Montana Wilderness Association, Inc., et al. v. United States Forest Service, et al.

The United States Forest Service ("Forest Service") and
Intervenors, Blue Ribbon Coalition, Inc., et al., appeal the district
court's order (1) determining that it had subject matter
jurisdiction over this action under the Administrative Procedures
Act ("APA"), and (2) granting the Montana Wilderness
Association ("Wilderness Association") summary judgment.
We have jurisdiction under 28 U.S.C. § 1291, and we affirm
in part, reverse in part, and remand for further proceedings.

BACKGROUND

In 1977, Congress passed the Montana Wilderness Study
Act ("the Act") to "provide for the study of certain lands to
determine their suitability for designation as wilderness." Pub.
L. No. 95-150, 91 Stat. 1243 (1977). The Act mandates that
the Secretary of Agriculture "shall, until Congress determines
otherwise," administer specific Wilderness Study Areas
("Study Areas") "to maintain their presently existing wilderness
character and potential for inclusion in the National Wilderness
Preservation System" ("Wilderness System"). Id.
(emphasis added). The Secretary of Agriculture administers
the areas at issue in this case through the Forest Service. Congress
intended that, within seven years after the Act was
passed, the President would make a recommendation to Congress
on whether the Study Areas should be included in the
Wilderness System. Twenty-five years later, no final decision
has been made to include the Study Areas at issue in this case
in the Wilderness System (or to exclude them from the system).
Consequently, the Forest Service has been managing the
Study Areas under Congress' interim arrangement for more
years than intended.

The Wilderness Association claims the Forest Service violated
the Act by failing to maintain seven Study Areas' wilderness character and potential for wilderness designation
when it "allow[ed], encourag[ed], and/or fail[ed] to act to prevent
motorized vehicle use of [the Study Areas] beyond what
existed in 1977." Specifically, the Wilderness Association's
complaint alleges in Count I that the Forest Service's "actions
and inactions" increased the type and amount of motorized
activity in all Study Areas, resulting in diminished wilderness
character and potential for inclusion in the Wilderness System
as it existed in 1977. Count III alleges that the Forest Service's
plastic pipe installation, new bridge construction, and
reconstruction projects upgrading trails for four-wheel offroad
vehicle use in the Hyalite-Porcupine-Buffalo Horn Study
Area violate the Act. Count VI alleges that the Forest Service's
action in the West Pioneers Study Area - dynamiting
boulders on trails to allow use of four-wheelers, adding gravel
to trails, and constructing a new trail for motorized use - has
led to an increase in the type and amount of off-road vehicle
use, and diminished the area's wilderness characteristics and
suitability for inclusion in the Wilderness System.

On cross motions for summary judgment, the district court
granted summary judgment for the Wilderness Association on
all three counts.1 The district court determined it had jurisdiction
under the APA and concluded that the Forest Service violated
the Act by failing "to consider whether, how, and to
what extent its management decisions have impacted the wilderness
character of the areas as they existed in 1977," and by
failing "to develop discernible criteria for assessing and maintaining
the wilderness character of non-motorized use areas
while conducting trail maintenance and improvement in areas
of motorized use." The district court issued a declaratory
judgment and an injunction requiring the Forest Service "to
comply with the [Act] and to take reasonable steps to restore
the wilderness character of each [Study Area] if its wilderness
character has been diminished since 1977." The Forest Service
and Intervenors timely appealed, arguing that the district court lacked subject matter jurisdiction under the APA and
should not have granted summary judgment for the Wilderness
Association.

I Section 706(2) Of The APA

[1] Section 706(2) of the APA authorizes courts to "hold
unlawful and set aside agency action, findings, and conclusions
found to be . . . arbitrary, capricious, an abuse of discretion,
or otherwise not in accordance with law" or "short of
statutory right." 5 U.S.C. §§ 706(2)(A), (C). To establish subject
matter jurisdiction under this section, the Wilderness
Association must demonstrate that the Forest Service's maintenance
activities constitute final agency action. Ecology Ctr.,
Inc. v. U.S. Forest Serv., 192 F.3d 922, 925 (9th Cir. 1999).
The district court identified the Forest Service's trail maintenance
and improvement work alleged in Counts III and VI as
the final "agency action" subject to review.2

The Forest Service argues that this "routine maintenance
work" is not final agency action. We agree. Two conditions
must be met for agency action to be considered final
under the APA. Id. at 925. First, "the action should mark the
consummation of the agency's decision making process; and
[second], the action should be one by which rights or obligations
have been determined or from which legal consequences
flow." Id. (citing Bennett v. Spear, 520 U.S. 154, 177 (1997)).

Trail maintenance does not "mark the consummation of
the [Forest Service's] decision making process." Bennett, 520
U.S. at 177. The Forest Service's maintenance activities
implement its travel management and forest plans adopted for
the Study Areas. The House Report for the Act states,
"[n]othing in the [the Act] will prohibit the use of off-road
vehicles, unless the normal Forest Service planning process
and travel planning process, which applies to all national forest
lands, determines off-road vehicle use to be inappropriate
in a given area." H.R. Rep. No. 95-620, at 159 (1977)
(emphasis added). This legislative history suggests that Congress
intended forest and travel management plans to be the
consummation of the decision making process with regard to
trails allowing off-road vehicle access. Thus, the maintenance
of trails designated by those plans is merely an interim aspect
of the planning process, not the consummation of it.

In addition, the Forest Service's maintenance of trails
does not fit into any of the statutorily defined categories for
agency action. See Lujan v. Nat'l Wildlife Fed'n, 497 U.S.
871, 899 (1990) (stating the plaintiff "cannot demand a general
judicial review of the BLM's day-to-day operations").
"Agency action" is defined to include "the whole or part of
an agency rule, order, license, sanction, relief, or the equivalent
or denial thereof, or failure to act." 5 U.S.C. § 551(13).
Jurisdiction under section 706(2) is inappropriate here
because the Wilderness Association failed to identify any
final "agency action" as defined by the APA. Accordingly,
the district court did not have subject matter jurisdiction under the APA to grant summary judgment on Counts III and VI,
and we reverse that portion of the district court's order.3

II Section 706(1) Of The APA

Section 706(1) of the APA authorizes judicial review to
"compel agency action unlawfully withheld or unreasonably
delayed." 5 U.S.C. § 706(1). Judicial review is appropriate if
the Wilderness Association makes a showing of "agency
recalcitrance . . . in the face of clear statutory duty or . . . of
such a magnitude that it amounts to an abdication of statutory
responsibility." ONRC Action v. Bureau of Land Mgmt.
("BLM"), 150 F.3d 1132, 1137 (9th Cir. 1998) (quoting Public
Citizen Health Research Group v. Comm'r, Food & Drug
Admin., 740 F.2d 21, 32 (D.C. Cir. 1984)).

The Forest Service argues that its duties under the act are
discretionary and no clear statutory duty exists to authorize
review under section 706(1). The Forest Service relies on this
court's decision in ONRC Action for support. 150 F.3d 1132.
The plaintiffs in ONRC Action alleged that the BLM's refusal
to impose a moratorium on certain actions pending completion
of an Environmental Impact Statement "would violate the
mandates of [the National Environmental Policy Act
("NEPA")], requiring preservation of alternatives during the
EIS process." 150 F.3d at 1134-35. They alleged also a violation
of the Federal Land Management Policy Act
("FLMPA"), requiring revision of land use plans when "appropriate."
Id. at 1135, 1139 (quoting 43 U.S.C. § 1701). On
the FLMPA claim, we explained that the FLMPA and its
implementing regulations set forth policy statements and general
guidance, and allow for revision of land use plans without
a schedule mandating when plans must be revised, but that
neither the FLMPA nor its regulations set forth a clear statutory mandate. Id. at 1139-40. We characterized the plaintiffs'
challenge as "one seeking to compel compliance with NEPA
and FLMPA" and determined that the action was not subject
to review under section 706(1) because the BLM did not have
a clear duty to impose the requested moratorium under either
NEPA or the FLMPA. Id. at 1137-38, 1140.

Here, however, the Act does more than provide a mere
policy statement or general guidance; it establishes a management
directive requiring the Forest Service to administer the
Study Areas to "maintain" wilderness character and potential
for inclusion in the Wilderness System. Unlike the requested
moratorium in ONRC Action, the Forest Service's duty to
maintain wilderness character and potential is a nondiscretionary,
mandatory duty that it may be compelled to carry out
under section 706(1).

The Forest Service argues that even if the Act provides
a specific, mandatory duty, the Wilderness Association has
not alleged facts demonstrating the Forest Service's complete
failure to act, and that review is permitted under section
706(1) "only where there has been a genuine failure to act."
Ecology Ctr., 192 F.3d at 926. In Ecology Center, the plaintiffs
claimed that the Forest Service had not complied with
monitoring duties imposed by NEPA and its implementing
regulations. Id. at 923. This court declined to find a "failure
to act" because the record demonstrated "that the Forest Service
performed extensive monitoring and provided detailed
reports recounting its observations," even though it "failed to
conduct its duty in strict conformance with" regulations. Id.
at 926. In Ecology Center, the duty was simply to monitor and
the record demonstrated that the Forest Service had performed
several actions to comply with this duty. Here, the duty is to
maintain a specified goal, i.e., wilderness character and potential
for inclusion in the Wilderness System, and the record
does not demonstrate that the Forest Service performed its
obligations in an extensive and detailed manner as it did in
Ecology Center. While the Forest Service recited the requirements of the Act in some of its decisions, those decisions did
not assess whether wilderness character and potential had
actually been maintained in the Study Areas. The simple fact
that the Forest Service has taken some action to address the
Act is not sufficient to remove this case from section 706(1)
review. We conclude therefore that the district court did have
subject matter jurisdiction to hear this claim.

However, the district court articulated the "clear statutory
duty" in this case as the Forest Service's duty to "consider the
impact of its decisions on the nature, quality, and scope of the
[Study Areas'] wilderness character as it existed in 1977."
(Emphasis added). We respectfully disagree. The Forest Service's
statutory duty under the Act is more specific. The Forest
Service's failure to consider the impact of its decisions on
wilderness character and potential may be relevant to its duty
to maintain the wilderness character and potential, but a simple
failure to consider without more is not enough to violate
the duty if the area has been "administered so as to maintain
[its] presently existing wilderness character and potential for
inclusion" in the Wilderness System.

The Forest Service presented sufficient evidence to support
its claim that it has administered the Study Areas so as
to maintain wilderness character and potential, and the Wilderness
Association has submitted evidence indicating the
opposite. Thus, the record reveals a genuine issue of material
fact as to whether the Forest Service has discharged its duty
to administer the Study Areas so as to maintain their wilderness
character and potential for inclusion in the Wilderness
System. Accordingly, we reverse the district court's grant of
summary judgment, vacate the injunction, and remand for
trial on this issue.

* * *

Click the case caption above for the full text of the Court's opinion.

We conclude that the district court has subject matter jurisdiction
over the claims in Count I under section 706(1) of the APA. However, because genuine issues of material fact exist
regarding whether the Forest Service met its duty to administer
the Study Areas to maintain wilderness character and
potential for inclusion in the Wilderness System, we reverse
the district court’s grant of summary judgment on Count I and
remand for trial.

In addition, we reverse the district court’s grant of summary
judgment on the agency action alleged in Counts III and
VI because the district court lacked subject matter jurisdiction
under section 706(2) of the APA. To the extent the Wilderness
Association’s claims in Counts III and VI were based on
the Forest Service’s alleged inaction, the district court has
jurisdiction under section 706(1) of the APA, but genuine
issues of material fact exist precluding summary judgment;
accordingly, we also remand for trial on the agency inaction
issue in Counts III and VI. Because we reverse the district
court’s grant of summary judgment on all counts, we vacate
the injunction issued by the district court.

AFFIRMED in part, REVERSED in part, and
REMANDED for trial.

Unknown

Unknown

None