Compelling Federal Agency Action: U.S. Supreme Court Considers Effort to Force Bureau of Land Management to Take Action

June 14, 2004

Summary
On June 14, 2004, the United States Supreme Court decided Norton v. Southern Utah Wilderness Alliance, Supreme Court Cause No. 03-101 (June 14, 2004) (“SUWA”), where the Court considered the extent to which private parties can sue federal agencies to “compel agency action unlawfully withheld or unreasonably delayed.” Slip Op. 1, quoting 5 U.S.C. § 706(1). In an opinion authored by Associate Justice Antonin Scalia, a unanimous Court held that “mandamus” actions – actions seeking to compel a federal agency to act – are narrowly limited, particularly in the context of Bureau of Land Management (“BLM”) obligations on the federal public lands. The opinion provides strong authority for the federal government to use in defending claims seeking to compel certain types of federal agency action. The case has lessons for those involved in the use, management, and development of public lands, as well as for those who deal with federal administrative agencies.

On June 14, 2004, the United States Supreme Court decided Norton v. Southern Utah Wilderness Alliance, Supreme Court Cause No. 03-101 (June 14, 2004) (“SUWA”), where the Court considered the extent to which private parties can sue federal agencies to “compel agency action unlawfully withheld or unreasonably delayed.” Slip Op. 1, quoting

5 U.S.C. § 706(1). In an opinion authored by Associate Justice Antonin Scalia, a unanimous Court held that “mandamus” actions – actions seeking to compel a federal agency to act – are narrowly limited, particularly in the context of Bureau of Land Management (“BLM”) obligations on the federal public lands. The opinion provides strong authority for the federal government to use in defending claims seeking to compel certain types of federal agency action. The case has lessons for those involved in the use, management, and development of public lands, as well as for those who deal with federal administrative agencies.

In SUWA, the Southern Utah Wilderness Alliance (“Alliance”) filed suit against the BLM under the federal Administrative Procedure Act, alleging that by allowing degradation of prospective wilderness lands by Off-Road Vehicles (“ORVs”) BLM had violated its obligation under the Federal Land Policy and Management Act (“FLPMA”) to “continue to manage [Wilderness Study Areas (“WSAs”)] . . . in a manner so as not to impair the suitability of such areas for preservation as wilderness.” 43 U.S.C. § 1782(c). In addition, SUWA claimed that the BLM had failed to follow and implement its own land use plans applicable to the areas in Utah under scrutiny. A third claim sought to compel certain National Environmental Policy Act action as well, although this was not a central part of the Court’s discussion. For each of the three counts, SUWA sought to compel the BLM to act using 5 U.S.C. § 706(1), the “mandamus” provision of the federal Administrative Procedure Act (“APA”).

The federal District Court dismissed each of the three claims SUWA presented. On appeal to the United States Court of Appeals for the Tenth Circuit, a 2-1 panel decision reversed the District Court and held that the BLM’s duty not to impair the suitability of WSAs was a mandatory, non-discretionary duty remediable under 5 U.S.C. § 706(1), and that BLM’s obligations under its land use plans (“Resource Management Plans” or “RMPs”) also were subject to mandamus actions. 301 F.3d 1217 (10th Cir. 2002). The Supreme Court granted review, and reversed the Tenth Circuit.

The Court began its analysis by characterizing the three claims as “assertions that BLM failed to take action with respect to ORV use that it was required to take.” Slip Op. at 5. Setting the stage for the Court’s analysis, Justice Scalia stated, “[f]ailures to act are sometimes remediable under the APA, but not always. We begin by considering what limits the APA places upon judicial review of agency inaction.” Id.

Focusing on the scope of the APA generally, Justice Scalia discussed that the APA permits suits by persons “suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute.” Id., quoting 5 U.S.C. § 702. For the Court, Justice Scalia then considered what “agency action” is for APA purposes. 5 U.S.C. § 551(13) defines “agency action” to mean “the whole or a part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act.” (Emphasis added.) Section 706(1) provides that a “reviewing court shall . . . compel agency action unlawfully withheld or unreasonably delayed.”

Justice Scalia then parsed specific language of the APA, including the definition of the term “agency action.” “Sections 702, 704, and 706(1) all insist upon ‘agency action,’ either as the action to be complained of (in §§ 702 and 704) or as the action to be compelled (in § 706(1)).” Slip Op. at 5. Justice Scalia first examined the five categories of “agency action” included in the definition of that term (quoted above), and characterized them as “circumscribed, discrete actions.” Id. at 6. Importantly, Justice Scalia then discussed the phrase “or the equivalent or denial thereof, or failure to act.” With respect to the phrase “the equivalent or denial thereof,” Justice Scalia said: “An ‘equivalent . . . thereof’ must also be discrete (or it would not be equivalent), and a ‘denial thereof’ must be the denial of a discrete listed action (and perhaps denial of a discrete equivalent).” Id. Justice Scalia continued: “The final term in the definition, ‘failure to act,’ is in our view properly understood as a failure to take agency action – that is, a failure to take one of the agency actions (including their equivalents) earlier defined in §551(13). Moreover, even without this equation of “act” with “agency action” the interpretive canon of ejusdem generis would attribute to the last item (“failure to act”) the same characteristic of discreteness shared by all the preceding items. . . . The important point is that a ‘failure to act’ is properly understood to be limited, as are the other items in §551(13), to a discrete action.” Slip Op. at 6-7 (emphasis in original).

Justice Scalia then proceeded to a second APA-specific point, that he considered “central to the analysis of the present case.” Id. at 7. Under the APA, according to the Court, “the only agency action that can be compelled…is action legally required.” Id. (emphasis in original). The Court embraced the following statement from the Attorney General’s Manual on the APA, “a document whose reasoning we have often found persuasive, . . . §706(1) empowers a court only to compel an agency ‘to perform a ministerial or non-discretionary act,’ or ‘to take action upon a matter, without directing how it shall act.’” Slip Op. at 7, quoting Attorney General’s Manual on the Administrative Procedure Act, 108 (1947)(emphasis added by the Court). Therefore, according to the Court, a mandamus action under Section 706(1) will lie “only where a plaintiff asserts that an agency failed to take a discrete agency action that it is required to take.” Id. at 8 (emphasis in original).

With these statutory construction “principles in mind,” the Court then turned to a specific analysis of SUWA’s claims under FLPMA and NEPA. Perhaps not surprising, given the points addressed above, the Court reasoned that the FLPMA’s mandate in Section 1782(c) to “manage [WSAs] . . . in a manner so as not to impair the suitability of such areas for preservation as wilderness” is not the type of agency mandate that would support an action under Section 706(1) seeking the total exclusion of ORVs. Slip Op. at 9. The Court did acknowledge that Section 1782(c) “is mandatory as to the object to be achieved, but it leaves BLM a great deal of discretion in deciding how to achieve it.” Id. The Court rejected SUWA’s contention that a court could enter a “general order compelling compliance with [Section 1782(c)’s] mandate, without suggesting any particular manner of compliance [by the BLM].” Id. at 10.

The Court reasoned that the “principle purpose of the APA limitations . . . discussed . . . is to protect agencies from undue judicial interference with their lawful discretion, and to avoid judicial entanglement in abstract policy disagreements which courts lack both expertise and information to resolve.” Id. “The prospect of pervasive oversight by federal courts over the manner and pace of agency compliance with such congressional directives is not contemplated by the APA.” Id. at 11. Because the management directive provided in Section 1782(c) does not fall within the strictures of “agency action” as defined in Section 551(13), the Court concluded that the mandate there does not support a mandamus claim seeking that the BLM take action to exclude ORVs.

The Court then turned to consideration of SUWA’s claim that the BLM must follow the terms of its own Resource Management Plan or RMP. FLPMA provides that “[t]he Secretary shall manage the public lands…in accordance with the land use plans . . . .” 43 U.S.C. § 1732(a); see also 43 C.F.R. § 1610.5-3(a)(2003). SUWA argued that the BLM had violated certain obligations described in its RMPs. For example, SUWA contended that the BLM did not comply with a provision in one plan that stated a specified area “will be monitored and closed if warranted.” See Slip Op. at 12. The record showed that the BLM had monitored ORV use in the area on an informal basis and that, more recently, the BLM had initiated a monitoring program.

The Court’s statements concerning this argument are worth full treatment:

 

The statutory directive that BLM manage “in accordance with” land use plans, and the regulatory requirement that authorizations and actions “conform to” those plans, prevent BLM from taking actions inconsistent with the provisions of a land use plan. Unless and until the plan is amended, such actions can be set aside as contrary to law pursuant to 5 U.S.C. § 706(2). The claim presently under discussion, however, would have us go further, and conclude that a statement in a plan that BLM “will” take this, that, or the other action, is a binding commitment that can be compelled under § 706(1). In our view it is not – at least absent clear indication of binding commitment in the terms of the plan.

Slip Op. at 13. Thus, while a mandamus action may not lie (in all cases) where BLM has failed to follow an RMP, judicial review remains available to set aside action that is inconsistent with that RMP. Generally speaking, the Court determined that many elements of RMPs are only a preliminary step in making future management decisions affecting the public lands. “[FLPMA] and [its] regulations confirm that a land use plan is not ordinarily the medium for affirmative decisions that implement the agency’s [projected uses].” Id. To support this view, the Court cited 43 U.S.C. § 1712(e), which provides that “[t]he Secretary may issue management decisions to implement land use plans.” According to the Court, those management decisions “are distinct from the plan itself.” Slip Op. at 14.

Moreover, Justice Scalia marshaled BLM land use planning regulation: “Picking up on the same theme, the regulation defining a land use plan declares that a plan ‘is not a final implementation decision on actions which require further specific plans, process steps, or decisions under specific provisions of laws and regulations.’” Id., quoting 43 C.F.R. § 1601.0-5(k)(2003). Later, relying on Department of the Interior regulations and Interior Board of Land Appeals, the Court reasoned that RMPs generally are policy statements, not implementation decisions. Id. at 14. “[A] land use plan is generally a statement of priorities; it guides and constrains actions, but does not (at least in the usual case) prescribe them.” Id. at 15. Likewise, “[a] statement by BLM about what it plans to do, at some point, provided it has the funds and there are not more pressing priorities, cannot be plucked out of context and made a basis for suit under § 706(1). Id. The Court did allow for the potential, however, that an RMP includes duties the BLM is already obligated to perform or includes magic language (the Court did not say what it would be) that “itself creates a commitment binding on the agency.” Id. Stating that an agency “will” perform some act, however, is not enough.

SUWA has important ramifications for actions seeking to compel agency action where the agency has failed to act. In this respect, particularly for federal land management agencies, the opinion provides powerful arguments for agencies resisting mandamus actions based on land management plans. However, the Court was careful, as discussed, not to limit other avenues of judicial review of agency action.

For questions or comments regarding this article, please contact Walter Stern or Stan Harris.