Norton v. Southern Utah Wilderness Alliance – Oral Argument – March 29, 2004

Media for Norton v. Southern Utah Wilderness Alliance

Audio Transcription for Opinion Announcement – June 14, 2004 in Norton v. Southern Utah Wilderness Alliance

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William H. Rehnquist:

We’ll hear argument now in No. 03-101, Gale Norton v. Southern Utah Wilderness Alliance.

Edwin S. Kneedler:

Mr. Chief Justice, and may it please the Court:

The court of appeals held that respondents could bring this suit under the Administrative Procedure Act to challenge the Bureau of Land Management’s ongoing management of vast tracts of public land in Utah divorced from any specifically identifiable agency action that BLM had taken or that BLM was obligated to take but had not.

William H. Rehnquist:

Mr. Kneedler.

Edwin S. Kneedler:

The court of appeals relied on section 706(1) of the APA which authorizes a court to compel agency action unlawfully withheld or unreasonably delayed.

The court of appeals decision is contrary to the text of 706(1) which is limited to compelling agency action, not ongoing agency conduct.

It is contrary to the roots of 706(1) in mandamus, which has historically been limited to the performance… compelling the performance of what this Court termed in its seminal Kendall decision precise and definite acts.

It is contrary to the APA’s generally applicable limitation of judicial review to final agency action, not the sort of evaluation and planning activities at issue here.

Anthony M. Kennedy:

Well, can… can we talk about that for a minute?

Certainly an action can be discrete and be compellable under old mandamus rules without being final agency action in the narrow… in the narrow sense.

Let’s assume a… a requirement under… under the statute that the agency promulgate its regulations by a certain date.

Okay?

Now, I… I’m… I’m not sure that that would constitute a failure… the… let’s say these regulations are… are general plans of the sort that are at issue here so that they would not give rise to any immediate right of action in that they’re not final agency action.

But if the statute says that the agency plan will be promulgated by a certain date, wouldn’t there be a cause of action to require… you know, 6 months after that date the agency still hasn’t come out with the plan.

Wouldn’t there be a cause of action to compel–

Edwin S. Kneedler:

Well, what you’re describing, either regulations or, for example, a land management plan–

Anthony M. Kennedy:

–Right.

Edwin S. Kneedler:

–of the sort at issue here… we… we agree that that is final agency action.

Not… not everything that is at issue in this case is non-final, but for example, the–

Anthony M. Kennedy:

Well, boy, I… I think you… I think you’re out of the frying pan into the fire.

I… I think it’s much more useful to the Government to… to say that… that a lawsuit can’t be brought as soon as the plan is adopted, which it could if you call that final agency action, than it is to say that the failure to promulgate it can be… cannot be sued upon because the promulgation is not final agency action.

Edwin S. Kneedler:

–Just because something is final agency action doesn’t mean it’s ripe for judicial review.

And that… that’s basically what this Court held in the Ohio Forestry case where it was a challenge to a comparable general land use plan that the Forest Service had promulgated.

The plan itself was final agency action, but the Court said it was not ripe for judicial review because it did not have any immediate consequences on the behavior… behavior of persons.

But the court of appeals in this case allowed 706(1) to be used to compel certain conduct that is certainly not… probably not even agency action, but certainly not final agency action, for example, monitoring.

Some of these plans contemplated that… that BLM personnel would… would go out and monitor various activities, not surprisingly in… in the vast tracts of land, and the court said that that could be compelled under 706(1).

Sandra Day O’Connor:

Well, this… the case has sort of a hodgepodge of things in it.

Among other things, there’s a claim that the land use plans for San Rafael Mountain and Henry Mountain require certain very specific things, that the land use plan, for instance, for one commits the Bureau of Land Management to finish an off-road vehicle designation rulemaking by 1992–

Edwin S. Kneedler:

It–

Sandra Day O’Connor:

–and another to engage in a separate study as a precursor to the off-road vehicle thing.

Sandra Day O’Connor:

Now, those are very specific and with time deadlines required apparently by rules of the BLM?

Edwin S. Kneedler:

–No.

Well, the… the latter one you mentioned, the… is… is the monitoring activity that I was… that I was referring to.

And there… there… the… the land management plan… or excuse me… a… an off-road vehicle plan for the Henry Mountain area identified a particular area as something… an… an area of possible concern that BLM was expected to monitor.

A 36,000-acre area I… I believe it was.

Sandra Day O’Connor:

To make a separate study?

Edwin S. Kneedler:

Well, to… to monitor and to… and then it contemplated that the area might be closed if the monitoring showed adverse consequences.

The… the plan did not commit a formal study, but in any event a study.

William H. Rehnquist:

When you say monitor, what… what does the BLM look for when it monitors an area?

Edwin S. Kneedler:

Well, it… someone from the BLM office would go out to the area to look to see whether there’s been an increase in, let’s say, off-road vehicle use, to… to inspect whether there’s been additional adverse consequences, to see… to perhaps watch how people are using the area.

And that’s typical oversight and… and law enforcement type activity that… that is… is not normally something that a private person could–

Sandra Day O’Connor:

Well, how about the other one, that the BLM has to finish its off-road vehicle use designation rulemaking by 1992?

Edwin S. Kneedler:

–That… that’s not actually a… a formal rulemaking.

And what… what the… what the plan, the resource management plan, for the San Rafael area contemplated was… was a whole chart of activities that the BLM intended to do into the future.

The… FLPMA, the statute at issue here, identifies resource management plans as designed to project present and future uses.

Project, and that… that means laying out a general schedule, but the agency is not thereby imposing on itself a mandatory duty that is enforceable by any member of the public to require it to adhere to its schedule.

Stephen G. Breyer:

Why isn’t that a defense?

That is, they say that what these provisions mean is you promised to monitor this area and you didn’t.

Now, you don’t think it did mean that or you think it… so you… that’s the defense.

But suppose they’re right.

They say you promised to promulgate this in 1992.

That’s what it says, dah, dah, dah, dah.

And you… and… and you say that isn’t what it says.

Fine, but if they’re right about what it says, can’t they bring an action in court?

Edwin S. Kneedler:

Well, with… with respect to the… to the actions under the plan here, which I should emphasize are just one minor aspect of the broader challenge here–

Stephen G. Breyer:

Those were the two that I… I know–

Edwin S. Kneedler:

–Right.

Those are… those are–

Stephen G. Breyer:

–What about those two?

They say–

Edwin S. Kneedler:

–No.

Stephen G. Breyer:

–in black and white, you said, dah, dah, dah, and you didn’t and… and therefore we want to go into court and make sure you do.

You… why can’t they go into court and make that claim?

Edwin S. Kneedler:

Well–

Stephen G. Breyer:

And you make a defense it doesn’t say that.

Edwin S. Kneedler:

–they… they have and what… the court of appeals in this case held that based on a provision of FLPMA, which says that management actions shall be in conformity with the land use plan, that that statutory provision obligates the Bureau of Land Management to carry out every activity identified in the plan.

The court of appeals relied on a statutory provision.

And that statutory provision is inapplicable here.

What that statutory provision means is that any future site-specific activities that BLM authorizes have to be consistent with general standards in the plan, but it… but it does… in other words, the standards set the outer boundaries for what will happen in the future.

Stephen G. Breyer:

Even if they’re wrong about that, I thought there’s a basic principle: an agency has to follow its own rules.

Edwin S. Kneedler:

But these… these–

Stephen G. Breyer:

So they say… they say here is a rule.

It says I will send monitors.

It says I will do this by 1992.

Those two things were not done.

Therefore, court, please tell them to do it.

Now, as to those two things, are you saying they have no right to make that claim in court?

Edwin S. Kneedler:

–Yes.

Stephen G. Breyer:

Okay.

Because.

Because why?

Edwin S. Kneedler:

Because land… a land management plan is something quite different from a regulation.

A… a land management plan is… is an identification by the agency of how… how it expects things to unfold, again to project what’s going to happen in the future.

It is not imposing on itself a legally binding obligation that is in turn enforceable by any private party.

Anthony M. Kennedy:

But why… why isn’t that simply a defense?

I mean, you’re… you’re taking the nature of the… of the plan as… as being ultimately nonbinding, as being precatory on the agency as… as a jurisdictional peg to say nobody can even get into court and claim that they are not following their own rule.

And I… I don’t see how you get from the one point, i.e., the nature of the plan as precatory, to the jurisdictional point.

Edwin S. Kneedler:

Well, I… I think it is the plaintiff’s burden under a suit… in a suit under 706(1) to establish that there is discrete agency action that has… that is… that the agency is obligated to the plaintiff to take and has not taken.

That is part of the plaintiff’s burden.

And in this case, the plaintiff–

Ruth Bader Ginsburg:

In the… in the lower court, you didn’t join the motion to dismiss.

Did that have anything to do with this question we’re discussing right now?

Edwin S. Kneedler:

–No.

We didn’t join the motion to dismiss but all of the arguments, as the district court pointed out, the arguments that… that we’re making here and that the intervenor made in the motion to dismiss, were made in… in opposition to the motion for preliminary injunction which came along at… at the same stage.

And the district court–

Ruth Bader Ginsburg:

But that would go to the relief or… or to the… whether they have a… a claim for relief.

It wouldn’t go to a jurisdictional question.

Edwin S. Kneedler:

–But… but it also… it… it went to whether the district court should enter a preliminary injunction in the first… if… if there was no basis under 706(1) for the court to entertain the case, that would certainly be a basis for denying the preliminary injunction.

Antonin Scalia:

I… I don’t understand this discussion of jurisdiction.

You’re… you’re… are you claiming that the court couldn’t even hear the–

Edwin S. Kneedler:

No.

It’s–

Antonin Scalia:

–You’re saying there’s no cause of action.

Yes.

Edwin S. Kneedler:

–But it’s… the cause of action does not lie under 706(1)–

Antonin Scalia:

Okay.

We don’t usually call that lack of jurisdiction.

Edwin S. Kneedler:

–Right, but–

Antonin Scalia:

You acknowledge they can come into court.

Edwin S. Kneedler:

–Right.

The… the district–

Antonin Scalia:

But the judge should say, get out of here.

You–

Edwin S. Kneedler:

–The district court termed it jurisdiction, but it… but it… it I think probably more accurately would be characterized as a motion to dismiss for failure to state a claim because there was no final agency action that BLM was obligated, owed a duty to the private plaintiffs to take under its land management plans.

Land management–

Sandra Day O’Connor:

–Well, do you take the position that no land use management plan can ever give rise to an obligation to any portion of the public to do certain things that the plan says will be done by date X?

Edwin S. Kneedler:

–We’re… we’re not saying it would be legally impossible for BLM to impose such a thing on itself, but BLM has never–

Sandra Day O’Connor:

If it did, is it actionable possibly?

Edwin S. Kneedler:

–It… it might be, but that would depend on how the plan… the particular plan was worded.

But BLM has never understood the plans that it is… that is has adopted here to be imposing on itself legal duties that it owes to the public.

Stephen G. Breyer:

Well, I thought you acknowledged that it… that it imposes some legal duties; that is to say, that if… if the agency took action, took affirmative action, which would destroy its ability to follow through on the plan, you know, allowed development in a certain area that the plan anticipated would be left undeveloped, that an injunction would lie for that.

I thought that’s… no?

Edwin S. Kneedler:

But… but if I could explain the way that would operate.

Some plans adopt standards against which future agency actions are to be measured.

For… to use an example, suppose a forest plan said that there couldn’t be any timber harvesting.

Stephen G. Breyer:

Right.

Edwin S. Kneedler:

BLM could not… or the Forest Service could not allow timber harvesting within 200 feet of a stream.

And then a particular timber sale came along in which the Forest Service was allowing trees to be harvested within 200 feet of the stream.

Stephen G. Breyer:

Suppose… suppose it’s–

–Well, let him answer.

Suppose it said you shall protect the stream.

Edwin S. Kneedler:

The… the protect the stream would be a standard against which a timber sale, a discrete agency action, that takes place on the land governed by the plans, would be measured, but it is not itself a legal duty of the sort that is compelled under… that can be compelled under 706(1).

David H. Souter:

Would… would you go back to monitoring for a minute, which may be easier to understand than the plan?

It may be very difficult.

it may be impossible as a matter of legal standards to figure out how much monitoring is enough.

But what if the agency in an internal document says, we are not going to monitor.

Nobody waste your time going out there monitoring.

And that’s the claim that they have refused to monitor.

Does that get them into court?

Edwin S. Kneedler:

No.

With respect to monitoring–

David H. Souter:

Because it’s not final agency action?

Edwin S. Kneedler:

–It’s not final agency action.

David H. Souter:

So it… it’s really not… going back to the… the earlier argument about the plan, what is fatal, it take it, is not that the… the duties are… are, in effect, precatory duties that they don’t have hard-edged enforcement features.

The… what is fatal is that regardless of what the duties are, even their fulfillment, would not be final agency action.

That’s your ultimate point, isn’t it?

Edwin S. Kneedler:

There… there are two points.

One is that the plans as a general matter do not impose legally… legal obligations that are owed to members of the public.

They’re internal documents.

Sandra Day O’Connor:

But you acknowledge that they could, that some details of some plans could impose–

Edwin S. Kneedler:

What… what I would acknowledge would be that if BLM chose in the future to adopt a policy of putting such things in plans, it would probably have the authority to do so.

But it has not done that to date.

David H. Souter:

–But it would still, I take it, on your argument not be… raise an issue of final agency action.

So there still would… would be no authority to order.

Edwin S. Kneedler:

With respect to monitoring, that’s true.

David H. Souter:

No, no.

Back to the plan.

You said, all right… in… in answer to Justice O’Connor, you said, all right, they… they could, in fact, adopt provisions that are very hard-edged and have absolute requirements.

I take it then that even if they did, your… your ultimate answer would be the same.

What they are obligating themselves to do is not final agency action, and therefore their refusal or… or failure to do it would not be the subject of an affirmative order.

Edwin S. Kneedler:

Not across the board.

With respect to monitoring, yes, but if they obligated themselves to, say, within… within 1 year we shall issue an order closing the back 40,000 acres to off-road vehicle use and we intend that to be a binding obligation, enforceable by private parties, that would be enforceable because the order closing the area would be final agency action.

It would carry legal consequences for private people.

But monitoring–

Stephen G. Breyer:

Why… why wouldn’t a… a… the adoption of a policy saying that we will never monitor be final agency action with respect to the duty to monitor?

Edwin S. Kneedler:

–Because monitoring itself is not final agency action.

It has no… it carries no legal consequences.

Ruth Bader Ginsburg:

Mr. Kneedler, the… Judge McKay in the Tenth Circuit, dissenting in the Tenth Circuit, described these land use plans as aspirational and that’s why he thought that they weren’t open to private enforcement.

Does that go too far to… to just to say these plans are… are aspirational?

They’re our wish list.

Edwin S. Kneedler:

That’s basically our position.

Again, the… the plans can set outer limits of what’s permissible, standards against which future agency actions can be measured.

But within that area, all BLM has done is project what it intends to use… to do.

If I could call the Court’s–

Anthony M. Kennedy:

Could… could I come back to the… to the no harvesting timber within 200… 200 yards of a stream?

You… you think that that one would be enforceable if a plan contained that provision.

Edwin S. Kneedler:

–Yes.

That would be… that would be a… because BLM would have intended to impose on itself a legal… a legally binding standard.

I’m not saying that it… that it always is.

What I’m saying is if BLM inserted such a thing in a plan, that could be–

Antonin Scalia:

What… what does it have to say?

We… we intend to be bound?

How do you decide which provisions of a plan are promises and which ones are aspirations?

I mean–

Edwin S. Kneedler:

–I think–

Antonin Scalia:

–land use plans are all aspirations?

Edwin S. Kneedler:

–No.

I… I–

Antonin Scalia:

Where does it say that?

Edwin S. Kneedler:

–I… I think with future management activities, it’s… I… the general rule, certainly I think the universal rule, is that those are aspirational.

If there are legal standards that future agency actions have to comply with, those would ordinarily be binding.

I think those are the two presumptive rules.

And if I could call the Court’s attention to page 159 of the joint appendix which sets out the relevant portion of the San Rafael land management plan, at the top of page 159 it describes… there’s a heading to a chart that then follows.

And that heading is Management Objective.

And then there’s table 19 which sets… which is entitled Anticipated Implementation and Monitoring of Plan Decisions.

And then it lists a number of pages of management objectives that BLM intends to carry out.

And the particular one at issue here is on page 162 about halfway down the page, rather cryptically referring to apply ORV designations, document through an ORV implementation plan.

Within 1 year is the schedule.

That is not the sort of itemization that could be thought to give rise to a legally binding duty.

It’s included in a whole list of activities, some… some that are… that are part of ongoing activity, some that are… have undetermined due dates.

Anthony M. Kennedy:

Suppose there were the world convention of ORV’s and 100,000 people are going to come into the area.

The agency has no duty.

It just sits and goes out to watch the race?

Edwin S. Kneedler:

Well, what… no.

What would… what would happen in that situation… in a lot of situations there might be a requirement that… that for a group of that size, the group obtain a permit to use the land for a gathering of… in excess of a certain number of people.

I’m not sure if BLM has a regulation like that.

I know the Forest Service does.

Stephen G. Breyer:

Well, do they have to do that?

I mean, Justice Kennedy’s question is what if they sit on their hands and they do nothing.

And your answer is, well, they might do something.

Stephen G. Breyer:

They might require a permit.

But what if they want to sit on their hands?

Edwin S. Kneedler:

There… there are two points to that.

First, someone who… someone who is concerned about this visitation by… by ORV users, whoever may use the land, could apply to the agency for an order closing the area or prohibiting the entry of people into the area.

Stephen G. Breyer:

Okay.

Let’s assume… make it… let’s assume the agency says, no, or… or the agency doesn’t do anything.

Edwin S. Kneedler:

Again–

Stephen G. Breyer:

It doesn’t… doesn’t even say I will deny your order.

It just sits there.

Edwin S. Kneedler:

–If the… if the agency doesn’t respond, a suit could be brought under 706(1) to compel the agency to respond.

Once the agency renders a decision on that, then the… then the–

Stephen G. Breyer:

Well, is the response final?

Let’s assume they do respond.

Is that final agency action?

Edwin S. Kneedler:

–Yes.

That would be… that would be a decision on a discrete request for final agency action, and at that point a suit could be brought under 706(2) based… and this is critical… based on the agency’s application of law to facts and the agency’s rationale.

It would a traditional view of agency action.

The defect… a principal defect in this case is that the plaintiffs have asked and the Tenth Circuit has ordered the district court in the first instance to hold a trial about general activities on the ground not divorced… not… not tied to any specific agency action or decision based on an administrative record.

And we think that this is a recipe for chaos.

Ruth Bader Ginsburg:

Mr. Kneedler, if you… the complaint here was that the agency wasn’t doing anything or not enough about off-the-road vehicles.

Now, you have explained that… this is getting back into the larger question and away from the land use plans… the… that this effort states no claim.

What could the group have done?

What could the SU… whatever… their concern about these off-the-road vehicles and the agency not controlling them.

What could it have done that would enable them to trigger agency action and then court review?

Edwin S. Kneedler:

Well, in… in two of the wilderness study areas, in the San Rafael and in the Parunuweap, BLM issued orders closing some roads within those areas but not… leaving others open.

SUWA could have appealed administratively those orders and it could have then gone to court if those orders stood.

SUWA has not done that.

Stephen G. Breyer:

Relying on what?

Edwin S. Kneedler:

Under section 706(2) of the APA.

Stephen G. Breyer:

No, but I mean, what… what provision of law that would… would have required them to close–

Edwin S. Kneedler:

I think the argument would have been that it was… that it would have been arbitrary and capricious or that not to close it would… would not meet the… the general statutory standard that wilderness study areas… that the Secretary shall manage wilderness study areas so as not to impair their suitability for ultimate designation as wilderness.

They could go into court and say that a… that the denial of a… of our request to close the area entirely will… will cause the agency not to meet that legal standard.

Now, if there was not already an order that had been issued, as there was there, then what… then the proper procedure would be for the parties to present their request to the agency in the first instance so that the agency can pass on the question of whether to close it or not.

John Paul Stevens:

–May… may I go back to the two specific things that are described in the papers here?

One, the commitment to monitor a certain area by a certain time.

I understood you to say that would not be actionable because monitoring is not final agency action.

Edwin S. Kneedler:

That’s one of our arguments.

John Paul Stevens:

But is not the duty to monitor final agency action?

For example, if the statute said you must monitor this area by January 1992 and they did nothing, would that not be final agency action that could be actionable?

If the statute said it.

Edwin S. Kneedler:

No.

I… I think it would not be.

It… there may be–

John Paul Stevens:

If the statute required a specific monitoring and they just didn’t do it, that would not be–

Edwin S. Kneedler:

–Congress could impose a duty on an agency to do a number of things that would not, in turn, constitute final agency action.

Not everything Congress tells an agency to do is final agency action.

John Paul Stevens:

–What… what about the failure to do it?

Isn’t the failure to do it within the deadline actionable?

Edwin S. Kneedler:

No.

A… a failure to act–

John Paul Stevens:

–promulgate rules and they do nothing?

Edwin S. Kneedler:

–Well, a rule would be final agency action.

Monitoring, because it has no legal consequences, is not final agency action.

Anthony M. Kennedy:

Well, suppose it’s… what Congress is you must, no matter what, promulgate by March 10… it’s exactly Justice Scalia’s question… 1994 this tentative, non-reviewable, never-to-be-reviewed preliminary draft of a vague plan X.

Okay?

[Laughter]

And they just don’t do it.

That’s where we started this whole questioning.

Now, I would have thought there would be review under this provision if they just didn’t do it, even though the thing they’re supposed to promulgate can never be reviewed.

Edwin S. Kneedler:

No.

Edwin S. Kneedler:

We think that 706(1) and 706(2) have to be read in tandem, that 706(1)–

Anthony M. Kennedy:

You… you don’t agree with my statement.

So is there any authority for what you’ve just said, that if Congress says definitely you have to do this by such a date and they don’t do it, that’s not reviewable?

Edwin S. Kneedler:

–The… the review occurs under the APA and the APA is limited to final agency action.

William H. Rehnquist:

What is your best argument for your tandem point?

You just said we… we think they should be read in tandem.

What’s your best argument for that?

Edwin S. Kneedler:

Agency action is used in both 706(1) and 706(2).

Section 704 of the APA says… limits judicial review to final agency action, and we think that applies to both 706(1) and 706(2).

And then finally the logic of 706(2), as we explain in the Attorney General’s memorandum, which Court has given deference to, particularly the Safeway Stores case, explains that the authority of a court to compel an agency to get on with it and to issue final agency action is essentially derivative of its ultimate authority to review the final agency action when it’s issued on the basis of the record.

If I could, I would like to reserve the balance–

William H. Rehnquist:

Very well, Mr. Kneedler.

Mr. Smith, we’ll hear from you.

Paul M. Smith:

Mr. Chief Justice, and may it please the Court:

The Government works very hard in this case offering a… an almost bewildering variety of legal theories all intertwined, all intended to support what ultimately I submit is an implausible proposition, that there exists a category of mandatory, clear statutory duties imposed by Congress on the Federal agencies which remain totally unenforceable by the courts, unless and until the agency chooses to engage in some affirmative–

William H. Rehnquist:

Mr. Smith, let’s go to the appendix, page 162, which I believe is one of the things that the Tenth Circuit dealt with: apply ORV designation documents; through ORV implementation, et cetera.

The schedule says: within 1 year after approval of RMP.

Now, there’s no statutory deadline there, is there?

Paul M. Smith:

–No.

This is an entirely plan-based claim in this case, Your Honor, and our claim was that this plan, read as a whole, taking into account not just this page but the text on page 154 as well, was fairly read as a binding commitment that they would do this task within a year.

As it turned out, they did it in 12 years.

They did it in… in 2003.

They finally designated these routes, which they said they needed to do in their exercise–

William H. Rehnquist:

Well, supposing in… on page 162 instead of saying within 1 year, they had said within 12 years.

Would you have had any better case?

Or would you… you’d have a worse case, wouldn’t you?

Paul M. Smith:

–If they had said that they were going to do it in 12 years, we wouldn’t have had any claim that they were doing it too late.

William H. Rehnquist:

So… so there’s nothing statutory in the deadline you’re talking about.

It’s a deadline that… that the BLM sets for itself.

Paul M. Smith:

And the statutory argument is that the statute itself requires them to manage these lands in accordance with their own plans.

Paul M. Smith:

That’s–

William H. Rehnquist:

But… but there’s nothing in the statute that requires them to set deadlines.

Paul M. Smith:

–Not in… not in this case, Your Honor.

There… I’m sure there are other provisions that were required in this case.

But there are two… there are several different kinds of mandates that we’re trying to enforce here: the statutory mandate under… of nonimpairment, the… the requirement that they abide by their own plans, and also the NEPA requirement that they take a hard look at… at the environmental impact statement requirement when… when new information comes in.

Antonin Scalia:

Mr. Smith, can I… I… your opening statement was that it’s implausible that there should be some duties upon agencies that are not enforceable in the courts.

I don’t find that implausible at all.

I… I don’t understand the role of the courts to be to oversee executive action.

You have congressional oversight committees that do that.

I understood the role of the courts to be to vindicate individual rights when they have been violated.

And what the Government is saying here is that no individual right has been violated until there has been final agency action.

Final agency action is what confers… it’s… it’s an action that changes the law, that establishes requirements.

And until that happens, there’s no individual right.

I’m not willing to accept your proposition that… that the role of courts is to make sure that agencies tow the line.

That’s… that’s the President’s role.

It’s not ours at all.

Paul M. Smith:

Well, Your Honor, what makes their… their position implausible is what Congress actually did in the Administrative Procedure Act where it very specifically said that… that courts have the power to compel agency action unlawfully withheld and unreasonably delayed.

Antonin Scalia:

It’s based… nobody thought that the APA radically changed the course of… of judicial review of administrative action, which had been based on the prerogative writs such as mandamus and which required an individual right that had been harmed and… and a mandatory duty to that individual.

Paul M. Smith:

And… and–

Antonin Scalia:

And one can violate the… the directives of Congress without… without harming any individual, and when that happens, it’s up to the congressional committees to bring the agency back into compliance, not… not these courts.

Paul M. Smith:

–With respect, Your Honor, I think the concept that decides who gets to bring the lawsuit is the concept of standing, not the concept of individual rights.

And it’s no… there is no argument here that the plaintiffs lacked standing under this Court’s decisions to enforce this mandatory obligation of the agencies to avoid impairment.

And so I think that that’s the right way to think about it.

And if you look at the… the finality concept and the right role it should be playing here, it’s the inaction that has to be final, not the action that you’re seeking to compel.

It’s… their… their reading of the statutory text puts the word final in the wrong section.

Finality comes up under section 704 which says final agency action is subject to judicial review.

Agency action, in turn, is defined as including failure to act.

So as the courts, since the APA has… was first brought out, have consistently said you look at whether the inaction is sufficiently final to decide this is the right time to bring a lawsuit.

Antonin Scalia:

I think all the Government is saying is that the inaction like the action has to be inaction which causes remediable harm to the individual.

Paul M. Smith:

Absolutely.

Antonin Scalia:

Just as that doesn’t happen with action unless it’s final, the Government says it doesn’t happen with inaction… with inaction unless what you’re seeking to compel is something that would have conferred upon you something you have a right to have.

Paul M. Smith:

Well, two points, Your Honor.

First of all, I don’t disagree that the concept of harm is a key part of how you decide whether or not the inaction is sufficiently final to bring a lawsuit.

We want to look at several things, whether the Congress imposed a deadline or a continuous duty, as they did here, whether there’s irreparable harm, whether the agency is operating under a misunderstanding of the statute that is involved.

The courts say in those situations, the practical concept of finality is used to decide this inaction is sufficiently serious that we’re going to allow review now.

Antonin Scalia:

Let’s take the Federal Communications Commission.

It… its obligation under… under its statute is to regulate broadcasting in the public interest, convenience, and necessity.

You think a lawsuit could be brought claiming that, you know, for lo, 50 years, the FCC has failed to regulate broadcasting in the public interest, convenience, and necessity?

Paul M. Smith:

No, Your Honor.

There are many things that are… that are sufficiently general in… in the code that they could not be enforced under section 706(1).

Antonin Scalia:

How do we determine what’s sufficiently general?

I think it’s pretty… pretty general.

The obligations under these statutes seem to me quite general.

Paul M. Smith:

Well, Your Honor, what you do is you… you apply the usual techniques of statutory construction and then you look at the second thing, which I think it’s important that we… the… the Court focus on here.

You look at what the agency regulations say the statute means.

And here we have two features of the regulations which the Government studiously ignores.

One specifically deals with how you tell that off-road vehicles are impairing and the regulation… the… the interim management plan that they promulgated… and that’s at pages 71 and 72 of the joint appendix… specifically says that any use of off-road vehicles off the existing ways that existed in 1980 when they designated these study areas, any use of it is surface-disturbing and is… is an impairment that violates the impairment mandate.

Antonin Scalia:

Was that a regulation?

You… you call it a regulation.

Was it a regulation?

Paul M. Smith:

It was promulgated based on notice and comment.

It has been treated by every court that’s ever looked at it as a binding regulation.

It does not appear in the C.F.R., Your Honor, but it is… it is a much more than a mere–

Antonin Scalia:

Doesn’t it have to appear in the C.F.R. if the agency regards it as a regulation?

Paul M. Smith:

–The… I don’t know the answer that there’s a specific rule about that, Your Honor.

Antonin Scalia:

I think it is.

Paul M. Smith:

It is certainly the… the document by which the BLM has committed to guide all of its actions with respect to this category of land, the wilderness study areas, and it’s been consistently enforced by courts.

Antonin Scalia:

No, but something that just… just determines internal actions of an agency is not… is not regarded as a regulation.

Paul M. Smith:

The other regulation that I think is important for the Court to focus on is the regulation dealing with what they’re supposed to do when they find impairment caused by off-road vehicles.

And this is in the C.F.R. It’s at 43 C.F.R., section 8341.2(a).

Antonin Scalia:

Where is that in the joint appendix?

Paul M. Smith:

It is not in the joint appendix, Your Honor.

It is quoted at… on the top of page 5 of the other respondents’ brief, the other red brief by the Utah Shared Access Alliance.

And I invite the Court to look there.

What the BLM regulations say is that when the BLM official on site finds that off-road vehicles are causing considerable adverse impacts on a list of things, including wilderness suitability, which is what we’re talking about with the wilderness study areas, quote, the agency, quote, shall immediately close the areas affected to the types of vehicle causing the adverse effect until the adverse effects are eliminated and measures implemented to prevent recurrence, unquote.

So the… the rule is if there’s… if there’s impairment being caused by off-road vehicles, you close it on an emergency basis and then you consider whether or not you’re going to take other steps to… to deal with it down the road when you open it up again.

Anthony M. Kennedy:

Isn’t it slightly more difficult than that?

And this… this raises a question I was going to ask you anyway.

You… you said a second ago if… if the agency finds, in effect, any impairment and it doesn’t do anything, then… then one can sue.

But the reg you just quoted referred to considerable adverse impact.

And I guess my question was going to be let’s assume we are contemplating a… a suit.

What is the criterion that one would plead in the… in the petition saying they failed to do X, therefore that is tantamount to inaction or refusal, therefore there should be an order?

What is X?

Can we get any clearer than considerable adverse effect?

Paul M. Smith:

Well, the… the regulation not only says that’s… that’s what you… that’s what triggers it, but then it says specifically what they’re supposed to do, which is to close the whole area, including the–

Anthony M. Kennedy:

If it’s considerable.

Paul M. Smith:

–Yes.

Anthony M. Kennedy:

Not… not if there’s… you know, one track through the desert is not, I presume, enough.

Paul M. Smith:

Right.

And I think that–

Anthony M. Kennedy:

The criterion then that you’d plead is there is considerable.

We can prove considerable.

We can prove they did nothing.

Therefore, order–

Paul M. Smith:

–Right.

And I think, you know, in the real world, you bring a suit and you say here’s how… the statute says don’t allow any impairment.

So it’s a very… reasonably specific statutory mandate.

You have a regulation that says here’s how you find impairment, and you have a regulation that says when there’s a considerable amount of impairment, here’s exactly what you have to do to fix it.

Anthony M. Kennedy:

–Okay.

I have one–

Anthony M. Kennedy:

–Shouldn’t you be required to bring a petition to petition for some specific action–

Paul M. Smith:

Well–

Anthony M. Kennedy:

–before just filing a lawsuit?

Paul M. Smith:

–Your Honor, there is no procedure that the BLM has for filing a petition or for doing anything to trigger any kind of a response.

There is no process of that sort.

The most that you can do is… and we did this.

They… the letters are in the appendix to the opposition to cert… is write a letter to the local field office.

Stephen G. Breyer:

Well, I thought you could… I thought the land use plan has the status under the statute as a rule… as a rule, and there is a procedure.

There must be a procedure for making a rule.

The APA requires a procedure.

I mean, it requires one.

Isn’t there?

Paul M. Smith:

Your Honor, there is no place to go get a docket number and get any answer.

You send these letters in and they just sit on people’s desks.

And there’s also no requirement–

Ruth Bader Ginsburg:

You didn’t wait for an answer.

You sent in your letters and it wasn’t long thereafter that you brought this suit.

Paul M. Smith:

–Well, those letters were part of an ongoing effort over a period of many years to try to get them to take this problem.

Ruth Bader Ginsburg:

But you didn’t… you… the… one difficulty that I have putting a handle on it is… is you’re saying, agency, overall you’re not enforcing the statute.

We want a court order that say… says enforce it, which looks to a court quite different than I… I’m asking to have this particular area closed, and then the agency would make a discrete ruling on that particular area.

Instead of saying overall on these four… whatever it is… vast parcels of land, they’re not doing the job, so court, tell them to do the job, and then the court is supposed to monitor that?

Paul M. Smith:

Well, Your Honor, we… we brought a lawsuit that encompassed potentially a… a substantial number of these different wilderness study areas and related areas, but then what… what happened is we made a motion for a preliminary injunction as to four and put on evidence showing the adverse effects in those four and asked the court to… to address them and say they’re… they’re not… they’re not adhering to their statutory and regulatory obligations in those four.

The Government took the position that even if we had sued on just one, that… and the district court agreed with this… that because it’s an inaction case, no matter how clear the statutory and regulatory violation is, there’s nothing that can be done–

Ruth Bader Ginsburg:

But if you petitioned for an action, that is, you asked the agency to close this area, and they said no, it seems to me that that would be a final action.

Paul M. Smith:

–But they don’t say no, Your Honor.

There is no… they… what the BLM has done instead over the… the long period of time is avoid doing either yes or no and then coming into court and saying there is no final agency action.

Antonin Scalia:

Then… then you bring an action to require them to say yes or no.

That is the agency final action that you would be suing for.

You bring a suit saying we’ve asked this question.

You’ve diddled around for 2 years and haven’t given us an answer.

Antonin Scalia:

We demand an answer to this particular discrete question.

You… you would have had a suit for that.

Paul M. Smith:

Well… well, perhaps, Your Honor, but then you end up with an entire set of litigation over how many… how much time it is before they have to answer each particular petition without any kind of statutory or regulatory guidance of how that process is supposed to work.

Sandra Day O’Connor:

But this seems in a way like sort of the shortcut to say we… we demand that the BLM comply with its statutory mandate and we don’t like the way they’re doing it.

I mean, it… it seems almost that general.

Paul M. Smith:

Well, it’s… it’s not, though, Your Honor.

We were focusing on a particular mandate, a particular harm caused by off-road vehicles in particular places.

And we’re saying not every shall phrase in the U.S. Code can be enforced under 706(1), but when you… when it’s very mandatory, where there’s irreparable harm and the Congress clearly was trying to preserve its prerogative to make these places wilderness areas by directing that they be continuously managed to maintain the status quo, under–

Sandra Day O’Connor:

It’s so hard for courts to get into the business of trying to see if an agency like this is out there on a day-to-day basis doing what it needs to do.

Paul M. Smith:

–Well, it’s not… it’s not like we’re trying to take over running the agency, Your Honor.

William H. Rehnquist:

Well, but it… it sounds that way to a certain extent, like kind of the court taking over a prison where they find there’s some defect.

And what… what is going to be the role of the Tenth Circuit or of district court in Utah if… if you prevail?

If they… they tell the agency to do something, you claim the agency hasn’t done it, they’re back on a contempt order like in the district court here?

Paul M. Smith:

Well, there is obviously going to have to be some application of judicial review and then some application of… of the court’s power to enforce the law.

The alternative is to say that they can… they could ignore the law indefinitely and put up–

Sandra Day O’Connor:

Or maybe some application could be made seeking closure of some areas.

The… the exhibits you furnished are sort of devastating.

–Well, the… the evidence was quite clear.

There really isn’t any doubt about it.

It looks pretty terrible.

Paul M. Smith:

Indeed, on… on page 59 of the… the appendix to the op to cert, the Government flat admitted that there had been impairment.

It wasn’t like they were ignoring that fact.

It’s the… this is a request for admission.

We said admit that there’s been impairment in the wilderness study areas.

Sandra Day O’Connor:

So is there no mechanism whereby suit could be brought demanding that a certain area be closed because of the impairment?

Paul M. Smith:

Your Honor, that’s what this suit was.

Stephen G. Breyer:

Why didn’t you go… look, are we supposed to concentrate on the four areas?

Paul M. Smith:

Well, that’s the only part that’s before the Court on that issue.

Stephen G. Breyer:

Right, those four areas.

As to those four areas, are you saying as to one, two, three, or four, that the land use plan as it now reads requires them to be closed in part or in whole and they’re not following the plan?

Paul M. Smith:

We’re not–

Stephen G. Breyer:

Or are you saying that the land use plan permits them in part to be open, but we want… we think they should be closed?

Which is it as to each of those four?

Paul M. Smith:

–At the time the lawsuit was brought, there was no BLM plan or–

Stephen G. Breyer:

No.

I’m saying what we’re supposed to decide.

You’re saying now we can narrow it to these four areas, and I want to know as to those four areas, am I supposed to assume that the land use plan as in documents that are there, as to area one, two, three, or four, now requires it to be open or whatever you think it should be and you want to change it or that it’s right.

You don’t want to change a word of it, but they’re not just enforcing it.

Which is it as to one, two, three, and four?

Paul M. Smith:

–It depends on whether you mean now or–

Stephen G. Breyer:

I mean as we’re supposed to decide this case.

Paul M. Smith:

–The difficulty, Your Honor, is that after the lawsuit was brought and as the preliminary injunction hearing was about to convene, the Government started exercising the exact emergency–

Stephen G. Breyer:

I want you to choose.

I don’t care what you say.

I just want to know how I’m supposed to decide the case.

Am I supposed to decide the case on the assumption… you’ve narrowed it to four areas… to area one.

Let’s take that.

Am I supposed to decide it on the ground that what you want is you think the land use plan as written is perfect.

You just want them to enforce it.

Or that you want them to change what it says in those words because you think it’s wrong.

That’s all.

I mean, you must think one or the other or both.

Paul M. Smith:

–When the case was brought, there was no closure order in place, and we were told by the district court that there is no jurisdiction of the Federal courts to require that.

As we were going through that process, these closures started to happen.

And so I’m… I’m having difficulty answering your question–

Stephen G. Breyer:

That’s… but I’m asking you how I should decide it.

As I listen to you, you want me to decide it as it was when the case was brought.

Paul M. Smith:

–Yes.

Stephen G. Breyer:

That’s your view.

So then as it was when the case was brought, what you want is a change in the wording of the governing documents which I’m thinking of as land use plan.

Stephen G. Breyer:

Yes.

Is that yes or no?

Paul M. Smith:

We… we want an exercise of the emergency closure which would effectively amount to the same thing.

Stephen G. Breyer:

Okay.

Now, my question then… and that’s what I thought you wanted… is why isn’t the thing to do, if that’s the kind of relief you want, to file a piece of paper over at the BLM and say, we want this document amended because it seems to me that this document has the status of a rule and every agency… every agency… has a procedure through which you can request an amendment of a rule.

Why wouldn’t that be the right procedure rather than to come into court and say we want a judge to do it first in the first instance?

Paul M. Smith:

Your Honor, if I could refer you to page 52 of the appendix to our opposition to cert… that’s the orange document I guess… this is what we did file with them, seeking the closure of these WSA’s.

This is the… we’re looking for the orange op cert, Your Honor, not the… the joint appendix.

And 52 is an example of what was done in the effort to get the BLM to act on… in… in accordance with its own statutory and regulatory obligations.

And it says, we just wanted to point out to you there’s all this irreparable harm going on.

There’s ORV’s rampant in these wilderness areas, and as you well know… this is in the middle of the first paragraph… 43 C.F.R., section 8341.2… that’s the one I was talking about before… directs BLM managers to immediately close areas suffering considerable adverse effects from ORV use and abuse.

So we brought it to the agency’s attention, and they, as… as they have done throughout the period, simply didn’t do anything.

Stephen G. Breyer:

So if in fact this is the equivalent of the kind of document I said, then why wouldn’t your lawsuit be to compel them to act on this request in a timely fashion?

Maybe the timely fashion would be in 4 days if it’s an emergency.

But why wouldn’t this lawsuit be designed to ask them to do what you asked them to do?

Paul M. Smith:

Well, this lawsuit was designed to ask them to do that.

The only real things it seems like we’re talking about here is whether the form of the lawsuit ought to have been in the form of–

Antonin Scalia:

Yes, yes.

We’re only talking about the form.

I agree with that.

This whole thing is about the form.

But they’re trying to make you go through certain hoops and to some point, I… I think the law should give you relief, but it has to be through the right form.

Paul M. Smith:

–But it may well be that the Court will recognize that all agencies have to respond to these things and you can sue them.

The… the reality is BLM, unlike many other parts of the Interior Department, doesn’t have a process for allowing you to petition for an order and… and have a formal process for it being adjudicated.

Antonin Scalia:

You don’t need that to get into court.

The… you’re guaranteed judicial review.

A person suffering legal wrong because of agency action or adversely affected is entitled to judicial review thereof.

If you write them a letter and they don’t have any other process, and they don’t respond to your letter, you can bring… you can bring a lawsuit.

Paul M. Smith:

Well, it may well be then that… that once that’s clarified, that this whole dispute will… will be a matter of procedural–

Antonin Scalia:

But it’s been clear.

Antonin Scalia:

I mean, I don’t think that that’s been unusual.

What hasn’t been clear is that… is that a court can exercise continuing supervision of an agency, which is what some of your requests here would require.

What’s… you know, that… that was never allowed before… before the APA was enacted because the… the courts were not allowed to issue injunctions that required continuing supervision.

And… and mandamus was a… a discrete act that… that was required.

What cases since the APA would… would you… you appeal to as… as showing the authority of the courts to… to undertake continuing supervision of an agency?

What… what’s the best case you have?

Paul M. Smith:

–Well, there… there is not a lot of case law about continuing supervision.

There are plenty of cases out there that say you can direct them to exercise their discretion.

And… and that’s really what we were–

Antonin Scalia:

In a discrete matter.

In a discrete matter, but you’re… you’re asking to exercise their discretion in the management of the forests.

And… and that’s… that’s… I mean, that’s putting the… the district judge in the place of the… the Secretary of the Interior.

Paul M. Smith:

–Well, I’m not sure that there’s really a distinction between the two kinds of lawsuits that we’re contemplating here.

If we had brought this case and said, direct them to answer our petition about why they’re still allowing… they haven’t exercised their emergency closure power in these four places, they… they… the court might have said, okay, tell them… I will tell them to exercise their emergency closure power.

They then come back with a thing that says, well, we don’t think that ORV use is so bad after all and so we’re just not going to do anything.

And then you bring a 706(2) claim, and you have the same basic issues being litigated.

Stephen G. Breyer:

Exactly.

But this time it’s a… in… in a form recognizable to men, women, and administrative lawyers.

[Laughter]

Paul M. Smith:

Who don’t apparently fall in either category, Your Honor?

[Laughter]

Let me… let me touch a moment on the land use plan enforcement aspect of it because I think–

Stephen G. Breyer:

But it isn’t totally just… because what they’re worried about is not that you’re trying to get off-road vehicles off the road in certain areas like here, there, and the other place.

What they’re worried about is that you’re turning over to a district judge the generalized job of running the BLM’s ORV program.

And so if you can get it to specific things, you destroy what they’re worried about.

Paul M. Smith:

–Well, that’s one of the things they’re worried about.

They also apparently, until at least this morning, wanted to be able to write up these plans, go through a whole public planning process, coordinate with the States, do an environmental impact statement, all of this stuff in the planning process and then say, the plan, by… by the way, is never enforceable if we don’t do what we say we’re going to do.

Antonin Scalia:

Why is that unreasonable?

I mean, suppose they get their budget cut.

You know, these… these are all internal documents.

Antonin Scalia:

This is what we plan to do, but next year Congress cuts their budget by 50 percent.

Is a court going to direct that all of the money that Interior has left has to be devoted to your pet project–

Paul M. Smith:

No.

The rule would be–

Antonin Scalia:

–as opposed to, you know, all of these other things that need the money for it?

Paul M. Smith:

–The rule would be they have to go through the amendment process, and there… then you have an agency action which you can challenge.

Their position is we don’t want to do the amendment process because then we’ll have to answer to all these people in public hearings.

We don’t have to have… take any action because then you’ll just go to court and sue us under 706(2).

We would rather than amend it… and maybe we’d have to do another environmental impact statement, et cetera.

We would rather just ignore it and–

Antonin Scalia:

How… how can they amend it?

The statute doesn’t say that your plans shall… you know, given how much money you have, the… the forests will be protected.

It says you will develop management plans for the protection of the forests.

Period.

And so, if there’s no money there, you still have to have the same plan.

They wouldn’t be able, when they amended the rule, to say the reason we’re amending is we don’t have enough money to do what ought to be done.

The plan would still have to read the same way.

But… and so if the plan is enforceable, you are giving a court the power to… to put your preference right at the head of the line of all the money that the agency has to spend.

Paul M. Smith:

–No, Your Honor–

Antonin Scalia:

And that doesn’t seem reasonable.

Paul M. Smith:

–The way that that gets handled in the… in the run of the mine cases in… in the D.C. Circuit and elsewhere is at the… at the point of equitable discretion.

One of the cases we cite, Barr Laboratories, is a case where somebody tried to say you’ve got to approve my generic drug within 60 days because that’s what the statute says, and the D.C. Circuit said, well, we have jurisdiction under that, under 706(1), but we’re not going to order that because there are 16 other drugs over there that are in the same situation.

They don’t have the capacity to get this done, and we’re not going to put them at the head of the line because they brought the lawsuit first.

The courts do have a lot of power in considering things like finality and then deciding about what kind of equitable discretion to exercise… and the D.C. Circuit case law is quite sophisticated on this subject… to decide whether they want to enforce in the way that is being requested.

All we’re saying is if there’s a duty under the statute or under the… the plan, the plan isn’t amended, it ought to be something that you can get into court and let the judge look at and decide whether this is an appropriate duty to enforce at this time.

Ruth Bader Ginsburg:

But how could the judge look at it without knowing all the other things that are on the agency’s table given the limited resources?

I thought the BLM’s answer here was we realize that the environmental impact statement is out of date, and over a period of years, we’re going to update those statements.

But frankly, we haven’t got the money to do it for every place now.

Paul M. Smith:

They… they may well be… put that… that argument forward, if and when we ever have a hearing on this thing.

We were dismissed at the… the jurisdictional stage here.

Paul M. Smith:

They call it jurisdiction.

It may well be cause of action.

Ruth Bader Ginsburg:

I mean, if… if we imagine coming into court, then would everything that’s on the agency’s plate have to be presented to the court?

Paul M. Smith:

It would depend on the particular duty at issue and the kinds of harms that are at issue.

Here we have a specific mandate that says maintain these places which you, BLM, has… have designated so Congress will have the prerogative to make the wilderness areas when it looks at it.

It’s… it’s got a very clear, specific duty and severe irreparable harm that will happen if the BLM doesn’t make it a priority.

In those situations, the Federal courts are much more likely to say we are going to grant some relief in this… we are going to force the BLM, or whoever it is, to follow the statutory obligations.

In many other kinds of situations, when the agency comes in and says, well, we have 66 other things like this we should be doing, the courts are much less likely to do that.

We’re just saying that there has to be a power in the Federal courts at some point to compel adherence to the law when all of the other requirements are set, standing, finality, a clear mandatory duty which is perhaps better defined in the regulations, as you have here, all of these things, that if you don’t have the… the residual power in the courts to take action at some point when the violation gets sufficiently serious and harmful, then the… the provision really isn’t enforceable at all.

That… that’s the main point we’re trying to make here, Your Honor.

Antonin Scalia:

That happens all the time under statutes.

I mean, you know, let’s assume the FCC is not doing its job.

It’s not… it’s not indeed, regulating broadcasting in the public interest, convenience, and necessity.

It’s violating its congressional mandate.

Can you run into court and say, you know, make the FCC regulate… broadcast in the public interest, convenience, and necessity?

Certainly you can’t.

Paul M. Smith:

Well, that’s a perfect example, Your Honor, of why this issue only arises in certain narrow circumstances because the FCC takes affirmative agency actions all the time and you can challenge those as being arbitrary and capricious and outside the statutory requirements.

The difficulty we were facing here was the absence of any action to challenge.

The agency was using its own inaction as its defense to being challenged for… for violating the statute.

That’s their… their ultimate purpose.

I–

Anthony M. Kennedy:

Is… is one way to characterize what the Government is saying is that they require that every inaction has some sort of a mirror image in action?

And that’s a little a bit hard for me to work with.

Paul M. Smith:

–Right.

And… and the… the drafters of the APA really did say we think inaction is sometimes action and that that can be final enough that you can challenge it.

And so… so we think that’s what the court said and that’s what they have done for the last 50 years under the APA.

They’ve looked at is this inaction sufficiently serious, sufficiently unlawful that we’re going to allow a 706(1) kind of claim to proceed.

Anthony M. Kennedy:

What’s the best case in this Court for that proposition that inaction can become action?

Paul M. Smith:

Your Honor, I’m actually not aware of an inaction case in this Court.

William H. Rehnquist:

Thank you, Mr. Smith.

William H. Rehnquist:

Mr. Kneedler, you have 4 minutes remaining.

Edwin S. Kneedler:

Thank you, Mr. Chief Justice.

We think that this case is really controlled by Lujan v. National Wildlife Federation, which really was the mirror image of this case.

It was a situation in which plaintiffs sought to challenge again conduct of BLM on a programmatic basis, saying that BLM, with respect to vast tracts of land, had not taken action that… that the plaintiffs thought it should take.

And this Court held that, no, such a suit must focus on not only agency action, discrete action, but final agency action, and you can’t bring about wholesale change in an agency program under 706(2).

It follows, we think, a fortiori under 706(1) that that cannot be done because 706(1) is essentially ancillary to 706(2).

It is designed to require the agency to disgorge final agency action if it has a legal obligation to do it so that once that final agency action is issued, it can be reviewed under the central provision of the APA, section 706(2).

706(1) is limited to compelling that sort of action and putting the courts in the position where they can then review final agency action in the way the Administrative Procedure Act contemplates, which is on the basis of the agency’s decision, the agency’s finding of fact, its application of law and policy to fact and its rationale.

So this is not just a matter of form.

We think that the difference between the lawsuit that plaintiffs have brought and the lawsuit that the APA contemplates is critical to the relationship between agencies and courts under the APA and under the separation of powers under the Constitution.

Plaintiffs’ vision would put the courts in the position in the first instance of finding whether there’s been compliance with the statutory standards.

Our view and the way the APA requires is to submit a request for a particular order or regulation, let the agency act, and then review that discrete controversy.

All three of the claims in this case that the plaintiffs have brought would reflect a radical departure from that view.

The first is to compel compliance with a general statutory standard to manage lands in a particular way.

Management is not agency action.

It’s like a program, which this Court said in Lujan could not be reviewed.

The claim to require NEPA statements is independent, not tied to any proposed major Federal action.

They’re claiming an ongoing duty to update NEPA programs.

And with respect to the land management program… plans, no court has ever held since FLPMA was enacted and these plans have been utilized that they impose on BLM a duty owed to members of the public to comply with schedules, tentative, anticipated schedules, as this document says, of what will be carried out in the future.

This is not just a question of standing and zone of interest which private people might be able to sue.

It’s more fundamental than that.

These plans do not impose any duties owed to any member of the public because they are designed for internal management by the agency.

We are in no way saying that what BLM does is beyond judicial review, but the plaintiffs are required to follow the right procedures.

Anthony M. Kennedy:

What… what about the letter at page 52 in the brief in opposition?

Edwin S. Kneedler:

52 was a–

Anthony M. Kennedy:

Why… why isn’t that specific enough?

Edwin S. Kneedler:

–It… what the… what the respondents did not do was wait for BLM to respond, and in fact, in March of 2000, before the PI hearing was even held in this case, BLM issued a closure order that closed six out of those seven orders and left… areas and left one of them open.

And SUWA never challenged that.

Justice O’Connor, you referred to pictures in the… in the joint appendix.

And it’s important to bear in mind that those are pictures of areas outside the wilderness area that are open under the relevant land use plans to off-road vehicle usage.

Edwin S. Kneedler:

So there are no restrictions on their use there.

William H. Rehnquist:

Thank you, Mr. Kneedler.

The case is submitted.