The Wilderness Soc. v. Norton

• Decision Date: 17 January 2006
• Docket Number: No. 05-5032.,05-5032.
• Citation: 434 F.3d 584
• Parties: THE WILDERNESS SOCIETY, Appellant v. Gale A. NORTON, Secretary of the United States Department of the Interior, and Fran Mainella, Director National Park Service, Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

434 F.3d 584

THE WILDERNESS SOCIETY, Appellant v. Gale A. NORTON, Secretary of the United States Department of the Interior, and Fran Mainella, Director National Park Service, Appellees.

No. 05-5032.

United States Court of Appeals, District of Columbia Circuit.

Argued November 21, 2005.

Decided January 17, 2006.

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Appeal from the United States District Court for the District of Columbia (No. 03cv00064).

Craig S. Coleman argued the cause for appellant. With him on the briefs were Brian B. O'Neill, Richard A. Duncan, Jonathan W. Dettmann, and Leslie L. Jones.

Lisa E. Jones, Attorney, U.S. Department of Justice, argued the cause for appellees. On the brief were David C. Shilton and Anna T. Katselas, Attorneys.

Before: GARLAND, Circuit Judge, and EDWARDS and SILBERMAN, Senior Circuit Judges.

Opinion for the Court filed by Senior Circuit Judge EDWARDS.

HARRY T. EDWARDS, Senior Circuit Judge.

The Wilderness Society ("TWS" or the "Society") filed suit in the United States District Court for the District of Columbia. The complaint alleges that the National Park Service ("NPS" or the "Park Service") has chronically failed to undertake various legal obligations with respect to the identification and management of "wilderness" in the National Park System. TWS seeks judicial redress to compel the agency to take actions that allegedly have been unlawfully withheld and unreasonably delayed. On January 10, 2005, the District Court granted relief with respect to five of the Society's claims, but dismissed the remaining 39 counts alleged in TWS' complaint. TWS appealed the dismissals. The Government did not file a cross-appeal.

At issue here are TWS' claims that NPS has failed to comply with certain statutory mandates and deadlines and also failed to adhere to certain management policies. We dismiss the majority of TWS' claims for want of Article III standing. And we deny TWS' non-statutory claims resting on NPS' alleged failure to develop wilderness management plans, because they are predicated on unenforceable agency statements of policy.

I. BACKGROUND

On January 15, 2003, TWS filed suit against Gale Norton in her official capacity as Secretary of the Interior and Fran Mainella in her official capacity as Director of NPS. Specifically, TWS "allege[d] a widespread disregard by NPS of its statutory and regulatory duties to take specific actions to review and protect wilderness-quality lands in the National Park System, in violation of the Wilderness Act, 16 U.S.C. §§ 1131-36, the National Park Service Organic Act, 16 U.S.C. §§ 1-18f-3, National Park Service Policies and Directives, and the [Administrative Procedure Act]." Wilderness Soc'y v. Norton, CA No. 03-64, 2005 WL 3294006, at *1, 2005 U.S. Dist. LEXIS 18734, at *2 (D.D.C. Jan. 10, 2005) (emphases omitted).

The facts surrounding TWS' allegations are discussed at length in the District Court's Memorandum Opinion, so we will not repeat the full statement of facts here. Suffice it to say that "The Wilderness Society... filed a 94-page, 44-count complaint against the [NPS] . . . for alleged failures to conduct wilderness assessments, forward wilderness recommendations to the President, prepare wilderness management plans, revisit legally-insufficient wilderness assessments, and otherwise to take required measures to protect wilderness resources in this country." Id., 2005 WL 3294006, at *1, 2005 U.S. Dist. LEXIS 18734, at *1. In alleging that NPS has failed to prepare wilderness management plans, TWS relies on internal agency policies found in NATIONAL PARK SERVICE, DEPARTMENT OF INTERIOR, NPS D1416, MANAGEMENT POLICIES 2001 (Dec.2000) ("MANAGEMENT POLICIES" or "POLICIES"), available at http://www.nps.gov/refdesk/mp/. See also Director's Order #41 and NPS Reference Manual # 41, available at http://www.nps.gov/applications/npspolicy/DOrders.cfm. TWS' suit is based upon § 706(1) of the Administrative Procedure Act ("APA"), which permits a court to "compel agency action unlawfully withheld or unreasonably delayed," 5 U.S.C. § 706(1) (2000). Wilderness Soc'y, 2005 WL 3294006, at *1, 2005 U.S. Dist. LEXIS 18734, at *2.

On July 30, 2003, NPS filed a motion for judgment on the pleadings, see FED. R. CIV. P. 12(c), arguing, inter alia, that the Society lacks Article III standing; that TWS' claims regarding certain statutory deadlines are time-barred; and that the MANAGEMENT POLICIES cited by TWS embodies nonbinding declarations of policy issued solely to guide NPS managers and staff in their duties. On January 10, 2005, the District Court granted the Government's motion for judgment on the pleadings as to all but five counts. Wilderness Soc'y, 2005 WL 3294006, at *3, 2005 U.S. Dist. LEXIS 18734, at *70-71. The District Court dismissed the counts under the Wilderness Act and the specific enabling statutes as time-barred pursuant to 28 U.S.C. § 2401(a) (2000), the six-year statute of limitations for civil actions brought against the United States. Wilderness Soc'y, 2005 WL 3294006, at *6, 2005 U.S. Dist. LEXIS 18734, at *24-25. The remaining claims were rejected for want of merit under 5 U.S.C. § 706(1). Id. at *6, 2005 U.S. Dist. LEXIS 18734, at *46-47. TWS filed a timely notice of appeal, challenging the District Court's dismissal of its statutory claims and denial of relief on the bulk of its claims arising under the MANAGEMENT POLICIES. The Government did not cross-appeal the orders covering the five claims on which relief was granted to TWS. And at oral argument before this court, the Government acknowledged that NPS is presently complying with the District Court's orders relating to these five claims and conceded that no review was properly sought on these matters.

II. ANALYSIS

A. Statute of Limitations

The District Court dismissed TWS' claims under the Wilderness Act and the specific enabling statutes as time-barred under 28 U.S.C. § 2401(a). Section 2401(a) provides that "every civil action commenced against the United States shall be barred unless the complaint is filed within six years after the right of action first accrues." The District Court ruled that the Society's claims based on violations of the Wilderness Act, 16 U.S.C. § 1132(c) (2000), the Big Cypress National Preserve Addition Act, 16 U.S.C. § 698l (2000), the Glen Canyon National Recreation Area Enabling Act, 16 U.S.C. § 460dd-8 (2000), and the California Wilderness Act, Title VI, § 602, Pub.L. No. 103-433, 108 Stat. 4496-97 (1994), were untimely, because each claim was brought more than six years after NPS failed to meet its statutory deadline to perform wilderness reviews or file and complete legal boundary maps.

The Society appeals this ruling on the grounds that the statute of limitations has not run, because NPS is in continuous violation of its statutory obligations. TWS also points out that this court has never applied 28 U.S.C. § 2401(a) in situations comparable to this case in which a claimant has filed for mandamus to "compel agency action unlawfully withheld or unreasonably delayed." The Government offers no response and, noticeably, it does not attempt to defend the District Court's decision.

Although we need not reach a final determination on this issue because we find TWS lacks standing as to its statutory claims, the Society appears to be right in its contention that the District Court erred in dismissing the counts under the Wilderness Act and the specific enabling statutes as time-barred under 28 U.S.C. § 2401(a). This court has repeatedly refused to hold that actions seeking relief under 5 U.S.C. § 706(1) to "compel agency action unlawfully withheld or unreasonably delayed" are time-barred if initiated more than six years after an agency fails to meet a statutory deadline. For example, in In re United Mine Workers of America International Union, 190 F.3d 545 (D.C.Cir.1999), the petitioner sought a writ of mandamus to compel a division of the Department of Labor to issue final regulations. The statute required the Secretary of Labor to promulgate final regulations, or explain her decision not to promulgate them, within 90 days of a specified date. Id. at 550. The suit was brought eight years after the agency failed to meet its deadline. Id. The court nonetheless rejected the agency's contention that the suit was time-barred. The court ruled that, "[b]ecause the [union] does not complain about what the agency has done but rather about what the agency has yet to do, we reject the suggestion that its petition is untimely." Id. at 549.

The decision in In re Bluewater Network, 234 F.3d 1305 (D.C.Cir.2000), is to the same effect. There the court noted that the statute "command[ed] the Coast Guard to establish compliance standards. There are none." Id. at 1315. The court also noted that it was "faced with a clear statutory mandate, a deadline nine-years ignored, and an agency that has admitted its continuing recalcitrance." Id. at 1316. Notwithstanding that the statutory deadline had been missed by nine years, the court found the petition was timely. Id. at 1314.

TWS claims that NPS has chronically failed to undertake various legal obligations with respect to the identification and management of "wilderness" in the National Park System. The Society's complaint alleges continuing violations by the Government. It "does not complain about what the agency has done but rather about what the agency has yet to do," United Mine Workers, 190 F.3d at 549. Under these circumstances, it is unlikely that TWS' complaint would be held by this court to be time-barred by 28 U.S.C. § 2401(a).

B. TWS' Standing

We cannot address the merits of TWS' claims, however, unless we are assured that the Society has Article III standing. See Am. Library Ass'n v. FCC, 401 F.3d 489, 492 (D.C.Cir.), merits reviewed, 406 F.3d 689 (D.C.Cir.2005). TWS may bring suit in a representational capacity on behalf of its members if:

(1) at least one of [its] members has standing to sue in his...