Southern Utah Wilderness v. Burke

FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS November 7, 2018
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
SOUTHERN UTAH WILDERNESS
ALLIANCE; NATURAL RESOURCES
DEFENSE COUNCIL; WILDERNESS
SOCIETY; NATIONAL PARKS
CONSERVATION ASSOCIATION;
GRAND CANYON TRUST; SIERRA
CLUB; NATIONAL TRUST FOR
HISTORIC PRESERVATION; ROCKY
MOUNTAIN WILD; UTAH RIVERS
COUNCIL; GREAT OLD BROADS FOR
WILDERNESS,
Plaintiffs - Appellees,
v. No. 17-4113
MARCILYNN BURKE, in her official
capacity as Assistant Secretary for Lands
and Minerals Management of the United
States Department of the Interior; UNITED
STATES BUREAU OF LAND
MANGAGEMENT; UNITED STATES
DEPARTMENT OF INTERIOR,
Defendants - Appellees,
SAN JUAN COUNTY; KANE COUNTY,
Intervenors Defendants - Appellants,
and
STATE OF UTAH; CARBON COUNTY;
TWILIGHT RESOURCES; PAR 5
EXPLORATION, LLC; UTAH SCHOOL
AND INSTITUTIONAL TRUST LANDS
ADMINISTRATION; UINTAH
COUNTY, Utah; DUCHESNE COUNTY,
Utah; DAGGETT COUNTY, Utah;
TRAILS PRESERVATION ALLIANCE,
INC.; EMERY COUNTY; GRAND
COUNTY; XTO ENERGY,
Intervenors Defendants.
–––––––––––––––––––––––––––––––––––
SOUTHERN UTAH WILDERNESS
ALLIANCE; NATURAL RESOURCES
DEFENSE COUNCIL; WILDERNESS
SOCIETY; NATIONAL PARKS
CONSERVATION ASSOCIATION;
GRAND CANYON TRUST; SIERRA
CLUB; NATIONAL TRUST FOR
HISTORIC PRESERVATION; ROCKY
MOUNTAIN WILD; UTAH RIVERS
COUNCIL; GREAT OLD BROADS FOR
WILDERNESS,
Plaintiffs - Appellees,
v. No. 17-4115
MARCILYNN BURKE, in her official
capacity as Assistant Secretary for Lands
and Minerals Management of the United
States Department of the Interior; UNITED
STATES BUREAU OF LAND
MANAGEMENT; UNITED STATES
DEPARTMENT OF INTERIOR,
Defendants - Appellees,
SAN JUAN COUNTY; EOG
RESOURCES, INC.; KANE COUNTY;
TWILIGHT RESOURCES; PAR 5
EXPLORATION, LLC; UTAH SCHOOL
AND INSTITUTIONAL TRUST LANDS
ADMINISTRATION; XTO ENERGY;
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BADLANDS ENERGY; CRESCENT
POINT ENERGY US CORP.,
Intervenors Defendants,
STATE OF UTAH; CARBON COUNTY;
UINTAH COUNTY, Utah; DUCHESNE
COUNTY, Utah; DAGGETT COUNTY,
Utah; EMERY COUNTY; GRAND
COUNTY,
Intervenors Defendants - Appellants,
and
TRAILS PRESERVATION ALLIANCE,
INC.; BLUE RIBBON COALITION,
INC.; COLORADO OFF-HIGHWAY
VEHICLE COALITION,
Intervenors Defendants - Appellees.
_________________________________
Appeals from the United States District Court
for the District of Utah
(D.C. No. 2:12-CV-00257-DAK)
_________________________________
David Halverson (Sean D. Reyes, Utah Attorney General, Anthony L. Rampton and
Kathy A.F. Davis, on the briefs), Office of the Attorney General for the State of Utah,
Salt Lake City, Utah, appearing for Appellants State of Utah and Carbon, Daggett,
Duchesne, Emery, Grand, and Uintah Counties.
Shawn T. Welch (Ashley A. Peck, with him on the briefs), Holland & Hart LLP, Salt
Lake City, Utah, appearing for Appellants San Juan and Kane Counties.
Thekla Hansen-Young, Attorney, Environment & Natural Resources Division, United
States Department of Justice, Washington, DC (Jeffrey H. Wood, Acting Assistant
Attorney General and Eric Grant, Deputy Assistant Attorney General, United States
Department of Justice, Washington, DC; Andrew C. Mergen, Robert J. Lundman, and
Luther L. Hajek, Attorneys, Environment & Natural Resources Division, United States
Department of Justice, Washington, DC; and Veronica Larvie, Office of the Solicitor,
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United States Department of the Interior, Washington, DC, with her on the brief),
appearing for Appellees United States Bureau of Land Management.
Robin Cooley, Earthjustice, Denver, Colorado (Stephen Bloch, Southern Utah
Wilderness Alliance, Salt Lake City, Utah, with her on the brief), appearing for
Appellees Southern Utah Wilderness Alliance, Natural Resources Defense Council,
Wilderness Society, National Parks Conservation Association, Grand Canyon Trust,
Sierra Club, National Trust for Historic Preservation, Rocky Mountain Wild, Utah Rivers
Council, and Great Old Broads for Wilderness.
_________________________________
Before BRISCOE, BALDOCK, and EID, Circuit Judges.
_________________________________
BRISCOE, Circuit Judge.
_________________________________
These appeals were filed following district court approval of a settlement
agreement. The Settlement Agreement sought to end a longstanding, complex dispute
dating from 2008. In 2008, environmental groups led by the Southern Utah
Wilderness Alliance (collectively, “SUWA”) challenged six resource management
plans (“RMPs”) and associated travel management plans (“TMPs”) adopted by the
United States Bureau of Land Management (“BLM”). See App. 00032-76. Six other
parties intervened as respondents in the district court, including the State of Utah and
several counties in Utah (collectively, “Utah”). When BLM, SUWA, and multiple
intervenors entered into a settlement and sought to dismiss the case in January 2017,
Utah challenged the settlement. Utah contends, among other arguments, that the
Settlement Agreement illegally codified interpretative BLM guidance into
substantive rules, impermissibly binds the BLM to a past Administration’s policies,
infringes valid federal land rights (known as “R.S. 2477 rights”), and violates a prior
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BLM settlement. The district court disagreed, and approved the Settlement
Agreement. App. 01477-78.
Utah advances the same arguments on appeal and asks this court to reverse the
district court because the Settlement Agreement is unlawful and against the public
interest. SUWA asserts that this court lacks subject matter jurisdiction over Utah’s
claims. We agree with SUWA, and dismiss for lack of subject matter jurisdiction.
I
Central to this dispute is whether the BLM can simultaneously comply with all
of the following: the Settlement Agreement; the Federal Land Policy and
Management Act (“FLPMA”), 43 U.S.C. §§ 1701-1787; a prior BLM settlement (the
“Wilderness Settlement”); currently pending litigation (the “Wildlands Litigation”);
and the Administrative Procedure Act (“APA”). Utah contends that BLM cannot, and
therefore the Settlement Agreement is unlawful and against public policy.
We look first to the Settlement Agreement. See App. 01095-129. Section A
lays out the general provisions of the Settlement Agreement. Within Section A,
Paragraph 12 states that “[a]ny subsequent modifications, supplements, or
amendments to this Settlement Agreement must be in writing, and must be signed
and executed by or on behalf of the affected parties, or their successors in interest, as
necessary.” Id. at 01100. Section B details more specific requirements on the action
that the BLM will take under the Settlement Agreement. Paragraph 13 provides for
deadlines by which BLM will issue five new TMPs for five specific travel
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management areas. Id. at 01100-01. Paragraph 15 details the process by which BLM
will prepare the TMPs. In its entirety, Paragraph 15 reads as follows:
Applicable law and agency guidance. BLM will prepare the new
TMPs for each of the TMAs identified in paragraph 13 pursuant to
applicable statutes, regulations, BLM-Utah Instruction Memorandum
No. 2012-066 (“BLM-Utah IM 2012-066”), and the terms identified in
paragraphs 16-24 of the Settlement Agreement. In addition to BLM-
Utah IM 2012-066, relevant existing guidance includes, but is not
limited to: BLM-Utah Guidance for the Lands with Wilderness
Characteristics Resource, Instruction Memorandum No. UT 2016-027
(September 30, 2016); BLM National Environmental Policy Act
Handbook H-1790-1 (January 2008); BLM-Utah Handbook 8110,
Guidelines for Identifying Cultural Resources (2002); BLM Handbook
H-8342, Travel and Transportation (March 16, 2012); BLM Manual
1613, Areas of Critical Environmental Concern (September 29, 1988);
BLM Manual 1626, Travel and Transportation (July 14, 2011); BLM
Manual 6320, Considering Lands with Wilderness Characteristics in
BLM Land Use Planning (March 15, 2012); BLM Manual 6330,
Management of BLM Wilderness Study Areas (July 13, 2012), 6340,
Management of BLM Wilderness (July 13, 2012); and BLM Manual
8110, Identifying and Evaluating Cultural Resources on Public Lands
(December 3, 2004). Nothing in the Settlement Agreement makes
binding the aforementioned guidance. Nothing in this Settlement
Agreement shall be construed as limiting BLM’s discretion to
promulgate new manuals, handbooks, or instruction memoranda
consistent with relevant law and regulations. The parties may agree to
modify the Settlement Agreement to reflect updated regulations or
guidance, consistent with paragraph 12.
App. 01101-1102. Utah contends that Paragraph 15 elevates certain agency guidance
to the level of substantive rules in violation of the APA, and also provides SUWA
with veto power over future BLM guidance and substantive rulemaking that could
apply to the five specific travel management areas listed in Paragraph 13.
Utah also contends that the BLM cannot comply with both the Settlement
Agreement in this case and a prior settlement agreement reached in a previous
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litigation, the aforementioned Wilderness Settlement. The Wilderness Settlement
resulted from different land-use litigation between several of the same parties to this
litigation that concerned wilderness study areas (“WSAs”) in Utah. See Utah v.
Norton, 2:96-CV-0870, 2006 WL 2711798 (D. Utah Sept. 20, 2006), aff’d sub nom.
Utah v. U.S. Dep’t of Interior, 535 F.3d 1184 (10th Cir. 2008). In the Wilderness
Settlement, the BLM conceded that its authority to establish new wilderness study
areas expired no later than October 21, 1993. App. 01426. The BLM further
stipulated in the Wilderness Settlement that it would not utilize its general land use
planning authority under FLPMA § 202 to establish, manage, or otherwise treat non-
WSA public lands as wilderness or as WSAs. Id. at 01427.
Utah asserts that the Settlement Agreement permits the BLM to use its land
use planning authority to circumvent the Wilderness Settlement.1 Utah points to
Paragraph 17 to support its theory. For example, Paragraph 17.e states:
Travel network minimization alternatives. BLM will explain in the
NEPA document for each TMP how each proposed alternative route
network will “minimize damage” to “resources of the public lands,” 43
C.F.R. § 8342.1(a), including identified cultural resources and public
lands with BLM-inventoried wilderness characteristics. For purposes of
minimizing damage to public lands with BLM-inventoried wilderness
characteristics, BLM will consider the potential damage to any
constituent element of wilderness characteristics, including naturalness,
outstanding opportunities for solitude, and outstanding opportunities for
primitive and unconfined recreation, for each alternative route network.
BLM will consider in the NEPA document at least one proposed
alternative route network that would not designate for ORV use any
1
In separate on-going litigation known as the Wildlands Litigation, Utah is currently
advancing several claims that the BLM is impermissibly managing non-WSA lands
as wilderness in defiance of the Wilderness Settlement. See State of Utah v. Zinke,
2:10-cv-0970-DB-BCW (D. Utah).
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route where BLM has determined that such use may “damage,” 43
C.F.R. § 8342.1(a), BLM-inventoried wilderness characteristics;
however, BLM need not consider closing such a route to ORV use to the
extent the use is authorized by an existing right-of-way or other BLM
authorization or by law, including State of Utah v. Andrus, 486 F. Supp.
995 (D. Utah 1979), which will be documented in the final route report.
App. 01106. Utah also contends that Paragraph 17.e disregards its R.S. 2477 rights,
as does Paragraph 17.f. Paragraph 17.f, in full, states:
Alternative route networks within WSAs and Natural Areas. For
routes or portions thereof that are located on public land within
wilderness study areas (“WSAs”) and Natural Areas, BLM will analyze
in the NEPA document at least one alternative route network that would
enhance BLM-inventoried wilderness characteristics by designating the
routes or the relevant portions thereof as closed to ORV use, unless
ORV use of the route is authorized by an existing right-of-way or other
BLM authorization or by law. To the extent ORV use of a route is
authorized, this alternative route network will include measures limiting
ORV use to enhance BLM-inventoried wilderness characteristics to the
greatest extent possible consistent with applicable laws, regulations, or
existing right-of-way authorizations.
App. 01106.
II
We begin our analysis by addressing whether we have jurisdiction over this
dispute. SUWA and BLM assert this court lacks subject matter jurisdiction because
Utah has not established Article III standing and its claims are not ripe for judicial
review. We need only focus on ripeness to resolve the jurisdictional question. See
Utah, 535 F.3d at 1191.
“[T]he ripeness doctrine has two underlying rationales: preventing courts from
becoming entwined in ‘abstract disagreements over administrative policies,’ and
‘protect[ing] the agencies from judicial interference until an administrative decision
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has been formalized and its effects felt in a concrete way by the challenging parties.’”
Id. at 1191-92 (quoting Abbott Labs. v. Gardner, 387 U.S. 136, 148-49 (1967)).
Under this analysis, we consider three factors:
1) whether delayed review would cause hardship to the plaintiffs; 2)
whether judicial intervention would inappropriately interfere with
further administrative action; and 3) whether the courts would benefit
from further factual development of the issues presented.
Sierra Club v. U.S. Dep’t of Energy, 287 F.3d 1256, 1262-63 (10th Cir. 2002) (citing
Ohio Forestry Ass’n, Inc. v. Sierra Club, 523 U.S. 726, 733 (1998)). A common
thread running through all three factors points to our concluding that Utah’s appeal is
unripe: at this point, no one knows how BLM will implement the Settlement
Agreement.
Many of Utah’s concerns are anticipatory, or are not within the purview of the
Settlement Agreement. For example, there are no final travel management plans.
Additionally, BLM has not rescinded any of the guidance referenced in the
Settlement Agreement, and therefore SUWA has not had the opportunity to exercise
its alleged veto power provided by the Settlement Agreement. Further, the Settlement
Agreement has no effect on R.S. 2477 rights,2 App. 1107, and nothing in the
Settlement Agreement requires BLM to protect wilderness characteristics when
developing a TMP. Instead, the Settlement Agreement lays out criteria for BLM to
consider as it develops TMPs in a complex regulatory scheme. BLM may ultimately
2
Utah’s complaints regarding R.S. 2477 rights appear to stem largely from the
unique nature of these rights rather than from the Settlement Agreement itself. See S.
Utah Wilderness All. v. Bureau of Land Mgmt., 425 F.3d 735, 740-42 (10th Cir.
2005) (explaining the interplay between R.S. 2477 and FLPMA).
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develop a TMP that creates de facto wilderness, or may impermissibly consider
guidance that has been rescinded or ignore future substantive rules. But BLM might
not. The Settlement Agreement neither requires BLM to create de facto wilderness,
nor mandates that BLM reject future agency action taken by the present
Administration. Accordingly, this court can more confidently address the substantive
legal arguments raised by Utah when BLM finalizes the TMPs subject to the
Settlement Agreement and ultimately reveals the Settlement Agreement’s “true
effect[.]” Utah, 535 F.3d at 1195.
As we have stated previously when examining a challenge to a prior settlement
agreement involving BLM, SUWA, and Utah:
It is true that we could study the language of the settlement and hazard a
guess as to which of the parties has the better view of the settlement’s
eventual impact. But the settlement is manifestly vague regarding how
BLM can or should make specific land management decisions, and the
ripeness doctrine exists precisely for the purpose of preventing
unnecessary adjudication under such circumstances. We could therefore
resolve the issues in this case more confidently with the benefit of
insight into how BLM actually implements the settlement in practice.
Id. We agree that this approach and guidance apply equally here.
III
The appeals are DISMISSED as unripe for adjudication.
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