge in the circuit court by way of certiorari. See Park of Commerce Assocs. v. City of Delray Beach, 636 So.2d 12 (F1a.1994). A. Standard of Review Ill 121 In a second -tier certiorari proceeding with respect to a quasi-judicial decision of a local governmental entity, the district court's review of the circuit court's judgment is limited to " 11] whether the circuit court afforded procedural due process and [2] applied the correct law.' " Broward County v. G.B.V. Intl, Ltd., 787 So.2d 838, 843 (F1a.2001) (alterations in original) (quoting City of Deerfield Beach v. Vaillant, 419 So.2d 624, 626 (F1a.1982)). In utilizing this two-part standard, a district court is simply "deciding whether the lower court `departed from the essential requirements of law.' " Id. at WESTLAW City of Ft. Myers v. Splitt, 988 So.2d 28 (2008) 33 Fla. L. Weekly D1673 843 n. 16 (quoting Haines City Cmty. Dev. v. Heggs, 658 So.2d 523, 530 (F1a.1995)). " 'The appellate court has no power in exercising its jurisdiction in certiorari to enter a judgment on the merits of the controversy under consideration nor to direct the [entry of] any particular order or judgment.' " G.B.V. Intl, Ltd., 787 So.2d at 844 (quoting Tamiami Trail Tours v. R.R. Comm 'n, 128 Fla. 25, 174 So. 451, 454 (1937) (on rehearing)). B. The Applicable Law of Standing The section 163.3215 standard for standing applied by the trial court governs de novo challenges to "the consistency of a development order with a comprehensive plan." § 163.3215(1). Under the statute, "[a]ny aggrieved or adversely affected party may maintain a de novo action for declaratory, injunctive, or other relief" with regard to "a development order ... which materially alters the use or density or intensity of use on a particular piece of property which is not consistent with the comprehensive plan." § 163.3215(3). The statute defines "aggrieved or adversely affected party" to mean *32 any person or local government that will suffer an adverse effect to an interest protected or furthered by the local government comprehensive plan, including interests related to health and safety, police and fire protection service systems, densities or intensities of development, transportation facilities, health care facilities, equipment or services, and environmental or natural resources. The alleged adverse interest may be shared in common with other members of the community at large but must exceed in degree the general interest in community good shared by all persons. The term includes the owner, developer, WESTLAW Submitted into the public record for item(s)_ PZ.1 . on 12/13/2018 , City Clerk or applicant for a development order. § 163.3215(2) (emphasis added). 141 The Renard standard for "standing to enforce a valid zoning ordinance" requires a showing of "special damages." 261 So.2d at 837. The "special damages" rule is derived from "the law of public nuisance." Id. at 835 (citing Boucher v. Novotny, 102 So.2d 132 (F1a.1958)). Under this standard, an individual does not have standing to sue unless he can show " `special damages peculiar to himself differing in kind as distinguished from damages differing in degree suffered by the community as a whole.' " Renard, 261 So.2d at 835 (quoting Boucher, 102 So.2d at 135). It has repeatedly been acknowledged that the standing provisions of section 163.3215 were adopted to liberalize the standing requirements that would otherwise be applicable. See Parker v. Leon County, 627 So.2d 476, 479 (F1a.1993); Stranahan House, Inc. v. City of Fort Lauderdale, 967 So.2d 427, 433 (Fla. 4th DCA 2007); Payne v. City of Miami, 927 So.2d 904, 907 (Fla. 3d DCA 2005); Pinecrest Lakes, Inc. v. Shidel, 795 So.2d 191, 200 (Fla. 4th DCA 2001); Putnam County Envtl. Council, Inc. v. Bd. of County Comm'rs, 757 So.2d 590, 593 (Fla. 5th DCA 2000); Sw. Ranches Homeowners Ass 'n v. Broward County, 502 So.2d 931, 935 (Fla. 4th DCA 1987). The difference between the section 163.3215 standard and the Renard special damages test is immediately apparent. Under section 163.3215(2), standing may be based on the showing of an adverse effect on an interest that "exceed[s] in degree the general interest in community good shared by all persons." (Emphasis added.) The more restrictive Renard standard requires a showing of special damages " `differing in kind as distinguished from damages differing in degree suffered by the community as a whole.' " 261 So.2d at 835 (emphasis added) (quoting Boucher, 102 So.2d at 135). 151 Here, Mrs. Splitt et al. voluntarily abandoned any comprehensive plan consistency challenge to the ordinance. Once they did so, Mrs. Splitt et al. were foreclosed from obtaining the advantage of the more liberal standing provisions applicable under section 163.3215. In determining the standing issue on the basis of section 163.3215, the circuit court failed to apply the correct law. City of Ft. Myers v. Splitt, 988 So.2d 28 (2008) 33 Fla. L. Weekly D1673 C. Determining Standing in Certiorari Proceedings 161 171 181 The circuit court similarly failed to apply the correct law when it determined the standing issue on the basis of the allegations of Mrs. Splitt et al. in their certiorari petition rather than on the basis of the record made in the proceedings before the City. "[T]he well [-]established rule applicable to ... certiorari proceedings[s][is] that the reviewing court's consideration shall be confined strictly and solely to the record of proceedings by the agency or board on which the questioned order is based." Dade County v. Marca, S.A., 326 So.2d 183, 184 (F1a.1976). This *33 rule controls the determination of the factual basis establishing standing to initiate a certiorari proceeding in the circuit court. See Battaglia Fruit Co. v. City of Maitland, 530 So.2d 940, 943 (Fla. 5th DCA 1988) (holding that where city as certiorari petitioner failed to establish the basis for city's standing in the record of the county zoning proceedings, "the circuit court departed from the essential requirements of law in not dismissing the City's petition for lack of standing"). D. Prejudicial Error We reject any suggestion that Mrs. Splitt et al. had standing even under the more restrictive requirements of Renard and that the circuit court's failure to apply the correct law therefore was harmless error. Standing under the Renard special damages test is typically based on Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk some impact on the litigant's interest as an owner of property. See, e.g., Kagan v. West, 677 So.2d 905, 908 (Fla. 4th DCA 1996); Pichette v. City of N. Miami, 642 So.2d 1165, 1165-66 (Fla. 3d DCA 1994); State ex rel. Gardner v. Sailboat Key, Inc., 306 So.2d 616, 618 (Fla. 3d DCA 1974). There is no warrant for concluding that if the circuit court had applied the correct law, it would have determined that Mrs. Splitt et al. established their standing under the special damages test. III. Conclusion Because the circuit court applied the wrong law, we grant the City's petition for certiorari. The order of the circuit court is quashed to the extent that it granted relief with respect to ordinance 3366. Petition granted; order quashed in part. FULMER and VILLANTI, JJ., Concur. All Citations 988 So.2d 28, 33 Fla. L. Weekly D1673 End of Document © 2018 Thomson Reuters. No claim to original U.S. Government Works. WESTLAW Martin County Conservation Alliance v. Martin County, 134 So.3d 966 (2010) 35 Fla. L. Weekly D1386 134 So.3d 966 District Court of Appeal of Florida, First District. MARTIN COUNTY CONSERVATION ALLIANCE and 1000 Friends of Florida, Inc., Appellants, v. MARTIN COUNTY, Department of Community Affairs, Martin Island Way, LLC, and Island Way, LC, Appellees. No.1D09-4956• June 21, 2010. Synopsis Background: Interest groups appealed from an order of the Department of Community Affairs. Holding: The District Court of Appeal held that groups lacked standing to appeal the order. Appeal dismissed. West Headnotes (1) [1] Administrative Law and Procedure e-Persons aggrieved or affected Interest groups lacked standing to appeal administrative order, where groups failed to demonstrate that their interests or the interests of a substantial number of their members were adversely affected by the order. West's F.S.A. § 120.68. Cases that cite this headnote Attorneys and Law Firms Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Cler *967 Richard Grosso, Jason Totoiu, and Robert Hartsell of Everglades Law Center, Inc., Ft. Lauderdale, for Appellants. Stephen Fry, County Attorney, and David A. Acton, Senior Assistant County Attorney, Stuart, for Appellee Martin County; William L. Hyde of Gunster, Yoakley & Stewart, P.A., Tallahassee, for Appellees Martin Island Way, LLC, and Island Way, LC. Opinion PER CURIAM. The appellants have not demonstrated that their interests or the interests of a substantial number of members are "adversely affected" by the challenged order, so as to give them standing to appeal. See § 120.68, Fla. Stat. (2009); Fla. Chapter of the Sierra Club v. Suwannee Am. Cement Co., 802 So.2d 520 (Fla. 1st DCA 2001); O'Connell v. Fla. Dep't of Cmty. Affairs, 874 So.2d 673 (Fla. 4th DCA 2004); Fla. Wildlife Fed'n v. St. Johns County, 909 So.2d 347 (Fla. 1st DCA 2005). While appellants cite Save the Homosassa River Alliance v. Citrus County, 2 So.3d 329 (Fla. 5th DCA 2008), in support of their claim of standing, this case is inapposite as it addresses the standing requirements for a circuit court proceeding pursuant to section 163.3215, Florida Statutes. Section 163.3215 is a remedial statute designed to enlarge the class of persons with standing to challenge a local development order. The prerequisites for establishing standing in such a proceeding are inapplicable to an appeal taken of an administrative proceeding conducted pursuant to section 120.68, Florida Statutes. The appeal is therefore DISMISSED. HAWKES, C.J., VAN NORTWICK, and THOMAS, JJ., concur. All Citations 134 So.3d 966, 35 Fla. L. Weekly D1386 iirop End of Document © 2018 Thomson Reuters. No claim to original U.S. Government Works. WESTLAW Martin County Conservation Alliance v. Martin County, 134 So.3d 966 (2010) 35 Fla. L. Weekly D1386 WESTLAW Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk Martin County Conservation Alliance v. Martin County, 134 So.3d 966 (2010) 35 Fla. L. Weekly D1386 134 So.3d 966 District Court of Appeal of Florida, First District. MARTIN COUNTY CONSERVATION ALLIANCE and moo Friends of Florida, Inc., Appellants, v. MARTIN COUNTY, Department of Community Affairs, Martin Island Way, LLC, and Island Way, LC, Appellees. No. 1Do9-4956• June 21, 2010. Synopsis Background: Interest groups appealed from an order of the Department of Community Affairs. Holding: The District Court of Appeal held that groups lacked standing to appeal the order. Appeal dismissed. West Headnotes (1) [1] Administrative Law and Procedure 'Persons aggrieved or affected Interest groups lacked standing to appeal administrative order, where groups failed to demonstrate that their interests or the interests of a substantial number of their members were adversely affected by the order. West's F.S.A. § 120.68. Cases that cite this headnote Attorneys and Law Firms *967 Richard Grosso, Jason Totoiu, and Robert Hartsell of Everglades Law Center, Inc., Ft. Lauderdale, for Appellants. Stephen Fry, County Attorney, and David A. Acton, Senior Assistant County Attorney, Stuart, for Appellee Martin County; William L. Hyde of Gunster, Yoakley & Stewart, P.A., Tallahassee, for Appellees Martin Island Way, LLC, and Island Way, LC. Opinion PER CURIAM. The appellants have not demonstrated that their interests or the interests of a substantial number of members are "adversely affected" by the challenged order, so as to give them standing to appeal. See § 120.68, Fla. Stat. (2009); Fla. Chapter of the Sierra Club v. Suwannee Am. Cement Co., 802 So.2d 520 (Fla. 1st DCA 2001); O'Connell v. Fla. Dep't of Cmty. Affairs, 874 So.2d 673 (Fla. 4th DCA 2004); Fla. Wildlife Fed'n v. St. Johns County, 909 So.2d 347 (Fla. 1st DCA 2005). While appellants cite Save the Homosassa River Alliance v. Citrus County, 2 So.3d 329 (Fla. 5th DCA 2008), in support of their claim of standing, this case is inapposite as it addresses the standing requirements for a circuit court proceeding pursuant to section 163.3215, Florida Statutes. Section 163.3215 is a remedial statute designed to enlarge the class of persons with standing to challenge a local development order. The prerequisites for establishing standing in such a proceeding are inapplicable to an appeal taken of an administrative proceeding conducted pursuant to section 120.68, Florida Statutes. The appeal is therefore DISMISSED. HAWKES, C.J., VAN NORTWICK, and THOMAS, JJ., concur. All Citations 134 So.3d 966, 35 Fla. L. Week1yD1386 End of Document © 2018 Thomson Reuters. No claim to original U.S. Government Works. WESTLAW 1 L Martin County Conservation Alliance v. Martin County, 134 So.3d 966 (2010) 35 Fla. L. WeeklyD1386 WESTLAW Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk Martin County Conservation Alliance v. Martin County, 134 So.3d 966 (2010) 35 Fla. L. Weekly D1386 134 So.3d 966 District Court of Appeal of Florida, First District. MARTIN COUNTY CONSERVATION ALLIANCE and woo Friends of Florida, Inc., Appellants, v. MARTIN COUNTY, Department of Community Affairs, Martin Island Way, LLC, and Island Way, LC, Appellees. No. 1D09-4956. June 21, 2010. Synopsis Background: Interest groups appealed from an order of the Department of Community Affairs. Holding: The District Court of Appeal held that groups lacked standing to appeal the order. Appeal dismissed. West Headnotes (1) [I] Administrative Law and Procedure Persons aggrieved or affected Interest groups lacked standing to appeal administrative order, where groups failed to demonstrate that their interests or the interests of a substantial number of their members were adversely affected by the order. West's F.S.A. 120.68. Cases that cite this headnote Attorneys and Law Firms Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk *967 Richard Grosso, Jason Totoiu, and Robert Hartsell of Everglades Law Center, Inc., Ft. Lauderdale, for Appellants. Stephen Fry, County Attorney, and David A. Acton, Senior Assistant County Attorney, Stuart, for Appellee Martin County; William L. Hyde of Gunster, Yoakley & Stewart, P.A., Tallahassee, for Appellees Martin Island Way, LLC, and Island Way, LC. Opinion PER CURIAM. The appellants have not demonstrated that their interests or the interests of a substantial number of members are "adversely affected" by the challenged order, so as to give them standing to appeal. See § 120.68, Fla. Stat. (2009); Fla. Chapter of the Sierra Club v. Suwannee Am. Cement Co., 802 So.2d 520 (Fla. 1st DCA 2001); O'Connell v. Fla. Dep't of Cmty. Affairs, 874 So.2d 673 (Fla. 4th DCA 2004); Fla. Wildlife Fed'n v. St. Johns County, 909 So.2d 347 (Fla. 1st DCA 2005). While appellants cite Save the Homosassa River Alliance v. Citrus County, 2 So.3d 329 (Fla. 5th DCA 2008), in support of their claim of standing, this case is inapposite as it addresses the standing requirements for a circuit court proceeding pursuant to section 163.3215, Florida Statutes. Section 163.3215 is a remedial statute designed to enlarge the class of persons with standing to challenge a local development order. The prerequisites for establishing standing in such a proceeding are inapplicable to an appeal taken of an administrative proceeding conducted pursuant to section 120.68, Florida Statutes. The appeal is therefore DISMISSED. HAWKES, C.J., VAN NOR"TWICK, and THOMAS, JJ., concur. All Citations 134 So.3d 966, 35 Fla. L. Weekly D1386 iilire End of Document © 2018 Thomson Reuters. No claim to original U.S. Government Works. WESTLAW Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk Martin County Conservation Alliance v. Martin County, 134 So.3d 966 (2010) 35 Fla. L. Weekly D1386 WESTLAW Martin County Conservation Alliance v. Martin County, 134 So.3d 966 (2010) 35 Fla. L. Weekly D1386 134 So.3d 966 District Court of Appeal of Florida, First District. MARTIN COUNTY CONSERVATION ALLIANCE and 1000 Friends of Florida, Inc., Appellants, v. MARTIN COUNTY, Department of Community Affairs, Martin Island Way, LLC, and Island Way, LC, Appellees. No.1Do9-4956. June 21, 2010. Synopsis Background: Interest groups appealed from an order of the Department of Community Affairs. Holding: The District Court of Appeal held that groups lacked standing to appeal the order. Appeal dismissed. West Headnotes (1) [1] Administrative Law and Procedure 40-.Persons aggrieved or affected Interest groups lacked standing to appeal administrative order, where groups failed to demonstrate that their interests or the interests of a substantial number of their members were adversely affected by the order. West's F.S.A. § 120.68. Cases that cite this headnote Attorneys and Law Firms Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk *967 Richard Grosso, Jason Totoiu, and Robert Hartsell of Everglades Law Center, Inc., Ft. Lauderdale, for Appellants. Stephen Fry, County Attorney, and David A. Acton, Senior Assistant County Attorney, Stuart, for Appellee Martin County; William L. Hyde of Gunster, Yoakley & Stewart, P.A., Tallahassee, for Appellees Martin Island Way, LLC, and Island Way, LC. Opinion PER CURIAM. The appellants have not demonstrated that their interests or the interests of a substantial number of members are "adversely affected" by the challenged order, so as to give them standing to appeal. See § 120.68, Fla. Stat. (2009); Fla. Chapter of the Sierra Club v. Suwannee Am. Cement Co., 802 So.2d 520 (Fla. 1st DCA 2001); O'Connell v. Fla. Dep't of Cmty. Affairs, 874 So.2d 673 (Fla. 4th DCA 2004); Fla. Wildlife Fed'n v. St. Johns County, 909 So.2d 347 (Fla. 1st DCA 2005). While appellants cite Save the Homosassa River Alliance v. Citrus County, 2 So.3d 329 (Fla. 5th DCA 2008), in support of their claim of standing, this case is inapposite as it addresses the standing requirements for a circuit court proceeding pursuant to section 163.3215, Florida Statutes. Section 163.3215 is a remedial statute designed to enlarge the class of persons with standing to challenge a local development order. The prerequisites for establishing standing in such a proceeding are inapplicable to an appeal taken of an administrative proceeding conducted pursuant to section 120.68, Florida Statutes. The appeal is therefore DISMISSED. HAWKES, C.J., VAN NORTWICK, and THOMAS, JJ., concur. All Citations 134 So.3d 966, 35 Fla. L. Weekly D1386 End of Document © 2018 Thomson Reuters. No claim to original U.S. Government Works. WESTLAW L Martin County Conservation Alliance v. Martin County, 134 So.3d 966 (2010) 35 Fla. L. Weekly D1386 WESTLAW Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk Martin County Conservation Alliance v. Martin County, 134 So.3d 966 (2010) 35 Fla. L. Weekly D1386 134 So.3d 966 District Court of Appeal of Florida, First District. MARTIN COUNTY CONSERVATION ALLIANCE and woo Friends of Florida, Inc., Appellants, v. MARTIN COUNTY, Department of Community Affairs, Martin Island Way, LLC, and Island Way, LC, Appellees. No.1Do9-4956. June 21, 2010. Synopsis Background: Interest groups appealed from an order of the Department of Community Affairs. Holding: The District Court of Appeal held that groups lacked standing to appeal the order. Appeal dismissed. West Headnotes (1) [1] Administrative Law and Procedure -Persons aggrieved or affected Interest groups lacked standing to appeal administrative order, where groups failed to demonstrate that their interests or the interests of a substantial number of their members were adversely affected by the order. West's F.S.A. § 120.68. Cases that cite this headnote Attorneys and Law Firms *967 Richard Grosso, Jason Totoiu, and Robert Hartsell of Everglades Law Center, Inc., Ft. Lauderdale, for Appellants. Stephen Fry, County Attorney, and David A. Acton, Senior Assistant County Attorney, Stuart, for Appellee Martin County; William L. Hyde of Gunster, Yoaldey & Stewart, P.A., Tallahassee, for Appellees Martin Island Way, LLC, and Island Way, LC. Opinion PER CURIAM. The appellants have not demonstrated that their interests or the interests of a substantial number of members are "adversely affected" by the challenged order, so as to give them standing to appeal. See § 120.68, Fla. Stat. (2009); Fla. Chapter of the Sierra Club v. Suwannee Am. Cement Co., 802 So.2d 520 (Fla. 1st DCA 2001); O'Connell v. Fla. Dep't of Cmty. Affairs, 874 So.2d 673 (Fla. 4th DCA 2004); Fla. Wildlife Fed'n v. St. Johns County, 909 So.2d 347 (Fla. 1st DCA 2005). While appellants cite Save the Homosassa River Alliance v. Citrus County, 2 So.3d 329 (Fla. 5th DCA 2008), in support of their claim of standing, this case is inapposite as it addresses the standing requirements for a circuit court proceeding pursuant to section 163.3215, Florida Statutes. Section 163.3215 is a remedial statute designed to enlarge the class of persons with standing to challenge a local development order. The prerequisites for establishing standing in such a proceeding are inapplicable to an appeal taken of an administrative proceeding conducted pursuant to section 120.68, Florida Statutes. The appeal is therefore DISMISSED. HAWKES, C.J., VAN NORTWICK, and THOMAS, JJ., concur. All Citations 134 So.3d 966, 35 Fla. L. Weekly D1386 End of Document © 2018 Thomson Reuters. No claim to original U.S. Government Works. WEST LAW Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk Martin County Conservation Alliance v. Martin County, 134 So.3d 966 (2010) 35 Fla. L. Weekly D1386 WESTLAW Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk Martin County Conservation Alliance v. Martin County, 134 So.3d 966 (2010) 35 Fla. L. Weekly D1386 134 So.3d 966 District Court of Appeal of Florida, First District. MARTIN COUNTY CONSERVATION ALLIANCE and woo Friends of Florida, Inc., Appellants, v. MARTIN COUNTY, Department of Community Affairs, Martin Island Way, LLC, and Island Way, LC, Appellees. No. 1D09-4956. June 21, 2010. Synopsis Background: Interest groups appealed from an order of the Department of Community Affairs. Holding: The District Court of Appeal held that groups lacked standing to appeal the order. Appeal dismissed. West Headnotes (1) [1] Administrative Law and Procedure 4-.Persons aggrieved or affected Interest groups lacked standing to appeal administrative order, where groups failed to demonstrate that their interests or the interests of a substantial number of their members were adversely affected by the order. West's F.S.A. 120.68. Cases that cite this headnote Attorneys and Law Firms *967 Richard Grosso, Jason Totoiu, and Robert Hartsell of Everglades Law Center, Inc., Ft. Lauderdale, for Appellants. Stephen Fry, County Attorney, and David A. Acton, Senior Assistant County Attorney, Stuart, for Appellee Martin County; William L. Hyde of Gunster, Yoakley & Stewart, P.A., Tallahassee, for Appellees Martin Island Way, LLC, and Island Way, LC. Opinion PER CURIAM. The appellants have not demonstrated that their interests or the interests of a substantial number of members are "adversely affected" by the challenged order, so as to give them standing to appeal. See § 120.68, Fla. Stat. (2009); Fla. Chapter of the Sierra Club v. Suwannee Am. Cement Co., 802 So.2d 520 (Fla. 1st DCA 2001); O'Connell v. Fla. Dep't of Cmty. Affairs, 874 So.2d 673 (Fla. 4th DCA 2004); Fla. Wildlife Fed 'n v. St. Johns County, 909 So.2d 347 (Fla. 1st DCA 2005). While appellants cite Save the Homosassa River Alliance v. Citrus County, 2 So.3d 329 (Fla. 5th DCA 2008), in support of their claim of standing, this case is inapposite as it addresses the standing requirements for a circuit court proceeding pursuant to section 163.3215, Florida Statutes. Section 163.3215 is a remedial statute designed to enlarge the class of persons with standing to challenge a local development order. The prerequisites for establishing standing in such a proceeding are inapplicable to an appeal taken of an administrative proceeding conducted pursuant to section 120.68, Florida Statutes. The appeal is therefore DISMISSED. HAWKES, C.J., VAN NORTWICK, and THOMAS, JJ., concur. All Citations 134 So.3d 966, 35 Fla. L. Weekly D1386 0 End of Document ©2018 Thomson Reuters. No claim to original U.S. Government Works. WESTLAW L Martin County Conservation Alliance v. Martin County, 134 So.3d 966 (2010) 35 Fla. L. Weekly D1386 WESTLAW Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk Niew Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk Martin County Conservation Alliance v. Martin County, 134 So.3d 966 (2010) 35 Fla. L. Weekly D1386 134 So.3d 966 District Court of Appeal of Florida, First District. MARTIN COUNTY CONSERVATION ALLIANCE and i000 Friends of Florida, Inc., Appellants, v. MARTIN COUNTY, Department of Community Affairs, Martin Island Way, LLC, and Island Way, LC, Appellees. No.1Do9-4956. June 21, 2010. Synopsis Background: Interest groups appealed from an order of the Department of Community Affairs. Holding: The District Court of Appeal held that groups lacked standing to appeal the order. Appeal dismissed. West Headnotes (1) 11] Administrative Law and Procedure Q..Persons aggrieved or affected Interest groups lacked standing to appeal administrative order, where groups failed to demonstrate that their interests or the interests of a substantial number of their members were adversely affected by the order. West's F.S.A. § 120.68. Cases that cite this headnote Attorneys and Law Firms *967 Richard Grosso, Jason Totoiu, and Robert Hartsell of Everglades Law Center, Inc., Ft. Lauderdale, for Appellants. Stephen Fry, County Attorney, and David A. Acton, Senior Assistant County Attorney, Stuart, for Appellee Martin County; William L. Hyde of Gunster, Yoakley & Stewart, P.A., Tallahassee, for Appellees Martin Island Way, LLC, and Island Way, LC. Opinion PER CURIAM. The appellants have not demonstrated that their interests or the interests of a substantial number of members are "adversely affected" by the challenged order, so as to give them standing to appeal. See § 120.68, Fla. Stat. (2009); Fla. Chapter of the Sierra Club v. Suwannee Am. Cement Co., 802 So.2d 520 (Fla. 1st DCA 2001); O'Connell v. Fla. Dep't of Cmty. Affairs, 874 So.2d 673 (Fla. 4th DCA 2004); Fla. Wildlife Fed'n v. St. Johns County, 909 So.2d 347 (Fla. 1st DCA 2005). While appellants cite Save the Homosassa River Alliance v. Citrus County, 2 So.3d 329 (Fla. 5th DCA 2008), in support of their claim of standing, this case is inapposite as it addresses the standing requirements for a circuit court proceeding pursuant to section 163.3215, Florida Statutes. Section 163.3215 is a remedial statute designed to enlarge the class of persons with standing to challenge a local development order. The prerequisites for establishing standing in such a proceeding are inapplicable to an appeal taken of an administrative proceeding conducted pursuant to section 120.68, Florida Statutes. The appeal is therefore DISMISSED. HAWKES, C.J., VAN NORTWICK, and THOMAS, JJ., concur. All Citations 134 So.3d 966, 35 Fla. L. Weekly D1386 End of Document © 2018 Thomson Reuters. No claim to original U.S. Government Works. WESTLAW • Martin County Conservation Alliance v. Martin County, 134 So.3d 966 (2010) 35 Fla. L. Weekly D1386 WESTLAW Submitted into the public record for item(s) PZ.1 on 12/13/2018 , City Clerk Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk Martin County Conservation Alliance v. Martin County, 134 So.3d 966 (2010) 35 Fla. L. Weekly D1386 134 So.3d 966 District Court of Appeal of Florida, First District. MARTIN COUNTY CONSERVATION ALLIANCE and woo Friends of Florida, Inc., Appellants, v. MARTIN COUNTY, Department of Community Affairs, Martin Island Way, LLC, and Island Way, LC, Appellees. No.1Do9-4956• June 21, 2010. Synopsis Background: Interest groups appealed from an order of the Department of Community Affairs. Holding: The District Court of Appeal held that groups lacked standing to appeal the order. Appeal dismissed. West Headnotes (1) [1] Administrative Law and Procedure Co -Persons aggrieved or affected Interest groups lacked standing to appeal administrative order, where groups failed to demonstrate that their interests or the interests of a substantial number of their members were adversely affected by the order. West's F.S.A. 120.68. Cases that cite this headnote Attorneys and Law Firms *967 Richard Grosso, Jason Totoiu, and Robert Hartsell of Everglades Law Center, Inc., Ft. Lauderdale, for Appellants. Stephen Fry, County Attorney, and David A. Acton, Senior Assistant County Attorney, Stuart, for Appellee Martin County; William L. Hyde of Gunster, Yoakley & Stewart, P.A., Tallahassee, for Appellees Martin Island Way, LLC, and Island Way, LC. Opinion PER CURIAM. The appellants have not demonstrated that their interests or the interests of a substantial number of members are "adversely affected" by the challenged order, so as to give them standing to appeal. See § 120.68, Fla. Stat. (2009); Fla. Chapter of the Sierra Club v. Suwannee Am. Cement Co., 802 So.2d 520 (Fla. 1st DCA 2001); O'Connell v. Fla. Dep't of Cmty. Affairs, 874 So.2d 673 (Fla. 4th DCA 2004); Fla. Wildlife Fed'n v. St. Johns County, 909 So.2d 347 (Fla. 1st DCA 2005). While appellants cite Save the Homosassa River Alliance v. Citrus County, 2 So.3d 329 (Fla. 5th DCA 2008), in support of their claim of standing, this case is inapposite as it addresses the standing requirements for a circuit court proceeding pursuant to section 163.3215, Florida Statutes. Section 163.3215 is a remedial statute designed to enlarge the class of persons with standing to challenge a local development order. The prerequisites for establishing standing in such a proceeding are inapplicable to an appeal taken of an administrative proceeding conducted pursuant to section 120.68, Florida Statutes. The appeal is therefore DISMISSED. HAWKES, C.J., VAN NORTWICK, and THOMAS, JJ., concur. All Citations 134 So.3d 966, 35 Fla. L. Weekly D1386 End of Document 2018 Thomson Reuters. No claim to original U.S. Government Works. WESTLAW ie 44. c. Martin County Conservation Alliance v. Martin County, 134 So.3d 966 (2010) 35 Fla. L. Weekly D1386 WESTLAW Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk lip 'of Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk Martin County Conservation Alliance v. Martin County, 134 So.3d 966 (2010) 35 Fla. L. Weekly D1386 134 So.3d 966 District Court of Appeal of Florida, First District. MARTIN COUNTY CONSERVATION ALLIANCE and moo Friends of Florida, Inc., Appellants, v. MARTIN COUNTY, Department of Community Affairs, Martin Island Way, LLC, and Island Way, LC, Appellees. No. 1Do9-4956• June 21, 2010. Synopsis Background: Interest groups appealed from an order of the Department of Community Affairs. Holding: The District Court of Appeal held that groups lacked standing to appeal the order. Appeal dismissed. West Headnotes (1) [11 Administrative Law and Procedure «Persons aggrieved or affected Interest groups lacked standing to appeal administrative order, where groups failed to demonstrate that their interests or the interests of a substantial number of their members were adversely affected by the order. West's F.S.A. § 120.68. Cases that cite this headnote Attorneys and Law Firms *967 Richard Grosso, Jason Totoiu, and Robert Hartsell of Everglades Law Center, Inc., Ft. Lauderdale, for Appellants. Stephen Fry, County Attorney, and David A. Acton, Senior Assistant County Attorney, Stuart, for Appellee Martin County; William L. Hyde of Gunster, Yoakley & Stewart, P.A., Tallahassee, for Appellees Martin Island Way, LLC, and Island Way, LC. Opinion PER CURIAM. The appellants have not demonstrated that their interests or the interests of a substantial number of members are "adversely affected" by the challenged order, so as to give them standing to appeal. See § 120.68, Fla. Stat. (2009); Fla. Chapter of the Sierra Club v. Suwannee Am. Cement Co., 802 So.2d 520 (Fla. 1st DCA 2001); O'Connell v. Fla. Dep't of Cmty. Affairs, 874 So.2d 673 (Fla. 4th DCA 2004); Fla. Wildlife Fed'n v. St. Johns County, 909 So.2d 347 (Fla. 1st DCA 2005). While appellants cite Save the Homosassa River Alliance v. Citrus County, 2 So.3d 329 (Fla. 5th DCA 2008), in support of their claim of standing, this case is inapposite as it addresses the standing requirements for a circuit court proceeding pursuant to section 163.3215, Florida Statutes. Section 163.3215 is a remedial statute designed to enlarge the class of persons with standing to challenge a local development order. The prerequisites for establishing standing in such a proceeding are inapplicable to an appeal taken of an administrative proceeding conducted pursuant to section 120.68, Florida Statutes. The appeal is therefore DISMISSED. HAWKES, C.J., VAN NORTWICK, and THOMAS, JJ., concur. All Citations 134 So.3d 966, 35 Fla. L. Weekly D1386 End of Document © 2018 Thomson Reuters. No claim to original U.S. Government Works. WESTLAW Martin County Conservation Alliance v. Martin County, 134 So.3d 966 (2010) 35 Fla. L. Weekly D1386 Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk WESTLAW L itoL Florida Rock Properties v. Keyser, 709 So.2d 175 (1998) 23 Fla. L. Weekly D874 KeyCite Yellow Flag - Negative Treatment Distinguished by Save Homosassa River Alliance, Inc. v. Citrus County, Fla., Fla.App. 5 Dist., October 24, 2008 709 So.2d 175 District Court of Appeal of Florida, Fifth District. FLORIDA ROCK PROPERTIES, et al., Appellants, v. Timothy KEYSER, Appellee. No. 96-3307. April 3, 1998. Synopsis Following county's rezoning of mining company's land from agriculture to mining, without requiring 25 percent set -aside to protect native vegetation, owner of land and business in the county sought declaratory judgment challenging rezoning. The Circuit Court, Putnam County, Stephen L. Boyles, J., quashed decision, and mining company appealed. The District Court of Appeal, Thompson, J., held that plaintiff lacked standing. Reversed and remanded. W. Sharp, J., filed dissenting opinion. West Headnotes (2) It1 Zoning and Planning Right of Review; Standing Zoning and Planning W-Private persons Property ownership alone is insufficient to establish standing to enforce county comprehensive development plan. West's F.S.A. § 163.3215(1, 2). 3 Cases that cite this headnote WESTLAW 121 Submitted into the public record for item(s) PZ.1 on 12/13/2018 , City Clerk Zoning and Planning Modification or amendment Owner of land and business in county who had interest in environment lacked standing to challenge county's rezoning of mining company's land from agriculture to mining, without requiring 25 percent set -aside to protect native vegetation, absent showing that rezoning would have specific impact on him or his property. West's F.S.A. § 163.3215(1, 2). 7 Cases that cite this headnote Attorneys and Law Firms *176 John A. DeVault, III, and Jane A. Lester, of Bedell, Dittmar, DeVault, Pillans & Coxe, P.A., Jacksonville, and Edward E. Hedstrom, P.A., Palatka, for Appellants. Michael W. Woodward, of Keyser & Woodward, P.A., Interlachen, for Appellee. Opinion THOMPSON, Judge. Florida Rock Properties, Inc, and Florida Rock Industries, Inc. (collectively "Florida Rock") appeal from a declaratory final judgment which quashed the decision of the Putnam County Commission ("the Board") to rezone a 509-acre parcel of Florida Rock's land from agriculture to mining. Although several issues are raised, one is dispositive: Timothy Keyser, who filed the lawsuit seeking the declaratory judgment, is not an aggrieved party pursuant to section 163.3215, Florida Statutes. Therefore, he had no standing to appeal the decision of the Board to the circuit court. Florida Rock owns approximately 6,700 acres of land in Putnam County and mines approximately 1,800 acres. The remaining land is zoned and currently used for agriculture. Florida Rock sought to rezone an additional two parcels, 509 acres, from agriculture to mining. The Board approved the rezoning without requiring a 25 percent set -aside to preserve native vegetation as mandated by the county's comprehensive plan.' Florida Rock Properties v. Keyser, 709 So.2d 175 (1998) 23 Fla. L. Weekly D874 In his verified complaint for declaratory relief to quash the Board's decision, Keyser alleged that he was an "aggrieved or adversely affected person" as defined in section 163.3215, Florida Statutes. He alleged the following facts to establish his standing: (1) he owns land in Putnam County approximately 10 miles from Florida Rock's 509-acre site; (2) he operates a law business in Putnam County and occasionally represents conservationists; (3) he has maintained a life-long interest in wildlife and environmental protection matters as part of his civic duties; (4) the failure to require the 25 percent set -aside to protect native vegetation would affect his quality of life. The court found that Keyser had standing because his "exceptional personal and professional interests, efforts, and activities in conservation, wildlife and environmental protection matters were proven" and would be adversely affected by the Board's decision "to a greater degree than ... other members of the community." Section 163.3215, Florida Statutes, (1995) reads: 163.3215 Standing to enforce local comprehensive plans through development orders.- (1) Any aggrieved or adversely affected party may maintain an action for injunctive or other relief against any local government to prevent such local government from taking any action on a development order, as defined in s. 163.3164, which materially alters the use or density or intensity *177 of use on a particular piece of property that is not consistent with the comprehensive plan adopted under this part. (2) "Aggrieved or adversely affected party" means any person or local govenunent which will suffer an adverse effect to an interest protected or furthered by the local government comprehensive plan, including interests related to health and safety, police and fire protection service systems, densities or intensities of development, transportation facilities, health care facilities, equipment or services, or environmental or natural resources. The alleged adverse interest may be shared in common with other members of the community at large, but shall exceed in degree the general interest in community good shared by all persons. (Emphasis added.) Therefore, Keyser's standing to challenge the Board's zoning decision depends on (1) whether the personal and professional interests he alleged are "protected or furthered by" Putnam County's comprehensive plan; if so, (2) whether those interests are greater than the general interest in community well being; and (3) whether the WESTLAW Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk interests are or will be adversely affected by the challenged zoning decision. III 121 First, property ownership alone is insufficient to show a person is one "who will suffer an adverse effect to an interest protected or furthered by" the plan. See Parker v. Leon County, 627 So.2d 476 (F1a.1993). Thus, the fact that Keyser owns land in Putnam is insufficient to establish standing. He does not live adjacent to Florida Rock's property. He does not claim that he will be adversely impacted by noise, increased traffic or noxious fumes from Florida Rock's property. He merely alleges ownership of land. There is no showing that Keyser will suffer an adverse effect. See White v. Metropolitan Dade County, 563 So.2d 117 (Fla. 3d DCA 1990) (holding that citizens of Dade County had no standing to challenge the construction of tennis courts on land which had a deed restriction to keep the land for a park in perpetuity or the land would revert to the owner). Had Keyser lived adjacent to the property, and had he been able to show a specific impact the zoning change would have upon him or his property, he would have standing. Southwest Ranches Homeowners Ass 'n, Inc. v. Broward County, 502 So.2d 931 (Fla. 4th DCA), rev. denied, 511 So.2d 999 (F1a.1987). Second, the fact that Keyser owns a business in the county does not confer standing upon him. He generally argues that the inability to counsel clients effectively in land use matters will be created because the Board issued the order. We find nothing unique about Keyser's inability to counsel his clients that would make him an aggrieved party. Each time a legislative body changes a statute or ordinance, a lawyer is in doubt as to the advice to give his client. That is the nature of a lawyer's practice. Moreover, professional interests are not among the interests the comprehensive plan protects. See § 163.3215(2), Fla. Stat. (1995). Keyser's strongest but most problematic argument is that the zoning decision of the Board would adversely affect his quality of life by its negative impact upon wildlife populations and habitats in Putnam County. In Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972), the United States Supreme Court held that judicial review must "be sought in the hands of those who have a direct stake in the outcome." Section 163.3215 does not specify or explain the degree to which the protected interest must be affected, but, case law is helpful. In Southwest Ranches Homeowners Ass 'n, Inc., supra, the court held that property owners adjacent to a proposed development would have standing and a group of concerned citizens with a general interest would not. 502 So.2d at 934. Keyser never demonstrated any specific Florida Rock Properties v. Keyser, 709 So.2d 175 (1998) 23 Fla. L. Weekly D874 injury, only that the county would not be as bucolic as it once was. Keyser is a citizen with an interest in the environment and nothing more. Accordingly, we reverse the decision of the circuit court and remand for disposition consistent with this opinion. REVERSED and REMANDED. DAUKSCH, J., concurs. W. SHARP, J., dissents with opinion. *178 W. SHARP, Judge, dissenting. I respectfully disagree with the majority opinion's conclusion that Keyser lacks standing to challenge the rezoning decision rendered by Putnam County. Based on the trial court's findings and this record, I conclude that Keyser established sufficient facts to give him standing pursuant to section 163.3215, Florida Statutes. The trial court ruled Keyser had standing because his "exceptional personal and professional interests, efforts and activities in conservation, wildlife and environmental protection were proven," and because he would be adversely affected by this decision to a greater degree than other members of the community. Thus I would affirm the trial court's determination that Florida Rock's proposed mining operation is "new development," on which a 25% reservation of land to protect native vegetation is required pursuant to the Putnam County Comprehensive Planning and Land Development Act. Section 163.3215 was enacted in 1985 as part of the Growth Management Act. This section addresses standing as follows: 163.3215. Standing to enforce local comprehensive plans through development orders. (1) Any aggrieved or adversely affected party may maintain an action for injunctive or other relief against any local government to prevent such local government from taking any action on a development order, as defined in s. 163.3164, which materially alters the use or density or intensity of use on a particular piece of property that is not consistent with the comprehensive plan adopted under this part. (2) "Aggrieved or adversely affected party" means any person or local government which will suffer an WESTLAW Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk adverse effect to an interest protected or furthered by the local government comprehensive plan, including interests related to health and safety, police and fire protection service systems, densities or intensities of development, transportation facilities, health care facilities, equipment or services, or environmental or natural resources. The alleged adverse interest may be shared in common with other members of the community at large, but shall exceed in degree the general interest in community good shared by all persons. In this case, Florida Rock applied to the Putnam County Planning Commission to rezone a 509-acre parcel of its land from agriculture to mining. Florida Rock owns 6,700 acres in Putnam county, of which the 509 acres is a part. Florida Rock expects to mine the 509 acres at a rate of 10 to 12 acres a year. Under the Comprehensive Plan, the rezoning arguably required a 25% set aside to preserve native vegetation.' The applicability of the set -aside provision to Florida Rock's proposal to mine the 509-acre parcel and whether it constituted "new development" were disputed issues in this case. Although Keyser owns real estate in Putnam County located five to ten miles away from the 509 acres, he relied on his extensive personal and professional interest and activities in environmental and conservation issues to give him standing in this law suit. One of the reasons Keyser moved to Putnam County was because of its extensive wildlife habitat and population. For many years Keyser has been active in a conservation organization and has served as its president or chairman of the board and has served on other board positions in both national and state conservation organizations. Keyser is an attorney and does environmental and land use law. He has represented at no fee or low fee many different neighborhood and conservation organizations on the national, state and regional level on a variety of issues from protecting the Everglades to restoring Lake Apopka to protecting neighborhoods from inappropriate zoning. Keyser attended at least four hearings on this rezoning matter. He attended the first hearing before the Planning Commission, listened to presentations of both sides and then spoke as an interested citizen at that Commission meeting. Keyser was quite surprised by the action of the Planning Commission *179 (in favor of rezoning without the set aside) and appealed that decision to the Board of County Commissioners. Keyser was required to fill out paper work, and pay a filing fee. He also argued his appeal before the Board of County Commissioners. The Board did not make a decision at that time and Florida Rock Properties v. Keyser, 709 So.2d 175 (1998) 23 Fla. L. Weekly D874 instead directed its attorney to review the statute and the comprehensive plan provisions and to make a recommendation to the Board. The county attorney made a recommendation that favored Keyser's appeal. At first the Board seemed to favor that recommendation but ultimately voted against it and in favor of the rezoning, without the set aside. Keyser then proceeded to petition the Board of County Commissioners for remand or denial of the rezoning. This evidence appears sufficient to me to support the trial court's determination that Keyser was an aggrieved or adversely affected party under section 163.3215. His interest in the environment and protection of wildlife and its habitat greatly exceeds that of the members of the public in general. To deny him standing in this case because he does not own real estate adjoining the land being rezoned which may be adversely affected, pocketbook wise, appears to me to be so restrictive that we will find ourselves back where we were in the Save Sand Key' case where intangible values stand for naught; Footnotes 1 1 2 Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk only property interests count. As demonstrated by this case, because one party owns such a vast tract of land, in fact there may be no adjoining landowners sufficiently "affected" to challenge the rezoning of part of it, under the restrictive view of standing taken by the majority opinion. Indeed, unless something more than ownership of adjacent land can give a person standing to challenge a rezoning, I will have to agree with the second district in Save Sand Key that interests in the environment, in wildlife and its habitat "may be enjoyed by all, yet none may protect it." 281 So.2d at 574. All Citations 709 So.2d 175, 23 Fla. L. Weekly D874 Policy E.1.3.6 of the county's comprehensive plan requires the 25 percent set -aside on all new development on sites of 50 acres or more. The policy reads: The County shall protect environmentally sensitive areas and native vegetative communities as follows: A. The County shall require new development, as defined in Section 380.04, FS, on sites of 50 acres or more to preserve a minimum of 25 percent of the existing native vegetation on the site.... Policy E 1.3.6A of the Comprehensive Plan requires a set aside on all new development on sites of 50 acres or more. Save Sand Key, Inc. v. United States Steel Corp., 281 So.2d 572 (Fla. 2d DCA 1973), reversed, 303 So.2d 9 (FIa.1974). End of Document © 2018 Thomson Reuters. No claim to original U.S. Government Works. WESTLAW Florida Rock Properties v. Keyser, 709 So.2d 175 (1998) 23 Fla. L. Weekly D874 KeyCite Yellow Flag - Negative Treatment Distinguished by Save Homosassa River Alliance, Inc. v. Citrus County, Fla., FIa.App. 5 Dist., October 24, 2008 709 So.2d 175 District Court of Appeal of Florida, Fifth District. FLORIDA ROCK PROPERTIES, et al., Appellants, v. Timothy KEYSER, Appellee. No. 96-3307. April 3, 1998. Synopsis Following county's rezoning of mining company's land from agriculture to mining, without requiring 25 percent set -aside to protect native vegetation, owner of land and business in the county sought declaratory judgment challenging rezoning. The Circuit Court, Putnam County, Stephen L. Boyles, J., quashed decision, and mining company appealed. The District Court of Appeal, Thompson, J., held that plaintiff lacked standing. Reversed and remanded. W. Sharp, J., filed dissenting opinion. West Headnotes (2) [t1 Zoning and Planning 4i-Right of Review; Standing Zoning and Planning .-Private persons Property ownership alone is insufficient to establish standing to enforce county comprehensive development plan. West's F.S.A. § 163.3215(1, 2). 3 Cases that cite this headnote WESTLAW [21 Submitted into the public record for item(s) PZ.1 on 12/13/2018 , City Clerk Zoning and Planning 4.-Modification or amendment Owner of land and business in county who had interest in environment lacked standing to challenge county's rezoning of mining company's land from agriculture to mining, without requiring 25 percent set -aside to protect native vegetation, absent showing that rezoning would have specific impact on him or his property. West's F.S.A. § 163.3215(1, 2). 7 Cases that cite this headnote Attorneys and Law Firms *176 John A. DeVault, III, and Jane A. Lester, of Bedell, Dittmar, DeVault, Pillans & Coxe, P.A., Jacksonville, and Edward E. Hedstrom, P.A., Palatka, for Appellants. Michael W. Woodward, of Keyser & Woodward, P.A., Interlachen, for Appellee. Opinion THOMPSON, Judge. Florida Rock Properties, Inc, and Florida Rock Industries, Inc. (collectively "Florida Rock") appeal from a declaratory final judgment which quashed the decision of the Putnam County Commission ("the Board") to rezone a 509-acre parcel of Florida Rock's land from agriculture to mining. Although several issues are raised, one is dispositive: Timothy Keyser, who filed the lawsuit seeking the declaratory judgment, is not an aggrieved party pursuant to section 163.3215, Florida Statutes. Therefore, he had no standing to appeal the decision of the Board to the circuit court. Florida Rock owns approximately 6,700 acres of land in Putnam County and mines approximately 1,800 acres. The remaining land is zoned and currently used for agriculture. Florida Rock sought to rezone an additional two parcels, 509 acres, from agriculture to mining. The Board approved the rezoning without requiring a 25 percent set -aside to preserve native vegetation as mandated by the county's comprehensive plan.' Florida Rock Properties v. Keyser, 709 So.2d 175 (1998) 23 Fla. L. Weekly D874 In his verified complaint for declaratory relief to quash the Board's decision, Keyser alleged that he was an "aggrieved or adversely affected person" as defined in section 163.3215, Florida Statutes. He alleged the following facts to establish his standing: (1) he owns land in Putnam County approximately 10 miles from Florida Rock's 509-acre site; (2) he operates a law business in Putnam County and occasionally represents conservationists; (3) he has maintained a life-long interest in wildlife and environmental protection matters as part of his civic duties; (4) the failure to require the 25 percent set -aside to protect native vegetation would affect his quality of life. The court found that Keyser had standing because his "exceptional personal and professional interests, efforts, and activities in conservation, wildlife and environmental protection matters were proven" and would be adversely affected by the Board's decision "to a greater degree than ... other members of the community." Section 163.3215, Florida Statutes, (1995) reads: 163.3215 Standing to enforce local comprehensive plans through development orders.- (1) Any aggrieved or adversely affected party may maintain an action for injunctive or other relief against any local government to prevent such local government from taking any action on a development order, as defined in s. 163.3164, which materially alters the use or density or intensity *177 of use on a particular piece of property that is not consistent with the comprehensive plan adopted under this part. (2) "Aggrieved or adversely affected party" means any person or local government which will suffer an adverse effect to an interest protected or furthered by the local government comprehensive plan, including interests related to health and safety, police and fire protection service systems, densities or intensities of development, transportation facilities, health care facilities, equipment or services, or environmental or natural resources. The alleged adverse interest may be shared in common with other members of the community at large, but shall exceed in degree the general interest in community good shared by all persons. (Emphasis added.) Therefore, Keyser's standing to challenge the Board's zoning decision depends on (1) whether the personal and professional interests he alleged are "protected or furthered by" Putnam County's comprehensive plan; if so, (2) whether those interests are greater than the general interest in community well being; and (3) whether the WESTLAW Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk interests are or will be adversely affected by the challenged zoning decision. 111 121 First, property ownership alone is insufficient to show a person is one "who will suffer an adverse effect to an interest protected or furthered by" the plan. See Parker v. Leon County, 627 So.2d 476 (F1a.1993). Thus, the fact that Keyser owns land in Putnam is insufficient to establish standing. He does not live adjacent to Florida Rock's property. He does not claim that he will be adversely impacted by noise, increased traffic or noxious fumes from Florida Rock's property. He merely alleges ownership of land. There is no showing that Keyser will suffer an adverse effect. See White v. Metropolitan Dade County, 563 So.2d 117 (Fla. 3d DCA 1990) (holding that citizens of Dade County had no standing to challenge the construction of tennis courts on land which had a deed restriction to keep the land for a park in perpetuity or the land would revert to the owner). Had Keyser lived adjacent to the property, and had he been able to show a specific impact the zoning change would have upon him or his property, he would have standing. Southwest Ranches Homeowners Ass'n, Inc. v. Broward County, 502 So.2d 931 (Fla. 4th DCA), rev. denied, 511 So.2d 999 (F1a.1987). Second, the fact that Keyser owns a business in the county does not confer standing upon him. He generally argues that the inability to counsel clients effectively in land use matters will be created because the Board issued the order. We find nothing unique about Keyser's inability to counsel his clients that would make him an aggrieved party. Each time a legislative body changes a statute or ordinance, a lawyer is in doubt as to the advice to give his client. That is the nature of a lawyer's practice. Moreover, professional interests are not among the interests the comprehensive plan protects. See § 163.3215(2), Fla. Stat. (1995). Keyser's strongest but most problematic argument is that the zoning decision of the Board would adversely affect his quality of life by its negative impact upon wildlife populations and habitats in Putnam County. In Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972), the United States Supreme Court held that judicial review must "be sought in the hands of those who have a direct stake in the outcome." Section 163.3215 does not specify or explain the degree to which the protected interest must be affected, but, case law is helpful. In Southwest Ranches Homeowners Ass'n, Inc., supra, the court held that property owners adjacent to a proposed development would have standing and a group of concerned citizens with a general interest would not. 502 So.2d at 934. Keyser never demonstrated any specific • *ow Florida Rock Properties v. Keyser, 709 So.2d 175 (1998) 23 Fla. L. Weekly D874 injury, only that the county would not be as bucolic as it once was. Keyser is a citizen with an interest in the environment and nothing more. Accordingly, we reverse the decision of the circuit court and remand for disposition consistent with this opinion. REVERSED and REMANDED. DAUKSCH, J., concurs. W. SHARP, J., dissents with opinion. *178 W. SHARP, Judge, dissenting. I respectfully disagree with the majority opinion's conclusion that Keyser lacks standing to challenge the rezoning decision rendered by Putnam County. Based on the trial court's findings and this record, I conclude that Keyser established sufficient facts to give him standing pursuant to section 163.3215, Florida Statutes. The trial court ruled Keyser had standing because his "exceptional personal and professional interests, efforts and activities in conservation, wildlife and environmental protection were proven," and because he would be adversely affected by this decision to a greater degree than other members of the community. Thus I would affirm the trial court's determination that Florida Rock's proposed mining operation is "new development," on which a 25% reservation of land to protect native vegetation is required pursuant to the Putnam County Comprehensive Planning and Land Development Act. Section 163.3215 was enacted in 1985 as part of the Growth Management Act. This section addresses standing as follows: 163.3215. Standing to enforce local comprehensive plans through development orders. (1) Any aggrieved or adversely affected party may maintain an action for injunctive or other relief against any local government to prevent such local government from taking any action on a development order, as defined in s. 163.3164, which materially alters the use or density or intensity of use on a particular piece of property that is not consistent with the comprehensive plan adopted under this part. (2) "Aggrieved or adversely affected party" means any person or local government which will suffer an WESTLAW Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk adverse effect to an interest protected or furthered by the local government comprehensive plan, including interests related to health and safety, police and fire protection service systems, densities or intensities of development, transportation facilities, health care facilities, equipment or services, or environmental or natural resources. The alleged adverse interest may be shared in common with other members of the community at large, but shall exceed in degree the general interest in community good shared by all persons. In this case, Florida Rock applied to the Putnam County Planning Commission to rezone a 509-acre parcel of its land from agriculture to mining. Florida Rock owns 6,700 acres in Putnam county, of which the 509 acres is a part. Florida Rock expects to mine the 509 acres at a rate of 10 to 12 acres a year. Under the Comprehensive Plan, the rezoning arguably required a 25% set aside to preserve native vegetation.' The applicability of the set -aside provision to Florida Rock's proposal to mine the 509-acre parcel and whether it constituted "new development" were disputed issues in this case. Although Keyser owns real estate in Putnam County located five to ten miles away from the 509 acres, he relied on his extensive personal and professional interest and activities in environmental and conservation issues to give him standing in this law suit. One of the reasons Keyser moved to Putnam County was because of its extensive wildlife habitat and population. For many years Keyser has been active in a conservation organization and has served as its president or chairman of the board and has served on other board positions in both national and state conservation organizations. Keyser is an attorney and does environmental and land use law. He has represented at no fee or low fee many different neighborhood and conservation organizations on the national, state and regional level on a variety of issues from protecting the Everglades to restoring Lake Apopka to protecting neighborhoods from inappropriate zoning. Keyser attended at least four hearings on this rezoning matter. He attended the first hearing before the Planning Commission, listened to presentations of both sides and then spoke as an interested citizen at that Commission meeting. Keyser was quite surprised by the action of the Planning Commission *179 (in favor of rezoning without the set aside) and appealed that decision to the Board of County Commissioners. Keyser was required to fill out paper work, and pay a filing fee. He also argued his appeal before the Board of County Commissioners. The Board did not make a decision at that time and Florida Rock Properties v. Keyser, 709 So.2d 175 (1998) 23 Fla. L. Weekly D874 ',air instead directed its attorney to review the statute and the comprehensive plan provisions and to make a recommendation to the Board. The county attorney made a recommendation that favored Keyser's appeal. At first the Board seemed to favor that recommendation but ultimately voted against it and in favor of the rezoning, without the set aside. Keyser then proceeded to petition the Board of County Commissioners for remand or denial of the rezoning. This evidence appears sufficient to me to support the trial court's determination that Keyser was an aggrieved or adversely affected party under section 163.3215. His interest in the environment and protection of wildlife and its habitat greatly exceeds that of the members of the public in general. To deny him standing in this case because he does not own real estate adjoining the land being rezoned which may be adversely affected, pocketbook wise, appears to me to be so restrictive that we will fmd ourselves back where we were in the Save Sand Key2 case where intangible values stand for naught; Footnotes 1 1 2 Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk only property interests count. As demonstrated by this case, because one party owns such a vast tract of land, in fact there may be no adjoining landowners sufficiently "affected" to challenge the rezoning of part of it, under the restrictive view of standing taken by the majority opinion. Indeed, unless something more than ownership of adjacent land can give a person standing to challenge a rezoning, I will have to agree with the second district in Save Sand Key that interests in the environment, in wildlife and its habitat "may be enjoyed by all, yet none may protect it." 281 So.2d at 574. All Citations 709 So.2d 175, 23 Fla. L. Weekly D874 Policy E.1.3.6 of the county's comprehensive plan requires the 25 percent set -aside on all new development on sites of 50 acres or more. The policy reads: The County shall protect environmentally sensitive areas and native vegetative communities as follows: A. The County shall require new development, as defined in Section 380.04, FS, on sites of 50 acres or more to preserve a minimum of 25 percent of the existing native vegetation on the site.... Policy E 1.3.6A of the Comprehensive Plan requires a set aside on all new development on sites of 50 acres or more. Save Sand Key, Inc. v. United States Steel Corp., 281 So.2d 572 (Fla. 2d DCA 1973), reversed, 303 So.2d 9 (FIa.1974). End of Document © 2018 Thomson Reuters. No claim to original U.S. Government Works. W ESTLAW Florida Rock Properties v. Keyser, 709 So.2d 175 (1998) 23 Fla. L. Weekly D874 KeyCite Yellow Flag - Negative Treatment Distinguished by Save Homosassa River Alliance, Inc. v. Citrus County, Fla., F1a.App. 5 Dist., October 24, 2008 709 So.2d 175 District Court of Appeal of Florida, Fifth District. FLORIDA ROCK PROPERTIES, et al., Appellants, v. Timothy KEYSER, Appellee. No. 96-3307. April 3, 1998. Synopsis Following county's rezoning of mining company's land from agriculture to mining, without requiring 25 percent set -aside to protect native vegetation, owner of land and business in the county sought declaratory judgment challenging rezoning. The Circuit Court, Putnam County, Stephen L. Boyles, J., quashed decision, and mining company appealed. The District Court of Appeal, Thompson, J., held that plaintiff lacked standing. Reversed and remanded. W. Sharp, J., filed dissenting opinion. West Headnotes (2) 1t1 Zoning and Planning 4..Right of Review; Standing Zoning and Planning 4"Private persons Property ownership alone is insufficient to establish standing to enforce county comprehensive development plan. West's F.S.A. § 163.3215(1, 2). 3 Cases that cite this headnote WESTLAW [21 Submitted into the public record for item(s) PZ.1 on 12/13/2018 , City Clerk Zoning and Planning 4..Modification or amendment Owner of land and business in county who had interest in environment lacked standing to challenge county's rezoning of mining company's land from agriculture to mining, without requiring 25 percent set -aside to protect native vegetation, absent showing that rezoning would have specific impact on him or his property. West's F.S.A. § 163.3215(1, 2). 7 Cases that cite this headnote Attorneys and Law Firms *176 John A. DeVault, III, and Jane A. Lester, of Bedell, Dittmar, DeVault, Pillans & Coxe, P.A., Jacksonville, and Edward E. Hedstrom, P.A., Palatka, for Appellants. Michael W. Woodward, of Keyser & Woodward, P.A., Interlachen, for Appellee. Opinion THOMPSON, Judge. Florida Rock Properties, Inc, and Florida Rock Industries, Inc. (collectively "Florida Rock") appeal from a declaratory fmal judgment which quashed the decision of the Putnam County Commission ("the Board") to rezone a 509-acre parcel of Florida Rock's land from agriculture to mining. Although several issues are raised, one is dispositive: Timothy Keyser, who filed the lawsuit seeking the declaratory judgment, is not an aggrieved party pursuant to section 163.3215, Florida Statutes. Therefore, he had no standing to appeal the decision of the Board to the circuit court. Florida Rock owns approximately 6,700 acres of land in Putnam County and mines approximately 1,800 acres. The remaining land is zoned and currently used for agriculture. Florida Rock sought to rezone an additional two parcels, 509 acres, from agriculture to mining. The Board approved the rezoning without requiring a 25 percent set -aside to preserve native vegetation as mandated by the county's comprehensive plan.' • r Florida Rock Properties v. Keyser, 709 So.2d 175 (1998) 23 Fla. L. Weekly D874 In his verified complaint for declaratory relief to quash the Board's decision, Keyser alleged that he was an "aggrieved or adversely affected person" as defined in section 163.3215, Florida Statutes. He alleged the following facts to establish his standing: (1) he owns land in Putnam County approximately 10 miles from Florida Rock's 509-acre site; (2) he operates a law business in Putnam County and occasionally represents conservationists; (3) he has maintained a life-long interest in wildlife and environmental protection matters as part of his civic duties; (4) the failure to require the 25 percent set -aside to protect native vegetation would affect his quality of life. The court found that Keyser had standing because his "exceptional personal and professional interests, efforts, and activities in conservation, wildlife and environmental protection matters were proven" and would be adversely affected by the Board's decision "to a greater degree than ... other members of the community." Section 163.3215, Florida Statutes, (1995) reads: 163.3215 Standing to enforce local comprehensive plans through development orders.- (1) Any aggrieved or adversely affected party may maintain an action for injunctive or other relief against any local government to prevent such local government from taking any action on a development order, as defined in s. 163.3164, which materially alters the use or density or intensity *177 of use on a particular piece of property that is not consistent with the comprehensive plan adopted under this part. (2) "Aggrieved or adversely affected party" means any person or local government which will suffer an adverse effect to an interest protected or furthered by the local government comprehensive plan, including interests related to health and safety, police and fire protection service systems, densities or intensities of development, transportation facilities, health care facilities, equipment or services, or environmental or natural resources. The alleged adverse interest may be shared in common with other members of the community at large, but shall exceed in degree the general interest in community good shared by all persons. (Emphasis added.) Therefore, Keyser's standing to challenge the Board's zoning decision depends on (1) whether the personal and professional interests he alleged are "protected or furthered by" Putnam County's comprehensive plan; if so, (2) whether those interests are greater than the general interest in community well being; and (3) whether the WESTLAW Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk interests are or will be adversely affected by the challenged zoning decision. 111 121 First, property ownership alone is insufficient to show a person is one "who will suffer an adverse effect to an interest protected or furthered by" the plan. See Parker v. Leon County, 627 So.2d 476 (F1a.1993). Thus, the fact that Keyser owns land in Putnam is insufficient to establish standing. He does not live adjacent to Florida Rock's property. He does not claim that he will be adversely impacted by noise, increased traffic or noxious fumes from Florida Rock's property. He merely alleges ownership of land. There is no showing that Keyser will suffer an adverse effect. See White v. Metropolitan Dade County, 563 So.2d 117 (Fla. 3d DCA 1990) (holding that citizens of Dade County had no standing to challenge the construction of tennis courts on land which had a deed restriction to keep the land for a park in perpetuity or the land would revert to the owner). Had Keyser lived adjacent to the property, and had he been able to show a specific impact the zoning change would have upon him or his property, he would have standing. Southwest Ranches Homeowners Ass 'n, Inc. v. Broward County, 502 So.2d 931 (Fla. 4th DCA), rev. denied, 511 So.2d 999 (Fla.1987). Second, the fact that Keyser owns a business in the county does not confer standing upon him. He generally argues that the inability to counsel clients effectively in land use matters will be created because the Board issued the order. We find nothing unique about Keyser's inability to counsel his clients that would make him an aggrieved party. Each time a legislative body changes a statute or ordinance, a lawyer is in doubt as to the advice to give his client. That is the nature of a lawyer's practice. Moreover, professional interests are not among the interests the comprehensive plan protects. See § 163.3215(2), Fla. Stat. (1995). Keyser's strongest but most problematic argument is that the zoning decision of the Board would adversely affect his quality of life by its negative impact upon wildlife populations and habitats in Putnam County. In Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972), the United States Supreme Court held that judicial review must "be sought in the hands of those who have a direct stake in the outcome." Section 163.3215 does not specify or explain the degree to which the protected interest must be affected, but, case law is helpful. In Southwest Ranches Homeowners Ass 'n, Inc., supra, the court held that property owners adjacent to a proposed development would have standing and a group of concemed citizens with a general interest would not. 502 So.2d at 934. Keyser never demonstrated any specific Florida Rock Properties v. Keyser, 709 So.2d 175 (1998) 23 Fla. L. Weekly D874 injury, only that the county would not be as bucolic as it once was. Keyser is a citizen with an interest in the environment and nothing more. Accordingly, we reverse the decision of the circuit court and remand for disposition consistent with this opinion. REVERSED and REMANDED. DAUKSCH, J., concurs. W. SHARP, J., dissents with opinion. *178 W. SHARP, Judge, dissenting. I respectfully disagree with the majority opinion's conclusion that Keyser lacks standing to challenge the rezoning decision rendered by Putnam County. Based on the trial court's findings and this record, I conclude that Keyser established sufficient facts to give him standing pursuant to section 163.3215, Florida Statutes. The trial court ruled Keyser had standing because his "exceptional personal and professional interests, efforts and activities in conservation, wildlife and environmental protection were proven," and because he would be adversely affected by this decision to a greater degree than other members of the community. Thus I would affirm the trial court's determination that Florida Rock's proposed mining operation is "new development," on which a 25% reservation of land to protect native vegetation is required pursuant to the Putnam County Comprehensive Planning and Land Development Act. Section 163.3215 was enacted in 1985 as part of the Growth Management Act. This section addresses standing as follows: 163.3215. Standing to enforce local comprehensive plans through development orders. (1) Any aggrieved or adversely affected party may maintain an action for injunctive or other relief against any local government to prevent such local government from taking any action on a development order, as defined in s. 163.3164, which materially alters the use or density or intensity of use on a particular piece of property that is not consistent with the comprehensive plan adopted under this part. (2) "Aggrieved or adversely affected party" means any person or local government which will suffer an WEST LAW Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk adverse effect to an interest protected or furthered by the local government comprehensive plan, including interests related to health and safety, police and fire protection service systems, densities or intensities of development, transportation facilities, health care facilities, equipment or services, or environmental or natural resources. The alleged adverse interest may be shared in common with other members of the community at large, but shall exceed in degree the general interest in community good shared by all persons. In this case, Florida Rock applied to the Putnam County Planning Commission to rezone a 509-acre parcel of its land from agriculture to mining. Florida Rock owns 6,700 acres in Putnam county, of which the 509 acres is a part. Florida Rock expects to mine the 509 acres at a rate of 10 to 12 acres a year. Under the Comprehensive Plan, the rezoning arguably required a 25% set aside to preserve native vegetation.' The applicability of the set -aside provision to Florida Rock's proposal to mine the 509-acre parcel and whether it constituted "new development" were disputed issues in this case. Although Keyser owns real estate in Putnam County located five to ten miles away from the 509 acres, he relied on his extensive personal and professional interest and activities in environmental and conservation issues to give him standing in this law suit. One of the reasons Keyser moved to Putnam County was because of its extensive wildlife habitat and population. For many years Keyser has been active in a conservation organization and has served as its president or chairman of the board and has served on other board positions in both national and state conservation organizations. Keyser is an attorney and does environmental and land use law. He has represented at no fee or low fee many different neighborhood and conservation organizations on the national, state and regional level on a variety of issues from protecting the Everglades to restoring Lake Apopka to protecting neighborhoods from inappropriate zoning. Keyser attended at least four hearings on this rezoning matter. He attended the first hearing before the Planning Commission, listened to presentations of both sides and then spoke as an interested citizen at that Commission meeting. Keyser was quite surprised by the action of the Planning Commission *179 (in favor of rezoning without the set aside) and appealed that decision to the Board of County Commissioners. Keyser was required to fill out paper work, and pay a filing fee. He also argued his appeal before the Board of County Commissioners. The Board did not make a decision at that time and Florida Rock Properties v. Keyser, 709 So.2d 175 (1998) 23 Fla. L. Weekly D874 instead directed its attorney to review the statute and the comprehensive plan provisions and to make a recommendation to the Board. The county attorney made a recommendation that favored Keyser's appeal. At first the Board seemed to favor that recommendation but ultimately voted against it and in favor of the rezoning, without the set aside. Keyser then proceeded to petition the Board of County Commissioners for remand or denial of the rezoning. This evidence appears sufficient to me to support the trial court's determination that Keyser was an aggrieved or adversely affected party under section 163.3215. His interest in the environment and protection of wildlife and its habitat greatly exceeds that of the members of the public in general. To deny him standing in this case because he does not own real estate adjoining the land being rezoned which may be adversely affected, pocketbook wise, appears to me to be so restrictive that we will find ourselves back where we were in the Save Sand Key' case where intangible values stand for naught; Footnotes 2 Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk only property interests count. As demonstrated by this case, because one party owns such a vast tract of land, in fact there may be no adjoining landowners sufficiently "affected" to challenge the rezoning of part of it, under the restrictive view of standing taken by the majority opinion. Indeed, unless something more than ownership of adjacent land can give a person standing to challenge a rezoning, I will have to agree with the second district in Save Sand Key that interests in the environment, in wildlife and its habitat "may be enjoyed by all, yet none may protect it." 281 So.2d at 574. All Citations 709 So.2d 175, 23 Fla. L. Weekly D874 Policy E.1.3.6 of the county's comprehensive plan requires the 25 percent set -aside on all new development on sites of 50 acres or more. The policy reads: The County shall protect environmentally sensitive areas and native vegetative communities as follows: A. The County shall require new development, as defined in Section 380.04, FS, on sites of 50 acres or more to preserve a minimum of 25 percent of the existing native vegetation on the site.... Policy E 1.3.6A of the Comprehensive Plan requires a set aside on all new development on sites of 50 acres or more. Save Sand Key, Inc. v. United States Steel Corp., 281 So.2d 572 (Fla. 2d DCA 1973), reversed, 303 So.2d 9 (FIa.1974). End of Document ©2018 Thomson Reuters. No claim to original U.S. Government Works. WESTLAW Florida Rock Properties v. Keyser, 709 So.2d 175 (1998) 23 Fla. L. Weekly D874 KeyCite Yellow Flag - Negative Treatment Distinguished by Save Homosassa River Alliance, Inc. v. Citrus County, Fla., Fla.App. 5 Dist., October 24, 2008 709 So.2d 175 District Court of Appeal of Florida, Fifth District. FLORIDA ROCK PROPERTIES, et al., Appellants, v. Timothy KEYSER, Appellee. No. 96-3307. April 3, 1998. Synopsis Following county's rezoning of mining company's land from agriculture to mining, without requiring 25 percent set -aside to protect native vegetation, owner of land and business in the county sought declaratory judgment challenging rezoning. The Circuit Court, Putnam County, Stephen L. Boyles, J., quashed decision, and mining company appealed. The District Court of Appeal, Thompson, J., held that plaintiff lacked standing. Reversed and remanded. W. Sharp, J., filed dissenting opinion. West Headnotes (2) 1tl Zoning and Planning 4'-Right of Review; Standing Zoning and Planning 410-Private persons Property ownership alone is insufficient to establish standing to enforce county comprehensive development plan. West's F.S.A. § 163.3215(1, 2). 3 Cases that cite this headnote WESTLAW 121 Submitted into the public record for item(s) PZ.1 on 12/13/2018 , City Clerk Zoning and Planning 4 Modification or amendment Owner of land and business in county who had interest in environment lacked standing to challenge county's rezoning of mining company's land from agriculture to mining, without requiring 25 percent set -aside to protect native vegetation, absent showing that rezoning would have specific impact on him or his property. West's F.S.A. § 163.3215(1, 2). 7 Cases that cite this headnote Attorneys and Law Firms *176 John A. DeVault, III, and Jane A. Lester, of Bedell, Dittmar, DeVault, Pillans & Coxe, P.A., Jacksonville, and Edward E. Hedstrom, P.A., Palatka, for Appellants. Michael W. Woodward, of Keyser & Woodward, P.A., Interlachen, for Appellee. Opinion THOMPSON, Judge. Florida Rock Properties, Inc, and Florida Rock Industries, Inc. (collectively "Florida Rock") appeal from a declaratory fmal judgment which quashed the decision of the Putnam County Commission ("the Board") to rezone a 509-acre parcel of Florida Rock's land from agriculture to mining. Although several issues are raised, one is dispositive: Timothy Keyser, who filed the lawsuit seeking the declaratory judgment, is not an aggrieved party pursuant to section 163.3215, Florida Statutes. Therefore, he had no standing to appeal the decision of the Board to the circuit court. Florida Rock owns approximately 6,700 acres of land in Putnam County and mines approximately 1,800 acres. The remaining land is zoned and currently used for agriculture. Florida Rock sought to rezone an additional two parcels, 509 acres, from agriculture to mining. The Board approved the rezoning without requiring a 25 percent set -aside to preserve native vegetation as mandated by the county's comprehensive plan.' Florida Rock Properties v. Keyser, 709 So.2d 175 (1998) 23 Fla. L. Weekly D874 In his verified complaint for declaratory relief to quash the Board's decision, Keyser alleged that he was an "aggrieved or adversely affected person" as defined in section 163.3215, Florida Statutes. He alleged the following facts to establish his standing: (1) he owns land in Putnam County approximately 10 miles from Florida Rock's 509-acre site; (2) he operates a law business in Putnam County and occasionally represents conservationists; (3) he has maintained a life-long interest in wildlife and environmental protection matters as part of his civic duties; (4) the failure to require the 25 percent set -aside to protect native vegetation would affect his quality of life. The court found that Keyser had standing because his "exceptional personal and professional interests, efforts, and activities in conservation, wildlife and environmental protection matters were proven" and would be adversely affected by the Board's decision "to a greater degree than ... other members of the community." Section 163.3215, Florida Statutes, (1995) reads: 163.3215 Standing to enforce local comprehensive plans through development orders.- (1) Any aggrieved or adversely affected party may maintain an action for injunctive or other relief against any local government to prevent such local government from taking any action on a development order, as defined in s. 163.3164, which materially alters the use or density or intensity *177 of use on a particular piece of property that is not consistent with the comprehensive plan adopted under this part. (2) "Aggrieved or adversely affected party" means any person or local government which will suffer an adverse effect to an interest protected or furthered by the local government comprehensive plan, including interests related to health and safety, police and fire protection service systems, densities or intensities of development, transportation facilities, health care facilities, equipment or services, or environmental or natural resources. The alleged adverse interest may be shared in common with other members of the community at large, but shall exceed in degree the general interest in community good shared by all persons. (Emphasis added.) Therefore, Keyser's standing to challenge the Board's zoning decision depends on (1) whether the personal and professional interests he alleged are "protected or furthered by" Putnam County's comprehensive plan; if so, (2) whether those interests are greater than the general interest in community well being; and (3) whether the WESTLAW Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk interests are or will be adversely affected by the challenged zoning decision. 111 121 First, property ownership alone is insufficient to show a person is one "who will suffer an adverse effect to an interest protected or furthered by" the plan. See Parker v. Leon County, 627 So.2d 476 (F1a.1993). Thus, the fact that Keyser owns land in Putnam is insufficient to establish standing. He does not live adjacent to Florida Rock's property. He does not claim that he will be adversely impacted by noise, increased traffic or noxious fumes from Florida Rock's property. He merely alleges ownership of land. There is no showing that Keyser will suffer an adverse effect. See White v. Metropolitan Dade County, 563 So.2d 117 (Fla. 3d DCA 1990) (holding that citizens of Dade County had no standing to challenge the construction of tennis courts on land which had a deed restriction to keep the land for a park in perpetuity or the land would revert to the owner). Had Keyser lived adjacent to the property, and had he been able to show a specific impact the zoning change would have upon him or his property, he would have standing. Southwest Ranches Homeowners Ass Inc. v. Broward County, 502 So.2d 931 (Fla. 4th DCA), rev. denied, 511 So.2d 999 (F1a.1987). Second, the fact that Keyser owns a business in the county does not confer standing upon him. He generally argues that the inability to counsel clients effectively in land use matters will be created because the Board issued the order. We find nothing unique about Keyser's inability to counsel his clients that would make him an aggrieved party. Each time a legislative body changes a statute or ordinance, a lawyer is in doubt as to the advice to give his client. That is the nature of a lawyer's practice. Moreover, professional interests are not among the interests the comprehensive plan protects. See § 163.3215(2), Fla. Stat. (1995). Keyser's strongest but most problematic argument is that the zoning decision of the Board would adversely affect his quality of life by its negative impact upon wildlife populations and habitats in Putnam County. In Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972), the United States Supreme Court held that judicial review must "be sought in the hands of those who have a direct stake in the outcome." Section 163.3215 does not specify or explain the degree to which the protected interest must be affected, but, case law is helpful. In Southwest Ranches Homeowners Ass 'n, Inc., supra, the court held that property owners adjacent to a proposed development would have standing and a group of concerned citizens with a general interest would not. 502 So.2d at 934. Keyser never demonstrated any specific Florida Rock Properties v. Keyser, 709 So.2d 175 (1998) 23 Fla. L. Weekly D874 injury, only that the county would not be as bucolic as it once was. Keyser is a citizen with an interest in the environment and nothing more. Accordingly, we reverse the decision of the circuit court and remand for disposition consistent with this opinion. REVERSED and REMANDED. DAUKSCH, J., concurs. W. SHARP, J., dissents with opinion. *178 W. SHARP, Judge, dissenting. I respectfully disagree with the majority opinion's conclusion that Keyser lacks standing to challenge the rezoning decision rendered by Putnam County. Based on the trial court's findings and this record, I conclude that Keyser established sufficient facts to give him standing pursuant to section 163.3215, Florida Statutes. The trial court ruled Keyser had standing because his "exceptional personal and professional interests, efforts and activities in conservation, wildlife and environmental protection were proven," and because he would be adversely affected by this decision to a greater degree than other members of the community. Thus I would affirm the trial court's determination that Florida Rock's proposed mining operation is "new development," on which a 25% reservation of land to protect native vegetation is required pursuant to the Putnam County Comprehensive Planning and Land Development Act. Section 163.3215 was enacted in 1985 as part of the Growth Management Act. This section addresses standing as follows: 163.3215. Standing to enforce local comprehensive plans through development orders. (1) Any aggrieved or adversely affected party may maintain an action for injunctive or other relief against any local government to prevent such local government from taking any action on a development order, as defined in s. 163.3164, which materially alters the use or density or intensity of use on a particular piece of property that is not consistent with the comprehensive plan adopted under this part. (2) "Aggrieved or adversely affected party" means any person or local government which will suffer an WESTLAW Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk adverse effect to an interest protected or furthered by the local government comprehensive plan, including interests related to health and safety, police and fire protection service systems, densities or intensities of development, transportation facilities, health care facilities, equipment or services, or environmental or natural resources. The alleged adverse interest may be shared in common with other members of the community at large, but shall exceed in degree the general interest in community good shared by all persons. In this case, Florida Rock applied to the Putnam County Planning Commission to rezone a 509-acre parcel of its land from agriculture to mining. Florida Rock owns 6,700 acres in Putnam county, of which the 509 acres is a part. Florida Rock expects to mine the 509 acres at a rate of 10 to 12 acres a year. Under the Comprehensive Plan, the rezoning arguably required a 25% set aside to preserve native vegetation.' The applicability of the set -aside provision to Florida Rock's proposal to mine the 509-acre parcel and whether it constituted "new development" were disputed issues in this case. Although Keyser owns real estate in Putnam County located five to ten miles away from the 509 acres, he relied on his extensive personal and professional interest and activities in environmental and conservation issues to give him standing in this law suit. One of the reasons Keyser moved to Putnam County was because of its extensive wildlife habitat and population. For many years Keyser has been active in a conservation organization and has served as its president or chairman of the board and has served on other board positions in both national and state conservation organizations. Keyser is an attorney and does environmental and land use law. He has represented at no fee or low fee many different neighborhood and conservation organizations on the national, state and regional level on a variety of issues from protecting the Everglades to restoring Lake Apopka to protecting neighborhoods from inappropriate zoning. Keyser attended at least four hearings on this rezoning matter. He attended the first hearing before the Planning Commission, listened to presentations of both sides and then spoke as an interested citizen at that Commission meeting. Keyser was quite surprised by the action of the Planning Commission *179 (in favor of rezoning without the set aside) and appealed that decision to the Board of County Commissioners. Keyser was required to fill out paper work, and pay a filing fee. He also argued his appeal before the Board of County Commissioners. The Board did not make a decision at that time and Florida Rock Properties v. Keyser, 709 So.2d 175 (1998) 23 Fla. L. Weekly D874 Now- instead directed its attorney to review the statute and the comprehensive plan provisions and to make a recommendation to the Board. The county attorney made a recommendation that favored Keyser's appeal. At first the Board seemed to favor that recommendation but ultimately voted against it and in favor of the rezoning, without the set aside. Keyser then proceeded to petition the Board of County Commissioners for remand or denial of the rezoning. This evidence appears sufficient to me to support the trial court's determination that Keyser was an aggrieved or adversely affected party under section 163.3215. His interest in the environment and protection of wildlife and its habitat greatly exceeds that of the members of the public in general. To deny him standing in this case because he does not own real estate adjoining the land being rezoned which may be adversely affected, pocketbook wise, appears to me to be so restrictive that we will find ourselves back where we were in the Save Sand Key' case where intangible values stand for naught; Footnotes 2 Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk only property interests count. As demonstrated by this case, because one party owns such a vast tract of land, in fact there may be no adjoining landowners sufficiently "affected" to challenge the rezoning of part of it, under the restrictive view of standing taken by the majority opinion. Indeed, unless something more than ownership of adjacent land can give a person standing to challenge a rezoning, I will have to agree with the second district in Save Sand Key that interests in the environment, in wildlife and its habitat "may be enjoyed by all, yet none may protect it." 281 So.2d at 574. All Citations 709 So.2d 175, 23 Fla. L. Weekly D874 Policy E.1.3.6 of the county's comprehensive plan requires the 25 percent set -aside on all new development on sites of 50 acres or more. The policy reads: The County shall protect environmentally sensitive areas and native vegetative communities as follows: A. The County shall require new development, as defined in Section 380.04, FS, on sites of 50 acres or more to preserve a minimum of 25 percent of the existing native vegetation on the site.... Policy E 1.3.6A of the Comprehensive Plan requires a set aside on all new development on sites of 50 acres or more. Save Sand Key, Inc. v. United States Steel Corp., 281 So.2d 572 (Fla. 2d DCA 1973), reversed, 303 So.2d 9 (FIa.1974). End of Document © 2018 Thomson Reuters. No claim to original U.S. Government Works. WESTLAW Florida Rock Properties v. Keyser, 709 So.2d 175 (1998) 23 Fla. L. Weekly D874 KeyCite Yellow Flag - Negative Treatment Distinguished by Save Homosassa River Alliance, Inc. v. Citrus County, Fla., FIa.App. 5 Dist., October 24, 2008 709 So.2d 175 District Court of Appeal of Florida, Fifth District. FLORIDA ROCK PROPERTIES, et al., Appellants, v. Timothy KEYSER, Appellee. No. 96-3307. April 3, 1998. Synopsis Following county's rezoning of mining company's land from agriculture to mining, without requiring 25 percent set -aside to protect native vegetation, owner of land and business in the county sought declaratory judgment challenging rezoning. The Circuit Court, Putnam County, Stephen L. Boyles, J., quashed decision, and mining company appealed. The District Court of Appeal, Thompson, J., held that plaintiff lacked standing. Reversed and remanded. W. Sharp, J., filed dissenting opinion. West Headnotes (2) [11 Zoning and Planning 40-Right of Review; Standing Zoning and Planning ...Private persons Property ownership alone is insufficient to establish standing to enforce county comprehensive development plan. West's F.S.A. § 163.3215(1, 2). 3 Cases that cite this headnote WESTLAW , [21 Submitted into the public record for item(s) PZ.1 on 12/13/2018 , City Clerk Zoning and Planning 'Modification or amendment Owner of land and business in county who had interest in environment lacked standing to challenge county's rezoning of mining company's land from agriculture to mining, without requiring 25 percent set -aside to protect native vegetation, absent showing that rezoning would have specific impact on him or his property. West's F.S.A. § 163.3215(1, 2). 7 Cases that cite this headnote Attorneys and Law Firms *176 John A. DeVault, III, and Jane A. Lester, of Bedell, Dittmar, DeVault, Pillans & Coxe, P.A., Jacksonville, and Edward E. Hedstrom, P.A., Palatka, for Appellants. Michael W. Woodward, of Keyser & Woodward, P.A., Interlachen, for Appellee. Opinion THOMPSON, Judge. Florida Rock Properties, Inc, and Florida Rock Industries, Inc. (collectively "Florida Rock") appeal from a declaratory final judgment which quashed the decision of the Putnam County Commission ("the Board") to rezone a 509-acre parcel of Florida Rock's land from agriculture to mining. Although several issues are raised, one is dispositive: Timothy Keyser, who filed the lawsuit seeking the declaratory judgment, is not an aggrieved party pursuant to section 163.3215, Florida Statutes. Therefore, he had no standing to appeal the decision of the Board to the circuit court. Florida Rock owns approximately 6,700 acres of land in Putnam County and mines approximately 1,800 acres. The remaining land is zoned and currently used for agriculture. Florida Rock sought to rezone an additional two parcels, 509 acres, from agriculture to mining. The Board approved the rezoning without requiring a 25 percent set -aside to preserve native vegetation as mandated by the county's comprehensive plan.° Florida Rock Properties v. Keyser, 709 So.2d 175 (1998) 23 Fla. L. Weekly D874 In his verified complaint for declaratory relief to quash the Board's decision, Keyser alleged that he was an "aggrieved or adversely affected person" as defined in section 163.3215, Florida Statutes. He alleged the following facts to establish his standing: (1) he owns land in Putnam County approximately 10 miles from Florida Rock's 509-acre site; (2) he operates a law business in Putnam County and occasionally represents conservationists; (3) he has maintained a life-long interest in wildlife and environmental protection matters as part of his civic duties; (4) the failure to require the 25 percent set -aside to protect native vegetation would affect his quality of life. The court found that Keyser had standing because his "exceptional personal and professional interests, efforts, and activities in conservation, wildlife and environmental protection matters were proven" and would be adversely affected by the Board's decision "to a greater degree than ... other members of the community." Section 163.3215, Florida Statutes, (1995) reads: 163.3215 Standing to enforce local comprehensive plans through development orders.- (1) Any aggrieved or adversely affected party may maintain an action for injunctive or other relief against any local government to prevent such local government from taking any action on a development order, as defined in s. 163.3164, which materially alters the use or density or intensity *177 of use on a particular piece of property that is not consistent with the comprehensive plan adopted under this part. (2) "Aggrieved or adversely affected party" means any person or local government which will suffer an adverse effect to an interest protected or furthered by the local government comprehensive plan, including interests related to health and safety, police and fire protection service systems, densities or intensities of development, transportation facilities, health care facilities, equipment or services, or environmental or natural resources. The alleged adverse interest may be shared in common with other members of the community at large, but shall exceed in degree the general interest in community good shared by all persons. (Emphasis added.) Therefore, Keyser's standing to challenge the Board's zoning decision depends on (1) whether the personal and professional interests he alleged are "protected or furthered by" Putnam County's comprehensive plan; if so, (2) whether those interests are greater than the general interest in community well being; and (3) whether the WESTLAW Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk interests are or will be adversely affected by the challenged zoning decision. 111 Pi First, property ownership alone is insufficient to show a person is one "who will suffer an adverse effect to an interest protected or furthered by" the plan. See Parker v. Leon County, 627 So.2d 476 (F1a.1993). Thus, the fact that Keyser owns land in Putnam is insufficient to establish standing. He does not live adjacent to Florida Rock's property. He does not claim that he will be adversely impacted by noise, increased traffic or noxious fumes from Florida Rock's property. He merely alleges ownership of land. There is no showing that Keyser will suffer an adverse effect. See White v. Metropolitan Dade County, 563 So.2d 117 (Fla. 3d DCA 1990) (holding that citizens of Dade County had no standing to challenge the construction of tennis courts on land which had a deed restriction to keep the land for a park in perpetuity or the land would revert to the owner). Had Keyser lived adjacent to the property, and had he been able to show a specific impact the zoning change would have upon him or his property, he would have standing. Southwest Ranches Homeowners Ass 'n, Inc. v. Broward County, 502 So.2d 931 (Fla. 4th DCA), rev. denied, 511 So.2d 999 (Fla.1987). Second, the fact that Keyser owns a business in the county does not confer standing upon him. He generally argues that the inability to counsel clients effectively in land use matters will be created because the Board issued the order. We find nothing unique about Keyser's inability to counsel his clients that would make him an aggrieved party. Each time a legislative body changes a statute or ordinance, a lawyer is in doubt as to the advice to give his client. That is the nature of a lawyer's practice. Moreover, professional interests are not among the interests the comprehensive plan protects. See 163.3215(2), Fla. Stat. (1995). Keyser's strongest but most problematic argument is that the zoning decision of the Board would adversely affect his quality of life by its negative impact upon wildlife populations and habitats in Putnam County. In Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972), the United States Supreme Court held that judicial review must "be sought in the hands of those who have a direct stake in the outcome." Section 163.3215 does not specify or explain the degree to which the protected interest must be affected, but, case law is helpful. In' Southwest Ranches Homeowners Ass 'n, Inc., supra, the court held that property owners adjacent to a proposed development would have standing and a group of concerned citizens with a general interest would not. 502 So.2d at 934. Keyser never demonstrated any specific Florida Rock Properties v. Keyser, 709 So.2d 175 (1998) 23 Fla. L. Weekly D874 injury, only that the county would not be as bucolic as it once was. Keyser is a citizen with an interest in the environment and nothing more. Accordingly, we reverse the decision of the circuit court and remand for disposition consistent with this opinion. REVERSED and REMANDED. DAUKSCH, J., concurs. W. SHARP, J., dissents with opinion. *178 W. SHARP, Judge, dissenting. I respectfully disagree with the majority opinion's conclusion that Keyser lacks standing to challenge the rezoning decision rendered by Putnam County. Based on the trial court's findings and this record, I conclude that Keyser established sufficient facts to give him standing pursuant to section 163.3215, Florida Statutes. The trial court ruled Keyser had standing because his "exceptional personal and professional interests, efforts and activities in conservation, wildlife and environmental protection were proven," and because he would be adversely affected by this decision to a greater degree than other members of the community. Thus I would affirm the trial court's determination that Florida Rock's proposed mining operation is "new development," on which a 25% reservation of land to protect native vegetation is required pursuant to the Putnam County Comprehensive Planning and Land Development Act. Section 163.3215 was enacted in 1985 as part of the Growth Management Act. This section addresses standing as follows: 163.3215. Standing to enforce local comprehensive plans through development orders. (1) Any aggrieved or adversely affected party may maintain an action for injunctive or other relief against any local government to prevent such local government from taking any action on a development order, as defined in s. 163.3164, which materially alters the use or density or intensity of use on a particular piece of property that is not consistent with the comprehensive plan adopted under this part. (2) "Aggrieved or adversely affected party" means any person or local government which will suffer an WESTLAW Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk adverse effect to an interest protected or furthered by the local government comprehensive plan, including interests related to health and safety, police and fire protection service systems, densities or intensities of development, transportation facilities, health care facilities, equipment or services, or environmental or natural resources. The alleged adverse interest may be shared in common with other members of the community at large, but shall exceed in degree the general interest in community good shared by all persons. In this case, Florida Rock applied to the Putnam County Planning Commission to rezone a 509-acre parcel of its land from agriculture to mining. Florida Rock owns 6,700 acres in Putnam county, of which the 509 acres is a part. Florida Rock expects to mine the 509 acres at a rate of 10 to 12 acres a year. Under the Comprehensive Plan, the rezoning arguably required a 25% set aside to preserve native vegetation.' The applicability of the set -aside provision to Florida Rock's proposal to mine the 509-acre parcel and whether it constituted "new development" were disputed issues in this case. Although Keyser owns real estate in Putnam County located five to ten miles away from the 509 acres, he relied on his extensive personal and professional interest and activities in environmental and conservation issues to give him standing in this law suit. One of the reasons Keyser moved to Putnam County was because of its extensive wildlife habitat and population. For many years Keyser has been active in a conservation organization and has served as its president or chairman of the board and has served on other board positions in both national and state conservation organizations. Keyser is an attorney and does environmental and land use law. He has represented at no fee or low fee many different neighborhood and conservation organizations on the national, state and regional level on a variety of issues from protecting the Everglades to restoring Lake Apopka to protecting neighborhoods from inappropriate zoning. Keyser attended at least four hearings on this rezoning matter. He attended the first hearing before the Planning Commission, listened to presentations of both sides and then spoke as an interested citizen at that Commission meeting. Keyser was quite surprised by the action of the Planning Commission *179 (in favor of rezoning without the set aside) and appealed that decision to the Board of County Commissioners. Keyser was required to fill out paper work, and pay a filing fee. He also argued his appeal before the Board of County Commissioners. The Board did not make a decision at that time and Florida Rock Properties v. Keyser, 709 So.2d 175 (1998) 23 Fla. L. Weekly D874 instead directed its attorney to review the statute and the comprehensive plan provisions and to make a recommendation to the Board. The county attorney made a recommendation that favored Keyser's appeal. At first the Board seemed to favor that recommendation but ultimately voted against it and in favor of the rezoning, without the set aside. Keyser then proceeded to petition the Board of County Commissioners for remand or denial of the rezoning. This evidence appears sufficient to me to support the trial court's determination that Keyser was an aggrieved or adversely affected party under section 163.3215. His interest in the environment and protection of wildlife and its habitat greatly exceeds that of the members of the public in general. To deny him standing in this case because he does not own real estate adjoining the land being rezoned which may be adversely affected, pocketbook wise, appears to me to be so restrictive that we will find ourselves back where we were in the Save Sand Key2 case where intangible values stand for naught; Footnotes 1 2 Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk only property interests count. As demonstrated by this case, because one party owns such a vast tract of land, in fact there may be no adjoining landowners sufficiently "affected" to challenge the rezoning of part of it, under the restrictive view of standing taken by the majority opinion. Indeed, unless something more than ownership of adjacent land can give a person standing to challenge a rezoning, I will have to agree with the second district in Save Sand Key that interests in the environment, in wildlife and its habitat "may be enjoyed by all, yet none may protect it." 281 So.2d at 574. All Citations 709 So.2d 175, 23 Fla. L. Weekly D874 Policy E.1.3.6 of the county's comprehensive plan requires the 25 percent set -aside on all new development on sites of 50 acres or more. The policy reads: The County shall protect environmentally sensitive areas and native vegetative communities as follows: A. The County shall require new development, as defined in Section 380.04, FS, on sites of 50 acres or more to preserve a minimum of 25 percent of the existing native vegetation on the site.... Policy E 1.3.6A of the Comprehensive Plan requires a set aside on all new development on sites of 50 acres or more. Save Sand Key, Inc. v. United States Steel Corp., 281 So.2d 572 (Fla. 2d DCA 1973), reversed, 303 So.2d 9 (FIa.1974). End of Document © 2018 Thomson Reuters. No claim to original U.S. Government Works. WESTLAW Florida Rock Properties v. Keyser, 709 So.2d 175 (1998) 23 Fla. L. Weekly D874 KeyCite Yellow Flag - Negative Treatment Distinguished by Save Homosassa River Alliance, Inc. v. Citrus County, Fla., Fla.App. 5 Dist., October 24, 2008 709 So.2d 175 District Court of Appeal of Florida, Fifth District. FLORIDA ROCK PROPERTIES, et al., Appellants, v. Timothy KEYSER, Appellee. No. 96-3307. April 3, 1998. Synopsis Following county's rezoning of mining company's land from agriculture to mining, without requiring 25 percent set -aside to protect native vegetation, owner of land and business in the county sought declaratory judgment challenging rezoning. The Circuit Court, Putnam County, Stephen L. Boyles, J., quashed decision, and mining company appealed. The District Court of Appeal, Thompson, J., held that plaintiff lacked standing. Reversed and remanded. W. Sharp, J., filed dissenting opinion. West Headnotes (2) nl Zoning and Planning Right of Review; Standing Zoning and Planning 4...Private persons Property ownership alone is insufficient to establish standing to enforce county comprehensive development plan. West's F.S.A. § 163.3215(1, 2). 3 Cases that cite this headnote WESTLAW [21 Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk Zoning and Planning Modification or amendment Owner of land and business in county who had interest in environment lacked standing to challenge county's rezoning of mining company's land from agriculture to mining, without requiring 25 percent set -aside to protect native vegetation, absent showing that rezoning would have specific impact on him or his property. West's F.S.A. § 163.3215(1, 2). 7 Cases that cite this headnote Attorneys and Law Firms *176 John A. DeVault, III, and Jane A. Lester, of Bedell, Dittmar, DeVault, Pillans & Coxe, P.A., Jacksonville, and Edward E. Hedstrom, P.A., Palatka, for Appellants. Michael W. Woodward, of Keyser & Woodward, P.A., Interlachen, for Appellee. Opinion THOMPSON, Judge. Florida Rock Properties, Inc, and Florida Rock Industries, Inc. (collectively "Florida Rock") appeal from a declaratory final judgment which quashed the decision of the Putnam County Commission ("the Board") to rezone a 509-acre parcel of Florida Rock's land from agriculture to mining. Although several issues are raised, one is dispositive: Timothy Keyser, who filed the lawsuit seeking the declaratory judgment, is not an aggrieved party pursuant to section 163.3215, Florida Statutes. Therefore, he had no standing to appeal the decision of the Board to the circuit court. Florida Rock owns approximately 6,700 acres of land in Putnam County and mines approximately 1,800 acres. The remaining land is zoned and currently used for agriculture. Florida Rock sought to rezone an additional two parcels, 509 acres, from agriculture to mining. The Board approved the rezoning without requiring a 25 percent set -aside to preserve native vegetation as mandated by the county's comprehensive plan.' Florida Rock Properties v. Keyser, 709 So.2d 175 (1998) 23 Fla. L. Weekly D874 In his verified complaint for declaratory relief to quash the Board's decision, Keyser alleged that he was an "aggrieved or adversely affected person" as defined in section 163.3215, Florida Statutes. He alleged the following facts to establish his standing: (1) he owns land in Putnam County approximately 10 miles from Florida Rock's 509-acre site; (2) he operates a law business in Putnam County and occasionally represents conservationists; (3) he has maintained a life-long interest in wildlife and environmental protection matters as part of his civic duties; (4) the failure to require the 25 percent set -aside to protect native vegetation would affect his quality of life. The court found that Keyser had standing because his "exceptional personal and professional interests, efforts, and activities in conservation, wildlife and environmental protection matters were proven" and would be adversely affected by the Board's decision "to a greater degree than ... other members of the community." Section 163.3215, Florida Statutes, (1995) reads: 163.3215 Standing to enforce local comprehensive plans through development orders.- (1) Any aggrieved or adversely affected party may maintain an action for injunctive or other relief against any local government to prevent such local government from taking any action on a development order, as defined in s. 163.3164, which materially alters the use or density or intensity *177 of use on a particular piece of property that is not consistent with the comprehensive plan adopted under this part. (2) "Aggrieved or adversely affected party" means any person or local government which will suffer an adverse effect to an interest protected or furthered by the local government comprehensive plan, including interests related to health and safety, police and fire protection service systems, densities or intensities of development, transportation facilities, health care facilities, equipment or services, or environmental or natural resources. The alleged adverse interest may be shared in common with other members of the community at large, but shall exceed in degree the general interest in community good shared by all persons. (Emphasis added.) Therefore, Keyser's standing to challenge the Board's zoning decision depends on (1) whether the personal and professional interests he alleged are "protected or furthered by" Putnam County's comprehensive plan; if so, (2) whether those interests are greater than the general interest in community well being; and (3) whether the WESTLAW Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk interests are or will be adversely affected by the challenged zoning decision. 111 j21 First, property ownership alone is insufficient to show a person is one "who will suffer an adverse effect to an interest protected or furthered by" the plan. See Parker v. Leon County, 627 So.2d 476 (F1a.1993). Thus, the fact that Keyser owns land in Putnam is insufficient to establish standing. He does not live adjacent to Florida Rock's property. He does not claim that he will be adversely impacted by noise, increased traffic or noxious fumes from Florida Rock's property. He merely alleges ownership of land. There is no showing that Keyser will suffer an adverse effect. See White v. Metropolitan Dade County, 563 So.2d 117 (Fla. 3d DCA 1990) (holding that citizens of Dade County had no standing to challenge the construction of tennis courts on land which had a deed restriction to keep the land for a park in perpetuity or the land would revert to the owner). Had Keyser lived adjacent to the property, and had he been able to show a specific impact the zoning change would have upon him or his property, he would have standing. Southwest Ranches Homeowners Ass 'n, Inc. v. Broward County, 502 So.2d 931 (Fla. 4th DCA), rev. denied, 511 So.2d 999 (F1a.1987). Second, the fact that Keyser owns a business in the county does not confer standing upon him. He generally argues that the inability to counsel clients effectively in land use matters will be created because the Board issued the order. We find nothing unique about Keyser's inability to counsel his clients that would make him an aggrieved party. Each time a legislative body changes a statute or ordinance, a lawyer is in doubt as to the advice to give his client. That is the nature of a lawyer's practice. Moreover, professional interests are not among the interests the comprehensive plan protects. See § 163.3215(2), Fla. Stat. (1995). Keyser's strongest but most problematic argument is that the zoning decision of the Board would adversely affect his quality of life by its negative impact upon wildlife populations and habitats in Putnam County. In Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972), the United States Supreme Court held that judicial review must "be sought in the hands of those who have a direct stake in the outcome." Section 163.3215 does not specify or explain the degree to which the protected interest must be affected, but, case law is helpful. In Southwest Ranches Homeowners Ass 'n, Inc., supra, the court held that property owners adjacent to a proposed development would have standing and a group of concerned citizens with a general interest would not. 502 So.2d at 934. Keyser never demonstrated any specific c Allow oh. Florida Rock Properties v. Keyser, 709 So.2d 175 (1998) 23 Fla. L. Weekly D874 injury, only that the county would not be as bucolic as it once was. Keyser is a citizen with an interest in the environment and nothing more. Accordingly, we reverse the decision of the circuit court and remand for disposition consistent with this opinion. REVERSED and REMANDED. DAUKSCH, J., concurs. W. SHARP, J., dissents with opinion. *178 W. SHARP, Judge, dissenting. I respectfully disagree with the majority opinion's conclusion that Keyser lacks standing to challenge the rezoning decision rendered by Putnam County. Based on the trial court's findings and this record, I conclude that Keyser established sufficient facts to give him standing pursuant to section 163.3215, Florida Statutes. The trial court ruled Keyser had standing because his "exceptional personal and professional interests, efforts and activities in conservation, wildlife and environmental protection were proven," and because he would be adversely affected by this decision to a greater degree than other members of the community. Thus I would affirm the trial court's determination that Florida Rock's proposed mining operation is "new development," on which a 25% reservation of land to protect native vegetation is required pursuant to the Putnam County Comprehensive Planning and Land Development Act. Section 163.3215 was enacted in 1985 as part of the Growth Management Act. This section addresses standing as follows: 163.3215. Standing to enforce local comprehensive plans through development orders. (1) Any aggrieved or adversely affected party may maintain an action for injunctive or other relief against any local government to prevent such local government from taking any action on a development order, as defined in s. 163.3164, which materially alters the use or density or intensity of use on a particular piece of property that is not consistent with the comprehensive plan adopted under this part. (2) "Aggrieved or adversely affected party" means any person or local government which will suffer an WESTLAW Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk adverse effect to an interest protected or furthered by the local government comprehensive plan, including interests related to health and safety, police and fire protection service systems, densities or intensities of development, transportation facilities, health care facilities, equipment or services, or environmental or natural resources. The alleged adverse interest may be shared in common with other members of the community at large, but shall exceed in degree the general interest in community good shared by all persons. In this case, Florida Rock applied to the Putnam County Planning Commission to rezone a 509-acre parcel of its land from agriculture to mining. Florida Rock owns 6,700 acres in Putnam county, of which the 509 acres is a part. Florida Rock expects to mine the 509 acres at a rate of 10 to 12 acres a year. Under the Comprehensive Plan, the rezoning arguably required a 25% set aside to preserve native vegetation! The applicability of the set -aside provision to Florida Rock's proposal to mine the 509-acre parcel and whether it constituted "new development" were disputed issues in this case. Although Keyser owns real estate in Putnam County located five to ten miles away from the 509 acres, he relied on his extensive personal and professional interest and activities in environmental and conservation issues to give him standing in this law suit. One of the reasons Keyser moved to Putnam County was because of its extensive wildlife habitat and population. For many years Keyser has been active in a conservation organization and has served as its president or chairman of the board and has served on other board positions in both national and state conservation organizations. Keyser is an attorney and does environmental and land use law. He has represented at no fee or low fee many different neighborhood and conservation organizations on the national, state and regional level on a variety of issues from protecting the Everglades to restoring Lake Apopka to protecting neighborhoods from inappropriate zoning. Keyser attended at least four hearings on this rezoning matter. He attended the first hearing before the Planning Commission, listened to presentations of both sides and then spoke as an interested citizen at that Commission meeting. Keyser was quite surprised by the action of the Planning Commission *179 (in favor of rezoning without the set aside) and appealed that decision to the Board of County Commissioners. Keyser was required to fill out paper work, and pay a filing fee. He also argued his appeal before the Board of County Commissioners. The Board did not make a decision at that time and Florida Rock Properties v. Keyser, 709 So.2d 175 (1998) 23 Fla. L. Weekly D874 instead directed its attorney to review the statute and the comprehensive plan provisions and to make a recommendation to the Board. The county attorney made a recommendation that favored Keyser's appeal. At first the Board seemed to favor that recommendation but ultimately voted against it and in favor of the rezoning, without the set aside. Keyser then proceeded to petition the Board of County Commissioners for remand or denial of the rezoning. This evidence appears sufficient to me to support the trial court's determination that Keyser was an aggrieved or adversely affected party under section 163.3215. His interest in the environment and protection of wildlife and its habitat greatly exceeds that of the members of the public in general. To deny him standing in this case because he does not own real estate adjoining the land being rezoned which may be adversely affected, pocketbook wise, appears to me to be so restrictive that we will find ourselves back where we were in the Save Sand Key' case where intangible values stand for naught; Footnotes 2 Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk only property interests count. As demonstrated by this case, because one party owns such a vast tract of land, in fact there may be no adjoining landowners sufficiently "affected" to challenge the rezoning of part of it, under the restrictive view of standing taken by the majority opinion. Indeed, unless something more than ownership of adjacent land can give a person standing to challenge a rezoning, I will have to agree with the second district in Save Sand Key that interests in the environment, in wildlife and its habitat "may be enjoyed by all, yet none may protect it." 281 So.2d at 574. All Citations 709 So.2d 175, 23 Fla. L. Weekly D874 Policy E.1.3.6 of the county's comprehensive plan requires the 25 percent set -aside on all new development on sites of 50 acres or more. The policy reads: The County shall protect environmentally sensitive areas and native vegetative communities as follows: A. The County shall require new development, as defined in Section 380.04, FS, on sites of 50 acres or more to preserve a minimum of 25 percent of the existing native vegetation on the site.... Policy E 1.3.6A of the Comprehensive Plan requires a set aside on all new development on sites of 50 acres or more. Save Sand Key, Inc. v. United States Steel Corp., 281 So.2d 572 (Fla. 2d DCA 1973), reversed, 303 So.2d 9 (FIa.1974). End of Document © 2018 Thomson Reuters. No claim to original U.S. Government Works. WESTLAW Florida Rock Properties v. Keyser, 709 So.2d 175 (1998) 23 Fla. L. Weekly D874 Pill KeyCite Yellow Flag - Negative Treatment Distinguished by Save Homosassa River Alliance, Inc. v. Citnis County, Fla., F1a.App. 5 Dist., October 24, 2008 709 So.2d 175 District Court of Appeal of Florida, Fifth District. FLORIDA ROCK PROPERTIES, et al., Appellants, v. Timothy KEYSER, Appellee. No. 96-3307. April 3, 1998. Synopsis Following county's rezoning of mining company's land from agriculture to mining, without requiring 25 percent set -aside to protect native vegetation, owner of land and business in the county sought declaratory judgment challenging rezoning. The Circuit Court, Putnam County, Stephen L. Boyles, J., quashed decision, and mining company appealed. The District Court of Appeal, Thompson, J., held that plaintiff lacked standing. Reversed and remanded. W. Sharp, J., filed dissenting opinion. West Headnotes (2) [tl Zoning and Planning .-Right of Review; Standing Zoning and Planning it -Private persons Property ownership alone is insufficient to establish standing to enforce county comprehensive development plan. West's F.S.A. 163.3215(1, 2). 3 Cases that cite this headnote WESTLAW t21 Submitted into the public record for item(s) PZ.1 on 12/13/2018 , City Clerk Zoning and Planning .Modification or amendment Owner of land and business in county who had interest in environment lacked standing to challenge county's rezoning of mining company's land from agriculture to mining, without requiring 25 percent set -aside to protect native vegetation, absent showing that rezoning would have specific impact on him or his property. West's F.S.A. § 163.3215(1, 2). 7 Cases that cite this headnote Attorneys and Law Firms *176 John A. DeVault, III, and Jane A. Lester, of Bedell, Dittmar, DeVault, Pillans & Coxe, P.A., Jacksonville, and Edward E. Hedstrom, P.A., Palatka, for Appellants. Michael W. Woodward, of Keyser & Woodward, P.A., Interlachen, for Appellee. Opinion THOMPSON, Judge. Florida Rock Properties, Inc, and Florida Rock Industries, Inc. (collectively "Florida Rock") appeal from a declaratory final judgment which quashed the decision of the Putnam County Commission ("the Board") to rezone a 509-acre parcel of Florida Rock's land from agriculture to mining. Although several issues are raised, one is dispositive: Timothy Keyser, who filed the lawsuit seeking the declaratory judgment, is not an aggrieved party pursuant to section 163.3215, Florida Statutes. Therefore, he had no standing to appeal the decision of the Board to the circuit court. Florida Rock owns approximately 6,700 acres of land in Putnam County and mines approximately 1,800 acres. The remaining land is zoned and currently used for agriculture. Florida Rock sought to rezone an additional two parcels, 509 acres, from agriculture to mining. The Board approved the rezoning without requiring a 25 percent set -aside to preserve native vegetation as mandated by the county's comprehensive plan.' Florida Rock Properties v. Keyser, 709 So.2d 175 (1998) 23 Fla. L. Weekly D874 In his verified complaint for declaratory relief to quash the Board's decision, Keyser alleged that he was an "aggrieved or adversely affected person" as defined in section 163.3215, Florida Statutes. He alleged the following facts to establish his standing: (1) he owns land in Putnam County approximately 10 miles from Florida Rock's 509-acre site; (2) he operates a law business in Putnam County and occasionally represents conservationists; (3) he has maintained a life-long interest in wildlife and environmental protection matters as part of his civic duties; (4) the failure to require the 25 percent set -aside to protect native vegetation would affect his quality of life. The court found that Keyser had standing because his "exceptional personal and professional interests, efforts, and activities in conservation, wildlife and environmental protection matters were proven" and would be adversely affected by the Board's decision "to a greater degree than ... other members of the community." Section 163.3215, Florida Statutes, (1995) reads: 163.3215 Standing to enforce local comprehensive plans through development orders.- (1) Any aggrieved or adversely affected party may maintain an action for injunctive or other relief against any local government to prevent such local government from taking any action on a development order, as defined in s. 163.3164, which materially alters the use or density or intensity *177 of use on a particular piece of property that is not consistent with the comprehensive plan adopted under this part. (2) "Aggrieved or adversely affected party" means any person or local government which will suffer an adverse effect to an interest protected or furthered by the local government comprehensive plan, including interests related to health and safety, police and fire protection service systems, densities or intensities of development, transportation facilities, health care facilities, equipment or services, or environmental or natural resources. The alleged adverse interest may be shared in common with other members of the community at large, but shall exceed in degree the general interest in community good shared by all persons. (Emphasis added.) Therefore, Keyser's standing to challenge the Board's zoning decision depends on (1) whether the personal and professional interests he alleged are "protected or furthered by" Putnam County's comprehensive plan; if so, (2) whether those interests are greater than the general interest in community well being; and (3) whether the WESTLAW Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk interests are or will be adversely affected by the challenged zoning decision. 111 121 First, property ownership alone is insufficient to show a person is one "who will suffer an adverse effect to an interest protected or furthered by" the plan. See Parker v. Leon County, 627 So.2d 476 (F1a.1993). Thus, the fact that Keyser owns land in Putnam is insufficient to establish standing. He does not live adjacent to Florida Rock's property. He does not claim that he will be adversely impacted by noise, increased traffic or noxious fumes from Florida Rock's property. He merely alleges ownership of land. There is no showing that Keyser will suffer an adverse effect. See White v. Metropolitan Dade County, 563 So.2d 117 (Fla. 3d DCA 1990) (holding that citizens of Dade County had no standing to challenge the construction of tennis courts on land which had a deed restriction to keep the land for a park in perpetuity or the land would revert to the owner). Had Keyser lived adjacent to the property, and had he been able to show a specific impact the zoning change would have upon him or his property, he would have standing. Southwest Ranches Homeowners Ass 'n, Inc. v. Broward County, 502 So.2d 931 (Fla. 4th DCA), rev. denied, 511 So.2d 999 (F1a.1987). Second, the fact that Keyser owns a business in the county does not confer standing upon him. He generally argues that the inability to counsel clients effectively in land use matters will be created because the Board issued the order. We find nothing unique about Keyser's inability to counsel his clients that would make him an aggrieved party. Each time a legislative body changes a statute or ordinance, a lawyer is in doubt as to the advice to give his client. That is the nature of a lawyer's practice. Moreover, professional interests are not among the interests the comprehensive plan protects. See § 163.3215(2), Fla. Stat. (1995). Keyser's strongest but most problematic argument is that the zoning decision of the Board would adversely affect his quality of life by its negative impact upon wildlife populations and habitats in Putnam County. In Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972), the United States Supreme Court held that judicial review must "be sought in the hands of those who have a direct stake in the outcome." Section 163.3215 does not specify or explain the degree to which the protected interest must be affected, but, case law is helpful. In Southwest Ranches Homeowners Ass Inc., supra, the court held that property owners adjacent to a proposed development would have standing and a group of concerned citizens with a general interest would not. 502 So.2d at 934. Keyser never demonstrated any specific Florida Rock Properties v. Keyser, 709 So.2d 175 (1998) 23 Fla. L. Weekly D874 injury, only that the county would not be as bucolic as it once was. Keyser is a citizen with an interest in the environment and nothing more. Accordingly, we reverse the decision of the circuit court and remand for disposition consistent with this opinion. REVERSED and REMANDED. DAUKSCH, J., concurs. W. SHARP, J., dissents with opinion. *178 W. SHARP, Judge, dissenting. I respectfully disagree with the majority opinion's conclusion that Keyser lacks standing to challenge the rezoning decision rendered by Putnam County. Based on the trial court's findings and this record, I conclude that Keyser established sufficient facts to give him standing pursuant to section 163.3215, Florida Statutes. The trial court ruled Keyser had standing because his "exceptional personal and professional interests, efforts and activities in conservation, wildlife and environmental protection were proven," and because he would be adversely affected by this decision to a greater degree than other members of the community. Thus I would affirm the trial court's determination that Florida Rock's proposed mining operation is "new development," on which a 25% reservation of land to protect native vegetation is required pursuant to the Putnam County Comprehensive Planning and Land Development Act. Section 163.3215 was enacted in 1985 as part of the Growth Management Act. This section addresses standing as follows: 163.3215. Standing to enforce local comprehensive plans through development orders. (1) Any aggrieved or adversely affected party may maintain an action for injunctive or other relief against any local government to prevent such local government from taking any action on a development order, as defined in s. 163.3164, which materially alters the use or density or intensity of use on a particular piece of property that is not consistent with the comprehensive plan adopted under this part. (2) "Aggrieved or adversely affected party" means any person or local government which will suffer an WESTLAW Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk adverse effect to an interest protected or furthered by the local government comprehensive plan, including interests related to health and safety, police and fire protection service systems, densities or intensities of development, transportation facilities, health care facilities, equipment or services, or environmental or natural resources. The alleged adverse interest may be shared in common with other members of the community at large, but shall exceed in degree the general interest in community good shared by all persons. In this case, Florida Rock applied to the Putnam County Planning Commission to rezone a 509-acre parcel of its land from agriculture to mining. Florida Rock owns 6,700 acres in Putnam county, of which the 509 acres is a part. Florida Rock expects to mine the 509 acres at a rate of 10 to 12 acres a year. Under the Comprehensive Plan, the rezoning arguably required a 25% set aside to preserve native vegetation.' The applicability of the set -aside provision to Florida Rock's proposal to mine the 509-acre parcel and whether it constituted "new development" were disputed issues in this case. Although Keyser owns real estate in Putnam County located five to ten miles away from the 509 acres, he relied on his extensive personal and professional interest and activities in environmental and conservation issues to give him standing in this law suit. One of the reasons Keyser moved to Putnam County was because of its extensive wildlife habitat and population. For many years Keyser has been active in a conservation organization and has served as its president or chairman of the board and has served on other board positions in both national and state conservation organizations. Keyser is an attorney and does environmental and land use law. He has represented at no fee or low fee many different neighborhood and conservation organizations on the national, state and regional level on a variety of issues from protecting the Everglades to restoring Lake Apopka to protecting neighborhoods from inappropriate zoning. Keyser attended at least four hearings on this rezoning matter. He attended the first hearing before the Planning Commission, listened to presentations of both sides and then spoke as an interested citizen at that Commission meeting. Keyser was quite surprised by the action of the Planning Commission *179 (in favor of rezoning without the set aside) and appealed that decision to the Board of County Commissioners. Keyser was required to fill out paper work, and pay a filing fee. He also argued his appeal before the Board of County Commissioners. The Board did not make a decision at that time and Florida Rock Properties v. Keyser, 709 So.2d 175 (1998) 23 Fla. L. Weekly D874 instead directed its attorney to review the statute and the comprehensive plan provisions and to make a recommendation to the Board. The county attorney made a recommendation that favored Keyser's appeal. At first the Board seemed to favor that recommendation but ultimately voted against it and in favor of the rezoning, without the set aside. Keyser then proceeded to petition the Board of County Commissioners for remand or denial of the rezoning. This evidence appears sufficient to me to support the trial court's determination that Keyser was an aggrieved or adversely affected party under section 163.3215. His interest in the environment and protection of wildlife and its habitat greatly exceeds that of the members of the public in general. To deny him standing in this case because he does not own real estate adjoining the land being rezoned which may be adversely affected, pocketbook wise, appears to me to be so restrictive that we will find ourselves back where we were in the Save Sand Key2 case where intangible values stand for naught; Footnotes 1 1 Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk only property interests count. As demonstrated by this case, because one party owns such a vast tract of land, in fact there may be no adjoining landowners sufficiently "affected" to challenge the rezoning of part of it, under the restrictive view of standing taken by the majority opinion. Indeed, unless something more than ownership of adjacent land can give a person standing to challenge a rezoning, I will have to agree with the second district in Save Sand Key that interests in the environment, in wildlife and its habitat "may be enjoyed by all, yet none may protect it." 281 So.2d at 574. All Citations 709 So.2d 175, 23 Fla. L. Weekly D874 Policy E.1.3.6 of the county's comprehensive plan requires the 25 percent set -aside on all new development on sites of 50 acres or more. The policy reads: The County shall protect environmentally sensitive areas and native vegetative communities as follows: A. The County shall require new development, as defined in Section 380.04, FS, on sites of 50 acres or more to preserve a minimum of 25 percent of the existing native vegetation on the site.... Policy E 1.3.6A of the Comprehensive Plan requires a set aside on all new development on sites of 50 acres or more. 2 Save Sand Key, Inc. v. United States Steel Corp., 281 So.2d 572 (Fla. 2d DCA 1973), reversed, 303 So.2d 9 (FIa.1974). End of Document © 2018 Thomson Reuters. No claim to original U.S. Government Works. WESTLAW Florida Rock Properties v. Keyser, 709 So.2d 175 (1998) 23 Fla. L. Weekly D874 KeyCite Yellow Flag - Negative Treatment Distinguished by Save Homosassa River Alliance, Inc. v. Citrus County, Fla., Fla.App. 5 Dist., October 24, 2008 709 So.2d 175 District Court of Appeal of Florida, Fifth District. FLORIDA ROCK PROPERTIES, et al., Appellants, v. Timothy KEYSER, Appellee. No. 96-3307. April 3, 1998. Synopsis Following county's rezoning of mining company's land from agriculture to mining, without requiring 25 percent set -aside to protect native vegetation, owner of land and business in the county sought declaratory judgment challenging rezoning. The Circuit Court, Putnam County, Stephen L. Boyles, J., quashed decision, and mining company appealed. The District Court of Appeal, Thompson, J., held that plaintiff lacked standing. Reversed and remanded. W. Sharp, J., filed dissenting opinion. West Headnotes (2) 111 Zoning and Planning 4-Right of Review; Standing Zoning and Planning 4.Private persons Property ownership alone is insufficient to establish standing to enforce county comprehensive development plan. West's F.S.A. § 163.3215(1, 2). 3 Cases that cite this headnote WESTLAW IZI Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk Zoning and Planning -Modification or amendment Owner of land and business in county who had interest in environment lacked standing to challenge county's rezoning of mining company's land from agriculture to mining, without requiring 25 percent set -aside to protect native vegetation, absent showing that rezoning would have specific impact on him or his property. West's F.S.A. § 163.3215(1, 2). 7 Cases that cite this headnote Attorneys and Law Firms *176 John A. DeVault, III, and Jane A. Lester, of Bedell, Dittmar, DeVault, Pillans & Coxe, P.A., Jacksonville, and Edward E. Hedstrom, P.A., Palatka, for Appellants. Michael W. Woodward, of Keyser & Woodward, P.A., Interlachen, for Appellee. Opinion THOMPSON, Judge. Florida Rock Properties, Inc, and Florida Rock Industries, Inc. (collectively "Florida Rock") appeal from a declaratory final judgment which quashed the decision of the Putnam County Commission ("the Board") to rezone a 509-acre parcel of Florida Rock's land from agriculture to mining. Although several issues are raised, one is dispositive: Timothy Keyser, who filed the lawsuit seeking the declaratory judgment, is not an aggrieved party pursuant to section 163.3215, Florida Statutes. Therefore, he had no standing to appeal the decision of the Board to the circuit court. Florida Rock owns approximately 6,700 acres of land in Putnam County and mines approximately 1,800 acres. The remaining land is zoned and currently used for agriculture. Florida Rock sought to rezone an additional two parcels, 509 acres, from agriculture to mining. The Board approved the rezoning without requiring a 25 percent set -aside to preserve native vegetation as mandated by the county's comprehensive plan.' e Florida Rock Properties v. Keyser, 709 So.2d 175 (1998) 23 Fla. L. Weekly D874 In his verified complaint for declaratory relief to quash the Board's decision, Keyser alleged that he was an "aggrieved or adversely affected person" as defined in section 163.3215, Florida Statutes. He alleged the following facts to establish his standing: (1) he owns land in Putnam County approximately 10 miles from Florida Rock's 509-acre site; (2) he operates a law business in Putnam County and occasionally represents conservationists; (3) he has maintained a life-long interest in wildlife and environmental protection matters as part of his civic duties; (4) the failure to require the 25 percent set -aside to protect native vegetation would affect his quality of life. The court found that Keyser had standing because his "exceptional personal and professional interests, efforts, and activities in conservation, wildlife and environmental protection matters were proven" and would be adversely affected by the Board's decision "to a greater degree than ... other members of the community." Section 163.3215, Florida Statutes, (1995) reads: 163.3215 Standing to enforce local comprehensive plans through development orders.- (1) Any aggrieved or adversely affected party may maintain an action for injunctive or other relief against any local government to prevent such local government from taking any action on a development order, as defined in s. 163.3164, which materially alters the use or density or intensity *177 of use on a particular piece of property that is not consistent with the comprehensive plan adopted under this part. (2) "Aggrieved or adversely affected party" means any person or local government which will suffer an adverse effect to an interest protected or furthered by the local government comprehensive plan, including interests related to health and safety, police and fire protection service systems, densities or intensities of development, transportation facilities, health care facilities, equipment or services, or environmental or natural resources. The alleged adverse interest may be shared in common with other members of the community at large, but shall exceed in degree the general interest in community good shared by all persons. (Emphasis added.) Therefore, Keyser's standing to challenge the Board's zoning decision depends on (1) whether the personal and professional interests he alleged are "protected or furthered by" Putnam County's comprehensive plan; if so, (2) whether those interests are greater than the general interest in community well being; and (3) whether the Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk interests are or will be adversely affected by the challenged zoning decision. J1J j2i First, property ownership alone is insufficient to show a person is one "who will suffer an adverse effect to an interest protected or furthered by" the plan. See Parker v. Leon County, 627 So.2d 476 (Fla.1993). Thus, the fact that Keyser owns land in Putnam is insufficient to establish standing. He does not live adjacent to Florida Rock's property. He does not claim that he will be adversely impacted by noise, increased traffic or noxious fumes from Florida Rock's property. He merely alleges ownership of land. There is no showing that Keyser will suffer an adverse effect. See White v. Metropolitan Dade County, 563 So.2d 117 (Fla. 3d DCA 1990) (holding that citizens of Dade County had no standing to challenge the construction of tennis courts on land which had a deed restriction to keep the land for a park in perpetuity or the land would revert to the owner). Had Keyser lived adjacent to the property, and had he been able to show a specific impact the zoning change would have upon him or his property, he would have standing. Southwest Ranches Homeowners Ass 'n, Inc. v. Broward County, 502 So.2d 931 (Fla. 4th DCA), rev. denied, 511 So.2d 999 (F1a.1987). Second, the fact that Keyser owns a business in the county does not confer standing upon him. He generally argues that the inability to counsel clients effectively in land use matters will be created because the Board issued the order. We find nothing unique about Keyser's inability to counsel his clients that would make him an aggrieved party. Each time a legislative body changes a statute or ordinance, a lawyer is in doubt as to the advice to give his client. That is the nature of a lawyer's practice. Moreover, professional interests are not among the interests the comprehensive plan protects. See § 163.3215(2), Fla. Stat. (1995). Keyser's strongest but most problematic argument is that the zoning decision of the Board would adversely affect his quality of life by its negative impact upon wildlife populations and habitats in Putnam County. In Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972), the United States Supreme Court held that judicial review must "be sought in the hands of those who have a direct stake in the outcome." Section 163.3215 does not specify or explain the degree to which the protected interest must be affected, but, case law is helpful. In Southwest Ranches Homeowners Ass Inc., supra, the court held that property owners adjacent to a proposed development would have standing and a group of concerned citizens with a general interest would not. 502 So.2d at 934. Keyser never demonstrated any specific WEST LAW )r Florida Rock Properties v. Keyser, 709 So.2d 175 (1998) 23 Fla. L. Weekly D874 injury, only that the county would not be as bucolic as it once was. Keyser is a citizen with an interest in the environment and nothing more. Accordingly, we reverse the decision of the circuit court and remand for disposition consistent with this opinion. REVERSED and REMANDED. DAUKSCH, J., concurs. W. SHARP, J., dissents with opinion. *178 W. SHARP, Judge, dissenting. I respectfully disagree with the majority opinion's conclusion that Keyser lacks standing to challenge the rezoning decision rendered by Putnam County. Based on the trial court's findings and this record, I conclude that Keyser established sufficient facts to give him standing pursuant to section 163.3215, Florida Statutes. The trial court ruled Keyser had standing because his "exceptional personal and professional interests, efforts and activities in conservation, wildlife and environmental protection were proven," and because he would be adversely affected by this decision to a greater degree than other members of the community. Thus I would affirm the trial court's determination that Florida Rock's proposed mining operation is "new development," on which a 25% reservation of land to protect native vegetation is required pursuant to the Putnam County Comprehensive Planning and Land Development Act. Section 163.3215 was enacted in 1985 as part of the Growth Management Act. This section addresses standing as follows: 163.3215. Standing to enforce local comprehensive plans through development orders. (1) Any aggrieved or adversely affected party may maintain an action for injunctive or other relief against any local government to prevent such local government from taking any action on a development order, as defined in s. 163.3164, which materially alters the use or density or intensity of use on a particular piece of property that is not consistent with the comprehensive plan adopted under this part. (2) "Aggrieved or adversely affected party" means any person or local government which will suffer an Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk adverse effect to an interest protected or furthered by the local government comprehensive plan, including interests related to health and safety, police and fire protection service systems, densities or intensities of development, transportation facilities, health care facilities, equipment or services, or environmental or natural resources. The alleged adverse interest may be shared in common with other members of the community at large, but shall exceed in degree the general interest in community good shared by all persons. In this case, Florida Rock applied to the Putnam County Planning Commission to rezone a 509-acre parcel of its land from agriculture to mining. Florida Rock owns 6,700 acres in Putnam county, of which the 509 acres is a part. Florida Rock expects to mine the 509 acres at a rate of 10 to 12 acres a year. Under the Comprehensive Plan, the rezoning arguably required a 25% set aside to preserve native vegetation) The applicability of the set -aside provision to Florida Rock's proposal to mine the 509-acre parcel and whether it constituted "new development" were disputed issues in this case. Although Keyser owns real estate in Putnam County located five to ten miles away from the 509 acres, he relied on his extensive personal and professional interest and activities in environmental and conservation issues to give him standing in this law suit. One of the reasons Keyser moved to Putnam County was because of its extensive wildlife habitat and population. For many years Keyser has been active in a conservation organization and has served as its president or chairman of the board and has served on other board positions in both national and state conservation organizations. Keyser is an attorney and does environmental and land use law. He has represented at no fee or low fee many different neighborhood and conservation organizations on the national, state and regional level on a variety of issues from protecting the Everglades to restoring Lake Apopka to protecting neighborhoods from inappropriate zoning. Keyser attended at least four hearings on this rezoning matter. He attended the first hearing before the Planning Commission, listened to presentations of both sides and then spoke as an interested citizen at that Commission meeting. Keyser was quite surprised by the action of the Planning Commission *179 (in favor of rezoning without the set aside) and appealed that decision to the Board of County Commissioners. Keyser was required to fill out paper work, and pay a filing fee. He also argued his appeal before the Board of County Commissioners. The Board did not make a decision at that time and Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. Management of the public lands under these various laws became chaotic. The Public Land Law Review Commission, established by Congress in 1964 to study the matter, 78 Stat. 982, determined in 1970 that "virtually all" of the country's public domain, see Public Land Law Review Commission, One Third of the Nation's Land 52 (1970)-about one-third of the land within the United States, see id., at 19-had been withdrawn or classified for retention; that it was difficult to determine "the extent of existing Executive withdrawals and the degree to which withdrawals overlap each other," id., at 52; and that there were inadequate records to show the purposes *877 of withdrawals and the permissible public uses. Ibid. Accordingly, it recommended that "Congress should provide for a careful review of (1) all Executive withdrawals and reservations, and (2) BLM retention and disposal classifications under the Classification and Multiple Use Act of 1964." Ibid. **3183 In 1976, Congress passed the FLPMA, which repealed many of the miscellaneous laws governing disposal of public land, 43 U.S.C. § 1701 et seq. (1982 ed.), and established a policy in favor of retaining public lands for multiple use management. It directed the Secretary to "prepare and maintain on a continuing basis an inventory of all public lands and their resource and other values," § 1711(a), required land use planning for public lands, and established criteria to be used for that purpose, § 1712. It provided that existing classifications of public lands were subject to review in the land use planning process, and that the Secretary could "modify or terminate any such classification consistent with such land use plans." § 1712(d). It also authorized the Secretary to "make, modify, extend or revoke" withdrawals. § 1714(a). Finally it directed the Secretary, within 15 years, to review withdrawals in existence in 1976 in 11 Western States, § 1714(1 )(1), and to "determine whether, and for how long, the continuation of the existing withdrawal of the lands would be, in his judgment, consistent with the statutory objectives of the programs for which the lands were dedicated and of the other relevant programs," § 1714(1 )(2). The activities undertaken by the BLM to comply with these various provisions constitute what respondent's amended complaint styles the BLM's "land withdrawal review program," which is the subject of the current litigation. Pursuant to the directives of the FLPMA, petitioners engage in a number of different types of administrative action with respect to the various tracts of public land within the United States. First, the BLM conducts the review and recommends the determinations required by § 1714(1) with *878 respect to withdrawals in 11 Western States. The law requires the Secretary to "report his Submitted into the public record for item(s) P2.1 . on 12/13/2018 , City Clerk 20,962 recommendations to the President, together with statements of concurrence or nonconcurrence submitted by the heads of the departments or agencies which administer the lands"; the President must in turn submit this report to the Congress, together with his recommendation "for action by the Secretary, or for legislation." § 1714(1 )(2). The Secretary has submitted a number of reports to the President in accordance with this provision. Second, the Secretary revokes some withdrawals under § 204(a) of the Act, which the Office of the Solicitor has interpreted to give the Secretary the power to process proposals for revocation of withdrawals made during the "ordinary course of business." U.S. Dept. of the Interior, Memorandum from the Office of the Solicitor, Oct. 30, 1980. These revocations are initiated in one of three manners: An agency or department holding a portion of withdrawn land that it no longer needs may file a notice of intention to relinquish the lands with the BLM. Any member of the public may file a petition requesting revocation. And in the case of lands held by the BLM, the BLM itself may initiate the revocation proposal. App. 56-57. Withdrawal revocations may be made for several reasons. Some are effected in order to permit sale of the land; some for record -clearing purposes, where the withdrawal designation has been superseded by congressional action or overlaps with another withdrawal designation; some in order to restore the land to multiple use management pursuant to § 102(a)(7) of the FLPMA, 43 U.S.C. § 1701(a)(7) (1982 ed.). App. 142-145. Third, the Secretary engages in the ongoing process of classifying public lands, either for multiple use management, pt. 2420, for disposal, pt. 2430, or for other uses. Classification decisions may be initiated by petition, pt. 2450, or by the BLM itself, pt. 2460. Regulations promulgated *879 by the Secretary prescribe the procedures to be followed in the case of each type of classification determination. II In its complaint, respondent averred generally that the reclassification of some withdrawn **3184 lands and the return of others to the public domain would open the lands up to mining activities, thereby destroying their natural beauty. Respondent alleged that petitioners, in the course of administering the Nation's public lands, had violated the FLPMA by failing to "develop, maintain, WESTLAW Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. 20,962 and, when appropriate, revise land use plans which provide by tracts or areas for the use of the public lands," 43 U.S.C. § 1712(a) (1982 ed.); failing to submit recommendations as to withdrawals in the 11 Western States to the President, § 1714(1 ); failing to consider multiple uses for the disputed lands, § 1732(a), focusing inordinately on such uses as mineral exploitation and development; and failing to provide public notice of decisions, §§ 1701(a)(5), 1712(c)(9), 1712(f), and 1739(e). Respondent also claimed that petitioners had violated NEPA, which requires federal agencies to "include in every recommendation or report on ... major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on ... the environmental impact of the proposed action." 42 U.S.C. § 4332(2)(C) (1982 ed.). Finally, respondent alleged that all of the above actions were "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law," and should therefore be set aside pursuant to § 10(e) of the APA, 5 U.S.C. § 706. Appended to the amended complaint was a schedule of specific land -status determinations, which the complaint stated had been "taken by defendants since January 1, 1981"; each was identified by a listing in the Federal Register. In December 1985, the District Court granted respondent's motion for a preliminary injunction prohibiting petitioners from "[m]odifying, terminating or altering any withdrawal, classification, or other designation governing the protection *880 of lands in the public domain that was in effect on January 1, 1981," and from "[t]aking any action inconsistent" with any such withdrawal, classification, or designation. App. to Pet. for Cert. 185a. In a subsequent order, the court denied petitioners' motion under Rule 12(b) of the Federal Rules of Civil Procedure to dismiss the complaint for failure to demonstrate standing to challenge petitioners' actions under the APA, 5 U.S.C. § 702. App. to Pet. for Cert. 183a. The Court of Appeals affirmed both orders. National Wildlife Federation v. Burford, 266 U.S.App.D.C. 241, 835 F.2d 305 (1987). As to the motion to dismiss, the Court of Appeals found sufficient to survive the motion the general allegation in the amended complaint that respondent's members used environmental resources that would be damaged by petitioners' actions. See id., at 248, 835 F.2d, at 312. It held that this allegation, fairly read along with the balance of the complaint, both identified particular land -status actions that respondent sought to challenge -since at least some of the actions complained of were listed in the complaint's appendix of Federal Register references -and asserted harm to respondent's members attributable to those particular actions. Id., at 249, 835 F.2d, at 313. To support WESTLAW Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk the latter point, the Court of Appeals pointed to the affidavits of two of respondent's members, Peggy Kay Peterson and Richard Erman, which claimed use of land "in the vicinity" of the land covered by two of the listed actions. Thus, the Court of Appeals concluded, there was "concrete indication that [respondent's] members use specific lands covered by the agency's Program and will be adversely affected by the agency's actions," and the complaint was "sufficiently specific for purposes of a motion to dismiss." Ibid. On petitions for rehearing, the Court of Appeals stood by its denial of the motion to dismiss and directed the parties and the District Court "to proceed with this litigation with dispatch.", National Wildlife Federation v. Burford, 269 U.S.App.D.C. 271, 272, 844 F.2d 889, 890 (1988). *881 Back before the District Court, petitioners again claimed, this time by means of a motion for summary judgment under Rule 56 **3185 of the Federal Rules of Civil Procedure (which motion had been outstanding during the proceedings before the Court of Appeals), that respondent had no standing to seek judicial review of petitioners' actions under the APA. After argument on this motion, and in purported response to the court's postargument request for additional briefing, respondent submitted four additional member affidavits pertaining to the issue of standing. The District Court rejected them as untimely, vacated the injunction and granted the Rule 56 motion to dismiss. It noted that neither its earlier decision nor the Court of Appeals' affirmance controlled the question, since both pertained to a motion under Rule 12(b). It found the Peterson and Erman affidavits insufficient to withstand the Rule 56 motion, even as to judicial review of the particular classification decisions to which they pertained. And even if they had been adequate for that limited purpose, the court said, they could not support respondent's attempted APA challenge to "each of the 1250 or so individual classification terminations and withdrawal revocations" effected under the land withdrawal review program. National Wildlife Federation v. Burford, 699 F.Supp. 327, 332 (DC 1988). This time the Court of Appeals reversed. National Wildlife Federation v. Burford, 278 U.S.App.D.C. 320, 878 F.2d 422 (1989). It both found the Peterson and Erman affidavits sufficient in themselves and held that it was an abuse of discretion not to consider the four additional affidavits as well.' The Court of Appeals also concluded that *882 standing to challenge individual classification and withdrawal decisions conferred standing to challenge all such decisions under the land withdrawal review program. We granted certiorari. 493 U.S. 1042, 110 S.Ct. 834, 107 L.Ed.2d 830 (1990). Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. 20,962 III A Ili 121 We first address respondent's claim that the Peterson and Erman affidavits alone suffice to establish respondent's right to judicial review of petitioners' actions, Respondent does not contend that either the FLPMA or NEPA provides a private right of action for violations of its provisions. Rather, respondent claims a right to judicial review under § 10(a) of the APA, which provides: "A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof." 5 U.S.C. § 702. This provision contains two separate requirements. First, the person claiming a right to sue must identify some "agency action" that affects him in the specified fashion; it is judicial review "thereof" to which he is entitled. The meaning of "agency action" for purposes of § 702 is set forth in 5 U.S.C. § 551(13), see 5 U.S.C. § 701(b)(2) ("For the purpose of this chapter ... `agency action' ha[s] the meanin[g] given ... by section 551 of this title"), which defines the term as "the whole or a part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act," 5 U.S.C. § 551(13). When, as here, review is sought not pursuant to specific authorization in the substantive statute, but only under the general review provisions of the APA, the "agency action" in question must be "final agency action." See 5 U.S.C. § 704 ("Agency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court are subject to judicial review" (emphasis added). **3186 *883 131 Second, the party seeking review under § 702 must show that he has "suffer[ed] legal wrong" because of the challenged agency action, or is "adversely affected or aggrieved" by that action "within the meaning of a relevant statute." Respondent does not assert that it has suffered "legal wrong," so we need only discuss the meaning of "adversely affected or aggrieved ... within the meaning of a relevant statute." As an original matter, it might be thought that one cannot be WESTLAW Submitted into the public record for item(s) PZ.1 on 12/13/2018 , City Clerk "adversely affected or aggrieved within the meaning" of a statute unless the statute in question uses those terms (or terms like them) -as some pre-APA statutes in fact did when conferring rights of judicial review. See, e.g., Federal Communications Act of 1934, § 402(b)(2), 48 Stat. 1093, as amended, 47 U.S.C. § 402(b)(6) (1982 ed.). We have long since rejected that interpretation, however, which would have made the judicial review provision of the APA no more than a restatement of pre-existing law. Rather, we have said that to be "adversely affected or aggrieved ... within the meaning" of a statute, the plaintiff must establish that the injury he complains of (his aggrievement, or the adverse effect upon him ) falls within the "zone of interests" sought to be protected by the statutory provision whose violation forms the legal basis for his complaint. See Clarke v. Securities Industry Assn., 479 U.S. 388, 396-397, 107 S.Ct. 750, 755-756, 93 L.Ed.2d 757 (1987). Thus, for example, the failure of an agency to comply with a statutory provision requiring "on the record" hearings would assuredly have an adverse effect upon the company that has the contract to record and transcribe the agency's proceedings; but since the provision was obviously enacted to protect the interests of the parties to the proceedings and not those of the reporters, that company would not be "adversely affected within the meaning" of the statute. Because this case comes to us on petitioners' motion for summary judgment, we must assess the record under the *884 standard set forth in Rule 56 of the Federal Rules of Civil Procedure. Rule 56(c) states that a party is entitled to summary judgment in his favor "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Rule 56(e) further provides: "When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by L Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. 20,962 affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party." 141 As we stated in Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986), "the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Id., at 322, 106 S.Ct., at 2552. Where no such showing is made, "[t]he moving party is `entitled to a judgment as a matter of law' because the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof." Id., at 323, 106 S.Ct., at 2552. 151 161 These standards are fully applicable when a defendant moves for summary judgment, in a suit brought under § 702, on the ground that the plaintiff has failed to show that he is "adversely affected or aggrieved by agency action within the meaning of a relevant statute." The burden is on the party seeking review under § 702 to set forth **3187 specific facts (even though they may be controverted by the Government) showing that he has satisfied its terms. *885 Sierra Club v. Morton, 405 U.S. 727, 740, 92 S.Ct. 1361, 1369, 31 L.Ed.2d 636 (1972). Celotex made clear that Rule 56 does not require the moving party to negate the elements of the nonmoving party's case; to the contrary, "regardless of whether the moving party accompanies its summary judgment motion with affidavits, the motion may, and should, be granted so long as whatever is before the district court demonstrates that the standard for the entry of summary judgment, as set forth in Rule 56(c), is satisfied." 477 U.S., at 323, 106 S.Ct., at 2553. 171 We turn, then, to whether the specific facts alleged in the two affidavits considered by the District Court raised WESTLAW Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk a genuine issue of fact as to whether an "agency action" taken by petitioners caused respondent to be "adversely affected or aggrieved ... within the meaning of a relevant statute." We assume, since it has been uncontested, that the allegedly affected interests set forth in the affidavits -"recreational use and aesthetic enjoyment" -are sufficiently related to the purposes of respondent association that respondent meets the requirements of § 702 if any of its members do. Hunt v. Washington State Apple Advertising Comm 'n, 432 U.S. 333, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977). As for the "agency action" requirement, we think that each of the affidavits can be read, as the Court of Appeals believed, to complain of a particular "agency action" as that term is defined in § 551. The parties agree that the Peterson affidavit, judging from the geographic area it describes, must refer to that one of the BLM orders listed in the appendix to the complaint that appears at 49 Fed.Reg. 19904-19905 (1984), an order captioned W-6228 and dated April 30, 1984, terminating the withdrawal classification of some 4,500 acres of land in that area. See, e.g., Brief for Petitioners 8-10. The parties also appear to agree, on the basis of similar deduction, that the Erman affidavit refers to the BLM order listed in the appendix that appears at *886 47 Fed.Reg. 7232-7233 1982), an order captioned Public Land Order 6156 and dated February 18, 1982. We also think that whatever "adverse effect" or "aggrievement" is established by the affidavits was "within the meaning of the relevant statute"-i.e., met the "zone of interests" test. The relevant statute, of course, is the statute whose violation is the gravamen of the complaint -both the FLPMA and NEPA. We have no doubt that "recreational use and aesthetic enjoyment" are among the sorts of interests those statutes were specifically designed to protect. The only issue, then, is whether the facts alleged in the affidavits showed that those interests of Peterson and Erman were actually affected. The Peterson affidavit averred: "My recreational use and aesthetic enjoyment of federal lands, particularly those in the vicinity of South Pass -Green Mountain, Wyoming have been and continue to be adversely affected in fact by the unlawful actions of the Bureau and the Department. In particular, the South Pass -Green Mountain area of Wyoming has been opened to the staking of mining claims and oil and gas leasing, an action which threatens the aesthetic beauty and wildlife habitat potential of these lands." App. to Pet. for Cert. 191a. Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. 20,962 Erman's affidavit was substantially the same as Peterson's, with respect to all except the area involved; he claimed use of land "in the vicinity of Grand Canyon National Park, the Arizona Strip (Kanab Plateau), and the Kaibab National Forest." Id., at 187a. The District Court found the Peterson affidavit inadequate for the following reasons: "Peterson ... claims that she uses federal lands in the vicinity of the South Pass- **3188 Green Mountain area of Wyoming for recreational purposes and for aesthetic enjoyment and that her recreational and aesthetic enjoyment *887 has been and continues to be adversely affected as the result of the decision of BLM to open it to the staking of mining claims and oil and gas leasing.... This decision [W-6228] opened up to mining approximately 4500 acres within a two million acre area, the balance of which, with the exception of 2000 acres, has always been open to mineral leasing and mining.... There is no showing that Peterson's recreational use and enjoyment extends to the particular 4500 acres covered by the decision to terminate classification to the remainder of the two million acres affected by the termination. All she claims is that she uses lands 'in the vicinity.' The affidavit on its face contains only a bare allegation of injury, and fails to show specific facts supporting the affrant's allegation." 699 F.Supp., at 331 (emphasis in original). The District Court found the Erman affidavit "similarly flawed." "The magnitude of Erman's claimed injury stretches the imagination.... [T]he Arizona Strip consists of all lands in Arizona north and west of the Colorado River on approximately 5.5 million acres, an area one -eighth the size of the State of Arizona. Furthermore, virtually the entire Strip is and for many years has been open to uranium and other metalliferous mining. The revocation of withdrawal [in Public Land Order 6156] concerned only non -metalliferous mining in the western one-third of the Arizona Strip, an area possessing no potential for non -metalliferous mining." Id., at 332. The Court of Appeals disagreed with the District Court's assessment as to the Peterson affidavit (and thus found it unnecessary to consider the Erman affidavit) for the following reason: "If Peterson was not referring to lands in this 4500-acre affected area, her allegation of impairment to her use and enjoyment would be meaningless, or perjurious.... *888 [T]he trial court overlooks the fact that unless WEST LAW Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk Peterson's language is read to refer to the lands affected by the Program, the affidavit is, at best, a meaningless document. "At a minimum, Peterson's affidavit is ambiguous regarding whether the adversely affected lands are the ones she uses. When presented with ambiguity on a motion for summary judgment, a District Court must resolve any factual issues of controversy in favor of the non-moving party.... This means that the District Court was obliged to resolve any factual ambiguity in favor of NWF, and would have had to assume, for the purposes of summary judgment, that Peterson used the 4500 affected acres." 278 U.S.App.D.C., at 329, 878 F.2d, at 431. 181 That is not the law. In ruling upon a Rule 56 motion, "a District Court must resolve any factual issues of controversy in favor of the non-moving party" only in the sense that, where the facts specifically averred by that party contradict facts specifically averred by the movant, the motion must be denied. That is a world apart from "assuming" that general averments embrace the "specific facts" needed to sustain the complaint. As set forth above, Rule 56(e) provides that judgment "shall be entered" against the nonmoving party unless affidavits or other evidence "set forth specific facts showing that there is a genuine issue for trial." The object of this provision is not to replace conclusory allegations of the complaint or answer with conclusory allegations of an affidavit. Cf. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986) ("[T]he plaintiff could not rest on his allegations of a conspiracy to get to a jury without 'any significant probative evidence tending to support the complaint' "), quoting First National Bank of Ariz. v. Cities Service Co., 391 U.S. 253, 290, 88 S.Ct. 1575, 1593, 20 L.Ed.2d 569 (1968). Rather, the purpose of Rule 56 is to enable a party who believes there is no genuine dispute as to a specific fact essential to the **3189 other side's case to demand at least one *889 sworn averment of that fact before the lengthy process of litigation continues. At the margins there is some room for debate as to how "specific" must be the "specific facts" that Rule 56(e) requires in a particular case. But where the fact in question is the one put in issue by the § 702 challenge here -whether one of respondent's members has been, or is threatened to be, "adversely affected or aggrieved" by Government action -Rule 56(e) is assuredly not satisfied by averments which state only that one of respondent's members uses unspecified portions of an immense tract of territory, on some portions of which mining activity has occurred or probably will occur by virtue of the governmental action. It will not do to "presume" the L Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. 20,962 missing facts because without them the affidavits would not establish the injury that they generally allege. That converts the operation of Rule 56 to a circular promenade: plaintiff's complaint makes general allegation of injury; defendant contests through Rule 56 existence of specific facts to support injury; plaintiff responds with affidavit containing general allegation of injury, which must be deemed to constitute averment of requisite specific facts since otherwise allegation of injury would be unsupported (which is precisely what defendant claims it is). Respondent places great reliance, as did the Court of Appeals, upon our decision in United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669, 93 S.Ct. 2405, 37 L.Ed.2d 254 (1973). The SCRAP opinion, whose expansive expression of what would suffice for § 702 review under its particular facts has never since been emulated by this Court, is of no relevance here, since it involved not a Rule 56 motion for summary judgment but a Rule 12(b) motion to dismiss on the pleadings. The latter, unlike the former, presumes that general allegations embrace those specific facts that are necessary to support the claim. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957). *890 IV We turn next to the Court of Appeals' alternative holding that the four additional member affidavits proffered by respondent in response to the District Court's briefing order established its right to § 702 review of agency action. A 191 It is impossible that the affidavits would suffice, as the Court of Appeals held, to enable respondent to challenge the entirety of petitioners' so-called "land withdrawal review program." That is not an "agency action" within the meaning of § 702, much less a "final agency action" within the meaning of § 704. The term "land withdrawal review program" (which as far as we know is not derived from any authoritative text) does not refer to a single BLM order or regulation, or even to a completed universe of particular BLM orders and regulations. It is simply the WESTLAW Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk name by which petitioners have occasionally referred to the continuing (and thus constantly changing) operations of the BLM in reviewing withdrawal revocation applications and the classifications of public lands and developing land use plans as required by the FLPMA. It is no more an identifiable "agency action" -much less a "final agency action" -than a "weapons procurement program" of the Department of Defense or a "drug interdiction program" of the Drug Enforcement Administration. As the District Court explained, the "land withdrawal review program" extends to, currently at least, "1250 or so individual classification terminations and withdrawal revocations." 699 F.Supp., at 332.2 **3190 *891 j101 Respondent alleges that violation of the law is rampant within this program -failure to revise land use plans in proper fashion, failure to submit certain recommendations to Congress, failure to consider multiple use, inordinate focus upon mineral exploitation, failure to provide required public notice, failure to provide adequate environmental impact statements. Perhaps so. But respondent cannot seek wholesale improvement of this program by court decree, rather than in the offices of the Department or the halls of Congress, where programmatic improvements are normally made. Under the terms of the APA, respondent must direct its attack against some particular "agency action" that causes it harm. Some statutes permit broad regulations to serve as the "agency action," and thus to be the object of judicial review directly, even before the concrete effects normally required for APA review are felt. Absent such a provision, however, a regulation is not ordinarily considered the type of agency action "ripe" for judicial review under the APA until the scope of the controversy has been reduced to more manageable proportions, and its factual components fleshed out, by some concrete action applying the regulation to the claimant's situation in a fashion that harms or threatens to harm him. (The major exception, of course, is a substantive rule which as a practical matter requires the plaintiff to adjust his conduct immediately. Such agency action is "ripe" for review at once, whether or not explicit statutory review apart from the APA is provided. See Abbott Laboratories v. Gardner, 387 U.S. 136, 152-154, 87 S.Ct. 1507, 1517-1518, 18 L.Ed.2d 681 (1967); Gardner v. Toilet Goods Assn., Inc., 387 U.S. 167, 171-173, 87 S.Ct. 1526, 1528-1530, 18 L.Ed.2d 704 (1967). Cf. Toilet *892 Goods Assn., Inc. v. Gardner, 387 U.S. 158, 164-166, 87 S.Ct. 1520, 1524-1526, 18 L.Ed.2d 697 (1967).) I'll In the present case, the individual actions of the BLM identified in the six affidavits can be regarded as rules of general applicability (a "rule" is defined in the APA as agency action of "general or particular applicability and Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. future effect," 5 U.S.C. § 551(4) (emphasis added)) announcing, with respect to vast expanses of territory that they cover, the agency's intent to grant requisite permission for certain activities, to decline to interfere with other activities, and to take other particular action if requested. It may well be, then, that even those individual actions will not be ripe for challenge until some further agency action or inaction more immediately harming the plaintiff occurs.' But it is at least entirely *893 certain that the flaws in the entire "program" -consisting principally of the many individual actions **3191 referenced in the complaint, and presumably actions yet to be taken as well -cannot be laid before the courts for wholesale correction under the APA, simply because one of them that is ripe for review adversely affects one of respondent's members.° *894 1121 The case -by -case approach that this requires is understandably frustrating to an organization such as respondent, which has as its objective across-the-board protection of our Nation's wildlife and the streams and forests that support it. But this is the traditional, and remains the normal, mode of operation of the courts. Except where Congress explicitly provides for our correction of the administrative process at a higher level of generality, we intervene in the administration of the laws only when, and to the extent that, a specific "final agency action" has an actual or immediately threatened effect. Toilet Goods Assn., 387 U.S., at 164-166, 87 S.Ct., at 1524-1526. Such an intervention may ultimately have the effect of requiring a regulation, a series of regulations, or even a whole "program" to be revised by the agency in order to avoid the unlawful result that the court discerns. But it is assuredly not as swift or as immediately far-reaching a corrective process as those interested in systemic improvement would desire. Until confided to us, however, more sweeping actions are for the other branches. 1131 The Court of Appeals' reliance upon the supplemental affidavits was wrong for a **3192 second reason: The District Court did not abuse its discretion in declining to admit them. Petitioners filed their motion for summary judgment in September 1986; respondent filed an opposition but did not submit any new evidentiary materials at that time. On June 27, 1988, after the case had made its way for the first time through the Court of Appeals, the District Court announced that it would hold a Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk 20,962 hearing on July 22 on "the outstanding motions for summary judgment," which included petitioners' motion challenging respondent's § 702 standing. The hearing was held and, as noted earlier, the District Court issued an order directing respondent to file "a supplemental memorandum regarding *895 the issue of its standing to proceed." Record, Doc. No. 274. Although that plainly did not call for the submission of new evidentiary materials, it was in purported response to this order, on August 22, 1988, that respondent submitted (along with the requested legal memorandum) the additional affidavits. The only explanation for the submission (if it can be called an explanation) was contained in a footnote to the memorandum, which simply stated that "NWF now has submitted declarations on behalf of other members of NWF who have been injured by the challenged actions of federal defendants." Record, Doc. No. 278, p. 18, n. 21. In its November 4, 1988, ruling granting petitioners' motion, the District Court rejected the additional affidavits as "untimely and in violation of [the court's briefing] Order." 699 F.Supp., at 328, n. 3. Respondent's evidentiary submission was indeed untimely, both under Rule 56, which requires affidavits in opposition to a summary judgment motion to be served "prior to the day of the hearing," Fed.Rule Civ.Proc. 56(c), and under Rule 6(d), which states more generally that "[w]hen a motion is supported by affidavit, ... opposing affidavits may be served not later than 1 day before the hearing, unless the court permits them to be served at some other time." Rule 6(b) sets out the proper approach in the case of late filings: WESTLAW "When by these rules or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time, the court for cause shown may at any time in its discretion (1) with or without motion or notice order the period enlarged if request therefor is made before the expiration of the period originally prescribed or as extended by a previous order, or (2) upon motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect...." Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. 20,962 This provision not only specifically confers the "discretion" relevant to the present issue, but also provides the mechanism *896 by which that discretion is to be invoked and exercised. First, any extension of a time limitation must be "for cause shown." Second, although extensions before expiration of the time period may be "with or without motion or notice," any postdeadline extension must be "upon motion made," and is permissible only where the failure to meet the deadline "was the result of excusable neglect." Thus, in order to receive the affidavits here, the District Court would have had to regard the very filing of the late document as the "motion made" to file it;5 it would have had to interpret "cause *897 shown" to mean merely **3193 "cause," since respondent made no "showing" of cause at all; and finally, it would have had to find as a substantive matter that there was indeed "cause" for the late filing, and that the failure to file on time "was the result of excusable neglect." This last substantive obstacle is the greatest of all. The Court of Appeals presumably thought it was overcome because "the papers on which the trial court relied were two years old by the time it requested supplemental memoranda" and because "there was no indication prior to the trial court's request that [respondent] should have doubted the adequacy of the affidavits it had already submitted." 278 U.S.App.D.C., at 331, 878 F.2d, at 433. We do not understand the relevance of the first point; the passage of so long a time as two years suggests, if anything, that respondent had more than the usual amount of time to prepare its response to the motion, and was more than moderately remiss in waiting until after the last moment. As to the suggestion of unfair surprise: A litigant is never justified in assuming that the court has made up its mind until the court expresses itself to that effect, and a litigant's failure to buttress its position because of confidence in the strength of that position is always indulged in at the litigant's own risk. In any case, whatever erroneous expectations respondent may have had were surely dispelled by the District Court's order in June 1988 announcing that the hearing on petitioners' motion would be held one month later. At least when that order issued, respondent was on notice that its right to sue was at issue, and that (absent proper motion) the time for filing any additional evidentiary materials was, at the latest, the day before the hearing. *898 Perhaps it is true that the District Court could have overcome all the obstacles we have described -apparent lack of a motion, of a showing, and of excusable neglect -to admit the affidavits at issue here. But the proposition that it was compelled to receive them -that it was an abuse of discretion to reject them -cannot be WESTLAW accepted. Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk V 1141 Respondent's final argument is that we should remand this case for the Court of Appeals to decide whether respondent may seek § 702 review of petitioners' actions in its own right, rather than derivatively through its members. Specifically, it points to allegations in the amended complaint that petitioners unlawfully failed to publish regulations, to invite public participation, and to prepare an environmental impact statement with respect to the "land withdrawal review program" as a whole. In order to show that it is a "person ... adversely affected or aggrieved" by these failures, it submitted to the District Court a brief affidavit (two pages in the record) by one of its vice presidents, Lynn A. Greenwalt, who stated that respondent's mission is to "inform its members and the general public about conservation issues" and to advocate improvements in laws and administrative practices "pertaining to the **3194 protection and enhancement of federal lands," App. to Pet. for Cert. 193a-194a; and that its ability to perform this mission has been impaired by petitioners' failure "to provide adequate information and opportunities for public participation with respect to the Land Withdrawal Review Program." Id., at 194a. The District Court found this affidavit insufficient to establish respondent's right to seek judicial review, since it was "conclusory and completely devoid of specific facts." 699 F.Supp., at 330. The Court of Appeals, having reversed the District Court on the grounds discussed above, did not address the issue. We agree with the District Court's disposition. Even assuming that the affidavit set forth "specific facts," *899 Fed.R.Civ.Proc. 56(e), adequate to show injury to respondent through the deprivation of information; and even assuming that providing information to organizations such as respondent was one of the objectives of the statutes allegedly violated, so that respondent is "aggrieved within the meaning" of those statutes; nonetheless, the Greenwalt affidavit fails to identify any particular "agency action" that was the source of these injuries. The only sentences addressed to that point are as follows: "NWF's ability to meet these obligations to its members has been significantly impaired by the failure of the Bureau of Land Management and the Department of the Interior to provide adequate Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. 20,962 information and opportunities for public participation with respect to the Land Withdrawal Review Program. These interests of NWF have been injured by the actions of the Bureau and the Department and would be irreparably harmed by the continued failure to provide meaningful opportunities for public input and access to information regarding the Land Withdrawal Review Program." App. to Pet. for Cert. 194a. As is evident, this is even more deficient than the Peterson and Erman affidavits, which contained geographical descriptions whereby at least an action as general as a particular classification decision could be identified as the source of the grievance. As we discussed earlier, the "land withdrawal review program" is not an identifiable action or event. With regard to alleged deficiencies in providing information and permitting public participation, as with regard to the other illegalities alleged in the complaint, respondent cannot demand a general judicial review of the BLM's day-to-day operations. The Greenwalt affidavit, like the others, does not set forth the specific facts necessary to survive a Rule 56 motion. *900 * * * For the foregoing reasons, the judgment of the Court of Appeals is reversed. It is so ordered. Justice BLACKMUN, with whom Justice BRENNAN, Justice MARSHALL, and Justice STEVENS join, dissenting. In my view, the affidavits of Peggy Kay Peterson and Richard Loren Erman, in conjunction with other record evidence before the District Court on the motions for summary judgment, were sufficient to establish the standing of the National Wildlife Federation (Federation or NWF) to bring this suit. I also conclude that the District Court abused its discretion by refusing to consider supplemental affidavits filed after the hearing on the parties' cross -motions for summary judgment. I therefore would affirm the judgment of the Court of Appeals. WESTLAW Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk I The Federation's asserted injury in this case rested upon its claim that the Government actions challenged here would lead to increased mining on public lands; that the mining would result in damage to the environment; and that the recreational opportunities of NWF's members would consequently be diminished. Abundant record evidence supported the Federation's assertion that on lands newly opened for mining, mining in fact **3195 would occur.' Similarly, the record furnishes ample support for NWF's contention that mining activities can be expected to cause severe environmentaldamage *901 to the affected lands.' The District Court held, however, that the Federation had not adequately identified particular members who were harmed by the consequences of the Government's actions. Although two of NWF's members expressly averred that their recreational activities had been impaired, the District Court concluded that these affiants had not identified with sufficient precision the particular sites on which their injuries occurred. The majority, like the District Court, holds that the averments of Peterson and Erman were insufficiently specific to withstand a motion for summary judgment. Although these affidavits were not models of precision, I believe that they were adequate at least to create a genuine issue of fact as to the organization's injury. *902 As the Court points out, the showing (whether as to standing or the merits) required to overcome a motion for summary judgment is more extensive than that required in the context of a motion to dismiss. The principal difference is that in the former context evidence is required, while in the latter setting the litigant may rest upon the allegations of his complaint. See Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986) (Federal Rule of Civil Procedure 56(e) "requires the nonmoving party to go beyond the pleadings"). In addition, Rule 56(e) requires that the party opposing summary judgment "must set forth specific facts showing that there is a genuine issue for trial" (emphasis added). Thus, Courts of Appeals have reiterated that "conclusory" allegations unsupported by "specific" evidence will be insufficient to establish a genuine issue of fact.' The requirement that evidence be submitted is satisfied here: The Federation has offered the sworn statements of two of its members. There remains the question whether the allegations in these affidavits were sufficiently precise to satisfy the requirements of Rule 56(e). The line of demarcation between "specific" and "conclusory" allegations is hardly a bright one. But, to my mind, the Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. 20,962 allegations contained in the Peterson and Erman affidavits, in the context of the record as a whole, were adequate **3196 to defeat a motion for summary judgment. These affidavits, as the majority acknowledges, were at least sufficiently precise to enable Bureau of Land Management (BLM) officials to identify the particular termination orders to which the affiants referred. See ante, at 3187. And the affiants averred that their "recreational use and aesthetic enjoyment of federal lands ... have been and continue to be adversely affected in fact by the unlawful *903 actions of the Bureau and the Department." App. to Pet. for Cert. 188a (Erman affidavit), 191a (Peterson affidavit). The question, it should be emphasized, is not whether the NWF has proved that it has standing to bring this action, but simply whether the materials before the District Court established "that there is a genuine issue for trial," see Rule 56(e), concerning the Federation's standing. In light of the principle that "[o]n summary judgment the inferences to be drawn from the underlying facts contained in [evidentiary] materials must be viewed in the light most favorable to the party opposing the motion," United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962), I believe that the evidence before the District Court raised a genuine factual issue as to NWF's standing to sue. No contrary conclusion is compelled by the fact that Peterson alleged that she uses federal lands "in the vicinity of South Pass -Green Mountain, Wyoming," App. to Pet. for Cert. 191a, rather than averring that she uses the precise tract that was recently opened to mining. The agency itself has repeatedly referred to the "South Pass -Green Mountain area" in describing the region newly opened to mining.' Peterson's assertion that her use and enjoyment of federal lands have been adversely affected by the agency's decision to permit more extensive mining is, as the Court of Appeals stated, National Wildlife Federation v. Burford, 278 U.S.App.D.C. 320, 329, 878 F.2d 422, 431 (1989), "meaningless, or perjurious" if the lands she uses do not include those harmed by mining undertaken pursuant to termination order W-6228.5 To read particular assertions within the affidavit in light of the document as a whole is, as the majority might put it, "a world apart" from "presuming" facts that are neither stated nor implied simply because without them the *904 plaintiff would lack standing. The Peterson and Erman affidavits doubtless could have been more artfully drafted, but they definitely were sufficient to withstand the federal parties' summary judgment motion. WESTLAW Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk II I also conclude that the District Court abused its discretion in refusing to consider the supplemental affidavits filed by NWF after the hearing on the summary judgment motion.' The court's decision abruptly derailed the Federation's lawsuit after three **3197 years of proceedings involving massive time and expense. The District Court and Court of Appeals both had concluded that NWF's claims were sufficiently substantial to warrant the entry of a nationwide injunction. Whatever the ultimate merits of the Federation's claims, litigation of this magnitude should not be aborted on technical grounds if that result legitimately can be avoided. The majority's approach reflects an insufficient appreciation both of the realities of complex litigation and of the admonition that the Federal Rules of Civil Procedure "shall be construed to secure *905 the just, speedy, and inexpensive determination of every action." Rule 1. That a requirement is "technical" does not, of course, mean that it need not be obeyed. And an appeal to the "spirit" of the Federal Rules is an insufficient basis for ignoring the import of their text. If the Rules imposed an absolute deadline for the submission of evidentiary materials, the District Court could not be faulted for strictly enforcing that deadline, even though the result in a particular case might be unfortunate. But, as the Court acknowledges, the Rules expressly permit the District Court to exercise discretion in deciding whether affidavits in opposition to a summary judgment motion may be submitted after the hearing.' Once the District Court's power to accept untimely affidavits is recognized, the question whether that power should be exercised in a particular instance must be answered by reference to the explanation for the litigant's omission and the purposes the Rules are designed to serve. In my view, NWF showed adequate cause for its failure to file the supplemental affidavits prior to the hearing. Moreover, the organization's untimely filing in no way disserved the purposes of Rule 56(c), and the federal parties suffered no prejudice as a consequence of the *906 delay. Under these circumstances, I believe that the District Court's refusal to consider these submissions constituted an abuse of discretion. The Federal Rules require that affidavits in opposition to a motion ordinarily must be served at least one day prior to the hearing; the Rules provide, however, that the affidavits may be filed at a later time "where the failure to act was the result of excusable neglect." Rule 6(b); see n. 7, supra. Prior to the July 22, 1988, hearing on the parties' cross -motions for summary judgment, NWF had been assured repeatedly that its prior submissions were L Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. 20,962 sufficient to establish its standing to sue. In its memorandum opinion granting the Federation's motion for a preliminary injunction, the District Court stated: "We continue to find irreparable injury to plaintiff and reaffirm plaintiff's standing to bring this action." National Wildlife Federation v. Burford, 676 F.Supp. 280, 281 (D.C.1986). Later that year the federal parties sought additional discovery on the question of standing. NWF sought to quash discovery, arguing that "[t]he Court should bar any additional discovery on this issue because (1) it has already found that plaintiff has standing; (2) plaintiff has already produced affidavits which demonstrate standing and therefore any additional discovery would be unreasonably cumulative, duplicative, **3198 burdensome and expensive within the meaning of Rule 26(c)(1); and (3) contrary to the government defendants' apparent theory, plaintiff need not demonstrate injury as to each and every action that is part of the program." Memorandum of Points and Authorities in Support of Plaintiff's Motion To Quash and for a Protective Order 5-6 (July 1, 1986). In the alternative, NWF argued that if additional discovery on standing was to be ordered, it should be confined to the requirement that a limited number of additional affidavits be submitted. Id., at 22. The District Court, on July 14, 1986, granted in full the Federation's motion to quash and ordered "that no further discovery of plaintiff or *907 its members, officers, employees, agents, servants, or attorneys shall be permitted until subsequent order of this court, if any." App. to Pet. for Cert. 170a-171a. When the District Court's grant of a preliminary injunction was subjected to appellate review, the Court of Appeals concluded that the Peterson and Erman affidavits "provide a concrete indication that the Federation's members use specific lands covered by the agency's Program and will be adversely affected by the agency's actions." National Wildlife Federation v. Burford, 266 U.S.App.D.C. 241, 249, 835 F.2d 305, 313 (1987)." The majority's statement that "a litigant is never justified in assuming that the court has made up its mind until the court expresses itself to that effect," ante, at 3193, is therefore simply irrelevant to the present case: The District Court and the Court of Appeals repeatedly had indicated that the Federation had offered sufficient evidence of its standing. Nor did the District Court's order of June 27, 1988, scheduling a motion hearing for the following July 22, place NWF on notice that its claim of standing might be reconsidered. That order made clear that the hearing would consider the summary judgment motions of both the federal parties and *908 the Federation. The principal submission of the federal parties relevant to the hearing WESTLAW Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk was the Defendants' Memorandum in Opposition to Plaintiff's Motion for Summary Judgment and in Support of Defendants' Motion for Summary Judgment and/or for Dissolution of the Preliminary Injunction Issued on February 10, 1986; that memorandum was filed on September 12, 1986. This 86-page memorandum included only 9 ''A pages devoted to standing, and half of that discussion set forth the federal parties' claim that no broad programmatic challenge could succeed even if the Peterson and Erman affidavits adequately alleged injury from Government decisions as to particular tracts of land. Moreover, even the attack on the Peterson and Erman affidavits did not purport to show that summary judgment for the federal parties should be entered on the ground that the Federation lacked standing. Rather, the federal parties argued principally that summary judgment for NWF would be inappropriate because a genuine factual dispute existed as to the Federation's standing to sue. See Defendants' Memorandum, at 45-47. In fact, the 86-page memorandum included only two sentences arguing that the federal parties should be awarded summary judgment on standing grounds. Id., at 11-12, 85. The District Court's decision to schedule a hearing on the parties' cross -motions for summary judgment provided no hint that previous **3199 assurances concerning standing were open to reconsideration.9 Certainly the Federation could have submitted additional evidentiary materials in support of its claim of standing, even though it had no reason to believe that further submissions were necessary. But it would hardly enhance the efficiency *909 of the adjudicative process to encourage litigants to reargue questions previously settled in their favor. In my view, NWF established sufficient cause for its failure to submit the supplemental affidavits prior to the hearing.10 **3200 *910 Moreover, the District Court's refusal to consider the additional submissions in this case did not significantly advance the interests that Rule 56(c) is designed to serve. The Rule requires that affidavits in opposition to a motion for summary judgment must be served "prior to the day of hearing." The Courts of Appeals consistently have recognized, however, that "Rule 56 does not necessarily contemplate an oral hearing. Rather, 10-day advance notice to the adverse party that the motion and all materials in support of or in opposition to the motion will be taken under advisement by the trial court as of a certain day satisfies the notice and hearing *911 dictates of Rule 56." Moore v. Florida, 703 F.2d 516, 519 (CA11 1983)." Rule 56(c)'s requirement that a summary judgment motion be filed 10 days in advance of a scheduled hearing serves to ensure that the nonmoving party is afforded adequate notice of Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. 20,962 the motion. Similarly, the requirement that opposing affidavits be submitted prior to the day of the hearing reflects the fact that the district court may rule on the summary judgment motion at the hearing or at any time thereafter; submission of affidavits prior to that day is thus essential if the moving party is to be assured the opportunity to respond at a time when a response is meaningful. The requirement also allows the district court to establish a deadline by which time all evidence and arguments must be submitted; thereafter, the court may deliberate with the assurance that no subsequent filings will alter the terms of the dispute. These are pressing concerns when the hearing on a summary judgment motion represents the parties' last opportunity to set forth their legal arguments. In the present case, however, the District Court concluded the July 22, 1988, hearing by requesting supplemental briefing on the issue of standing.12 NWF's supplemental affidavits, filed on August 22 as an attachment to its legal memorandum, were submitted at a time when the federal parties had ample opportunity to respond. (Indeed, the opportunity to respond here-10 days -was far greater than would have been the case if NWF had filed (timely) affidavits the day before the hearing and no *912 supplemental briefing had been allowed.) The affidavits, moreover, were filed well before the time when the case was to be taken under advisement. The record in this case is voluminous, currently filling six large boxes; consideration of five more affidavits would not have added significantly to the complexity of the issues before the District Court. Under these circumstances, submission of the supplemental affidavits neither disserved the purposes of the Rule nor prejudiced the federal parties in any respect. The District Court discussed none of these factors in explaining its refusal to consider the supplemental affidavits. Indeed, the District Court offered no justification at all for its action beyond the assertion that the affidavits were untimely." Similarly, the Court **3201 today fails to assess the District Court's action by reference to the excuse for NWF's untimely filing or the absence of prejudice to the federal parties. The District Court and today's majority fail to recognize the guiding principle of the Federal Rules of Civil Procedure, the principle that procedural rules should be construed pragmatically, so as to ensure the just and efficient resolution of legal disputes. Some provisions of the Rules strip the district courts of discretion, and the courts have no choice but to enforce these requirements with scrupulous precision.' But where the Rules expressly confer a range of *913 discretion, a district court may abuse its authority by refusing to take account of Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk equitable concerns, even where its action violates no express command. In my view, such an abuse of discretion occurred here. III In Part IV -A, ante, at 3189, the majority sets forth a long and abstract discussion of the scope of relief that might have been awarded had the Federation made a sufficient showing of injury from environmental damage to a particular tract of land. Since the majority concludes in other portions of its opinion that the Federation lacks standing to challenge any of the land -use decisions at issue here, it is not clear to me why the Court engages in the hypothetical inquiry contained in Part IV -A. In any event, I agree with much of the Court's discussion, at least in its general outline. The Administrative Procedure Act permits suit to be brought by any person "adversely affected or aggrieved by agency action." 5 U.S.C. § 702. In some cases the "agency action" will consist of a rule of broad applicability; and if the plaintiff prevails, the result is that the rule is invalidated, not simply that the court forbids its application to a particular individual. Under these circumstances a single plaintiff, so long as he is injured by the rule, may obtain "programmatic" relief that affects the rights of parties not before the court. On the other hand, if a generally lawful policy is applied in an illegal manner on a particular occasion, one who is injured is not thereby entitled to challenge other applications of the rule. Application of these principles to the instant case does not turn on whether, or how often, the Bureau's land -management policies have been described as a "program."" In one sense, *914 of course, there is no question that a "program" exists. Everyone associated with this lawsuit recognizes that the BLM, over the past decade, has attempted to develop and implement a comprehensive scheme for the termination of classifications and withdrawals. The real issue is whether the actions and omissions that NWF contends are illegal are themselves part of a plan or policy. For example: If the agency had published a regulation stating that an environmental impact statement (EIS) should never be developed prior to the termination of a classification or withdrawal, NWF could challenge the regulation (which would constitute an "agency action"). If the reviewing court then held that the statute required a pretermination EIS, the relief (invalidation of the rule) would directly Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. 20,962 affect **3202 tracts other than the ones used by individual affiants. At the other extreme, if the applicable BLM regulation stated that an EIS must be developed, and NWF alleged that the administrator in charge of South Pass/Green Mountain had inexplicably failed to develop one, NWF should not be allowed (on the basis of the Peterson affidavit) to challenge a termination in Florida on the ground that an administrator there made the same mistake. The majority, quoting the District Court, characterizes the Bureau's land management program as " '1250 or so individual classification terminations and withdrawal revocations.' " Ante, at 3189; see National Wildlife Federation v. Burford, 699 F.Supp. 327, 332 (DC 1988). The majority offers no argument in support of this conclusory assertion, and I am far from certain that the characterization is an accurate one. Since this issue bears on the scope of the relief ultimately to be awarded should the plaintiff prevail, rather than on the jurisdiction *915 of the District Court to entertain the suit, I would allow the District Court to address the question on remand.' Footnotes 2 3 Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk IV Since I conclude that the Peterson and Erman affidavits provided sufficient evidence of NWF's standing to withstand a motion for summary judgment, and that the District Court abused its discretion by refusing to consider the Federation's supplemental affidavits, I would affirm the judgment of the Court of Appeals. I respectfully dissent. All Citations 497 U.S. 871, 110 S.Ct. 3177, 111 L.Ed.2d 695, 31 ERC 1553, 20 Envtl. L. Rep. 20,962 The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Lumber Co., 200 U.S. 321, 337, 26 S.Ct. 282, 287, 50 L.Ed. 499. As an additional basis for its conclusion, the Court of Appeals held that the earlier panel's finding that the Peterson and Erman affidavits were sufficient to establish respondent's right to sue was the "law of the case." We do not address this conclusion, as the earlier panel's ruling does not, of course, bind this Court. Messenger v. Anderson, 225 U.S. 436, 444, 32 S.Ct. 739, 740, 56 L.Ed. 1152 (1912). Contrary to the apparent understanding of the dissent, we do not contend that no "land withdrawal review program" exists, any more than we would contend that no weapons procurement program exists. We merely assert that it is not an identifiable "final agency action" for purposes of the APA. If there is in fact some specific order or regulation, applying some particular measure across the board to all individual classification terminations and withdrawal revocations, and if that order or regulation is final, and has become ripe for review in the manner we discuss subsequently in text, it can of course be challenged under the APA by a person adversely affected -and the entire "land withdrawal review program," insofar as the content of that particular action is concemed, would thereby be affected. But that is quite different from permitting a generic challenge to all aspects of the "land withdrawal review program," as though that itself constituted a final agency action. Under the Secretary's regulations, any person seeking to conduct mining operations that will "cause a cumulative surface disturbance" of five acres or more must first obtain approval of a plan of operations. § 3809.1-4 (1988). Mining operations that cause surface disturbance of less than 5 acres do not require prior approval, but prior notice must be given to the district office of the BLM. § 3809.1-3. Neither approval nor notification is required only with respect to "casual use operations," 43 CFR § 3809.1-2, defined as "activities ordinarily resulting in only negligible disturbance of the Federal lands and resources," § 3809.0-5. (Activities are considered "casual" if "they do not involve the use of mechanized earth moving equipment or explosives or do not involve the use of motorized vehicles in areas designated as closed to off -road vehicles...." Ibid.) Thus, before any mining use ordinarily involving more than "negligible disturbance" can take place, there must occur either agency action in response to a submitted plan or agency inaction in response to a submitted notice. In one of the four new affidavits, Peggy Peterson, one of the original affiants, states that a corporation has filed a mine permit application with the BLM covering a portion of the land to which her original affidavit pertained. App. to Brief in Opposition for Respondent National Wildlife Federation 16. If that permit is granted, there is no doubt that WESTLAW Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. 20,962 4 5 2 Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk agency action ripe for review will have occurred; nor any doubt that, in the course of an otherwise proper court challenge, affiant Peterson, and through her respondent, would be able to call into question the validity of the classification order authorizing the permit. However, before the grant of such a permit, or (when it will suffice) the filing of a notice to engage in mining activities, or (when only "negligible disturbance" will occur) actual mining of the land, it is impossible to tell where or whether mining activities will occur. Indeed, it is often impossible to tell from a classification order alone whether mining activities will even be permissible. As explained in the uncontested affidavit of the BLM's Assistant Director of Land Resources: "The lands may be subject to another withdrawal of comparable scope or they may be subject to classification segregations tantamount to such a withdrawal. In that case, the lands would not be opened to the operation of the public land laws so that the removal of one of the withdrawals has no practical effect. Another reason why there may not be any change is that before the revocation occurred, the lands may have been transferred into private ownership. Consequently, the withdrawal revocation amounts to nothing more than a paper transaction.... In the altemative, a revoked withdrawal may open the lands to the operation of the public land and mineral laws.... Some withdrawal revocations are made without prior knowledge as to what subsequent disposition may be made of the lands. After the lands are opened, they might be transferred out of federal ownership by sale, exchange, or some other discretionary mode of disposal, not anticipated when the withdrawal was revoked. These subsequent discretionary actions require separate and independent decisionmaking that, obviously, are divorced from the prior revocation decision. Environmental and other management concerns and public participation are taken into account in relation to the post -revocation decisionmaking." Affidavit of Frank Edwards, Aug. 18, 1985, App. 61-62. Nothing in this is contrary to our opinion in Automobile Workers v. Brock, 477 U.S. 274, 106 S.Ct. 2523, 91 L.Ed.2d 228 (1986), cited by the Court of Appeals. That opinion did not discuss, and the respondent Secretary of Labor did not rely upon, the requirements of 5 U.S.C. § 702 and our ripeness jurisprudence in cases such as Abbott Laboratories v. Gardner, 387 U.S. 136, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967); Gardner v. Toilet Goods Assn., Inc., 387 U.S. 167, 87 S.Ct. 1526, 18 L.Ed.2d 704 (1967); and Toilet Goods Assn., Inc. v. Gardner, 387 U.S. 158, 87 S.Ct. 1520, 18 L.Ed.2d 697 (1967). The only challenge made and decided, with respect to the individuals' right to sue, relied upon 19 U.S.C. § 2311(d) (1982 ed.), which according to the Secretary of Labor made entertainment of that suit " 'contrary to Congress's incorporation of the state system into the administration of the Trade Act, and an affront to the integrity and authority of the state courts.' " 477 U.S., at 283, 106 S.Ct., at 2529, quoting Brief for Respondent in Automobile Workers, O.T. 1985, No. 84-1777, p. 16. The dissent asserts that a footnote in respondent's reply memorandum to the District Court was a "motion" within the meaning of Rule 6(b)(2), and was so obviously so that the District Court committed reversible error in failing to construe it that way. Post, at 3199-3200 and n. 10. We cannot agree. Rule 6(b) establishes a clear distinction between "requests" and "motions," and the one cannot be converted into the other without violating its provisions -or at least cannot be converted on the basis of such lax criteria that conversion would be not only marginally permissible but positively mandatory in the present case. Rule 6(b)(1) allows a court ("for cause shown" and "in its discretion") to grant a "request" for an extension of time, whether the request is made "with or without motion or notice," provided the request is made before the time for filing expires. After the time for filing has expired, however, the court (again "for cause shown" and "in its discretion") may extend the time only "upon motion." To treat all postdeadline "requests" as "motions" (if indeed any of them can be treated that way) would eliminate the distinction between predeadline and postdeadline filings that the Rule painstakingly draws. Surely the postdeadline "request," to be even permissibly treated as a "motion," must contain a high degree of formality and precision, putting the opposing party on notice that a motion is at issue and that he therefore ought to respond. The request here had not much of either characteristic. As for formality, it was not even made in a separate filing or in a separate appearance before the court, but was contained in a single sentence at the end of the first paragraph of one of the 18 single-spaced footnotes in a 20-page memorandum of law. Our district judges must read footnotes with new care if they are to be reversed for failing to recognize motions buried in this fashion. And as for precision, the request not only did not ask for any particular extension of time (7 days, 30 days), it did not specifically ask for an extension of time at all, but merely said that respondent "should be given adequate opportunity to supplement the record." Even this, moreover, was not requested (much less moved for) unconditionally, but only "[i]f the court intends to reverse its prior ruling [regarding NWF standing]." Record, Doc. No. 294, p. 17, n. 16. We think it quite impossible to agree with the dissent that the district judge not only might treat this request as a motion, but that he was compelled to do so. Prior to the District Court's entry of the preliminary injunction, 406 mining claims had been staked in the South Pass -Green Mountain area alone. App. 119. An exhibit filed by the federal parties indicated that over 7,200 claims had been filed in 12 Western States. Exh. 1 to Affidavit of Joseph Martyak (Apr. 11, 1986). A Bureau of Land Management (BLM) draft of a Resource Management Plan/Environmental Impact Statement for the Lander, Wyo., Resource Area stated: "In the Green Mountain Management Unit ... significant long-term impacts to elk and mule deer herds could occur from habitat losses caused by oil and gas activities over the next 60 years.... In the WESTLAW Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. 20,962 3 4 5 6 7 8 9 Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk South Pass Management Unit, significant acreages of lodgepole pine forest and aspen conifer woodland habitat types could be disturbed, which would cause significant long-term impacts to moose and elk.... If gold mining activities continued to erode these high -value habitats, trout fisheries, the Lander moose herd, the beaver pond ecosystems, and the populations of many other wildlife species would suffer significant cumulative negative effects." Draft RMP/EIS pp. 226-228 (Exh. 3 to Defendant -Intervenors' Reply to Plaintiffs Opposition to Defendants' Motions for Stay Pending Appeal (May 14, 1986)). A BLM Mineral Report issued June 17, 1982, concluded that mining and associated activities "could have an adverse impact on crucial moose habitat, deer habitat, some elk habitat, and a variety of small game and bird species. Improvements at campgrounds, as well as land in the immediate vicinity, could either be damaged or destroyed. These activities could make it difficult for the BLM to manage the forest production and harvesting in the South Pass area. Historical and cultural resources which have and have not been identified could be either damaged or destroyed." Defendant -Intervenors' Exh. 7 (attached as Appendix 1 to Plaintiff National Wildlife Federation's Statement of Points and Authorities in Support of Its Standing To Proceed (Aug. 22, 1988)). See, e.g., May v. Department of Air Force, 777 F.2d 1012, 1016 (CA5 1985); First Commodity Traders, Inc. v. Heinold Commodities, Inc., 766 F.2d 1007, 1011 (CA7 1985); Maldonado v. Ramirez, 757 F.2d 48, 51 (CA3 1985); Galindo v. Precision American Corp., 754 F.2d 1212, 1216 (CA5 1985). See, e.g., App. 123-139 (declaration of Jack Kelly). The areas harmed or threatened by mining and associated activities may extend well beyond the precise location where mining occurs. See n. 2, supra. Five supplemental affidavits were filed. The first was submitted by Peggy Kay Peterson, in clarification of her earlier affidavit: "A substantial portion of the lands which I use ... are identical to those lands" newly opened to mining in the South Pass -Green Mountain area. Peterson Supplemental Affidavit, App. in No. 88-5397 (CADC), p. 356. Ms. Peterson also asserted that "U.S. Energy Corporation has filed a mine permit application with the Bureau and Department, (U.S. Energy Application, TFN 2 4/86), which includes a proposal to mine a significant portion of the federal lands which I use for recreational purposes and aesthetic enjoyment." Id., at 355-356. The other affiants were NWF members David Doran, Merlin McColm, Stephen Blomeke, and Will Ouellette. These individuals identified termination orders that had opened to mining particular tracts of land used by the affiants for recreation and aesthetic enjoyment. The federal parties do not concede that the supplemental affidavits established with certainty the Federation's standing; they contend that further discovery might show the affiants' allegations to be untrue. The federal parties do concede, however, that the supplemental affidavits were not facially deficient. Tr. of Oral Arg. 19. Rule 56(c) provides that when a motion for summary judgment is filed, the "adverse party prior to the day of hearing may serve opposing affidavits." Under Rule 56(e), the district court "may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits." Rule 6(d) states: "When a motion is supported by affidavit, ... opposing affidavits may be served not later than 1 day before the hearing, unless the court permits them to be served at some other time." The district court's authority to permit service "at some other time" is govemed in turn by Rule 6(b), which provides that when an act is required to be performed by a specified time, the district court may "upon motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect." See 4A C. Wright & A. Miller, Federal Practice and Procedure § 1165, p. 475 (2d ed. 1987) (Rule 6(b) "gives the court extensive flexibility to modify the fixed time periods found throughout the rules, whether the enlargement is sought before or after the actual termination of the allotted time"). The Court of Appeals' discussion of standing occurred in the context of a motion to dismiss and therefore, by itself, might not assure NWF that it had made a sufficient showing to withstand a motion for summary judgment. But the Court of Appeals, like the District Court before it, also held that the Federation's showing of injury, as reflected in the Peterson and Erman affidavits, provided an adequate basis for a preliminary injunction. As the second Court of Appeals panel concluded, "the burden of establishing irreparable harm to support a request for a preliminary injunction is, if anything, at least as great as the burden of resisting a summary judgment motion on the ground that the plaintiff cannot demonstrate 'injury -in -fact.' " National Wildlife Federation v. Burford, 278 U.S.App.D.C. 320, 330, 878 F.2d 422, 432 (1989) (emphasis omitted). When the first panel affirmed the District Court's entry of a preliminary injunction, Judge Williams' separate opinion, concurring and dissenting, stated that "the specificity required for standing allegations to secure a preliminary injunction will normally be no less than that required on a motion for summary judgment." 266 U.S.App.D.C., at 264, 835 F.2d, at 328. At the hearing itself Fred R. Disheroon, the federal parties' attorney, argued at length on other points before turning to WESTLAW Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. 20,962 10 11 12 13 Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk the issue of standing. He began that portion of his argument by observing that "perhaps the court doesn't want to hear me argue standing, but I think it is imperative that I address that in the context of this case." Tr. of Motions Hearing 43 (July 22, 1988). The supplemental affidavits were submitted as an attachment to the supplemental legal memorandum on standing requested by the District Court. At the time of their submission, NWF stated only that "NWF now has submitted declarations on behalf of other members of NWF who have been injured by the challenged actions of federal defendants." Plaintiff National Wildlife Federation's Statement of Points and Authorities in Support of Its Standing To Proceed 18, n. 21 (Aug. 22, 1988). However, in its reply memorandum on the issue, NWF addressed the contention of the federal parties and the defendant -intervenor that the affidavits should be ignored as untimely filed. NWF stated: "Plaintiff heretofore, has relied on the court's previous rulings on NWF's standing. In its motion for a protective order against additional discovery, NWF argued that its standing had already been proven on the basis of the affidavits of Mr. Greenwalt, Ms. Peterson, and Mr. Erman. The court agreed and entered the requested protective order. If the court intends to reverse its prior ruling, then NWF respectfully requests that it should be given adequate opportunity to supplement the record." Plaintiff National Wildlife Federation's Reply Memorandum in Support of Its Standing To Proceed 17, n. 16 (Sept. 14, 1988). The Federation also noted that Circuit precedent permitted the filing of supplemental affidavits on standing issues, even on appeal. Ibid., citing National Wildlife Federation v. Hodel, 268 U.S.App.D.C. 15, 24, 839 F.2d 694, 703 (1988). NWF offered the further explanation: "Ms. Peterson has supplemented her affidavit to include new information regarding a mine application which has been filed by U.S. Energy Corporation that includes a proposal to mine lands within the area of South Pass/Green Mountain previously closed to mining. For the record, NWF initially was told by officials of the Bureau of Land Management that the U.S. Energy mine application did not include any lands covered by the court's preliminary injunction. Otherwise, NWF would have supplemented Ms. Peterson's affidavit earlier." Reply memorandum, at 12-13, n. 13. Along with its Reply Memorandum, NWF submitted an additional filing entitled Plaintiff National Wildlife Federation's Memorandum in Opposition to Defendant -Intervenors' Motion To Strike Plaintiffs Supplementation of the Record (Sept. 14, 1988). That filing stated: "For the reasons stated in [the reply memorandum] at page 17, n. 16, plaintiff requests that defendant -intervenors' motion to strike be denied." (In light of this separate submission, addressed solely to the question whether the supplemental affidavits should be considered, and expressly referring to n. 16 of the reply memorandum, it is difficult to fathom the Courts assertion that NWF's request was "buried" in the Federation's filings. See ante, at 3192-3193, n. 5.) This separate filing, in conjunction with the reply memorandum, satisfied Rule 6(b)'s requirement that the request for enlargement of time be made "upon motion." Though neither of these filings was expressly denominated a "motion," they met the requirements of Rule 7(b): They were submitted in writing, were signed by counsel, "state [d] with particularity the grounds therefor," and unambiguously "set forth the relief ... sought." See Campos v. LeFevre, 825 F.2d 671, 676 (CA2 1987) ("[N]o particular form of words is necessary to render a filing a 'motion.' Any submission signed by a party that may fairly be read as a request to the district court to exercise its discretionary powers ... should suffice"), cert. denied, 484 U.S. 1014, 108 S.Ct. 718, 98 L.Ed.2d 667 (1988); Smith I. Danyo, 585 F.2d 83, 86 (CA3 1978) ("Rule 7(b) requires no more than that ... a motion 'state with particularity the grounds' upon which it is based. Plainly, an affidavit which is filed to obtain an order disqualifying a judge satisfies the requirements of Rule 7(b).... The ... failure to type in the word 'motion' above the word 'affidavit' in no way detracts from the notice which the affidavit gave of the nature of the application"). Cf. Snyder v. Smith, 736 F.2d 409, 419 (CA7) ("The Federal Rules are to be construed liberally so that erroneous nomenclature in a motion does not bind a party at his peril"), cert. denied, 469 U.S. 1037, 105 S.Ct. 513, 83 L.Ed.2d 403 (1984); Miller v. Transamerican Press, Inc., 709 F.2d 524, 527 (CA9 1983) ("The court will construe [a motion], however styled, to be the type proper for the relief requested"); 2A J. Moore & J. Lucas, Moore's Federal Practice If 7.05, pp. 7-16 to 7-17 (1989) ("[I]t is the motion's substance, and not merely its linguistic form, that determines its nature and legal effect"). Accord, Allied Chemical Corp. v. Mackay, 695 F.2d 854, 856 (CA5 1983) ("Rule 56(c) does not require an oral hearing in open court. Rather, it contemplates notice to the party opposing the motion and an adequate opportunity to respond to the movant's arguments"); Bratt v. International Business Machines Corp., 785 F.2d 352, 363 (CA1 1986). The District Court subsequently established a schedule for the supplemental briefing. NWF was requested to file its opening memorandum by August 22, 1988; the federal parties and intervenors were to file memoranda in opposition by September 1; and NWF's reply was due by September 14. Order of July 27, 1988. The District Court mentioned these affidavits in a single footnote: "Plaintiff, in addition to its memorandum filed August 22, 1988 has submitted additional evidentiary material, including declarations from four of its members. These submissions are untimely and in violation of our Order. We decline to consider them. See Federal Defendants' Reply to Plaintiffs Statement of Points and Authorities in Support of Its Standing to Proceed, at 1 n. 1." National Wildlife Federation v. Burford, 699 F.Supp. 327, 328-329, n. 3 (D.C.1988). WESTLAW Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. 20,962 '"• 14 O 15 16 Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk Rule 6(b), for example, which generally gives the district court broad authority to grant enlargements of time, establishes the limitation that the court "may not extend the time for taking any action under Rules 50(b) and (c)(2), 52(b), 59(b), (d) and (e), 60(b), and 74(a), except to the extent and under the conditions stated in them." The term "withdrawal review program" repeatedly has been used in BLM documents. See, e.g., Plaintiffs Exhs. 1, 3, 10, 11, 15, 18, 19 (filed July 15, 1985). At oral argument on the cross -motions for summary judgment, counsel for the federal parties acknowledged: "It is true, BLM referred to this review process as a land withdrawal review program." Tr. of Motion Hearing 40 (July 22, 1988). Counsel went on to say, "but I suggest that using a word, calling it a program, doesn't make a program in the sense that it is being challenged here." Ibid. That assertion, though inelegant, seems essentially correct: An agency's terminology is not decisive in determining whether an alleged illegality is systemic or site -specific. The majority also suggests that the agency actions challenged in this suit may not be ripe for review. See ante, at 3190-3191. Since the issue of ripeness has not been briefed or argued in this Court, nor passed on by the courts below, I need not address it. I do note, however, that at the outset of this case the federal parties made precisely the opposite argument, asserting that a preliminary injunction should be denied on the ground that NWF's claims were barred by laches. The federal parties contended: "The Federation offers no explanation why, despite its detailed knowledge of BLM's revocation and termination activities, it has waited so long to institute litigation." Defendants' Memorandum in Opposition to Plaintiffs Motion for Preliminary Injunction 26 (Aug. 22, 1985). I also decline to address the adequacy of the affidavit submitted by Lynn Greenwalt, since the Court of Appeals did not pass on that issue. End of Document © 2018 Thomson Reuters. No claim to original U.S. Government Works. WEST LAW thy Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. 20,962 KeyCite Yellow Flag - Negative Treatment Not Followed on State Law Grounds Levis v. Konitzky, Me., November 17, 2016 no S.Ct. 3177 Supreme Court of the United States Manuel LUJAN, Jr., Secretary of the Interior, et al., Petitioners v. NATIONAL WILDLIFE FEDERATION, et al. No. 89-640. Argued April 16, 1990. Decided June 27, i99o. Synopsis National wildlife group filed action challenging the "land withdrawal review program" of the Bureau of Land Management. The United States District Court for the District of Columbia, John H. Pratt, J., 699 F.Supp. 327, granted summary judgment against the group. Appeal was taken. The Court of Appeals for the District of Columbia, 878 F.2d 422, reversed and remanded. Certiorari was granted. The Supreme Court, Justice Scalia, held that: (1) affidavits which were filed by members of the group and which indicated the members' recreational use and aesthetic enjoyment of land "in the vicinity" of land covered by agency actions under the Bureau's "land withdrawal review program" were insufficient to show that the affiants' interests were actually affected; (2) the "land withdrawal review program" was not "agency action" or "final agency action," within meaning of the Administrative Procedure Act; and (3) affidavit, which indicated that the group's ability to fulfill its informational and advocacy functions was "adversely affected" by alleged failure of the Bureau to provide adequate information and opportunities for public participation with respect to the "land withdrawal review program" failed to identify any particular "agency action" that was the source of the group's alleged injuries. Judgment of the Court of Appeals reversed. Justice Blackmun, dissented and filed opinion in which Justices Brennan, Marshall, and Stevens joined. WESTLAW West Headnotes (14) 111 [2] 131 Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk Administrative Law and Procedure Persons aggrieved or affected Administrative Law and Procedure Decisions and Acts Reviewable In order to obtain judicial review under the general review provisions of the Administrative Procedure Act, the person claiming right to sue must identify some agency action that affects him in specified fashion and must show that he has suffered legal wrong because of the challenged agency action or is adversely affected or aggrieved by that action within the meaning of a relevant statute. 5 U.S.C.A. § 702. 179 Cases that cite this headnote Administrative Law and Procedure -sFinality; ripeness When judicial review of agency action is sought, not pursuant to specific authorization in substantive statute, but only under general review provisions of the Administrative Procedure Act as person suffering legal wrong because of challenged agency action or adversely affected or aggrieved by that action, the "agency action" must be final agency action. 5 U.S.C.A. §§ 551(13), 701(b)(2), 702, 704. 294 Cases that cite this headnote Administrative Law and Procedure Persons aggrieved or affected To be adversely affected or aggrieved within meaning of statute, for purposes of obtaining judicial review of agency action under general review provisions of the Administrative Procedure Act, plaintiff must establish that the injury he complains of (his aggrievement, or the adverse affect upon him) falls within the "zone Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. 20,962 of interests" sought to be protected by the statutory provision whose violation forms the legal basis for his complaint. 5 U.S.C.A. § 702. 312 Cases that cite this headnote 171 (41 151 Federal Civil Procedure -Lack of cause of action or defense Summary judgment must be entered, after adequate time for discovery and upon motion, against party who fails to make showing sufficient to establish the existence of element essential to that party's case on which that party will bear burden of proof at trial. Fed.Rules Civ.Proc.Rule 56(c), 28 U.S.C.A. 1636 Cases that cite this headnote Federal Civil Procedure .-Burden of proof In order to avoid summary judgment, party who is seeking judicial review of agency action under the general review provision of the Administrative Procedure Act has burden to set forth specific facts, even though they may be controverted by the government, showing that he has satisfied its terms. 5 U.S.C.A. § 702; Fed.Rules Civ.Proc.Rule 56, 28 U.S.C.A. [81 161 1105 Cases that cite this headnote Federal Civil Procedure 0-Matters Affecting Right to Judgment Summary judgment rule does not require movant to negate elements of nonmovant's case; rather, regardless of whether movant accompanies its summary judgment motion with affidavits, the motion may, and should, be granted so long as whatever is before the district court demonstrates that standard for entry of summary judgment is satisfied. Fed.Rules WESTL.AW Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk Civ.Proc.Rules 56, 56(c), 28 U.S.C.A. 1205 Cases that cite this headnote Administrative Law and Procedure Persons aggrieved or affected Environmental Law .-Organizations, associations, and other groups Affidavits, which were filed by members of national wildlife group and which indicated the members' recreational use and aesthetic enjoyment of land "in the vicinity" of land covered by agency actions under the "land withdrawal review program" of the Bureau of Land Management, were insufficient to show that the members' interests were actually affected, for purposes of the general review provisions of the Administrative Procedure Act; affidavits indicated only that the members used unspecified portions of immense tract of territory, on some portions of which mining activity had occurred or probably would occur by virtue of the governmental action, and missing facts could not be "presumed" to establish the injury that was generally alleged. 5 U.S.C.A. § 702; Fed.Rules Civ.Proc.Rule 56, 28 U.S.C.A. 682 Cases that cite this headnote Federal Civil Procedure Presumptions When ruling on summary judgment motion, district court must resolve any factual issues of controversy in favor of nonmovant only in the sense that, where facts specifically averred by nonmovant contradict facts specifically averred by movant, motion must be denied. Fed.Rules Civ.Proc.Rule 56, 28 U.S.C.A. 3753 Cases that cite this headnote Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 EnvtL L. Rep. 20,962 191 1101 Administrative Law and Procedure 0-Finality; ripeness Environmental Law 0-Administrative Decisions or Actions Reviewable in General "Land withdrawal review program" of the Bureau of Land Management was not "agency action" for purposes of general review provisions of the Administrative Procedure Act, much less "final agency action," within meaning of the Act; term "land withdrawal review program" did not refer to single Bureau order or regulation, or even to completed universe of particular Bureau orders and regulations, but, rather, referred to the continuing and thus constantly changing operations of the Bureau in reviewing withdrawal revocation applications and the classifications of public lands and developing land use plans as required by the Federal Land Policy and Management Act. Federal Land Policy and Management Act of 1976, § 102 et seq., 43 U.S.C.A. § 1701 et seq.; 5 U.S.C.A. §§ 702, 704. 141 Cases that cite this headnote Administrative Law and Procedure 4.-Finality; ripeness Substantive rule which as a practical matter requires plaintiff to adjust his conduct immediately is agency action "ripe" for judicial review at once, whether or not explicit statutory review apart from the Administrative Procedure Act is provided. 5 U.S.C.A. §§ 702, 704. 69 Cases that cite this headnote Administrative Law and Procedure .-Finality; ripeness Environmental Law Administrative Decisions or Actions Reviewable in General Flaws in the entire "land withdrawal review WESTLAW 1121 1131 1141 Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk program" of the Bureau of Land Management cannot be laid before the courts for wholesale correction under the Administrative Procedure Act simply because one of them that is ripe for review adversely affects one member of national wildlife group. 20 Cases that cite this headnote Administrative Law and Procedure -Finality; ripeness Except where Congress explicitly provides for correction of the administrative process at higher level of generality, the Supreme Court intervenes in the administration of the laws only when, and to the extent that, specific "final agency action" has actual or immediately threatened effect. 5 U.S.C.A. §§ 702, 704. 65 Cases that cite this headnote Federal Civil Procedure ®-Affidavits Declining to admit supplemental affidavits, which were filed in response to district court's briefing order following the summary judgment hearing, was not abuse of discretion, in action brought under the general review provisions of the Administrative Procedure Act; the affidavits were untimely under applicable rules, and although the district court could perhaps have overcome the apparent lack of a motion, of a showing of cause, and of excusable neglect to admit the affidavits, it was not compelled to receive them. Fed.Rules Civ.Proc.Rules 6(b, d), 56, 56(c), 28 U.S.C.A.; 5 U.S.C.A. § 702. 298 Cases that cite this headnote Administrative Law and Procedure ....Persons aggrieved or affected Environmental Law Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. 20,962 0-Administrative Decisions or Actions Reviewable in General Affidavit, which indicated that national wildlife group's ability to fulfill its informational and advocacy functions was adversely affected by alleged failure of the Bureau of Land Management to provide adequate information and opportunities for public participation with respect to the Bureau's "land withdrawal review program," failed to identify any particular "agency action" that was source of the group's alleged injury, and, thus, group was not entitled to judicial review of the Bureau's actions under the general review provisions of the Administrative Procedure Act; the "land withdrawal review program" was not identifiable action or event, and group could not demand general judicial review of the Bureau's day-to-day operations. 5 U.S.C.A. §§ 702, 704. 62 Cases that cite this headnote **3179 Syllabus' *871 The National Wildlife Federation (hereinafter respondent) filed this action in the District Court against petitioners, the Director of the Bureau of Land Management (BLM) and other federal parties, alleging that, in various respects, they had violated the Federal Land Policy and Management Act of 1976 (FLPMA) and the National Environmental Policy Act of 1969 (NEPA) in the course of administering the BLM's "land withdrawal review program," and that the complained -of actions should be set aside because they were "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law" within the meaning of § 10(e) of the Administrative Procedure Act (APA), 5 U.S.C. § 706. Under the program, petitioners make various types of decisions affecting the status of public lands and their availability for private uses such as mining, a number of which decisions were listed in an appendix to the complaint. The court granted petitioners' motion for summary judgment under Federal Rule of Civil Procedure 56, holding that respondent lacked standing to seek judicial review of petitioners' actions under the APA, § 702. The court ruled that affidavits by two of respondent's members, Peterson and Erman, claiming use of public WESTLAVV Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk lands "in the vicinity" of lands covered by two of the listed decisions, were insufficient to confer standing as to those particular decisions, and that, even if they had been adequate for that limited purpose, they could not support respondent's attempted APA challenge to each of the 1,250 or so individual actions effected under the program. The **3180 court rejected as untimely four more member affidavits pertaining to standing, which were submitted after argument on the summary judgment motion and in purported response to the District Court's postargument request for additional briefing. The Court of Appeals reversed, holding that the Peterson and Erman affidavits were sufficient in themselves, that it was an abuse of discretion not to consider the four additional affidavits, and that standing to challenge the individual decisions conferred standing to challenge all such decisions. Held: 1. The Peterson and Erman affidavits are insufficient to establish respondent's § 702 entitlement to judicial review as "[a] person ... *872 adversely affected or aggrieved by agency action within the meaning of a relevant statute." Pp. 3185-3189. (a) To establish a right to relief under § 702, respondent must satisfy two requirements. First, it must show that it has been affected by some "agency action," as defined in § 551(13). See § 701(b)(2). Since neither the FLPMA nor NEPA provides a private right of action, the "agency action" in question must also be "final agency action" under § 704. Second, respondent must prove that it is "adversely affected or aggrieved" by that action "within the meaning of a relevant statute," which requires a showing that the injury complained of falls within the "zone of interests" sought to be protected by the FLPMA and NEPA. Cf. Clarke v. Securities Industry Assn., 479 U.S. 388, 396-397, 107 S.Ct. 750, 755-756, 93 L.Ed.2d 757. Pp. 3185-3186. (b) When a defendant moves for summary judgment on the ground that the plaintiff has failed to establish a right to relief under § 702, the burden is on the plaintiff, under Rule 56(e), to set forth specific facts (even though they may be controverted by the defendant) showing that there is a genuine issue for trial. Cf. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265. Where no such showing is made, the defendant is entitled to judgment as a matter of law. Id., at 323, 106 S.Ct., at 2552. Pp. 3186-3187. (c) The specific facts alleged in the two affidavits do not raise a genuine issue of fact as to whether respondent has a right to relief under § 702. It may be assumed that the Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. 20,962 allegedly affected interests set forth in the affidavits -"recreational use and aesthetic enjoyment" -are sufficiently related to respondent's purposes that respondent meets § 702's requirements if any of its members do. Moreover, each affidavit can be read to complain of a particular "agency action" within § 551's meaning; and whatever "adverse effect" or "aggrievement" is established by the affidavits, meets the "zone of interests" test, since "recreational use and aesthetic enjoyment" are among the sorts of interests that the FLPMA and NEPA are designed to protect. However, there has been no showing that those interests of Peterson and Erman were actually "affected" by petitioners' actions, since the affidavits alleged only that the affiants used unspecified lands "in the vicinity of" immense tracts of territory, only on some portions of which, the record shows, mining activity has occurred or probably will occur by virtue of the complained -of actions. The Court of Appeals erred in ruling that the District Court had to presume specific facts sufficient to support the general allegations of injury to the affiants, since such facts are essential to sustaining the complaint and, under Rule 56(e), had to be set forth by respondent. United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669, 93 S.Ct. 2405, 37 L.Ed.2d 254, distinguished. Pp. 3187-3189. *873 2. Respondent's four additional member affidavits did not establish its right to § 702 review. Pp. 3189-3193. (a) The affidavits are insufficient to enable respondent to challenge the entirety of **3181 petitioners' "land withdrawal review program." That term does not refer to a single BLM order or regulation, or even to a completed universe of particular BLM orders and regulations, but is simply the name by which petitioners have occasionally referred to certain continuing (and thus constantly changing) BLM operations regarding public lands, which currently extend to about 1,250 individual decisions and presumably will include more actions in the future. Thus, the program is not an identifiable "agency action" within § 702's meaning, much less a "final agency action" under § 704. Absent an explicit congressional authorization to correct the administrative process on a systemic level, agency action is not ordinarily considered "ripe" for judicial review under the APA until the scope of the controversy has been reduced to manageable proportions, and its factual components fleshed out, by concrete action that harms or threatens to harm the complainant. It may well be, due to the scope of the "program," that the individual BLM actions identified in the affidavits will not be "ripe" for challenge until some further agency action or inaction more immediately harming respondent occurs. But it is entirely certain that the flaws in the entire WESTLAW Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk "program" cannot be laid before the courts for wholesale correction under the APA simply because one of them that is ripe for review adversely affects one of respondent's members. Respondent must seek such programmatic improvements from the BLM or Congress. Pp. 3189-3191. (b) The District Court did not abuse its discretion in declining to admit the supplemental affidavits. Since the affidavits were filed in response to the court's briefing order following the summary judgment hearing, they were untimely under, inter alia, Rule 6(d), which provides that "opposing affidavits may be served not later than 1 day before the hearing." Although Rule 6(b) allows a court, "in its discretion," to extend any filing deadline "for cause shown," a post -deadline extension must be "upon motion made," and is permissible only where the failure to meet the deadline "was the result of excusable neglect." Here, respondent made no motion for extension nor any showing of "cause." Moreover, the failure to timely file did not result from "excusable neglect," since the court's order setting the hearing on the summary judgment motion put respondent on notice that its right to sue was at issue, and that (absent proper motion) the time for filing additional evidentiary materials was, at the latest, the day before the hearing. Even if the court could have overcome these obstacles to admit the affidavits, it was not compelled, in exercising its discretion, to do so. Pp. 3191-3193. *874 3. Respondent is not entitled to seek § 702 review of petitioners' actions in its own right. The brief affidavit submitted to the District Court to show that respondent's ability to fulfill its informational and advocacy functions was "adversely affected" by petitioners' alleged failure to provide adequate information and opportunities for public participation with respect to the land withdrawal review program fails to identify any particular "agency action" that was the source of respondent's alleged injuries, since that program is not an identifiable action or event. Thus, the affidavit does not set forth the specific facts necessary to survive a Rule 56 motion. Pp. 3193-3194. 278 U.S. App. D.C. 320, 878 F.2d 422 (1989), reversed. SCALIA, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and WHITE, O'CONNOR, and KENNEDY, JJ., joined. BLACKMUN, J., filed a dissenting opinion, in which BRENNAN, MARSHALL, and STEVENS, JJ., joined, post, p. 3194. Attorneys and Law Firms Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. 20,962 Acting Solicitor General Roberts argued the cause for petitioners. With him on the briefs were Assistant Attorney General Stewart, Deputy Solicitor General Wallace, Lawrence S. Robbins, Peter R. Steenland, Jr., Anne S. Almy, Fred R. Disheroon, and Vicki L. Plaut. E. Barrett Prettyman, Jr., argued the cause for respondents. With him on the brief were John C. Keeney, Jr., Kathleen C. Zimmerman, and Norman L. Dean, Jr. William Perry Pendley filed a brief for respondents Mountain States Legal Foundation et al. * * Briefs of amici curiae urging reversal were filed for the American Farm Bureau Federation et al. by Kathryn A. Oberly and John J. Rademacher; for the American Mining Congress by Jerry L. Haggard and Gerrie Apker Kurtz; for the National Cattlemen's Association et al. by Constance E. Brooks; for the Pacific Legal Foundation by Ronald A. Zumbrun, Robin L. Rivett, and James S. Burling; and for the Washington Legal Foundation et al. by Terence P. Ross, Daniel J. Popeo, and Richard A. Samp. Briefs of amici curiae urging affirmance were filed for the State of California et al. by John K. Van de Kamp, Attorney General of California, Andrea Sheridan Ordin, Chief Assistant Attomey General, and Craig C. Thompson, Susan L. Durbin, Clifford L. Rechtschaffen, and Nilda M. Mesa, Deputy Attomey Generals, and for the Attomeys General for their respective States as follows: Robert A. Butterworth of Florida, Lacy H. Thornburg of North Carolina, Anthony J. Celebrezze, Jr., of Ohio, Jeffrey L. Amestoy of Vermont, and Joseph B. Meyer of Wyoming; and for the Wilderness Society et al. by Bruce J. Ennis, Jr. Opinion *875 Justice SCALIA delivered the opinion of the Court. In this case we must decide whether respondent, the National Wildlife Federation **3182 (hereinafter respondent), is a proper party to challenge actions of the Federal Government relating to certain public lands. I Respondent filed this action in 1985 in the United States District Court for the District of Columbia against WESTLAW Submitted into the public record for item(s) P2.1 . on 12/13/2018 , City Clerk petitioners the United States Department of the Interior, the Secretary of the Interior, and the Director of the Bureau of Land Management (BLM), an agency within the Department. In its amended complaint, respondent alleged that petitioners had violated the Federal Land Policy and Management Act of 1976 (FLPMA), 90 Stat. 2744, 43 U.S.C. § 1701 et seq. (1982 ed.), the National Environmental Policy Act of 1969 (NEPA), 83 Stat. 852, 42 U.S.C. § 4321 et seq., and § 10(e) of the Administrative Procedure Act (APA), 5 U.S.C. § 706, in the course of administering what the complaint called the "land withdrawal review program" of the BLM. Some background information concerning that program is necessary to an understanding of this dispute. In various enactments, Congress empowered United States citizens to acquire title to, and rights in, vast portions of federally owned land. See, e.g., Rev.Stat. § 2319, 30 U.S.C. § 22 et seq. (Mining Law of 1872); 41 Stat. 437, as amended, 30 U.S.C. § 181 et seq. (Mineral Leasing Act of 1920). Congress also provided means, however, for the Executive to remove public lands from the operation of these statutes. The Pickett Act, 36 Stat. 847, 43 U.S.C. § 141 (1970 ed.), repealed, 90 Stat. 2792 (1976), authorized the President "at any time in his discretion, temporarily [to] withdraw from settlement, location, sale, or entry any of the *876 public lands of the United States ... and reserve the same for water -power sites, irrigation, classification of lands, or other public purposes...." Acting under this and under the Taylor Grazing Act of 1934, ch. 865, 48 Stat. 1269, as amended, 43 U.S.C. § 315f, which gave the Secretary of the Interior authority to "classify' public lands as suitable for either disposal or federal retention and management, President Franklin Roosevelt withdrew all unreserved public land from disposal until such time as they were classified. Exec. Order No. 6910, Nov. 26, 1934; Exec. Order No. 6964, Feb. 5, 1935. In 1936, Congress amended § 7 of the Taylor Grazing Act to authorize the Secretary of the Interior "to examine and classify any lands" withdrawn by these orders and by other authority as "more valuable or suitable" for other uses "and to open such lands to entry, selection, or location for disposal in accordance with such classification under applicable public -land laws." 49 Stat. 1976, 43 U.S.C. § 315f (1982 ed.). The amendment also directed that "[s]uch lands shall not be subject to disposition, settlement, or occupation until after the same have been classified and opened to entry." Ibid. The 1964 classification and multiple use Act, 78 Stat. 986, 43 U.S.C. §§ 1411-1418 (1970 ed.) (expired 1970), gave the Secretary further authority to classify lands for the purpose of either disposal or retention by the Federal Government. Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. 20,962 Management of the public lands under these various laws became chaotic. The Public Land Law Review Commission, established by Congress in 1964 to study the matter, 78 Stat. 982, determined in 1970 that "virtually all" of the country's public domain, see Public Land Law Review Commission, One Third of the Nation's Land 52 (1970)-about one-third of the land within the United States, see id., at 19-had been withdrawn or classified for retention; that it was difficult to determine "the extent of existing Executive withdrawals and the degree to which withdrawals overlap each other," id., at 52; and that there were inadequate records to show the purposes *877 of withdrawals and the permissible public uses. Ibid. Accordingly, it recommended that "Congress should provide for a careful review of (1) all Executive withdrawals and reservations, and (2) BLM retention and disposal classifications under the Classification and Multiple Use Act of 1964." Ibid. **3183 In 1976, Congress passed the FLPMA, which repealed many of the miscellaneous laws governing disposal of public land, 43 U.S.C. § 1701 et seq. (1982 ed.), and established a policy in favor of retaining public lands for multiple use management. It directed the Secretary to "prepare and maintain on a continuing basis an inventory of all public lands and their resource and other values," § 1711(a), required land use planning for public lands, and established criteria to be used for that purpose, § 1712. It provided that existing classifications of public lands were subject to review in the land use planning process, and that the Secretary could "modify or terminate any such classification consistent with such land use plans." § 1712(d), It also authorized the Secretary to "make, modify, extend or revoke" withdrawals. § 1714(a). Finally it directed the Secretary, within 15 years, to review withdrawals in existence in 1976 in 11 Western States, § 1714(1 )(1), and to "determine whether, and for how long, the continuation of the existing withdrawal of the lands would be, in his judgment, consistent with the statutory objectives of the programs for which the lands were dedicated and of the other relevant programs," § 1714(1 )(2). The activities undertaken by the BLM to comply with these various provisions constitute what respondent's amended complaint styles the BLM's "land withdrawal review program," which is the subject of the current litigation. Pursuant to the directives of the FLPMA, petitioners engage in a number of different types of administrative action with respect to the various tracts of public land within the United States. First, the BLM conducts the review and recommends the determinations required by § 1714(1) with *878 respect to withdrawals in 11 Western States. The law requires the Secretary to "report his W ESTLAW Submitted into the public record for item(s) PZ.1 . on 12/13/ 2018 , City Clerk recommendations to the President, together with statements of concurrence or nonconcurrence submitted by the heads of the departments or agencies which administer the lands"; the President must in turn submit this report to the Congress, together with his recommendation "for action by the Secretary, or for legislation." § 1714(1 )(2). The Secretary has submitted a number of reports to the President in accordance with this provision. Second, the Secretary revokes some withdrawals under § 204(a) of the Act, which the Office of the Solicitor has interpreted to give the Secretary the power to process proposals for revocation of withdrawals made during the "ordinary course of business." U.S. Dept. of the Interior, Memorandum from the Office of the Solicitor, Oct. 30, 1980. These revocations are initiated in one of three manners: An agency or department holding a portion of withdrawn land that it no longer needs may file a notice of intention to relinquish the lands with the BLM. Any member of the public may file a petition requesting revocation. And in the case of lands held by the BLM, the BLM itself may initiate the revocation proposal. App. 56-57. Withdrawal revocations may be made for several reasons. Some are effected in order to permit sale of the land; some for record -clearing purposes, where the withdrawal designation has been superseded by congressional action or overlaps with another withdrawal designation; some in order to restore the land to multiple use management pursuant to § 102(a)(7) of the FLPMA, 43 U.S.C. § 1701(a)(7) (1982 ed.). App. 142-145. Third, the Secretary engages in the ongoing process of classifying public lands, either for multiple use management, pt. 2420, for disposal, pt. 2430, or for other uses. Classification decisions may be initiated by petition, pt. 2450, or by the BLM itself, pt. 2460. Regulations promulgated *879 by the Secretary prescribe the procedures to be followed in the case of each type of classification determination. II In its complaint, respondent averred generally that the reclassification of some withdrawn **3184 lands and the return of others to the public domain would open the lands up to mining activities, thereby destroying their natural beauty. Respondent alleged that petitioners, in the course of administering the Nation's public lands, had violated the FLPMA by failing to "develop, maintain, Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. and, when appropriate, revise land use plans which provide by tracts or areas for the use of the public lands," 43 U.S.C. § 1712(a) (1982 ed.); failing to submit recommendations as to withdrawals in the 11 Western States to the President, § 1714(1 ); failing to consider multiple uses for the disputed lands, § 1732(a), focusing inordinately on such uses as mineral exploitation and development; and failing to provide public notice of decisions, §§ 1701(a)(5), 1712(c)(9), 1712(0, and 1739(e). Respondent also claimed that petitioners had violated NEPA, which requires federal agencies to "include in every recommendation or report on ... major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on ... the environmental impact of the proposed action." 42 U.S.C. § 4332(2)(C) (1982 ed.). Finally, respondent alleged that all of the above actions were "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law," and should therefore be set aside pursuant to § 10(e) of the APA, 5 U.S.C. § 706. Appended to the amended complaint was a schedule of specific land -status determinations, which the complaint stated had been "taken by defendants since January 1, 1981"; each was identified by a listing in the Federal Register. In December 1985, the District Court granted respondent's motion for a preliminary injunction prohibiting petitioners from "[m]odifying, terminating or altering any withdrawal, classification, or other designation governing the protection *880 of lands in the public domain that was in effect on January 1, 1981," and from "[t]aking any action inconsistent" with any such withdrawal, classification, or designation. App. to Pet. for Cert. 185a. In a subsequent order, the court denied petitioners' motion under Rule 12(b) of the Federal Rules of Civil Procedure to dismiss the complaint for failure to demonstrate standing to challenge petitioners' actions under the APA, 5 U.S.C. § 702. App. to Pet. for Cert. 183a. The Court of Appeals affirmed both orders. National Wildlife Federation v. Burford, 266 U.S.App.D.C. 241, 835 F.2d 305 (1987). As to the motion to dismiss, the Court of Appeals found sufficient to survive the motion the general allegation in the amended complaint that respondent's members used environmental resources that would be damaged by petitioners' actions. See id., at 248, 835 F.2d, at 312. It held that this allegation, fairly read along with the balance of the complaint, both identified particular land -status actions that respondent sought to challenge -since at least some of the actions complained of were listed in the complaint's appendix of Federal Register references -and asserted harm to respondent's members attributable to those particular actions. Id., at 249, 835 F.2d, at 313. To support WESTLAW Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk 20,962 the latter point, the Court of Appeals pointed to the affidavits of two of respondent's members, Peggy Kay Peterson and Richard Erman, which claimed use of land "in the vicinity" of the land covered by two of the listed actions. Thus, the Court of Appeals concluded, there was "concrete indication that [respondent's] members use specific lands covered by the agency's Program and will be adversely affected by the agency's actions," and the complaint was "sufficiently specific for purposes of a motion to dismiss." Ibid. On petitions for rehearing, the Court of Appeals stood by its denial of the motion to dismiss and directed the parties and the District Court "to proceed with this litigation with dispatch.", National Wildlife Federation v. Burford, 269 U.S.App.D.C. 271, 272, 844 F.2d 889, 890 (1988). *881 Back before the District Court, petitioners again claimed, this time by means of a motion for summary judgment under Rule 56 **3185 of the Federal Rules of Civil Procedure (which motion had been outstanding during the proceedings before the Court of Appeals), that respondent had no standing to seek judicial review of petitioners' actions under the APA. After argument on this motion, and in purported response to the court's postargument request for additional briefing, respondent submitted four additional member affidavits pertaining to the issue of standing. The District Court rejected them as untimely, vacated the injunction and granted the Rule 56 motion to dismiss. It noted that neither its earlier decision nor the Court of Appeals' affirmance controlled the question, since both pertained to a motion under Rule 12(b). It found the Peterson and Erman affidavits insufficient to withstand the Rule 56 motion, even as to judicial review of the particular classification decisions to which they pertained. And even if they had been adequate for that limited purpose, the court said, they could not support respondent's attempted APA challenge to "each of the 1250 or so individual classification terminations and withdrawal revocations" effected under the land withdrawal review program. National Wildlife Federation v. Burford, 699 F.Supp. 327, 332 (DC 1988). This time the Court of Appeals reversed. National Wildlife Federation v. Burford, 278 U.S.App.D.C. 320, 878 F.2d 422 (1989). It both found the Peterson and Erman affidavits sufficient in themselves and held that it was an abuse of discretion not to consider the four additional affidavits as well.' The Court of Appeals also concluded that *882 standing to challenge individual classification and withdrawal decisions conferred standing to challenge all such decisions under the land withdrawal review program. We granted certiorari. 493 U.S. 1042, 110 S.Ct. 834, 107 L.Ed.2d 830 (1990). 44. Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. 20,962 III A 111 121 We first address respondent's claim that the Peterson and Erman affidavits alone suffice to establish respondent's right to judicial review of petitioners' actions. Respondent does not contend that either the FLPMA or NEPA provides a private right of action for violations of its provisions. Rather, respondent claims a right to judicial review under § 10(a) of the APA, which provides: "A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof." 5 U.S.C. § 702. This provision contains two separate requirements. First, the person claiming a right to sue must identify some "agency action" that affects him in the specified fashion; it is judicial review "thereof' to which he is entitled. The meaning of "agency action" for purposes of § 702 is set forth in 5 U.S.C. § 551(13), see 5 U.S.C. § 701(b)(2) ("For the purpose of this chapter ... `agency action' ha[s] the meanin[g] given ... by section 551 of this title"), which defines the term as "the whole or a part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act," 5 U.S.C. § 551(13). When, as here, review is sought not pursuant to specific authorization in the substantive statute, but only under the general review provisions of the APA, the "agency action" in question must be "final agency action." See 5 U.S.C. § 704 ("Agency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court are subject to judicial review" (emphasis added). **3186 *883 131 Second, the party seeking review under § 702 must show that he has "suffer[ed] legal wrong" because of the challenged agency action, or is "adversely affected or aggrieved" by that action "within the meaning of a relevant statute." Respondent does not assert that it has suffered "legal wrong," so we need only discuss the meaning of "adversely affected or aggrieved ... within the meaning of a relevant statute." As an original matter, it might be thought that one cannot be WESTLAW Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk "adversely affected or aggrieved within the meaning" of a statute unless the statute in question uses those terms (or terms like them) -as some pre-APA statutes in fact did when conferring rights of judicial review. See, e.g., Federal Communications Act of 1934, § 402(b)(2), 48 Stat. 1093, as amended, 47 U.S.C. § 402(b)(6) (1982 ed.). We have long since rejected that interpretation, however, which would have made the judicial review provision of the APA no more than a restatement of pre-existing law. Rather, we have said that to be "adversely affected or aggrieved ... within the meaning" of a statute, the plaintiff must establish that the injury he complains of (his aggrievement, or the adverse effect upon him ) falls within the "zone of interests" sought to be protected by the statutory provision whose violation forms the legal basis for his complaint. See Clarke v. Securities Industry Assn., 479 U.S. 388, 396-397, 107 S.Ct. 750, 755-756, 93 L.Ed.2d 757 (1987). Thus, for example, the failure of an agency to comply with a statutory provision requiring "on the record" hearings would assuredly have an adverse effect upon the company that has the contract to record and transcribe the agency's proceedings; but since the provision was obviously enacted to protect the interests of the parties to the proceedings and not those of the reporters, that company would not be "adversely affected within the meaning" of the statute. Because this case comes to us on petitioners' motion for summary judgment, we must assess the record under the *884 standard set forth in Rule 56 of the Federal Rules of Civil Procedure. Rule 56(c) states that a party is entitled to summary judgment in his favor "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Rule 56(e) further provides: "When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party." [4[ As we stated in Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986), "the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Id., at 322, 106 S.Ct., at 2552. Where no such showing is made, "[t]he moving party is `entitled to a judgment as a matter of law' because the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof." Id., at 323, 106 S.Ct., at 2552. [5] [6] These standards are fully applicable when a defendant moves for summary judgment, in a suit brought under § 702, on the ground that the plaintiff has failed to show that he is "adversely affected or aggrieved by agency action within the meaning of a relevant statute." The burden is on the party seeking review under § 702 to set forth **3187 specific facts (even though they may be controverted by the Government) showing that he has satisfied its terms. *885 Sierra Club v. Morton, 405 U.S. 727, 740, 92 S.Ct. 1361, 1369, 31 L.Ed.2d 636 (1972). Celotex made clear that Rule 56 does not require the moving party to negate the elements of the nonmoving party's case; to the contrary, "regardless of whether the moving party accompanies its summary judgment motion with affidavits, the motion may, and should, be granted so long as whatever is before the district court demonstrates that the standard for the entry of summary judgment, as set forth in Rule 56(c), is satisfied." 477 U.S., at 323, 106 S.Ct., at 2553. 171 We turn, then, to whether the specific facts alleged in the two affidavits considered by the District Court raised WESTLAW Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk 20,962 a genuine issue of fact as to whether an "agency action" taken by petitioners caused respondent to be "adversely affected or aggrieved ... within the meaning of a relevant statute." We assume, since it has been uncontested, that the allegedly affected interests set forth in the affidavits -"recreational use and aesthetic enjoyment" -are sufficiently related to the purposes of respondent association that respondent meets the requirements of § 702 if any of its members do. Hunt v. Washington State Apple Advertising Comm 'n, 432 U.S. 333, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977). As for the "agency action" requirement, we think that each of the affidavits can be read, as the Court of Appeals believed, to complain of a particular "agency action" as that term is defined in § 551. The parties agree that the Peterson affidavit, judging from the geographic area it describes, must refer to that one of the BLM orders listed in the appendix to the complaint that appears at 49 Fed.Reg. 19904-19905 (1984), an order captioned W-6228 and dated April 30, 1984, terminating the withdrawal classification of some 4,500 acres of land in that area. See, e.g., Brief for Petitioners 8-10. The parties also appear to agree, on the basis of similar deduction, that the Erman affidavit refers to the BLM order listed in the appendix that appears at *886 47 Fed.Reg. 7232-7233 1982), an order captioned Public Land Order 6156 and dated February 18, 1982. We also think that whatever "adverse effect" or "aggrievement" is established by the affidavits was "within the meaning of the relevant statute"-i.e., met the "zone of interests" test. The relevant statute, of course, is the statute whose violation is the gravamen of the complaint -both the FLPMA and NEPA. We have no doubt that "recreational use and aesthetic enjoyment" are among the sorts of interests those statutes were specifically designed to protect. The only issue, then, is whether the facts alleged in the affidavits showed that those interests of Peterson and Erman were actually affected. The Peterson affidavit averred: "My recreational use and aesthetic enjoyment of federal lands, particularly those in the vicinity of South Pass -Green Mountain, Wyoming have been and continue to be adversely affected in fact by the unlawful actions of the Bureau and the Department. In particular, the South Pass -Green Mountain area of Wyoming has been opened to the staking of mining claims and oil and gas leasing, an action which threatens the aesthetic beauty and wildlife habitat potential of these lands." App. to Pet. for Cert. 191a. Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. 20,962 Erman's affidavit was substantially the same as Peterson's, with respect to all except the area involved; he claimed use of land "in the vicinity of Grand Canyon National Park, the Arizona Strip (Kanab Plateau), and the Kaibab National Forest." Id., at 187a. The District Court found the Peterson affidavit inadequate for the following reasons: "Peterson ... claims that she uses federal lands in the vicinity of the South Pass- **3188 Green Mountain area of Wyoming for recreational purposes and for aesthetic enjoyment and that her recreational and aesthetic enjoyment *887 has been and continues to be adversely affected as the result of the decision of BLM to open it to the staking of mining claims and oil and gas leasing.... This decision [W-6228] opened up to mining approximately 4500 acres within a two million acre area, the balance of which, with the exception of 2000 acres, has always been open to mineral leasing and mining.... There is no showing that Peterson's recreational use and enjoyment extends to the particular 4500 acres covered by the decision to terminate classification to the remainder of the two million acres affected by the termination. All she claims is that she uses lands 'in the vicinity.' The affidavit on its face contains only a bare allegation of injury, and fails to show specific facts supporting the affiant's allegation." 699 F.Supp., at 331 (emphasis in original). The District Court found the Erman affidavit "similarly flawed." "The magnitude of Erman's claimed injury stretches the imagination.... [T]he Arizona Strip consists of all lands in Arizona north and west of the Colorado River on approximately 5.5 million acres, an area one -eighth the size of the State of Arizona. Furthermore, virtually the entire Strip is and for many years has been open to uranium and other metalliferous mining. The revocation of withdrawal [in Public Land Order 6156] concerned only non -metalliferous mining in the western one-third of the Arizona Strip, an area possessing no potential for non -metalliferous mining." Id., at 332. The Court of Appeals disagreed with the District Court's assessment as to the Peterson affidavit (and thus found it unnecessary to consider the Erman affidavit) for the following reason: "If Peterson was not referring to lands in this 4500-acre affected area, her allegation of impairment to her use and enjoyment would be meaningless, or perjurious.... *888 [T]he trial court overlooks the fact that unless Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk Peterson's language is read to refer to the lands affected by the Program, the affidavit is, at best, a meaningless document. "At a minimum, Peterson's affidavit is ambiguous regarding whether the adversely affected lands are the ones she uses. When presented with ambiguity on a motion for summary judgment, a District Court must resolve any factual issues of controversy in favor of the non-moving party.... This means that the District Court was obliged to resolve any factual ambiguity in favor of NWF, and would have had to assume, for the purposes of summary judgment, that Peterson used the 4500 affected acres." 278 U.S.App.D.C., at 329, 878 F.2d, at 431. 181 That is not the law. In ruling upon a Rule 56 motion, "a District Court must resolve any factual issues of controversy in favor of the non-moving party" only in the sense that, where the facts specifically averred by that party contradict facts specifically averred by the movant, the motion must be denied. That is a world apart from "assuming" that general averments embrace the "specific facts" needed to sustain the complaint. As set forth above, Rule 56(e) provides that judgment "shall be entered" against the nonmoving party unless affidavits or other evidence "set forth specific facts showing that there is a genuine issue for trial." The object of this provision is not to replace conclusory allegations of the complaint or answer with conclusory allegations of an affidavit. Cf. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986) ("[T]he plaintiff could not rest on his allegations of a conspiracy to get to a jury without 'any significant probative evidence tending to support the complaint' "), quoting First National Bank of Ariz. v. Cities Service Co., 391 U.S. 253, 290, 88 S.Ct. 1575, 1593, 20 L.Ed.2d 569 (1968). Rather, the purpose of Rule 56 is to enable a party who believes there is no genuine dispute as to a specific fact essential to the **3189 other side's case to demand at least one *889 sworn averment of that fact before the lengthy process of litigation continues. At the margins there is some room for debate as to how "specific" must be the "specific facts" that Rule 56(e) requires in a particular case. But where the fact in question is the one put in issue by the § 702 challenge here -whether one of respondent's members has been, or is threatened to be, "adversely affected or aggrieved" by Government action -Rule 56(e) is assuredly not satisfied by averments which state only that one of respondent's members uses unspecified portions of an immense tract of territory, on some portions of which mining activity has occurred or probably will occur by virtue of the governmental action. It will not do to "presume" the WESTLAW Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 11CI S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. 20,962 missing facts because without them the affidavits would not establish the injury that they generally allege. That converts the operation of Rule 56 to a circular promenade: plaintiff s complaint makes general allegation of injury; defendant contests through Rule 56 existence of specific facts to support injury; plaintiff responds with affidavit containing general allegation of injury, which must be deemed to constitute averment of requisite specific facts since otherwise allegation of injury would be unsupported (which is precisely what defendant claims it is). Respondent places great reliance, as did the Court of Appeals, upon our decision in United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669, 93 S.Ct. 2405, 37 L.Ed.2d 254 (1973). The SCRAP opinion, whose expansive expression of what would suffice for § 702 review under its particular facts has never since been emulated by this Court, is of no relevance here, since it involved not a Rule 56 motion for summary judgment but a Rule 12(b) motion to dismiss on the pleadings. The latter, unlike the former, presumes that general allegations embrace those specific facts that are necessary to support the claim. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957). *890 IV We turn next to the Court of Appeals' altemative holding that the four additional member affidavits proffered by respondent in response to the District Court's briefing order established its right to § 702 review of agency action. A 191 It is impossible that the affidavits would suffice, as the Court of Appeals held, to enable respondent to challenge the entirety of petitioners' so-called "land withdrawal review program." That is not an "agency action" within the meaning of § 702, much less a "final agency action" within the meaning of § 704. The term "land withdrawal review program" (which as far as we know is not derived from any authoritative text) does not refer to a single BLM order or regulation, or even to a completed universe of particular BLM orders and regulations. It is simply the WESTLAW Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk name by which petitioners have occasionally referred to the continuing (and thus constantly changing) operations of the BLM in reviewing withdrawal revocation applications and the classifications of public lands and developing land use plans as required by the FLPMA. It is no more an identifiable "agency action" -much less a "final agency action" -than a "weapons procurement program" of the Department of Defense or a "drug interdiction program" of the Drug Enforcement Administration. As the District Court explained, the "land withdrawal review program" extends to, currently at least, "1250 or so individual classification terminations and withdrawal revocations." 699 F.Supp., at 332.2 **3190 *891 j10I Respondent alleges that violation of the law is rampant within this program -failure to revise land use plans in proper fashion, failure to submit certain recommendations to Congress, failure to consider multiple use, inordinate focus upon mineral exploitation, failure to provide required public notice, failure to provide adequate environmental impact statements. Perhaps so. But respondent cannot seek wholesale improvement of this program by court decree, rather than in the offices of the Department or the halls of Congress, where programmatic improvements are normally made. Under the terms of the APA, respondent must direct its attack against some particular "agency action" that causes it harm. Some statutes permit broad regulations to serve as the "agency action," and thus to be the object of judicial review directly, even before the concrete effects normally required for APA review are felt. Absent such a provision, however, a regulation is not ordinarily considered the type of agency action "ripe" for judicial review under the APA until the scope of the controversy has been reduced to more manageable proportions, and its factual components fleshed out, by some concrete action applying the regulation to the claimant's situation in a fashion that harms or threatens to harm him. (The major exception, of course, is a substantive rule which as a practical matter requires the plaintiff to adjust his conduct immediately. Such agency action is "ripe" for review at once, whether or not explicit statutory review apart from the APA is provided. See Abbott Laboratories v. Gardner, 387 U.S. 136, 152-154, 87 S.Ct. 1507, 1517-1518, 18 L.Ed.2d 681 (1967); Gardner v. Toilet Goods Assn., Inc., 387 U.S. 167, 171-173, 87 S.Ct. 1526, 1528-1530, 18 L.Ed.2d 704 (1967). Cf. Toilet *892 Goods Assn., Inc. v. Gardner, 387 U.S. 158, 164-166, 87 S.Ct. 1520, 1524-1526, 18 L.Ed.2d 697 (1967).) 1111 In the present case, the individual actions of the BLM identified in the six affidavits can be regarded as rules of general applicability (a "rule" is defined in the APA as agency action of "general or particular applicability and Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. 20,962 future effect," 5 U.S.C. § 551(4) (emphasis added)) announcing, with respect to vast expanses of territory that they cover, the agency's intent to grant requisite permission for certain activities, to decline to interfere with other activities, and to take other particular action if requested. It may well be, then, that even those individual actions will not be ripe for challenge until some further agency action or inaction more immediately harming the plaintiff occurs.' But it is at least entirely *893 certain that the flaws in the entire "program" -consisting principally of the many individual actions **3191 referenced in the complaint, and presumably actions yet to be taken as well -cannot be laid before the courts for wholesale correction under the APA, simply because one of them that is ripe for review adversely affects one of respondent's members.° *894 1121 The case -by -case approach that this requires is understandably frustrating to an organization such as respondent, which has as its objective across-the-board protection of our Nation's wildlife and the streams and forests that support it. But this is the traditional, and remains the normal, mode of operation of the courts. Except where Congress explicitly provides for our correction of the administrative process at a higher level of generality, we intervene in the administration of the laws only when, and to the extent that, a specific "final agency action" has an actual or immediately threatened effect. Toilet Goods Assn., 387 U.S., at 164-166, 87 S.Ct., at 1524-1526. Such an intervention may ultimately have the effect of requiring a regulation, a series of regulations, or even a whole "program" to be revised by the agency in order to avoid the unlawful result that the court discerns. But it is assuredly not as swift or as immediately far-reaching a corrective process as those interested in systemic improvement would desire. Until confided to us, however, more sweeping actions are for the other branches. 1131 The Court of Appeals' reliance upon the supplemental affidavits was wrong for a **3192 second reason: The District Court did not abuse its discretion in declining to admit them. Petitioners filed their motion for summary judgment in September 1986; respondent filed an opposition but did not submit any new evidentiary materials at that time. On June 27, 1988, after the case had made its way for the first time through the Court of Appeals, the District Court announced that it would hold a WESTLAW Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk hearing on July 22 on "the outstanding motions for summary judgment," which included petitioners' motion challenging respondent's § 702 standing. The hearing was held and, as noted earlier, the District Court issued an order directing respondent to file "a supplemental memorandum regarding *895 the issue of its standing to proceed." Record, Doc. No. 274. Although that plainly did not call for the submission of new evidentiary materials, it was in purported response to this order, on August 22, 1988, that respondent submitted (along with the requested legal memorandum) the additional affidavits. The only explanation for the submission (if it can be called an explanation) was contained in a footnote to the memorandum, which simply stated that "NWF now has submitted declarations on behalf of other members of NWF who have been injured by the challenged actions of federal defendants." Record, Doc. No. 278, p. 18, n. 21. In its November 4, 1988, ruling granting petitioners' motion, the District Court rejected the additional affidavits as "untimely and in violation of [the court's briefing] Order." 699 F.Supp., at 328, n. 3. Respondent's evidentiary submission was indeed untimely, both under Rule 56, which requires affidavits in opposition to a summary judgment motion to be served "prior to the day of the hearing," Fed.Rule Civ.Proc. 56(c), and under Rule 6(d), which states more generally that "[w]hen a motion is supported by affidavit, ... opposing affidavits may be served not later than 1 day before the hearing, unless the court permits them to be served at some other time." Rule 6(b) sets out the proper approach in the case of late filings: "When by these rules or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time, the court for cause shown may at any time in its discretion (1) with or without motion or notice order the period enlarged if request therefor is made before the expiration of the period originally prescribed or as extended by a previous order, or (2) upon motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect...." Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. 20,962 This provision not only specifically confers the "discretion" relevant to the present issue, but also provides the mechanism *896 by which that discretion is to be invoked and exercised. First, any extension of a time limitation must be "for cause shown." Second, although extensions before expiration of the time period may be "with or without motion or notice," any postdeadline extension must be "upon motion made," and is permissible only where the failure to meet the deadline "was the result of excusable neglect." Thus, in order to receive the affidavits here, the District Court would have had to regard the very filing of the late document as the "motion made" to file it;` it would have had to interpret "cause *897 shown" to mean merely **3193 "cause," since respondent made no "showing" of cause at all; and finally, it would have had to find as a substantive matter that there was indeed "cause" for the late filing, and that the failure to file on time "was the result of excusable neglect." This last substantive obstacle is the greatest of all. The Court of Appeals presumably thought it was overcome because "the papers on which the trial court relied were two years old by the time it requested supplemental memoranda" and because "there was no indication prior to the trial court's request that [respondent] should have doubted the adequacy of the affidavits it had already submitted." 278 U.S.App.D.C., at 331, 878 F.2d, at 433. We do not understand the relevance of the first point; the passage of so long a time as two years suggests, if anything, that respondent had more than the usual amount of time to prepare its response to the motion, and was more than moderately remiss in waiting until after the last moment. As to the suggestion of unfair surprise: A litigant is never justified in assuming that the court has made up its mind until the court expresses itself to that effect, and a litigant's failure to buttress its position because of confidence in the strength of that position is always indulged in at the litigant's own risk. In any case, whatever erroneous expectations respondent may have had were surely dispelled by the District Court's order in June 1988 announcing that the hearing on petitioners' motion would be held one month later. At least when that order issued, respondent was on notice that its right to sue was at issue, and that (absent proper motion) the time for filing any additional evidentiary materials was, at the latest, the day before the hearing. *898 Perhaps it is true that the District Court could have overcome all the obstacles we have described -apparent lack of a motion, of a showing, and of excusable neglect -to admit the affidavits at issue here. But the proposition that it was compelled to receive them -that it was an abuse of discretion to reject them -cannot be accepted. Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk '14I Respondent's final argument is that we should remand this case for the Court of Appeals to decide whether respondent may seek § 702 review of petitioners' actions in its own right, rather than derivatively through its members. Specifically, it points to allegations in the amended complaint that petitioners unlawfully failed to publish regulations, to invite public participation, and to prepare an environmental impact statement with respect to the "land withdrawal review program" as a whole. In order to show that it is a "person ... adversely affected or aggrieved" by these failures, it submitted to the District Court a brief affidavit (two pages in the record) by one of its vice presidents, Lynn A. Greenwalt, who stated that respondent's mission is to "inform its members and the general public about conservation issues" and to advocate improvements in laws and administrative practices "pertaining to the **3194 protection and enhancement of federal lands," App. to Pet. for Cert. 193a-194a; and that its ability to perform this mission has been impaired by petitioners' failure "to provide adequate information and opportunities for public participation with respect to the Land Withdrawal Review Program." Id., at 194a. The District Court found this affidavit insufficient to establish respondent's right to seek judicial review, since it was "conclusory and completely devoid of specific facts." 699 F.Supp., at 330. The Court of Appeals, having reversed the District Court on the grounds discussed above, did not address the issue. We agree with the District Court's disposition. Even assuming that the affidavit set forth "specific facts," *899 Fed.R.Civ.Proc. 56(e), adequate to show injury to respondent through the deprivation of information; and even assuming that providing information to organizations such as respondent was one of the objectives of the statutes allegedly violated, so that respondent is "aggrieved within the meaning" of those statutes; nonetheless, the Greenwalt affidavit fails to identify any particular "agency action" that was the source of these injuries. The only sentences addressed to that point are as follows: "NWF's ability to meet these obligations to its members has been significantly impaired by the failure of the Bureau of Land Management and the Department of the Interior to provide adequate ihr Lujan v. National Wildlife Federation. 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. the motion. Similarly, the requirement that opposing affidavits be submitted prior to the day of the hearing reflects the fact that the district court may rule on the summary judgment motion at the hearing or at any time thereafter; submission of affidavits prior to that day is thus essential if the moving party is to be assured the opportunity to respond at a time when a response is meaningful. The requirement also allows the district court to establish a deadline by which time all evidence and arguments must be submitted; thereafter, the court may deliberate with the assurance that no subsequent filings will alter the terms of the dispute. These are pressing concerns when the hearing on a summary judgment motion represents the parties' last opportunity to set forth their legal arguments. In the present case, however, the District Court concluded the July 22, 1988, hearing by requesting supplemental briefing on the issue of standing."-- NWF's supplemental affidavits, filed on August 22 as an attachment to its legal memorandum, were submitted at a time when the federal parties had ample opportunity to respond. (Indeed, the opportunity to respond here-10 days -was far greater than would have been the case if NWF had filed (timely) affidavits the day before the hearing and no *912 supplemental briefing had been allowed.) The affidavits, moreover, were filed well before the time when the case was to be taken under advisement. The record in this case is voluminous, currently filling six large boxes; consideration of five more affidavits would not have added significantly to the complexity of the issues before the District Court. Under these circumstances, submission of the supplemental affidavits neither disserved the purposes of the Rule nor prejudiced the federal parties in any respect. The District Court discussed none of these factors in explaining its refusal to consider the supplemental affidavits. Indeed, the District Court offered no justification at all for its action beyond the assertion that the affidavits were untimely." Similarly, the Court **3201 today fails to assess the District Court's action by reference to the excuse for NWF's untimely filing or the absence of prejudice to the federal parties. The District Court and today's majority fail to recognize the guiding principle of the Federal Rules of Civil Procedure, the principle that procedural rules should be construed pragmatically, so as to ensure the just and efficient resolution of legal disputes. Some provisions of the Rules strip the district courts of discretion, and the courts have no choice but to enforce these requirements with scrupulous precision." But where the Rules expressly confer a range of *913 discretion, a district court may abuse its authority by refusing to take account of Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk 20,962 equitable concerns, even where its action violates no express command. In my view, such an abuse of discretion occurred here. III In Part IV -A, ante, at 3189, the majority sets forth a long and abstract discussion of the scope of relief that might have been awarded had the Federation made a sufficient showing of injury from environmental damage to a particular tract of land. Since the majority concludes in other portions of its opinion that the Federation lacks standing to challenge any of the land -use decisions at issue here, it is not clear to me why the Court engages in the hypothetical inquiry contained in Part IV -A. In any event, I agree with much of the Court's discussion, at least in its general outline. The Administrative Procedure Act permits suit to be brought by any person "adversely affected or aggrieved by agency action." 5 U.S.C. § 702. In some cases the "agency action" will consist of a rule of broad applicability; and if the plaintiff prevails, the result is that the rule is invalidated, not simply that the court forbids its application to a particular individual. Under these circumstances a single plaintiff, so long as he is injured by the rule, may obtain "programmatic" relief that affects the rights of parties not before the court. On the other hand, if a generally lawful policy is applied in an illegal manner on a particular occasion, one who is injured is not thereby entitled to challenge other applications of the rule. Application of these principles to the instant case does not turn on whether, or how often, the Bureau's land -management policies have been described as a "program."" In one sense, *914 of course, there is no question that a "program" exists. Everyone associated with this lawsuit recognizes that the BLM, over the past decade, has attempted to develop and implement a comprehensive scheme for the termination of classifications and withdrawals. The real issue is whether the actions and omissions that NWF contends are illegal are themselves part of a plan or policy. For example: If the agency had published a regulation stating that an environmental impact statement (EIS) should never be developed prior to the termination of a classification or withdrawal, NWF could challenge the regulation (which would constitute an "agency action"). If the reviewing court then held that the statute required a pretermination EIS, the relief (invalidation of the rule) would directly Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. 20,962 4 5 2 Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk agency action ripe for review will have occurred; nor any doubt that, in the course of an otherwise proper court challenge, affiant Peterson, and through her respondent, would be able to call into question the validity of the classification order authorizing the permit. However, before the grant of such a permit, or (when it will suffice) the filing of a notice to engage in mining activities, or (when only "negligible disturbance" will occur) actual mining of the land, it is impossible to tell where or whether mining activities will occur. Indeed, it is often impossible to tell from a classification order alone whether mining activities will even be permissible. As explained in the uncontested affidavit of the BLM's Assistant Director of Land Resources: "The lands may be subject to another withdrawal of comparable scope or they may be subject to classification segregations tantamount to such a withdrawal. In that case, the lands would not be opened to the operation of the public land laws so that the removal of one of the withdrawals has no practical effect. Another reason why there may not be any change is that before the revocation occurred, the lands may have been transferred into private ownership. Consequently, the withdrawal revocation amounts to nothing more than a paper transaction.... In the alternative, a revoked withdrawal may open the lands to the operation of the public land and mineral laws.... Some withdrawal revocations are made without prior knowledge as to what subsequent disposition may be made of the lands. After the lands are opened, they might be transferred out of federal ownership by sale, exchange, or some other discretionary mode of disposal, not anticipated when the withdrawal was revoked. These subsequent discretionary actions require separate and independent decisionmaking that, obviously, are divorced from the prior revocation decision. Environmental and other management concerns and public participation are taken into account in relation to the post -revocation decisionmaking." Affidavit of Frank Edwards, Aug. 18, 1985, App. 61-62. Nothing in this is contrary to our opinion in Automobile Workers v. Brock, 477 U.S. 274, 106 S.Ct. 2523, 91 L.Ed.2d 228 (1986), cited by the Court of Appeals. That opinion did not discuss, and the respondent Secretary of Labor did not rely upon, the requirements of 5 U.S.C. § 702 and our ripeness jurisprudence in cases such as Abbott Laboratories v. Gardner, 387 U.S. 136, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967); Gardner v. Toilet Goods Assn., Inc., 387 U.S. 167, 87 S.Ct. 1526, 18 L.Ed.2d 704 (1967); and Toilet Goods Assn., Inc. v. Gardner, 387 U.S. 158, 87 S.Ct. 1520, 18 L.Ed.2d 697 (1967). The only challenge made and decided, with respect to the individuals' right to sue, relied upon 19 U.S.C. § 2311(d) (1982 ed.), which according to the Secretary of Labor made entertainment of that suit " 'contrary to Congress's incorporation of the state system into the administration of the Trade Act, and an affront to the integrity and authority of the state courts.' " 477 U.S., at 283, 106 S.Ct., at 2529, quoting Brief for Respondent in Automobile Workers, O.T. 1985, No. 84-1777, p. 16. The dissent asserts that a footnote in respondent's reply memorandum to the District Court was a "motion" within the meaning of Rule 6(b)(2), and was so obviously so that the District Court committed reversible error in failing to construe it that way. Post, at 3199-3200 and n. 10. We cannot agree. Rule 6(b) establishes a clear distinction between "requests" and "motions," and the one cannot be converted into the other without violating its provisions -or at least cannot be converted on the basis of such lax criteria that conversion would be not only marginally permissible but positively mandatory in the present case. Rule 6(b)(1) allows a court ("for cause shown" and "in its discretion") to grant a "request" for an extension of time, whether the request is made "with or without motion or notice," provided the request is made before the time for filing expires. After the time for filing has expired, however, the court (again "for cause shown" and "in its discretion") may extend the time only "upon motion." To treat all postdeadline "requests" as "motions" (if indeed any of them can be treated that way) would eliminate the distinction between predeadline and postdeadline filings that the Rule painstakingly draws. Surely the postdeadline "request," to be even permissibly treated as a "motion," must contain a high degree of formality and precision, putting the opposing party on notice that a motion is at issue and that he therefore ought to respond. The request here had not much of either characteristic. As for formality, it was not even made in a separate filing or in a separate appearance before the court, but was contained in a single sentence at the end of the first paragraph of one of the 18 single-spaced footnotes in a 20-page memorandum of law. Our district judges must read footnotes with new care if they are to be reversed for failing to recognize motions buried in this fashion. And as for precision, the request not only did not ask for any particular extension of time (7 days, 30 days), it did not specifically ask for an extension of time at all, but merely said that respondent "should be given adequate opportunity to supplement the record." Even this, moreover, was not requested (much less moved for) unconditionally, but only "[i]f the court intends to reverse its prior ruling [regarding NWF standing]." Record, Doc. No. 294, p. 17, n. 16. We think it quite impossible to agree with the dissent that the district judge not only might treat this request as a motion, but that he was compelled to do so. Prior to the District Court's entry of the preliminary injunction, 406 mining claims had been staked in the South Pass -Green Mountain area alone. App. 119. An exhibit filed by the federal parties indicated that over 7,200 claims had been filed in 12 Western States. Exh. 1 to Affidavit of Joseph Martyak (Apr. 11, 1986). A Bureau of Land Management (BLM) draft of a Resource Management Plan/Environmental Impact Statement for the Lander, Wyo., Resource Area stated: "In the Green Mountain Management Unit ... significant long-term impacts to elk and mule deer herds could occur from habitat losses caused by oil and gas activities over the next 60 years.... In the WESTLAW oho Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. 20,962 3 4 5 6 7 8 9 Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk South Pass Management Unit, significant acreages of lodgepole pine forest and aspen conifer woodland habitat types could be disturbed, which would cause significant long-term impacts to moose and elk.... If gold mining activities continued to erode these high -value habitats, trout fisheries, the Lander moose herd, the beaver pond ecosystems, and the populations of many other wildlife species would suffer significant cumulative negative effects." Draft RMP/EIS pp. 226-228 (Exh. 3 to Defendant -Intervenors' Reply to Plaintiffs Opposition to Defendants' Motions for Stay Pending Appeal (May 14, 1986)). A BLM Mineral Report issued June 17, 1982, concluded that mining and associated activities "could have an adverse impact on crucial moose habitat, deer habitat, some elk habitat, and a variety of small game and bird species. Improvements at campgrounds, as well as land in the immediate vicinity, could either be damaged or destroyed. These activities could make it difficult for the BLM to manage the forest production and harvesting in the South Pass area. Historical and cultural resources which have and have not been identified could be either damaged or destroyed." Defendant -Intervenors' Exh. 7 (attached as Appendix 1 to Plaintiff National Wildlife Federation's Statement of Points and Authorities in Support of Its Standing To Proceed (Aug. 22, 1988)). See, e.g., May v. Department of Air Force, 777 F.2d 1012, 1016 (CA5 1985); First Commodity Traders, Inc. v. Heinold Commodities, Inc., 766 F.2d 1007, 1011 (CA7 1985); Maldonado v. Ramirez, 757 F.2d 48, 51 (CA3 1985); Galindo v. Precision American Corp., 754 F.2d 1212, 1216 (CA5 1985). See, e.g., App. 123-139 (declaration of Jack Kelly). The areas harmed or threatened by mining and associated activities may extend well beyond the precise location where mining occurs. See n. 2, supra. Five supplemental affidavits were filed. The first was submitted by Peggy Kay Peterson, in clarification of her earlier affidavit: "A substantial portion of the lands which I use ... are identical to those lands" newly opened to mining in the South Pass -Green Mountain area. Peterson Supplemental Affidavit, App. in No. 88-5397 (CADC), p. 356. Ms. Peterson also asserted that "U.S. Energy Corporation has filed a mine permit application with the Bureau and Department, (U.S. Energy Application, TFN 2 4/86), which includes a proposal to mine a significant portion of the federal lands which I use for recreational purposes and aesthetic enjoyment." Id., at 355-356. The other affiants were NWF members David Doran, Merlin McColm, Stephen Blomeke, and Will Ouellette. These individuals identified termination orders that had opened to mining particular tracts of land used by the affiants for recreation and aesthetic enjoyment. The federal parties do not concede that the supplemental affidavits established with certainty the Federation's standing; they contend that further discovery might show the affiants' allegations to be untrue. The federal parties do concede, however, that the supplemental affidavits were not facially deficient. Tr. of Oral Arg. 19. Rule 56(c) provides that when a motion for summary judgment is filed, the "adverse party prior to the day of hearing may serve opposing affidavits." Under Rule 56(e), the district court "may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits." Rule 6(d) states: "When a motion is supported by affidavit, ... opposing affidavits may be served not later than 1 day before the hearing, unless the court permits them to be served at some other time." The district court's authority to permit service "at some other time" is governed in tum by Rule 6(b), which provides that when an act is required to be performed by a specified time, the district court may "upon motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect." See 4A C. Wright & A. Miller, Federal Practice and Procedure § 1165, p. 475 (2d ed. 1987) (Rule 6(b) "gives the court extensive flexibility to modify the fixed time periods found throughout the rules, whether the enlargement is sought before or after the actual termination of the allotted time"). The Court of Appeals' discussion of standing occurred in the context of a motion to dismiss and therefore, by itself, might not assure NWF that it had made a sufficient showing to withstand a motion for summary judgment. But the Court of Appeals, like the District Court before it, also held that the Federation's showing of injury, as reflected in the Peterson and Erman affidavits, provided an adequate basis for a preliminary injunction. As the second Court of Appeals panel concluded, "the burden of establishing irreparable harm to support a request for a preliminary injunction is, if anything, at least as great as the burden of resisting a summary judgment motion on the ground that the plaintiff cannot demonstrate 'injury -in -fact.' " National Wildlife Federation v. Burford, 278 U.S.App.D.C. 320, 330, 878 F.2d 422, 432 (1989) (emphasis omitted). When the first panel affirmed the District Court's entry of a preliminary injunction, Judge Williams' separate opinion, concurring and dissenting, stated that "the specificity required for standing allegations to secure a preliminary injunction will normally be no less than that required on a motion for summary judgment." 266 U.S.App.D.C., at 264, 835 F.2d, at 328. At the hearing itself Fred R. Disheroon, the federal parties' attorney, argued at length on other points before turning to WESTLAW Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. 20,962 10 11 12 13 Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk the issue of standing. He began that portion of his argument by observing that "perhaps the court doesn't want to hear me argue standing, but I think it is imperative that I address that in the context of this case." Tr. of Motions Hearing 43 (July 22, 1988). The supplemental affidavits were submitted as an attachment to the supplemental legal memorandum on standing requested by the District Court. At the time of their submission, NWF stated only that "NWF now has submitted declarations on behalf of other members of NWF who have been injured by the challenged actions of federal defendants." Plaintiff National Wildlife Federation's Statement of Points and Authorities in Support of Its Standing To Proceed 18, n. 21 (Aug. 22, 1988). However, in its reply memorandum on the issue, NWF addressed the contention of the federal parties and the defendant -intervenor that the affidavits should be ignored as untimely filed. NWF stated: "Plaintiff heretofore, has relied on the courts previous rulings on NWF's standing. In its motion for a protective order against additional discovery, NWF argued that its standing had already been proven on the basis of the affidavits of Mr. Greenwalt, Ms. Peterson, and Mr. Erman. The court agreed and entered the requested protective order. If the court intends to reverse its prior ruling, then NWF respectfully requests that it should be given adequate opportunity to supplement the record." Plaintiff National Wildlife Federation's Reply Memorandum in Support of Its Standing To Proceed 17, n. 16 (Sept. 14, 1988). The Federation also noted that Circuit precedent permitted the filing of supplemental affidavits on standing issues, even on appeal. Ibid., citing National Wildlife Federation v. Hodel, 268 U.S.App.D.C. 15, 24, 839 F.2d 694, 703 (1988). NWF offered the further explanation: "Ms. Peterson has supplemented her affidavit to include new information regarding a mine application which has been filed by U.S. Energy Corporation that includes a proposal to mine lands within the area of South Pass/Green Mountain previously closed to mining. For the record, NWF initially was told by officials of the Bureau of Land Management that the U.S. Energy mine application did not include any lands covered by the court's preliminary injunction. Otherwise, NWF would have supplemented Ms. Peterson's affidavit earlier." Reply memorandum, at 12-13, n. 13. Along with its Reply Memorandum, NWF submitted an additional filing entitled Plaintiff National Wildlife Federation's Memorandum in Opposition to Defendant -Intervenors' Motion To Strike Plaintiffs Supplementation of the Record (Sept. 14, 1988). That filing stated: "For the reasons stated in [the reply memorandum] at page 17, n. 16, plaintiff requests that defendant -intervenors' motion to strike be denied." (In light of this separate submission, addressed solely to the question whether the supplemental affidavits should be considered, and expressly referring to n. 16 of the reply memorandum, it is difficult to fathom the Court's assertion that NWF's request was "buried" in the Federation's filings. See ante, at 3192-3193, n. 5.) This separate filing, in conjunction with the reply memorandum, satisfied Rule 6(b)'s requirement that the request for enlargement of time be made "upon motion." Though neither of these filings was expressly denominated a "motion," they met the requirements of Rule 7(b): They were submitted in writing, were signed by counsel, "state [d] with particularity the grounds therefor," and unambiguously "set forth the relief ... sought." See Campos v. LeFevre, 825 F.2d 671, 676 (CA2 1987) ("[N]o particular form of words is necessary to render a filing a 'motion.' Any submission signed by a party that may fairly be read as a request to the district court to exercise its discretionary powers ... should suffice"), cert. denied, 484 U.S. 1014, 108 S.Ct. 718, 98 L.Ed.2d 667 (1988); Smith v. Danyo. 585 F.2d 83, 86 (CA3 1978) ("Rule 7(b) requires no more than that ... a motion 'state with particularity the grounds' upon which it is based. Plainly, an affidavit which is filed to obtain an order disqualifying a judge satisfies the requirements of Rule 7(b).... The ... failure to type in the word 'motion' above the word 'affidavit' in no way detracts from the notice which the affidavit gave of the nature of the application"). Cf. Snyder v. Smith, 736 F.2d 409, 419 (CA7) ("The Federal Rules are to be construed liberally so that erroneous nomenclature in a motion does not bind a party at his peril"), cert. denied, 469 U.S. 1037, 105 S.Ct. 513, 83 L.Ed.2d 403 (1984); Miller v. Transamerican Press, Inc., 709 F.2d 524, 527 (CA9 1983) ("The court will construe [a motion], however styled, to be the type proper for the relief requested"); 2A J. Moore & J. Lucas, Moore's Federal Practice ¶ 7.05, pp. 7-16 to 7-17 (1989) ("Mt is the motion's substance, and not merely its linguistic form, that determines its nature and legal effect"). Accord, Allied Chemical Corp. v. Mackay, 695 F.2d 854, 856 (CA5 1983) ("Rule 56(c) does not require an oral hearing in open court. Rather, it contemplates notice to the party opposing the motion and an adequate opportunity to respond to the movant's arguments"); Bratt v. International Business Machines Corp., 785 F.2d 352, 363 (CA1 1986). The District Court subsequently established a schedule for the supplemental briefing. NWF was requested to file its opening memorandum by August 22, 1988; the federal parties and intervenors were to file memoranda in opposition by September 1; and NWF's reply was due by September 14. Order of July 27, 1988. The District Court mentioned these affidavits in a single footnote: "Plaintiff, in addition to its memorandum filed August 22, 1988 has submitted additional evidentiary material, including declarations from four of its members. These submissions are untimely and in violation of our Order. We decline to consider them. See Federal Defendants' Reply to Plaintiffs Statement of Points and Authorities in Support of Its Standing to Proceed, at 1 n. 1." National Wildlife Federation v. Burford, 699 F.Supp. 327, 328-329, n. 3 (D.C.1988). WESTLAW Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. 20,962 14 15 16 Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk Rule 6(b), for example, which generally gives the district court broad authority to grant enlargements of time, establishes the limitation that the court "may not extend the time for taking any action under Rules 50(b) and (c)(2), 52(b), 59(b), (d) and (e), 60(b), and 74(a), except to the extent and under the conditions stated in them." The term "withdrawal review program" repeatedly has been used in BLM documents. See, e.g., Plaintiffs Exhs. 1, 3, 10, 11, 15, 18, 19 (filed July 15, 1985). At oral argument on the cross -motions for summary judgment, counsel for the federal parties acknowledged: "It is true, BLM referred to this review process as a land withdrawal review program." Tr. of Motion Hearing 40 (July 22, 1988). Counsel went on to say, "but I suggest that using a word, calling it a program, doesn't make a program in the sense that it is being challenged here." Ibid. That assertion, though inelegant, seems essentially correct: An agency's terminology is not decisive in determining whether an alleged illegality is systemic or site -specific. The majority also suggests that the agency actions challenged in this suit may not be ripe for review. See ante, at 3190-3191. Since the issue of ripeness has not been briefed or argued in this Court, nor passed on by the courts below, I need not address it. I do note, however, that at the outset of this case the federal parties made precisely the opposite argument, asserting that a preliminary injunction should be denied on the ground that NWF's claims were barred by !aches. The federal parties contended: "The Federation offers no explanation why, despite its detailed knowledge of BLM's revocation and termination activities, it has waited so long to institute litigation." Defendants' Memorandum in Opposition to Plaintiffs Motion for Preliminary Injunction 26 (Aug. 22, 1985). I also decline to address the adequacy of the affidavit submitted by Lynn Greenwalt, since the Court of Appeals did not pass on that issue. End of Document t3 2018 Thomson Reuters. No claim to original U.S. Government Works. WESTLAW Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. 20,962 KeyCite Yellow Flag - Negative Treatment Not Followed on State Law Grounds Levis v. Konitzky, Me., November 17, 2016 110 S.Ct. 3177 Supreme Court of the United States Manuel LUJAN, Jr., Secretary of the Interior, et al., Petitioners v. NATIONAL WILDLIFE FEDERATION, et al. No. 89-640. Argued April 16, 1990. Decided June 27, 1990. Synopsis National wildlife group filed action challenging the "land withdrawal review program" of the Bureau of Land Management. The United States District Court for the District of Columbia, John H. Pratt, J., 699 F.Supp. 327, granted summary judgment against the group. Appeal was taken. The Court of Appeals for the District of Columbia, 878 F.2d 422, reversed and remanded. Certiorari was granted. The Supreme Court, Justice Scalia, held that: (1) affidavits which were filed by members of the group and which indicated the members' recreational use and aesthetic enjoyment of land "in the vicinity" of land covered by agency actions under the Bureau's "land withdrawal review program" were insufficient to show that the affiants' interests were actually affected; (2) the "land withdrawal review program" was not "agency action" or "final agency action," within meaning of the Administrative Procedure Act; and (3) affidavit, which indicated that the group's ability to fulfill its informational and advocacy functions was "adversely affected" by alleged failure of the Bureau to provide adequate information and opportunities for public participation with respect to the "land withdrawal review program" failed to identify any particular "agency action" that was the source of the group's alleged injuries. Judgment of the Court of Appeals reversed. Justice Blackmun, dissented and filed opinion in which Justices Brennan, Marshall, and Stevens joined. WESTLAW West Headnotes (14) 111 121 131 Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk Administrative Law and Procedure Persons aggrieved or affected Administrative Law and Procedure 4-Decisions and Acts Reviewable In order to obtain judicial review under the general review provisions of the Administrative Procedure Act, the person claiming right to sue must identify some agency action that affects him in specified fashion and must show that he has suffered legal wrong because of the challenged agency action or is adversely affected or aggrieved by that action within the meaning of a relevant statute. 5 U.S.C.A. § 702. 179 Cases that cite this headnote Administrative Law and Procedure 6.+Finality; ripeness When judicial review of agency action is sought, not pursuant to specific authorization in substantive statute, but only under general review provisions of the Administrative Procedure Act as person suffering legal wrong because of challenged agency action or adversely affected or aggrieved by that action, the "agency action" must be final agency action. 5 U.S.C.A. §§ 551(13), 701(b)(2), 702, 704. 294 Cases that cite this headnote Administrative Law and Procedure Persons aggrieved or affected To be adversely affected or aggrieved within meaning of statute, for purposes of obtaining judicial review of agency action under general review provisions of the Administrative Procedure Act, plaintiff must establish that the injury he complains of (his aggrievement, or the adverse affect upon him) falls within the "zone Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. 20,962 of interests" sought to be protected by the statutory provision whose violation forms the legal basis for his complaint. 5 U.S.C.A. § 702. 312 Cases that cite this headnote 171 141 151 Federal Civil Procedure ...Lack of cause of action or defense Summary judgment must be entered, after adequate time for discovery and upon motion, against party who fails to make showing sufficient to establish the existence of element essential to that party's case on which that party will bear burden of proof at trial. Fed.Rules Civ.Proc.Rule 56(c), 28 U.S.C.A. 1636 Cases that cite this headnote Federal Civil Procedure ita•Burden of proof In order to avoid summary judgment, party who is seeking judicial review of agency action under the general review provision of the Administrative Procedure Act has burden to set forth specific facts, even though they may be controverted by the government, showing that he has satisfied its terms. 5 U.S.C.A. § 702; Fed.Rules Civ.Proc.Rule 56, 28 U.S.C.A. 181 161 1105 Cases that cite this headnote Federal Civil Procedure 6-Matters Affecting Right to Judgment Summary judgment rule does not require movant to negate elements of nonmovant's case; rather, regardless of whether movant accompanies its summary judgment motion with affidavits, the motion may, and should, be granted so long as whatever is before the district court demonstrates that standard for entry of summary judgment is satisfied. Fed.Rules Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk Civ.Proc.Rules 56, 56(c), 28 U.S.C.A. 1205 Cases that cite this headnote Administrative Law and Procedure -Persons aggrieved or affected Environmental Law Organizations, associations, and other groups Affidavits, which were filed by members of national wildlife group and which indicated the members' recreational use and aesthetic enjoyment of land "in the vicinity" of land covered by agency actions under the "land withdrawal review program" of the Bureau of Land Management, were insufficient to show that the members' interests were actually affected, for purposes of the general review provisions of the Administrative Procedure Act; affidavits indicated only that the members used unspecified portions of immense tract of territory, on some portions of which mining activity had occurred or probably would occur by virtue of the governmental action, and missing facts could not be "presumed" to establish the injury that was generally alleged. 5 U.S.C.A. § 702; Fed.Rules Civ.Proc.Rule 56, 28 U.S.C.A. 682 Cases that cite this headnote Federal Civil Procedure 4Presumptions When ruling on summary judgment motion, district court must resolve any factual issues of controversy in favor of nonmovant only in the sense that, where facts specifically averred by nonmovant contradict facts specifically averred by movant, motion must be denied. Fed.Rules Civ.Proc.Rule 56, 28 U.S.C.A. 3753 Cases that cite this headnote WESTLAW Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. 20,962 191 [101 Administrative Law and Procedure 6-Finality; ripeness Environmental Law .-Administrative Decisions or Actions Reviewable in General "Land withdrawal review program" of the Bureau of Land Management was not "agency action" for purposes of general review provisions of the Administrative Procedure Act, much less "final agency action," within meaning of the Act; term "land withdrawal review program" did not refer to single Bureau order or regulation, or even to completed universe of particular Bureau orders and regulations, but, rather, referred to the continuing and thus constantly changing operations of the Bureau in reviewing withdrawal revocation applications and the classifications of public lands and developing land use plans as required by the Federal Land Policy and Management Act. Federal Land Policy and Management Act of 1976, § 102 et seq., 43 U.S.C.A. § 1701 et seq.; 5 U.S.C.A. §§ 702, 704. 141 Cases that cite this headnote Administrative Law and Procedure ."Finality; ripeness Substantive rule which as a practical matter requires plaintiff to adjust his conduct immediately is agency action "ripe" for judicial review at once, whether or not explicit statutory review apart from the Administrative Procedure Act is provided. 5 U.S.C.A. §§ 702, 704. 69 Cases that cite this headnote Administrative Law and Procedure ...finality; ripeness Environmental Law -Administrative Decisions or Actions Reviewable in General Flaws in the entire "land withdrawal review WESTLAW 1121 1131 1141 Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk program" of the Bureau of Land Management cannot be laid before the courts for wholesale correction under the Administrative Procedure Act simply because one of them that is ripe for review adversely affects one member of national wildlife group. 20 Cases that cite this headnote Administrative Law and Procedure :-Finality; ripeness Except where Congress explicitly provides for correction of the administrative process at higher level of generality, the Supreme Court intervenes in the administration of the laws only when, and to the extent that, specific "final agency action" has actual or immediately threatened effect. 5 U.S.C.A. §§ 702, 704. 65 Cases that cite this headnote Federal Civil Procedure Affidavits Declining to admit supplemental affidavits, which were filed in response to district court's briefmg order following the summary judgment hearing, was not abuse of discretion, in action brought under the general review provisions of the Administrative Procedure Act; the affidavits were untimely under applicable rules, and although the district court could perhaps have overcome the apparent lack of a motion, of a showing of cause, and of excusable neglect to admit the affidavits, it was not compelled to receive them. Fed.Rules Civ.Proc.Rules 6(b, d), 56, 56(c), 28 U.S.C.A.; 5 U.S.C.A. § 702. 298 Cases that cite this headnote Administrative Law and Procedure Persons aggrieved or affected Environmental Law Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. 20,962 Acting Solicitor General Roberts argued the cause for petitioners. With him on the briefs were Assistant Attorney General Stewart, Deputy Solicitor General Wallace, Lawrence S. Robbins, Peter R. Steenland, Jr., Anne S. Almy, Fred R. Disheroon, and Vicki L. Plaut. E. Barrett Prettyman, Jr., argued the cause for respondents. With him on the brief were John C. Keeney, Jr., Kathleen C. Zimmerman, and Norman L. Dean, Jr. William Perry Pendley filed a brief for respondents Mountain States Legal Foundation et al. * * Briefs of amici curiae urging reversal were filed for the American Farm Bureau Federation et al. by Kathryn A. Oberly and John J. Rademacher; for the American Mining Congress by Jerry L. Haggard and Gerrie Apker Kurtz; for the National Cattlemen's Association et al. by Constance E. Brooks; for the Pacific Legal Foundation by Ronald A. Zumbrun, Robin L. Rivett, and James S. Burling; and for the Washington Legal Foundation et al. by Terence P. Ross, Daniel J. Popeo, and Richard A. Samp. Briefs of amici curiae urging affirmance were filed for the State of California et al. by John K. Van de Kamp, Attorney General of California, Andrea Sheridan Ordin, Chief Assistant Attorney General, and Craig C. Thompson, Susan L. Durbin, Clifford L. Rechtschaffen, and Nilda M. Mesa, Deputy Attorney Generals, and for the Attorneys General for their respective States as follows: Robert A. Butterworth of Florida, Lacy H. Thornburg of North Carolina, Anthony J Celebrezze, Jr., of Ohio, Jeffrey L. Amestoy of Vermont, and Joseph B. Meyer of Wyoming; and for the Wilderness Society et al. by Bruce J. Ennis, Jr. Opinion *875 Justice SCALIA delivered the opinion of the Court. In this case we must decide whether respondent, the National Wildlife Federation **3182 (hereinafter respondent), is a proper party to challenge actions of the Federal Government relating to certain public lands. I Respondent filed this action in 1985 in the United States District Court for the District of Columbia against Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk petitioners the United States Department of the Interior, the Secretary of the Interior, and the Director of the Bureau of Land Management (BLM), an agency within the Department. In its amended complaint, respondent alleged that petitioners had violated the Federal Land Policy and Management Act of 1976 (FLPMA), 90 Stat. 2744, 43 U.S.C. § 1701 et seq. (1982 ed.), the National Environmental Policy Act of 1969 (NEPA), 83 Stat. 852, 42 U.S.C. § 4321 et seq., and § 10(e) of the Administrative Procedure Act (APA), 5 U.S.C. § 706, in the course of administering what the complaint called the "land withdrawal review program" of the BLM. Some background information concerning that program is necessary to an understanding of this dispute. In various enactments, Congress empowered United States citizens to acquire title to, and rights in, vast portions of federally owned land. See, e.g., Rev.Stat. § 2319, 30 U.S.C. § 22 et seq. (Mining Law of 1872); 41 Stat. 437, as amended, 30 U.S.C. § 181 et seq. (Mineral Leasing Act of 1920). Congress also provided means, however, for the Executive to remove public lands from the operation of these statutes. The Pickett Act, 36 Stat. 847, 43 U.S.C. § 141 (1970 ed.), repealed, 90 Stat. 2792 (1976), authorized the President "at any time in his discretion, temporarily [to] withdraw from settlement, location, sale, or entry any of the *876 public lands of the United States ... and reserve the same for water -power sites, irrigation, classification of lands, or other public purposes...." Acting under this and under the Taylor Grazing Act of 1934, ch. 865, 48 Stat. 1269, as amended, 43 U.S.C. § 315f, which gave the Secretary of the Interior authority to "classify" public lands as suitable for either disposal or federal retention and management, President Franklin Roosevelt withdrew all unreserved public land from disposal until such time as they were classified. Exec. Order No. 6910, Nov. 26, 1934; Exec. Order No. 6964, Feb. 5, 1935. In 1936, Congress amended § 7 of the Taylor Grazing Act to authorize the Secretary of the Interior "to examine and classify any lands" withdrawn by these orders and by other authority as "more valuable or suitable" for other uses "and to open such lands to entry, selection, or location for disposal in accordance with such classification under applicable public -land laws." 49 Stat. 1976, 43 U.S.C. § 315f (1982 ed.). The amendment also directed that "[s]uch lands shall not be subject to disposition, settlement, or occupation until after the same have been classified and opened to entry." Ibid. The 1964 classification and multiple use Act, 78 Stat. 986, 43 U.S.C. §§ 1411-1418 (1970 ed.) (expired 1970), gave the Secretary further authority to classify lands for the purpose of either disposal or retention by the Federal Government. WESTt.AW 4.„ Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. Management of the public lands under these various laws became chaotic. The Public Land Law Review Commission, established by Congress in 1964 to study the matter, 78 Stat. 982, determined in 1970 that "virtually all" of the country's public domain, see Public Land Law Review Commission, One Third of the Nation's Land 52 (1970)-about one-third of the land within the United States, see id., at 19-had been withdrawn or classified for retention; that it was difficult to determine "the extent of existing Executive withdrawals and the degree to which withdrawals overlap each other," id., at 52; and that there were inadequate records to show the purposes *877 of withdrawals and the permissible public uses. Ibid. Accordingly, it recommended that "Congress should provide for a careful review of (1) all Executive withdrawals and reservations, and (2) BLM retention and disposal classifications under the Classification and Multiple Use Act of 1964." Ibid. **3183 In 1976, Congress passed the FLPMA, which repealed many of the miscellaneous laws governing disposal of public land, 43 U.S.C. § 1701 et seg. (1982 ed.), and established a policy in favor of retaining public lands for multiple use management. It directed the Secretary to "prepare and maintain on a continuing basis an inventory of all public lands and their resource and other values," § 1711(a), required land use planning for public lands, and established criteria to be used for that purpose, § 1712. It provided that existing classifications of public lands were subject to review in the land use planning process, and that the Secretary could "modify or terminate any such classification consistent with such land use plans." § 1712(d). It also authorized the Secretary to "make, modify, extend or revoke" withdrawals. § 1714(a). Finally it directed the Secretary, within 15 years, to review withdrawals in existence in 1976 in 11 Western States, § 1714(1 )(1), and to "determine whether, and for how long, the continuation of the existing withdrawal of the lands would be, in his judgment, consistent with the statutory objectives of the programs for which the lands were dedicated and of the other relevant programs," § 1714(1 )(2). The activities undertaken by the BLM to comply with these various provisions constitute what respondent's amended complaint styles the BLM's "land withdrawal review program," which is the subject of the current litigation. Pursuant to the directives of the FLPMA, petitioners engage in a number of different types of administrative action with respect to the various tracts of public land within the United States. First, the BLM conducts the review and recommends the determinations required by § 1714(1) with *878 respect to withdrawals in 11 Western States. The law requires the Secretary to "report his WESTLAW Submitted into the public record for item(s) PZ.1 . on 12113i2018 , City Clerk 20,962 recommendations to the President, together with statements of concurrence or nonconcurrence submitted by the heads of the departments or agencies which administer the lands"; the President must in turn submit this report to the Congress, together with his recommendation "for action by the Secretary, or for legislation." § 1714(1 )(2). The Secretary has submitted a number of reports to the President in accordance with this provision. Second, the Secretary revokes some withdrawals under § 204(a) of the Act, which the Office of the Solicitor has interpreted to give the Secretary the power to process proposals for revocation of withdrawals made during the "ordinary course of business." U.S. Dept. of the Interior, Memorandum from the Office of the Solicitor, Oct. 30, 1980. These revocations are initiated in one of three manners: An agency or department holding a portion of withdrawn land that it no longer needs may file a notice of intention to relinquish the lands with the BLM. Any member of the public may file a petition requesting revocation. And in the case of lands held by the BLM, the BLM itself may initiate the revocation proposal. App. 56-57. Withdrawal revocations may be made for several reasons. Some are effected in order to permit sale of the land; some for record -clearing purposes, where the withdrawal designation has been superseded by congressional action or overlaps with another withdrawal designation; some in order to restore the land to multiple use management pursuant to § 102(a)(7) of the FLPMA, 43 U.S.C. § 1701(a)(7) (1982 ed.). App. 142-145. Third, the Secretary engages in the ongoing process of classifying public lands, either for multiple use management, pt. 2420, for disposal, pt. 2430, or for other uses. Classification decisions may be initiated by petition, pt. 2450, or by the BLM itself, pt. 2460. Regulations promulgated *879 by the Secretary prescribe the procedures to be followed in the case of each type of classification determination. II In its complaint, respondent averred generally that the reclassification of some withdrawn **3184 lands and the return of others to the public domain would open the lands up to mining activities, thereby destroying their natural beauty. Respondent alleged that petitioners, in the course of administering the Nation's public lands, had violated the FLPMA by failing to "develop, maintain, 4 Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. 20,962 and, when appropriate, revise land use plans which provide by tracts or areas for the use of the public lands," 43 U.S.C. § 1712(a) (1982 ed.); failing to submit recommendations as to withdrawals in the 11 Western States to the President, § 1714(1 ); failing to consider multiple uses for the disputed lands, § 1732(a), focusing inordinately on such uses as mineral exploitation and development; and failing to provide public notice of decisions, §§ 1701(a)(5), 1712(c)(9), 1712(0, and 1739(e). Respondent also claimed that petitioners had violated NEPA, which requires federal agencies to "include in every recommendation or report on ... major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on ... the environmental impact of the proposed action." 42 U.S.C. § 4332(2)(C) (1982 ed.). Finally, respondent alleged that all of the above actions were "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law," and should therefore be set aside pursuant to § 10(e) of the APA, 5 U.S.C. § 706. Appended to the amended complaint was a schedule of specific land -status determinations, which the complaint stated had been "taken by defendants since January 1, 1981"; each was identified by a listing in the Federal Register. In December 1985, the District Court granted respondent's motion for a preliminary injunction prohibiting petitioners from "[m]odifying, terminating or altering any withdrawal, classification, or other designation governing the protection *880 of lands in the public domain that was in effect on January 1, 1981," and from "[flaking any action inconsistent" with any such withdrawal, classification, or designation. App. to Pet. for Cert. 185a. In a subsequent order, the court denied petitioners' motion under Rule 12(b) of the Federal Rules of Civil Procedure to dismiss the complaint for failure to demonstrate standing to challenge petitioners' actions under the APA, 5 U.S.C. § 702. App. to Pet. for Cert. 183a. The Court of Appeals affirmed both orders. National Wildlife Federation v. Burford, 266 U.S.App.D.C. 241, 835 F.2d 305 (1987). As to the motion to dismiss, the Court of Appeals found sufficient to survive the motion the general allegation in the amended complaint that respondent's members used environmental resources that would be damaged by petitioners' actions. See id., at 248, 835 F.2d, at 312. It held that this allegation, fairly read along with the balance of the complaint, both identified particular land -status actions that respondent sought to challenge -since at least some of the actions complained of were listed in the complaint's appendix of Federal Register references -and asserted harm to respondent's members attributable to those particular actions. Id., at 249, 835 F.2d, at 313. To support WESTLAW Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk the latter point, the Court of Appeals pointed to the affidavits of two of respondent's members, Peggy Kay Peterson and Richard Erman, which claimed use of land "in the vicinity" of the land covered by two of the listed actions. Thus, the Court of Appeals concluded, there was "concrete indication that [respondent's] members use specific lands covered by the agency's Program and will be adversely affected by the agency's actions," and the complaint was "sufficiently specific for purposes of a motion to dismiss." Ibid. On petitions for rehearing, the Court of Appeals stood by its denial of the motion to dismiss and directed the parties and the District Court "to proceed with this litigation with dispatch.", National Wildlife Federation v. Burford, 269 U.S.App.D.C. 271, 272, 844 F.2d 889, 890 (1988). *881 Back before the District Court, petitioners again claimed, this time by means of a motion for summary judgment under Rule 56 **3185 of the Federal Rules of Civil Procedure (which motion had been outstanding during the proceedings before the Court of Appeals), that respondent had no standing to seek judicial review of petitioners' actions under the APA. After argument on this motion, and in purported response to the court's postargument request for additional briefing, respondent submitted four additional member affidavits pertaining to the issue of standing. The District Court rejected them as untimely, vacated the injunction and granted the Rule 56 motion to dismiss. It noted that neither its earlier decision nor the Court of Appeals' affirmance controlled the question, since both pertained to a motion under Rule 12(b). It found the Peterson and Erman affidavits insufficient to withstand the Rule 56 motion, even as to judicial review of the particular classification decisions to which they pertained. And even if they had been adequate for that limited purpose, the court said, they could not support respondent's attempted APA challenge to "each of the 1250 or so individual classification terminations and withdrawal revocations" effected under the land withdrawal review program. National Wildlife Federation v. Burford, 699 F.Supp. 327, 332 (DC 1988). This time the Court of Appeals reversed. National Wildlife Federation v. Burford, 278 U.S.App.D.C. 320, 878 F.2d 422 (1989). It both found the Peterson and Erman affidavits sufficient in themselves and held that it was an abuse of discretion not to consider the four additional affidavits as well.' The Court of Appeals also concluded that *882 standing to challenge individual classification and withdrawal decisions conferred standing to challenge all such decisions under the land withdrawal review program. We granted certiorari. 493 U.S. 1042, 110 S.Ct. 834, 107 L.Ed.2d 830 (1990). ft. Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. 20,962 III A 111 121 We first address respondent's claim that the Peterson and Erman affidavits alone suffice to establish respondent's right to judicial review of petitioners' actions. Respondent does not contend that either the FLPMA or NEPA provides a private right of action for violations of its provisions. Rather, respondent claims a right to judicial review under § 10(a) of the APA, which provides: "A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof." 5 U.S.C. § 702. This provision contains two separate requirements. First, the person claiming a right to sue must identify some "agency action" that affects him in the specified fashion; it is judicial review "thereof' to which he is entitled. The meaning of "agency action" for purposes of § 702 is set forth in 5 U.S.C. § 551(13), see 5 U.S.C. § 701(b)(2) ("For the purpose of this chapter ... `agency action' ha[s] the meanin[g] given ... by section 551 of this title"), which defines the term as "the whole or a part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act," 5 U.S.C. § 551(13). When, as here, review is sought not pursuant to specific authorization in the substantive statute, but only under the general review provisions of the APA, the "agency action" in question must be "final agency action." See 5 U.S.C. § 704 ("Agency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court are subject to judicial review" (emphasis added). **3186 *883 j3i Second, the party seeking review under § 702 must show that he has "suffer[ed] legal wrong" because of the challenged agency action, or is "adversely affected or aggrieved" by that action "within the meaning of a relevant statute." Respondent does not assert that it has suffered "legal wrong," so we need only discuss the meaning of "adversely affected or aggrieved ... within the meaning of a relevant statute." As an original matter, it might be thought that one cannot be Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk "adversely affected or aggrieved within the meaning" of a statute unless the statute in question uses those terms (or terms like them) -as some pre-APA statutes in fact did when conferring rights of judicial review. See, e.g., Federal Communications Act of 1934, § 402(b)(2), 48 Stat. 1093, as amended, 47 U.S.C. § 402(b)(6) (1982 ed.). We have long since rejected that interpretation, however, which would have made the judicial review provision of the APA no more than a restatement of pre-existing law. Rather, we have said that to be "adversely affected or aggrieved ... within the meaning" of a statute, the plaintiff must establish that the injury he complains of (his aggrievement, or the adverse effect upon him) falls within the "zone of interests" sought to be protected by the statutory provision whose violation forms the legal basis for his complaint. See Clarke v. Securities Industry Assn., 479 U.S. 388, 396-397, 107 S.Ct. 750, 755-756, 93 L.Ed.2d 757 (1987). Thus, for example, the failure of an agency to comply with a statutory provision requiring "on the record" hearings would assuredly have an adverse effect upon the company that has the contract to record and transcribe the agency's proceedings; but since the provision was obviously enacted to protect the interests of the parties to the proceedings and not those of the reporters, that company would not be "adversely affected within the meaning" of the statute. Because this case comes to us on petitioners' motion for summary judgment, we must assess the record under the *884 standard set forth in Rule 56 of the Federal Rules of Civil Procedure. Rule 56(c) states that a party is entitled to summary judgment in his favor "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Rule 56(e) further provides: "When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by WESTLAW L Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. 20,962 affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party." 141 As we stated in Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986), "the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Id., at 322, 106 S.Ct., at 2552. Where no such showing is made, "[t]he moving party is `entitled to a judgment as a matter of law' because the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof." Id., at 323, 106 S.Ct., at 2552. 15] 161 These standards are fully applicable when a defendant moves for summary judgment, in a suit brought under § 702, on the ground that the plaintiff has failed to show that he is "adversely affected or aggrieved by agency action within the meaning of a relevant statute." The burden is on the party seeking review under § 702 to set forth **3187 specific facts (even though they may be controverted by the Government) showing that he has satisfied its terms. *885 Sierra Club v. Morton, 405 U.S. 727, 740, 92 S.Ct. 1361, 1369, 31 L.Ed.2d 636 (1972). Celotex made clear that Rule 56 does not require the moving party to negate the elements of the nonmoving party's case; to the contrary, "regardless of whether the moving party accompanies its summary judgment motion with affidavits, the motion may, and should, be granted so long as whatever is before the district court demonstrates that the standard for the entry of summary judgment, as set forth in Rule 56(c), is satisfied." 477 U.S., at 323, 106 S.Ct., at 2553. 171 We turn, then, to whether the specific facts alleged in the two affidavits considered by the District Court raised WESTLAW Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk a genuine issue of fact as to whether an "agency action" taken by petitioners caused respondent to be "adversely affected or aggrieved ... within the meaning of a relevant statute." We assume, since it has been uncontested, that the allegedly affected interests set forth in the affidavits -"recreational use and aesthetic enjoyment" -are sufficiently related to the purposes of respondent association that respondent meets the requirements of § 702 if any of its members do. Hunt v. Washington State Apple Advertising Comm 'n, 432 U.S. 333, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977). As for the "agency action" requirement, we think that each of the affidavits can be read, as the Court of Appeals believed, to complain of a particular "agency action" as that term is defined in § 551. The parties agree that the Peterson affidavit, judging from the geographic area it describes, must refer to that one of the BLM orders listed in the appendix to the complaint that appears at 49 Fed.Reg. 19904-19905 (1984), an order captioned W-6228 and dated April 30, 1984, terminating the withdrawal classification of some 4,500 acres of land in that area. See, e.g., Brief for Petitioners 8-10. The parties also appear to agree, on the basis of similar deduction, that the Erman affidavit refers to the BLM order listed in the appendix that appears at *886 47 Fed.Reg. 7232-7233 1982), an order captioned Public Land Order 6156 and dated February 18, 1982. We also think that whatever "adverse effect" or "aggrievement" is established by the affidavits was "within the meaning of the relevant statute"-i.e., met the "zone of interests" test. The relevant statute, of course, is the statute whose violation is the gravamen of the complaint -both the FLPMA and NEPA. We have no doubt that "recreational use and aesthetic enjoyment" are among the sorts of interests those statutes were specifically designed to protect. The only issue, then, is whether the facts alleged in the affidavits showed that those interests of Peterson and Erman were actually affected. The Peterson affidavit averred: "My recreational use and aesthetic enjoyment of federal lands, particularly those in the vicinity of South Pass -Green Mountain, Wyoming have been and continue to be adversely affected in fact by the unlawful actions of the Bureau and the Department. In particular, the South Pass -Green Mountain area of Wyoming has been opened to the staking of mining claims and oil and gas leasing, an action which threatens the aesthetic beauty and wildlife habitat potential of these lands." App. to Pet. for Cert. 191a. Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. 20,962 Erman's affidavit was substantially the same as Peterson's, with respect to all except the area involved; he claimed use of land "in the vicinity of Grand Canyon National Park, the Arizona Strip (Kanab Plateau), and the Kaibab National Forest." Id., at 187a. The District Court found the Peterson affidavit inadequate for the following reasons: "Peterson ... claims that she uses federal lands in the vicinity of the South Pass- **3188 Green Mountain area of Wyoming for recreational purposes and for aesthetic enjoyment and that her recreational and aesthetic enjoyment *887 has been and continues to be adversely affected as the result of the decision of BLM to open it to the staking of mining claims and oil and gas leasing.... This decision [W-6228] opened up to mining approximately 4500 acres within a two million acre area, the balance of which, with the exception of 2000 acres, has always been open to mineral leasing and mining.... There is no showing that Peterson's recreational use and enjoyment extends to the particular 4500 acres covered by the decision to terminate classification to the remainder of the two million acres affected by the termination. All she claims is that she uses lands 'in the vicinity.' The affidavit on its face contains only a bare allegation of injury, and fails to show specific facts supporting the affiant's allegation." 699 F.Supp., at 331 (emphasis in original). The District Court found the Erman affidavit "similarly flawed." "The magnitude of Erman's claimed injury stretches the imagination.... [T]he Arizona Strip consists of all lands in Arizona north and west of the Colorado River on approximately 5.5 million acres, an area one -eighth the size of the State of Arizona. Furthermore, virtually the entire Strip is and for many years has been open to uranium and other metalliferous mining. The revocation of withdrawal [in Public Land Order 6156] concerned only non -metalliferous mining in the western one-third of the Arizona Strip, an area possessing no potential for non -metalliferous mining." Id., at 332. The Court of Appeals disagreed with the District Court's assessment as to the Peterson affidavit (and thus found it unnecessary to consider the Erman affidavit) for the following reason: "If Peterson was not referring to lands in this 4500-acre affected area, her allegation of impairment to her use and enjoyment would be meaningless, or perjurious.... *888 [T]he trial court overlooks the fact that unless WESTLAW Submitted into the public record for item(s) PZ.1 . on 12;13/2018 , City Clerk Peterson's language is read to refer to the lands affected by the Program, the affidavit is, at best, a meaningless document. "At a minimum, Peterson's affidavit is ambiguous regarding whether the adversely affected lands are the ones she uses. When presented with ambiguity on a motion for summary judgment, a District Court must resolve any factual issues of controversy in favor of the non-moving party.... This means that the District Court was obliged to resolve any factual ambiguity in favor of NWF, and would have had to assume, for the purposes of summary judgment, that Peterson used the 4500 affected acres." 278 U.S.App.D.C., at 329, 878 F.2d, at 431. 181 That is not the law. In ruling upon a Rule 56 motion, "a District Court must resolve any factual issues of controversy in favor of the non-moving party" only in the sense that, where the facts specifically averred by that party contradict facts specifically averred by the movant, the motion must be denied. That is a world apart from "assuming" that general averments embrace the "specific facts" needed to sustain the complaint. As set forth above, Rule 56(e) provides that judgment "shall be entered" against the nonmoving party unless affidavits or other evidence "set forth specific facts showing that there is a genuine issue for trial." The object of this provision is not to replace conclusory allegations of the complaint or answer with conclusory allegations of an affidavit. Cf. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986) ("[T]he plaintiff could not rest on his allegations of a conspiracy to get to a jury without 'any significant probative evidence tending to support the complaint' "), quoting First National Bank of Ariz. v. Cities Service Co., 391 U.S. 253, 290, 88 S.Ct. 1575, 1593, 20 L.Ed.2d 569 (1968). Rather, the purpose of Rule 56 is to enable a party who believes there is no genuine dispute as to a specific fact essential to the **3189 other side's case to demand at least one *889 sworn averment of that fact before the lengthy process of litigation continues. At the margins there is some room for debate as to how "specific" must be the "specific facts" that Rule 56(e) requires in a particular case. But where the fact in question is the one put in issue by the § 702 challenge here -whether one of respondent's members has been, or is threatened to be, "adversely affected or aggrieved" by Government action -Rule 56(e) is assuredly not satisfied by averments which state only that one of respondent's members uses unspecified portions of an immense tract of territory, on some portions of which mining activity has occurred or probably will occur by virtue of the governmental action. It will not do to "presume" the Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. 20,962 missing facts because without them the affidavits would not establish the injury that they generally allege. That converts the operation of Rule 56 to a circular promenade: plaintiffs complaint makes general allegation of injury; defendant contests through Rule 56 existence of specific facts to support injury; plaintiff responds with affidavit containing general allegation of injury, which must be deemed to constitute averment of requisite specific facts since otherwise allegation of injury would be unsupported (which is precisely what defendant claims it is). Respondent places great reliance, as did the Court of Appeals, upon our decision in United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669, 93 S.Ct. 2405, 37 L.Ed.2d 254 (1973). The SCRAP opinion, whose expansive expression of what would suffice for § 702 review under its particular facts has never since been emulated by this Court, is of no relevance here, since it involved not a Rule 56 motion for summary judgment but a Rule 12(b) motion to dismiss on the pleadings. The latter, unlike the former, presumes that general allegations embrace those specific facts that are necessary to support the claim. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957). *890 IV We turn next to the Court of Appeals' alternative holding that the four additional member affidavits proffered by respondent in response to the District Court's briefing order established its right to § 702 review of agency action. A 191 It is impossible that the affidavits would suffice, as the Court of Appeals held, to enable respondent to challenge the entirety of petitioners' so-called "land withdrawal review program." That is not an "agency action" within the meaning of § 702, much less a "final agency action" within the meaning of § 704. The term "land withdrawal review program" (which as far as we know is not derived from any authoritative text) does not refer to a single BLM order or regulation, or even to a completed universe of particular BLM orders and regulations. It is simply the WESTLAW Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk name by which petitioners have occasionally referred to the continuing (and thus constantly changing) operations of the BLM in reviewing withdrawal revocation applications and the classifications of public lands and developing land use plans as required by the FLPMA. It is no more an identifiable "agency action" -much less a "final agency action" -than a "weapons procurement program" of the Department of Defense or a "drug interdiction program" of the Drug Enforcement Administration. As the District Court explained, the "land withdrawal review program" extends to, currently at least, "1250 or so individual classification terminations and withdrawal revocations." 699 F.Supp., at 332.2 **3190 *891 j101 Respondent alleges that violation of the law is rampant within this program -failure to revise land use plans in proper fashion, failure to submit certain recommendations to Congress, failure to consider multiple use, inordinate focus upon mineral exploitation, failure to provide required public notice, failure to provide adequate environmental impact statements. Perhaps so. But respondent cannot seek wholesale improvement of this program by court decree, rather than in the offices of the Department or the halls of Congress, where programmatic improvements are normally made. Under the terms of the APA, respondent must direct its attack against some particular "agency action" that causes it harm. Some statutes permit broad regulations to serve as the "agency action," and thus to be the object of judicial review directly, even before the concrete effects normally required for APA review are felt. Absent such a provision, however, a regulation is not ordinarily considered the type of agency action "ripe" for judicial review under the APA until the scope of the controversy has been reduced to more manageable proportions, and its factual components fleshed out, by some concrete action applying the regulation to the claimant's situation in a fashion that harms or threatens to harm him. (The major exception, of course, is a substantive rule which as a practical matter requires the plaintiff to adjust his conduct immediately. Such agency action is "ripe" for review at once, whether or not explicit statutory review apart from the APA is provided. See Abbott Laboratories v. Gardner, 387 U.S. 136, 152-154, 87 S.Ct. 1507, 1517-1518, 18 L.Ed.2d 681 (1967); Gardner v. Toilet Goods Assn., Inc., 387 U.S. 167, 171-173, 87 S.Ct. 1526, 1528-1530, 18 L.Ed.2d 704 (1967). Cf. Toilet *892 Goods Assn., Inc. v. Gardner, 387 U.S. 158, 164-166, 87 S.Ct. 1520, 1524-1526, 18 L.Ed.2d 697 (1967).) 1111 In the present case, the individual actions of the BLM identified in the six affidavits can be regarded as rules of general applicability (a "rule" is defined in the APA as agency action of "general or particular applicability and Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. 20,962 future effect," 5 U.S.C. § 551(4) (emphasis added)) announcing, with respect to vast expanses of territory that they cover, the agency's intent to grant requisite permission for certain activities, to decline to interfere with other activities, and to take other particular action if requested. It may well be, then, that even those individual actions will not be ripe for challenge until some further agency action or inaction more immediately harming the plaintiff occurs.' But it is at least entirely *893 certain that the flaws in the entire "program" -consisting principally of the many individual actions **3191 referenced in the complaint, and presumably actions yet to be taken as well -cannot be laid before the courts for wholesale correction under the APA, simply because one of them that is ripe for review adversely affects one of respondent's members.' *894 1121 The case -by -case approach that this requires is understandably frustrating to an organization such as respondent, which has as its objective across-the-board protection of our Nation's wildlife and the streams and forests that support it. But this is the traditional, and remains the normal, mode of operation of the courts. Except where Congress explicitly provides for our correction of the administrative process at a higher level of generality, we intervene in the administration of the *_- laws only when, and to the extent that, a specific "final agency action" has an actual or immediately threatened effect. Toilet GoodsAssn., 387 U.S., at 164-166, 87 S.Ct., at 1524-1526. Such an intervention may ultimately have the effect of requiring a regulation, a series of regulations, or even a whole "program" to be revised by the agency in order to avoid the unlawful result that the court discerns. But it is assuredly not as swift or as immediately far-reaching a corrective process as those interested in systemic improvement would desire. Until confided to us, however, more sweeping actions are for the other branches. L 1131 The Court of Appeals' reliance upon the supplemental affidavits was wrong for a **3192 second reason: The District Court did not abuse its discretion in declining to admit them. Petitioners filed their motion for summary judgment in September 1986; respondent filed an opposition but did not submit any new evidentiary materials at that time. On June 27, 1988, after the case had made its way for the first time through the Court of Appeals, the District Court announced that it would hold a WESTLAW Submitted into the public record for item(s) P2.1 . on 12/13/2018 City Clerk hearing on July 22 on "the outstanding motions for summary judgment," which included petitioners' motion challenging respondent's § 702 standing. The hearing was held and, as noted earlier, the District Court issued an order directing respondent to file "a supplemental memorandum regarding *895 the issue of its standing to proceed." Record, Doc. No. 274. Although that plainly did not call for the submission of new evidentiary materials, it was in purported response to this order, on August 22, 1988, that respondent submitted (along with the requested legal memorandum) the additional affidavits. The only explanation for the submission (if it can be called an explanation) was contained in a footnote to the memorandum, which simply stated that "NWF now has submitted declarations on behalf of other members of NWF who have been injured by the challenged actions of federal defendants." Record, Doc. No. 278, p. 18, n. 21. In its November 4, 1988, ruling granting petitioners' motion, the District Court rejected the additional affidavits as "untimely and in violation of [the court's briefing] Order." 699 F.Supp., at 328, n. 3. Respondent's evidentiary submission was indeed untimely, both under Rule 56, which requires affidavits in opposition to a summary judgment motion to be served "prior to the day of the hearing," Fed.Rule Civ.Proc. 56(c), and under Rule 6(d), which states more generally that "[w]hen a motion is supported by affidavit, ... opposing affidavits may be served not later than 1 day before the hearing, unless the court permits them to be served at some other time." Rule 6(b) sets out the proper approach in the case of late filings: "When by these rules or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time, the court for cause shown may at any time in its discretion (1) with or without motion or notice order the period enlarged if request therefor is made before the expiration of the period originally prescribed or as extended by a previous order, or (2) upon motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect...." Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. 20,962 This provision not only specifically confers the "discretion" relevant to the present issue, but also provides the mechanism *896 by which that discretion is to be invoked and exercised. First, any extension of a time limitation must be "for cause shown." Second, although extensions before expiration of the time period may be "with or without motion or notice," any postdeadline extension must be "upon motion made," and is permissible only where the failure to meet the deadline "was the result of excusable neglect." Thus, in order to receive the affidavits here, the District Court would have had to regard the very filing of the late document as the "motion made" to file it;5 it would have had to interpret "cause *897 shown" to mean merely **3193 "cause," since respondent made no "showing" of cause at all; and finally, it would have had to find as a substantive matter that there was indeed "cause" for the late filing, and that the failure to file on time "was the result of excusable neglect." This last substantive obstacle is the greatest of all. The Court of Appeals presumably thought it was overcome because "the papers on which the trial court relied were two years old by the time it requested supplemental memoranda" and because "there was no indication prior to the trial court's request that [respondent] should have doubted the adequacy of the affidavits it had already submitted." 278 U.S.App.D.C., at 331, 878 F.2d, at 433. We do not understand the relevance of the first point; the passage of so long a time as two years suggests, if anything, that respondent had more than the usual amount of time to prepare its response to the motion, and was more than moderately remiss in waiting until after the last moment. As to the suggestion of unfair surprise: A litigant is never justified in assuming that the court has made up its mind until the court expresses itself to that effect, and a litigant's failure to buttress its position because of confidence in the strength of that position is always indulged in at the litigant's own risk. In any case, whatever erroneous expectations respondent may have had were surely dispelled by the District Court's order in June 1988 announcing that the hearing on petitioners' motion would be held one month later. At least when that order issued, respondent was on notice that its right to sue was at issue, and that (absent proper motion) the time for filing any additional evidentiary materials was, at the latest, the day before the hearing. *898 Perhaps it is true that the District Court could have overcome all the obstacles we have described -apparent lack of a motion, of a showing, and of excusable neglect -to admit the affidavits at issue here. But the proposition that it was compelled to receive them -that it was an abuse of discretion to reject them -cannot be accepted. 114J Respondent's final argument is that we should remand this case for the Court of Appeals to decide whether respondent may seek § 702 review of petitioners' actions in its own right, rather than derivatively through its members. Specifically, it points to allegations in the amended complaint that petitioners unlawfully failed to publish regulations, to invite public participation, and to prepare an environmental impact statement with respect to the "land withdrawal review program" as a whole. In order to show that it is a "person ... adversely affected or aggrieved" by these failures, it submitted to the District Court a brief affidavit (two pages in the record) by one of its vice presidents, Lynn A. Greenwalt, who stated that respondent's mission is to "inform its members and the general public about conservation issues" and to advocate improvements in laws and administrative practices "pertaining to the **3194 protection and enhancement of federal lands," App. to Pet. for Cert. 193a-194a; and that its ability to perform this mission has been impaired by petitioners' failure "to provide adequate information and opportunities for public participation with respect to the Land Withdrawal Review Program." Id., at 194a. The District Court found this affidavit insufficient to establish respondent's right to seek judicial review, since it was "conclusory and completely devoid of specific facts." 699 F.Supp., at 330. The Court of Appeals, having reversed the District Court on the grounds discussed above, did not address the issue. We agree with the District Court's disposition. Even assuming that the affidavit set forth "specific facts," *899 Fed.R.Civ.Proc. 56(e), adequate to show injury to respondent through the deprivation of information; and even assuming that providing information to organizations such as respondent was one of the objectives of the statutes allegedly violated, so that respondent is "aggrieved within the meaning" of those statutes; nonetheless, the Greenwalt affidavit fails to identify any particular "agency action" that was the source of these injuries. The only sentences addressed to that point are as follows: "NWF's ability to meet these obligations to its members has been significantly impaired by the failure of the Bureau of Land Management and the Department of the Interior to provide adequate WESTLAW Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. 20,962 information and opportunities for public participation with respect to the Land Withdrawal Review Program. These interests of NWF have been injured by the actions of the Bureau and the Department and would be irreparably harmed by the continued failure to provide meaningful opportunities for public input and access to information regarding the Land Withdrawal Review Program." App. to Pet. for Cert. 194a. As is evident, this is even more deficient than the Peterson and Erman affidavits, which contained geographical descriptions whereby at least an action as general as a particular classification decision could be identified as the source of the grievance. As we discussed earlier, the "land withdrawal review program" is not an identifiable action or event. With regard to alleged deficiencies in providing information and permitting public participation, as with regard to the other illegalities alleged in the complaint, respondent cannot demand a general judicial review of the BLM's day-to-day operations. The Greenwalt affidavit, like the others, does not set forth the specific facts necessary to survive a Rule 56 motion. *900 * * * For the foregoing reasons, the judgment of the Court of Appeals is reversed. It is so ordered. Justice BLACKMUN, with whom Justice BRENNAN, Justice MARSHALL, and Justice STEVENS join, dissenting. In my view, the affidavits of Peggy Kay Peterson and Richard Loren Erman, in conjunction with other record evidence before the District Court on the motions for summary judgment, were sufficient to establish the standing of the National Wildlife Federation (Federation or NWF) to bring this suit. I also conclude that the District Court abused its discretion by refusing to consider supplemental affidavits filed after the hearing on the parties' cross -motions for summary judgment. I therefore would affirm the judgment of the Court of Appeals. WESTLAW Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk I The Federation's asserted injury in this case rested upon its claim that the Government actions challenged here would lead to increased mining on public lands; that the mining would result in damage to the environment; and that the recreational opportunities of NWF's members would consequently be diminished. Abundant record evidence supported the Federation's assertion that on lands newly opened for mining, mining in fact **3195 would occur.' Similarly, the record furnishes ample support for NWF's contention that mining activities can be expected to cause severe environmentaldamage *901 to the affected lands.2 The District Court held, however, that the Federation had not adequately identified particular members who were harmed by the consequences of the Government's actions. Although two of NWF's members expressly averred that their recreational activities had been impaired, the District Court concluded that these affiants had not identified with sufficient precision the particular sites on which their injuries occurred. The majority, like the District Court, holds that the averments of Peterson and Erman were insufficiently specific to withstand a motion for summary judgment. Although these affidavits were not models of precision, I believe that they were adequate at least to create a genuine issue of fact as to the organization's injury. *902 As the Court points out, the showing (whether as to standing or the merits) required to overcome a motion for summary judgment is more extensive than that required in the context of a motion to dismiss. The principal difference is that in the former context evidence is required, while in the latter setting the litigant may rest upon the allegations of his complaint. See Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986) (Federal Rule of Civil Procedure 56(e) "requires the nonmoving party to go beyond the pleadings"). In addition, Rule 56(e) requires that the party opposing summary judgment "must set forth specific facts showing that there is a genuine issue for trial" (emphasis added). Thus, Courts of Appeals have reiterated that "conclusory" allegations unsupported by "specific" evidence will be insufficient to establish a genuine issue of fact.' The requirement that evidence be submitted is satisfied here: The Federation has offered the sworn statements of two of its members. There remains the question whether the allegations in these affidavits were sufficiently precise to satisfy the requirements of Rule 56(e). The line of demarcation between "specific" and "conclusory" allegations is hardly a bright one. But, to my mind, the Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. 20,962 allegations contained in the Peterson and Erman affidavits, in the context of the record as a whole, were adequate **3196 to defeat a motion for summary judgment. These affidavits, as the majority acknowledges, were at least sufficiently precise to enable Bureau of Land Management (BLM) officials to identify the particular termination orders to which the affiants referred. See ante, at 3187. And the affiants averred that their "recreational use and aesthetic enjoyment of federal lands ... have been and continue to be adversely affected in fact by the unlawful *903 actions of the Bureau and the Department." App. to Pet. for Cert. 188a (Erman affidavit), 191a (Peterson affidavit). The question, it should be emphasized, is not whether the NWF has proved that it has standing to bring this action, but simply whether the materials before the District Court established "that there is a genuine issue for trial," see Rule 56(e), concerning the Federation's standing. In light of the principle that "[o]n summary judgment the inferences to be drawn from the underlying facts contained in [evidentiary] materials must be viewed in the light most favorable to the party opposing the motion," United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962), I believe that the evidence before the District Court raised a genuine factual issue as to NWF's standing to sue. No contrary conclusion is compelled by the fact that Peterson alleged that she uses federal lands "in the vicinity of South Pass -Green Mountain, Wyoming," App. to Pet. for Cert. 191a, rather than averring that she uses the precise tract that was recently opened to mining. The agency itself has repeatedly referred to the "South Pass -Green Mountain area" in describing the region newly opened to mining.° Peterson's assertion that her use and enjoyment of federal lands have been adversely affected by the agency's decision to permit more extensive mining is, as the Court of Appeals stated, National Wildlife Federation v. Burford, 278 U.S.App.D.C. 320, 329, 878 F.2d 422, 431 (1989), "meaningless, or perjurious" if the lands she uses do not include those harmed by mining undertaken pursuant to termination order W-6228.5 To read particular assertions within the affidavit in light of the document as a whole is, as the majority might put it, "a world apart" from "presuming" facts that are neither stated nor implied simply because without them the *904 plaintiff would lack standing. The Peterson and Erman affidavits doubtless could have been more artfully drafted, but they definitely were sufficient to withstand the federal parties' summary judgment motion. WESTLAW Submitted into the public record for itern(s) PZ.1 on 12/13/2018 , City Clerk II I also conclude that the District Court abused its discretion in refusing to consider the supplemental affidavits filed by NWF after the hearing on the summary judgment motion.' The court's decision abruptly derailed the Federation's lawsuit after three **3197 years of proceedings involving massive time and expense. The District Court and Court of Appeals both had concluded that NWF's claims were sufficiently substantial to warrant the entry of a nationwide injunction. Whatever the ultimate merits of the Federation's claims, litigation of this magnitude should not be aborted on technical grounds if that result legitimately can be avoided. The majority's approach reflects an insufficient appreciation both of the realities of complex litigation and of the admonition that the Federal Rules of Civil Procedure "shall be construed to secure *905 the just, speedy, and inexpensive determination of every action." Rule 1. That a requirement is "technical" does not, of course, mean that it need not be obeyed. And an appeal to the "spirit" of the Federal Rules is an insufficient basis for ignoring the import of their text. If the Rules imposed an absolute deadline for the submission of evidentiary materials, the District Court could not be faulted for strictly enforcing that deadline, even though the result in a particular case might be unfortunate. But, as the Court acknowledges, the Rules expressly permit the District Court to exercise discretion in deciding whether affidavits in opposition to a summary judgment motion may be submitted after the hearing.' Once the District Court's power to accept untimely affidavits is recognized, the question whether that power should be exercised in a particular instance must be answered by reference to the explanation for the litigant's omission and the purposes the Rules are designed to serve. In my view, NWF showed adequate cause for its failure to file the supplemental affidavits prior to the hearing. Moreover, the organization's untimely filing in no way disserved the purposes of Rule 56(c), and the federal parties suffered no prejudice as a consequence of the *906 delay. Under these circumstances, I believe that the District Court's refusal to consider these submissions constituted an abuse of discretion. The Federal Rules require that affidavits in opposition to a motion ordinarily must be served at least one day prior to the hearing; the Rules provide, however, that the affidavits may be filed at a later time "where the failure to act was the result of excusable neglect." Rule 6(b); see n. 7, supra. Prior to the July 22, 1988, hearing on the parties' cross -motions for summary judgment, NWF had been assured repeatedly that its prior submissions were Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. 20,962 sufficient to establish its standing to sue. In its memorandum opinion granting the Federation's motion for a preliminary injunction, the District Court stated: "We continue to find irreparable injury to plaintiff and reaffirm plaintiff s standing to bring this action." National Wildlife Federation v. Burford, 676 F.Supp. 280, 281 (D.C.1986). Later that year the federal parties sought additional discovery on the question of standing. NWF sought to quash discovery, arguing that "[t]he Court should bar any additional discovery on this issue because (1) it has already found that plaintiff has standing; (2) plaintiff has already produced affidavits which demonstrate standing and therefore any additional discovery would be unreasonably cumulative, duplicative, **3198 burdensome and expensive within the meaning of Rule 26(c)(1); and (3) contrary to the government defendants' apparent theory, plaintiff need not demonstrate injury as to each and every action that is part of the program." Memorandum of Points and Authorities in Support of Plaintiffs Motion To Quash and for a Protective Order 5-6 (July 1, 1986). In the alternative, NWF argued that if additional discovery on standing was to be ordered, it should be confined to the requirement that a limited number of additional affidavits be submitted. Id., at 22. The District Court, on July 14, 1986, granted in full the Federation's motion to quash and ordered "that no further discovery of plaintiff or *907 its members, officers, employees, agents, servants, or attorneys shall be permitted until subsequent order of this court, if any." App. to Pet. for Cert. 170a-171a. When the District Court's grant of a preliminary injunction was subjected to appellate review, the Court of Appeals concluded that the Peterson and Erman affidavits "provide a concrete indication that the Federation's members use specific lands covered by the agency's Program and will be adversely affected by the agency's actions." National Wildlife Federation v. Burford, 266 U.S.App.D.C. 241, 249, 835 F.2d 305, 313 (1987).8 The majority's statement that "a litigant is never justified in assuming that the court has made up its mind until the court expresses itself to that effect," ante, at 3193, is therefore simply irrelevant to the present case: The District Court and the Court of Appeals repeatedly had indicated that the Federation had offered sufficient evidence of its standing. Nor did the District Court's order of June 27, 1988, scheduling a motion hearing for the following July 22, place NWF on notice that its claim of standing might be reconsidered. That order made clear that the hearing would consider the summary judgment motions of both the federal parties and *908 the Federation. The principal submission of the federal parties relevant to the hearing Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk was the Defendants' Memorandum in Opposition to Plaintiffs Motion for Summary Judgment and in Support of Defendants' Motion for Summary Judgment and/or for Dissolution of the Preliminary Injunction Issued on February 10, 1986; that memorandum was filed on September 12, 1986. This 86-page memorandum included only 9 /2 pages devoted to standing, and half of that discussion set forth the federal parties' claim that no broad programmatic challenge could succeed even if the Peterson and Erman affidavits adequately alleged injury from Government decisions as to particular tracts of land. Moreover, even the attack on the Peterson and Erman affidavits did not purport to show that summary judgment for the federal parties should be entered on the ground that the Federation lacked standing. Rather, the federal parties argued principally that summary judgment for NWF would be inappropriate because a genuine factual dispute existed as to the Federation's standing to sue. See Defendants' Memorandum, at 45-47. In fact, the 86-page memorandum included only two sentences arguing that the federal parties should be awarded summary judgment on standing grounds. Id., at 11-12, 85. The District Court's decision to schedule a hearing on the parties' cross -motions for summary judgment provided no hint that previous **3199 assurances concerning standing were open to reconsideration.9 Certainly the Federation could have submitted additional evidentiary materials in support of its claim of standing, even though it had no reason to believe that further submissions were necessary. But it would hardly enhance the efficiency *909 of the adjudicative process to encourage litigants to reargue questions previously settled in their favor. In my view, NWF established sufficient cause for its failure to submit the supplemental affidavits prior to the hearing.10 **3200 *910 Moreover, the District Court's refusal to consider the additional submissions in this case did not significantly advance the interests that Rule 56(c) is designed to serve. The Rule requires that affidavits in opposition to a motion for summary judgment must be served "prior to the day of hearing." The Courts of Appeals consistently have recognized, however, that "Rule 56 does not necessarily contemplate an oral hearing. Rather, 10-day advance notice to the adverse party that the motion and all materials in support of or in opposition to the motion will be taken under advisement by the trial court as of a certain day satisfies the notice and hearing *911 dictates of Rule 56." Moore v. Florida, 703 F.2d 516, 519 (CA11 1983)." Rule 56(c)'s requirement that a summary judgment motion be filed 10 days in advance of a scheduled hearing serves to ensure that the nonmoving party is afforded adequate notice of WESTLAW Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. 20,962 the motion. Similarly, the requirement that opposing affidavits be submitted prior to the day of the hearing reflects the fact that the district court may rule on the summary judgment motion at the hearing or at any time thereafter; submission of affidavits prior to that day is thus essential if the moving party is to be assured the opportunity to respond at a time when a response is meaningful. The requirement also allows the district court to establish a deadline by which time all evidence and arguments must be submitted; thereafter, the court may deliberate with the assurance that no subsequent filings will alter the terms of the dispute. These are pressing concerns when the hearing on a summary judgment motion represents the parties' last opportunity to set forth their legal arguments. In the present case, however, the District Court concluded the July 22, 1988, hearing by requesting supplemental briefing on the issue of standing.' NWF's supplemental affidavits, filed on August 22 as an attachment to its legal memorandum, were submitted at a time when the federal parties had ample opportunity to respond. (Indeed, the opportunity to respond here-10 days -was far greater than would have been the case if NWF had filed (timely) affidavits the day before the hearing and no *912 supplemental briefing had been allowed.) The affidavits, moreover, were filed well before the time when the case was to be taken under advisement. The record in this case is voluminous, currently filling six large boxes; consideration of five more affidavits would not have added significantly to the complexity of the issues before the District Court. Under these circumstances, submission of the supplemental affidavits neither disserved the purposes of the Rule nor prejudiced the federal parties in any respect. The District Court discussed none of these factors in explaining its refusal to consider the supplemental affidavits. Indeed, the District Court offered no justification at all for its action beyond the assertion that the affidavits were untimely." Similarly, the Court **3201 today fails to assess the District Court's action by reference to the excuse for NWF's untimely filing or the absence of prejudice to the federal parties. The District Court and today's majority fail to recognize the guiding principle of the Federal Rules of Civil Procedure, the principle that procedural rules should be construed pragmatically, so as to ensure the just and efficient resolution of legal disputes. Some provisions of the Rules strip the district courts of discretion, and the courts have no choice but to enforce these requirements with scrupulous precision." But where the Rules expressly confer a range of *913 discretion, a district court may abuse its authority by refusing to take account of WESTLAW Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk equitable concerns, even where its action violates no express command. In my view, such an abuse of discretion occurred here. III In Part IV -A, ante, at 3189, the majority sets forth a long and abstract discussion of the scope of relief that might have been awarded had the Federation made a sufficient showing of injury from environmental damage to a particular tract of land. Since the majority concludes in other portions of its opinion that the Federation lacks standing to challenge any of the land -use decisions at issue here, it is not clear to me why the Court engages in the hypothetical inquiry contained in Part IV -A. In any event, I agree with much of the Court's discussion, at least in its general outline. The Administrative Procedure Act permits suit to be brought by any person "adversely affected or aggrieved by agency action." 5 U.S.C. § 702. In some cases the "agency action" will consist of a rule of broad applicability; and if the plaintiff prevails, the result is that the rule is invalidated, not simply that the court forbids its application to a particular individual. Under these circumstances a single plaintiff, so long as he is injured by the rule, may obtain "programmatic" relief that affects the rights of parties not before the court. On the other hand, if a generally lawful policy is applied in an illegal manner on a particular occasion, one who is injured is not thereby entitled to challenge other applications of the rule. Application of these principles to the instant case does not turn on whether, or how often, the Bureau's land -management policies have been described as a "program." In one sense, *914 of course, there is no question that a "program" exists. Everyone associated with this lawsuit recognizes that the BLM, over the past decade, has attempted to develop and implement a comprehensive scheme for the termination of classifications and withdrawals. The real issue is whether the actions and omissions that NWF contends are illegal are themselves part of a plan or policy. For example: If the agency had published a regulation stating that an environmental impact statement (EIS) should never be developed prior to the termination of a classification or withdrawal, NWF could challenge the regulation (which would constitute an "agency action"). If the reviewing court then held that the statute required a pretermination EIS, the relief (invalidation of the rule) would directly Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. 20,962 affect **3202 tracts other than the ones used by individual affiants. At the other extreme, if the applicable BLM regulation stated that an EIS must be developed, and NWF alleged that the administrator in charge of South Pass/Green Mountain had inexplicably failed to develop one, NWF should not be allowed (on the basis of the Peterson affidavit) to challenge a termination in Florida on the ground that an administrator there made the same mistake. The majority, quoting the District Court, characterizes the Bureau's land management program as " '1250 or so individual classification terminations and withdrawal revocations.' " Ante, at 3189; see National Wildlife Federation v. Burford, 699 F.Supp. 327, 332 (DC 1988). The majority offers no argument in support of this conclusory assertion, and I am far from certain that the characterization is an accurate one. Since this issue bears on the scope of the relief ultimately to be awarded should the plaintiff prevail, rather than on the jurisdiction *915 of the District Court to entertain the suit, I would allow the District Court to address the question on remand.16 Footnotes 2 3 Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk IV Since I conclude that the Peterson and Erman affidavits provided sufficient evidence of NWF's standing to withstand a motion for summary judgment, and that the District Court abused its discretion by refusing to consider the Federation's supplemental affidavits, I would affirm the judgment of the Court of Appeals. I respectfully dissent. All Citations 497 U.S. 871, 110 S.Ct. 3177, 111 L.Ed.2d 695, 31 ERC 1553, 20 Envtl. L. Rep. 20,962 The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Lumber Co., 200 U.S. 321, 337, 26 S.Ct. 282, 287, 50 L.Ed. 499. As an additional basis for its conclusion, the Court of Appeals held that the earlier panel's finding that the Peterson and Erman affidavits were sufficient to establish respondent's right to sue was the "law of the case." We do not address this conclusion, as the earlier panel's ruling does not, of course, bind this Court. Messenger v. Anderson, 225 U.S. 436, 444, 32 S.Ct. 739, 740, 56 L.Ed. 1152 (1912). Contrary to the apparent understanding of the dissent, we do not contend that no "land withdrawal review program" exists, any more than we would contend that no weapons procurement program exists. We merely assert that it is not an identifiable "final agency action" for purposes of the APA. If there is in fact some specific order or regulation, applying some particular measure across the board to all individual classification terminations and withdrawal revocations, and if that order or regulation is final, and has become ripe for review in the manner we discuss subsequently in text, it can of course be challenged under the APA by a person adversely affected -and the entire "land withdrawal review program," insofar as the content of that particular action is concerned, would thereby be affected. But that is quite different from permitting a generic challenge to all aspects of the "land withdrawal review program," as though that itself constituted a final agency action. Under the Secretary's regulations, any person seeking to conduct mining operations that will "cause a cumulative surface disturbance" of five acres or more must first obtain approval of a plan of operations. § 3809.1-4 (1988). Mining operations that cause surface disturbance of Tess than 5 acres do not require prior approval, but prior notice must be given to the district office of the BLM. § 3809.1-3. Neither approval nor notification is required only with respect to "casual use operations," 43 CFR § 3809.1-2, defined as "activities ordinarily resulting in only negligible disturbance of the Federal lands and resources," § 3809.0-5. (Activities are considered "casual" if "they do not involve the use of mechanized earth moving equipment or explosives or do not involve the use of motorized vehicles in areas designated as closed to off -road vehicles...." Ibid.) Thus, before any mining use ordinarily involving more than "negligible disturbance" can take place, there must occur either agency action in response to a submitted plan or agency inaction in response to a submitted notice. In one of the four new affidavits, Peggy Peterson, one of the original affiants, states that a corporation has filed a mine permit application with the BLM covering a portion of the land to which her original affidavit pertained. App. to Brief in Opposition for Respondent National Wildlife Federation 16. If that permit is granted, there is no doubt that WESTLAW Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. 20,962 4 5 2 Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk agency action ripe for review will have occurred; nor any doubt that, in the course of an otherwise proper court challenge, affiant Peterson, and through her respondent, would be able to call into question the validity of the classification order authorizing the permit. However, before the grant of such a permit, or (when it will suffice) the filing of a notice to engage in mining activities, or (when only "negligible disturbance" will occur) actual mining of the land, it is impossible to tell where or whether mining activities will occur. Indeed, it is often impossible to tell from a classification order alone whether mining activities will even be permissible. As explained in the uncontested affidavit of the BLM's Assistant Director of Land Resources: "The lands may be subject to another withdrawal of comparable scope or they may be subject to classification segregations tantamount to such a withdrawal. In that case, the lands would not be opened to the operation of the public land laws so that the removal of one of the withdrawals has no practical effect. Another reason why there may not be any change is that before the revocation occurred, the lands may have been transferred into private ownership. Consequently, the withdrawal revocation amounts to nothing more than a paper transaction.... In the altemative, a revoked withdrawal may open the lands to the operation of the public land and mineral laws.... Some withdrawal revocations are made without prior knowledge as to what subsequent disposition may be made of the lands. After the lands are opened, they might be transferred out of federal ownership by sale, exchange, or some other discretionary mode of disposal, not anticipated when the withdrawal was revoked. These subsequent discretionary actions require separate and independent decisionmaking that, obviously, are divorced from the prior revocation decision. Environmental and other management concems and public participation are taken into account in relation to the post -revocation decisionmaking." Affidavit of Frank Edwards, Aug. 18, 1985, App. 61-62. Nothing in this is contrary to our opinion in Automobile Workers v. Brock, 477 U.S. 274, 106 S.Ct. 2523, 91 L.Ed.2d 228 (1986), cited by the Court of Appeals. That opinion did not discuss, and the respondent Secretary of Labor did not rely upon, the requirements of 5 U.S.C. § 702 and our ripeness jurisprudence in cases such as Abbott Laboratories v. Gardner, 387 U.S. 136, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967); Gardner v. Toilet Goods Assn., Inc., 387 U.S. 167, 87 S.Ct. 1526, 18 L.Ed.2d 704 (1967); and Toilet Goods Assn., Inc. v. Gardner, 387 U.S. 158, 87 S.Ct. 1520, 18 L.Ed.2d 697 (1967). The only challenge made and decided, with respect to the individuals' right to sue, relied upon 19 U.S.C. § 2311(d) (1982 ed.), which according to the Secretary of Labor made entertainment of that suit " 'contrary to Congress's incorporation of the state system into the administration of the Trade Act, and an affront to the integrity and authority of the state courts.' " 477 U.S., at 283, 106 S.Ct., at 2529, quoting Brief for Respondent in Automobile Workers, O.T. 1985, No. 84-1777, p. 16. The dissent asserts that a footnote in respondent's reply memorandum to the District Court was a "motion" within the meaning of Rule 6(b)(2), and was so obviously so that the District Court committed reversible error in failing to construe it that way. Post, at 3199-3200 and n. 10. We cannot agree. Rule 6(b) establishes a clear distinction between "requests" and "motions," and the one cannot be converted into the other without violating its provisions -or at least cannot be converted on the basis of such lax criteria that conversion would be not only marginally permissible but positively mandatory in the present case. Rule 6(b)(1) allows a court ("for cause shown" and "in its discretion") to grant a "request" for an extension of time, whether the request is made "with or without motion or notice," provided the request is made before the time for filing expires. After the time for filing has expired, however, the court (again "for cause shown" and "in its discretion") may extend the time only "upon motion." To treat all postdeadline "requests" as "motions" (if indeed any of them can be treated that way) would eliminate the distinction between predeadline and postdeadline filings that the Rule painstakingly draws. Surely the postdeadline "request," to be even permissibly treated as a "motion," must contain a high degree of formality and precision, putting the opposing party on notice that a motion is at issue and that he therefore ought to respond. The request here had not much of either characteristic. As for formality, it was not even made in a separate filing or in a separate appearance before the court, but was contained in a single sentence at the end of the first paragraph of one of the 18 single-spaced footnotes in a 20-page memorandum of law. Our district judges must read footnotes with new care if they are to be reversed for failing to recognize motions buried in this fashion. And as for precision, the request not only did not ask for any particular extension of time (7 days, 30 days), it did not specifically ask for an extension of time at all, but merely said that respondent "should be given adequate opportunity to supplement the record." Even this, moreover, was not requested (much less moved for) unconditionally, but only "[i]f the court intends to reverse its prior ruling [regarding NWF standing]." Record, Doc. No. 294, p. 17, n. 16. We think it quite impossible to agree with the dissent that the district judge not only might treat this request as a motion, but that he was compelled to do so. Prior to the District Court's entry of the preliminary injunction, 406 mining claims had been staked in the South Pass -Green Mountain area alone. App. 119. An exhibit filed by the federal parties indicated that over 7,200 claims had been filed in 12 Western States. Exh. 1 to Affidavit of Joseph Martyak (Apr. 11, 1986). A Bureau of Land Management (BLM) draft of a Resource Management Plan/Environmental Impact Statement for the Lander, Wyo., Resource Area stated: "In the Green Mountain Management Unit ... significant long-term impacts to elk and mule deer herds could occur from habitat losses caused by oil and gas activities over the next 60 years.... In the WESTLAW Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. 20,962 3 4 5 6 7 8 9 Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk South Pass Management Unit, significant acreages of lodgepole pine forest and aspen conifer woodland habitat types could be disturbed, which would cause significant Tong -term impacts to moose and elk.... If gold mining activities continued to erode these high -value habitats, trout fisheries, the Lander moose herd, the beaver pond ecosystems, and the populations of many other wildlife species would suffer significant cumulative negative effects." Draft RMP/EIS pp. 226-228 (Exh. 3 to Defendant -Intervenors' Reply to Plaintiffs Opposition to Defendants' Motions for Stay Pending Appeal (May 14, 1986)). A BLM Mineral Report issued June 17, 1982, concluded that mining and associated activities "could have an adverse impact on crucial moose habitat, deer habitat, some elk habitat, and a variety of small game and bird species. Improvements at campgrounds, as well as land in the immediate vicinity, could either be damaged or destroyed. These activities could make it difficult for the BLM to manage the forest production and harvesting in the South Pass area. Historical and cultural resources which have and have not been identified could be either damaged or destroyed." Defendant -Intervenors' Exh. 7 (attached as Appendix 1 to Plaintiff National Wildlife Federation's Statement of Points and Authorities in Support of Its Standing To Proceed (Aug. 22, 1988)). See, e.g., May v. Department of Air Force, 777 F.2d 1012, 1016 (CA5 1985); First Commodity Traders, Inc. v. Heinold Commodities, Inc., 766 F.2d 1007, 1011 (CA7 1985); Maldonado v. Ramirez, 757 F.2d 48, 51 (CA3 1985); Galindo v. Precision American Corp., 754 F.2d 1212, 1216 (CA5 1985). See, e.g., App. 123-139 (declaration of Jack Kelly). The areas harmed or threatened by mining and associated activities may extend well beyond the precise location where mining occurs. See n. 2, supra. Five supplemental affidavits were filed. The first was submitted by Peggy Kay Peterson, in clarification of her earlier affidavit: "A substantial portion of the lands which I use ... are identical to those lands" newly opened to mining in the South Pass -Green Mountain area. Peterson Supplemental Affidavit, App. in No. 88-5397 (CADC), p. 356. Ms. Peterson also asserted that "U.S. Energy Corporation has filed a mine permit application with the Bureau and Department, (U.S. Energy Application, TFN 2 4/86), which includes a proposal to mine a significant portion of the federal lands which I use for recreational purposes and aesthetic enjoyment." Id., at 355-356. The other affiants were NWF members David Doran, Merlin McColm, Stephen Blomeke, and Will Ouellette. These individuals identified termination orders that had opened to mining particular tracts of land used by the affiants for recreation and aesthetic enjoyment. The federal parties do not concede that the supplemental affidavits established with certainty the Federation's standing; they contend that further discovery might show the affiants' allegations to be untrue. The federal parties do concede, however, that the supplemental affidavits were not facially deficient. Tr. of Oral Arg. 19. Rule 56(c) provides that when a motion for summary judgment is filed, the "adverse party prior to the day of hearing may serve opposing affidavits." Under Rule 56(e), the district court "may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits." Rule 6(d) states: "When a motion is supported by affidavit, ... opposing affidavits may be served not later than 1 day before the hearing, unless the court permits them to be served at some other time." The district court's authority to permit service "at some other time" is govemed in tum by Rule 6(b), which provides that when an act is required to be performed by a specified time, the district court may "upon motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect." See 4A C. Wright & A. Miller, Federal Practice and Procedure § 1165, p. 475 (2d ed. 1987) (Rule 6(b) "gives the court extensive flexibility to modify the fixed time periods found throughout the rules, whether the enlargement is sought before or after the actual termination of the allotted time"). The Court of Appeals' discussion of standing occurred in the context of a motion to dismiss and therefore, by itself, might not assure NWF that it had made a sufficient showing to withstand a motion for summary judgment. But the Court of Appeals, like the District Court before it, also held that the Federation's showing of injury, as reflected in the Peterson and Erman affidavits, provided an adequate basis for a preliminary injunction. As the second Court of Appeals panel concluded, "the burden of establishing irreparable harm to support a request for a preliminary injunction is, if anything, at least as great as the burden of resisting a summary judgment motion on the ground that the plaintiff cannot demonstrate 'injury -in -fact.' " National Wildlife Federation v. Burford, 278 U.S.App.D.C. 320, 330, 878 F.2d 422, 432 (1989) (emphasis omitted). When the first panel affirmed the District Courts entry of a preliminary injunction, Judge Williams' separate opinion, concurring and dissenting, stated that "the specificity required for standing allegations to secure a preliminary injunction will normally be no less than that required on a motion for summary judgment." 266 U.S.App.D.C., at 264, 835 F.2d, at 328. At the hearing itself Fred R. Disheroon, the federal parties' attomey, argued at length on other points before turning to WESTLAW Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. 20,962 10 Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk the issue of standing. He began that portion of his argument by observing that "perhaps the court doesn't want to hear me argue standing, but I think it is imperative that I address that in the context of this case." Tr. of Motions Hearing 43 (July 22, 1988). The supplemental affidavits were submitted as an attachment to the supplemental legal memorandum on standing requested by the District Court. At the time of their submission, NWF stated only that "NWF now has submitted declarations on behalf of other members of NWF who have been injured by the challenged actions of federal defendants." Plaintiff National Wildlife Federation's Statement of Points and Authorities in Support of Its Standing To Proceed 18, n. 21 (Aug. 22, 1988). However, in its reply memorandum on the issue, NWF addressed the contention of the federal parties and the defendant -intervenor that the affidavits should be ignored as untimely filed. NWF stated: "Plaintiff heretofore, has relied on the courts previous rulings on NWF's standing. In its motion for a protective order against additional discovery, NWF argued that its standing had already been proven on the basis of the affidavits of Mr. Greenwalt, Ms. Peterson, and Mr. Erman. The court agreed and entered the requested protective order. If the court intends to reverse its prior ruling, then NWF respectfully requests that it should be given adequate opportunity to supplement the record." Plaintiff National Wildlife Federation's Reply Memorandum in Support of Its Standing To Proceed 17, n. 16 (Sept. 14, 1988). The Federation also noted that Circuit precedent permitted the filing of supplemental affidavits on standing issues, even on appeal. Ibid., citing National Wildlife Federation v. Hodel, 268 U.S.App.D.C. 15, 24, 839 F.2d 694, 703 (1988). NWF offered the further explanation: "Ms. Peterson has supplemented her affidavit to include new information regarding a mine application which has been filed by U.S. Energy Corporation that includes a proposal to mine lands within the area of South Pass/Green Mountain previously closed to mining. For the record, NWF initially was told by officials of the Bureau of Land Management that the U.S. Energy mine application did not include any lands covered by the court's preliminary injunction. Otherwise, NWF would have supplemented Ms. Peterson's affidavit earlier." Reply memorandum, at 12-13, n. 13. Along with its Reply Memorandum, NWF submitted an additional filing entitled Plaintiff National Wildlife Federation's Memorandum in Opposition to Defendant -Intervenors' Motion To Strike Plaintiffs Supplementation of the Record (Sept. 14, 1988). That filing stated: "For the reasons stated in [the reply memorandum] at page 17, n. 16, plaintiff requests that defendant -intervenors' motion to strike be denied." (In light of this separate submission, addressed solely to the question whether the supplemental affidavits should be considered, and expressly referring to n. 16 of the reply memorandum, it is difficult to fathom the Court's assertion that NWF's request was "buried" in the Federation's filings. See ante, at 3192-3193, n. 5.) This separate filing, in conjunction with the reply memorandum, satisfied Rule 6(b)'s requirement that the request for enlargement of time be made "upon motion." Though neither of these filings was expressly denominated a "motion," they met the requirements of Rule 7(b): They were submitted in writing, were signed by counsel, "state [d] with particularity the grounds therefor," and unambiguously "set forth the relief ... sought." See Campos v. LeFevre, 825 F.2d 671, 676 (CA2 1987) ("[N]o particular form of words is necessary to render a filing a 'motion.' Any submission signed by a party that may fairly be read as a request to the district court to exercise its discretionary powers ... should suffice"), cert. denied, 484 U.S. 1014, 108 S.Ct. 718, 98 L.Ed.2d 667 (1988); Smith v. Danyo, 585 F.2d 83, 86 (CA3 1978) ("Rule 7(b) requires no more than that ... a motion 'state with particularity the grounds' upon which it is based. Plainly, an affidavit which is filed to obtain an order disqualifying a judge satisfies the requirements of Rule 7(b).... The ... failure to type in the word 'motion' above the word 'affidavit' in no way detracts from the notice which the affidavit gave of the nature of the application"). Cf. Snyder v. Smith, 736 F.2d 409, 419 (CA7) ("The Federal Rules are to be construed liberally so that erroneous nomenclature in a motion does not bind a party at his peril"), cert. denied, 469 U.S. 1037, 105 S.Ct. 513, 83 L.Ed.2d 403 (1984); Miller v. Transamerican Press, Inc., 709 F.2d 524, 527 (CA9 1983) ("The court will construe [a motion], however styled, to be the type proper for the relief requested"); 2A J. Moore & J. Lucas, Moore's Federal Practice ¶ 7.05, pp. 7-16 to 7-17 (1989) ("[I]t is the motion's substance, and not merely its linguistic form, that determines its nature and legal effect"). 11 Accord, Allied Chemical Corp. v. Mackay, 695 F.2d 854, 856 (CA5 1983) ("Rule 56(c) does not require an oral hearing in open court. Rather, it contemplates notice to the party opposing the motion and an adequate opportunity to respond to the mover -ifs arguments"); Bratt v. International Business Machines Corp., 785 F.2d 352, 363 (CA1 1986). 12 The District Court subsequently established a schedule for the supplemental briefing. NWF was requested to file its opening memorandum by August 22, 1988; the federal parties and intervenors were to file memoranda in opposition by September 1; and NWF's reply was due by September 14. Order of July 27, 1988. 13 The District Court mentioned these affidavits in a single footnote: "Plaintiff, in addition to its memorandum filed August 22, 1988 has submitted additional evidentiary material, including declarations from four of its members. These submissions are untimely and in violation of our Order. We decline to consider them. See Federal Defendants' Reply to Plaintiffs Statement of Points and Authorities in Support of Its Standing to Proceed, at 1 n. 1." National Wildlife Federation v. Burford, 699 F.Supp. 327, 328-329, n. 3 (D.C.1988). WESTLAW Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. 20,962 14 15 16 Submitted into the public record for item(s) P2.1 . on 12/13/2018 , City Clerk Rule 6(b), for example, which generally gives the district court broad authority to grant enlargements of time, establishes the limitation that the court "may not extend the time for taking any action under Rules 50(b) and (c)(2), 52(b), 59(b), (d) and (e), 60(b), and 74(a), except to the extent and under the conditions stated in them." The term "withdrawal review program" repeatedly has been used in BLM documents. See, e.g., Plaintiffs Exhs. 1, 3, 10, 11, 15, 18, 19 (filed July 15, 1985). At oral argument on the cross -motions for summary judgment, counsel for the federal parties acknowledged: "lt is true, BLM referred to this review process as a land withdrawal review program." Tr. of Motion Hearing 40 (July 22, 1988). Counsel went on to say, "but I suggest that using a word, calling it a program, doesn't make a program in the sense that it is being challenged here." Ibid. That assertion, though inelegant, seems essentially correct: An agency's terminology is not decisive in determining whether an alleged illegality is systemic or site -specific. The majority also suggests that the agency actions challenged in this suit may not be ripe for review. See ante, at 3190-3191. Since the issue of ripeness has not been briefed or argued in this Court, nor passed on by the courts below, I need not address it. I do note, however, that at the outset of this case the federal parties made precisely the opposite argument, asserting that a preliminary injunction should be denied on the ground that NWF's claims were barred by laches. The federal parties contended: "The Federation offers no explanation why, despite its detailed knowledge of BLM's revocation and termination activities, it has waited so long to institute litigation." Defendants' Memorandum in Opposition to Plaintiffs Motion for Preliminary Injunction 26 (Aug. 22, 1985). I also decline to address the adequacy of the affidavit submitted by Lynn Greenwalt, since the Court of Appeals did not pass on that issue. End of Document © 2018 Thomson Reuters. No claim to original U.S. Government Works. WEST LAW Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. 20,962 KeyCite Yellow Flag - Negative Treatment Not Followed on State Law Grounds Levis v. Konitzky, Me., November 17, 2016 no S.Ct. 3177 Supreme Court of the United States Manuel LUJAN, Jr., Secretary of the Interior, et al., Petitioners v. NATIONAL WILDLIFE FEDERATION, et al. No. 89-640. Argued April 16, 1990. Decided June 27, 1990. Synopsis National wildlife group filed action challenging the "land withdrawal review program" of the Bureau of Land Management. The United States District Court for the District of Columbia, John H. Pratt, J., 699 F.Supp. 327, granted summary judgment against the group. Appeal was taken. The Court of Appeals for the District of Columbia, 878 F.2d 422, reversed and remanded. Certiorari was granted. The Supreme Court, Justice Scalia, held that: (1) affidavits which were filed by members of the group and which indicated the members' recreational use and aesthetic enjoyment of land "in the vicinity" of land covered by agency actions under the Bureau's "land withdrawal review program" were insufficient to show that the affiants' interests were actually affected; (2) the "land withdrawal review program" was not "agency action" or "final agency action," within meaning of the Administrative Procedure Act; and (3) affidavit, which indicated that the group's ability to fulfill its informational and advocacy functions was "adversely affected" by alleged failure of the Bureau to provide adequate information and opportunities for public participation with respect to the "land withdrawal review program" failed to identify any particular "agency action" that was the source of the group's alleged injuries. Judgment of the Court of Appeals reversed. Justice Blackmun, dissented and filed opinion in which Justices Brennan, Marshall, and Stevens joined. West Headnotes (14) Itl [2] 131 Submitted into the public record for item(s) P2.1 on 12/13/2018 , City Clerk Administrative Law and Procedure **Persons aggrieved or affected Administrative Law and Procedure Decisions and Acts Reviewable In order to obtain judicial review under the general review provisions of the Administrative Procedure Act, the person claiming right to sue must identify some agency action that affects him in specified fashion and must show that he has suffered legal wrong because of the challenged agency action or is adversely affected or aggrieved by that action within the meaning of a relevant statute. 5 U.S.C.A. § 702. 179 Cases that cite this headnote Administrative Law and Procedure **Finality; ripeness When judicial review of agency action is sought, not pursuant to specific authorization in substantive statute, but only under general review provisions of the Administrative Procedure Act as person suffering legal wrong because of challenged agency action or adversely affected or aggrieved by that action, the "agency action" must be final agency action. 5 U.S.C.A. §§ 551(13), 701(b)(2), 702, 704. 294 Cases that cite this headnote Administrative Law and Procedure Persons aggrieved or affected To be adversely affected or aggrieved within meaning of statute, for purposes of obtaining judicial review of agency action under general review provisions of the Administrative Procedure Act, plaintiff must establish that the injury he complains of (his aggrievement, or the adverse affect upon him) falls within the "zone WESTLAW Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. 20,962 of interests" sought to be protected by the statutory provision whose violation forms the legal basis for his complaint. 5 U.S.C.A. § 702. 312 Cases that cite this headnote 171 141 ,,N 151 Federal Civil Procedure .Lack of cause of action or defense Summary judgment must be entered, after adequate time for discovery and upon motion, against party who fails to make showing sufficient to establish the existence of element essential to that party's case on which that party will bear burden of proof at trial. Fed.Rules Civ.Proc.Rule 56(c), 28 U.S.C.A. 1636 Cases that cite this headnote Federal Civil Procedure .-Burden of proof In order to avoid summary judgment, party who is seeking judicial review of agency action under the general review provision of the Administrative Procedure Act has burden to set forth specific facts, even though they may be controverted by the government, showing that he has satisfied its terms. 5 U.S.C.A. § 702; Fed.Rules Civ.Proc.Rule 56, 28 U.S.C.A. Is) 161 1105 Cases that cite this headnote Federal Civil Procedure .Matters Affecting Right to Judgment Summary judgment rule does not require movant to negate elements of nonmovant's case; rather, regardless of whether movant accompanies its summary judgment motion with affidavits, the motion may, and should, be granted so long as whatever is before the district court demonstrates that standard for entry of summary judgment is satisfied. Fed.Rules WESTLAW Submitted into the public record for item(s) PZ.1 on 12/13/2018 , City Clerk Civ.Proc.Rules 56, 56(c), 28 U.S.C.A. 1205 Cases that cite this headnote Administrative Law and Procedure .Persons aggrieved or affected Environmental Law .-Organizations, associations, and other groups Affidavits, which were filed by members of national wildlife group and which indicated the members' recreational use and aesthetic enjoyment of land "in the vicinity" of land covered by agency actions under the "land withdrawal review program" of the Bureau of Land Management, were insufficient to show that the members' interests were actually affected, for purposes of the general review provisions of the Administrative Procedure Act; affidavits indicated only that the members used unspecified portions of immense tract of territory, on some portions of which mining activity had occurred or probably would occur by virtue of the governmental action, and missing facts could not be "presumed" to establish the injury that was generally alleged. 5 U.S.C.A. § 702; Fed.Rules Civ.Proc.Rule 56, 28 U.S.C.A. 682 Cases that cite this headnote Federal Civil Procedure .-Presumptions When ruling on summary judgment motion, district court must resolve any factual issues of controversy in favor of nonmovant only in the sense that, where facts specifically averred by nonmovant contradict facts specifically averred by movant, motion must be denied. Fed.Rules Civ.Proc.Rule 56, 28 U.S.C.A. 3753 Cases that cite this headnote Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. 20,962 191 1101 Administrative Law and Procedure 0-Finality; ripeness Environmental Law ...Administrative Decisions or Actions Reviewable in General "Land withdrawal review program" of the Bureau of Land Management was not "agency action" for purposes of general review provisions of the Administrative Procedure Act, much less "final agency action," within meaning of the Act; term "land withdrawal review program" did not refer to single Bureau order or regulation, or even to completed universe of particular Bureau orders and regulations, but, rather, referred to the continuing and thus constantly changing operations of the Bureau in reviewing withdrawal revocation applications and the classifications of public lands and developing land use plans as required by the Federal Land Policy and Management Act. Federal Land Policy and Management Act of 1976, § 102 et seq., 43 U.S.C.A. § 1701 et seq.; 5 U.S.C.A. §§ 702, 704. 141 Cases that cite this headnote Administrative Law and Procedure ...Finality; ripeness Substantive rule which as a practical matter requires plaintiff to adjust his conduct immediately is agency action "ripe" for judicial review at once, whether or not explicit statutory review apart from the Administrative Procedure Act is provided. 5 U.S.C.A. §§ 702, 704. 69 Cases that cite this headnote Administrative Law and Procedure ...Finality; ripeness Environmental Law ...Administrative Decisions or Actions Reviewable in General Flaws in the entire "land withdrawal review WESTLAW 1121 1131 1141 Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk program" of the Bureau of Land Management cannot be laid before the courts for wholesale correction under the Administrative Procedure Act simply because one of them that is ripe for review adversely affects one member of national wildlife group. 20 Cases that cite this headnote Administrative Law and Procedure .-Finality; ripeness Except where Congress explicitly provides for correction of the administrative process at higher level of generality, the Supreme Court intervenes in the administration of the laws only when, and to the extent that, specific "final agency action" has actual or immediately threatened effect. 5 U.S.C.A. §§ 702, 704. 65 Cases that cite this headnote Federal Civil Procedure 0—Affidavits Declining to admit supplemental affidavits, which were filed in response to district court's briefing order following the summary judgment hearing, was not abuse of discretion, in action brought under the general review provisions of the Administrative Procedure Act; the affidavits were untimely under applicable rules, and although the district court could perhaps have overcome the apparent lack of a motion, of a showing of cause, and of excusable neglect to admit the affidavits, it was not compelled to receive them. Fed.Rules Civ.Proc.Rules 6(b, d), 56, 56(c), 28 U.S.C.A.; 5 U.S.C.A. § 702. 298 Cases that cite this headnote Administrative Law and Procedure Persons aggrieved or affected Environmental Law Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. 20,962 G.-Administrative Decisions or Actions Reviewable in General Affidavit, which indicated that national wildlife group's ability to fulfill its informational and advocacy functions was adversely affected by alleged failure of the Bureau of Land Management to provide adequate information and opportunities for public participation with respect to the Bureau's "land withdrawal review program," failed to identify any particular "agency action" that was source of the group's alleged injury, and, thus, group was not entitled to judicial review of the Bureau's actions under the general review provisions of the Administrative Procedure Act; the "land withdrawal review program" was not identifiable action or event, and group could not demand general judicial review of the Bureau's day-to-day operations. 5 U.S.C.A. §§ 702, 704. 62 Cases that cite this headnote **3179 Syllabus' *871 The National Wildlife Federation (hereinafter respondent) filed this action in the District Court against petitioners, the Director of the Bureau of Land Management (BLM) and other federal parties, alleging that, in various respects, they had violated the Federal Land Policy and Management Act of 1976 (FLPMA) and the National Environmental Policy Act of 1969 (NEPA) in the course of administering the BLM's "land withdrawal review program," and that the complained -of actions should be set aside because they were "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law" within the meaning of § 10(e) of the Administrative Procedure Act (APA), 5 U.S.C. § 706. Under the program, petitioners make various types of decisions affecting the status of public lands and their availability for private uses such as mining, a number of which decisions were listed in an appendix to the complaint. The court granted petitioners' motion for summary judgment under Federal Rule of Civil Procedure 56, holding that respondent lacked standing to seek judicial review of petitioners' actions under the APA, § 702. The court ruled that affidavits by two of respondent's members, Peterson and Erman, claiming use of public WESTLAW Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk lands "in the vicinity" of lands covered by two of the listed decisions, were insufficient to confer standing as to those particular decisions, and that, even if they had been adequate for that limited purpose, they could not support respondent's attempted APA challenge to each of the 1,250 or so individual actions effected under the program. The **3180 court rejected as untimely four more member affidavits pertaining to standing, which were submitted after argument on the summary judgment motion and in purported response to the District Court's postargument request for additional briefing. The Court of Appeals reversed, holding that the Peterson and Erman affidavits were sufficient in themselves, that it was an abuse of discretion not to consider the four additional affidavits, and that standing to challenge the individual decisions conferred standing to challenge all such decisions. Held: 1. The Peterson and Erman affidavits are insufficient to establish respondent's § 702 entitlement to judicial review as "[a] person ... *872 adversely affected or aggrieved by agency action within the meaning of a relevant statute." Pp. 3185-3189. (a) To establish a right to relief under § 702, respondent must satisfy two requirements. First, it must show that it has been affected by some "agency action," as defined in § 551(13). See § 701(b)(2). Since neither the FLPMA nor NEPA provides a private right of action, the "agency action" in question must also be "final agency action" under § 704. Second, respondent must prove that it is "adversely affected or aggrieved" by that action "within the meaning of a relevant statute," which requires a showing that the injury complained of falls within the "zone of interests" sought to be protected by the FLPMA and NEPA. Cf. Clarke v. Securities Industry Assn., 479 U.S. 388, 396-397, 107 S.Ct. 750, 755-756, 93 L.Ed.2d 757. Pp. 3185-3186. (b) When a defendant moves for summary judgment on the ground that the plaintiff has failed to establish a right to relief under § 702, the burden is on the plaintiff, under Rule 56(e), to set forth specific facts (even though they may be controverted by the defendant) showing that there is a genuine issue for trial. Cf Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265. Where no such showing is made, the defendant is entitled to judgment as a matter of law. Id., at 323, 106 S.Ct., at 2552. Pp. 3186-3187. (c) The specific facts alleged in the two affidavits do not raise a genuine issue of fact as to whether respondent has a right to relief under § 702. It may be assumed that the Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. 20,962 allegedly affected interests set forth in the affidavits -"recreational use and aesthetic enjoyment" -are sufficiently related to respondent's purposes that respondent meets § 702's requirements if any of its members do. Moreover, each affidavit can be read to complain of a particular "agency action" within § 551's meaning; and whatever "adverse effect" or "aggrievement" is established by the affidavits, meets the "zone of interests" test, since "recreational use and aesthetic enjoyment" are among the sorts of interests that the FLPMA and NEPA are designed to protect. However, there has been no showing that those interests of Peterson and Erman were actually "affected" by petitioners' actions, since the affidavits alleged only that the affiants used unspecified lands "in the vicinity of' immense tracts of territory, only on some portions of which, the record shows, mining activity has occurred or probably will occur by virtue of the complained -of actions. The Court of Appeals erred in ruling that the District Court had to presume specific facts sufficient to support the general allegations of injury to the affiants, since such facts are essential to sustaining the complaint and, under Rule 56(e), had to be set forth by respondent. United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669, 93 S.Ct. 2405, 37 L.Ed.2d 254, distinguished. Pp. 3187-3189. *873 2. Respondent's four additional member affidavits did not establish its right to § 702 review. Pp. 3189-3193. (a) The affidavits are insufficient to enable respondent to challenge the entirety of **3181 petitioners' "land withdrawal review program." That term does not refer to a single BLM order or regulation, or even to a completed universe of particular BLM orders and regulations, but is simply the name by which petitioners have occasionally referred to certain continuing (and thus constantly changing) BLM operations regarding public lands, which currently extend to about 1,250 individual decisions and presumably will include more actions in the future. Thus, the program is not an identifiable "agency action" within § 702's meaning, much less a "final agency action" under § 704. Absent an explicit congressional authorization to correct the administrative process on a systemic level, agency action is not ordinarily considered "ripe" for judicial review under the APA until the scope of the controversy has been reduced to manageable proportions, and its factual components fleshed out, by concrete action that harms or threatens to harm the complainant. It may well be, due to the scope of the "program," that the individual BLM actions identified in the affidavits will not be "ripe" for challenge until some further agency action or inaction more immediately harming respondent occurs. But it is entirely certain that the flaws in the entire WESTLAW Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk "program" cannot be laid before the courts for wholesale correction under the APA simply because one of them that is ripe for review adversely affects one of respondent's members. Respondent must seek such programmatic improvements from the BLM or Congress. Pp. 3189-3191. (b) The District Court did not abuse its discretion in declining to admit the supplemental affidavits. Since the affidavits were filed in response to the court's briefing order following the summary judgment hearing, they were untimely under, inter alia, Rule 6(d), which provides that "opposing affidavits may be served not later than 1 day before the hearing." Although Rule 6(b) allows a court, "in its discretion," to extend any filing deadline "for cause shown," a post -deadline extension must be "upon motion made," and is permissible only where the failure to meet the deadline "was the result of excusable neglect." Here, respondent made no motion for extension nor any showing of "cause." Moreover, the failure to timely file did not result from "excusable neglect," since the court's order setting the hearing on the summary judgment motion put respondent on notice that its right to sue was at issue, and that (absent proper motion) the time for filing additional evidentiary materials was, at the latest, the day before the hearing. Even if the court could have overcome these obstacles to admit the affidavits, it was not compelled, in exercising its discretion, to do so. Pp. 3191-3193. *874 3. Respondent is not entitled to seek § 702 review of petitioners' actions in its own right. The brief affidavit submitted to the District Court to show that respondent's ability to fulfill its informational and advocacy functions was "adversely affected" by petitioners' alleged failure to provide adequate information and opportunities for public participation with respect to the land withdrawal review program fails to identify any particular "agency action" that was the source of respondent's alleged injuries, since that program is not an identifiable action or event. Thus, the affidavit does not set forth the specific facts necessary to survive a Rule 56 motion. Pp. 3193-3194. 278 U.S. App. D.C. 320, 878 F.2d 422 (1989), reversed. SCALIA, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and WHITE, O'CONNOR, and KENNEDY, JJ., joined. BLACKMUN, J., filed a dissenting opinion, in which BRENNAN, MARSHALL, and STEVENS, JJ., joined, post, p. 3194. Attorneys and Law Firms Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. 20,962 Acting Solicitor General Roberts argued the cause for petitioners. With him on the briefs were Assistant Attorney General Stewart, Deputy Solicitor General Wallace, Lawrence S. Robbins, Peter R. Steenland, Jr., Anne S. Almy, Fred R. Disheroon, and Vicki L. Plaut. E. Barrett Prettyman, Jr., argued the cause for respondents. With him on the brief were John C. Keeney, Jr., Kathleen C. Zimmerman, and Norman L. Dean, Jr. William Perry Pendley filed a brief for respondents Mountain States Legal Foundation et al. * * Briefs of amici curiae urging reversal were filed for the American Farm Bureau Federation et al. by Kathryn A. Oberly and John J. Rademacher; for the American Mining Congress by Jerry L. Haggard and Gerrie Apker Kurtz; for the National Cattlemen's Association et al. by Constance E. Brooks; for the Pacific Legal Foundation by Ronald A. Zumbrun, Robin L. Rivett, and James S. Burling; and for the Washington Legal Foundation et al. by Terence P. Ross, Daniel J. Popeo, and Richard A. Samp. Briefs of amici curiae urging affirmance were filed for the State of California et al. by John K. Van de Kamp, Attorney General of California, Andrea Sheridan Ordin, Chief Assistant Attorney General, and Craig C. Thompson, Susan L. Durbin, Clifford L. Rechtschaffen, and Nilda M. Mesa, Deputy Attorney Generals, and for the Attorneys General for their respective States as follows: Robert A. Butterworth of Florida, Lacy H. Thornburg of North Carolina, Anthony J. Celebrezze, Jr., of Ohio, Jeffrey L. Amestoy of Vermont, and Joseph B. Meyer of Wyoming; and for the Wilderness Society et al. by Bruce J. Ennis, Jr. Opinion *875 Justice SCALIA delivered the opinion of the Court. In this case we must decide whether respondent, the National Wildlife Federation **3182 (hereinafter respondent), is a proper party to challenge actions of the Federal Government relating to certain public lands. I 4traw- Respondent filed this action in 1985 in the United States District Court for the District of Columbia against WESTLAW Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk petitioners the United States Department of the Interior, the Secretary of the Interior, and the Director of the Bureau of Land Management (BLM), an agency within the Department. In its amended complaint, respondent alleged that petitioners had violated the Federal Land Policy and Management Act of 1976 (FLPMA), 90 Stat. 2744, 43 U.S.C. § 1701 et seq. (1982 ed.), the National Environmental Policy Act of 1969 (NEPA), 83 Stat. 852, 42 U.S.C. § 4321 et seq., and § 10(e) of the Administrative Procedure Act (APA), 5 U.S.C. § 706, in the course of administering what the complaint called the "land withdrawal review program" of the BLM. Some background information concerning that program is necessary to an understanding of this dispute. In various enactments, Congress empowered United States citizens to acquire title to, and rights in, vast portions of federally owned land. See, e.g., Rev.Stat. § 2319, 30 U.S.C. § 22 et seq. (Mining Law of 1872); 41 Stat. 437, as amended, 30 U.S.C. § 181 et seq. (Mineral Leasing Act of 1920). Congress also provided means, however, for the Executive to remove public lands from the operation of these statutes. The Pickett Act, 36 Stat. 847, 43 U.S.C. § 141 (1970 ed.), repealed, 90 Stat. 2792 (1976), authorized the President "at any time in his discretion, temporarily [to] withdraw from settlement, location, sale, or entry any of the *876 public lands of the United States ... and reserve the same for water -power sites, irrigation, classification of lands, or other public purposes...." Acting under this and under the Taylor Grazing Act of 1934, ch. 865, 48 Stat. 1269, as amended, 43 U.S.C. § 315f, which gave the Secretary of the Interior authority to "classify" public lands as suitable for either disposal or federal retention and management, President Franklin Roosevelt withdrew all unreserved public land from disposal until such time as they were classified. Exec. Order No. 6910, Nov. 26, 1934; Exec. Order No. 6964, Feb. 5, 1935. In 1936, Congress amended § 7 of the Taylor Grazing Act to authorize the Secretary of the Interior "to examine and classify any lands" withdrawn by these orders and by other authority as "more valuable or suitable" for other uses "and to open such lands to entry, selection, or location for disposal in accordance with such classification under applicable public -land laws." 49 Stat. 1976, 43 U.S.C. § 315f (1982 ed.). The amendment also directed that "[s]uch lands shall not be subject to disposition, settlement, or occupation until after the same have been classified and opened to entry." Ibid. The 1964 classification and multiple use Act, 78 Stat. 986, 43 U.S.C. §§ 1411-1418 (1970 ed.) (expired 1970), gave the Secretary further authority to classify lands for the purpose of either disposal or retention by the Federal Government. Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. Management of the public lands under these various laws became chaotic. The Public Land Law Review Commission, established by Congress in 1964 to study the matter, 78 Stat. 982, determined in 1970 that "virtually all" of the country's public domain, see Public Land Law Review Commission, One Third of the Nation's Land 52 (1970)-about one-third of the land within the United States, see id., at 19-had been withdrawn or classified for retention; that it was difficult to determine "the extent of existing Executive withdrawals and the degree to which withdrawals overlap each other," id., at 52; and that there were inadequate records to show the purposes *877 of withdrawals and the permissible public uses. Ibid. Accordingly, it recommended that "Congress should provide for a careful review of (1) all Executive withdrawals and reservations, and (2) BLM retention and disposal classifications under the Classification and Multiple Use Act of 1964." Ibid. **3183 In 1976, Congress passed the FLPMA, which repealed many of the miscellaneous laws governing disposal of public land, 43 U.S.C. § 1701 et seq. (1982 ed.), and established a policy in favor of retaining public lands for multiple use management. It directed the Secretary to "prepare and maintain on a continuing basis an inventory of all public lands and their resource and other values," § 1711(a), required land use planning for public lands, and established criteria to be used for that purpose, § 1712. It provided that existing classifications of public lands were subject to review in the land use planning process, and that the Secretary could "modify or terminate any such classification consistent with such land use plans." § 1712(d). It also authorized the Secretary to "make, modify, extend or revoke" withdrawals. § 1714(a). Finally it directed the Secretary, within 15 years, to review withdrawals in existence in 1976 in 11 Western States, § 1714(1 )(1), and to "determine whether, and for how long, the continuation of the existing withdrawal of the lands would be, in his judgment, consistent with the statutory objectives of the programs for which the lands were dedicated and of the other relevant programs," § 1714(1 )(2). The activities undertaken by the BLM to comply with these various provisions constitute what respondent's amended complaint styles the BLM's "land withdrawal review program," which is the subject of the current litigation. Pursuant to the directives of the FLPMA, petitioners engage in a number of different types of administrative action with respect to the various tracts of public land within the United States. First, the BLM conducts the review and recommends the determinations required by § 1714(1) with *878 respect to withdrawals in 11 Western States. The law requires the Secretary to "report his WESTLAW 20,962 Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk recommendations to the President, together with statements of concurrence or nonconcurrence submitted by the heads of the departments or agencies which administer the lands"; the President must in turn submit this report to the Congress, together with his recommendation "for action by the Secretary, or for legislation." § 1714(1 )(2). The Secretary has submitted a number of reports to the President in accordance with this provision. Second, the Secretary revokes some withdrawals under § 204(a) of the Act, which the Office of the Solicitor has interpreted to give the Secretary the power to process proposals for revocation of withdrawals made during the "ordinary course of business." U.S. Dept. of the Interior, Memorandum from the Office of the Solicitor, Oct. 30, 1980. These revocations are initiated in one of three manners: An agency or department holding a portion of withdrawn land that it no longer needs may file a notice of intention to relinquish the lands with the BLM. Any member of the public may file a petition requesting revocation. And in the case of lands held by the BLM, the BLM itself may initiate the revocation proposal. App. 56-57. Withdrawal revocations may be made for several reasons. Some are effected in order to permit sale of the land; some for record -clearing purposes, where the withdrawal designation has been superseded by congressional action or overlaps with another withdrawal designation; some in order to restore the land to multiple use management pursuant to § 102(a)(7) of the FLPMA, 43 U.S.C. § 1701(a)(7) (1982 ed.). App. 142-145. Third, the Secretary engages in the ongoing process of classifying public lands, either for multiple use management, pt. 2420, for disposal, pt. 2430, or for other uses. Classification decisions may be initiated by petition, pt. 2450, or by the BLM itself, pt. 2460. Regulations promulgated *879 by the Secretary prescribe the procedures to be followed in the case of each type of classification determination. II In its complaint, respondent averred generally that the reclassification of some withdrawn **3184 lands and the return of others to the public domain would open the lands up to mining activities, thereby destroying their natural beauty. Respondent alleged that petitioners, in the course of administering the Nation's public lands, had violated the FLPMA by failing to "develop, maintain, Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. 20,962 and, when appropriate, revise land use plans which provide by tracts or areas for the use of the public lands," 43 U.S.C. § 1712(a) (1982 ed.); failing to submit recommendations as to withdrawals in the 11 Western States to the President, § 1714(1 ); failing to consider multiple uses for the disputed lands, § 1732(a), focusing inordinately on such uses as mineral exploitation and development; and failing to provide public notice of decisions, §§ 1701(a)(5), 1712(c)(9), 1712(f), and 1739(e). Respondent also claimed that petitioners had violated NEPA, which requires federal agencies to "include in every recommendation or report on ... major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on ... the environmental impact of the proposed action." 42 U.S.C. § 4332(2)(C) (1982 ed.). Finally, respondent alleged that all of the above actions were "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law," and should therefore be set aside pursuant to § 10(e) of the APA, 5 U.S.C. § 706. Appended to the amended complaint was a schedule of specific land -status determinations, which the complaint stated had been "taken by defendants since January 1, 1981"; each was identified by a listing in the Federal Register. In December 1985, the District Court granted respondent's motion for a preliminary injunction prohibiting petitioners from "[m]odifying, terminating or altering any withdrawal, classification, or other designation governing the protection *880 of lands in the public domain that was in effect on January 1, 1981," and from "[t]aking any action inconsistent" with any such withdrawal, classification, or designation. App. to Pet. for Cert. 185a. In a subsequent order, the court denied petitioners' motion under Rule 12(b) of the Federal Rules of Civil Procedure to dismiss the complaint for failure to demonstrate standing to challenge petitioners' actions under the APA, 5 U.S.C. § 702. App. to Pet. for Cert. 183a. The Court of Appeals affirmed both orders. National Wildlife Federation v. Burford, 266 U.S.App.D.C. 241, 835 F.2d 305 (1987). As to the motion to dismiss, the Court of Appeals found sufficient to survive the motion the general allegation in the amended complaint that respondent's members used environmental resources that would be damaged by petitioners' actions. See id., at 248, 835 F.2d, at 312. It held that this allegation, fairly read along with the balance of the complaint, both identified particular land -status actions that respondent sought to challenge -since at least some of the actions complained of were listed in the complaint's appendix of Federal Register references -and asserted harm to respondent's members attributable to those particular actions. Id., at 249, 835 F.2d, at 313. To support WESTLAW Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk the latter point, the Court of Appeals pointed to the affidavits of two of respondent's members, Peggy Kay Peterson and Richard Erman, which claimed use of land "in the vicinity" of the land covered by two of the listed actions. Thus, the Court of Appeals concluded, there was "concrete indication that [respondent's] members use specific lands covered by the agency's Program and will be adversely affected by the agency's actions," and the complaint was "sufficiently specific for purposes of a motion to dismiss." Ibid. On petitions for rehearing, the Court of Appeals stood by its denial of the motion to dismiss and directed the parties and the District Court "to proceed with this litigation with dispatch.", National Wildlife Federation v. Burford, 269 U.S.App.D.C. 271, 272, 844 F.2d 889, 890 (1988). *881 Back before the District Court, petitioners again claimed, this time by means of a motion for summary judgment under Rule 56 **3185 of the Federal Rules of Civil Procedure (which motion had been outstanding during the proceedings before the Court of Appeals), that respondent had no standing to seek judicial review of petitioners' actions under the APA. After argument on this motion, and in purported response to the court's postargument request for additional briefing, respondent submitted four additional member affidavits pertaining to the issue of standing. The District Court rejected them as untimely, vacated the injunction and granted the Rule 56 motion to dismiss. It noted that neither its earlier decision nor the Court of Appeals' affirmance controlled the question, since both pertained to a motion under Rule 12(b). It found the Peterson and Erman affidavits insufficient to withstand the Rule 56 motion, even as to judicial review of the particular classification decisions to which they pertained. And even if they had been adequate for that limited purpose, the court said, they could not support respondent's attempted APA challenge to "each of the 1250 or so individual classification terminations and withdrawal revocations" effected under the land withdrawal review program. National Wildlife Federation v. Burford, 699 F.Supp. 327, 332 (DC 1988). This time the Court of Appeals reversed. National Wildlife Federation v. Burford, 278 U.S.App.D.C. 320, 878 F.2d 422 (1989). It both found the Peterson and Erman affidavits sufficient in themselves and held that it was an abuse of discretion not to consider the four additional affidavits as well.' The Court of Appeals also concluded that *882 standing to challenge individual classification and withdrawal decisions conferred standing to challenge all such decisions under the land withdrawal review program. We granted certiorari. 493 U.S. 1042, 110 S.Ct. 834, 107 L.Ed.2d 830 (1990). Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 4irt110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. 20,962 III A 111 121 We first address respondent's claim that the Peterson and Erman affidavits alone suffice to establish respondent's right to judicial review of petitioners' actions. Respondent does not contend that either the FLPMA or NEPA provides a private right of action for violations of its provisions. Rather, respondent claims a right to judicial review under § 10(a) of the APA, which provides: "A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof." 5 U.S.C. § 702. This provision contains two separate requirements. First, the person claiming a right to sue must identify some "agency action" that affects him in the specified fashion; it is judicial review "thereof' to which he is entitled. The meaning of "agency action" for purposes of § 702 is set forth in 5 U.S.C. § 551(13), see 5 U.S.C. § 701(b)(2) ("For the purpose of this chapter ... `agency action' ha[s] the meanin[g] given ... by section 551 of this title"), which defines the term as "the whole or a part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act," 5 U.S.C. § 551(13). When, as here, review is sought not pursuant to specific authorization in the substantive statute, but only under the general review provisions of the APA, the "agency action" in question must be "final agency action." See 5 U.S.C. § 704 ("Agency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court are subject to judicial review" (emphasis added). **3186 *883 j3i Second, the party seeking review under § 702 must show that he has "suffer[ed] legal wrong" because of the challenged agency action, or is "adversely affected or aggrieved" by that action "within the meaning of a relevant statute." Respondent does not assert that it has suffered "legal wrong," so we need only discuss the meaning of "adversely affected or aggrieved ... within the meaning of a relevant statute." As an original matter, it might be thought that one cannot be WESTLAW Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk "adversely affected or aggrieved within the meaning" of a statute unless the statute in question uses those terms (or terms like them) -as some pre-APA statutes in fact did when conferring rights of judicial review. See, e.g., Federal Communications Act of 1934, § 402(b)(2), 48 Stat. 1093, as amended, 47 U.S.C. § 402(b)(6) (1982 ed.). We have long since rejected that interpretation, however, which would have made the judicial review provision of the APA no more than a restatement of pre-existing law. Rather, we have said that to be "adversely affected or aggrieved ... within the meaning" of a statute, the plaintiff must establish that the injury he complains of (his aggrievement, or the adverse effect upon him ) falls within the "zone of interests" sought to be protected by the statutory provision whose violation forms the legal basis for his complaint. See Clarke v. Securities Industry Assn., 479 U.S. 388, 396-397, 107 S.Ct. 750, 755-756, 93 L.Ed.2d 757 (1987). Thus, for example, the failure of an agency to comply with a statutory provision requiring "on the record" hearings would assuredly have an adverse effect upon the company that has the contract to record and transcribe the agency's proceedings; but since the provision was obviously enacted to protect the interests of the parties to the proceedings and not those of the reporters, that company would not be "adversely affected within the meaning" of the statute. Because this case comes to us on petitioners' motion for sununary judgment, we must assess the record under the *884 standard set forth in Rule 56 of the Federal Rules of Civil Procedure. Rule 56(c) states that a party is entitled to summary judgment in his favor "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Rule 56(e) further provides: "When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. 20,962 affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party." 141 As we stated in Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986), "the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Id., at 322, 106 S.Ct., at 2552. Where no such showing is made, "[t]he moving party is `entitled to a judgment as a matter of law' because the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof." Id., at 323, 106 S.Ct., at 2552. 151 161 These standards are fully applicable when a defendant moves for summary judgment, in a suit brought under § 702, on the ground that the plaintiff has failed to show that he is "adversely affected or aggrieved by agency action within the meaning of a relevant statute." The burden is on the party seeking review under § 702 to set forth **3187 specific facts (even though they may be controverted by the Government) showing that he has satisfied its terms. *885 Sierra Club v. Morton, 405 U.S. 727, 740, 92 S.Ct. 1361, 1369, 31 L.Ed.2d 636 (1972). Celotex made clear that Rule 56 does not require the moving party to negate the elements of the nonmoving party's case; to the contrary, "regardless of whether the moving party accompanies its summary judgment motion with affidavits, the motion may, and should, be granted so long as whatever is before the district court demonstrates that the standard for the entry of summary judgment, as set forth in Rule 56(c), is satisfied." 477 U.S., at 323, 106 S.Ct., at 2553. 17j We turn, then, to whether the specific facts alleged in the two affidavits considered by the District Court raised Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk a genuine issue of fact as to whether an "agency action" taken by petitioners caused respondent to be "adversely affected or aggrieved ... within the meaning of a relevant statute." We assume, since it has been uncontested, that the allegedly affected interests set forth in the affidavits -"recreational use and aesthetic enjoyment" -are sufficiently related to the purposes of respondent association that respondent meets the requirements of § 702 if any of its members do. Hunt v. Washington State Apple Advertising Comm 'n, 432 U.S. 333, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977). As for the "agency action" requirement, we think that each of the affidavits can be read, as the Court of Appeals believed, to complain of a particular "agency action" as that term is defined in § 551. The parties agree that the Peterson affidavit, judging from the geographic area it describes, must refer to that one of the BLM orders listed in the appendix to the complaint that appears at 49 Fed.Reg. 19904-19905 (1984), an order captioned W-6228 and dated April 30, 1984, terminating the withdrawal classification of some 4,500 acres of land in that area. See, e.g., Brief for Petitioners 8-10. The parties also appear to agree, on the basis of similar deduction, that the Erman affidavit refers to the BLM order listed in the appendix that appears at *886 47 Fed.Reg. 7232-7233 1982), an order captioned Public Land Order 6156 and dated February 18, 1982. We also think that whatever "adverse effect" or "aggrievement" is established by the affidavits was "within the meaning of the relevant statute"-i.e., met the "zone of interests" test. The relevant statute, of course, is the statute whose violation is the gravamen of the complaint -both the FLPMA and NEPA. We have no doubt that "recreational use and aesthetic enjoyment" are among the sorts of interests those statutes were specifically designed to protect. The only issue, then, is whether the facts alleged in the affidavits showed that those interests of Peterson and Erman were actually affected. The Peterson affidavit averred: "My recreational use and aesthetic enjoyment of federal lands, particularly those in the vicinity of South Pass -Green Mountain, Wyoming have been and continue to be adversely affected in fact by the unlawful actions of the Bureau and the Department. In particular, the South Pass -Green Mountain area of Wyoming has been opened to the staking of mining claims and oil and gas leasing, an action which threatens the aesthetic beauty and wildlife habitat potential of these lands." App. to Pet. for Cert. 191a. WESTLAW Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. 20,962 Erman's affidavit was substantially the same as Peterson's, with respect to all except the area involved; he claimed use of land "in the vicinity of Grand Canyon National Park, the Arizona Strip (Kanab Plateau), and the Kaibab National Forest." Id., at 187a. The District Court found the Peterson affidavit inadequate for the following reasons: "Peterson ... claims that she uses federal lands in the vicinity of the South Pass- **3188 Green Mountain area of Wyoming for recreational purposes and for aesthetic enjoyment and that her recreational and aesthetic enjoyment *887 has been and continues to be adversely affected as the result of the decision of BLM to open it to the staking of mining claims and oil and gas leasing.... This decision [W-6228] opened up to mining approximately 4500 acres within a two million acre area, the balance of which, with the exception of 2000 acres, has always been open to mineral leasing and mining.... There is no showing that Peterson's recreational use and enjoyment extends to the particular 4500 acres covered by the decision to terminate classification to the remainder of the two million acres affected by the termination. All she claims is that she uses lands 'in the vicinity.' The affidavit on its face contains only a bare allegation of injury, and fails to show specific facts supporting the affiant's allegation." 699 F.Supp., at 331 (emphasis in original). The District Court found the Erman affidavit "similarly flawed." "The magnitude of Erman's claimed injury stretches the imagination.... [T]he Arizona Strip consists of all lands in Arizona north and west of the Colorado River on approximately 5.5 million acres, an area one -eighth the size of the State of Arizona. Furthermore, virtually the entire Strip is and for many years has been open to uranium and other metalliferous mining. The revocation of withdrawal [in Public Land Order 6156] concerned only non -metalliferous mining in the western one-third of the Arizona Strip, an area possessing no potential for non -metalliferous mining." Id., at 332. The Court of Appeals disagreed with the District Court's assessment as to the Peterson affidavit (and thus found it unnecessary to consider the Erman affidavit) for the following reason: "If Peterson was not referring to lands in this 4500-acre affected area, her allegation of impairment to her use and enjoyment would be meaningless, or perjurious.... *888 [T]he trial court overlooks the fact that unless WESTLAW Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk Peterson's language is read to refer to the lands affected by the Program, the affidavit is, at best, a meaningless document. "At a minimum, Peterson's affidavit is ambiguous regarding whether the adversely affected lands are the ones she uses. When presented with ambiguity on a motion for summary judgment, a District Court must resolve any factual issues of controversy in favor of the non-moving party.... This means that the District Court was obliged to resolve any factual ambiguity in favor of NWF, and would have had to assume, for the purposes of summary judgment, that Peterson used the 4500 affected acres." 278 U.S.App.D.C., at 329, 878 F.2d, at 431. 181 That is not the law. In ruling upon a Rule 56 motion, "a District Court must resolve any factual issues of controversy in favor of the non-moving party" only in the sense that, where the facts specifically averred by that party contradict facts specifically averred by the movant, the motion must be denied. That is a world apart from "assuming" that general averments embrace the "specific facts" needed to sustain the complaint. As set forth above, Rule 56(e) provides that judgment "shall be entered" against the nonmoving party unless affidavits or other evidence "set forth specific facts showing that there is a genuine issue for trial." The object of this provision is not to replace conclusory allegations of the complaint or answer with conclusory allegations of an affidavit. Cf. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986) ("[T]he plaintiff could not rest on his allegations of a conspiracy to get to a jury without 'any significant probative evidence tending to support the complaint' "), quoting First National Bank of Ariz. v. Cities Service Co., 391 U.S. 253, 290, 88 S.Ct. 1575, 1593, 20 L.Ed.2d 569 (1968). Rather, the purpose of Rule 56 is to enable a party who believes there is no genuine dispute as to a specific fact essential to the **3189 other side's case to demand at least one *889 sworn averment of that fact before the lengthy process of litigation continues. At the margins there is some room for debate as to how "specific" must be the "specific facts" that Rule 56(e) requires in a particular case. But where the fact in question is the one put in issue by the § 702 challenge here -whether one of respondent's members has been, or is threatened to be, "adversely affected or aggrieved" by Government action -Rule 56(e) is assuredly not satisfied by averments which state only that one of respondent's members uses unspecified portions of an immense tract of territory, on some portions of which mining activity has occurred or probably will occur by virtue of the governmental action. It will not do to "presume" the Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. 20,962 missing facts because without them the affidavits would not establish the injury that they generally allege. That converts the operation of Rule 56 to a circular promenade: plaintiffs complaint makes general allegation of injury; defendant contests through Rule 56 existence of specific facts to support injury; plaintiff responds with affidavit containing general allegation of injury, which must be deemed to constitute averment of requisite specific facts since otherwise allegation of injury would be unsupported (which is precisely what defendant claims it is). Respondent places great reliance, as did the Court of Appeals, upon our decision in United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669, 93 S.Ct. 2405, 37 L.Ed.2d 254 (1973). The SCRAP opinion, whose expansive expression of what would suffice for § 702 review under its particular facts has never since been emulated by this Court, is of no relevance here, since it involved not a Rule 56 motion for summary judgment but a Rule 12(b) motion to dismiss on the pleadings. The latter, unlike the former, presumes that general allegations embrace those specific facts that are necessary to support the claim. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957). *890 IV We turn next to the Court of Appeals' alternative holding that the four additional member affidavits proffered by respondent in response to the District Court's briefing order established its right to § 702 review of agency action. A 191 It is impossible that the affidavits would suffice, as the Court of Appeals held, to enable respondent to challenge the entirety of petitioners' so-called "land withdrawal review program." That is not an "agency action" within the meaning of § 702, much less a "final agency action" within the meaning of § 704. The term "land withdrawal review program" (which as far as we know is not derived from any authoritative text) does not refer to a single BLM order or regulation, or even to a completed universe of particular BLM orders and regulations. It is simply the WESTLAW Submitted into the public record for item(s)_ PZ.1 . on 12/13/2018 , City Clerk name by which petitioners have occasionally referred to the continuing (and thus constantly changing) operations of the BLM in reviewing withdrawal revocation applications and the classifications of public lands and developing land use plans as required by the FLPMA. It is no more an identifiable "agency action" -much less a "final agency action" -than a "weapons procurement program" of the Department of Defense or a "drug interdiction program" of the Drug Enforcement Administration. As the District Court explained, the "land withdrawal review program" extends to, currently at least, "1250 or so individual classification terminations and withdrawal revocations." 699 F.Supp., at 332.2 **3190 *891 j101 Respondent alleges that violation of the law is rampant within this program -failure to revise land use plans in proper fashion, failure to submit certain recommendations to Congress, failure to consider multiple use, inordinate focus upon mineral exploitation, failure to provide required public notice, failure to provide adequate environmental impact statements. Perhaps so. But respondent cannot seek wholesale improvement of this program by court decree, rather than in the offices of the Department or the halls of Congress, where programmatic improvements are normally made. Under the terms of the APA, respondent must direct its attack against some particular "agency action" that causes it harm. Some statutes permit broad regulations to serve as the "agency action," and thus to be the object of judicial review directly, even before the concrete effects normally required for APA review are felt. Absent such a provision, however, a regulation is not ordinarily considered the type of agency action "ripe" for judicial review under the APA until the scope of the controversy has been reduced to more manageable proportions, and its factual components fleshed out, by some concrete action applying the regulation to the claimant's situation in a fashion that harms or threatens to harm him. (The major exception, of course, is a substantive rule which as a practical matter requires the plaintiff to adjust his conduct immediately. Such agency action is "ripe" for review at once, whether or not explicit statutory review apart from the APA is provided. See Abbott Laboratories v. Gardner, 387 U.S. 136, 152-154, 87 S.Ct. 1507, 1517-1518, 18 L.Ed.2d 681 (1967); Gardner v. Toilet Goods Assn., Inc., 387 U.S. 167, 171-173, 87 S.Ct. 1526, 1528-1530, 18 L.Ed.2d 704 (1967). Cf. Toilet *892 Goods Assn., Inc. v. Gardner, 387 U.S. 158, 164-166, 87 S.Ct. 1520, 1524-1526, 18 L.Ed.2d 697 (1967).) j111 In the present case, the individual actions of the BLM identified in the six affidavits can be regarded as rules of general applicability (a "rule" is defined in the APA as agency action of "general or particular applicability and Ammo Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. future effect," 5 U.S.C. § 551(4) (emphasis added)) announcing, with respect to vast expanses of territory that they cover, the agency's intent to grant requisite permission for certain activities, to decline to interfere with other activities, and to take other particular action if requested. It may well be, then, that even those individual actions will not be ripe for challenge until some further agency action or inaction more immediately harming the plaintiff occurs.' But it is at least entirely *893 certain that the flaws in the entire "program" -consisting principally of the many individual actions **3191 referenced in the complaint, and presumably actions yet to be taken as well -cannot be laid before the courts for wholesale correction under the APA, simply because one of them that is ripe for review adversely affects one of respondent's members.° *894 1121 The case -by -case approach that this requires is understandably frustrating to an organization such as respondent, which has as its objective across-the-board protection of our Nation's wildlife and the streams and forests that support it. But this is the traditional, and remains the normal, mode of operation of the courts. Except where Congress explicitly provides for our correction of the administrative process at a higher level of generality, we intervene in the administration of the laws only when, and to the extent that, a specific "final agency action" has an actual or immediately threatened effect. Toilet Goods Assn., 387 U.S., at 164-166, 87 S.Ct., at 1524-1526. Such an intervention may ultimately have the effect of requiring a regulation, a series of regulations, or even a whole "program" to be revised by the agency in order to avoid the unlawful result that the court discerns. But it is assuredly not as swift or as immediately far-reaching a corrective process as those interested in systemic improvement would desire. Until confided to us, however, more sweeping actions are for the other branches. 1131 The Court of Appeals' reliance upon the supplemental affidavits was wrong for a **3192 second reason: The District Court did not abuse its discretion in declining to admit them. Petitioners filed their motion for summary judgment in September 1986; respondent filed an opposition but did not submit any new evidentiary materials at that time. On June 27, 1988, after the case had made its way for the first time through the Court of Appeals, the District Court announced that it would hold a WESTLAW Submitted into the public record for item(s) PZ.1 on 12/13/2018 , City Clerk 20,962 hearing on July 22 on "the outstanding motions for summary judgment," which included petitioners' motion challenging respondent's § 702 standing. The hearing was held and, as noted earlier, the District Court issued an order directing respondent to file "a supplemental memorandum regarding *895 the issue of its standing to proceed." Record, Doc. No. 274. Although that plainly did not call for the submission of new evidentiary materials, it was in purported response to this order, on August 22, 1988, that respondent submitted (along with the requested legal memorandum) the additional affidavits. The only explanation for the submission (if it can be called an explanation) was contained in a footnote to the memorandum, which simply stated that "NWF now has submitted declarations on behalf of other members of NWF who have been injured by the challenged actions of federal defendants." Record, Doc. No. 278, p. 18, n. 21. In its November 4, 1988, ruling granting petitioners' motion, the District Court rejected the additional affidavits as "untimely and in violation of [the court's briefing] Order." 699 F.Supp., at 328, n. 3. Respondent's evidentiary submission was indeed untimely, both under Rule 56, which requires affidavits in opposition to a summary judgment motion to be served "prior to the day of the hearing," Fed.Rule Civ.Proc. 56(c), and under Rule 6(d), which states more generally that "[w]hen a motion is supported by affidavit, ... opposing affidavits may be served not later than 1 day before the hearing, unless the court permits them to be served at some other time." Rule 6(b) sets out the proper approach in the case of late filings: "When by these rules or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time, the court for cause shown may at any time in its discretion (1) with or without motion or notice order the period enlarged if request therefor is made before the expiration of the period originally prescribed or as extended by a previous order, or (2) upon motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect...." Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. 20,962 This provision not only specifically confers the "discretion" relevant to the present issue, but also provides the mechanism *896 by which that discretion is to be invoked and exercised. First, any extension of a time limitation must be "for cause shown." Second, although extensions before expiration of the time period may be "with or without motion or notice," any postdeadline extension must be "upon motion made," and is permissible only where the failure to meet the deadline "was the result of excusable neglect." Thus, in order to receive the affidavits here, the District Court would have had to regard the very filing of the late document as the "motion made" to file it;5 it would have had to interpret "cause *897 shown" to mean merely **3193 "cause," since respondent made no "showing" of cause at all; and finally, it would have had to find as a substantive matter that there was indeed "cause" for the late filing, and that the failure to file on time "was the result of excusable neglect." This last substantive obstacle is the greatest of all. The Court of Appeals presumably thought it was overcome because "the papers on which the trial court relied were two years old by the time it requested supplemental memoranda" and because "there was no indication prior to the trial court's request that [respondent] should have doubted the adequacy of the affidavits it had already submitted." 278 U.S.App.D.C., at 331, 878 F.2d, at 433. We do not understand the relevance of the first point; the passage of so long a time as two years suggests, if anything, that respondent had more than the usual amount of time to prepare its response to the motion, and was more than moderately remiss in waiting until after the last moment. As to the suggestion of unfair surprise: A litigant is never justified in assuming that the court has made up its mind until the court expresses itself to that effect, and a litigant's failure to buttress its position because of confidence in the strength of that position is always indulged in at the litigant's own risk. In any case, whatever erroneous expectations respondent may have had were surely dispelled by the District Court's order in June 1988 announcing that the hearing on petitioners' motion would be held one month later. At least when that order issued, respondent was on notice that its right to sue was at issue, and that (absent proper motion) the time for filing any additional evidentiary materials was, at the latest, the day before the hearing. *898 Perhaps it is true that the District Court could have overcome all the obstacles we have described -apparent lack of a motion, of a showing, and of excusable neglect -to admit the affidavits at issue here. But the proposition that it was compelled to receive them -that it was an abuse of discretion to reject them -cannot be WESTLAW accepted. Submitted into the public record for item(s) PZ.1 . on 12/13, 2018 , City Clerk V U41 Respondent's final argument is that we should remand this case for the Court of Appeals to decide whether respondent may seek § 702 review of petitioners' actions in its own right, rather than derivatively through its members. Specifically, it points to allegations in the amended complaint that petitioners unlawfully failed to publish regulations, to invite public participation, and to prepare an environmental impact statement with respect to the "land withdrawal review program" as a whole. In order to show that it is a "person ... adversely affected or aggrieved" by these failures, it submitted to the District Court a brief affidavit (two pages in the record) by one of its vice presidents, Lynn A. Greenwalt, who stated that respondent's mission is to "inform its members and the general public about conservation issues" and to advocate improvements in laws and administrative practices "pertaining to the **3194 protection and enhancement of federal lands," App. to Pet. for Cert. 193a-194a; and that its ability to perform this mission has been impaired by petitioners' failure "to provide adequate information and opportunities for public participation with respect to the Land Withdrawal Review Program." Id., at 194a. The District Court found this affidavit insufficient to establish respondent's right to seek judicial review, since it was "conclusory and completely devoid of specific facts." 699 F.Supp., at 330. The Court of Appeals, having reversed the District Court on the grounds discussed above, did not address the issue. We agree with the District Court's disposition. Even assuming that the affidavit set forth "specific facts," *899 Fed.R.Civ.Proc. 56(e), adequate to show injury to respondent through the deprivation of information; and even assuming that providing information to organizations such as respondent was one of the objectives of the statutes allegedly violated, so that respondent is "aggrieved within the meaning" of those statutes; nonetheless, the Greenwalt affidavit fails to identify any particular "agency action" that was the source of these injuries. The only sentences addressed to that point are as follows: "NWF' s ability to meet these obligations to its members has been significantly impaired by the failure of the Bureau of Land Management and the Department of the Interior to provide adequate Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. 20,962 information and opportunities for public participation with respect to the Land Withdrawal Review Program. These interests of NWF have been injured by the actions of the Bureau and the Department and would be irreparably harmed by the continued failure to provide meaningful opportunities for public input and access to information regarding the Land Withdrawal Review Program." App. to Pet. for Cert. 194a. As is evident, this is even more deficient than the Peterson and Erman affidavits, which contained geographical descriptions whereby at least an action as general as a particular classification decision could be identified as the source of the grievance. As we discussed earlier, the "land withdrawal review program" is not an identifiable action or event. With regard to alleged deficiencies in providing information and permitting public participation, as with regard to the other illegalities alleged in the complaint, respondent cannot demand a general judicial review of the BLM's day-to-day operations. The Greenwalt affidavit, like the others, does not set forth the specific facts necessary to survive a Rule 56 motion. *900 * * * For the foregoing reasons, the judgment of the Court of Appeals is reversed. It is so ordered. Justice BLACKMUN, with whom Justice BRENNAN, Justice MARSHALL, and Justice STEVENS join, dissenting. In my view, the affidavits of Peggy Kay Peterson and Richard Loren Erman, in conjunction with other record evidence before the District Court on the motions for summary judgment, were sufficient to establish the standing of the National Wildlife Federation (Federation or NWF) to bring this suit. I also conclude that the District Court abused its discretion by refusing to consider supplemental affidavits filed after the hearing on the parties' cross -motions for summary judgment. I therefore would affirm the judgment of the Court of Appeals. WESTLAW Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk I The Federation's asserted injury in this case rested upon its claim that the Government actions challenged here would lead to increased mining on public lands; that the mining would result in damage to the environment; and that the recreational opportunities of NWF's members would consequently be diminished. Abundant record evidence supported the Federation's assertion that on lands newly opened for mining, mining in fact **3195 would occur.' Similarly, the record furnishes ample support for NWF's contention that mining activities can be expected to cause severe environmentaldamage *901 to the affected lands.' The District Court held, however, that the Federation had not adequately identified particular members who were harmed by the consequences of the Government's actions. Although two of NWF's members expressly averred that their recreational activities had been impaired, the District Court concluded that these affiants had not identified with sufficient precision the particular sites on which their injuries occurred. The majority, like the District Court, holds that the averments of Peterson and Erman were insufficiently specific to withstand a motion for summary judgment. Although these affidavits were not models of precision, I believe that they were adequate at least to create a genuine issue of fact as to the organization's injury. *902 As the Court points out, the showing (whether as to standing or the merits) required to overcome a motion for summary judgment is more extensive than that required in the context of a motion to dismiss. The principal difference is that in the former context evidence is required, while in the latter setting the litigant may rest upon the allegations of his complaint. See Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986) (Federal Rule of Civil Procedure 56(e) "requires the nonmoving party to go beyond the pleadings"). In addition, Rule 56(e) requires that the party opposing summary judgment "must set forth specific facts showing that there is a genuine issue for trial" (emphasis added). Thus, Courts of Appeals have reiterated that "conclusory" allegations unsupported by "specific" evidence will be insufficient to establish a genuine issue of fact? The requirement that evidence be submitted is satisfied here: The Federation has offered the sworn statements of two of its members. There remains the question whether the allegations in these affidavits were sufficiently precise to satisfy the requirements of Rule 56(e). The line of demarcation between "specific" and "conclusory" allegations is hardly a bright one. But, to my mind, the Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. 20,962 allegations contained in the Peterson and Erman affidavits, in the context of the record as a whole, were adequate **3196 to defeat a motion for summary judgment. These affidavits, as the majority acknowledges, were at least sufficiently precise to enable Bureau of Land Management (BLM) officials to identify the particular termination orders to which the affiants referred. See ante, at 3187. And the affiants averred that their "recreational use and aesthetic enjoyment of federal lands ... have been and continue to be adversely affected in fact by the unlawful *903 actions of the Bureau and the Department." App. to Pet. for Cert. 188a (Erman affidavit), 191a (Peterson affidavit). The question, it should be emphasized, is not whether the NWF has proved that it has standing to bring this action, but simply whether the materials before the District Court established "that there is a genuine issue for trial," see Rule 56(e), concerning the Federation's standing. In light of the principle that "[o]n summary judgment the inferences to be drawn from the underlying facts contained in [evidentiary] materials must be viewed in the light most favorable to the party opposing the motion," United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962), I believe that the evidence before the District Court raised a genuine factual issue as to NWF's standing to sue. No contrary conclusion is compelled by the fact that Peterson alleged that she uses federal lands "in the vicinity of South Pass -Green Mountain, Wyoming," App. to Pet. for Cert. 191a, rather than averring that she uses the precise tract that was recently opened to mining. The agency itself has repeatedly referred to the "South Pass -Green Mountain area" in describing the region newly opened to mining.' Peterson's assertion that her use and enjoyment of federal lands have been adversely affected by the agency's decision to permit more extensive mining is, as the Court of Appeals stated, National Wildlife Federation v. Burford, 278 U.S.App.D.C. 320, 329, 878 F.2d 422, 431 (1989), "meaningless, or perjurious" if the lands she uses do not include those harmed by mining undertaken pursuant to termination order W-6228.5 To read particular assertions within the affidavit in light of the document as a whole is, as the majority might put it, "a world apart" from "presuming" facts that are neither stated nor implied simply because without them the *904 plaintiff would lack standing. The Peterson and Erman affidavits doubtless could have been more artfully drafted, but they definitely were sufficient to withstand the federal parties' summary judgment motion. WESTLAW Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk II I also conclude that the District Court abused its discretion in refusing to consider the supplemental affidavits filed by NWF after the hearing on the summary judgment motion.' The court's decision abruptly derailed the Federation's lawsuit after three **3197 years of proceedings involving massive time and expense. The District Court and Court of Appeals both had concluded that NWF's claims were sufficiently substantial to warrant the entry of a nationwide injunction. Whatever the ultimate merits of the Federation's claims, litigation of this magnitude should not be aborted on technical grounds if that result legitimately can be avoided. The majority's approach reflects an insufficient appreciation both of the realities of complex litigation and of the admonition that the Federal Rules of Civil Procedure "shall be construed to secure *905 the just, speedy, and inexpensive determination of every action." Rule 1. That a requirement is "technical" does not, of course, mean that it need not be obeyed. And an appeal to the "spirit" of the Federal Rules is an insufficient basis for ignoring the import of their text. If the Rules imposed an absolute deadline for the submission of evidentiary materials, the District Court could not be faulted for strictly enforcing that deadline, even though the result in a particular case might be unfortunate. But, as the Court acknowledges, the Rules expressly permit the District Court to exercise discretion in deciding whether affidavits in opposition to a summary judgment motion may be submitted after the hearing.' Once the District Court's power to accept untimely affidavits is recognized, the question whether that power should be exercised in a particular instance must be answered by reference to the explanation for the litigant's omission and the purposes the Rules are designed to serve. In my view, NWF showed adequate cause for its failure to file the supplemental affidavits prior to the hearing. Moreover, the organization's untimely filing in no way disserved the purposes of Rule 56(c), and the federal parties suffered no prejudice as a consequence of the *906 delay. Under these circumstances, I believe that the District Court's refusal to consider these submissions constituted an abuse of discretion. The Federal Rules require that affidavits in opposition to a motion ordinarily must be served at least one day prior to the hearing; the Rules provide, however, that the affidavits may be filed at a later time "where the failure to act was the result of excusable neglect." Rule 6(b); see n. 7, supra. Prior to the July 22, 1988, hearing on the parties' cross -motions for summary judgment, NWF had been assured repeatedly that its prior submissions were Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. 20,962 sufficient to establish its standing to sue. In its memorandum opinion granting the Federation's motion for a preliminary injunction, the District Court stated: "We continue to find irreparable injury to plaintiff and reaffirm plaintiff's standing to bring this action." National Wildlife Federation v. Burford, 676 F.Supp. 280, 281 (D.C.1986). Later that year the federal parties sought additional discovery on the question of standing. NWF sought to quash discovery, arguing that "[t]he Court should bar any additional discovery on this issue because (1) it has already found that plaintiff has standing; (2) plaintiff has already produced affidavits which demonstrate standing and therefore any additional discovery would be unreasonably cumulative, duplicative, **3198 burdensome and expensive within the meaning of Rule 26(c)(1); and (3) contrary to the government defendants' apparent theory, plaintiff need not demonstrate injury as to each and every action that is part of the program." Memorandum of Points and Authorities in Support of Plaintiff's Motion To Quash and for a Protective Order 5-6 (July 1, 1986). In the alternative, NWF argued that if additional discovery on standing was to be ordered, it should be confined to the requirement that a limited number of additional affidavits be submitted. Id., at 22. The District Court, on July 14, 1986, granted in full the Federation's motion to quash and ordered "that no further discovery of plaintiff or *907 its members, officers, employees, agents, servants, or attorneys shall be permitted until subsequent order of this court, if any." App. to Pet. for Cert. 170a-171a. When the District Court's grant of a preliminary injunction was subjected to appellate review, the Court of Appeals concluded that the Peterson and Erman affidavits "provide a concrete indication that the Federation's members use specific lands covered by the agency's Program and will be adversely affected by the agency's actions." National Wildlife Federation v. Burford, 266 U.S.App.D.C. 241, 249, 835 F.2d 305, 313 (1987).8 The majority's statement that "a litigant is never justified in assuming that the court has made up its mind until the court expresses itself to that effect," ante, at 3193, is therefore simply irrelevant to the present case: The District Court and the Court of Appeals repeatedly had indicated that the Federation had offered sufficient evidence of its standing. Nor did the District Court's order of June 27, 1988, scheduling a motion hearing for the following July 22, place NWF on notice that its claim of standing might be reconsidered. That order made clear that the hearing would consider the summary judgment motions of both the federal parties and *908 the Federation. The principal submission of the federal parties relevant to the hearing WESTLAW Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk was the Defendants' Memorandum in Opposition to Plaintiff's Motion for Summary Judgment and in Support of Defendants' Motion for Summary Judgment and/or for Dissolution of the Preliminary Injunction Issued on February 10, 1986; that memorandum was filed on September 12, 1986. This 86-page memorandum included only 9 % pages devoted to standing, and half of that discussion set forth the federal parties' claim that no broad programmatic challenge could succeed even if the Peterson and Erman affidavits adequately alleged injury from Government decisions as to particular tracts of land. Moreover, even the attack on the Peterson and Erman affidavits did not purport to show that summary judgment for the federal parties should be entered on the ground that the Federation lacked standing. Rather, the federal parties argued principally that summary judgment for NWF would be inappropriate because a genuine factual dispute existed as to the Federation's standing to sue. See Defendants' Memorandum, at 45-47. In fact, the 86-page memorandum included only two sentences arguing that the federal parties should be awarded summary judgment on standing grounds. Id., at 11-12, 85. The District Court's decision to schedule a hearing on the parties' cross -motions for summary judgment provided no hint that previous **3199 assurances concerning standing were open to reconsideration.9 Certainly the Federation could have submitted additional evidentiary materials in support of its claim of standing, even though it had no reason to believe that further submissions were necessary. But it would hardly enhance the efficiency *909 of the adjudicative process to encourage litigants to reargue questions previously settled in their favor. In my view, NWF established sufficient cause for its failure to submit the supplemental affidavits prior to the hearing.10 **3200 *910 Moreover, the District Court's refusal to consider the additional submissions in this case did not significantly advance the interests that Rule 56(c) is designed to serve. The Rule requires that affidavits in opposition to a motion for summary judgment must be served "prior to the day of hearing." The Courts of Appeals consistently have recognized, however, that "Rule 56 does not necessarily contemplate an oral hearing. Rather, 10-day advance notice to the adverse party that the motion and all materials in support of or in opposition to the motion will be taken under advisement by the trial court as of a certain day satisfies the notice and hearing *911 dictates of Rule 56." Moore v. Florida, 703 F.2d 516, 519 (CA1 1 1983)." Rule 56(c)'s requirement that a summary judgment motion be filed 10 days in advance of a scheduled hearing serves to ensure that the nonmoving party is afforded adequate notice of Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. 20,962 the motion. Similarly, the requirement that opposing affidavits be submitted prior to the day of the hearing reflects the fact that the district court may rule on the summary judgment motion at the hearing or at any time thereafter; submission of affidavits prior to that day is thus essential if the moving party is to be assured the opportunity to respond at a time when a response is meaningful. The requirement also allows the district court to establish a deadline by which time all evidence and arguments must be submitted; thereafter, the court may deliberate with the assurance that no subsequent filings will alter the terms of the dispute. These are pressing concerns when the hearing on a summary judgment motion represents the parties' last opportunity to set forth their legal arguments. In the present case, however, the District Court concluded the July 22, 1988, hearing by requesting supplemental briefing on the issue of standing.12 NWF's supplemental affidavits, filed on August 22 as an attachment to its legal memorandum, were submitted at a time when the federal parties had ample opportunity to respond. (Indeed, the opportunity to respond here-10 days -was far greater than would have been the case if NWF had filed (timely) affidavits the day before the hearing and no *912 supplemental briefing had been allowed.) The affidavits, moreover, were filed well before the time when the case was to be taken under advisement. The record in this case is voluminous, currently filling six large boxes; consideration of five more affidavits would not have added significantly to the complexity of the issues before the District Court. Under these circumstances, submission of the supplemental affidavits neither disserved the purposes of the Rule nor prejudiced the federal parties in any respect. The District Court discussed none of these factors in explaining its refusal to consider the supplemental affidavits. Indeed, the District Court offered no justification at all for its action beyond the assertion that the affidavits were untimely." Similarly, the Court **3201 today fails to assess the District Court's action by reference to the excuse for NWF's untimely filing or the absence of prejudice to the federal parties. The District Court and today's majority fail to recognize the guiding principle of the Federal Rules of Civil Procedure, the principle that procedural rules should be construed pragmatically, so as to ensure the just and efficient resolution of legal disputes. Some provisions of the Rules strip the district courts of discretion, and the courts have no choice but to enforce these requirements with scrupulous precision.'° But where the Rules expressly confer a range of *913 discretion, a district court may abuse its authority by refusing to take account of WESTLAW Submitted into the public record for item(s) PZ.1 on 12/13/2018 , City Clerk equitable concerns, even where its action violates no express command. In my view, such an abuse of discretion occurred here. III In Part IV -A, ante, at 3189, the majority sets forth a long and abstract discussion of the scope of relief that might have been awarded had the Federation made a sufficient showing of injury from environmental damage to a particular tract of land. Since the majority concludes in other portions of its opinion that the Federation lacks standing to challenge any of the land -use decisions at issue here, it is not clear to me why the Court engages in the hypothetical inquiry contained in Part IV -A. In any event, I agree with much of the Court's discussion, at least in its general outline. The Administrative Procedure Act permits suit to be brought by any person "adversely affected or aggrieved by agency action." 5 U.S.C. § 702. In some cases the "agency action" will consist of a rule of broad applicability; and if the plaintiff prevails, the result is that the rule is invalidated, not simply that the court forbids its application to a particular individual. Under these circumstances a single plaintiff, so long as he is injured by the rule, may obtain "programmatic" relief that affects the rights of parties not before the court. On the other hand, if a generally lawful policy is applied in an illegal manner on a particular occasion, one who is injured is not thereby entitled to challenge other applications of the rule. Application of these principles to the instant case does not turn on whether, or how often, the Bureau's land -management policies have been described as a "program." In one sense, *914 of course, there is no question that a "program" exists. Everyone associated with this lawsuit recognizes that the BLM, over the past decade, has attempted to develop and implement a comprehensive scheme for the termination of classifications and withdrawals. The real issue is whether the actions and omissions that NWF contends are illegal are themselves part of a plan or policy. For example: If the agency had published a regulation stating that an environmental impact statement (EIS) should never be developed prior to the termination of a classification or withdrawal, NWF could challenge the regulation (which would constitute an "agency action"). If the reviewing court then held that the statute required a pretermination EIS, the relief (invalidation of the rule) would directly Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. 20,962 affect **3202 tracts other than the ones used by individual affiants. At the other extreme, if the applicable BLM regulation stated that an EIS must be developed, and NWF alleged that the administrator in charge of South Pass/Green Mountain had inexplicably failed to develop one, NWF should not be allowed (on the basis of the Peterson affidavit) to challenge a termination in Florida on the ground that an administrator there made the same mistake. The majority, quoting the District Court, characterizes the Bureau's land management program as " '1250 or so individual classification terminations and withdrawal revocations.' " Ante, at 3189; see National Wildlife Federation v. Burford, 699 F.Supp. 327, 332 (DC 1988). The majority offers no argument in support of this conclusory assertion, and I am far from certain that the characterization is an accurate one. Since this issue bears on the scope of the relief ultimately to be awarded should the plaintiff prevail, rather than on the jurisdiction *915 of the District Court to entertain the suit, I would allow the District Court to address the question on remand.' Footnotes 2 3 Submitted into the public record for item(s)_PZ.1 . on 12/13/2018 , City Clerk IV Since I conclude that the Peterson and Erman affidavits provided sufficient evidence of NWF's standing to withstand a motion for summary judgment, and that the District Court abused its discretion by refusing to consider the Federation's supplemental affidavits, I would affirm the judgment of the Court of Appeals. I respectfully dissent. All Citations 497 U.S. 871, 110 S.Ct. 3177, 111 L.Ed.2d 695, 31 ERC 1553, 20 Envtl. L. Rep. 20,962 The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Lumber Co., 200 U.S. 321, 337, 26 S.Ct. 282, 287, 50 L.Ed. 499. As an additional basis for its conclusion, the Court of Appeals held that the earlier panel's finding that the Peterson and Erman affidavits were sufficient to establish respondent's right to sue was the "law of the case." We do not address this conclusion, as the earlier panel's ruling does not, of course, bind this Court. Messenger v. Anderson, 225 U.S. 436, 444, 32 S.Ct. 739, 740, 56 L.Ed. 1152 (1912). Contrary to the apparent understanding of the dissent, we do not contend that no "land withdrawal review program" exists, any more than we would contend that no weapons procurement program exists. We merely assert that it is not an identifiable "final agency action" for purposes of the APA. If there is in fact some specific order or regulation, applying some particular measure across the board to all individual classification terminations and withdrawal revocations, and if that order or regulation is final, and has become ripe for review in the manner we discuss subsequently in text, it can of course be challenged under the APA by a person adversely affected -and the entire "land withdrawal review program," insofar as the content of that particular action is concemed, would thereby be affected. But that is quite different from permitting a generic challenge to all aspects of the "land withdrawal review program," as though that itself constituted a final agency action. Under the Secretary's regulations, any person seeking to conduct mining operations that will "cause a cumulative surface disturbance" of five acres or more must first obtain approval of a plan of operations. § 3809.1-4 (1988). Mining operations that cause surface disturbance of less than 5 acres do not require prior approval, but prior notice must be given to the district office of the BLM. § 3809.1-3. Neither approval nor notification is required only with respect to "casual use operations," 43 CFR § 3809.1-2, defined as "activities ordinarily resulting in only negligible disturbance of the Federal lands and resources," § 3809.0-5. (Activities are considered "casual" if "they do not involve the use of mechanized earth moving equipment or explosives or do not involve the use of motorized vehicles in areas designated as closed to off -road vehicles...." Ibid.) Thus, before any mining use ordinarily involving more than "negligible disturbance" can take place, there must occur either agency action in response to a submitted plan or agency inaction in response to a submitted notice. In one of the four new affidavits, Peggy Peterson, one of the original affiants, states that a corporation has filed a mine permit application with the BLM covering a portion of the land to which her original affidavit pertained. App. to Brief in Opposition for Respondent National Wildlife Federation 16. If that permit is granted, there is no doubt that WESTLAW Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. 20,962 4 5 2 Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk agency action ripe for review will have occurred; nor any doubt that, in the course of an otherwise proper court challenge, affiant Peterson, and through her respondent, would be able to call into question the validity of the classification order authorizing the permit. However, before the grant of such a permit, or (when it will suffice) the filing of a notice to engage in mining activities, or (when only "negligible disturbance" will occur) actual mining of the land, it is impossible to tell where or whether mining activities will occur. Indeed, it is often impossible to tell from a classification order alone whether mining activities will even be permissible. As explained in the uncontested affidavit of the BLM's Assistant Director of Land Resources: "The lands may be subject to another withdrawal of comparable scope or they may be subject to classification segregations tantamount to such a withdrawal. In that case, the lands would not be opened to the operation of the public land laws so that the removal of one of the withdrawals has no practical effect. Another reason why there may not be any change is that before the revocation occurred, the lands may have been transferred into private ownership. Consequently, the withdrawal revocation amounts to nothing more than a paper transaction.... In the alternative, a revoked withdrawal may open the lands to the operation of the public land and mineral laws.... Some withdrawal revocations are made without prior knowledge as to what subsequent disposition may be made of the lands. After the lands are opened, they might be transferred out of federal ownership by sale, exchange, or some other discretionary mode of disposal, not anticipated when the withdrawal was revoked. These subsequent discretionary actions require separate and independent decisionmaking that, obviously, are divorced from the prior revocation decision. Environmental and other management concerns and public participation are taken into account in relation to the post -revocation decisionmaking." Affidavit of Frank Edwards, Aug. 18, 1985, App. 61-62. Nothing in this is contrary to our opinion in Automobile Workers v. Brock, 477 U.S. 274, 106 S.Ct. 2523, 91 L.Ed.2d 228 (1986), cited by the Court of Appeals. That opinion did not discuss, and the respondent Secretary of Labor did not rely upon, the requirements of 5 U.S.C. § 702 and our ripeness jurisprudence in cases such as Abbott Laboratories v. Gardner, 387 U.S. 136, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967); Gardner v. Toilet Goods Assn., Inc., 387 U.S. 167, 87 S.Ct. 1526, 18 L.Ed.2d 704 (1967); and Toilet Goods Assn., Inc. v. Gardner, 387 U.S. 158, 87 S.Ct. 1520, 18 L.Ed.2d 697 (1967). The only challenge made and decided, with respect to the individuals' right to sue, relied upon 19 U.S.C. § 2311(d) (1982 ed.), which according to the Secretary of Labor made entertainment of that suit " 'contrary to Congress's incorporation of the state system into the administration of the Trade Act, and an affront to the integrity and authority of the state courts.' " 477 U.S., at 283, 106 S.Ct., at 2529, quoting Brief for Respondent in Automobile Workers, O.T. 1985, No. 84-1777, p. 16. The dissent asserts that a footnote in respondent's reply memorandum to the District Court was a "motion" within the meaning of Rule 6(b)(2), and was so obviously so that the District Court committed reversible error in failing to construe it that way. Post, at 3199-3200 and n. 10. We cannot agree. Rule 6(b) establishes a clear distinction between "requests" and "motions," and the one cannot be converted into the other without violating its provisions -or at least cannot be converted on the basis of such lax criteria that conversion would be not only marginally permissible but positively mandatory in the present case. Rule 6(b)(1) allows a court ("for cause shown" and "in its discretion") to grant a "request" for an extension of time, whether the request is made "with or without motion or notice," provided the request is made before the time for filing expires. After the time for filing has expired, however, the court (again "for cause shown" and "in its discretion") may extend the time only "upon motion." To treat all postdeadline "requests" as "motions" (if indeed any of them can be treated that way) would eliminate the distinction between predeadline and postdeadline filings that the Rule painstakingly draws. Surely the postdeadline "request," to be even permissibly treated as a "motion," must contain a high degree of formality and precision, putting the opposing party on notice that a motion is at issue and that he therefore ought to respond. The request here had not much of either characteristic. As for formality, it was not even made in a separate filing or in a separate appearance before the court, but was contained in a single sentence at the end of the first paragraph of one of the 18 single-spaced footnotes in a 20-page memorandum of law. Our district judges must read footnotes with new care if they are to be reversed for failing to recognize motions buried in this fashion. And as for precision, the request not only did not ask for any particular extension of time (7 days, 30 days), it did not specifically ask for an extension of time at all, but merely said that respondent "should be given adequate opportunity to supplement the record." Even this, moreover, was not requested (much less moved for) unconditionally, but only "[i]f the court intends to reverse its prior ruling [regarding NWF standing]." Record, Doc. No. 294, p. 17, n. 16. We think it quite impossible to agree with the dissent that the district judge not only might treat this request as a motion, but that he was compelled to do so. Prior to the District Court's entry of the preliminary injunction, 406 mining claims had been staked in the South Pass -Green Mountain area alone. App. 119. An exhibit filed by the federal parties indicated that over 7,200 claims had been filed in 12 Western States. Exh. 1 to Affidavit of Joseph Martyak (Apr. 11, 1986). A Bureau of Land Management (BLM) draft of a Resource Management Plan/Environmental Impact Statement for the Lander, Wyo., Resource Area stated: "In the Green Mountain Management Unit ... significant long-term impacts to elk and mule deer herds could occur from habitat losses caused by oil and gas activities over the next 60 years.... In the WESTLAW Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695720 Envtl. L. Rep. 20,962 South Pass Management Unit, significant acreages of lodgepole pine forest and aspen conifer woodland habitat types could be disturbed, which would cause significant long-term impacts to moose and elk.... If gold mining activities continued to erode these high -value habitats, trout fisheries, the Lander moose herd, the beaver pond ecosystems, and the populations of many other wildlife species would suffer significant cumulative negative effects." Draft RMP/EIS pp. 226-228 (Exh. 3 to Defendant -Intervenors' Reply to Plaintiffs Opposition to Defendants' Motions for Stay Pending Appeal (May 14, 1986)). A BLM Mineral Report issued June 17, 1982, concluded that mining and associated activities "could have an adverse impact on crucial moose habitat, deer habitat, some elk habitat, and a variety of small game and bird species. Improvements at campgrounds, as well as land in the immediate vicinity, could either be damaged or destroyed. These activities could make it difficult for the BLM to manage the forest production and harvesting in the South Pass area. Historical and cultural resources which have and have not been identified could be either damaged or destroyed." Defendant -Intervenors' Exh. 7 (attached as Appendix 1 to Plaintiff National Wildlife Federation's Statement of Points and Authorities in Support of Its Standing To Proceed (Aug. 22, 1988)). 3 See, e.g., May v. Department of Air Force, 777 F.2d 1012, 1016 (CA5 1985); First Commodity Traders, Inc. v. Heinold Commodities, Inc., 766 F.2d 1007, 1011 (CA7 1985); Maldonado v. Ramirez, 757 F.2d 48, 51 (CA3 1985); Galindo v. Precision American Corp., 754 F.2d 1212, 1216 (CA5 1985). 4 5 6 7 8 9 See, e.g., App. 123-139 (declaration of Jack Kelly). The areas harmed or threatened by mining and associated activities may extend well beyond the precise location where mining occurs. See n. 2, supra. Five supplemental affidavits were filed. The first was submitted by Peggy Kay Peterson, in clarification of her earlier affidavit: "A substantial portion of the lands which I use ... are identical to those lands" newly opened to mining in the South Pass -Green Mountain area. Peterson Supplemental Affidavit, App. in No. 88-5397 (CADC), p. 356. Ms. Peterson also asserted that "U.S. Energy Corporation has filed a mine permit application with the Bureau and Department, (U.S. Energy Application, TFN 2 4/86), which includes a proposal to mine a significant portion of the federal lands which I use for recreational purposes and aesthetic enjoyment." Id., at 355-356. The other affiants were NWF members David Doran, Merlin McColm, Stephen Blomeke, and Will Ouellette. These individuals identified termination orders that had opened to mining particular tracts of land used by the affiants for recreation and aesthetic enjoyment. The federal parties do not concede that the supplemental affidavits established with certainty the Federation's standing; they contend that further discovery might show the affiants' allegations to be untrue. The federal parties do concede, however, that the supplemental affidavits were not facially deficient. Tr. of Oral Arg. 19. Rule 56(c) provides that when a motion for summary judgment is filed, the "adverse party prior to the day of hearing may serve opposing affidavits." Under Rule 56(e), the district court "may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits." Rule 6(d) states: "When a motion is supported by affidavit, ... opposing affidavits may be served not later than 1 day before the hearing, unless the court permits them to be served at some other time." The district courts authority to permit service "at some other time" is govemed in tum by Rule 6(b), which provides that when an act is required to be performed by a specified time, the district court may "upon motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect." See 4A C. Wright & A. Miller, Federal Practice and Procedure § 1165, p. 475 (2d ed. 1987) (Rule 6(b) "gives the court extensive flexibility to modify the fixed time periods found throughout the rules, whether the enlargement is sought before or after the actual termination of the allotted time"). The Court of Appeals' discussion of standing occurred in the context of a motion to dismiss and therefore, by itself, might not assure NWF that it had made a sufficient showing to withstand a motion for summary judgment. But the Court of Appeals, like the District Court before it, also held that the Federation's showing of injury, as reflected in the Peterson and Erman affidavits, provided an adequate basis for a preliminary injunction. As the second Court of Appeals panel concluded, "the burden of establishing irreparable harm to support a request for a preliminary injunction is, if anything, at least as great as the burden of resisting a summary judgment motion on the ground that the plaintiff cannot demonstrate 'injury -in -fact.' " National Wildlife Federation v. Burford, 278 U.S.App.D.C. 320, 330, 878 F.2d 422, 432 (1989) (emphasis omitted). When the first panel affirmed the District Court's entry of a preliminary injunction, Judge Williams' separate opinion, concurring and dissenting, stated that "the specificity required for standing allegations to secure a preliminary injunction will normally be no Tess than that required on a motion for summary judgment." 266 U.S.App.D.C., at 264, 835 F.2d, at 328. At the hearing itself Fred R. Disheroon, the federal parties' attomey, argued at length on other points before turning to WESTLAW oh. Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. 20,962 Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk the issue of standing. He began that portion of his argument by observing that "perhaps the court doesn't want to hear me argue standing, but I think it is imperative that I address that in the context of this case." Tr. of Motions Hearing 43 (July 22, 1988). 10 The supplemental affidavits were submitted as an attachment to the supplemental legal memorandum on standing requested by the District Court. At the time of their submission, NWF stated only that "NWF now has submitted declarations on behalf of other members of NWF who have been injured by the challenged actions of federal defendants." Plaintiff National Wildlife Federation's Statement of Points and Authorities in Support of Its Standing To Proceed 18, n. 21 (Aug. 22, 1988). However, in its reply memorandum on the issue, NWF addressed the contention of the federal parties and the defendant -intervenor that the affidavits should be ignored as untimely filed. NWF stated: "Plaintiff heretofore, has relied on the court's previous rulings on NWF's standing. In its motion for a protective order against additional discovery, NWF argued that its standing had already been proven on the basis of the affidavits of Mr. Greenwalt, Ms. Peterson, and Mr. Erman. The court agreed and entered the requested protective order. If the court intends to reverse its prior ruling, then NWF respectfully requests that it should be given adequate opportunity to supplement the record." Plaintiff National Wildlife Federation's Reply Memorandum in Support of Its Standing To Proceed 17, n. 16 (Sept. 14, 1988). The Federation also noted that Circuit precedent permitted the filing of supplemental affidavits on standing issues, even on appeal. Ibid., citing National Wildlife Federation v. Hodel, 268 U.S.App.D.C. 15, 24, 839 F.2d 694, 703 (1988). NWF offered the further explanation: "Ms. Peterson has supplemented her affidavit to include new information regarding a mine application which has been filed by U.S. Energy Corporation that includes a proposal to mine lands within the area of South Pass/Green Mountain previously closed to mining. For the record, NWF initially was told by officials of the Bureau of Land Management that the U.S. Energy mine application did not include any lands covered by the court's preliminary injunction. Otherwise, NWF would have supplemented Ms. Peterson's affidavit earlier." Reply memorandum, at 12-13, n. 13. Along with its Reply Memorandum, NWF submitted an additional filing entitled Plaintiff National Wildlife Federation's Memorandum in Opposition to Defendant -Intervenors' Motion To Strike Plaintiffs Supplementation of the Record (Sept. 14, 1988). That filing stated: "For the reasons stated in [the reply memorandum] at page 17, n. 16, plaintiff requests that defendant -intervenors' motion to strike be denied." (In light of this separate submission, addressed solely to the question whether the supplemental affidavits should be considered, and expressly referring to n. 16 of the reply memorandum, it is difficult to fathom the Court's assertion that NWF's request was "buried" in the Federation's filings. See ante, at 3192-3193, n. 5.) This separate filing, in conjunction with the reply memorandum, satisfied Rule 6(b)'s requirement that the request for enlargement of time be made "upon motion." Though neither of these filings was expressly denominated a "motion," they met the requirements of Rule 7(b): They were submitted in writing, were signed by counsel, "state [d] with particularity the grounds therefor," and unambiguously "set forth the relief ... sought." See Campos v. LeFevre, 825 F.2d 671, 676 (CA2 1987) ("[N]o particular form of words is necessary to render a filing a 'motion.' Any submission signed by a party that may fairly be read as a request to the district court to exercise its discretionary powers ... should suffice"), cert. denied, 484 U.S. 1014, 108 S.Ct. 718, 98 L.Ed.2d 667 (1988); Smith v. Danyo, 585 F.2d 83, 86 (CA3 1978) ("Rule 7(b) requires no more than that ... a motion 'state with particularity the grounds' upon which it is based. Plainly, an affidavit which is filed to obtain an order disqualifying a judge satisfies the requirements of Rule 7(b).... The ... failure to type in the word 'motion' above the word 'affidavit' in no way detracts from the notice which the affidavit gave of the nature of the application"). Cf. Snyder v. Smith, 736 F.2d 409, 419 (CA7) ("The Federal Rules are to be construed liberally so that erroneous nomenclature in a motion does not bind a party at his peril"), cert. denied, 469 U.S. 1037, 105 S.Ct. 513, 83 L.Ed.2d 403 (1984); Miller v. Transamerican Press, Inc., 709 F.2d 524, 527 (CA9 1983) ("The court will construe [a motion], however styled, to be the type proper for the relief requested"); 2A J. Moore & J. Lucas, Moore's Federal Practice ¶ 7.05, pp. 7-16 to 7-17 (1989) ("[I]t is the motion's substance, and not merely its linguistic form, that determines its nature and legal effect"). 11 12 13 Accord, Allied Chemical Corp. v. Mackay, 695 F.2d 854, 856 (CA5 1983) ("Rule 56(c) does not require an oral hearing in open court. Rather, it contemplates notice to the party opposing the motion and an adequate opportunity to respond to the movant's arguments"); Bratt v. International Business Machines Corp., 785 F.2d 352, 363 (CA1 1986). The District Court subsequently established a schedule for the supplemental briefing. NWF was requested to file its opening memorandum by August 22, 1988; the federal parties and intervenors were to file memoranda in opposition by September 1; and NWF's reply was due by September 14. Order of July 27, 1988. The District Court mentioned these affidavits in a single footnote: "Plaintiff, in addition to its memorandum filed August 22, 1988 has submitted additional evidentiary material, including declarations from four of its members. These submissions are untimely and in violation of our Order. We decline to consider them. See Federal Defendants' Reply to Plaintiffs Statement of Points and Authorities in Support of Its Standing to Proceed, at 1 n. 1." National Wildlife Federation v. Burford, 699 F.Supp. 327, 328-329, n. 3 (D.C.1988). WESTLAW Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. 20,962 14 15 16 Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk Rule 6(b), for example, which generally gives the district court broad authority to grant enlargements of time, establishes the limitation that the court "may not extend the time for taking any action under Rules 50(b) and (c)(2), 52(b), 59(b), (d) and (e), 60(b), and 74(a), except to the extent and under the conditions stated in them." The term "withdrawal review program" repeatedly has been used in BLM documents. See, e.g., Plaintiffs Exhs. 1, 3, 10, 11, 15, 18, 19 (filed July 15, 1985). At oral argument on the cross -motions for summary judgment, counsel for the federal parties acknowledged: "It is true, BLM referred to this review process as a land withdrawal review program." Tr. of Motion Hearing 40 (July 22, 1988). Counsel went on to say, "but I suggest that using a word, calling it a program, doesn't make a program in the sense that it is being challenged here." Ibid. That assertion, though inelegant, seems essentially correct: An agency's terminology is not decisive in determining whether an alleged illegality is systemic or site -specific. The majority also suggests that the agency actions challenged in this suit may not be ripe for review. See ante, at 3190-3191. Since the issue of ripeness has not been briefed or argued in this Court, nor passed on by the courts below, I need not address it. I do note, however, that at the outset of this case the federal parties made precisely the opposite argument, asserting that a preliminary injunction should be denied on the ground that NWF's claims were barred by !aches. The federal parties contended: "The Federation offers no explanation why, despite its detailed knowledge of BLM's revocation and termination activities, it has waited so long to institute litigation." Defendants' Memorandum in Opposition to Plaintiffs Motion for Preliminary Injunction 26 (Aug. 22, 1985). I also decline to address the adequacy of the affidavit submitted by Lynn Greenwalt, since the Court of Appeals did not pass on that issue. End of Document © 2018 Thomson Reuters. No claim to original U.S. Government Works. WESTLAW tip Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. 20,962 KeyCite Yellow Flag - Negative Treatment Not Followed on State Law Grounds Levis v. Konitzky, Me., November 17, 2016 no S.Ct. 3177 Supreme Court of the United States Manuel LUJAN, Jr., Secretary of the Interior, et al., Petitioners v. NATIONAL WILDLIFE FEDERATION, et al. No. 89-640. Argued April 16, 1990. Decided June 27, 1990. Synopsis National wildlife group filed action challenging the "land withdrawal review program" of the Bureau of Land Management. The United States District Court for the District of Columbia, John H. Pratt, J., 699 F.Supp. 327, granted summary judgment against the group. Appeal was taken. The Court of Appeals for the District of Columbia, 878 F.2d 422, reversed and remanded. Certiorari was granted. The Supreme Court, Justice Scalia, held that: (1) affidavits which were filed by members of the group and which indicated the members' recreational use and aesthetic enjoyment of land "in the vicinity" of land covered by agency actions under the Bureau's "land withdrawal review program" were insufficient to show that the affiants' interests were actually affected; (2) the "land withdrawal review program" was not "agency action" or "final agency action," within meaning of the Administrative Procedure Act; and (3) affidavit, which indicated that the group's ability to fulfill its informational and advocacy functions was "adversely affected" by alleged failure of the Bureau to provide adequate information and opportunities for public participation with respect to the "land withdrawal review program" failed to identify any particular "agency action" that was the source of the group's alleged injuries. Judgment of the Court of Appeals reversed. Justice Blackmun, dissented and filed opinion in which Justices Brennan, Marshall, and Stevens joined. WESTLAW West Headnotes (14) 111 121 131 Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk Administrative Law and Procedure vPersons aggrieved or affected Administrative Law and Procedure 6.-Decisions and Acts Reviewable In order to obtain judicial review under the general review provisions of the Administrative Procedure Act, the person claiming right to sue must identify some agency action that affects him in specified fashion and must show that he has suffered legal wrong because of the challenged agency action or is adversely affected or aggrieved by that action within the meaning of a relevant statute. 5 U.S.C.A. § 702. 179 Cases that cite this headnote Administrative Law and Procedure Finality; ripeness When judicial review of agency action is sought, not pursuant to specific authorization in substantive statute, but only under general review provisions of the Administrative Procedure Act as person suffering legal wrong because of challenged agency action or adversely affected or aggrieved by that action, the "agency action" must be final agency action. 5 U.S.C.A. §§ 551(13), 701(b)(2), 702, 704. 294 Cases that cite this headnote Administrative Law and Procedure Persons aggrieved or affected To be adversely affected or aggrieved within meaning of statute, for purposes of obtaining judicial review of agency action under general review provisions of the Administrative Procedure Act, plaintiff must establish that the injury he complains of (his aggrievement, or the adverse affect upon him) falls within the "zone L Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. 20,962 141 151 161 of interests" sought to be protected by the statutory provision whose violation forms the legal basis for his complaint. 5 U.S.C.A. § 702. 312 Cases that cite this headnote Federal Civil Procedure 0-Lack of cause of action or defense Summary judgment must be entered, after adequate time for discovery and upon motion, against party who fails to make showing sufficient to establish the existence of element essential to that party's case on which that party will bear burden of proof at trial. Fed.Rules Civ.Proc.Rule 56(c), 28 U.S.C.A. 1636 Cases that cite this headnote Federal Civil Procedure 0-Burden of proof In order to avoid summary judgment, party who is seeking judicial review of agency action under the general review provision of the Administrative Procedure Act has burden to set forth specific facts, even though they may be controverted by the government, showing that he has satisfied its terms. 5 U.S.C.A. § 702; Fed.Rules Civ.Proc.Rule 56, 28 U.S.C.A. 1105 Cases that cite this headnote Federal Civil Procedure 0.-Matters Affecting Right to Judgment Summary judgment rule does not require movant to negate elements of nonmovant's case; rather, regardless of whether movant accompanies its summary judgment motion with affidavits, the motion may, and should, be granted so long as whatever is before the district court demonstrates that standard for entry of summary judgment is satisfied. Fed.Rules WESTLAW 171 181 Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk Civ.Proc.Rules 56, 56(c), 28 U.S.C.A. 1205 Cases that cite this headnote Administrative Law and Procedure -Persons aggrieved or affected Environmental Law 0.«Organizations, associations, and other groups Affidavits, which were filed by members of national wildlife group and which indicated the members' recreational use and aesthetic enjoyment of land "in the vicinity" of land covered by agency actions under the "land withdrawal review program" of the Bureau of Land Management, were insufficient to show that the members' interests were actually affected, for purposes of the general review provisions of the Administrative Procedure Act; affidavits indicated only that the members used unspecified portions of immense tract of territory, on some portions of which mining activity had occurred or probably would occur by virtue of the governmental action, and missing facts could not be "presumed" to establish the injury that was generally alleged. 5 U.S.C.A. § 702; Fed.Rules Civ.Proc.Rule 56, 28 U.S.C.A. 682 Cases that cite this headnote Federal Civil Procedure 0.-Presumptions When ruling on summary judgment motion, district court must resolve any factual issues of controversy in favor of nonmovant only in the sense that, where facts specifically averred by nonmovant contradict facts specifically averred by movant, motion must be denied. Fed.Rules Civ.Proc.Rule 56, 28 U.S.C.A. 3753 Cases that cite this headnote Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. 20,962 191 1101 Administrative Law and Procedure 40-Finality; ripeness Environmental Law 4-Administrative Decisions or Actions Reviewable in General "Land withdrawal review program" of the Bureau of Land Management was not "agency action" for purposes of general review provisions of the Administrative Procedure Act, much less "final agency action," within meaning of the Act; term "land withdrawal review program" did not refer to single Bureau order or regulation, or even to completed universe of particular Bureau orders and regulations, but, rather, referred to the continuing and thus constantly changing operations of the Bureau in reviewing withdrawal revocation applications and the classifications of public lands and developing land use plans as required by the Federal Land Policy and Management Act. Federal Land Policy and Management Act of 1976, § 102 et seq., 43 U.S.C.A. § 1701 et seq.; 5 U.S.C.A. §§ 702, 704. 141 Cases that cite this headnote Administrative Law and Procedure Finality; ripeness Substantive rule which as a practical matter requires plaintiff to adjust his conduct immediately is agency action "ripe" for judicial review at once, whether or not explicit statutory review apart from the Administrative Procedure Act is provided. 5 U.S.C.A. §§ 702, 704. 69 Cases that cite this headnote Administrative Law and Procedure ...Finality; ripeness Environmental Law Administrative Decisions or Actions Reviewable in General Flaws in the entire "land withdrawal review 1121 1131 1141 Submitted into the public record for item(s) PV.1 . on 12/13/2018 , City Clerk program" of the Bureau of Land Management cannot be laid before the courts for wholesale correction under the Administrative Procedure Act simply because one of them that is ripe for review adversely affects one member of national wildlife group. 20 Cases that cite this headnote Administrative Law and Procedure Finality; ripeness Except where Congress explicitly provides for correction of the administrative process at higher level of generality, the Supreme Court intervenes in the administration of the laws only when, and to the extent that, specific "final agency action" has actual or immediately threatened effect. 5 U.S.C.A. §§ 702, 704. 65 Cases that cite this headnote Federal Civil Procedure -Affidavits Declining to admit supplemental affidavits, which were filed in response to district court's briefing order following the summary judgment hearing, was not abuse of discretion, in action brought under the general review provisions of the Administrative Procedure Act; the affidavits were untimely under applicable rules, and although the district court could perhaps have overcome the apparent lack of a motion, of a showing of cause, and of excusable neglect to admit the affidavits, it was not compelled to receive them. Fed.Rules Civ.Proc.Rules 6(b, d), 56, 56(c), 28 U.S.C.A.; 5 U.S.C.A. § 702. 298 Cases that cite this headnote Administrative Law and Procedure «Persons aggrieved or affected Environmental Law WESTLAW Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. 20,962 .-Administrative Decisions or Actions Reviewable in General Affidavit, which indicated that national wildlife group's ability to fulfill its informational and advocacy functions was adversely affected by alleged failure of the Bureau of Land Management to provide adequate information and opportunities for public participation with respect to the Bureau's "land withdrawal review program," failed to identify any particular "agency action" that was source of the group's alleged injury, and, thus, group was not entitled to judicial review of the Bureau's actions under the general review provisions of the Administrative Procedure Act; the "land withdrawal review program" was not identifiable action or event, and group could not demand general judicial review of the Bureau's day-to-day operations. 5 U.S.C.A. §§ 702, 704. 62 Cases that cite this headnote **3179 Syllabus' *871 The National Wildlife Federation (hereinafter respondent) filed this action in the District Court against petitioners, the Director of the Bureau of Land Management (BLM) and other federal parties, alleging that, in various respects, they had violated the Federal Land Policy and Management Act of 1976 (FLPMA) and the National Environmental Policy Act of 1969 (NEPA) in the course of administering the BLM's "land withdrawal review program," and that the complained -of actions should be set aside because they were "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law" within the meaning of § 10(e) of the Administrative Procedure Act (APA), 5 U.S.C. § 706. Under the program, petitioners make various types of decisions affecting the status of public lands and their availability for private uses such as mining, a number of which decisions were listed in an appendix to the complaint. The court granted petitioners' motion for summary judgment under Federal Rule of Civil Procedure 56, holding that respondent lacked standing to seek judicial review of petitioners' actions under the APA, § 702. The court ruled that affidavits by two of respondent's members, Peterson and Erman, claiming use of public WESTLAW Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk lands "in the vicinity" of lands covered by two of the listed decisions, were insufficient to confer standing as to those particular decisions, and that, even if they had been adequate for that limited purpose, they could not support respondent's attempted APA challenge to each of the 1,250 or so individual actions effected under the program. The **3180 court rejected as untimely four more member affidavits pertaining to standing, which were submitted after argument on the summary judgment motion and in purported response to the District Court's postargument request for additional briefing. The Court of Appeals reversed, holding that the Peterson and Erman affidavits were sufficient in themselves, that it was an abuse of discretion not to consider the four additional affidavits, and that standing to challenge the individual decisions conferred standing to challenge all such decisions. Held: 1. The Peterson and Erman affidavits are insufficient to establish respondent's § 702 entitlement to judicial review as "[a] person ... *872 adversely affected or aggrieved by agency action within the meaning of a relevant statute." Pp. 3185-3189. (a) To establish a right to relief under § 702, respondent must satisfy two requirements. First, it must show that it has been affected by some "agency action," as defined in § 551(13). See § 701(b)(2). Since neither the FLPMA nor NEPA provides a private right of action, the "agency action" in question must also be "final agency action" under § 704. Second, respondent must prove that it is "adversely affected or aggrieved" by that action "within the meaning of a relevant statute," which requires a showing that the injury complained of falls within the "zone of interests" sought to be protected by the FLPMA and NEPA. Cf. Clarke v. Securities Industry Assn., 479 U.S. 388, 396-397, 107 S.Ct. 750, 755-756, 93 L.Ed.2d 757. Pp. 3185-3186. (b) When a defendant moves for summary judgment on the ground that the plaintiff has failed to establish a right to relief under § 702, the burden is on the plaintiff, under Rule 56(e), to set forth specific facts (even though they may be controverted by the defendant) showing that there is a genuine issue for trial. Cf. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265. Where no such showing is made, the defendant is entitled to judgment as a matter of law. Id., at 323, 106 S.Ct., at 2552. Pp. 3186-3187. (c) The specific facts alleged in the two affidavits do not raise a genuine issue of fact as to whether respondent has a right to relief under § 702. It may be assumed that the Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. 20,962 allegedly affected interests set forth in the affidavits -"recreational use and aesthetic enjoyment" -are sufficiently related to respondent's purposes that respondent meets § 702's requirements if any of its members do. Moreover, each affidavit can be read to complain of a particular "agency action" within § 551's meaning; and whatever "adverse effect" or "aggrievement" is established by the affidavits, meets the "zone of interests" test, since "recreational use and aesthetic enjoyment" are among the sorts of interests that the FLPMA and NEPA are designed to protect. However, there has been no showing that those interests of Peterson and Erman were actually "affected" by petitioners' actions, since the affidavits alleged only that the affiants used unspecified lands "in the vicinity of' immense tracts of territory, only on some portions of which, the record shows, mining activity has occurred or probably will occur by virtue of the complained -of actions. The Court of Appeals erred in ruling that the District Court had to presume specific facts sufficient to support the general allegations of injury to the affiants, since such facts are essential to sustaining the complaint and, under Rule 56(e), had to be set forth by respondent. United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669, 93 S.Ct. 2405, 37 L.Ed.2d 254, distinguished. Pp. 3187-3189. *873 2. Respondent's four additional member affidavits did not establish its right to § 702 review. Pp. 3189-3193. (a) The affidavits are insufficient to enable respondent to challenge the entirety of **3181 petitioners' "land withdrawal review program." That term does not refer to a single BLM order or regulation, or even to a completed universe of particular BLM orders and regulations, but is simply the name by which petitioners have occasionally referred to certain continuing (and thus constantly changing) BLM operations regarding public lands, which currently extend to about 1,250 individual decisions and presumably will include more actions in the future. Thus, the program is not an identifiable "agency action" within § 702's meaning, much less a "final agency action" under § 704. Absent an explicit congressional authorization to correct the administrative process on a systemic level, agency action is not ordinarily considered "ripe" for judicial review under the APA until the scope of the controversy has been reduced to manageable proportions, and its factual components fleshed out, by concrete action that harms or threatens to harm the complainant. It may well be, due to the scope of the "program," that the individual BLM actions identified in the affidavits will not be "ripe" for challenge until some further agency action or inaction more immediately harming respondent occurs. But it is entirely certain that the flaws in the entire Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk "program" cannot be laid before the courts for wholesale correction under the APA simply because one of them that is ripe for review adversely affects one of respondent's members. Respondent must seek such programmatic improvements from the BLM or Congress. Pp. 3189-3191. (b) The District Court did not abuse its discretion in declining to admit the supplemental affidavits. Since the affidavits were filed in response to the court's briefing order following the summary judgment hearing, they were untimely under, inter alia, Rule 6(d), which provides that "opposing affidavits may be served not later than 1 day before the hearing." Although Rule 6(b) allows a court, "in its discretion," to extend any filing deadline "for cause shown," a post -deadline extension must be "upon motion made," and is permissible only where the failure to meet the deadline "was the result of excusable neglect." Here, respondent made no motion for extension nor any showing of "cause." Moreover, the failure to timely file did not result from "excusable neglect," since the court's order setting the hearing on the summary judgment motion put respondent on notice that its right to sue was at issue, and that (absent proper motion) the time for filing additional evidentiary materials was, at the latest, the day before the hearing. Even if the court could have overcome these obstacles to admit the affidavits, it was not compelled, in exercising its discretion, to do so. Pp. 3191-3193. *874 3. Respondent is not entitled to seek § 702 review of petitioners' actions in its own right. The brief affidavit submitted to the District Court to show that respondent's ability to fulfill its informational and advocacy functions was "adversely affected" by petitioners' alleged failure to provide adequate information and opportunities for public participation with respect to the land withdrawal review program fails to identify any particular "agency action" that was the source of respondent's alleged injuries, since that program is not an identifiable action or event. Thus, the affidavit does not set forth the specific facts necessary to survive a Rule 56 motion. Pp. 3193-3194. 278 U.S. App. D.C. 320, 878 F.2d 422 (1989), reversed. SCALIA, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and WHITE, O'CONNOR, and KENNEDY, JJ., joined. BLACKMUN, J., filed a dissenting opinion, in which BRENNAN, MARSHALL, and STEVENS, JJ., joined, post, p. 3194. Attorneys and Law Firms WESTLAW Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. 20,962 Acting Solicitor General Roberts argued the cause for petitioners. With him on the briefs were Assistant Attorney General Stewart, Deputy Solicitor General Wallace, Lawrence S. Robbins, Peter R. Steenland, Jr., Anne S. Almy, Fred R. Disheroon, and Vicki L. Plaut. E. Barrett Prettyman, Jr., argued the cause for respondents. With him on the brief were John C. Keeney, Jr., Kathleen C. Zimmerman, and Norman L. Dean, Jr. William Perry Pendley filed a brief for respondents Mountain States Legal Foundation et al. * * Briefs of amici curiae urging reversal were filed for the American Farm Bureau Federation et al. by Kathryn A. Oberly and John J. Rademacher; for the American Mining Congress by Jerry L. Haggard and Gerrie Apker Kurtz; for the National Cattlemen's Association et al. by Constance E. Brooks; for the Pacific Legal Foundation by Ronald A. Zumbrun, Robin L. Rivett, and James S. Burling; and for the Washington Legal Foundation et al. by Terence P. Ross, Daniel J. Popeo, and Richard A. Samp. Briefs of amici curiae urging affirmance were filed for the State of California et al. by John K. Van de Kamp, Attorney General of California, Andrea Sheridan Ordin, Chief Assistant Attorney General, and Craig C. Thompson, Susan L. Durbin, Clifford L. Rechtschaffen, and Nilda M. Mesa, Deputy Attorney Generals, and for the Attorneys General for their respective States as follows: Robert A. Butterworth of Florida, Lacy H. Thornburg of North Carolina, Anthony J. Celebrezze, Jr., of Ohio, Jeffrey L. Amestoy of Vermont, and Joseph B. Meyer of Wyoming; and for the Wilderness Society et al. by Bruce J. Ennis, Jr. Opinion *875 Justice SCALIA delivered the opinion of the Court. In this case we must decide whether respondent, the National Wildlife Federation **3182 (hereinafter respondent), is a proper party to challenge actions of the Federal Government relating to certain public lands. I 1/4111. Respondent filed this action in 1985 in the United States District Court for the District of Columbia against WESTLAW Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk petitioners the United States Department of the Interior, the Secretary of the Interior, and the Director of the Bureau of Land Management (BLM), an agency within the Department. In its amended complaint, respondent alleged that petitioners had violated the Federal Land Policy and Management Act of 1976 (FLPMA), 90 Stat. 2744, 43 U.S.C. § 1701 et seq. (1982 ed.), the National Environmental Policy Act of 1969 (NEPA), 83 Stat. 852, 42 U.S.C. § 4321 et seq., and § 10(e) of the Administrative Procedure Act (APA), 5 U.S.C. § 706, in the course of administering what the complaint called the "land withdrawal review program" of the BLM. Some background information concerning that program is necessary to an understanding of this dispute. In various enactments, Congress empowered United States citizens to acquire title to, and rights in, vast portions of federally owned land. See, e.g., Rev.Stat. § 2319, 30 U.S.C. § 22 et seq. (Mining Law of 1872); 41 Stat. 437, as amended, 30 U.S.C. § 181 et seq. (Mineral Leasing Act of 1920). Congress also provided means, however, for the Executive to remove public lands from the operation of these statutes. The Pickett Act, 36 Stat. 847, 43 U.S.C. § 141 (1970 ed.), repealed, 90 Stat. 2792 (1976), authorized the President "at any time in his discretion, temporarily [to] withdraw from settlement, location, sale, or entry any of the *876 public lands of the United States ... and reserve the same for water -power sites, irrigation, classification of lands, or other public purposes...." Acting under this and under the Taylor Grazing Act of 1934, ch. 865, 48 Stat. 1269, as amended, 43 U.S.C. § 315f, which gave the Secretary of the Interior authority to "classify" public lands as suitable for either disposal or federal retention and management, President Franklin Roosevelt withdrew all unreserved public land from disposal until such time as they were classified. Exec. Order No. 6910, Nov. 26, 1934; Exec. Order No. 6964, Feb. 5, 1935. In 1936, Congress amended § 7 of the Taylor Grazing Act to authorize the Secretary of the Interior "to examine and classify any lands" withdrawn by these orders and by other authority as "more valuable or suitable" for other uses "and to open such lands to entry, selection, or location for disposal in accordance with such classification under applicable public -land laws." 49 Stat. 1976, 43 U.S.C. § 315f (1982 ed.). The amendment also directed that "[s]uch lands shall not be subject to disposition, settlement, or occupation until after the same have been classified and opened to entry." Ibid. The 1964 classification and multiple use Act, 78 Stat. 986, 43 U.S.C. §§ 1411-1418 (1970 ed.) (expired 1970), gave the Secretary further authority to classify lands for the purpose of either disposal or retention by the Federal Government. Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. 20,962 Management of the public lands under these various laws became chaotic. The Public Land Law Review Commission, established by Congress in 1964 to study the matter, 78 Stat. 982, determined in 1970 that "virtually all" of the country's public domain, see Public Land Law Review Commission, One Third of the Nation's Land 52 (1970)-about one-third of the land within the United States, see id., at 19-had been withdrawn or classified for retention; that it was difficult to determine "the extent of existing Executive withdrawals and the degree to which withdrawals overlap each other," id., at 52; and that there were inadequate records to show the purposes *877 of withdrawals and the permissible public uses. Ibid. Accordingly, it recommended that "Congress should provide for a careful review of (1) all Executive withdrawals and reservations, and (2) BLM retention and disposal classifications under the Classification and Multiple Use Act of 1964." Ibid. **3183 In 1976, Congress passed the FLPMA, which repealed many of the miscellaneous laws governing disposal of public land, 43 U.S.C. § 1701 et seq. (1982 ed.), and established a policy in favor of retaining public lands for multiple use management. It directed the Secretary to "prepare and maintain on a continuing basis an inventory of all public lands and their resource and other values," § 1711(a), required land use planning for public lands, and established criteria to be used for that purpose, § 1712. It provided that existing classifications of public lands were subject to review in the land use planning process, and that the Secretary could "modify or terminate any such classification consistent with such land use plans." § 1712(d). It also authorized the Secretary to "make, modify, extend or revoke" withdrawals. § 1714(a). Finally it directed the Secretary, within 15 years, to review withdrawals in existence in 1976 in 11 Western States, § 1714(/ )(1), and to "determine whether, and for how long, the continuation of the existing withdrawal of the lands would be, in his judgment, consistent with the statutory objectives of the programs for which the lands were dedicated and of the other relevant programs," § 1714(/ )(2). The activities undertaken by the BLM to comply with these various provisions constitute what respondent's amended complaint styles the BLM's "land withdrawal review program," which is the subject of the current litigation. Pursuant to the directives of the FLPMA, petitioners engage in a number of different types of administrative action with respect to the various tracts of public land within the United States. First, the BLM conducts the review and recommends the determinations required by § 1714(/ ) with *878 respect to withdrawals in 11 Western States. The law requires the Secretary to "report his WESTLAW recommendations to the President, together with statements of concurrence or nonconcurrence submitted by the heads of the departments or agencies which administer the lands"; the President must in turn submit this report to the Congress, together with his recommendation "for action by the Secretary, or for legislation." § 1714(/ )(2). The Secretary has submitted a number of reports to the President in accordance with this provision. Second, the Secretary revokes some withdrawals under § 204(a) of the Act, which the Office of the Solicitor has interpreted to give the Secretary the power to process proposals for revocation of withdrawals made during the "ordinary course of business." U.S. Dept. of the Interior, Memorandum from the Office of the Solicitor, Oct. 30, 1980. These revocations are initiated in one of three manners: An agency or department holding a portion of withdrawn land that it no longer needs may file a notice of intention to relinquish the lands with the BLM. Any member of the public may file a petition requesting revocation. And in the case of lands held by the BLM, the BLM itself may initiate the revocation proposal. App. 56-57. Withdrawal revocations may be made for several reasons. Some are effected in order to permit sale of the land; some for record -clearing purposes, where the withdrawal designation has been superseded by congressional action or overlaps with another withdrawal designation; some in order to restore the land to multiple use management pursuant to § 102(a)(7) of the FLPMA, 43 U.S.C. § 1701(a)(7) (1982 ed.). App. 142-145. Third, the Secretary engages in the ongoing process of classifying public lands, either for multiple use management, pt. 2420, for disposal, pt. 2430, or for other uses. Classification decisions may be initiated by petition, pt. 2450, or by the BLM itself, pt. 2460. Regulations promulgated *879 by the Secretary prescribe the procedures to be followed in the case of each type of classification determination. II In its complaint, respondent averred generally that the reclassification of some withdrawn **3184 lands and the return of others to the public domain would open the lands up to mining activities, thereby destroying their natural beauty. Respondent alleged that petitioners, in the course of administering the Nation's public lands, had violated the FLPMA by failing to "develop, maintain, Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. 20,962 and, when appropriate, revise land use plans which provide by tracts or areas for the use of the public lands," 43 U.S.C. § 1712(a) (1982 ed.); failing to submit recommendations as to withdrawals in the 11 Western States to the President, § 1714(1 ); failing to consider multiple uses for the disputed lands, § 1732(a), focusing inordinately on such uses as mineral exploitation and development; and failing to provide public notice of decisions, §§ 1701(a)(5), 1712(c)(9), 1712(f), and 1739(e). Respondent also claimed that petitioners had violated NEPA, which requires federal agencies to "include in every recommendation or report on ... major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on ... the environmental impact of the proposed action." 42 U.S.C. § 4332(2)(C) (1982 ed.). Finally, respondent alleged that all of the above actions were "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law," and should therefore be set aside pursuant to § 10(e) of the APA, 5 U.S.C. § 706. Appended to the amended complaint was a schedule of specific land -status determinations, which the complaint stated had been "taken by defendants since January 1, 1981"; each was identified by a listing in the Federal Register. * i., In December 1985, the District Court granted respondent's motion for a preliminary injunction prohibiting petitioners from "[m]odifying, terminating or altering any withdrawal, classification, or other designation governing the protection *880 of lands in the public domain that was in effect on January 1, 1981," and from "[t]aking any action inconsistent" with any such withdrawal, classification, or designation. App. to Pet. for Cert. 185a. In a subsequent order, the court denied petitioners' motion under Rule 12(b) of the Federal Rules of Civil Procedure to dismiss the complaint for failure to demonstrate standing to challenge petitioners' actions under the APA, 5 U.S.C. § 702. App. to Pet. for Cert. 183a. The Court of Appeals affirmed both orders. National Wildlife Federation v. Burford, 266 U.S.App.D.C. 241, 835 F.2d 305 (1987). As to the motion to dismiss, the Court of Appeals found sufficient to survive the motion the general allegation in the amended complaint that respondent's members used environmental resources that would be damaged by petitioners' actions. See id., at 248, 835 F.2d, at 312. It held that this allegation, fairly read along with the balance of the complaint, both identified particular land -status actions that respondent sought to challenge -since at least some of the actions complained of were listed in the complaint's appendix of Federal Register references -and asserted harm to respondent's members attributable to those particular actions. Id., at 249, 835 F.2d, at 313. To support Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk the latter point, the Court of Appeals pointed to the affidavits of two of respondent's members, Peggy Kay Peterson and Richard Erman, which claimed use of land "in the vicinity" of the land covered by two of the listed actions. Thus, the Court of Appeals concluded, there was "concrete indication that [respondent's] members use specific lands covered by the agency's Program and will be adversely affected by the agency's actions," and the complaint was "sufficiently specific for purposes of a motion to dismiss." Ibid. On petitions for rehearing, the Court of Appeals stood by its denial of the motion to dismiss and directed the parties and the District Court "to proceed with this litigation with dispatch.", National Wildlife Federation v. Burford, 269 U.S.App.D.C. 271, 272, 844 F.2d 889, 890 (1988). *881 Back before the District Court, petitioners again claimed, this time by means of a motion for summary judgment under Rule 56 **3185 of the Federal Rules of Civil Procedure (which motion had been outstanding during the proceedings before the Court of Appeals), that respondent had no standing to seek judicial review of petitioners' actions under the APA. After argument on this motion, and in purported response to the court's postargument request for additional briefing, respondent submitted four additional member affidavits pertaining to the issue of standing. The District Court rejected them as untimely, vacated the injunction and granted the Rule 56 motion to dismiss. It noted that neither its earlier decision nor the Court of Appeals' affirmance controlled the question, since both pertained to a motion under Rule 12(b). It found the Peterson and Erman affidavits insufficient to withstand the Rule 56 motion, even as to judicial review of the particular classification decisions to which they pertained. And even if they had been adequate for that limited purpose, the court said, they could not support respondent's attempted APA challenge to "each of the 1250 or so individual classification terminations and withdrawal revocations" effected under the land withdrawal review program. National Wildlife Federation v. Burford, 699 F.Supp. 327, 332 (DC 1988). This time the Court of Appeals reversed. National Wildlife Federation v. Burford, 278 U.S.App.D.C. 320, 878 F.2d 422 (1989). It both found the Peterson and Erman affidavits sufficient in themselves and held that it was an abuse of discretion not to consider the four additional affidavits as well.' The Court of Appeals also concluded that *882 standing to challenge individual classification and withdrawal decisions conferred standing to challenge all such decisions under the land withdrawal review program. We granted certiorari. 493 U.S. 1042, 110 S.Ct. 834, 107 L.Ed.2d 830 (1990). WESTLAW Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. 20,962 III A 111 121 We first address respondent's claim that the Peterson and Erman affidavits alone suffice to establish respondent's right to judicial review of petitioners' actions. Respondent does not contend that either the FLPMA or NEPA provides a private right of action for violations of its provisions. Rather, respondent claims a right to judicial review under § 10(a) of the APA, which provides: "A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof." 5 U.S.C. § 702. This provision contains two separate requirements. First, the person claiming a right to sue must identify some "agency action" that affects him in the specified fashion; it is judicial review "thereof" to which he is entitled. The meaning of "agency action" for purposes of § 702 is set forth in 5 U.S.C. § 551(13), see 5 U.S.C. § 701(b)(2) ("For the purpose of this chapter ... `agency action' ha[s] the meanin[g] given ... by section 551 of this title"), which defines the term as "the whole or a part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act," 5 U.S.C. § 551(13). When, as here, review is sought not pursuant to specific authorization in the substantive statute, but only under the general review provisions of the APA, the "agency action" in question must be "final agency action." See 5 U.S.C. § 704 ("Agency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court are subject to judicial review" (emphasis added). **3186 *883 131 Second, the party seeking review under § 702 must show that he has "suffer[ed] legal wrong" because of the challenged agency action, or is "adversely affected or aggrieved" by that action "within the meaning of a relevant statute." Respondent does not assert that it has suffered "legal wrong," so we need only discuss the meaning of "adversely affected or aggrieved ... within the meaning of a relevant statute." As an original matter, it might be thought that one cannot be Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk "adversely affected or aggrieved within the meaning" of a statute unless the statute in question uses those terms (or terms like them) -as some pre-APA statutes in fact did when conferring rights of judicial review. See, e.g., Federal Communications Act of 1934, § 402(b)(2), 48 Stat. 1093, as amended, 47 U.S.C. § 402(b)(6) (1982 ed.). We have long since rejected that interpretation, however, which would have made the judicial review provision of the APA no more than a restatement of pre-existing law. Rather, we have said that to be "adversely affected or aggrieved ... within the meaning" of a statute, the plaintiff must establish that the injury he complains of (his aggrievement, or the adverse effect upon him ) falls within the "zone of interests" sought to be protected by the statutory provision whose violation forms the legal basis for his complaint. See Clarke v. Securities Industry Assn., 479 U.S. 388, 396-397, 107 S.Ct. 750, 755-756, 93 L.Ed.2d 757 (1987). Thus, for example, the failure of an agency to comply with a statutory provision requiring "on the record" hearings would assuredly have an adverse effect upon the company that has the contract to record and transcribe the agency's proceedings; but since the provision was obviously enacted to protect the interests of the parties to the proceedings and not those of the reporters, that company would not be "adversely affected within the meaning" of the statute. Because this case comes to us on petitioners' motion for summary judgment, we must assess the record under the *884 standard set forth in Rule 56 of the Federal Rules of Civil Procedure. Rule 56(c) states that a party is entitled to summary judgment in his favor "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Rule 56(e) further provides: "When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by WESTLAW Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. 20,962 affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party." 141 As we stated in Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986), "the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Id., at 322, 106 S.Ct., at 2552. Where no such showing is made, "[t]he moving party is `entitled to a judgment as a matter of law' because the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof." Id., at 323, 106 S.Ct., at 2552. 151 161 These, standards are fully applicable when a defendant moves for summary judgment, in a suit brought under § 702, on the ground that the plaintiff has failed to show that he is "adversely affected or aggrieved by agency action within the meaning of a relevant statute." The burden is on the party seeking review under § 702 to set forth **3187 specific facts (even though they may be controverted by the Government) showing that he has satisfied its terms. *885 Sierra Club v. Morton, 405 U.S. 727, 740, 92 S.Ct. 1361, 1369, 31 L.Ed.2d 636 (1972). Celotex made clear that Rule 56 does not require the moving party to negate the elements of the nonmoving party's case; to the contrary, "regardless of whether the moving party accompanies its summary judgment motion with affidavits, the motion may, and should, be granted so long as whatever is before the district court demonstrates that the standard for the entry of summary judgment, as set forth in Rule 56(c), is satisfied." 477 U.S., at 323, 106 S.Ct., at 2553. 171 We turn, then, to whether the specific facts alleged in the two affidavits considered by the District Court raised Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk a genuine issue of fact as to whether an "agency action" taken by petitioners caused respondent to be "adversely affected or aggrieved ... within the meaning of a relevant statute." We assume, since it has been uncontested, that the allegedly affected interests set forth in the affidavits -"recreational use and aesthetic enjoyment" -are sufficiently related to the purposes of respondent association that respondent meets the requirements of § 702 if any of its members do. Hunt v. Washington State Apple Advertising Comm'n, 432 U.S. 333, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977). As for the "agency action" requirement, we think that each of the affidavits can be read, as the Court of Appeals believed, to complain of a particular "agency action" as that term is defined in § 551. The parties agree that the Peterson affidavit, judging from the geographic area it describes, must refer to that one of the BLM orders listed in the appendix to the complaint that appears at 49 Fed.Reg. 19904-19905 (1984), an order captioned W-6228 and dated April 30, 1984, terminating the withdrawal classification of some 4,500 acres of land in that area. See, e.g., Brief for Petitioners 8-10. The parties also appear to agree, on the basis of similar deduction, that the Erman affidavit refers to the BLM order listed in the appendix that appears at *886 47 Fed.Reg. 7232-7233 1982), an order captioned Public Land Order 6156 and dated February 18, 1982. We also think that whatever "adverse effect" or "aggrievement" is established by the affidavits was "within the meaning of the relevant statute"-i.e., met the "zone of interests" test. The relevant statute, of course, is the statute whose violation is the gravamen of the complaint -both the FLPMA and NEPA. We have no doubt that "recreational use and aesthetic enjoyment" are among the sorts of interests those statutes were specifically designed to protect. The only issue, then, is whether the facts alleged in the affidavits showed that those interests of Peterson and Erman were actually affected. The Peterson affidavit averred: "My recreational use and aesthetic enjoyment of federal lands, particularly those in the vicinity of South Pass -Green Mountain, Wyoming have been and continue to be adversely affected in fact by the unlawful actions of the Bureau and the Department. In particular, the South Pass -Green Mountain area of Wyoming has been opened to the staking of mining claims and oil and gas leasing, an action which threatens the aesthetic beauty and wildlife habitat potential of these lands." App. to Pet. for Cert. 191a. WESTLAW >rks Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. 20,962 Erman's affidavit was substantially the same as Peterson's, with respect to all except the area involved; he claimed use of land "in the vicinity of Grand Canyon National Park, the Arizona Strip (Kanab Plateau), and the Kaibab National Forest." Id., at 187a. The District Court found the Peterson affidavit inadequate for the following reasons: "Peterson ... claims that she uses federal lands in the vicinity of the South Pass- **3188 Green Mountain area of Wyoming for recreational purposes and for aesthetic enjoyment and that her recreational and aesthetic enjoyment *887 has been and continues to be adversely affected as the result of the decision of BLM to open it to the staking of mining claims and oil and gas leasing.... This decision [W-6228] opened up to mining approximately 4500 acres within a two million acre area, the balance of which, with the exception of 2000 acres, has always been open to mineral leasing and mining.... There is no showing that Peterson's recreational use and enjoyment extends to the particular 4500 acres covered by the decision to terminate classification to the remainder of the two million acres affected by the termination. All she claims is that she uses lands 'in the vicinity.' The affidavit on its face contains only a bare allegation of injury, and fails to show specific facts supporting the affiant's allegation." 699 F.Supp., at 331 (emphasis in original). The District Court found the Erman affidavit "similarly flawed." "The magnitude of Erman's claimed injury stretches the imagination.... [T]he Arizona Strip consists of all lands in Arizona north and west of the Colorado River on approximately 5.5 million acres, an area one -eighth the size of the State of Arizona. Furthermore, virtually the entire Strip is and for many years has been open to uranium and other metalliferous mining. The revocation of withdrawal [in Public Land Order 6156] concerned only non -metalliferous mining in the western one-third of the Arizona Strip, an area possessing no potential for non -metalliferous mining." Id., at 332. The Court of Appeals disagreed with the District Court's assessment as to the Peterson affidavit (and thus found it unnecessary to consider the Erman affidavit) for the following reason: "If Peterson was not referring to lands in this 4500-acre affected area, her allegation of impairment to her use and enjoyment would be meaningless, or perjurious.... *888 [T]he trial court overlooks the fact that unless Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk Peterson's language is read to refer to the lands affected by the Program, the affidavit is, at best, a meaningless document. "At a minimum, Peterson's affidavit is ambiguous regarding whether the adversely affected lands are the ones she uses. When presented with ambiguity on a motion for summary judgment, a District Court must resolve any factual issues of controversy in favor of the non-moving party.... This means that the District Court was obliged to resolve any factual ambiguity in favor of NWF, and would have had to assume, for the purposes of summary judgment, that Peterson used the 4500 affected acres." 278 U.S.App.D.C., at 329, 878 F.2d, at 431. 181 That is not the law. In ruling upon a Rule 56 motion, "a District Court must resolve any factual issues of controversy in favor of the non-moving party" only in the sense that, where the facts specifically averred by that party contradict facts specifically averred by the movant, the motion must be denied. That is a world apart from "assuming" that general averments embrace the "specific facts" needed to sustain the complaint. As set forth above, Rule 56(e) provides that judgment "shall be entered" against the nonmoving party unless affidavits or other evidence "set forth specific facts showing that there is a genuine issue for trial." The object of this provision is not to replace conclusory allegations of the complaint or answer with conclusory allegations of an affidavit. Cf. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986) ("[T]he plaintiff could not rest on his allegations of a conspiracy to get to a jury without 'any significant probative evidence tending to support the complaint' "), quoting First National Bank of Ariz. v. Cities Service Co., 391 U.S. 253, 290, 88 S.Ct. 1575, 1593, 20 L.Ed.2d 569 (1968). Rather, the purpose of Rule 56 is to enable a party who believes there is no genuine dispute as to a specific fact essential to the **3189 other side's case to demand at least one *889 sworn averment of that fact before the lengthy process of litigation continues. At the margins there is some room for debate as to how "specific" must be the "specific facts" that Rule 56(e) requires in a particular case. But where the fact in question is the one put in issue by the § 702 challenge here -whether one of respondent's members has been, or is threatened to be, "adversely affected or aggrieved" by Government action -Rule 56(e) is assuredly not satisfied by averments which state only that one of respondent's members uses unspecified portions of an immense tract of territory, on some portions of which mining activity has occurred or probably will occur by virtue of the governmental action. It will not do to "presume" the WESTLAW Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. 20,962 missing facts because without them the affidavits would not establish the injury that they generally allege. That converts the operation of Rule 56 to a circular promenade: plaintiffs complaint makes general allegation of injury; defendant contests through Rule 56 existence of specific facts to support injury; plaintiff responds with affidavit containing general allegation of injury, which must be deemed to constitute averment of requisite specific facts since otherwise allegation of injury would be unsupported (which is precisely what defendant claims it is). Respondent places great reliance, as did the Court of Appeals, upon our decision in United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669, 93 S.Ct. 2405, 37 L.Ed.2d 254 (1973). The SCRAP opinion, whose expansive expression of what would suffice for § 702 review under its particular facts has never since been emulated by this Court, is of no relevance here, since it involved not a Rule 56 motion for summary judgment but a Rule 12(b) motion to dismiss on the pleadings. The latter, unlike the former, presumes that general allegations embrace those specific facts that are necessary to support the claim. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957). *890 IV We turn next to the Court of Appeals' alternative holding that the four additional member affidavits proffered by respondent in response to the District Court's briefing order established its right to § 702 review of agency action. A 191 It is impossible that the affidavits would suffice, as the Court of Appeals held, to enable respondent to challenge the entirety of petitioners' so-called "land withdrawal review program." That is not an "agency action" within the meaning of § 702, much less a "final agency action" within the meaning of § 704. The term "land withdrawal review program" (which as far as we know is not derived from any authoritative text) does not refer to a single BLM order or regulation, or even to a completed universe of particular BLM orders and regulations. It is simply the WESTLAW Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk name by which petitioners have occasionally referred to the continuing (and thus constantly changing) operations of the BLM in reviewing withdrawal revocation applications and the classifications of public lands and developing land use plans as required by the FLPMA. It is no more an identifiable "agency action" -much less a "final agency action" -than a "weapons procurement program" of the Department of Defense or a "drug interdiction program" of the Drug Enforcement Administration. As the District Court explained, the "land withdrawal review program" extends to, currently at least, "1250 or so individual classification terminations and withdrawal revocations." 699 F.Supp., at 332.2 **3190 *891 1191 Respondent alleges that violation of the law is rampant within this program -failure to revise land use plans in proper fashion, failure to submit certain recommendations to Congress, failure to consider multiple use, inordinate focus upon mineral exploitation, failure to provide required public notice, failure to provide adequate environmental impact statements. Perhaps so. But respondent cannot seek wholesale improvement of this program by court decree, rather than in the offices of the Department or the halls of Congress, where programmatic improvements are normally made. Under the terms of the APA, respondent must direct its attack against some particular "agency action" that causes it harm. Some statutes permit broad regulations to serve as the "agency action," and thus to be the object of judicial review directly, even before the concrete effects normally required for APA review are felt. Absent such a provision, however, a regulation is not ordinarily considered the type of agency action "ripe" for judicial review under the APA until the scope of the controversy has been reduced to more manageable proportions, and its factual components fleshed out, by some concrete action applying the regulation to the claimant's situation in a fashion that harms or threatens to harm him. (The major exception, of course, is a substantive rule which as a practical matter requires the plaintiff to adjust his conduct immediately. Such agency action is "ripe" for review at once, whether or not explicit statutory review apart from the APA is provided. See Abbott Laboratories v. Gardner, 387 U.S. 136, 152-154, 87 S.Ct. 1507, 1517-1518, 18 L.Ed.2d 681 (1967); Gardner v. Toilet Goods Assn., Inc., 387 U.S. 167, 171-173, 87 S.Ct. 1526, 1528-1530, 18 L.Ed.2d 704 (1967). Cf. Toilet *892 Goods Assn., Inc. v. Gardner, 387 U.S. 158, 164-166, 87 S.Ct. 1520, 1524-1526, 18 L.Ed.2d 697 (1967).) I11l In the present case, the individual actions of the BLM identified in the six affidavits can be regarded as rules of general applicability (a "rule" is defined in the APA as agency action of "general or particular applicability and Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. 20,962 future effect," 5 U.S.C. § 551(4) (emphasis added)) announcing, with respect to vast expanses of territory that they cover, the agency's intent to grant requisite permission for certain activities, to decline to interfere with other activities, and to take other particular action if requested. It may well be, then, that even those individual actions will not be ripe for challenge until some further agency action or inaction more immediately harming the plaintiff occurs.' But it is at least entirely *893 certain that the flaws in the entire "program" -consisting principally of the many individual actions **3191 referenced in the complaint, and presumably actions yet to be taken as well -cannot be laid before the courts for wholesale correction under the APA, simply because one of them that is ripe for review adversely affects one of respondent's members.° *894 1121 The case -by -case approach that this requires is understandably frustrating to an organization such as respondent, which has as its objective across-the-board protection of our Nation's wildlife and the streams and forests that support it. But this is the traditional, and remains the normal, mode of operation of the courts. Except where Congress explicitly provides for our correction of the administrative process at a higher level of generality, we intervene in the administration of the laws only when, and to the extent that, a specific "final agency action" has an actual or immediately threatened effect. Toilet Goods Assn., 387 U.S., at 164-166, 87 S.Ct., at 1524-1526. Such an intervention may ultimately have the effect of requiring a regulation, a series of regulations, or even a whole "program" to be revised by the agency in order to avoid the unlawful result that the court discerns. But it is assuredly not as swift or as immediately far-reaching a corrective process as those interested in systemic improvement would desire. Until confided to us, however, more sweeping actions are for the other branches. 1131 The Court of Appeals' reliance upon the supplemental affidavits was wrong for a **3192 second reason: The District Court did not abuse its discretion in declining to admit them. Petitioners filed their motion for summary judgment in September 1986; respondent filed an opposition but did not submit any new evidentiary materials at that time. On June 27, 1988, after the case had made its way for the first time through the Court of Appeals, the District Court announced that it would hold a WESTLAW Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk hearing on July 22 on "the outstanding motions for summary judgment," which included petitioners' motion challenging respondent's § 702 standing. The hearing was held and, as noted earlier, the District Court issued an order directing respondent to file "a supplemental memorandum regarding *895 the issue of its standing to proceed." Record, Doc. No. 274. Although that plainly did not call for the submission of new evidentiary materials, it was in purported response to this order, on August 22, 1988, that respondent submitted (along with the requested legal memorandum) the additional affidavits. The only explanation for the submission (if it can be called an explanation) was contained in a footnote to the memorandum, which simply stated that "NWF now has submitted declarations on behalf of other members of NWF who have been injured by the challenged actions of federal defendants." Record, Doc. No. 278, p. 18, n. 21. In its November 4, 1988, ruling granting petitioners' motion, the District Court rejected the additional affidavits as "untimely and in violation of [the court's briefing] Order." 699 F.Supp., at 328, n. 3. Respondent's evidentiary submission was indeed untimely, both under Rule 56, which requires affidavits in opposition to a summary judgment motion to be served "prior to the day of the hearing," Fed.Rule Civ.Proc. 56(c), and under Rule 6(d), which states more generally that "[w]hen a motion is supported by affidavit, ... opposing affidavits may be served not later than 1 day before the hearing, unless the court permits them to be served at some other time." Rule 6(b) sets out the proper approach in the case of late filings: "When by these rules or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time, the court for cause shown may at any time in its discretion (1) with or without motion or notice order the period enlarged if request therefor is made before the expiration of the period originally prescribed or as extended by a previous order, or (2) upon motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect...." >r Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d U9b, ZU Envtl. L. Rep. 20,962 This provision not only specifically confers the "discretion" relevant to the present issue, but also provides the mechanism *896 by which that discretion is to be invoked and exercised. First, any extension of a time limitation must be "for cause shown." Second, although extensions before expiration of the time period may be "with or without motion or notice," any postdeadline extension must be "upon motion made," and is permissible only where the failure to meet the deadline "was the result of excusable neglect." Thus, in order to receive the affidavits here, the District Court would have had to regard the very filing of the late document as the "motion made" to file it;5 it would have had to interpret "cause *897 shown" to mean merely **3193 "cause," since respondent made no "showing" of cause at all; and finally, it would have had to find as a substantive matter that there was indeed "cause" for the late filing, and that the failure to file on time "was the result of excusable neglect." This last substantive obstacle is the greatest of all. The Court of Appeals presumably thought it was overcome because "the papers on which the trial court relied were two years old by the time it requested supplemental memoranda" and because "there was no indication prior to the trial court's request that [respondent] should have doubted the adequacy of the affidavits it had already submitted." 278 U.S.App.D.C., at 331, 878 F.2d, at 433. We do not understand the relevance of the first point; the passage of so long a time as two years suggests, if anything, that respondent had more than the usual amount of time to prepare its response to the motion, and was more than moderately remiss in waiting until after the last moment. As to the suggestion of unfair surprise: A litigant is never justified in assuming that the court has made up its mind until the court expresses itself to that effect, and a litigant's failure to buttress its position because of confidence in the strength of that position is always indulged in at the litigant's own risk. In any case, whatever erroneous expectations respondent may have had were surely dispelled by the District Court's order in June 1988 announcing that the hearing on petitioners' motion would be held one month later. At least when that order issued, respondent was on notice that its right to sue was at issue, and that (absent proper motion) the time for filing any additional evidentiary materials was, at the latest, the day before the hearing. *898 Perhaps it is true that the District Court could have overcome all the obstacles we have described -apparent lack of a motion, of a showing, and of excusable neglect -to admit the affidavits at issue here. But the proposition that it was compelled to receive them -that it was an abuse of discretion to reject them -cannot be accepted. Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk V 1141 Respondent's final argument is that we should remand this case for the Court of Appeals to decide whether respondent may seek § 702 review of petitioners' actions in its own right, rather than derivatively through its members. Specifically, it points to allegations in the amended complaint that petitioners unlawfully failed to publish regulations, to invite public participation, and to prepare an environmental impact statement with respect to the "land withdrawal review program" as a whole. In order to show that it is a "person ... adversely affected or aggrieved" by these failures, it submitted to the District Court a brief affidavit (two pages in the record) by one of its vice presidents, Lynn A. Greenwalt, who stated that respondent's mission is to "inform its members and the general public about conservation issues" and to advocate improvements in laws and administrative practices "pertaining to the **3194 protection and enhancement of federal lands," App. to Pet. for Cert. 193a-194a; and that its ability to perform this mission has been impaired by petitioners' failure "to provide adequate information and opportunities for public participation with respect to the Land Withdrawal Review Program." Id., at 194a. The District Court found this affidavit insufficient to establish respondent's right to seek judicial review, since it was "conclusory and completely devoid of specific facts." 699 F.Supp., at 330. The Court of Appeals, having reversed the District Court on the grounds discussed above, did not address the issue. We agree with the District Court's disposition. Even assuming that the affidavit set forth "specific facts," *899 Fed.R.Civ.Proc. 56(e), adequate to show injury to respondent through the deprivation of information; and even assuming that providing information to organizations such as respondent was one of the objectives of the statutes allegedly violated, so that respondent is "aggrieved within the meaning" of those statutes; nonetheless, the Greenwalt affidavit fails to identify any particular "agency action" that was the source of these injuries. The only sentences addressed to that point are as follows: WESTLAW "NWF's ability to meet these obligations to its members has been significantly impaired by the failure of the Bureau of Land Management and the Department of the Interior to provide adequate Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. 20,962 information and opportunities for public participation with respect to the Land Withdrawal Review Program. These interests of NWF have been injured by the actions of the Bureau and the Department and would be irreparably harmed by the continued failure to provide meaningful opportunities for public input and access to information regarding the Land Withdrawal Review Program." App. to Pet. for Cert. 194a. As is evident, this is even more deficient than the Peterson and Erman affidavits, which contained geographical descriptions whereby at least an action as general as a particular classification decision could be identified as the source of the grievance. As we discussed earlier, the "land withdrawal review program" is not an identifiable action or event. With regard to alleged deficiencies in providing information and permitting public participation, as with regard to the other illegalities alleged in the complaint, respondent cannot demand a general judicial review of the BLM's day-to-day operations. The Greenwalt affidavit, like the others, does not set forth the specific facts necessary to survive a Rule 56 motion. *900 * * * For the foregoing reasons, the judgment of the Court of Appeals is reversed. It is so ordered. Justice BLACKMUN, with whom Justice BRENNAN, Justice MARSHALL, and Justice STEVENS join, dissenting. In my view, the affidavits of Peggy Kay Peterson and Richard Loren Erman, in conjunction with other record evidence before the District Court on the motions for summary judgment, were sufficient to establish the standing of the National Wildlife Federation (Federation or NWF) to bring this suit. I also conclude that the District Court abused its discretion by refusing to consider supplemental affidavits filed after the hearing on the parties' cross -motions for summary judgment. I therefore would affirm the judgment of the Court of Appeals. Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk I The Federation's asserted injury in this case rested upon its claim that the Government actions challenged here would lead to increased mining on public lands; that the mining would result in damage to the environment; and that the recreational opportunities of NWF's members would consequently be diminished. Abundant record evidence supported the Federation's assertion that on lands newly opened for mining, mining in fact **3195 would occur.' Similarly, the record furnishes ample support for NWF's contention that mining activities can be expected to cause severe environmentaldamage *901 to the affected lands.' The District Court held, however, that the Federation had not adequately identified particular members who were harmed by the consequences of the Government's actions. Although two of NWF's members expressly averred that their recreational activities had been impaired, the District Court concluded that these affiants had not identified with sufficient precision the particular sites on which their injuries occurred. The majority, like the District Court, holds that the averments of Peterson and Erman were insufficiently specific to withstand a motion for summary judgment. Although these affidavits were not models of precision, I believe that they were adequate at least to create a genuine issue of fact as to the organization's injury. *902 As the Court points out, the showing (whether as to standing or the merits) required to overcome a motion for summary judgment is more extensive than that required in the context of a motion to dismiss. The principal difference is that in the former context evidence is required, while in the latter setting the litigant may rest upon the allegations of his complaint. See Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986) (Federal Rule of Civil Procedure 56(e) "requires the nonmoving party to go beyond the pleadings"). In addition, Rule 56(e) requires that the party opposing summary judgment "must set forth specific facts showing that there is a genuine issue for trial" (emphasis added). Thus, Courts of Appeals have reiterated that "conclusory" allegations unsupported by "specific" evidence will be insufficient to establish a genuine issue of fact.' The requirement that evidence be submitted is satisfied here: The Federation has offered the sworn statements of two of its members. There remains the question whether the allegations in these affidavits were sufficiently precise to satisfy the requirements of Rule 56(e). The line of demarcation between "specific" and "conclusory" allegations is hardly a bright one. But, to my mind, the WESTLAW Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. 20,962 allegations contained in the Peterson and Erman affidavits, in the context of the record as a whole, were adequate **3196 to defeat a motion for summary judgment. These affidavits, as the majority acknowledges, were at least sufficiently precise to enable Bureau of Land Management (BLM) officials to identify the particular termination orders to which the affiants referred. See ante, at 3187. And the affiants averred that their "recreational use and aesthetic enjoyment of federal lands ... have been and continue to be adversely affected in fact by the unlawful *903 actions of the Bureau and the Department." App. to Pet. for Cert. 188a (Erman affidavit), 191a (Peterson affidavit). The question, it should be emphasized, is not whether the NWF has proved that it has standing to bring this action, but simply whether the materials before the District Court established "that there is a genuine issue for trial," see Rule 56(e), concerning the Federation's standing. In light of the principle that "[o]n summary judgment the inferences to be drawn from the underlying facts contained in [evidentiary] materials must be viewed in the light most favorable to the party opposing the motion," United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962), I believe that the evidence before the District Court raised a genuine factual issue as to NWF's standing to sue. No contrary conclusion is compelled by the fact that Peterson alleged that she uses federal lands "in the vicinity of South Pass -Green Mountain, Wyoming," App. to Pet. for Cert. 191a, rather than averring that she uses the precise tract that was recently opened to mining. The agency itself has repeatedly referred to the "South Pass -Green Mountain area" in describing the region newly opened to mining.' Peterson's assertion that her use and enjoyment of federal lands have been adversely affected by the agency's decision to permit more extensive mining is, as the Court of Appeals stated, National Wildlife Federation v. Burford, 278 U.S.App.D.C. 320, 329, 878 F.2d 422, 431 (1989), "meaningless, or perjurious" if the lands she uses do not include those harmed by mining undertaken pursuant to termination order W-6228.5 To read particular assertions within the affidavit in light of the document as a whole is, as the majority might put it, "a world apart" from "presuming" facts that are neither stated nor implied simply because without them the *904 plaintiff would lack standing. The Peterson and Erman affidavits doubtless could have been more artfully drafted, but they defmitely were sufficient to withstand the federal parties' summary judgment motion. WESTLAW Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk II I also conclude that the District Court abused its discretion in refusing to consider the supplemental affidavits filed by NWF after the hearing on the summary judgment motion.' The court's decision abruptly derailed the Federation's lawsuit after three **3197 years of proceedings involving massive time and expense. The District Court and Court of Appeals both had concluded that NWF's claims were sufficiently substantial to warrant the entry of a nationwide injunction. Whatever the ultimate merits of the Federation's claims, litigation of this magnitude should not be aborted on technical grounds if that result legitimately can be avoided. The majority's approach reflects an insufficient appreciation both of the realities of complex litigation and of the admonition that the Federal Rules of Civil Procedure "shall be construed to secure *905 the just, speedy, and inexpensive determination of every action." Rule 1. That a requirement is "technical" does not, of course, mean that it need not be obeyed. And an appeal to the "spirit" of the Federal Rules is an insufficient basis for ignoring the import of their text. If the Rules imposed an absolute deadline for the submission of evidentiary materials, the District Court could not be faulted for strictly enforcing that deadline, even though the result in a particular case might be unfortunate. But, as the Court acknowledges, the Rules expressly permit the District Court to exercise discretion in deciding whether affidavits in opposition to a summary judgment motion may be submitted after the hearing: Once the District Court's power to accept untimely affidavits is recognized, the question whether that power should be exercised in a particular instance must be answered by reference to the explanation for the litigant's omission and the purposes the Rules are designed to serve. In my view, NWF showed adequate cause for its failure to file the supplemental affidavits prior to the hearing. Moreover, the organization's untimely filing in no way disserved the purposes of Rule 56(c), and the federal parties suffered no prejudice as a consequence of the *906 delay. Under these circumstances, I believe that the District Court's refusal to consider these submissions constituted an abuse of discretion. The Federal Rules require that affidavits in opposition to a motion ordinarily must be served at least one day prior to the hearing; the Rules provide, however, that the affidavits may be filed at a later time "where the failure to act was the result of excusable neglect." Rule 6(b); see n. 7, supra. Prior to the July 22, 1988, hearing on the parties' cross -motions for summary judgment, NWF had been assured repeatedly that its prior submissions were ork voior Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. 20,962 sufficient to establish its standing to sue. In its memorandum opinion granting the Federation's motion for a preliminary injunction, the District Court stated: "We continue to find irreparable injury to plaintiff and reaffirm plaintiffs standing to bring this action." National Wildlife Federation v. Burford, 676 F.Supp. 280, 281 (D.C.1986). Later that year the federal parties sought additional discovery on the question of standing. NWF sought to quash discovery, arguing that "[t]he Court should bar any additional discovery on this issue because (1) it has already found that plaintiff has standing; (2) plaintiff has already produced affidavits which demonstrate standing and therefore any additional discovery would be unreasonably cumulative, duplicative, **3198 burdensome and expensive within the meaning of Rule 26(c)(1); and (3) contrary to the government defendants' apparent theory, plaintiff need not demonstrate injury as to each and every action that is part of the program." Memorandum of Points and Authorities in Support of Plaintiff's Motion To Quash and for a Protective Order 5-6 (July 1, 1986). In the alternative, NWF argued that if additional discovery on standing was to be ordered, it should be confined to the requirement that a limited number of additional affidavits be submitted. Id., at 22. The District Court, on July 14, 1986, granted in full the Federation's motion to quash and ordered "that no further discovery of plaintiff or *907 its members, officers, employees, agents, servants, or attorneys shall be permitted until subsequent order of this court, if any." App. to Pet. for Cert. 170a-171a. When the District Court's grant of a preliminary injunction was subjected to appellate review, the Court of Appeals concluded that the Peterson and Erman affidavits "provide a concrete indication that the Federation's members use specific lands covered by the agency's Program and will be adversely affected by the agency's actions." National Wildlife Federation v. Burford, 266 U.S.App.D.C. 241, 249, 835 F.2d 305, 313 (1987).8 The majority's statement that "a litigant is never justified in assuming that the court has made up its mind until the court expresses itself to that effect," ante, at 3193, is therefore simply irrelevant to the present case: The District Court and the Court of Appeals repeatedly had indicated that the Federation had offered sufficient evidence of its standing. Nor did the District Court's order of June 27, 1988, scheduling a motion hearing for the following July 22, place NWF on notice that its claim of standing might be reconsidered. That order made clear that the hearing would consider the summary judgment motions of both the federal parties and *908 the Federation. The principal submission of the federal parties relevant to the hearing WESTLAW Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk was the Defendants' Memorandum in Opposition to Plaintiffs Motion for Summary Judgment and in Support of Defendants' Motion for Summary Judgment and/or for Dissolution of the Preliminary Injunction Issued on February 10, 1986; that memorandum was filed on September 12, 1986. This 86-page memorandum included only 9 ''A pages devoted to standing, and half of that discussion set forth the federal parties' claim that no broad programmatic challenge could succeed even if the Peterson and Erman affidavits adequately alleged injury from Government decisions as to particular tracts of land. Moreover, even the attack on the Peterson and Erman affidavits did not purport to show that summary judgment for the federal parties should be entered on the ground that the Federation lacked standing. Rather, the federal parties argued principally that summary judgment for NWF would be inappropriate because a genuine factual dispute existed as to the Federation's standing to sue. See Defendants' Memorandum, at 45-47. In fact, the 86-page memorandum included only two sentences arguing that the federal parties should be awarded summary judgment on standing grounds. Id., at 11-12, 85. The District Court's decision to schedule a hearing on the parties' cross -motions for summary judgment provided no hint that previous **3199 assurances concerning standing were open to reconsideration.9 Certainly the Federation could have submitted additional evidentiary materials in support of its claim of standing, even though it had no reason to believe that further submissions were necessary. But it would hardly enhance the efficiency *909 of the adjudicative process to encourage litigants to reargue questions previously settled in their favor. In my view, NWF established sufficient cause for its failure to submit the supplemental affidavits prior to the hearing.10 **3200 *910 Moreover, the District Court's refusal to consider the additional submissions in this case did not significantly advance the interests that Rule 56(c) is designed to serve. The Rule requires that affidavits in opposition to a motion for summary judgment must be served "prior to the day of hearing." The Courts of Appeals consistently have recognized, however, that "Rule 56 does not necessarily contemplate an oral hearing. Rather, 10-day advance notice to the adverse party that the motion and all materials in support of or in opposition to the motion will be taken under advisement by the trial court as of a certain day satisfies the notice and hearing *911 dictates of Rule 56." Moore v. Florida, 703 F.2d 516, 519 (CA11 1983)." Rule 56(c)'s requirement that a summary judgment motion be filed 10 days in advance of a scheduled hearing serves to ensure that the nonmoving party is afforded adequate notice of Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. 20,962 the motion. Similarly, the requirement that opposing affidavits be submitted prior to the day of the hearing reflects the fact that the district court may rule on the summary judgment motion at the hearing or at any time thereafter; submission of affidavits prior to that day is thus essential if the moving party is to be assured the opportunity to respond at a time when a response is meaningful. The requirement also allows the district court to establish a deadline by which time all evidence and arguments must be submitted; thereafter, the court may deliberate with the assurance that no subsequent filings will alter the terms of the dispute. These are pressing concerns when the hearing on a summary judgment motion represents the parties' last opportunity to set forth their legal arguments. In the present case, however, the District Court concluded the July 22, 1988, hearing by requesting supplemental briefing on the issue of standing.12 NWF's supplemental affidavits, filed on August 22 as an attachment to its legal memorandum, were submitted at a time when the federal parties had ample opportunity to respond. (Indeed, the opportunity to respond here-10 days -was far greater than would have been the case if NWF had filed (timely) affidavits the day before the hearing and no *912 supplemental briefing had been allowed.) The affidavits, moreover, were filed well before the time when the case was to be taken under advisement. The record in this case is voluminous, currently filling six large boxes; consideration of five more affidavits would not have added significantly to the complexity of the issues before the District Court. Under these circumstances, submission of the supplemental affidavits neither disserved the purposes of the Rule nor prejudiced the federal parties in any respect. The District Court discussed none of these factors in explaining its refusal to consider the supplemental affidavits. Indeed, the District Court offered no justification at all for its action beyond the assertion that the affidavits were untimely." Similarly, the Court **3201 today fails to assess the District Court's action by reference to the excuse for NWF's untimely filing or the absence of prejudice to the federal parties. The District Court and today's majority fail to recognize the guiding principle of the Federal Rules of Civil Procedure, the principle that procedural rules should be construed pragmatically, so as to ensure the just and efficient resolution of legal disputes. Some provisions of the Rules strip the district courts of discretion, and the courts have no choice but to enforce these requirements with scrupulous precision.` But where the Rules expressly confer a range of *913 discretion, a district court may abuse its authority by refusing to take account of WESTLAW Submitted into the public record for item(s)_ PZ.1 . on 12/13/2018 , City Clerk equitable concerns, even where its action violates no express command. In my view, such an abuse of discretion occurred here. III In Part IV -A, ante, at 3189, the majority sets forth a long and abstract discussion of the scope of relief that might have been awarded had the Federation made a sufficient showing of injury from environmental damage to a particular tract of land. Since the majority concludes in other portions of its opinion that the Federation lacks standing to challenge any of the land -use decisions at issue here, it is not clear to me why the Court engages in the hypothetical inquiry contained in Part IV -A. In any event, I agree with much of the Court's discussion, at least in its general outline. The Administrative Procedure Act permits suit to be brought by any person "adversely affected or aggrieved by agency action." 5 U.S.C. § 702. In some cases the "agency action" will consist of a rule of broad applicability; and if the plaintiff prevails, the result is that the rule is invalidated, not simply that the court forbids its application to a particular individual. Under these circumstances a single plaintiff, so long as he is injured by the rule, may obtain "programmatic" relief that affects the rights of parties not before the court. On the other hand, if a generally lawful policy is applied in an illegal manner on a particular occasion, one who is injured is not thereby entitled to challenge other applications of the rule. Application of these principles to the instant case does not turn on whether, or how often, the Bureau's land -management policies have been described as a "program."" In one sense, *914 of course, there is no question that a "program" exists. Everyone associated with this lawsuit recognizes that the BLM, over the past decade, has attempted to develop and implement a comprehensive scheme for the termination of classifications and withdrawals. The real issue is whether the actions and omissions that NWF contends are illegal are themselves part of a plan or policy. For example: If the agency had published a regulation stating that an environmental impact statement (EIS) should never be developed prior to the termination of a classification or withdrawal, NWF could challenge the regulation (which would constitute an "agency action"). If the reviewing court then held that the statute required a pretermination EIS, the relief (invalidation of the rule) would directly view Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. 20,962 affect **3202 tracts other than the ones used by individual affiants. At the other extreme, if the applicable BLM regulation stated that an EIS must be developed, and NWF alleged that the administrator in charge of South Pass/Green Mountain had inexplicably failed to develop one, NWF should not be allowed (on the basis of the Peterson affidavit) to challenge a termination in Florida on the ground that an administrator there made the same mistake. The majority, quoting the District Court, characterizes the Bureau's land management program as " '1250 or so individual classification terminations and withdrawal revocations.' " Ante, at 3189; see National Wildlife Federation v. Burford, 699 F.Supp. 327, 332 (DC 1988). The majority offers no argument in support of this conclusory assertion, and I am far from certain that the characterization is an accurate one. Since this issue bears on the scope of the relief ultimately to be awarded should the plaintiff prevail, rather than on the jurisdiction *915 of the District Court to entertain the suit, I would allow the District Court to address the question on remand.'6 Footnotes 2 3 Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk IV Since I conclude that the Peterson and Erman affidavits provided sufficient evidence of NWF's standing to withstand a motion for summary judgment, and that the District Court abused its discretion by refusing to consider the Federation's supplemental affidavits, I would affirm the judgment of the Court of Appeals. I respectfully dissent. All Citations 497 U.S. 871, 110 S.Ct. 3177, 111 L.Ed.2d 695, 31 ERC 1553, 20 Envtl. L. Rep. 20,962 The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Lumber Co., 200 U.S. 321, 337, 26 S.Ct. 282, 287, 50 L.Ed. 499. As an additional basis for its conclusion, the Court of Appeals held that the earlier panel's finding that the Peterson and Erman affidavits were sufficient to establish respondent's right to sue was the "law of the case." We do not address this conclusion, as the earlier panel's ruling does not, of course, bind this Court. Messenger v. Anderson, 225 U.S. 436, 444, 32 S.Ct. 739, 740, 56 L.Ed. 1152 (1912). Contrary to the apparent understanding of the dissent, we do not contend that no "land withdrawal review program" exists, any more than we would contend that no weapons procurement program exists. We merely assert that it is not an identifiable "final agency action" for purposes of the APA. If there is in fact some specific order or regulation, applying some particular measure across the board to all individual classification terminations and withdrawal revocations, and if that order or regulation is final, and has become ripe for review in the manner we discuss subsequently in text, it can of course be challenged under the APA by a person adversely affected -and the entire land withdrawal review program," insofar as the content of that particular action is concemed, would thereby be affected. But that is quite different from permitting a generic challenge to all aspects of the "land withdrawal review program," as though that itself constituted a final agency action. Under the Secretary's regulations, any person seeking to conduct mining operations that will "cause a cumulative surface disturbance" of five acres or more must first obtain approval of a plan of operations. § 3809.1-4 (1988). Mining operations that cause surface disturbance of less than 5 acres do not require prior approval, but prior notice must be given to the district office of the BLM. § 3809.1-3. Neither approval nor notification is required only with respect to "casual use operations," 43 CFR § 3809.1-2, defined as "activities ordinarily resulting in only negligible disturbance of the Federal lands and resources," § 3809.0-5. (Activities are considered "casual" if "they do not involve the use of mechanized earth moving equipment or explosives or do not involve the use of motorized vehicles in areas designated as closed to off -road vehicles...." Ibid.) Thus, before any mining use ordinarily involving more than "negligible disturbance" can take place, there must occur either agency action in response to a submitted plan or agency inaction in response to a submitted notice. In one of the four new affidavits, Peggy Peterson, one of the original affiants, states that a corporation has filed a mine permit application with the BLM covering a portion of the land to which her original affidavit pertained. App. to Brief in Opposition for Respondent National Wildlife Federation 16. If that permit is granted, there is no doubt that WESTLAW Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. 20,962 4 5 2 Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk agency action ripe for review will have occurred; nor any doubt that, in the course of an otherwise proper court challenge, affiant Peterson, and through her respondent, would be able to call into question the validity of the classification order authorizing the permit. However, before the grant of such a permit, or (when it will suffice) the filing of a notice to engage in mining activities, or (when only "negligible disturbance" will occur) actual mining of the land, it is impossible to tell where or whether mining activities will occur. Indeed, it is often impossible to tell from a classification order alone whether mining activities will even be permissible. As explained in the uncontested affidavit of the BLM's Assistant Director of Land Resources: "The lands may be subject to another withdrawal of comparable scope or they may be subject to classification segregations tantamount to such a withdrawal. In that case, the lands would not be opened to the operation of the public land laws so that the removal of one of the withdrawals has no practical effect. Another reason why there may not be any change is that before the revocation occurred, the lands may have been transferred into private ownership. Consequently, the withdrawal revocation amounts to nothing more than a paper transaction.... In the altemative, a revoked withdrawal may open the lands to the operation of the public land and mineral laws.... Some withdrawal revocations are made without prior knowledge as to what subsequent disposition may be made of the lands. After the lands are opened, they might be transferred out of federal ownership by sale, exchange, or some other discretionary mode of disposal, not anticipated when the withdrawal was revoked. These subsequent discretionary actions require separate and independent decisionmaking that, obviously, are divorced from the prior revocation decision. Environmental and other management concerns and public participation are taken into account in relation to the post -revocation decisionmaking." Affidavit of Frank Edwards, Aug. 18, 1985, App. 61-62. Nothing in this is contrary to our opinion in Automobile Workers v. Brock, 477 U.S. 274, 106 S.Ct. 2523, 91 L.Ed.2d 228 (1986), cited by the Court of Appeals. That opinion did not discuss, and the respondent Secretary of Labor did not rely upon, the requirements of 5 U.S.C. § 702 and our ripeness jurisprudence in cases such as Abbott Laboratories v. Gardner, 387 U.S. 136, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967); Gardner v. Toilet Goods Assn., Inc., 387 U.S. 167, 87 S.Ct. 1526, 18 L.Ed.2d 704 (1967); and Toilet Goods Assn., Inc. v. Gardner, 387 U.S. 158, 87 S.Ct. 1520, 18 L.Ed.2d 697 (1967). The only challenge made and decided, with respect to the individuals' right to sue, relied upon 19 U.S.C. § 2311(d) (1982 ed.), which according to the Secretary of Labor made entertainment of that suit "'contrary to Congress's incorporation of the state system into the administration of the Trade Act, and an affront to the integrity and authority of the state courts.' " 477 U.S., at 283, 106 S.Ct., at 2529, quoting Brief for Respondent in Automobile Workers, O.T. 1985, No. 84-1777, p. 16. The dissent asserts that a footnote in respondent's reply memorandum to the District Court was a "motion" within the meaning of Rule 6(b)(2), and was so obviously so that the District Court committed reversible error in failing to construe it that way. Post, at 3199-3200 and n. 10. We cannot agree. Rule 6(b) establishes a clear distinction between "requests" and "motions," and the one cannot be converted into the other without violating its provisions -or at least cannot be converted on the basis of such lax criteria that conversion would be not only marginally permissible but positively mandatory in the present case. Rule 6(b)(1) allows a court ("for cause shown" and "in its discretion") to grant a "request" for an extension of time, whether the request is made "with or without motion or notice," provided the request is made before the time for filing expires. After the time for filing has expired, however, the court (again "for cause shown" and "in its discretion") may extend the time only "upon motion." To treat all postdeadline "requests" as "motions" (if indeed any of them can be treated that way) would eliminate the distinction between predeadline and postdeadline filings that the Rule painstakingly draws. Surely the postdeadline "request," to be even permissibly treated as a "motion," must contain a high degree of formality and precision, putting the opposing party on notice that a motion is at issue and that he therefore ought to respond. The request here had not much of either characteristic. As for formality, it was not even made in a separate filing or in a separate appearance before the court, but was contained in a single sentence at the end of the first paragraph of one of the 18 single-spaced footnotes in a 20-page memorandum of law. Our district judges must read footnotes with new care if they are to be reversed for failing to recognize motions buried in this fashion. And as for precision, the request not only did not ask for any particular extension of time (7 days, 30 days), it did not specifically ask for an extension of time at all, but merely said that respondent "should be given adequate opportunity to supplement the record." Even this, moreover, was not requested (much less moved for) unconditionally, but only "[i]f the court intends to reverse its prior ruling [regarding NWF standing]." Record, Doc. No. 294, p. 17, n. 16. We think it quite impossible to agree with the dissent that the district judge not only might treat this request as a motion, but that he was compelled to do so. Prior to the District Court's entry of the preliminary injunction, 406 mining claims had been staked in the South Pass -Green Mountain area alone. App. 119. An exhibit filed by the federal parties indicated that over 7,200 claims had been filed in 12 Western States. Exh. 1 to Affidavit of Joseph Martyak (Apr. 11, 1986). A Bureau of Land Management (BLM) draft of a Resource Management Plan/Environmental Impact Statement for the Lander, Wyo., Resource Area stated: "In the Green Mountain Management Unit ... significant long-term impacts to elk and mule deer herds could occur from habitat losses caused by oil and gas activities over the next 60 years.... In the WESTLAW Lujan v. National Wildlife Federation. 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. 20,962 3 4 5 6 7 8 9 Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk South Pass Management Unit, significant acreages of lodgepole pine forest and aspen conifer woodland habitat types could be disturbed, which would cause significant long-term impacts to moose and elk.... If gold mining activities continued to erode these high -value habitats, trout fisheries, the Lander moose herd, the beaver pond ecosystems, and the populations of many other wildlife species would suffer significant cumulative negative effects." Draft RMP/EIS pp. 226-228 (Exh. 3 to Defendant -Intervenors' Reply to Plaintiffs Opposition to Defendants' Motions for Stay Pending Appeal (May 14, 1986)). A BLM Mineral Report issued June 17, 1982, concluded that mining and associated activities "could have an adverse impact on crucial moose habitat, deer habitat, some elk habitat, and a variety of small game and bird species. Improvements at campgrounds, as well as land in the immediate vicinity, could either be damaged or destroyed. These activities could make it difficult for the BLM to manage the forest production and harvesting in the South Pass area. Historical and cultural resources which have and have not been identified could be either damaged or destroyed." Defendant -Intervenors' Exh. 7 (attached as Appendix 1 to Plaintiff National Wildlife Federation's Statement of Points and Authorities in Support of Its Standing To Proceed (Aug. 22, 1988)). See, e.g., May v. Department of Air Force, 777 F.2d 1012, 1016 (CA5 1985); First Commodity Traders, Inc. v. Heinold Commodities, Inc., 766 F.2d 1007, 1011 (CA7 1985); Maldonado v. Ramirez, 757 F.2d 48, 51 (CA3 1985); Galindo v. Precision American Corp., 754 F.2d 1212, 1216 (CA5 1985). See, e.g., App. 123-139 (declaration of Jack Kelly). The areas harmed or threatened by mining and associated activities may extend well beyond the precise location where mining occurs. See n. 2, supra. Five supplemental affidavits were filed. The first was submitted by Peggy Kay Peterson, in clarification of her earlier affidavit: "A substantial portion of the lands which I use ... are identical to those lands" newly opened to mining in the South Pass -Green Mountain area. Peterson Supplemental Affidavit, App. in No. 88-5397 (CADC), p. 356. Ms. Peterson also asserted that "U.S. Energy Corporation has filed a mine permit application with the Bureau and Department, (U.S. Energy Application, TFN 2 4/86), which includes a proposal to mine a significant portion of the federal lands which I use for recreational purposes and aesthetic enjoyment." Id., at 355-356. The other affiants were NWF members David Doran, Merlin McColm, Stephen Blomeke, and Will Ouellette. These individuals identified termination orders that had opened to mining particular tracts of land used by the affiants for recreation and aesthetic enjoyment. The federal parties do not concede that the supplemental affidavits established with certainty the Federation's standing; they contend that further discovery might show the affiants' allegations to be untrue. The federal parties do concede, however, that the supplemental affidavits were not facially deficient. Tr. of Oral Arg. 19. Rule 56(c) provides that when a motion for summary judgment is filed, the "adverse party prior to the day of hearing may serve opposing affidavits." Under Rule 56(e), the district court "may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits." Rule 6(d) states: "When a motion is supported by affidavit, ... opposing affidavits may be served not later than 1 day before the hearing, unless the court permits them to be served at some other time." The district court's authority to permit service "at some other time" is governed in turn by Rule 6(b), which provides that when an act is required to be performed by a specified time, the district court may "upon motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect." See 4A C. Wright & A. Miller, Federal Practice and Procedure § 1165, p. 475 (2d ed. 1987) (Rule 6(b) "gives the court extensive flexibility to modify the fixed time periods found throughout the rules, whether the enlargement is sought before or after the actual termination of the allotted time"). The Court of Appeals' discussion of standing occurred in the context of a motion to dismiss and therefore, by itself, might not assure NWF that it had made a sufficient showing to withstand a motion for summary judgment. But the Court of Appeals, like the District Court before it, also held that the Federation's showing of injury, as reflected in the Peterson and Erman affidavits, provided an adequate basis for a preliminary injunction. As the second Court of Appeals panel concluded, "the burden of establishing irreparable harm to support a request for a preliminary injunction is, if anything, at least as great as the burden of resisting a summary judgment motion on the ground that the plaintiff cannot demonstrate 'injury -in -fact.' " National Wildlife Federation v. Burford, 278 U.S.App.D.C. 320, 330, 878 F.2d 422, 432 (1989) (emphasis omitted). When the first panel affirmed the District Court's entry of a preliminary injunction, Judge Williams' separate opinion, concurring and dissenting, stated that "the specificity required for standing allegations to secure a preliminary injunction will normally be no less than that required on a motion for summary judgment." 266 U.S.App.D.C., at 264, 835 F.2d, at 328. At the hearing itself Fred R. Disheroon, the federal parties' attorney, argued at length on other points before turning to Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. 20,962 14 15 16 Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk Rule 6(b), for example, which generally gives the district court broad authority to grant enlargements of time, establishes the limitation that the court "may not extend the time for taking any action under Rules 50(b) and (c)(2), 52(b), 59(b), (d) and (e), 60(b), and 74(a), except to the extent and under the conditions stated in them." The term "withdrawal review program" repeatedly has been used in BLM documents. See, e.g., Plaintiffs Exhs. 1, 3, 10, 11, 15, 18, 19 (filed July 15, 1985). At oral argument on the cross -motions for summary judgment, counsel for the federal parties acknowledged: "It is true, BLM referred to this review process as a land withdrawal review program." Tr. of Motion Hearing 40 (July 22, 1988). Counsel went on to say, "but I suggest that using a word, calling it a program, doesn't make a program in the sense that it is being challenged here." Ibid. That assertion, though inelegant, seems essentially correct: An agency's terminology is not decisive in determining whether an alleged illegality is systemic or site -specific. The majority also suggests that the agency actions challenged in this suit may not be ripe for review. See ante, at 3190-3191. Since the issue of ripeness has not been briefed or argued in this Court, nor passed on by the courts below, I need not address it. I do note, however, that at the outset of this case the federal parties made precisely the opposite argument, asserting that a preliminary injunction should be denied on the ground that NWF's claims were barred by (aches. The federal parties contended: "The Federation offers no explanation why, despite its detailed knowledge of BLM's revocation and termination activities, it has waited so long to institute litigation." Defendants' Memorandum in Opposition to Plaintiffs Motion for Preliminary Injunction 26 (Aug. 22, 1985). I also decline to address the adequacy of the affidavit submitted by Lynn Greenwalt, since the Court of Appeals did not pass on that issue. End of Document © 2018 Thomson Reuters. No claim to original U.S. Government Works. WESTLAW L L Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. 20,962 KeyCite Yellow Flag - Negative Treatment Not Followed on State Law Grounds Levis v. Konitzky, Me., November 17,2016 no S.Ct. 3177 Supreme Court of the United States Manuel LUJAN, Jr., Secretary of the Interior, et al., Petitioners v. NATIONAL WILDLIFE FEDERATION, et al. No. 89-640. Argued April 16, 1.990. Decided June 27, 1.990. Synopsis National wildlife group filed action challenging the "land withdrawal review program" of the Bureau of Land Management. The United States District Court for the District of Columbia, John H. Pratt, J., 699 F.Supp. 327, granted summary judgment against the group. Appeal was taken. The Court of Appeals for the District of Columbia, 878 F.2d 422, reversed and remanded. Certiorari was granted. The Supreme Court, Justice Scalia, held that: (1) affidavits which were filed by members of the group and which indicated the members' recreational use and aesthetic enjoyment of land "in the vicinity" of land covered by agency actions under the Bureau's "land withdrawal review program" were insufficient to show that the affiants' interests were actually affected; (2) the "land withdrawal review program" was not "agency action" or "fmal agency action," within meaning of the Administrative Procedure Act; and (3) affidavit, which indicated that the group's ability to fulfill its informational and advocacy functions was "adversely affected" by alleged failure of the Bureau to provide adequate information and opportunities for public participation with respect to the "land withdrawal review program" failed to identify any particular "agency action" that was the source of the group's alleged injuries. Judgment of the Court of Appeals reversed. Justice Blackmun, dissented and filed opinion in which Justices Brennan, Marshall, and Stevens joined. WESTLAW West Headnotes (14) 111 121 131 Administrative Law and Procedure Persons aggrieved or affected Administrative Law and Procedure *Decisions and Acts Reviewable In order to obtain judicial review under the general review provisions of the Administrative Procedure Act, the person claiming right to sue must identify some agency action that affects him in specified fashion and must show that he has suffered legal wrong because of the challenged agency action or is adversely affected or aggrieved by that action within the meaning of a relevant statute. 5 U.S.C.A. § 702. 179 Cases that cite this headnote Administrative Law and Procedure ..Finality; ripeness When judicial review of agency action is sought, not pursuant to specific authorization in substantive statute, but only under general review provisions of the Administrative Procedure Act as person suffering legal wrong because of challenged agency action or adversely affected or aggrieved by that action, the "agency action" must be fmal agency action. 5 U.S.C.A. §§ 551(13), 701(b)(2), 702, 704. 294 Cases that cite this headnote Administrative Law and Procedure Persons aggrieved or affected To be adversely affected or aggrieved within meaning of statute, for purposes of obtaining judicial review of agency action under general review provisions of the Administrative Procedure Act, plaintiff must establish that the injury he complains of (his aggrievement, or the adverse affect upon him) falls within the "zone Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. 20,962 141 Isl 4110140 • 161 of interests" sought to be protected by the statutory provision whose violation forms the legal basis for his complaint. 5 U.S.C.A. § 702. 312 Cases that cite this headnote Federal Civil Procedure ..'Lack of cause of action or defense Summary judgment must be entered, after adequate time for discovery and upon motion, against party who fails to make showing sufficient to establish the existence of element essential to that party's case on which that party will bear burden of proof at trial. Fed.Rules Civ.Proc.Rule 56(c), 28 U.S.C.A. 1636 Cases that cite this headnote Federal Civil Procedure ...Burden of proof In order to avoid summary judgment, party who is seeking judicial review of agency action under the general review provision of the Administrative Procedure Act has burden to set forth specific facts, even though they may be controverted by the government, showing that he has satisfied its terms. 5 U.S.C.A. § 702; Fed.Rules Civ.Proc.Rule 56, 28 U.S.C.A. 1105 Cases that cite this headnote Federal Civil Procedure ..-Matters Affecting Right to Judgment Summary judgment rule does not require movant to negate elements of nonmovant's case; rather, regardless of whether movant accompanies its summary judgment motion with affidavits, the motion may, and should, be granted so long as whatever is before the district court demonstrates that standard for entry of summary judgment is satisfied. Fed.Rules 171 181 Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk Civ.Proc.Rules 56, 56(c), 28 U.S.C.A. 1205 Cases that cite this headnote Administrative Law and Procedure aiPersons aggrieved or affected Environmental Law ....Organizations, associations, and other groups Affidavits, which were filed by members of national wildlife group and which indicated the members' recreational use and aesthetic enjoyment of land "in the vicinity" of land covered by agency actions under the "land withdrawal review program" of the Bureau of Land Management, were insufficient to show that the members' interests were actually affected, for purposes of the general review provisions of the Administrative Procedure Act; affidavits indicated only that the members used unspecified portions of immense tract of territory, on some portions of which mining activity had occurred or probably would occur by virtue of the governmental action, and missing facts could not be "presumed" to establish the injury that was generally alleged. 5 U.S.C.A. § 702; Fed.Rules Civ.Proc.Rule 56, 28 U.S.C.A. 682 Cases that cite this headnote Federal Civil Procedure .Presumptions When ruling on summary judgment motion, district court must resolve any factual issues of controversy in favor of nonmovant only in the sense that, where facts specifically averred by nonmovant contradict facts specifically averred by movant, motion must be denied. Fed.Rules Civ.Proc.Rule 56, 28 U.S.C.A. 3753 Cases that cite this headnote WESTLAW Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. 20,962 191 1101 Administrative Law and Procedure .-Finality; ripeness Environmental Law ...Administrative Decisions or Actions Reviewable in General "Land withdrawal review program" of the Bureau of Land Management was not "agency action" for purposes of general review provisions of the Administrative Procedure Act, much less "final agency action," within meaning of the Act; term "land withdrawal review program" did not refer to single Bureau order or regulation, or even to completed universe of particular Bureau orders and regulations, but, rather, referred to the continuing and thus constantly changing operations of the Bureau in reviewing withdrawal revocation applications and the classifications of public lands and developing land use plans as required by the Federal Land Policy and Management Act. Federal Land Policy and Management Act of 1976, § 102 et seq., 43 U.S.C.A. § 1701 et seq.; 5 U.S.C.A. §§ 702, 704. 141 Cases that cite this headnote Administrative Law and Procedure Finality; ripeness Substantive rule which as a practical matter requires plaintiff to adjust his conduct immediately is agency action "ripe" for judicial review at once, whether or not explicit statutory review apart from the Administrative Procedure Act is provided. 5 U.S.C.A. §§ 702, 704. 69 Cases that cite this headnote Administrative Law and Procedure ...finality; ripeness Environmental Law ...Administrative Decisions or Actions Reviewable in General Flaws in the entire "land withdrawal review 1121 1131 1141 Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk program" of the Bureau of Land Management cannot be laid before the courts for wholesale correction under the Administrative Procedure Act simply because one of them that is ripe for review adversely affects one member of national wildlife group. 20 Cases that cite this headnote Administrative Law and Procedure .-Finality; ripeness Except where Congress explicitly provides for correction of the administrative process at higher level of generality, the Supreme Court intervenes in the administration of the laws only when, and to the extent that, specific "final agency action" has actual or immediately threatened effect. 5 U.S.C.A. §§ 702, 704. 65 Cases that cite this headnote Federal Civil Procedure Affidavits Declining to admit supplemental affidavits, which were filed in response to district court's briefing order following the summary judgment hearing, was not abuse of discretion, in action brought under the general review provisions of the Administrative Procedure Act; the affidavits were untimely under applicable rules, and although the district court could perhaps have overcome the apparent lack of a motion, of a showing of cause, and of excusable neglect to admit the affidavits, it was not compelled to receive them. Fed.Rules Civ.Proc.Rules 6(b, d), 56, 56(c), 28 U.S.C.A.; 5 U.S.C.A. § 702. 298 Cases that cite this headnote Administrative Law and Procedure Persons aggrieved or affected Environmental Law WESTLAW Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. 20,962 -Administrative Decisions or Actions Reviewable in General Affidavit, which indicated that national wildlife group's ability to fulfill its informational and advocacy functions was adversely affected by alleged failure of the Bureau of Land Management to provide adequate information and opportunities for public participation with respect to the Bureau's "land withdrawal review program," failed to identify any particular "agency action" that was source of the group's alleged injury, and, thus, group was not entitled to judicial review of the Bureau's actions under the general review provisions of the Administrative Procedure Act; the "land withdrawal review program" was not identifiable action or event, and group could not demand general judicial review of the Bureau's day-to-day operations. 5 U.S.C.A. §§ 702, 704. 62 Cases that cite this headnote **3179 Syllabus' *871 The National Wildlife Federation (hereinafter respondent) filed this action in the District Court against petitioners, the Director of the Bureau of Land Management (BLM) and other federal parties, alleging that, in various respects, they had violated the Federal Land Policy and Management Act of 1976 (FLPMA) and the National Environmental Policy Act of 1969 (NEPA) in the course of administering the BLM's "land withdrawal review program," and that the complained -of actions should be set aside because they were "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law" within the meaning of § 10(e) of the Administrative Procedure Act (APA), 5 U.S.C. § 706. Under the program, petitioners make various types of decisions affecting the status of public lands and their availability for private uses such as mining, a number of which decisions were listed in an appendix to the complaint. The court granted petitioners' motion for summary judgment under Federal Rule of Civil Procedure 56, holding that respondent lacked standing to seek judicial review of petitioners' actions under the APA, § 702. The court ruled that affidavits by two of respondent's members, Peterson and Erman, claiming use of public Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk lands "in the vicinity" of lands covered by two of the listed decisions, were insufficient to confer standing as to those particular decisions, and that, even if they had been adequate for that limited purpose, they could not support respondent's attempted APA challenge to each of the 1,250 or so individual actions effected under the program. The **3180 court rejected as untimely four more member affidavits pertaining to standing, which were submitted after argument on the summary judgment motion and in purported response to the District Court's postargument request for additional briefmg. The Court of Appeals reversed, holding that the Peterson and Erman affidavits were sufficient in themselves, that it was an abuse of discretion not to consider the four additional affidavits, and that standing to challenge the individual decisions conferred standing to challenge all such decisions. Held: 1. The Peterson and Erman affidavits are insufficient to establish respondent's § 702 entitlement to judicial review as "[a] person ... *872 adversely affected or aggrieved by agency action within the meaning of a relevant statute." Pp. 3185-3189. (a) To establish a right to relief under § 702, respondent must satisfy two requirements. First, it must show that it has been affected by some "agency action," as defined in § 551(13). See § 701(b)(2). Since neither the FLPMA nor NEPA provides a private right of action, the "agency action" in question must also be "final agency action" under § 704. Second, respondent must prove that it is "adversely affected or aggrieved" by that action "within the meaning of a relevant statute," which requires a showing that the injury complained of falls within the "zone of interests" sought to be protected by the FLPMA and NEPA. Cf. Clarke v. Securities Industry Assn., 479 U.S. 388, 396-397, 107 S.Ct. 750, 755-756, 93 L.Ed.2d 757. Pp. 3185-3186. (b) When a defendant moves for summary judgment on the ground that the plaintiff has failed to establish a right to relief under § 702, the burden is on the plaintiff, under Rule 56(e), to set forth specific facts (even though they may be controverted by the defendant) showing that there is a genuine issue for trial. Cf. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265. Where no such showing is made, the defendant is entitled to judgment as a matter of law. Id., at 323, 106 S.Ct., at 2552. Pp. 3186-3187. (c) The specific facts alleged in the two affidavits do not raise a genuine issue of fact as to whether respondent has a right to relief under § 702. It may be assumed that the WESTLAW Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. allegedly affected interests set forth in the affidavits -"recreational use and aesthetic enjoyment" -are sufficiently related to respondent's purposes that respondent meets § 702's requirements if any of its members do. Moreover, each affidavit can be read to complain of a particular "agency action" within § 551's meaning; and whatever "adverse effect" or "aggrievement" is established by the affidavits, meets the "zone of interests" test, since "recreational use and aesthetic enjoyment" are among the sorts of interests that the FLPMA and NEPA are designed to protect. However, there has been no showing that those interests of Peterson and Erman were actually "affected" by petitioners' actions, since the affidavits alleged only that the affiants used unspecified lands "in the vicinity of' immense tracts of territory, only on some portions of which, the record shows, mining activity has occurred or probably will occur by virtue of the complained -of actions. The Court of Appeals erred in ruling that the District Court had to presume specific facts sufficient to support the general allegations of injury to the affiants, since such facts are essential to sustaining the complaint and, under Rule 56(e), had to be set forth by respondent. United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669, 93 S.Ct. 2405, 37 L.Ed.2d 254, distinguished. Pp. 3187-3189. *873 2. Respondent's four additional member affidavits did not establish its right to § 702 review. Pp. 3189-3193. (a) The affidavits are insufficient to enable respondent to challenge the entirety of **3181 petitioners' "land withdrawal review program." That term does not refer to a single BLM order or regulation, or even to a completed universe of particular BLM orders and regulations, but is simply the name by which petitioners have occasionally referred to certain continuing (and thus constantly changing) BLM operations regarding public lands, which currently extend to about 1,250 individual decisions and presumably will include more actions in the future. Thus, the program is not an identifiable "agency action" within § 702's meaning, much less a "final agency action" under § 704. Absent an explicit congressional authorization to correct the administrative process on a systemic level, agency action is not ordinarily considered "ripe" for judicial review under the APA until the scope of the controversy has been reduced to manageable proportions, and its factual components fleshed out, by concrete action that harms or threatens to harm the complainant. It may well be, due to the scope of the "program," that the individual BLM actions identified in the affidavits will not be "ripe" for challenge until some further agency action or inaction more immediately harming respondent occurs. But it is entirely certain that the flaws in the entire WESTLAW Submitted into the public record for items; PZ.1 . on 12/13/2018 , City Clerk 20,962 "program" cannot be laid before the courts for wholesale correction under the APA simply because one of them that is ripe for review adversely affects one of respondent's members. Respondent must seek such programmatic improvements from the BLM or Congress. Pp. 3189-3191. (b) The District Court did not abuse its discretion in declining to admit the supplemental affidavits. Since the affidavits were filed in response to the court's briefing order following the summary judgment hearing, they were untimely under, inter alia, Rule 6(d), which provides that "opposing affidavits may be served not later than 1 day before the hearing." Although Rule 6(b) allows a court, "in its discretion," to extend any filing deadline "for cause shown," a post -deadline extension must be "upon motion made," and is permissible only where the failure to meet the deadline "was the result of excusable neglect." Here, respondent made no motion for extension nor any showing of "cause." Moreover, the failure to timely file did not result from "excusable neglect," since the court's order setting the hearing on the summary judgment motion put respondent on notice that its right to sue was at issue, and that (absent proper motion) the time for filing additional evidentiary materials was, at the latest, the day before the hearing. Even if the court could have overcome these obstacles to admit the affidavits, it was not compelled, in exercising its discretion, to do so. Pp. 3191-3193. *874 3. Respondent is not entitled to seek § 702 review of petitioners' actions in its own right. The brief affidavit submitted to the District Court to show that respondent's ability to fulfill its informational and advocacy functions was "adversely affected" by petitioners' alleged failure to provide adequate information and opportunities for public participation with respect to the land withdrawal review program fails to identify any particular "agency action" that was the source of respondent's alleged injuries, since that program is not an identifiable action or event. Thus, the affidavit does not set forth the specific facts necessary to survive a Rule 56 motion. Pp. 3193-3194. 278 U.S. App. D.C. 320, 878 F.2d 422 (1989), reversed. SCALIA, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and WHITE, O'CONNOR, and KENNEDY, JJ., joined. BLACKMUN, J., filed a dissenting opinion, in which BRENNAN, MARSHALL, and STEVENS, JJ., joined, post, p. 3194. Attorneys and Law Firms ‘r. Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. 20,962 Acting Solicitor General Roberts argued the cause for petitioners. With him on the briefs were Assistant Attorney General Stewart, Deputy Solicitor General Wallace, Lawrence S. Robbins, Peter R. Steenland, Jr., Anne S. Almy, Fred R. Disheroon, and Vicki L. Plaut. E. Barrett Prettyman, Jr., argued the cause for respondents. With him on the brief were John C. Keeney, Jr., Kathleen C. Zimmerman, and Norman L. Dean, Jr. William Perry Pendley filed a brief for respondents Mountain States Legal Foundation et al. * * Briefs of amici curiae urging reversal were filed for the American Farm Bureau Federation et al. by Kathryn A. Oberly and John J. Rademacher; for the American Mining Congress by Jerry L. Haggard and Gerrie Apker Kurtz; for the National Cattlemen's Association et al. by Constance E. Brooks; for the Pacific Legal Foundation by Ronald A. Zumbrun, Robin L. Rivett, and James S. Burling; and for the Washington Legal Foundation et al. by Terence P. Ross, Daniel J. Popeo, and Richard A. Samp. Briefs of amici curiae urging affirmance were filed for the State of California et al. by John K Van de Kamp, Attorney General of California, Andrea Sheridan Ordin, Chief Assistant Attorney General, and Craig C. Thompson, Susan L. Durbin, Clifford L. Rechtschaffen, and Nilda M. Mesa, Deputy Attorney Generals, and for the Attorneys General for their respective States as follows: Robert A. Butterworth of Florida, Lacy H. Thornburg of North Carolina, Anthony J. Celebrezze, Jr., of Ohio, Jeffrey L. Amestoy of Vermont, and Joseph B. Meyer of Wyoming; and for the Wilderness Society et al. by Bruce J. Ennis, Jr. Opinion *875 Justice SCALIA delivered the opinion of the Court. In this case we must decide whether respondent, the National Wildlife Federation **3182 (hereinafter respondent), is a proper party to challenge actions of the Federal Government relating to certain public lands. I Respondent filed this action in 1985 in the United States District Court for the District of Columbia against Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk petitioners the United States Department of the Interior, the Secretary of the Interior, and the Director of the Bureau of Land Management (BLM), an agency within the Department. In its amended complaint, respondent alleged that petitioners had violated the Federal Land Policy and Management Act of 1976 (FLPMA), 90 Stat. 2744, 43 U.S.C. § 1701 et seq. (1982 ed.), the National Environmental Policy Act of 1969 (NEPA), 83 Stat. 852, 42 U.S.C. § 4321 et seq., and § 10(e) of the Administrative Procedure Act (APA), 5 U.S.C. § 706, in the course of administering what the complaint called the "land withdrawal review program" of the BLM. Some background information concerning that program is necessary to an understanding of this dispute. In various enactments, Congress empowered United States citizens to acquire title to, and rights in, vast portions of federally owned land. See, e.g., Rev.Stat. § 2319, 30 U.S.C. § 22 et seq. (Mining Law of 1872); 41 Stat. 437, as amended, 30 U.S.C. § 181 et seq. (Mineral Leasing Act of 1920). Congress also provided means, however, for the Executive to remove public lands from the operation of these statutes. The Pickett Act, 36 Stat. 847, 43 U.S.C. § 141 (1970 ed.), repealed, 90 Stat. 2792 (1976), authorized the President "at any time in his discretion, temporarily [to] withdraw from settlement, location, sale, or entry any of the *876 public lands of the United States ... and reserve the same for water -power sites, irrigation, classification of lands, or other public purposes...." Acting under this and under the Taylor Grazing Act of 1934, ch. 865, 48 Stat. 1269, as amended, 43 U.S.C. § 315f, which gave the Secretary of the Interior authority to "classify" public lands as suitable for either disposal or federal retention and management, President Franklin Roosevelt withdrew all unreserved public land from disposal until such time as they were classified. Exec. Order No. 6910, Nov. 26, 1934; Exec. Order No. 6964, Feb. 5, 1935. In 1936, Congress amended § 7 of the Taylor Grazing Act to authorize the Secretary of the Interior "to examine and classify any lands" withdrawn by these orders and by other authority as "more valuable or suitable" for other uses "and to open such lands to entry, selection, or location for disposal in accordance with such classification under applicable public -land laws." 49 Stat. 1976, 43 U.S.C. § 315f (1982 ed.). The amendment also directed that "[s]uch lands shall not be subject to disposition, settlement, or occupation until after the same have been classified and opened to entry." Ibid. The 1964 classification and multiple use Act, 78 Stat. 986, 43 U.S.C. §§ 1411-1418 (1970 ed.) (expired 1970), gave the Secretary further authority to classify lands for the purpose of either disposal or retention by the Federal Government. Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. 20,962 future effect," 5 U.S.C. § 551(4) (emphasis added)) announcing, with respect to vast expanses of territory that they cover, the agency's intent to grant requisite permission for certain activities, to decline to interfere with other activities, and to take other particular action if requested. It may well be, then, that even those individual actions will not be ripe for challenge until some further agency action or inaction more immediately harming the plaintiff occurs.' But it is at least entirely *893 certain that the flaws in the entire "program" -consisting principally of the many individual actions **3191 referenced in the complaint, and presumably actions yet to be taken as well -cannot be laid before the courts for wholesale correction under the APA, simply because one of them that is ripe for review adversely affects one of respondent's members.' *894 1'21 The case -by -case approach that this requires is understandably frustrating to an organization such as respondent, which has as its objective across-the-board protection of our Nation's wildlife and the streams and forests that support it. But this is the traditional, and remains the normal, mode of operation of the courts. Except where Congress explicitly provides for our correction of the administrative process at a higher level of generality, we intervene in the administration of the laws only when, and to the extent that, a specific "final agency action" has an actual or immediately threatened effect. Toilet Goods Assn., 387 U.S., at 164-166, 87 S.Ct., at 1524-1526. Such an intervention may ultimately have the effect of requiring a regulation, a series of regulations, or even a whole "program" to be revised by the agency in order to avoid the unlawful result that the court discerns. But it is assuredly not as swift or as immediately far-reaching a corrective process as those interested in systemic improvement would desire. Until confided to us, however, more sweeping actions are for the other branches. 1131 The Court of Appeals' reliance upon the supplemental affidavits was wrong for a **3192 second reason: The District Court did not abuse its discretion in declining to admit them. Petitioners filed their motion for summary judgment in September 1986; respondent filed an opposition but did not submit any new evidentiary materials at that time. On June 27, 1988, after the case had made its way for the first time through the Court of Appeals, the District Court announced that it would hold a WESTLAW Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk hearing on July 22 on "the outstanding motions for summary judgment," which included petitioners' motion challenging respondent's § 702 standing. The hearing was held and, as noted earlier, the District Court issued an order directing respondent to file "a supplemental memorandum regarding *895 the issue of its standing to proceed." Record, Doc. No. 274. Although that plainly did not call for the submission of new evidentiary materials, it was in purported response to this order, on August 22, 1988, that respondent submitted (along with the requested legal memorandum) the additional affidavits. The only explanation for the submission (if it can be called an explanation) was contained in a footnote to the memorandum, which simply stated that "NWF now has submitted declarations on behalf of other members of NWF who have been injured by the challenged actions of federal defendants." Record, Doc. No. 278, p. 18, n. 21. In its November 4, 1988, ruling granting petitioners' motion, the District Court rejected the additional affidavits as "untimely and in violation of [the court's briefing] Order." 699 F.Supp., at 328, n. 3. Respondent's evidentiary submission was indeed untimely, both under Rule 56, which requires affidavits in opposition to a summary judgment motion to be served "prior to the day of the hearing," Fed.Rule Civ.Proc. 56(c), and under Rule 6(d), which states more generally that "[w]hen a motion is supported by affidavit, ... opposing affidavits may be served not later than 1 day before the hearing, unless the court permits them to be served at some other time." Rule 6(b) sets out the proper approach in the case of late filings: "When by these rules or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time, the court for cause shown may at any time in its discretion (1) with or without motion or notice order the period enlarged if request therefor is made before the expiration of the period originally prescribed or as extended by a previous order, or (2) upon motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect...." L Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. 20,962 This provision not only specifically confers the "discretion" relevant to the present issue, but also provides the mechanism *896 by which that discretion is to be invoked and exercised. First, any extension of a time limitation must be "for cause shown." Second, although extensions before expiration of the time period may be "with or without motion or notice," any postdeadline extension must be "upon motion made," and is permissible only where the failure to meet the deadline "was the result of excusable neglect." Thus, in order to receive the affidavits here, the District Court would have had to regard the very filing of the late document as the "motion made" to file it;s it would have had to interpret "cause *897 shown" to mean merely **3193 "cause," since respondent made no "showing" of cause at all; and finally, it would have had to find as a substantive matter that there was indeed "cause" for the late filing, and that the failure to file on time "was the result of excusable neglect." This last substantive obstacle is the greatest of all. The Court of Appeals presumably thought it was overcome because "the papers on which the trial court relied were two years old by the time it requested supplemental memoranda" and because "there was no indication prior to the trial court's request that [respondent] should have doubted the adequacy of the affidavits it had already submitted." 278 U.S.App.D.C., at 331, 878 F.2d, at 433. We do not understand the relevance of the first point; the passage of so long a time as two years suggests, if anything, that respondent had more than the usual amount of time to prepare its response to the motion, and was more than moderately remiss in waiting until after the last moment. As to the suggestion of unfair surprise: A litigant is never justified in assuming that the court has made up its mind until the court expresses itself to that effect, and a litigant's failure to buttress its position because of confidence in the strength of that position is always indulged in at the litigant's own risk. In any case, whatever erroneous expectations respondent may have had were surely dispelled by the District Court's order in June 1988 announcing that the hearing on petitioners' motion would be held one month later. At least when that order issued, respondent was on notice that its right to sue was at issue, and that (absent proper motion) the time for filing any additional evidentiary materials was, at the latest, the day before the hearing. *898 Perhaps it is true that the District Court could have overcome all the obstacles we have described -apparent lack of a motion, of a showing, and of excusable neglect -to admit the affidavits at issue here. But the proposition that it was compelled to receive them -that it was an abuse of discretion to reject them -cannot be accepted. Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk V 1141 Respondent's final argument is that we should remand this case for the Court of Appeals to decide whether respondent may seek § 702 review of petitioners' actions in its own right, rather than derivatively through its members. Specifically, it points to allegations in the amended complaint that petitioners unlawfully failed to publish regulations, to invite public participation, and to prepare an environmental impact statement with respect to the "land withdrawal review program" as a whole. In order to show that it is a "person ... adversely affected or aggrieved" by these failures, it submitted to the District Court a brief affidavit (two pages in the record) by one of its vice presidents, Lynn A. Greenwalt, who stated that respondent's mission is to "inform its members and the general public about conservation issues" and to advocate improvements in laws and administrative practices "pertaining to the **3194 protection and enhancement of federal lands," App. to Pet. for Cert. 193a-194a; and that its ability to perform this mission has been impaired by petitioners' failure "to provide adequate information and opportunities for public participation with respect to the Land Withdrawal Review Program." Id., at 194a. The District Court found this affidavit insufficient to establish respondent's right to seek judicial review, since it was "conclusory and completely devoid of specific facts." 699 F.Supp., at 330. The Court of Appeals, having reversed the District Court on the grounds discussed above, did not address the issue. We agree with the District Court's disposition. Even assuming that the affidavit set forth "specific facts," *899 Fed.R.Civ.Proc. 56(e), adequate to show injury to respondent through the deprivation of information; and even assuming that providing information to organizations such as respondent was one of the objectives of the statutes allegedly violated, so that respondent is "aggrieved within the meaning" of those statutes; nonetheless, the Greenwalt affidavit fails to identify any particular "agency action" that was the source of these injuries. The only sentences addressed to that point are as follows: "NWF's ability to meet these obligations to its members has been significantly impaired by the failure of the Bureau of Land Management and the Department of the Interior to provide adequate WESTLAW Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. 20,962 information and opportunities for public participation with respect to the Land Withdrawal Review Program. These interests of NWF have been injured by the actions of the Bureau and the Department and would be irreparably harmed by the continued failure to provide meaningful opportunities for public input and access to information regarding the Land Withdrawal Review Program." App. to Pet. for Cert. 194a. As is evident, this is even more deficient than the Peterson and Erman affidavits, which contained geographical descriptions whereby at least an action as general as a particular classification decision could be identified as the source of the grievance. As we discussed earlier, the "land withdrawal review program" is not an identifiable action or event. With regard to alleged deficiencies in providing information and permitting public participation, as with regard to the other illegalities alleged in the complaint, respondent cannot demand a general judicial review of the BLM's day-to-day operations. The Greenwalt affidavit, like the others, does not set forth the specific facts necessary to survive a Rule 56 motion. *900 * * * For the foregoing reasons, the judgment of the Court of Appeals is reversed. It is so ordered. Justice BLACKMUN, with whom Justice BRENNAN, Justice MARSHALL, and Justice STEVENS join, dissenting. In my view, the affidavits of Peggy Kay Peterson and Richard Loren Erman, in conjunction with other record evidence before the District Court on the motions for summary judgment, were sufficient to establish the standing of the National Wildlife Federation (Federation or NWF) to bring this suit. I also conclude that the District Court abused its discretion by refusing to consider supplemental affidavits filed after the hearing on the parties' cross -motions for summary judgment. I therefore would affirm the judgment of the Court of Appeals. WESTLAW Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk I The Federation's asserted injury in this case rested upon its claim that the Government actions challenged here would lead to increased mining on public lands; that the mining would result in damage to the environment; and that the recreational opportunities of NWF's members would consequently be diminished. Abundant record evidence supported the Federation's assertion that on lands newly opened for mining, mining in fact **3195 would occur) Similarly, the record furnishes ample support for NWF's contention that mining activities can be expected to cause severe environmentaldamage *901 to the affected lands. The District Court held, however, that the Federation had not adequately identified particular members who were harmed by the consequences of the Government's actions. Although two of NWF's members expressly averred that their recreational activities had been impaired, the District Court concluded that these affiants had not identified with sufficient precision the particular sites on which their injuries occurred. The majority, like the District Court, holds that the averments of Peterson and Erman were insufficiently specific to withstand a motion for summary judgment. Although these affidavits were not models of precision, I believe that they were adequate at least to create a genuine issue of fact as to the organization's injury. *902 As the Court points out, the showing (whether as to standing or the merits) required to overcome a motion for summary judgment is more extensive than that required in the context of a motion to dismiss. The principal difference is that in the former context evidence is required, while in the latter setting the litigant may rest upon the allegations of his complaint. See Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986) (Federal Rule of Civil Procedure 56(e) "requires the nonmoving party to go beyond the pleadings"). In addition, Rule 56(e) requires that the party opposing summary judgment "must set forth specific facts showing that there is a genuine issue for trial" (emphasis added). Thus, Courts of Appeals have reiterated that "conclusory" allegations unsupported by "specific" evidence will be insufficient to establish a genuine issue of fact.' The requirement that evidence be submitted is satisfied here: The Federation has offered the sworn statements of two of its members. There remains the question whether the allegations in these affidavits were sufficiently precise to satisfy the requirements of Rule 56(e). The line of demarcation between "specific" and "conclusory" allegations is hardly a bright one. But, to my mind, the Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. 20,962 allegations contained in the Peterson and Erman affidavits, in the context of the record as a whole, were adequate **3196 to defeat a motion for summary judgment. These affidavits, as the majority acknowledges, were at least sufficiently precise to enable Bureau of Land Management (BLM) officials to identify the particular termination orders to which the affiants referred. See ante, at 3187. And the affiants averred that their "recreational use and aesthetic enjoyment of federal lands ... have been and continue to be adversely affected in fact by the unlawful *903 actions of the Bureau and the Department." App. to Pet. for Cert. 188a (Erman affidavit), 191a (Peterson affidavit). The question, it should be emphasized, is not whether the NWF has proved that it has standing to bring this action, but simply whether the materials before the District Court established "that there is a genuine issue for trial," see Rule 56(e), concerning the Federation's standing. In light of the principle that "[o]n summary judgment the inferences to be drawn from the underlying facts contained in [evidentiary] materials must be viewed in the light most favorable to the party opposing the motion," United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962), I believe that the evidence before the District Court raised a genuine factual issue as to NWF's standing to sue. No contrary conclusion is compelled by the fact that Peterson alleged that she uses federal lands "in the vicinity of South Pass -Green Mountain, Wyoming," App. to Pet. for Cert. 191a, rather than averring that she uses the precise tract that was recently opened to mining. The agency itself has repeatedly referred to the "South Pass -Green Mountain area" in describing the region newly opened to mining.' Peterson's assertion that her use and enjoyment of federal lands have been adversely affected by the agency's decision to permit more extensive mining is, as the Court of Appeals stated, National IJ'ildlife Federation v. Burford, 278 U.S.App.D.C. 320, 329, 878 F.2d 422, 431 (1989), "meaningless, or perjurious" if the lands she uses do not include those harmed by mining undertaken pursuant to termination order W-6228.5 To read particular assertions within the affidavit in light of the document as a whole is, as the majority might put it, "a world apart" from "presuming" facts that are neither stated nor implied simply because without them the *904 plaintiff would lack standing. The Peterson and Erman affidavits doubtless could have been more artfully drafted, but they defmitely were sufficient to withstand the federal parties' summary judgment motion. Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk II I also conclude that the District Court abused its discretion in refusing to consider the supplemental affidavits filed by NWF after the hearing on the summary judgment motion.' The court's decision abruptly derailed the Federation's lawsuit after three **3197 years of proceedings involving massive time and expense. The District Court and Court of Appeals both had concluded that NWF's claims were sufficiently substantial to warrant the entry of a nationwide injunction. Whatever the ultimate merits of the Federation's claims, litigation of this magnitude should not be aborted on technical grounds if that result legitimately can be avoided. The majority's approach reflects an insufficient appreciation both of the realities of complex litigation and of the admonition that the Federal Rules of Civil Procedure "shall be construed to secure *905 the just, speedy, and inexpensive determination of every action." Rule 1. That a requirement is "technical" does not, of course, mean that it need not be obeyed. And an appeal to the "spirit" of the Federal Rules is an insufficient basis for ignoring the import of their text. If the Rules imposed an absolute deadline for the submission of evidentiary materials, the District Court could not be faulted for strictly enforcing that deadline, even though the result in a particular case might be unfortunate. But, as the Court acknowledges, the Rules expressly permit the District Court to exercise discretion in deciding whether affidavits in opposition to a summary judgment motion may be submitted after the hearing.' Once the District Court's power to accept untimely affidavits is recognized, the question whether that power should be exercised in a particular instance must be answered by reference to the explanation for the litigant's omission and the purposes the Rules are designed to serve. In my view, NWF showed adequate cause for its failure to file the supplemental affidavits prior to the hearing. Moreover, the organization's untimely filing in no way disserved the purposes of Rule 56(c), and the federal parties suffered no prejudice as a consequence of the *906 delay. Under these circumstances, I believe that the District Court's refusal to consider these submissions constituted an abuse of discretion. The Federal Rules require that affidavits in opposition to a motion ordinarily must be served at least one day prior to the hearing; the Rules provide, however, that the affidavits may be filed at a later time "where the failure to act was the result of excusable neglect." Rule 6(b); see n. 7, supra. Prior to the July 22, 1988, hearing on the parties' cross -motions for summary judgment, NWF had been assured repeatedly that its prior submissions were WESTLAW Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. 20,962 sufficient to establish its standing to sue. In its memorandum opinion granting the Federation's motion for a preliminary injunction, the District Court stated: "We continue to find irreparable injury to plaintiff and reaffirm plaintiff's standing to bring this action." National Wildlife Federation v. Burford, 676 F.Supp. 280, 281 (D.C.1986). Later that year the federal parties sought additional discovery on the question of standing. NWF sought to quash discovery, arguing that "[t]he Court should bar any additional discovery on this issue because (1) it has already found that plaintiff has standing; (2) plaintiff has already produced affidavits which demonstrate standing and therefore any additional discovery would be unreasonably cumulative, duplicative, **3198 burdensome and expensive within the meaning of Rule 26(c)(1); and (3) contrary to the government defendants' apparent theory, plaintiff need not demonstrate injury as to each and every action that is part of the program." Memorandum of Points and Authorities in Support of Plaintiff's Motion To Quash and for a Protective Order 5-6 (July 1, 1986). In the alternative, NWF argued that if additional discovery on standing was to be ordered, it should be confined to the requirement that a limited number of additional affidavits be submitted. Id., at 22. The District Court, on July 14, 1986, granted in full the Federation's motion to quash and ordered "that no further discovery of plaintiff or *907 its members, officers, employees, agents, servants, or attorneys shall be permitted until subsequent order of this court, if any." App. to Pet. for Cert. 170a-171a. When the District Court's grant of a preliminary injunction was subjected to appellate review, the Court of Appeals concluded that the Peterson and Erman affidavits "provide a concrete indication that the Federation's members use specific lands covered by the agency's Program and will be adversely affected by the agency's actions." National Wildlife Federation v. Burford, 266 U.S.App.D.C. 241, 249, 835 F.2d 305, 313 (1987).s The majority's statement that "a litigant is never justified in assuming that the court has made up its mind until the court expresses itself to that effect," ante, at 3193, is therefore simply irrelevant to the present case: The District Court and the Court of Appeals repeatedly had indicated that the Federation had offered sufficient evidence of its standing. Nor did the District Court's order of June 27, 1988, scheduling a motion hearing for the following July 22, place NWF on notice that its claim of standing might be reconsidered. That order made clear that the hearing would consider the summary judgment motions of both the federal parties and *908 the Federation. The principal submission of the federal parties relevant to the hearing Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk was the Defendants' Memorandum in Opposition to Plaintiff's Motion for Summary Judgment and in Support of Defendants' Motion for Summary Judgment and/or for Dissolution of the Preliminary Injunction Issued on February 10, 1986; that memorandum was filed on September 12, 1986. This 86-page memorandum included only 9 'A pages devoted to standing, and half of that discussion set forth the federal parties' claim that no broad programmatic challenge could succeed even if the Peterson and Erman affidavits adequately alleged injury from Government decisions as to particular tracts of land. Moreover, even the attack on the Peterson and Erman affidavits did not purport to show that summary judgment for the federal parties should be entered on the ground that the Federation lacked standing. Rather, the federal parties argued principally that summary judgment for NWF would be inappropriate because a genuine factual dispute existed as to the Federation's standing to sue. See Defendants' Memorandum, at 45-47. In fact, the 86-page memorandum included only two sentences arguing that the federal parties should be awarded summary judgment on standing grounds. Id., at 11-12, 85. The District Court's decision to schedule a hearing on the parties' cross -motions for summary judgment provided no hint that previous **3199 assurances concerning standing were open to reconsideration.' Certainly the Federation could have submitted additional evidentiary materials in support of its claim of standing, even though it had no reason to believe that further submissions were necessary. But it would hardly enhance the efficiency *909 of the adjudicative process to encourage litigants to reargue questions previously settled in their favor. In my view, NWF established sufficient cause for its failure to submit the supplemental affidavits prior to the hearing.H" **3200 *910 Moreover, the District Court's refusal to consider the additional submissions in this case did not significantly advance the interests that Rule 56(c) is designed to serve. The Rule requires that affidavits in opposition to a motion for summary judgment must be served "prior to the day of hearing." The Courts of Appeals consistently have recognized, however, that "Rule 56 does not necessarily contemplate an oral hearing. Rather, 10-day advance notice to the adverse party that the motion and all materials in support of or in opposition to the motion will be taken under advisement by the trial court as of a certain day satisfies the notice and hearing *911 dictates of Rule 56." Moore v. Florida, 703 F.2d 516, 519 (CA11 1983)." Rule 56(c)'s requirement that a summary judgment motion be filed 10 days in advance of a scheduled hearing serves to ensure that the nonmoving party is afforded adequate notice of WESTLAW Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. 20,962 the motion. Similarly, the requirement that opposing affidavits be submitted prior to the day of the hearing reflects the fact that the district court may rule on the summary judgment motion at the hearing or at any time thereafter; submission of affidavits prior to that day is thus essential if the moving party is to be assured the opportunity to respond at a time when a response is meaningful. The requirement also allows the district court to establish a deadline by which time all evidence and arguments must be submitted; thereafter, the court may deliberate with the assurance that no subsequent filings will alter the terms of the dispute. These are pressing concerns when the hearing on a summary judgment motion represents the parties' last opportunity to set forth their legal arguments. In the present case, however, the District Court concluded the July 22, 1988, hearing by requesting supplemental briefing on the issue of standing." NWF's supplemental affidavits, filed on August 22 as an attachment to its legal memorandum, were submitted at a time when the federal parties had ample opportunity to respond. (Indeed, the opportunity to respond here-10 days -was far greater than would have been the case if NWF had filed (timely) affidavits the day before the hearing and no *912 supplemental briefing had been allowed.) The affidavits, moreover, were filed well before the time when the case was to be taken under advisement. The record in this case is voluminous, currently filling six large boxes; consideration of five more affidavits would not have added significantly to the complexity of the issues before the District Court. Under these circumstances, submission of the supplemental affidavits neither disserved the purposes of the Rule nor prejudiced the federal parties in any respect. The District Court discussed none of these factors in explaining its refusal to consider the supplemental affidavits. Indeed, the District Court offered no justification at all for its action beyond the assertion that the affidavits were untimely." Similarly, the Court **3201 today fails to assess the District Court's action by reference to the excuse for NWF's untimely filing or the absence of prejudice to the federal parties. The District Court and today's majority fail to recognize the guiding principle of the Federal Rules of Civil Procedure, the principle that procedural rules should be construed pragmatically, so as to ensure the just and efficient resolution of legal disputes. Some provisions of the Rules strip the district courts of discretion, and the courts have no choice but to enforce these requirements with scrupulous precision.14 But where the Rules expressly confer a range of *913 discretion, a district court may abuse its authority by refusing to take account of WESTLAW Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk equitable concerns, even where its action violates no express command. In my view, such an abuse of discretion occurred here. III In Part IV -A, ante, at 3189, the majority sets forth a long and abstract discussion of the scope of relief that might have been awarded had the Federation made a sufficient showing of injury from environmental damage to a particular tract of land. Since the majority concludes in other portions of its opinion that the Federation lacks standing to challenge any of the land -use decisions at issue here, it is not clear to me why the Court engages in the hypothetical inquiry contained in Part IV -A. In any event, I agree with much of the Court's discussion, at least in its general outline. The Administrative Procedure Act permits suit to be brought by any person "adversely affected or aggrieved by agency action." 5 U.S.C. § 702. In some cases the "agency action" will consist of a rule of broad applicability; and if the plaintiff prevails, the result is that the rule is invalidated, not simply that the court forbids its application to a particular individual. Under these circumstances a single plaintiff, so long as he is injured by the rule, may obtain "programmatic" relief that affects the rights of parties not before the court. On the other hand, if a generally lawful policy is applied in an illegal manner on a particular occasion, one who is injured is not thereby entitled to challenge other applications of the rule. Application of these principles to the instant case does not turn on whether, or how often, the Bureau's land -management policies have been described as a "program."" In one sense, *914 of course, there is no question that a "program" exists. Everyone associated with this lawsuit recognizes that the BLM, over the past decade, has attempted to develop and implement a comprehensive scheme for the termination of classifications and withdrawals. The real issue is whether the actions and omissions that NWF contends are illegal are themselves part of a plan or policy. For example: If the agency had published a regulation stating that an environmental impact statement (EIS) should never be developed prior to the termination of a classification or withdrawal, NWF could challenge the regulation (which would constitute an "agency action"). If the reviewing court then held that the statute required a pretermination EIS, the relief (invalidation of the rule) would directly Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d b95, 20 tnvti. L. Rep. 20,962 affect **3202 tracts other than the ones used by individual affiants. At the other extreme, if the applicable BLM regulation stated that an EIS must be developed, and NWF alleged that the administrator in charge of South Pass/Green Mountain had inexplicably failed to develop one, NWF should not be allowed (on the basis of the Peterson affidavit) to challenge a termination in Florida on the ground that an administrator there made the same mistake. The majority, quoting the District Court, characterizes the Bureau's land management program as " '1250 or so individual classification terminations and withdrawal revocations.' " Ante, at 3189; see National Wildlife Federation v. Burford, 699 F.Supp. 327, 332 (DC 1988). The majority offers no argument in support of this conclusory assertion, and I am far from certain that the characterization is an accurate one. Since this issue bears on the scope of the relief ultimately to be awarded should the plaintiff prevail, rather than on the jurisdiction *915 of the District Court to entertain the suit, I would allow the District Court to address the question on remand.'6 Footnotes 1 2 3 Submitted into the public record for item(s) PZ.1 on 12/13/2018 , City Clerk IV Since I conclude that the Peterson and Erman affidavits provided sufficient evidence of NWF's standing to withstand a motion for summary judgment, and that the District Court abused its discretion by refusing to consider the Federation's supplemental affidavits, I would affirm the judgment of the Court of Appeals. I respectfully dissent. All Citations 497 U.S. 871, 110 S.Ct. 3177, 111 L.Ed.2d 695, 31 ERC 1553, 20 Envtl. L. Rep. 20,962 The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Lumber Co., 200 U.S. 321, 337, 26 S.Ct. 282, 287, 50 L.Ed. 499. As an additional basis for its conclusion, the Court of Appeals held that the earlier panel's finding that the Peterson and Erman affidavits were sufficient to establish respondent's right to sue was the "law of the case." We do not address this conclusion, as the earlier panel's ruling does not, of course, bind this Court. Messenger v. Anderson, 225 U.S. 436, 444, 32 S.Ct. 739, 740, 56 L.Ed. 1152 (1912). Contrary to the apparent understanding of the dissent, we do not contend that no "land withdrawal review program" exists, any more than we would contend that no weapons procurement program exists. We merely assert that it is not an identifiable "final agency action" for purposes of the APA. If there is in fact some specific order or regulation, applying some particular measure across the board to all individual classification terminations and withdrawal revocations, and if that order or regulation is final, and has become ripe for review in the manner we discuss subsequently in text, it can of course be challenged under the APA by a person adversely affected -and the entire "land withdrawal review program," insofar as the content of that particular action is concemed, would thereby be affected. But that is quite different from permitting a generic challenge to all aspects of the "land withdrawal review program," as though that itself constituted a final agency action. Under the Secretary's regulations, any person seeking to conduct mining operations that will "cause a cumulative surface disturbance" of five acres or more must first obtain approval of a plan of operations. § 3809.1-4 (1988). Mining operations that cause surface disturbance of less than 5 acres do not require prior approval, but prior notice must be given to the district office of the BLM. § 3809.1-3. Neither approval nor notification is required only with respect to "casual use operations," 43 CFR § 3809.1-2, defined as "activities ordinarily resulting in only negligible disturbance of the Federal lands and resources," § 3809.0-5. (Activities are considered "casual" if "they do not involve the use of mechanized earth moving equipment or explosives or do not involve the use of motorized vehicles in areas designated as closed to off -road vehicles...." Ibid.) Thus, before any mining use ordinarily involving more than "neglligible disturbance" can take place, there must occur either agency action in response to a submitted plan or agency inaction in response to a submitted notice. In one of the four new affidavits, Peggy Peterson, one of the original affiants, states that a corporation has filed a mine permit application with the BLM covering a portion of the land to which her original affidavit pertained. App. to Brief in Opposition for Respondent National Wildlife Federation 16. If that permit is granted, there is no doubt that Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. 20,962 4 5 Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk agency action ripe for review will have occurred; nor any doubt that, in the course of an otherwise proper court challenge, affiant Peterson, and through her respondent, would be able to call into question the validity of the classification order authorizing the permit. However, before the grant of such a permit, or (when it will suffice) the filing of a notice to engage in mining activities, or (when only "negligible disturbance" willoccur) actual mining of the land, it is impossible to tell where or whether mining activities will occur. Indeed, it is often impossible to tell from a classification order alone whether mining activities will even be permissible. As explained in the uncontested affidavit of the BLM's Assistant Director of Land Resources: "The lands may be subject to another withdrawal of comparable scope or they may be subject to classification segregations tantamount to such a withdrawal. In that case, the lands would not be opened to the operation of the public land laws so that the removal of one of the withdrawals has no practical effect. Another reason why there may not be any change is that before the revocation occurred, the lands may have been transferred into private ownership. Consequently, the withdrawal revocation amounts to nothing more than a paper transaction.... In the alternative, a revoked withdrawal may open the lands to the operation of the public land and mineral laws.... Some withdrawal revocations are made without prior knowledge as to what subsequent disposition may be made of the lands. After the lands are opened, they might be transferred out of federal ownership by sale, exchange, or some other discretionary mode of disposal, not anticipated when the withdrawal was revoked. These subsequent discretionary actions require separate and independent decisionmaking that, obviously, are divorced from the prior revocation decision. Environmental and other management concerns and public participation are taken into account in relation to the post -revocation decisionmaking." Affidavit of Frank Edwards, Aug. 18, 1985, App. 61-62. Nothing in this is contrary to our opinion in Automobile Workers v. Brock, 477 U.S. 274, 106 S.Ct. 2523, 91 L.Ed.2d 228 (1986), cited by the Court of Appeals. That opinion did not discuss, and the respondent Secretary of Labor did not rely upon, the requirements of 5 U.S.C. § 702 and our ripeness jurisprudence in cases such as Abbott Laboratories v. Gardner, 387 U.S. 136, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967); Gardner v. Toilet Goods Assn., Inc., 387 U.S. 167, 87 S.Ct. 1526, 18 L.Ed.2d 704 (1967); and Toilet Goods Assn., Inc. v. Gardner, 387 U.S. 158, 87 S.Ct. 1520, 18 L.Ed.2d 697 (1967). The only challenge made and decided, with respect to the individuals' right to sue, relied upon 19 U.S.C. § 2311(d) (1982 ed.), which according to the Secretary of Labor made entertainment of that suit " 'contrary to Congress's incorporation of the state system into the administration of the Trade Act, and an affront to the integrity and authority of the state courts.' " 477 U.S., at 283, 106 S.Ct., at 2529, quoting Brief for Respondent in Automobile Workers, O.T. 1985, No. 84-1777, p. 16. The dissent asserts that a footnote in respondent's reply memorandum to the District Court was a "motion" within the meaning of Rule 6(b)(2), and was so obviously so that the District Court committed reversible error in failing to construe it that way. Post, at 3199-3200 and n. 10. We cannot agree. Rule 6(b) establishes a clear distinction between "requests" and "motions," and the one cannot be converted into the other without violating its provisions -or at least cannot be converted on the basis of such lax criteria that conversion would be not only marginally permissible but positively mandatory in the present case. Rule 6(b)(1) allows a court ("for cause shown" and "in its discretion") to grant a "request" for an extension of time, whether the request is made "with or without motion or notice," provided the request is made before the time for filing expires. After the time for filing has expired, however, the court (again "for cause shown" and "in its discretion") may extend the time only "upon motion." To treat all postdeadline "requests" as "motions" (if indeed any of them can be treated that way) would eliminate the distinction between predeadline and postdeadline filings that the Rule painstakingly draws. Surely the postdeadline "request," to be even permissibly treated as a "motion," must contain a high degree of formality and precision, putting the opposing party on notice that a motion is at issue and that he therefore ought to respond. The request here had not much of either characteristic. As for formality, it was not even made in a separate filing or in a separate appearance before the court, but was contained in a single sentence at the end of the first paragraph of one of the 18 single-spaced footnotes in a 20-page memorandum of law. Our district judges must read footnotes with new care if they are to be reversed for failing to recognize motions buried in this fashion. And as for precision, the request not only did not ask for any particular extension of time (7 days, 30 days), it did not specifically ask for an extension of time at all, but merely said that respondent "should be given adequate opportunity to supplement the record." Even this, moreover, was not requested (much less moved for) unconditionally, but only "[i]f the court intends to reverse its prior ruling [regarding NWF standing]." Record, Doc. No. 294, p. 17, n. 16. We think it quite impossible to agree with the dissent that the district judge not only might treat this request as a motion, but that he was compelled to do so. Prior to the District Court's entry of the preliminary injunction, 406 mining claims had been staked in the South Pass -Green Mountain area alone. App. 119. An exhibit filed by the federal parties indicated that over 7,200 claims had been filed in 12 Western States. Exh. 1 to Affidavit of Joseph Martyak (Apr. 11, 1986). 2 A Bureau of Land Management (BLM) draft of a Resource Management Plan/Environmental Impact Statement for the Lander, Wyo., Resource Area stated: "In the Green Mountain Management Unit ... significant long-term impacts to elk and mule deer herds could occur from habitat losses caused by oil and gas activities over the next 60 years.... In the Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. 20,962 Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk South Pass Management Unit, significant acreages of lodgepole pine forest and aspen conifer woodland habitat types could be disturbed, which would cause significant Tong -term impacts to moose and elk.... If gold mining activities continued to erode these high -value habitats, trout fisheries, the Lander moose herd, the beaver pond ecosystems, and the populations of many other wildlife species would suffer significant cumulative negative effects." Draft RMP/EIS pp. 226-228 (Exh. 3 to Defendant -Intervenors' Reply to Plaintiffs Opposition to Defendants' Motions for Stay Pending Appeal (May 14, 1986)). A BLM Mineral Report issued June 17, 1982, concluded that mining and associated activities "could have an adverse impact on crucial moose habitat, deer habitat, some elk habitat, and a variety of small game and bird species. Improvements at campgrounds, as well as land in the immediate vicinity, could either be damaged or destroyed. These activities could make it difficult for the BLM to manage the forest production and harvesting in the South Pass area. Historical and cultural resources which have and have not been identified could be either damaged or destroyed." Defendant -Intervenors' Exh. 7 (attached as Appendix 1 to Plaintiff National Wildlife Federation's Statement of Points and Authorities in Support of Its Standing To Proceed (Aug. 22, 1988)). 3 See, e.g., May v. Department of Air Force, 777 F.2d 1012, 1016 (CA5 1985); First Commodity Traders, Inc. v. Heinold Commodities, Inc., 766 F.2d 1007, 1011 (CA7 1985); Maldonado v. Ramirez, 757 F.2d 48, 51 (CA3 1985); Galindo v. Precision American Corp., 754 F.2d 1212, 1216 (CA5 1985). 4 5 6 7 8 9 See, e.g., App. 123-139 (declaration of Jack Kelly). The areas harmed or threatened by mining and associated activities may extend well beyond the precise location where mining occurs. See n. 2, supra. Five supplemental affidavits were filed. The first was submitted by Peggy Kay Peterson, in clarification of her earlier affidavit: "A substantial portion of the lands which I use ... are identical to those lands" newly opened to mining in the South Pass -Green Mountain area. Peterson Supplemental Affidavit, App. in No. 88-5397 (CADC), p. 356. Ms. Peterson also asserted that "U.S. Energy Corporation has filed a mine permit application with the Bureau and Department, (U.S. Energy Application, TFN 2 4/86), which includes a proposal to mine a significant portion of the federal lands which I use for recreational purposes and aesthetic enjoyment." Id., at 355-356. The other affiants were NWF members David Doran, Merlin McColm, Stephen Blomeke, and Will Ouellette. These individuals identified termination orders that had opened to mining particular tracts of land used by the affiants for recreation and aesthetic enjoyment. The federal parties do not concede that the supplemental affidavits established with certainty the Federation's standing; they contend that further discovery might show the affiants' allegations to be untrue. The federal parties do concede, however, that the supplemental affidavits were not facially deficient. Tr. of Oral Arg. 19. Rule 56(c) provides that when a motion for summary judgment is filed, the "adverse party prior to the day of hearing may serve opposing affidavits." Under Rule 56(e), the district court "may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits." Rule 6(d) states: "When a motion is supported by affidavit, ... opposing affidavits may be served not later than 1 day before the hearing, unless the court permits them to be served at some other time." The district court's authority to permit service "at some other time" is govemed in tum by Rule 6(b), which provides that when an act is required to be performed by a specified time, the district court may "upon motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect." See 4A C. Wright & A. Miller, Federal Practice and Procedure § 1165, p. 475 (2d ed. 1987) (Rule 6(b) "gives the court extensive flexibility to modify the fixed time periods found throughout the rules, whether the enlargement is sought before or after the actual termination of the allotted time"). The Court of Appeals' discussion of standing occurred in the context of a motion to dismiss and therefore, by itself, might not assure NWF that it had made a sufficient showing to withstand a motion for summary judgment. But the Court of Appeals, like the District Court before it, also held that the Federation's showing of injury, as reflected in the Peterson and Erman affidavits, provided an adequate basis for a preliminary injunction. As the second Court of Appeals panel concluded, "the burden of establishing irreparable harm to support a request for a preliminary injunction is, if anything, at least as great as the burden of resisting a summary judgment motion on the ground that the plaintiff cannot demonstrate 'injury -in -fact.' " National Wildlife Federation v. Burford, 278 U.S.App.D.C. 320, 330, 878 F.2d 422, 432 (1989) (emphasis omitted). When the first panel affirmed the District Court's entry of a preliminary injunction, Judge Williams' separate opinion, concurring and dissenting, stated that "the specificity required for standing allegations to secure a preliminary injunction will normally be no less than that required on a motion for summary judgment." 266 U.S.App.D.C., at 264, 835 F.2d, at 328. At the hearing itself Fred R. Disheroon, the federal parties' attorney, argued at length on other points before tuming to WESTLAW Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. 20,962 10 11 12 13 Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk the issue of standing. He began that portion of his argument by observing that "perhaps the court doesn't want to hear me argue standing, but I think it is imperative that I address that in the context of this case." Tr. of Motions Hearing 43 (July 22, 1988). The supplemental affidavits were submitted as an attachment to the supplemental legal memorandum on standing requested by the District Court. At the time of their submission, NWF stated only that "NWF now has submitted declarations on behalf of other members of NWF who have been injured by the challenged actions of federal defendants." Plaintiff National Wildlife Federation's Statement of Points and Authorities in Support of Its Standing To Proceed 18, n. 21 (Aug. 22, 1988). However, in its reply memorandum on the issue, NWF addressed the contention of the federal parties and the defendant -intervenor that the affidavits should be ignored as untimely filed. NWF stated: "Plaintiff heretofore, has relied on the court's previous rulings on NWF's standing. In its motion for a protective order against additional discovery, NWF argued that its standing had already been proven on the basis of the affidavits of Mr. Greenwalt, Ms. Peterson, and Mr. Erman. The court agreed and entered the requested protective order. If the court intends to reverse its prior ruling, then NWF respectfully requests that it should be given adequate opportunity to supplement the record." Plaintiff National Wildlife Federation's Reply Memorandum in Support of Its Standing To Proceed 17, n. 16 (Sept. 14, 1988). The Federation also noted that Circuit precedent permitted the filing of supplemental affidavits on standing issues, even on appeal. Ibid., citing National Wildlife Federation v. Hodel, 268 U.S.App.D.C. 15, 24, 839 F.2d 694, 703 (1988). NWF offered the further explanation: "Ms. Peterson has supplemented her affidavit to include new information regarding a mine application which has been filed by U.S. Energy Corporation that includes a proposal to mine lands within the area of South Pass/Green Mountain previously closed to mining. For the record, NWF initially was told by officials of the Bureau of Land Management that the U.S. Energy mine application did not include any lands covered by the court's preliminary injunction. Otherwise, NWF would have supplemented Ms. Peterson's affidavit earlier." Reply memorandum, at 12-13, n. 13. Along with its Reply Memorandum, NWF submitted an additional filing entitled Plaintiff National Wildlife Federation's Memorandum in Opposition to Defendant -Intervenors' Motion To Strike Plaintiff's Supplementation of the Record (Sept. 14, 1988). That filing stated: "For the reasons stated in [the reply memorandum] at page 17, n. 16, plaintiff requests that defendant -intervenors' motion to strike be denied." (In light of this separate submission, addressed solely to the question whether the supplemental affidavits should be considered, and expressly referring to n. 16 of the reply memorandum, it is difficult to fathom the Court's assertion that NWF's request was "buried" in the Federation's filings. See ante, at 3192-3193, n. 5.) This separate filing, in conjunction with the reply memorandum, satisfied Rule 6(b)'s requirement that the request for enlargement of time be made "upon motion." Though neither of these filings was expressly denominated a "motion," they met the requirements of Rule 7(b): They were submitted in writing, were signed by counsel, "state [d] with particularity the grounds therefor," and unambiguously "set forth the relief ... sought." See Campos v. LeFevre, 825 F.2d 671, 676 (CA2 1987) ("[N]o particular form of words is necessary to render a filing a 'motion.' Any submission signed by a party that may fairly be read as a request to the district court to exercise its discretionary powers ... should suffice"), cert. denied, 484 U.S. 1014, 108 S.Ct. 718, 98 L.Ed.2d 667 (1988); Smith v. Danyo, 585 F.2d 83, 86 (CA3 1978) ("Rule 7(b) requires no more than that ... a motion 'state with particularity the grounds' upon which it is based. Plainly, an affidavit which is filed to obtain an order disqualifying a judge satisfies the requirements of Rule 7(b).... The ... failure to type in the word 'motion' above the word 'affidavit' in no way detracts from the notice which the affidavit gave of the nature of the application"). Cf. Snyder v. Smith, 736 F.2d 409, 419 (CA7) ("The Federal Rules are to be construed liberally so that erroneous nomenclature in a motion does not bind a party at his peril"), cert. denied, 469 U.S. 1037, 105 S.Ct. 513, 83 L.Ed.2d 403 (1984); Miller v. Transamerican Press, Inc., 709 F.2d 524, 527 (CA9 1983) ("The court will construe [a motion], however styled, to be the type proper for the relief requested"); 2A J. Moore & J. Lucas, Moore's Federal Practice ¶ 7.05, pp. 7-16 to 7-17 (1989) ("[I]t is the motion's substance, and not merely its linguistic form, that determines its nature and legal effect"). Accord, Allied Chemical Corp. v. Mackay, 695 F.2d 854, 856 (CA5 1983) ("Rule 56(c) does not require an oral hearing in open court. Rather, it contemplates notice to the party opposing the motion and an adequate opportunity to respond to the movant's arguments"); Bratt v. International Business Machines Corp., 785 F.2d 352, 363 (CA1 1986). The District Court subsequently established a schedule for the supplemental briefing. NWF was requested to file its opening memorandum by August 22, 1988; the federal parties and intervenors were to file memoranda in opposition by September 1; and NWF's reply was due by September 14. Order of July 27, 1988. The District Court mentioned these affidavits in a single footnote: "Plaintiff, in addition to its memorandum filed August 22, 1988 has submitted additional evidentiary material, including declarations from four of its members. These submissions are untimely and in violation of our Order. We decline to consider them. See Federal Defendants' Reply to Plaintiff's Statement of Points and Authorities in Support of Its Standing to Proceed, at 1 n. 1." National Wildlife Federation v. Burford, 699 F.Supp. 327, 328-329, n. 3 (D.C.1988). WESTLAW on Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. 20,962 ' 14 15 16 Submitted into the public record for item(s) PZ.1 on 12/13/2018 , City Clerk Rule 6(b), for example, which generally gives the district court broad authority to grant enlargements of time, establishes the limitation that the court "may not extend the time for taking any action under Rules 50(b) and (c)(2), 52(b), 59(b), (d) and (e), 60(b), and 74(a), except to the extent and under the conditions stated in them." The term "withdrawal review program" repeatedly has been used in BLM documents. See, e.g., Plaintiffs Exhs. 1, 3, 10, 11, 15, 18, 19 (filed July 15, 1985). At oral argument on the cross -motions for summary judgment, counsel for the federal parties acknowledged: "It is true, BLM referred to this review process as a land withdrawal review program." Tr. of Motion Hearing 40 (July 22, 1988). Counsel went on to say, "but I suggest that using a word, calling it a program, doesn't make a program in the sense that it is being challenged here." Ibid. That assertion, though inelegant, seems essentially correct: An agency's terminology is not decisive in determining whether an alleged illegality is systemic or site -specific. The majority also suggests that the agency actions challenged in this suit may not be ripe for review. See ante, at 3190-3191. Since the issue of ripeness has not been briefed or argued in this Court, nor passed on by the courts below, I need not address it. I do note, however, that at the outset of this case the federal parties made precisely the opposite argument, asserting that a preliminary injunction should be denied on the ground that NWF's claims were barred by !aches. The federal parties contended: "The Federation offers no explanation why, despite its detailed knowledge of BLM's revocation and termination activities, it has waited so long to institute litigation." Defendants' Memorandum in Opposition to Plaintiffs Motion for Preliminary Injunction 26 (Aug. 22, 1985). I also decline to address the adequacy of the affidavit submitted by Lynn Greenwalt, since the Court of Appeals did not pass on that issue. End of Document © 2018 Thomson Reuters. No claim to original U.S. Government Works. WESTLAW 4 Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) Submitted into the public record for item(s) PZ.1 on 12/13/2018 , City Clerk 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. 20,962 KeyCite Yellow Flag - Negative Treatment Not Followed on State Law Grounds Levis v. Konitzky, Me., November 17,2016 no S.Ct. 3177 Supreme Court of the United States Manuel LUJAN, Jr., Secretary of the Interior, et al., Petitioners v. NATIONAL WILDLIFE FEDERATION, et al. No. 89-640. Argued April 16, 1990. Decided June 27, 1990. Synopsis National wildlife group filed action challenging the "land withdrawal review program" of the Bureau of Land Management. The United States District Court for the District of Columbia, John H. Pratt, J., 699 F.Supp. 327, granted summary judgment against the group. Appeal was taken. The Court of Appeals for the District of Columbia, 878 F.2d 422, reversed and remanded. Certiorari was granted. The Supreme Court, Justice Scalia, held that: (1) affidavits which were filed by members of the group and which indicated the members' recreational use and aesthetic enjoyment of land "in the vicinity" of land covered by agency actions under the Bureau's "land withdrawal review program" were insufficient to show that the affiants' interests were actually affected; (2) the "land withdrawal review program" was not "agency action" or "final agency action," within meaning of the Administrative Procedure Act; and (3) affidavit, which indicated that the group's ability to fulfill its informational and advocacy functions was "adversely affected" by alleged failure of the Bureau to provide adequate information and opportunities for public participation with respect to the "land withdrawal review program" failed to identify any particular "agency action" that was the source of the group's alleged injuries. Judgment of the Court of Appeals reversed. Justice Blackmun, dissented and filed opinion in which Justices Brennan, Marshall, and Stevens joined. West Headnotes (14) (11 12] 131 Administrative Law and Procedure **Persons aggrieved or affected Administrative Law and Procedure **Decisions and Acts Reviewable In order to obtain judicial review under the general review provisions of the Administrative Procedure Act, the person claiming right to sue must identify some agency action that affects him in specified fashion and must show that he has suffered legal wrong because of the challenged agency action or is adversely affected or aggrieved by that action within the meaning of a relevant statute. 5 U.S.C.A. § 702. 179 Cases that cite this headnote Administrative Law and Procedure **Finality; ripeness When judicial review of agency action is sought, not pursuant to specific authorization in substantive statute, but only under general review provisions of the Administrative Procedure Act as person suffering legal wrong because of challenged agency action or adversely affected or aggrieved by that action, the "agency action" must be fmal agency action. 5 U.S.C.A. §§ 551(13), 701(b)(2), 702, 704. 294 Cases that cite this headnote Administrative Law and Procedure **Persons aggrieved or affected To be adversely affected or aggrieved within meaning of statute, for purposes of obtaining judicial review of agency action under general review provisions of the Administrative Procedure Act, plaintiff must establish that the injury he complains of (his aggrievement, or the adverse affect upon him) falls within the "zone WESTLAW 410 Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. 20,962 141 151 161 of interests" sought to be protected by the statutory provision whose violation forms the legal basis for his complaint. 5 U.S.C.A. § 702. 312 Cases that cite this headnote Federal Civil Procedure Lack of cause of action or defense Summary judgment must be entered, after adequate time for discovery and upon motion, against party who fails to make showing sufficient to establish the existence of element essential to that party's case on which that party will bear burden of proof at trial. Fed.Rules Civ.Proc.Rule 56(c), 28 U.S.C.A. 1636 Cases that cite this headnote Federal Civil Procedure 111~Burden of proof In order to avoid summary judgment, party who is seeking judicial review of agency action under the general review provision of the Administrative Procedure Act has burden to set forth specific facts, even though they may be controverted by the government, showing that he has satisfied its terms. 5 U.S.C.A. § 702; Fed.Rules Civ.Proc.Rule 56, 28 U.S.C.A. 1105 Cases that cite this headnote Federal Civil Procedure -Matters Affecting Right to Judgment Summary judgment rule does not require movant to negate elements of nonmovant's case; rather, regardless of whether movant accompanies its summary judgment motion with affidavits, the motion may, and should, be granted so long as whatever is before the district court demonstrates that standard for entry of summary judgment is satisfied. Fed.Rules WESTLAW 171 181 Civ.Proc.Rules 56, 56(c), 28 U.S.C.A. 1205 Cases that cite this headnote Administrative Law and Procedure Persons aggrieved or affected Environmental Law ::.Organizations, associations, and other groups Affidavits, which were filed by members of national wildlife group and which indicated the members' recreational use and aesthetic enjoyment of land "in the vicinity" of land covered by agency actions under the "land withdrawal review program" of the Bureau of Land Management, were insufficient to show that the members' interests were actually affected, for purposes of the general review provisions of the Administrative Procedure Act; affidavits indicated only that the members used unspecified portions of immense tract of territory, on some portions of which mining activity had occurred or probably would occur by virtue of the governmental action, and missing facts could not be "presumed" to establish the injury that was generally alleged. 5 U.S.C.A. § 702; Fed.Rules Civ.Proc.Rule 56, 28 U.S.C.A. 682 Cases that cite this headnote Federal Civil Procedure Presumptions When ruling on summary judgment motion, district court must resolve any factual issues of controversy in favor of nonmovant only in the sense that, where facts specifically averred by nonmovant contradict facts specifically averred by movant, motion must be denied. Fed.Rules Civ.Proc.Rule 56, 28 U.S.C.A. 3753 Cases that cite this headnote Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. 20,962 191 1101 Administrative Law and Procedure 6-Finality; ripeness Environmental Law 6-Administrative Decisions or Actions Reviewable in General "Land withdrawal review program" of the Bureau of Land Management was not "agency action" for purposes of general review provisions of the Administrative Procedure Act, much less "final agency action," within meaning of the Act; term "land withdrawal review program" did not refer to single Bureau order or regulation, or even to completed universe of particular Bureau orders and regulations, but, rather, referred to the continuing and thus constantly changing operations of the Bureau in reviewing withdrawal revocation applications and the classifications of public lands and developing land use plans as required by the Federal Land Policy and Management Act. Federal Land Policy and Management Act of 1976, § 102 et seq., 43 U.S.C.A. § 1701 et seq.; 5 U.S.C.A. §§ 702, 704. 141 Cases that cite this headnote Administrative Law and Procedure 4-Finality; ripeness Substantive rule which as a practical matter requires plaintiff to adjust his conduct immediately is agency action "ripe" for judicial review at once, whether or not explicit statutory review apart from the Administrative Procedure Act is provided. 5 U.S.C.A. §§ 702, 704. 69 Cases that cite this headnote Administrative Law and Procedure ..-Finality; ripeness Environmental Law .-Administrative Decisions or Actions Reviewable in General Flaws in the entire "land withdrawal review 1121 1131 1141 Submitted into the public record for item(s) PZ.1 . on 12113i 2018 , City Clerk program" of the Bureau of Land Management cannot be laid before the courts for wholesale correction under the Administrative Procedure Act simply because one of them that is ripe for review adversely affects one member of national wildlife group. 20 Cases that cite this headnote Administrative Law and Procedure .-Finality; ripeness Except where Congress explicitly provides for correction of the administrative process at higher level of generality, the Supreme Court intervenes in the administration of the laws only when, and to the extent that, specific "final agency action" has actual or immediately threatened effect. 5 U.S.C.A. §§ 702, 704. 65 Cases that cite this headnote Federal Civil Procedure 4-Affidavits Declining to admit supplemental affidavits, which were filed in response to district court's briefing order following the summary judgment hearing, was not abuse of discretion, in action brought under the general review provisions of the Administrative Procedure Act; the affidavits were untimely under applicable rules, and although the district court could perhaps have overcome the apparent lack of a motion, of a showing of cause, and of excusable neglect to admit the affidavits, it was not compelled to receive them. Fed.Rules Civ.Proc.Rules 6(b, d), 56, 56(c), 28 U.S.C.A.; 5 U.S.C.A. § 702. 298 Cases that cite this headnote Administrative Law and Procedure .Persons aggrieved or affected Environmental Law WESTLAW L Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. 20,962 Administrative Decisions or Actions Reviewable in General Affidavit, which indicated that national wildlife group's ability to fulfill its informational and advocacy functions was adversely affected by alleged failure of the Bureau of Land Management to provide adequate information and opportunities for public participation with respect to the Bureau's "land withdrawal review program," failed to identify any particular "agency action" that was source of the group's alleged injury, and, thus, group was not entitled to judicial review of the Bureau's actions under the general review provisions of the Administrative Procedure Act; the "land withdrawal review program" was not identifiable action or event, and group could not demand general judicial review of the Bureau's day-to-day operations. 5 U.S.C.A. §§ 702, 704. 62 Cases that cite this headnote **3179 Syllabus' *871 The National Wildlife Federation (hereinafter respondent) filed this action in the District Court against petitioners, the Director of the Bureau of Land Management (BLM) and other federal parties, alleging that, in various respects, they had violated the Federal Land Policy and Management Act of 1976 (FLPMA) and the National Environmental Policy Act of 1969 (NEPA) in the course of administering the BLM's "land withdrawal review program," and that the complained -of actions should be set aside because they were "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law" within the meaning of § 10(e) of the Administrative Procedure Act (APA), 5 U.S.C. § 706. Under the program, petitioners make various types of decisions affecting the status of public lands and their availability for private uses such as mining, a number of which decisions were listed in an appendix to the complaint. The court granted petitioners' motion for summary judgment under Federal Rule of Civil Procedure 56, holding that respondent lacked standing to seek judicial review of petitioners' actions under the APA, § 702. The court ruled that affidavits by two of respondent's members, Peterson and Erman, claiming use of public WESTLAW Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk lands "in the vicinity" of lands covered by two of the listed decisions, were insufficient to confer standing as to those particular decisions, and that, even if they had been adequate for that limited purpose, they could not support respondent's attempted APA challenge to each of the 1,250 or so individual actions effected under the program. The **3180 court rejected as untimely four more member affidavits pertaining to standing, which were submitted after argument on the summary judgment motion and in purported response to the District Court's postargument request for additional briefing. The Court of Appeals reversed, holding that the Peterson and Erman affidavits were sufficient in themselves, that it was an abuse of discretion not to consider the four additional affidavits, and that standing to challenge the individual decisions conferred standing to challenge all such decisions. Held: 1. The Peterson and Erman affidavits are insufficient to establish respondent's § 702 entitlement to judicial review as "[a] person ... *872 adversely affected or aggrieved by agency action within the meaning of a relevant statute." Pp. 3185-3189. (a) To establish a right to relief under § 702, respondent must satisfy two requirements. First, it must show that it has been affected by some "agency action," as defined in § 551(13). See § 701(b)(2). Since neither the FLPMA nor NEPA provides a private right of action, the "agency action" in question must also be "final agency action" under § 704. Second, respondent must prove that it is "adversely affected or aggrieved" by that action "within the meaning of a relevant statute," which requires a showing that the injury complained of falls within the "zone of interests" sought to be protected by the FLPMA and NEPA. Cf. Clarke v. Securities Industry Assn., 479 U.S. 388, 396-397, 107 S.Ct. 750, 755-756, 93 L.Ed.2d 757. Pp. 3185-3186. (b) When a defendant moves for summary judgment on the ground that the plaintiff has failed to establish a right to relief under § 702, the burden is on the plaintiff, under Rule 56(e), to set forth specific facts (even though they may be controverted by the defendant) showing that there is a genuine issue for trial. Cf. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265. Where no such showing is made, the defendant is entitled to judgment as a matter of law. Id., at 323, 106 S.Ct., at 2552. Pp. 3186-3187. (c) The specific facts alleged in the two affidavits do not raise a genuine issue of fact as to whether respondent has a right to relief under § 702. It may be assumed that the Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. allegedly affected interests set forth in the affidavits -"recreational use and aesthetic enjoyment" -are sufficiently related to respondent's purposes that respondent meets § 702's requirements if any of its members do. Moreover, each affidavit can be read to complain of a particular "agency action" within § 551's meaning; and whatever "adverse effect" or "aggrievement" is established by the affidavits, meets the "zone of interests" test, since "recreational use and aesthetic enjoyment" are among the sorts of interests that the FLPMA and NEPA are designed to protect. However, there has been no showing that those interests of Peterson and Erman were actually "affected" by petitioners' actions, since the affidavits alleged only that the affiants used unspecified lands "in the vicinity of' immense tracts of territory, only on some portions of which, the record shows, mining activity has occurred or probably will occur by virtue of the complained -of actions. The Court of Appeals erred in ruling that the District Court had to presume specific facts sufficient to support the general allegations of injury to the affiants, since such facts are essential to sustaining the complaint and, under Rule 56(e), had to be set forth by respondent. United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669, 93 S.Ct. 2405, 37 L.Ed.2d 254, distinguished. Pp. 3187-3189. *873 2. Respondent's four additional member affidavits did not establish its right to § 702 review. Pp. 3189-3193. (a) The affidavits are insufficient to enable respondent to challenge the entirety of **3181 petitioners' "land withdrawal review program." That term does not refer to a single BLM order or regulation, or even to a completed universe of particular BLM orders and regulations, but is simply the name by which petitioners have occasionally referred to certain continuing (and thus constantly changing) BLM operations regarding public lands, which currently extend to about 1,250 individual decisions and presumably will include more actions in the future. Thus, the program is not an identifiable "agency action" within § 702's meaning, much less a "final agency action" under § 704. Absent an explicit congressional authorization to correct the administrative process on a systemic level, agency action is not ordinarily considered "ripe" for judicial review under the APA until the scope of the controversy has been reduced to manageable proportions, and its factual components fleshed out, by concrete action that harms or threatens to harm the complainant. It may well be, due to the scope of the "program," that the individual BLM actions identified in the affidavits will not be "ripe" for challenge until some further agency action or inaction more immediately harming respondent occurs. But it is entirely certain that the flaws in the entire 20,962 "program" cannot be laid before the courts for wholesale correction under the APA simply because one of them that is ripe for review adversely affects one of respondent's members. Respondent must seek such programmatic improvements from the BLM or Congress. Pp. 3189-3191. (b) The District Court did not abuse its discretion in declining to admit the supplemental affidavits. Since the affidavits were filed in response to the court's briefing order following the summary judgment hearing, they were untimely under, inter alia, Rule 6(d), which provides that "opposing affidavits may be served not later than 1 day before the hearing." Although Rule 6(b) allows a court, "in its discretion," to extend any filing deadline "for cause shown," a post -deadline extension must be "upon motion made," and is permissible only where the failure to meet the deadline "was the result of excusable neglect." Here, respondent made no motion for extension nor any showing of "cause." Moreover, the failure to timely file did not result from "excusable neglect," since the court's order setting the hearing on the summary judgment motion put respondent on notice that its right to sue was at issue, and that (absent proper motion) the time for filing additional evidentiary materials was, at the latest, the day before the hearing. Even if the court could have overcome these obstacles to admit the affidavits, it was not compelled, in exercising its discretion, to do so. Pp. 3191-3193. *874 3. Respondent is not entitled to seek § 702 review of petitioners' actions in its own right. The brief affidavit submitted to the District Court to show that respondent's ability to fulfill its informational and advocacy functions was "adversely affected" by petitioners' alleged failure to provide adequate information and opportunities for public participation with respect to the land withdrawal review program fails to identify any particular "agency action" that was the source of respondent's alleged injuries, since that program is not an identifiable action or event. Thus, the affidavit does not set forth the specific facts necessary to survive a Rule 56 motion. Pp. 3193-3194. 278 U.S. App. D.C. 320, 878 F.2d 422 (1989), reversed. SCALIA, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and WHITE, O'CONNOR, and KENNEDY, JJ., joined. BLACKMUN, J., filed a dissenting opinion, in which BRENNAN, MARSHALL, and STEVENS, JJ., joined, post, p. 3194. Attorneys and Law Firms WESTLAW Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. 20,962 Acting Solicitor General Roberts argued the cause for petitioners. With him on the briefs were Assistant Attorney General Stewart, Deputy Solicitor General Wallace, Lawrence S. Robbins, Peter R. Steenland, Jr., Anne S. Almy, Fred R. Disheroon, and Vicki L. Plaut. E. Barrett Prettyman, Jr., argued the cause for respondents. With him on the brief were John C. Keeney, Jr., Kathleen C. Zimmerman, and Norman L. Dean, Jr. William Perry Pendley filed a brief for respondents Mountain States Legal Foundation et al. * * Briefs of amici curiae urging reversal were filed for the American Farm Bureau Federation et al. by Kathryn A. Oberly and John J. Rademacher; for the American Mining Congress by Jerry L. Haggard and Gerrie Apker Kurtz; for the National Cattlemen's Association et al. by Constance E. Brooks; for the Pacific Legal Foundation by Ronald A. Zumbrun, Robin L. Rivett, and James S. Burling; and for the Washington Legal Foundation et al. by Terence P. Ross, Daniel J. Popeo, and Richard A. Samp. Briefs of amici curiae urging affirmance were filed for the State of California et al. by John K Van de Kamp, Attorney General of California, Andrea Sheridan Ordin, Chief Assistant Attorney General, and Craig C. Thompson, Susan L. Durbin, Clifford L. Rechtschaffen, and Nilda M. Mesa, Deputy Attorney Generals, and for the Attorneys General for their respective States as follows: Robert A. Butterworth of Florida, Lacy H. Thornburg of North Carolina, Anthony J. Celebrezze, Jr., of Ohio, Jeffi ey L. Amestoy of Vermont, and Joseph B. Meyer of Wyoming; and for the Wilderness Society et al. by Bruce J. Ennis, Jr. Opinion *875 Justice SCALIA delivered the opinion of the Court. In this case we must decide whether respondent, the National Wildlife Federation **3182 (hereinafter respondent), is a proper party to challenge actions of the Federal Government relating to certain public lands. I 1'116., Respondent filed this action in 1985 in the United States District Court for the District of Columbia against Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk petitioners the United States Department of the Interior, the Secretary of the Interior, and the Director of the Bureau of Land Management (BLM), an agency within the Department. In its amended complaint, respondent alleged that petitioners had violated the Federal Land Policy and Management Act of 1976 (FLPMA), 90 Stat. 2744, 43 U.S.C. § 1701 et seq. (1982 ed.), the National Environmental Policy Act of 1969 (NEPA), 83 Stat. 852, 42 U.S.C. § 4321 et seq., and § 10(e) of the Administrative Procedure Act (APA), 5 U.S.C. § 706, in the course of administering what the complaint called the "land withdrawal review program" of the BLM. Some background information concerning that program is necessary to an understanding of this dispute. In various enactments, Congress empowered United States citizens to acquire title to, and rights in, vast portions of federally owned land. See, e.g., Rev.Stat. § 2319, 30 U.S.C. § 22 et seq. (Mining Law of 1872); 41 Stat. 437, as amended, 30 U.S.C. § 181 et seq. (Mineral Leasing Act of 1920). Congress also provided means, however, for the Executive to remove public lands from the operation of these statutes. The Pickett Act, 36 Stat. 847, 43 U.S.C. § 141 (1970 ed.), repealed, 90 Stat. 2792 (1976), authorized the President "at any time in his discretion, temporarily [to] withdraw from settlement, location, sale, or entry any of the *876 public lands of the United States ... and reserve the same for water -power sites, irrigation, classification of lands, or other public purposes...." Acting under this and under the Taylor Grazing Act of 1934, ch. 865, 48 Stat. 1269, as amended, 43 U.S.C. § 315f, which gave the Secretary of the Interior authority to "classify" public lands as suitable for either disposal or federal retention and management, President Franklin Roosevelt withdrew all unreserved public land from disposal until such time as they were classified. Exec. Order No. 6910, Nov. 26, 1934; Exec. Order No. 6964, Feb. 5, 1935. In 1936, Congress amended § 7 of the Taylor Grazing Act to authorize the Secretary of the Interior "to examine and classify any lands" withdrawn by these orders and by other authority as "more valuable or suitable" for other uses "and to open such lands to entry, selection, or location for disposal in accordance with such classification under applicable public -land laws." 49 Stat. 1976, 43 U.S.C. § 315f (1982 ed.). The amendment also directed that "[s]uch lands shall not be subject to disposition, settlement, or occupation until after the same have been classified and opened to entry." Ibid. The 1964 classification and multiple use Act, 78 Stat. 986, 43 U.S.C. §§ 1411-1418 (1970 ed.) (expired 1970), gave the Secretary further authority to classify lands for the purpose of either disposal or retention by the Federal Government. WESTLAW Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. Management of the public lands under these various laws became chaotic. The Public Land Law Review Commission, established by Congress in 1964 to study the matter, 78 Stat. 982, determined in 1970 that "virtually all" of the country's public domain, see Public Land Law Review Commission, One Third of the Nation's Land 52 (1970)-about one-third of the land within the United States, see id., at 19-had been withdrawn or classified for retention; that it was difficult to determine "the extent of existing Executive withdrawals and the degree to which withdrawals overlap each other," id., at 52; and that there were inadequate records to show the purposes *877 of withdrawals and the permissible public uses. Ibid. Accordingly, it recommended that "Congress should provide for a careful review of (1) all Executive withdrawals and reservations, and (2) BLM retention and disposal classifications under the Classification and Multiple Use Act of 1964." Ibid. **3183 In 1976, Congress passed the FLPMA, which repealed many of the miscellaneous laws governing disposal of public land, 43 U.S.C. § 1701 et seq. (1982 ed.), and established a policy in favor of retaining public lands for multiple use management. It directed the Secretary to "prepare and maintain on a continuing basis an inventory of all public lands and their resource and other values," § 1711(a), required land use planning for public lands, and established criteria to be used for that purpose, § 1712. It provided that existing classifications of public lands were subject to review in the land use planning process, and that the Secretary could "modify or terminate any such classification consistent with such land use plans." § 1712(d). It also authorized the Secretary to "make, modify, extend or revoke" withdrawals. § 1714(a). Finally it directed the Secretary, within 15 years, to review withdrawals in existence in 1976 in 11 Western States, § 1714(/ )(1), and to "determine whether, and for how long, the continuation of the existing withdrawal of the lands would be, in his judgment, consistent with the statutory objectives of the programs for which the lands were dedicated and of the other relevant programs," § 1714(/ )(2). The activities undertaken by the BLM to comply with these various provisions constitute what respondent's amended complaint styles the BLM's "land withdrawal review program," which is the subject of the current litigation. Pursuant to the directives of the FLPMA, petitioners engage in a number of different types of administrative action with respect to the various tracts of public land within the United States. First, the BLM conducts the review and recommends the determinations required by § 1714(1) with *878 respect to withdrawals in 11 Western States. The law requires the Secretary to "report his WESTLAW T Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk 20,962 recommendations to the President, together with statements of concurrence or nonconcurrence submitted by the heads of the departments or agencies which administer the lands"; the President must in turn submit this report to the Congress, together with his recommendation "for action by the Secretary, or for legislation." § 1714(/ )(2). The Secretary has submitted a number of reports to the President in accordance with this provision. Second, the Secretary revokes some withdrawals under § 204(a) of the Act, which the Office of the Solicitor has interpreted to give the Secretary the power to process proposals for revocation of withdrawals made during the "ordinary course of business." U.S. Dept. of the Interior, Memorandum from the Office of the Solicitor, Oct. 30, 1980. These revocations are initiated in one of three manners: An agency or department holding a portion of withdrawn land that it no longer needs may file a notice of intention to relinquish the lands with the BLM. Any member of the public may file a petition requesting revocation. And in the case of lands held by the BLM, the BLM itself may initiate the revocation proposal. App. 56-57. Withdrawal revocations may be made for several reasons. Some are effected in order to permit sale of the land; some for record -clearing purposes, where the withdrawal designation has been superseded by congressional action or overlaps with another withdrawal designation; some in order to restore the land to multiple use management pursuant to § 102(a)(7) of the FLPMA, 43 U.S.C. § 1701(a)(7) (1982 ed.). App. 142-145. Third, the Secretary engages in the ongoing process of classifying public lands, either for multiple use management, pt. 2420, for disposal, pt. 2430, or for other uses. Classification decisions may be initiated by petition, pt. 2450, or by the BLM itself, pt. 2460. Regulations promulgated *879 by the Secretary prescribe the procedures to be followed in the case of each type of classification determination. II In its complaint, respondent averred generally that the reclassification of some withdrawn **3184 lands and the return of others to the public domain would open the lands up to mining activities, thereby destroying their natural beauty. Respondent alleged that petitioners, in the course of administering the Nation's public lands, had violated the FLPMA by failing to "develop, maintain, L Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. 20,962 and, when appropriate, revise land use plans which provide by tracts or areas for the use of the public lands," 43 U.S.C. § 1712(a) (1982 ed.); failing to submit recommendations as to withdrawals in the 11 Western States to the President, § 1714(1 ); failing to consider multiple uses for the disputed lands, § 1732(a), focusing inordinately on such uses as mineral exploitation and development; and failing to provide public notice of decisions, §§ 1701(a)(5), 1712(c)(9), 1712(0, and 1739(e). Respondent also claimed that petitioners had violated NEPA, which requires federal agencies to "include in every recommendation or report on ... major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on ... the environmental impact of the proposed action." 42 U.S.C. § 4332(2)(C) (1982 ed.). Finally, respondent alleged that all of the above actions were "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law," and should therefore be set aside pursuant to § 10(e) of the APA, 5 U.S.C. § 706. Appended to the amended complaint was a schedule of specific land -status determinations, which the complaint stated had been "taken by defendants since January 1, 1981"; each was identified by a listing in the Federal Register. In December 1985, the District Court granted respondent's motion for a preliminary injunction prohibiting petitioners from "[m]odifying, terminating or altering any withdrawal, classification, or other designation governing the protection *880 of lands in the public domain that was in effect on January 1, 1981," and from "[flaking any action inconsistent" with any such withdrawal, classification, or designation. App. to Pet. for Cert. 185a. In a subsequent order, the court denied petitioners' motion under Rule 12(b) of the Federal Rules of Civil Procedure to dismiss the complaint for failure to demonstrate standing to challenge petitioners' actions under the APA, 5 U.S.C. § 702. App. to Pet. for Cert. 183a. The Court of Appeals affirmed both orders. National Wildlife Federation v. Burford, 266 U.S.App.D.C. 241, 835 F.2d 305 (1987). As to the motion to dismiss, the Court of Appeals found sufficient to survive the motion the general allegation in the amended complaint that respondent's members used environmental resources that would be damaged by petitioners' actions. See id., at 248, 835 F.2d, at 312. It held that this allegation, fairly read along with the balance of the complaint, both identified particular land -status actions that respondent sought to challenge -since at least some of the actions complained of were listed in the complaint's appendix of Federal Register references -and asserted harm to respondent's members attributable to those particular actions. Id., at 249, 835 F.2d, at 313. To support WESTLAW Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk the latter point, the Court of Appeals pointed to the affidavits of two of respondent's members, Peggy Kay Peterson and Richard Erman, which claimed use of land "in the vicinity" of the land covered by two of the listed actions. Thus, the Court of Appeals concluded, there was "concrete indication that [respondent's] members use specific lands covered by the agency's Program and will be adversely affected by the agency's actions," and the complaint was "sufficiently specific for purposes of a motion to dismiss." Ibid. On petitions for rehearing, the Court of Appeals stood by its denial of the motion to dismiss and directed the parties and the District Court "to proceed with this litigation with dispatch.", National Wildlife Federation v. Burford, 269 U.S.App.D.C. 271, 272, 844 F.2d 889, 890 (1988). *881 Back before the District Court, petitioners again claimed, this time by means of a motion for summary judgment under Rule 56 **3185 of the Federal Rules of Civil Procedure (which motion had been outstanding during the proceedings before the Court of Appeals), that respondent had no standing to seek judicial review of petitioners' actions under the APA. After argument on this motion, and in purported response to the court's postargument request for additional briefing, respondent submitted four additional member affidavits pertaining to the issue of standing. The District Court rejected them as untimely, vacated the injunction and granted the Rule 56 motion to dismiss. It noted that neither its earlier decision nor the Court of Appeals' affirmance controlled the question, since both pertained to a motion under Rule 12(b). It found the Peterson and Erman affidavits insufficient to withstand the Rule 56 motion, even as to judicial review of the particular classification decisions to which they pertained. And even if they had been adequate for that limited purpose, the court said, they could not support respondent's attempted APA challenge to "each of the 1250 or so individual classification terminations and withdrawal revocations" effected under the land withdrawal review program. National Wildlife Federation v. Burford, 699 F.Supp. 327, 332 (DC 1988). This time the Court of Appeals reversed. National Wildlife Federation v. Burford, 278 U.S.App.D.C. 320, 878 F.2d 422 (1989). It both found the Peterson and Erman affidavits sufficient in themselves and held that it was an abuse of discretion not to consider the four additional affidavits as well.' The Court of Appeals also concluded that *882 standing to challenge individual classification and withdrawal decisions conferred standing to challenge all such decisions under the land withdrawal review program. We granted certiorari. 493 U.S. 1042, 110 S.Ct. 834, 107 L.Ed.2d 830 (1990). Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. 20,962 III A 111 121 We first address respondent's claim that the Peterson and Erman affidavits alone suffice to establish respondent's right to judicial review of petitioners' actions. Respondent does not contend that either the FLPMA or NEPA provides a private right of action for violations of its provisions. Rather, respondent claims a right to judicial review under § 10(a) of the APA, which provides: "A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof." 5 U.S.C. § 702. This provision contains two separate requirements. First, the person claiming a right to sue must identify some "agency action" that affects him in the specified fashion; it is judicial review "thereof' to which he is entitled. The meaning of "agency action" for purposes of § 702 is set forth in 5 U.S.C. § 551(13), see 5 U.S.C. § 701(b)(2) ("For the purpose of this chapter ... `agency action' ha[s] the meanin[g] given ... by section 551 of this title"), which defines the term as "the whole or a part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act," 5 U.S.C. § 551(13). When, as here, review is sought not pursuant to specific authorization in the substantive statute, but only under the general review provisions of the APA, the "agency action" in question must be "final agency action." See 5 U.S.C. § 704 ("Agency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court are subject to judicial review" (emphasis added). **3186 *883 j3i Second, the party seeking review under § 702 must show that he has "suffer[ed] legal wrong" because of the challenged agency action, or is "adversely affected or aggrieved" by that action "within the meaning of a relevant statute." Respondent does not assert that it has suffered "legal wrong," so we need only discuss the meaning of "adversely affected or aggrieved ... within the meaning of a relevant statute." As an original matter, it might be thought that one cannot be Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk "adversely affected or aggrieved within the meaning" of a statute unless the statute in question uses those terms (or terms like them) -as some pre-APA statutes in fact did when conferring rights of judicial review. See, e.g., Federal Communications Act of 1934, § 402(b)(2), 48 Stat. 1093, as amended, 47 U.S.C. § 402(b)(6) (1982 ed.). We have long since rejected that interpretation, however, which would have made the judicial review provision of the APA no more than a restatement of pre-existing law. Rather, we have said that to be "adversely affected or aggrieved ... within the meaning" of a statute, the plaintiff must establish that the injury he complains of (his aggrievement, or the adverse effect upon him) falls within the "zone of interests" sought to be protected by the statutory provision whose violation forms the legal basis for his complaint. See Clarke v. Securities Industry Assn., 479 U.S. 388, 396-397, 107 S.Ct. 750, 755-756, 93 L.Ed.2d 757 (1987). Thus, for example, the failure of an agency to comply with a statutory provision requiring "on the record" hearings would assuredly have an adverse effect upon the company that has the contract to record and transcribe the agency's proceedings; but since the provision was obviously enacted to protect the interests of the parties to the proceedings and not those of the reporters, that company would not be "adversely affected within the meaning" of the statute. Because this case comes to us on petitioners' motion for summary judgment, we must assess the record under the *884 standard set forth in Rule 56 of the Federal Rules of Civil Procedure. Rule 56(c) states that a party is entitled to summary judgment in his favor "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Rule 56(e) further provides: "When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by WESTLAW L Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. 20,962 affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party." 141 As we stated in Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986), "the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Id., at 322, 106 S.Ct., at 2552. Where no such showing is made, "[t]he moving party is `entitled to a judgment as a matter of law' because the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof." Id., at 323, 106 S.Ct., at 2552. 151 161 These standards are fully applicable when a defendant moves for summary judgment, in a suit brought under § 702, on the ground that the plaintiff has failed to show that he is "adversely affected or aggrieved by agency action within the meaning of a relevant statute." The burden is on the party seeking review under § 702 to set forth **3187 specific facts (even though they may be controverted by the Government) showing that he has satisfied its terms. *885 Sierra Club v. Morton, 405 U.S. 727, 740, 92 S.Ct, 1361, 1369, 31 L.Ed.2d 636 (1972). Celotex made clear that Rule 56 does not require the moving party to negate the elements of the nonmoving party's case; to the contrary, "regardless of whether the moving party accompanies its summary judgment motion with affidavits, the motion may, and should, be granted so long as whatever is before the district court demonstrates that the standard for the entry of summary judgment, as set forth in Rule 56(c), is satisfied." 477 U.S., at 323, 106 S.Ct., at 2553. 171 We turn, then, to whether the specific facts alleged in the two affidavits considered by the District Court raised Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk a genuine issue of fact as to whether an "agency action" taken by petitioners caused respondent to be "adversely affected or aggrieved ... within the meaning of a relevant statute." We assume, since it has been uncontested, that the allegedly affected interests set forth in the affidavits -"recreational use and aesthetic enjoyment" -are sufficiently related to the purposes of respondent association that respondent meets the requirements of § 702 if any of its members do. Hunt v. Washington State Apple Advertising Comm 'n, 432 U.S. 333, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977). As for the "agency action" requirement, we think that each of the affidavits can be read, as the Court of Appeals believed, to complain of a particular "agency action" as that term is defined in § 551. The parties agree that the Peterson affidavit, judging from the geographic area it describes, must refer to that one of the BLM orders listed in the appendix to the complaint that appears at 49 Fed.Reg. 19904-19905 (1984), an order captioned W-6228 and dated April 30, 1984, terminating the withdrawal classification of some 4,500 acres of land in that area. See, e.g., Brief for Petitioners 8-10. The parties also appear to agree, on the basis of similar deduction, that the Erman affidavit refers to the BLM order listed in the appendix that appears at *886 47 Fed.Reg. 7232-7233 1982), an order captioned Public Land Order 6156 and dated February 18, 1982. We also think that whatever "adverse effect" or "aggrievement" is established by the affidavits was "within the meaning of the relevant statute"-i.e., met the "zone of interests" test. The relevant statute, of course, is the statute whose violation is the gravamen of the complaint -both the FLPMA and NEPA. We have no doubt that "recreational use and aesthetic enjoyment" are among the sorts of interests those statutes were specifically designed to protect. The only issue, then, is whether the facts alleged in the affidavits showed that those interests of Peterson and Erman were actually affected. The Peterson affidavit averred: "My recreational use and aesthetic enjoyment of federal lands, particularly those in the vicinity of South Pass -Green Mountain, Wyoming have been and continue to be adversely affected in fact by the unlawful actions of the Bureau and the Department. In particular, the South Pass -Green Mountain area of Wyoming has been opened to the staking of mining claims and oil and gas leasing, an action which threatens the aesthetic beauty and wildlife habitat potential of these lands." App. to Pet. for Cert. 191a. WESTLAW Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. 20,962 Erman's affidavit was substantially the same as Peterson's, with respect to all except the area involved; he claimed use of land "in the vicinity of Grand Canyon National Park, the Arizona Strip (Kanab Plateau), and the Kaibab National Forest." Id., at 187a. The District Court found the Peterson affidavit inadequate for the following reasons: "Peterson ... claims that she uses federal lands in the vicinity of the South Pass- **3188 Green Mountain area of Wyoming for recreational purposes and for aesthetic enjoyment and that her recreational and aesthetic enjoyment *887 has been and continues to be adversely affected as the result of the decision of BLM to open it to the staking of mining claims and oil and gas leasing.... This decision [W-6228] opened up to mining approximately 4500 acres within a two million acre area, the balance of which, with the exception of 2000 acres, has always been open to mineral leasing and mining.... There is no showing that Peterson's recreational use and enjoyment extends to the particular 4500 acres covered by the decision to terminate classification to the remainder of the two million acres affected by the termination. All she claims is that she uses lands 'in the vicinity.' The affidavit on its face contains only a bare allegation of injury, and fails to show specific facts supporting the affiant's allegation." 699 F.Supp., at 331 (emphasis in original). The District Court found the Erman affidavit "similarly flawed." "The magnitude of Erman's claimed injury stretches the imagination.... [T]he Arizona Strip consists of all lands in Arizona north and west of the Colorado River on approximately 5.5 million acres, an area one -eighth the size of the State of Arizona. Furthermore, virtually the entire Strip is and for many years has been open to uranium and other metalliferous mining. The revocation of withdrawal [in Public Land Order 6156] concerned only non -metalliferous mining in the western one-third of the Arizona Strip, an area possessing no potential for non -metalliferous mining." Id., at 332. The Court of Appeals disagreed with the District Court's assessment as to the Peterson affidavit (and thus found it unnecessary to consider the Erman affidavit) for the following reason: "If Peterson was not referring to lands in this 4500-acre affected area, her allegation of impairment to her use and enjoyment would be meaningless, or perjurious.... *888 [T]he trial court overlooks the fact that unless Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk Peterson's language is read to refer to the lands affected by the Program, the affidavit is, at best, a meaningless document. "At a minimum, Peterson's affidavit is ambiguous regarding whether the adversely affected lands are the ones she uses. When presented with ambiguity on a motion for summary judgment, a District Court must resolve any factual issues of controversy in favor of the non-moving party.... This means that the District Court was obliged to resolve any factual ambiguity in favor of NWF, and would have had to assume, for the purposes of summary judgment, that Peterson used the 4500 affected acres." 278 U.S.App.D.C., at 329, 878 F.2d, at 431. 181 That is not the law. In ruling upon a Rule 56 motion, "a District Court must resolve any factual issues of controversy in favor of the non-moving party" only in the sense that, where the facts specifically averred by that party contradict facts specifically averred by the movant, the motion must be denied. That is a world apart from "assuming" that general averments embrace the "specific facts" needed to sustain the complaint. As set forth above, Rule 56(e) provides that judgment "shall be entered" against the nonmoving party unless affidavits or other evidence "set forth specific facts showing that there is a genuine issue for trial." The object of this provision is not to replace conclusory allegations of the complaint or answer with conclusory allegations of an affidavit. Cf. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986) ("[T]he plaintiff could not rest on his allegations of a conspiracy to get to a jury without 'any significant probative evidence tending to support the complaint' "), quoting First National Bank of Ariz. v. Cities Service Co., 391 U.S. 253, 290, 88 S.Ct. 1575, 1593, 20 L.Ed.2d 569 (1968). Rather, the purpose of Rule 56 is to enable a party who believes there is no genuine dispute as to a specific fact essential to the **3189 other side's case to demand at least one *889 sworn averment of that fact before the lengthy process of litigation continues. At the margins there is some room for debate as to how "specific" must be the "specific facts" that Rule 56(e) requires in a particular case. But where the fact in question is the one put in issue by the § 702 challenge here -whether one of respondent's members has been, or is threatened to be, "adversely affected or aggrieved" by Government action -Rule 56(e) is assuredly not satisfied by averments which state only that one of respondent's members uses unspecified portions of an immense tract of territory, on some portions of which mining activity has occurred or probably will occur by virtue of the governmental action. It will not do to "presume" the WESTLAW n L Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. 20,962 missing facts because without them the affidavits would not establish the injury that they generally allege. That converts the operation of Rule 56 to a circular promenade: plaintiffs complaint makes general allegation of injury; defendant contests through Rule 56 existence of specific facts to support injury; plaintiff responds with affidavit containing general allegation of injury, which must be deemed to constitute averment of requisite specific facts since otherwise allegation of injury would be unsupported (which is precisely what defendant claims it is). Respondent places great reliance, as did the Court of Appeals, upon our decision in United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669, 93 S.Ct. 2405, 37 L.Ed.2d 254 (1973). The SCRAP opinion, whose expansive expression of what would suffice for § 702 review under its particular facts has never since been emulated by this Court, is of no relevance here, since it involved not a Rule 56 motion for summary judgment but a Rule 12(b) motion to dismiss on the pleadings. The latter, unlike the former, presumes that general allegations embrace those specific facts that are necessary to support the claim. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957). *890 IV We turn next to the Court of Appeals' alternative holding that the four additional member affidavits proffered by respondent in response to the District Court's briefing order established its right to § 702 review of agency action. A 191 It is impossible that the affidavits would suffice, as the Court of Appeals held, to enable respondent to challenge the entirety of petitioners' so-called "land withdrawal review program." That is not an "agency action" within the meaning of § 702, much less a "final agency action" within the meaning of § 704. The term "land withdrawal review program" (which as far as we know is not derived from any authoritative text) does not refer to a single BLM order or regulation, or even to a completed universe of particular BLM orders and regulations. It is simply the WESTLAW Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk name by which petitioners have occasionally referred to the continuing (and thus constantly changing) operations of the BLM in reviewing withdrawal revocation applications and the classifications of public lands and developing land use plans as required by the FLPMA. It is no more an identifiable "agency action" -much less a "final agency action" -than a "weapons procurement program" of the Department of Defense or a "drug interdiction program" of the Drug Enforcement Administration. As the District Court explained, the "land withdrawal review program" extends to, currently at least, "1250 or so individual classification terminations and withdrawal revocations." 699 F.Supp., at 332.2 **3190 *891 11°1 Respondent alleges that violation of the law is rampant within this program -failure to revise land use plans in proper fashion, failure to submit certain recommendations to Congress, failure to consider multiple use, inordinate focus upon mineral exploitation, failure to provide required public notice, failure to provide adequate environmental impact statements. Perhaps so. But respondent cannot seek wholesale improvement of this program by court decree, rather than in the offices of the Department or the halls of Congress, where programmatic improvements are normally made. Under the terms of the APA, respondent must direct its attack against some particular "agency action" that causes it harm. Some statutes permit broad regulations to serve as the "agency action," and thus to be the object of judicial review directly, even before the concrete effects normally required for APA review are felt. Absent such a provision, however, a regulation is not ordinarily considered the type of agency action "ripe" for judicial review under the APA until the scope of the controversy has been reduced to more manageable proportions, and its factual components fleshed out, by some concrete action applying the regulation to the claimant's situation in a fashion that harms or threatens to harm him. (The major exception, of course, is a substantive rule which as a practical matter requires the plaintiff to adjust his conduct immediately. Such agency action is "ripe" for review at once, whether or not explicit statutory review apart from the APA is provided. See Abbott Laboratories v. Gardner, 387 U.S. 136, 152-154, 87 S.Ct. 1507, 1517-1518, 18 L.Ed.2d 681 (1967); Gardner v. Toilet Goods Assn., Inc., 387 U.S. 167, 171-173, 87 S.Ct. 1526, 1528-1530, 18 L.Ed.2d 704 (1967). Cf. Toilet *892 Goods Assn., Inc. v. Gardner, 387 U.S. 158, 164-166, 87 S.Ct. 1520, 1524-1526, 18 L.Ed.2d 697 (1967).) 1111 In the present case, the individual actions of the BLM identified in the six affidavits can be regarded as rules of general applicability (a "rule" is deemed in the APA as agency action of "general or particular applicability and Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. 20,962 future effect," 5 U.S.C. § 551(4) (emphasis added)) announcing, with respect to vast expanses of territory that they cover, the agency's intent to grant requisite permission for certain activities, to decline to interfere with other activities, and to take other particular action if requested. It may well be, then, that even those individual actions will not be ripe for challenge until some further agency action or inaction more immediately harming the plaintiff occurs! But it is at least entirely *893 certain that the flaws in the entire "program" -consisting principally of the many individual actions **3191 referenced in the complaint, and presumably actions yet to be taken as well -cannot be laid before the courts for wholesale correction under the APA, simply because one of them that is ripe for review adversely affects one of respondent's members.° *894 1121 The case -by -case approach that this requires is understandably frustrating to an organization such as respondent, which has as its objective across-the-board protection of our Nation's wildlife and the streams and forests that support it. But this is the traditional, and remains the normal, mode of operation of the courts. Except where Congress explicitly provides for our correction of the administrative process at a higher level of generality, we intervene in the administration of the laws only when, and to the extent that, a specific "fmal agency action" has an actual or immediately threatened effect. Toilet Goods Assn., 387 U.S., at 164-166, 87 S.Ct., at 1524-1526. Such an intervention may ultimately have the effect of requiring a regulation, a series of regulations, or even a whole "program" to be revised by the agency in order to avoid the unlawful result that the court discerns. But it is assuredly not as swift or as immediately far-reaching a corrective process as those interested in systemic improvement would desire. Until confided to us, however, more sweeping actions are for the other branches. 1131 The Court of Appeals' reliance upon the supplemental affidavits was wrong for a **3192 second reason: The District Court did not abuse its discretion in declining to admit them. Petitioners filed their motion for summary judgment in September 1986; respondent filed an opposition but did not submit any new evidentiary materials at that time. On June 27, 1988, after the case had made its way for the first time through the Court of Appeals, the District Court announced that it would hold a WESTLAW Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk hearing on July 22 on "the outstanding motions for summary judgment," which included petitioners' motion challenging respondent's § 702 standing. The hearing was held and, as noted earlier, the District Court issued an order directing respondent to file "a supplemental memorandum regarding *895 the issue of its standing to proceed." Record, Doc. No. 274. Although that plainly did not call for the submission of new evidentiary materials, it was in purported response to this order, on August 22, 1988, that respondent submitted (along with the requested legal memorandum) the additional affidavits. The only explanation for the submission (if it can be called an explanation) was contained in a footnote to the memorandum, which simply stated that "NWF now has submitted declarations on behalf of other members of NWF who have been injured by the challenged actions of federal defendants." Record, Doc. No. 278, p. 18, n. 21. In its November 4, 1988, ruling granting petitioners' motion, the District Court rejected the additional affidavits as "untimely and in violation of [the court's briefing] Order." 699 F.Supp., at 328, n. 3. Respondent's evidentiary submission was indeed untimely, both under Rule 56, which requires affidavits in opposition to a sununary judgment motion to be served "prior to the day of the hearing," Fed.Rule Civ.Proc. 56(c), and under Rule 6(d), which states more generally that "[w]hen a motion is supported by affidavit, ... opposing affidavits may be served not later than 1 day before the hearing, unless the court permits them to be served at some other time." Rule 6(b) sets out the proper approach in the case of late filings: "When by these rules or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time, the court for cause shown may at any time in its discretion (1) with or without motion or notice order the period enlarged if request therefor is made before the expiration of the period originally prescribed or as extended by a previous order, or (2) upon motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect...." r rl L Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. 20,962 This provision not only specifically confers the "discretion" relevant to the present issue, but also provides the mechanism *896 by which that discretion is to be invoked and exercised. First, any extension of a time limitation must be "for cause shown." Second, although extensions before expiration of the time period may be "with or without motion or notice," any postdeadline extension must be "upon motion made," and is permissible only where the failure to meet the deadline "was the result of excusable neglect." Thus, in order to receive the affidavits here, the District Court would have had to regard the very filing of the late document as the "motion made" to file it;5 it would have had to interpret "cause *897 shown" to mean merely **3193 "cause," since respondent made no "showing" of cause at all; and finally, it would have had to find as a substantive matter that there was indeed "cause" for the late filing, and that the failure to file on time "was the result of excusable neglect." This last substantive obstacle is the greatest of all. The Court of Appeals presumably thought it was overcome because "the papers on which the trial court relied were two years old by the time it requested supplemental memoranda" and because "there was no indication prior to the trial court's request that [respondent] should have doubted the adequacy of the affidavits it had already submitted." 278 U.S.App.D.C., at 331, 878 F.2d, at 433. We do not understand the relevance of the first point; the passage of so long a time as two years suggests, if anything, that respondent had more than the usual amount of time to prepare its response to the motion, and was more than moderately remiss in waiting until after the last moment. As to the suggestion of unfair surprise: A litigant is never justified in assuming that the court has made up its mind until the court expresses itself to that effect, and a litigant's failure to buttress its position because of confidence in the strength of that position is always indulged in at the litigant's own risk: In any case, whatever erroneous expectations respondent may have had were surely dispelled by the District Court's order in June 1988 announcing that the hearing on petitioners' motion would be held one month later. At least when that order issued, respondent was on notice that its right to sue was at issue, and that (absent proper motion) the time for filing any additional evidentiary materials was, at the latest, the day before the hearing. *898 Perhaps it is true that the District Court could have overcome all the obstacles we have described -apparent lack of a motion, of a showing, and of excusable neglect -to admit the affidavits at issue here. But the proposition that it was compelled to receive them -that it was an abuse of discretion to reject them -cannot be accepted. Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk V 1141 Respondent's final argument is that we should remand this case for the Court of Appeals to decide whether respondent may seek § 702 review of petitioners' actions in its own right, rather than derivatively through its members. Specifically, it points to allegations in the amended complaint that petitioners unlawfully failed to publish regulations, to invite public participation, and to prepare an environmental impact statement with respect to the "land withdrawal review program" as a whole. In order to show that it is a "person ... adversely affected or aggrieved" by these failures, it submitted to the District Court a brief affidavit (two pages in the record) by one of its vice presidents, Lynn A. Greenwalt, who stated that respondent's mission is to "inform its members and the general public about conservation issues" and to advocate improvements in laws and administrative practices "pertaining to the **3194 protection and enhancement of federal lands," App. to Pet. for Cert. 193a-194a; and that its ability to perform this mission has been impaired by petitioners' failure "to provide adequate information and opportunities for public participation with respect to the Land Withdrawal Review Program." Id., at 194a. The District Court found this affidavit insufficient to establish respondent's right to seek judicial review, since it was "conclusory and completely devoid of specific facts." 699 F.Supp., at 330. The Court of Appeals, having reversed the District Court on the grounds discussed above, did not address the issue. We agree with the District Court's disposition. Even assuming that the affidavit set forth "specific facts," *899 Fed.R.Civ.Proc. 56(e), adequate to show injury to respondent through the deprivation of information; and even assuming that providing information to organizations such as respondent was one of the objectives of the statutes allegedly violated, so that respondent is "aggrieved within the meaning" of those statutes; nonetheless, the Greenwalt affidavit fails to identify any particular "agency action" that was the source of these injuries. The only sentences addressed to that point are as follows: "NWF's ability to meet these obligations to its members has been significantly impaired by the failure of the Bureau of Land Management and the Department of the Interior to provide adequate WESTLAW Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. 20,962 information and opportunities for public participation with respect to the Land Withdrawal Review Program. These interests of NWF have been injured by the actions of the Bureau and the Department and would be irreparably harmed by the continued failure to provide meaningful opportunities for public input and access to information regarding the Land Withdrawal Review Program." App. to Pet. for Cert. 194a. As is evident, this is even more deficient than the Peterson and Erman affidavits, which contained geographical descriptions whereby at least an action as general as a particular classification decision could be identified as the source of the grievance. As we discussed earlier, the "land withdrawal review program" is not an identifiable action or event. With regard to alleged deficiencies in providing information and permitting public participation, as with regard to the other illegalities alleged in the complaint, respondent cannot demand a general judicial review of the BLM's day-to-day operations. The Greenwalt affidavit, like the others, does not set forth the specific facts necessary to survive a Rule 56 motion. *900 * * * For the foregoing reasons, the judgment of the Court of Appeals is reversed. It is so ordered. Justice BLACKMUN, with whom Justice BRENNAN, Justice MARSHALL, and Justice STEVENS join, dissenting. In my view, the affidavits of Peggy Kay Peterson and Richard Loren Erman, in conjunction with other record evidence before the District Court on the motions for summary judgment, were sufficient to establish the standing of the National Wildlife Federation (Federation or NWF) to bring this suit. I also conclude that the District Court abused its discretion by refusing to consider supplemental affidavits filed after the hearing on the parties' cross -motions for summary judgment. I therefore would affirm the judgment of the Court of Appeals. Submitted into the public record for item(s) PZ.1 on 12/13/2018 , City Clerk I The Federation's asserted injury in this case rested upon its claim that the Government actions challenged here would lead to increased mining on public lands; that the mining would result in damage to the environment; and that the recreational opportunities of NWF's members would consequently be diminished. Abundant record evidence supported the Federation's assertion that on lands newly opened for mining, mining in fact **3195 would occur.' Similarly, the record furnishes ample support for NWF's contention that mining activities can be expected to cause severe environmentaldamage *901 to the affected lands.' The District Court held, however, that the Federation had not adequately identified particular members who were harmed by the consequences of the Government's actions. Although two of NWF's members expressly averred that their recreational activities had been impaired, the District Court concluded that these affiants had not identified with sufficient precision the particular sites on which their injuries occurred. The majority, like the District Court, holds that the averments of Peterson and Erman were insufficiently specific to withstand a motion for summary judgment. Although these affidavits were not models of precision, I believe that they were adequate at least to create a genuine issue of fact as to the organization's injury. *902 As the Court points out, the showing (whether as to standing or the merits) required to overcome a motion for summary judgment is more extensive than that required in the context of a motion to dismiss. The principal difference is that in the former context evidence is required, while in the latter setting the litigant may rest upon the allegations of his complaint. See Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986) (Federal Rule of Civil Procedure 56(e) `requires the nonmoving party to go beyond the pleadings"). In addition, Rule 56(e) requires that the party opposing summary judgment "must set forth specific facts showing that there is a genuine issue for trial" (emphasis added). Thus, Courts of Appeals have reiterated that "conclusory" allegations unsupported by "specific" evidence will be insufficient to establish a genuine issue of fact.' The requirement that evidence be submitted is satisfied here: The Federation has offered the sworn statements of two of its members. There remains the question whether the allegations in these affidavits were sufficiently precise to satisfy the requirements of Rule 56(e). The line of demarcation between "specific" and "conclusory" allegations is hardly a bright one. But, to my mind, the WESTLAW V it Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. 20,962 allegations contained in the Peterson and Erman affidavits, in the context of the record as a whole, were adequate **3196 to defeat a motion for summary judgment. These affidavits, as the majority acknowledges, were at least sufficiently precise to enable Bureau of Land Management (BLM) officials to identify the particular termination orders to which the affiants referred. See ante, at 3187. And the affiants averred that their "recreational use and aesthetic enjoyment of federal lands ... have been and continue to be adversely affected in fact by the unlawful *903 actions of the Bureau and the Department." App. to Pet. for Cert. 188a (Erman affidavit), 191a (Peterson affidavit). The question, it should be emphasized, is not whether the NWF has proved that it has standing to bring this action, but simply whether the materials before the District Court established "that there is a genuine issue for trial," see Rule 56(e), concerning the Federation's standing. In light of the principle that "[o]n summary judgment the inferences to be drawn from the underlying facts contained in [evidentiary] materials must be viewed in the light most favorable to the party opposing the motion," United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962), I believe that the evidence before the District Court raised a genuine factual issue as to NWF's standing to sue. No contrary conclusion is compelled by the fact that Peterson alleged that she uses federal lands "in the vicinity of South Pass -Green Mountain, Wyoming," App. to Pet. for Cert. 191a, rather than averring that she uses the precise tract that was recently opened to mining. The agency itself has repeatedly referred to the "South Pass -Green Mountain area" in describing the region newly opened to mining.' Peterson's assertion that her use and enjoyment of federal lands have been adversely affected by the agency's decision to permit more extensive mining is, as the Court of Appeals stated, National Wildlife Federation v. Burford, 278 U.S.App.D.C. 320, 329, 878 F.2d 422, 431 (1989), "meaningless, or perjurious" if the lands she uses do not include those harmed by mining undertaken pursuant to termination order W-6228.5 To read particular assertions within the affidavit in light of the document as a whole is, as the majority might put it, "a world apart" from "presuming" facts that are neither stated nor implied simply because without them the *904 plaintiff would lack standing. The Peterson and Erman affidavits doubtless could have been more artfully drafted, but they definitely were sufficient to withstand the federal parties' summary judgment motion. Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk II I also conclude that the District Court abused its discretion in refusing to consider the supplemental affidavits filed by NWF after the hearing on the summary judgment motion.6 The court's decision abruptly derailed the Federation's lawsuit after three **3197 years of proceedings involving massive time and expense. The District Court and Court of Appeals both had concluded that NWF's claims were sufficiently substantial to warrant the entry of a nationwide injunction. Whatever the ultimate merits of the Federation's claims, litigation of this magnitude should not be aborted on technical grounds if that result legitimately can be avoided. The majority's approach reflects an insufficient appreciation both of the realities of complex litigation and of the admonition that the Federal Rules of Civil Procedure "shall be construed to secure *905 the just, speedy, and inexpensive determination of every action." Rule 1. That a requirement is "technical" does not, of course, mean that it need not be obeyed. And an appeal to the "spirit" of the Federal Rules is an insufficient basis for ignoring the import of their text. If the Rules imposed an absolute deadline for the submission of evidentiary materials, the District Court could not be faulted for strictly enforcing that deadline, even though the result in a particular case might be unfortunate. But, as the Court acknowledges, the Rules expressly permit the District Court to exercise discretion in deciding whether affidavits in opposition to a summary judgment motion may be submitted after the hearing.' Once the District Court's power to accept untimely affidavits is recognized, the question whether that power should be exercised in a particular instance must be answered by reference to the explanation for the litigant's omission and the purposes the Rules are designed to serve. In my view, NWF showed adequate cause for its failure to file the supplemental affidavits prior to the hearing. Moreover, the organization's untimely filing in no way disserved the purposes of Rule 56(c), and the federal parties suffered no prejudice as a consequence of the *906 delay. Under these circumstances, I believe that the District Court's refusal to consider these submissions constituted an abuse of discretion. The Federal Rules require that affidavits in opposition to a motion ordinarily must be served at least one day prior to the hearing; the Rules provide, however, that the affidavits may be filed at a later time "where the failure to act was the result of excusable neglect." Rule 6(b); see n. 7, supra. Prior to the July 22, 1988, hearing on the parties' cross -motions for summary judgment, NWF had been assured repeatedly that its prior submissions were WESTLAW ri . Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. 20,962 sufficient to establish its standing to sue. In its memorandum opinion granting the Federation's motion for a preliminary injunction, the District Court stated: "We continue to find irreparable injury to plaintiff and reaffirm plaintiffs standing to bring this action." National Wildlife Federation v. Burford, 676 F.Supp. 280, 281 (D.C.1986). Later that year the federal parties sought additional discovery on the question of standing. NWF sought to quash discovery, arguing that "[t]he Court should bar any additional discovery on this issue because (1) it has already found that plaintiff has standing; (2) plaintiff has already produced affidavits which demonstrate standing and therefore any additional discovery would be unreasonably cumulative, duplicative, **3198 burdensome and expensive within the meaning of Rule 26(c)(1); and (3) contrary to the government defendants' apparent theory, plaintiff need not demonstrate injury as to each and every action that is part of the program." Memorandum of Points and Authorities in Support of Plaintiff's Motion To Quash and for a Protective Order 5-6 (July 1, 1986). In the alternative, NWF argued that if additional discovery on standing was to be ordered, it should be confined to the requirement that a limited number of additional affidavits be submitted. Id., at 22. The District Court, on July 14, 1986, granted in full the Federation's motion to quash and ordered "that no further discovery of plaintiff or *907 its members, officers, employees, agents, servants, or attorneys shall be permitted until subsequent order of this court, if any." App. to Pet. for Cert. 170a-171a. When the District Court's grant of a preliminary injunction was subjected to appellate review, the Court of Appeals concluded that the Peterson and Erman affidavits "provide a concrete indication that the Federation's members use specific lands covered by the agency's Program and will be adversely affected by the agency's actions." National Wildlife Federation v. Burford, 266 U.S.App.D.C. 241, 249, 835 F.2d 305, 313 (1987)' The majority's statement that "a litigant is never justified in assuming that the court has made up its mind until the court expresses itself to that effect," ante, at 3193, is therefore simply irrelevant to the present case: The District Court and the Court of Appeals repeatedly had indicated that the Federation had offered sufficient evidence of its standing. Nor did the District Court's order of June 27, 1988, scheduling a motion hearing for the following July 22, place NWF on notice that its claim of standing might be reconsidered. That order made clear that the hearing would consider the summary judgment motions of both the federal parties and *908 the Federation. The principal submission of the federal parties relevant to the hearing Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk was the Defendants' Memorandum in Opposition to Plaintiff's Motion for Summary Judgment and in Support of Defendants' Motion for Summary Judgment and/or for Dissolution of the Preliminary Injunction Issued on February 10, 1986; that memorandum was filed on September 12, 1986. This 86-page memorandum included only 9 %s pages devoted to standing, and half of that discussion set forth the federal parties' claim that no broad programmatic challenge could succeed even if the Peterson and Erman affidavits adequately alleged injury from Government decisions as to particular tracts of land. Moreover, even the attack on the Peterson and Erman affidavits did not purport to show that summary judgment for the federal parties should be entered on the ground that the Federation lacked standing. Rather, the federal parties argued principally that summary judgment for NWF would be inappropriate because a genuine factual dispute existed as to the Federation's standing to sue. See Defendants' Memorandum, at 45-47. In fact, the 86-page memorandum included only two sentences arguing that the federal parties should be awarded summary judgment on standing grounds. Id., at 11-12, 85. The District Court's decision to schedule a hearing on the parties' cross -motions for summary judgment provided no hint that previous **3199 assurances concerning standing were open to reconsideration.9 Certainly the Federation could have submitted additional evidentiary materials in support of its claim of standing, even though it had no reason to believe that further submissions were necessary. But it would hardly enhance the efficiency *909 of the adjudicative process to encourage litigants to reargue questions previously settled in their favor. In my view, NWF established sufficient cause for its failure to submit the supplemental affidavits prior to the hearing.10 **3200 *910 Moreover, the District Court's refusal to consider the additional submissions in this case did not significantly advance the interests that Rule 56(c) is designed to serve. The Rule requires that affidavits in opposition to a motion for summary judgment must be served "prior to the day of hearing." The Courts of Appeals consistently have recognized, however, that "Rule 56 does not necessarily contemplate an oral hearing. Rather, 10-day advance notice to the adverse party that the motion and all materials in support of or in opposition to the motion will be taken under advisement by the trial court as of a certain day satisfies the notice and hearing *911 dictates of Rule 56." Moore v. Florida, 703 F.2d 516, 519 (CA11 1983)." Rule 56(c)'s requirement that a summary judgment motion be filed 10 days in advance of a scheduled hearing serves to ensure that the nonmoving party is afforded adequate notice of WESTLAW L Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. 20,962 the motion. Similarly, the requirement that opposing affidavits be submitted prior to the day of the hearing reflects the fact that the district court may rule on the summary judgment motion at the hearing or at any time thereafter; submission of affidavits prior to that day is thus essential if the moving party is to be assured the opportunity to respond at a time when a response is meaningful. The requirement also allows the district court to establish a deadline by which time all evidence and arguments must be submitted; thereafter, the court may deliberate with the assurance that no subsequent filings will alter the terms of the dispute. These are pressing concerns when the hearing on a summary judgment motion represents the parties' last opportunity to set forth their legal arguments. In the present case, however, the District Court concluded the July 22, 1988, hearing by requesting supplemental briefing on the issue of standing." NWF's supplemental affidavits, filed on August 22 as an attachment to its legal memorandum, were submitted at a time when the federal parties had ample opportunity to respond. (Indeed, the opportunity to respond here-10 days -was far greater than would have been the case if NWF had filed (timely) affidavits the day before the hearing and no *912 supplemental briefing had been allowed.) The affidavits, moreover, were filed well before the time when the case was to be taken under advisement. The record in this case is voluminous, currently filling six large boxes; consideration of five more affidavits would not have added significantly to the complexity of the issues before the District Court. Under these circumstances, submission of the supplemental affidavits neither disserved the purposes of the Rule nor prejudiced the federal parties in any respect. The District Court discussed none of these factors in explaining its refusal to consider the supplemental affidavits. Indeed, the District Court offered no justification at all for its action beyond the assertion that the affidavits were untimely." Similarly, the Court **3201 today fails to assess the District Court's action by reference to the excuse for NWF's untimely filing or the absence of prejudice to the federal parties. The District Court and today's majority fail to recognize the guiding principle of the Federal Rules of Civil Procedure, the principle that procedural rules should be construed pragmatically, so as to ensure the just and efficient resolution of legal disputes. Some provisions of the Rules strip the district courts of discretion, and the courts have no choice but to enforce these requirements with scrupulous precision." But where the Rules expressly confer a range of *913 discretion, a district court may abuse its authority by refusing to take account of WESTLAW Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk equitable concerns, even where its action violates no express command. In my view, such an abuse of discretion occurred here. III In Part IV -A, ante, at 3189, the majority sets forth a long and abstract discussion of the scope of relief that might have been awarded had the Federation made a sufficient showing of injury from environmental damage to a particular tract of land. Since the majority concludes in other portions of its opinion that the Federation lacks standing to challenge any of the land -use decisions at issue here, it is not clear to me why the Court engages in the hypothetical inquiry contained in Part IV -A. In any event, I agree with much of the Court's discussion, at least in its general outline. The Administrative Procedure Act permits suit to be brought by any person "adversely affected or aggrieved by agency action." 5 U.S.C. § 702. In some cases the "agency action" will consist of a rule of broad applicability; and if the plaintiff prevails, the result is that the rule is invalidated, not simply that the court forbids its application to a particular individual. Under these circumstances a single plaintiff, so long as he is injured by the rule, may obtain "programmatic" relief that affects the rights of parties not before the court. On the other hand, if a generally lawful policy is applied in an illegal manner on a particular occasion, one who is injured is not thereby entitled to challenge other applications of the rule. Application of these principles to the instant case does not turn on whether, or how often, the Bureau's land -management policies have been described as a "program."" In one sense, *914 of course, there is no question that a "program" exists. Everyone associated with this lawsuit recognizes that the BLM, over the past decade, has attempted to develop and implement a comprehensive scheme for the termination of classifications and withdrawals. The real issue is whether the actions and omissions that NWF contends are illegal are themselves part of a plan or policy. For example: If the agency had published a regulation stating that an environmental impact statement (EIS) should never be developed prior to the termination of a classification or withdrawal, NWF could challenge the regulation (which would constitute an "agency action"). If the reviewing court then held that the statute required a pretermination EIS, the relief (invalidation of the rule) would directly Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) Submitted into the public record for item(s) PZ.1 on 12/13/2018 , City Clerk 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. 20,962 affect **3202 tracts other than the ones used by individual affiants. At the other extreme, if the applicable BLM regulation stated that an EIS must be developed, and NWF alleged that the administrator in charge of South Pass/Green Mountain had inexplicably failed to develop one, NWF should not be allowed (on the basis of the Peterson affidavit) to challenge a termination in Florida on the ground that an administrator there made the same mistake. The majority, quoting the District Court, characterizes the Bureau's land management program as " '1250 or so individual classification terminations and withdrawal revocations.' " Ante, at 3189; see National Wildlife Federation v. Burford, 699 F.Supp. 327, 332 (DC 1988). The majority offers no argument in support of this conclusory assertion, and I am far from certain that the characterization is an accurate one. Since this issue bears on the scope of the relief ultimately to be awarded should the plaintiff prevail, rather than on the jurisdiction *915 of the District Court to entertain the suit, I would allow the District Court to address the question on remand.' Footnotes 2 3 IV Since I conclude that the Peterson and Erman affidavits provided sufficient evidence of NWF's standing to withstand a motion for summary judgment, and that the District Court abused its discretion by refusing to consider the Federation's supplemental affidavits, I would affirm the judgment of the Court of Appeals. I respectfully dissent. All Citations 497 U.S. 871, 110 S.Ct. 3177, 111 L.Ed.2d 695, 31 ERC 1553, 20 Envtl. L. Rep. 20,962 The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Lumber Co., 200 U.S. 321, 337, 26 S.Ct. 282, 287, 50 L.Ed. 499. As an additional basis for its conclusion, the Court of Appeals held that the earlier panel's finding that the Peterson and Erman affidavits were sufficient to establish respondent's right to sue was the "law of the case." We do not address this conclusion, as the earlier panel's ruling does not, of course, bind this Court. Messenger v. Anderson, 225 U.S. 436, 444, 32 S.Ct. 739, 740, 56 L.Ed. 1152 (1912). Contrary to the apparent understanding of the dissent, we do not contend that no "land withdrawal review program" exists, any more than we would contend that no weapons procurement program exists. We merely assert that it is not an identifiable "final agency action" for purposes of the APA. If there is in fact some specific order or regulation, applying some particular measure across the board to all individual classification terminations and withdrawal revocations, and if that order or regulation is final, and has become ripe for review in the manner we discuss subsequently in text, it can of course be challenged under the APA by a person adversely affected -and the entire "land withdrawal review program," insofar as the content of that particular action is concerned, would thereby be affected. But that is quite different from permitting a generic challenge to all aspects of the "land withdrawal review program," as though that itself constituted a final agency action. Under the Secretary's regulations, any person seeking to conduct mining operations that will "cause a cumulative surface disturbance" of five acres or more must first obtain approval of a plan of operations. § 3809.1-4 (1988). Mining operations that cause surface disturbance of less than 5 acres do not require prior approval, but prior notice must be given to the district office of the BLM. § 3809.1-3. Neither approval nor notification is required only with respect to "casual use operations," 43 CFR § 3809.1-2, defined as "activities ordinarily resulting in only negligible disturbance of the Federal lands and resources," § 3809.0-5. (Activities are considered "casual" if "they do not involve the use of mechanized earth moving equipment or explosives or do not involve the use of motorized vehicles in areas designated as closed to off -road vehicles...." Ibid.) Thus, before any mining use ordinarily involving more than "negligible disturbance" can take place, there must occur either agency action in response to a submitted plan or agency inaction in response to a submitted notice. In one of the four new affidavits, Peggy Peterson, one of the original affiants, states that a corporation has filed a mine permit application with the BLM covering a portion of the land to which her original affidavit pertained. App. to Brief in Opposition for Respondent National Wildlife Federation 16. If that permit is granted, there is no doubt that WESTLAW Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. 20,962 4 5 agency action ripe for review will have occurred; nor any doubt that, in the course of an otherwise proper court challenge, affiant Peterson, and through her respondent, would be able to call into question the validity of the classification order authorizing the permit. However, before the grant of such a permit, or (when it will suffice) the filing of a notice to engage in mining activities, or (when only "negligible disturbance" will occur) actual mining of the land, it is impossible to tell where or whether mining activities will occur. Indeed, it is often impossible to tell from a classification order alone whether mining activities will even be permissible. As explained in the uncontested affidavit of the BLM's Assistant Director of Land Resources: "The lands may be subject to another withdrawal of comparable scope or they may be subject to classification segregations tantamount to such a withdrawal. In that case, the lands would not be opened to the operation of the public land laws so that the removal of one of the withdrawals has no practical effect. Another reason why there may not be any change is that before the revocation occurred, the lands may have been transferred into private ownership. Consequently, the withdrawal revocation amounts to nothing more than a paper transaction.... In the altemative, a revoked withdrawal may open the lands to the operation of the public land and mineral laws.... Some withdrawal revocations are made without prior knowledge as to what subsequent disposition may be made of the lands. After the lands are opened, they might be transferred out of federal ownership by sale, exchange, or some other discretionary mode of disposal, not anticipated when the withdrawal was revoked. These subsequent discretionary actions require separate and independent decisionmaking that, obviously, are divorced from the prior revocation decision. Environmental and other management concerns and public participation are taken into account in relation to the post -revocation decisionmaking." Affidavit of Frank Edwards, Aug. 18, 1985, App. 61-62. Nothing in this is contrary to our opinion in Automobile Workers v. Brock, 477 U.S. 274, 106 S.Ct. 2523, 91 L.Ed.2d 228 (1986), cited by the Court of Appeals. That opinion did not discuss, and the respondent Secretary of Labor did not rely upon, the requirements of 5 U.S.C. § 702 and our ripeness jurisprudence in cases such as Abbott Laboratories v. Gardner, 387 U.S. 136, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967); Gardner v. Toilet Goods Assn., Inc., 387 U.S. 167, 87 S.Ct. 1526, 18 L.Ed.2d 704 (1967); and Toilet Goods Assn., Inc. v. Gardner, 387 U.S. 158, 87 S.Ct. 1520, 18 L.Ed.2d 697 (1967). The only challenge made and decided, with respect to the individuals' right to sue, relied upon 19 U.S.C. § 2311(d) (1982 ed.), which according to the Secretary of Labor made entertainment of that suit " 'contrary to Congress's incorporation of the state system into the administration of the Trade Act, and an affront to the integrity and authority of the state courts.' " 477 U.S., at 283, 106 S.Ct., at 2529, quoting Brief for Respondent in Automobile Workers, O.T. 1985, No. 84-1777, p. 16. The dissent asserts that a footnote in respondent's reply memorandum to the District Court was a "motion" within the meaning of Rule 6(b)(2), and was so obviously so that the District Court committed reversible error in failing to construe it that way. Post, at 3199-3200 and n. 10. We cannot agree. Rule 6(b) establishes a clear distinction between "requests" and "motions," and the one cannot be converted into the other without violating its provisions -or at least cannot be converted on the basis of such lax criteria that conversion would be not only marginally permissible but positively mandatory in the present case. Rule 6(b)(1) allows a court ("for cause shown" and "in its discretion") to grant a "request" for an extension of time, whether the request is made "with or without motion or notice," provided the request is made before the time for filing expires. After the time for filing has expired, however, the court (again "for cause shown" and "in its discretion") may extend the time only "upon motion." To treat all postdeadline "requests" as "motions" (if indeed any of them can be treated that way) would eliminate the distinction between predeadline and postdeadline filings that the Rule painstakingly draws. Surely the postdeadline "request," to be even permissibly treated as a "motion," must contain a high degree of formality and precision, putting the opposing party on notice that a motion is at issue and that he therefore ought to respond. The request here had not much of either characteristic. As for formality, it was not even made in a separate filing or in a separate appearance before the court, but was contained in a single sentence at the end of the first paragraph of one of the 18 single-spaced footnotes in a 20-page memorandum of law. Our district judges must read footnotes with new care if they are to be reversed for failing to recognize motions buried in this fashion. And as for precision, the request not only did not ask for any particular extension of time (7 days, 30 days), it did not specifically ask for an extension of time at all, but merely said that respondent "should be given adequate opportunity to supplement the record." Even this, moreover, was not requested (much less moved for) unconditionally, but only "[i]f the court intends to reverse its prior ruling [regarding NWF standing]." Record, Doc. No. 294, p. 17, n. 16. We think it quite impossible to agree with the dissent that the district judge not only might treat this request as a motion, but that he was compelled to do so. Prior to the District Court's entry of the preliminary injunction, 406 mining claims had been staked in the South Pass -Green Mountain area alone. App. 119. An exhibit filed by the federal parties indicated that over 7,200 claims had been filed in 12 Western States. Exh. 1 to Affidavit of Joseph Martyak (Apr. 11, 1986). 2 A Bureau of Land Management (BLM) draft of a Resource Management Plan/Environmental Impact Statement for the Lander, Wyo., Resource Area stated: "In the Green Mountain Management Unit ... significant long-term impacts to elk and mule deer herds could occur from habitat losses caused by oil and gas activities over the next 60 years.... In the WESTLAW Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. 20,962 3 4 5 6 7 8 9 Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk South Pass Management Unit, significant acreages of lodgepole pine forest and aspen conifer woodland habitat types could be disturbed, which would cause significant long-term impacts to moose and elk.... If gold mining activities continued to erode these high -value habitats, trout fisheries, the Lander moose herd, the beaver pond ecosystems, and the populations of many other wildlife species would suffer significant cumulative negative effects." Draft RMP/EIS pp. 226-228 (Exh. 3 to Defendant -Intervenors' Reply to Plaintiffs Opposition to Defendants' Motions for Stay Pending Appeal (May 14, 1986)). A BLM Mineral Report issued June 17, 1982, concluded that mining and associated activities "could have an adverse impact on crucial moose habitat, deer habitat, some elk habitat, and a variety of small game and bird species. Improvements at campgrounds, as well as land in the immediate vicinity, could either be damaged or destroyed. These activities could make it difficult for the BLM to manage the forest production and harvesting in the South Pass area. Historical and cultural resources which have and have not been identified could be either damaged or destroyed." Defendant -Intervenors' Exh. '7 (attached as Appendix 1 to Plaintiff National Wildlife Federation's Statement of Points and Authorities in Support of Its Standing To Proceed (Aug. 22, 1988)). See, e.g., May v. Department of Air Force, 777 F.2d 1012, 1016 (CA5 1985); First Commodity Traders, Inc. v. Heinold Commodities, Inc., 766 F.2d 1007, 1011 (CA7 1985); Maldonado v. Ramirez, 757 F.2d 48, 51 (CA3 1985); Galindo v. Precision American Corp., 754 F.2d 1212, 1216 (CA5 1985). See, e.g., App. 123-139 (declaration of Jack Kelly). The areas harmed or threatened by mining and associated activities may extend well beyond the precise location where mining occurs. See n. 2, supra. Five supplemental affidavits were filed. The first was submitted by Peggy Kay Peterson, in clarification of her earlier affidavit: "A substantial portion of the lands which I use ... are identical to those lands" newly opened to mining in the South Pass -Green Mountain area. Peterson Supplemental Affidavit, App. in No. 88-5397 (CADC), p. 356. Ms. Peterson also asserted that "U.S. Energy Corporation has filed a mine permit application with the Bureau and Department, (U.S. Energy Application, TFN 2 4/86), which includes a proposal to mine a significant portion of the federal lands which I use for recreational purposes and aesthetic enjoyment." Id., at 355-356. The other affiants were NWF members David Doran, Merlin McColm, Stephen Blomeke, and Will Ouellette. These individuals identified termination orders that had opened to mining particular tracts of land used by the affiants for recreation and aesthetic enjoyment. The federal parties do not concede that the supplemental affidavits established with certainty the Federation's standing; they contend that further discovery might show the affiants' allegations to be untrue. The federal parties do concede, however, that the supplemental affidavits were not facially deficient. Tr. of Oral Arg. 19. Rule 56(c) provides that when a motion for summary judgment is filed, the "adverse party prior to the day of hearing may serve opposing affidavits." Under Rule 56(e), the district court "may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits." Rule 6(d) states: "When a motion is supported by affidavit, ... opposing affidavits may be served not later than 1 day before the hearing, unless the court permits them to be served at some other time." The district court's authority to permit service "at some other time" is govemed in turn by Rule 6(b), which provides that when an act is required to be performed by a specified time, the district court may "upon motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect." See 4A C. Wright & A. Miller, Federal Practice and Procedure § 1165, p. 475 (2d ed. 1987) (Rule 6(b) "gives the court extensive flexibility to modify the fixed time periods found throughout the rules, whether the enlargement is sought before or after the actual termination of the allotted time"). The Court of Appeals' discussion of standing occurred in the context of a motion to dismiss and therefore, by itself, might not assure NWF that it had made a sufficient showing to withstand a motion for summary judgment. But the Court of Appeals, like the District Court before it, also held that the Federation's showing of injury, as reflected in the Peterson and Erman affidavits, provided an adequate basis for a preliminary injunction. As the second Court of Appeals panel concluded, "the burden of establishing irreparable harm to support a request for a preliminary injunction is, if anything, at least as great as the burden of resisting a summary judgment motion on the ground that the plaintiff cannot demonstrate 'injury -in -fact.' " National old/ife Federation v. Burford, 278 U.S.App.D.C. 320, 330, 878 F.2d 422. 432 (1989) (emphasis omitted). When the first panel affirmed the District Court's entry of a preliminary injunction, Judge Williams' separate opinion, concurring and dissenting, stated that "the specificity required for standing allegations to secure a preliminary injunction will normally be no less than that required on a motion for summary judgment." 266 U.S.App.D.C., at 264, 835 F.2d, at 328. At the hearing itself Fred R. Disheroon, the federal parties' attorney, argued at length on other points before turning to WESTLAW Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. 20,962 10 11 12 13 Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk the issue of standing. He began that portion of his argument by observing that "perhaps the court doesn't want to hear me argue standing, but I think it is imperative that I address that in the context of this case." Tr. of Motions Hearing 43 (July 22, 1988). The supplemental affidavits were submitted as an attachment to the supplemental legal memorandum on standing requested by the District Court. At the time of their submission, NWF stated only that "NWF now has submitted declarations on behalf of other members of NWF who have been injured by the challenged actions of federal defendants." Plaintiff National Wildlife Federation's Statement of Points and Authorities in Support of Its Standing To Proceed 18, n. 21 (Aug. 22, 1988). However, in its reply memorandum on the issue, NWF addressed the contention of the federal parties and the defendant -intervenor that the affidavits should be ignored as untimely filed. NWF stated: "Plaintiff heretofore, has relied on the court's previous rulings on NWF's standing. In its motion for a protective order against additional discovery, NWF argued that its standing had already been proven on the basis of the affidavits of Mr. Greenwalt, Ms. Peterson, and Mr. Erman. The court agreed and entered the requested protective order. If the court intends to reverse its prior ruling, then NWF respectfully requests that it should be given adequate opportunity to supplement the record." Plaintiff National Wildlife Federation's Reply Memorandum in Support of Its Standing To Proceed 17, n. 16 (Sept. 14, 1988). The Federation also noted that Circuit precedent permitted the filing of supplemental affidavits on standing issues, even on appeal. Ibid., citing National Wildlife Federation v. Hodel, 268 U.S.App.D.C. 15, 24, 839 F.2d 694, 703 (1988). NWF offered the further explanation: "Ms. Peterson has supplemented her affidavit to include new information regarding a mine application which has been filed by U.S. Energy Corporation that includes a proposal to mine lands within the area of South Pass/Green Mountain previously closed to mining. For the record, NWF initially was told by officials of the Bureau of Land Management that the U.S. Energy mine application did not include any lands covered by the court's preliminary injunction. Otherwise, NWF would have supplemented Ms. Peterson's affidavit earlier." Reply memorandum, at 12-13, n. 13. Along with its Reply Memorandum, NWF submitted an additional filing entitled Plaintiff National Wildlife Federation's Memorandum in Opposition to Defendant -Intervenors' Motion To Strike Plaintiffs Supplementation of the Record (Sept. 14, 1988). That filing stated: "For the reasons stated in [the reply memorandum] at page 17, n. 16, plaintiff requests that defendant -intervenors' motion to strike be denied." (In light of this separate submission, addressed solely to the question whether the supplemental affidavits should be considered, and expressly referring to n. 16 of the reply memorandum, it is difficult to fathom the Court's assertion that NWF's request was "buried" in the Federation's filings. See ante, at 3192-3193, n. 5.) This separate filing, in conjunction with the reply memorandum, satisfied Rule 6(b)'s requirement that the request for enlargement of time be made "upon motion." Though neither of these filings was expressly denominated a "motion," they met the requirements of Rule 7(b): They were submitted in writing, were signed by counsel, "state [d] with particularity the grounds therefor," and unambiguously "set forth the relief ... sought." See Campos v. LeFevre, 825 F.2d 671, 676 (CA2 1987) ("[N]o particular form of words is necessary to render a filing a 'motion.' Any submission signed by a party that may fairly be read as a request to the district court to exercise its discretionary powers ... should suffice"), cert. denied, 484 U.S. 1014, 108 S.Ct. 718, 98 L.Ed.2d 667 (1988); Smith v. Danyo, 585 F.2d 83, 86 (CA3 1978) ("Rule 7(b) requires no more than that ... a motion 'state with particularity the grounds' upon which it is based. Plainly, an affidavit which is filed to obtain an order disqualifying a judge satisfies the requirements of Rule 7(b).... The ... failure to type in the word 'motion' above the word 'affidavit' in no way detracts from the notice which the affidavit gave of the nature of the application"). Cf. Snyder v. Smith, 736 F.2d 409, 419 (CA7) ("The Federal Rules are to be construed liberally so that erroneous nomenclature in a motion does not bind a party at his peril"), cert. denied, 469 U.S. 1037, 105 S.Ct. 513, 83 L.Ed.2d 403 (1984); Miller v. Transamerican Press, Inc., 709 F.2d 524, 527 (CA9 1983) ("The court will construe [a motion], however styled, to be the type proper for the relief requested"); 2A J. Moore & J. Lucas, Moore's Federal Practice If 7.05, pp. 7-16 to 7-17 (1989) ("[I]t is the motion's substance, and not merely its linguistic form, that determines its nature and legal effect"). Accord, Allied Chemical Corp. v. Mackay, 695 F.2d 854, 856 (CA5 1983) ("Rule 56(c) does not require an oral hearing in open court. Rather, it contemplates notice to the party opposing the motion and an adequate opportunity to respond to the movant's arguments"); Brett v. International Business Machines Corp., 785 F.2d 352, 363 (CA1 1986). The District Court subsequently established a schedule for the supplemental briefing. NWF was requested to file its opening memorandum by August 22, 1988; the federal parties and intervenors were to file memoranda in opposition by September 1; and NWF's reply was due by September 14. Order of July 27, 1988. The District Court mentioned these affidavits in a single footnote: "Plaintiff, in addition to its memorandum filed August 22, 1988 has submitted additional evidentiary material, including declarations from four of its members. These submissions are untimely and in violation of our Order. We decline to consider them. See Federal Defendants' Reply to Plaintiffs Statement of Points and Authorities in Support of Its Standing to Proceed, at 1 n. 1." National Wildlife Federation v. Burford, 699 F.Supp. 327, 328-329, n. 3 (D.C.1988). WESTLAW • 9 Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. 20,962 14 15 16 Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk Rule 6(b), for example, which generally gives the district court broad authority to grant enlargements of time, establishes the limitation that the court "may not extend the time for taking any action under Rules 50(b) and (c)(2), 52(b), 59(b), (d) and (e), 60(b), and 74(a), except to the extent and under the conditions stated in them." The term "withdrawal review program" repeatedly has been used in BLM documents. See, e.g., Plaintiffs Exhs. 1, 3, 10, 11, 15, 18, 19 (filed July 15, 1985). At oral argument on the cross -motions for summary judgment, counsel for the federal parties acknowledged: "It is true, BLM referred to this review process as a land withdrawal review program." Tr. of Motion Hearing 40 (July 22, 1988). Counsel went on to say, "but I suggest that using a word, calling it a program, doesn't make a program in the sense that it is being challenged here." Ibid. That assertion, though inelegant, seems essentially correct: An agency's terminology is not decisive in determining whether an alleged illegality is systemic or site -specific. The majority also suggests that the agency actions challenged in this suit may not be ripe for review. See ante, at 3190-3191. Since the issue of ripeness has not been briefed or argued in this Court, nor passed on by the courts below, I need not address it. I do note, however, that at the outset of this case the federal parties made precisely the opposite argument, asserting that a preliminary injunction should be denied on the ground that NWF's claims were barred by !aches. The federal parties contended: "The Federation offers no explanation why, despite its detailed knowledge of BLM's revocation and termination activities, it has waited so long to institute litigation." Defendants' Memorandum in Opposition to Plaintiffs Motion for Preliminary Injunction 26 (Aug. 22, 1985). I also decline to address the adequacy of the affidavit submitted by Lynn Greenwalt, since the Court of Appeals did not pass on that issue. End of Document © 2018 Thomson Reuters. No claim to original U.S. Govemment Works. WESTLAW Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. 20,962 I KeyCite Yellow Flag - Negative Treatment Not Followed on State Law Grounds Levis v. Konitzky, Me., November 17,2016 no S.Ct. 3177 Supreme Court of the United States Manuel LUJAN, Jr., Secretary of the Interior, et al., Petitioners v. NATIONAL WILDLIFE FEDERATION, et al. No. 89-640. Argued April i6,1990. Decided June 27,1990. Synopsis National wildlife group filed action challenging the "land withdrawal review program" of the Bureau of Land Management. The United States District Court for the District of Columbia, John H. Pratt, J., 699 F.Supp. 327, granted summary judgment against the group. Appeal was taken. The Court of Appeals for the District of Columbia, 878 F.2d 422, reversed and remanded. Certiorari was granted. The Supreme Court, Justice Scalia, held that: (1) affidavits which were filed by members of the group and which indicated the members' recreational use and aesthetic enjoyment of land "in the vicinity" of land covered by agency actions under the Bureau's "land withdrawal review program" were insufficient to show that the affiants' interests were actually affected; (2) the "land withdrawal review program" was not "agency action" or "fmal agency action," within meaning of the Administrative Procedure Act; and (3) affidavit, which indicated that the group's ability to fulfill its informational and advocacy functions was "adversely affected" by alleged failure of the Bureau to provide adequate information and opportunities for public participation with respect to the "land withdrawal review program" failed to identify any particular "agency action" that was the source of the group's alleged injuries. Judgment of the Court of Appeals reversed. Justice Blackmun, dissented and filed opinion in which Justices Brennan, Marshall, and Stevens joined. WESTLAW West Headnotes (14) 111 121 131 Administrative Law and Procedure Persons aggrieved or affected Administrative Law and Procedure • Decisions and Acts Reviewable In order to obtain judicial review under the general review provisions of the Administrative Procedure Act, the person claiming right to sue must identify some agency action that affects him in specified fashion and must show that he has suffered legal wrong because of the challenged agency action or is adversely affected or aggrieved by that action within the meaning of a relevant statute. 5 U.S.C.A. § 702. 179 Cases that cite this headnote Administrative Law and Procedure • Finality; ripeness When judicial review of agency action is sought, not pursuant to specific authorization in substantive statute, but only under general review provisions of the Administrative Procedure Act as person suffering legal wrong because of challenged agency action or adversely affected or aggrieved by that action, the "agency action" must be fmal agency action. 5 U.S.C.A. §§ 551(13), 701(b)(2), 702, 704. 294 Cases that cite this headnote Administrative Law and Procedure • Persons aggrieved or affected To be adversely affected or aggrieved within meaning of statute, for purposes of obtaining judicial review of agency action under general review provisions of the Administrative Procedure Act, plaintiff must establish that the injury he complains of (his aggrievement, or the adverse affect upon him) falls within the "zone Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. 20,962 141 , 151 • 161 of interests" sought to be protected by the statutory provision whose violation forms the legal basis for his complaint. 5 U.S.C.A. § 702. 312 Cases that cite this headnote Federal Civil Procedure Lack of cause of action or defense Summary judgment must be entered, after adequate time for discovery and upon motion, against party who fails to make showing sufficient to establish the existence of element essential to that party's case on which that party will bear burden of proof at trial. Fed.Rules Civ.Proc.Rule 56(c), 28 U.S.C.A. 1636 Cases that cite this headnote Federal Civil Procedure .Burden of proof In order to avoid summary judgment, party who is seeking judicial review of agency action under the general review provision of the Administrative Procedure Act has burden to set forth specific facts, even though they may be controverted by the government, showing that he has satisfied its terms. 5 U.S.C.A. § 702; Fed.Rules Civ.Proc.Rule 56, 28 U.S.C.A. 1105 Cases that cite this headnote Federal Civil Procedure .-Matters Affecting Right to Judgment Summary judgment rule does not require movant to negate elements of nonmovant's case; rather, regardless of whether movant accompanies its summary judgment motion with affidavits, the motion may, and should, be granted so long as whatever is before the district court demonstrates that standard for entry of summary judgment is satisfied. Fed.Rules 171 151 Civ.Proc.Rules 56, 56(c), 28 U.S.C.A. 1205 Cases that cite this headnote Administrative Law and Procedure Persons aggrieved or affected Environmental Law Organizations, associations, and other groups Affidavits, which were filed by members of national wildlife group and which indicated the members' recreational use and aesthetic enjoyment of land "in the vicinity" of land covered by agency actions under the "land withdrawal review program" of the Bureau of Land Management, were insufficient to show that the members' interests were actually affected, for purposes of the general review provisions of the Administrative Procedure Act; affidavits indicated only that the members used unspecified portions of immense tract of territory, on some portions of which mining activity had occurred or probably would occur by virtue of the governmental action, and missing facts could not be "presumed" to establish the injury that was generally alleged. 5 U.S.C.A. § 702; Fed.Rules Civ.Proc.Rule 56, 28 U.S.C.A. 682 Cases that cite this headnote Federal Civil Procedure Presumptions When ruling on summary judgment motion, district court must resolve any factual issues of controversy in favor of nonmovant only in the sense that, where facts specifically averred by nonmovant contradict facts specifically averred by movant, motion must be denied. Fed.Rules Civ.Proc.Rule 56, 28 U.S.C.A. 3753 Cases that cite this headnote WESTLAW Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. 20,962 191 1101 Administrative Law and Procedure o-Finality; ripeness Environmental Law 6—Administrative Decisions or Actions Reviewable in General "Land withdrawal review program" of the Bureau of Land Management was not "agency action" for purposes of general review provisions of the Administrative Procedure Act, much less "final agency action," within meaning of the Act; term "land withdrawal review program" did not refer to single Bureau order or regulation, or even to completed universe of particular Bureau orders and regulations, but, rather, referred to the continuing and thus constantly changing operations of the Bureau in reviewing withdrawal revocation applications and the classifications of public lands and developing land use plans as required by the Federal Land Policy and Management Act. Federal Land Policy and Management Act of 1976, § 102 et seq., 43 U.S.C.A. § 1701 et seq.; 5 U.S.C.A. §§ 702, 704. 141 Cases that cite this headnote Administrative Law and Procedure ...Finality; ripeness Substantive rule which as a practical matter requires plaintiff to adjust his conduct immediately is agency action "ripe" for judicial review at once, whether or not explicit statutory review apart from the Administrative Procedure Act is provided. 5 U.S.C.A. §§ 702, 704. 69 Cases that cite this headnote Administrative Law and Procedure +Finality; ripeness Environmental Law ...Administrative Decisions or Actions Reviewable in General Flaws in the entire "land withdrawal review 1121 1131 1141 program" of the Bureau of Land Management cannot be laid before the courts for wholesale correction under the Administrative Procedure Act simply because one of them that is ripe for review adversely affects one member of national wildlife group. 20 Cases that cite this headnote Administrative Law and Procedure Finality; ripeness Except where Congress explicitly provides for correction of the administrative process at higher level of generality, the Supreme Court intervenes in the administration of the laws only when, and to the extent that, specific "final agency action" has actual or immediately threatened effect. 5 U.S.C.A. §§ 702, 704. 65 Cases that cite this headnote Federal Civil Procedure Affidavits Declining to admit supplemental affidavits, which were filed in response to district court's briefing order following the summary judgment hearing, was not abuse of discretion, in action brought under the general review provisions of the Administrative Procedure Act; the affidavits were untimely under applicable rules, and although the district court could perhaps have overcome the apparent lack of a motion, of a showing of cause, and of excusable neglect to admit the affidavits, it was not compelled to receive them. Fed.Rules Civ.Proc.Rules 6(b, d), 56, 56(c), 28 U.S.C.A.; 5 U.S.C.A. § 702. 298 Cases that cite this headnote Administrative Law and Procedure 4—Persons aggrieved or affected Environmental Law WESTLAW Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. 20,962 11110, fi-Administrative Decisions or Actions Reviewable in General Affidavit, which indicated that national wildlife group's ability to fulfill its informational and advocacy functions was adversely affected by alleged failure of the Bureau of Land Management to provide adequate information and opportunities for public participation with respect to the Bureau's "land withdrawal review program," failed to identify any particular "agency action" that was source of the group's alleged injury, and, thus, group was not entitled to judicial review of the Bureau's actions under the general review provisions of the Administrative Procedure Act; the "land withdrawal review program" was not identifiable action or event, and group could not demand general judicial review of the Bureau's day-to-day operations. 5 U.S.C.A. §§ 702, 704. 62 Cases that cite this headnote **3179 Syllabus' *871 The National Wildlife Federation (hereinafter respondent) filed this action in the District Court against petitioners, the Director of the Bureau of Land Management (BLM) and other federal parties, alleging that, in various respects, they had violated the Federal Land Policy and Management Act of 1976 (FLPMA) and the National Environmental Policy Act of 1969 (NEPA) in the course of administering the BLM's "land withdrawal review program," and that the complained -of actions should be set aside because they were "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law" within the meaning of § 10(e) of the Administrative Procedure Act (APA), 5 U.S.C. § 706. Under the program, petitioners make various types of decisions affecting the status of public lands and their availability for private uses such as mining, a number of which decisions were listed in an appendix to the complaint. The court granted petitioners' motion for summary judgment under Federal Rule of Civil Procedure 56, holding that respondent lacked standing to seek judicial review of petitioners' actions under the APA, § 702. The court ruled that affidavits by two of respondent's members, Peterson and Erman, claiming use of public Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk lands "in the vicinity" of lands covered by two of the listed decisions, were insufficient to confer standing as to those particular decisions, and that, even if they had been adequate for that limited purpose, they could not support respondent's attempted APA challenge to each of the 1,250 or so individual actions effected under the program. The **3180 court rejected as untimely four more member affidavits pertaining to standing, which were submitted after argument on the summary judgment motion and in purported response to the District Court's postargument request for additional briefmg. The Court of Appeals reversed, holding that the Peterson and Erman affidavits were sufficient in themselves, that it was an abuse of discretion not to consider the four additional affidavits, and that standing to challenge the individual decisions conferred standing to challenge all such decisions. Held: 1. The Peterson and Erman affidavits are insufficient to establish respondent's § 702 entitlement to judicial review as "[a] person ... *872 adversely affected or aggrieved by agency action within the meaning of a relevant statute." Pp. 3185-3189. (a) To establish a right to relief under § 702, respondent must satisfy two requirements. First, it must show that it has been affected by some "agency action," as defined in § 551(13). See § 701(b)(2). Since neither the FLPMA nor NEPA provides a private right of action, the "agency action" in question must also be "final agency action" under § 704. Second, respondent must prove that it is "adversely affected or aggrieved" by that action "within the meaning of a relevant statute," which requires a showing that the injury complained of falls within the "zone of interests" sought to be protected by the FLPMA and NEPA. Cf. Clarke v. Securities Industry Assn., 479 U.S. 388, 396-397, 107 S.Ct. 750, 755-756, 93 L.Ed.2d 757. Pp. 3185-3186. (b) When a defendant moves for summary judgment on the ground that the plaintiff has failed to establish a right to relief under § 702, the burden is on the plaintiff, under Rule 56(e), to set forth specific facts (even though they may be controverted by the defendant) showing that there is a genuine issue for trial. Cf. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265. Where no such showing is made, the defendant is entitled to judgment as a matter of law. Id., at 323, 106 S.Ct., at 2552. Pp. 3186-3187. (c) The specific facts alleged in the two affidavits do not raise a genuine issue of fact as to whether respondent has a right to relief under § 702. It may be assumed that the WESTLAW Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. allegedly affected interests set forth in the affidavits -"recreational use and aesthetic enjoyment" -are sufficiently related to respondent's purposes that respondent meets § 702's requirements if any of its members do. Moreover, each affidavit can be read to complain of a particular "agency action" within § 551's meaning; and whatever "adverse effect" or "aggrievement" is established by the affidavits, meets the "zone of interests" test, since "recreational use and aesthetic enjoyment" are among the sorts of interests that the FLPMA and NEPA are designed to protect. However, there has been no showing that those interests of Peterson and Erman were actually "affected" by petitioners' actions, since the affidavits alleged only that the affiants used unspecified lands "in the vicinity of' immense tracts of territory, only on some portions of which, the record shows, mining activity has occurred or probably will occur by virtue of the complained -of actions. The Court of Appeals erred in ruling that the District Court had to presume specific facts sufficient to support the general allegations of injury to the affiants, since such facts are essential to sustaining the complaint and, under Rule 56(e), had to be set forth by respondent. United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669, 93 S.Ct. 2405, 37 L.Ed.2d 254, distinguished. Pp. 3187-3189. *873 2. Respondent's four additional member affidavits did not establish its right to § 702 review. Pp. 3189-3193. (a) The affidavits are insufficient to enable respondent to challenge the entirety of **3181 petitioners' "land withdrawal review program." That term does not refer to a single BLM order or regulation, or even to a completed universe of particular BLM orders and regulations, but is simply the name by which petitioners have occasionally referred to certain continuing (and thus constantly changing) BLM operations regarding public lands, which currently extend to about 1,250 individual decisions and presumably will include more actions in the future. Thus, the program is not an identifiable "agency action" within § 702's meaning, much less a "final agency action" under § 704. Absent an explicit congressional authorization to correct the administrative process on a systemic level, agency action is not ordinarily considered "ripe" for judicial review under the APA until the scope of the controversy has been reduced to manageable proportions, and its factual components fleshed out, by concrete action that harms or threatens to harm the complainant. It may well be, due to the scope of the "program," that the individual BLM actions identified in the affidavits will not be "ripe" for challenge until some further agency action or inaction more immediately harming respondent occurs. But it is entirely certain that the flaws in the entire Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk 20,962 "program" cannot be laid before the courts for wholesale correction under the APA simply because one of them that is ripe for review adversely affects one of respondent's members. Respondent must seek such programmatic improvements from the BLM or Congress. Pp. 3189-3191. (b) The District Court did not abuse • its discretion in declining to admit the supplemental affidavits. Since the affidavits were filed in response to the court's briefing order following the summary judgment hearing, they were untimely under, inter alia, Rule 6(d), which provides that "opposing affidavits may be served not later than 1 day before the hearing." Although Rule 6(b) allows a court, "in its discretion," to extend any filing deadline "for cause shown," a post -deadline extension must be "upon motion made," and is permissible only where the failure to meet the deadline "was the result of excusable neglect." Here, respondent made no motion for extension nor any showing of "cause." Moreover, the failure to timely file did not result from "excusable neglect," since the court's order setting the hearing on the summary judgment motion put respondent on notice that its right to sue was at issue, and that (absent proper motion) the time for filing additional evidentiary materials was, at the latest, the day before the hearing. Even if the court could have overcome these obstacles to admit the affidavits, it was not compelled, in exercising its discretion, to do so. Pp. 3191-3193. *874 3. Respondent is not entitled to seek § 702 review of petitioners' actions in its own right. The brief affidavit submitted to the District Court to show that respondent's ability to fulfill its informational and advocacy functions was "adversely affected" by petitioners' alleged failure to provide adequate information and opportunities for public participation with respect to the land withdrawal review program fails to identify any particular "agency action" that was the source of respondent's alleged injuries, since that program is not an identifiable action or event. Thus, the affidavit does not set forth the specific facts necessary to survive a Rule 56 motion. Pp. 3193-3194. 278 U.S. App. D.C. 320, 878 F.2d 422 (1989), reversed. SCALIA, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and WHITE, O'CONNOR, and KENNEDY, JJ., joined. BLACKMUN, J., filed a dissenting opinion, in which BRENNAN, MARSHALL, and STEVENS, JJ., joined, post, p. 3194. Attorneys and Law Firms WESTLAW o r Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. 20,962 Acting Solicitor General Roberts argued the cause for petitioners. With him on the briefs were Assistant Attorney General Stewart, Deputy Solicitor General Wallace, Lawrence S. Robbins, Peter R. Steenland, Jr., Anne S. Almy, Fred R. Disheroon, and Vicki L. Plaut. E. Barrett Prettyman, Jr., argued the cause for respondents. With him on the brief were John C. Keeney, Jr., Kathleen C. Zimmerman, and Norman L. Dean, Jr. William Perry Pendley filed a brief for respondents Mountain States Legal Foundation et al. * * Briefs of amici curiae urging reversal were filed for the American Farm Bureau Federation et al. by Kathryn A. Oberly and John J. Rademacher; for the American Mining Congress by Jerry L. Haggard and Gerrie Apker Kurtz; for the National Cattlemen's Association et al. by Constance E. Brooks; for the Pacific Legal Foundation by Ronald A. Zumbrun, Robin L. Rivett, and James S. Burling; and for the Washington Legal Foundation et al. by Terence P. Ross, Daniel J. Popeo, and Richard A. Samp. Briefs of amici curiae urging affirmance were filed for the State of California et al. by John K. Van de Kamp, Attorney General of California, Andrea Sheridan Ordin, Chief Assistant Attorney General, and Craig C. Thompson, Susan L. Durbin, Clifford L. Rechtschaffen, and Nilda M. Mesa, Deputy Attorney Generals, and for the Attorneys General for their respective States as follows: Robert A. Butterworth of Florida, Lacy H. Thornburg of North Carolina, Anthony J. Celebrezze, Jr., of Ohio, Jeffrey L. Amestoy of Vermont, and Joseph B. Meyer of Wyoming; and for the Wilderness Society et al. by Bruce J. Ennis, Jr. Opinion *875 Justice SCALIA delivered the opinion of the Court. In this case we must decide whether respondent, the National Wildlife Federation **3182 (hereinafter respondent), is a proper party to challenge actions of the Federal Government relating to certain public lands. I Respondent filed this action in 1985 in the United States District Court for the District of Columbia against Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk petitioners the United States Department of the Interior, the Secretary of the Interior, and the Director of the Bureau of Land Management (BLM), an agency within the Department. In its amended complaint, respondent alleged that petitioners had violated the Federal Land Policy and Management Act of 1976 (FLPMA), 90 Stat. 2744, 43 U.S.C. § 1701 et seq. (1982 ed.), the National Environmental Policy Act of 1969 (NEPA), 83 Stat. 852, 42 U.S.C. § 4321 et seq., and § 10(e) of the Administrative Procedure Act (APA), 5 U.S.C. § 706, in the course of administering what the complaint called the "land withdrawal review program" of the BLM. Some background information concerning that program is necessary to an understanding of this dispute. In various enactments, Congress empowered United States citizens to acquire title to, and rights in, vast portions of federally owned land. See, e.g., Rev.Stat. § 2319, 30 U.S.C. § 22 et seq. (Mining Law of 1872); 41 Stat. 437, as amended, 30 U.S.C. § 181 et seq. (Mineral Leasing Act of 1920). Congress also provided means, however, for the Executive to remove public lands from the operation of these statutes. The Pickett Act, 36 Stat. 847, 43 U.S.C. § 141 (1970 ed.), repealed, 90 Stat. 2792 (1976), authorized the President "at any time in his discretion, temporarily [to] withdraw from settlement, location, sale, or entry any of the *876 public lands of the United States ... and reserve the same for water -power sites, irrigation, classification of lands, or other public purposes...." Acting under this and under the Taylor Grazing Act of 1934, ch. 865, 48 Stat. 1269, as amended, 43 U.S.C. § 315f, which gave the Secretary of the Interior authority to "classify" public lands as suitable for either disposal or federal retention and management, President Franklin Roosevelt withdrew all unreserved public land from disposal until such time as they were classified. Exec. Order No. 6910, Nov. 26, 1934; Exec. Order No. 6964, Feb. 5, 1935. In 1936, Congress amended § 7 of the Taylor Grazing Act to authorize the Secretary of the Interior "to examine and classify any lands" withdrawn by these orders and by other authority as "more valuable or suitable" for other uses "and to open such lands to entry, selection, or location for disposal in accordance with such classification under applicable public -land laws." 49 Stat. 1976, 43 U.S.C. § 315f (1982 ed.). The amendment also directed that "[s]uch lands shall not be subject to disposition, settlement, or occupation until after the same have been classified and opened to entry." Ibid. The 1964 classification and multiple use Act, 78 Stat. 986, 43 U.S.C. §§ 1411-1418 (1970 ed.) (expired 1970), gave the Secretary further authority to classify lands for the purpose of either disposal or retention by the Federal Government. WESTLAW Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. Management of the public lands under these various laws became chaotic. The Public Land Law Review Commission, established by Congress in 1964 to study the matter, 78 Stat. 982, determined in 1970 that "virtually all" of the country's public domain, see Public Land Law Review Commission, One Third of the Nation's Land 52 (1970)-about one-third of the land within the United States, see id., at 19-had been withdrawn or classified for retention; that it was difficult to determine "the extent of existing Executive withdrawals and the degree to which withdrawals overlap each other," id., at 52; and that there were inadequate records to show the purposes *877 of withdrawals and the permissible public uses. Ibid. Accordingly, it recommended that "Congress should provide for a careful review of (1) all Executive withdrawals and reservations, and (2) BLM retention and disposal classifications under the Classification and Multiple Use Act of 1964." Ibid. **3183 In 1976, Congress passed the FLPMA, which repealed many of the miscellaneous laws governing disposal of public land, 43 U.S.C. § 1701 et seq. (1982 ed.), and established a policy in favor of retaining public lands for multiple use management. It directed the Secretary to "prepare and maintain on a continuing basis an inventory of all public lands and their resource and other values," § 1711(a), required land use planning for public lands, and established criteria to be used for that purpose, § 1712. It provided that existing classifications of public lands were subject to review in the land use planning process, and that the Secretary could "modify or terminate any such classification consistent with such land use plans." § 1712(d). It also authorized the Secretary to "make, modify, extend or revoke" withdrawals. § 1714(a). Finally it directed the Secretary, within 15 years, to review withdrawals in existence in 1976 in 11 Western States, § 1714(1 )(1), and to "determine whether, and for how long, the continuation of the existing withdrawal of the lands would be, in his judgment, consistent with the statutory objectives of the programs for which the lands were dedicated and of the other relevant programs," § 1714(1 )(2). The activities undertaken by the BLM to comply with these various provisions constitute what respondent's amended complaint styles the BLM's "land withdrawal review program," which is the subject of the current litigation. Pursuant to the directives of the FLPMA, petitioners engage in a number of different types of administrative action with respect to the various tracts of public land within the United States. First, the BLM conducts the review and recommends the determinations required by § 1714(1) with *878 respect to withdrawals in 11 Western States. The law requires the Secretary to "report his WESTLAW Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk 20,962 recommendations to the President, together with statements of concurrence or nonconcurrence submitted by the heads of the departments or agencies which administer the lands"; the President must in turn submit this report to the Congress, together with his recommendation "for action by the Secretary, or for legislation." § 1714(1 )(2). The Secretary has submitted a number of reports to the President in accordance with this provision. Second, the Secretary revokes some withdrawals under § 204(a) of the Act, which the Office of the Solicitor has interpreted to give the Secretary the power to process proposals for revocation of withdrawals made during the "ordinary course of business." U.S. Dept. of the Interior, Memorandum from the Office of the Solicitor, Oct. 30, 1980. These revocations are initiated in one of three manners: An agency or department holding a portion of withdrawn land that it no longer needs may file a notice of intention to relinquish the lands with the BLM. Any member of the public may file a petition requesting revocation. And in the case of lands held by the BLM, the BLM itself may initiate the revocation proposal. App. 56-57. Withdrawal revocations may be made for several reasons. Some are effected in order to permit sale of the land; some for record -clearing purposes, where the withdrawal designation has been superseded by congressional action or overlaps with another withdrawal designation; some in order to restore the land to multiple use management pursuant to § 102(a)(7) of the FLPMA, 43 U.S.C. § 1701(a)(7) (1982 ed.). App. 142-145. Third, the Secretary engages in the ongoing process of classifying public lands, either for multiple use management, pt. 2420, for disposal, pt. 2430, or for other uses. Classification decisions may be initiated by petition, pt. 2450, or by the BLM itself, pt. 2460. Regulations promulgated *879 by the Secretary prescribe the procedures to be followed in the case of each type of classification determination. II In its complaint, respondent averred generally that the reclassification of some withdrawn **3184 lands and the return of others to the public domain would open the lands up to mining activities, thereby destroying their natural beauty. Respondent alleged that petitioners, in the course of administering the Nation's public lands, had violated the FLPMA by failing to "develop, maintain, Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. 20,962 and, when appropriate, revise land use plans which provide by tracts or areas for the use of the public lands," 43 U.S.C. § 1712(a) (1982 ed.); failing to submit recommendations as to withdrawals in the 11 Western States to the President, § 1714(1 ); failing to consider multiple uses for the disputed lands, § 1732(a), focusing inordinately on such uses as mineral exploitation and development; and failing to provide public notice of decisions, §§ 1701(a)(5), 1712(c)(9), 1712(f), and 1739(e). Respondent also claimed that petitioners had violated NEPA, which requires federal agencies to "include in every recommendation or report on ... major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on ... the environmental impact of the proposed action." 42 U.S.C. § 4332(2)(C) (1982 ed.). Finally, respondent alleged that all of the above actions were "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law," and should therefore be set aside pursuant to § 10(e) of the APA, 5 U.S.C. § 706. Appended to the amended complaint was a schedule of specific land -status determinations, which the complaint stated had been "taken by defendants since January 1, 1981"; each was identified by a listing in the Federal Register. In December 1985, the District Court granted respondent's motion for a preliminary injunction prohibiting petitioners from "[m]odifying, terminating or altering any withdrawal, classification, or other designation governing the protection *880 of lands in the public domain that was in effect on January 1, 1981," and from "[flaking any action inconsistent" with any such withdrawal, classification, or designation. App. to Pet. for Cert. 185a. In a subsequent order, the court denied petitioners' motion under Rule 12(b) of the Federal Rules of Civil Procedure to dismiss the complaint for failure to demonstrate standing to challenge petitioners' actions under the APA, 5 U.S.C. § 702. App. to Pet. for Cert. 183a. The Court of Appeals affirmed both orders. National Wildlife Federation v. Burford, 266 U.S.App.D.C. 241, 835 F.2d 305 (1987). As to the motion to dismiss, the Court of Appeals found sufficient to survive the motion the general allegation in the amended complaint that respondent's members used environmental resources that would be damaged by petitioners' actions. See id., at 248, 835 F.2d, at 312. It held that this allegation, fairly read along with the balance of the complaint, both identified particular land -status actions that respondent sought to challenge -since at least some of the actions complained of were listed in the complaint's appendix of Federal Register references -and asserted harm to respondent's members attributable to those particular actions. Id., at 249, 835 F.2d, at 313. To support WESTLAW the latter point, the Court of Appeals pointed to the affidavits of two of respondent's members, Peggy Kay Peterson and Richard Erman, which claimed use of land "in the vicinity" of the land covered by two of the listed actions. Thus, the Court of Appeals concluded, there was "concrete indication that [respondent's] members use specific lands covered by the agency's Program and will be adversely affected by the agency's actions," and the complaint was "sufficiently specific for purposes of a motion to dismiss." Ibid. On petitions for rehearing, the Court of Appeals stood by its denial of the motion to dismiss and directed the parties and the District Court "to proceed with this litigation with dispatch.", National Wildlife Federation v. Burford, 269 U.S.App.D.C. 271, 272, 844 F.2d 889, 890 (1988). *881 Back before the District Court, petitioners again claimed, this time by means of a motion for summary judgment under Rule 56 **3185 of the Federal Rules of Civil Procedure (which motion had been outstanding during the proceedings before the Court of Appeals), that respondent had no standing to seek judicial review of petitioners' actions under the APA. After argument on this motion, and in purported response to the court's postargument request for additional briefing, respondent submitted four additional member affidavits pertaining to the issue of standing. The District Court rejected them as untimely, vacated the injunction and granted the Rule 56 motion to dismiss. It noted that neither its earlier decision nor the Court of Appeals' affirmance controlled the question, since both pertained to a motion under Rule 12(b). It found the Peterson and Erman affidavits insufficient to withstand the Rule 56 motion, even as to judicial review of the particular classification decisions to which they pertained. And even if they had been adequate for that limited purpose, the court said, they could not support respondent's attempted APA challenge to "each of the 1250 or so individual classification terminations and withdrawal revocations" effected under the land withdrawal review program. National Wildlife Federation v. Burford, 699 F.Supp. 327, 332 (DC 1988). This time the Court of Appeals reversed. National Wildlife Federation v. Burford, 278 U.S.App.D.C. 320, 878 F.2d 422 (1989). It both found the Peterson and Erman affidavits sufficient in themselves and held that it was an abuse of discretion not to consider the four additional affidavits as well.' The Court of Appeals also concluded that *882 standing to challenge individual classification and withdrawal decisions conferred standing to challenge all such decisions under the land withdrawal review program. We granted certiorari. 493 U.S. 1042, 110 S.Ct. 834, 107 L.Ed.2d 830 (1990). qir Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. 20,962 III A 111 121 We first address respondent's claim that the Peterson and Erman affidavits alone suffice to establish respondent's right to judicial review of petitioners' actions. Respondent does not contend that either the FLPMA or NEPA provides a private right of action for violations of its provisions. Rather, respondent claims a right to judicial review under § 10(a) of the APA, which provides: "A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof." 5 U.S.C. § 702. This provision contains two separate requirements. First, the person claiming a right to sue must identify some "agency action" that affects him in the specified fashion; it is judicial review "thereof' to which he is entitled. The meaning of "agency action" for purposes of § 702 is set forth in 5 U.S.C. § 551(13), see 5 U.S.C. § 701(b)(2) ("For the purpose of this chapter ... `agency action' ha[s] the meanin[g] given ... by section 551 of this title"), which defines the term as "the whole or a part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act," 5 U.S.C. § 551(13). When, as here, review is sought not pursuant to specific authorization in the substantive statute, but only under the general review provisions of the APA, the "agency action" in question must be "final agency action." See 5 U.S.C. § 704 ("Agency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court are subject to judicial review" (emphasis added). **3186 *883 131 Second, the party seeking review under § 702 must show that he has "suffer[ed] legal wrong" because of the challenged agency action, or is "adversely affected or aggrieved" by that action "within the meaning of a relevant statute." Respondent does not assert that it has suffered "legal wrong," so we need only discuss the meaning of "adversely affected or aggrieved ... within the meaning of a relevant statute." As an original matter, it might be thought that one cannot be Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk "adversely affected or aggrieved within the meaning" of a statute unless the statute in question uses those terms (or terms like them) -as some pre-APA statutes in fact did when conferring rights of judicial review. See, e.g., Federal Communications Act of 1934, § 402(b)(2), 48 Stat. 1093, as amended, 47 U.S.C. § 402(b)(6) (1982 ed.). We have long since rejected that interpretation, however, which would have made the judicial review provision of the APA no more than a restatement of pre-existing law. Rather, we have said that to be "adversely affected or aggrieved ... within the meaning" of a statute, the plaintiff must establish that the injury he complains of (his aggrievement, or the adverse effect upon him) falls within the "zone of interests" sought to be protected by the statutory provision whose violation forms the legal basis for his complaint. See Clarke v. Securities Industry Assn., 479 U.S. 388, 396-397, 107 S.Ct. 750, 755-756, 93 L.Ed.2d 757 (1987). Thus, for example, the failure of an agency to comply with a statutory provision requiring "on the record" hearings would assuredly have an adverse effect upon the company that has the contract to record and transcribe the agency's proceedings; but since the provision was obviously enacted to protect the interests of the parties to the proceedings and not those of the reporters, that company would not be "adversely affected within the meaning" of the statute. Because this case comes to us on petitioners' motion for summary judgment, we must assess the record under the *884 standard set forth in Rule 56 of the Federal Rules of Civil Procedure. Rule 56(c) states that a party is entitled to summary judgment in his favor "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Rule 56(e) further provides: "When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by WESTLAW Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. 20,962 affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party." 141 As we stated in Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986), "the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Id., at 322, 106 S.Ct., at 2552. Where no such showing is made, "[t]he moving party is `entitled to a judgment as a matter of law' because the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof." Id., at 323, 106 S.Ct., at 2552. 151 161 These standards are fully applicable when a defendant moves for summary judgment, in a suit brought under § 702, on the ground that the plaintiff has failed to show that he is "adversely affected or aggrieved by agency action within the meaning of a relevant statute." The burden is on the party seeking review under § 702 to set forth **3187 specific facts (even though they may be controverted by the Government) showing that he has satisfied its terms. *885 Sierra Club v. Morton, 405 U.S. 727, 740, 92 S.Ct. 1361, 1369, 31 L.Ed.2d 636 (1972). Celotex made clear that Rule 56 does not require the moving party to negate the elements of the nonmoving party's case; to the contrary, "regardless of whether the moving party accompanies its summary judgment motion with affidavits, the motion may, and should, be granted so long as whatever is before the district court demonstrates that the standard for the entry of summary judgment, as set forth in Rule 56(c), is satisfied." 477 U.S., at 323, 106 S.Ct., at 2553. C 171 We turn, then, to whether the specific facts alleged in the two affidavits considered by the District Court raised Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk a genuine issue of fact as to whether an "agency action" taken by petitioners caused respondent to be "adversely affected or aggrieved ... within the meaning of a relevant statute." We assume, since it has been uncontested, that the allegedly affected interests set forth in the affidavits -"recreational use and aesthetic enjoyment" -are sufficiently related to the purposes of respondent association that respondent meets the requirements of § 702 if any of its members do. Hunt v. Washington State Apple Advertising Comm'n, 432 U.S. 333, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977). As for the "agency action" requirement, we think that each of the affidavits can be read, as the Court of Appeals believed, to complain of a particular "agency action" as that term is defined in § 551. The parties agree that the Peterson affidavit, judging from the geographic area it describes, must refer to that one of the BLM orders listed in the appendix to the complaint that appears at 49 Fed.Reg. 19904-19905 (1984), an order captioned W-6228 and dated April 30, 1984, terminating the withdrawal classification of some 4,500 acres of land in that area. See, e.g., Brief for Petitioners 8-10. The parties also appear to agree, on the basis of similar deduction, that the Erman affidavit refers to the BLM order listed in the appendix that appears at *886 47 Fed.Reg. 7232-7233 1982), an order captioned Public Land Order 6156 and dated February 18, 1982. We also think that whatever "adverse effect" or "aggrievement" is established by the affidavits was "within the meaning of the relevant statute" -Le., met the "zone of interests" test. The relevant statute, of course, is the statute whose violation is the gravamen of the complaint -both the FLPMA and NEPA. We have no doubt that "recreational use and aesthetic enjoyment" are among the sorts of interests those statutes were specifically designed to protect. The only issue, then, is whether the facts alleged in the affidavits showed that those interests of Peterson and Erman were actually affected. The Peterson affidavit averred: "My recreational use and aesthetic enjoyment of federal lands, particularly those in the vicinity of South Pass -Green Mountain, Wyoming have been and continue to be adversely affected in fact by the unlawful actions of the Bureau and the Department. In particular, the South Pass -Green Mountain area of Wyoming has been opened to the staking of mining claims and oil and gas leasing, an action which threatens the aesthetic beauty and wildlife habitat potential of these lands." App. to Pet. for Cert. 191 a. WESTLAW Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. 20,962 Erman's affidavit was substantially the same as Peterson's, with respect to all except the area involved; he claimed use of land "in the vicinity of Grand Canyon National Park, the Arizona Strip (Kanab Plateau), and the Kaibab National Forest." Id., at 187a. The District Court found the Peterson affidavit inadequate for the following reasons: "Peterson ... claims that she uses federal lands in the vicinity of the South Pass- **3188 Green Mountain area of Wyoming for recreational purposes and for aesthetic enjoyment and that her recreational and aesthetic enjoyment *887 has been and continues to be adversely affected as the result of the decision of BLM to open it to the staking of mining claims and oil and gas leasing.... This decision [W-6228] opened up to mining approximately 4500 acres within a two million acre area, the balance of which, with the exception of 2000 acres, has always been open to mineral leasing and mining.... There is no showing that Peterson's recreational use and enjoyment extends to the particular 4500 acres covered by the decision to terminate classification to the remainder of the two million acres affected by the termination. All she claims is that she uses lands 'in the vicinity.' The affidavit on its face contains only a bare allegation of injury, and fails to show specific facts supporting the affiant's allegation." 699 F.Supp., at 331 (emphasis in original). The District Court found the Erman affidavit "similarly flawed." "The magnitude of Erman's claimed injury stretches the imagination.... [T]he Arizona Strip consists of all lands in Arizona north and west of the Colorado River on approximately 5.5 million acres, an area one -eighth the size of the State of Arizona. Furthermore, virtually the entire Strip is and for many years has been open to uranium and other metalliferous mining. The revocation of withdrawal [in Public Land Order 6156] concerned only non -metalliferous mining in the western one-third of the Arizona Strip, an area possessing no potential for non -metalliferous mining." Id., at 332. The Court of Appeals disagreed with the District Court's assessment as to the Peterson affidavit (and thus found it unnecessary to consider the Erman affidavit) for the following reason: "If Peterson was not referring to lands in this 4500-acre affected area, her allegation of impairment to her use and enjoyment would be meaningless, or perjurious.... *888 [T]he trial court overlooks the fact that unless WESTLAW Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk Peterson's language is read to refer to the lands affected by the Program, the affidavit is, at best, a meaningless document. "At a minimum, Peterson's affidavit is ambiguous regarding whether the adversely affected lands are the ones she uses. When presented with ambiguity on a motion for summary judgment, a District Court must resolve any factual issues of controversy in favor of the non-moving party.... This means that the District Court was obliged to resolve any factual ambiguity in favor of NWF, and would have had to assume, for the purposes of summary judgment, that Peterson used the 4500 affected acres." 278 U.S.App.D.C., at 329, 878 F.2d, at 431. 181 That is not the law. In ruling upon a Rule 56 motion, "a District Court must resolve any factual issues of controversy in favor of the non-moving party" only in the sense that, where the facts specifically averred by that party contradict facts specifically averred by the movant, the motion must be denied. That is a world apart from "assuming" that general averments embrace the "specific facts" needed to sustain the complaint. As set forth above, Rule 56(e) provides that judgment "shall be entered" against the nonmoving party unless affidavits or other evidence "set forth specific facts showing that there is a genuine issue for trial." The object of this provision is not to replace conclusory allegations of the complaint or answer with conclusory allegations of an affidavit. Cf. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986) ("[T]he plaintiff could not rest on his allegations of a conspiracy to get to a jury without 'any significant probative evidence tending to support the complaint' "), quoting First National Bank of Ariz. v. Cities Service Co., 391 U.S. 253, 290, 88 S.Ct. 1575, 1593, 20 L.Ed.2d 569 (1968). Rather, the purpose of Rule 56 is to enable a party who believes there is no genuine dispute as to a specific fact essential to the **3189 other side's case to demand at least one *889 sworn averment of that fact before the lengthy process of litigation continues. At the margins there is some room for debate as to how "specific" must be the "specific facts" that Rule 56(e) requires in a particular case. But where the fact in question is the one put in issue by the § 702 challenge here -whether one of respondent's members has been, or is threatened to be, "adversely affected or aggrieved" by Government action -Rule 56(e) is assuredly not satisfied by averments which state only that one of respondent's members uses unspecified portions of an immense tract of territory, on some portions of which mining activity has occurred or probably will occur by virtue of the governmental action. It will not do to "presume" the r Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. 20,962 missing facts because without them the affidavits would not establish the injury that they generally allege. That converts the operation of Rule 56 to a circular promenade: plaintiff's complaint makes general allegation of injury; defendant contests through Rule 56 existence of specific facts to support injury; plaintiff responds with affidavit containing general allegation of injury, which must be deemed to constitute averment of requisite specific facts since otherwise allegation of injury would be unsupported (which is precisely what defendant claims it is). Respondent places great reliance, as did the Court of Appeals, upon our decision in United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669, 93 S.Ct. 2405, 37 L.Ed.2d 254 (1973). The SCRAP opinion, whose expansive expression of what would suffice for § 702 review under its particular facts has never since been emulated by this Court, is of no relevance here, since it involved not a Rule 56 motion for summary judgment but a Rule 12(b) motion to dismiss on the pleadings. The latter, unlike the former, presumes that general allegations embrace those specific facts that are necessary to support the claim. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957). *890 IV We turn next to the Court of Appeals' alternative holding that the four additional member affidavits proffered by respondent in response to the District Court's briefing order established its right to § 702 review of agency action. A j91 It is impossible that the affidavits would suffice, as the Court of Appeals held, to enable respondent to challenge the entirety of petitioners' so-called "land withdrawal review program." That is not an "agency action" within the meaning of § 702, much less a "final agency action" within the meaning of § 704. The term "land withdrawal review program" (which as far as we know is not derived from any authoritative text) does not refer to a single BLM order or regulation, or even to a completed universe of particular BLM orders and regulations. It is simply the WESTLAW Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk name by which petitioners have occasionally referred to the continuing (and thus constantly changing) operations of the BLM in reviewing withdrawal revocation applications and the classifications of public lands and developing land use plans as required by the FLPMA. It is no more an identifiable "agency action" -much less a "final agency action" -than a "weapons procurement program" of the Department of Defense or a "drug interdiction program" of the Drug Enforcement Administration. As the District Court explained, the "land withdrawal review program" extends to, currently at least, "1250 or so individual classification terminations and withdrawal revocations." 699 F.Supp., at 332.2 **3190 *891 1101 Respondent alleges that violation of the law is rampant within this program -failure to revise land use plans in proper fashion, failure to submit certain recommendations to Congress, failure to consider multiple use, inordinate focus upon mineral exploitation, failure to provide required public notice, failure to provide adequate environmental impact statements. Perhaps so. But respondent cannot seek wholesale improvement of this program by court decree, rather than in the offices of the Department or the halls of Congress, where programmatic improvements are normally made. Under the terms of the APA, respondent must direct its attack against some particular "agency action" that causes it harm. Some statutes permit broad regulations to serve as the "agency action," and thus to be the object of judicial review directly, even before the concrete effects normally required for APA review are felt. Absent such a provision, however, a regulation is not ordinarily considered the type of agency action "ripe" for judicial review under the APA until the scope of the controversy has been reduced to more manageable proportions, and its factual components fleshed out, by some concrete action applying the regulation to the claimant's situation in a fashion that harms or threatens to harm him. (The major exception, of course, is a substantive rule which as a practical matter requires the plaintiff to adjust his conduct immediately. Such agency action is "ripe" for review at once, whether or not explicit statutory review apart from the APA is provided. See Abbott Laboratories v. Gardner, 387 U.S. 136, 152-154, 87 S.Ct. 1507, 1517-1518, 18 L.Ed.2d 681 (1967); Gardner v. Toilet Goods Assn., Inc., 387 U.S. 167, 171-173, 87 S.Ct. 1526, 1528-1530, 18 L.Ed.2d 704 (1967). Cf. Toilet *892 Goods Assn., Inc. v. Gardner, 387 U.S. 158, 164-166, 87 S.Ct. 1520, 1524-1526, 18 L.Ed.2d 697 (1967).) 1111 In the present case, the individual actions of the BLM identified in the six affidavits can be regarded as rules of general applicability (a "rule" is defined in the APA as agency action of "general or particular applicability and tow Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. 20,962 future effect," 5 U.S.C. § 551(4) (emphasis added)) announcing, with respect to vast expanses of territory that they cover, the agency's intent to grant requisite permission for certain activities, to decline to interfere with other activities, and to take other particular action if requested. It may well be, then, that even those individual actions will not be ripe for challenge until some further agency action or inaction more immediately harming the plaintiff occurs.' But it is at least entirely *893 certain that the flaws in the entire "program" -consisting principally of the many individual actions **3191 referenced in the complaint, and presumably actions yet to be taken as well -cannot be laid before the courts for wholesale correction under the APA, simply because one of them that is ripe for review adversely affects one of respondent's members.° *894 1121 The case -by -case approach that this requires is understandably frustrating to an organization such as respondent, which has as its objective across-the-board protection of our Nation's wildlife and the streams and forests that support it. But this is the traditional, and remains the normal, mode of operation of the courts. Except where Congress explicitly provides for our correction of the administrative process at a higher level of generality, we intervene in the administration of the laws only when, and to the extent that, a specific "fmal agency action" has an actual or immediately threatened effect. Toilet Goods Assn., 387 U.S., at 164-166, 87 S.Ct., at 1524-1526. Such an intervention may ultimately have the effect of requiring a regulation, a series of regulations, or even a whole "program" to be revised by the agency in order to avoid the unlawful result that the court discerns. But it is assuredly not as swift or as immediately far-reaching a corrective process as those interested in systemic improvement would desire. Until confided to us, however, more sweeping actions are for the other branches. 113I The Court of Appeals' reliance upon the supplemental affidavits was wrong for a **3192 second reason: The District Court did not abuse its discretion in declining to admit them. Petitioners filed their motion for summary judgment in September 1986; respondent filed an opposition but did not submit any new evidentiary materials at that time. On June 27, 1988, after the case had made its way for the first time through the Court of Appeals, the District Court announced that it would hold a hearing on July 22 on "the outstanding motions for summary judgment," which included petitioners' motion challenging respondent's § 702 standing. The hearing was held and, as noted earlier, the District Court issued an order directing respondent to file "a supplemental memorandum regarding *895 the issue of its standing to proceed." Record, Doc. No. 274. Although that plainly did not call for the submission of new evidentiary materials, it was in purported response to this order, on August 22, 1988, that respondent submitted (along with the requested legal memorandum) the additional affidavits. The only explanation for the submission (if it can be called an explanation) was contained in a footnote to the memorandum, which simply stated that "NWF now has submitted declarations on behalf of other members of NWF who have been injured by the challenged actions of federal defendants." Record, Doc. No. 278, p. 18, n. 21. In its November 4, 1988, ruling granting petitioners' motion, the District Court rejected the additional affidavits as "untimely and in violation of [the court's briefmg] Order." 699 F.Supp., at 328, n. 3. Respondent's evidentiary submission was indeed untimely, both under Rule 56, which requires affidavits in opposition to a summary judgment motion to be served "prior to the day of the hearing," Fed.Rule Civ.Proc. 56(c), and under Rule 6(d), which states more generally that "[w]hen a motion is supported by affidavit, ... opposing affidavits may be served not later than 1 day before the hearing, unless the court permits them to be served at some other time." Rule 6(b) sets out the proper approach in the case of late filings: "When by these rules or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time, the court for cause shown may at any time in its discretion (1) with or without motion or notice order the period enlarged if request therefor is made before the expiration of the period originally prescribed or as extended by a previous order, or (2) upon motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect...." WESTt.AW Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. 20,962 This provision not only specifically confers the "discretion" relevant to the present issue, but also provides the mechanism *896 by which that discretion is to be invoked and exercised. First, any extension of a time limitation must be "for cause shown." Second, although extensions before expiration of the time period may be "with or without motion or notice," any postdeadline extension must be "upon motion made," and is permissible only where the failure to meet the deadline "was the result of excusable neglect." Thus, in order to receive the affidavits here, the District Court would have had to regard the very filing of the late document as the "motion made" to file it;s it would have had to interpret "cause *897 shown" to mean merely **3193 "cause," since respondent made no "showing" of cause at all; and finally, it would have had to find as a substantive matter that there was indeed "cause" for the late filing, and that the failure to file on time "was the result of excusable neglect." This last substantive obstacle is the greatest of all. The Court of Appeals presumably thought it was overcome because "the papers on which the trial court relied were two years old by the time it requested supplemental memoranda" and because "there was no indication prior to the trial court's request that [respondent] should have doubted the adequacy of the affidavits it had already submitted." 278 U.S.App.D.C., at 331, 878 F.2d, at 433. We do not understand the relevance of the first point; the passage of so long a time as two years suggests, if anything, that respondent had more than the usual amount of time to prepare its response to the motion, and was more than moderately remiss in waiting until after the last moment. As to the suggestion of unfair surprise: A litigant is never justified in assuming that the court has made up its mind until the court expresses itself to that effect, and a litigant's failure to buttress its position because of confidence in the strength of that position is always indulged in at the litigant's own risk. In any case, whatever erroneous expectations respondent may have had were surely dispelled by the District Court's order in June 1988 announcing that the hearing on petitioners' motion would be held one month later. At least when that order issued, respondent was on notice that its right to sue was at issue, and that (absent proper motion) the time for filing any additional evidentiary materials was, at the latest, the day before the hearing. *898 Perhaps it is true that the District Court could have overcome all the obstacles we have described -apparent lack of a motion, of a showing, and of excusable neglect -to admit the affidavits at issue here. But the proposition that it was compelled to receive them -that it was an abuse of discretion to reject them -cannot be WESTLRW accepted. Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk V 1141 Respondent's final argument is that we should remand this case for the Court of Appeals to decide whether respondent may seek § 702 review of petitioners' actions in its own right, rather than derivatively through its members. Specifically, it points to allegations in the amended complaint that petitioners unlawfully failed to publish regulations, to invite public participation, and to prepare an environmental impact statement with respect to the "land withdrawal review program" as a whole. In order to show that it is a "person ... adversely affected or aggrieved" by these failures, it submitted to the District Court a brief affidavit (two pages in the record) by one of its vice presidents, Lynn A. Greenwalt, who stated that respondent's mission is to "inform its members and the general public about conservation issues" and to advocate improvements in laws and administrative practices "pertaining to the **3194 protection and enhancement of federal lands," App. to Pet. for Cert. 193a-194a; and that its ability to perform this mission has been impaired by petitioners' failure "to provide adequate information and opportunities for public participation with respect to the Land Withdrawal Review Program." Id., at 194a. The District Court found this affidavit insufficient to establish respondent's right to seek judicial review, since it was "conclusory and completely devoid of specific facts." 699 F.Supp., at 330. The Court of Appeals, having reversed the District Court on the grounds discussed above, did not address the issue. We agree with the District Court's disposition. Even assuming that the affidavit set forth "specific facts," *899 Fed.R.Civ.Proc. 56(e), adequate to show injury to respondent through the deprivation of information; and even assuming that providing information to organizations such as respondent was one of the objectives of the statutes allegedly violated, so that respondent is "aggrieved within the meaning" of those statutes; nonetheless, the Greenwalt affidavit fails to identify any particular "agency action" that was the source of these injuries. The only sentences addressed to that point are as follows: "NWF's ability to meet these obligations to its members has been significantly impaired by the failure of the Bureau of Land Management and the Department of the Interior to provide adequate Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. 20,962 information and opportunities for public participation with respect to the Land Withdrawal Review Program. These interests of NWF have been injured by the actions of the Bureau and the Department and would be irreparably harmed by the continued failure to provide meaningful opportunities for public input and access to information regarding the Land Withdrawal Review Program." App. to Pet. for Cert. 194a. As is evident, this is even more deficient than the Peterson and Erman affidavits, which contained geographical descriptions whereby at least an action as general as a particular classification decision could be identified as the source of the grievance. As we discussed earlier, the "land withdrawal review program" is not an identifiable action or event. With regard to alleged deficiencies in providing information and permitting public participation, as with regard to the other illegalities alleged in the complaint, respondent cannot demand a general judicial review of the BLM's day-to-day operations. The Greenwalt affidavit, like the others, does not set forth the specific facts necessary to survive a Rule 56 motion. *900 * * * For the foregoing reasons, the judgment of the Court of Appeals is reversed. It is so ordered. Justice BLACKMUN, with whom Justice BRENNAN, Justice MARSHALL, and Justice STEVENS join, dissenting. In my view, the affidavits of Peggy Kay Peterson and Richard Loren Erman, in conjunction with other record evidence before the District Court on the motions for summary judgment, were sufficient to establish the standing of the National Wildlife Federation (Federation or NWF) to bring this suit. I also conclude that the District Court abused its discretion by refusing to consider supplemental affidavits filed after the hearing on the parties' cross -motions for summary judgment. I therefore would affirm the judgment of the Court of Appeals. I The Federation's asserted injury in this case rested upon its claim that the Government actions challenged here would lead to increased mining on public lands; that the mining would result in damage to the environment; and that the recreational opportunities of NWF's members would consequently be diminished. Abundant record evidence supported the Federation's assertion that on lands newly opened for mining, mining in fact **3195 would occur) Similarly, the record furnishes ample support for NWF's contention that mining activities can be expected to cause severe environmentaldamage *901 to the affected lands.' The District Court held, however, that the Federation had not adequately identified particular members who were harmed by the consequences of the Government's actions. Although two of NWF's members expressly averred that their recreational activities had been impaired, the District Court concluded that these affiants had not identified with sufficient precision the particular sites on which their injuries occurred. The majority, like the District Court, holds that the averments of Peterson and Erman were insufficiently specific to withstand a motion for summary judgment. Although these affidavits were not models of precision, I believe that they were adequate at least to create a genuine issue of fact as to the organization's injury. *902 As the Court points out, the showing (whether as to standing or the merits) required to overcome a motion for summary judgment is more extensive than that required in the context of a motion to dismiss. The principal difference is that in the former context evidence is required, while in the latter setting the litigant may rest upon the allegations of his complaint. See Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986) (Federal Rule of Civil Procedure 56(e) "requires the nonmoving party to go beyond the pleadings"). In addition, Rule 56(e) requires that the party opposing summary judgment "must set forth specific facts showing that there is a genuine issue for trial" (emphasis added). Thus, Courts of Appeals have reiterated that "conclusory" allegations unsupported by "specific" evidence will be insufficient to establish a genuine issue of fact. The requirement that evidence be submitted is satisfied here: The Federation has offered the sworn statements of two of its members. There remains the question whether the allegations in these affidavits were sufficiently precise to satisfy the requirements of Rule 56(e). The line of demarcation between "specific" and "conclusory" allegations is hardly a bright one. But, to my mind, the WESTLAW Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. 20,962 allegations contained in the Peterson and Erman affidavits, in the context of the record as a whole, were adequate **3196 to defeat a motion for summary judgment. These affidavits, as the majority acknowledges, were at least sufficiently precise to enable Bureau of Land Management (BLM) officials to identify the particular termination orders to which the affiants referred. See ante, at 3187. And the affiants averred that their "recreational use and aesthetic enjoyment of federal lands ... have been and continue to be adversely affected in fact by the unlawful *903 actions of the Bureau and the Department." App. to Pet. for Cert. 188a (Erman affidavit), 191a (Peterson affidavit). The question, it should be emphasized, is not whether the NWF has proved that it has standing to bring this action, but simply whether the materials before the District Court established "that there is a genuine issue for trial," see Rule 56(e), concerning the Federation's standing. In light of the principle that "[o]n summary judgment the inferences to be drawn from the underlying facts contained in [evidentiary] materials must be viewed in the light most favorable to the party opposing the motion," United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962), I believe that the evidence before the District Court raised a genuine factual issue as to NWF's standing to sue. No contrary conclusion is compelled by the fact that Peterson alleged that she uses federal lands "in the vicinity of South Pass -Green Mountain, Wyoming," App. to Pet. for Cert. 191a, rather than averring that she uses the precise tract that was recently opened to mining. The agency itself has repeatedly referred to the "South Pass -Green Mountain area" in describing the region newly opened to mining.` Peterson's assertion that her use and enjoyment of federal lands have been adversely affected by the agency's decision to permit more extensive mining is, as the Court of Appeals stated, National Wildlife Federation v. Burford, 278 U.S.App.D.C. 320, 329, 878 F.2d 422, 431 (1989), "meaningless, or perjurious" if the lands she uses do not include those harmed by mining undertaken pursuant to termination order W-6228 s To read particular assertions within the affidavit in light of the document as a whole is, as the majority might put it, "a world apart" from "presuming" facts that are neither stated nor implied simply because without them the *904 plaintiff would lack standing. The Peterson and Erman affidavits doubtless could have been more artfully drafted, but they definitely were sufficient to withstand the federal parties' summary judgment motion. Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk II I also conclude that the District Court abused its discretion in refusing to consider the supplemental affidavits filed by NWF after the hearing on the summary judgment motion.6 The court's decision abruptly derailed the Federation's lawsuit after three **3197 years of proceedings involving massive time and expense. The District Court and Court of Appeals both had concluded that NWF's claims were sufficiently substantial to warrant the entry of a nationwide injunction. Whatever the ultimate merits of the Federation's claims, litigation of this magnitude should not be aborted on technical grounds if that result legitimately can be avoided. The majority's approach reflects an insufficient appreciation both of the realities of complex litigation and of the admonition that the Federal Rules of Civil Procedure "shall be construed to secure *905 the just, speedy, and inexpensive determination of every action." Rule 1. That a requirement is "technical" does not, of course, mean that it need not be obeyed. And an appeal to the "spirit" of the Federal Rules is an insufficient basis for ignoring the import of their text. If the Rules imposed an absolute deadline for the submission of evidentiary materials, the District Court could not be faulted for strictly enforcing that deadline, even though the result in a particular case might be unfortunate. But, as the Court acknowledges, the Rules expressly permit the District Court to exercise discretion in deciding whether affidavits in opposition to a summary judgment motion may be submitted after the hearing.' Once the District Court's power to accept untimely affidavits is recognized, the question whether that power should be exercised in a particular instance must be answered by reference to the explanation for the litigant's omission and the purposes the Rules are designed to serve. In my view, NWF showed adequate cause for its failure to file the supplemental affidavits prior to the hearing. Moreover, the organization's untimely filing in no way disserved the purposes of Rule 56(c), and the federal parties suffered no prejudice as a consequence of the *906 delay. Under these circumstances, I believe that the District Court's refusal to consider these submissions constituted an abuse of discretion. The Federal Rules require that affidavits in opposition to a motion ordinarily must be served at least one day prior to the hearing; the Rules provide, however, that the affidavits may be filed at a later time "where the failure to act was the result of excusable neglect." Rule 6(b); see n. 7, supra. Prior to the July 22, 1988, hearing on the parties' cross -motions for summary judgment, NWF had been assured repeatedly that its prior submissions were WESTLAW 1 Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. 20,962 sufficient to establish its standing to sue. In its memorandum opinion granting the Federation's motion for a preliminary injunction, the District Court stated: "We continue to find irreparable injury to plaintiff and reaffirm plaintiffs standing to bring this action." National Wildlife Federation v. Burford, 676 F.Supp. 280, 281 (D.C.1986). Later that year the federal parties sought additional discovery on the question of standing. NWF sought to quash discovery, arguing that "[t]he Court should bar any additional discovery on this issue because (1) it has already found that plaintiff has standing; (2) plaintiff has already produced affidavits which demonstrate standing and therefore any additional discovery would be unreasonably cumulative, duplicative, **3198 burdensome and expensive within the meaning of Rule 26(c)(1); and (3) contrary to the government defendants' apparent theory, plaintiff need not demonstrate injury as to each and every action that is part of the program." Memorandum of Points and Authorities in Support of Plaintiffs Motion To Quash and for a Protective Order 5-6 (July 1, 1986). In the alternative, NWF argued that if additional discovery on standing was to be ordered, it should be confined to the requirement that a limited number of additional affidavits be submitted. Id., at 22. The District Court, on July 14, 1986, granted in full the Federation's motion to quash and ordered "that no further discovery of plaintiff or *907 its members, officers, employees, agents, servants, or attorneys shall be permitted until subsequent order of this court, if any." App. to Pet. for Cert. 170a-171a. When the District Court's grant of a preliminary injunction was subjected to appellate review, the Court of Appeals concluded that the Peterson and Erman affidavits "provide a concrete indication that the Federation's members use specific lands covered by the agency's Program and will be adversely affected by the agency's actions." National Wildlife Federation v. Burford, 266 U.S.App.D.C. 241, 249, 835 F.2d 305, 313 (1987).8 The majority's statement that "a litigant is never justified in assuming that the court has made up its mind until the court expresses itself to that effect," ante, at 3193, is therefore simply irrelevant to the present case: The District Court and the Court of Appeals repeatedly had indicated that the Federation had offered sufficient evidence of its standing. Nor did the District Court's order of June 27, 1988, scheduling a motion hearing for the following July 22, place NWF on notice that its claim of standing might be reconsidered. That order made clear that the hearing would consider the summary judgment motions of both the federal parties and *908 the Federation. The principal submission of the federal parties relevant to the hearing Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk was the Defendants' Memorandum in Opposition to Plaintiffs Motion for Summary Judgment and in Support of Defendants' Motion for Summary Judgment and/or for Dissolution of the Preliminary Injunction Issued on February 10, 1986; that memorandum was filed on September 12, 1986. This 86-page memorandum included only 9 '/2 pages devoted to standing, and half of that discussion set forth the federal parties' claim that no broad programmatic challenge could succeed even if the Peterson and Erman affidavits adequately alleged injury from Government decisions as to particular tracts of land. Moreover, even the attack on the Peterson and Erman affidavits did not purport to show that summary judgment for the federal parties should be entered on the ground that the Federation lacked standing. Rather, the federal parties argued principally that summary judgment for NWF would be inappropriate because a genuine factual dispute existed as to the Federation's standing to sue. See Defendants' Memorandum, at 45-47. In fact, the 86-page memorandum included only two sentences arguing that the federal parties should be awarded summary judgment on standing grounds. Id., at 11-12, 85. The District Court's decision to schedule a hearing on the parties' cross -motions for summary judgment provided no hint that previous **3199 assurances concerning standing were open to reconsideration.9 Certainly the Federation could have submitted additional evidentiary materials in support of its claim of standing, even though it had no reason to believe that further submissions were necessary. But it would hardly enhance the efficiency *909 of the adjudicative process to encourage litigants to reargue questions previously settled in their favor. In my view, NWF established sufficient cause for its failure to submit the supplemental affidavits prior to the hearing.10 **3200 *910 Moreover, the District Court's refusal to consider the additional submissions in this case did not significantly advance the interests that Rule 56(c) is designed to serve. The Rule requires that affidavits in opposition to a motion for summary judgment must be served "prior to the day of hearing." The Courts of Appeals consistently have recognized, however, that "Rule 56 does not necessarily contemplate an oral hearing. Rather, 10-day advance notice to the adverse party that the motion and all materials in support of or in opposition to the motion will be taken under advisement by the trial court as of a certain day satisfies the notice and hearing *911 dictates of Rule 56." Moore v. Florida, 703 F.2d 516, 519 (CA11 1983)." Rule 56(c)'s requirement that a summary judgment motion be filed 10 days in advance of a scheduled hearing serves to ensure that the nonmoving party is afforded adequate notice of WESTLAW u Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. 20,962 the motion. Similarly, the requirement that opposing affidavits be submitted prior to the day of the hearing reflects the fact that the district court may rule on the summary judgment motion at the hearing or at any time thereafter; submission of affidavits prior to that day is thus essential if the moving party is to be assured the opportunity to respond at a time when a response is meaningful. The requirement also allows the district court to establish a deadline by which time all evidence and arguments must be submitted; thereafter, the court may deliberate with the assurance that no subsequent filings will alter the terms of the dispute. These are pressing concerns when the hearing on a summary judgment motion represents the parties' last opportunity to set forth their legal arguments. In the present case, however, the District Court concluded the July 22, 1988, hearing by requesting supplemental briefing on the issue of standing.12 NWF's supplemental affidavits, filed on August 22 as an attachment to its legal memorandum, were submitted at a time when the federal parties had ample opportunity to respond. (Indeed, the opportunity to respond here-10 days -was far greater than would have been the case if NWF had filed (timely) affidavits the day before the hearing and no *912 supplemental briefing had been allowed.) The affidavits, moreover, were filed well before the time when the case was to be taken under advisement. The record in this case is voluminous, currently filling six large boxes; consideration of five more affidavits would not have added significantly to the complexity of the issues before the District Court. Under these circumstances, submission of the supplemental affidavits neither disserved the purposes of the Rule nor prejudiced the federal parties in any respect. The District Court discussed none of these factors in explaining its refusal to consider the supplemental affidavits. Indeed, the District Court offered no justification at all for its action beyond the assertion that the affidavits were untimely." Similarly, the Court **3201 today fails to assess the District Court's action by reference to the excuse for NWF's untimely filing or the absence of prejudice to the federal parties. The District Court and today's majority fail to recognize the guiding principle of the Federal Rules of Civil Procedure, the principle that procedural rules should be construed pragmatically, so as to ensure the just and efficient resolution of legal disputes. Some provisions of the Rules strip the district courts of discretion, and the courts have no choice but to enforce these requirements with scrupulous precision." But where the Rules expressly confer a range of *913 discretion, a district court may abuse its authority by refusing to take account of WESTLAW Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk equitable concerns, even where its action violates no express command. In my view, such an abuse of discretion occurred here. III In Part IV -A, ante, at 3189, the majority sets forth a long and abstract discussion of the scope of relief that might have been awarded had the Federation made a sufficient showing of injury from environmental damage to a particular tract of land. Since the majority concludes in other portions of its opinion that the Federation lacks standing to challenge any of the land -use decisions at issue here, it is not clear to me why the Court engages in the hypothetical inquiry contained in Part IV -A. In any event, I agree with much of the Court's discussion, at least in its general outline. The Administrative Procedure Act permits suit to be brought by any person "adversely affected or aggrieved by agency action." 5 U.S.C. § 702. In some cases the "agency action" will consist of a rule of broad applicability; and if the plaintiff prevails, the result is that the rule is invalidated, not simply that the court forbids its application to a particular individual. Under these circumstances a single plaintiff, so long as he is injured by the rule, may obtain "programmatic" relief that affects the rights of parties not before the court. On the other hand, if a generally lawful policy is applied in an illegal manner on a particular occasion, one who is injured is not thereby entitled to challenge other applications of the rule. Application of these principles to the instant case does not tum on whether, or how often, the Bureau's land -management policies have been described as a "program."" In one sense, *914 of course, there is no question that a "program" exists. Everyone associated with this lawsuit recognizes that the BLM, over the past decade, has attempted to develop and implement a comprehensive scheme for the termination of classifications and withdrawals. The real issue is whether the actions and omissions that NWF contends are illegal are themselves part of a plan or policy. For example: If the agency had published a regulation stating that an environmental impact statement (EIS) should never be developed prior to the termination of a classification or withdrawal, NWF could challenge the regulation (which would constitute an "agency action"). If the reviewing court then held that the statute required a pretern ination EIS, the relief (invalidation of the rule) would directly Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. 20,962 affect **3202 tracts other than the ones used by individual affiants. At the other extreme, if the applicable BLM regulation stated that an EIS must be developed, and NWF alleged that the administrator in charge of South Pass/Green Mountain had inexplicably failed to develop one, NWF should not be allowed (on the basis of the Peterson affidavit) to challenge a termination in Florida on the ground that an administrator there made the same mistake. The majority, quoting the District Court, characterizes the Bureau's land management program as " '1250 or so individual classification terminations and withdrawal revocations.' " Ante, at 3189; see National Wildlife Federation v. Burford, 699 F.Supp. 327, 332 (DC 1988). The majority offers no argument in support of this conclusory assertion, and I am far from certain that the characterization is an accurate one. Since this issue bears on the scope of the relief ultimately to be awarded should the plaintiff prevail, rather than on the jurisdiction *915 of the District Court to entertain the suit, I would allow the District Court to address the question on remand.'6 Footnotes 2 3 IV Since I conclude that the Peterson and Erman affidavits provided sufficient evidence of NWF's standing to withstand a motion for summary judgment, and that the District Court abused its discretion by refusing to consider the Federation's supplemental affidavits, I would affirm the judgment of the Court of Appeals. I respectfully dissent. All Citations 497 U.S. 871, 110 S.Ct. 3177, 111 L.Ed.2d 695, 31 ERC 1553, 20 Envtl. L. Rep. 20,962 The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Lumber Co., 200 U.S. 321, 337, 26 S.Ct. 282, 287, 50 L.Ed. 499. As an additional basis for its conclusion, the Court of Appeals held that the earlier panel's finding that the Peterson and Erman affidavits were sufficient to establish respondent's right to sue was the "law of the case." We do not address this conclusion, as the earlier panel's ruling does not, of course, bind this Court. Messenger v. Anderson, 225 U.S. 436, 444, 32 S.Ct. 739, 740, 56 L.Ed. 1152 (1912). Contrary to the apparent understanding of the dissent, we do not contend that no "land withdrawal review program" exists, any more than we would contend that no weapons procurement program exists. We merely assert that it is not an identifiable "final agency action" for purposes of the APA. If there is in fact some specific order or regulation, applying some particular measure across the board to all individual classification terminations and withdrawal revocations, and if that order or regulation is final, and has become ripe for review in the manner we discuss subsequently in text, it can of course be challenged under the APA by a person adversely affected -and the entire "land withdrawal review program," insofar as the content of that particular action is concerned, would thereby be affected. But that is quite different from permitting a generic challenge to all aspects of the "land withdrawal review program," as though that itself constituted a final agency action. Under the Secretary's regulations, any person seeking to conduct mining operations that will "cause a cumulative surface disturbance" of five acres or more must first obtain approval of a plan of operations. § 3809.1-4 (1988). Mining operations that cause surface disturbance of less than 5 acres do not require prior approval, but prior notice must be given to the district office of the BLM. § 3809.1-3. Neither approval nor notification is required only with respect to "casual use operations," 43 CFR § 3809.1-2, defined as "activities ordinarily resulting in only negligible disturbance of the Federal lands and resources," § 3809.0-5. (Activities are considered "casual" if "they do not involve the use of mechanized earth moving equipment or explosives or do not involve the use of motorized vehicles in areas designated as closed to off -road vehicles...." Ibid.) Thus, before any mining use ordinarily involving more than "negligible disturbance" can take place, there must occur either agency action in response to a submitted plan or agency inaction in response to a submitted notice. In one of the four new affidavits, Peggy Peterson, one of the original affiants, states that a corporation has filed a mine permit application with the BLM covering a portion of the land to which her original affidavit pertained. App. to Brief in Opposition for Respondent National Wildlife Federation 16. If that permit is granted, there is no doubt that WESTLAW Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. 20,962 4 5 1 2 agency action ripe for review will have occurred; nor any doubt that, in the course of an otherwise proper court challenge, affiant Peterson, and through her respondent, would be able to call into question the validity of the classification order authorizing the permit. However, before the grant of such a permit, or (when it will suffice) the filing of a notice to engage in mining activities, or (when only "negligible disturbance" will occur) actual mining of the land, it is impossible to tell where or whether mining activities will occur. Indeed, it is often impossible to tell from a classification order alone whether mining activities will even be permissible. As explained in the uncontested affidavit of the BLM's Assistant Director of Land Resources: "The lands may be subject to another withdrawal of comparable scope or they may be subject to classification segregations tantamount to such a withdrawal. In that case, the lands would not be opened to the operation of the public land laws so that the removal of one of the withdrawals has no practical effect. Another reason why there may not be any change is that before the revocation occurred, the lands may have been transferred into private ownership. Consequently, the withdrawal revocation amounts to nothing more than a paper transaction.... In the altemative, a revoked withdrawal may open the lands to the operation of the public land and mineral laws.... Some withdrawal revocations are made without prior knowledge as to what subsequent disposition may be made of the lands. After the lands are opened, they might be transferred out of federal ownership by sale, exchange, or some other discretionary mode of disposal, not anticipated when the withdrawal was revoked. These subsequent discretionary actions require separate and independent decisionmaking that, obviously, are divorced from the prior revocation decision. Environmental and other management concems and public participation are taken into account in relation to the post -revocation decisionmaking." Affidavit of Frank Edwards, Aug. 18, 1985, App. 61-62. Nothing in this is contrary to our opinion in Automobile Workers v. Brock, 477 U.S. 274, 106 S.Ct. 2523, 91 L.Ed.2d 228 (1986), cited by the Court of Appeals. That opinion did not discuss, and the respondent Secretary of Labor did not rely upon, the requirements of 5 U.S.C. § 702 and our ripeness jurisprudence in cases such as Abbott Laboratories v. Gardner, 387 U.S. 136, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967); Gardner v. Toilet Goods Assn., Inc., 387 U.S. 167, 87 S.Ct. 1526, 18 L.Ed.2d 704 (1967); and Toilet Goods Assn., Inc. v. Gardner, 387 U.S. 158, 87 S.Ct. 1520, 18 L.Ed.2d 697 (1967). The only challenge made and decided, with respect to the individuals' right to sue, relied upon 19 U.S.C. § 2311(d) (1982 ed.), which according to the Secretary of Labor made entertainment of that suit "'contrary to Congress's incorporation of the state system into the administration of the Trade Act, and an affront to the integrity and authority of the state courts.' " 477 U.S., at 283, 106 S.Ct., at 2529, quoting Brief for Respondent in Automobile Workers, O.T. 1985, No. 84-1777, p. 16. The dissent asserts that a footnote in respondent's reply memorandum to the District Court was a "motion" within the meaning of Rule 6(b)(2), and was so obviously so that the District Court committed reversible error in failing to construe it that way. Post, at 3199-3200 and n. 10. We cannot agree. Rule 6(b) establishes a clear distinction between "requests" and "motions," and the one cannot be converted into the other without violating its provisions -or at least cannot be converted on the basis of such lax criteria that conversion would be not only marginally permissible but positively mandatory in the present case. Rule 6(b)(1) allows a court ("for cause shown" and "in its discretion") to grant a "request" for an extension of time, whether the request is made "with or without motion or notice," provided the request is made before the time for filing expires. After the time for filing has expired, however, the court (again "for cause shown" and "in its discretion") may extend the time only "upon motion." To treat all postdeadline "requests" as "motions" (if indeed any of them can be treated that way) would eliminate the distinction between predeadline and postdeadline filings that the Rule painstakingly draws. Surely the postdeadline "request," to be even permissibly treated as a "motion," must contain a high degree of formality and precision, putting the opposing party on notice that a motion is at issue and that he therefore ought to respond. The request here had not much of either characteristic. As for formality, it was not even made in a separate filing or in a separate appearance before the court, but was contained in a single sentence at the end of the first paragraph of one of the 18 single-spaced footnotes in a 20-page memorandum of law. Our district judges must read footnotes with new care if they are to be reversed for failing to recognize motions buried in this fashion. And as for precision, the request not only did not ask for any particular extension of time (7 days, 30 days), it did not specifically ask for an extension of time at all, but merely said that respondent "should be given adequate opportunity to supplement the record." Even this, moreover, was not requested (much less moved for) unconditionally, but only "[i]f the court intends to reverse its prior ruling [regarding NWF standing]." Record, Doc. No. 294, p. 17, n. 16. We think it quite impossible to agree with the dissent that the district judge not only might treat this request as a motion, but that he was compelled to do so. Prior to the District Court's entry of the preliminary injunction, 406 mining claims had been staked in the South Pass -Green Mountain area alone. App. 119. An exhibit filed by the federal parties indicated that over 7,200 claims had been filed in 12 Western States. Exh. 1 to Affidavit of Joseph Martyak (Apr. 11, 1986). A Bureau of Land Management (BLM) draft of a Resource Management Plan/Environmental Impact Statement for the Lander, Wyo., Resource Area stated: "In the Green Mountain Management Unit ... significant long-term impacts to elk and mule deer herds could occur from habitat losses caused by oil and gas activities over the next 60 years.... In the WESTLAW Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. 20,962 3 4 5 6 7 Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk South Pass Management Unit, significant acreages of lodgepole pine forest and aspen conifer woodland habitat types could be disturbed, which would cause significant Tong -term impacts to moose and elk.... If gold mining activities continued to erode these high -value habitats, trout fisheries, the Lander moose herd, the beaver pond ecosystems, and the populations of many other wildlife species would suffer significant cumulative negative effects." Draft RMP/EIS pp. 226-228 (Exh. 3 to Defendant -Intervenors' Reply to Plaintiffs Opposition to Defendants' Motions for Stay Pending Appeal (May 14, 1986)). A BLM Mineral Report issued June 17, 1982, concluded that mining and associated activities "could have an adverse impact on crucial moose habitat, deer habitat, some elk habitat, and a variety of small game and bird species. Improvements at campgrounds, as well as land in the immediate vicinity, could either be damaged or destroyed. These activities could make it difficult for the BLM to manage the forest production and harvesting in the South Pass area. Historical and cultural resources which have and have not been identified could be either damaged or destroyed." Defendant -Intervenors' Exh. 7 (attached as Appendix 1 to Plaintiff National Wildlife Federation's Statement of Points and Authorities in Support of Its Standing To Proceed (Aug. 22, 1988)). See, e.g., May v. Department of Air Force, 777 F.2d 1012, 1016 (CA5 1985); First Commodity Traders, Inc. v. Heinold Commodities, Inc., 766 F.2d 1007, 1011 (CA7 1985); Maldonado v. Ramirez, 757 F.2d 48, 51 (CA3 1985); Galindo v. Precision American Corp., 754 F.2d 1212, 1216 (CA5 1985). See, e.g., App. 123-139 (declaration of Jack Kelly). The areas harmed or threatened by mining and associated activities may extend well beyond the precise location where mining occurs. See n. 2, supra. Five supplemental affidavits were filed. The first was submitted by Peggy Kay Peterson, in clarification of her earlier affidavit: "A substantial portion of the lands which I use ... are identical to those lands" newly opened to mining in the South Pass -Green Mountain area. Peterson Supplemental Affidavit, App. in No. 88-5397 (CADC), p. 356. Ms. Peterson also asserted that "U.S. Energy Corporation has filed a mine permit application with the Bureau and Department, (U.S. Energy Application, TFN 2 4/86), which includes a proposal to mine a significant portion of the federal lands which I use for recreational purposes and aesthetic enjoyment." Id., at 355-356. The other affiants were NWF members David Doran, Merlin McColm, Stephen Blomeke, and Will Ouellette. These individuals identified termination orders that had opened to mining particular tracts of land used by the affiants for recreation and aesthetic enjoyment. The federal parties do not concede that the supplemental affidavits established with certainty the Federation's standing; they contend that further discovery might show the affiants' allegations to be untrue. The federal parties do concede, however, that the supplemental affidavits were not facially deficient. Tr. of Oral Arg. 19. Rule 56(c) provides that when a motion for summary judgment is filed, the "adverse party prior to the day of hearing may serve opposing affidavits." Under Rule 56(e), the district court "may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits." Rule 6(d) states: "When a motion is supported by affidavit, ... opposing affidavits may be served not later than 1 day before the hearing, unless the court permits them to be served at some other time." The district court's authority to permit service "at some other time" is govemed in turn by Rule 6(b), which provides that when an act is required to be performed by a specified time, the district court may "upon motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect." See 4A C. Wright & A. Miller, Federal Practice and Procedure § 1165, p. 475 (2d ed. 1987) (Rule 6(b) "gives the court extensive flexibility to modify the fixed time periods found throughout the rules, whether the enlargement is sought before or after the actual termination of the allotted time"). 8 The Court of Appeals' discussion of standing occurred in the context of a motion to dismiss and therefore, by itself, might not assure NWF that it had made a sufficient showing to withstand a motion for summary judgment. But the Court of Appeals, like the District Court before it, also held that the Federation's showing of injury, as reflected in the Peterson and Erman affidavits, provided an adequate basis for a preliminary injunction. As the second Court of Appeals panel concluded, "the burden of establishing irreparable harm to support a request for a preliminary injunction is, if anything, at least as great as the burden of resisting a summary judgment motion on the ground that the plaintiff cannot demonstrate 'injury -in -fact.' " National Wildlife Federation v. Burford, 278 U.S.App.D.C. 320, 330, 878 F.2d 422, 432 (1989) (emphasis omitted). When the first panel affirmed the District Court's entry of a preliminary injunction, Judge Williams' separate opinion, concurring and dissenting, stated that "the specificity required for standing allegations to secure a preliminary injunction will normally be no less than that required on a motion for summary judgment." 266 U.S.App.D.C., at 264, 835 F.2d, at 328. 9 At the hearing itself Fred R. Disheroon, the federal parties' attorney, argued at length on other points before turning to WESTLAW T c Nor . Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. 20,962 10 11 12 13 Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk the issue of standing. He began that portion of his argument by observing that "perhaps the court doesn't want to hear me argue standing, but I think it is imperative that I address that in the context of this case." Tr. of Motions Hearing 43 (July 22, 1988). The supplemental affidavits were submitted as an attachment to the supplemental legal memorandum on standing requested by the District Court. At the time of their submission, NWF stated only that "NWF now has submitted declarations on behalf of other members of NWF who have been injured by the challenged actions of federal defendants." Plaintiff National Wildlife Federation's Statement of Points and Authorities in Support of Its Standing To Proceed 18, n. 21 (Aug. 22, 1988). However, in its reply memorandum on the issue, NWF addressed the contention of the federal parties and the defendant -intervenor that the affidavits should be ignored as untimely filed. NWF stated: "Plaintiff heretofore, has relied on the court's previous rulings on NWF's standing. In its motion for a protective order against additional discovery, NWF argued that its standing had already been proven on the basis of the affidavits of Mr. Greenwalt, Ms. Peterson, and Mr. Erman. The court agreed and entered the requested protective order. If the court intends to reverse its prior ruling, then NWF respectfully requests that it should be given adequate opportunity to supplement the record." Plaintiff National Wildlife Federation's Reply Memorandum in Support of Its Standing To Proceed 17, n. 16 (Sept. 14, 1988). The Federation also noted that Circuit precedent permitted the filing of supplemental affidavits on standing issues, even on appeal. Ibid., citing National Wildlife Federation v. Hodel, 268 U.S.App.D.C. 15, 24, 839 F.2d 694, 703 (1988). NWF offered the further explanation: "Ms. Peterson has supplemented her affidavit to include new information regarding a mine application which has been filed by U.S. Energy Corporation that includes a proposal to mine lands within the area of South Pass/Green Mountain previously closed to mining. For the record, NWF initially was told by officials of the Bureau of Land Management that the U.S. Energy mine application did not include any lands covered by the court's preliminary injunction. Otherwise, NWF would have supplemented Ms. Peterson's affidavit earlier." Reply memorandum, at 12-13, n. 13. Along with its Reply Memorandum, NWF submitted an additional filing entitled Plaintiff National Wildlife Federation's Memorandum in Opposition to Defendant -Intervenors' Motion To Strike Plaintiffs Supplementation of the Record (Sept. 14, 1988). That filing stated: "For the reasons stated in [the reply memorandum] at page 17, n. 16, plaintiff requests that defendant -intervenors' motion to strike be denied." (In light of this separate submission, addressed solely to the question whether the supplemental affidavits should be considered, and expressly referring to n. 16 of the reply memorandum, it is difficult to fathom the Courts assertion that NWF's request was "buried" in the Federation's filings. See ante, at 3192-3193, n. 5.) This separate filing, in conjunction with the reply memorandum, satisfied Rule 6(b)'s requirement that the request for enlargement of time be made "upon motion." Though neither of these filings was expressly denominated a "motion," they met the requirements of Rule 7(b): They were submitted in writing, were signed by counsel, "state [d] with particularity the grounds therefor," and unambiguously "set forth the relief ... sought." See Campos v. LeFevre, 825 F.2d 671, 676 (CA2 1987) ("[N]o particular form of words is necessary to render a filing a 'motion.' Any submission signed by a party that may fairly be read as a request to the district court to exercise its discretionary powers ... should suffice"), cert. denied, 484 U.S. 1014, 108 S.Ct. 718, 98 L.Ed.2d 667 (1988); Smith v. Danyo, 585 F.2d 83, 86 (CA3 1978) ("Rule 7(b) requires no more than that ... a motion 'state with particularity the grounds' upon which it is based. Plainly, an affidavit which is filed to obtain an order disqualifying a judge satisfies the requirements of Rule 7(b).... The ... failure to type in the word 'motion' above the word 'affidavit' in no way detracts from the notice which the affidavit gave of the nature of the application"). Cf. Snyder v. Smith, 736 F.2d 409, 419 (CA7) ("The Federal Rules are to be construed liberally so that erroneous nomenclature in a motion does not bind a party at his peril"), cert. denied, 469 U.S. 1037, 105 S.Ct. 513, 83 L.Ed.2d 403 (1984); Miller v. Transamerican Press, Inc., 709 F.2d 524, 527 (CA9 1983) ("The court will construe [a motion], however styled, to be the type proper for the relief requested"); 2A J. Moore & J. Lucas, Moore's Federal Practice ¶ 7.05, pp. 7-16 to 7-17 (1989) ("[I]t is the motion's substance, and not merely its linguistic form, that determines its nature and legal effect"). Accord, Allied Chemical Corp. v. Mackay, 695 F.2d 854, 856 (CA5 1983) ("Rule 56(c) does not require an oral hearing in open court. Rather, it contemplates notice to the party opposing the motion and an adequate opportunity to respond to the movant's arguments"); Brett v. International Business Machines Corp., 785 F.2d 352, 363 (CA1 1986). The District Court subsequently established a schedule for the supplemental briefing. NWF was requested to file its opening memorandum by August 22, 1988; the federal parties and intervenors were to file memoranda in opposition by September 1; and NWF's reply was due by September 14. Order of July 27, 1988. The District Court mentioned these affidavits in a single footnote: "Plaintiff, in addition to its memorandum filed August 22, 1988 has submitted additional evidentiary material, including declarations from four of its members. These submissions are untimely and in violation of our Order. We decline to consider them. See Federal Defendants' Reply to Plaintiffs Statement of Points and Authorities in Support of Its Standing to Proceed, at 1 n. 1." National Wildlife Federation v. Burford, 699 F.Supp. 327, 328-329, n. 3 (D.C.1988). WESTLAW Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. 20,962 14 15 16 Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk Rule 6(b), for example, which generally gives the district court broad authority to grant enlargements of time, establishes the limitation that the court "may not extend the time for taking any action under Rules 50(b) and (c)(2), 52(b), 59(b), (d) and (e), 60(b), and 74(a), except to the extent and under the conditions stated in them." The term "withdrawal review program" repeatedly has been used in BLM documents. See, e.g., Plaintiffs Exhs. 1, 3, 10, 11, 15, 18, 19 (filed July 15, 1985). At oral argument on the cross -motions for summary judgment, counsel for the federal parties acknowledged: "It is true, BLM referred to this review process as a land withdrawal review program." Tr. of Motion Hearing 40 (July 22, 1988). Counsel went on to say, "but I suggest that using a word, calling it a program, doesn't make a program in the sense that it is being challenged here." Ibid. That assertion, though inelegant, seems essentially correct: An agency's terminology is not decisive in determining whether an alleged illegality is systemic or site -specific. The majority also suggests that the agency actions challenged in this suit may not be ripe for review. See ante, at 3190-3191. Since the issue of ripeness has not been briefed or argued in this Court, nor passed on by the courts below, I need not address it. I do note, however, that at the outset of this case the federal parties made precisely the opposite argument, asserting that a preliminary injunction should be denied on the ground that NWF's claims were barred by laches. The federal parties contended: "The Federation offers no explanation why, despite its detailed knowledge of BLM's revocation and termination activities, it has waited so long to institute litigation." Defendants' Memorandum in Opposition to Plaintiffs Motion for Preliminary Injunction 26 (Aug. 22, 1985). I also decline to address the adequacy of the affidavit submitted by Lynn Greenwalt, since the Court of Appeals did not pass on that issue. End of Document © 2018 Thomson Reuters. No claim to original U.S. Government Works. WESTLAW Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. 20,962 KeyCite Yellow Flag - Negative Treatment Not Followed on State Law Grounds Levis v. Konitzky, Me., November 17,2016 110 S.Ct. 3177 Supreme Court of the United States Manuel LUJAN, Jr., Secretary of the Interior, et al., Petitioners v. NATIONAL WILDLIFE FEDERATION, et al. No. 89-640. Argued April 16,1990. Decided June 27,199o. Synopsis National wildlife group filed action challenging the "land withdrawal review program" of the Bureau of Land Management. The United States District Court for the District of Columbia, John H. Pratt, J., 699 F.Supp. 327, granted summary judgment against the group. Appeal was taken. The Court of Appeals for the District of Columbia, 878 F.2d 422, reversed and remanded. Certiorari was granted. The Supreme Court, Justice Scalia, held that: (1) affidavits which were filed by members of the group and which indicated the members' recreational use and aesthetic enjoyment of land "in the vicinity" of land covered by agency actions under the Bureau's "land withdrawal review program" were insufficient to show that the affiants' interests were actually affected; (2) the "land withdrawal review program" was not "agency action" or "final agency action," within meaning of the Administrative Procedure Act; and (3) affidavit, which indicated that the group's ability to fulfill its informational and advocacy functions was "adversely affected" by alleged failure of the Bureau to provide adequate information and opportunities for public participation with respect to the "land withdrawal review program" failed to identify any particular "agency action" that was the source of the group's alleged injuries. Judgment of the Court of Appeals reversed. Justice Blackmun, dissented and filed opinion in which Justices Brennan, Marshall, and Stevens joined. Submitted into the public record for item(s) PZ.1 on 12/13/2018 , City Clerk West Headnotes (14) It1 121 131 Administrative Law and Procedure Persons aggrieved or affected Administrative Law and Procedure Decisions and Acts Reviewable In order to obtain judicial review under the general review provisions of the Administrative Procedure Act, the person claiming right to sue must identify some agency action that affects him in specified fashion and must show that he has suffered legal wrong because of the challenged agency action or is adversely affected or aggrieved by that action within the meaning of a relevant statute. 5 U.S.C.A. § 702. 179 Cases that cite this headnote Administrative Law and Procedure ...Finality; ripeness When judicial review of agency action is sought, not pursuant to specific authorization in substantive statute, but only under general review provisions of the Administrative Procedure Act as person suffering legal wrong because of challenged agency action or adversely affected or aggrieved by that action, the "agency action" must be final agency action. 5 U.S.C.A. §§ 551(13), 701(b)(2), 702, 704. 294 Cases that cite this headnote Administrative Law and Procedure Persons aggrieved or affected To be adversely affected or aggrieved within meaning of statute, for purposes of obtaining judicial review of agency action under general review provisions of the Administrative Procedure Act, plaintiff must establish that the injury he complains of (his aggrievement, or the adverse affect upon him) falls within the "zone WESTLAW Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. 20,962 141 kW 151 161 of interests" sought to be protected by the statutory provision whose violation forms the legal basis for his complaint. 5 U.S.C.A. § 702. 312 Cases that cite this headnote Federal Civil Procedure .-Lack of cause of action or defense Summary judgment must be entered, after adequate time for discovery and upon motion, against party who fails to make showing sufficient to establish the existence of element essential to that party's case on which that party will bear burden of proof at trial. Fed.Rules Civ.Proc.Rule 56(c), 28 U.S.C.A. 1636 Cases that cite this headnote Federal Civil Procedure .'Burden of proof In order to avoid summary judgment, party who is seeking judicial review of agency action under the general review provision of the Administrative Procedure Act has burden to set forth specific facts, even though they may be controverted by the government, showing that he has satisfied its terms. 5 U.S.C.A. § 702; Fed.Rules Civ.Proc.Rule 56, 28 U.S.C.A. 1105 Cases that cite this headnote Federal Civil Procedure .-Matters Affecting Right to Judgment Summary judgment rule does not require movant to negate elements of nonmovant's case; rather, regardless of whether movant accompanies its summary judgment motion with affidavits, the motion may, and should, be granted so long as whatever is before the district court demonstrates that standard for entry of summary judgment is satisfied. Fed.Rules WESTLAW 171 181 Civ.Proc.Rules 56, 56(c), 28 U.S.C.A. 1205 Cases that cite this headnote Administrative Law and Procedure Persons aggrieved or affected Environmental Law 41.-Organizations, associations, and other groups Affidavits, which were filed by members of national wildlife group and which indicated the members' recreational use and aesthetic enjoyment of land "in the vicinity" of land covered by agency actions under the "land withdrawal review program" of the Bureau of Land Management, were insufficient to show that the members' interests were actually affected, for purposes of the general review provisions of the Administrative Procedure Act; affidavits indicated only that the members used unspecified portions of immense tract of territory, on some portions of which mining activity had occurred or probably would occur by virtue of the governmental action, and missing facts could not be "presumed" to establish the injury that was generally alleged. 5 U.S.C.A. § 702; Fed.Rules Civ.Proc.Rule 56, 28 U.S.C.A. 682 Cases that cite this headnote Federal Civil Procedure .-Presumptions When ruling on summary judgment motion, district court must resolve any factual issues of controversy in favor of nonmovant only in the sense that, where facts specifically averred by nonmovant contradict facts specifically averred by movant, motion must be denied. Fed.Rules Civ.Proc.Rule 56, 28 U.S.C.A. 3753 Cases that cite this headnote o rl Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. 20,962 y1 191 1101 Administrative Law and Procedure ...Finality; ripeness Environmental Law .-Administrative Decisions or Actions Reviewable in General "Land withdrawal review program" of the Bureau of Land Management was not "agency action" for purposes of general review provisions of the Administrative Procedure Act, much less "final agency action," within meaning of the Act; term "land withdrawal review program" did not refer to single Bureau order or regulation, or even to completed universe of particular Bureau orders and regulations, but, rather, referred to the continuing and thus constantly changing operations of the Bureau in reviewing withdrawal revocation applications and the classifications of public lands and developing land use plans as required by the Federal Land Policy and Management Act. Federal Land Policy and Management Act of 1976, § 102 et seq., 43 U.S.C.A. § 1701 et seq.; 5 U.S.C.A. §§ 702, 704. 141 Cases that cite this headnote Administrative Law and Procedure Finality; ripeness Substantive rule which as a practical matter requires plaintiff to adjust his conduct immediately is agency action "ripe" for judicial review at once, whether or not explicit statutory review apart from the Administrative Procedure Act is provided. 5 U.S.C.A. §§ 702, 704. 69 Cases that cite this headnote Administrative Law and Procedure .Finality; ripeness Environmental Law ...Administrative Decisions or Actions Reviewable in General Flaws in the entire "land withdrawal review 1121 1131 1141 Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk program" of the Bureau of Land Management cannot be laid before the courts for wholesale correction under the Administrative Procedure Act simply because one of them that is ripe for review adversely affects one member of national wildlife group. 20 Cases that cite this headnote Administrative Law and Procedure ...Finality; ripeness Except where Congress explicitly provides for correction of the administrative process at higher level of generality, the Supreme Court intervenes in the administration of the laws only when, and to the extent that, specific "final agency action" has actual or immediately threatened effect. 5 U.S.C.A. §§ 702, 704. 65 Cases that cite this headnote Federal Civil Procedure ..-Affidavits Declining to admit supplemental affidavits, which were filed in response to district court's briefing order following the summary judgment hearing, was not abuse of discretion, in action brought under the general review provisions of the Administrative Procedure Act; the affidavits were untimely under applicable rules, and although the district court could perhaps have overcome the apparent lack of a motion, of a showing of cause, and of excusable neglect to admit the affidavits, it was not compelled to receive them. Fed.Rules Civ.Proc.Rules 6(b, d), 56, 56(c), 28 U.S.C.A.; 5 U.S.C.A. § 702. 298 Cases that cite this headnote Administrative Law and Procedure Persons aggrieved or affected Environmental Law WESTLAW Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. 20,962 0-Administrative Decisions or Actions Reviewable in General Affidavit, which indicated that national wildlife group's ability to fulfill its informational and advocacy functions was adversely affected by alleged failure of the Bureau of Land Management to provide adequate information and opportunities for public participation with respect to the Bureau's "land withdrawal review program," failed to identify any particular "agency action" that was source of the group's alleged injury, and, thus, group was not entitled to judicial review of the Bureau's actions under the general review provisions of the Administrative Procedure Act; the "land withdrawal review program" was not identifiable action or event, and group could not demand general judicial review of the Bureau's day-to-day operations. 5 U.S.C.A. §§ 702, 704. 62 Cases that cite this headnote **3179 Syllabus' *871 The National Wildlife Federation (hereinafter respondent) filed this action in the District Court against petitioners, the Director of the Bureau of Land Management (BLM) and other federal parties, alleging that, in various respects, they had violated the Federal Land Policy and Management Act of 1976 (FLPMA) and the National Environmental Policy Act of 1969 (NEPA) in the course of administering the BLM's "land withdrawal review program," and that the complained -of actions should be set aside because they were "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law" within the meaning of § 10(e) of the Administrative Procedure Act (APA), 5 U.S.C. § 706. Under the program, petitioners make various types of decisions affecting the status of public lands and their availability for private uses such as mining, a number of which decisions were listed in an appendix to the complaint. The court granted petitioners' motion for summary judgment under Federal Rule of Civil Procedure 56, holding that respondent lacked standing to seek judicial review of petitioners' actions under the APA, § 702. The court ruled that affidavits by two of respondent's members, Peterson and Erman, claiming use of public Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk lands "in the vicinity" of lands covered by two of the listed decisions, were insufficient to confer standing as to those particular decisions, and that, even if they had been adequate for that limited purpose, they could not support respondent's attempted APA challenge to each of the 1,250 or so individual actions effected under the program. The **3180 court rejected as untimely four more member affidavits pertaining to standing, which were submitted after argument on the summary judgment motion and in purported response to the District Court's postargument request for additional briefmg. The Court of Appeals reversed, holding that the Peterson and Erman affidavits were sufficient in themselves, that it was an abuse of discretion not to consider the four additional affidavits, and that standing to challenge the individual decisions conferred standing to challenge all such decisions. Held: 1. The Peterson and Erman affidavits are insufficient to establish respondent's § 702 entitlement to judicial review as "[a] person ... *872 adversely affected or aggrieved by agency action within the meaning of a relevant statute." Pp. 3185-3189. (a) To establish a right to relief under § 702, respondent must satisfy two requirements. First, it must show that it has been affected by some "agency action," as defined in § 551(13). See § 701(b)(2). Since neither the FLPMA nor NEPA provides a private right of action, the "agency action" in question must also be "final agency action" under § 704. Second, respondent must prove that it is "adversely affected or aggrieved" by that action "within the meaning of a relevant statute," which requires a showing that the injury complained of falls within the "zone of interests" sought to be protected by the FLPMA and NEPA. Cf. Clarke v. Securities Industry Assn., 479 U.S. 388, 396-397, 107 S.Ct. 750, 755-756, 93 L.Ed.2d 757. Pp. 3185-3186. (b) When a defendant moves for summary judgment on the ground that the plaintiff has failed to establish a right to relief under § 702, the burden is on the plaintiff, under Rule 56(e), to set forth specific facts (even though they may be controverted by the defendant) showing that there is a genuine issue for trial. Cf. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265. Where no such showing is made, the defendant is entitled to judgment as a matter of law. Id., at 323, 106 S.Ct., at 2552. Pp. 3186-3187. (c) The specific facts alleged in the two affidavits do not raise a genuine issue of fact as to whether respondent has a right to relief under § 702. It may be assumed that the WESTLAW ri Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. allegedly affected interests set forth in the affidavits -"recreational use and aesthetic enjoyment" -are sufficiently related to respondent's purposes that respondent meets § 702's requirements if any of its members do. Moreover, each affidavit can be read to complain of a particular "agency action" within § 551's meaning; and whatever "adverse effect" or "aggrievement" is established by the affidavits, meets the "zone of interests" test, since "recreational use and aesthetic enjoyment" are among the sorts of interests that the FLPMA and NEPA are designed to protect. However, there has been no showing that those interests of Peterson and Erman were actually "affected" by petitioners' actions, since the affidavits alleged only that the affiants used unspecified lands "in the vicinity of' immense tracts of territory, only on some portions of which, the record shows, mining activity has occurred or probably will occur by virtue of the complained -of actions. The Court of Appeals erred in ruling that the District Court had to presume specific facts sufficient to support the general allegations of injury to the affiants, since such facts are essential to sustaining the complaint and, under Rule 56(e), had to be set forth by respondent. United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669, 93 S.Ct. 2405, 37 L.Ed.2d 254, distinguished. Pp. 3187-3189. *873 2. Respondent's four additional member affidavits did not establish its right to § 702 review. Pp. 3189-3193. (a) The affidavits are insufficient to enable respondent to challenge the entirety of **3181 petitioners' "land withdrawal review program." That term does not refer to a single BLM order or regulation, or even to a completed universe of particular BLM orders and regulations, but is simply the name by which petitioners have occasionally referred to certain continuing (and thus constantly changing) BLM operations regarding public lands, which currently extend to about 1,250 individual decisions and presumably will include more actions in the future. Thus, the program is not an identifiable "agency action" within § 702's meaning, much less a "final agency action" under § 704. Absent an explicit congressional authorization to correct the administrative process on a systemic level, agency action is not ordinarily considered "ripe" for judicial review under the APA until the scope of the controversy has been reduced to manageable proportions, and its factual components fleshed out, by concrete action that harms or threatens to harm the complainant. It may well be, due to the scope of the "program," that the individual BLM actions identified in the affidavits will not be "ripe" for challenge until some further agency action or inaction more immediately harming respondent occurs. But it is entirely certain that the flaws in the entire 20,962 "program" cannot be laid before the courts for wholesale correction under the APA simply because one of them that is ripe for review adversely affects one of respondent's members. Respondent must seek such programmatic improvements from the BLM or Congress. Pp. 3189-3191. (b) The District Court did not abuse its discretion in declining to admit the supplemental affidavits. Since the affidavits were filed in response to the court's briefing order following the summary judgment hearing, they were untimely under, inter alia, Rule 6(d), which provides that "opposing affidavits may be served not later than 1 day before the hearing." Although Rule 6(b) allows a court, "in its discretion," to extend any filing deadline "for cause shown," a post -deadline extension must be "upon motion made," and is permissible only where the failure to meet the deadline "was the result of excusable neglect." Here, respondent made no motion for extension nor any showing of "cause." Moreover, the failure to timely file did not result from "excusable neglect," since the court's order setting the hearing on the summary judgment motion put respondent on notice that its right to sue was at issue, and that (absent proper motion) the time for filing additional evidentiary materials was, at the latest, the day before the hearing. Even if the court could have overcome these obstacles to admit the affidavits, it was not compelled, in exercising its discretion, to do so. Pp. 3191-3193. *874 3. Respondent is not entitled to seek § 702 review of petitioners' actions in its own right. The brief affidavit submitted to the District Court to show that respondent's ability to fulfill its informational and advocacy functions was "adversely affected" by petitioners' alleged failure to provide adequate information and opportunities for public participation with respect to the land withdrawal review program fails to identify any particular "agency action" that was the source of respondent's alleged injuries, since that program is not an identifiable action or event. Thus, the affidavit does not set forth the specific facts necessary to survive a Rule 56 motion. Pp. 3193-3194. 278 U.S. App. D.C. 320, 878 F.2d 422 (1989), reversed. SCALIA, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and WHITE, O'CONNOR, and KENNEDY, JJ., joined. BLACKMUN, J., filed a dissenting opinion, in which BRENNAN, MARSHALL, and STEVENS, JJ., joined, post, p. 3194. Attorneys and Law Firms WESTLAW Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. 20,962 Acting Solicitor General Roberts argued the cause for petitioners. With him on the briefs were Assistant Attorney General Stewart, Deputy Solicitor General Wallace, Lawrence S. Robbins, Peter R. Steenland, Jr., Anne S. Almy, Fred R. Disheroon, and Vicki L. Plaut. E. Barrett Prettyman, Jr., argued the cause for respondents. With him on the brief were John C. Keeney, Jr., Kathleen C. Zimmerman, and Norman L. Dean, Jr. William Perry Pendley filed a brief for respondents Mountain States Legal Foundation et al. * * Briefs of amici curiae urging reversal were filed for the American Farm Bureau Federation et al. by Kathryn A. Oberly and John J. Rademacher; for the American Mining Congress by Jerry L. Haggard and Gerrie Apker Kurtz; for the National Cattlemen's Association et al. by Constance E. Brooks; for the Pacific Legal Foundation by Ronald A. Zumbrun, Robin L. Rivett, and James S. Burling; and for the Washington Legal Foundation et al. by Terence P. Ross, Daniel J. Popeo, and Richard A. Samp. Briefs of amici curiae urging affirmance were filed for the State of California et al. by John K. Van de Kamp, Attorney General of California, Andrea Sheridan Ordin, Chief Assistant Attorney General, and Craig C. Thompson, Susan L. Durbin, Clifford L. Rechtschaffen, and Nilda M. Mesa, Deputy Attorney Generals, and for the Attorneys General for their respective States as follows: Robert A. Butterworth of Florida, Lacy H. Thornburg of North Carolina, Anthony J. Celebrezze, Jr., of Ohio, Jeffrey L. Amestoy of Vermont, and Joseph B. Meyer of Wyoming; and for the Wilderness Society et al. by Bruce J. Ennis, Jr. Opinion *875 Justice SCALIA delivered the opinion of the Court. In this case we must decide whether respondent, the National Wildlife Federation **3182 (hereinafter respondent), is a proper party to challenge actions of the Federal Government relating to certain public lands. I Respondent filed this action in 1985 in the United States District Court for the District of Columbia against Submitted into the public record for item(s) PZ.1 on 12/13/2018 , City Clerk petitioners the United States Department of the Interior, the Secretary of the Interior, and the Director of the Bureau of Land Management (BLM), an agency within the Department. In its amended complaint, respondent alleged that petitioners had violated the Federal Land Policy and Management Act of 1976 (FLPMA), 90 Stat. 2744, 43 U.S.C. § 1701 et seq. (1982 ed.), the National Environmental Policy Act of 1969 (NEPA), 83 Stat. 852, 42 U.S.C. § 4321 et seq., and § 10(e) of the Administrative Procedure Act (APA), 5 U.S.C. § 706, in the course of administering what the complaint called the "land withdrawal review program" of the BLM. Some background information concerning that program is necessary to an understanding of this dispute. In various enactments, Congress empowered United States citizens to acquire title to, and rights in, vast portions of federally owned land. See, e.g., Rev.Stat. § 2319, 30 U.S.C. § 22 et seq. (Mining Law of 1872); 41 Stat. 437, as amended, 30 U.S.C. § 181 et seq. (Mineral Leasing Act of 1920). Congress also provided means, however, for the Executive to remove public lands from the operation of these statutes. The Pickett Act, 36 Stat. 847, 43 U.S.C. § 141 (1970 ed.), repealed, 90 Stat. 2792 (1976), authorized the President "at any time in his discretion, temporarily [to] withdraw from settlement, location, sale, or entry any of the *876 public lands of the United States ... and reserve the same for water -power sites, irrigation, classification of lands, or other public purposes...." Acting under this and under the Taylor Grazing Act of 1934, ch. 865, 48 Stat. 1269, as amended, 43 U.S.C. § 315f, which gave the Secretary of the Interior authority to "classify" public lands as suitable for either disposal or federal retention and management, President Franklin Roosevelt withdrew all unreserved public land from disposal until such time as they were classified. Exec. Order No. 6910, Nov. 26, 1934; Exec. Order No. 6964, Feb. 5, 1935. In 1936, Congress amended § 7 of the Taylor Grazing Act to authorize the Secretary of the Interior "to examine and classify any lands" withdrawn by these orders and by other authority as "more valuable or suitable" for other uses "and to open such lands to entry, selection, or location for disposal in accordance with such classification under applicable public -land laws." 49 Stat. 1976, 43 U.S.C. § 315f (1982 ed.). The amendment also directed that "[s]uch lands shall not be subject to disposition, settlement, or occupation until after the same have been classified and opened to entry." Ibid. The 1964 classification and multiple use Act, 78 Stat. 986, 43 U.S.C. §§ 1411-1418 (1970 ed.) (expired 1970), gave the Secretary further authority to classify lands for the purpose of either disposal or retention by the Federal Government. WESTLAW th„. Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. Management of the public lands under these various laws became chaotic. The Public Land Law Review Commission, established by Congress in 1964 to study the matter, 78 Stat. 982, determined in 1970 that "virtually all" of the country's public domain, see Public Land Law Review Commission, One Third of the Nation's Land 52 (1970)-about one-third of the land within the United States, see id., at 19-had been withdrawn or classified for retention; that it was difficult to determine "the extent of existing Executive withdrawals and the degree to which withdrawals overlap each other," id., at 52; and that there were inadequate records to show the purposes *877 of withdrawals and the permissible public uses. Ibid. Accordingly, it recommended that "Congress should provide for a careful review of (1) all Executive withdrawals and reservations, and (2) BLM retention and disposal classifications under the Classification and Multiple Use Act of 1964." Ibid. **3183 In 1976, Congress passed the FLPMA, which repealed many of the miscellaneous laws governing disposal of public land, 43 U.S.C. § 1701 et seg. (1982 ed.), and established a policy in favor of retaining public lands for multiple use management. It directed the Secretary to "prepare and maintain on a continuing basis an inventory of all public lands and their resource and other values," § 1711(a), required land use planning for public lands, and established criteria to be used for that purpose, § 1712. It provided that existing classifications of public lands were subject to review in the land use planning process, and that the Secretary could "modify or terminate any such classification consistent with such land use plans." § 1712(d). It also authorized the Secretary to "make, modify, extend or revoke" withdrawals. § 1714(a). Finally it directed the Secretary, within 15 years, to review withdrawals in existence in 1976 in 11 Western States, § 1714(1 )(1), and to "determine whether, and for how long, the continuation of the existing withdrawal of the lands would be, in his judgment, consistent with the statutory objectives of the programs for which the lands were dedicated and of the other relevant programs," § 1714(1 )(2). The activities undertaken by the BLM to comply with these various provisions constitute what respondent's amended complaint styles the BLM's "land withdrawal review program," which is the subject of the current litigation. Pursuant to the directives of the FLPMA, petitioners engage in a number of different types of administrative action with respect to the various tracts of public land within the United States. First, the BLM conducts the review and recommends the determinations required by § 1714(1) with *878 respect to withdrawals in 11 Western States. The law requires the Secretary to "report his WESTLAW Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk 20,962 recommendations to the President, together with statements of concurrence or nonconcurrence submitted by the heads of the departments or agencies which administer the lands"; the President must in turn submit this report to the Congress, together with his recommendation "for action by the Secretary, or for legislation." § 1714(1 )(2). The Secretary has submitted a number of reports to the President in accordance with this provision. Second, the Secretary revokes some withdrawals under § 204(a) of the Act, which the Office of the Solicitor has interpreted to give the Secretary the power to process proposals for revocation of withdrawals made during the "ordinary course of business." U.S. Dept. of the Interior, Memorandum from the Office of the Solicitor, Oct. 30, 1980. These revocations are initiated in one of three manners: An agency or department holding a portion of withdrawn land that it no longer needs may file a notice of intention to relinquish the lands with the BLM. Any member of the public may file a petition requesting revocation. And in the case of lands held by the BLM, the BLM itself may initiate the revocation proposal. App. 56-57. Withdrawal revocations may be made for several reasons. Some are effected in order to permit sale of the land; some for record -clearing purposes, where the withdrawal designation has been superseded by congressional action or overlaps with another withdrawal designation; some in order to restore the land to multiple use management pursuant to § 102(a)(7) of the FLPMA, 43 U.S.C. § 1701(a)(7) (1982 ed.). App. 142-145. Third, the Secretary engages in the ongoing process of classifying public lands, either for multiple use management, pt. 2420, for disposal, pt. 2430, or for other uses. Classification decisions may be initiated by petition, pt. 2450, or by the BLM itself, pt. 2460. Regulations promulgated *879 by the Secretary prescribe the procedures to be followed in the case of each type of classification determination. II In its complaint, respondent averred generally that the reclassification of some withdrawn **3184 lands and the return of others to the public domain would open the lands up to mining activities, thereby destroying their natural beauty. Respondent alleged that petitioners, in the course of administering the Nation's public lands, had violated the FLPMA by failing to "develop, maintain, Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. and, when appropriate, revise land use plans which provide by tracts or areas for the use of the public lands," 43 U.S.C. § 1712(a) (1982 ed.); failing to submit recommendations as to withdrawals in the 11 Western States to the President, § 1714(1 ); failing to consider multiple uses for the disputed lands, § 1732(a), focusing inordinately on such uses as mineral exploitation and development; and failing to provide public notice of decisions, §§ 1701(a)(5), 1712(c)(9), 1712(0, and 1739(e). Respondent also claimed that petitioners had violated NEPA, which requires federal agencies to "include in every recommendation or report on ... major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on ... the environmental impact of the proposed action." 42 U.S.C. § 4332(2)(C) (1982 ed.). Finally, respondent alleged that all of the above actions were "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law," and should therefore be set aside pursuant to § 10(e) of the APA, 5 U.S.C. § 706. Appended to the amended complaint was a schedule of specific land -status determinations, which the complaint stated had been "taken by defendants since January 1, 1981"; each was identified by a listing in the Federal Register. In December 1985, the District Court granted respondent's motion for a preliminary injunction prohibiting petitioners from "[m]odifying, terminating or altering any withdrawal, classification, or other designation governing the protection *880 of lands in the public domain that was in effect on January 1, 1981," and from "[flaking any action inconsistent" with any such withdrawal, classification, or designation. App. to Pet. for Cert. 185a. In a subsequent order, the court denied petitioners' motion under Rule 12(b) of the Federal Rules of Civil Procedure to dismiss the complaint for failure to demonstrate standing to challenge petitioners' actions under the APA, 5 U.S.C. § 702. App. to Pet. for Cert. 183a. The Court of Appeals affirmed both orders. National Wildlife Federation v. Burford, 266 U.S.App.D.C. 241, 835 F.2d 305 (1987). As to the motion to dismiss, the Court of Appeals found sufficient to survive the motion the general allegation in the amended complaint that respondent's members used environmental resources that would be damaged by petitioners' actions. See id., at 248, 835 F.2d, at 312. It held that this allegation, fairly read along with the balance of the complaint, both identified particular land -status actions that respondent sought to challenge -since at least some of the actions complained of were listed in the complaint's appendix of Federal Register references -and asserted harm to respondent's members attributable to those particular actions. Id., at 249, 835 F.2d, at 313. To support WESTLAW Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk 20,962 the latter point, the Court of Appeals pointed to the affidavits of two of respondent's members, Peggy Kay Peterson and Richard Erman, which claimed use of land "in the vicinity" of the land covered by two of the listed actions. Thus, the Court of Appeals concluded, there was "concrete indication that [respondent's] members use specific lands covered by the agency's Program and will be adversely affected by the agency's actions," and the complaint was "sufficiently specific for purposes of a motion to dismiss." Ibid. On petitions for rehearing, the Court of Appeals stood by its denial of the motion to dismiss and directed the parties and the District Court "to proceed with this litigation with dispatch.", National Wildlife Federation v. Burford, 269 U.S.App.D.C. 271, 272, 844 F.2d 889, 890 (1988). *881 Back before the District Court, petitioners again claimed, this time by means of a motion for summary judgment under Rule 56 **3185 of the Federal Rules of Civil Procedure (which motion had been outstanding during the proceedings before the Court of Appeals), that respondent had no standing to seek judicial review of petitioners' actions under the APA. After argument on this motion, and in purported response to the court's postargument request for additional briefing, respondent submitted four additional member affidavits pertaining to the issue of standing. The District Court rejected them as untimely, vacated the injunction and granted the Rule 56 motion to dismiss. It noted that neither its earlier decision nor the Court of Appeals' affirmance controlled the question, since both pertained to a motion under Rule 12(b). It found the Peterson and Erman affidavits insufficient to withstand the Rule 56 motion, even as to judicial review of the particular classification decisions to which they pertained. And even if they had been adequate for that limited purpose, the court said, they could not support respondent's attempted APA challenge to "each of the 1250 or so individual classification terminations and withdrawal revocations" effected under the land withdrawal review program. National Wildlife Federation v. Burford, 699 F.Supp. 327, 332 (DC 1988). This time the Court of Appeals reversed. National Wildlife Federation v. Burford, 278 U.S.App.D.C. 320, 878 F.2d 422 (1989). It both found the Peterson and Erman affidavits sufficient in themselves and held that it was an abuse of discretion not to consider the four additional affidavits as well.' The Court of Appeals also concluded that *882 standing to challenge individual classification and withdrawal decisions conferred standing to challenge all such decisions under the land withdrawal review program. We granted certiorari. 493 U.S. 1042, 110 S.Ct. 834, 107 L.Ed.2d 830 (1990). Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. 20,962 III A 111 12i We first address respondent's claim that the Peterson and Erman affidavits alone suffice to establish respondent's right to judicial review of petitioners' actions. Respondent does not contend that either the FLPMA or NEPA provides a private right of action for violations of its provisions. Rather, respondent claims a right to judicial review under § 10(a) of the APA, which provides: "A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof." 5 U.S.C. § 702. This provision contains two separate requirements. First, the person claiming a right to sue must identify some "agency action" that affects him in the specified fashion; it is judicial review "thereof' to which he is entitled. The meaning of "agency action" for purposes of § 702 is set forth in 5 U.S.C. § 551(13), see 5 U.S.C. § 701(b)(2) ("For the purpose of this chapter ... `agency action' ha[s] the meanin[g] given ... by section 551 of this title"), which defines the term as "the whole or a part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act," 5 U.S.C. § 551(13). When, as here, review is sought not pursuant to specific authorization in the substantive statute, but only under the general review provisions of the APA, the "agency action" in question must be "final agency action." See 5 U.S.C. § 704 ("Agency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court are subject to judicial review" (emphasis added). **3186 *883 131 Second, the party seeking review under § 702 must show that he has "suffer[ed] legal wrong" because of the challenged agency action, or is "adversely affected or aggrieved" by that action "within the meaning of a relevant statute." Respondent does not assert that it has suffered "legal wrong," so we need only discuss the meaning of "adversely affected or aggrieved ... within the meaning of a relevant statute." As an original matter, it might be thought that one cannot be Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk "adversely affected or aggrieved within the meaning" of a statute unless the statute in question uses those terms (or terms like them) -as some pre-APA statutes in fact did when conferring rights of judicial review. See, e.g., Federal Communications Act of 1934, § 402(b)(2), 48 Stat. 1093, as amended, 47 U.S.C. § 402(b)(6) (1982 ed.). We have long since rejected that interpretation, however, which would have made the judicial review provision of the APA no more than a restatement of pre-existing law. Rather, we have said that to be "adversely affected or aggrieved ... within the meaning" of a statute, the plaintiff must establish that the injury he complains of (his aggrievement, or the adverse effect upon him ) falls within the "zone of interests" sought to be protected by the statutory provision whose violation forms the legal basis for his complaint. See Clarke v. Securities Industry Assn., 479 U.S. 388, 396-397, 107 S.Ct. 750, 755-756, 93 L.Ed.2d 757 (1987). Thus, for example, the failure of an agency to comply with a statutory provision requiring "on the record" hearings would assuredly have an adverse effect upon the company that has the contract to record and transcribe the agency's proceedings; but since the provision was obviously enacted to protect the interests of the parties to the proceedings and not those of the reporters, that company would not be "adversely affected within the meaning" of the statute. Because this case comes to us on petitioners' motion for summary judgment, we must assess the record under the *884 standard set forth in Rule 56 of the Federal Rules of Civil Procedure. Rule 56(c) states that a party is entitled to summary judgment in his favor "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Rule 56(e) further provides: "When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by WESTLAW Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party." j41 As we stated in Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986), "the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Id., at 322, 106 S.Ct., at 2552. Where no such showing is made, "[t]he moving party is `entitled to a judgment as a matter of law' because the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof." Id., at 323, 106 S.Ct., at 2552. 151 161 These standards are fully applicable when a defendant moves for summary judgment, in a suit brought under § 702, on the ground that the plaintiff has failed to show that he is "adversely affected or aggrieved by agency action within the meaning of a relevant statute." The burden is on the party seeking review under § 702 to set forth **3187 specific facts (even though they may be controverted by the Government) showing that he has satisfied its terms. *885 Sierra Club v. Morton, 405 U.S. 727, 740, 92 S.Ct. 1361, 1369, 31 L.Ed.2d 636 (1972). Celotex made clear that Rule 56 does not require the moving party to negate the elements of the nonmoving party's case; to the contrary, "regardless of whether the moving party accompanies its summary judgment motion with affidavits, the motion may, and should, be granted so long as whatever is before the district court demonstrates that the standard for the entry of summary judgment, as set forth in Rule 56(c), is satisfied." 477 U.S., at 323, 106 S.Ct., at 2553. 171 We turn, then, to whether the specific facts alleged in the two affidavits considered by the District Court raised WESTLAW Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk 20,962 a genuine issue of fact as to whether an "agency action" taken by petitioners caused respondent to be "adversely affected or aggrieved ... within the meaning of a relevant statute." We assume, since it has been uncontested, that the allegedly affected interests set forth in the affidavits -"recreational use and aesthetic enjoyment" -are sufficiently related to the purposes of respondent association that respondent meets the requirements of § 702 if any of its members do. Hunt v. Washington State Apple Advertising Comm'n, 432 U.S. 333, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977). As for the "agency action" requirement, we think that each of the affidavits can be read, as the Court of Appeals believed, to complain of a particular "agency action" as that term is defined in § 551. The parties agree that the Peterson affidavit, judging from the geographic area it describes, must refer to that one of the BLM orders listed in the appendix to the complaint that appears at 49 Fed.Reg. 19904-19905 (1984), an order captioned W-6228 and dated April 30, 1984, terminating the withdrawal classification of some 4,500 acres of land in that area. See, e.g., Brief for Petitioners 8-10. The parties also appear to agree, on the basis of similar deduction, that the Erman affidavit refers to the BLM order listed in the appendix that appears at *886 47 Fed.Reg. 7232-7233 1982), an order captioned Public Land Order 6156 and dated February 18, 1982. We also think that whatever "adverse effect" or "aggrievement" is established by the affidavits was "within the meaning of the relevant statute"-i.e., met the "zone of interests" test. The relevant statute, of course, is the statute whose violation is the gravamen of the complaint -both the FLPMA and NEPA. We have no doubt that "recreational use and aesthetic enjoyment" are among the sorts of interests those statutes were specifically designed to protect. The only issue, then, is whether the facts alleged in the affidavits showed that those interests of Peterson and Erman were actually affected. The Peterson affidavit averred: "My recreational use and aesthetic enjoyment of federal lands, particularly those in the vicinity of South Pass -Green Mountain, Wyoming have been and continue to be adversely affected in fact by the unlawful actions of the Bureau and the Department. In particular, the South Pass -Green Mountain area of Wyoming has been opened to the staking of mining claims and oil and gas leasing, an action which threatens the aesthetic beauty and wildlife habitat potential of these lands." App. to Pet. for Cert. 191a. Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. 20,962 Erman's affidavit was substantially the same as Peterson's, with respect to all except the area involved; he claimed use of land "in the vicinity of Grand Canyon National Park, the Arizona Strip (Kanab Plateau), and the Kaibab National Forest." Id., at 187a. The District Court found the Peterson affidavit inadequate for the following reasons: "Peterson ... claims that she uses federal lands in the vicinity of the South Pass- **3188 Green Mountain area of Wyoming for recreational purposes and for aesthetic enjoyment and that her recreational and aesthetic enjoyment *887 has been and continues to be adversely affected as the result of the decision of BLM to open it to the staking of mining claims and oil and gas leasing.... This decision [W-6228] opened up to mining approximately 4500 acres within a two million acre area, the balance of which, with the exception of 2000 acres, has always been open to mineral leasing and mining.... There is no showing that Peterson's recreational use and enjoyment extends to the particular 4500 acres covered by the decision to terminate classification to the remainder of the two million acres affected by the termination. All she claims is that she uses lands 'in the vicinity.' The affidavit on its face contains only a bare allegation of injury, and fails to show specific facts supporting the affiant's allegation." 699 F.Supp., at 331 (emphasis in original). The District Court found the Erman affidavit "similarly flawed." "The magnitude of Erman's claimed injury stretches the imagination.... [T]he Arizona Strip consists of all lands in Arizona north and west of the Colorado River on approximately 5.5 million acres, an area one -eighth the size of the State of Arizona. Furthermore, virtually the entire Strip is and for many years has been open to uranium and other metalliferous mining. The revocation of withdrawal [in Public Land Order 6156] concerned only non -metalliferous mining in the western one-third of the Arizona Strip, an area possessing no potential for non -metalliferous mining." Id., at 332. The Court of Appeals disagreed with the District Court's assessment as to the Peterson affidavit (and thus found it unnecessary to consider the Erman affidavit) for the following reason: "If Peterson was not referring to lands in this 4500-acre affected area, her allegation of impairment to her use and enjoyment would be meaningless, or perjurious.... *888 [T]he trial court overlooks the fact that unless WESTLAW Submitted into the public record for item(s) PZ.1. . on 12/13/2018 , City Clerk Peterson's language is read to refer to the lands affected by the Program, the affidavit is, at best, a meaningless document. "At a minimum, Peterson's affidavit is ambiguous regarding whether the adversely affected lands are the ones she uses. When presented with ambiguity on a motion for summary judgment, a District Court must resolve any factual issues of controversy in favor of the non-moving party.... This means that the District Court was obliged to resolve any factual ambiguity in favor of NWF, and would have had to assume, for the purposes of summary judgment, that Peterson used the 4500 affected acres." 278 U.S.App.D.C., at 329, 878 F.2d, at 431. j81 That is not the law. In ruling upon a Rule 56 motion, "a District Court must resolve any factual issues of controversy in favor of the non-moving party" only in the sense that, where the facts specifically averred by that party contradict facts specifically averred by the movant, the motion must be denied. That is a world apart from "assuming" that general averments embrace the "specific facts" needed to sustain the complaint. As set forth above, Rule 56(e) provides that judgment "shall be entered" against the nonmoving party unless affidavits or other evidence "set forth specific facts showing that there is a genuine issue for trial." The object of this provision is not to replace conclusory allegations of the complaint or answer with conclusory allegations of an affidavit. Cf. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986) ("[T]he plaintiff could not rest on his allegations of a conspiracy to get to a jury without 'any significant probative evidence tending to support the complaint' "), quoting First National Bank of Ariz. v. Cities Service Co., 391 U.S. 253, 290, 88 S.Ct. 1575, 1593, 20 L.Ed.2d 569 (1968). Rather, the purpose of Rule 56 is to enable a party who believes there is no genuine dispute as to a specific fact essential to the **3189 other side's case to demand at least one *889 sworn averment of that fact before the lengthy process of litigation continues. At the margins there is some room for debate as to how "specific" must be the "specific facts" that Rule 56(e) requires in a particular case. But where the fact in question is the one put in issue by the § 702 challenge here -whether one of respondent's members has been, or is threatened to be, "adversely affected or aggrieved" by Government action -Rule 56(e) is assuredly not satisfied by averments which state only that one of respondent's members uses unspecified portions of an immense tract of territory, on some portions of which mining activity has occurred or probably will occur by virtue of the governmental action. It will not do to "presume" the Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. 20,962 missing facts because without them the affidavits would not establish the injury that they generally allege. That converts the operation of Rule 56 to a circular promenade: plaintiffs complaint makes general allegation of injury; defendant contests through Rule 56 existence of specific facts to support injury; plaintiff responds with affidavit containing general allegation of injury, which must be deemed to constitute averment of requisite specific facts since otherwise allegation of injury would be unsupported (which is precisely what defendant claims it is). Respondent places great reliance, as did the Court of Appeals, upon our decision in United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669, 93 S.Ct. 2405, 37 L.Ed.2d 254 (1973). The SCRAP opinion, whose expansive expression of what would suffice for § 702 review under its particular facts has never since been emulated by this Court, is of no relevance here, since it involved not a Rule 56 motion for summary judgment but a Rule 12(b) motion to dismiss on the pleadings. The latter, unlike the former, presumes that general allegations embrace those specific facts that are necessary to support the claim. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957). *890 IV We turn next to the Court of Appeals' alternative holding that the four additional member affidavits proffered by respondent in response to the District Court's briefmg order established its right to § 702 review of agency action. A j91 It is impossible that the affidavits would suffice, as the Court of Appeals held, to enable respondent to challenge the entirety of petitioners' so-called "land withdrawal review program." That is not an "agency action" within the meaning of § 702, much less a "final agency action" within the meaning of § 704. The term "land withdrawal review program" (which as far as we know is not derived from any authoritative text) does not refer to a single BLM order or regulation, or even to a completed universe of particular BLM orders and regulations. It is simply the WESTLAW Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk name by which petitioners have occasionally referred to the continuing (and thus constantly changing) operations of the BLM in reviewing withdrawal revocation applications and the classifications of public lands and developing land use plans as required by the FLPMA. It is no more an identifiable "agency action" -much less a "final agency action" -than a "weapons procurement program" of the Department of Defense or a "drug interdiction program" of the Drug Enforcement Administration. As the District Court explained, the "land withdrawal review program" extends to, currently at least, "1250 or so individual classification terminations and withdrawal revocations." 699 F.Supp., at 332.2 **3190 *891 j101 Respondent alleges that violation of the law is rampant within this program -failure to revise land use plans in proper fashion, failure to submit certain recommendations to Congress, failure to consider multiple use, inordinate focus upon mineral exploitation, failure to provide required public notice, failure to provide adequate environmental impact statements. Perhaps so. But respondent cannot seek wholesale improvement of this program by court decree, rather than in the offices of the Department or the halls of Congress, where programmatic improvements are normally made. Under the terms of the APA, respondent must direct its attack against some particular "agency action" that causes it harm. Some statutes permit broad regulations to serve as the "agency action," and thus to be the object of judicial review directly, even before the concrete effects normally required for APA review are felt. Absent such a provision, however, a regulation is not ordinarily considered the type of agency action "ripe" for judicial review under the APA until the scope of the controversy has been reduced to more manageable proportions, and its factual components fleshed out, by some concrete action applying the regulation to the claimant's situation in a fashion that harms or threatens to harm him. (The major exception, of course, is a substantive rule which as a practical matter requires the plaintiff to adjust his conduct immediately. Such agency action is "ripe" for review at once, whether or not explicit statutory review apart from the APA is provided. See Abbott Laboratories v. Gardner, 387 U.S. 136, 152-154, 87 S.Ct. 1507, 1517-1518, 18 L.Ed.2d 681 (1967); Gardner v. Toilet Goods Assn., Inc., 387 U.S. 167, 171-173, 87 S.Ct. 1526, 1528-1530, 18 L.Ed.2d 704 (1967). Cf. Toilet *892 Goods Assn., Inc. v. Gardner, 387 U.S. 158, 164-166, 87 S.Ct. 1520, 1524-1526, 18 L.Ed.2d 697 (1967).) 1111 In the present case, the individual actions of the BLM identified in the six affidavits can be regarded as rules of general applicability (a "rule" is defined in the APA as agency action of "general or particular applicability and Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. future effect," 5 U.S.C. § 551(4) (emphasis added)) announcing, with respect to vast expanses of territory that they cover, the agency's intent to grant requisite permission for certain activities, to decline to interfere with other activities, and to take other particular action if requested. It may well be, then, that even those individual actions will not be ripe for challenge until some further agency action or inaction more immediately harming the plaintiff occurs.' But it is at least entirely *893 certain that the flaws in the entire "program" -consisting principally of the many individual actions **3191 referenced in the complaint, and presumably actions yet to be taken as well -cannot be laid before the courts for wholesale correction under the APA, simply because one of them that is ripe for review adversely affects one of respondent's members.' *894 1121 The case -by -case approach that this requires is understandably frustrating to an organization such as respondent, which has as its objective across-the-board protection of our Nation's wildlife and the streams and forests that support it. But this is the traditional, and remains the normal, mode of operation of the courts. Except where Congress explicitly provides for our correction of the administrative process at a higher level of generality, we intervene in the administration of the laws only when, and to the extent that, a specific "final agency action" has an actual or immediately threatened effect. Toilet Goods Assn., 387 U.S., at 164-166, 87 S.Ct., at 1524-1526. Such an intervention may ultimately have the effect of requiring a regulation, a series of regulations, or even a whole "program" to be revised by the agency in order to avoid the unlawful result that the court discerns. But it is assuredly not as swift or as immediately far-reaching a corrective process as those interested in systemic improvement would desire. Until confided to us, however, more sweeping actions are for the other branches. 1131 The Court of Appeals' reliance upon the supplemental affidavits was wrong for a **3192 second reason: The District Court did not abuse its discretion in declining to admit them. Petitioners filed their motion for summary judgment in September 1986; respondent filed an opposition but did not submit any new evidentiary materials at that time. On June 27, 1988, after the case had made its way for the first time through the Court of Appeals, the District Court announced that it would hold a WESTLAW Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk 20,962 hearing on July 22 on "the outstanding motions for summary judgment," which included petitioners' motion challenging respondent's § 702 standing. The hearing was held and, as noted earlier, the District Court issued an order directing respondent to file "a supplemental memorandum regarding *895 the issue of its standing to proceed." Record, Doc. No. 274. Although that plainly did not call for the submission of new evidentiary materials, it was in purported response to this order, on August 22, 1988, that respondent submitted (along with the requested legal memorandum) the additional affidavits. The only explanation for the submission (if it can be called an explanation) was contained in a footnote to the memorandum, which simply stated that "NWF now has submitted declarations on behalf of other members of NWF who have been injured by the challenged actions of federal defendants." Record, Doc. No. 278, p. 18, n. 21. In its November 4, 1988, ruling granting petitioners' motion, the District Court rejected the additional affidavits as "untimely and in violation of [the court's briefing] Order." 699 F.Supp., at 328, n. 3. Respondent's evidentiary submission was indeed untimely, both under Rule 56, which requires affidavits in opposition to a summary judgment motion to be served "prior to the day of the hearing," Fed.Rule Civ.Proc. 56(c), and under Rule 6(d), which states more generally that "[w]hen a motion is supported by affidavit, ... opposing affidavits may be served not later than 1 day before the hearing, unless the court permits them to be served at some other time." Rule 6(b) sets out the proper approach in the case of late filings: "When by these rules or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time, the court for cause shown may at any time in its discretion (1) with or without motion or notice order the period enlarged if request therefor is made before the expiration of the period originally prescribed or as extended by a previous order, or (2) upon motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect...." Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. 20,962 This provision not only specifically confers the "discretion" relevant to the present issue, but also provides the mechanism *896 by which that discretion is to be invoked and exercised. First, any extension of a time limitation must be "for cause shown." Second, although extensions before expiration of the time period may be "with or without motion or notice," any postdeadline extension must be "upon motion made," and is permissible only where the failure to meet the deadline "was the result of excusable neglect." Thus, in order to receive the affidavits here, the District Court would have had to regard the very filing of the late document as the "motion made" to file it;5 it would have had to interpret "cause *897 shown" to mean merely **3193 "cause," since respondent made no "showing" of cause at all; and finally, it would have had to find as a substantive matter that there was indeed "cause" for the late filing, and that the failure to file on time "was the result of excusable neglect." This last substantive obstacle is the greatest of all. The Court of Appeals presumably thought it was overcome because "the papers on which the trial court relied were two years old by the time it requested supplemental memoranda" and because "there was no indication prior to the trial court's request that [respondent] should have doubted the adequacy of the affidavits it had already submitted." 278 U.S.App.D.C., at 331, 878 F.2d, at 433. We do not understand the relevance of the first point; the passage of so long a time as two years suggests, if anything, that respondent had more than the usual amount of time to prepare its response to the motion, and was more than moderately remiss in waiting until after the last moment. As to the suggestion of unfair surprise: A litigant is never justified in assuming that the court has made up its mind until the court expresses itself to that effect, and a litigant's failure to buttress its position because of confidence in the strength of that position is always indulged in at the litigant's own risk. In any case, whatever erroneous expectations respondent may have had were surely dispelled by the District Court's order in June 1988 announcing that the hearing on petitioners' motion would be held one month later. At least when that order issued, respondent was on notice that its right to sue was at issue, and that (absent proper motion) the time for filing any additional evidentiary materials was, at the latest, the day before the hearing. *898 Perhaps it is true that the District Court could have overcome all the obstacles we have described -apparent lack of a motion, of a showing, and of excusable neglect -to admit the affidavits at issue here. But the proposition that it was compelled to receive them -that it was an abuse of discretion to reject them -cannot be WESTLAW accepted. Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk V "41 Respondent's final argument is that we should remand this case for the Court of Appeals to decide whether respondent may seek § 702 review of petitioners' actions in its own right, rather than derivatively through its members. Specifically, it points to allegations in the amended complaint that petitioners unlawfully failed to publish regulations, to invite public participation, and to prepare an environmental impact statement with respect to the "land withdrawal review program" as a whole. In order to show that it is a "person ... adversely affected or aggrieved" by these failures, it submitted to the District Court a brief affidavit (two pages in the record) by one of its vice presidents, Lynn A. Greenwalt, who stated that respondent's mission is to "inform its members and the general public about conservation issues" and to advocate improvements in laws and administrative practices "pertaining to the **3194 protection and enhancement of federal lands," App. to Pet. for Cert. 193a-194a; and that its ability to perform this mission has been impaired by petitioners' failure "to provide adequate information and opportunities for public participation with respect to the Land Withdrawal Review Program." Id., at 194a. The District Court found this affidavit insufficient to establish respondent's right to seek judicial review, since it was "conclusory and completely devoid of specific facts." 699 F.Supp., at 330. The Court of Appeals, having reversed the District Court on the grounds discussed above, did not address the issue. We agree with the District Court's disposition. Even assuming that the affidavit set forth "specific facts," *899 Fed.R.Civ.Proc. 56(e), adequate to show injury to respondent through the deprivation of information; and even assuming that providing information to organizations such as respondent was one of the objectives of the statutes allegedly violated, so that respondent is "aggrieved within the meaning" of those statutes; nonetheless, the Greenwalt affidavit fails to identify any particular "agency action" that was the source of these injuries. The only sentences addressed to that point are as follows: "NWF's ability to meet these obligations to its members has been significantly impaired by the failure of the Bureau of Land Management and the Department of the Interior to provide adequate Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. 20,962 information and opportunities for public participation with respect to the Land Withdrawal Review Program. These interests of NWF have been injured by the actions of the Bureau and the Department and would be irreparably harmed by the continued failure to provide meaningful opportunities for public input and access to information regarding the Land Withdrawal Review Program." App. to Pet. for Cert. 194a. As is evident, this is even more deficient than the Peterson and Erman affidavits, which contained geographical descriptions whereby at least an action as general as a particular classification decision could be identified as the source of the grievance. As we discussed earlier, the "land withdrawal review program" is not an identifiable action or event. With regard to alleged deficiencies in providing information and permitting public participation, as with regard to the other illegalities alleged in the complaint, respondent cannot demand a general judicial review of the BLM's day-to-day operations. The Greenwalt affidavit, like the others, does not set forth the specific facts necessary to survive a Rule 56 motion. *900 * * * For the foregoing reasons, the judgment of the Court of Appeals is reversed. It is so ordered. Justice BLACKMUN, with whom Justice BRENNAN, Justice MARSHALL, and Justice STEVENS join, dissenting. In my view, the affidavits of Peggy Kay Peterson and Richard Loren Erman, in conjunction with other record evidence before the District Court on the motions for summary judgment, were sufficient to establish the standing of the National Wildlife Federation (Federation or NWF) to bring this suit. I also conclude that the District Court abused its discretion by refusing to consider supplemental affidavits filed after the hearing on the parties' cross -motions for summary judgment. I therefore would affirm the judgment of the Court of Appeals. WESTLAW Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk I The Federation's asserted injury in this case rested upon its claim that the Government actions challenged here would lead to increased mining on public lands; that the mining would result in damage to the environment; and that the recreational opportunities of NWF's members would consequently be diminished. Abundant record evidence supported the Federation's assertion that on lands newly opened for mining, mining in fact **3195 would occur.' Similarly, the record furnishes ample support for NWF's contention that mining activities can be expected to cause severe environmentaldamage *901 to the affected lands.2 The District Court held, however, that the Federation had not adequately identified particular members who were harmed by the consequences of the Government's actions. Although two of NWF's members expressly averred that their recreational activities had been impaired, the District Court concluded that these affiants had not identified with sufficient precision the particular sites on which their injuries occurred. The majority, like the District Court, holds that the averments of Peterson and Erman were insufficiently specific to withstand a motion for summary judgment. Although these affidavits were not models of precision, I believe that they were adequate at least to create a genuine issue of fact as to the organization's injury. *902 As the Court points out, the showing (whether as to standing or the merits) required to overcome a motion for summary judgment is more extensive than that required in the context of a motion to dismiss. The principal difference is that in the former context evidence is required, while in the latter setting the litigant may rest upon the allegations of his complaint. See Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986) (Federal Rule of Civil Procedure 56(e) "requires the nonmoving party to go beyond the pleadings"). In addition, Rule 56(e) requires that the party opposing summary judgment "must set forth specific facts showing that there is a genuine issue for trial" (emphasis added). Thus, Courts of Appeals have reiterated that "conclusory" allegations unsupported by "specific" evidence will be insufficient to establish a genuine issue of fact.' The requirement that evidence be submitted is satisfied here: The Federation has offered the sworn statements of two of its members. There remains the question whether the allegations in these affidavits were sufficiently precise to satisfy the requirements of Rule 56(e). The line of demarcation between "specific" and "conclusory" allegations is hardly a bright one. But, to my mind, the Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. 20,962 allegations contained in the Peterson and Erman affidavits, in the context of the record as a whole, were adequate **3196 to defeat a motion for summary judgment. These affidavits, as the majority acknowledges, were at least sufficiently precise to enable Bureau of Land Management (BLM) officials to identify the particular termination orders to which the affiants referred. See ante, at 3187. And the affiants averred that their "recreational use and aesthetic enjoyment of federal lands ... have been and continue to be adversely affected in fact by the unlawful *903 actions of the Bureau and the Department." App. to Pet. for Cert. 188a (Erman affidavit), 191a (Peterson affidavit). The question, it should be emphasized, is not whether the NWF has proved that it has standing to bring this action, but simply whether the materials before the District Court established "that there is a genuine issue for trial," see Rule 56(e), concerning the Federation's standing. In light of the principle that "[o]n summary judgment the inferences to be drawn from the underlying facts contained in [evidentiary] materials must be viewed in the light most favorable to the party opposing the motion," United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962), I believe that the evidence before the District Court raised a genuine factual issue as to NWF's standing to sue. No contrary conclusion is compelled by the fact that Peterson alleged that she uses federal lands "in the vicinity of South Pass -Green Mountain, Wyoming," App. to Pet. for Cert. 191a, rather than averring that she uses the precise tract that was recently opened to mining. The agency itself has repeatedly referred to the "South Pass -Green Mountain area" in describing the region newly opened to mining.' Peterson's assertion that her use and enjoyment of federal lands have been adversely affected by the agency's decision to permit more extensive mining is, as the Court of Appeals stated, National Wildlife Federation v. Burford, 278 U.S.App.D.C. 320, 329, 878 F.2d 422, 431 (1989), "meaningless, or perjurious" if the lands she uses do not include those harmed by mining undertaken pursuant to termination order W-6228.5 To read particular assertions within the affidavit in light of the document as a whole is, as the majority might put it, "a world apart" from "presuming" facts that are neither stated nor implied simply because without them the *904 plaintiff would lack standing. The Peterson and Erman affidavits doubtless could have been more artfully drafted, but they defmitely were sufficient to withstand the federal parties' summary judgment motion. Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk II I also conclude that the District Court abused its discretion in refusing to consider the supplemental affidavits filed by NWF after the hearing on the summary judgment motion.6 The court's decision abruptly derailed the Federation's lawsuit after three **3197 years of proceedings involving massive time and expense. The District Court and Court of Appeals both had concluded that NWF's claims were sufficiently substantial to warrant the entry of a nationwide injunction. Whatever the ultimate merits of the Federation's claims, litigation of this magnitude should not be aborted on technical grounds if that result legitimately can be avoided. The majority's approach reflects an insufficient appreciation both of the realities of complex litigation and of the admonition that the Federal Rules of Civil Procedure "shall be construed to secure *905 the just, speedy, and inexpensive determination of every action." Rule 1. That a requirement is "technical" does not, of course, mean that it need not be obeyed. And an appeal to the "spirit" of the Federal Rules is an insufficient basis for ignoring the import of their text. If the Rules imposed an absolute deadline for the submission of evidentiary materials, the District Court could not be faulted for strictly enforcing that deadline, even though the result in a particular case might be unfortunate. But, as the Court acknowledges, the Rules expressly permit the District Court to exercise discretion in deciding whether affidavits in opposition to a summary judgment motion may be submitted after the hearing.' Once the District Court's power to accept untimely affidavits is recognized, the question whether that power should be exercised in a particular instance must be answered by reference to the explanation for the litigant's omission and the purposes the Rules are designed to serve. In my view, NWF showed adequate cause for its failure to file the supplemental affidavits prior to the hearing. Moreover, the organization's untimely filing in no way disserved the purposes of Rule 56(c), and the federal parties suffered no prejudice as a consequence of the *906 delay. Under these circumstances, I believe that the District Cour''s refusal to consider these submissions constituted an abuse of discretion. The Federal Rules require that affidavits in opposition to a motion ordinarily must be served at least one day prior to the hearing; the Rules provide, however, that the affidavits may be filed at a later time "where the failure to act was the result of excusable neglect." Rule 6(b); see n. 7, supra. Prior to the July 22, 1988, hearing on the parties' cross -motions for summary judgment, NWF had been assured repeatedly that its prior submissions were WESTLAW Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. 20,962 sufficient to establish its standing to sue. In its memorandum opinion granting the Federation's motion for a preliminary injunction, the District Court stated: "We continue to find irreparable injury to plaintiff and reaffirm plaintiff's standing to bring this action." National Wildlife Federation v. Burford, 676 F.Supp. 280, 281 (D.C.1986). Later that year the federal parties sought additional discovery on the question of standing. NWF sought to quash discovery, arguing that "[t]he Court should bar any additional discovery on this issue because (1) it has already found that plaintiff has standing; (2) plaintiff has already produced affidavits which demonstrate standing and therefore any additional discovery would be unreasonably cumulative, duplicative, *,*3198 burdensome and expensive within the meaning of Rule 26(c)(1); and (3) contrary to the government defendants' apparent theory, plaintiff need not demonstrate injury as to each and every action that is part of the program." Memorandum of Points and Authorities in Support of Plaintiffs Motion To Quash and for a Protective Order 5-6 (July 1, 1986). In the alternative, NWF argued that if additional discovery on standing was to be ordered, it should be confined to the requirement that a limited number of additional affidavits be submitted. Id., at 22. The District Court, on July 14, 1986, granted in full the Federation's motion to quash and ordered "that no further discovery of plaintiff or *907 its members, officers, employees, agents, servants, or attorneys shall be permitted until subsequent order of this court, if any." App. to Pet. for Cert. 170a-171a. When the District Court's grant of a preliminary injunction was subjected to appellate review, the Court of Appeals concluded that the Peterson and Erman affidavits "provide a concrete indication that the Federation's members use specific lands covered by the agency's Program and will be adversely affected by the agency's actions." National Wildlife Federation v. Burford, 266 U.S.App.D.C. 241, 249, 835 F.2d 305, 313 (1987).8 The majority's statement that "a litigant is never justified in assuming that the court has made up its mind until the court expresses itself to that effect," ante, at 3193, is therefore simply irrelevant to the present case: The District Court and the Court of Appeals repeatedly had indicated that the Federation had offered sufficient evidence of its standing. Nor did the District Court's order of June 27, 1988, scheduling a motion hearing for the following July 22, place NWF on notice that its claim of standing might be reconsidered. That order made clear that the hearing would consider the summary judgment motions of both the federal parties and *908 the Federation. The principal submission of the federal parties relevant to the hearing Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk was the Defendants' Memorandum in Opposition to Plaintiffs Motion for Summary Judgment and in Support of Defendants' Motion for Summary Judgment and/or for Dissolution of the Preliminary Injunction Issued on February 10, 1986; that memorandum was filed on September 12, 1986. This 86-page memorandum included only 9 'Y2 pages devoted to standing, and half of that discussion set forth the federal parties' claim that no broad programmatic challenge could succeed even if the Peterson and Erman affidavits adequately alleged injury from Government decisions as to particular tracts of land. Moreover, even the attack on the Peterson and Erman affidavits did not purport to show that summary judgment for the federal parties should be entered on the ground that the Federation lacked standing. Rather, the federal parties argued principally that summary judgment for NWF would be inappropriate because a genuine factual dispute existed as to the Federation's standing to sue. See Defendants' Memorandum, at 45-47. In fact, the 86-page memorandum included only two sentences arguing that the federal parties should be awarded summary judgment on standing grounds. Id., at 11-12, 85. The District Court's decision to schedule a hearing on the parties' cross -motions for summary judgment provided no hint that previous **3199 assurances concerning standing were open to reconsideration.' Certainly the Federation could have submitted additional evidentiary materials in support of its claim of standing, even though it had no reason to believe that further submissions were necessary. But it would hardly enhance the efficiency *909 of the adjudicative process to encourage litigants to reargue questions previously settled in their favor. In my view, NWF established sufficient cause for its failure to submit the supplemental affidavits prior to the hearing.1Q **3200 *910 Moreover, the District Court's refusal to consider the additional submissions in this case did not significantly advance the interests that Rule 56(c) is designed to serve. The Rule requires that affidavits in opposition to a motion for summary judgment must be served "prior to the day of hearing." The Courts of Appeals consistently have recognized, however, that "Rule 56 does not necessarily contemplate an oral hearing. Rather, 10-day advance notice to the adverse party that the motion and all materials in support of or in opposition to the motion will be taken under advisement by the trial court as of a certain day satisfies the notice and hearing *911 dictates of Rule 56." Moore v. Florida, 703 F.2d 516, 519 (CA11 1983)." Rule 56(c)'s requirement that a summary judgment motion be filed 10 days in advance of a scheduled hearing serves to ensure that the nonmoving party is afforded adequate notice of WESTLRW Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. 20,962 the motion. Similarly, the requirement that opposing affidavits be submitted prior to the day of the hearing reflects the fact that the district court may rule on the summary judgment motion at the hearing or at any time thereafter; submission of affidavits prior to that day is thus essential if the moving party is to be assured the opportunity to respond at a time when a response is meaningful. The requirement also allows the district court to establish a deadline by which time all evidence and arguments must be submitted; thereafter, the court may deliberate with the assurance that no subsequent filings will alter the terms of the dispute. These are pressing concerns when the hearing on a summary judgment motion represents the parties' last opportunity to set forth their legal arguments. In the present case, however, the District Court concluded the July 22, 1988, hearing by requesting supplemental briefing on the issue of standing.' NWF's supplemental affidavits, filed on August 22 as an attachment to its legal memorandum, were submitted at a time when the federal parties had ample opportunity to respond. (Indeed, the opportunity to respond here-10 days -was far greater than would have been the case if NWF had filed (timely) affidavits the day before the hearing and no *912 supplemental briefing had been allowed.) The affidavits, moreover, were filed well before the time when the case was to be taken under advisement. The record in this case is voluminous, currently filling six large boxes; consideration of five more affidavits would not have added significantly to the complexity of the issues before the District Court. Under these circumstances, submission of the supplemental affidavits neither disserved the purposes of the Rule nor prejudiced the federal parties in any respect. The District Court discussed none of these factors in explaining its refusal to consider the supplemental affidavits. Indeed, the District Court offered no justification at all for its action beyond the assertion that the affidavits were untimely." Similarly, the Court **3201 today fails to assess the District Court's action by reference to the excuse for NWF's untimely filing or the absence of prejudice to the federal parties. The District Court and today's majority fail to recognize the guiding principle of the Federal Rules of Civil Procedure, the principle that procedural rules should be construed pragmatically, so as to ensure the just and efficient resolution of legal disputes. Some provisions of the Rules strip the district courts of discretion, and the courts have no choice but to enforce these requirements with scrupulous precision." But where the Rules expressly confer a range of *913 discretion, a district court may abuse its authority by refusing to take account of WESTLAW Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk equitable concerns, even where its action violates no express command. In my view, such an abuse of discretion occurred here. III In Part IV -A, ante, at 3189, the majority sets forth a long and abstract discussion of the scope of relief that might have been awarded had the Federation made a sufficient showing of injury from environmental damage to a particular tract of land. Since the majority concludes in other portions of its opinion that the Federation lacks standing to challenge any of the land -use decisions at issue here, it is not clear to me why the Court engages in the hypothetical inquiry contained in Part IV -A. In any event, I agree with much of the Court's discussion, at least in its general outline. The Administrative Procedure Act permits suit to be brought by any person "adversely affected or aggrieved by agency action." 5 U.S.C. § 702. In some cases the "agency action" will consist of a rule of broad applicability; and if the plaintiff prevails, the result is that the rule is invalidated, not simply that the court forbids its application to a particular individual. Under these circumstances a single plaintiff, so long as he is injured by the rule, may obtain "programmatic" relief that affects the rights of parties not before the court. On the other hand, if a generally lawful policy is applied in an illegal manner on a particular occasion, one who is injured is not thereby entitled to challenge other applications of the rule. Application of these principles to the instant case does not turn on whether, or how often, the Bureau's land -management policies have been described as a "program." In one sense, *914 of course, there is no question that a "program" exists. Everyone associated with this lawsuit recognizes that the BLM, over the past decade, has attempted to develop and implement a comprehensive scheme for the termination of classifications and withdrawals. The real issue is whether the actions and omissions that NWF contends are illegal are themselves part of a plan or policy. For example: If the agency had published a regulation stating that an environmental impact statement (EIS) should never be developed prior to the termination of a classification or withdrawal, NWF could challenge the regulation (which would constitute an "agency action"). If the reviewing court then held that the statute required a pretermination EIS, the relief (invalidation of the rule) would directly Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. 20,962 affect **3202 tracts other than the ones used by individual affiants. At the other extreme, if the applicable BLM regulation stated that an EIS must be developed, and NWF alleged that the administrator in charge of South Pass/Green Mountain had inexplicably failed to develop one, NWF should not be allowed (on the basis of the Peterson affidavit) to challenge a termination in Florida on the ground that an administrator there made the same mistake. The majority, quoting the District Court, characterizes the Bureau's land management program as " '1250 or so individual classification terminations and withdrawal revocations.' " Ante, at 3189; see National Wildlife Federation v. Burford, 699 F.Supp. 327, 332 (DC 1988). The majority offers no argument in support of this conclusory assertion, and I am far from certain that the characterization is an accurate one. Since this issue bears on the scope of the relief ultimately to be awarded should the plaintiff prevail, rather than on the jurisdiction *915 of the District Court to entertain the suit, I would allow the District Court to address the question on remand.16 Footnotes 2 3 Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk IV Since I conclude that the Peterson and Erman affidavits provided sufficient evidence of NWF's standing to withstand a motion for summary judgment, and that the District Court abused its discretion by refusing to consider the Federation's supplemental affidavits, I would affirm the judgment of the Court of Appeals. I respectfully dissent. All Citations 497 U.S. 871, 110 S.Ct. 3177, 111 L.Ed.2d 695, 31 ERC 1553, 20 Envtl. L. Rep. 20,962 The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Lumber Co., 200 U.S. 321, 337, 26 S.Ct. 282, 287, 50 L.Ed. 499. As an additional basis for its conclusion, the Court of Appeals held that the earlier panel's finding that the Peterson and Erman affidavits were sufficient to establish respondent's right to sue was the "law of the case." We do not address this conclusion, as the earlier panel's ruling does not, of course, bind this Court. Messenger v. Anderson, 225 U.S. 436, 444, 32 S.Ct. 739, 740, 56 L.Ed. 1152 (1912). Contrary to the apparent understanding of the dissent, we do not contend that no "land withdrawal review program" exists, any more than we would contend that no weapons procurement program exists. We merely assert that it is not an identifiable "final agency action" for purposes of the APA. If there is in fact some specific order or regulation, applying some particular measure across the board to all individual classification terminations and withdrawal revocations, and if that order or regulation is final, and has become ripe for review in the manner we discuss subsequently in text, it can of course be challenged under the APA by a person adversely affected -and the entire "land withdrawal review program," insofar as the content of that particular action is concemed, would thereby be affected. But that is quite different from permitting a generic challenge to all aspects of the "land withdrawal review program," as though that itself constituted a final agency action. Under the Secretary's regulations, any person seeking to conduct mining operations that will "cause a cumulative surface disturbance" of five acres or more must first obtain approval of a plan of operations. § 3809.1-4 (1988). Mining operations that cause surface disturbance of less than 5 acres do not require prior approval, but prior notice must be given to the district office of the BLM. § 3809.1-3. Neither approval nor notification is required only with respect to "casual use operations," 43 CFR § 3809.1-2, defined as "activities ordinarily resulting in only negligible disturbance of the Federal lands and resources," § 3809.0-5. (Activities are considered "casual" if "they do not involve the use of mechanized earth moving equipment or explosives or do not involve the use of motorized vehicles in areas designated as closed to off -road vehicles...." Ibid.) Thus, before any mining use ordinarily involving more than "negligible disturbance" can take place, there must occur either agency action in response to a submitted plan or agency inaction in response to a submitted notice. In one of the four new affidavits, Peggy Peterson, one of the original affiants, states that a corporation has filed a mine permit application with the BLM covering a portion of the land to which her original affidavit pertained. App. to Brief in Opposition for Respondent National Wildlife Federation 16. If that permit is granted, there is no doubt that WESTLAW Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. 20,962 4 5 1 2 w Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk agency action ripe for review will have occurred; nor any doubt that, in the course of an otherwise proper court challenge, affiant Peterson, and through her respondent, would be able to call into question the validity of the classification order authorizing the permit. However, before the grant of such a permit, or (when it will suffice) the filing of a notice to engage in mining activities, or (when only "negligible disturbance" will occur) actual mining of the land, it is impossible to tell where or whether mining activities will occur. Indeed, it is often impossible to tell from a classification order alone whether mining activities will even be permissible. As explained in the uncontested affidavit of the BLM's Assistant Director of Land Resources: "The lands may be subject to another withdrawal of comparable scope or they may be subject to classification segregations tantamount to such a withdrawal. In that case, the lands would not be opened to the operation of the public land laws so that the removal of one of the withdrawals has no practical effect. Another reason why there may not be any change is that before the revocation occurred, the lands may have been transferred into private ownership. Consequently, the withdrawal revocation amounts to nothing more than a paper transaction.... In the alternative, a revoked withdrawal may open the lands to the operation of the public land and mineral laws.... Some withdrawal revocations are made without prior knowledge as to what subsequent disposition may be made of the lands. After the lands are opened, they might be transferred out of federal ownership by sale, exchange, or some other discretionary mode of disposal, not anticipated when the withdrawal was revoked. These subsequent discretionary actions require separate and independent decisionmaking that, obviously, are divorced from the prior revocation decision. Environmental and other management concerns and public participation are taken into account in relation to the post -revocation decisionmaking." Affidavit of Frank Edwards, Aug. 18, 1985, App. 61-62. Nothing in this is contrary to our opinion in Automobile Workers v. Brock, 477 U.S. 274, 106 S.Ct. 2523, 91 L.Ed.2d 228 (1986), cited by the Court of Appeals. That opinion did not discuss, and the respondent Secretary of Labor did not rely upon, the requirements of 5 U.S.C. § 702 and our ripeness jurisprudence in cases such as Abbott Laboratories v. Gardner, 387 U.S. 136, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967); Gardner v. Toilet Goods Assn., Inc., 387 U.S. 167, 87 S.Ct. 1526, 18 L.Ed.2d 704 (1967); and Toilet Goods Assn., Inc. v. Gardner, 387 U.S. 158, 87 S.Ct. 1520, 18 L.Ed.2d 697 (1967). The only challenge made and decided, with respect to the individuals' right to sue, relied upon 19 U.S.C. § 2311(d) (1982 ed.), which according to the Secretary of Labor made entertainment of that suit "'contrary to Congress's incorporation of the state system into the administration of the Trade Act, and an affront to the integrity and authority of the state courts.' " 477 U.S., at 283, 106 S.Ct., at 2529, quoting Brief for Respondent in Automobile Workers, O.T. 1985, No. 84-1777, p. 16. The dissent asserts that a footnote in respondent's reply memorandum to the District Court was a "motion" within the meaning of Rule 6(b)(2), and was so obviously so that the District Court committed reversible error in failing to construe it that way. Post, at 3199-3200 and n. 10. We cannot agree. Rule 6(b) establishes a clear distinction between "requests" and "motions," and the one cannot be converted into the other without violating its provisions -or at least cannot be converted on the basis of such lax criteria that conversion would be not only marginally permissible but positively mandatory in the present case. Rule 6(b)(1) allows a court ("for cause shown" and "in its discretion") to grant a "request" for an extension of time, whether the request is made "with or without motion or notice," provided the request is made before the time for filing expires. After the time for filing has expired, however, the court (again "for cause shown" and "in its discretion") may extend the time only "upon motion." To treat all postdeadline "requests" as "motions" (if indeed any of them can be treated that way) would eliminate the distinction between predeadline and postdeadline filings that the Rule painstakingly draws. Surely the postdeadline "request," to be even permissibly treated as a "motion," must contain a high degree of formality and precision, putting the opposing party on notice that a motion is at issue and that he therefore ought to respond. The request here had not much of either characteristic. As for formality, it was not even made in a separate filing or in a separate appearance before the court, but was contained in a single sentence at the end of the first paragraph of one of the 18 single-spaced footnotes in a 20-page memorandum of law. Our district judges must read footnotes with new care if they are to be reversed for failing to recognize motions buried in this fashion. And as for precision, the request not only did not ask for any particular extension of time (7 days, 30 days), it did not specifically ask for an extension of time at all, but merely said that respondent "should be given adequate opportunity to supplement the record." Even this, moreover, was not requested (much less moved for) unconditionally, but only "[i]f the court intends to reverse its prior ruling [regarding NWF standing]." Record, Doc. No. 294, p. 17, n. 16. We think it quite impossible to agree with the dissent that the district judge not only might treat this request as a motion, but that he was compelled to do so. Prior to the District Court's entry of the preliminary injunction, 406 mining claims had been staked in the South Pass -Green Mountain area alone. App. 119. An exhibit filed by the federal parties indicated that over 7,200 claims had been filed in 12 Western States. Exh. 1 to Affidavit of Joseph Martyak (Apr. 11, 1986). A Bureau of Land Management (BLM) draft of a Resource Management Plan/Environmental Impact Statement for the Lander, Wyo., Resource Area stated: "In the Green Mountain Management Unit ... significant long-term impacts to elk and mule deer herds could occur from habitat losses caused by oil and gas activities over the next 60 years.... In the WESTLAW Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. 20,962 3 4 5 6 7 8 9 Submitted into the public record for item(s) PZ.1 . on 12/13/2018 , City Clerk South Pass Management Unit, significant acreages of lodgepole pine forest and aspen conifer woodland habitat types could be disturbed, which would cause significant long-term impacts to moose and elk.... If gold mining activities continued to erode these high -value habitats, trout fisheries, the Lander moose herd, the beaver pond ecosystems, and the populations of many other wildlife species would suffer significant cumulative negative effects." Draft RMP/EIS pp. 226-228 (Exh. 3 to Defendant -Intervenors' Reply to Plaintiffs Opposition to Defendants' Motions for Stay Pending Appeal (May 14, 1986)). A BLM Mineral Report issued June 17, 1982, concluded that mining and associated activities "could have an adverse impact on crucial moose habitat, deer habitat, some elk habitat, and a variety of small game and bird species. Improvements at campgrounds, as well as land in the immediate vicinity, could either be damaged or destroyed. These activities could make it difficult for the BLM to manage the forest production and harvesting in the South Pass area. Historical and cultural resources which have and have not been identified could be either damaged or destroyed." Defendant -Intervenors' Exh. 7 (attached as Appendix 1 to Plaintiff National Wildlife Federation's Statement of Points and Authorities in Support of Its Standing To Proceed (Aug. 22, 1988)). See, e.g., May v. Department of Air Force, 777 F.2d 1012, 1016 (CA5 1985); First Commodity Traders, Inc. v. Heinold Commodities, Inc., 766 F.2d 1007, 1011 (CA7 1985); Maldonado v. Ramirez, 757 F.2d 48, 51 (CA3 1985); Galindo v. Precision American Corp., 754 F.2d 1212, 1216 (CA5 1985). See, e.g., App. 123-139 (declaration of Jack Kelly). The areas harmed or threatened by mining and associated activities may extend well beyond the precise location where mining occurs. See n. 2, supra. Five supplemental affidavits were filed. The first was submitted by Peggy Kay Peterson, in clarification of her earlier affidavit: "A substantial portion of the lands which I use ... are identical to those lands" newly opened to mining in the South Pass -Green Mountain area. Peterson Supplemental Affidavit, App. in No. 88-5397 (CADC), p. 356. Ms. Peterson also asserted that "U.S. Energy Corporation has filed a mine permit application with the Bureau and Department, (U.S. Energy Application, TFN 2 4/86), which includes a proposal to mine a significant portion of the federal lands which I use for recreational purposes and aesthetic enjoyment." Id., at 355-356. The other affiants were NWF members David Doran, Merlin McColm, Stephen Blomeke, and Will Ouellette. These individuals identified termination orders that had opened to mining particular tracts of land used by the affiants for recreation and aesthetic enjoyment. The federal parties do not concede that the supplemental affidavits established with certainty the Federation's standing; they contend that further discovery might show the affiants' allegations to be untrue. The federal parties do concede, however, that the supplemental affidavits were not facially deficient. Tr. of Oral Arg. 19. Rule 56(c) provides that when a motion for summary judgment is filed, the "adverse party prior to the day of hearing may serve opposing affidavits." Under Rule 56(e), the district court "may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits." Rule 6(d) states: "When a motion is supported by affidavit, ... opposing affidavits may be served not later than 1 day before the hearing, unless the court permits them to be served at some other time." The district court's authority to permit service "at some other time" is govemed in tum by Rule 6(b), which provides that when an act is required to be performed by a specified time, the district court may "upon motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect." See 4A C. Wright & A. Miller, Federal Practice and Procedure § 1165, p. 475 (2d ed. 1987) (Rule 6(b) "gives the court extensive flexibility to modify the fixed time periods found throughout the rules, whether the enlargement is sought before or after the actual termination of the allotted time"). The Court of Appeals' discussion of standing occurred in the context of a motion to dismiss and therefore, by itself, might not assure NWF that it had made a sufficient showing to withstand a motion for summary judgment. But the Court of Appeals, like the District Court before it, also held that the Federation's showing of injury, as reflected in the Peterson and Erman affidavits, provided an adequate basis for a preliminary injunction. As the second Court of Appeals panel concluded, "the burden of establishing irreparable harm to support a request for a preliminary injunction is, if anything, at least as great as the burden of resisting a summary judgment motion on the ground that the plaintiff cannot demonstrate 'injury -in -fact.' " National Wildlife Federation v. Burford, 278 U.S.App.D.C. 320, 330, 878 F.2d 422, 432 (1989) (emphasis omitted). When the first panel affirmed the District Court's entry of a preliminary injunction, Judge Williams' separate opinion, concurring and dissenting, stated that "the specificity required for standing allegations to secure a preliminary injunction will normally be no Tess than that required on a motion for summary judgment." 266 U.S.App.D.C., at 264, 835 F.2d, at 328. At the hearing itself Fred R. Disheroon, the federal parties' attorney, argued at length on other points before turning to WESTLAW Submitted into the public record for item(s) PZ.1 on 12/13/2018 , City Clerk Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. 20,962 the issue of standing. He began that portion of his argument by observing that "perhaps the court doesn't want to hear me argue standing, but I think it is imperative that I address that in the context of this case." Tr. of Motions Hearing 43 (July 22, 1988). 10 The supplemental affidavits were submitted as an attachment to the supplemental legal memorandum on standing requested by the District Court. At the time of their submission, NWF stated only that "NWF now has submitted declarations on behalf of other members of NWF who have been injured by the challenged actions of federal defendants." Plaintiff National Wildlife Federation's Statement of Points and Authorities in Support of Its Standing To Proceed 18, n. 21 (Aug. 22, 1988). However, in its reply memorandum on the issue, NWF addressed the contention of the federal parties and the defendant -intervenor that the affidavits should be ignored as untimely filed. NWF stated: "Plaintiff heretofore, has relied on the court's previous rulings on NWF's standing. In its motion for a protective order against additional discovery, NWF argued that its standing had already been proven on the basis of the affidavits of Mr. Greenwalt, Ms. Peterson, and Mr. Erman. The court agreed and entered the requested protective order. If the court intends to reverse its prior ruling, then NWF respectfully requests that it should be given adequate opportunity to supplement the record." Plaintiff National Wildlife Federation's Reply Memorandum in Support of Its Standing To Proceed 17, n. 16 (Sept. 14, 1988). The Federation also noted that Circuit precedent permitted the filing of supplemental affidavits on standing issues, even on appeal. Ibid., citing National Wildlife Federation v. Hodel, 268 U.S.App.D.C. 15, 24, 839 F.2d 694, 703 (1988). NWF offered the further explanation: "Ms. Peterson has supplemented her affidavit to include new information regarding a mine application which has been filed by U.S. Energy Corporation that includes a proposal to mine lands within the area of South Pass/Green Mountain previously closed to mining. For the record, NWF initially was told by officials of the Bureau of Land Management that the U.S. Energy mine application did not include any lands covered by the court's preliminary injunction. Otherwise, NWF would have supplemented Ms. Peterson's affidavit earlier." Reply memorandum, at 12-13, n. 13. Along with its Reply Memorandum, NWF submitted an additional filing entitled Plaintiff National Wildlife Federation's Memorandum in Opposition to Defendant -Intervenors' Motion To Strike Plaintiffs Supplementation of the Record (Sept. 14, 1988). That filing stated: "For the reasons stated in [the reply memorandum] at page 17, n. 16, plaintiff requests that defendant -intervenors' motion to strike be denied." (In Tight of this separate submission, addressed solely to the question whether the supplemental affidavits should be considered, and expressly referring to n. 16 of the reply memorandum, it is difficult to fathom the Court's assertion that NWF's request was "buried" in the Federation's filings. See ante, at 3192-3193, n. 5.) This separate filing, in conjunction with the reply memorandum, satisfied Rule 6(b)'s requirement that the request for enlargement of time be made "upon motion." Though neither of these filings was expressly denominated a "motion," they met the requirements of Rule 7(b): They were submitted in writing, were signed by counsel, "state [d] with particularity the grounds therefor," and unambiguously "set forth the relief ... sought." See Campos v. LeFevre, 825 F.2d 671, 676 (CA2 1987) ("[N]o particular form of words is necessary to render a filing a 'motion.' Any submission signed by a party that may fairly be read as a request to the district court to exercise its discretionary powers ... should suffice"), cert. denied, 484 U.S. 1014, 108 S.Ct. 718, 98 L.Ed.2d 667 (1988); Smith v. Danyo, 585 F.2d 83, 86 (CA3 1978) ("Rule 7(b) requires no more than that ... a motion 'state with particularity the grounds' upon which it is based. Plainly, an affidavit which is filed to obtain an order disqualifying a judge satisfies the requirements of Rule 7(b).... The ... failure to type in the word 'motion' above the word 'affidavit' in no way detracts from the notice which the affidavit gave of the nature of the application"). Cf. Snyder v. Smith, 736 F.2d 409, 419 (CA7) ("The Federal Rules are to be construed liberally so that erroneous nomenclature in a motion does not bind a party at his peril"), cert. denied, 469 U.S. 1037, 105 S.Ct. 513, 83 L.Ed.2d 403 (1984); Miller v. Transamerican Press, Inc., 709 F.2d 524, 527 (CA9 1983) ("The court will construe [a motion], however styled, to be the type proper for the relief requested"); 2A J. Moore & J. Lucas, Moore's Federal Practice ¶ 7.05, pp. 7-16 to 7-17 (1989) ("[I]t is the motion's substance, and not merely its linguistic form, that determines its nature and legal effect"). 11 12 13 Accord, Allied Chemical Corp. v. Mackay, 695 F.2d 854, 856 (CA5 1983) ("Rule 56(c) does not require an oral hearing in open court. Rather, it contemplates notice to the party opposing the motion and an adequate opportunity to respond to the movant's arguments"); Bratt v. International Business Machines Corp., 785 F.2d 352, 363 (CA1 1986). The District Court subsequently established a schedule for the supplemental briefing. NWF was requested to file its opening memorandum by August 22, 1988; the federal parties and intervenors were to file memoranda in opposition by September 1; and NWF's reply was due by September 14. Order of July 27, 1988. The District Court mentioned these affidavits in a single footnote: "Plaintiff, in addition to its memorandum filed August 22, 1988 has submitted additional evidentiary material, including declarations from four of its members. These submissions are untimely and in violation of our Order. We decline to consider them. See Federal Defendants' Reply to Plaintiffs Statement of Points and Authorities in Support of Its Standing to Proceed, at 1 n. 1." National Wildlife Federation v. Burford, 699 F.Supp. 327, 328-329, n. 3 (D.C.1988). WESTLAW Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) 110 S.Ct. 3177, 31 ERC 1553, 111 L.Ed.2d 695, 20 Envtl. L. Rep. 20,962 14 15 16 Submitted into the public record for item(s) PZ.1 . on 1Z/13/2018 , City Clerk Rule 6(b), for example, which generally gives the district court broad authority to grant enlargements of time, establishes the limitation that the court "may not extend the time for taking any action under Rules 50(b) and (c)(2), 52(b), 59(b), (d) and (e), 60(b), and 74(a), except to the extent and under the conditions stated in them." The term "withdrawal review program" repeatedly has been used in BLM documents. See, e.g., Plaintiffs Exhs. 1, 3, 10, 11, 15, 18, 19 (filed July 15, 1985). At oral argument on the cross -motions for summary judgment, counsel for the federal parties acknowledged: "It is true, BLM referred to this review process as a land withdrawal review program." Tr. of Motion Hearing 40 (July 22, 1988). Counsel went on to say, "but I suggest that using a word, calling it a program, doesn't make a program in the sense that it is being challenged here." Ibid. That assertion, though inelegant, seems essentially correct: An agency's terminology is not decisive in determining whether an alleged illegality is systemic or site -specific. The majority also suggests that the agency actions challenged in this suit may not be ripe for review. See ante, at 3190-3191. Since the issue of ripeness has not been briefed or argued in this Court, nor passed on by the courts below, I need not address it. I do note, however, that at the outset of this case the federal parties made precisely the opposite argument, asserting that a preliminary injunction should be denied on the ground that NWF's claims were barred by !aches. The federal parties contended: "The Federation offers no explanation why, despite its detailed knowledge of BLM's revocation and termination activities, it has waited so long to institute litigation." Defendants' Memorandum in Opposition to Plaintiffs Motion for Preliminary Injunction 26 (Aug. 22, 1985). I also decline to address the adequacy of the affidavit submitted by Lynn Greenwalt, since the Court of Appeals did not pass on that issue. End of Document © 2018 Thomson Reuters. No claim to original U.S. Government Works. WESTLAW