Norton v. SUWA and the unraveling of federal public land planning

Duke Environmental Law and Policy Forum

Volumn 18, Issue 1, 2007, Pages 105-162

  Blumm, Michael C ^a   Bosse, Sherry L ^a  

^a LEWIS AND CLARK LAW SCHOOL   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

ENVIRONMENTAL LEGISLATION; ENVIRONMENTAL POLICY; FOREST MANAGEMENT; LAND MANAGEMENT; LAND USE PLANNING; LEGISLATIVE IMPLEMENTATION; WILDERNESS AREA;

NORTH AMERICA; UNITED STATES; UTAH;

EID: 57449085807     PISSN: 10643958     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (545)

1. Pub. L. 94-588, 90 Stat. 2949 (1976).
2. Pub. L. 94-579, 90 Stat. 2743 (1976).
3. DENNIS C. LE MASTER, DECADE OF CHANGE: THE REMAKING OF FOREST SERVICE STATUTORY AUTHORITY DURING THE 1970S 78 (1984),
4. citing 3 PUB. PAPERS 2619-21(Oct. 22, 1976).
5. See CHARLES F. WILKINSON & H. MICHAEL ANDERSON, LAND AND RESOURCE PLANNING IN THE NATIONAL FORESTS 15 (Island Press 1987).
6. See George Cameron Coggins, The Law of Public Rangeland Management IV: FLPMA, PRIA, and the Multiple Use Mandate, 14 ENVTL. L. 1, 6 (1983) (observing that, with little debate, Congress based FLPMA's multiple use management requirements on the Forest Service's 1960 MUSYA).
7. See George Cameron Coggins & Parthenia Blessing Evans, Multiple Use, Sustained Yield Planning on the Public Lands, 53 U. COLO. L. REV. 411, 447 (1982)
8. (noting that the lack of adequate funding and planning authority for the agency contributed to the general lack of BLM planning during the first decades of its existence). Congressionally-directed BLM planning began in 1969, when BLM began to implement the Classification and Multiple-Use Act of 1964 (CMUA). 43 U.S.C. § 1411-1418 (expired 1970).
9. The CMUA required BLM to prepare Management Framework Plans for the lands under its control and provided the Secretary of Interior with greater authority to classify public lands for disposal or retention as federal public lands. When the Public Land Law Review Commission issued its report on the nation's public lands in 1970, which automatically caused the CMUA to expire, 180 million acres of federal land had been classified or reclassified under the CMUA. GEORGE CAMERON COGGINS & ROBERT L. GLICKSMAN, PUBLIC NATURAL RESOURCES LAW §10D:21 (2007).
10. See also George Cameron Coggins, The Developing Law of Land Use Planning On the Federal Lands, 61 U. COLO. L. REV. 307, 317 (1990)
11. (describing planning under the CMUA as "early and primitive" and noting that such plans were developed following a different procedure, and contained different information, than plans that would later be developed under FLPMA);
12. Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 876 (1990) (discussing the classification provisions of the CMUA).
13. See also infra note 66 (discussing BLM's formation).
14. Coggins, supra note 5, at 26-27.
15. On the significance of organic statutes, see Robert L. Fischman, The National Wildlife Refuge System and the Hallmarks of Modern Organic Legislation, 29 ECOLOGY L. Q. 457 (2002).
16. See Coggins, supra note 5, at 15.
17. See also S. COMM. ON ENERGY & NAT. RESOURCES, 95TH CONG., LEGISLATIVE HISTORY OF THE FEDERAL LAND POLICY AND MANAGEMENT ACT OF 1976 (1978).
18. S. REP. NO. 94-583, at 7 (1975), reprinted in S. COMM. ON ENERGY & NAT. RESOURCES, 95TH CONG., supra note 8, at 72.
19. See SAMUEL TRASK DANA & SALLY K. FAIRFAX, FOREST AND RANGE POLICY: ITS DEVELOPMENT IN THE UNITED STATES 339 (2d ed. 1980).
20. Ohio Forestry Ass'n v. Sierra Club, 523 U.S. 726, 732 (1998).
21. Norton v. S. Utah Wilderness Alliance (SUWA), 542 U.S. 55, 69 (2004).
22. See National Environmental Policy Act Documentation Needed for Developing, Revising, or Amending Land Management Plans; Categorical Exclusion, 71 Fed. Reg. 75,481 (Dec. 15, 2006) (categorically excluding Forest Service forest plans developed under the 2005 planning rule from NEPA analysis);
23. see also infra notes 306-09 and accompanying text (discussing the 2006 forest planning categorical exclusion).
24. See National Forest System Land Management Planning, 70 Fed. Reg. 1023 (Jan. 5, 2005) (to be codified at 36 C.F.R. pt. 219) (describing the Forest Service's revised regulations for NFMA forest planning);
25. see also infra notes 271-93 and accompanying text (discussing the Bush Administration's 2005 planning rule).
26. NFMA requires the Forest Service to prepare a forest plan every fifteen years for each of the 155 national forests it manages, at an estimated cost of $5 million to $7 million per plan. See 16 U.S.C. § 1604(f)(5) (2000) (requiring plans be revised whenever the Secretary finds a forest's conditions have changed "significantly" but at least every fifteen years); see also In One of His Last Acts, Bosworth Defends Planning Rule, PUBLIC LAND NEWS, Jan. 19, 2007, at 5.
27. Unlike the Forest Service, BLM does not have statutory or regulatory timelines for plan revisions. See 43 C.F.R. § 1610.5-6 (2006) (requiring BLM to revise land use plans "as necessary, based on . . . new data, new or revised policy and changes in circumstances affecting the entire plan or major portions of the plan").
28. Planning is expensive, but one of the congressional goals in establishing the planning process was to ensure better funding for the Forest Service, so that the agency would have sufficient resources to make informed and reasoned decisions that took into account a wider range of information and interests than commodity production. In the five years following NFMA's passage, Forest Service appropriations nearly doubled. LEMASTER, supra note 3, at 151.
29. In recent years, however, the Forest Service's budget has been slashed: President Bush's 2008 budget proposed reducing Forest Service funding from the previous year by $64 million, resulting in a budget request for the agency totaling $4.1 billion. Rocky Barker, Forest Service Money Is Drying Up, IDAHO STATESMAN, May 13, 2007, at 1. While appropriations for land use planning have been relatively flat in recent years, with $52.6 million marked for planning for 2008, or 1.28% of the agency's budget, the proportion of the Forest Service budget consumed by firefighting costs has increased dramatically. Id. In 2006, the agency spent $1.6 billion fighting fires, more than 40% of its entire budget.
30. Id. See also infra notes 79-91 and accompanying text (discussing Forest Service spending on land use planning).
31. BLM's budget was also reduced for 2008, although less dramatically: BLM's 2008 budget of $1.85 million is just $5 million less than its 2006 budget. See Bush's Budget, 2008, HIGH COUNTRY NEWS, Mar. 5, 2007, at 3;
32. see also infra notes 92-96 and accompanying text (discussing BLM spending on land use planning).
33. SUWA, 542 U.S. at 72.
34. 5 U.S.C. § 706(1) (2000).
35. FLPMA required BLM to review roadless areas larger than 5000 acres to determine their suitability for designation as wilderness. 43 U.S.C. § 1782(a) (2000).
36. See infra notes 123-26 discussing WSAs in Utah).
37. S. Utah Wilderness Alliance v. Norton (SUWA I), 301 F.3d 1217,1225 (10th Cir. 2002) (construing section 603(c) of FLPMA, 43 U.S.C. § 1782(c) (2000), which requires BLM to "continue to manage [WSAsc] ... in a manner so as not to impair the suitability of such areas for preservation as wilderness").
38. In addition, the Tenth Circuit interpreted section 302(a) of FLPMA, 43 U.S.C. § 1732(a) (2000), which requires BLM to "manage the public lands ... in accordance with the land use plans... when they are available." SUWA I, 301 F.3d at 1233.
39. BLM's regulations prevent the agency from acting in a way that is inconsistent with an area's land management plan. 43 C.F.R. § 1610.5-3(a) (2005) ("All future resource management authorizations and actions ... and subsequent more detailed or specific planning, shall conform to the approved plan").
40. See SUWA I, 301 F.3d at 1239 (concluding that BLM violated NEPA by failing to supplement the EIS on the applicable BLM resource management plan to account for substantial increases in ORV use).
41. SUWA, 542 U.S. at 66.
42. Id. at 71,
43. Id. at 73.
44. The Court did note that a supplemental NEPA analysis may be required when the agency revises or amends a land use plan. Id.
45. Also, the Court stated that plans that commit specific areas to ORV use would be reviewable. Id. at 69 n. 4. It would also seem that plans that authorize activities such as continued grazing levels should be reviewable.
46. Ohio Forestry Ass'n v. Sierra Club, 523 U.S. 726, 733 (1998).
47. Ohio Forestry did not preclude judicial review of all forest plan terms, however. The Court noted that claims based on a forest plan's ORV use restrictions, road closures, or trail construction provisions would not have been barred. Id. at 738.
48. However, because the Sierra Club did not raise these arguments below, the Court refused to consider them in reaching its decision. See infra notes 119-21 (discussing challenges to forest plans not barred by Ohio Forestry).
49. See Theo Stein, Forest Management "Streamlined" Bush's Rules Simplify ihe Planning Process, but Critics Say Timber and Mining Firms Will Benefit, DENVER POST, Dec. 23, 2004, at A1 (noting that Bush Administration officials billed the new rule as a means of streamlining the planning process by reducing the time the agency would spend revising each forest plan and cutting planning costs by nearly a third);
50. see also infra notes 271-93 and accompanying text (discussing the Bush Administration's 2005 planning rule).
51. National Forest System Land Management Planning, 70 Fed. Reg. 1023, 1025 (Jan. 5, 2005) (to be codified at 36 C.F.R. § 219).
52. The Forest Service promulgated the 2005 planning rule without seeking advice from a Committee of Scientists, a group of independent experts that Congress required the Forest Service to assemble in NFMA to advise the agency in developing land plan regulations. See George Hoberg, Science, Politics, and U.S. Forest Service Law: The Battle over the Forest Service Planning Rule, 44 NAT. RESOURCES J. 1, 21-22 (2004)
53. (noting that Democratic members of Congress, critical of the proposed planning rule, "chastised" the Bush Administration for making decisions without consulting a committee of scientists, a departure from "a long pattern of employing scientific advisers to help resolve difficult forest policy conflicts"). NFMA requires that the Secretary of Agriculture, before promulgating regulations governing land planning, to "appoint a committe of scientists who are not officers or employees of the Forest Service. The committee shall provide scientific and technical advice and counsel on proposed guidelines and procedures to assure that an effective interdisciplinary approach is proposed and adopted." 16 U.S.C. § 1604(h)(1) (2000).
54. National Environmental Policy Act Documentation Needed for Developing, Revising, or Amending Land Management Plans; Categorical Exclusion, 71 Fed. Reg. 75,481 (Dec. 15, 2006). This CX (see above) was just the latest in a series of congressional and administrative actions aimed at "streamlining" the NEPA process by exempting a wide range of activities from environmental review.
55. See ROBERT G. DREHER, NEPA UNDER SIEGE: THE POLITTCAL ASSAULT ON THE NATIONAL ENVIRONMENTAL POLICY ACT 7-10, Georgetown Envtl. L. & Pol'y Inst. 2005 (describing how expanded use of CXs, restrictions on the substance of environmental review, and restrictions on public participation and judicial review have been used in recent years to weaken NEPA);
56. see also Bradley C. Karkkainen, Whither NEPA?, 12 N.Y.U. ENVTL. L.J. 333, 352-55 (2004) (discussing the Bush Administration task force formed to reform NEPA that recommended expanding the use of CXs).
57. National Environmental Policy Act Documentation Needed for Developing, Revising, or Amending Land Management Plans; Categorical Exclusion, 71 Fed. Reg. at 75,483.
58. Congress passed NFMA, which required forest-wide planning, in 1976. See supra note 2 and accompanying text (discussing the passage of NFMA and FLPMA).
59. See WILKINSON & ANDERSON, supra note 4, at 72 (noting that before Congress exerted control over forest management in the 1970s, "Forest Service decisions were considered protected by an aura of virtual unreviewability"). As an example, Wilkinson and Anderson claimed that they were not able to uncover any evidence of a Forest Service activity being restrained by an injunction before 1970.
60. Id.
61. The authors cite Parker v. United States, 309 F. Supp. 593, 601 (D. Colo. 1970), aff'd 448 F. 2d 793 (10th Cir. 1971) (enjoining the Forest Service from completing a timber sale in a potential wilderness area in the White River National Forest until the President made a final decision on the area's wilderness designation), as the first case producing an injunction.
62. See 43 U.S.C. § 1701(a)(2) (2000) (stating it is in the "national interest" for public lands to be managed "through a land use planning process");
63. § 1701(a)(5) (requiring public participation in developing regulations governing public land decision making);
64. see also Coggins, supra note 5, at 10-11 (noting that congressional policies in FLPMA include the intent that "[i]nventorying and planning should become the central focus of rangeland management," as well as the intent to increase public involvement in BLM decision making).
65. See infra notes 79-96 and accompanying text (discussing the federal investment in land planning).
66. Office of the Fed. Reg., U. S. Government Manual 118 (2006-07).
67. 16 U.S.C. § 551 (2000).
68. The Department of Interior General Land Office managed the nation's forest reserves until 1905, when Congress transferred authority to manage the reserves to the Department of Agriculture Division of Forestry, which soon thereafter became the Forest Service. See id. § 472 (transferring forest management authority to the Secretary of Agricullture). Congress designated the forest reserves as national forests in 1907, ten years after passing the Organic Act.
69. See WILKINSON & ANDERSON, supra note 4, at 19 (discussing the beginnings of national forest planning).
70. 16 U.S.C. § 551.
71. 16 U.S.C. §§ 528-31.
72. See id. § 475 (declaring the purposes for establishing the national forests to be "to improve and protect the forest within the boundaries, or for the purpose of securing favorable conditions of water flows, and to furnish a continuous supply of timber").
73. Id. § 528.
74. Id. § 529.
75. Under the MUSYA, the Forest Service began to use planning for resource functions, such as wildlife and recreation, and it began to use zoning to designate areas appropriate for particular uses. See WILKINSON & ANDERSON, supra note 4, at 30-31 (describing the dual planning processes that the Forest Service developed in response to the MUSYA as the "parents of the integrated land and resource planning" in NFMA).
76. 16 U.S.C. §§ 1131-1136 (2000).
77. 42 U.S.C. §§ 4321-4370f (2000).
78. See WILKINSON & ANDERSON, supra note 4, at 32-33 (discussing how the Wilderness Act brought about a Forest Service decision to inventory roadless areas, and how, in addition to increasing public participation in Forest Service decision making, NEPA required the agency to analyze environmental effects of mining on its lands and prompted it to develop detailed resource inventories).
79. Forest and Rangeland Renewable Resources Planning Act of 1974 (RPA), Flub. L. 93-378, 88 Stat. 476 (codified as amended at 16 U.S.C. §§ 1601-1610 (2000)).
80. The RPA was among the first bills President Ford signed into law, just over a week after President Nixon resigned on Aug. 9, 1974. LE MASTER, supra note 3, at 49.
81. TRASK & FAIRFAX, supra note 10, at 324-25.
82. The RPA grew out of timber industry efforts in the late 1960s to promote legislation which would increase Forest Service funding to allow for more intensive management of high-quality timber sites and require the Forest Service to engage in national-level resource planning. When Congress finally passed the RPA, it was a resource planning and policy statute that some environmentalists also supported. Id.
83. LE MASTER, supra note 3, at 37.
84. WILKINSON & ANDERSON, supra note 4, at 77.
85. The RPA required the Forest Service to prepare an assessment describing the renewable resources on its lands every ten years, a programmatic proposal of long-range objectives for the agency every five years, and an annual report comparing the agency's activities to its proposed objectives. 16 U.S.C. §§ 1601(a), 1602, 1606(d) (2000).
86. See WILKINSON & ANDERSON, supra note 4, at 41 (discussing how the Forest Service's increase in timber sales and clearcutting prompted widespread criticism during the early 1970s).
87. W. Va. Div. of the Izaak Walton League of Am., Inc. v. Butz, 367 F. Supp. 422, 433 (N.D. W. Va. 1973), aff'd 522 F.2d 945 (4th Cir. 1975) (interpreting 16 U.S.C. § 476 (repeated 1976)).
88. WILKINSON & ANDERSON, supra note 4, at 72.
89. National Forest Management Act of 1976, Pub. L. 94-588, §13,90 Stat. 2958 (1976).
90. U.S.C. § 1604(d) (2000) (public participation); § 1604(f) (required forest plan provisions); § 1604(g)(3) (timber harvesting).
91. S. REP. NO. 94-893, at 7 (1976), as reprinted in 1976 U.S.C.C.A.N. 6667-68 (1976).
92. See WILKINSON & ANDERSON, supra note 4, at 42.
93. Two bills to reform national forest management were before the Senate to reform national forest management: Senate Bill 2926, S. 2926, 94th Cong. (1976), proposed by Sen. Randolph (D-W.Va.), established specific timber management standards, while Sen. Humphrey's bill, Senate Bill 3091, S. 3091 94th Cong. (1976), amended the Organic Act to allow clearcutting and required the Forest Service to regulate timber harvests through forest plans. See WILKINSON & ANDERSON, supra note 4, at 42.
94. Forest and Rangeland Management: J. Hearings Before the Subcomm. on Environment, Soil Conservation, and Forestry of the S. Comm. on Agriculture and Forestry and the Subcomm. on the Environment and Land Resources of the S. Comm. on Interior and Insular Affairs, 94th Cong. 262 (1976) (statement of Sen. Hubert Humphrey, Chairman, S. Comm. on Agriculture and Forestry).
95. S. REP. NO. 94-893, at 34 (1976), as reprinted in 1976 U.S.C.C.A.N. 6693.
96. WILKINSON & ANDERSON, supra note 4, at 72.
97. See id. at 69-72 (discussing how congressional concerns regarding an overemphasis on timber production instead of over other uses influenced NFMA's planning provisions).
98. U.S.C. § 1604(a) (2000).
99. Id. §§ 528-531.
100. Id. § 1604(g).
101. For example, NFMA restricted timber harvesting, required the Forest Service to adopt procedures for ensuring that forest plans were prepared consistent with NEPA, required the Forest Service to take inventory of resources, and required that all contracts and permits allowing use of a national forest conform to the forest's land management plan. Id. §§ 1604(g), (i).
102. Id. §1604(h)(1).
103. Id. §1604(g)(3).
104. Id. §1604(g)(1).
105. Id. §1604(i).
106. Reorganization Plan No. 2 of 1946, 11 Fed. Reg. 7876 (July 20, 1946). See Al Pierson, The Bureau of Land Management: A Half-Century of Challenges and Change, 32 LAND & WATER L. REV. 345, 345 (1997) (discussing the controversy over raising grazing fees from a nickel to fifteen cents per animal unit month that led to the decision to merge the Grazing Service with the General Land Office to create the BLM).
107. U.S. Government Manual, supra note 33, at 251.
108. U.S.C. §§ 1411-1418 (expired 1970);
109. see Coggins, The Developing Law of Land Use Planning, supra note 6, at 307 (discussing the origins of formal land use planning on the federal lands).
110. Pub. L. 91-190, 83 Stat. 852. For a more detailed discussion of early BLM planning, see Coggins, The Developing Law of Land Use Planning, supra note 6, at 317-19.
111. Natural Res. Def. Council v. Morton, 388 F. Supp. 829 (D. D.C. 1974), aff'd per curiam, 527 F.2d 1386 (D.C. Cir.), cert. denied, 427 U.S. 913 (1976).
112. More than a decade after FLPMA's planning requirements came into force, commentators lamented the "inconsistent and difficult" planning efforts undertaken by BLM, which resulted in resource management plans being prepared for just 12 out of 162 planning areas by 1987, even under the "drastically revised" planning regulations devised to streamline planning by limiting public participation promulgated under Interior Secretary Watt. Coggins, The Developing Law of Land Use Planning, supra note 6, at 318.
113. For a discussion of the Department of Interior policies under Secretary Watt, see George Cameron Coggins & Doris K. Nagel, "Nothing Beside Remains": The Legal Legacy of James G. Watt's Tenure as Secretary of Interior on Federal Land Law and Policy, 17 B.C. ENVTL. AFF. L. REV. 473, 489 (1990) (chronicling Secretary Watt's attempts to "change the way Interior conducted its business").
114. Coggins, supra note 5, at 15. The House Report on FLPMA stated that by legislating formalized policies for managing the public lands, the "proper multiple use mix of retained public lands is to be achieved by comprehensive land use planning, coordinated with State and local planning. Planning decisions are to be made only after full opportunity for public involvement in the planning process. Management and disposal of the public lands are to be consistent with land use plans so developed."
115. H. REP. NO. 94-1163, at 2 (1976), as reprinted in 1976 U.S.C.C.A.N. 6175, 6176. Like the Forest Service under NFMA, BLM was to "treat land use planning as dynamic and subject to change with changing conditions and values."
116. Id. at 6179.
117. Further, the House intended the public participation requirements in FLPMA would not diminish BLM's authority and responsibilities to manage the public lands, but instead to "provide means for input by the interested public before decisions are made." Id. at 6181.
118. Coggins, The Developing Law of Land Use Planning, supra note 6, at 321-23. According to 43 U.S.C. § 1712(c) (2000), the land use plans must 1) use and observe the principle of multiple use and sustained yield ... 2) use a systematic interdisciplinary approach to achieve integrated consideration of physical, biological, economic, and other sciences; 3) give priority to the designation and protection of areas of critical environmental concern; 4) rely, the to extend it is available, on the inventory of the public lands, their resources, and other values; 5) consider present and potential uses of the public lands; 6) consider the relative scarcity of the values involved and the availability of alternative means ...; 7) weigh long-term benefits to the public against short-term benefits; 8) provide for compliance with applicable pollution control laws ... ; and 9) to the extent consistent with the laws governing the administration of the public lands, coordinate the land use inventory, planning, and management activities ... with the land use planning ... of other [federal, state, and local agenciesc] ....
119. U.S.C. § 1712(c) (2000).
120. See also Bureau of Land Management, Land Use Planning Handbook 1 (Mar. 11, 2005) (establishing policies and guidance for BLM land use planning under FLPMA).
121. U.S.C. § 1701(a)(1) (2000). The statute also called for creating inventories of resources on public lands such that "their present and future use is projected through a land use planning process" and for setting "goals and objectives [to] be established by law as guidelines for public land use planning."
122. Id. §§ 1701(a)(2), (7).
123. BLM is to rely on these inventories in the planning process "to the extent [an inventory] is available." Id. § 1712(c)(4).
124. Id. § 1732(a).
125. FLPMA made an exception to the requirement that BLM manage lands consistent with the land plan, when available, "where a tract of such public land has been dedicated to specific uses according to any other provisions of law," in which case it "shall be managed in accordance with such law." Id.
126. C.F.R. § 1610.5-3(a) (2006).
127. Coggins, The Developing Law of Land Use Planning, supra note 6, at 323-25.
128. FLPMA requires that land sales, acquisitions, and conveyances by states must be consistent with land use plans. 43 U.S.C. §§ 1713(a), 1715(b), 1721(c)(1) (2000).
129. Additional FLPMA provisions required planning in BLM wilderness designation and in managing individual grazing permits. Id. §§ 1782, 1752(d).
130. FLPMA directs BLM to "allow an opportunity for public involvement and by regulation shall establish procedures ... to comment upon and participate in the formulation of plans and programs relating to the management of the public lands. 43 U.S.C. § 1712(f).
131. Section 103(d) of FLPMA defines "public involvement" as "the opportunity for participation by affected citizens in rule making, decision making, and planning with respect to the public lands." Id. § 1702(d).
132. RANDAL O'TOOLE, REFORMING THE FOREST SERVICE 176 (1988).
133. Dollar values have been adjusted for inflation to reflect 2007 values using the U.S. Department of Labor Bureau of Labor Statistics inflation calculator based on the Consumer Price Index. The inflation calculator is available at http://www.bls.gov/cpi/ (last visited Sept. 21, 2007).
134. O'TOOLE, supra note 79, at 176.
135. Id. The $300 million figure was based on the 123 plans slated for completion by 1985, estimating a $2 million per-plan cost for each of the sixty-plus plans that were not complete by the deadline.
136. Id. at 24. Adjusted for inflation, this figure would amount to $576 million in 2007 dollars.
137. See 16 U.S.C. § 1604(c) (2000) (requiring the Secretary of Agriculture to "attempt" to incorporate NFMA standards and guidelines into land plans for all units of the national forests by Sept. 30, 1985). Other estimates of planning costs have been much lower, with one suggesting that the Forest Service had spent just $250 million on planning by 1996.
138. Steven Quarles, The Problem with Planning, in THE NATIONAL FOREST MANAGEMENT ACT IN A CHANGING SOCIETY 135 (1998).
139. Mr. Quarles presented the oral arguments to the Supreme Court for the intervening industry groups in Ohio Forestry. U.S. Supreme Court Media, Ohio Forestry Association v. Sierra Club, http://www.oyez.org/ cases/1990-1999/1997/1997_97_16/ (last visited Sept. 21, 2007).
140. U.S. FOREST SERVICE & BUSINESS GENETICS, A BUSINESS EVALUATION OF THE 2000 AND PROPOSED NFMA PLANNING RULES 25 (2002). In comparison, the report estimated that plan revisions developed under the 2000 planning rule would have cost $12.9 million.
141. Id.
142. See also Robert Keiter, Public Lands and Law Reform: Putting Theory, Policy, and Practice in Perspective, 2005 UTAH L. REV. 1127, 1189-90 (2005) (discussing cost and procedural hurdles in federal land planning). Some estimates have placed recent planning costs slightly lower, at $5 to $7 million per plan.
143. See In One of His Last Acts, Bosworth Defends Planning Rule, PUBLIC LAND NEWS, Jan. 19, 2005, at 5.
144. USDA Forest Service, Cost-Benefit Analysis: The Final Rule (36 CFR 219) for National Forest Land Management Planning 22 (2005), http://www.fs.fed.us/emc/nfma/includes/cba2.pdf (last visited Sept. 21, 2007).
145. National Forest System Land and Resource Management Planning, 60 Fed. Reg. 18,886 (Apr. 13, 1995).
146. At the time the Forest Service issued the 1995 Federal Register notice, forest plans had been developed for all but four national forests: The Klamath, Six Rivers, Mendocino, and Shasta-Trinity National Forests.
147. Id. Forest plans for these forests, all located in Northern California, were approved by the end of 1995. USDA Forest Service, Land and Resource Management Plan, Klamath National Forest, 1995;
148. Shasta-Trinity National Forest, Land and Resource Management Plan, 1995;
149. Mendocino National Forest, Forest Management Plan, 1995;
150. Six Rivers National Forest LRMP, 1995.
151. U.S.C. § 1604(f)(5) (2000).
152. See USDA Forest Service, Schedule of Forest Service Land Management Plan Revisions & New Plans, Apr. 2, 2007, http://www.fs.fed.us/emc/nfma/includes/LRMP schedule.pdf (last visited September 21, 2007) (listing land management plans that have been revised, are in the process of revision, or are in need of revision).
153. See National Forest System Land Management Planning, 70 Fed. Reg. 1023, 1024 (Jan. 5, 2005) (stating that the Forest Service has prepared 150 forest plans and plan revisions).
154. Although the Forest Service has prepared a plan for each of the national forests and grasslands that it manages, the agency has issued a single plan covering multiple areas in some instances. This practice appears to be most prevalent in plans for forests and grasslands in the Southern (Region 8) and Rocky Mountain (Region 2) regions. In Region 2, for example, one plan includes the Arapaho and Roosevelt National Forests, along with the Pawnee National Grassland, and another single plan covers the Kiowa, Rita Blanca, Black Kettle, and McClellan Creek National Grasslands.
155. USDA Forest Service, Arapaho & Roosevelt National Forests, Pawnee National Grassland, http://www.fs.fed.us/r2/arnf/projects/ (last visited May 16, 2007);
156. Cibola National Forest, Projects & Plans, http://www.fs.fed.us/r3/ cibola/projects/index.shtml (last visited May 16, 2007).
157. In Region 8, some plans combine individual forests, while other plans include all the national forest land in a particular state.
158. USDA Forest Service, Forest Planning in the Southern Region, http://www.fs.fed.us/r8/planning/status_of_plans.shtml (last visited May 16, 2007).
159. National Forest System Land Management Planning, 70 Fed. Reg. at 1024.
160. UNITED STATES DEPARTMENT OF AGRICULTURE FOREST SERVICE, FISCAL YEAR 2008, PRESIDENT'S BUDGET OVERVIEW D-2 (2007) [hereinafter FOREST SERVICE FY2008 BUDGET], available at http://www.fs.fed.us/publications/budget-2008/fy2008-forest-service- budget-overview.pdf. These figures show a slight decline from 2006, when the Forest Service received $57.7 for land management planning and $166.2 million for monitoring and evaluation.
161. Id. By comparison, in 2002, the Forest Service appropriated $70.358 million for land management planning;
162. in 2003, the figure climbed to $72.158 million, but dropped back down to $70.868 million for 2004.
163. UNITED STATES DEPARTMENT OF AGRICULTURE FOREST SERVICE, FISCAL YEAR 2004, BUDGET JUSTIFICATION I-20, available at http://www.taxpayer.net/forest/USFSFY04BudgetJustification.pdf.
164. FOREST SERVICE FY2008 BUDGET, at D-5.
165. In comparison, Forest Service spending on wildland fire management has increased from 13% of the agency's annual budget in 1991 to 45% of the 2008 budget.
166. Id. at 3.
167. U.S. OFFICE OF MGMT. AND BUDGET, DETAILED INFORMATION ON THE BUREAU OF LAND MANAGEMENT - LAND USE PLANNING ASSESSMENT, http://www.whitehouse.gov/omb/expectmore/detail/10003707.2005.html.
168. See Forest Service Gets Little Public Help in Money Bill Run-Up, PUBLIC LAND NEWS, May 4, 2007, at 3 (noting that dozens of witnesses voiced their support of BLM programs before the U.S. House subcommittee on Interior appropriations).
169. Like the Forest Service, BLM also must devote a large chunk of its annual budget to wildland fire management, with the $801.8 million marked for fire suppression encompassing 43% of BLM's 2008 budget.
170. See Press Release, U.S. Department of Interior, President's Budget Will Improve National Parks, Working Landscapes, Indian Education and Safety (Feb. 5, 2007), http://www.doi.gov/news/07_News_Releases/ 070205b.html.
171. See Forest Service Gets Little Public Help in Money Bill Run-Up, PUBLIC LAND NEWS, May 4, 2007, at 3.
172. U.S. Dept. of Interior, Bureau of Land Management, Land Use Planning, http://www.blm.gov/planning/policy.html (last visited Apr. 13, 2007).
173. This figure is based on an estimated cost of $3.2 million for each of the 162 BLM land plans.
174. Norton v. S. Utah Wilderness Alliance (SUWA), 542 U.S. 55, 72 (2004).
175. See infra notes 144-67, and accompanying text (discussing the Court's reasoning in SUWA).
176. SUWA, 542 U.S. at 72.
177. See Brett Birdsong, Justice Scalia's Footprints on the Public Lands, 83 DEN. U. L. REV. 259, 285 (2005) (arguing that "by relying on the traditional elements of mandamus as a limit to the right to judicial review of agency nonfeasance under the APA," Justice Scalia has advanced his agenda of protecting the executive branch from judicial oversight). Other commentators have found Scalia's reasoning to be suspect.
178. See, e.g., William D. Araiza, In Praise of a Skeletal APA: Norton v. Southern Utah Wilderness Alliance, Judicial Remedies for Agency Inaction, and the Questionable Value of Amending the APA, 56 ADMIN. L. J. 979, 985 (2004) (describing the Court's restriction of the APA provision allowing agency inaction to be reviewable to be limited to "discrete" actions to be "remarkably weak," in light of the APA's overarching policies and purposes aimed at maximizing opportunities "to seek meaningful judicial review consistent with a respect for the discretion retained by the agency");
179. Justin C. Konrad, Comment, The Shrinking Scope of Judicial Review in Norton v. Southern Utah Wilderness Alliance, 77 U. COLO. L. REV. 515, 534 (2006) (arguing that the FLPMA's non-impairment mandate satisfied the Lujan requirements for "agency action" relied on in the Court's SUWA opinion)
180. Noah Perch-Ahern, Comment, Broad Programmatic Attacks: SUWA, the Lower Courts' Responses, and the Law of Agency Inaction, 18 TUL. ENVTL. L. J. 411, 422-29 (2005) (discussing early responses to SUWA in the lower courts).
181. 497 U.S. 871, 890 (1990).
182. 523 U.S. 726, 732 (1998).
183. See infra notes 110-18, and accompanying text (discussing the Court's Ohio Forestry decision).
184. 497 U.S. 871 (1990);
185. see Brett Birdsong, Road Rage and R.S. 2477: Judicial and Administrative Responsibility for Resolving Road Claims on Public Lands, 56 HASTINGS L. J. 523, 575-78 (2005) (discussing Justice Scalia's approach to interpreting when an agency regulation is retroactive based on whether the conduct occurs before the regulation's adoption).
186. 497 U.S. at 877.
187. See 43 U.S.C. § 1714 (2000) (authorizing BLM to make or modify land withdrawals).
188. Id. § 1712(d) (authorizing BLM to review land classifications as part of the land use planning process).
189. Nat'l Wildlife Fed'n v. Burford, 699 F. Supp. 327, 332 (D. D.C. 1988).
190. Nat'l Wildlife Fed'n v. Burford, 878 F. 2d 422, 425 (D.C. Cir. 1989).
191. The D.C. Circuit had earlier concluded the environmentalists had standing in this suit when it upheld a preliminary injunction issued by the district court preventing BLM from making any new withdrawal revocations or classification terminations.
192. 835 F.2d 305, 314 (D.C. Cir. 1987), reh'g denied, 844 F.2d 889 (D.C. Cir. 1988).
193. Lujan, 497 U.S. at 890.
194. Id. at 894.
195. Scalia wrote that "[e]xcept where Congress explicitly provides for [the Court'sc] correction of the administrative process at a higher level of generality, we intervene in the administration of the laws only when, and to the extent that, a specific 'final agency action' has an actual or immediately threatened effect."
196. Id. See also Birdsong, supra note 100, at 278 (discussing Scalia's Lujan concerns over programmatic judicial review of executive agency decisions).
197. Lujan, 497 U.S. at 894.
198. After Lujan, a split developed in the appellate courts over whether land use plans were reviewable by the courts. While both the Seventh and Ninth Circuits held that suits challenging land use plans were ripe, the Eighth and Eleventh Circuits rejected claims challenging land use plans on grounds that the challenges were not ripe outside the context of site-specific actions.
199. See Wilderness Soc'y v. Alcock, 83 F.3d 386, 390 (11th Cir. 1996) (interpreting Lujan to indicate that a challenge to the forest plan for the Cherokee National Forest was not ripe);
200. Sierra Club v. Marita, 46 F.3d 606, 613-14 (7th Cir. 1995) (holding that a forest plan was ripe for review and distinguishing Lujan);
201. Sierra Club v. Robertson, 28 F.3d 753, 758-59 (8th Cir. 1994) (concluding that environmentalists lacked standing to challenge the forest plan for the Ouachita National Forest absent a site-specific action, analogizing challenging a forest plan to the type of programmatic challenge the Court rejected in Lujan);
202. Idaho Conservation League v. Mumma, 956 F.2d 1508, 1517-19 (9th Cir. 1992) (distinguishing Lujan and holding that environmentalists had standing to challenge the forest plan for the Idaho Panhandle National Forest).
203. See also Trent Baker, Judicial Enforcement of Forest Plans in the Wake of Ohio Forestry, 21 PUB. LAND & RESOURCES L. REV. 81, 86 (2000) (discussing the split that developed in the circuits following Lujan that led up to the Court's Ohio Forestry decision).
204. U.S. 726, 739 (1998).
205. Id. at 728-29.
206. The land plan for the Wayne National Forest allowed logging to take place on 126,000 acres of the 178,000 acre forest, with a projected timber harvest of 8000 acres, 5000 acres of which were to be clear-cut.
207. Id. (citing USDA Forest Service, Land and Resource Management Plan, Wayne National Forest A-13 to A-17 (1987)).
208. See Sierra Club v. Robertson, 845 F. Supp. 485, 503 (S.D. Ohio 1997) (concluding that the Forest Service had fulfilled its statutory planning requirements under NFMA in adopting the forest plan).
209. Sierra Club v. Thomas, 105 F.3d 248, 250-51 (6th Cir. 1997).
210. The Sixth Circuit concluded that the Forest Service failed to comply with NFMA's restrictions on clearcutting because the planning process favored clearcutting and prioritized timber interests over recreation and other uses of the forest, rejecting a Forest Service argument that clearcutting would "provide new opportunities for recreation."
211. Id.
212. Ohio Forestry, 523 U.S. at 733.
213. Justice Breyer noted that he was paraphrasing United States v. Los Angeles & Salt Lake R.R. Co., 273 U.S. 299, 309-10 (1927), where a railroad challenged a "final report" on the value of its properties that the Interstate Commerce Commission prepared under what the Court referred to as the "Valuation Act," actually a series of amendments to the Interstate Commerce Act of 1887, 24 Stat. 379, requiring the Interstate Commerce Commission to investigate and make findings regarding the value of railroad properties.
214. Id. at 307.
215. Brief for the Federal Respondents at 32-33, Ohio Forestry, 523 U.S. 726 (No. 97-16).
216. Ohio Forestry, 523 U.S. at 737.
217. Id. at 738-39.
218. See infra notes 120-121 (discussing challenges to land use plans not barred by ripeness concerns after Ohio Forestry). This result would also seem to apply to a plan's approval of a continuation of authorized grazing levels.
219. A NEPA challenge to a land plan would be ripe because NEPA "simply guarantees a particular procedure, not a particular result." Ohio Forestry, 523 U.S. at 737. Therefore, a claim alleging procedural injury arising from an agency's failure to comply with NEPA in developing a land plan would be ripe. Justice Breyer further noted that had the Sierra Club raised the claims that the forest plan's approval of ORV use, or its failure to close roads or provide for additional traits, in its complaint "the ripeness analysis in this case with respect to those provisions of the Plan that produce the harm would be significantly different."
220. Id. at 738.
221. "[P]rocedural harm" results when the injury arises from an agency's failure to follow statutorily required procedures, such as violating NEPA. See Baker, supra note 109, at 105-06 (concluding that although Ohio Forestry recognized that claims of NEPA violations in the preparation of forest plans, plaintiffs may also be able to show procedural harm under NFMA, FLPMA, or the ESA);
222. see also Barton J. Birch, Comment: Ohio Forestry and What It Means for the Future, 37 IDAHO L. REV. 141, 162-66 (2000) (discussing lower courts' upholding challenges to land use plans as ripe in limited situations after Ohio Forestry, but concluding that challenges to substantive plan provisions outside the context of a site-specific action were not ripe).
223. The Court noted that had the Sierra Club raised the argument that the forest plan's approval of ORV use, its failure to close roads, and its failure to provide for additional trails, those claims might not have been barred by ripeness doctrine because they could have resulted in injury to an interested party without additional action. Ohio Forestry, 523 U.S. at 738. By inference, this reasoning would also seem to apply to authorizing continuation of grazing.
224. Claims against site-specific actions authorized by land use plans would of course be ripe. See Baker, supra note 109, at 95-106 (cataloging lower court decisions in challenges to forest plans during the first two years after Ohio Forestry, and concluding that ripeness problems did not prevent plaintiffs from proceeding with claims of procedural harm or challenges alleging site-specific harm).
225. One exception was in the Ninth Circuit, which adopted a broad interpretation of Ohio Forestry, concluding that a suit challenging the Forest Service's failure to implement the monitoring requirements in a plan was not ripe. Ecology Ctr., Inc. v. United States Forest Serv., 192 F.3d 922, 926 (9th Cir. 1999).
226. See Ohio Forestry, 523 U.S. at 734 (explaining why broader, non-site-specific suits are not ripe by stating that "[t]he Sierra Club thus will have ample opportunity later to bring its legal challenge at a time when harm is more imminent and more certain").
227. In FLPMA, Congress directed the Secretary of Interior to evaluate all BLM roadless areas (not merely those in Utah), mostly greater than 5000 acres, for suitability for wilderness designation under the Wilderness Act, by Oct. 21, 1991. 43 U.S.C. § 1782(a) (2000).
228. Based on that inventory, the Act required the Secretary to recommend, "from time to time," wilderness lands to the President, whom the statute then required to make recommendations to Congress within two years of receiving the Secretary's recommendation, as only Congress may designate land as wilderness. Id. §§ 1782(a),(b).
229. See Final Wilderness Inventory Decision, 45 Fed. Reg. 75,602, 75,604 (Nov. 14, 1980) (dropping 3.2 million of the 5.2 million acres the BLM inventoried from further consideration as wilderness for lack of wilderness characteristics); Bureau of Land Management, UTAH STATE WILDERNESS STUDY REPORT 3 (1991) (recommending designation of 1.9 million acres);
230. see also Michael C. Blumm, The Bush Administration's Sweetheart Settlement Policy: A Trojan Horse Strategy for Advancing Commodity Production on Public Lands, 34 ENVTL. L. REP. 10,397, 10,404 (2004) (discussing BLM's wilderness inventories in Utah, and noting that in the 1990s, envirorimentalists identified an additional 5.9 million acres of potential wilderness in Utah that BLM overlooked).
231. See 43 U.S.C. § 1782(c). BLM issued an "interim management policy" on wilderness management in 1979.
232. Interim Management Policy and Guidelines for Lands Under Wilderness Review, 44 Fed. Reg. 72,014 (Dec. 12, 1979) (requiring BLM to manage WSAs in a manner that ensures the wilderness values will not be impaired before Congress makes it final determination).
233. See also S. Utah Wilderness Alliance v. Norton (SUWA I), 301 F.3d 1217, 1225 n.4 (10th Cir. 2002) (describing how BLM interpreted FLPMA's nonimpairment mandate in its interim management policy for WSAs).
234. U.S.C. §§ 1131(a)-(c) (2000).
235. See 43 U.S.C § 1782(c) (2000) (requiring BLM to manage WSAs so as "not to impair the suitability of such areas for preservation as wilderness... "). Congress was not only unable to designate wilderness areas in Utah, it largely failed to do so throughout the West. Nearly twenty years later, the only BLM designated wilderness areas are in Arizona, Arizona Desert Wilderness Act of 1990, Pub L. No. 101-628, 104 Stat. 4469, California, California Desert Protection Act of 1994, Pub. L. No. 103-433,108 Stat. 4471, and in southern Nevada, outside Las Vegas, Clark County Conservation of Public Land and Natural Resources Act of 2002, Pub. L. No. 107-282, 116 Stat. 1994.
236. The Wilderness Act defines wilderness "as an area where the earth and its community of life are untrammeled by man, where man himself is a visitor who does not remain ... an area of undeveloped Federal land retaining its primeval character and influence ... affected primarily by the forces of nature, with the imprint of man's work substantially unnoticeable [and possessing] outstanding opportunities for solitude or a primitive or unconfined type of recreation..." 16 U.S.C. § 1131(c) (2000).
237. See Norton v. S. Utah Wilderness Alliance (SUWA), 542 U.S. 55, 60 (2004). In 2004, the Forest Service estimated that approximately 42 million people in the United States use ORVs each year, more than double the number of ORV users two decades before. Id. Between 1998 and 2003, sales of ORVs doubled, with 900,000 new vehicles sold in the United States in 2003.
238. Id. In Utah, ORV use has increased even more dramatically, with the number of registered ORVs in the state climbing from 9,000 in 1979 to 83,000 in 2000, to more than 120,000 in 2007.
239. Southern Utah Wilderness Alliance, Off-Road Vehicles: Searching for Balance and Quiet in Utah's Wilderness, http://www.suwa.org/site/ PageServer?pagename=work_orv (last visited Mar. 30, 2007).
240. SUWA I, 301 F.3d at 1223; 5 U.S.C. § 706(1) (2000). The APA states that "the reviewing court shall ... compel agency action unlawfully withheld or unreasonably delayed." SUWA I, 301 F.3d at 1223.
241. SUWA I, 301 F.3d at 1222.
242. Id. at 1234.
243. See Henry Mountain Resource Area Off-Road Vehicle Implementation Plan (Sept. 1988), in Joint Appendix at 140, Norton v. S. Utah Wilderness Alliance, 542 U.S. 55 (2004) (No. 03-101);
244. SUWA, 542 U.S. at 68.
245. See Final Resource Management Plan, San Rafael Resource Area (May 1991), in Joint Appendix at 154 Norton v. S. Utah Wilderness Alliance, 542 U.S. 55 (2004) (No. 03-101); 2003 U.S. Briefs 101, 154;
246. SUWA I, 301 F.3d at 1234.
247. See SUWA I, 301 F.3d at 1237. BLM had not updated its NEPA analysis for any of the challenged land plans in more than a decade. Id.
248. S. Utah Wilderness Alliance v. Babbitt, No. 2:99CV852K, 2000 WL 33914094 at *1 (D. Utah Dec. 22,2000).
249. Id. at *9.
250. Id.
251. SUWA I, 301 F.3d at 1224. BLM argued that it could not be compelled to act because it had taken some steps to address ORV activity by closing some routes and posting signs prohibiting ORV use in others. The Tenth Circuit rejected this argument, holding that partial compliance that falls short of satisfying an actual legal requirement was insufficient to moot a claim to compel an agency to fulfill its obligations. Id. at 1231.
252. Id. at 1235-36.
253. Id. at 1236.
254. Id. at 1239. A dissent agreed with the majority that BLM could be compelled to take a hard look to consider whether it should supplement its NEPA analysis.
255. Id. at 1240 (McKay, C.J., concurring in part and dissenting in part).
256. Norton v. S. Utah Wilderness Alliance, 540 U.S. 980 (2003).
257. Motorized recreationalists also petitioned for certiorari. See Utah Shared Access Alliance v. S. Utah Wilderness Alliance (SUWA), 542 U.S. 917 (2004) (remanding the case after the Court reversed the Tenth Circuit decision in SUWA I).
258. SUWA, 542 U.S. at 56 (2004).
259. Id. at 60-61.
260. Id. at 56.
261. 5 U.S.C. § 702 (2000). Only final agency actions may be challenged under the APA.
262. Id. § 704.
263. Id. § 551(13) (emphasis added).
264. SUWA, 542 U.S. at 62.
265. Id. Justice Scalia concluded that "discrete agency actions" were those which fit within the definition of the different categories of "agency action," as defined by the APA.
266. Id. The APA defines "agency action" to include "the whole or part of an agency rule, order, license, sanction, [or] relief." 5 U.S.C. § 551(13) (2000). Under the APA, a "rule" includes "an agency statement of . . . future effect designed to implement, interpret, or prescribe law or policy."
267. Id. § 551(4). An "order" includes "a final disposition . . . in a matter other than rulemaking."
268. Id. § 551(6). A "license" means "a permit . . . or other form of permission."
269. Id. § 551(8). A "sanction" includes a "prohibition . . . or . . . taking [of] other compulsory or restrictive action."
270. Id. § 551(10). "Relief" includes a "grant of money, assistance, license, authority" or "recognition of a claim, right, or immunity," or the "taking of other action on the application or petition or, and beneficial to a person."
271. Id. § 551(11).
272. SUWA, 542 U.S. at 62;
273. 5 U.S.C. § 551(13);
274. see also supra note 148 and accompanying text.
275. SUWA, 542 U.S. at 63;
276. see also supra note 147 and accompanying text.
277. SUWA, 542 U.S. at 64. Justice Scalia also authored Lujan v. National Wildlife Federation, 497 U.S. 871 (1990), in which the Court rejected a challenge to the BLM's "land withdrawal review" program on the ground that there was no program, and therefore no agency action. 797 U.S. at 879, discussed supra notes 100-10 and accompanying text. But see Konrad, supra note 100, at 534 (arguing that the FLPMA's non-impairment mandate did in fact satisfy Lujan's requirements for "agency action," which the Court in turn relied on in SUWA).
278. SUWA, 542 U.S. at 66.
279. Id. While he did not consider FLPMA's non-impairment mandate for managing WSAs to be a "discrete" action that could be challenged under the APA, Justice Scalia earlier concluded that a biological opinion prepared under the Endangered Species Act was a "final agency action" challengeable under section 704 of the APA in Bennett v. Spear, 520 U.S. 154, 178-79 (1997) (holding that irrigators could challenge a biological opinion addressing Bureau of Reclamation dam operations on the Klamath River as a final agency action because the opinion marked the "consummation" of the agency's decision-making process, and because it had "direct and appreciable legal consequences").
280. SUWA, 542 U.S. at 68.
281. Id.
282. Id. at 71. The Court was concerned that allowing land use plan enforcement by citizens would place an undue burden on land management decision making because "allowing general enforcement of plan terms would lead to pervasive interference with BLM's own ordering of priorities."
283. Id.
284. 43 U.S.C. § 1732(a) (2000).
285. SUWA, 542 U.S. at 71.
286. Id. at 69.
287. Id. at 72. According to the Court, such vague land use plans would result in "making coordination with other agencies more difficult, . . . depriving the public of important information concerning the agency's long-range intentions."
288. Id.
289. See 2006 Memorandum from Coggins et al., updating the 5th ed. of FEDERAL PUBLIC LAND AND RESOURCES LAW, at 125 (highlighting SUWA's influence on the 2005 planning rule) (on file with author).
290. See also infra notes 271-93 (discussing recent agency amendments to the planning process in the 2005 planning rule).
291. See Henry Mountain Resource Area Off-Road Vehicle Implementation Plan (Sept. 1988), supra note 132 and accompanying text.
292. Justice Scalia unhelpfully suggested that what was required was a "clear indication of binding commitment in the terms of the plan." SUWA, 542 U.S. at 69.
293. SUWA, 542 U.S. at 72.
294. Id. at 73.
295. Id. According to Justice Scalia, because " '[a]pproval of a [land use plan]' is a 'major Federal action' requiring an EIS, that action is completed when the plan is approved. The land use plan is the 'proposed action' contemplated by the regulation. There is no ongoing 'major Federal action' that could require supplementation . . . ."
296. Id. (citation omitted) (emphasis in original).
297. Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871 (1990).
298. Id. See supra notes 103-09 and accompanying text (discussing Lujan).
299. Ohio Forestry v. Sierra Club, 523 U.S. 726 (1998).
300. See supra notes 110-18 and accompanying text (discussing Ohio Forestry).
301. SUWA 542 U.S. at 55.
302. See supra notes 142-67 and accompanying text (discussing SUWA).
303. SUWA's effect on wilderness in Utah has been especially harsh. After the Court's decision, the Bush Administration entered a settlement agreement with the state of Utah revoking post-1991 WSAs in the state and eliminating new designations.
304. See Henry Weinstein, Utah Wilderness Appeal Rejected, L.A. TIMES, Feb. 11, 2005, at A27;
305. see also Blumm, supra note 123, at 10, 406-07 (noting that in the 2003 Utah settlement, BLM agreed not to manage lands as WSAs not identified prior to 1993, including 2.6 million acres identified as WSAs in a 1999 inventory, and the Department of Interior also agreed to revoke the Wilderness Handbook and other policies directing BLM to use the land planning process to identify potential wilderness areas);
306. see also Perch-Ahern, supra note 100, at 422-29 (discussing early responses to SUWA in the lower courts).
307. Mont. Wilderness Ass'n v. U.S. Forest Serv., 314 F.3d 1146, 1151 (9th Cir. 2003).
308. Veneman v. Mont. Wilderness Ass'n, 542 U.S. 917 (2004).
309. On remand, the Ninth Circuit sent the case back to the district court. Mont. Wilderness Ass'n v. U.S. Forest Serv., 376 F.3d 1181 (9th Cir. 2004).
310. Ctr. for Biological Diversity v. Veneman, 335 F.3d 849 (9th Cir. 2003) (placing heavy reliance on the original Ninth Circuit Montana Wilderness Association opinion).
311. When the Supreme Court remanded Montana Wilderness Association, 542 U.S. 917, the Ninth Circuit reconsidered its decision and reversed itself.
312. Ctr. for Biological Diversity v. Veneman, 394 F.3d 1108, 1113 (9th Cir. 2005).
313. Ctr. for Biological Diversity, 394 F.3d at 1113.
314. See Or. Natural Desert Ass'n v. Rasmussen, 451 F. Supp. 2d 1202, 1215 (D. Or. 2006) (holding that BLM's approval of projects without sufficient information about wilderness values to make a reasoned decision of environmental impacts violated NEPA);
315. Friends of Yosemite Valley v. Scarlett, 439 F. Supp. 2d 1074, 1089-90 (E.D. Cal. 2006) (holding that SUWA did not preclude an action challenging a record of decision adopting a revised plan);
316. Soda Mountain Wilderness Council v. Norton, 424 F. Supp. 2d 1241, 1259-60 (E.D. Cal. 2006) (distinguishing SUWA both because the challenged action was an affirmative decision to amend a plan and because the original plan contained language stating the plan represented "BLM's commitment to these public desires and constitutes a compact with the public" to consolidate public lands with outstanding recreation opportunities or imperiled biological resources);
317. Ctr. for Biological Diversity v. Bureau of Land Mgmt., 422 F. Supp. 2d 1115, 1166 (N.D. Cal. 2006) (ruling that it was arbitrary and capricious for BLM to approve a land management plan without taking the presence of listed species into consideration);
318. W. Watersheds Project v. Bennett, 392 F. Supp. 2d 1217, 1227-28 (D. Idaho 2005) (rejecting a BLM argument that land use plan provisions were unenforceable under SUWA and holding that BLM's failure to comply with a land plan's monitoring requirements violated the land use plan).
319. See Buckeye Forest Council v. U.S. Forest Serv., 378 F. Supp. 2d 835, 845 (S.D. Ohio 2005) (holding that SUWA foreclosed a claim to compel the Forest Service to prepare a supplemental EIS for a forest plan when an endangered species was discovered in a forest and the existing forest plan did not reflect the species' presence);
320. Shawnee Trail Conservancy v. Nicholas, 343 F. Supp. 2d 687, 712-14 (S.D. Ill. 2004) (ruling that under SUWA, the Forest Service could not be compelled by recreationalists to undertake a trail maintenance program that could lead to reinstatement of ORV use in a national forest).
321. See Norton v. S. Utah Wilderness Alliance (SUWA), 542 U.S. 55, 69-70 (2004).
322. See Paul B. Smyth & Christina S. Kalavritinos, The Supreme Court's Decision: More than Another Lujan?, 41 ROCKY MTN. MIN. L. FOUND. 279, 280 (2004).
323. Id.
324. Id. at 293. FLPMA requires BLM to maintain and update an inventory of the public lands and their resources under its management.
325. U.S.C. § 1711(a) (2000).
326. Smyth & Kalavritinos, supra note 180, at 293.
327. Id.
328. The APA defines the term "agency action" to include "the whole or part of an agency rule, order, license, sanction, [or] relief." 5 U.S.C. § 551(13) (2000).
329. See supra notes 146-52 (discussing Justice Scalia's interpretation of "agency action" in SUWA).
330. Pac. Rivers Council v. Thomas, 30 F.3d 1050, 1055 (9th Cir. 1994).
331. Id. at 1053.
332. 137 F.3d 1372, 1378 (9th Cir. 1998). NFMA requires the Forest Service to demonstrate that site-specific projects are consistent with the applicable forest plan.
333. 16 U.S.C. st 1604(i) (2000).
334. In Cuddy Mountain, the Ninth Circuit held that a timber sale was inconsistent with the forest plan because the plan required the Forest Service to evaluate the effect of actions on species dependant on old-growth forest habitat by analyzing the effects of the action on certain management indicator species, and the Forest Service failed to analyze how the sale would effect old-growth habitat for the pileated woodpecker habitat, a management indicator species. 137 F.3d at 1377.
335. Before SUWA and Ohio Forestry, challenges to land plans were generally considered ripe, and the plans themselves were enforceable on their terms. See Res. Ltd., Inc. v. Robertson, 35 F.3d 1300, 1303-04 (9th Cir. 1994) (rejecting the Forest Service's argument that a challenge to the forest plan for the Flathead National Forest would not be ripe unless it was brought in the context of a site-specific action);
336. Seattle Audubon Soc'y v. Espy, 998 F.2d 699, 703 (9th Cir. 1993) (holding that "plaintiffs need not wait to challenge a specific project when their grievance is with an overall plan");
337. Portland Audubon Soc'y v. Babbitt, 998 F.2d 705, 708 (9th Cir. 1993) (holding a Forest Service decision not to supplement the NEPA analysis on a forest plan was ripe because "to the extent these [plansc] pre-determine the future, the Secretary's failure to comply with NEPA represents a concrete injury that would undermine any future challenges");
338. Idaho Conservation League v. Mumma, 956 F.2d 1508, 1516 (9th Cir. 1992) (noting that if challenges could not be brought against an EIS that was not site-specific the program could never be reviewed, and noting "[t]o the extent that the plan pre-determines the future, it represents a concrete injury that plaintiffs must, at some point, have standing to challenge"). The effect of this turnabout in the enforceability of land plan terms is most dramatically demonstrated by two Ninth Circuit decisions which were reversed in SUWA's immediate aftermath:
339. Ctr. for Biological Diversity v. Veneman, 394 F.3d 1108 (9th Cir. 2005), which is discussed supra notes 175-76 and accompanying text;
340. and Mont. Wilderness Ass'n v. U.S. Forest Serv., 314 F.3d 1146 (9th Cir. 2003), which is discussed supra notes 173-74 and accompanying text.
341. Smyth & Kalavritinos, supra note 180, at 287-88.
342. An example of agency conduct not rising to the level of an "action," and thus arguably unreviewable under SUWA, is BLM's responsibility to conduct land inventories under FLPMA; which DOI attorney Paul Smyth has maintained are not actions because they do not "change or prevent change of the management or use of the public lands."
343. Id. at 293,
344. citing 43 U.S.C. § 1711(a) (2000).
345. Section 551 of the APA defines "agency action" to include "the whole or part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act." 5 U.S.C. § 551(13) (2000).
346. Or. Natural Desert Ass'n v. Taylor, No. 04-334-KI, 2005 WL 106599, at *5 (D. Or. Jan. 18, 2005),
347. (relying on Ctr. for Biological Diversity v. Veneman, 394 F.3d 1108 (9th Cir. 2005)). Center for Biological Diversity is discussed supra notes 175-76 and accompanying text.
348. Taylor, 2005 WL 106599, at *6.
349. Federal Rangeland Health regulations require BLM to develop state standards and guidelines for managing livestock grazing on public lands consistent with ecological criteria to ensure watershed health, water quality, and wildlife habitat are maintained or restored on public rangelands. 43 C.F.R. § 4180.1 (2006).
350. These regulations also authorize BLM to conduct an assessment of whether the standards are being met in an area and, if they are not, to take action to help move the area toward compliance with the standards. 43 C.F.R. § 4180.2(c) (2006).
351. ONDA argued that when BLM failed to perform such assessments on seven grazing management areas in the Jordan Resource Area, the agency failed to make a mandatory determination of whether the area met the rangeland health standards. Taylor, 2005 WL 106599, at *4.
352. The court rejected this argument, holding that under SUWA, a failure to consider certain issues in making planning decisions does not constitute a failure to take a discrete agency action. Id. at *5.
353. F. Supp. 2d 1202, 1215 (D. Or. 2006).
354. FLPMA requires BLM to maintain a current inventory of the lands and their resources under its management. 43 U.S.C. § 1711(a) (2000).
355. ONDA argued that by failing to maintain an inventory of the area's wilderness values, BLM failed to identify additional WSAs the agency overlooked in the initial 1989 inventory. Rasmussen, 451 F. Supp. 2d at 1206-07.
356. Rasmussen, 451 F. Supp. 2d at 1211.
357. Id. at 1212-13.
358. No. Civ. 03-1017-JE, 2005 WL 711663, at *4 (D. Or. Mar. 29, 2005).
359. Id at *4-*5.
360. Opening Brief of Plaintiff-Appellants, Or. Natural Desert Ass'n v. Bureau of Land Mgmt., No. 05-35931 (9th Cir. Jun. 8, 2006). ONDA has made similar arguments in three other cases. In ONDA v. Shuford, an Oregon district judge rejected ONDA's arguments that BLM violated NEPA when it failed to take a hard look at new information indicating additional potential WSAs existed before adopting its Andrews-Steens land use plan and violated FLPMA by failing to maintain an inventory of wilderness values in the area.
361. No. 06-242-AA, 2007 U.S. Dist. LEXIS 42614, (D. Or. Jun. 8, 2007).
362. The court held that here, unlike Rasmussen, BLM fulfilled its NEPA obligations because it considered - and largely rejected - the ONDA assessments of the area's wilderness characteristics. Id. at *7-*8.
363. The court also rejected ONDA's FLPMA claims, holding that SUWA barred any failure to act claim because maintaining an existing inventory was within the agency's discretion, and further, that ONDA failed to demonstrate that BLM's existing inventory was so outdated and inaccurate as to render the decision to approve the land use plan arbitrary and capricious. Id. at *9-*11.
364. In ONDA v. Gammon, ONDA challenged BLM's decision to adopt its Lakeview land use plan without considering new information that additional WSAs existed in the area in its NEPA analysis and because BLM failed to maintain a wilderness inventory under FLPMA. No. 06-523-HO, 2007 U.S. Dist. LEXIS 48083, at *1- *2 (D. Or. Jun. 28, 2007).
365. Citing SUWA, the court rejected ONDA's argument that BLM violated FLPMA by failing to maintain a current wilderness inventory, stating that such claims "are not susceptible to judicial enforcement."
366. Id. at *8.
367. Further, the court ruled in favor of BLM on the NEPA claim, holding that the agency acted within its discretion and thus did not violate NEPA when it issued the Lakeview land use plan without updating its wilderness inventories. Id. at *9.
368. Another case, ONDA v. Freeborn, is pending before the district court. In Freeborn, ONDA challenged a BLM rangeland project in Louse Canyon, located in the Jordan Resource Area, arguing that BLM failed to consider the effect of proposed activities on wilderness values in the area by not updating its wilderness inventory for the area. Complaint at 2, ONDA v. Freeborn, Civ. No. 06-1311-MO (D. Or. Sept. 14, 2006).
369. Or. Natural Desert Ass'n v. U.S. Forest Serv. (ONDA), No. 03-213-JO, 2005 U.S. Dist. LEXIS 43637, at *8 (D. Or. Jun. 3, 2005).
370. U.S.C. § 1274(d)(1) (2000).
371. The Forest Service completed management plans for the two river segments at issue in the suit. ONDA, 2005 U.S. Dist. LEXIS 43637, at *36.
372. ONDA, 2005 U.S. Dist. LEXIS 43637, at *36.
373. Id. at *37.
374. Id. at *37-*38.
375. Or. Natural Desert Ass'n v. U.S. Forest Serv., 465 F.3d 977, 979 (9th Cir. 2006). The Ninth Circuit held that AOIs were final agency actions
376. Id. at 986-87.
377. The Forest Service argued that AOIs were neither "final" actions nor even "agency actions" under SUWA.
378. Id. at 985.
379. The Ninth Circuit concluded that an AOI, as part of a grazing permit, was a license, and thus within the scope of "agency actions" identified as actionable in SUWA. Id. at 990.
380. Shawnee Trail Conservancy v. Nicholas, 343 F. Supp. 2d 687, 701 (S.D. Ill. 2004).
381. Sierra Club v. U.S. Dep't. of Agric., No. 96-2244, 1997 WL 295308 (7th Cir. May 28, 1997).
382. Shawnee Trail Conservancy, 343 F. Supp. 2d at 700.
383. Id. at 702.
384. See Cabinet Resource Group v. U.S. Fish & Wildlife Serv., 465 F. Supp. 2d 1067, 1101-02 (D. Mont. 2006) (SUWA barred a claim that the Forest Service failed to supplement its NEPA analysis for a forest plan amendment);
385. cf. Klamath Siskiyou Wildlands Center v. Boody, 468 F.3d 549, 560 (9th Cir. 2006) (rejecting a Forest Service argument that land use plan amendments did not require NEPA analysis). In one case, the federal government argued, unsuccessfully, that SUWA obviated the need for supplemental NEPA analysis for timber sale contracts which had been enjoined by court order.
386. Or. Natural Res. Council Action v. United States Forest Serv., 445 F. Supp. 2d 1211, 1222 (D. Or. 2006).
387. Cold Mountain v. Garber, 375 F.3d 884, 887 (9th Cir. 2004) (holding that after the Forest Service issued a license, it had no obligation to supplement the NEPA analysis because there was no ongoing action);
388. Buckeye Forest Council v. U.S. Forest Serv., 378 F. Supp. 2d 835, 844 (S.D. Ohio 2005) (finding that the Forest Service had no obligation to supplement NEPA analysis for a forest plan, even though an ESA-listed species was discovered in the forest).
389. 375 F.3d at 891.
390. The "bison capture facility" authorized by the special use permit was intended to help the state of Montana prevent wild bison from Yellowstone National Park from spreading brucellosis, a bovine bacterial infection which causes sterility in livestock, to Montana cattle. The special use permit allowed the state to operate a facility to monitor, test, and remove bison testing positive for brucellosis, and authorized the state to use "hazing" to drive bison back into the park. Id. at 886-87.
391. Id. at 894.
392. F. Supp. 2d at 844-45.
393. Id. at 845. This result directly contradicts the Ninth Circuit's position regarding the Endangered Species Act in Pacific Rivers Council v. Thomas, 30 F.3d 1050, 1057 (9th Cir. 1994), discussed supra notes 185-86.
394. F. Supp. 2d 1067, 1100-01 (D. Mont. 2006).
395. Id. at 1101.
396. Id. at 1100-01.
397. Id.
398. Id. at 935-39.
399. Id. at 939.
400. The court also distinguished Cold Mountain, discussed supra notes 210-12 and accompanying text, because the special use permit involved there was a license which did not anticipate ongoing agency obligations as the timber contracts did. Id.
401. Or. Natural Res. Council Action v. U.S. Forest Serv., 445 F. Supp. 2d 1211, 1222 (D. Or. 2006).
402. Id. at 1222.
403. F.3d 549, 560 (9th Cir. 2006), reversing Klamath Siskiyou Wildlands Ctr. v. Bureau of Land Mgmt., No. 03-3124-CO, 2006 WL 448714, at *2 (D. Or. Feb. 21, 2006) (holding that a BLM decision to modify the survey and manage protections for the red tree vole did not amend the land use plan).
404. Klamath Siskiyou Wildlands Ctr., 2006 WL 448714, at *2 (holding that annual species reviews did not amend the land use plan and therefore BLM had no obligation to update its NEPA analysis).
405. Klamath Siskiyou Wildlands Ctr., 468 F.3d at 561.
406. See supra notes 211-12 and accompanying text (discussing Cold Mountain).
407. See supra notes 213-14 and accompanying text (discussing Buckeye Forest Council).
408. See supra notes 215-18 and accompanying text (discussing Cabinet Resource Group).
409. See supra notes 219-22 and accompanying text (discussing Sierra Club and Oregon Natural Resources Council Action).
410. See supra notes 223-25 and accompanying text (discussing Klamath Siskiyou Wildlands Center).
411. 333 F. Supp. 2d 906, 915-16 (E.D. Cal. 2004). The environmentalists alleged BLM's operation of Friant Dam on the San Joaquin River violated a California statute requiring dam operators to allow sufficient water for fish passage and to protect fish populations below the dam.
412. Id. at 910.
413. The Reclamation Act of 1902 requires the Secretary of Interior to comply with applicable state laws in operating dams under the act. 43 U.S.C. § 383 (2000).
414. The California law stated that dam owners "shall allow sufficient water at all times to pass through a fishway, or in the absence of a fishway, allow sufficient water to pass over, around or through the dam, to keep in good condition any fish that may be planted or exist below the dam." CAL. FISH & GAME CODE § 5937 (2007).
415. Natural Res. Def. Council, 333 F. Supp. 2d at 916.
416. 392 F. Supp. 2d 1217, 1227 (D. Idaho 2005).
417. Id. at 1227 (citing Jarbidge Resource Area Resource Management Plan Record of Decision at I-7 (1987)).
418. Under FLPMA, BLM must manage the public lands consistent with land use plans. 43 U.S.C. § 1732(a) (2000).
419. Western Watersheds Project, 392 F. Supp. 2d at 1227.
420. Because BLM's actions were inconsistent with a land use plan EIS prioritizing wildlife protection over grazing interests, the agency violated FLPMA's requirement that BLM manage lands consistent with land use plans. Id. at 1227-28.
421. F. Supp. 2d 1074, 1089-90 (E.D. Cal. 2006).
422. The management plan was prepared under a court order after environmentalists first challenged the National Park Service's failure to prepare a comprehensive management plan for a segment of the Merced River corridor under its jurisdiction after it had been designated a WSRA. After NPS issued a management plan and EIS, environmentalists challenged both, and the original plan was invalidated by the Ninth Circuit for failing to comply with NEPA by inadequately considering ORV use in the area. Id. at 1077-78.
423. 424 F. Supp. 2d 1241, 1259-60 (E.D. Cal. 2006).
424. Id. at 1260.
425. Id.
426. Id.
427. Norton v. S. Utah Wilderness Alliance (SUWA), 542 U.S. 55, 69 (2004), discussed supra notes 159-61.
428. 422 F. Supp. 2d 1115, 1166 (N.D. Cal. 2006).
429. Id. at 1163.
430. Id. at 1167.
431. See supra notes 193-95 and accompanying text (discussing FLPMA's inventory requirement in the context of ONDA v. Rasmussen).
432. Id. at 1167-68.
433. See supra notes 175-76 and accompanying text (discussing Center for Biological Diversity v. Veneman);
434. supra notes 191-204 and accompanying text (discussing the ONDA decisions).
435. See supra notes 233-35 and accompanying text (discussing Western Watersheds Project).
436. See supra notes 231-32 and accompanying text (discussing Natural Resources Defense Council);
437. supra notes 236-41 and accompanying text (discussing Friends of Yosemite and Soda Mountain Wilderness).
438. See supra notes 237-41 and accompanying text (discussing Soda Mountain Wilderness).
439. 5 U.S.C. § 706(1) (2000).
440. See id. § 706(2) (authorizing suits against, inter alia, arbitrary actions, actions inconsistent with statutory directives, and inconsistent with procedures required by law).
441. See ONDA v. U.S. Forest Serv., 465 F.3d 977, 979 (9th Cir. 2006), discussed supra notes 199-204 and accompanying text.
442. See supra notes 211-18 and accompanying text (discussing Cold Mountain, Buckeye Forest Council, and Cabinet Resource Group).
443. See supra notes 219-25 and accompanying text (discussing Sierra Club, Oregon Natural Resources Council Action, and Klamath Siskiyou Wildlands Center).
444. 43 U.S.C. § 1752(d) (2000). An allotment management plan is a "document prepared in consultation with [the permitee] ... [which, among other thingsc] prescribes the manner in, and extent to, which livestock operations [on BLM or national forest landsc] will be conducted in order to meet the multiple-use, sustained-yield, economic and other needs and objective as determined for the lands [by the land management agency]."
445. Id. § 1702(k).
446. See Robert L. Glicksman, From Cooperative to Inoperative Federalism: The Perverse Mutation of Environmental Law and Policy, 41 WAKE FOREST L. REV. 719, 774-75 (2006) (discussing the Forest Service's decision to revoke the Clinton-era planning regulations and draft a radically different revision of the planning regulations);
447. Katrina M. Kayden, Comment, Will Paradise Become a Parking Lot?: The Debate Over the Bush Administration's Overhaul of Forest Management Regulations, 17 VILL. ENVTL. L.J. 285, 291-94 (2006) (discussing the Bush Administration's decision to jettison the 2000 planning regulations and the Forest Service's development of the 2005 planning regulations).
448. See infra notes 302-05 and accompanying text (discussing the Healthy Forests Initiative provisions exempting fire suppression and salvage logging from environmental review);
449. infra notes 306-09 and accompanying text (discussing the 2006 CX for forest planning);
450. and infra notes 310-12 and accompanying text (discussing the 2007 CX for certain oil and gas development activities).
451. Citizens for Better Forestry v. U.S. Dept. of Agric., 481 F. Supp. 2d 1059, 1100 (N.D. Cal. 2007);
452. see infra notes 289, 290 and accompanying text (discussing the decision to enjoin the 2005 rule because 1) the Forest Service failed to comply with NEPA, 2) the 2005 rule was outside the scope of the CX the agency claimed applied, and 3) the rule failed to comply with both APA and the ESA). The Forest Service has attempted to can the ruling into question by describing it as inconsistent with other recent rulings on forest plans by both the Tenth Circuit and an Alabama district judge.
453. See Felicity Barringer, Federal Judge Strikes Down Forest Management Rules, N.Y. TIMES, Mar. 31, 2007, at A9 (noting that Mark Rey, the Department of Agriculture Undersecretary who oversees the Forest Service, stated other recent decisions regarding forest plans contradicted the decision);
454. Juliet Eilperin, Judge Suspends Administration Rules For Managing Forests, WASH. POST, Mar. 31, 2007, at A02 (quoting a Forest Service spokesperson as stating that the other courts "presented with similar circumstances" concluded that the agency had fulfilled its NEPA obligations).
455. Neither of those cases involved a challenge to the 2005 rule, however. In Colo. Wild v. U.S. Forest Service, the Tenth Circuit upheld a lower court's decision, ruling that environmentalists failed to demonstrate the Forest Service was arbitrary and capricious in developing a 2003 CE for small-scale timber harvests. 435 F.3d 1204, 1220-22 (10th Cir. 2006).
456. The Alabama district court decision that Forest Service officials cited is similarly tangential to the California court's conclusions about the 2005 rule. In Wildlaw v. U.S. Forest Service, the court deferred to the Forest Service's decision that the CE covering "routine" administrative actions applied to its revisions to a rule governing its administrative appeal procedures. 471 F. Supp. 2d 1221, 1245 (M.D. Ala. 2007).
457. 16 U.S.C. § 1604(h)(1) (2000).
458. See Charles F. Wilkinson, A Case Study in the Intersection of Law and Science: The 1999 Report of the Committee of Scientists, 42 ARIZ. L. REV. 307, 307 (2000).
459. Id. at 308 (stating that the committee was reconvened in 1982). Congress included the requirement that the Forest Service develop the planning regulations under the advice of such a committee both to provide the opportunity to include different perspectives on the regulations and "because of skepticism regarding the Forest Service's willingness to incorporate science into management in a serious way."
460. Id. at 307;
461. see also Hoberg, supra note 26, at 6 (noting NFMA's requirement that a committee of scientists must be consulted in formulating the planning regulations "clearly reflect[ed] a deep congressional distrust for the capacity of the Forest Service to develop regulations in a manner reflecting the new statutory standards").
462. Wilkinson, supra note 260, at 308.
463. Id. at 309-10.
464. The report was criticized as overstepping the Committee's statutory authority to provide scientific and technical advice by promoting a Clinton Administration policy agenda of making sustainabitity the Forest Service's "primary goal." Hoberg, supra note 26, at 17.
465. National Forest System Land and Resource Management Planning, 36 C.F.R. § 219 (2000).
466. See GEORGE CAMERON COGGINS ET AL, FEDERAL PUBLIC LAND AND RESOURCES LAW 757-58 (5th ed. 2002).
467. National Forest System Land and Resource Management Planning; Extension of Compliance Deadline, 66 Fed. Reg. 27,552,27,553 (May 17, 2001).
468. National Forest System Land and Resource Management Planning; Extension of Compliance Deadline, 67 Fed. Reg. 35,431, 35,432 (May 20, 2002).
469. National Forest System Land and Resource Management Planning; Proposed Rules, 67 Fed. Reg. 72,770,72,772 (Dec. 6, 2002).
470. National Forest System Land and Resource Management Planning; Use of Best Available Science in Implementing Land Management Plans, 69 Fed. Reg. 58,055, 58056 (Sept. 29, 2004).
471. The transition provisions directed the Forest Service to consider the "best available science" when making site-specific decisions implementing a forest plan. 36 C.F.R. § 219.35(a) (2007).
472. This "best available science" standard replaced the 1982 regulation's requirement that the Forest Service consider the effect of a site-specific action on "management indicator species," - wildlife species the 1982 regulation required the Forest Service to monitor as proxies for overall forest health. 36 C.F.R. § 219.19(a)(1) (1982).
473. National Forest System Land and Resource Management Planning: Use of Best Available Science in Implementing Land Management Plans, 69 Fed. Reg. at 58,056.
474. See also 36 C.F.R. § 219.19 (1982) (establishing criteria for selecting management indicator species in the 1982 regulations).
475. National Forest System Land and Resource Management Planning; Removal of 2000 Planning Rule, 70 Fed. Reg. 1022, 1023 (Jan. 5, 2005).
476. The Forest Service concluded that the 2005 planning rule would "not have environmental effects" because the rule merely "provide[d] a starting point for project and activity NEPA analysis." Id. at 1031.
477. The Forest Service also concluded that the planning rule fit within the scope of a CX in the Forest Service Handbook that applied to "rules, regulations, or policies to establish Service-wide administrative procedures, program processes, or instruction." Id. at 1053-54;
478. see also Forest Service Handbook § 1909.15, ch. 31.12 (2007).
479. National Forest System Land and Resource Management Planning; Removal of 2000 Planning Rule, 70 Fed. Reg. at 1034. The Forest Service responded to comments that expressed concern that the agency developed its 2005 planning rule without consulting a committee of scientists by stating that it was not required to seek the advice of a scientific committee in revising the planning rule, and that actually the 1999 committee report was the basis for the rule because "[sc]ustainability, public participation, adaptive management, monitoring and evaluation, the role of science, and the objection process, all concepts in the proposed and final rule, were recommendations of that report." Id.
480. Id.
481. The regulatory preamble stated that "[u]nder the Final Rule, plans will continue to be strategic in nature, as described by the Supreme Court in Ohio Forestry and SUWA." Id.
482. Id.
483. (citing Ohio Forestry Ass'n v. Sierra Club, 523 U.S. 726, 733 (1998)). The regulatory preamble also noted that in SUWA, the "Supreme Court also recently recognized the similar nature of land management plans," noting that "like a [Forest Service] land management plan, a BLM plan typically 'is not a final implementation decision on actions." National Forest System Land and Resource Management Planning; Removal of 2000 Planning Rule, 70 Fed. Reg. at 1034.
484. National Forest System Land and Resource Management Planning; Removal of 2000 Planning Rule, 70 Fed. Reg. at 1034.
485. See Martin Nie, The 2005 National Forest System Land and Resource Management Planning Regulations: Comments and Analysis, 27 PUB. LAND & RESOURCES L. REV. 99, 100 (2006) (noting that the 2005 rule replaced the "legally enforceable standards" of earlier iterations of its planning regulations with "general recommendations," replacing former requirements that the agency "shall" take certain actions with language that the agency "should" proceed in a particular manner - frustrating legal challenges).
486. National Forest System Land and Resource Management Planning; Removal of 2000 Planning Rule, 70 Fed. Reg. at 1026. The 1982 planning rule referred to plan provisions as both "standards and guidelines." Id.
487. See id. (claiming that "[i]f deviation from plan guidelines is appropriate in specific circumstances, the rationale for deviation should be based on project or activity analysis and explained fully.. . [h]owever, deviation does not require an amendment to the plan).
488. See Nie, supra note 276, at 100.
489. National Forest System Land and Resource, Management Planning; Removal of 2000 Planning Rule, 70 Fed. Reg. at 1025.
490. Id.
491. Id. at 1033.
492. See supra notes 52-58 and accompanying text (discussing how Congress intended to alter its relationship with the Forest Service in NFMA by subjecting the agency to significant oversight).
493. See 16 U.S.C. § 1604(d) (2000) (requiring public participation in the "development, review, and revision of land management plans");
494. Robert B. Keiter, Public Lands and Law Reform: Putting Theoty, Policy, and Practice in Perspective, 2005 UTAH L. REV. 1127, 1175 (2005) (discussing increased public participation requirements in 1970s-era environmental legislation, including NFMA);
495. see also supra notes 56-57 and accompanying text (noting the Senate committee report on NFMA included a statement indicating public should be involved in land management planning "at all levels" of the planning process).
496. See WILKINSON & ANDERSON, supra note 4, at 70 (noting that during the Senate hearings on NFMA in 1976, Senator Humphrey "observed that the Forest Service's record had brought into question the extent to which the agency could be trusted to guard and manage public resources").
497. Other members of Congress shared the perception that the Forest Service needed additional oversight. For example, Senator Floyd Haskeu (D. Colo.) stated that with NFMA, "the era of full delegation of land management decision-making authority to federal agencies is over." Id. (citing S. REP. No. 583, 94TH CONG., 1st Sess. (1975)).
498. Nie, supra note 276, at 105.
499. National Forest System Land and Resource Management Planning; Removal of 2000 Planning Rule, Forest 70 Fed. Reg. at 1034.
500. See U.S. House of Representatives Roll Call Vote 384 (July 17, 2003), http://clerk.house.gov/evs/2003/roll384.xml (recording the vote for Rep. Udall's proposed amendment to the Department of the Interior and Related Agencies Appropriations Act of 2004, H.R. 2691,108th Cong. (1st Session 2003), which was intended to block funding to implement the Bush Administration's proposed changes to NFMA, which was defeated by a 198 to 223 vote).
501. Citizens for Better Forestry v. U.S. Dept. of Agric., 481 F. Supp. 2d 1059, 1100 (N.D. Cal. 2007).
502. Id. The court also held that the Forest Service failed to provide adequate notice and comment on the 2005 rule, violating the APA, concluding that the "law is clear that an agency cannot promulgate without notice and comment a final rule that constitutes a 'paradigm shift' from the proposed rule for which there was notice and comment."
503. Id. at 1076. The court concluded that the Forest Service violated NEPA when it employed a CX that was inappropriate, and the court found the fact that the Forest Service subsequently issued a new CX covering forest planning to "support[] the conclusion that the prior [CX] that was utilized in this case did not fit the 2005 rule."
504. Id. at 1087. In addition, the court held that the Forest Service violated the ESA when it concluded that the 2005 rule would not affect listed species without first initiating section 7 consultation to determine whether the rule "may affect" listed species.
505. Id. at 1091.
506. See also Enviros Will Likely Contest FS Rule on no Planning EIS, PUBLIC LAND NEWS, Jan. 5, 2007, at 3, available at http://www.plnfpr.com/newsletter1/P107 Jan5.htm#PG3 (discussing the likelihood of environmentalists amending their complaint to contest the 2006 forest plan CX).
507. National Forest System Land Management Planning, 72 Fed. Reg. 26,775, 26,775 (May 11, 2007) (noting that the Forest Service plans to produce a draft EIS by June 2007 and complete a final EIS for the 2005 rule by November 2007).
508. Site-specific actions adopted according to the 2004 "interpretive rule" are governed by the 2000 rule's "transition provisions" - not the 1982 rule - unless a site-specific decision specifically adopts the standards from the 1982 rule. See Ecology Ctr., Inc. v. United States Forest Serv., 451 F. 3d 1183, 1190 (10th Cir. 2006) (ruling that a forest plan may require by reference particular standards "regardless of later changes in the regulations" and concluding that the 1982 regulations did not apply to a timber sale when the applicable forest plan did not adopt any specific regulatory provision by reference);
509. Utah Envtl. Cong. v. Troyer, 479 F. 3d 1269, 1281 (10th Cir. 2007) (concluding that when a forest plan adopted the 1982 rules by reference, that rule governed subsequent actions taken under the plan).
510. See also supra notes 269-270 (discussing the 2004 interpretive rule and the 2000 rule's transition provisions).
511. See Idaho Wildlife Fed'n v. Tower, No. CV-04-372-E-BLW, 2006 U.S. Dist. LEXIS 23140, at *4 (D. Idaho April 13, 2006) (holding that the 1982 regulation governed a forest plan adopted under that regulation, rejecting a Forest Service argument that the environmentalists' claim that the agency failed to maintain sage grouse viability in the Curlew National Grassland, a Management Indicator Species (MIS), was moot because the Forest Service did not have the same obligations toward MIS under the 2005 rules as under the 1982 regulation);
512. Sierra Nevada Forest Prot. Campaign v. Tippin, No. Civ. S 06-00351 FCD DAD, 2006 U.S. Dist. LEXIS 57832, at *47 (E.D. Cal. Aug. 16, 2006) (rejecting the Forest Service's argument that the 2005 rules applied to the timber project, and holding that a forest plan prepared under the 1982 planning regulation continued to govern the forest plan and projects it authorized).
513. See also Utah Envtl. Cong. v. Bosworth, 439 F.3d 1184, 1190 (10th Cir. 2006) (reviewing the Forest Service's management obligations for projects in the Fishlake National Forest under the 1982 regulations because the Forest Service adopted the forest plan under those regulations).
514. U.S.C. § 4332(2)(C) (2000).
515. See 40 C.F.R. §§ 1502.1-1502.25 (2007) (stating requirements for when and how to prepare an EIS). The regulations state that the "primary purpose of an environmental impact statement is to serve as an action-forcing device to insure that the policies and goals defined in [NEPA] are infused into the ongoing programs and actions of the Federal Government."
516. Id. § 1502.1.
517. See id § 1501.4 (establishing criteria for agencies to use to determine whether an EIS is necessary for a proposed action). In lieu of preparing an EIS, agencies may prepare a shorter environmental assessment (EA) and, if the EA concludes that the action will not have significant environmental effects, the agency will issue a finding of no significant impact (FONSI). Id. §§ 1508.9,.13.
518. Id. § 1507.3(b)(2)(ii).
519. Id. § 1508.4. The regulation defines CX as "a category of actions which do not individually or cumulatively have a significant effect on the human environment... and for which, therefore, neither an environmental assessment nor an environmental impact statement is required."
520. Id.
521. NEPA Task Force, The NEPA Task Force Report to the Council on Environmental Quality: Modernizing NEPA Implementation 1-3 (2003), available at http://www.nepa.gov/ntf/report/htmltoc.html.
522. See Karkkainen, supra note 27, at 353 (discussing how the Forest Service created new categories of CXs as part of the Healthy Forests Initiative). These CXs "appeared to be a preemptive strike by the Administration, with the dual aim of accelerating the pace of forest thinning and salvage logging by eliminating environmental review and taking the underlying public policy disputes off the table by categorically declaring environmental impact analysis off-limits."
523. Id. at 353-54;
524. Jesse B. Davis, The Healthy Forests Initiative: Unhealthy Policy Choices in Forest and Fire Management, 34 ENVLT. L. 1209, 1224-28 (2004) (describing how, as part of the Healthy Forests Initiative, the Forest Service issued CXs for post-fire salvage operations and hazardous fuels reduction, as well as CXs for timber harvests that include up to 70 acres of live trees, salvage up to 250 acres of dead, dying, or fire-damaged trees, and allow up to 250 acres of trees to be cut to control insects or disease).
525. See DREHER, supra note 27, at 7-8 (discussing recent proposals to weaken or create-exemptions from NEPA requirements, including a "rebuttable presumption" in the Energy Policy Act of 2005 that the oil and gas activities fall under a CX, an appropriations bill rider allowing the renewal of grazing permits in national forests over the next three years without NEPA review, and a proposed CX for forest plans drafted under the 2005 planning rule).
526. National Environmental Policy Act Documentation Needed for Fire Management Activities; Categorical Exclusions, 68 Fed. Reg. 33,814, passim (Jun. 5, 2003).
527. Clarification of Extraordinary Circumstances for Categories of Actions Excluded from Documentation in an Environmental Assessment or an Environmental Impact Statement, 67 Fed. Reg. 54,622,54,623 (Aug. 23, 2002).
528. Id. at 54,627 (noting that "[ex]traordinary circumstances" exist in the presence of resource conditions such as species protected under the ESA are present in an area; flood plains, wetlands, or municipal watersheds; wilderness areas, WSAs, or national recreation areas; inventoried roadless areas; research natural areas; American Indian or Alaska Native religious and cultural sites; and archaeological sites, historic properties, or areas); Forest Service Handbook § 1909.15, ch. 30.3(2) (2007).
529. Forest Service Handbook, supra note 304;
530. see also Eric E. Huber, Environmental Litigation and the Healthy Forests Initiative, 29 VT. L. REV. 797, 802 (2005). The Forest Service issued the 2005 planning rule itself under a CX established in the Forest Service Handbook.
531. See supra note 271 and accompanying text (discussing the Forest Service's decision not to undertake NEPA analysis of the planning rule).
532. National Environmental Policy Act Documentation Needed for Developing, Revising, or Amending Land Management Plans; Categorical Exclusion, 71 Fed. Reg. 75,481, 75,481 (Dec. 15, 2006).
533. Plan Categorical Exclusion Questions and Answers 2, http://www.fs.fed.us/ emc/plan/includes/q_as.pdf (last visited Sept. 21, 2007).
534. National Environmental Policy Act Documentation Needed for Developing, Revising, or Amending Land Management Plans; Categorical Exclusion, 71 Fed. Reg. at 75,483.
535. Id. at 75,485 (describing how components of plans developed under the 2005 planning rule, such as "desired conditions" describe "a vision for the desired condition of the forest" but do not create binding commitments for the agency). Interestingly, BLM's regulations continue to require an EIS on its land use plans. 43 C.F.R. § 1601.0-6 (2006). Therefore, until the agency amends these regulations, a CX on BLM land plans would be unlawful.
536. National Environmental Policy Act Documentation Needed for Oil and Natural Gas Exploration and Development Activities (Categorical Exclusion), 72 Fed. Reg. 7391, 7392 (Feb. 15, 2007).
537. Id. at 7392 (noting that the Forest Service's CX applied to additional activities to those already categorically excluded from NEPA analysis under the Energy Policy Act of 2005, which created a CE for five categories of oil and gas exploration and development activities conducted under the Mineral Leasing Act).
538. See Forest Service Says Oil and Gas NEPA Exclusion Doesn't End Run Law, PUBLIC LAND NEWS, Mar. 2, 2007, at 9, available at http://www.plnfpr.com/newsletter1/P507 March2.htm#PG9 (quoting Mike Anderson, senior resource analyst for The Wilderness Society, to the effect that Forest Service officials are "being dishonest when they say they don't need to do NEPA in plans because they will do NEPA at the project level, but then they don't do it at the project level as well"). The oil and gas CX applies to decisions to approve a surface use plan of operations for oil and natural gas activities, and any initial development activities, so long as the approval will not result in more than one mile of new road construction or reconstruction, more than three miles of pipelines, or more than four drill sites. National Environmental Policy Act Documentation Needed for Oil and Natural Gas Exploration and Development Activities (Categorical Exclusion), 72 Fed. Reg. at 7402. BLM has likewise proposed expanding its use of CXs to include grazing permit renewals, four new forestry CXs (three based on CXs already issued by the Forest Service), three new CXs for oil, gas, and geothermal energy development activities, and new categories of CXs for recreation management and emergency stabilization.
539. National Environmental Policy Act Revised Implementing Procedures, 71 Fed. Reg. 4159,4160 (Jan. 25, 2006).
540. See also Brodie Farquhar, Grazing, Seismic Permits Fall Under Plan, CASPER STAR-TRIBUNE, Jan. 27, 2006, available at http://www.trib.com/articles/2006/01/27/news/wyoming/ 557115e50dfe893972571030006de47.txt (discussing BLM's proposed CXs and noting that three of the four forestry CXs mirrored those adopted by the Forest Service).
541. Pub. L. 94-588, 90 Stat. 2949 (1976).
542. Pub. L. 94-579, 90 Stat. 2743 (1976).
543. See supra notes 273-75 and accompanying text (discussing how the Forest Service used the Court's decisions to support its 2005 planning rule);
544. supra notes 307-08 and accompanying text (discussing how the Forest Service used the Court's decision in the 2006 CE for forest plans adopted under the new rule).
545. See supra notes 52-74 and accompanying text (discussing congressional intent in adopting NFMA and FLPMA).