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Southern Utah Wilderness Alliance v. Norton

ELR Citation: 33 ELR 20025
Nos. No. 01-4009, 301 F.3d 1217/(10th Cir., 08/29/2002)

The court reverses and remands a district court decision holding that it lacked subject matter jurisdiction to review an environmental group's claims that the Bureau of Land Management (BLM) violated the Federal Land Policy and Management Act (FLPMA) and the National Environmental Policy Act (NEPA) by not properly managing off-road vehicle (ORV) use on federal lands classified as wilderness study areas (WSAs). The court first holds that the BLM has a nondiscretionary, mandatory duty under FLPMA to prevent the impairment of WSAs. Although the BLM correctly argued that it has considerable discretion to determine what constitutes impairment and what action it should take, those arguments go to the merits of the present suit and to the possible remedy if impairment is found, not to whether federal courts possess subject matter jurisdiction to order the BLM to comply with FLPMA's nonimpairment mandate. The court next holds that while courts must give deference to the BLM's interpretation of FLPMA's nonimpairment mandate, the nonimpairment obligation itself is not wholly discretionary. The court further holds that it may compel agency action under the Administrative Procedure Act (APA). The BLM argued that the APA only applies to final agency actions. However, the failure of an agency to carry out its mandatory, nondiscretionary duty by an established deadline or within a reasonable time period may be considered final agency action, even if the agency might have hypothetically carried out its duty through some non-final action. The court goes on to hold that the fact that the BLM has taken some action to address impairing ORV activity is insufficient, standing alone, to remove the case from review. Similarly, a colorable claim of failing to adhere to land use plan duties provides the court with subject matter jurisdiction to consider whether the BLM's failure to act warrants relief under the APA. The BLM's mandatory, nondiscretionary duty to carry out the activities described in the land use plans does not arise only when the BLM undertakes a future, site-specific project. The court finally holds that the BLM should be required to take a hard look at the increased ORV use and its effect on the WSAs regardless of its plans to conduct NEPA analysis in the future.

Counsel for Plaintiff
James S. Angell
Earthjustice Legal Defense Fund
1631 Glenarm Pl., Ste. 300, Denver CO 80202
(303) 623-9466

Counsel for Defendant
Susan Pacholski
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000