Center for Biological Diversity ( 2005 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CENTER FOR BIOLOGICAL DIVERSITY, 
a nonprofit corporation; CENTRAL
AZ PADDLERS CLUB,
Plaintiffs-Appellants,
v. No. 02-16201
ANN M. VENEMAN, Secretary of the D.C. No.
United States Department of  CV 01-00477 WDB
Agriculture; DALE BOSWORTH, ORDER AND
Chief of United States Forest AMENDED
Service; ELEANOR TOWNS, Regional OPINION
Forester, United States Forest
Service, Region Three; UNITED
STATES FOREST SERVICE,
Defendants-Appellees.

Appeal from the United States District Court
for the District of Arizona
William D. Browning, District Judge, Presiding
Argued and Submitted
March 11, 2003—San Francisco, California
Filed July 7, 2003
Opinion Withdrawn and
Amended Opinion Filed January 7, 2005
Before: Alfred T. Goodwin, A. Wallace Tashima, and
Kim McLane Wardlaw, Circuit Judges.
Opinion by Judge Tashima
211
214 CENTER FOR BIOLOGICAL DIVERSITY v. VENEMAN
COUNSEL
Matthew K. Bishop, Western Environmental Law Center,
Taos, New Mexico, for the plaintiffs-appellants.
Anna T. Katselas, U.S. Department of Justice, Environment &
Natural Resources Division, Washington, D.C., for the
defendants-appellees.
ORDER
Federal appellees’ petition for panel rehearing is granted.
The opinion filed July 7, 2003, and reported at 335 F.3d 849,
is withdrawn and replaced by the amended opinion filed con-
currently with this order.
OPINION
TASHIMA, Circuit Judge:
In our previous opinion, we held that the district court had
jurisdiction to review the claims of the Center for Biological
Diversity and Central Arizona Paddlers Club (together the
“Center”) under § 706(1) of the Administrative Procedure Act
(“APA”), 5 U.S.C. § 706(1), because (1) under the Wild and
Scenic Rivers Act (“WSRA”), 16 U.S.C. § 1276(d)(1), the
United States Forest Service (“Forest Service”) had a manda-
tory duty to consider potentially eligible rivers in planning for
CENTER FOR BIOLOGICAL DIVERSITY v. VENEMAN 215
the use and development of land resources, and (2) the Forest
Service failed to act pursuant to this mandatory duty. Ctr. for
Biological Diversity v. Veneman, 335 F.3d 849, 857 (9th Cir.
2003). Our conclusion relied on our holding in Montana Wil-
derness Association, Inc. v. United States Forest Service, 314
F.3d 1146 (9th Cir. 2003), that the Forest Service’s duty to
maintain potential wilderness study areas in their presently
existing wilderness character under the Montana Wilderness
Study Act was a nondiscretionary, mandatory duty that the
Service could be compelled to carry out under § 706(1) of the
APA. Id. at 1151.
After our opinion was filed, the Supreme Court held in
Norton v. Southern Utah Wilderness Alliance, 124 S. Ct. 2373(2004) (“SUWA”), that a claim under § 706(1) “can proceed
only where a plaintiff asserts that an agency failed to take a
discrete agency action that it is required to take.” Id. at 2379.
The Court also vacated Montana Wilderness, on which we
relied extensively in reaching our decision in this case, and
remanded that case to this court for further consideration in
light of SUWA. Veneman v. Mont. Wilderness Ass’n, Inc., 124
S. Ct. 2870, 2870 (2004). Because the Court explained in
SUWA that a “failure to consider” certain issues while plan-
ning for the use and development of land resources is not a
failure to take discrete agency action, as required for standing
under § 706(1), we now conclude that the Center has not
alleged a failure to take a discrete agency action.
We have jurisdiction under 28 U.S.C. § 1291, and we hold
that the district court did not err in granting the Forest Ser-
vice’s motion to dismiss for lack of standing. We reverse,
however, the district court’s denial of the Center’s motion for
leave to amend, and remand with instructions to permit the
Center to amend its complaint.
BACKGROUND
The WSRA created a national system of free-flowing rivers
to be permanently administered as wild, scenic, or recre-
216 CENTER FOR BIOLOGICAL DIVERSITY v. VENEMAN
ational rivers by state agencies. See 16 U.S.C. §§ 1271-1287.
A river is eligible for protection under the WSRA if it is free-
flowing and possesses at least one of the outstanding remark-
able values set forth in the statute. 16 U.S.C. §§ 1271,
1273(b). The WSRA requires the Secretaries of Agriculture
and the Interior to conduct “specific studies and investiga-
tions” to discover rivers eligible for inclusion in the national
wild and scenic rivers system (“WSRS”). 16 U.S.C.
§ 1276(d)(1). Rivers are designated for inclusion in the WSRS
through an act of Congress or an application by a state gover-
nor acting pursuant to an act of the state legislature. 16 U.S.C.
§ 1273(a).
In 1993, in response to a request by the Arizona congres-
sional delegation, the Forest Service conducted three studies
of Arizona’s free-flowing rivers, identifying those streams
and river segments that satisfied the statutory requirements for
inclusion in the WSRS. The Service published its findings in
a 300-page report (the “1993 Report”), which identified 57
rivers and streams that qualified as potential additions to the
WSRS and which provided all of the necessary information to
determine which Arizona streams or river segments met the
WSRA’s criteria for designation.
In 2001, the Center commenced this action for the Forest
Service’s alleged failure to comply with 16 U.S.C.
§ 1276(d)(1), which directs the government to take rivers and
streams that qualify for inclusion in the WSRS into account
while planning for the use and development of federal land.
Because the WSRA does not provide for a private right of
action, the Center asserted standing under § 706(1) of the
APA, which provides relief for “agency action unlawfully
withheld or unreasonably delayed.” See 5 U.S.C. § 706(1).
The district court concluded that the Center failed to meet
the requirements of § 706(1) because the Center could not
show that the Forest Service unlawfully withheld agency
action. It reasoned that the Forest Service had no statutory
CENTER FOR BIOLOGICAL DIVERSITY v. VENEMAN 217
duty “to perform a systematic § 1276(d)(1) review before the
revision of a forest plan.” The district court therefore dis-
missed the action for lack of subject matter jurisdiction. In
addition, concluding that the WSRA imposes no statutory
duty “to perform a systematic § 1276(d)(1) review before the
revision of a forest plan,” the district court denied the Cen-
ter’s request for leave to amend its complaint, reasoning that
any amendment would be futile. It further noted that any par-
ticular project-specific determinations “would be more appro-
priately brought in a new lawsuit if Plaintiffs wish to
proceed.” The Center timely appealed.
STANDARD OF REVIEW
We review de novo a dismissal for lack of subject matter
jurisdiction. See Luong v. Circuit City Stores, Inc., 368 F.3d
1109, 1111 n.2 (9th Cir. 2004); City of San Diego v. Whitman,
242 F.3d 1097, 1101 (9th Cir. 2001). We also review de novo
a dismissal without leave to amend. See Thinket Ink Info. Res.,
Inc. v. Sun Microsystems, Inc., 368 F.3d 1053, 1061 (9th Cir.
2004). Denial of leave to amend “is improper unless it is clear
. . . that the complaint could not be saved by any amendment.”
Id.DISCUSSION
The Forest Service argues that (1) the 1993 Report is not
an agency-initiated study that inventories eligible rivers under
the WSRA, and (2) the Center has no standing under
§ 706(1). The Center argues that the district court erred in
denying its motion for leave to amend its complaint. We
address each of these arguments in turn.
I. The 1993 Report
[1] The 1993 Report “provides resource information for
potential wild, scenic, and recreational rivers on six National
Forests in Arizona.” In a similar passage, the Report states
218 CENTER FOR BIOLOGICAL DIVERSITY v. VENEMAN
that its purpose is to provide information on those rivers that
the Forest Service “determine[s] to be potentially eligible for
inclusion in the national wild and scenic rivers systems.” The
1993 Report conforms to the dictates of the WSRA by
expressly identifying the two statutory characteristics of an
eligible river: first, that it is free flowing, and second, that it
possesses at least one “outstanding remarkable value.” See 16
U.S.C. §§ 1271, 1273(b). Furthermore, the rivers included in
the 1993 Report have been listed on the Nationwide Rivers
Inventory, “a register of river segments that potentially qual-
ify as national wild, scenic or recreational river areas” main-
tained by the National Park Service “in partial fulfillment of
[16 U.S.C. § 1276(d)].” Nationwide Rivers Inventory, avail-
able at http://www.nps.gov/ncrc/programs/rtca/nri/states/
az.html.
[2] For the foregoing reasons, we conclude that the 1993
Report constitutes an agency-initiated inventory of Arizona
rivers potentially eligible for inclusion in the nationwide
WSRS.
II. “Failure to Act” Under § 706(1) of the APA
The Forest Service argues that the consideration of poten-
tially eligible rivers in project plans is neither (1) a discrete
agency action, nor (2) an action that the Service is legally
required to take under the WSRA. We limit our consideration
to the Center’s “discrete agency action” claim.
In SUWA, the plaintiffs asserted that the Bureau of Land
Management (“BLM”) failed to comply with the Federal
Land Policy and Management Act of 1976 (“FLPMA”),
which requires the Secretary of the Interior to manage desig-
nated wilderness study areas “ ‘in a manner so as not to
impair the suitability of such areas for preservation as wilder-
ness.’ ” 124 S. Ct. at 2377 (quoting 43 U.S.C. § 1782(c)).
Because FLPMA does not provide a private right of action,
CENTER FOR BIOLOGICAL DIVERSITY v. VENEMAN 219
the plaintiffs sought relief under § 706(1) of the APA. See
SUWA, 124 S. Ct. at 2378.
[3] The Court concluded that “a claim under § 706(1) can
proceed only where a plaintiff asserts that an agency failed to
take a discrete agency action that it is required to take.” Id.
at 2379. First, the Court explained that the term “failure to
act,” as used in § 706(1), is “a failure to take an agency action
— that is, a failure to take one of the agency actions (includ-
ing their equivalents) earlier defined in § 551(13).” Id. at
2379. The Court noted that § 551(13) of the APA defined
agency action by listing “five categories of decisions made or
outcomes implemented by an agency — ‘agency rule, order,
license, sanction [or] relief.’ ” Id. at 2378 (quoting 8 U.S.C.
§ 551(13)).
All of those categories involve circumscribed, dis-
crete agency actions, as their definitions make clear:
“an agency statement of . . . future effect designed
to implement, interpret, or prescribe law or policy”
(rule); “a final disposition . . . in a matter other than
rule making” (order); a “permit . . . or other form of
permission” (license); a “prohibition . . . or taking
[of] other compulsory or restrictive action” (sanc-
tion); or a “grant of money, assistance, license,
authority,” etc., or “recognition of a claim, right,
immunity,” etc., or “taking of other action on the
application or petition of, and beneficial to, a per-
son” (relief).
Id. (quoting 8 U.S.C. § 551(4), (6), (8), (10), (11)).
The Court further noted that the limitation to discrete
agency action “precludes the kind of broad programmatic
attack” rejected by the Court in Lujan v. National Wildlife
Federation, 497 U.S. 871 (1990). SUWA, 124 S. Ct. at 2379-
80. The Court explained that, in National Wildlife Federation,
the plaintiffs challenged the BLM’s land withdrawal review
220 CENTER FOR BIOLOGICAL DIVERSITY v. VENEMAN
program, “couched as unlawful agency ‘action’ that the plain-
tiffs wished to have ‘set aside’ under [§ 706(2) of the APA.]”
SUWA, 124 S. Ct. at 2380 (noting that the Court held in Nat’l
Wildlife Fed’n that plaintiffs could not “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”). The Court
then reasoned that the plaintiffs in National Wildlife Federa-
tion “would have fared no better if they had characterized the
agency’s alleged ‘failure to revise land use plans in proper
fashion’ and ‘failure to consider multiple use’ . . . in terms of
‘agency action unlawfully withheld’ under § 706(1), rather
than agency action ‘not in accordance with law’ under
§ 706(2). SUWA, 124 S. Ct. at 2380.
[4] Second, the Court explained that “the only agency
action that can be compelled under the APA is action legally
required.” Id. at 2379. The Court reasoned that “§ 706(1)
empowers a court only to compel an agency ‘to perform a
ministerial or non-discretionary act,’ or ‘to take action upon
a matter, without directing how it shall act.’ ” Id. (quoting
Attorney General’s Manual on the Administrative Procedure
Act 108 (1947)). The Court explained that, “[t]hus, when an
agency is compelled by law to act within a certain time
period, but the manner of its action is left to the agency’s dis-
cretion, a court can compel the agency to act, but has no
power to specify what the action must be.” Id. at 2380.
The Court then turned to the plaintiffs’ claims and reasoned
that, although the relevant provision of FLPMA “is manda-
tory as to the object to be achieved” — that is, the manage-
ment of wilderness study areas in a manner so as not to impair
the suitability of such areas for preservation as wilderness —
“it leaves BLM a great deal of discretion in deciding how to
achieve it.” Id. The Court reasoned that the statute “assuredly
does not mandate, with the clarity necessary to support judi-
cial action under § 706(1), the total exclusion of [off-road
vehicle] use.” Id.
CENTER FOR BIOLOGICAL DIVERSITY v. VENEMAN 221
The Court also rejected the plaintiffs’ assertion that a fed-
eral court “could simply enter a general order compelling
compliance with that mandate [of non-impairment], without
suggesting any particular manner of compliance,” reasoning
that “[g]eneral deficiencies in compliance . . . lack the speci-
ficity requisite for agency action.” Id. at 2381. The Court
explained that empowering courts to enter general orders
“compelling compliance with broad statutory mandates”
would result in “injecting the judge into day-to-day agency
management” and raises the “prospect of pervasive oversight
by federal courts over the manner and pace of agency compli-
ance with such congressional directives.” Id.
The Court concluded that the APA therefore did not confer
upon the plaintiffs a right to sue for the BLM’s alleged viola-
tion of the non-impairment provision of FLPMA. See id. The
Court also reasoned that the BLM land use plans — with
which the plaintiffs alleged the BLM failed to comply —
were not legally binding commitments enforceable under
§ 706(1), and concluded that therefore the courts had no
authority to compel agency compliance with the land use
plans under § 706(1). Id. at 2384.
The Forest Service argues that, under SUWA, the WSRA’s
statutory directive to consider the 57 potentially eligible rivers
does not involve a discrete agency action, but rather, consti-
tutes only “part of the Forest Service’s decisionmaking pro-
cess leading to a final agency action, i.e., the issuance or
denial of a permit.” The Service also argues that the Center’s
“failure to consider” claim is a “broad programmatic chal-
lenge to the Forest Service’s overall management of the river
areas” of the kind rejected by the Supreme Court in SUWA.
[5] The Court’s reasoning in SUWA compels us to conclude
that the Center does not assert a failure to take a “discrete
agency action.” The complaint alleges that the Forest Service
failed to consider the 57 potentially eligible rivers while plan-
ning for the use and development of water and related land
222 CENTER FOR BIOLOGICAL DIVERSITY v. VENEMAN
resources in the national forests of Arizona. This allegation is
indistinguishable from the one rejected by the Court in
SUWA. There, the Court reasoned that, even if the plaintiffs
in National Wildlife Federation had characterized the agen-
cy’s alleged “failure to revise land use plans in proper fash-
ion” and “failure to consider multiple use” in terms of
“agency action unlawfully withheld” under § 706(1) — rather
than agency action “not in accordance with law” under
§ 706(2) — the plaintiffs nonetheless would not have pled a
failure to take a “discrete agency action.” SUWA, 124 S. Ct.
at 2380.
The Center argues that its failure to consider claim is more
specific than the example set forth in SUWA because (1) its
claim involves only 57 specific rivers, and (2) the Forest Ser-
vice “either gives, or does not give, consideration to the rivers
while planning,” thus avoiding the danger of requiring “per-
vasive oversight by federal courts over the manner and pace
of agency compliance,” which the Court warned against in
SUWA. While a duty “to consider” may be more specific and
less discretionary than the duty “ ‘to manage [wilderness
study areas] . . . in a manner so as not to impair the suitability
of such areas for preservation as wilderness,’ ” id. (quoting 43
U.S.C. § 1782(c)), this argument fails sufficiently to distin-
guish the Center’s claim from the “failure to consider” exam-
ple rejected by the Court in SUWA.
[6] Because the Center fails to allege a discrete agency
action that the Forest Service failed to take, the Center has no
standing under § 706(1). See id. at 2385 (sustaining district
court’s dismissal for lack of subject matter jurisdiction).
Given the Supreme Court’s holding in SUWA, we affirm the
district court’s dismissal for lack of subject matter jurisdic-
tion.
III. Motion for Leave to Amend
The Center argues that the district court erred in denying it
leave to amend its complaint to assert claims for which
CENTER FOR BIOLOGICAL DIVERSITY v. VENEMAN 223
§ 706(1) provides standing. The Center asserts that it has spe-
cific information, obtained through Freedom of Information
Act requests, about individual projects in the watersheds of
the 57 rivers at issue, “where the Forest Service has autho-
rized livestock grazing, mining, water projects, and/or timber
harvesting . . . without first taking the rivers’ wild and scenic
status into account.” The Center further argues that, although
it technically could assert issues not pleaded in this case in a
separate suit, the doctrine of res judicata might prevent it from
doing so.
[7] Although the Court’s reasoning in SUWA apparently
forecloses a general “failure to consider” claim under
§ 706(1), the Center may be able to assert a “discrete agency
action that [the agency] is required to take” under
§ 1276(d)(1) of the WSRA by alleging specific failures of the
Forest Service to consider specific rivers when planning for
specific projects. For example, the Forest Service’s failure to
consider a specific river when granting a license to permit
livestock grazing within the watershed of that specific river
may constitute a failure to take discrete agency action that the
Service is required to take.
Further, the Center may be able to assert a claim for failure
to act pursuant to (1) other, related provisions of the WSRA,
and (2) the regulations, promulgated by the Departments of
Agriculture and the Interior, interpreting the WSRA. For
example, § 1283(a) of the WSRA provides,
The Secretary of the Interior, the Secretary of
Agriculture, and the head of any other Federal
department or agency having jurisdiction over any
lands which include, border upon, or are adjacent to,
any river included within the National Wild and Sce-
nic Rivers System or under consideration for such
inclusion, in accordance with section 1273(a)(ii),
1274(a), or 1276(a) of this title, shall take such
action respecting management policies, regulations,
224 CENTER FOR BIOLOGICAL DIVERSITY v. VENEMAN
contracts, plans, affecting such lands . . . as may be
necessary to protect such rivers in accordance with
the purposes of this chapter. . . . Particular attention
shall be given to scheduled timber harvesting, road
construction, and similar activities which might be
contrary to the purposes of this chapter.
16 U.S.C. § 1283(a). The Center may be able to allege a fail-
ure to take specific, discrete agency actions “respecting man-
agement policies, regulations, contracts, [or] plans” that are
“necessary to protect” specific rivers pursuant to § 1283(a).
See id.; see also Wilderness Soc’y v. Tyrrel, 918 F.2d 813,
820 (9th Cir. 1990) (remanding to the district court the factual
question of whether the Forest Service’s grant of permission
to harvest burned timber on federal land adjacent to a river in
the WSRS fulfilled the Service’s obligations under § 1283).
Similarly, the Center may be able to allege a failure to comply
with the regulations promulgated by the Departments of Agri-
culture and the Interior, which provide that, with regard to riv-
ers potentially eligible for inclusion in the WSRS, agencies
“will include an analysis of alternatives . . . . encompassing
all reasonable proposals for use of the river area including
uses which may be incompatible with designation of the river
area as a component of the national system.” 47 Fed. Reg.
39455, 39458 (Sept. 7, 1982).
[8] In sum, it is not clear beyond doubt that amendment of
the complaint would be futile. See Thinket Ink Info. Res., 368
F.3d at 106 (explaining that dismissal without leave to amend
is improper unless it is clear that the complaint could not be
saved by any amendment). Further, contrary to the district
court’s belief, dismissal with prejudice may, indeed, preclude
the Center from asserting such claims in a separate proceed-
ing under the doctrine of claim preclusion. See Semtek Int’l
Inc. v. Lockheed Martin Corp., 531 U.S. 497, 505-06 (2001)
(explaining that a dismissal that precludes refiling of the same
claim in the same court is an “adjudication upon the merits”
under Fed. R. Civ. P. 41(b)); Cent. Delta Water Agency v.
CENTER FOR BIOLOGICAL DIVERSITY v. VENEMAN 225
United States, 306 F.3d 938, 952-53 (9th Cir. 2002) (explain-
ing that claim preclusion applies where the two suits arise out
of the same transactional nucleus of facts). We therefore
reverse the district court’s denial of the Center’s motion for
leave to amend.
CONCLUSION
The Supreme Court explained in SUWA that a “failure to
consider” certain issues while planning for the use and devel-
opment of land resources is not a failure to take discrete
agency action, as required for standing under § 706(1).
Because the Center does not allege a failure to take a discrete
agency action, we affirm the district court’s dismissal for lack
of standing under § 706(1). At the same time, however,
because it is not clear that amendment of the complaint would
be futile, we reverse the district court’s denial of the Center’s
motion for leave to amend and remand with instructions to
permit the Center to amend its complaint. Each side shall bear
its own costs on appeal.
AFFIRMED in part, REVERSED in part, and
REMANDED.