Southern Utah Wilderness Alliance v. Norton
Under the Federal Land Policy and Management Act (FLPMA), the Secretary of the Interior must designate appropriate federal lands under the management of the Bureau of Land Management (BLM) as Wilderness Study Areas (WSAs). After study, the President then recommends how each WSA should be permanently classified, but only Congress can make the determination to designate land as wilderness. Pending final Congressional action, WSAs must "continue to [be] manage[d] in a manner so as not to impair the suitability of such areas for preservation as wilderness." This case involves whether the Secretary can be sued under the APA for "failure to act" when outside organizations believe that BLM is not taking sufficient actions under this statutory "non impairment" obligation.
SUWA and other organizations object to the amount of off-road vehicle (ORV) use in nine specific WSAs. SUWA claims that current levels of ORV use is impairing the suitability of these WSAs so that they will no longer be appropriate for future Congressional wilderness designation, and that BLM's failure to ensure non impairment violates a statutory duty, thus constituting the violation of a mandatory, non-discretionary duty of the sort actionable under Section 706(1) of the APA, which gives courts authority to compel "agency action unlawfully withheld or unreasonably delayed." SUWA acknowledges that it cannot compel BLM to act in any specific way - BLM has discretion to comply with the non impairment requirement in a variety of ways - but that it can sue to compel BLM to act in some way of its choosing that will meet BLM's non impairment obligation. BLM argues that all judicial review under the APA is limited to final agency action, or to compel final agency action that has been withheld, and that the day-to-day operations of BLM land management that SUWA is attempting to challenge are outside the concept of final agency action. BLM claims that suits under 706(1) are reserved for actions to compel a discrete final action, like issuing a regulation. To permit a 706(1) challenge to day-to-day management would inevitably require the courts to judge the sufficiency of discretionary agency action to comply with general statutory standards. That is beyond the scope of 706(1), the BLM argues. In contrast, the Tenth Circuit found this reading of 706(1) to be too cramped. "Where, as here," the court wrote, "an agency has an obligation to carry out a mandatory, non-discretionary duty and either fails to meet an established deadline or unreasonably delays in carrying out the action, the failure to carry out that duty is itself 'final agency action.'"
Question Presented
Whether the authority of the federal courts under the Administrative Procedure Act, 5 U.S.C. ยง 706(1), to "compel agency action unlawfully withheld or unreasonably delayed," extends to review of
the adequacy of an agency's ongoing management of public lands under general statutory standards and its own land use plans.
