542 U.S. 55 (2004), 03-101, Norton v. Southern Utah Wilderness Alliance

Docket Nº:No. 03-101
Citation:542 U.S. 55, 124 S.Ct. 2373, 159 L.Ed.2d 137, 72 U.S.L.W. 4472
Party Name:GALE NORTON, SECRETARY OF THE INTERIOR, ET AL., PETITIONERS v. SOUTHERN UTAH WILDERNESS ALLIANCE ET AL
Case Date:June 14, 2004
Court:United States Supreme Court
 
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542 U.S. 55 (2004)

124 S.Ct. 2373, 159 L.Ed.2d 137, 72 U.S.L.W. 4472

GALE NORTON, SECRETARY OF THE INTERIOR, ET AL., PETITIONERS

v.

SOUTHERN UTAH WILDERNESS ALLIANCE ET AL

No. 03-101

United States Supreme Court

June 14, 2004

Argued March 29, 2004

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

[124 S.Ct. 2374] Syllabus [*]

The Bureau of Land Management (BLM), an Interior Department agency, manages the Utah land at issue here under the Federal Land Policy and Management Act of 1976. Pursuant to 43 U.S.C. § 1782, the Secretary of the Interior has identified certain federal lands as "wilderness study areas" (WSAs) and recommended some of these as suitable for wilderness designation. Land designated as wilderness by Act of Congress enjoys special protection; until Congress acts, the Secretary must "manage [WSAs] ... so as not to impair the[ir] suitability ... for preservation as wilderness." § 1782(c). In addition, each WSA or other area is managed "in accordance with" a land use plan, § 1732(a), a BLM document which generally describes, for a particular area, allowable uses, goals for the land's future condition, and next steps. 43 CFR § 1601.0-5(k). Respondents Southern Utah Wilderness Alliance and others (collectively SUWA) sought declaratory and injunctive relief for BLM's failure to act to protect Utah public lands from environmental damage caused by off-road vehicles (ORVs), asserting three claims relevant here, and contending that they could sue under the Administrative Procedure Act (APA) to "compel agency action unlawfully withheld or unreasonably delayed," 5 U.S.C. § 706(1). The Tenth Circuit reversed the District Court's dismissal of the claims.

Held: BLM's alleged failures to act are not remediable under the APA. Pp. 2378-2385.

(a) A § 706(1) claim can proceed only where a plaintiff asserts that an agency failed to take a discrete agency action that it is required to take.

The discrete-action limitation precludes a broad programmatic attack such as that rejected in Lujan v. National Wildlife Federation, 497 U.S. 871, 110 S.Ct. 3177, 111 L.Ed.2d 695,[124 S.Ct. 2375] and the required-action limitation rules out judicial direction of even discrete agency action that is not demanded by law. Pp. 2378-2380.

(b) SUWA first claims that BLM violated § 1782(c)'s nonimpairment mandate by permitting ORV use in certain WSAs. While § 1782(c) is mandatory as to the object to be achieved, it leaves BLM discretion to decide how to achieve that object. SUWA argues that the nonimpairment mandate will support an APA suit, but a general deficiency in compliance lacks the requisite specificity. The principal purpose of this

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limitation is to protect agencies from undue judicial interference with their lawful discretion and to avoid judicial entanglement in abstract policy disagreements which courts lack the expertise and information to resolve. If courts were empowered to enter general orders compelling compliance with broad statutory mandates, they would necessarily be empowered to decide whether compliance was achieved. The APA does not contemplate such pervasive federal-court oversight. Pp. 2380-2381.

(c) SUWA also claims that BLM's failure to comply with provisions of its land use plans contravenes the requirement that the Secretary manage public lands in accordance with such plans, 43 U.S.C. § 1732(a). A land use plan, however, is a tool to project present and future use. Unlike a specific statutory command requiring an agency to promulgate regulations by a certain date, a land use plan is generally a statement of priorities; it guides and restrains actions, but does not prescribe them. A statement about what BLM plans to do, if it has funds and there are not more pressing priorities, cannot be plucked out of context and made a basis for a § 706(1) suit. The land use plan statements at issue here are not a legally binding commitment enforceable under § 706(1). Pp. 2381-2384.

(d) SUWA finally contends that BLM did not fulfill its obligation under the National Environmental Policy Act of 1969 to take a "hard look" at whether to supplement its environmental impact statement (EIS) to take increased ORV use into account. Because the applicable regulation requires an EIS to be supplemented where there "are significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts," 40 CFR § 1502.9(c)(1)(ii), an agency must take a "hard look" at new information to assess the need for supplementation, Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 385, 109 S.Ct. 1851, 104 L.Ed.2d 377. However, supplementation is required only if "there remains major Federal actio[n] to occur," id., at 374, 109 S.Ct. 1851. Since the BLM's approval of its land use plan was the "action" that required the EIS; and since that plan has already been approved; there is no ongoing "major Federal actio[n]" that could require supplementation. Pp. 2384-2385.

301 F.3d 1217, reversed and remanded.

COUNSEL

Edwin S. Kneedler, Washington, D.C., for petitioners.

Paul M. Smith, Washington, D.C., for respondents.

Theodore B. Olson, Solicitor General, Counsel of Record, Department of Justice, Washington, D.C., for petitioners.

Roderick E. Walston, Acting Solicitor, Department of the Interior, Washington, D.C., Theodore B. Olson, Solicitor General, Counsel of Record, Thomas L. Sansonetti[124 S.Ct. 2376] , Assistant Attorney General, Edwin S. Kneedler, Deputy Solicitor General, Jeffrey Bossert Clark, Deputy Assistant, Attorney General, Barbara McDowell, Assistant to the Solicitor General, Andrew Mergen, John A. Bryson, Susan Pacholski, Department of Justice, Washington, D.C., for petitioners.

James S. Angell, Denver, CO, Patti Goldman, Todd D. True, Seattle, WA, Paul M. Smith, Counsel of Record, Jerome L. Epstein, William M. Hohengarten, Elaine J. Goldenberg, Jenner & Block LLP, Washington, D.C., Heidi J. McIntosh, Stephen H.M. Bloch, Salt Lake City, UT, for Respondents.

Paul W. Mortensen, Centerville UT, Paul A. Turcke, Moore, Smith, Buxton & Turcke, Boise, Counsel of Record, for respondents.

OPINION

SCALIA, Justice

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In this case, we must decide whether the authority of a federal court under the Administrative Procedure Act (APA) to "compel agency action unlawfully withheld or unreasonably delayed," 5 U.S.C. § 706(1), extends to the review of the United States Bureau of Land Management's stewardship of Page 58

public lands under certain statutory provisions and its own planning documents.

I

Almost half the State of Utah, about 23 million acres, is federal land administered by the Bureau of Land Management (BLM), an agency within the Department of Interior. For nearly 30 years, BLM's management of public lands has been governed by the Federal Land Policy and Management Act of 1976 (FLPMA), 90 Stat. 2744, 43 U.S.C. § 1701 et seq., which "established a policy in favor of retaining public lands for multiple use management." Lujan v. National Wildlife Federation, 497 U.S. 871, 877, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990). "Multiple use management" is a deceptively simple term that describes the enormously complicated task of striking a balance among the many competing uses to which land can be put, "including, but not limited to, recreation, range, timber, minerals, watershed, wildlife and fish, and [uses serving] natural scenic, scientific and historical values." 43 U.S.C. § 1702(c). A second management goal, "sustained yield," requires BLM to control depleting uses over time, so as to ensure a high level of valuable uses in the future. § 1702(h). To these ends, FLPMA establishes a dual regime of inventory and planning. Sections 1711 and 1712, respectively, provide for a comprehensive, ongoing inventory of federal lands, and for a land use planning process that "project[s]" "present and future use," § 1701(a)(2), given the lands' inventoried characteristics.

Of course not all uses are compatible. Congress made the judgment that some lands should be set aside as wilderness at the expense of commercial and recreational uses. A pre-FLPMA enactment, the Wilderness Act of 1964, 78 Stat. 890, provides that designated wilderness areas, subject to certain exceptions, "shall [have] no commercial enterprise and no permanent road," no motorized vehicles, and no manmade structures. 16 U.S.C. § 1133(c). The designation of a wildernessPage 59

area can be made only by Act of Congress, see 43 U.S.C. § 1782(b).

Pursuant to § 1782, the Secretary of the Interior (Secretary) has identified so-called "wilderness study areas" (WSAs), roadless [124 S.Ct. 2377] lands of 5,000 acres or more that possess "wilderness characteristics," as determined in the Secretary's land inventory. § 1782(a); see 16 U.S.C. § 1131(c). As the name suggests, WSAs (as well as certain wild lands identified prior to the passage of FLPMA) have been subjected to further examination and public comment in order to evaluate their suitability for designation as wilderness. In 1991, out of 3.3 million acres in Utah that had been identified for study, 2 million were recommended as suitable for wilderness designation. 1 U.S. Dept. of Interior, BLM, Utah Statewide Wilderness Study Report 3 (Oct.1991). This recommendation was forwarded to Congress, which has not yet acted upon it. Until Congress acts one way or the other, FLPMA provides that "the Secretary shall continue to manage such lands ... in a manner so as not to impair the suitability of such areas for preservation as wilderness." 43 U.S.C. § 1782(c). This nonimpairment mandate applies to all WSAs identified under § 1782, including lands considered unsuitable by the Secretary. See §§ 1782(a), (b); App. 64 (BLM Interim Management Policy for Lands Under Wilderness Review).

Aside from identification of WSAs, the main tool that BLM employs to balance wilderness...

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