Southern Utah Wilderness Alliance, a Utah Non-Profit Corporation the Wilderness Society, a National Non-Profit Corporation Sierra Club, a California Non-Profit Corporation 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 Nonprofit Corporation v. Gale Norton, Secretary, United States Department of the Interior Nina Rose Hatfield, Acting Director, Bureau of Land Management and Bureau of Land Management, 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
Docket: 01-4009
Court: Court of Appeals for the Tenth Circuit; August 29, 2002; Federal Appellate Court
Southern Utah Wilderness Alliance (SUWA) and several organizations filed a lawsuit against the Bureau of Land Management (BLM), claiming violations of the Federal Land Policy and Management Act (FLPMA) and the National Environmental Policy Act (NEPA) due to inadequate management of off-road vehicle (ORV) use in areas designated as Wilderness Study Areas (WSAs). SUWA sought to compel the BLM to fulfill mandatory duties under these acts through the Administrative Procedure Act (APA). The district court dismissed the claims for lack of subject matter jurisdiction, ruling that an agency cannot be compelled under APA § 706(1) if it is taking some action towards fulfilling its duties. It further determined that the BLM could only be compelled to follow a land use plan if it initiated a project that conflicted with the plan. Additionally, the court found no abuse of discretion in the BLM's decision not to prepare a supplemental Environmental Impact Statement (SEIS) regarding increased ORV usage.
Jurisdiction was exercised under 28 U.S.C. § 1291, resulting in a reversal and remand of the district court's dismissal of the case for lack of subject matter jurisdiction. The remand is limited to the issue of whether the Bureau of Land Management (BLM) had a duty to consider a Supplemental Environmental Impact Statement (SEIS) based on new circumstances, with the merits of the claim to be addressed on remand.
Procedurally, SUWA filed suit against the BLM on October 27, 1999, alleging failure to prevent environmental harm from Off-Road Vehicle (ORV) use. A group of ORV users intervened in the lawsuit, and SUWA later filed a second amended complaint with ten causes of action, seeking to compel agency action under § 706(1) of the Administrative Procedure Act (APA). Relevant claims included the BLM's noncompliance with the Federal Land Policy and Management Act (FLPMA), failure to implement land management plans, and insufficient consideration of NEPA regarding ORV use. SUWA also requested a preliminary injunction to protect specific areas from ORV damage, which the district court denied.
The district court dismissed SUWA's claims under Rule 12(b)(1) for lack of subject matter jurisdiction and certified the dismissal as a final judgment, prompting the appeal. The standard of review for a dismissal under Rule 12(b)(1) is de novo, with factual determinations reviewed for clear error.
On appeal, SUWA argued that the district court erred in concluding that § 706(1) of the APA did not provide subject matter jurisdiction for its FLPMA-based claims. SUWA contended that the FLPMA imposes a mandatory duty on the BLM to manage Wilderness Study Areas (WSAs) to prevent impairment of their wilderness values, which ongoing ORV use allegedly violates. The appellate court agreed, concluding that the BLM has a non-discretionary duty under FLPMA to manage WSAs in a manner that preserves their wilderness values and identified that SUWA presented a viable claim regarding the BLM's management. Consequently, the appellate court reversed the district court's dismissal regarding SUWA's nonimpairment claim for lack of subject matter jurisdiction.
The FLPMA, enacted in 1976, established a comprehensive framework for the BLM's management of public lands, requiring the Secretary of the Interior to maintain an inventory of these lands and their resources.
The Secretary is tasked with identifying "roadless areas of five thousand acres or more and roadless islands of the public lands" that exhibit "wilderness characteristics," as outlined in 43 U.S.C. § 1782(a). This identification process consists of two main steps: an initial inventory to determine wilderness inventory units and an intensive inventory to assess whether these units possess wilderness characteristics. Areas deemed to have such characteristics are designated as Wilderness Study Areas (WSAs).
The Federal Land Policy and Management Act (FLPMA) mandates that within fifteen years of its enactment, the Secretary must review the WSAs and recommend to the President which should be preserved as wilderness. The President is then required to submit recommendations to Congress within two years of receiving the Secretary's report. However, only Congress has the authority to officially designate land for wilderness preservation. Until such designation or rejection occurs, the BLM must manage these WSAs to maintain their suitability for wilderness classification.
The Administrative Procedure Act (APA) allows federal courts to compel agency action that has been unlawfully withheld or unreasonably delayed under 5 U.S.C. § 706(1). Courts can only compel action regarding mandatory duties and cannot grant relief if the agency has discretion over the action. Compelling agency action does not guarantee a specific outcome; agencies can be required to make decisions while retaining discretion in the final determination. For example, the court in Mt. Emmons Mining Co. v. Babbitt ruled that the Secretary of the Interior must adhere to processing requirements for a mining patent application, despite having discretion over the ultimate approval.
SUWA asserts that the BLM is obligated to comply with the nonimpairment mandate of the FLPMA, despite the BLM's discretion in deciding how to address activities causing impairment. In contrast, the BLM and the Recreationists argue that ORV use on the lands in question is not subject to review under § 706(1) and does not constitute impairment. They contend that the IMP provides the BLM with discretion regarding both the actions it may take and whether it must act at all, thereby limiting review of its inaction under § 706(1). Additionally, the BLM maintains that § 706(1) applies only when final, legally binding actions have been unlawfully withheld or delayed. Furthermore, they argue that SUWA's claim effectively challenges the adequacy of the BLM's efforts to prevent impairment from ORV use rather than alleging a failure to act.
The BLM's position emphasizes its considerable discretion in determining impairment and appropriate actions, which it believes justifies the district court's dismissal of SUWA's claims due to lack of subject matter jurisdiction. However, the court acknowledges that both parties agree the BLM has a mandatory duty under the FLPMA to manage WSAs without impairing their wilderness values. The district court recognized that SUWA presented substantial evidence of impairment due to ORV activity. The BLM's interpretation of the nonimpairment mandate, particularly through the Interim Management Policy (IMP), is afforded considerable deference, as long as it does not conflict with constitutional or federal statutes. While the BLM has significant discretion in implementing the nonimpairment mandate, this discretion may limit the court's ability to compel specific preventive actions against impairment, a point that SUWA concedes.
The BLM's arguments primarily address the merits of the case and potential remedies rather than the federal courts’ subject matter jurisdiction under the Administrative Procedure Act (APA) to enforce compliance with the Federal Land Policy and Management Act (FLPMA) nonimpairment mandate. The BLM incorrectly conflates judicial deference to its interpretation of the nonimpairment mandate with the notion that the obligation itself is discretionary. The court will not decide whether off-road vehicle (ORV) use impairs wilderness values at this stage; that determination will be made by the district court upon remand, which must analyze evidence while deferring to the BLM's management plan (IMP). However, the BLM retains a clear, nondiscretionary duty to manage lands to prevent impairment under 43 U.S.C. § 1782(c), as mandated by § 706(1). If the district court finds that the BLM's management of the WSAs fails to comply with the FLPMA, it must compel the agency to fulfill its legal responsibilities.
On appeal, the BLM contends that § 706(1) applies only to final agency actions that are unlawfully withheld or unreasonably delayed, implying that federal courts lack jurisdiction over non-final, day-to-day management decisions, such as those regarding ORV use. The court finds this argument unconvincing, explaining that the APA categorizes inaction as "action," and a failure to meet mandatory obligations, especially when unreasonably delayed or past a statutory deadline, constitutes final agency action. Thus, the BLM’s inaction under these circumstances can trigger judicial review as if it had issued a final decision not to fulfill its statutory duties.
The Bureau of Land Management's (BLM) alleged noncompliance with the Federal Land Policy and Management Act's (FLPMA) nonimpairment mandate constitutes a final action under § 704, making it subject to compulsion under § 706(1). An agency's failure to fulfill its mandatory duties by a set deadline or within a reasonable timeframe can be classified as final agency action, regardless of any non-final actions it may have undertaken. The BLM's argument that it cannot be compelled to act because it has taken partial measures to mitigate off-road vehicle (ORV) impairment is rejected. While the BLM has implemented some actions, such as road closures and signage, these efforts do not exempt it from judicial review under § 706(1). Accepting the BLM's stance would imply that any minimal efforts to comply would shield the agency from being compelled to meet its legal obligations. The court emphasizes that the existence of some actions does not negate its authority to assess whether the BLM has satisfied its statutory duties. The BLM's reliance on Ninth Circuit precedent, particularly the Ecology Center case, is deemed unpersuasive, as that decision focused on encouraging agency action rather than determining compliance with nondiscretionary duties. Unlike the circumstances in Ecology Center, the BLM's nonimpairment obligation is a distinct and significant requirement that stands independently from any future agency actions.
Ecology Center referenced the D.C. Circuit's decision in Public Citizen v. Nuclear Regulatory Commission, which cautioned against interpreting any agency action as a failure to act under § 706(1) if the agency has taken some action. In Public Citizen, the Nuclear Regulatory Commission issued nonbinding regulations for training nuclear power plant personnel, despite a federal statute requiring binding regulations. The appellant sought to compel the agency to act and failed to meet the 180-day statute of limitations for challenging agency actions, as the issuance of nonbinding regulations was deemed sufficient action to trigger this limitation. The D.C. Circuit ruled that these regulations were a formal agency product and indicated finality, thus starting the limitations period.
In contrast, the current case involves allegations that the Bureau of Land Management (BLM) is continuously failing to prevent impairment of Wilderness Study Areas (WSAs). This duty is distinct, and the BLM has not claimed any final agency action sufficient to trigger a statute of limitations that would bar the claims. The argument that any agency steps toward fulfilling a legal obligation insulates it from § 706(1) review is rejected. Additionally, the Ninth Circuit's decision in Nevada v. Watkins, which determined that preliminary guidelines for evaluating a nuclear waste disposal site were not final agency action, is not applicable here, as there is no similar clear congressional directive. Thus, the BLM's actions do not exempt it from § 706(1) scrutiny.
The BLM has a mandatory duty to prevent the impairment of Wilderness Study Areas (WSAs) under the FLPMA, as highlighted by evidence from SUWA suggesting that ongoing off-road vehicle (ORV) use may be impairing these areas' wilderness values. The district court's initial conclusion that it lacked subject matter jurisdiction over SUWA's claims is reversed, and the case is remanded for the court to determine whether the BLM has violated the FLPMA's nonimpairment mandate, while deferring to the IMP's definition of impairment.
Additionally, SUWA claims that the BLM failed to manage areas in accordance with their land use plans (LUPs). The district court dismissed these claims, arguing that compliance with forest management plans is limited to affirmative actions taken after the establishment of the Resource Management Plan (RMP), and that SUWA's allegations do not pertain to specific actions. The BLM contends that LUPs do not impose mandatory duties due to their non-congressional nature and the possibility of competing priorities. However, the court finds these arguments unpersuasive, noting that the FLPMA mandates adherence to LUPs.
Specifically, the LUPs for the Factory Butte and San Rafael areas require special monitoring for ORV use, with the Factory Butte plan stating that the area would be monitored and potentially closed if warranted. The BLM acknowledged noncompliance with this pledge from 1990 to 2000, failing to maintain the required monitoring files. Furthermore, the San Rafael LUP called for the designation of ORV trails following the completion of an ORV implementation plan, which was only partially executed after its creation in 1997.
The Bureau of Land Management (BLM) is obligated to execute activities outlined in the Factory Butte and San Rafael Land Use Plans (LUPs), as these plans establish a mandatory duty under the Federal Land Policy and Management Act (FLPMA). The FLPMA requires that the Secretary manage public lands in accordance with developed land use plans, supported by legal precedent affirming BLM's duty to adhere to these plans. While LUPs are intended to be flexible and responsive to changing conditions, this does not exempt the BLM from fulfilling existing obligations. The agency must still comply with the requirements of the LUPs and cannot disregard them, even when it has the authority to amend them under environmental statutes like NEPA. Additionally, the BLM's assertion that compliance with LUP mandates is only necessary during future site-specific projects is unfounded; LUP provisions may impose immediate duties and restrict ongoing conduct regardless of future actions. Thus, claims of noncompliance with LUP duties grant courts the authority to review whether such failures warrant judicial relief.
The provisions in question have immediate applicability to the Bureau of Land Management (BLM), as mandated by the Federal Land Policy and Management Act (FLPMA), which requires the Secretary to manage public lands in accordance with land use plans (LUPs). The BLM is obligated to implement actions promised within these LUPs, such as monitoring off-road vehicle (ORV) use, and cannot defer such obligations until a future site-specific action occurs. Regulations indicate that the BLM must adhere to the terms of approved resource-related plans, and inaction on the BLM’s part can be considered a violation of LUPs, equating to non-compliance with its obligations.
The court may compel the BLM to fulfill its duties under LUPs that have been unreasonably delayed or unlawfully withheld. The district court's dismissal of the Southern Utah Wilderness Alliance (SUWA)'s claims based on the belief that the BLM's obligations arise only from future actions was found to be erroneous. The court clarified that partial compliance does not exempt the agency from being compelled to act under the Administrative Procedure Act (APA), specifically under 706(1), and that the merits of the case should consider the LUP’s provisions for adapting to changing conditions.
Ultimately, the court concluded that the district court incorrectly dismissed SUWA's claims regarding the BLM's mandatory duties to comply with specific ORV monitoring and implementation provisions outlined in the Factory Butte and San Rafael LUPs. The BLM's argument that LUPs can only impose duties in the context of future actions was rejected, as was the notion that a decade of delayed compliance obstructs judicial review under the APA. Additionally, the appeal addresses the BLM's alleged failure to fully assess the environmental impacts of increased ORV use in accordance with the National Environmental Policy Act (NEPA).
The Bureau of Land Management (BLM) is urged to thoroughly analyze recent data regarding off-road vehicle (ORV) activity to determine if a Supplemental Environmental Impact Statement (SEIS) or supplemental environmental assessments are necessary for specific areas, including the San Rafael Swell, Parunuweap, Behind the Rocks, and Indian Creek. The Southern Utah Wilderness Alliance (SUWA) contends that the BLM's existing National Environmental Policy Act (NEPA) assessments are outdated and insufficiently consider the recent rise in ORV use. In contrast, the BLM argues against being compelled to conduct this analysis, citing plans for future NEPA assessments of current ORV impacts, contingent on resource availability. The BLM also claims that SUWA did not adequately present its argument in the district court, instead focusing on the BLM's alleged failure to produce supplemental statements. Notably, the BLM does not dispute the need for a thorough review of ORV impacts and acknowledges the necessity to revise its land management plans nationwide. The district court initially recognized SUWA's request for a detailed examination of ORV data but ultimately dismissed the claim, stating the BLM could not be compelled to prepare supplemental analyses based on the existing record. The appellate court finds the district court's interpretation flawed and the BLM's rationale unconvincing, leading to a reversal of the lower court's decision. Under NEPA, federal actions significantly affecting the environment necessitate an Environmental Impact Statement (EIS), although an Environmental Assessment (EA) may precede it. If the EA indicates no significant environmental impact, a Finding of No Significant Impact (FONSI) can be issued without a full EIS. NEPA aims to ensure that relevant environmental information is gathered and made public prior to decision-making. Agencies must prepare an SEIS or supplemental EA if there are substantial changes to proposed actions or if new significant information arises that impacts environmental concerns.
The excerpt addresses legal standards regarding an agency's obligation to supplement environmental reviews under the National Environmental Policy Act (NEPA). It emphasizes that agencies are not required to update Environmental Impact Statements (EIS) or Environmental Assessments (EA) with every new piece of information. Instead, the necessity for supplementary analysis arises when new information presents significant environmental concerns that warrant a formal reevaluation. Courts apply a two-part test to evaluate an agency's decision not to prepare a supplemental analysis.
First, they assess whether the agency conducted a "hard look" at the new information, involving expert opinions and scientific scrutiny, and responded to legitimate concerns. Secondly, if the agency is deemed to have taken the necessary hard look, the court reviews the decision under the arbitrary and capricious standard of the Administrative Procedure Act (APA).
The document notes that SUWA correctly raised a "hard look" claim in district court, arguing that the Bureau of Land Management (BLM) failed to adequately review new information as required by NEPA. SUWA clarified that its challenge focused on the BLM's alleged failure to conduct a hard look, not on whether the agency acted arbitrarily in deciding against further environmental review. The BLM acknowledged this assertion in its response.
SUWA successfully asserted its claim that the Bureau of Land Management (BLM) must conduct a thorough review of new information indicating significant environmental concerns related to its management of certain lands, as mandated by NEPA. The district court made an error by ruling that no supplemental Environmental Impact Statement (EIS) or Environmental Assessment (EA) could be required based solely on the evidence presented. The BLM's argument that ongoing NEPA analysis negates the need for immediate action is flawed, as it does not address current inaction. Furthermore, financial constraints cited by the BLM do not exempt it from its legal obligations under NEPA; lack of resources cannot justify failure to perform mandatory duties. The BLM's vague assurances regarding future NEPA reviews raise doubts about their likelihood, especially given its acknowledgment of limited resources. Consequently, the district court's conclusion that it lacked jurisdiction to compel the BLM to take a hard look at SUWA's evidence was incorrect.
The district court incorrectly concluded that the Bureau of Land Management (BLM) is only obligated to adhere to Land Use Plans (LUPs) when engaging in "affirmative, future actions" that contradict LUP mandates. Additionally, the court misunderstood the nature of SUWA's National Environmental Policy Act (NEPA) claim. The BLM's alternative argument for upholding the district court's ruling, which suggested that action unlawfully withheld could only be compelled under 706(1) if it constituted final agency action, was deemed unconvincing. Consequently, the appellate court reversed the district court's decision and remanded the case for further proceedings.
The notice of appeal was filed by SUWA before the district court certified the dismissed claims under Rule 54(b). Following a show cause order from the appellate court, the district court certified the claims on February 9, 2001, within the required timeframe, allowing the appellate court to assert jurisdiction over the appeal.
The Federal Land Policy and Management Act (FLPMA) incorporates the Wilderness Act's definition of "wilderness," which includes criteria such as being undeveloped, offering opportunities for solitude, and being a minimum of 5,000 acres or of sufficient size for preservation. In 1980, the BLM designated 2.5 million acres of federal land in Utah as Wilderness Study Areas (WSAs), including four areas relevant to this case: Moquith Mountain, Parunuweap Canyon, Sid's Mountain, and Behind the Rocks. While the FLPMA does not define "preservation," "wilderness," or "impair," the BLM has provided its interpretation through the Interim Management Policy for Lands Under Wilderness Review (IMP), which is given judicial deference due to the ambiguity in FLPMA's language.
In instances where the Federal Lands Policy and Management Act (FLPMA) is ambiguous, deference should be given to the agency's interpretation. The Interim Management Policy (IMP) clarifies that managing lands under the nonimpairment standard does not equate to treating them as designated wilderness. Instead, it requires the Bureau of Land Management (BLM) to ensure that Wilderness Study Areas (WSAs) meet wilderness criteria at the time Congress decides on their status. The BLM must protect existing wilderness values in WSAs from being degraded to a point that limits Congress's authority to designate them as wilderness or to release them for other uses. The IMP restricts the BLM to approving only "non-impairing" activities within WSAs, defined as temporary uses that do not cause surface disturbance or involve permanent structures. Surface disturbance is characterized as any new disruption necessitating reclamation. Additionally, after any activity concludes, the wilderness values must remain intact to not hinder Congress's capability to preserve the area as wilderness.
The district court concluded that the Southern Utah Wilderness Alliance (SUWA) case claimed unreasonable delay in BLM's actions due to the lack of specific deadlines for Off-Road Vehicle (ORV) management. However, the appellate view is that SUWA's claims relate to actions unlawfully withheld. According to the precedent set in Forest Guardians v. Babbitt, if an agency lacks a concrete deadline, courts can only compel action that has been unreasonably delayed. The FLPMA imposes a continuous obligation on the BLM to manage WSAs to maintain their wilderness values from the moment of designation until Congress decides on permanent wilderness status. This obligation creates an implicit deadline aligned with Congress's decision-making timeframe, establishing that Congress indeed set a deadline for the BLM's responsibility to prevent impairment.
Mandamus relief and relief under the Administrative Procedure Act (APA) are closely related, but the APA's availability precludes mandamus requests. The Tenth Circuit has established that mandamus is not available when the APA offers a remedy for agency action. While mandamus relief requires no alternative remedies, the APA mandates that courts compel agency action when it has been unlawfully withheld. The distinction lies in the court's discretion: a writ of mandamus is subject to judicial discretion, while the APA compels action once unlawful withholding is established.
The excerpt also highlights specific regulations regarding Off-Road Vehicle (ORV) use under the IMP, noting that cross-country vehicle use is classified as "impairing" activity due to its environmental impact. Restrictions on vehicle use are outlined, permitting exceptions in emergencies or designated areas. Section 704 of the APA delineates the scope of federal court review over agency actions, emphasizing that final agency actions without adequate alternative remedies are subject to judicial review. Courts recognize that unlawfully withheld agency actions are treated as final under Section 704, and agencies must fulfill nondiscretionary legal duties.
Courts have identified 5 U.S.C. § 706(1) as a potential exception to the finality requirement of the Administrative Procedure Act (APA), but this characterization may be misleading. While § 704 of the APA limits judicial review to final agency actions, § 706(1) outlines the scope of judicial review for those actions. The Bureau of Land Management's (BLM) argument has several shortcomings. It conflicts with precedents that allow courts to compel agencies to make decisions or fulfill duties, even when the agencies have discretion in execution. Additionally, the BLM's stance risks creating a situation where it could evade mandatory duties through non-final actions. Evidence suggests that many actions the BLM could take regarding off-road vehicle (ORV) use would qualify as final agency actions, as recognized by all parties involved. For instance, the BLM has taken concrete steps such as closing ORV routes, imposing fines, and issuing new regulations to manage ORV use, indicating these actions are final. Specific examples include the closure of 19 ORV routes in the Sids Mountain WSA and ongoing management efforts in the Moquith Mountain WSA and Parunuweap WSA, where the BLM has implemented educational programs and signage to restrict ORV use. Over the decade from 1990 to 2000, there were consistent restrictions on ORV travel in the Behind the Rocks WSA, along with monitoring of ORV activities.
Federal law prohibits logging in national forests, but the Bureau of Land Management (BLM) only restricts logging on half of a national forest, which raises questions about its compliance with legal obligations. The BLM argues that its partial success in preventing logging absolves it from being required to prevent logging in the unprotected area. However, a Fifth Circuit case, Sierra Club v. Peterson, does not support the BLM’s stance, as it indicated that jurisdiction over monitoring claims does not hinge on partial monitoring efforts.
The agency's attempts at compliance are relevant in legal proceedings, as illustrated in Forest Guardians, where it was determined that budget constraints do not excuse the Secretary of the Interior's failure to fulfill nondiscretionary duties, but may influence the remedy for violations. The BLM cites Ohio Forestry Ass’n, Inc. v. Sierra Club to claim that courts cannot compel compliance with Land Use Plans (LUPs) since they are subject to ongoing review. However, this interpretation is challenged, as the Supreme Court clarified that logging cannot occur without adherence to specific plans and that agency decisions that ignore regulations are reviewable under the Administrative Procedure Act (APA).
Additionally, the BLM's failure to implement promised monitoring programs contradicts regulations requiring LUPs to define monitoring intervals and standards, placing responsibility for these evaluations on forest managers.
On appeal, there are indications that the Southern Utah Wilderness Alliance (SUWA) may have moot claims regarding Land Use Plans (LUP) in the Factory Butte area, as the Bureau of Land Management (BLM) implemented the LUP requirements post-litigate. The district court is advised to evaluate the mootness of SUWA's claims, with caution advised against declaring claims moot if the allegedly wrongful conduct ceases after litigation begins, unless it is clear that such conduct will not likely recur, referencing relevant Supreme Court cases.
SUWA challenges several environmental assessments (EAs) and an Environmental Impact Statement (EIS) from various years, including a 1990 EA for the Henry Mountains, a 1991 EIS for the San Rafael Swell, and others. The standard for preparing a supplemental EA is equated to that for a Supplemental EIS.
Judge McKay concurs with the majority on the NEPA claim but dissents on other matters, arguing that the court incorrectly interpreted the BLM's nonimpairment obligation. He asserts that the majority's approach to 706(1) jurisdiction lacks precedent and that the standard for granting injunctive relief under 706(1) aligns with mandamus relief, requiring plaintiffs to demonstrate clear agency failures in performing nondiscretionary duties. While agreeing on the mandatory nature of BLM's Federal Land Policy and Management Act (FLPMA) obligations, he contends that these obligations are not ministerial in nature.
The majority acknowledges that jurisdiction under § 706(1) should align with established mandamus jurisprudence and recognizes the Bureau of Land Management's (BLM) nonimpairment obligation as generally stated, affording the BLM significant discretion in fulfilling this duty. Despite this acknowledgment, the majority asserts that appellants can contest the BLM's alleged failure to meet its nonimpairment obligation under § 706(1). This interpretation implies that any mandatory duty of a U.S. agency could be challenged under this jurisdictional provision, regardless of the level of discretion involved.
The dissent argues that this approach oversimplifies the categorization of agency obligations, conflating programmatic duties, such as the BLM's nonimpairment duty, with discrete tasks that can be challenged under § 706(1). The dissent underscores that statutory obligations of agencies are inherently mandatory but should be viewed on a continuum based on the nature of the obligations. It emphasizes that the Administrative Procedure Act (APA) allows for review only in cases of specific agency actions or inactions, rather than broad programmatic challenges, as established by the Supreme Court in *Lujan v. National Wildlife Federation*.
The dissent uses the Immigration and Naturalization Service (INS) as an example, arguing that if the majority's interpretation were correct, the INS's failure to enforce immigration laws could similarly be challenged under § 706(1), which would lead to an improper expansion of judicial review of agency actions. Ultimately, the dissent contends that § 706(1) should not serve as a basis for claims that question an agency's overall administrative methods or day-to-day operations.
Individuals dissatisfied with the Immigration and Naturalization Service's (INS) enforcement of laws against illegal immigration may file lawsuits under 5 U.S.C. § 706(1) for the agency’s failure to act. Despite previous case law, the majority opinion allows for a writ of mandamus to compel the INS to enforce immigration laws. This expanded interpretation of § 706(1) jurisdiction suggests that plaintiffs can seek remedies for mandatory agency obligations, which are typically ministerial in nature. Historical cases illustrate that mandamus has been granted to ensure rights and compel actions by courts and agencies. However, the majority opinion risks transforming § 706(1) into a tool for broader challenges against routine agency operations, which the Supreme Court has deemed inappropriate. The potential for judicial oversight over ongoing agency management decisions raises concerns about the practicality and implications of such remedies, indicating that even complete bans on certain actions might not prevent future impairments. The opinion reflects an unwarranted expansion of both the jurisdictional threshold and the definition of agency failures to act under the Administrative Procedure Act.
The interpretation of the failure to act under Section 706(1) encompasses not only true inaction by agencies but also actions that do not fully meet their obligations. This interpretation incorrectly merges the ideas of action and achievement. While it is acknowledged that the Bureau of Land Management (BLM) must adhere to its nonimpairment mandate in managing Wilderness Study Areas (WSAs), the core issue is whether Appellants can utilize Section 706(1) to contest the BLM's incomplete compliance as a failure to act. The case facts do not support this notion, as almost any complaint about agency actions could be framed as inaction. Section 706(1) jurisdiction is applicable only when there is a true failure to act, as established in case law, meaning that complaints about agency action's sufficiency cannot be categorized as failure to act claims.
Appellants argue that the BLM inadequately manages off-road vehicle use on federal lands designated as WSAs, but their claims reflect a perceived insufficiency in agency action rather than a genuine failure to act. Thus, Section 706(1) is an inappropriate jurisdictional basis for these challenges. The majority's view that agency attempts at compliance are irrelevant to Section 706(1) is misaligned; these attempts are crucial in determining jurisdiction. True failure to act requires a clear demonstration of an agency's lack of action that is reasonably aimed at fulfilling its responsibilities. It is unrealistic to expect complete success from good faith agency efforts, and labeling such shortcomings as failures to act misrepresents the standard. Additionally, the court's handling of the land use plan claim reflects a misunderstanding of Section 706(1) jurisdiction and imposes a new obligation on the BLM that did not previously exist, which is to manage lands according to land use plans.
43 U.S.C. § 1732(a) and 43 C.F.R. § 1610.5-3(a) mandate that all future resource management actions must conform to approved plans. The court asserts that the Bureau of Land Management (BLM) must adhere to every aspect of its land use plans, warning that failure to do so undermines public participation and the National Environmental Policy Act (NEPA) processes. However, the court contends that BLM's land use plans are primarily aspirational, allowing the BLM to undertake projects not strictly aligned with every specific goal of the plans without facing litigation under 706(1). Challenges against BLM's actions should focus on final agency decisions rather than alleged failures to meet aspirational objectives.
Successful legal challenges have typically involved final decisions inconsistent with existing plans. The court emphasizes that resource management planning is intended to be dynamic and flexible, accommodating the need for changes in approach when objectives are not met. It stresses that allowing challenges based on unmet aspirational goals would hinder the agency's operations and is inconsistent with Supreme Court precedent, which discourages programmatic attacks on agencies. The district court's conclusion supports the notion that the BLM's obligations pertain only to affirmative projects post-plan implementation, not to all planning activities outlined in the plan. The regulations allow for legal challenges against specific agency decisions or amendments that violate provisions of the approved plans.
Individuals adversely affected by proposed actions related to resource management plans can appeal under 43 CFR 4.400. The regulations do not grant individuals the right to challenge an agency's failure to meet every goal outlined in land use plans. There is no legal precedent supporting the idea that such failures can be contested under 706(1), and the majority opinion lacks citation for this principle. The court's decision allows claims based on an agency obligation that previously did not exist, expanding 706(1) jurisdiction beyond established norms. This expansion could hinder environmental protection efforts rather than facilitate them, as it diverts resources from agencies to address increased litigation. The ruling shifts the burden of proving jurisdiction onto agency defendants, requiring them to demonstrate not only their actions but also their complete success, contrary to the established practice of placing this burden on plaintiffs. Additionally, this new interpretation lacks clear standards for when challenges to agency compliance can be made, potentially allowing for immediate and continuous scrutiny of agency performance. This approach may result in ineffective land use plans and foster excessive litigation.
An agency's potential exposure to litigation for failing to meet self-imposed goals could lead to vague land use plans that undermine its ability to effectively protect the environment and manage Wilderness Study Areas (WSAs). The court's recognition of three significant concepts is noted: (1) the Bureau of Land Management's (BLM) nonimpairment obligation is a ministerial duty subject to judicial review under Section 706(1); (2) any minor failure by the BLM may warrant a "failure to act" challenge under the same section; and (3) BLM's inability to fulfill all goals in its land use plans may result in legal challenges for "failing to act." The author argues that the BLM's nonimpairment duty under the Federal Land Policy and Management Act (FLPMA) is nonministerial and, therefore, not subject to the provisions of Section 706(1), supporting the district court's dismissal of the claims for lack of jurisdiction. The author concurs with the majority's remand of the Appellants' National Environmental Policy Act (NEPA) claim to assess whether the BLM adequately considered increased off-road vehicle use since earlier studies. It is emphasized that while the Appellants lack a remedy under Section 706(1), Congress has limited their recourse. The author further notes that the BLM's nonimpairment obligation cannot be classified as a plainly defined and preemptory duty, and acknowledges the complex nature of agency decision-making that courts are ill-equipped to resolve.
The Fish and Wildlife Service is mandated by 16 U.S.C. 1531(c)(1) to conserve endangered and threatened species, reflecting Congress' policy that all federal agencies must protect these species. The majority opinion fails to clarify the distinction between the continuous obligations of agencies like the Fish and Wildlife Service and the Bureau of Land Management's (BLM) nonimpairment obligation under the Federal Land Policy and Management Act (FLPMA). This oversight opens the door for lawsuits against agencies like the Immigration and Naturalization Service (INS) and the Fish and Wildlife Service by plaintiffs dissatisfied with their enforcement or conservation efforts. The majority's interpretation of 706(1) allows such litigation, which could lead to undue control over agency operations based on day-to-day performance. The majority's referenced example is irrelevant, as it presupposes bad faith by the BLM, which is not alleged in this case. To log on BLM lands, permits are necessary, and should land designated for non-logging activities be logged, it would constitute a final agency action subject to challenge under the Administrative Procedure Act (APA) as per 5 U.S.C. 704. Thus, Section 704 is the appropriate jurisdictional basis for such challenges, not 706(1).
