CHAPTER 6 RECENT JUDICIAL DECISIONS ON ADMINISTRATIVE AGENCY ACTION
| Jurisdiction | United States |
(Sep 2004)
RECENT JUDICIAL DECISIONS ON ADMINISTRATIVE AGENCY ACTION
Assistant Chief, General Litigation Section
Environment & Natural Resources Division
U.S. Department of Justice
Washington, D.C.
Charles "Spinner" Findlay is an Assistant Chief of the Natural Resources Section, Environment and Natural Resources Division, Department of Justice. He has been with the Justice Department since 1979 practicing natural resources, energy and environmental law, and he has specialized in National Environmental Policy Act (NEPA) litigation. He has defended a wide range of federal programs challenged under the statute, including oil, gas and coal leasing, wildlife management, national park and forest management, water projects, biotechnology research, chemical munitions destruction, military base operations and nuclear waste storage. He has also defended agencies in cases involving application of NEPA to federal actions abroad.
As one would expect, the pace of judicial decisions reviewing federal agency action continues unabated, including many that will have a profound effect on management of natural resources. In view of the number of decisions constantly emerging, it is difficult to single out a few for examination.
The Supreme Court facilitates the task some with issuance of two of its decisions in June. One considered the reviewability under the Administrative Procedure Act (APA), 5 U.S.C. § 551 et seq., of the Bureau of Land Management's (BLM's) balancing of off-road vehicle use with preservation of wilderness values in wilderness study areas. Norton v. Southern Utah Wilderness Alliance, 124 S. Ct. 2373 (2004) ("SUWA"). The APA is a jurisdictional door to judicial review of federal agency action, this is a defining decision on mandamus relief. The Court's other decision reviewed the Federal Motor Carrier Safety Administration's duty to examine under the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. §§ 4321 -4347, and the Clean Air Act, 42 U.S.C. §§ 7401 -7671q, the environmental effects of an action over which it has no control. Department of Transportation v. Public Citizen, 124 S.Ct. 2204 (2004) ("Public Citizen"). Because NEPA imposes a responsibility on federal agencies to examine the environmental effects of nearly all their proposed actions, particularly natural resource decisions, the last word from the Supreme Court on NEPA principles likewise merits attention. In light of NEPA's pervasiveness, the balance of this brief survey will examine other recent NEPA decisions which have implications for future federal agency actions.
I. The SUWA Decision.
It is not hard to understand why the Court chose to review this case. It raised the important question of when a plaintiff may seek mandatory relief under the APA against a federal agency to compel "action unlawfully withheld or unreasonably delayed," 5 U.S.C. § 706(1), which the Court had not previously addressed. The Court apparently found it especially irresistible because the Tenth Circuit had found that Section 706(1) allows courts to mandate broad programmatic changes, in this instance changes to BLM's management of millions of acres in Utah under statutory directives to balance numerous uses and objectives.
As the Court noted, BLM administers 23 million acres of public land in Utah, almost half the State. The controlling authority is the Federal Land Policy Management Act of 1976 (FLPMA), 43 U.S.C. §§ 1701 -1785, which, inter alia, directs the agency to inventory the lands and their resources and to develop land use plans for their use. Id. at §§ 1711, 1712. 2 Once the plans are prepared, FLPMA requires BLM to "manage the public lands...in accordance with the land use plans...." Id. at 1732(a). FLPMA also directs the Secretary of the Interior to identify, as part of the inventory, roadless areas of 5,000 acres or more that are suitable for recommendation to Congress as wilderness. Id. at § 1782(a). Accordingly, the Secretary has designated almost two million acres of the public lands in Utah as "wilderness study areas." Though Congress has not acted to designate them as wilderness areas, FLPMA requires that the Secretary "continue to manage such lands...so as not to impair the suitability of such areas for preservation as wilderness." Id at 1782(b). 3
The Tenth Circuit reviewed three claims. First, plaintiffs asserted that BLM was violating the FLPMA mandate to protect the wilderness character of wilderness study areas. Second, they claimed that the agency was failing to manage the public lands in accordance with the land use plans it had developed, as FLPMA also requires. And finally, they claimed that evidence of increased off-road vehicle (ORV) use on the lands triggered a BLM obligation under NEPA to prepare an environmental analysis on the effects of the increased ORV use. A split panel found that the APA's authority for courts to compel "agency action unlawfully withheld or unreasonably delayed," 5 U.S.C. § 706(1), allows a court to order an agency to act where it has a mandatory, nondiscretionary duty. On that premise, it found that the three BLM responsibilities identified by plaintiffs qualified. Southern Utah Wilderness Alliance v. Norton, 301 F.3d 1217 (10%gth%g Cir. 2002). The Supreme Court reversed in a unanimous decision.
A. Court's Concern with Intruding on BLM's Day-to-Day Land Management Operations
The Court reversed in part because it was obviously concerned with the implications of courts reviewing BLM's general land management functions, such as protecting wilderness character and implementing land use plans. It explained that BLM operates under mandates that are not easily given to judicial review. For example, FLPMA requires the agency to employ multiple use management of public lands resources which the Court described as 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." 124 S. Ct. at 2376. Indeed, FLPMA describes multiple use management as a broad, dynamic and highly discretionary balancing of a plethora of resource uses that draws heavily on agency expertise.
The term 'multiple use' means the management of the public lands and their various resource values so that they are utilized in the combination that will best meet the present and future needs of the American people; making the most judicious use of the land for some or all of these resources or related services over areas large enough to provide sufficient latitude for periodic adjustments in use to conform to changing needs and conditions; the use of some land for less than all of the resources; a combination of balanced and diverse resource uses that takes into account the long-term needs of future generations for renewable and nonrenewable resources, including, but not limited to, recreation, range, timber, minerals, watershed, wildlife and fish, and natural scenic, scientific and historical values; and harmonious and coordinated management of the various resources without permanent impairment of the productivity of the land and the quality of the environment with consideration being given to the relative values of the resources and not necessarily to the combination of uses that will give the greatest economic return or the greatest unit output.
43 U.S.C. § 1702(c). As if this were not enough, BLM must also observe the goal of "sustained yield", defined as maintaining a "high level of annual or regular periodic output of the various renewable resources of the public lands consistent with multiple use." Id. at § 1702(h). It must apply these principles in both developing its land use plans and managing the lands. Id. at §§ 1712(c), 1732(a).
Plaintiffs' interest is in protecting the wilderness values of wilderness study areas from degradation of ORV use. The Court pointed out BLM's FLPMA obligation to protect the wilderness value of the study areas to preserve Congress' option to designate them as Wilderness, and it explained that the agency relied on its land use plans to identify allowable uses of the areas. Indeed, protecting wilderness values of the study areas from adverse consequences of ORV use is one of BLM's many daunting balancing tasks. As the Court explained, approximately 42 million Americans participate in off-road travel each year, twice the number of participants twenty years ago, and sales of all-terrain vehicles have doubled in the past five years, reaching almost 900,000 in 2003. "Thus, BLM faces a classic land use dilemma of sharply inconsistent uses, in a context of scarce resources and congressional silence with respect to wilderness designation." 124 S. Ct. at 2377.
B. Court's Emphasis that APA Mandamus Relief is Available Only for Actions that Are Discrete and Required by Law
The Court reversed for sharply definable legal reasons as well. Plaintiffs were seeking relief under the APA's authorization for courts to grant mandatory relief under 5 U.S.C. § 706(1) (reviewing courts shall "compel agency action unlawfully withheld or unreasonably delayed"). The Court pointed out that the APA is a limited waiver of sovereign immunity and, with that, it scrutinized whether the authority to impose mandatory relief under Section 706(1) included actions plaintiffs sought to compel: land management that protects wilderness values and that is consistent with land use plans.
The Court began its analysis by emphasizing that the APA allows review of "agency action." Specifically, the Act requires that a plaintiff show that it is "adversely affected or aggrieved by an agency action." 5 U.S.C. § 702. Unless another statute provides a private right of action (and neither FLPMA nor NEPA do), the challenged action must be "final agency action," meaning that an action may not be subject to further administrative review...
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