Colorado Environmental Coalition v. Wenker, No. 02-1254.
| Decision Date | 07 January 2004 |
| Docket Number | No. 02-1254. |
| Citation | 353 F.3d 1221 |
| Parties | COLORADO ENVIRONMENTAL COALITION; Colorado Mountain Club; Sarah Peters; Joshua Houdek, Plaintiffs-Appellants, v. Ron WENKER, Colorado State Director of Bureau of Land Management;<SMALL><SUP>*</SUP></SMALL> Kathleen Clarke, Director of the Bureau of Land Management; Gale Norton, Secretary of the Department of the Interior of the United States; United States Bureau of Land Management, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Tenth Circuit |
James Jay Tutchton (Eric E. Huber with him on the briefs), Earthjustice, Denver, CO, for Plaintiffs-Appellants.
Mark S. Pestal, Assistant United States Attorney, (John W. Suthers, United States Attorney, District of Colorado, with him on the brief) Denver, CO, for Defendants-Appellees.
Before EBEL, PORFILIO, and O'BRIEN, Circuit Judges.
The Federal Land Policy and Management Act ("FLPMA") of 1976 § 309, 43 U.S.C. § 1739 (amended 1978), and Bureau of Land Management ("BLM" or the "agency") regulations, 43 C.F.R. § 1784.0-1 et seq., require the Secretary of the Interior to create and appoint public members to Resource Advisory Councils ("RACs"). The RACs are designed to be representative of major groups with interests in federal lands, and they make recommendations to the Secretary and the BLM about federal land use policy. This case involves the plaintiffs' challenge to appointments made by the Secretary in 2001 to the three Colorado RACs. The formation and operation of federal advisory committees like the RACs must conform to requirements established by the Federal Advisory Committee Act ("FACA"), 5 U.S.C. app. 2 § 5. The plaintiffs allege that the Secretary failed to follow the procedural requirements of the FACA and BLM regulations applying to RACs when making the appointments.
The district court dismissed the case, offering two alternative grounds for its action. The district court concluded both that the FACA and the regulations were too vague to provide a meaningful legal standard to adjudicate the plaintiffs' claims, and that the plaintiffs lacked standing to bring their action. We conclude that the individual plaintiffs Peters and Houdek do have standing to bring this action, and that the "fair membership balance" requirement of 43 C.F.R. § 1784.2-1(a) provides a meaningful legal standard to apply to their claims on that issue. However, we conclude that plaintiffs' first claim alleging a violation of the letter of reference criteria expressed in 43 C.F.R. § 1784.6-1(e) and plaintiffs' second claim alleging a violation of the prohibition against inappropriate influence expressed in the FACA, 5 U.S.C. app. 2 § 5(b)(3) do not present meaningful legal standards against which courts can evaluate those claims. Accordingly, those claims do not present justiciable claims. Thus, we REVERSE the district court's dismissal of count three and AFFIRM the district court's dismissal of counts one and two. We REMAND for further proceedings on count three as to plaintiffs Peters and Houdek.
Among its many provisions relating to federal management of public lands, the FLPMA requires the Secretary of the Interior to establish public advisory councils for the purpose of making recommendations to the Secretary about matters relating to federal land use policy. 43 U.S.C. § 1739(a), (d). Specifically, the Secretary of the Interior is instructed by the statute to
establish advisory councils of not less than ten and not more than fifteen members appointed by him from among persons who are representative of the various major citizens' interests concerning the problems relating to land use planning or the management of the public lands located within the area for which an advisory council is established.
43 U.S.C. § 1739(a). The advisory councils established by the FLPMA "may furnish advice to the Secretary with respect to land use planning, classification, retention, management, and disposal of the public lands within the area for which the advisory council is established and such other matters as may be referred to it by the Secretary." 43 U.S.C. § 1739(d).
The formation and operation of the advisory councils authorized by the FLPMA must conform to the requirements of the Federal Advisory Committee Act, 5 U.S.C. app. 2 § 4.1 See 43 U.S.C. § 1739(a). Advisory committees must have a clearly defined purpose, have a membership that is "fairly balanced in terms of the points of view represented and the functions to be performed," and "not be inappropriately influenced by the appointing authority or by any special interest." 5 U.S.C. app. 2 § 5(b)(2), (3).
To implement the FLPMA's directive that the Secretary of the Interior form advisory committees, the Bureau of Land Management promulgated regulations for such committees. See 43 C.F.R. §§ 1784.0-1-1784.6-2. Consistent with the purpose of the FLPMA, the objective of these regulations is to
make available to the Department of the Interior and Bureau of Land Management the expert counsel of concerned, knowledgeable citizens and public officials regarding both the formulation of operating guidelines and the preparation and execution of plans and programs for the use and management of public lands, their natural and cultural resources, and the environment.
43 C.F.R. § 1784.0-2. In addition to establishing general standards for any advisory committee formed to advise the Secretary of the Interior, the regulations specifically create "[r]esource advisory councils ... to cover all lands administered by the Bureau of Land Management." 43 C.F.R. § 1784.6-1. The appointment of members to the three RACs that cover Colorado is at the core of the dispute in the instant case. The Colorado RACs provide advice and recommendations to the Secretary and the BLM about management of the 8.3 million acres of public lands, and the 27.3 million subsurface acres available for mineral development, in Colorado. The advice and recommendations of the RACs are not binding upon the Secretary or the BLM. See 43 C.F.R. § 1784.5-1 ().
The regulations specify that RACs must contain members "representative of the interests of ... 3 general groups." 43 C.F.R. § 1784.6-1(c). These three groups are (1) people with interests in federal grazing permits, transportation or rights-of-way, outdoor recreation, commercial timber operations, or energy and mineral development; (2) people representing nationally or regionally recognized environmental groups, "dispersed recreational activities," archeological and historical interests, or nationally or regionally recognized wild horse and burro interest groups; and (3) persons who hold state, county or local elected office, are employed by state natural resources agencies, represent local Indian tribes, are employed as academics in natural resource management or the natural sciences, or represent the affected public-at-large. 43 C.F.R. § 1784.6-1(c)(1)-(3). The three RACs in Colorado have fifteen members each, representing the Front Range, the Northwest, and the Southwest regions.
RAC members are chosen by the Secretary of the Interior. Id. at § 1784.6-1(c). The regulations specify that at least one government official must be appointed to each RAC, id., and "the Secretary shall provide for balanced and broad representation from within each [of the three] categor[ies]" specified in the Regulations. Id. at § 1784.6-1(d). In a provision important to this case, the regulations state that: "[a]ll nominations shall be accompanied by letters of reference from interests or organizations to be represented." Id. at § 1784.6-1(e).
At issue before us are the nominations and appointments made to the three Colorado RACs by the defendants in 2001. On March 9, 2001, the BLM published in the Federal Register a "Call for Nominations for Resource Advisory Councils." On the same day, the BLM's Colorado state office issued a press release publicizing the call for nominations to fill 14 vacancies on the Colorado RACs. An internal BLM policy set the closing date for the nomination process as April 23, 2001, and by that date the BLM had received almost 50 applications, complete with the required letters of reference.
Fifteen days after the close of the nomination period, Colorado Governor Bill Owens submitted to the Colorado Director of the BLM a letter containing a list of 13 nominations to fill the RAC vacancies. The Governor's letter did not include letters of reference from interest groups supporting the individuals listed, nor did it contain any other documentation in support of the nominees. Of the 13 individuals nominated by Governor Owens, only three later submitted to the BLM letters of reference from the interests they purportedly represent. On September 25, 2001, the Colorado office of the BLM issued a press release announcing that Secretary Norton had filled the 14 vacancies on Colorado's RACs. All of the 13 nominees listed in Governor Owens' letter were appointed to RAC positions. Of the approximately 50 public nominees, only one was selected for a RAC position.
Following Secretary Norton's appointments to the RACs, the plaintiffs filed a complaint in the United States District Court for the District of Colorado seeking declaratory and injunctive relief. The plaintiffs are two Colorado environmental organizations and two individuals who applied for, but did not receive, RAC positions. Their complaint alleges that 10 of the 14 appointments to the RACs were unlawful for three reasons. First, the complaint alleges that the appointments were made without the letters of reference required by 43 C.F.R. § 1784.6-1(e) from the interest or organization each nominee was to represent. Second, the complaint alleges that the appointments resulted from inappropriate influence by Governor Owens, in violation of FACA, 5 U.S.C. app. 2 § 5(b)(3). Third, the complaint alleges that appointments did not satisfy the...
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