Full opinion text
OPINION AND ORDER KARLTON, Chief Judge. I BACKGROUND A. Federal Land Policy And Management Act In 1976, Congress enacted the Federal Land Policy and Management Act (FLPMA), 43 U.S.C. §§ 1701-1784 (Supp. 1983), to provide “the first comprehensive, statutory statement of purposes, goals and authority for the use and management of about 448 million acres of federally-owned lands administered by the Secretary of Interior through the Bureau of Land Management.” S.Rep. No. 583, 94th Cong., 1st sess. 24 (1975). FLPMA reflected a major change in federal policy. Previously, the lands held by the Bureau of Land Management (BLM) (and its predecessor the General Land Office) were viewed as only temporarily within the custody of the United States and it was expected that their ultimate destiny was private ownership. Under FLPMA, however, BLM lands were to be held in permanent federal ownership unless, as a result of land use planning, the disposal of a particular parcel would serve the national interest. FLPMA § 102(a)(1), 43 U.S.C. § 1701(a)(1). In FLPMA Congress declared as a national policy that public lands held by the BLM were to be managed on the basis of multiple use and sustained yield unless otherwise specified by law, § 102(a)(7), 43 U.S.C. § 1701(a)(7). Nonetheless, Congress also declared as national policy that: [T]he public lands be managed in a manner that will protect the quality of scientific, scenic, historical, ecological, environmental, air and atmospheric, water resource, and archaeological values; that, where appropriate, will preserve and protect certain public lands in their natural condition; that will provide food and habitat for fish and wildlife and domestic animals; and that will provide for outdoor recreation and human occupancy and use; ... FLPMA § 102(a)(8), 43 U.S.C. § 1701(a)(8). Congress also required that regulations and plans for the protection of public land areas of critical concern be promptly developed, § 102(a)(11), 43 U.S.C. § 1701(a)(11). As the first step in the process of implementing the new national policy the Secretary of Interior (hereinafter “the Secretary”) was directed to prepare and maintain an inventory of all public lands and assess “their resource and other values.” FLPMA § 201(a), 42 U.S.C. § 1711(a). As part of the process of inventory the Secretary was directed to review roadless areas of 5,000 acres or more and roadless islands of the public lands having wilderness characteristics as described in the Wilderness Act, 16 U.S.C. §§ 1131-1136 (1974 & Supp. 1983), and to report to the President his recommendation as to the suitability or nonsuitability of each area for inclusion in the national Wilderness Preservation System. FLPMA § 603(a), 43 U.S.C. § 1782(a). “Public lands” required to be reviewed under section 603(a) are lands and interests in land owned by the United States and managed by the BLM, excepting Outer Continental Shelf and native trust lands. FLPMA § 103(e), 43 U.S.C. § 1702(e). This task was to be completed within fifteen years of FLPMA’s enactment. FLPMA § 603(a), 43 U.S.C. § 1782(a). The President, in turn, is to make his recommendation to Congress as to the inclusion of these lands in the wilderness system within two years of the receipt of the Secretary’s report. FLPMA § 603(b), 43 U.S.C. § 1782(b). Until Congress determines otherwise, the Secretary is to manage these lands so as not to impair the suitability of such areas for preservation as wilderness, subject, however, to the continuation of existing mining and grazing uses and mineral leasing in the manner and degree in which the same was being conducted on October 21, 1976: [the date that FLPMA was enacted] Provided, That, in managing the public lands the Secretary shall by regulation or otherwise take any action required to prevent unnecessary or undue degradation of the lands and their resources or to afford environmental protection. FLPMA § 603(c), 43 U.S.C. § 1782(c) (emphasis in original). Section 603(c) provides that once Congress has formerly designated an area for inclusion in the Wilderness Preservation System, the management provisions of the Wilderness Act apply. FLPMA § 603(c), 43 U.S.C. § 1782(c). B. Implementation of the Section 603 Wilderness Review In order to carry out the wilderness review provisions of section 603(a) and other sections of the Act, including the inventory preparation requirement of section 201, the former Secretary of Interior, Cecil Andrus, established a wilderness review program consisting of three phases: inventory, study, and reporting. During the inventory phase, those roadless areas of the public lands which have wilderness characteristics were identified as “wilderness study areas” (WSA’s). The procedure for determining whether an area of the public lands met WSA status was provided in the “Wilderness Inventory Handbook” (WIH), a statement of policy, direction, procedures and guidance for the wilderness review program published by the BLM on September 27, 1978. The WIH provided that, with certain exceptions, the wilderness inventory be conducted on all public lands administered by the BLM. The WIH prescribes that in choosing areas for section 603 WSA status the factors to be used are: 1. Size. At least 5,000 contiguous road-less acres of public land. 2. Naturalness. The imprint of man’s work must be substantially unnoticeable. 3. Either: a. An outstanding opportunity for solitude, or b. An outstanding opportunity for a primitive and unconfined type of recreation. To qualify for wilderness study identification an area of public land must be shown to meet both factors 2 and 3. An island may be of any size. WIH at 6 (emphasis in original). In addition, the WIH directed that other areas which had wilderness characteristics as defined in (2) and (3) above, but which contained fewer than 5,000 acres, were still eligible for WSA identification if they were either: 1. Contiguous with land managed by another agency which has been formally determined to have wilderness or potential wilderness values, or 2. Contiguous with an area of less than 5,000 acres óf other Federal lands administered by an agency with authority to study and preserve wilderness lands, and the combined total is 5,000 acres or more, or 3. Subject to strong public support for such identification and it is clearly and obviously of sufficient size as to make practicable its preservation and use in an unimpaired condition, and of a size suitable for wilderness management. WIH at 6. In further implementation of the statute, the BLM published on December 12, 1979, an “Interim Management Policy and Guidelines for Lands Under Wilderness Review” (IMP) which set forth the guidelines under which the BLM would manage the lands subject to wilderness review, but for which the BLM wilderness inventory process had not yet been completed and lands which the BLM has determined to have wilderness characteristics. IMP at 5. The interim management policy also applies to WSA’s during the time the area is under wilderness review and until Congress acts. Id. The IMP required that lands identified as having wilderness characteristics be managed so as not to impair their suitability for preservation as wilderness. With respect to WSA’s over 5,000 acres, this requirement is derived from section 603(c) of FLPMA, 43 U.S.C. § 1782(c). IMP at 6. Under the IMP, lands with wilderness characteristics but less than 5,000 acres in size were to be managed under a modified non-impairment standard pursuant to section 302(b), 43 U.S.C. § 1732(b). IMP at 10. The goals of management under the nonimpairment standard are: (1) to ensure that any area that now satisfies the wilderness definition in section 2(c) of the Wilderness Act, 16 U.S.C. § 1131(c), will satisfy that definition both when the Secretary sends his recommendation to the President and thereafter until the Congress acts, and (2) to ensure that, when the Secretary sends his wilderness recommendation to the President, the area’s wilderness values have not been so degraded, compared with the area’s values for other purposes, as to significantly constrain the Secretary’s recommendation with respect to the area’s suitability for preservation as wilderness. IMP at 7-8. FLPMA was passed in October of 1976 and the inventory began in 1978. By November of 1980, the total acreage subject to the Act (173,727,000 acres) had been inventoried. Secretary Andrus, by order of the Federal Register, placed 919 areas totaling 23,772,000 acres in WSA status and he found the balance of land to be without the requisite wilderness characteristics. 45 Fed.Reg. 77,574 (November 14, 1980) (hereinafter “Andrus order”). C. Secretary Watt’s December 30, 1982, Order On December 30, 1982, a new Secretary of Interior, James Watt, published an order in the Federal Register which affected the status of approximately one million acres of public lands then in WSA status. 47 Fed.Reg. 58,372 (December 30, 1982) (hereinafter “Watt order”). The order was in several parts: First, the Secretary ordered that lands in which the United States does not own the subsurface mineral rights (split-estate lands) be removed from the wilderness inventory altogether and that they no longer be managed under the non-impairment Interim Management Policy guidelines. Id. After this deletion the state directors were ordered to reexamine the WSA’s in which split-estates were located and to determine whether, after deletion of such lands, the remaining WSA’s amounted to more than 5,000 acres. If not, they were also to be deleted. Id. Even if the WSA, after deletion of the split estate lands, still amounted to 5,000 acres, the state directors were ordered to reexamine the wilderness status of these areas if the deletion substantially altered the boundary or configuration of the WSA. Id.; see also Dept, of Interior Instruction Memorandum No. 83-188, December 23, 1982. Specifically, the Secretary ordered that certain WSA’s totaling 327,061 acres of split-estate lands in Arizona and New Mexico be deleted immediately. 47 Fed.Reg. 58,375. Specific orders as to other states were soon to follow. Second, the Secretary determined that the less than 5,000 acre lands were not properly considered for wilderness status under FLMPA as a matter of law. He ordered that 158 less than 5,000 acre areas totaling 340,526 acres should be deleted from WSA status. 47 Federal Register 58,372 (1982). The Secretary further ordered that these areas could only be considered for other forms of protective management if such action was authorized by the BLM Director. Third, the Secretary ordered that all roadless areas larger than 5,000 acres found to have wilderness characteristics only in association with, or in conjunction with, contiguous wilderness or wilderness candidate areas administered by the Forest Service, National Park Service, or Fish and Wildlife Service, should be excluded from the wilderness inventory unless they are determined to have wilderness attributes of their own. He ordered that such areas should be reexamined to determine whether such areas still exceed 5,000 acres and have wilderness attributes on their own after exclusion of all areas adjacent to wilderness or wilderness candidate areas administered by other agencies. 47 Fed.Reg. 58,372. The Secretary’s action was described in the Federal Register as made pursuant to an Opinion of his Solicitor, dated December 15, 1982. In turn, this Opinion adopted certain interpretations of section 603 of FLPMA, 43 U.S.C. § 1782, enunciated by the Interior Board of Land Appeals in three cases: Santa Fe Pacific Railroad Co., 64 IBLA 27 (1982); Don Coops, et al., 61 IBLA 300 (1982); and Tri-County Cattlemen’s Ass’n, 60 IBLA 305 (1981). In these three opinions, the IBLA held that certain areas of the public lands had been improperly designated as WSA’s under section 603 and discussed the applicability of section 603 to public lands generally. On March 14, 1983, the BLM issued Department of Interior Instruction Memorandum No. 83-188, Change 1, to all State Directors detailing comprehensive procedures to be used in implementing Secretary Watt’s order. With respect to the split-estate lands, the State Directors were given two options: (1) to study the lands for forms of protective management other than WSA or (2) to manage the lands for general multiple use development. Under either option, the lands are not to be considered for wilderness status. Until the Director of the BLM approves the State Director’s recommendations, these lands are to be managed in a manner so as to prevent unnecessary or undue degradation of the lands. With respect to the areas under 5,000 acres, the Instruction Memorandum directed the State Directors to determine the suitability of each area for: (1) wilderness consideration under section 202 of FLPMA, 43 U.S.C. § 1712; (2) other forms of protective management; or (3) management under a multiple use standard. While the total figures are necessarily approximate due to changes in inventory, it is clear that the Secretary’s order has had a profound effect. On January 13, 1983, plaintiffs brought this suit. They attack Secretary Watt’s order on a variety of grounds. They assert that the Secretary’s exclusion of the split-estate lands over 5,000 acres violated FLPMA; that the exclusion of land under 5,000 acres is subject to being set aside as a violation of the National Environmental Protection Act (NEPA), 42 U.S.C. § 4321 et seq. and that the procedure used by the Secretary violated the Administrative Procedure Act (APA), 5 U.S.C. § 551-559 (1977 & Supp.1983). I issued a preliminary injunction on October 21, 1983, as plaintiffs raised serious questions as to the merits of their case and the balance of hardships tipped in plaintiffs’ favor. The parties then filed cross motions for summary judgment. Concurrent with these motions, certain intervenors suggested that necessary parties had not been joined. All those motions are disposed of herein. II STANDING Defendant United States challenges plaintiffs’ standing to raise their claims in this litigation asserting that plaintiffs have failed to establish sufficient injury-in-fact under Article III of the Constitution. The Government contends that injury to plaintiffs will arise only when development activities are approved for the areas at issue in this litigation. Alternatively, the Government argues that even if present injury is established, the court should dismiss this action because plaintiffs’ lawsuit seeks to adjudicate abstract questions of wide public significance which should most appropriately be addressed by the Congress. Standing implicates two separate but closely related components: a constitutional component derived from Article III of the Constitution, and a prudential component based on notions of judicial restraint. A. Constitutional Standards The Ninth Circuit has held that Article III “limits the judicial power of the United States to actual cases and controversies,” Scott v. Rosenberg, 702 F.2d 1263, 1267 (9th Cir.1983), cert. denied, — U.S. -, 104 S.Ct. 1439, 79 L.Ed.2d 760 (1984). The ‘gist of the question of standing’ is whether the plaintiff has ‘alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions. Id., quoting Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962). The court went on to explain that to satisfy the constitutional component of standing three things must be shown: first, that the party “personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant,” 702 F.2d at 1267, quoting Gladstone Realtors v. Village of Bellwood, 441 U.S. 91, 99, 99 S.Ct. 1601, 1608, 60 L.Ed.2d 66 (1979); second, “that the injury can be fairly traced to the challenged action, [and third, that it] is likely to be redressed by a favorable decision.” Id., quoting Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 38, 96 S.Ct. 1917, 1924, 48 L.Ed.2d 450 (1976). See also, Preferred Communications, Inc. v. City of Los Angeles, 754 F.2d 1396, 1403, (9th Cir.1985). The Supreme Court has recently suggested that, because resolution of standing issues tends to be a question of degree rather than kind, i.e., identifying a point on a continuum, determinations of standing are “not susceptible of precise definition.” Allen v. Wright, — U.S. -, -, 104 S.Ct. 3315, 3325, 82 L.Ed.2d 556 (1984). Nonetheless, the Court explained that the notion of standing gains considerable definition from previous case law and in many cases can be determined by examining the allegations of the particular complaint and comparing them to those made in prior standing cases. Id. The Court taught: Typically, however, the standing inquiry requires careful judicial examination of the complaint’s allegations to ascertain whether the particular plaintiff is entitled to an adjudication of the particular claims asserted. Is the injury too abstract, or otherwise not appropriate, to be considered judicially cognizable? Is the line of causation between the illegal conduct and the injury too attenuated? Is the prospect of obtaining relief from the injury as a result of a favorable ruling too speculative? Id. With these general guidelines in mind, I turn to the instant case. Plaintiffs, several national environmental organizations, bring this action on behalf of their members alleging that those members use the public lands in question for a variety of purposes including hiking, camping, wildlife viewing, photography, scenic study, and other forms of recreation. Complaint, ¶¶ 5-10. 1. Personal Injury To meet the personal injury test, plaintiffs must demonstrate that they have suffered a “distinct and palpable” injury that is not “abstract, conjectural or hypothetical.” Allen v. Wright, — U.S. at -, 104 S.Ct. at 3325. Plaintiffs allege that their aesthetic, conservation and recreation interests will be adversely affected by defendants’ actions. Specifically, they allege that by virtue of Secretary Watt’s order, lands exhibiting wilderness characteristics, see n. 8, supra, have become available for development which will impair those values. For example, they allege that these areas will be opened to oil and gas exploration, road construction, and off-road vehicle use. The cumulative effect of these activities, they assert, will permanently impair the unspoiled natural character of these lands and render them unsuitable for wilderness designation by Congress to the detriment and harm of plaintiffs and their members. It is clearly established that “[a]esthetic and environmental well-being, like economic well-being, are important ingredients of the quality of life in our society ...” Sierra Club v. Morton at 734. Similar harm to the environment was pled in the complaint in Sierra Club v. Morton and the court said “[w]e do not question that this type of harm may amount to an ‘injury in fact’ sufficient to lay the basis for standing ...” Id. See also, Stratman v. Watt, 656 F.2d 1321, 1324 (9th Cir.1981), cert. dism., 456 U.S. 901, 102 S.Ct. 1744, 72 L.Ed.2d 170 (1982); California v. Watt, 683 F.2d 1253, 1270-71 (9th Cir.1982), rev’d on other grounds, 464 U.S. 312, 104 S.Ct. 656, 78 L.Ed.2d 496 (1984). Accordingly, the court finds that the type of harm alleged is of the “distinct” and “palpable” kind sufficient to support standing. Plaintiffs’ injury must also be personal. Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. at 39, 96 S.Ct. at 1924. Plaintiffs’ allegations are sufficient to meet that criterion as well. They have alleged that their members use the lands in question for a variety of aesthetic and recreational uses. The courts have repeatedly held that such allegations suffice. See Gonzales v. Gorsuch, 688 F.2d 1263, 1266 (9th Cir.1982) (“Plaintiff’s interest as one who uses and enjoys the Bay is sufficient to meet the liberal personal stake requirement applicable to environmental plaintiffs.”); California v. Watt, 683 F.2d at 1270-71 (allegation that members of environmental groups enjoyed recreational activities in areas affected by lease sale enough to meet personal stake requirement); American Motorcyclist Ass’n v. Watt, 543 F.Supp. 789, 792 (C.D.Cal.1982) (allegation that members use portion of desert affected by challenged motorized-vehicle route designation for recreation and study sufficient to meet injury standards for standing), aff'd, 714 F.2d 962 (9th Cir.1983). 2. “Fairly Attributable” to Defendants’ Actions As noted above, plaintiffs must sufficiently allege that the injury is “fairly attributable” to defendants’ actions. Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 44, 96 S.Ct. 1917, 1927, 48 L.Ed.2d 450 (1976); Warth v. Seldin, 422 U.S. 490, 507, 95 S.Ct. 2197, 2209, 45 L.Ed.2d 343 (1975). Plaintiffs allege that Secretary Watt’s order released the lands in issue from the section 603 wilderness inventory and permitted multiple use management of them. It is this release which they assert permits development of these lands destroying their wilderness qualities and causing the injury of which they complain. Defendants argue in response that these released lands may still be subject to other forms of nonimpairment management which will preserve their wilderness character and thus that there is not a sufficient relationship between the Secretary’s action and the development of these lands. Moreover, they argue causation is not sufficiently shown because any development will be by private parties whose decision to develop is a matter of speculation and, in any event, not attributable to the Secretary’s order. Defendants’ argument will not lie. The Secretary’s order, as in other cases of land management involving the removal of public property from wilderness consideration, has a palpable and thus cognizable effect. See California v. Bergland, 483 F.Supp. 465, 476 (E.D.Cal.1980), aff'd in part, rev’d in part sub nom, California v. Block, 690 F.2d 753 (9th Cir.1982). Here, as in Berg-land, these areas will not be considered for the affirmative protections of wilderness classification under the Secretary’s order, and any future opportunity for wilderness classification may permanently be foreclosed because of development activities. Defendants’ suggestion that the real cause of plaintiffs’ injury is potential development by persons other than BLM also will not lie. The development activity of third parties on these lands is not “the independent action of some third party not before the court,” Simon, 426 U.S. at 42, 96 S.Ct. at 1926, subject only to speculation, but instead is a direct result of the Secretary’s action. Central to this issue are traditional notions that for there to be a break in the chain of causation, the intervening event must be not only a cause, but the only cause of injury; i.e., if the complained of action is a “but for” cause — a cause, even if not the only cause — it suffices for standing purposes. See Scott v. Rosenberg, 702 F.2d at 1268 (“But for the FCC’s actions, no injury or threat of injury could have occurred.”). The management protocol imposed by the BLM determines the level and type of activity on BLM lands. That protocol is determined by the Secretary and it is his order that is the subject of the lawsuit. Plaintiffs’ claims, therefore, are fairly traceable to defendants’ actions. 3. Likelihood That Relief Will Redress Injury I turn to the third prong of the constitutional standing requirement: whether plaintiffs’ injury is likely to be redressed by the requested relief. Plaintiffs meet this requirement. They seek a permanent injunction requiring defendants to restore the split-estates to the section 603 wilderness inventory and requiring the preparation of an EIS and compliance with the APA in the release of the less than 5,000 acre lands from the wilderness inventory. Clearly, this remedy would redress plaintiffs’ alleged injury by returning certain lands to wilderness study status and by compelling the Government to examine the consequences of its action as to other lands. Stratman v. Watt, 656 F.2d at 1324; American Motorcyclist Ass’n v. Watt, 543 F.Supp. at 792. Although as I explain infra, it does not follow that under such an order no development will be permitted, immediate relief as to the complained of harm would result from an affirmative order. This lawsuit seeks to end the potential for development occasioned by the Secretary’s order, and clearly an invalidation of that order would accomplish that relief. Having found that plaintiffs satisfy the constitutional requirements for standing, I turn to the prudential considerations. B. Prudential Standards The purpose of the so-called “prudential” standing requirements is to ensure that courts address practical and real disputes capable of legal resolution, rather than abstract controversies about the desirability of one course of conduct versus another. In general, these considerations require that plaintiffs show that their own legal rights and interests are tendered, and not merely generalized grievances shared by all citizens, Scott v. Rosenberg, 702 F.2d at 1267, thus avoiding “questions of broad social import where no individual rights would be vindicated.” Gladstone Realtors v. Village of Bellwood, 441 U.S. at 99-100, 99 S.Ct. at 1608. As a general formulation, the prudential component of standing requires plaintiffs to allege that they are at least arguably within the zone of interests protected or regulated by the statutory framework within which the claim arises. Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 39 n. 19, 96 S.Ct. 1917, 1925 n. 19, 48 L.Ed.2d 450 (1976). See also, Preferred Communications v. City of Los Angeles, 754 F.2d 1396, 1403 n. 5 (9th Cir.1985). Resolution of this issue in the case at bar seems reasonably straightforward. First, plaintiffs clearly assert their own legal rights and do not assert the legal interests of others except as they are members of plaintiff organizations. Warth v. Seldin, 422 U.S. at 499, 95 S.Ct. at 2205; Allen v. Wright, — U.S. at -, 104 S.Ct. at 3325 (1984). Second, plaintiffs’ claims are not “ ‘abstract questions of wide public significance’ which amount to ‘generalized grievances’ pervasively shared and most appropriately addressed in the representative branches.” Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464, 475, 102 S.Ct. 752, 760, 70 L.Ed.2d 700 (1982), quoting Warth v. Seldin, 442 U.S. at 499-500, 95 S.Ct. at 2206. Instead, they are specific challenges to the Secretary’s interpretation of a statute. That is, to the degree statutory interpretation is at issue, the representative branches have already resolved the broad policy questions. See, e.g., 43 U.S.C. § 1701(a)(8). Finally, plaintiffs’ claims fall within the “zone of interests to be protected or regulated by the statute ... in question.” Association of Data Processing Service Organizations v. Camp, 397 U.S. 150, 153, 90 S.Ct. 827, 830, 25 L.Ed.2d 184 (1970); Kunaknana v. Clark, 742 F.2d 1145, 1148 (9th Cir.1984); see FLPMA § 102(a)(8), 43 U.S.C. § 1701(a)(8). To the degree this suit seeks to ensure the management standards arguably required by the statute be maintained, it falls directly within the zone of the interests the statute seeks to protect. Defendants’ argument that the issue of whether particular lands shall be included within the wilderness system is a congressional issue misses the point. As I explained above, the whole point of the wilderness study is for BLM to provide Congress with recommendations as to which land should be permanently designated as wilderness. To the degree that multiple use precludes inclusion of such land, Congress is deprived of the opportunity to make that judgment. See California v. Bergland, 483 F.Supp. at 486. I conclude that the plaintiffs have demonstrated standing as a prudential matter. III RIPENESS Defendants assert that the case should be dismissed because it is not ripe for determination. The basic rationale of the ripeness doctrine ‘is to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties.’ Pacific Gas & Electric Co. v. State Energy Resources Conservation & Development Comm., 461 U.S. 190, 200, 103 S.Ct. 1713, 1720, 75 L.Ed.2d 752 (1983), quoting Abbott Laboratories v. Gardner, 387 U.S. 136, 148-49, 87 S.Ct. 1507, 1515, 18 L.Ed.2d 681 (1967). The question of ripeness turns on the “fitness of the issues for judicial decision” and “the hardship to the parties of withholding court consideration.” Id. quoting Abbott Laboratories at 149, 87 S.Ct. at 1515. Plaintiffs have satisfied both prongs of the Abbott Laboratories test. As to the first prong, ripeness is established if the agency action is final and the questions raised are legal rather than factual. Abbott Laboratories, 387 U.S. at 149, 87 S.Ct. at 1515; American Motorcyclist Ass’n v. Watt, 543 F.Supp. 789, 793 (C.D.Cal.1983). Here, while there may be further proceedings by the BLM to determine the management protocol for particular acreage, the Secretary’s action is final as to their consideration for wilderness status. Cf. California v. Bergland, 483 F.Supp. at 476-77. As the Supreme Court has taught, “[t]he cases dealing with judicial review of administrative actions have interpreted the ‘finality’ element in a pragmatic way.” 387 U.S. at 149, 87 S.Ct. at 1516. As a pragmatic matter, the effect of the Secretary’s action is to preclude wilderness designation for these lands no matter what management protocol is eventually determined by the BLM state directors. As to the second prong, the Secretary’s action is “sufficiently direct and immediate as to render the issue appropriate for judicial review at this stage.” 387 U.S. at 152, 87 S.Ct. at 1517. I have noted above that the Secretary’s order potentially results in permanent loss of the land in question for inclusion in the national wilderness system. As my brother in the Central District has observed, “[sjince potentially irreparable environmental harm is threatened by application of these criteria, it would impose a substantial hardship on plaintiffs and would disserve the public interest to postpone review” until the actual environmental harm has been effectuated. American Motorcyclist Ass’n v. Watt, 543 F.Supp. 789, 794 (C.D.Cal.1983). The areas in question have been precluded from wilderness consideration by the Secretary’s action and may at any time be opened to nonwilderness uses. “ ‘[Djecisions to be made now or in the short future may be affected’ by whether we act. ‘One does not have to await the consummation of threatened injury to obtain preventive relief. If the injury is certainly impending, that is enough.’ ” Pacific Gas & Electric v. State Energy Resources Conservation and Development Comm., 461 U.S. at 201, 103 S.Ct. at 1721, quoting Pennsylvania v. West Virginia, 262 U.S. 553, 593, 43 S.Ct. 658, 663, 67 L.Ed. 1117 (1923). I find that plaintiffs’ claims are ripe for adjudication. IV JOINDER A. Intervenors’ Motion Intervenors, Mountain States Legal Foundation and Montezuma County, Colorado (hereinafter “MSLF” or “intervenors”) have moved to require plaintiffs to join all owners of mineral interests on lands affected by this litigation in eleven western states. In the alternative, they seek an order of the court requiring plaintiffs to give notice to the same class of the pendency of this litigation. MSLF contends that all such mineral lessees, holders of mineral reservations, prospecting permittees, and mining claimants (hereinafter “mineral interest owners”) claim or, at some indefinite date in the future, may claim a right to proceed with development activities in the areas that are subject to the Secretary’s action. MSLF first argues that plaintiffs must join the mineral interest owners as “indispensable parties” since disposition of this action in their absence may as a practical matter impair their ability to protect their interests. Prosecution of the plaintiffs’ claims and implementation of plaintiffs’ prayer for relief, MSLF asserts, will necessarily require a determination of the scope and content of the valid existing rights protected by section 701(h) of FLPMA, 43 U.S.C. § 1701 n. (h) and the suit potentially may result in reimposition of “onerous” nonimpairment management standards. See Fed.R.Civ.P. 19(a)(2)(i). Since joinder of these parties is impossible because these individuals could not all be served in one district, MSLF argues that the court should consider whether non-joinder of these parties mandates dismissal of the case. See Fed.R.Civ.P. 19(b). If the rule 19 argument does not prevail, intervenors fallback position is that the due process clause of the Fifth Amendment requires that the mineral interest owners be given notice and an opportunity to intervene in the litigation. Intervenors argue that if plaintiffs prevail, the reimposition of nonimpairment management standards on the lands released by the Secretary’s order for multiple use management will destroy the economic viability of conducting mineral and other development activities which the “valid existing rights” language of FLPMA was designed to protect. They argue that such a result requires notice and an opportunity to be heard from those potentially adversely affected. Plaintiffs, a coalition of environmental organisations and the State of California, oppose the motion on three grounds. They argue that the mineral interest owners need not be joined and are not entitled to personal notice and an opportunity to intervene since their interests will not be impaired by this litigation. Nothing in the relief tiiey seek, plaintiffs argue, will in any way conflict with or impair the valid existing rights protected by FLPMA. Plaintiffs further argue that both rule 19 and due process standards require the imposition of only realistic notice and hearing burdens. Here the burdens that intervenors seek to impose on plaintiffs are neither practical nor realistic and, they assert, would preclude the bringing of this case and other similar litigation challenging federal actions of this type. Finally, plaintiffs argue that even if some sort of joinder or notice would be required under the circumstances, the so-called “public interest exception” to rule 19 relieves them of that burden. B. Rule 19 I begin with an examination of the joinder requirements under the Federal Rules of Civil Procedure. Joinder in the federal system is governed by Fed.R.Civ.P. 19. Under the rule, the issue is whether the absent mineral interest owners are within the class defined by rule 19(a)(1)-(2) and, if so, is dismissal of this litigation required because they cannot all be joined in this litigation. 1. Burden of Persuasion Curiously, although rule 19 analysis is grounded in practicality and equity, cases rarely address the question of which party bears the burden of persuasion. The question appears to be unaddressed in this circuit. Moreover, cases which have addressed the question have done so in a most laconic style. The two district courts which have held that the party asserting joinder bears the burden have done so with little analysis. See Ratner v. Scientific Resources Corp., 53 F.R.D. 325, 329 (S.D.Fla.1971), appeal dism., 462 F.2d 616 (5th Cir.1972) (“Defendants have alleged no facts to indicate that the above requirements for compelling joinder [Fed.R.Civ.P. 19(a)(1)-(2) ] have been met”); Atlantic Aero Inc. v. Cessna Aircraft Co., 93 F.R.D. 333, 334 (M.D.N.C.1981) (“Rule 19(a) requires that Cessna show that the pilot is a ‘person to be joined’ within the meaning of the rule. If Cessna makes such showing, it may then go on to argue that the pilot is indispensable ... ”). On the other hand, the only case which may be read as placing the burden on the party resisting joinder is equally unenlightening. Boles v. Greeneville Housing Authority, 468 F.2d 476, 478 (6th Cir.1972). (“Where an initial appraisal of the facts reveals the possibility that an unjoined party is arguably indispensable, the burden devolves upon the party whose interests are adverse to the unjoined party to negate the unjoined party's indispensability to the satisfaction of the court.”). Ordinarily, of course, the issue of non-joinder is brought to the court’s attention by a motion to require joinder or dismissal. This configuration would suggest that the moving party bears the risk of nonpersuasion. “The general rule is that the proponent of a motion bears the burden of proof.” United States v. Veon, 538 F.Supp. 237, 245-46 (E.D.Cal.1982). Nonetheless, the question is not quite so easily resolved. Although the issue of non-joinder is not jurisdictional, see Provident Bank & Trust Co. v. Patterson, 390 U.S. 102, 119, 88 S.Ct. 733, 743, 19 L.Ed.2d 936 (1968), both a district court, and indeed a court of appeals, may raise the question on its own motion. See Boles v. Greeneville Housing Authority, supra. Under such circumstances, it is unclear whether and how the conventional rule would apply. From this fact it may at least be argued that the conventional rule ought not to apply simply because the issue of joinder was, by happenstance, raised by a party rather than the court. Moreover, it is not uncharacteristic of our system that the burden of persuasion is placed on the party most likely to possess the evidence. Where a moving party seeks joinder under (a)(1) or (a)(2)(ii), that party would ordinarily be possessed of sufficient information so that it would be reasonable to place the burden on that party; however where, as here, (a)(2)(i) is the gravamen of the motion, it is not at all clear that the moving party will be in a position to demonstrate the facts. Unfortunately, this observation does not necessarily lead to the conclusion that the party resisting joinder should bear the burden for, as a practical matter, that party may be equally disabled. The court, frankly, finds the problem troubling and not easily resolved. Nevertheless, because the consequences to the opposing party may include dismissal of the lawsuit, the court determines that the burden should rest upon the party asserting the necessity of joining absent parties. I so find, first, because, as noted above, such an allocation is consistent with the conventional allocation of the burden in most cases. Second, the Supreme Court, by implication, has suggested at least, that such an allocation is appropriate. The Court has explained that one rationale for permitting a court of appeals to raise the issue of nonjoinder on its own motion is to “protect the absent party, who of course had no opportunity to plead and prove his interest below.” Provident Bank, 390 U.S. at 111, 88 S.Ct. at 738. From this language it is not unreasonable to infer that when a party in a lawsuit has raised the issue, that party has the burden of persuading the court that joinder is necessary. Moreover, the Court also suggested that if a party fails to raise issues of nonjoinder in the trial court, “it is quite proper to consider it foreclosed.” 390 U.S. at 110, 88 S.Ct. at 738. Such waiver would ordinarily only make sense if the moving party bore the burden of production and thus as a conventional matter the burden of persuasion. For all the above reasons, the court finds that intervenors bear the burden of persuasion. 2. The Claim, the Record, and the Interest at Stake Intervenors’ basis for joinder is rule 19(a)(2)(i). Thus they must demonstrate that the absent parties claim an interest “relating to the subject matter of the action” disposition of which may, as “a practical matter impair or impede [their] ability to protect that interest.” With this question in mind, the state of the record bears some consideration. Plaintiffs assert that the case is ripe for disposition because those owning various mineral interests can, by virtue of the order, exploit them thus resulting in irretrievable change in the present character of those BLM lands. Thus, plaintiffs have themselves, by their pleadings, recognized the first necessary element of intervenors’ burden — namely, that there are absent persons who, to the degree the land is “the subject matter of the action,” “claim an interest.” Nonetheless, because the court must address the question of whether as a “practical matter” these interests will be affected, it would appear that some further refinement of what interests exist is required. Intervenors do not provide such an evidentiary base. Nonetheless the parties, in their briefing, do not dispute that hundreds, and indeed perhaps thousands, of varying interests exist. Under such circumstances, a further refinement beyond a general categorizing does not seem feasible. While a more refined analysis may not be possible, MSLF makes the not unreasonable argument that as a generic matter, a more restrictive management standard would, in some manner, adversely affect all those interests. Without deciding whether such broad claims, without an evidentiary base would suffice, the court will turn to what it regards as the dispositive issue — does this litigation affect whatever interests exist, in the manner required by rule 19? I have noted that the issues this suit tenders are not, by the terms of plaintiffs’ pleading, an adjudication of property rights qua property rights; rather, the suit tenders three questions of statutory interpretation and administrative review: One, as to the split-estate lands, did Congress intend to include these lands in the wilderness inventory? Two, as to the less than 5,000 acre lands, did Secretary Andrus improperly place those lands under the management protocol dictated by section 603 of FLPMA? Finally, what is the status of these lands in light of Secretary Watt’s subsequent order? These questions present the court with the task of determining the scope and meaning of FLPMA and the Secretary’s powers under it. The suit, then, does not directly deal with the absent parties’ property rights. Under this analysis, intervenors have failed to prove that the absent property owners claim an interest in the subject matter of the litigation. Nonetheless, I recognize that the standard for rule 19 is practicality and thus the technical scope of the subject matter of the litigation may not serve as the only benchmark of resolution of a joinder motion. Here, however, as I explain below, as a practical matter the rights of the absent owners simply will remain substantially unaffected by this litigation. FLPMA, as noted earlier, expressly protects valid existing rights as of the date of its enactment, October 21, 1976. Section 701(h) of FLPMA, 43 U.S.C. § 1701 n. (h). Defendant-intervenors MSLF and Montezuma County do not suggest that plaintiffs’ lawsuit impairs those valid existing rights. Instead, they contend that the lawsuit affects the practical interests of the mineral interest owners in that their future ability to protect their legal interests will be impaired as a result of an adverse ruling from this court. An examination of the suit, however, suggests that intervenors’ fears are unwarranted. Plaintiffs seek a declaratory judgment that Secretary Watt’s order releasing certain lands from wilderness review was in violation of FLPMA; that his order violated the environmental impact statement requirements of NEPA; and, that his order violated the notice and comment requirements of the APA. Plaintiffs urge this court to issue a permanent injunction prohibiting the Secretary from approving development activities on the lands in question that would impair their wilderness values. Plaintiffs also seek a permanent injunction requiring defendants to restore the lands to the wilderness inventory and to management under nonimpairment standards. Because the Secretary’s order deals with two sets of lands, broadly characterized as the split estate lands, see § VI,A, and the less than 5,000 acre lands, see § VI,B, I examine the effects of this litigation on each separately. 3. Split Estate Lands As to the split-estate lands, this litigation has only two potential results. The first would be an approval of Secretary Watt’s order deleting these lands from the section 603 wilderness inventory. Such a decision, one favorable to the defendant-intervenors, would in no way impair or affect the interests of the mineral rights owners thus requiring joinder. The second potential result would be to find Secretary Watt’s order erroneous as a matter of law and to return the split-estate lands to a wilderness review status. In reviewing this latter potentiality for rule 19 joinder purposes, I first note that such a ruling would be a matter of statutory interpretation in light of the process employed by the Department of Interior. Thus any question of fact or law regarding whether any particular estate was properly included in Secretary Andrus’ initial order would be reserved for future litigation and would not be directly affected by the case at bar. Moreover, even the imposition of the higher management standards which might occur by virtue of this litigation will have little or no effect upon the rights of the absent mineral rights owners. The uses existing on these lands at the time the statute was passed are protected by section 603(c), 43 U.S.C. § 1782(c). Put another way, the statute, through section 603, defines what interests are cognizable for rule 19 purposes, and those interests are as fully protected by the statute after as before disposition of this litigation. 4. Less than 5,000 Acre Lands Interests in the land less than 5,000 acres are not governed by section 603. Rather, if Secretary Watt’s order is invalidated and Secretary Andrus’ order upheld, existing and new mining activities arising under the 1872 Mining Law will be regulated only to prevent unnecessary and undue degradation of the lands. Here again there are two possibilities— either the lands are maintained in multiple use status or the land is returned to a more restricted management status. In the latter case, whatever rights exist under the mining laws of 1872 are themselves unaffected, although they will be subject to the undue degradation language of the statute. Thus, whether absent landowners have any rights, the scope of those rights, and whether those rights are being or will be unlawfully restricted by the management protocol imposed, because of the misapplication of the “undue degradation” language or otherwise, are issues simply not affected by this litigation. In sum, any rights preexisting an order of this court in this case are fully open and remain, in essence, unaffected by this litigation. The sole issue being decided here is the propriety of the various Secretaries’ orders — a matter which in itself does not affect the “interests” which intervenors assert gives rise to a right of joinder. In sum, whatever decision this court makes as to the less than 5,000 acre lands, mineral rights owners will still be able to exercise their rights under the 1872 Mining Law. These interests are protected both by the valid existing rights language of section 701(h) of FLPMA and by the provisions for the management of the less than 5,000 acre lands in the IMP. The absent owners may still exercise those rights under whatever management standards result from this court’s resolution of this litigation. It thus appears to this court that, although the question of joinder relative to the less than 5,000 acre lands is more difficult, particularly given the practical approach of the rule, the absent mineral interest owners are not “indispensable parties” within the meaning of the rule or the case law interpreting the rule. While a return to a more restrictive management protocol has practical effects on absent mineral interest owners, resolution of particular disputes is unaffected by this litigation. C. Public Interest Exception The question of joinder of the owners of mineral rights in the less than 5,000 acre lands is a close one. Accordingly, the court will consider whether, even if as a preliminary matter, they should be joined pursuant to Fed.R.Civ.P. 19(a)(2), plaintiffs nevertheless need not join them. Plaintiffs assert that, even if rule 19 joinder is required by the potential effect of this case on the rights of the absent mineral interest owners, the so-called “public interest exception” first articulated in National Licorice Co. v. NLRB, 309 U.S. 350, 60 S.Ct. 569, 84 L.Ed. 799 (1940) bars the imposition of such a burden. The court agrees. In National Licorice, the Supreme Court held that an NLRB enforcement action barring an employer from enforcing contracts with employees which violate the National Labor Relations Act was proper despite a failure of the Board to join the employees who were signatories to the contract at issue. The Court first noted that it was not within any court’s power to make a binding adjudication of the rights of those parties not brought before it. 309 U.S. at 362, 60 S.Ct. at 576. Nonetheless, the Court recognized that the litigation would have a practical effect upon the rights and obligations of the absent employees under the contract; despite this conclusion the Court nevertheless held that joinder was not required. The High Court observed that “[i]n a proceeding so narrowly restricted to the protection and enforcement of public rights, there is little scope or need for the traditional rules governing the joinder of parties in litigation determining private rights.” 309 U.S. at 363, 60 S.Ct. at 577. Although first announced in the context of public agency action, the doctrine has evolved to include the assertion of public rights by private parties. See Jeffries v. Georgia Residential Finance Authority, 678 F.2d 919, 929 (11th Cir.), cert. denied, 459 U.S. 971, 103 S.Ct. 302, 74 L.Ed.2d 283 (1982); Kirkland v. New York State Dept. of Correctional Services, 520 F.2d 420, 424 (2d Cir.1975), cert. denied, 429 U.S. 823, 97 S.Ct. 73, 50 L.Ed.2d 84 (1976); Natural Resources Defense Council v. Berklund, 458 F.Supp. 925, 933 (D.D.C.1978), aff'd, 609 F.2d 553 (D.C.Cir.1980); Natural Resources Defense Council v. TVA, 340 F.Supp. 400, 407 (S.D.N.Y.1971), rev’d on other grounds, 459 F.2d 255 (2d Cir.1972). The exact contours of the public interest exception have not been defined; nonetheless its central concerns are clear. Where what is at stake are essentially issues of public concern and the nature of the case would require joinder of a large number of persons, rule 19’s joinder requirements need not be satisfied. As the Eleventh Circuit recently put it, “when litigation seeks vindication of a public right, third persons who could be adversely affected by a decision favorable to plaintiff do not thereby become indispensable parties.” Jeffries v. Georgia Residential Authority, 678 F.2d at 929. National Licorice was, of course, decided prior to the adoption of the present form of rule 19, and thus its failure to analyze the question in terms of the rule is unremarkable. Unfortunately, subsequent cases have also failed to apply the rule to public interest exception cases. Such textual support for the doctrine, however, is readily at hand. In public rights cases, what is at stake by definition are constitutional, national statutory, or national administrative issues. Almost by the nature of the issues tendered by such litigation, the number of persons who will be affected as a practical matter is very large, and almost certainly a substantial number of those persons cannot be served in one district. To hold that such persons nevertheless must be joined or the case dismissed “would effectively preclude such litigation against the government.” Natural Resources Defense Council v. Berklund, 458 F.Supp. at 933 (D.C.D.C.1978). Rule 19 provides as a factor in considering the court’s response to a joinder motion the issue of “whether the plaintiff will have an adequate remedy if the action is dismissed for nonjoinder,” Fed.R.Civ.P. 19(b). Clearly, the “public interest exception” is the effectuation of this provision. Yet another source, however, justifies the exception. The rules themselves provide that “[tjhey shall be construed to secure the just, speedy and inexpensive determination of every action.” Fed.R.Civ.P. 1. Surely justice cannot be done if public interest litigation is precluded by virtue of the requirements of joinder. Inevitably, the joinder of the large number of persons who could potentially be affected by public interest litigation, even if possible, is not feasible and certainly is not inexpensive. In sum, then, the public interest exception is supported by both rule 19 itself and rule 1, and just makes good sense. The instant case is a fair example of the doctrine. It is brought by six public interest organizations who seek vindication of the provisions of FLPMA by a declaration that a ruling, adopted by the Secretary of Interior and affecting nationally held land in eleven western states, violates the law. On the other side of the issue is the United States government and intervenors, including a public interest group with a viewpoint different from the plaintiffs. Whatever the outer boundaries of the public interest exception, the instant case falls within the heart of it. D. Due Process Because the court has determined that joinder is not required by rule 19, I must now address intervenors’ argument that due process requires the court to order plaintiffs to provide “notice and an opportunity to intervene” to the absent mineral interest owners. The analytical process implicated by due process claims is well established. A party claiming the protection of the clause must first demonstrate “that the interest deprived [or in the instant case threatened to be deprived] was constitutionally protected (i.e., life, liberty, or property)”; Haygood v. Younger, 527 F.Supp. 808, 812 (E.D.Cal.1981), hearing en banc ordered, 729 F.2d 613. “Once it is determined that due process applies, the question remains what process is due.” Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972). I begin with the question of whether this case threatens any interest of the absent mineral rights holders cognizable as an interest protected by the Constitution. The establishment of this interest is a necessary first step in due process analysis. Board of Regents v. Roth, 408 U.S. 564, 567, 577, 92 S.Ct. 2701, 2704, 2709, 33 L.Ed.2d 548 (1972). “Property interests, of course, are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law — rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.” Board of Regents v. Roth, 408 U.S. at 577, 92 S.Ct. at 2709. The mineral interests at issue in this case arise under the Mining Law of 1872. 30 U.S.C. §§ 22-24, 26-28, 29, 30, 33-35, 37, 39-42, and 47 (1971 & Supp.1983). That the mineral interest owners hold property rights which, if threatened, would trigger Fifth Amendment due process protection cannot reasonably be disputed. The question remains, however, whether those interests are sufficiently implicated by the instant litigation so as to require notice and an opportunity to be heard under the Fifth Amendment. In other words, what process is due? Because due process is a “flexible” concept, whose requisites turn upon the circumstances, analysis requires a determination of those circumstances, i.e., “a determination of the precise nature of the government function involved as well as of the private interest that has been [or will be] affected by governmental action.” Cafeteria & Restaurant Workers Union v. McElroy, 367 U.S. 886, 895, 81 S.Ct. 1743, 1748, 6 L.Ed.2d 1230 (1961). This determination is required because if the “private interest” is substantially unaffected by the “governmental function,” and is essentially preserved for future consideration, the Fifth Amendment may require no process as. due in relation to the governmental function. The “governmental function” here is, of course, this litigation. Thus, it is appropriate as a first step to consider what due process standards attach to litigation. As I explain, that question in turn rests upon how the litigation will affect the property interests of the absent owners. “A fundamental requirement of due process is ‘the opportunity to be heard’ [citation omitted] ... at a meaningful time and in a meaningful manner.” Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 1191, 14 L.Ed.2d 62 (1965). Implicated in this formulation of the standard is the further question of meaningful to what? The answer seems straightforward enough— the hearing must be meaningful in terms of the threatened conduct. That is, if the conduct does not threaten the interest, due process does not require notice and an opportunity to be heard. In cases alleging the threat of deprivation of property without due process, the question may be put, is there a deprivation? Once a deprivation is threatened, the next question is frequently analyzed in terms of whether a pre or post “deprivation” hearing is required. Compare Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970) with Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). As I shall now explain, because this litigation does not in itself threaten any immediate deprivation, and because the absent landowners’ rights, if threatened, are fully preserved for litigation, notice and opportunity to be heard in this litigation does not appear to be required by the due process clause. I have noted in the context of the rule 19 discussion above, that by virtue of section 603(c), 43 U.S.C. § 1782(c), Congress specifically protected any valid existing rights. See also section 701 of FLPMA, 43 U.S.C. § 1701 n. (h), (“[a]ll actions by the Secretary concerned under this Act shall be subject to valid existing rights”). It is clear from this language that Congress meant to protect the mineral interest owners’ rights that MSLF asserts are affected by this litigation. Accordingly, as a threshold matter, intervenors’ argument that these rights will be determined by this litigation is without basis. Intervenors do acknowledge that the “valid existing rights” language of FLPMA protects the rights of mineral interest owners. Nonetheless, they argue that the application of a stricter management standard to the lands in question is a potential consequence of this litigation and thus requires notice to the absent owners. I have already discussed and rejected this argument in the context of the rule 19 discussion, supra. I find this argument in the present context equally unpersuasive. First, given the breadth of the statutory language, it is difficult to identify what rights would .fall outside the valid existing rights language of the statute. To the degree that MSLF argues that rights are being affected by this litigation which do fall outside that language and do not demonstrate another source for the right, it follows that they are not “valid existing rights,” and thus not property interests falling within the protection of the due process clause. Put another way, either the interest is a valid existing right protected by the property provision of the due process clause and unaffected by this litigation or it is not, and thus is