The Securities and Exchange Commission

[thepennyking]

Federal Court Authority to Compel Agency Action . Public Lands. Section 706(1) of the Administrative Procedure Act ("APA") authorizes judicial review "to compel agency action unlawfully withheld or unreasonably delayed." 5 U.S.C. § 706(1). The Supreme Court granted certiorari in Norton v. Southern Utah Wilderness Alliance, No. 03-101, to determine whether this provision allows courts to review the adequacy of an agency’s day-to-day management of public lands under statutory standards and the agency’s own land use plans.

The plaintiffs, a group of environmental organizations, sued the Bureau of Land Management under Section 706(1), alleging that the Bureau had violated the Federal Land Policy and Management Act ("FLPMA"), 43 U.S.C. § 1701 et seq., and the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321 et seq., by failing properly to regulate the use of off-road vehicles in "Wilderness Study Areas." Under the FLPMA, the Bureau may classify public lands as Wilderness Study Areas, which Congress later may designate for wilderness preservation; until Congress affirmatively declares or rejects a Study Area as protected wilderness, the Bureau must manage the area "so as not to impair [its] suitability * * * for preservation." 43 U.S.C. § 1782(c). The environmental groups sought an injunction compelling the Bureau to implement provisions of its land use plans relating to the use of off-road vehicles in Wilderness Study Areas and to take a "hard look" under the NEPA at whether the agency should prepare supplemental environmental impact statements for areas affected by increased use of such vehicles.

The district court granted the Bureau’s motion to dismiss for lack of subject matter jurisdiction, reasoning that, as long as an agency is taking some steps toward fulfilling its mandatory, nondiscretionary duties, its actions are not subject to judicial review under Section 706(1). Southern Utah Wilderness Alliance v. Babbitt, No. 99-CV-852, 2000 WL 33914094 (D. Utah Dec. 22, 2000). The court also held that Section 706(1) does not provide a basis for challenging the Bureau’s alleged failure to implement provisions of its land use plans, and that the Bureau does not have a clear duty under the NEPA to consider whether to supplement its prior environmental impact statements.

A divided panel of the Tenth Circuit reversed and remanded the case for consideration on the merits, holding that the environmental groups could challenge the Bureau’s management of the Wilderness Study Areas under Section 706(1). Southern Utah Wilderness Alliance v. Norton, 301 F.3d 1217 (10th Cir. 2002). In the court’s view, the Bureau has a mandatory, nondiscretionary duty under the FLPMA not to impair the suitability of those regions for designation as protected wilderness . a duty that is therefore enforceable under Section 706(1). Id. at 1229, 1233. The Tenth Circuit also concluded that the district court had subject matter jurisdiction to consider claims that the Bureau had violated its own land-use plans (id. at 1235) and that the district court had erred in holding that the environmental groups had failed to state a valid claim under the NEPA (id. at 1236-40). Judge McKay dissented in part, opining that Section 706(1) should not become a jurisdictional vehicle for programmatic attacks on day-to-day agency operations. Id. at 1242-43. In the dissent’s view, that section authorizes challenges to true administrative inaction, but does not allow judicial review of agency efforts that allegedly do not satisfy completely the agency’s statutory obligations. Id. at 1243.

This case most concretely affects businesses having interests relating to the government’s management of public lands. Because the Supreme Court may clarify the circumstances under which any agency may be judicially compelled to comply with statutory obligations in the conduct of its day-to-day operations, however, this case also may affect many other businesses subject to ongoing regulatory oversight.