Hells Canyon Preservation Council v. United States Forest Service

GRABER, Circuit Judge,

concurring in

part and dissenting in part:

I concur in the majority’s analysis of the first two claims. Plaintiffs do not have standing to challenge the Forest Service’s failure to retain the original map of the Hells Canyon Wilderness area. Maj. op. Part II-A. And Plaintiffs’ claim that the boundary description is arbitrary and capricious is barred by the six-year statute of limitations. Maj. op. Part II-B. I respectfully dissent, however, from the majority’s analysis of the third claim. Maj. op. Part II-C.

Plaintiffs assert that portions of the Lord Flat Road1 are located within the Hells Canyon Wilderness area; that the Forest Service is under a continuing obligation pursuant to the Wilderness Act, 16 U.S.C. §§ 1131-1136, to close those portions of the road to motorized vehicles; and that the Forest Service has refused to do so. In my view, Plaintiffs have asserted a viable claim to “compel agency action unlawfully withheld” under 5 U.S.C. § 706(1).

It cannot seriously be disputed that the Forest Service must prohibit the use of motor vehicles within the Wilderness area. See 16 U.S.C. § 1133(c) (“[T]here shall be no ... use of motor vehicles ... within any such [wilderness] area [subject to certain exceptions not applicable here].”); id. § 460gg-l(b) (“The [Hells Canyon Wilderness] shall be administered by the Secretary [of Agriculture] in accordance with the provisions of the Wilderness Act....”). And it is undisputed that the Forest Service has not closed the relevant portions of the Lord Flat Road to motor vehicles. The crux of this case, then, is whether the relevant portions of the road are located within the Wilderness area. There has been no determination—by the district court or by the majority—on that crucial question, which is a mixed question of fact and law. Instead, the majority holds that, even if the road is located within the Wilderness area, Plaintiffs cannot state a “failure to act” claim under 5 U.S.C. § 706(1). In effect, the majority holds that the Forest Service’s (alleged) plain violation of the Wilderness Act is not subject to judicial review. I disagree.

“[A] claim under § 706(1) can proceed only where a plaintiff asserts that an agency failed to take a discrete agency action that it is required to take.” Norton v. S. Utah Wilderness Alliance, 542 U.S. 55, 64, 124 S.Ct. 2373, 159 L.Ed.2d 137 (2004). In *935my view, the statutory provisions here plainly, directly, discretely, and concretely require the Forest Service to prohibit the use of motorized vehicles within the Hells Canyon Wilderness area. That specific legal requirement is a far cry from the broad and general statutory mandates that the Supreme Court held are not subject to judicial enforcement under § 706(1). See, e.g., id. at 67, 124 S.Ct. 2373 (“To take just a few examples [of actions not subject to judicial enforcement under § 706(1)] from federal resources management, a plaintiff might allege that the Secretary had failed to ‘manage wild free-roaming horses and burros in a manner that is designed to achieve and maintain a thriving natural ecological balance,’ or to ‘manage the [New Orleans Jazz National] [Historical [P]ark in such a manner as will preserve and perpetuate knowledge and understanding of the history of jazz,’ or to ‘manage the [Steens Mountain] Cooperative Management and Protection Area for the benefit of present and future generations.’ ” (alterations in original) (quoting various federal statutes)). In my view, if Plaintiffs are correct that the disputed portions of the road do, in fact, lie within the Wilderness area, then Plaintiffs have stated a cognizable claim under § 706(1).2

The majority disagrees for two reasons. First, the majority holds that the Forest Service actually has carried out its statutory obligations because, for example, it closed the road to motorized vehicles and relocated a portion of the road in 1989. The majority appears to hold that, so long as the Forest Service has met its mandatory statutory obligations in some location, at some earlier point in time, its failure to meet those obligations in other locations, at other times, is forever shielded from judicial review. I find no support for that proposition in law or logic, and the majority provides none.

Second, the majority holds that “allowing plaintiffs’ claim to proceed would invite us to compel the Forest Service to do something—adjust the western boundary to fit[Plaintiffs’] preference—not clearly mandated in the Act.” Maj. op. at 933. To respond to this argument, it is important to clarify the nature of Plaintiffs’ claim. To the extent that Plaintiffs contend that the boundary description must be altered or adjusted in any way, I agree completely with the majority that that claim is not cognizable. But I understand Plaintiffs to assert that, even accepting the boundary description exactly as written, the road lies within the Wilderness area. In that regard, the majority’s rejection of Plaintiffs’ claim simply does not apply. Plaintiffs are not asking the court “to use [a] particular topographical feature as the boundary” or to “compel[] the Forest Service to adopt [Plaintiffs’] preferred boundary.” Maj. op. at 933. In the third claim, Plaintiffs simply are asking the courts to compel the Forest Service to prohibit the use of motorized vehicles within the Wilderness area as described by the boundary description, something specifically and unequivocally mandated by statute.

For similar reasons, Plaintiffs’ claim is not an attempted “end run” around anything. Maj. op. at 933. As discussed *936above, I agree with the majority that Plaintiffs’ claim that the 1978 boundary description was arbitrary and capricious when promulgated is barred by the statute of limitations. But Plaintiffs’ claim here does not concern past events; it concerns the Forest Service’s present and ongoing obligation to prohibit motorized vehicles in the Wilderness area. Plaintiffs are barred by the statute of limitations from seeking damages from an alleged failure to prohibit motorized vehicles far in the past. But Plaintiffs seek prospective remedies, including an order requiring the Forest Service prospectively to prohibit the use of motorized vehicles within the Wilderness area.

In conclusion, I would reverse the district court’s dismissal of the third claim and remand for a determination of whether certain portions of the Lord Flat Road actually lie within the Wilderness area. The Forest Service ultimately might prevail on the merits of that determination. But the majority’s holding that such a determination is unavailable unduly restricts—if not eviscerates—judicial review under § 706(1) for an agency’s failure to act. Accordingly, I respectfully dissent in part.

. The Lord Flat Road is also known as the Lord Flat Trail. I follow the usage selected by the district court and the United States Forest Service.

. The district court held that this claim is barred by the statute of limitations. The majority holds that "timeliness of plaintiffs' claim is beside the point,” maj. op. at 932, and does not reach the statute of limitations issue. For that reason, I limit my analysis of that issue to stating that I would hold that Plaintiffs assert a continuing violation which is not barred by the statute of limitations. See Airweld, Inc. v. Aireo, Inc., 742 F.2d 1184, 1190 (9th Cir.1984) ("The effect of a continuing violation is to restart the statute of limitations.”); see also Wilderness Soc’y v. Norton, 434 F.3d 584, 588 (D.C.Cir.2006) (stating, in dictum, that this type of claim would not be barred by the statute of limitations).