Supreme Court Eyes Land Management Case


By PAUL FOY
Associated Press Writer

March 26, 2004, 5:27 PM EST

KANAB, Utah -- A wilderness area that has been proposed for government protection stands next to a state-run ATV park where people go joy-riding across the red sand on knobby tires, much to the chagrin of environmentalists.

Environmentalists say the proposed protected area -- with its dunes and ancient stands of ponderosa pines -- is in danger from ATV damage while the federal government ponders the future of the land. They want it safeguarded now, not months from now when a final decision is made.

The dispute has given rise to a U.S. Supreme Court case that will be heard on Monday.

At issue is whether citizen groups can sue the U.S. Bureau of Land Management to force it to more aggressively safeguard public land awaiting a decision on protected status. The case could have sweeping implications for the management of federal land across the West.

The clash of competing interests is taking place about 250 miles south of Salt Lake City, at a government-owned wilderness study area known as the Coral Pink Sand Dunes. It borders on three sides a state park for all-terrain vehicle enthusiasts.

The ATVs are allowed to travel inside the wilderness area on a loop road and two side trails. But the line separating the most delicate dunes from the ATV paths is little more than an imaginary line in the sand.

"You need a map to figure it all out," said Al Hall, a retired construction worker who has a $2,500 dune buggy built with parts from two cars. While most off-roaders respect the boundaries, he said, "there's no trail markings per se."

Conservationists say the ATV enthusiasts ride over the wilderness area and rip up pine saplings and other vegetation with their knobby-tire vehicles.

"There's been such an explosion of ATV use in Utah that we're seeing offshoots from illegal trails and expansion of existing trails. We're seeing trees uprooted and soil eroded, and this is all taking place in a fragile desert ecosystem," said Heidi McIntosh of the Southern Utah Wilderness Alliance.

The BLM has rejected suggestions from wilderness advocates that the 14,830-acre area be fenced to keep out illicit ATV traffic, saying it would not be practical or economical.

So the wilderness association sued the BLM, seeking to force land managers to be more aggressive in protecting the dunes and other Utah wilderness study areas.

The BLM -- which has recommended against protected status for the high desert land under dispute -- is obligated by federal law to keep wilderness study areas pristine so they can remain candidates for permanent protection until Congress makes a final decision.

The agency insists it is doing everything required by law to protect the land. And it claims its day-to-day management actions cannot be challenged by citizen groups or the courts -- only "final agency actions" can.

The Justice Department, representing the BLM, has argued that citizen groups would gum up government with unending lawsuits if they were allowed to challenge every incremental land management decision.

* __

On the Net:

State park: http://www.utah.com/stateparks/coral_pink.htm

BLM: http://www.ut.blm.gov/coralpink.html

 

Media Release: SUPREME COURT HEARS ARGUMENT IN VEHICLE ACCESS LAWSUIT
Contact: Paul Turcke, Esq.
Phone: (208) 331-1807
Fax: (208) 331-1200
E-mail: pat@msbtlaw.com
Brian Hawthorne
Phone: 208-237-1008
Fax: 208-237-9424
E-mail: brbrian@sharetrails.org
Webpage: www.sharetrails.org
Date: March 30, 2004


. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

POCATELLO, ID (March 30) -- On Monday, March 29, 2004, the United States Supreme Court heard oral argument in an administrative law case focusing on the manner in which special interest groups can challenge federal agency management of vehicle access to Utah desert lands. The case was originally filed in 1999 by the Southern Utah Wilderness Alliance (“SUWA”) and other groups, who contend that the Bureau of Land Management (“BLM”) has “failed to act” to protect wilderness study areas and other lands. Also parties to the case are the BlueRibbon Coalition and the Utah Shared Access Alliance (“USA-All”), who intervened in the original suit on behalf of off highway vehicle recreation interests and filed the motion to dismiss leading to appellate proceedings before the 10th Circuit Court of Appeals and the Supreme Court.

The Court led the arguing attorneys through a spirited and wide-ranging argument. Commentators and media observers characterized the Court as generally “unsympathetic” to SUWA’s claim that BLM had failed to act on its management duties, noting that there exist other and more traditional methods by which to assert the insufficiency of agency actions. Filing a merits brief in the case and attending the argument on behalf of the vehicle access advocates were lead counsel Paul Turcke of the BlueRibbon Legal Action Program and local counsel Paul Mortensen of USA-All.

“This case is both legally and factually complex, and observers and interest groups have found varied facets of it to emphasize,” Turcke observed. “In the end, this case is about whether a special interest group can invite ongoing judicial oversight of agency management simply by alleging the agency has ‘failed to act’ fully on some broad management duty”.

Access opponents conveniently overlook the BLM actions to aggressively manage vehicular access in vast portions of Utah’s desert to protect the back country character. “These groups seem to be focused on eliminating access to the fraction of these areas where families can still ride,” Turcke concluded.

Chief Justice William Rehnquist announced at the close of argument that the case has been submitted to the Court. The parties anticipate a decision in the case as early as this summer.

#############

The BlueRibbon Coalition is a national recreation group that champions responsible use of public lands. It represents over 1,100 organizations and businesses with approximately 600,000 members.

 

I watch this again and again.
Glamis, Pismo, Sand Mountain, etc.
It is not about the butterflies the milk vetch, or whatever.
They don't want you riding anywhere, period.
That is thier agenda and they just go looking for any lame excuse they can find.

I have lost count at the number of places that were closed to be protected only to soon be developed or paved over.
Funny how my dirt bike is causing too much damage but the Bulldosers are just fine.

I am glad to see people fighting the good fight.

I just get so mad at the dishonest BS I could puke.

 

http://slate.msn.com/id/2097930/

Where the Wild Things Are
The Supreme Court considers our wide open spaces.
By Dahlia Lithwick
Posted Monday, March 29, 2004, at 2:45 PM PT

Of all our bizarre advertising conventions, perhaps the oddest is this: Whether one has just purchased a new Ford Explorer, Volkswagen Touraeg, or a Jeep, the good folks in Advertising Land would have it that the first thing one does is high-tail it to the desert, careen up the side of a red rock canyon, and park that now-filthy new vehicle on a precipice overlooking the Utah sunset. True, most of us just choose to celebrate the purchase of a new car with imprudent sex in the back seat. But as far as American advertisers are concerned, we are sexier, thinner, and happier when off-roading it in the vast western wilderness.

I mention all this because today's Supreme Court case ostensibly concerns the effects of off-road vehicles on potential wilderness areas. Which sounds like it might make for some glorious, wind-blows-through-your-hair oral argument. But this case is ultimately just about statutory construction, and the only thing blowing through your hair at the high court today is the sound of Justice Antonin Scalia's infinite follow-up questions. I also mention all this because—try as I may—I can't understand the appeal of buzzing around the wilderness in an ATV, digging up the fragile cryptobiotic crust, eroding the delicate soil, and polluting the rivers. But someone will enlighten me, I am sure.

Congress enacted legislation to preserve certain wilderness areas, giving the Bureau of Land Management the mandate to identify other lands with "wilderness characteristics" to be set aside in the future as protected wilderness areas. While the BLM studies these lands, the agency is under a congressional mandate "not to impair the suitability of such areas" for preservation as wilderness. This makes some sense—if the areas are being trashed pending designation as wilderness, they're unlikely to merit that label. In four such areas in Utah, the BLM has done a less than stellar job of preventing damage to the land from off-road vehicles. (This is undisputed, by the way, and not just my own hairy-legged-Birkenstock interpolation.) So, in 1999, the Southern Utah Wilderness Alliance joined other environmental groups to sue Gail Norton—the secretary of the interior—and the BLM for failure to protect these areas. Norton v. Southern Utah Wilderness Alliance was thus born.

Here comes the yawn-inducing stuff: Under Section 706(1) of the Administrative Procedure Act, federal courts can compel federal agencies to act if they are sitting on their hands. So the environmental groups argued under Section 706(1) that the BLM should be forced to stop these areas from being degraded by off-road vehicles. The groups lost in the district court but prevailed in the 10th Circuit Court of Appeals, where a divided panel held that although federal courts could order agencies only to perform "mandatory, non-discretionary" duties, the congressional mandate requiring that the BLM keep the lands from being impaired, and manage the lands according to land-use plans, was mandatory and nondiscretionary and that ordering the BLM to do what it was supposed to be doing was not outrageous judicial meddling. The simple question for the court today, then, is whether it's better for courts to micromanage lazy agencies or have deserts that look like elephant skin.

Edwin Kneedler, from the U.S. solicitor general's office, begins his argument not in the dusty red rocks of the Utah desert but in the dusty dry text of Section 706(1). He argues that courts can't review internal policies—such as the BLM's ongoing management decisions about the protected areas—until those decisions are "final." When Sandra Day O'Connor points out that the BLM was over a decade late in implementing its own specific deadlines for action, Kneedler counters that an agency's plans are targets; a plan alone doesn't create "mandatory duties, enforceable by the public."

O'Connor asks whether any agency failure to implement its own plans could ever give rise to a legitimate lawsuit. Kneedler replies that if the BLM "chose to impose such a duty on itself," the public could sue for failure to meet that duty. That could happen. Justice David Souter asks about the BLM's duty to monitor these lands. Monitoring is certainly a mandatory thing, but it's also discretionary and not really final. "It's hard to know how much monitoring is enough," he says. "What if they just refuse to monitor? Can that get into court?" No, says Kneedler.

Justice Anthony Kennedy asks what would happen if there were a World Convention of Off-Road Vehicles in a potential wilderness area. Would the BLM have to take action, he asks, or would its officials "just go out and watch the race?" Kneedler mumbles something about the drivers needing permits, adding that someone could ask the BLM to prohibit such things, but that it's nuts for environmental groups to expect the courts to manage a "whole range of activities on the ground."

Ruth Bader Ginsburg points out the problem: "The agency is not doing enough about these vehicles. What could [the environmental groups] have done?" According to Kneedler, not much. Which is, in the view of a federal agency, what makes the very limited reach of Section 706(1) a good thing.

Paul Smith, on behalf of the Southern Utah Wilderness Alliance, says the government is trying to carve out a category of mandatory statutory duties that cannot be reviewed by courts. Justice Scalia points out that this is sort of the whole idea. "The role of the courts is to vindicate individual rights that have been violated." He adds, "I'm not willing to accept your proposition that it's the role of the courts to make sure agencies toe the line. That's the president's role." Scalia goes on to say that lots of agencies have mandates. "The federal communications statute mandates that an agency regulate broadcasting in the public interest, convenience, and necessity." But can people sue if broadcasting doesn't meet those standards? Smith says that language is too general to be enforceable.

Smith says that if citizens can't force the BLM to act under Section 706(1), the most they can do is "write a letter. You send these letters in, and they sit on people's desks." Ginsburg points out that his clients didn't even wait for the BLM to respond to their letter. She says it's one thing to ask to have an area closed, it's another to say "overall you are not doing your job," such that a court not only tells them how to do their job, but monitors it as well. Her gist seems to be that if the BLM were only doing a mediocre job, rather than a wholly awful one, there would be a stronger legal claim here.

Smith answers that not every agency mandate presents a legal claim. "It's not like we're trying to take over an agency," he says. But Chief Justice William Rehnquist says it sounds like that is precisely what they're trying to do. O'Connor, a lifelong connoisseur of wide open spaces, asks why a suit can't just be brought demanding that certain areas be closed. "The exhibits you've furnished are devastating," she adds. "It looks terrible."

In the end, the prospect of unending judicial oversight over lazy agencies seems too much for most of the court to tolerate. There are better and worse ways to force agency action, but seeking ongoing supervision over federal agencies seems unworkable. Certainly the BLM's position—that it can't be doing a crap job preserving these areas so long as it says it's doing something about it—is outrageous. But the notion that citizens can sue the INS or the FCC because they don't like the way they implement their mandates is worse. If you don't like Bush administration's environmental policies, vote for someone else this fall. But once a district court judge in Utah has taken over the management of the desert, she may well be micromanaging it for life.

Dahlia Lithwick is a Slate senior editor.