ONRC Action v. Bureau of Land Management

• Decision Date: 29 July 1998
• Docket Number: No. 97-35467,97-35467
• Parties: 28 Envtl. L. Rep. 21,404, 98 Cal. Daily Op. Serv. 5841, 98 Daily Journal D.A.R. 8125 ONRC ACTION; Blue Mountain Native Forest Alliance; Oregon Natural Desert Association; Portland Audubon Society; Kettle Range Conservation Group, Plaintiffs-Appellants, v. BUREAU OF LAND MANAGEMENT; Defendant-Appellee, William Smith Properties, Inc. individually and on behalf of affected landowners, Defendant-Intervenor-Appellee, Clearwater Land Exchange, Defendant-Intervenor-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1132

150 F.3d 1132

28 Envtl. L. Rep. 21,404, 98 Cal. Daily Op.

Serv. 5841,

98 Daily Journal D.A.R. 8125

ONRC ACTION; Blue Mountain Native Forest Alliance; Oregon

Natural Desert Association; Portland Audubon

Society; Kettle Range Conservation

Group, Plaintiffs-Appellants, v. BUREAU OF LAND MANAGEMENT; Defendant-Appellee, William Smith Properties, Inc. individually and on behalf of

affected landowners, Defendant-Intervenor-Appellee,

Clearwater Land Exchange, Defendant-Intervenor-Appellee.

No. 97-35467.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 8, 1998.

Decided July 29, 1998.

Marianne G. Dugan, Western Environmental Law Center, Inc., Eugene, Oregon, for plaintiffs-appellants.

Ellen J. Durkee, Environment & Natural Resources Division, United States Department of Justice, Washington, DC, for defendant-appellee.

Paul A. Turcke, Moore & McFadden, Boise, Idaho, for defendant-intervenor-appellee.

Gayle K. Rowe, Dunn, Carney, Allen, Higgins and Tongue, Portland, Oregon, for defendant-intervenor-appellee.

Appeal from the United States District Court for the District of Oregon; Michael R. Hogan, Chief District Judge, Presiding. D.C. No. CV-96-00422-MRH(TMC).

Before: GOODWIN, ALARCON, and BRUNETTI, Circuit Judges.

ALARCON, Circuit Judge:

Plaintiffs Oregon Natural Resources Council and other environmental organizations (collectively "ONRC"), appeal from the dismissal of their action against the Bureau of Land Management ("BLM"). ONRC filed suit under the Administrative Procedure Act ("APA") claiming that BLM had violated the National Environmental Policy Act ("NEPA") and the Federal Land Policy Management Act ("FLPMA") by failing to halt certain actions pending completion of an Environmental Impact Statement ("EIS"). The district court found that ONRC did not identify any "final agency action" challengeable under the APA and dismissed ONRC's action for lack of jurisdiction. We affirm the district court's dismissal because we conclude that ONRC lacks standing under the APA to bring the present action.

I

On February 1, 1994, the Forest Service and BLM proposed to develop an ecosystem management strategy for forests and public lands (federal lands administered by BLM) east of the Cascade Mountains in Oregon and Washington (Eastside Ecosystem Management Strategy or "Eastside Management Plan"). This proposal was in response to President Clinton's July 1993 mandate "to develop a scientifically sound and ecosystem-based strategy for management of these lands." Notice, Eastside Ecosystem Management Strategy, 59 Fed.Reg. 4680 (1994). The notice in the Federal Register indicated that the preparation of an Environmental Impact Statement ("Eastside EIS") would result in the selection of an alternative that would in turn result in amendment or revision of applicable BLM Resource Management Plans ("RMP"). Id. During the Eastside EIS development process the Forest Service implemented an interim screening process for proposed forest sales to preserve alternatives during the planning process. BLM did not take similar action.

On October 2, 1995, ONRC and several other environmental organizations filed a thirty-four page "Petition with Request for Stay" ("Petition") with the BLM. The petition requested that BLM "impose a moratorium" on (1) logging and road construction in "late successional/old growth ("LS/OG") forests" in the East Cascade area; (2) land exchanges affecting LS/OG forests; and (3) juniper eradication in these areas. The Petition alleged that BLM's refusal to impose this moratorium would violate the mandates of NEPA, requiring preservation of alternatives during the EIS process, and FLPMA, requiring revision of land use plans. BLM responded with a two-page letter indicating that raising these issues in site-specific challenges to actual projects would be the appropriate forum. BLM also noted that it continued actions under existing program statements as provided in 40 C.F.R. § 1506.1(c).

ONRC and some of the environmental organizations that joined in the Petition then filed this action against BLM under the APA alleging violations of NEPA and FLPMA. ONRC alleged that BLM failed to halt land transactions, logging permits and juniper extraction during the Eastside EIS process. ONRC argued that the Eastside EIS and Eastside Management Plan will alter the current management practices of BLM and that BLM is required to halt any actions that will commit irretrievable resources prior to completion of the Eastside EIS.

Clearwater Land Exchange and William Smith Properties were allowed to intervene as defendants with BLM (collectively referred to as "BLM"). BLM moved to dismiss the suit on the basis that the district court lacked jurisdiction because there was no final agency action challengeable under the APA. A magistrate judge considered the motion and recommended dismissal. The magistrate judge found that there was no final agency action and therefore the court lacked jurisdiction. The district court adopted the findings and recommendation of the magistrate judge and dismissed ONRC's action against BLM.

II

ONRC argues that the decision not to change the status quo is a final agency action challengeable under the APA. Additionally, ONRC points to BLM's letter responding to the ONRC petition. ONRC asserts that the refusal to impose a moratorium as requested in the petition is a final agency action. We review "a district court's grant of a motion to dismiss under Rule 12(b)(1) de novo." Mundy v. United States, 983 F.2d 950, 952 (9th Cir.1993).

Neither NEPA nor FLPMA contain provisions allowing a right of action. See Lujan v. National Wildlife Fed'n, 497 U.S. 871, 882, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990). A party alleging violations of NEPA and FLPMA can bring an action under the APA challenging an "agency action." See id. (quoting 5 U.S.C. § 702). ¹ To demonstrate statutory standing under the APA, a plaintiff must (1) identify a final agency action; and (2) show that the injury complained of "falls within the 'zone of interests' sought to be protected by the statutory provision whose violation forms the basis ... [of the] complaint." Salmon River Concerned Citizens v. Robertson, 32 F.3d 1346, 1353-54 (9th Cir.1994) (quoting Lujan v. National Wildlife Fed'n, 497 U.S. 871, 882, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990)). See also National Wildlife Fed'n, 497 U.S. at 882, 110 S.Ct. 3177 ("When ... review is sought not pursuant to specific authorization in the substantive statute, but only under the general review provisions of the APA, the 'agency action' in question must be 'final agency action.' ") (quoting 5 U.S.C. § 704). ²

There are two parts to ONRC's argument that BLM's refusal to institute a moratorium on certain actions is a final agency action under the APA. First, ONRC argues that BLM's failure to implement a moratorium on certain actions pending completion of the Eastside EIS was a challengeable final agency action. Second, ONRC contends that the action was final despite the fact that the action was not site-specific but regional in character.

In support of its first argument that BLM's refusal to institute a moratorium was an agency action under the APA, ONRC relies on two cases that hold certain inaction equates to agency action. See City of Chicago v. United States, 396 U.S. 162, 166-67, 90 S.Ct. 309, 24 L.Ed.2d 340 (1969) (holding that agency decision not to take action was not "inaction" but rather a decision on the merits resulting in a reviewable agency action); Rochester Tel. Corp. v. United States, 307 U.S. 125, 140-42, 59 S.Ct. 754, 83 L.Ed. 1147 (1939) (eliminating the distinction between 'affirmative orders' and 'negative orders' because "dismissing a complaint on the merits and maintaining the status quo is an exercise of administrative function, no more and no less, than an order directing some change in status"). In these cases, however, the lack of action was based on an evaluation of the merits and a reasoned decision not to act. See Chicago, 396 U.S. at 166, 90 S.Ct. 309; Rochester Telephone, 307 U.S. at 143-44, 59 S.Ct. 754.

This case is more akin to the Supreme Court's decision in National Wildlife Federation. In National Wildlife Federation, the Court considered plaintiffs' challenge to BLM's "land withdrawal program." Id. at 875, 110 S.Ct. 3177. The Court held that there was no right of review established under the APA. Id. at 892-93, 110 S.Ct. 3177. The Court concluded that because plaintiffs failed to point to "a single BLM order or regulation, or even to a completed universe of particular BLM orders and regulations," there was no agency action on which to base their challenge under the APA. Id. at 890, 110 S.Ct. 3177.

In this case, BLM did not evaluate the merits of ONRC's contentions to arrive at a reasoned, deliberate decision. See Western Radio Servs. Co., Inc. v. Glickman, 123 F.3d 1189, 1196 (9th Cir.1997) (explaining that a final agency action must "mark the 'consummation' of the agency's decisionmaking process," thus implying that a process of decisionmaking must be underway). BLM never entered into the decisionmaking process because it never intended to consider a change of the status quo. Even in response to the petition submitted by ONRC, BLM did not enter into an evaluative process. BLM's response letter, informational in nature, merely informed ONRC that BLM would not consider their requests unless raised in the context of site-specific decisions. Thus, similar to the facts in National Wildlife Federation, this case presents a situation where there is no identifiable agency order, regulation, policy or plan that may be subject to challenge as a final agency action. See also Northcoast Envtl. Center v. Glickman, 136 F.3d 660, 669 (9th Cir.1998) (holding that preliminary research and development efforts do not trigger EIS requirements under NEPA or constitute an agency action under the APA).

Second, ONRC argues that the fact...