CO Farm Bureau Fed v. US Forest Serv., 99-1125

• Citation: 220 F.3d 1171
• Decision Date: 18 July 2000
• Docket Number: No. 99-1125,99-1125
• Parties: (10th Cir. 2000) COLORADO FARM BUREAU FEDERATION; COLORADO OUTFITTERS ASSOCIATION; COLORADO CATTLEMEN'S ASSOCIATION; COLORADO WOOL GROWERS ASSOCIATION, Plaintiffs-Appellants, v. UNITED STATES FOREST SERVICE, NATIONAL PARK SERVICE; UNITED STATES FISH AND WILDLIFE SERVICE; COLORADO WILDLIFE COMMISSION; JOHN W. MUMMA, in his official capacity as Director of the Colorado Division of Wildlife, Defendants-Appellees
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 1171

220 F.3d 1171 (10th Cir. 2000)

COLORADO FARM BUREAU FEDERATION; COLORADO OUTFITTERS ASSOCIATION; COLORADO CATTLEMEN'S ASSOCIATION; COLORADO WOOL GROWERS ASSOCIATION, Plaintiffs-Appellants, v. UNITED STATES FOREST SERVICE, NATIONAL PARK SERVICE; UNITED STATES FISH AND WILDLIFE SERVICE; COLORADO WILDLIFE COMMISSION; JOHN W. MUMMA, in his official capacity as Director of the Colorado Division of Wildlife, Defendants-Appellees.

No. 99-1125

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

July 18, 2000

Appeal from the United States District Court for the District of COLORADO. D.C. No. 98-D-2696

William Perry Pendley (Monica S. Ernst and William Davis Thode, with him on the brief), of Mountain States Legal Foundation, Denver, Colorado, appearing for Plaintiffs-Appellants.

Todd S. Kim, Attorney, Department of Justice (Lois J. Schiffer, Assistant Attorney General, Albert C. Lin, Andrea L Berlowe, Evelyn S. Ying, Attorneys, Department of Justice, Kenneth Capps, U.S. Department of Agriculture, and Debra Hecox, U.S. Department of the Interior, with him on the brief), Washington, D.C., appearing for Federal Defendants-Appellees.

Timothy J. Monahan, Assistant Attorney General, Natural Resources & Environment Section (Ken Salazar, Attorney General, with him on the brief), Denver, Colorado, appearing for Colorado Wildlife Commission, Colorado Division of Wildlife, and John W. Mumma, Defendants-Appellees.

Before SEYMOUR, Chief Judge, TACHA and KELLY, Circuit Judges.

SEYMOUR, Chief Judge.

Plaintiffs filed this action in federal district court seeking declaratory and injunctive relief with respect to the State of Colorado's "Lynx Recovery Plan" (the Plan), which proposed to introduce Canadian lynx into Colorado. The complaint alleged that the Forest Service's involvement with the Plan violated the Administrative Procedures Act (APA), 5 U.S.C. 706(2)(A), because the Forest Service failed to follow the environmental reporting requirements set forth in the National Environmental Policy Act (NEPA), 42 U.S.C. 4332. In a thorough opinion, the district court granted the government's motion to dismiss for lack of Article III standing, and alternatively because it held there was no "major Federal action" triggering the application of NEPA. Plaintiffs appeal and we affirm, albeit on different grounds.¹

On appeal, the government contends that we lack jurisdiction over this matter because the complaint fails to allege any final agency action, resulting in lack of standing to pursue a claim under the APA. We review questions of standing de novo. See Utah v. Babbitt, 137 F.3d 1193, 1203 (10th Cir. 1998). When considering a motion to dismiss, we must construe the complaint in favor of the complaining party and assume the truth of all factual allegations. See id. at 1204. Because we agree plaintiffs have failed to demonstrate APA standing, we do not reach the Article III standing issue. See Jean v. Nelson, 472 U.S. 846, 854 (1985) (courts should avoid reaching constitutional issues when statutory determinations are decisive).

Because NEPA does not provide for a private right of action, plaintiffs rely on the judicial review provisions of the APA in bringing their claims. See 5 U.S.C. 702. The plaintiffs must therefore satisfy the "statutory standing" requirements of the APA. Utah v. Babbitt, 137 F.3d at 1203. Specifically, they must establish that defendants took "final agency action for which there is no other adequate remedy in court." 5 U.S.C. 704. See also id. 702; Lujan v. National Wildlife Fed'n, 497 U.S. 871, 882 (1990).

Whether federal conduct constitutes final agency action within the meaning of the APA is a legal question. See Utah v. Babbitt, 137 F.3d at 1207. The APA defines "agency action" as an "agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act." 5 U.S.C. 551(13). Plaintiffs have the burden of identifying specific federal conduct and explaining how it is "final agency action" within the meaning of section 551(13). See National Wildlife Fed'n, 497 U.S. at 882; Catron County v. U.S. Fish & Wildlife, 75 F.3d 1429, 1434 (10th Cir. 1996). In order to determine if an agency action is final, we look to whether its impact is "direct and immediate," Franklin v. Massachusetts, 505 U.S. 788, 796-97 (1992); whether the action "mark[s] the consummation of the agency's decisionmaking process," Bennett v. Spear 520 U.S. 154, 178 (1997); and whether the action is one by which "rights or obligations have been determined, or from which legal consequences will flow," id.

The complaint alleges the following federal conduct for our review. It asserts that Colorado's reintroduction of the Canadian lynx will occur on federal land managed by the Forest Service, see Complaint, 6, with "federal government consent," id. at 9, and that the Plan was "agreed to, supported, and facilitated by" the Forest Service, id. at 11. Colorado allegedly worked with the Forest Service in formulating the Plan, and various federal agencies performed "significant and substantial work," such as "conducting geographic analyses, funding other analyses, and actively participating in public meetings regarding the project." Id. at 8.

Plaintiffs then contend that an agreement between the United States Department of the Interior and the State of Colorado concerning programs to manage Colorado's declining native species constitutes final agency action. We disagree. This document is merely a general agreement for state...