[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MARCH 18, 2003
No. 02-10555 THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 01-01953-CV-UUB
NATIONAL PARKS CONSERVATION
ASSOCIATION, TROPICAL
AUDUBON SOCIETY,
Plaintiffs-Appellants,
versus
GAIL NORTON, as Secretary of the United
States Department of the Interior, and
FRAN P. MAINELLA, as Director of the
National Park Service,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(March 18, 2003)
Before CARNES, MARCUS and SUHRHEINRICH*, Circuit Judges.
*
Honorable Richard F. Suhrheinrich, United States Circuit Judge for the Sixth Circuit, sitting
by designation.
MARCUS, Circuit Judge:
This case centers around the fate of “Stiltsville,” a collection of stilted
buildings located in Biscayne Bay, off the southern coast of Key Biscayne,
Florida. These buildings presently rest within the boundaries of Biscayne
National Park, and accordingly the National Park Service (“NPS”) is charged with
their administration. However, in 1976, prior to the assumption by the NPS of
responsibility for their management,1 the structures were leased by the State of
Florida to individual occupants for 23 year terms. These leases expressly provided
that upon their expiration on July 1, 1999 the Stiltsville structures would be
removed. As this deadline approached, however, the lessees of these buildings
successfully undertook to extend their exclusive occupancy.
On May 14, 2001, appellants the National Parks Conservation Association
(“NPCA”) and Tropical Audubon Society (“TAS”) responded to the lessees’
efforts by filing this action in the United States District Court for the Southern
District of Florida. They alleged that the NPS’s failure to discontinue the
exclusive private use of the Stiltsville structures violated the National Park Service
Organic Act (“Organic Act”), 16 U.S.C. § 1 et seq., the Biscayne National Park
1
In 1976 the boundaries of Biscayne National Park had not yet been expanded to encompass
Stiltsville, and the State of Florida was responsible for managing the structures. A more complete
account of Stiltsville’s history is set forth, infra.
2
General Management Plan (“General Management Plan”), the National
Environmental Protection Act (“NEPA”), 42 U.S.C. § 4321 et seq., several of the
administrative regulations that attend the Organic Act and the NEPA and the equal
protection component of the Fifth Amendment. With the exception of the equal
protection claim, which they brought under the Due Process Clause of the Fifth
Amendment, NPCA and TAS advanced each of their claims under the
Administrative Procedures Act (“APA”), 5 U.S.C. § 706(1) & 2(A). Appellants
sought to compel the NPS2 to either remove the structures or make them accessible
to the public.
The district court granted summary judgment to the NPS on all of
appellants’ claims. It reasoned that it lacked subject matter jurisdiction under the
APA because decisions whether and how to comply with the Organic Act, General
Management Plan, NEPA and their implementing regulations are vested entirely
within the NPS’s discretion. Accordingly, the court applied the APA’s
“committed to agency discretion” exception to the rule providing for judicial
review of administrative action. See 5 U.S.C. § 701(a)(2); Heckler v. Chaney, 470
U.S. 821, 828-35, 105 S. Ct. 1649, 1654-58, 84 L. Ed. 2d 714 (1985). The district
2
Although this suit technically is brought against both the Department of the Interior (“DOI”)
and the NPS, the NPS simply is a subdivision of the DOI, and accordingly we will refer in this
opinion to the NPS as the appellee in the case.
3
court also held that appellants lacked standing to advance their Fifth Amendment
equal protection claim. NPCA and TAS appeal both of these holdings.
After thorough review, we find that the district court’s conclusion that
appellants’ APA claims were non-justiciable was correct, as was the entry of final
summary judgment for appellee on appellants’ equal protection claim. However,
we base both of these results on different grounds than were relied on by the
district court. See Lucas v. W.W. Grainger, Inc., 257 F.3d 1249, 1256 (11th Cir.
2001) (noting that “we may affirm [the district court’s] judgment ‘on any ground
that finds support in the record’” (quoting Jaffke v. Dunham, 352 U.S. 280, 281,
77 S. Ct. 307, 308, 1 L. Ed. 2d 314 (1957))). In particular, we conclude that we
lack subject matter jurisdiction over appellants’ APA claims because the NPS has
not taken any action vis-a-vis the future management of Stiltsville that can be
considered “final” within the meaning of 5 U.S.C. § 704. Furthermore, although
NPCA and TAS enjoy standing to pursue their equal protection claim, that claim is
unavailing on its merits.
I.
“Stiltsville” is a collection of structures constructed on stilts in the shallow
waters of Biscayne Bay south of Key Biscayne, Florida. The buildings are largely
4
weekend homes, restaurants and nightclubs that were built by wealthy individuals
beginning in the 1930s. By 1945 there were 14 stilted structures in the bay, and by
the 1960s there were 27 such structures in relatively close proximity to each other,
and this collection of buildings became known as “Stiltsville.” Over the years, the
majority of these structures have been destroyed by hurricanes, and today only 7
remain in existence.
During the mid-1960s, the Florida Department of Natural Resources
asserted its jurisdiction over the state-owned submerged lands on which Stiltsville
rests, and issued to private individuals renewable year-to-year leases for the
structures at nominal rent. Subsequently, in 1968 Congress established Biscayne
National Monument, the northern boundary of which was approximately five
miles south of the Stiltsville structures. Congress created the Monument “to
preserve and protect for the education, inspiration, recreation, and enjoyment of
present and future generations a rare combination of terrestrial, marine, and
amphibious life in a tropical setting of great natural beauty.” Pub. L. No. 90-606,
§ 1, 82 Stat. 1188 (1968). In 1976, the State of Florida replaced the year-to-year
leases with exclusive “Campsite leases” that expired on July 1, 1999 and set the
rent at $700 per year. These agreements expressly provided that the lessees
5
forfeited all rights to the buildings other than those provided for in the leases, and
that the structures were to be removed by the lessor upon the leases’ expiration.
In 1980, Congress passed the Biscayne National Park Enabling Act
(“Enabling Act”), 16 U.S.C. §§ 410gg et seq., which converted Biscayne National
Monument into Biscayne National Park. The Park encompasses 71,000 acres that
the Monument did not, including the area in which Stiltsville is located. The
Enabling Act directed the Park Service to “preserve and administer the park in
accordance with the provisions” of the National Park Service Organic Act
(“Organic Act”), 16 U.S.C. § 1, and to develop a revised management plan for the
new park. Accordingly, in 1983 the NPS issued “[t]he General Management Plan,
Development Concept Plan, Wilderness Study and Environmental Assessment”
for Biscayne National Park. This Plan was prepared with public notice and
comment after the completion of environmental review as required by the NEPA,
and it remains in effect. The Plan states that the Stiltsville buildings and
surrounding area will be managed as a natural area for the protection of the natural
resources within the Park, that the leases pertaining to the structures will expire on
July 1, 1999 and cannot be renewed, and that the buildings are to be removed upon
the expiration of the leases. However, the Plan does not specify the method or
exact timing of the removal. In 1985, Florida deeded to the federal government
6
the submerged lands on which Stiltsville sits, an action that resulted in the NPS
becoming landlord for the leaseholders.3
From the execution of the “campsite leases” in 1976 until near the end of
the 23 year lease term, the structures were occupied without incident. However, as
the July 1, 1999 expiration date approached, the leaseholders undertook a series of
actions aimed at preserving their exclusive use of the buildings. They twice filed
with the Keeper of the National Register applications to have the buildings listed
in the National Register of Historic Places. These applications were opposed by
the NPS and both ultimately were denied. Then, on June 29, 1999, with the threat
of a lawsuit looming, appellee and the leaseholders entered into a “Standstill
Agreement” which provided for the continued private occupancy of the buildings
until December 1, 1999. On November 22, 1999, this agreement was extended
through November 29, 2000. Subsequently, bills were introduced in both the 106th
and 107th Congresses to modify the borders of Biscayne National Park to exclude
Stiltsville, see H.R. 1002, 107th Cong. (1st Sess. 2001); H.R. 3033, 106th Cong. (2d
Sess. 2000), but neither of these measures passed.
3
Florida donated this land “subject to outstanding easements, reservations, or interests
appearing of record,” thereby ensuring that the 1976 leases remained binding following the transfer.
7
As the November 29, 2000 extended deadline neared, the Stiltsville
occupants filed two separate actions in the United States District Court for the
Southern District of Florida in an effort to forestall the termination of their leases.
These were captioned Bay Chateau, Inc. v. United States, No. 00-4529 (S.D. Fla.
2000) and Miami Springs Power Boat Club v. United States, No. 00-4518 (S.D.
Fla. 2000), and in each the plaintiff leaseholders claimed that the NPS lacked
authority under the 1976 leases to evict them. On November 29, 2000 the district
court entered a temporary restraining order preventing the NPS from moving to
evict the Stiltsville residents, and then on December 18, 2000 the court converted
the TRO into a preliminary injunction that remained in place until April 1, 2001.
That same month, while these suits were pending, Congress passed an
appropriations rider extending the second Standstill Agreement until March 31,
2001. See Pub. L. No. 106-554, § 129, 114 Stat. 2763, 2763A-230 (2000).
On March 31, 2001, the parties settled the Miami Springs Power Boat Club
and Bay Chateau cases. The settlement agreement required the NPS to forebear
from evicting the leaseholders until April 1, 2002. In addition, the agreement
expressly provided that it “does not constitute a transfer or conveyance by the
United States of any right, title, or interest to the Stiltsville Occupants.”
8
Against this background, on May 14, 2001 the National Parks Conservation
Association and the Tropical Audubon Society filed this suit under the APA, 5
U.S.C. § 706(1) & (2)(A), and the Due Process Clause of the Fifth Amendment.
They alleged that the NPS’s repeated acquiescence in the Standstill Agreements
and other failures to evict the Stiltsville leaseholders upon the expiration of the
campsite leases were tantamount to the grant of an exclusive lease to the
buildings’ occupants. Appellants claimed that this inaction by the NPS violated
the Organic Act, the General Management Plan, the NEPA, several administrative
regulations that attend these provisions and the equal protection component of the
Fifth Amendment Due Process Clause. The parties filed cross motions for
summary judgment, and although the district court denied appellants’ motion it
granted summary judgment in favor of the NPS. The court reasoned that although
the APA provides for judicial review of agency action that is final or that is
specifically made reviewable by statute, there are two notable statutory exceptions
to this general proposition. Under 5 U.S.C. § 701(a), judicial review is
unavailable where “(1) statutes preclude judicial review; or (2) agency action is
committed to agency discretion by law.” The district court quickly concluded that
judicial review was not prohibited under any of the substantive statutes that
9
plaintiffs alleged the NPS to have violated, which left as potentially applicable
only the exception codified at § 701(a)(2).
In Heckler, the Supreme Court held that judicial “review is not to be had
[under § 701(a)(2)] if the statute [in question] is drawn so that a court would have
no meaningful standard against which to judge the agency’s exercise of
discretion.” 470 U.S. at 830, 105 S. Ct. at 1655. Relying on Heckler’s exposition
of the “committed to agency discretion” exception, the district court in this case
determined that none of the statutory provisions that allegedly had been violated
by the NPS contained a standard that was sufficiently definite to permit
meaningful judicial review. In fact, the district court held that “‘Congress
delegated the entire area of parks management to the’ Secretary of the Interior.”
District Court’s opinion at 11 (quoting Maloney v. Sheehan, 453 F. Supp. 1131,
1140 (D. Conn. 1978)). Although the court “acknowledge[d]” appellants’
contention that the Organic Act supplies a meaningful standard for judicial review,
it held that this Act “merely establishes a series of general directives to” promote
and regulate the National Parks. The Organic Act, the court continued, is silent as
to the means by which this promotion and regulation are to be realized. The
district court also noted that the only discernible congressional policy regarding
the Stiltsville leases is consistent with the NPS’s inaction, as evidenced by
10
Congress’s direction to extend the Standstill Agreement until March 21, 2001.
Based on this analysis, the court concluded that neither the Organic Act, the
General Management Plan nor the NEPA supplies a meaningful standard against
which to review appellees’ failure to evict the Stiltsville occupants. As such, it
held that appellants’ claims sounding in the violation of these statutes were
unreviewable by a court. As for their equal protection claim, the district court held
that NPCA and TAS lacked standing to vindicate the interest of all members of the
public in fully enjoying Biscayne National Park. Accordingly, it determined that it
lacked subject matter jurisdiction over this claim.
Based on the foregoing analysis, the district court granted summary
judgment in favor of the NPS, and it is from this order that NPCA and TAS
presently appeal. On appeal, NPCA and TAS argue that this case is readily
distinguishable from Heckler, where the FDA was held to have absolute discretion
whether to undertake enforcement activities, as the NPS is not afforded discretion
under the Organic Act, General Management Plan or NEPA. As a corollary of this
argument, appellants note that the exception codified at 5 U.S.C. § 701(a)(2) is
narrow in scope, and contend that these enactments do provide a meaningful and
altogether sufficient standard against which to review appellees’ inaction. They
also assert that the district court erred by holding that they lack standing to
11
advance their Fifth Amendment equal protection claim, as they seek not to
vindicate the rights of the public at large, but rather of their membership
specifically.
In response, appellees advance three primary arguments. First, seeking to
analogize their inaction to the inaction of the FDA that was at issue in Heckler,
they characterize their failure to terminate the Stiltsville leases as a wholly
discretionary decision not to exert their enforcement power. As such, they say,
this decision is entirely unreviewable by a court under § 701(a)(2). Second,
appellees assert that judicial review may be had only of final agency actions, and
that their decision not to evict the Stiltsville leaseholders is non-final. Finally,
they contend that appellants’ claims are not ripe. Although the NPS does not
defend the district court’s determination that appellants lack standing to advance
their Fifth Amendment equal protection claim, it argues that this claim is
unavailing on its merits.
Before evaluating the central issues in this lawsuit, we observe that since
the inception of this action the NPS has taken several meaningful steps toward the
implementation of a permanent management plan for the Stiltsville structures. In
particular, appellee asserts that as the Bay Chateau and Miami Springs Power Boat
Club litigation proceeded it began a “comprehensive and multi-faceted process for
12
reviewing the management of park resources, including Stiltsville, and evaluating
potential management options for the future.” The National Park Service observes
that it published in the Federal Register a notice of intent to prepare a new
management plan for Biscayne National Park and an attendant draft environmental
impact statement (“DEIS”). See Intent to Prepare a Draft Environmental Impact
Statement for the Stiltsville Management Plan, Biscayne National Park, 66 Fed.
Reg. 65,989, 65,989-90 (Dec. 21, 2001). In this notice the NPS described its
forthcoming plan as “guid[ing] public use and management of [the buildings],” id.
at 65,989, with the attendant DEIS evaluating the potential environmental impacts
associated with the management options being considered. The NPS also points to
its establishment of a 22 member committee (which, notably, included a
representative of TAS) to review alternatives for the future use and management
of the Stiltsville structures. This committee held several public meetings during
2001 and 2002, see Meeting Notice, 67 Fed. Reg. 34,951, 34,951 (May 16, 2002)
(announcing a May 29, 2002 public hearing); Notice of Intent, 67 Fed. Reg.
42,280, 42,280 (June 21, 2002) (noting that public hearings on Stiltsville had been
conducted on September 24th and 25th, 2001), and ultimately submitted a report to
the NPS.
13
Most importantly, roughly 6 weeks prior to oral argument in this case
appellee promulgated both the planned amendment to the General Management
Plan, in which it outlines four management alternatives for Stiltsville, and a DEIS
that evaluates each of these options. See Notice of Availability, 67 Fed. Reg.
71,980, 71,981 (Dec. 3, 2002) (announcing the availability of these documents);
Biscayne National Park General Management Plan Amendment and Draft
Environmental Impact Statement, available at
http://www.nps.gov/bisc/stiltsville/stiltsvillewhatsnew.htm (last visited Feb. 26,
2003). The period for public comment on these alternatives and the DEIS expired
on February 13, 2003, and appellee presently is reviewing the public’s feedback as
a preface to making a final decision regarding Stiltsville’s future. At oral
argument we asked the parties to submit briefs proposing a timeframe for an
ultimate, binding decision as to the prospective management of the structures.
Notably, the NPS says that it anticipates making a final decision by “[m]id-May,”
and appellants have indicated this timeframe is a reasonable one from their
perspective.
Against this background, we address the merits of the parties’ arguments.
14
II.
We review a summary judgment ruling de novo, applying the same legal
standard used by the district court. See Johnson v. Bd. of Regents, 263 F.3d 1234,
1242-43 (11th Cir. 2001). In conducting this examination, we view the materials
presented and all factual inferences in the light most favorable to the non-moving
party. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S. Ct. 1598, 1608,
26 L. Ed.2d 142 (1970). Summary judgment is appropriate where “there is no
genuine issue as to any material fact” and “the moving party is entitled to a
judgment as a matter of law.” Fed. R. Civ. P. 56(c). The burden of demonstrating
the satisfaction of this standard lies with the movant, who must present “pleadings,
depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any” that establish the absence of any genuine, material factual
dispute. Id.
A.
As a general rule, actions taken by federal administrative agencies are
subject to judicial review. 5 U.S.C. § 706; Abbott Labs. v. Gardner, 387 U.S. 136,
140-41, 87 S. Ct. 1507, 1511, 18 L. Ed. 2d 681 (1967), overruled on other
15
grounds, Califano v. Sanders, 430 U.S. 99, 105, 97 S. Ct. 980, 984, 51 L. Ed. 2d
192 (1977). However, as the district court noted, under 5 U.S.C. § 701(a) federal
courts lack jurisdiction over administrative action where “(1) statutes preclude
judicial review; or (2) agency action is committed to agency discretion by law.”
Notably, these are not the only circumstances under which federal courts cannot
review an agency’s acts; as is especially relevant in the present context, federal
jurisdiction is similarly lacking when the administrative action in question is not
“final” within the meaning of 5 U.S.C. § 704. See Independent Petroleum Ass’n
of Am. v. Babbitt, 235 F.3d 588, 594 (D.C. Cir. 2001) (“‘[T]he requirement of a
final agency action has been considered jurisdictional. If the agency action is not
final, the court therefore cannot reach the merits of the dispute.’” (quoting DRG
Funding Corp. v. Sec. of Hous. & Urban Dev., 76 F.3d 1212, 1214 (D.C. Cir.
1996))). This section provides in pertinent part that “[a]gency action made
reviewable by statute and final agency action for which there is no other adequate
remedy in a court are subject to judicial review. A preliminary, procedural, or
intermediate agency action or ruling not directly reviewable is subject to review on
the review of the final agency action.” 5 U.S.C. § 704.
In Bennett v. Spear, the Supreme Court delineated the contours of the “final
agency action” requirement. It held:
16
As a general matter, two conditions must be satisfied for agency
action to be “final”: First, the action must mark the “consummation”
of the agency’s decisionmaking process, -- it must not be of a merely
tentative or interlocutory nature. And second, the action must be one
by which “rights or obligations have been determined,” or from which
“legal consequences will flow.”
520 U.S. 154, 177-78, 117 S. Ct. 1154, 1168, 137 L. Ed. 2d 281 (1997) (quoting
Chicago & S. Air Lines, Inc. v. Waterman S.S. Corp., 333 U.S. 103, 113, 68 S. Ct.
431, 437, 92 L. Ed. 568 (1948) and Port of Boston Marine Terminal Ass’n v.
Rederiaktiebolaget Transatlantic, 400 U.S. 62, 71, 91 S. Ct. 203, 209, 27 L. Ed. 2d
203 (1970)); see also Darby v. Cisneros, 509 U.S. 137, 144, 113 S. Ct. 2539, 2543,
125 L. Ed. 2d 113 (1993) (“‘[T]he finality requirement is concerned with whether
the initial decisionmaker has arrived at a definitive position on the issue that
inflicts an actual, concrete injury . . . .’” (quoting Williamson County Reg’l
Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172, 193, 105 S.
Ct. 3108, 3120, 87 L. Ed. 2d 126 (1985))); Franklin v. Massachusetts, 505 U.S.
788, 797, 112 S. Ct. 2767, 2773, 120 L. Ed. 2d 636 (1992) (“The core question [in
the finality determination] is whether the agency has completed its decisionmaking
process, and whether the result of that process is one that will directly affect the
parties.”). By contrast, “the Supreme Court has defined a nonfinal agency order as
one that ‘does not itself adversely affect complainant but only affects his rights
17
adversely on the contingency of future administrative action.’” American
Airlines, Inc. v. Herman, 176 F.3d 283, 288 (5th Cir. 1999) (quoting Rochester Tel.
Corp. v. United States, 307 U.S. 125, 130, 59 S. Ct. 754, 757, 83 L. Ed. 1147
(1939)).
In Bennett, which featured a challenge to a position set forth in a Federal
Fish and Wildlife Service Biological Opinion, the Supreme Court distinguished
the case at bar from two previous decisions in which the Court had held the
administrative action in question to be non-final under § 704. See 520 U.S. at 178,
117 S. Ct. at 1168-69 (distinguishing Franklin, 505 U.S. 788, 112 S. Ct. 2767 and
Dalton v. Specter, 511 U.S. 462, 114 S. Ct. 1719, 128 L. Ed. 2d 497 (1994)). It
said:
In the former case [Franklin], the agency action in question was the
Secretary of Commerce’s presentation to the President of a report
tabulating the results of the decennial census; our holding that this did
not constitute “final agency action” was premised on the observation
that the report carried no direct consequences and served more like a
tentative recommendation than a final and binding determination.
And in the latter case [Dalton], the agency action in question was
submission to the President of base closure recommendations by the
Secretary of Defense and the Defense Base Closure and Realignment
Commission; our holding that this was not “final agency action”
followed from the fact that the recommendations were in no way
binding on the President, who had absolute discretion to accept or
reject them.
18
Id. (internal citations and punctuation omitted). The Court concluded in Bennett
that § 704’s “final agency action” requirement was satisfied in that case because
“[u]nlike the reports in Franklin and Dalton, which were purely advisory and in no
way affected the legal rights of the relevant actors, the Biological Opinion at issue
here has direct and appreciable legal consequences.” 520 U.S. at 178, 117 S. Ct.
at 1169.
Upon applying these general principles to the facts of this case, we conclude
that the NPS’s failure to discontinue the private occupancy of the Stiltsville
structures cannot be considered “final agency action” within the meaning of § 704.
Preliminarily, we note that although appellee may have acted less than
expeditiously in its planning for Stiltsville’s future since the expiration of the
campsite leases on July 1, 1999, not all of the blame for the delay in implementing
a management plan can be properly attributed to the NPS. Indeed, from
November 29, 2001 through April 1, 2002, appellee was expressly barred by
judicial order and subsequently barred by both judicial order and legislative
mandate from disturbing the Stiltsville occupants’ exclusive access to the
structures. Even had the NPS been disposed to act during this period it was
forbidden from doing so.
19
Moreover, as we have explained at some length, the NPS is actively
planning the prospective management of Stiltsville. Specifically, it has crafted
four management alternatives for Stiltsville and a draft EIS that evaluates each of
these options. See Biscayne National Park General Management Plan Amendment
and Draft Environmental Impact Statement, available at
http://www.nps.gov./bisc/stiltsville/stiltsvillewhatsnew.htm. This document is 238
pages long, and plainly reflects a great deal of care and effort in its formulation.
We find it notable that none of the four options being considered provide for the
continued private occupancy of the structures. Finally, we again observe that
appellee has assured this court that its decisionmaking process will be completed
by mid-May, 2003. Simply put, although to date it has made no final decision, it is
indisputable that the NPS is actively engaged in planning, and has set an
anticipated date for resolving, Stiltsville’s future, and none of the management
alternatives under active consideration would maintain the status quo that
appellants find to be objectionable.
Under these circumstances, we cannot conclude that the NPS has taken any
final action or engaged in a pattern of inaction that can be said to “mark the
‘consummation’ of the agency’s decisionmaking process” or to be “one by which
‘rights or obligations have been determined,’ or from which ‘legal consequences
20
will flow.’” Bennett, 520 U.S. at 177-78, 117 S. Ct. at 1168 (citations omitted);
see also Darby, 509 U.S. at 144, 113 S. Ct. at 2543 (holding that administrative
action will be considered “final” only if the agency “has arrived at a definitive
position on the issue” in question) (citation omitted). It is beyond any doubt that
further administrative action is forthcoming: one of the four proposed
management alternatives will soon be selected and implemented. As such, nothing
that the NPS has done (or refused to do) to date can be deemed the
“consummation” of its decisionmaking process. See, e.g., City of San Diego v.
Whitman, 242 F.3d 1097, 1101 (9th Cir. 2001) (holding that an EPA opinion letter
did not constitute “final agency action” with respect to the appellant’s then unfiled
application for renewal of a modified National Pollutant Discharge Elimination
System permit because there were several administrative steps that necessarily
would be taken before the application, once filed, would be conclusively approved
or denied); Mobil Exploration & Producing U.S., Inc. v. Dept. of Interior, 180
F.3d 1192, 1198 (10th Cir. 1999) (holding that a United States Minerals
Management Service letter did not represent “final agency action” because it
“served only to initiate further proceedings by which the MMS could
[conclusively] determine whether Plaintiffs owed royalties”).
21
Similarly, because the agency has done nothing beyond establishing a
committee to review alternatives for the future use and management of Stiltsville,
formulating management options and submitting those plans for public comment,
no rights or obligations have been fixed by its behavior, nor has it taken (or
refused to take) action so as to impose any legal consequence on any party. It has
generated prospective governance proposals, nothing more and nothing less. This
is precisely the sort of “tentative” behavior characterized by the Supreme Court in
Bennett as falling short of the “final agency action” bar. 520 U.S. at 178, 117 S.
Ct. at 1168.
A telling comparison may be made between the facts of this case and those
at issue in Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 478-79, 121 S. Ct.
903, 915, 149 L. Ed. 1 (2001). Whitman featured a challenge to the EPA’s 1997
revisions to its national ambient air quality standards for particulate matter and
ozone. The EPA argued that the Court lacked subject matter jurisdiction over the
challenge because these standards did not represent reviewable “final agency
action.” In rejecting this contention, the Supreme Court said:
Only if the “EPA has rendered its last word on the matter” in
question, is its action “final” and thus reviewable. That standard is
satisfied here. The EPA’s “decisionmaking process,” which began
with the 1996 proposal and continued with the reception of public
comments, concluded when the agency, “in light of [these
22
comments],” and in conjunction with a corresponding directive from
the White House, adopted the interpretation . . . at issue here. Since
that interpretation issued, the EPA has refused in subsequent
rulemakings to reconsider it, explaining to disappointed commenters
that its earlier decision was conclusive.
Id. (quoting Harrison v. PPG Indus., Inc., 446 U.S. 578, 586, 100 S. Ct. 1889,
1894, 64 L. Ed. 2d 525 (1980)) (other citations omitted). In the present case, by
contrast, the NPS has yet to select any of the four management plans and, indeed,
remains busily engaged in the process of charting the course of Stiltsville’s future.
Although the NPS has completed its receipt of public commentary on its four
alternatives, as the EPA had in Whitman, it has yet to “adopt” one of them. Thus,
the critical step that rendered the EPA’s standards reviewable in Whitman is
absent here. Nothing remotely resembling the NPS’s final word on this matter has
been rendered.
To the extent that appellants suggest that the length of the NPS’s inaction in
this case renders that inaction reviewable, we are unpersuaded. We agree, as a
general matter, that an administrative agency cannot legitimately evade judicial
review forever by continually postponing any consequence-laden action and then
challenging federal jurisdiction on “final agency action” grounds. See, e.g.,
Cobell v. Norton, 240 F.3d 1081, 1095 (D.C. Cir. 2001) (“As this court has noted
in the past, where an agency is under an unequivocal statutory duty to act, failure
23
so to act constitutes, in effect, an affirmative act that triggers ‘final agency action’
review. Were it otherwise, agencies could effectively prevent judicial review of
their policy determinations by simply refusing to take final action.”) (citations and
internal punctuation omitted); Sierra Club v. Thomas, 828 F.2d 783, 793 (D.C.
Cir. 1987) (noting that to deem unreviewable an agency’s withholding of action
that would be reviewable under the APA could be to permit the agency to “forever
evade our review”).
In this case, however, the NPS has not forestalled decisive action regarding
Stiltsville’s future such as would render its inaction reviewable. As we have
explained, not all of the delay in implementing a management plan is attributable
to the NPS; between November 29, 2000 and April 1, 2001 appellee was explicitly
barred by judicial order and legislative mandate from taking any action with
respect to the Stiltsville buildings. Additionally, as we also have discussed, the
NPS has promulgated, and received public comment on, four management
alternatives for the structures and a DEIS pertaining to each of these options.
Finally and notably, appellee assures us that it will reach a final decision regarding
the future of the Stiltsville buildings by “mid-May” of this year. Thus, the NPS is
not presently “withh[olding] or . . . delay[ing]” final action at all. 5 U.S.C. §
706(1). Moreover, it is evident that the plan that the NPS ultimately adopts will
24
satisfy the concerns raised by appellants; none of the four alternatives that
appellee is considering provide for the continued private occupancy of the
Stiltsville buildings.
In sum, the NPS has undertaken -- but has not concluded -- the process of
selecting and implementing a management plan for the buildings that comprise
Stiltsville. Because appellee has not completed this undertaking, the actions that it
has taken to date cannot be deemed the consummation of its decisionmaking
process, and accordingly the Bennett test for “final agency action” is unsatisfied in
this case. By contrast, because the NPS is (albeit after a lengthy period of
inactivity) presently engaged in the aforementioned planning process, we are not
confronted with reviewable administrative inaction. Accordingly, we lack subject
matter jurisdiction over all of appellants’ APA claims, i.e., those alleging
violations of the Organic Act, NEPA, General Management Plan and numerous
regulations that attend these provisions.
We stress, however, that our opinion should not be construed as tacit
approval of any future inaction on the part of the NPS vis-a-vis the formulation
and implementation of a final management plan for the Stiltsville buildings. We
agree with the parties that appellee’s proposed decisionmaking timeframe is
reasonable, seeing no reason (barring any unforseen external influence, e.g.,
25
another judicial or legislative decree or some emergency) why a final management
plan for Stiltsville cannot be decisively implemented by the start of June of this
year. Should this matter not be finally resolved by then, NPCA and TAS may
renew their APA claims.
Based on these conclusions, we find it unnecessary to address appellee’s
contentions regarding ripeness or the applicability of 5 U.S.C. § 701(a)(2) in this
case. Indeed, we offer no opinion as to the merits of the district court’s holding
regarding the APA’s “committed to agency discretion” provision. However,
because the “final agency action” requirement implicates federal subject matter
jurisdiction, the district court’s entry of summary judgment for the NPS on
appellants’ APA claims was improper as a procedural matter. This is so because
“[i]f the court has no jurisdiction, it has no power to enter a judgment on the merits
and must dismiss the action.” 10A Charles Alan Wright, Arthur R. Miller, & Mary
Kay Kane, Federal Practice and Procedure § 2713, at 239 (3d ed. 1998); see also
Whitt v. Sherman Int’l Corp., 147 F.3d 1325, 1333 (11th Cir. 1998) (holding that
because “federal jurisdiction cannot be found, . . . the district court’s entry of
summary judgment was a nullity”). Instead of entering summary judgment in favor
of appellee, the district court should have dismissed appellants’ APA claims, sua
sponte if necessary, pursuant to Fed. R. Civ. P. 12(h)(3). Accordingly, although we
26
agree with the court’s conclusion regarding the justiciability of these claims,
although for wholly different reasons, we vacate its order of summary judgment
and remand to the district court with instructions to dismiss these claims pursuant
to Fed. R. Civ. P. 12(h)(3), which provides that “[w]henever it appears by
suggestion of the parties or otherwise that the court lacks jurisdiction of the subject
matter, the court shall dismiss the action.” See also Fed. R. Civ. P. 12(b)(1)
(providing for the dismissal of an action upon motion of a party where the court
lacks jurisdiction over the subject matter of the dispute) .
B.
Notably, however, this does not dispose of appellants’ equal protection
claim; 4 because this claim is brought directly under the Due Process Clause of the
Fifth Amendment, see Davis v. Passman, 442 U.S. 228, 242-43, 99 S. Ct. 2264,
2275-76, 60 L. Ed. 846 (1979), and not under the APA, the “final agency action”
4
Of course, when we discuss a “Fifth Amendment equal protection” claim, we actually are
concerned with a Fourteenth Amendment equal protection claim that has been “reverse-
incorporated” into the Fifth Amendment’s Due Process Clause. See Bolling v. Sharpe, 347 U.S. 497,
499-500, 74 S. Ct. 693, 694-95, 98 L. Ed. 884 (1954); Fernandez-Bernal v. Attorney Gen., 257 F.3d
1304, 1312 (11th Cir. 2001) (“[T]he Due Process Clause of the Fifth Amendment incorporates the
guarantees of equal protection.”); Rodriguez ex rel. Rodriguez v. United States, 169 F.3d 1342, 1348
(11th Cir. 1999) (discussing “the Due Process Clause of the Fifth Amendment []and the equal
protection principles it incorporates[]”).
27
requirement is inapplicable to it. See generally Ukiah Valley Med. Ctr. v. FTC,
911 F.2d 261, 264 n.1 (9th Cir. 1990) (“[A] finding of finality, or of an applicable
exception, is essential when the court’s reviewing authority depends on one of the
many statutes permitting appeal only of “final” agency action, such as § 10 of the
APA, 5 U.S.C. § 704.”). Accordingly, we review the district court’s order of
summary judgment for appellee on this claim separately.
Ultimately, we conclude that although the district court erred by finding that
appellants lack standing to advance their equal protection challenge -- and that
federal subject matter jurisdiction consequently exists over this claim -- the
challenge is unavailing on its merits. Thus, we affirm the district court’s summary
judgment as to this claim, albeit on grounds other than those on which it relied.
In Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S. Ct. 2130,
2136, 119 L. Ed. 2d 351 (1992), the Supreme Court set forth the test for Article III
standing. First, the plaintiff must have suffered an “injury in fact,” or “an invasion
of a legally protected interest which is . . . concrete and particularized.” Id. at 560,
112 S. Ct. at 2136. Second, the plaintiff must demonstrate the existence of a causal
connection between the injury and the conduct complained of, see id., and finally,
it is necessary to establish that it is “‘likely,’ as opposed to merely ‘speculative,’
that the injury will be ‘redressed by a favorable decision.’” Id. at 561, 112 S. Ct. at
28
2136 (quoting Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26, 41-42, 96 S.
Ct. 1917, 1926, 48 L. Ed. 2d 450 (1976)). Furthermore, where a plaintiff seeks
prospective injunctive relief, it must demonstrate a “real and immediate threat” of
future injury in order to satisfy the “injury in fact” requirement. City of Los
Angeles v. Lyons, 461 U.S. 95, 103-04, 103 S. Ct. 1660, 1665-66, 75 L. Ed. 2d 675
(1983); Wooden v. Bd. of Regents, 247 F.3d 1262, 1283-84 (11th Cir. 2001).
In this case, the district court found that appellants’ equal protection claim
failed to satisfy Defenders of Wildlife’s first prong, characterizing it as having been
brought on behalf of “all . . . members of the public, locally and nationally, who
wish to utilize the Stiltsville structures and to have an equal opportunity for
enjoyment of [Biscayne National] Park and its resources.” The court reasoned that
because NPCA and TAS sought to vindicate the rights of the public as a whole, as
opposed to those possessed by their members specifically, they had failed to
demonstrate the existence of a particularized harm such as is necessary to establish
Article III standing. See Defenders of Wildlife, 504 U.S. at 573-74, 112 S. Ct. at
2143 (“We have consistently held that a plaintiff raising only a generally available
grievance about government -- claiming only harm to his and every citizen’s
interest in proper application of the Constitution and laws, and seeking relief that
29
no more directly and tangibly benefits him than it does the public at large -- does
not state an Article III case or controversy.”).
Appellants argue that the district court mischaracterized their claim. They
point to their submission of “unrebutted affidavits . . . to the [d]istrict [c]ourt which
attest to the injury that each individual member [of these organizations] suffers by
the government’s unlawful actions.” They then argue, based on their members’
satisfaction of the Article III standing test, that they enjoy associational standing
under Hunt v. Washington State Apple Adver. Comm’n, 432 U.S. 333, 343, 97 S.
Ct. 2434, 2441, 53 L. Ed. 2d 383 (1977).
After considering these arguments, we conclude that the district court erred
in dismissing appellants’ Fifth Amendment equal protection claim for lack of
standing. Preliminarily, we note that because the constitutional standing doctrine
stems directly from Article III’s “case or controversy” requirement, see Vermont
Agency of Natural Res. v. United States ex rel. Stevens, 529 U.S. 765, 771, 120 S.
Ct. 1858, 1861-62, 146 L. Ed. 2d 836 (2000), this issue implicates our subject
matter jurisdiction, and accordingly must be addressed as a threshold matter
30
regardless of whether it is raised by the parties.5 Juidice v. Vail, 430 U.S. 327, 331,
97 S. Ct. 1211, 1215, 51 L. Ed. 2d 376 (1977).
It is true that in their complaint NPCA and TAS allege harm to “all . . .
members of the public, locally and nationally [other than the present Stiltsville
occupants], who wish to utilize the Stiltsville structures.” Moreover, it is
unquestionable -- and indeed, appellants do not argue contrarily -- that taken alone
this allegation is insufficient to establish Article III standing. See Defenders of
Wildlife, 504 U.S. at 573-74, 112 S. Ct. at 2143. However, at the summary
judgment stage of litigation -- as in the context of a factual challenge to federal
subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1) -- we are obliged to
consider not only the pleadings, but to examine the record as a whole to determine
whether we are empowered to adjudicate the matter at hand. Fed. R. Civ. P. 56(c)
(requiring the court to consider “the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any,” in
adjudicating a summary judgment motion); Garcia v. Copenhaver, Bell & Assocs.,
104 F.3d 1256, 1261 (11th Cir. 1997) (“‘“Factual attacks” . . . challenge “the
existence of subject matter jurisdiction in fact, irrespective of the pleadings, and
5
We make this point because on appeal appellee does not defend the district court’s standing
determination, opting instead to argue the merits of the equal protection claim.
31
matters outside the pleadings, such as testimony and affidavits, are considered.”’”
(quoting Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir. 1990))).
In this case, prior to the filing of appellee’s summary judgment motion
appellants submitted the aforementioned affidavits. The affiants were several
NPCA and TAS members who had visited Biscayne National Park (and specifically
the area that includes Stiltsville) with frequencies ranging from once per month to
fifty times per year, each of whom indicated an intent to maintain the frequency of
these visits in the future. Each affiant specifically averred that his or her lack of
access to Stiltsville or its surrounding environs impairs his or her recreational and
aesthetic enjoyment of the park. They further alleged that the injuries they suffer as
a result of the NPS’s failure to discontinue the exclusive private use of the
structures is continually present when they are at or near Stiltsville.
These statements satisfy the requirement that the plaintiffs suffer “concrete
and particularized” harm. Defenders of Wildlife, 504 U.S. at 560, 112 S. Ct. at
2136; see also Friends of the Earth, Inc. v. Laidlaw Envt’l Servs. (TOC), Inc., 528
U.S. 167, 183, 120 S. Ct. 693, 705, 145 L. Ed. 2d 610 (2000) (“We have held that
environmental plaintiffs adequately allege injury in fact when they aver that they
use the affected area and are persons ‘for whom the aesthetic and recreational
values of the area will be lessened’ by the challenged activity.” (citing Sierra Club
32
v. Morton, 405 U.S. 727, 735, 92 S. Ct. 1361, 1366, 31 L. Ed. 2d 636 (1972))). As
in Friends of the Earth, the harm suffered by the affiants in this case is more
concrete than was the injury in Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 110 S.
Ct. 3177, 111 L. Ed. 2d 695 (1990). In Nat’l Wildlife Fed’n, the Court held that
“the plaintiff could not survive [a] summary judgment motion merely by offering
‘averments which state only that one of [the organization’s] members uses
unspecified portions of an immense tract of territory, on some portions of which
mining activity has occurred or probably will occur by virtue of the governmental
action.’” Friends of the Earth, 528 U.S. at 183, 120 S. Ct. at 705 (quoting Nat’l
Wildlife Fed’n, 497 U.S. at 889, 110 S. Ct. at 3189). In this case, by contrast, the
affiants specify that they have repeatedly traveled to the site of the Stiltsville
buildings in particular and on each such occasion have been harmed by their
inability to enjoy either the structures or the natural environment surrounding them.
Nor is this a case in which the affiants have asserted only “‘some day’
intentions” to return to the site of their harm “without any description of concrete
plans, or indeed even any specification of when the some day will be.” Defenders
of Wildlife, 504 U.S. at 564, 112 S. Ct. at 2138 (emphasis in original). The affiants
state with particularity that they have definite plans to continue visiting Stiltsville
with precisely the same frequency that they have to date, and that in the absence of
33
remedial action they will continue to experience the aesthetic and recreational
harms described, supra. Quite simply, on this record the affiants have satisfied the
concern expressed in Lyons that plaintiffs seeking prospective injunctive relief
establish a “real and immediate threat” of future harm. 461 U.S. at 102, 103 S. Ct.
at 1665.
We also note that the second and third prongs of the Article III standing
inquiry plainly are satisfied in this case. Appellants allege that the injuries suffered
by their members stem directly from the inability to enjoy the natural features of
the area of Biscayne National Park on which the Stiltsville buildings rest, the lack
of access to those structures and the aesthetic harm that is caused by the structures’
presence in the park. There is no question that these harms, to varying extents,
result from the continued, exclusive private occupancy of the structures, or that
they would be remedied, again to different degrees, by the management alternatives
being considered by appellee. In doctrinal terms, appellants have demonstrated
that the injury suffered by their members “is fairly traceable to [conduct] of the
defendant” and that “it is likely, as opposed to merely speculative, that the injury
will be redressed by a favorable decision.” Alabama Power Co. v. United States
Dept. of Energy, 307 F.3d 1300, 1308-09 (11th Cir. 2002) (citing Defenders of
Wildlife, 504 U.S. at 560-61, 112 S. Ct. at 2136).
34
Although the foregoing analysis establishes that appellants’ members
possess Article III standing, it does not confirm that appellants themselves may sue.
As the Supreme Court explained in Warth v. Seldin, 422 U.S. 490, 511, 95 S. Ct.
2197, 2211-12, 45 L. Ed. 2d 343 (1975), and subsequently refined in Hunt, an
association may sue on behalf of its members when:
(a) its members would otherwise have standing to sue in their own
right; (b) the interests it seeks to protect are germane to the
organization’s purpose; and (c) neither the claim asserted nor the
relief requested requires the participation of individual members in
the lawsuit.
432 U.S. at 343, 97 S. Ct. at 2441; see also United Food & Commercial Workers
Union Local 751 v. Brown Group, Inc., 517 U.S. 544, 553, 116 S. Ct. 1529, 1534,
134 L. Ed. 2d 758 (1996).
This test is satisfied here. First, because the individual affiants allege
concrete aesthetic and recreational harms that are directly traceable to the NPS’s
failure to end the exclusive private occupancy of the Stiltsville structures and
would be redressible by a change in the status quo, they would have standing to
sue in their own right. See Defenders of Wildlife, 504 U.S. at 560-61, 112 S. Ct.
at 2136. Second, there is no question that the environmental, aesthetic and
recreational benefits that would stem from the removal or at least discontinuing
35
the private occupancy of the Stiltsville buildings would be consistent with the
organizational purposes of NPCA and TAS. Third, in no way must the individual
affiants be made parties to this suit in order to advance the instant equal protection
claim or to fashion the sort of prospective injunctive relief sought by appellants.
Warth, 422 U.S. at 515, 95 S. Ct. at 2213 (“If in a proper case the association
seeks a declaration, injunction, or some other form of prospective relief, it can
reasonably be supposed that the remedy, if granted, will inure to the benefit of
those members of the association actually injured.”). Accordingly, under
controlling precedent NPCA and TAS possess associational standing to advance a
Fifth Amendment equal protection claim on behalf of their members.
Despite our conclusion that the district court’s standing determination
constituted error, we nonetheless affirm its grant of summary judgment for
appellee when we consider the merits of the equal protection claim advanced by
NPCA and TAS. When adjudicating a Fifth Amendment equal protection claim --
which is evaluated in precisely the same manner as an analogous claim under the
Fourteenth Amendment, see Weinberger v. Wiesenfeld, 420 U.S. 636, 638 n.2, 95
S. Ct. 1225, 1228 n.2, 43 L. Ed. 2d 514 (1975) -- we must determine at the outset
the degree of scrutiny to which the classification in question is to be subjected.
The Supreme Court has repeatedly said that when the government creates a
36
“suspect” classification of people, e.g., distinguishes between people along lines
of race or alienage, that classification is subject to strict scrutiny. Under this
searching review, the classification “must be held unlawful unless (1) the racial
classification serves a compelling governmental interest, and (2) it is narrowly
tailored to further that interest.” Johnson v. Bd. of Regents, 263 F.3d 1234, 1244
(11th Cir. 2001) (citing Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227, 115
S. Ct. 2097, 2113, 132 L. Ed. 2d 158 (1995)) (emphasis original). Where, by
contrast, the classification in question is drawn along “quasi-suspect” line, e.g., on
the basis of gender, it will be subject to intermediate scrutiny. Danskine v. Miami
Dade Fire Dept., 253 F.3d 1288, 1293 (11th Cir. 2001). Under this standard, a
“preference may be upheld so long as it is substantially related to an important
governmental objective.” Id. at 1294 (citation omitted).
In this case, however, neither of these standards are appropriate, as the
classification in question is simply between the individuals who were party to the
1976 campsite leases and all other people who wish to enjoy either the portion of
Biscayne National Park that currently is occupied by Stiltsville or the Stiltsville
buildings themselves. This is neither a suspect nor a quasi-suspect classification,
as those terms have been explicated by the Supreme Court. Accordingly, we
employ only rational basis review in evaluating appellants’ equal protection
37
challenge. See Romer v. Evans, 517 U.S. 620, 631, 116 S. Ct. 1620, 1627, 134 L.
Ed. 2d 855 (1996); Yeung v. INS, 76 F.3d 337, 339 (11th Cir. 1995). Under this
deferential standard, “we will uphold the legislative classification [in question] so
long as it bears a rational relation to some legitimate end.” Romer, 517 U.S. at
631, 116 S. Ct. at 1627. In making this determination:
The first step . . . is identifying a legitimate government purpose -- a
goal -- which the enacting government body could have been
pursuing. The actual motivations of the enacting governmental body
are entirely irrelevant . . . . The second step of rational-basis scrutiny
asks whether a rational basis exists for the enacting governmental
body to believe that the legislation would further the hypothesized
purpose. The proper inquiry is concerned with the existence of a
conceivably rational basis, not whether that basis was actually
considered by the legislative body. As long as reasons for the
legislative classification may have been considered to be true, and the
relationship between the classification and the goal is not so
attenuated as to render the distinction arbitrary or irrational, the
legislation survives rational-basis scrutiny.
Joel v. City of Orlando, 232 F.3d 1353, 1358 (11th Cir. 2000) (quoting Haves v.
City of Miami, 52 F.3d 918, 921-22 (11th Cir. 1995)) (emphasis in original).
The NPS says that to the extent it has created a classification system that
treats Stiltsville occupants differently from non-Stiltsville occupants, this serves
the government’s goal of “protect[ing] and maintain[ing] the stilted structures
pending completing of the [NPS’s] long-term planning process. The temporary
38
preservation of the status quo to preserve options in a long-term planning process .
. . is a legitimate government interest.” As we said above, we need not inquire
into the genuineness of appellee’s proffered explanation of its classification, as we
have no doubt that the NPS could have been attempting to temporarily maintain
the structures pending the selection of one of its proposed management
alternatives, or that this desire to keep its options open is a legitimate
governmental end. See generally Romer, 517 U.S. at 632, 116 S. Ct. at 1627
(detailing various governmental purposes that have been considered legitimate).
Moreover, the connection between the continued private occupancy of the
structures and this goal is straightforward; the current Stiltsville leaseholders or
their predecessors-in-interest have served as caretakers for the structures for over
25 years, and the temporary continuation of this arrangement is a minimally
burdensome means of ensuring that such caretaking continues pending the
implementation of a particular prospective management plan. Given this
conclusion, our equal protection inquiry is at an end. See id. (“In the ordinary
case, a law will be sustained if it can be said to advance a legitimate government
interest, even if the law seems unwise or works to the disadvantage of a particular
group, or if the rationale for it seems tenuous.”); Harris v. McRae, 448 U.S. 297,
326, 100 S. Ct. 2671, 2693, 65 L. Ed. 2d 784 (1980) (noting that in conducting
39
rational basis review the only task of a federal court is to ensure that the
classification in question is “rationally related to a legitimate governmental
interest,” and that “[i]t is not the mission of this Court or any other to decide
whether the balance of competing interests reflected . . . is wise social policy”).
Because there are no disputed factual questions that cast any doubt on the
correctness of this outcome, the NPS is entitled to summary judgment on
appellants’ Fifth Amendment equal protection claim. Accordingly we affirm,
albeit on different grounds.
III.
To summarize, we hold that the NPS has neither taken any action with
respect to the prospective management of the Stiltsville structures that can be
deemed “final” within the meaning of 5 U.S.C. § 704, nor has it engaged in a
pattern of reviewable administrative inaction. Accordingly, we presently lack
subject matter jurisdiction over each of the claims brought by NPCA and TAS
under the APA and remand to the district court with instructions to dismiss these
claims pursuant to Fed. R. Civ. P. 12(h)(3); see also Fed. R. Civ. P. 12(b)(1). As a
corollary of this disposition, we vacate the district court’s order of final summary
judgment as to these claims. Moreover, although the district court erred in holding
40
that appellants lack standing to advance their Fifth Amendment equal protection
claim, this claim fails on the merits, and as such we affirm the court’s summary
judgment as to this claim.
AFFIRMED IN PART, VACATED IN PART AND REMANDED
WITH INSTRUCTIONS.
41
National Parks Conservation Association, Tropical Audubon Society v. Gail Norton, Fran P. Manella
Court: Court of Appeals for the Eleventh Circuit
Date filed: 2003-03-18
Citations: 324 F.3d 1229
Copy Citations