Southern Utah v. Norton

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
AUG 29 2002
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
SOUTHERN UTAH WILDERNESS
ALLIANCE, a Utah non-profit
corporation; THE WILDERNESS
SOCIETY, a national non-profit
corporation; SIERRA CLUB, a
California non-profit corporation; No. 01-4009
GREAT OLD BROADS FOR
WILDERNESS, a Utah non-profit
corporation; WILDLANDS CPR, a
Montana non-profit corporation;
UTAH COUNCIL OF TROUT
UNLIMITED, a Utah non-profit
organization; AMERICAN LANDS
ALLIANCE, a national non-profit
corporation; and FRIENDS OF THE
ABAJOS, a Utah non-profit
corporation,
Plaintiffs - Appellants,
v.
GALE NORTON, Secretary, United
States Department of the Interior;
NINA ROSE HATFIELD, Acting
Director, Bureau of Land
Management; and BUREAU OF
LAND MANAGEMENT,
Defendants - Appellees,
STATE OF UTAH; SAN JUAN
COUNTY; EMERY COUNTY; THE
SCHOOL AND INSTITUTIONAL
TRUST LANDS ADMINISTRATION;
KANE COUNTY; WAYNE COUNTY,
UTAH; UTAH SHARED ACCESS
ALLIANCE, a Utah non-profit
corporation; BLUE RIBBON
COALITION, an Idaho non-profit
corporation; ELITE MOTORCYCLE
TOURS, a Utah corporation; and
ANTHONY CHATTERLEY,
Defendants - Intervenors -
Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
(D.C. No. 2:99-CV-852-K)
James S. Angell, Earthjustice Legal Defense Fund, Denver, Colorado (Heidi
McIntosh and Stephen H. M. Bloch, Southern Utah Wilderness Alliance, Salt
Lake City, Utah, with him on the briefs), for Plaintiffs-Appellants.
Susan Pacholski, Attorney, Environment and Natural Resources Division, U.S.
Department of Justice, Washington, D.C. (Eileen Sobeck, Deputy Assistant
Attorney General, Washington, D.C.; Paul W. Warner, United States Attorney,
District of Utah, Salt Lake City, Utah; Stephen Roth and Jeffrey Nelson, Assistant
United States Attorneys, District of Utah, Salt Lake City, Utah; and John A.
Bryson, Attorney, Environment and Natural Resources Division, U.S. Department
of Justice, Washington, D.C., with her on the brief), for Defendants-Appellees.
Paul A. Turcke, Moore, Smith, Buxton, & Turcke, Chartered, Boise, Idaho, for
Intervenors-Appellees.
Ralph L. Finlayson, Assistant Attorney General, Stephen G. Boyden, Assistant
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Attorney General, Mark L. Shurtleff, Attorney General, and Stephen H. Urquhart,
Office of the Attorney General, Salt Lake City, Utah; John W. Andrews, Utah
School and Institutional Trust Lands Administration, Salt Lake City, Utah; filed a
brief for State, Counties and Trust Land Administration Intervenors-Appellees.
Before EBEL, McKAY, and LUCERO, Circuit Judges.
EBEL, Circuit Judge.
The Southern Utah Wilderness Alliance and a number of other
organizations (collectively, SUWA) brought suit in the United States District
Court for the District of Utah against the Bureau of Land Management (BLM),
alleging, among other claims, that the BLM violated the Federal Land Policy and
Management Act (FLPMA), 43 U.S.C. § 1701 et seq., and the National
Environmental Policy Act (NEPA), 42 U.S.C. § 4321 et seq., by not properly
managing off-road vehicle and/or off-highway vehicle (collectively, ORV) use on
federal lands that had been classified by the BLM as Wilderness Study Areas
(WSAs) or as having “wilderness qualities.” SUWA sought relief under the
Administrative Procedure Act (APA), 5 U.S.C. § 551 et seq., claiming that the
BLM should be compelled under § 706(1) of the APA to carry out mandatory,
nondiscretionary duties required by the FLPMA and NEPA. See 5 U.S.C.
§ 706(1). The district court rejected SUWA’s arguments and dismissed the
relevant claims for want of subject matter jurisdiction. In reaching this
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conclusion, the district court reasoned that as long as an agency is taking some
action toward fulfilling mandatory, nondiscretionary duties, agency action may
not be compelled pursuant to § 706(1). The district court also suggested that the
BLM could not be compelled to comply with provisions in a land use plan (LUP)
promulgated pursuant to the FLPMA unless or until the BLM undertook or
authorized an “affirmative project[]” that conflicted with a specific LUP
requirement. Finally, the court concluded that the BLM did not abuse its
discretion in determining that a supplemental Environmental Impact Statement
(SEIS) was not necessary based on new information about increased ORV use.
Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we REVERSE and
REMAND. Our remand, however, is a narrow one, concluding only that the
district court erred in dismissing this case for lack of subject matter jurisdiction
and in concluding, at the motion to dismiss stage, that SUWA failed to state a
claim that the BLM had a duty to consider a SEIS based on new circumstances.
The merits of the claim will need to be addressed on remand.
I. Procedural Background
On October 27, 1999, SUWA filed suit in the district court alleging that the
BLM had “failed to perform its statutory and regulatory duties” by not preventing
harmful environmental effects associated with ORV use. On November 24, 1999,
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a group of ORV users (the Recreationists) filed a motion to intervene in the suit,
which the district court subsequently granted. Two months after the district court
allowed the Recreationists to intervene, SUWA filed a second amended complaint
that asserted ten causes of action against the BLM and that sought to have the
court compel agency action under § 706(1) of the APA. Three of these
claims–that the BLM failed to comply with the FLPMA, refused to implement
provisions of various land management plans, and did not take a “hard look”
under NEPA at increased ORV use–are relevant to this appeal and will be
discussed individually below.
SUWA then moved for a preliminary injunction “to protect nine specific
areas from further ORV damage.” The Recreationists responded to this motion by
arguing that the claims were not actionable under § 706(1) and should be
dismissed under Rule 12(b)(1) of the Federal Rules of Civil Procedure for lack of
subject matter jurisdiction. On December 22, 2000, the district court denied
SUWA’s preliminary injunction request and granted the BLM’s motion to dismiss.
The court then certified the dismissed claims as final judgments under Rule 54(b)
of the Federal Rules of Civil Procedure, and this appeal followed. 1
1
SUWA filed its notice of appeal before the district court certified the
dismissed claims for appeal under Rule 54(b). On February 5, 2001, this court
issued a show cause order informing the parties that unless the district court
either certified the dismissed claims under Rule 54(b) within thirty days or
(continued...)
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II. Standard of Review
A district court’s dismissal of claims under Rule 12(b)(1) is reviewed de
novo. United Tribe of Shawnee Indians v. United States, 253 F.3d 543, 547 (10th
Cir. 2001); SK Fin. v. La Plata County, 126 F.3d 1272, 1275 (10th Cir. 1997).
Any factual determinations made by the district court in making its jurisdictional
ruling are reviewed for clear error. United Tribe, 253 F.3d at 547.
III. FLPMA Claim under § 706(1) of the APA
SUWA’s first argument on appeal is that the district court’s conclusion that
§ 706(1) of the APA did not give it subject matter jurisdiction over its FLPMA-
based claims was erroneous. The core of SUWA’s argument is that the FLPMA
imposes a mandatory, nondiscretionary duty on the BLM to manage WSAs in such
a way that their wilderness values are not impaired. Ongoing ORV use, they
allege, is impairing these values, and, therefore, they claim that the BLM must be
1
(...continued)
explicitly adjudicated the remaining claims within thirty days, the appeal would
be dismissed. On February 9, 2001, the district court issued Rule 54(b)
certification, and, upon receipt of the district court order, the question of
appellate jurisdiction was referred to the panel hearing the merits of this case.
Given that the parties obtained Rule 54(b) certification within thirty days of our
show cause order, the premature notice of appeal is “deemed to [have] ripen[ed]
as of the date of certification,” and we have “jurisdiction over the appeal.”
United States v. Hardage, 982 F.2d 1491, 1494 (10th Cir. 1993); cert. denied, 516
U.S. 1009 (1995); see Kelley v. Michaels, 59 F.3d 1055, 1057 (10th Cir. 1995);
Lewis v. B.F. Goodrich Co., 850 F.2d 641, 645-46 (10th Cir. 1988) (en banc).
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compelled to prevent impairment caused by ORV use. For the reasons discussed
below, we conclude that the BLM has a mandatory, nondiscretionary duty to
manage the WSAs in accordance with the FLPMA’s nonimpairment requirement.
We further conclude that, on the record before us, SUWA has presented a
colorable claim that the BLM’s present management of the disputed WSAs may
be violating the FLPMA’s mandate. Consequently, we reverse the district court’s
dismissal of SUWA’s “nonimpairment claim” for want of subject matter
jurisdiction under § 706(1).
A. FLPMA
In 1976, Congress enacted the FLPMA, a “complex” and “comprehensive”
statute that created a “versatile framework” for governing the BLM’s management
of public lands. Rocky Mountain Oil & Gas Ass’n v. Watt, 696 F.2d 734, 737-38
(10th Cir. 1982). The Act required that the Secretary of the Interior “prepare and
maintain on a continuing basis an inventory of all public lands and their resource
and other values.” 43 U.S.C. § 1711(a); see Utah v. Babbitt, 137 F.3d 1193, 1198
(10th Cir. 1998); Rocky Mountain Oil & Gas, 696 F.2d at 740. During this
inventory process, the Secretary was to identify “roadless areas of five thousand
acres or more and roadless islands of the public lands” that possessed “wilderness
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characteristics.” 2 42 U.S.C. § 1782(a). The process of identifying lands as
having wilderness characteristics involved two steps. First, the BLM conducted
an “initial inventory,” during which it “identif[ied] wilderness inventory units,
which were defined as roadless areas of 5000 acres or more that may have
wilderness characteristics.” Utah, 137 F.3d at 1198 (internal quotation marks
omitted; emphasis added). After completing this initial inventory, the BLM then
conducted an “intensive inventory of these units to determine whether the units
possessed wilderness characteristics.” Id. (internal quotation marks omitted).
Areas found by the BLM to possess wilderness characteristics were then
designated by the BLM as Wilderness Study Areas, or WSAs. 3 Id.; Sierra Club v.
2
The FLPMA incorporates the Wilderness Act of September 3, 1964’s
definition of “wilderness.” See 43 U.S.C. § 1782(a). That act, in relevant part,
defines “wilderness” as
an area of undeveloped Federal land retaining its primeval character
and influence, without permanent improvements or human habitation,
. . . which (1) generally appears to have been affected primarily by
the forces of nature, with the imprint of man’s work substantially
unnoticeable; (2) has outstanding opportunities for solitude or a
primitive and unconfined type of recreation; (3) has at least five
thousand acres of land or is of sufficient size to make practicable its
preservation and use in an unimpaired condition; and (4) may also
contain ecological, geological, or other features of scientific,
educational, scenic, or historical value.
16 U.S.C. § 1131(c).
In 1980, the BLM designated 2.5 million acres of federal land in Utah as
3
WSAs. See 45 Fed. Reg. 75,602, 75,603 (Nov. 14, 1980). Four areas designated
as WSAs are at issue in this case: Moquith Mountain, Parunuweap Canyon, Sid’s
Mountain, and Behind the Rocks.
-8-
Hodel, 848 F.2d 1068, 1085 (10th Cir. 1988), overruled on other grounds by Vill.
of Los Ranchos de Albuquerque v. Marsh, 956 F.2d 970 (10th Cir. 1992) (en
banc). The Act mandated that, within fifteen years of the FLPMA’s enactment,
the Secretary review the WSAs and recommend to the President which WSAs
would be suitable for “preservation as wilderness.” 43 U.S.C. § 1782(a). The
FLPMA required that, two years after receiving the Secretary’s report, the
President submit to Congress “his recommendations with respect to designation as
wilderness of each such area.” § 1782(b).
The FLPMA, however, provides that only Congress may actually designate
land for wilderness preservation. Id. Consequently, until Congress either
affirmatively designates or expressly rejects a particular WSA for wilderness
preservation, the FLPMA mandates that the BLM “shall continue to manage” the
WSAs “in a manner so as not to impair the suitability of such areas for
preservation as wilderness.” § 1782(c) (emphasis added); see also Hodel, 848
F.2d at 1085 (explaining the BLM’s obligation to preserve WSAs); Sierra Club v.
Clark, 774 F.2d 1406, 1408 (9th Cir. 1985) (discussing how areas designated for
preservation must not be impaired). Thus, once land is designated as an WSA,
the FLPMA imposes an immediate and continuous obligation on the BLM to
manage such parcels in such a way that they will remain eligible for wilderness
classification should Congress decide to designate the areas for permanent
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wilderness preservation. 4 Hodel, 848 F.2d at 1085; Interim Management Policy
for Lands Under Wilderness Review (IMP) at 5 (Aplt. App. at 192).
4
The FLPMA does not explain what the terms “preservation,” “wilderness,”
or “impair” mean. The BLM, however, has interpreted this “nonimpairment”
mandate in a document entitled the Interim Management Policy for Lands Under
Wilderness Review (IMP), which was issued as a federal regulation at 44
Fed.Reg. 72,014. See Hodel, 848 F.2d at 1086; see also Rocky Mountain Oil &
Gas, 696 F.2d at 739 n.6 (explaining that the IMP was “promulgated using notice
and comment procedures). Courts give deference to the BLM’s interpretation of
the FLMPA, as expressed in the IMP, particularly where language in the FLMPA
is ambiguous. See Hodel, 848 F.2d at 1087 (deferring to the IMP’s reconciliation
of tensions within the FLPMA); Clark, 774 F.2d at 1409-10 (deferring to the
BLM’s interpretation of the FLMPA as announced in the IMP); Rocky Mountain
Oil & Gas, 696 F.2d at 745 (“Where the [FLMPA] is ambiguous, we must afford
deference to the interpretation given the statute by the agency charged with its
administration.”).
According to the IMP, “Management to the nonimpairment standard does
not mean that the lands will be managed as though they had already been
designated as wilderness.” Rather the nonimpairment standard requires the BLM
“to ensure that each WSA satisfies [the definition of wilderness] at the time
Congress makes a decision on the area.” “The Department therefore has a
responsibility to ensure that the existing wilderness values of all WSAs . . . are
not degraded so far, compared with the areas’s values for other purposes, as to
significantly constrain the Congress’ prerogative to either designate a WSA as a
wilderness or release it for other uses” (emphasis in original).
As part of the nonimpairment mandate, the IMP mandates that the BLM
may only authorize “non-impairing” activity in the WSAs. Under the IMP, use of
WSA land will be considered “non-impairing” if two criteria are met. First, the
use must be temporary in nature, meaning that it does not “create surface
disturbance or involve permanent placement of structures” (emphasis added). The
IMP defines “surface disturbance” as “any new disruption of the soil or
vegetation which would necessitate reclamation.” Second, after the activity
terminates, “the wilderness values must not have been degraded so far as to
significantly constrain the Congress’s prerogative regarding the area’s suitability
for preservation as wilderness.”
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B. 706(1) of the APA
Section 706(1) of the APA provides that federal courts “shall” “compel
agency action unlawfully withheld or unreasonably delayed.” 5 5 U.S.C. § 706(1);
see also Forest Guardians v. Babbitt, 174 F.3d 1178, 1187 (10th Cir. 1999)
(“Through § 706 Congress has stated unequivocally that courts must compel
5
Although the district court indicated that its disposition of this case would
have been the same regardless of whether the SUWA suit was characterized as
one seeking to compel “unreasonably delayed” action or “unlawfully withheld”
action, it concluded that SUWA’s claim amounted to one alleging an unreasonable
delay. The district court, invoking our decision in Forest Guardians v. Babbitt,
174 F.3d 1178 (10th Cir. 1999), reasoned that this action fell under the
“unreasonably delayed” category because “there are no ‘date-certain deadlines’ by
which [the] BLM’s ORV management must operate.” Unlike the district court,
we believe that SUWA’s nonimpairment claims fall in the “unlawfully withheld”
category.
We explained in Forest Guardians that “if an agency has no concrete
deadline establishing a date by which it must act, and instead is governed only by
general timing provisions . . . , a court must compel only action that is delayed
unreasonably. Conversely, when an entity governed by the APA fails to comply
with a statutorily imposed absolute deadline, it has unlawfully withheld agency
action and courts, upon proper application, must compel the agency to act.” 174
F.3d at 1190.
As discussed above, the FLPMA imposes an immediate and continuous
obligation on the BLM to manage a parcel designated as a WSA in such a way
that its wilderness values are not impaired and the land always remains eligible
for designation as permanent wilderness areas at any moment Congress might
decide to give them that status. See 43 U.S.C. § 1782(c). We conclude that
Congress did impose an absolute deadline by which the BLM has to prevent
impairment because this duty begins the moment the land is designated as a WSA
and continues until Congress makes a decision regarding permanent wilderness
designation. While Congress did not state this deadline in a date specific manner,
it nonetheless created a deadline: the time when Congress makes the decision on
wilderness designation.
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agency action unlawfully withheld or unreasonably delayed” (emphasis added).);
Marathon Oil Co. v . Lujan, 937 F.2d 498, 500 (10th Cir. 1991) (“Administrative
agencies do not possess the discretion to avoid discharging the duties that
Congress intended them to perform.”).
Under either the “unreasonably delayed” or “unlawfully withheld” prongs
of § 706(1), federal courts may order agencies to act only where the agency fails
to carry out a mandatory, nondiscretionary duty. 6 Forest Guardians, 174 F.3d at
6
Courts have often explained that the standards for compelling agency
action through a writ of mandamus and through § 706(1) are very similar, even
though the availability of relief under the APA precludes mandamus relief. See,
e.g., Mt. Emmons Mining Co. v. Babbitt, 117 F.3d 1167, 1170 (10th Cir. 1997)
(“The availability of a remedy under the APA technically precludes [a] request for
a writ of mandamus, although the mandatory injunction is essentially in the nature
of mandamus relief” (citations omitted).); Yu v. Brown, 36 F. Supp. 2d 922, 928-
29 (D.N.M. 1999) (“Seeking to harmonize the Mandamus Statute with the APA,
the Tenth Circuit has held that, since mandamus requires that no other remedy be
available and the APA provides a means of challenging . . . agency action,
technically mandamus relief is no longer available in such cases. However, the
court has also recognized [the similarity between mandamus relief and relief
under the APA]” (citation omitted).); see also Independence Mining Co. v.
Babbitt, 105 F.3d 502, 506-07 (9th Cir. 1997) (analyzing a mandamus claim under
§ 706(1) because of similarities in the relief). There is, however, an important
distinction between compelling agency action through a writ of mandamus and
through § 706(1). Even if a party shows that the “prerequisites [for a writ of
mandamus] have been met, a court still exercises its own discretion in deciding
whether or not to issue the writ.” Marquez-Ramos v. Reno, 69 F.3d 477, 479
(10th Cir. 1995) (emphasis added); see also Marathon Oil, 937 F.3d at 500
(“[T]he issuance of the writ is a matter of the issuing court’s discretion.”). By
contrast, once a court determines that an agency “unlawfully withheld” action, the
APA requires that courts compel agency action. Forest Guardians, 174 F.3d at
1187-88 (explaining that the use of the word “shall” in § 706 means courts “must
(continued...)
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1187-88. By contrast, if a duty is not mandated, or if an agency possesses
discretion over whether to act in the first instance, a court may not grant relief
under § 706(1). Id. at 1187-89.
Importantly, compelling agency action is distinct from ordering a particular
outcome. Courts have regularly held that an agency may be required to take
action and make a decision even if the agency retains ultimate discretion over the
outcome of that decision. In Mt. Emmons Mining Co. v. Babbitt, 117 F.3d 1167(10th Cir. 1997), for example, this court rejected the Secretary of the Interior’s
claim that he could not be compelled to process a mining patent application
because it was not clear that the parties were “unquestionably entitled to a
patent.” Id. at 1172. Instead, we held that the Secretary could be ordered to
comply with statutorily-mandated processing requirements even if the Secretary
ultimately had discretion over whether to approve the application. Id.; see also
Marathon Oil, 937 F.2d at 500 (upholding district court order to process
applications but reversing order instructing approval of applications as exceeding
court’s authority); Estate of Smith v. Heckler, 747 F.2d 583, 591 (10th Cir. 1984)
(ordering the Secretary of Health and Human Services to promulgate regulations).
(...continued)
6
compel agency action unlawfully withheld”).
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C. Analysis of FLPMA Claim
SUWA acknowledges that the BLM possesses considerable discretion over
how it might address activity causing impairment. Nonetheless, SUWA argues
that the BLM can be ordered to comply with the FLPMA’s nonimpairment
mandate, even if the BLM retains discretion over the means of prevention.
The BLM and the Recreationists respond by offering several reasons as to
why ORV use in the relevant lands is not subject to § 706(1) review and cannot
be considered impairment. First, they argue that the IMP’s nonimpairment
mandate “affords BLM discretion in not only how it will act, but also whether it
will act,” thus removing the agency’s inactions from review under § 706(1).
Second, the Appellees, particularly the BLM, contend that § 706(1) may only be
invoked where “final, legally binding actions . . . have been unlawfully withheld
or unreasonably delayed.” Third, assuming the BLM has a mandatory duty to
prevent ORV-caused impairment, they argue that SUWA’s claim is, in reality, a
challenge to the sufficiency of the BLM’s efforts to prevent impairing activity
caused by ORV use rather than a claim that the BLM has failed to act.
Undertaking our de novo review, we first address the arguments raised by the
BLM and the Recreationists.
1. Discretion under Nonimpairment Mandate
As touched on above, the BLM first argues that the district court’s
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dismissal of SUWA’s impairment for lack of subject matter jurisdiction claims
was proper because the BLM has “considerable discretion . . . to determine both
what constitutes impairment and what action to take if it finds that impairment is
occurring or is threatened.”
The BLM’s argument, however, misses the narrow jurisdictional issue
presented on appeal, i.e., whether the BLM has a nondiscretionary, mandatory
duty that it may be compelled to carry out under § 706(1). Neither side seriously
disputes that the BLM has such a duty under the FLPMA, which mandates that the
BLM manage WSAs in such a way as not to impair their wilderness values. See
43 U.S.C. § 1782(c). In this case, the district court conceded that SUWA offered
colorable evidence suggesting that ongoing ORV activity in the WSAs has
seriously impaired the wilderness values of the WSAs at issue, acknowledging in
its decision that SUWA had “presented significant evidence about the alleged
impairment that is occurring in the WSAs due to ORV use.”
Certainly, the BLM is correct in arguing, as it does on appeal and as it did
before the district court, that we must give considerable deference to its
interpretation of the nonimpairment mandate, see Thomas Jefferson Univ. v.
Shalala, 512 U.S. 504, 512 (1994); Lamb v. Thompson, 265 F.3d 1038, 1047
(10th Cir. 2001); Kurzet v. Comm’r, 222 F.3d 830, 844 (10th Cir. 2000),
particularly as laid out in the Interim Management Policy for Lands Under
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Wilderness Review (IMP), a BLM-promulgated regulation that significantly
interprets the FLPMA’s nonimpairment mandate. See Hodel, 848 F.2d at 1087;
Rocky Mountain Oil & Gas, 696 F.2d at 745. As we have previously explained,
as long as “an agency’s interpretation of its own regulations does not violate the
Constitution or a federal statute, it must be given controlling weight unless it is
plainly erroneous or inconsistent with the regulation.” Mission Group Kan., Inc.
v. Riley, 146 F.3d 775, 780 (10th Cir. 1998) (internal quotation marks omitted).
Similarly, the BLM is correct that, to the extent the IMP and the FLPMA give it
substantial discretion in deciding how it will implement the FLPMA’s
nonimpairment mandate and address potentially impairing activities, a court’s
ability to compel it to take specific steps to prevent impairment is curtailed, see,
e.g., Mt. Emmons, 117 F.3d at 1172; Marathon Oil, 937 F.2d at 500, a point
SUWA concedes.
The BLM’s arguments, however, go to the merits of the present suit, and to
the possible remedy if impairment is found, not to whether federal courts possess
subject matter jurisdiction under the APA to order the BLM to comply with the
FLPMA’s nonimpairment mandate. The BLM seems to confuse the principle that,
when deciding whether an area is being impaired, courts must give deference to
the BLM’s interpretation of the FLMPA’s nonimpairment mandate, with the
statutory standard making the nonimpairment obligation mandatory. Similarly,
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the BLM appears at times to assume erroneously that because it possesses
discretion over the implementation of the nonimpairment mandate, the
nonimpairment obligation is itself wholly discretionary. We do not address on
this appeal whether ORV use in the region is impairing the WSA’s wilderness
values. Upon remand, the district court will have to address that issue after
analyzing the evidence before it and giving appropriate deference to the IMP.
Such deference and discretion do not, however, immunize the BLM from its clear,
nondiscretionary duty “to manage such lands . . . so as not to impair the suitability
of such areas for preservation as wilderness,” 43 U.S.C. § 1782(c), as compelled
by § 706(1). 7 Should, therefore, the district conclude that the alleged ORV use
represents a failure by the BLM to manage the disputed WSAs in accordance with
the FLPMA’s nonimpairment mandate, it must compel the agency to comply with
its legal duty. Forest Guardians, 174 F.3d at 1187.
7
The IMP gives specific attention to ORV use when discussing impairing
activity. For example, the IMP specifically notes that “[c]ross-country vehicle
use off boundary roads and existing ways” constitutes surface
disturbance–specifically defined as “impairing” activity under the IMP–because
“the tracks created by the vehicles leave depressions or ruts, compact the soils,
and trample or compress vegetation.” The regulation also holds that vehicles may
not drive off “existing trails” except (1) in emergency situations, (2) by state or
federal officials to protect human life, safety, and property, (3) where the area
was designated for ORV use prior to FLPMA, or (4) where the vehicle will be
traversing on sand dunes or snow areas that have been designated for that type of
recreational activity. Similarly, the IMP indicates that recreational activities
normally permitted within WSAs may be restricted if they “depend upon cross-
country uses of motor vehicles.”
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2. Final Action Argument
On appeal, the BLM also asserts that § 706(1) only applies to “final, legally
binding actions that have been unlawfully withheld or unreasonably delayed.”
Apparently, the BLM believes that a court may only compel agency action under
§ 706(1) if the unlawfully withheld action would itself be considered a “final”
action under § 704 of the APA, which limits judicial review to final agency
actions. 8 5 U.S.C. § 704. According to the BLM, § 706(1) is not available for
“day-to-day management actions,” which, in its view, includes dealing with the
ORV use at issue in this case. In essence, the BLM seems to argue that, because
it could prevent impairment by ORV use through steps that might not themselves
be considered a final agency action, federal courts lack subject matter jurisdiction
under § 706(1) over these “day-to-day” decisions.
We find the BLM’s finality argument unpersuasive, for it seems to read
finality in an inappropriately cramped manner. Contrary to the implications of the
BLM’s argument, the APA treats an agency’s inaction as “action.” 5 U.S.C.
8
Section 704 defines the limits of federal courts’ power to review actions
by administrative agencies, declaring, “Agency action made reviewable by statute
and final agency action for which there is no other adequate remedy in a court are
subject to judicial review.” 5 U.S.C. § 704. Agency action, in turn, is defined as
including “the whole or a part of agency rule, order, license, sanction, relief, or
the equivalent or denial thereof, or failure to act.” Id. § 551(13); see also Lujan
v. Nat’l Wildlife Fed’n, 497 U.S. 871, 882 (1990) (explaining definition of
agency action).
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§ 551(13) (defining “agency action” as including a “failure to act”). Where, as
here, an agency has an obligation to carry out a mandatory, nondiscretionary duty
and either fails to meet an established statutory deadline for carrying out that duty
or unreasonably delays in carrying out the action, the failure to carry out that duty
is itself “final agency action.” Once the agency’s delay in carrying out the action
becomes unreasonable, or once the established statutory deadline for carrying out
that duty lapses, the agency’s inaction under these circumstances is, in essence,
the same as if the agency had issued a final order or rule declaring that it would
not complete its legally required duty. See Coalition for Sustainable Res., Inc. v.
United States Forest Serv., 259 F.3d 1244, 1251 (10th Cir. 2001) (explaining
circumstances in which agency inaction may be considered “final”); Sierra Club
v. Thomas, 828 F.2d 783, 793 (D.C. Cir. 1987) (“[I]f an agency is under an
unequivocal statutory duty to act, failure to so act constitutes, in effect, an
affirmative act that triggers ‘final agency action’ review.”). Cf. Daniel P. Selmi,
Jurisdiction To Review Agency Inaction Under Federal Environmental Law, 72
Ind. L.J. 65, 99-101 (1996) (discussing constructive final agency action); Peter
H.A. Lehner, Note, Judicial Review of Administrative Inaction, 83 Colum. L.
Rev. 627, 652-55 (1983) (explaining that finality may be found when an agency
fails to act by a statutorily imposed deadline or unreasonably delays acting).
Consequently, contrary to the BLM’s argument, the Bureau’s alleged failure to
-19-
comply with the FLPMA’s nonimpairment mandate can be considered a final
action under § 704 that is subject to compulsion under § 706(1). 9 Therefore, the
failure of an agency to carry out its mandatory, nondiscretionary duty either by an
established deadline or within a reasonable time period may be considered final
agency action, even if the agency might have hypothetically carried out its duty
through some “non-final” action. 10
9
Courts have implicitly recognized that unlawfully withheld actions are
considered final under § 704. Some emphasize, for example, that an agency must
carry out nondiscretionary duties required by law, without discussing whether the
withheld duty would be considered a final agency action. Firebaugh Canal Co. v.
United States, 203 F.3d 568, 577 (9th Cir. 2000); Forest Guardians, 174 F.3d at
1187-88 (collecting Tenth Circuit cases explaining that an agency must carry out
nondiscretionary duties). Courts have sometimes described § 706(1) as an
exception to the APA “finality” requirement. See, e.g., Independence Mining
Co., 105 F.3d at 511 (citing Public Citizen v. Bowen, 833 F.2d 364, 367 (D.C.
Cir. 1987), and Public Citizen Health Research Group v. Comm’r, FDA, 740 F.2d
21, 30-32 (D.C. Cir. 1984)). This description may be slightly inaccurate,
however, for § 704 of the APA defines the type of agency actions subject to
judicial review and, in relevant part, limits judicial review to final agency actions.
5 U.S.C. § 704. Section 706(1), by contrast, defines the “scope” of judicial
review over reviewable agency actions. Id. § 706; see also Aladjem v. Cuomo,
No. CIV-A-96-6576, 1997 WL 700511, at *3 n.2 (E.D. Pa. Oct. 30, 1997).
10
The BLM’s argument has other weaknesses. First, it seems somewhat in
tension with established precedent holding that an agency may be compelled to
make a decision or implement a duty, even if the agency retains discretion over
how it will carry out that duty. See, e.g., Mt. Emmons, 117 F.3d at 1172;
Marathon Oil, 937 F.2d at 500; Yu, 36 F. Supp. 2d at 931. Second, the BLM’s
position would seem to create a “no-man’s-land” of judicial review, in which a
federal agency could flaunt mandatory, nondiscretionary duties simply because it
might be able to satisfy these duties through some form of non-final action.
Third, in this case, it is clear that many of the steps the BLM might take to
address impairment caused by ORV use would be considered final agency actions.
(continued...)
-20-
Accordingly, we reject the BLM’s “final, legally binding” argument.
3. Partial Compliance
Even if it has a mandatory duty to prevent ORV-induced impairment, the
BLM argues that it cannot be compelled to act under § 706(1) because it has taken
some partial action to address impairing ORV activity. By and large, the district
court rested its jurisdictional ruling on this rationale, reasoning that the BLM
could not be compelled to comply with the nonimpairment mandate because the
BLM “presented significant evidence about the steps it is and has been taking to
prevent [ORV-caused] impairment.” We disagree.
It is undisputed that, at least since the instigation of litigation, the BLM has
taken some action, including closing certain roads and posting signs indicating
that ORV use is prohibited in certain areas, to address alleged impairment of the
WSAs caused by ORV use. 11 However, the mere fact that the BLM has taken
10
(...continued)
Indeed, as all parties acknowledge, some of the Recreationists who intervened in
this suit have brought a separate lawsuit challenging the BLM’s decision to close
certain ORV routes in the disputed WSAs. Closing roads, fining unauthorized
ORV users, licensing some users but not others, issuing new rules restricting
ORV use, etc., possibly could all fall within the definition of a final agency
action. See 5 U.S.C. § 551(13).
11
For example, on March 21, 2000, the BLM issued regulations closing 19
ORV routes in the Sids Mountain WSA and limiting ORV use to only “four
designated routes.” The record further indicates that the BLM erected signs and
barricades closing ORV routes and sought assistance from local ORV and
environmental groups to effectuate restrictions on ORV use.
(continued...)
-21-
some action to address impairment is not sufficient, standing alone, to remove this
case from § 706(1) review, as the BLM would have us hold. Indeed, if we were
to accept the BLM’s argument, we would, in essence, be holding that as long as
an agency makes some effort to meet its legal obligations, even if that effort falls
short of satisfying the legal requirement, it cannot be compelled to fulfill its
mandatory, legal duty. Certainly, the BLM should be credited for the actions it
has taken to comply with the nonimpairment mandate; it does not follow,
however, that just because the BLM attempts to comply with the nonimpairment
mandate, it thereby deprives a court of subject matter jurisdiction to determine
11
(...continued)
In the Moquith Mountain WSA, the BLM began combating increased ORV
use in 1993 by posting signs, sponsoring educational programs, and increasing
limited law enforcement patrols. In 1998, the BLM followed up on these efforts
by closing a number of ORV routes. The BLM also indicated that it was planning
additional measures where compliance with these measure has not been as
successful as hoped.
As to the third WSA area, the Parunuweap WSA, the BLM published a
management order in August 2000 limiting ORV use to designated travel routes
and prohibiting cross-country ORV travel outside these areas. During testimony
before the district court in 2000, the BLM also indicated that it had planned
educational programs on ORV use, had ordered signs that would be posted on
closed ORV routes in the area, and would be mailing ORV information to
interested parties within several weeks, though it is not entirely clear whether the
BLM ever implemented these plans.
Finally, between 1990 and 2000, the BLM prohibited ORV travel in the
Behind the Rocks WSA, placed information on bulletin boards explaining ORV
restrictions, and posted signs and/or dragged objects in front of unauthorized
ORV routes. According to testimony in the record, the BLM also monitored ORV
activity in the region.
-22-
whether it has actually fulfilled the statutorily mandated duty and potentially
compel action if that duty has not been fulfilled. 12
In support of its argument, the BLM invokes a few decisions from the
Ninth Circuit, suggesting that as long as an agency is taking some action toward
fulfilling its legal obligations, courts may not compel compliance under § 706(1).
And, indeed, in Ecology Ctr., Inc. v. United States Forest Serv., 192 F.3d 922 (9th
Cir. 1999), the Ninth Circuit refused to grant relief under § 706(1) where the
“Forest Service merely failed to conduct its duty in strict conformance with [a
Forest] Plan and NFMA Regulations.” 13 Id. at 926.
However, with all due respect, we find the Ninth Circuit’s analysis on this
point unpersuasive. First, in Ecology Center, the Ninth Circuit refused to compel
the Forest Service to conduct monitoring activities in strict compliance with a
12
Imagine, for example, that applicable federal law prohibited logging in a
national forest, yet the BLM only prohibited logging on half the forest,
permitting, for one reason or another, logging on the remaining half. The logic of
the BLM’s argument would have us hold that, because the BLM successfully
prevented logging on half, it could not be ordered to prevent logging on the
remaining half, notwithstanding the BLM’s failure to satisfy its legal obligation to
prevent logging in the forest.
13
The Recreationists also cite to the Fifth Circuit case of Sierra Club v.
Peterson, 228 F.3d 559 (5th Cir. 2000) (en banc). However, we do not believe
that case supports the BLM’s position. Rather, it essentially held that the
plaintiffs’ effort to enforce the Forest Service’s monitoring obligations was not
justiciable. Id. at 566-68 & n.11. There is no suggestion in that case that
jurisdiction over the monitoring claim failed because of partial monitoring
activity by the Forest Service.
-23-
forest plan and federal regulations because doing so “would discourage the Forest
Service from producing ambitious forest plans.” 192 F.3d at 926. Whether
requiring a federal agency to comply with its own regulations would discourage
that agency from enacting the regulations in the first place, however, is irrelevant
for § 706(1) purposes. Our inquiry under §706(1) is not whether, as a policy
matter, particular outcomes would be encouraged or discouraged, but whether the
agency has unlawfully withheld or unreasonably delayed a legally required,
nondiscretionary duty. Cf. Forest Guardians, 174 F.3d at 1187-88 (explaining
that § 706(1) requires a court to compel agency action once it has determined that
the agency had withheld a legally required duty). Further, the court in Ecology
Center viewed the monitoring activity as merely precursor data-gathering activity
to support later planned final agency action in amending or revising a forest plan.
By contrast, here the nonimpairment mandate obligation of the BLM is a discrete
obligation having independent significance apart from any further final agency
action.
Ecology Center also quoted the D.C. Circuit’s decision in Public Citizen v.
Nuclear Regulatory Comm’n, 845 F.2d 1105 (D.C. Cir. 1988), warning that
“[a]lmost any objection to agency action can be dressed up as an agency’s failure
to act” and cautioning courts against entertaining § 706(1) suits where an agency
has taken some action. 845 F.2d at 1108. We find, however, that Public Citizen
-24-
is readily distinguishable. At issue in Public Citizen was the Nuclear Regulatory
Commission’s issuance of nonbinding regulations “for the training and
qualifications of nuclear power plant personnel.” Id. at 1106. A relevant federal
statute required the agency to issue binding regulations, and the appellant in that
case sued, seeking to compel the agency to issue binding regulations. Id.Applicable federal statutes, however, required the appellant to bring suit
challenging final agency actions or an alleged failure to act within, at most, 180
days of the agency’s decision or inaction, a deadline the appellant clearly missed
if measured by the issuance of the nonbinding regulations. Id. at 1107.
Consequently, the issue directly before the D.C. Circuit was not whether the
agency’s issuance of nonbinding regulations insulated it from § 706(1) review,
but whether the issuance of the nonbinding regulations was sufficient action to
start the running of the 180-day statute of limitations period, notwithstanding the
nonbinding nature of the regulations. The D.C. Circuit found the nonbinding
regulations were “a formal product of the Commission, published in the Federal
Register, and expressly stat[ed] [by the agency] that it is responsive to the
mandate of the Nuclear Waste Policy Act.” Id. at 1108. Thus, by the clear
statement of the agency itself, the issuance of the nonbinding regulations was
intended to be final agency action, which triggered the running of the statute of
limitations. The statute of limitations could not be circumvented merely by
-25-
arguing that the agency’s performance was inadequate and thus should be
considered an ongoing failure to act, resulting in an ever-green cause of action for
failure to act.
The situation in the case before us is totally different. Here, it is alleged
that the BLM is in ongoing violation of a duty to prevent impairment of the
WSAs. That is an independent duty, and the BLM is not asserting that it has
taken final agency action that should have triggered a statute of limitations
barring SUWA’s claim. We, therefore, disagree with the notion that Public
Citizen stands for the proposition that any time an agency takes some steps
toward fulfilling a legal obligation, it is insulated from § 706(1) review.
Nevada v. Watkins, 939 F.2d 710 (9th Cir. 1991), another Ninth Circuit
decision cited by the BLM, also is inapposite. The court there simply held that
the issuance of preliminary guidelines for evaluating a nuclear waste disposal site
was not a final agency action because Congress, in the Nuclear Waste Policy Act,
declared that such conduct should not be deemed final agency action. Id. at 714
n.11. Obviously, we have no such clear congressional determination here.
Accordingly, we reject the BLM’s contention that, because it has taken some
steps to address impairment caused by ORV use, it is immune from § 706(1)
-26-
review. 14
D. Conclusion Regarding FLPMA Claim
In summary, we find that the BLM has a mandatory, nondiscretionary duty
to prevent the impairment of WSAs, and in this case, as the district court
acknowledged in its decision, SUWA’s complaint presents colorable evidence
suggesting that ongoing ORV use has or is impairing the disputed WSAs’
wilderness values, possibly in violation of the FLPMA’s nonimpairment mandate.
The fact that the BLM could, in theory, prevent the allegedly impairing ORV use
through means other than a final agency action, and that the BLM is taking some
steps to prevent ORV-induced impairment, does not deprive the district court of
subject matter jurisdiction under § 706(1) to consider the issue. Therefore, we
reverse the district court’s conclusion that it lacked subject matter jurisdiction
over SUWA’s impairment claims. On remand, the district court, giving
appropriate deference to the IMP’s definition of impairment, must determine
whether the BLM has, in fact, failed to comply with the FLPMA’s the
nonimpairment mandate.
This is not to suggest that the agency’s attempted compliance is totally
14
irrelevant to § 706(1) proceedings. In Forest Guardians, for example, we rejected
the argument that budgetary constraints could excuse the Secretary of Interior’s
“fail[ure] to perform a non-discretionary duty.” 174 F.3d at 1191. Nonetheless,
we held that budgetary constraints could be considered when deciding what
remedy the court should impose for the alleged violation or whether the Secretary
should be held in contempt. Id.-27-
IV. Duties under the Land Use Plans
SUWA also alleges on appeal that the BLM failed to carry out a mandatory
duty to manage several areas “in accordance with [their] land use plans.”
The district court dismissed the SUWA’s LUP-based claims on two
grounds. The district court reasoned on the one hand that, under relevant
regulations, compliance with forest management plans is “limited only to
affirmative projects either approved or undertaken after the RMP is in place; [the
applicable regulation] does not require that further planning activities
contemplated by the plan actually take place.” Because SUWA’s complaint did
not focus on “some site-specific action,” the district court concluded that the
BLM could not be compelled under § 706(1) to comply with the “monitoring” and
ORV-implementation plans promised in LUPs. Alternatively, the district court
explained, SUWA’s claims were simply a challenge to “the sufficiency of [the]
BLM’s actions, rather than a failure to carry out a clear ministerial duty.”
On appeal, the BLM urges us to affirm based on the reasons identified by
the district court. In addition, the BLM argues that LUPs do not create
mandatory, nondiscretionary duties because LUPs “are not Congressional
mandates, and they are subject to contingencies, such as availability of funds,
personnel and the presence of competing priorities.” We find the arguments
articulated by the BLM and the district court unpersuasive.
-28-
A. LUPs
The FLPMA requires the Department of the Interior and the BLM to
“manage the public lands . . . in accordance with the land use plans [LUPs]
developed . . . under section 1712 [of the FLPMA].” 43 U.S.C. § 1732(a).
Section 1712, in turn, identifies a number of criteria and concerns that must be
taken into account in developing LUPs. Id. § 1712(a), (c); see also 43 C.F.R.
§ 1610.2 (discussing public participation in LUPs).
At issue in this case are the LUPs for lands characterized as the “Factory
Butte and San Rafael areas.” It is undisputed that in 1990, an LUP identified
Factory Butte as a region requiring special monitoring for ORV use, stated that
the “[t]he area will be monitored and closed if warranted,” and indicated that
“[r]esource damage will be documented and recommendations made for corrective
action.” The BLM acknowledges that between 1990 and 2000 it did not fully
comply with the Factory Butte monitoring pledge. In particular, it failed to
maintain a monitoring supervision file specified in the LUP.
In 1991, the BLM created the San Rafael LUP, which called for designation
of ORV trails “following completion of an ORV implementation plan,” which was
scheduled to be completed within one year of the LUP’s approval. In turn, the
ORV implementation plan was to develop criteria for determining what areas in
San Rafael would be open to ORV use. During the course of the litigation, the
-29-
BLM admitted that it prepared an ORV implementation plan on October 6, 1997,
but that it had been only partially implemented.
B. LUP Claim
As an initial matter, we reject the BLM’s contention that it did not have a
mandatory, nondiscretionary duty to carry out the activities described in the
disputed LUPs. The Factory Butte and San Rafael LUPs declare that Factory
Butte “will be monitored” for ORV use and that an ORV implementation plan for
San Rafael “will be developed.” The FLPMA, in turn, unequivocally states that
“[t]he Secretary shall manage the public lands . . . in accordance with the land use
plans developed by him.” 43 U.S.C. § 1732(a); see also Pub. Lands Council v.
Babbitt, 167 F.3d 1287, 1299 (10th Cir. 1999) (noting how the BLM “shall
manage” lands in accordance with LUPs); Natural Res. Def. Council, Inc. v.
Hodel, 618 F. Supp. 848, 858 (E.D. Cal. 1985) (same). Relevant regulations
similarly provide that the BLM “will adhere to the terms, conditions, and
decisions of officially approved and adopted resource related plans.” 43 C.F.R.
§ 1601.0-5(c). Therefore, a straightforward reading of the relevant LUPs, as well
as applicable statutes and regulations, suggests that the BLM must carry out
specific activities promised in LUPs.
It is true, as the BLM and the Recreationists argue, that Congress intended
LUPs to be dynamic documents, capable of adjusting to new circumstances and
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situations. See H.R. Rep. No. 94-1163, at 5 (1976), reprinted in 1976
U.S.C.C.A.N. 6175, 6179, quoted in Natural Res. Def. Council, Inc. v. Hodel, 624
F. Supp. 1045, 1059 (D. Nev. 1985) (“The term ‘land use planning’ is not defined
in [the] bill because it is a term now in general usage and permits a large variety
of techniques and procedures and various alternatives.”). The BLM can draft
LUPs in a way that optimizes the agency’s ability to respond to changing
circumstances and conditions. However, the BLM cannot “ignore the
requirements of the Forest Plan.” 15 Sierra Club v. Martin, 168 F.3d 1, 4 (11th Cir.
15
The BLM invokes the Supreme Court’s decision in Ohio Forestry Ass’n,
Inc. v. Sierra Club, 523 U.S. 726 (1998), to support its claim that courts cannot
compel compliance with LUPs under § 706(1) because “agency plans are
programmatic planning documents which are subject to continual review and
refinement.” We find Ohio Forestry inapposite. Ohio Forestry does not stand for
the proposition that the Forest Service cannot be compelled to conform its current
conduct to LUPs. Rather, the Court held in Ohio Forestry that an environmental
interest group’s challenge to a forest plan allowing logging within a national
forest was not ripe because, before any logging could occur, the Forest Service
had to “focus upon a particular site, propose a specific harvesting method, prepare
an environmental review, permit the public an opportunity to be heard, and (if
challenged) justify the proposal in court.” 523 U.S. at 734. Contrary to the
BLM’s argument that Ohio Forestry held that a forest plan was merely a planning
document with no legal effect, the Supreme Court said that “in [the] absence of
[Plan authorization] logging could not take place.” Id. at 730; see also Trent
Baker, Judicial Enforcement of Forest Plans in the Wake of Ohio Forestry, 21
Pub. Land & Resources. L. Rev. 81, 107 (2000) (explaining that, even after Ohio
Forestry, “agency decisions to ignore their own regulations are reviewable under
the APA as final agency actions or failures to act”). Further, the plan provisions
under review in Ohio Forestry, unlike the Plan provision being asserted here, do
not purport to establish immediate obligations on the Forest Service but only set
forth broad preconditions for further action.
-31-
1999); see also Neighbors of Cuddy Mountain v. United States Forest Serv., 137
F.3d 1372, 1376-77 (9th Cir. 1998) (same); Ore. Natural Res. Council Action v.
United States Forest Serv., 59 F. Supp. 2d 1085, 1094-95 (W.D. Wash. 1999)
(same). Similarly, the BLM’s right (in accordance with applicable environmental
statutes, such as NEPA) to amend or alter existing LUPs does not free the agency
from carrying out present obligations. Just as the BLM can be held accountable
for failing to act with regard to its nonimpairment duty, it also can be held
accountable for failing to act as required by the mandatory duties outlined in an
LUP. Therefore, a colorable claim of failing to adhere to LUP duties provides a
court with subject matter jurisdiction to consider whether the failure to act
warrants relief under § 706(1).
C. Future Action Argument
We also find unconvincing the BLM’s claims that it is required to comply
with the mandates of a LUP only when it undertakes a future, site-specific
project. Undeniably, many federal lawsuits involving forest plans arise when a
federal agency authorizes a particular action within a forest without complying
with specific plan requirements. See, e.g., Sierra Club v. Martin, 168 F.3d 1, 3
(11th Cir. 1999); Utah Envtl. Cong. v. Zieroth, 190 F. Supp. 2d 1265, 1268 (D.
Utah 2002); Forest Guardians v. United States Forest Serv., 180 F. Supp. 2d 1273,
1277-78 (D.N.M. 2001). Nothing in the FLPMA, however, indicates that the
-32-
BLM is required to comply with LUPs only when it undertakes some future, site-
specific action. Some Plan provisions may only restrict future, site-specific
action, see Ohio Forestry Ass’n, Inc. v. Sierra Club, 523 U.S. 726 (1998), while
other Plan provisions may restrict the agency’s ongoing conduct or impose
immediate duties on the agency even in the absence of future, site-specific
proposals. As to the latter provisions, such as the ones at issue here, they have by
their own terms immediate effect on the BLM. As discussed above, the FLPMA
simply and straightforwardly declares, “[t]he Secretary shall manage the public
lands . . . in accordance with the land use plans developed by him.” 43 U.S.C.
§ 1732(a); see also Public Lands Council, 167 F.3d at 1299 (noting how the BLM
“shall manage” lands in accordance with LUPs). It does not suggest that
management “in accordance” with LUPs will occur only when some discrete post-
plan action occurs, or that the BLM is not obligated to follow through on and
carry out specific actions, such as monitoring for ORV use, promised in a LUP.
Likewise, some regulations suggest that the BLM must comply the LUP
requirements. See 43 C.F.R. § 1601.0-5(c) (explaining that the BLM “will adhere
to the terms, conditions, and decisions of officially approved and adopted
resource related plans”).
The BLM invokes certain regulatory provisions that state that future
management actions must conform to approved plans. See 43 C.F.R. § 1610.5-
-33-
3(a); see also 43 C.F.R. § 1601.0-2. However, those regulations do not in any
manner suggest that the BLM is relieved from implementing ongoing actions if
they are specifically promised in the LUP itself. The BLM suggests that inaction
cannot constitute a violation of a LUP. But the failure to implement a program
specifically promised in an LUP carries the same effect as if the agency had taken
an “affirmative” or “future” action in direct defiance of its LUP obligations. Cf.
Coalition for Sustainable Res., 259 F.3d at 1251; Thomas, 828 F.2d at 793. As
such, a court may compel the BLM to carry out a duty imposed by an LUP that
has been unreasonably delayed or unlawfully withheld. 16 See Martin, 168 F.3d at
4.
Accordingly, we reverse the district court to the extent it dismissed
SUWA’s LUP-based claims on the ground that the BLM’s obligation to comply
with LUP is only triggered by “some [future] site-specific action taken by the
BLM.”
16
The BLM’s refusal to adhere to promised monitoring programs, such as
those discussed in the Factory Butte LUP, is in tension with regulations
mandating that LUPs “establish intervals and standards, as appropriate, for
monitoring and evaluation of the plan” and that forest managers “shall be
responsible for monitoring and evaluating the plan in accordance with the
established intervals and standards.” 43 C.F.R. § 1610.4-9.
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D. Partial Compliance
For the reasons outlined in our discussion of SUWA’s nonimpairment
claims, we also reverse the district court’s conclusion that the BLM cannot be
compelled under § 706(1) to comply with the LUP requirements because, “while
the BLM’s actions have not been carried out to the letter [of the LUPs], there has
not been a complete failure to perform a legally required duty that would trigger
review under § 706(1).” As previously explained, partial efforts toward
completing a legally required duty do not prevent a court from compelling action
under § 706(1). However, when the district court reviews the merits on remand,
it can take into account the LUP’s mechanism for addressing changing
circumstances and conditions in determining the scope of the duties involved and
the agency’s attempted compliance. 17
17
On appeal, there has been some suggestion by the parties that SUWA’s
LUP claims, particularly with regard to the Factory Butte area, are now moot
because the BLM implemented the LUP requirements after SUWA instituted the
present litigation. On remand, the district court should consider whether some or
all of the SUWA’s LUP-based claims are moot, though we note that the Supreme
Court has cautioned against finding a claim moot where a party ends the
challenged, allegedly illegal conduct after the filing of a lawsuit, unless it is
“absolutely clear that the allegedly wrongful behavior could not reasonably be
expected to recur.” Adarand Constructors, Inc. v. Slater, 528 U.S. 216, 222
(2000) (emphasis in original, internal quotation marks omitted); see also Friends
of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 190 (2000)
(same).
-35-
E. LUP Conclusion
In summary, we find that the district court improperly dismissed SUWA’s
LUP-based claims for want of subject matter jurisdiction. Contrary to the
suggestions of the district court and the BLM, we hold that the BLM did have a
mandatory, nondiscretionary duty to comply with the Factory Butte LUP’s ORV-
monitoring provision and the San Rafael LUP’s ORV-implementation provision.
We reject the BLM’s arguments that (1) LUPs cannot impose mandatory,
nondiscretionary duties and/or (2) can only impose mandatory duties when an
affirmative, future, and site-specific action occurs. And, for reasons previously
discussed, we reject the suggestion that the BLM’s efforts towards compliance
with the LUP obligations, delayed for over a decade, preclude § 706(1) review.
V. NEPA
The third issue presented on appeal centers around the National
Environmental Policy Act (NEPA) and the BLM’s alleged failure to take a “hard
look” at information suggesting that ORV use has substantially increased since
the NEPA studies for the disputed areas were issued. SUWA contends that, under
§ 706(1), the BLM should be compelled to take a hard look at this information to
decide whether a supplemental environmental impact statement (SEIS) or
supplemental environmental assessments should be prepared for certain affected
-36-
areas. In particular, SUWA argues that the BLM’s most recent NEPA analyses
for the San Rafael Swell, Parunuweap, Behind the Rocks, and Indian Creek areas
are dated and do not account adequately for recent increases in ORV activity. 18
The BLM argues that it should not be compelled to take a hard look at the
increased ORV use because it is “planning to conduct NEPA analysis of the
nature of impacts of current levels of OHV use in all [the relevant] areas within
the next several years,” subject to resource constraints. The BLM further argues
that SUWA failed to raise its “hard look” argument before the district court,
instead “resting only on [the] BLM’s alleged ‘failure to produce supplemental
environmental impact statements.’” Significantly, the BLM does not directly
dispute on appeal that the alleged ORV use requires a hard look, and it concedes
that, “on a nation-wide level, it needs to revise many of its land management
plans.”
In its discussion of SUWA’s NEPA claim, the district court initially
acknowledged that SUWA was seeking to compel the BLM to take a “hard look”
at the ORV information. Yet it then rejected SUWA’s hard look claim on the
ground that a court could not compel the BLM to prepare supplemental NEPA
18
SUWA specifically challenges a 1990 environmental assessment (EA) for
the Henry Mountains area, a 1991 EIS for the San Rafael Swell area, a 1980 EA
for the Parunuweap area, a 1985 EA for the Behind the Rocks area, and a 1991
EIS for the Indian Creek area.
-37-
analyses based on the present record, suggesting in the process that SUWA was
seeking to compel the production of a SEIS.
For the reasons discussed below, we believe that the district court
misinterpreted SUWA’s claim and applied the wrong analysis, and we find that
the BLM’s arguments for affirming the district court’s ruling unconvincing.
Consequently, we reverse the district court’s decision.
A. Supplemental Analysis under NEPA
Under NEPA, “‘major Federal actions significantly affecting the quality of
the human environment’ must be preceded by an environmental impact statement
or EIS.” Holy Cross Wilderness Fund v. Madigan, 960 F.2d 1515, 1521 (10th
Cir. 1992) (citation omitted). Before creating an EIS, however, a government
agency may prepare a document called an environmental assessment (EA).
Friends of the Bow v. Thompson, 124 F.3d 1210, 1214 (10th Cir. 1997). If after
preparing the EA, the agency concludes that a proposed action will not
significantly affect the environment, the agency may issue a “finding of no
significant impact” (FONSI) and “need not prepare a full EIS.” Id.; see 40 C.F.R.
§ 1501.4(e). The primary goal of NEPA is to make sure a government agency
carefully gathers and evaluates relevant information about the potential impact of
a proposed agency action on the environment and that this information is made
available to the public. Robertson v. Methow Valley Citizens Council, 490 U.S.
-38-
332, 349 (1989); see also 40 C.F.R. § 1500.1(b) (“NEPA procedures must insure
that environmental information is available to public officials and citizens before
decisions are made and before actions are taken.”). NEPA does not require an
agency to reach a particular substantive outcome. Marsh v. Ore. Natural Res.
Council, 490 U.S. 360, 371 (1989); Envtl. Def. Fund, Inc. v. Andrus, 619 F.2d
1368, 1374 (10th Cir. 1980).
Due to this emphasis on informed decisionmaking, federal regulations
require government agencies to prepare an SEIS or a supplemental EA (1) if the
agency “makes substantial changes in the proposed action that are relevant to
environmental concerns” or (2) “significant new circumstances or information
relevant to environmental concerns and bearing on the proposed action or its
impacts” arise. 19 40 C.F.R. § 1502.9(c)(i)-(ii); see also Marsh, 490 U.S. at 372-
73; Colo. Envtl. Coalition v. Dombeck, 185 F.3d 1162, 1177-78 (10th Cir. 1999).
As the Supreme Court explained, “It would be incongruous with th[e] approach to
environmental protection . . . for the blinders to adverse environmental effects,
once unequivocally removed, to be restored prior to the completion of agency
action simply because the relevant proposal has received initial approval.”
Marsh, 490 U.S. at 371.
19
The standard for preparing a supplemental EA is the same as for preparing
an SEIS. See Idaho Sporting Cong., Inc. v. Alexander, 222 F.3d at 566 & n.2 (9th
Cir. 2000); Friends of the Bow, 124 F.3d at 1218 & n.3.
-39-
This court and the Supreme Court have recognized, however, that an
agency does not have to supplement an EIS or an EA “every time new information
comes to light.” Id. at 373; Friends of the Bow, 124 F.3d at 1218 (quoting
Marsh). “To require otherwise,” the Supreme Court has observed, “would render
agency decisionmaking intractable, always awaiting updated information only to
find new information outdated by the time a decision is made.” Marsh, 490 U.S.
at 373. Instead, “[t]he issue is whether the subsequent information raises new
concerns of sufficient gravity such that another, formal in-depth look at the
environmental consequences of the proposed action is necessary.” Wisconsin v.
Weinberger, 745 F.2d 412, 418 (7th Cir. 1984); see also S. Trenton Residents
Against 29 v. Fed. Highway Admin., 176 F.3d 658, 663-64 (3d Cir. 1999) (same).
In evaluating an agency’s decision not to develop a SEIS or supplemental
EA, courts utilize a two part test. First, they look to see if the agency took a
“‘hard look’ at the new information to determine whether [supplemental NEPA
analysis] is necessary.” Headwaters, Inc. v. Bureau of Land Mgmt., Medford
Dist., 914 F.2d 1174, 1777 (9th Cir. 1990); see also Marsh, 490 U.S. at 374;
Hughes River Watershed Conservancy v. Johnson, 165 F.3d 283, 286 (4th Cir.
1999). In applying the hard look test, courts may consider whether the agency
“obtains opinions from its own experts, obtains opinions from experts outside the
agency, gives careful scientific scrutiny, [] responds to all legitimate concerns
-40-
that are raised,” Hughes River, 165 F.3d at 288 (citing Marsh, 490 U.S. at 378-
85), or otherwise provides a reasoned explanation for the new circumstance’s lack
of significance. Second, after a court determines that an agency took the requisite
“hard look,” it reviews an agency’s decision not to issue an SEIS or a
supplemental EA under the APA’s arbitrary and capricious standard. Marsh, 490
U.S. at 377; Colo. Envtl. Coalition, 185 F.3d at 1178; Friends of the Bow, 124
F.3d at 1218; Hughes River Watershed Conservancy v. Glickman, 81 F.3d 437,
443 (4th Cir. 1996).
B. Hardlook Claim
Turning to the merits of the parties’ arguments, we initially conclude that
SUWA properly raised its “hard look” claim before the district court. A review of
the district court proceedings indicates that SUWA claimed that the “BLM’s
failure to take [a] ‘hard look’ . . . is a clear violation of NEPA’s requirements.”
In advancing this argument, SUWA distinguished the first step of supplemental
NEPA review (whether an agency took a hard look at new information) from the
second step (whether the agency acted arbitrarily and capriciously in not issuing
an SEIS or a supplemental EA) and made clear it was challenging the BLM’s
failure to take a “hard look,” not whether the BLM acted arbitrarily and
capriciously in refusing to prepare a supplemental NEPA analysis. While SUWA
did include a rhetorical flourish suggesting that “should the agency take the
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required hard look, the inescapable conclusion of that analysis must be that the
‘new circumstances’ . . . require supplemental NEPA,” the BLM apparently
recognized that SUWA was asserting a “failure to take a ‘hard look’” claim and
responded accordingly. Consequently, we conclude that SUWA adequately raised
and preserved its claim that the BLM should be compelled to take a hard look at
new information suggesting “significant new circumstances . . . relevant to
environmental concerns and bearing” on its management of the disputed lands.
40 C.F.R. § 1502.9(c)(i)-(ii). Further, we conclude the district court erred by
resolving SUWA’s claim on the ground that, based on the evidence currently
before it, an actual SEIS or supplemental EA could not be ordered.
C. Future NEPA Action
We also believe that the BLM is misguided in claiming that because it will
be undertaking NEPA analysis in the near future, a court cannot, or, at the very
least, should not, require it to take a hard look at the increased ORV use. The
BLM’s assertion that it hopes to fulfill, or even will fulfill, its NEPA obligations
in the future does not address its current failures to act. Cf. Portland Audubon
Soc’y v. Babbitt, 998 F.2d 705, 709 (9th Cir. 1993) (“[W]e are unmoved by the
Secretary’s claim that it would be futile to prepare supplemental EISs . . . when
its new Resources Management Plans and accompanying EISs will address all the
relevant information.”).
-42-
Similarly, the BLM’s claim that it should not be compelled to take a hard
look at present ORV use because it faces budget constraints and because requiring
such a review “would only divert BLM’s resources from its current and planned
NEPA work” is unavailing. The BLM’s budgetary argument wrongly conflates
financial constraints with the legal issue in this case: whether the BLM is required
to take a hard look at increased ORV use under NEPA. An agency’s lack of
resources to carry out its mandatory duties, we have reasoned, does not preclude a
court from compelling action under § 706(1). Forest Guardians, 174 F.3d at 1189
n.14 (holding that the unavailability of resources cannot be used as a defense
against an action to compel an agency to carry out its mandatory, nondiscretionary
duties); see also id. at 1192 (“Wisely, the Secretary does not press the argument
that inadequate congressional appropriations relieved him of his ESA duties. We
could not accept that argument if it had been raised. . . .”). Instead, we have
explained, an inadequate resource defense must be reserved for any contempt
proceedings that might arise if the agency fails to carry out a mandatory duty after
being ordered to do so by a court. Id. (expressing sympathy for the resources
argument and noting that it “could arise at the contempt stage”).
Additionally, we find the BLM’s claim that it should not be compelled to
take a hard look at increased ORV use because it intends to conduct NEPA
reviews in the near future problematic in light of its budget-based arguments.
-43-
The BLM’s extensive discussion about the budgetary woes confronting it, as well
as its concession that “limited resources will prevent [the] BLM from undertaking
all of its desired [NEPA] planning efforts immediately,” raise serious questions
about the likelihood of a future hard look actually occurring. Our concern on this
score is only increased by the BLM’s failure to offer a concrete time table for
when its NEPA activities will occur; all the BLM suggests is that further NEPA
review will occur over the next “several” or “few” years.
Accordingly, we conclude that the district court erred in concluding that it
could not order the BLM to take a hard look at the information presented by
SUWA. Cf. Hughes River, 81 F.3d at 446 (concluding that Agency violated
NEPA by not taking a hard look at information before declining to issue a SEIS).
VI. Conclusion
In our view, the district court erroneously concluded that because the BLM
has taken some steps toward addressing alleged ORV-caused impairment and
toward complying with LUP requirements, it lacked subject matter jurisdiction
under § 706(1) of the APA. We also find that the district court mistakenly
believed that the BLM is only bound by the requirements of LUPs when it
undertakes “affirmative, future actions” that conflict with mandatory LUP duties.
Finally, we further conclude that the district court misapprehended the nature of
-44-
SUWA’s NEPA claim. The alternative grounds for affirming the district court’s
ruling offered by the BLM, including its claim that unlawfully withheld action
may only be compelled under § 706(1) if the withheld action, once carried out,
would be considered final agency action, are unpersuasive. Accordingly, we
REVERSE the district court’s decision and REMAND for proceedings consistent
with this opinion.
-45-
No. 01-4009, Southern Utah Wilderness Alliance et al. v. Norton et al.
McKAY, Circuit Judge, concurring in part and dissenting in part:
While I concur in the result reached by the majority as to Appellants’
NEPA claim, I respectfully dissent in all other respects.
I. Misconstruing the BLM’s Nonimpairment Obligation
The court’s failure to follow well-established precedent which mandates
that we determine the scope of § 706(1) jurisdiction by a mandamus standard
leads to its unwarranted conclusion that any mandatory agency obligation is
amenable to attack pursuant to § 706(1) of the APA. Maj. op. at 7. The majority
opinion does not, and cannot, cite a single case from any court justifying this
novel proposition.
Our ability to grant injunctive relief under § 706(1) is governed by a
standard similar to the one used in evaluating requests for mandamus relief. See
Mount Emmons Mining Co. v. Babbitt, 117 F.3d 1167, 1170 (10th Cir. 1997);
Independence Mining Co., Inc. v. Babbitt, 105 F.3d 502, 507 (9th Cir. 1997).
“Mandamus relief is an appropriate remedy to compel an administrative agency to
act where it has failed to perform a nondiscretionary, ministerial duty.” Marathon
Oil Co. v. Lujan, 937 F.2d 498, 500 (10th Cir. 1991) (citations omitted) (emphasis
added). In § 706(1) actions, plaintiffs must demonstrate either “agency
recalcitrance [] in the face of [a] clear statutory duty[, or agency recalcitrance] ‘of
such a magnitude that it amounts to an abdication of statutory
responsibility . . . .’” ONRC Action v. BLM, 150 F.3d 1132, 1137 (quoting
Public Citizen Health Research Group v. Comm’r, Food & Drug Admin., 740 F.2d
21, 32 (D.C. Cir. 1984).
I agree with the majority that BLM’s FLPMA obligation is both mandatory
and continuous. This observation, however, reveals but a portion of Appellees’
burden in establishing jurisdiction pursuant to § 706(1). Because we employ a
mandamus standard when evaluating § 706(1) jurisdiction, § 706(1) plaintiffs
must also prove that they are challenging a ministerial agency obligation. See
Marathon Oil, 937 F.2d at 500. Ministerial is defined as “an act that a person
after ascertaining the existence of a specified state of facts performs in obedience
to a mandate of legal authority without the exercise of personal judgment upon the
propriety of the act and usually without discretion in its performance . . . ..”
Webster’s Third New Int’l Dictionary (1986) (emphasis added). The BLM’s
nonimpairment FLPMA obligation is not remotely ministerial.
The majority concedes the well-settled rule that the propriety of jurisdiction
pursuant to § 706(1) must be determined in accordance with our mandamus
jurisprudence. Maj. op. at 12-13, n.6. The majority also concedes that the BLM’s
nonimpairment obligation is generally stated and involves a substantial amount of
discretion in the manner in which the BLM meets its obligation. Id. at 14.
-2-
Despite conceding the very points that establish the fact that the BLM’s FLPMA
nonimpairment duty is not ministerial is nature, the majority’s opinion
nonetheless maintains that Appellants may challenge the BLM’s alleged failure to
meet its nonimpairment obligation pursuant to § 706(1)’s provisions. 1
Despite recognizing, as it must, that § 706(1) jurisdiction is properly
analyzed under our mandamus jurisprudence, the thrust of the majority’s position
is that any mandatory duty, regardless of how generally stated and regardless of
the amount of discretion given to the agency in the performance of its duty, is
challengeable pursuant to § 706(1). Additionally, the majority in no way limits its
novel interpretation of § 706(1) jurisdiction to the environmental field.
Apparently, as set out in the majority opinion, any mandatory obligation of any
United States agency could be challenged using § 706(1) as a jurisdictional basis.
The majority’s position ignores reality by placing all agency obligations,
regardless of the discretion granted to the agency in carrying out the particular
obligation, into one category–mandatory obligations. Statutory directives by their
nature are mandatory. I have yet to discover a single statute indicating that an
1
The requirement that the agency’s obligation be ministerial in nature has
also been expressed as a requirement that the agency’s obligation be “a plainly
defined and preemptory duty.” Hadley Mem’l Hosp., Inc. v. Schweiker, 689 F.2d
905, 912 (10th Cir. 1982) (citations omitted). The BLM’s nonimpairment
obligation simply cannot be viewed as either ministerial or a plainly defined and
preemptory duty.
-3-
agency’s obligation is anything other than mandatory. The reality is that the
various mandatory obligations given to agencies are properly viewed on a
continuum. On one end are agency obligations that are programmatic in nature,
i.e., the BLM’s nonimpairment duty. The other end of the continuum represents
discrete tasks the agency must perform in order to carry out a portion of its
overall duties, i.e., processing a mineral application. The latter are properly
challengeable pursuant to § 706(1); the former are not.
The majority’s position directly contradicts the Supreme Court’s mandate
that review under the APA is strictly reserved for cases addressing specific
instances of agency action or inaction rather than programmatic attacks. See
Lujan v. National Wildlife Fed’n, 497 U.S. 871, 891-94 (1990). Plaintiffs
“cannot seek wholesale improvement of [an agency] program by court decree,
rather than in the offices of the Department or the halls of Congress, where
programmatic improvements are normally made.” Id. at 891 (emphasis in
original). In sum, § 706(1) of the APA cannot be used as a jurisdictional vehicle
for claims challenging an agency’s overall method of administration or for
controlling the agency’s day-to-day activities. 2
2
The Supreme Court observed that
[t]he case-by-case approach . . . require[d] is understandably
frustrating to an organization such as respondent, which has as its
(continued...)
-4-
The problem with the majority’s position is revealed through the use of a
simple example. The Immigration and Naturalization Service has a mandatory,
ongoing, and continuous obligation to “enforce the Immigration and Nationality
Act and all other laws relating to the immigration and naturalization of aliens.” 3
2
(...continued)
objective across-the-board protection of our Nation’s wildlife . . . .
But this is the traditional, and remains the normal, mode of operation
of the courts. . . . Assuredly[, it is] not as swift or as immediately
far-reaching a corrective process as those interested in systematic
improvement would desire. Until confided to us, however, more
sweeping actions are for the other branches.
National Wildlife Fed’n, 497 U.S. at 894. “Courts are not equipped, nor are they
the proper body, to resolve the technical issues involved in agency
decisionmaking at ‘a higher level of generality.’” Sierra Club v. Peterson, 228
F.3d 559, 569 (5th Cir. 2000) (citing National Wildlife Fed’n, 497 U.S. at 894).
Few, if any, of the BLM’s obligations are expressed at a higher level of generality
than the BLM’s nonimpairment duty pursuant to FLPMA.
3
There are a host of mandatory, ongoing, continuous agency obligations that
are now subject to attack pursuant to the majority’s view of § 706(1) jurisdiction.
Another example is the Fish and Wildlife Service’s obligation to utilize its
authority to “seek to conserve endangered species and threatened species.” See
16 U.S.C. § 1531(c)(1) (2000) (declaring Congress’ policy that all federal
departments and agencies have an obligation to protect endangered species). The
majority offers no explanation to differentiate the mandatory, ongoing, and
continuous nature of such agency obligations from the BLM’s nonimpairment
obligation established by FLPMA. Thus, the majority’s view of § 706(1) exposes
agencies to attack by plaintiffs who believe that the INS is not properly enforcing
all of the immigration laws or that the Fish and Wildlife Service is not
sufficiently utilizing its authority to seek and conserve endangered species.
Rather than preserve our WSAs (or ensure the INS enforces all of the immigration
laws or that the Fish and Wildlife Service utilizes its authority to conserve
endangered species) the majority’s view of § 706(1) jurisdiction improperly
permits plaintiffs unsatisfied with the day-to-day operations of various
(continued...)
-5-
8 C.F.R. § 2.1 (2002). Applying the court’s apparent conclusion that any
mandatory duty can be challenged pursuant to § 706(1), the failure of the INS to
enforce the immigration laws could be properly challenged pursuant to § 706(1).
Thus, any individual unhappy with the INS’ efforts to prevent the entry of all
illegal aliens (despite the laws prohibiting the entry of illegal aliens and the INS’
duty to enforce these laws) could bring a lawsuit pursuant to § 706(1) for the
INS’ “failure to act.” Despite our prior case law holding to the contrary, nothing
in the majority opinion would constrain the granting of a writ of mandamus
ordering the INS to enforce the immigration laws. See, e.g., Smith v. Plati, 258
F.3d 1167, 1179 (10th Cir. 2001) (mandamus “not ordinarily granted to compel
police officers to enforce the criminal laws”) (quotation omitted). The majority’s
novel interpretation of § 706(1)’s jurisdictional scope permits exactly this
incongruous result.
This expanded view of § 706(1) jurisdiction becomes even more apparent
when considering the potential remedies available to plaintiffs challenging any
mandatory agency obligation. Our prior cases reveal that when we grant a writ of
mandamus, the remedy provided within the writ guarantees correction of the error
petitioner claimed in the first instance. The writ’s ability to correct the problem
(...continued)
3
government agencies to attempt to control these operations through litigation.
-6-
complained of necessarily requires that the duty challenged be ministerial in
nature. See, e.g., Hulsey v. West, 966 F.2d 579, 582-83 (10th Cir. 1992)
(mandamus granted ordering the district court to ensure petitioner’s right to jury
trial); McNeil v. Guthrie, 945 F.2d 1163, 1168 (10th Cir. 1991) (mandamus
granted requiring district court clerk to file pro se papers in class action suit);
Journal Publ’g. Co. v. Mechem, 801 F.2d 1233, 1237 (10th Cir. 1986) (mandamus
writ issued ordering district court to dissolve previous order regarding press
contact with jury pool that was over broad); Hustler Magazine, Inc. v. United
States Dist. Court, 790 F.2d 69, 71 (10th Cir. 1986) (mandamus writ issued
requiring district court to conduct a “full and adequate hearing” regarding motion
to change venue); Herrera v. Payne, 673 F.2d 307, 308 (10th Cir. 1982)
(mandamus writ issued compelling district court to attach statement of reasons in
order denying a certificate of probable cause as required by Fed. R. App. P.
22(b)).
A similar result occurs when a remedy is granted in a suit brought against
agencies for a failure to act pursuant to § 706(1). See, e.g., Forest Guardians v.
Babbitt, 174 F.3d 1178, 1192 (10th Cir. 1999) (compelling agency to designate a
critical habitat for the silvery minnow); Yu v. Brown, 36 F. Supp. 2d 922, 931
(D.N.M. 1999) (compelling INS to process plaintiff’s application for special
immigrant juvenile status). On remand, I can think of no remedy the district court
-7-
could construct that would guarantee a correction of the agency failure alleged in
the first instance–BLM’s full compliance with its nonimpairment duty. At most
and at worst, the remedy granted would involve the district court in the ongoing
review of every management decision allegedly threatening achievement of the
nonimpairment mandate. Quite simply, even if ORV use was entirely banned
inside WSAs, the BLM’s compliance with such a remedy still would not
guarantee that the WSAs would not be impaired in the future.
The majority’s opinion essentially transforms § 706(1) into an improper and
powerful jurisdictional vehicle to make programmatic attacks on day-to-day
agency operations. The Supreme Court has specifically rejected this approach.
See National Wildlife Fed’n, 497 U.S. at 894 (APA improper method of making
programmatic attacks on agency obligations).
II. Unwarranted Expansion of “Failure to Act”
In addition to an unwarranted expansion of § 706(1) threshold jurisdiction,
the majority opinion compounds its error by improperly expanding the definition
of § 706(1)’s failure to act requirement to include not only true agency inaction
but also all agency action which falls short of completely achieving the agency’s
obligations. This unique interpretation of “failure to act” incorrectly conflates the
concepts of action and achievement. Once again, I do not dispute that the BLM
must comply with its nonimpairment mandate and must manage WSAs in a
-8-
manner that prevents impairment. For § 706(1) jurisdictional purposes, however,
this is not the issue. Instead, the issue is whether Appellants may use § 706(1) to
challenge an agency’s failure to completely comply with its obligations as a
“failure to act.” The facts in this case do not support such a conclusion.
Because nearly every objection to agency action could be cleverly pleaded
as agency inaction, § 706(1) jurisdiction exists “only when there has been a
genuine failure to act.” Ecology Ctr., Inc. v. United States Forest Serv., 192 F.3d
922, 926 (9th Cir. 1999); see also Public Citizen v. Nuclear Regulatory Comm’n,
845 F.2d 1105, 1108 (D.C. Cir. 1988) (emphasis added). Complaints about the
sufficiency of agency action disguised as failure to act claims are not cognizable
pursuant to § 706(1). See Sierra Club v. Peterson, 228 F.3d 559, 568 (5th Cir.
2000); Ecology Ctr., 192 F.3d at 926; Nevada v. Watkins, 939 F.2d 710, 714 n.11
(9th Cir. 1991).
The majority’s summation of Appellants’ claims reveals the true nature of
Appellants’ complaint–insufficiency of agency action disguised as a failure to act
claim. Appellants assert that the BLM is “not properly managing off-road vehicle
and/or off-highway (collectively ORV) use on federal lands that had been
classified by the BLM as Wilderness Study Areas.” Maj. op. at 3. Appellants’
objections are not based upon a true failure to act; instead, they address an
alleged failure of the BLM to achieve complete success in its efforts to comply
-9-
with the BLM’s nonimpairment obligation. 4 Section 706(1) is unquestionably an
inappropriate jurisdictional basis for such claims. See, e.g., Sierra Club, 228 F.3d
at 568; Ecology Ctr., 192 F.3d at 926; Watkins, 939 F.2d at 714.
The majority’s assertion that an “agency’s attempted compliance is[n’t]
totally irrelevant to § 706(1) proceedings” misses the mark completely. Maj. op.
at 27, n.14. Not only is an agency’s attempted compliance “not totally
irrelevant,” it is the essential inquiry in determining whether § 706(1) jurisdiction
can be properly invoked. I reiterate that § 706(1) jurisdiction is proper only when
a plaintiff alleges a true failure to act. Sierra Club, 228 F.3d at 568; Ecology
Ctr., 192 F.3d at 926. The majority maintains that any action taken by an agency
that does not result in complete success in the carrying out of mandatory
obligations is properly challengeable as a failure to act. The burden properly
placed on § 706(1) plaintiffs is much more rigorous than that. Plaintiffs must
prove a failure of an agency to take any action reasonably calculated to achieve
4
The example in footnote twelve of the majority opinion has no application
to this case. It assumes that the BLM is either acting in bad faith or taking final
agency action inconsistent with its statutory mandate. I agree that bad faith
attempts to comply with an agency’s obligations is equivalent to no action at all.
However, in the present case no one alleges that the BLM is acting in bad faith.
In order to log on BLM lands, permits are required. Assuming that the land
had been set aside for activities other than logging (as the majority does),
granting a logging permit would represent a final agency action properly
challengeable pursuant to the APA as a final agency decision. See 5 U.S.C. § 704(1996). Section 704, not § 706(1), would provide the proper jurisdictional basis
for such a challenge.
-10-
the ends of its mandate. It is unrealistic to expect that every agency action taken
in good faith will be completely successful. It is even wider of the mark to label
good faith agency efforts that fall short of complete success as “failures to act.”
III. Creating a New Agency Obligation
The court’s improper disposition of Appellants’ land use plan claim is due
in part to its erroneous view of the scope of § 706(1) jurisdiction and in part to its
creation of a new agency obligation that before today the BLM did not possess.
Statutorily, BLM’s obligation is to manage its lands “in accordance with the land
use plans.” 43 U.S.C. §1732(a) (1986). Additionally, 43 C.F.R. §1610.5-3(a)
(2001) states that “[a]ll future resource management authorizations and
actions . . . and subsequent more detailed or specific planning[] shall conform to
the approved plan.”
The court asserts that once the BLM develops a land use plan it is required
to achieve every single aspect of that plan. It accepts Appellants’ argument that
allowing the BLM to ignore the affirmative management provisions in its own
plans will “make a charade of the BLM land planning, public participation, and
NEPA processes.” Aplt. Br. at 43. The effect of the majority’s opinion is that
any failure (regardless of how small) to live up to every aspiration expressed in
the BLM’s land management plans would entitle Appellants to challenge such
failure pursuant to § 706(1).
-11-
Correctly viewed, however, the BLM’s land plans are aspirational. While
the BLM is prevented from approving or undertaking affirmative projects
inconsistent with its land use plans, the BLM is not required to meet each and
every specific goal set forth in its land use plans or face potential litigation
jurisdictionally based on § 706(1) for failing to act. Affirmative projects or final
agency decisions inconsistent with land use plans are properly challenged as final
agency actions, not as failures to act. Importantly, successful challenges to land
use plans have only involved final agency decisions made pursuant to existing
land use plans. See, e.g., Neighbors of Cuddy Mountain v. United States Forest
Serv., 137 F.3d 1372, 1376, 1382 (9th Cir. 1998) (remanding approval of a timber
sale not in conformity with forest plan); Oregon Natural Res. Council Action v.
United States Forest Serv., 59 F. Supp. 2d 1085, 1097 (W.D. Wa. 1999)
(enjoining timber sale approved before completion of wildlife survey as required
by the management plan). I was unable to locate a single case supporting the
majority’s view.
The court’s position is belied by the stated purpose of resource management
planning, which is to provide “a process for the development, approval,
maintenance, amendment and revision of resource management plans.” 43 C.F.R.
§ 1601.0-1 (2001) (emphasis added). Thus, the regulations envision plans that are
dynamic, flexible, and that properly balance the competing objectives of the
-12-
various groups interested in public lands. Requiring an agency to meet every one
of its original aspirational objectives denies the intended nature of resource
planning. Inherent in the process is the understanding that even well-intended
objectives may prove unfruitful in obtaining desired results. Necessarily, a
change in approach will be warranted on occasion. Permitting plaintiffs to
challenge a land use plan under the guise of a failure to act because each and
every objective of the land use plan has not been met would allow plaintiffs of all
varieties to substantially impede an agency’s day-to-day operations. The Supreme
Court has specifically rejected this notion. National Wildlife Fed’n, 497 U.S. at
894 (courts are not the correct place to make programmatic attacks on agencies).
The district court concluded that the BLM’s obligation on its face is
“limited only to affirmative projects either approved or undertaken after the
[Resource Management Plan] is in place; it does not require that further planning
activities contemplated by the plan actually take place.” Aplt. App. at 865. I
agree. The regulations specifically grant a right to challenge an agency decision
or amendment that violates a plan’s provision. “Any person adversely affected by
a specific action being proposed to implement some portion of a resource
management plan or amendment may appeal such action pursuant to 43 CFR
4.400 at the time the action is proposed for implementation.” 43 C.F.R. § 1610.5-
3(b) (2001) (emphasis added). The regulations tellingly contain no reference of
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any kind to the rights of an individual to challenge an agency’s failure to meet
each and every goal set forth in its land use plans.
I have found absolutely no legal support for the proposition that failure to
attain all of the goals of a land use plan can properly be challenged pursuant to §
706(1), nor does the majority opinion cite any. It seems odd to me that, if a
plaintiff could properly challenge an agency’s failure to reach all of its objectives
in its land use plans pursuant to § 706(1), not a single plaintiff has ever prevailed
in any court on such a theory. Today the court permits Appellants to potentially
proceed on a land management plan claim based upon a previously nonexistent
agency obligation.
IV. Consequences of the Majority’s Approach
The unwarranted and unsupported decision to judicially expand § 706(1)
jurisdiction in a way never envisioned by any other court or Congress and the
creation of a previously unrecognized agency obligation might be more palatable
if the end result of the endeavor promised significant public policy benefits.
Unfortunately, I am convinced that the opposite is true. Instead of assisting
agencies in the laudable goal of preserving our nation’s precious environmental
resources, the effect of the court’s decision will likely make the successful
protection of our environment even more difficult.
Perhaps the most obvious consequence of this expansion of § 706(1)’s
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scope is the future syphoning of scarce BLM (and other agencies’) resources
intended to meet its worthy objectives and obligations to fund increasing
unmerited litigation. However narrowly intended, the court’s opinion has opened
the floodgates of litigation for plaintiffs to challenge any mandatory agency
obligation regardless of the amount of discretion afforded to the agency in
carrying out its obligations.
Additionally, today’s decision turns the burden of proving jurisdiction on
its head. It is well accepted that the burden of proving jurisdiction is properly
placed on the party invoking jurisdiction (plaintiffs). See, e.g., Steel Co. v.
Citizens for a Better Env’t, 523 U.S. 83, 104 (1998)(citation omitted). Instead,
today’s decision requires agency defendants to now prove not only that they have
acted but also that their actions have been completely successful, rather than
properly placing the burden on plaintiffs to prove an agency’s true failure to act.
The additional problem with the court’s unique view of § 706(1)’s
jurisdictional scope is that it is not amenable to reasonable judicial standards. For
example, there is no standard as to the proper time when a plaintiff may challenge
an agency’s failure to comply one hundred percent with a statutory obligation. If
an agency’s obligation is viewed as mandatory, continuous, and immediate,
nothing here prevents a plaintiff from challenging an agency’s failure to
successfully and completely comply with its statutory obligation the very next
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day. This unmanageable approach to § 706(1) jurisdiction shifts to the court what
amounts to day-to-day supervision of the level of goal achievement under any
agency’s plan.
In addition to encouraging increasing amounts of unmerited litigation, the
logical consequence of this greatly expanded jurisdiction is the creation of
ineffective and passive land use plans. If an agency can be forced into litigation
for any failure to completely achieve the goals it sets for itself in its desire to
reach or exceed its statutory obligation, the agency’s likely reaction will be to
adopt land use plans that are little more than ambiguous and general restatements
of the agency’s obligations in the first instance. Such a result would severely
constrain an agency’s ability to use its expertise and discretion to protect the
environment and would hinder the aggressive and successful management of the
WSAs that all parties desire.
In sum, I am of the view that the court today has embraced three novel
concepts: 1) the BLM’s nonimpairment obligation is a ministerial duty subject to
attack pursuant to § 706(1); 2) any failure of the BLM (no matter how slight) may
provide jurisdiction for a “failure to act” challenge pursuant to § 706(1); and 3)
the BLM’s (and other agencies’) failure to achieve each and every aspiration of
its land use plans with completely successful results opens it to potential litigation
for “failing to act.”
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IV. Conclusion
Because I view the BLM’s nonimpairment obligation pursuant to FLPMA
as nonministerial in nature and since only ministerial agency duties are properly
subject to attack pursuant to § 706(1)’s provisions, I would affirm the district
court’s decision to dismiss this claim for lack of jurisdiction. See Marathon Oil,
937 F.2d at 500. I would also affirm the district court’s decision to dismiss
Appellants’ land use plan claim because that claim is based on a non-existent
duty. The BLM simply is not required to achieve each and every goal of its
aspirational land use plans or have that failure, however slight, be challenged
pursuant to § 706(1).
Appellants are not without remedy; but, on the facts of this case, Congress
has limited the remedy to that provided by § 706(1). Thus, I do concur with the
result the majority reaches in remanding Appellants’ NEPA claim to determine
whether the BLM has truly failed “to take a ‘hard look’ at information suggesting
that ORV use has substantially increased since the NEPA studies for the disputed
areas were issued.” Maj. op. at 37.
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