Norton v. Southern Utah Wilderness Alliance

Norton v. Southern Utah Wilderness Alliance

542 U.S. 55 (2004)

JUSTICE SCALIA delivered the opinion of the Court.

In this case, we must decide whether the authority of a federal court under the Administrative Procedure Act (APA) to “compel agency action unlawfully withheld or unreasonably delayed,” 5 U.S.C. § 706(1), extends to the review of the United States Bureau of Land Management’s stewardship of public lands under certain statutory provisions [...]

I

Almost half the State of Utah, about 23 million acres, is federal land administered by the Bureau of Land Management (BLM), an agency within the Department of Interior. For nearly 30 years, BLM’s management of public lands has been governed by the Federal Land Policy and Management Act of 1976 (FLPMA), which “established a policy in favor of retaining public lands for multiple use management.” “Multiple use management” is a deceptively simple term that describes the enormously complicated task of striking a balance among the many competing uses to which land can be put, “including, but not limited to, recreation, range, timber, minerals, watershed, wildlife and fish, and [uses serving] natural scenic, scientific and historical values” [...]

Of course not all uses are compatible. Congress made the judgment that some lands should be set aside as wilderness at the expense of commercial and recreational uses including [designated wilderness areas that “shall [have] no commercial enterprise and no permanent road,” no motorized vehicles, and no manmade structures.] The designation of a wilderness area can be made only by Act of Congress, see 43 U.S.C. § 1782(b).

Pursuant to § 1782, the Secretary of the Interior (Secretary) has identified so-called “wilderness study areas” (WSAs), roadless lands of 5,000 acres or more that possess “wilderness characteristics,” as determined in the Secretary’s land inventory. As the name suggests, WSAs [...] have been subjected to further examination and public comment in order to evaluate their suitability for designation as wilderness. In 1991, out of 3.3 million acres in Utah that had been identified for study, 2 million were recommended as suitable for wilderness designation. This recommendation was forwarded to Congress, which has not yet acted upon it. Until Congress acts one way or the other, FLPMA provides that “the Secretary shall continue to manage such lands ... in a manner so as not to impair the suitability of such areas for preservation as wilderness.” This nonimpairment mandate applies to all WSAs identified under § 1782, including lands considered unsuitable by the Secretary” [...] 

Protection of wilderness has come into increasing conflict with another element of multiple use, recreational use of so-called off-road vehicles (ORVs), which include vehicles primarily designed for off-road use, such as lightweight, four-wheel “all-terrain vehicles,” and vehicles capable of such use, such as sport utility vehicles. According to the United States Forest Service’s most recent estimates, some 42 million Americans participate in off-road travel each year, more than double the number two decades ago. United States sales of all-terrain vehicles alone have roughly doubled in the past five years, reaching almost 900,000 in 2003. The use of ORVs on federal land has negative environmental consequences, including soil disruption and compaction, harassment of animals, and annoyance of wilderness lovers. Thus, BLM faces a classic land use dilemma of sharply inconsistent uses, in a context of scarce resources and congressional silence with respect to wilderness designation.

In 1999, respondents Southern Utah Wilderness Alliance and other organizations (collectively SUWA) filed this action in the United States District Court for Utah against petitioners BLM, its Director, and the Secretary [seeking] declaratory and injunctive relief for BLM’s failure to act to protect public lands in Utah from damage caused by ORV use [...] SUWA contended that it could sue to remedy these three failures to act pursuant to the APA's provision of a cause of action to “compel agency action unlawfully withheld or unreasonably delayed.” 5 U.S.C. § 706(1) [...]

The APA authorizes suit by “[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute.” 5 U.S.C. § 702. Where no other statute provides a private right of action, the “agency action” complained of must be “final agency action.” § 704 (emphasis added). “[A]gency action” is defined in § 551(13) to include “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.) The APA provides relief for a failure to act in § 706(1): “The reviewing court shall . . . compel agency action unlawfully withheld or unreasonably delayed.”

Sections 702, 704, and 706(1) all insist upon an “agency action,” either as the action complained of (in §§ 702 and 704) or as the action to be compelled (in § 706(1)). The definition of that term begins with a list of five categories of decisions made or outcomes implemented by an agency — "agency rule, order, license, sanction [or] relief." § 551(13). All of those categories involve circumscribed, discrete agency actions, as their definitions make clear: “an agency statement of . . . future effect designed to implement, interpret, or prescribe law or policy” (rule); “a final disposition . . . in a matter other than rule making” (order); a “permit . . . or other form of permission” (license); a “prohibition . . . or . . . taking [of] other compulsory or restrictive action” (sanction); or a “grant of money, assistance, license, authority,” etc., or “recognition of a claim, right, immunity,” etc., or “taking of other action on the application or petition of, and beneficial to, a person” (relief). §§ 551(4), (6), (8), (10), (11).

The terms following those five categories of agency action are not defined in the APA: “or the equivalent or denial thereof, or failure to act.” § 551(13). But 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).

The final term in the definition, “failure to act,” is in our view properly understood as a failure to take an 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. A “failure to act” is not the same thing as a “denial.” The latter is the agency’s act of saying no to a request; the former is simply the omission of an action without formally rejecting a request — for example, the failure to promulgate a rule or take some decision by a statutory deadline. 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.

A second point central to the analysis of the present case is that the only agency action that can be compelled under the APA is action legally required. This limitation appears in § 706(1)’s authorization for courts to “compel agency action unlawfully withheld.” (Emphasis added.) In this regard the APA carried forward the traditional practice prior to its passage, when judicial review was achieved through use of the so-called prerogative writs — principally writs of mandamus under the All Writs Act. The mandamus remedy was normally limited to enforcement of “a specific, unequivocal command,” the ordering of a “‘precise, definite act . . . about which [an official] had no discretion whatever,’” As described in 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.” 

Thus, a claim under § 706(1) can proceed only where a plaintiff asserts that an agency failed to take a discrete agency action that it is required to take. These limitations rule out several kinds of challenges. The limitation to discrete agency action precludes the kind of broad programmatic attack we rejected in Lujan v. National Wildlife Federation, 497 U. S. 871 (1990). There we considered a challenge to BLM’s land withdrawal review program, couched as unlawful agency “action” that the plaintiffs wished to have “set aside” under § 706(2). We concluded that the program was not an “agency action”:

“[R]espondent cannot seek wholesale improvement of this program by court decree, rather than in the offices of the Department or the halls of Congress, where programmatic improvements are normally made. Under the terms of the APA, respondent must direct its attack against some particular `agency action' that causes it harm.”

The plaintiffs in National Wildlife Federation would have fared no better if they had characterized the agency’s alleged “failure to revise land use plans in proper fashion” and “failure to consider multiple use,” in terms of “agency action unlawfully withheld” under § 706(1), rather than agency action “not in accordance with law” under § 706(2).

The limitation to required agency action rules out judicial direction of even discrete agency action that is not demanded by law (which includes, of course, agency regulations that have the force of law). Thus, when an agency is compelled by law to act within a certain time period, but the manner of its action is left to the agency’s discretion, a court can compel the agency to act, but has no power to specify what the action must be. For example, 47 U.S.C. § 251(d)(1), which required the Federal Communications Commission “to establish regulations to implement” interconnection requirements “[w]ithin 6 months” of the date of enactment of the Telecommunications Act of 1996, would have supported a judicial decree under the APA requiring the prompt issuance of regulations, but not a judicial decree setting forth the content of those regulations.

With these principles in mind, we turn to SUWA’s [...] claim, that by permitting ORV use in certain WSAs, BLM violated its mandate to “continue to manage [WSAs] . . . in a manner so as not to impair the suitability of such areas for preservation as wilderness,” 43 U.S.C. § 1782(c). SUWA relies not only upon § 1782(c) but also upon a provision of BLM’s Interim Management Policy for Lands Under Wilderness Review, which interprets the nonimpairment mandate to require BLM to manage WSAs so as to prevent them from being “degraded so far, compared with the area’s values for other purposes, as to significantly constrain the Congress’s prerogative to either designate [it] as wilderness or release it for other uses.”

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. It assuredly does not mandate, with the clarity necessary to support judicial action under § 706(1), the total exclusion of ORV use.

SUWA argues that § 1782 does contain a categorical imperative, namely, the command to comply with the nonimpairment mandate. It contends that a federal court could simply enter a general order compelling compliance with that mandate, without suggesting any particular manner of compliance. It relies upon the language from the Attorney General’s Manual quoted earlier, that a court can “take action upon a matter, without directing how [the agency] shall act,” and upon language in a case cited by the Manual noting that “mandamus will lie . . . even though the act required involves the exercise of judgment and discretion.” The action referred to in these excerpts, however, is discrete agency action, as we have discussed above. General deficiencies in compliance [...] lack the specificity requisite for agency action.

The principal purpose of the APA limitations we have discussed — and of the traditional limitations upon mandamus from which they were derived — 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. If courts were empowered to enter general orders compelling compliance with broad statutory mandates, they would necessarily be empowered, as well, to determine whether compliance was achieved — which would mean that it would ultimately become the task of the supervising court, rather than the agency, to work out compliance with the broad statutory mandate, injecting the judge into day-to-day agency management. To take just a few examples from federal resources management, a plaintiff might allege that the Secretary had failed to “manage wild free-roaming horses and burros in a manner that is designed to achieve and maintain a thriving natural ecological balance,” or to “manage the [New Orleans Jazz National] [H]istorical [P]ark in such a manner as will preserve and perpetuate knowledge and understanding of the history of jazz,” or to “manage the [Steens Mountain] Cooperative Management and Protection Area for the benefit of present and future generations.” 16 U.S.C. §§ 1333(a), 410bbb-2(a)(1), 460nnn-12(b). 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 [...]

The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.