Center for Biological Diversity, a Nonprofit Corporation Central Az Paddlers Club v. Ann M. Veneman, Secretary of the United States Department of Agriculture Dale Bosworth, Chief of United States Forest Service Eleanor Towns, Regional Forester, United States Forest Service, Region Three United States Forest Service

Citations: 394 F.3d 1108; 2003 U.S. App. LEXIS 27927; 2005 WL 27565Docket: 02-16201

Court: Court of Appeals for the Ninth Circuit; January 6, 2005; Federal Appellate Court

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The Ninth Circuit Court of Appeals addressed a case involving the Center for Biological Diversity and the Central Arizona Paddlers Club against officials of the U.S. Department of Agriculture and the U.S. Forest Service. The court previously found that the district court had jurisdiction to review the Center's claims under § 706(1) of the Administrative Procedure Act (APA), which argued that the Forest Service had a mandatory duty to evaluate potentially eligible rivers under the Wild and Scenic Rivers Act (WSRA) but failed to do so. This conclusion was drawn from the precedent set in Montana Wilderness Association, where the Forest Service was found to have mandatory duties that could be compelled under the APA.

However, following a Supreme Court ruling in Norton v. Southern Utah Wilderness Alliance (SUWA), which clarified that claims under § 706(1) require a specific agency action that the agency is obliged to take, the Ninth Circuit reassessed its earlier decision. The Supreme Court's decision indicated that a mere "failure to consider" issues does not constitute a failure to take discrete agency action, thus leading the Ninth Circuit to conclude that the Center did not adequately allege such a failure.

The Ninth Circuit affirmed the district court's dismissal for lack of standing but reversed the denial of the Center's motion for leave to amend its complaint, remanding the case for the Center to be allowed to amend. The WSRA establishes a national system for the protection of free-flowing rivers, requiring studies to determine eligibility for inclusion in the wild and scenic rivers system, which can be designated by Congress or state governors.

In 1993, the Forest Service conducted studies on Arizona's rivers at the request of the congressional delegation, resulting in a 300-page report identifying 57 rivers and streams meeting the criteria for inclusion in the Wild and Scenic Rivers System (WSRS). In 2001, the Center sued the Forest Service for not considering these rivers in land use planning as mandated by 16 U.S.C. § 1276(d)(1), claiming standing under the Administrative Procedure Act (APA) for allegedly unlawfully withheld agency action. The district court dismissed the case, ruling that the Forest Service had no obligation for a systematic review under the WSRA before revising its forest plan, thus lacking subject matter jurisdiction. The court also denied the Center's request to amend its complaint, stating that any amendments would be futile. The Center appealed the dismissal.

On appeal, the Forest Service contended that the 1993 Report was not an agency-initiated study for river eligibility and challenged the Center's standing. The Center claimed the district court improperly denied its motion to amend. The 1993 Report was deemed to provide essential information on rivers potentially eligible for inclusion in the WSRS, identifying the necessary characteristics of free-flowing rivers with outstanding remarkable values, and it was acknowledged as an agency-initiated inventory. Thus, the report aligns with the requirements of the WSRA.

The Forest Service contends that the consideration of eligible rivers in project plans does not qualify as a discrete agency action nor as a mandatory action under the Wild and Scenic Rivers Act (WSRA). The analysis focuses on the Center's claim regarding "discrete agency action." In SUWA, plaintiffs alleged that the Bureau of Land Management (BLM) failed to comply with the Federal Land Policy and Management Act (FLPMA), which mandates the Secretary of the Interior to manage wilderness study areas to preserve their suitability for wilderness designation. Since FLPMA lacks a private right of action, plaintiffs sought relief under § 706(1) of the Administrative Procedure Act (APA).

The Court determined that a § 706(1) claim can only proceed if it alleges an agency's failure to take a legally required discrete action. "Failure to act" refers to the agency's non-performance of specified actions defined in § 551(13) of the APA, which outlines five categories of agency actions: rules, orders, licenses, sanctions, and relief. Each category specifies circumscribed actions, emphasizing the need for discrete agency actions rather than broad programmatic challenges, which were rejected in Lujan v. National Wildlife Federation. 

The Court clarified that the APA allows courts to compel only those actions that an agency is legally obligated to undertake. It can compel an agency to perform a non-discretionary act but cannot dictate the specifics of the action taken. Thus, a court can mandate an agency to act if bound by law to do so within a stipulated timeframe, but not to dictate the nature of that action.

The Court determined that the Federal Land Policy and Management Act (FLPMA) mandates the management of wilderness study areas without impairing their suitability for preservation but grants the Bureau of Land Management (BLM) significant discretion in achieving this goal. It concluded that FLPMA does not require a complete ban on off-road vehicle use to comply with its non-impairment requirement. The Court rejected the plaintiffs' claim that a federal court could issue a general order for compliance without specifying how to achieve it, citing that broad mandates would lead to excessive judicial involvement in agency operations. Consequently, it ruled that the Administrative Procedure Act (APA) does not allow plaintiffs to sue over alleged violations of the non-impairment provision, as BLM's land use plans are not enforceable commitments under § 706(1). 

In the context of the Forest Service's actions regarding the Wild and Scenic Rivers Act (WSRA), the Service argued that the requirement to consider 57 potentially eligible rivers was part of a decision-making process rather than a discrete agency action. The Court found that the Center's claims of failure to consider these rivers mirrored those dismissed in a previous case (SUWA), which emphasized that broad programmatic challenges are not actionable under the APA. Although the Center attempted to differentiate its claim by specifying the 57 rivers, the Court concluded that this did not sufficiently distinguish it from the previously rejected claims, reiterating the concerns of judicial overreach in agency compliance matters.

The Center lacks standing under § 706(1) because it has not alleged a specific agency action that the Forest Service failed to undertake, leading to the district court's dismissal for lack of subject matter jurisdiction, which is affirmed. The Center claims the court erred in denying its motion to amend its complaint to include claims related to agency actions authorized by § 706(1). It cites information from Freedom of Information Act requests about projects affecting the watersheds of 57 rivers, arguing that the Forest Service has authorized activities without considering the rivers' wild and scenic status. Although the SUWA case limits general failure-to-consider claims, the Center might assert specific failures of the Forest Service regarding particular rivers in relation to specific projects, such as livestock grazing permits.

Additionally, the Center could potentially claim failures to act under related provisions of the Wild and Scenic Rivers Act (WSRA) and applicable regulations. Specifically, § 1283(a) mandates federal agencies to take necessary actions to protect rivers within or considered for inclusion in the National Wild and Scenic Rivers System, especially concerning timber harvesting and road construction. The Center may argue that the Forest Service failed to take required actions to protect these rivers, and reference previous cases, like Wilderness Society v. Tyrrel, which highlight the obligation of the Forest Service to adhere to these protective measures. Furthermore, the Center could challenge the compliance of the Departments of Agriculture and Interior with regulations requiring a thorough analysis of alternatives when dealing with rivers potentially eligible for WSRS inclusion.

Amendment of the complaint is not clearly futile, as established in Thinket Ink Info. Res., which states that dismissal without leave to amend is inappropriate unless it's evident that no amendment could save the complaint. Dismissal with prejudice could prevent the Center from pursuing similar claims in a separate case due to claim preclusion, as noted in Semtek Int'l Inc. v. Lockheed Martin Corp. and Cent. Delta Water Agency v. United States. The district court's denial of the Center's motion for leave to amend is therefore reversed. Although the Supreme Court's ruling in SUWA indicates that a failure to consider issues related to land resource development does not constitute a discrete agency action necessary for standing under § 706(1), the Center's failure to allege such an action affirms the district court's dismissal for lack of standing. The case is affirmed in part, reversed in part, and remanded to allow the Center to amend its complaint, with each party bearing its own appeal costs.