Southern Utah Wilderness Alliance v. Norton
| Decision Date | 29 August 2002 |
| Docket Number | No. 01-4009.,01-4009. |
| Citation | 301 F.3d 1217 |
| Parties | 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, 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. |
| Court | U.S. Court of Appeals — Tenth Circuit |
James S. Angell, Earthjustice Legal Defense Fund, Denver, Colorado (Heidi McIntosh and Stephen H.M. Bloch, Southern Utah Wilderness Alliance, Salt Lake City, UT, with him on the briefs), for Plaintiffs-Appellants.
Susan Pacholski, Attorney, Environment and Natural Resources Division, U.S. Department of Justice, Washington, DC, (Eileen Sobeck, Deputy Assistant Attorney General, Washington, D.C.; Paul W. Warner, United States Attorney, Stephen Roth and Jeffrey Nelson, Assistant United States Attorneys, District of Utah, Salt Lake City, UT; and John A. Bryson, Attorney, Environment and Natural Resources Division, U.S. Department of Justice, Washington, DC, with her on the brief), for Defendants-Appellees.
Paul A. Turcke, Moore, Smith, Buxton, & Turcke, Chartered, Boise, ID, for Intervenors-Appellees.
Ralph L. Finlayson, Assistant Attorney General, Stephen G. Boyden, Assistant 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.
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 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.
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, 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
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.
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 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).
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 characteristics."2 43 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. 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...
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