Hells Canyon v. Usfs ( 2010 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
HELLS CANYON PRESERVATION 
COUNCIL, an Oregon non-profit
corporation; and THE WILDERNESS
SOCIETY, No. 07-35456
Plaintiffs-Appellants,
v.  D.C. No.
CV-02-01138-HA
UNITED STATES FOREST SERVICE, an OPINION
agency of the United States
Department of Agriculture,
Defendant-Appellee.

Appeal from the United States District Court
for the District of Oregon
Ancer L. Haggerty, District Judge, Presiding
Argued and Submitted
December 11, 2008—Portland, Oregon
Filed January 25, 2010
Before: Diarmuid F. O’Scannlain, Susan P. Graber, and
Jay S. Bybee, Circuit Judges.
Opinion by Judge Bybee;
Partial Concurrence and Partial Dissent by Judge Graber
1397
1400 HELLS CANYON PRESERVATION COUNCIL v. USFS
COUNSEL
Brett E. Brownscombe (argued), Portland, Oregon; William
H. Sherlock, Hutchinson, Cox, Coons, Dupriest, Orr & Sher-
lock, P.C., Eugene, Oregon, for the plaintiffs-appellants.
Mark R. Haag, United States Department of Justice, Washing-
ton, D.C., for the defendant-appellee.
OPINION
BYBEE, Circuit Judge:
Plaintiffs-Appellants Hells Canyon Preservation Council
and The Wilderness Society (collectively, “HCPC” or “plain-
tiffs”) brought suit against the United States Forest Service
(“Forest Service” or “Service”), seeking a judgment declar-
ing: (1) that the Forest Service has failed to retain the original
map of the Wilderness in violation of the Hells Canyon
National Recreation Area Act, 16 U.S.C. § 460gg(b); (2) that
the Forest Service’s description of the wilderness boundary is
arbitrary and capricious in violation of 5 U.S.C. § 706(2)(A);
and (3) that the Forest Service’s failure to close the Lord Flat
HELLS CANYON PRESERVATION COUNCIL v. USFS 1401
Trail to motorized vehicle use is an “agency action unlawfully
withheld or unreasonably delayed” under 5 U.S.C. § 706(1).
Plaintiffs also seek an injunction to close the Lord Flat Trail
to motorized vehicle use. The district court held that each of
plaintiffs’ claims was barred by the Administrative Procedure
Act’s (“APA’s”) six-year statute of limitations. Although we
rely on different reasoning, we affirm the judgment of the dis-
trict court.
I
Stretching across 214,944 acres, the Hells Canyon Wilder-
ness straddles the state boundary between Oregon and Idaho.
The Snake River winds along the same boundary, creating
two distinct regions of the Wilderness: one side, in Idaho,
consists of towering peaks and rock-faced slopes; the other
side, slightly larger, in Oregon, exhibits expanses of grassland
dotted with Douglas fir trees and free-flowing creeks.1
“To assure that the natural beauty and historical and arche-
ological values of the Hells Canyon area . . . are preserved for
this and future generations,” Congress passed the Hells Can-
yon National Recreation Area Act (“Hells Canyon Act” or
“Act”) in 1975. Pub. L. No. 94-199, 89 Stat. 1117 (1975)
(codified at 16 U.S.C. §§ 460gg-460gg-13). The Act estab-
lished the Hells Canyon National Recreation Area (“Hells
Canyon Area”), id. § 460gg(a), and designated the Hells Can-
yon Wilderness, located within the Hells Canyon Area, id.
§ 460gg-1(a), as wilderness. As a congressionally designated
wilderness area, Hells Canyon Wilderness is governed by
both the Hells Canyon Act and the Wilderness Act, 16 U.S.C.
§§ 1131-1136, whichever is more restrictive, id. § 460gg-1(b).
With respect to motorized vehicles, the Wilderness Act is
more restrictive because it prohibits the “use of motorized
vehicles” within designated wilderness areas “except as nec-
1
See http://www.fs.fed.us/hellscanyon/things_to_see_and_do/hells_
canyon_wilderness/ (last visited Dec. 1, 2009).
1402 HELLS CANYON PRESERVATION COUNCIL v. USFS
essary to meet minimum requirements for the administration
of the area.” Id. § 1133(c).
Congress identified two sources to define the contours of
the Hells Canyon Area: a map and a boundary description.
The map, created by the Forest Service in May 1978, was
titled the “Hells Canyon National Recreation Area.” 16
U.S.C. § 460gg(b). The Act requires that the map “be on file
and available for public inspection in the office of the Chief,
Forest Service, United States Department of Agriculture.” Id.
In addition, Congress instructed the Secretary of Agriculture
to “publish a detailed boundary description of the recreation
area,” including the Hells Canyon Wilderness. Id. In 1978, the
Secretary complied by preparing a metes-and-bounds bound-
ary description and inviting public comment. In 1981, the
Forest Service published final notice of the boundary descrip-
tion in the Federal Register but, “[i]n the interests of econo-
my,” did not publish either the full metes-and-bounds
description or the map in the Federal Register. 46 Fed. Reg.
34,611-02, 34,611 (July 2, 1981). Instead, the boundary
description was made available for review at the Forest Ser-
vice in Washington, D.C., and at Regional Forester offices in
Idaho, Montana, Oregon, and Utah, and the boundary descrip-
tion and map were lodged with committees in the House of
Representatives and the Senate.
Although it has been almost thirty years since the Forest
Service published the map and the boundary description, there
continues to be controversy regarding the precise location of
the Hells Canyon Wilderness boundary and, in particular, its
western boundary. In general, the boundary description
locates the Wilderness boundary by reference to specific map
coordinates and to topographic descriptors such as “ridge,”
“hydrologic divide,”2 and “rim.” The 1978 public notice
2
A hydrologic divide is “the boundary line along a topographic ridge or
high point which separates two adjacent drainage basins.” Water Words
Dictionary, Nevada Division of Water Resources 89 (2009), available at
http://water.nv.gov/WaterPlanning/dict-1/PDFs/wwords-d.pdf. (under “Di-
vide”) (last visited Dec. 1, 2009).
HELLS CANYON PRESERVATION COUNCIL v. USFS 1403
regarding the proposed boundary explained that “[t]he estab-
lished Hells Canyon Wilderness boundary has been located on
the most identifiable feature of the canyon rim. In some cases
this is the rim and in other cases it is the crest of a hill.” The
description frequently refers to the western boundary as the
“east rim of Summit Ridge.” In 1994, a registered land sur-
veyor advised the Forest Service that the “east rim of the
ridge” was not a precise definition “because the position of
the rim varies with respect to the topography of the ridge.” He
indicated that the terms “hydrologic divide” and “rim” were,
in this context, “mutually exclusive.” The surveyor explained
that the features might but would not necessarily run parallel:
The hydrologic divide is the line defined by the
highest elevation points along the divide. The rim is
interpreted as a topographic feature below the hydro-
logic divide where the downward slope of the divide
increases significantly in comparison to the down-
ward slope between the rim and the divide. At points
along the hydrologic divide the initial downward
slope may be steep enough that the rim is congruous
with the divide.
The surveyor concluded that “references [in the description]
to the rim are not synonymous with references to the hydro-
logic divide.”
Running along the western boundary of Hells Canyon Wil-
derness is a fifteen-mile man-made unpaved road known as
the Lord Flat Trail. The Trail, originally created in 1960 to
help fight a forest fire, is an unmarked travelway located on
the Lord Flat Plateau, west of—and generally parallel to—the
Snake River. Commencing at Warnock Corral, the Trail
moves north, crossing the hydrologic divide between the
Snake River and the Inmaha River drainages several times
before terminating at the Lord Flat landing strip. The Trail is
suitable for four-wheel drive vehicles only.
1404 HELLS CANYON PRESERVATION COUNCIL v. USFS
In 1989, the U.S. Forest Service discovered that a 1.5-mile
stretch of the Trail traversed the western boundary of the
Hells Canyon Wilderness. Upon making this discovery, the
Forest Service temporarily banned motorized vehicle use on
the Trail. After soliciting advice from a number of sources,
the Forest Service decided, in 1992, to relocate the offending
1.5-mile part of the Trail outside the Wilderness area and pub-
licly issued a Decision Memo to that effect.3 The Memo
described the relocation of the Trail as a “minor realignment”
and indicated that the entire length of the Trail—which, as a
result of the Forest Service’s decision, now fell completely
outside the Wilderness—would be reopened for motorized
use. The Forest Service based its decision in part on the Hells
Canyon Act, which it read to provide that “the immediate wil-
derness boundary along the western side of Hells Canyon
would be the canyon rim.” It also indicated that its plan was
consistent with Congress’s intent to “provid[e] access to sce-
nic views from the Western rim of Hells Canyon.” 16 U.S.C.
§ 460gg-5(c).
After learning of the Lord Flat Trail’s relocation, HCPC
brought suit in 1994, alleging that the Forest Service had vio-
lated the National Environmental Policy Act of 1969
(“NEPA”), 42 U.S.C. §§ 4321-4347, by failing to file an envi-
ronmental impact statement when it relocated the portion of
the Trail. HCPC’s suit also alleged that, even after the reloca-
tion, other parts of the Trail remained within the Hells Can-
yon Wilderness and that, consequently, motorized vehicle
access to the Trail violated the Wilderness Act. See Hells
Canyon Pres. Council v. U.S. Forest Serv. (“HCPC I”), 883
F. Supp. 534, 535 (D. Or. 1995).
HCPC’s Wilderness Act claim in HCPC I was based on a
3
The Forest Service ordered that the wilderness-traversing 1.5 mile por-
tion of the Trail be blocked off with logs and seeded with grass, and an
entirely new section of the Trail—this one outside the wilderness
boundary—constructed.
HELLS CANYON PRESERVATION COUNCIL v. USFS 1405
“Forest Service transportation system map,” showing a half-
mile area in which the Trail appeared to cross the Wilderness
boundary. In response to HCPC’s summary judgment motion,
the Forest Service asserted that the map upon which HCPC
relied to bolster its claim was “incorrect.” During oral argu-
ment before the district court on the parties’ cross-motions for
summary judgment, HCPC voluntarily abandoned its Wilder-
ness Act claim. The district court, after rejecting HCPC’s
NEPA claim on the merits, dismissed the cross-motions for
summary judgment on the Wilderness Act claim as moot. See
HCPC I, 883 F. Supp. at 539.
Seven years later, in 2002, HCPC staff again voiced
HCPC’s concerns about motorized vehicle access to the Trail
and met with the Forest Service to document the places where
the Trail purportedly crossed the hydrologic divide. The Ser-
vice responded that at the documented points the hydrologic
divide did not establish the Hells Canyon Wilderness bound-
ary. Rather, the Service explained, at those points the rim
marked the boundary, leaving the Trail entirely outside the
wilderness area. As a result, the Forest Service observed,
motorized vehicle use on the Trail did not violate the Wilder-
ness Act.
HCPC then brought the present suit, alleging violations of
the Hells Canyon Act, the APA, and the Wilderness Act. Spe-
cifically, HCPC alleged that (1) the Forest Service violated
the Hells Canyon Act by failing to produce or otherwise pro-
vide the original 1978 map, which the statute requires be on
file in the Forest Service Chief’s office; (2) the Forest Service
violated the APA because its determination that the western
boundary of the Wilderness followed the rim rather than the
hydrologic divide is arbitrary and capricious; and (3) the For-
est Service continues to violate the Wilderness Act by allow-
ing motorized vehicle use on the Trail, portions of which lie
in the Hells Canyon Wilderness. The Forest Service argued
that HCPC’s claims were barred by the statute of limitations
or the doctrines of claim preclusion and standing.
1406 HELLS CANYON PRESERVATION COUNCIL v. USFS
In an unpublished order, the district court dismissed the
suit, ruling that claim preclusion barred each of the claims.
The court held that all of HCPC’s claims either were or could
have been raised in the HCPC I litigation, and that final judg-
ment in that case therefore precluded re-litigation of those
claims. HCPC appealed that ruling and we reversed, holding
that HCPC’s voluntary withdrawal of the Wilderness Act
claim in HCPC I did not result in a final judgment on the mer-
its of that claim. Hells Canyon Pres. Council v. U.S. Forest
Serv. (“HCPC II”), 403 F.3d 683, 691 (9th Cir. 2005). We
declined to reach the issues of timeliness and standing, and
remanded those issues for the district court’s consideration.
Id.
On remand, the Forest Service renewed its arguments that
plaintiffs lacked standing and that their claims were time-
barred. The district court granted the Forest Service’s motion
and denied plaintiffs’ cross-motion for summary judgment,
holding that the APA’s six-year statute of limitations barred
each of plaintiffs’ claims. 28 U.S.C. § 2401(a).
II
As neither the Hells Canyon Act nor the Wilderness Act
provides a private right of action, plaintiffs’ claims arise
under the APA. See 5 U.S.C. § 702. We review a district
court’s grant of summary judgment de novo, Nolan v. Heald
Coll., 551 F.3d 1148, 1153 (9th Cir. 2009), and may affirm
“on any basis supported by the record,” Satey v. JPMorgan
Chase & Co., 521 F.3d 1087, 1091 (9th Cir. 2008) (internal
quotation marks omitted). We discuss each claim in turn.
A
HCPC alleges that the Forest Service violated the Hells
Canyon Act by failing “to maintain th[e] 1978 map or its
1975 predecessor on file at the Forest Service Chief’s office
in Washington D.C. or anywhere else to allow for public
HELLS CANYON PRESERVATION COUNCIL v. USFS 1407
inspection,” in violation of 16 U.S.C. § 460gg(b). Plaintiffs
argue that this failure constitutes an “agency action unlaw-
fully withheld or unreasonably delayed” under the APA. See
5 U.S.C. § 706(1). The district court held that failing to main-
tain the map could not constitute final agency action and that
“plaintiffs’ reliance on the loss of the map for statute of limi-
tation purposes is untenable.” On appeal, the Forest Service
expressly abandons its argument that the map claim is time-
barred, contending instead that we should affirm the district
court on the basis that plaintiffs do not have standing. “Stand-
ing is a question of law that we review de novo.” Wilson v.
Kayo Oil Co., 563 F.3d 979, 980 (9th Cir. 2009) (per curiam)
(internal quotation marks omitted).
[1] We do not think that the question of plaintiffs’ standing
to challenge the filing of the 1978 map is a difficult one.
“[T]he irreducible constitutional minimum of standing”
requires, among other things, an injury in fact suffered by the
plaintiff and a likelihood that a favorable decision will redress
the injury. Lujan v. Defenders of Wildlife, 504 U.S. 555,
560-61 (1992). HCPC, on whom the burden of establishing
standing rests, see id. at 561, has shown neither.
[2] The Hells Canyon Act requires that the 1978 map of the
Hells Canyon National Recreation area “be on file and avail-
able for public inspection in the office of the Chief, Forest
Service, United States Department of Agriculture.” 16 U.S.C.
§ 460gg(b). The Forest Service concedes, and everyone
agrees, that the original 1978 map has long been lost. Accord-
ing to plaintiffs, their injury stems from the fact that the map
is not available “for public inspection” as the statute requires.
But the Forest Service has already addressed this injury by
making copies of the map available, and plaintiffs have made
no effort to show the harm that results from reviewing a copy
of the map rather than the original. What remains is plaintiffs’
general displeasure with the Forest Service’s failure to com-
ply with its statutory duties, but their desire to see “the
Nation’s laws . . . faithfully enforced” is not enough to estab-
1408 HELLS CANYON PRESERVATION COUNCIL v. USFS
lish injury under Article III. Steel Co. v. Citizens for a Better
Env’t, 523 U.S. 83, 107 (1998).
[3] Uncertainty as to plaintiffs’ precise injury also elimi-
nates any possibility that a judgment of this court might
redress that injury. The original map is lost, and no remedy
we can prescribe can alter that fact. Plaintiffs seek a declara-
tory judgment but as there is “no controversy over whether
[the Forest Service violated the statute], the declaratory judg-
ment is not only worthless to [plaintiffs], it is seemingly
worthless to all the world.” Id. at 106. Because plaintiffs have
not suffered a cognizable Article III injury, and redressability
is at best unlikely, we affirm the district court’s dismissal of
the map claim on the ground that plaintiffs lack standing.
B
Plaintiffs also contend that the Forest Service’s determina-
tion of the Hells Canyon wilderness boundary as “anything
other than the hydrological divide” is arbitrary and capricious
in violation of the APA. They bring a claim under § 706(2)
of the statute, arguing that the Forest Service’s interpretation
of the boundary “is inconsistent with congressional intent and
the agency’s own documentary records.” The district court
found this claim barred by the relevant statute of limitations
because, in the district court’s view, plaintiffs’ claim accrued
in 1981 upon publication of the boundary description. We
review de novo whether the district court applied the statute
of limitations correctly. Lukovsky v. City of San Francisco,
535 F.3d 1044, 1047 (9th Cir. 2008), cert. denied, 129 S. Ct.
1997 (2009). “The question of when a claim accrues,” how-
ever, “is a fact-intensive inquiry, and . . . a district court’s fac-
tual finding concerning when a claim accrues is entitled to
deferential review.” HCPC II, 403 F.3d at 691.
[4] APA claims are subject to a six-year statute of limita-
tions. See 28 U.S.C. § 2401(a); Wind River Mining Corp. v.
United States, 946 F.2d 710, 712-13 (9th Cir. 1991). To bring
HELLS CANYON PRESERVATION COUNCIL v. USFS 1409
a claim under 5 U.S.C. § 706(2), plaintiffs must identify a
final agency action upon which the claim is based. 5 U.S.C.
§ 704. To be “final,” an agency action “must mark the con-
summation of the agency’s decisionmaking process—it must
not be of a merely tentative or interlocutory nature.” Bennett
v. Spear, 520 U.S. 154, 177-78 (1997) (internal quotation
marks and citation omitted). It must also be an action “by
which rights or obligations have been determined, or from
which legal consequences will flow.” Id. at 178 (internal quo-
tation marks omitted).
[5] The Secretary of Agriculture proposed the boundary
description in 1978 and at the same time initiated a public
notice and comment process. Three years later, in 1981, the
Forest Service officially published the boundary description.
The 1981 publication constituted a final agency action
because it “mark[ed] the consummation of the agency’s deci-
sionmaking process” and was an action “from which legal
consequences” flowed. Id. It seems unremarkable to hold that,
as a result, any claim challenging the decision fixing the
boundary description must have been brought by 1987.
[6] Plaintiffs contend, appearances notwithstanding, that
publication of the boundary description did not start the stat-
ute of limitations on their boundary claim. Neither of their
arguments is persuasive. First, they argue that the Forest Ser-
vice failed to provide adequate notice of the 1981 boundary
description because the description was not published in the
Federal Register. Our disagreement with the premise of plain-
tiffs’ argument leads us to reject their conclusion. The Forest
Service explained that on account of cost it had decided not
to publish the entire boundary description in the Federal Reg-
ister, but it did publish notice that the boundary description
was available for review and could be found at a number of
different locations. 46 Fed. Reg. at 34,611 (explaining that
because it would cost $18,000, the Forest Service declined to
publish the 61 pages of legal description and 31 map sheets
in the Federal Register “[i]n the interests of economy”). This
1410 HELLS CANYON PRESERVATION COUNCIL v. USFS
was enough to place the interested public—including, of
course, plaintiffs—on constructive notice of the boundary
description’s contents, thereby starting the statute of limita-
tions. See Shiny Rock Mining Corp. v. United States, 906 F.2d
1362, 1364 (9th Cir. 1990) (“Actual knowledge of govern-
ment action . . . is not required for a statutory period to com-
mence. Publication in the Federal Register is legally sufficient
notice to all interested or affected persons regardless of actual
knowledge or hardship resulting from ignorance.” (internal
quotation marks omitted)).
Second, plaintiffs attempt to avoid the statute of limitations
by claiming that they are not challenging the boundary
description published in 1981, but rather a 2002 re-
interpretation of it. Specifically, plaintiffs believe that “prior
to 2002, [the Forest Service] had never interpreted the Wilder-
ness boundary in the Lord Flat area to be anything other than
the hydrologic divide formed by Summit Ridge.” It was only
in 2002, plaintiffs maintain, that the Forest Service first sug-
gested in meetings with HCPC that the Hells Canyon bound-
ary was the eastern rim of Summit Ridge, and that the rim
was not always synonymous with the hydrologic divide.
[7] HCPC’s argument is simply not consistent with the
record. Despite HCPC’s assertions, the original boundary
description never indicated that the boundary of Hell Canyon
Wilderness would always fall along the hydrologic divide.
Indeed, there is consistent evidence to the contrary. The 1978
public notice proposing the boundary explained that “[t]he
established Hells Canyon Wilderness boundary has been
located on the most identifiable feature of the canyon rim. In
some cases this is the rim and in other cases it is the crest of
a hill.” The final boundary description, published in 1981,
sometimes identifies the boundary as the “hydrologic divide,”
and sometimes as the “rim.” And, the Forest Service’s 1992
Decision Memo describes the western boundary of Hells Can-
yon as “the canyon rim.”4 It was therefore apparent, long
4
The 1994 surveyor’s report also noted that “these terms”—hydrologic
divide and rim—“are mutually exclusive.” Although it is not clear that the
HELLS CANYON PRESERVATION COUNCIL v. USFS 1411
before 2002, that the hydrologic divide did not always estab-
lish the western boundary of the Hells Canyon Wilderness.
Plaintiffs’ challenge to the boundary description is barred by
the statute of limitations.
C
Plaintiffs’ last claim is that portions of the Trail are cur-
rently located within the Hells Canyon Wilderness area, and
that the Forest Service’s refusal to close the Lord Flat Trail
to motorized use is an ongoing failure to act, remediable as
“agency action unlawfully withheld or unreasonably
delayed.” 5 U.S.C. § 706(1). The district court dismissed
plaintiffs’ claim as time-barred, ruling that plaintiffs’ claim
accrued in 1981, upon publication of the availability of the
boundary description in the Federal Register or, alternatively,
in 1994, when HCPC filed a suit with a similar claim. We
think the timeliness of plaintiffs’ claim is beside the point.
Because plaintiffs have not identified “an ongoing failure to
act,” plaintiffs have simply failed to state a claim under
§ 706(1) of the APA.
[8] Section 706(1) of the APA grants federal courts the
power to “compel agency action unlawfully withheld or
unreasonably delayed.” This provision serves important inter-
ests, but does not give us license to “compel agency action”
whenever the agency is withholding or delaying an action we
think it should take. Instead, our ability to “compel agency
action” is carefully circumscribed to situations where an
agency has ignored a specific legislative command. In Norton
v. Southern Utah Wilderness Alliance (“SUWA”), 542 U.S. 55
(2004), the Supreme Court explained the two primary con-
straints on our review under § 706(1). First, the Court held
report was public, it confirms the Forest Service’s understanding that the
boundary of Hells Canyon Wilderness was not defined exclusively by the
hydrologic divide.
1412 HELLS CANYON PRESERVATION COUNCIL v. USFS
that judicial review of actions alleged to be unlawfully with-
held or unreasonably delayed extends only to “discrete”
actions, such as rules, orders, licenses, sanctions, and relief.
Id. at 62-63; see 5 U.S.C. § 551(13) (defining “agency
action”); see also SUWA, 542 U.S. at 63 (offering as exam-
ples of “discrete” agency action “the failure to promulgate a
rule or take some decision by a statutory deadline”). Second,
the Court held that the purportedly withheld action must not
only be “discrete,” but also “legally required” —in the sense
that the agency’s legal obligation is so clearly set forth that it
could traditionally have been enforced through a writ of man-
damus. SUWA, 542 U.S. at 63. According to the Court, limit-
ing judicial review to actions that are legally required “rules
out judicial direction of even discrete agency action that is not
demanded by law.” Id. at 65. In sum, the Court concluded, “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 64.
[9] Plaintiffs allege that the Forest Service has failed to take
the “discrete” act of prohibiting the use of motorized vehicles
in wilderness areas, an act the statute plainly requires. See 16
U.S.C. § 1133(c) (“[T]here shall be no . . . motor vehicles . . .
within any such [wilderness] area.”). However, although
plaintiffs may not approve of the way it has done so, the For-
est Service has been carrying out this statutory responsibility
since at least 1981, when it first defined the wilderness
boundary. The Service’s attention to its obligation under
§ 1133 was manifested again in 1989 when, after it deter-
mined that a small portion of the Lord Flat Trail crossed into
the Hells Canyon wilderness boundary, it promptly took steps
to remedy the situation. It responded first by closing the entire
Trail to motorized vehicle use and then by relocating the
offending portion of the Trail outside the boundary. The For-
est Service issued a public Decision Memo explaining its
decision and the actions it had taken. The Memo explained
the Forest Service’s determination that this plan was consis-
tent with the Hells Canyon Act and the Hells Canyon Area
HELLS CANYON PRESERVATION COUNCIL v. USFS 1413
Comprehensive Management Plan, and briefly described the
Lord Flat Trail’s location in relation to the wilderness bound-
ary.
[10] Allowing plaintiffs’ claim to proceed would invite us
to compel the Forest Service to do something—adjust the
western boundary to fit HCPC’s preference—not clearly man-
dated in the Act. Although, as mentioned above, the Hells
Canyon Act and the Wilderness Act require the Forest Service
to establish the wilderness area boundary and to prohibit
unauthorized vehicles within that area, the Forest Service has
done precisely that. Nothing in either act requires the Forest
Service to use any particular topographical feature as the
boundary. See SUWA, 542 U.S. at 65 (“[W]hen 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 discretion, a court
can compel the agency to act, but has no power to specify
what the action must be.”). Had the Forest Service failed to
establish a boundary at all, plaintiffs might have a case for
§ 706(1) review, but we have no basis for compelling the For-
est Service to adopt HCPC’s preferred boundary. Cf. Wilder-
ness Soc’y v. Norton, 434 F.3d 584, 588-89 (D.C. Cir. 2006)
(holding that § 706 relief is available, notwithstanding 28
U.S.C. § 2401(a), where the agency ignored a statutory dead-
line). Because plaintiffs have not identified a “discrete
agency action that [the Forest Service] is required to take,”
they have failed to state a claim under § 706(1).5 See SUWA,
542 U.S. at 64.
5
According to the dissent, plaintiffs are not asking “that the boundary
description be altered or adjusted in any way”; instead, they seek precisely
what the statute requires: “an order requiring the Forest Service prospec-
tively to prohibit the use of motorized vehicles within the wilderness
area.” Diss. op. at 1418. Thus, the dissent maintains, the court need not
order the Forest Service to adopt plaintiffs’ preferred boundary. All that
is required is to remand to the district court to determine whether the Lord
Flat Trail intersects “the boundary description exactly as written.” Diss.
op. at 1417.
1414 HELLS CANYON PRESERVATION COUNCIL v. USFS
HCPC’s reliance on § 706(1) is an attempt to end run
around an insurmountable problem: HCPC’s argument is bet-
ter phrased as a claim that the Forest Service’s boundary
determination was “arbitrary and capricious.” But that claim
—based on § 706(2)—is barred by the statute of limitations.
See 28 U.S.C. § 2401(a). Permitting plaintiffs’ § 706(2) claim
to go forward under the guise of a § 706(1) claim would
undermine the important interests served by statutes of limita-
tions, including evidence preservation, repose, and finality.
See Am. Pipe & Constr. Co. v. Utah, 414 U.S. 538, 554
(1974) (“[S]tatutory limitation periods are designed to pro-
mote justice by preventing surprises through the revival of
claims that have been allowed to slumber until evidence has
been lost, memories have faded, and witnesses have disap-
peared.” (internal quotation marks omitted)).
Over a three-year period, between 1978 and 1981, the For-
est Service considered the evidence, consulted the controlling
statutes, and then acted to comply with the Wilderness Act by
publishing the boundary description. From that time, plaintiffs
had six years in which to air their disagreement. They did not.
We see no reason to entertain their attempt to revive their dis-
agreement by labeling the Forest Service’s actions as an
ongoing failure to act.
We respectfully disagree. Plaintiffs are not merely asking the court to
reiterate the statutory language; they are asking the court to order the For-
est Service to prevent motorized vehicle use on the Lord Flat Trail. And,
contrary to the dissent’s contention, plaintiffs are not basing their claim on
the “boundary description exactly as written.” Indeed, as plaintiffs
acknowledge, the boundary description itself “does not show the location
of the Lord Flat Trail relative to the wilderness boundary.” Instead, plain-
tiffs base their claim on their own “conten[tion that] Congress intended the
wilderness boundary to be along the highest, most prominent point on the
Hells Canyon rim, which is the hydrologic divide . . . .” (As was explained
above, that position is inconsistent with the record.) Accordingly, to pro-
vide plaintiffs with the relief they seek, we would have to order the Forest
Service to adopt plaintiffs’ preferred boundary. This the statute does not
require.
HELLS CANYON PRESERVATION COUNCIL v. USFS 1415
III
The judgment of the district court is AFFIRMED.
GRABER, Circuit Judge, concurring in part and dissenting in
part:
I concur in the majority’s analysis of the first two claims.
Plaintiffs do not have standing to challenge the Forest Ser-
vice’s failure to retain the original map of the Hells Canyon
Wilderness area. Maj. op. Part II-A. And Plaintiffs’ claim that
the boundary description is arbitrary and capricious is barred
by the six-year statute of limitations. Maj. op. Part II-B. I
respectfully dissent, however, from the majority’s analysis of
the third claim. Maj. op. Part II-C.
Plaintiffs assert that portions of the Lord Flat Road1 are
located within the Hells Canyon Wilderness area; that the
Forest Service is under a continuing obligation pursuant to the
Wilderness Act, 16 U.S.C. §§ 1131-1136, to close those por-
tions of the road to motorized vehicles; and that the Forest
Service has refused to do so. In my view, Plaintiffs have
asserted a viable claim to “compel agency action unlawfully
withheld” under 5 U.S.C. § 706(1).
It cannot seriously be disputed that the Forest Service must
prohibit the use of motor vehicles within the Wilderness area.
See 16 U.S.C. § 1133(c) (“[T]here shall be no . . . use of
motor vehicles . . . within any such [wilderness] area [subject
to certain exceptions not applicable here].”); id. § 460gg-1(b)
(“The [Hells Canyon Wilderness] shall be administered by the
Secretary [of Agriculture] in accordance with the provisions
of the Wilderness Act . . . .”). And it is undisputed that the
1
The Lord Flat Road is also known as the Lord Flat Trail. I follow the
usage selected by the district court and the United States Forest Service.
1416 HELLS CANYON PRESERVATION COUNCIL v. USFS
Forest Service has not closed the relevant portions of the Lord
Flat Road to motor vehicles. The crux of this case, then, is
whether the relevant portions of the road are located within
the Wilderness area. There has been no determination—by the
district court or by the majority—on that crucial question,
which is a mixed question of fact and law. Instead, the major-
ity holds that, even if the road is located within the Wilderness
area, Plaintiffs cannot state a “failure to act” claim under 5
U.S.C. § 706(1). In effect, the majority holds that the Forest
Service’s (alleged) plain violation of the Wilderness Act is
not subject to judicial review. I disagree.
“[A] claim under § 706(1) can proceed only where a plain-
tiff asserts that an agency failed to take a discrete agency
action that it is required to take.” Norton v. S. Utah Wilder-
ness Alliance, 542 U.S. 55, 64 (2004). In my view, the statu-
tory provisions here plainly, directly, discretely, and
concretely require the Forest Service to prohibit the use of
motorized vehicles within the Hells Canyon Wilderness area.
That specific legal requirement is a far cry from the broad and
general statutory mandates that the Supreme Court held are
not subject to judicial enforcement under § 706(1). See, e.g.,
id. at 67 (“To take just a few examples [of actions not subject
to judicial enforcement under § 706(1)] from federal
resources management, a plaintiff might allege that the Secre-
tary had failed to ‘manage wild free-roaming horses and bur-
ros in a manner that is designed to achieve and maintain a
thriving natural ecological balance,’ or to ‘manage the [New
Orleans Jazz National] [H]istorical [P]ark in such a manner as
will preserve and perpetuate knowledge and understanding of
the history of jazz,’ or to ‘manage the [Steens Mountain]
Cooperative Management and Protection Area for the benefit
of present and future generations.’ ” (alterations in original)
(quoting various federal statutes)). In my view, if Plaintiffs
are correct that the disputed portions of the road do, in fact,
HELLS CANYON PRESERVATION COUNCIL v. USFS 1417
lie within the Wilderness area, then Plaintiffs have stated a
cognizable claim under § 706(1).2
The majority disagrees for two reasons. First, the majority
holds that the Forest Service actually has carried out its statu-
tory obligations because, for example, it closed the road to
motorized vehicles and relocated a portion of the road in
1989. The majority appears to hold that, so long as the Forest
Service has met its mandatory statutory obligations in some
location, at some earlier point in time, its failure to meet those
obligations in other locations, at other times, is forever
shielded from judicial review. I find no support for that prop-
osition in law or logic, and the majority provides none.
Second, the majority holds that “allowing plaintiffs’ claim
to proceed would invite us to compel the Forest Service to do
something—adjust the western boundary to fit [Plaintiffs’]
preference—not clearly mandated in the Act.” Maj. op. at
1413. To respond to this argument, it is important to clarify
the nature of Plaintiffs’ claim. To the extent that Plaintiffs
contend that the boundary description must be altered or
adjusted in any way, I agree completely with the majority that
that claim is not cognizable. But I understand Plaintiffs to
assert that, even accepting the boundary description exactly as
written, the road lies within the Wilderness area. In that
regard, the majority’s rejection of Plaintiffs’ claim simply
does not apply. Plaintiffs are not asking the court “to use [a]
particular topographical feature as the boundary” or to “com-
2
The district court held that this claim is barred by the statute of limita-
tions. The majority holds that “timeliness of plaintiffs’ claim is beside the
point,” maj. op. at 1411, and does not reach the statute of limitations issue.
For that reason, I limit my analysis of that issue to stating that I would
hold that Plaintiffs assert a continuing violation which is not barred by the
statute of limitations. See Airweld, Inc. v. Airco, Inc., 742 F.2d 1184, 1190
(9th Cir. 1984) (“The effect of a continuing violation is to restart the stat-
ute of limitations.”); see also Wilderness Soc’y v. Norton, 434 F.3d 584,
588 (D.C. Cir. 2006) (stating, in dictum, that this type of claim would not
be barred by the statute of limitations).
1418 HELLS CANYON PRESERVATION COUNCIL v. USFS
pel[ ] the Forest Service to adopt [Plaintiffs’] preferred
boundary.” Maj. op. at 1413. In the third claim, Plaintiffs sim-
ply are asking the courts to compel the Forest Service to pro-
hibit the use of motorized vehicles within the Wilderness area
as described by the boundary description, something specifi-
cally and unequivocally mandated by statute.
For similar reasons, Plaintiffs’ claim is not an attempted
“end run” around anything. Maj op. at 1414. As discussed
above, I agree with the majority that Plaintiffs’ claim that the
1978 boundary description was arbitrary and capricious when
promulgated is barred by the statute of limitations. But Plain-
tiffs’ claim here does not concern past events; it concerns the
Forest Service’s present and ongoing obligation to prohibit
motorized vehicles in the Wilderness area. Plaintiffs are
barred by the statute of limitations from seeking damages
from an alleged failure to prohibit motorized vehicles far in
the past. But Plaintiffs seek prospective remedies, including
an order requiring the Forest Service prospectively to prohibit
the use of motorized vehicles within the Wilderness area.
In conclusion, I would reverse the district court’s dismissal
of the third claim and remand for a determination of whether
certain portions of the Lord Flat Road actually lie within the
Wilderness area. The Forest Service ultimately might prevail
on the merits of that determination. But the majority’s holding
that such a determination is unavailable unduly restricts—if
not eviscerates—judicial review under § 706(1) for an agen-
cy’s failure to act. Accordingly, I respectfully dissent in part.